author: ANDERSON, PAUL H„ Justice. GILDEA, Justice ANDERSON, G. BARRY, Justice

text:
    In re the ESTATE OF Leonard Earl JOTHAM, Deceased.
    No. A05-438.
    Supreme Court of Minnesota.
    Oct. 12, 2006.

      Timothy D. Kelly, Kelly & Berens, P.A., Minneapolis, MN, James W. Nelson, Brainerd, MN, for Appellant, Sandra Barnett.
    Raymond A. Charpentier, Charpentier & Lange, Brainerd, MN, for Respondent, Diann Nelson.
    Thomas C. Pearson, Erickson, Pearson & Aanes, Brainerd, MN, for Selma Marie Jotham.
   OPINION

ANDERSON, PAUL H„ Justice.

This case involves a probate proceeding arising out of the death of respondent Diann Nelson’s father, Leonard Jotham. Nelson seeks, for purposes of determining intestate succession, to introduce evidence to rebut the presumption that Jotham is the father of appellant Sandra Barnett, which presumption is found in section 257.55, subdivision 1, of Minnesota’s Parentage Act. Minn.Stat. § 257.55, subd. 1 (2004). The district court concluded that the statute of limitations in Minn.Stat. § 257.57, subd. 1(b) (2004), bars Nelson from challenging the paternity presumption and declared Barnett to be Jotham’s heir as a matter of law. The court of appeals reversed, holding that the district court erred by failing to consider evidence Nelson offered to rebut the presumption that Jotham is Barnett’s father. In re Estate of Jotham, 704 N.W.2d 210, 215 (Minn.App.2005). We reverse the court of appeals and remand.

The parties stipulated to the essential facts of this case. Leonard Jotham married Margaret Jotham in 1942, and Diann Nelson was born to Margaret Jotham during this marriage. Leonard and Margaret Jotham were divorced in 1947. Sandra Barnett was born to Margaret Jotham 279 days after the judgment of divorce was entered. Barnett’s birth certificate identifies Leonard Jotham as her father, but there has been no judicial determination of Jotham’s paternity of Barnett, and the parties agreed that Jotham did not acknowledge paternity in writing.

Leonard Jotham, who did remarry, died intestate on June 8, 2004. His widow filed a Petition for Formal Adjudication of Intestacy, Determination of Heirs, and Appointment of Administrator in which she named herself as Jotham’s surviving spouse and Nelson and Barnett as his daughters. Nelson objected to the petition, contending that Jotham is not Barnett’s father, and thus Barnett is not entitled to share in Jotham’s estate.

The parties stipulated to certain facts, and Nelson offered to introduce evidence that Jotham is not Barnett’s father. After a hearing on Nelson’s objections, the district court issued an order in which it concluded that Jotham is Barnett’s father as a matter of law, and thus Barnett is entitled to inherit from Jotham’s estate. The court based its conclusion on the presumption of paternity set forth in Minn. Stat. § 257.55, subd. 1(a), of Minnesota’s Parentage Act, which provides that a man is presumed to be the father of a child born to the man’s former wife within 280 days of the termination of their marriage. Applying this presumption, the court determined that Barnett is presumed to be Jotham’s child because she was born within 280 days of Jotham’s divorce from Margaret Jotham. The court concluded that it could not consider the evidence offered by Nelson to rebut this presumption because Nelson’s challenge to Jotham’s paternity of Barnett is barred by the three-year statute of limitations in Minn.Stat. § 257.57, subd. 1(b). Section 257.57, subdivision 1, provides in pertinent part:

A child, the child’s biological mother, or a man presumed to be the child’s father under section 257.55, subdivision 1, paragraph (a), (b), or (c) may bring an action: * * *
(b) For the purpose of declaring the nonexistence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (a), (b), or (c), only if the action is brought within two years after the person bringing the action has reason to believe that the presumed father is not the father of the child, but in no event later than three years after the child’s birth.

Nelson appealed the district court’s order, and the court of appeals reversed. Jotham, 704 N.W.2d at 210, 215. While the court of appeals agreed that the presumption in section 257.55, subdivision 1(a), applies to this case, the court held that the district court erred by concluding that it could not consider the evidence Nelson offered to rebut the presumption. Id. at 215. The court of appeals reasoned that the statute of limitations in section 257.57, subdivision 1(b), by its plain language only limits the time in which “an action to declare the nonexistence of a father-child relationship” may be brought. Id. at 213-14; see Minn.Stat. § 257.57, subd. 1(b). Because the case at bar was not an action brought under section 257.57 (2004), but rather a probate proceeding in which, as the court of appeals characterized it, a party sought to defensively rebut a presumption of paternity, the court concluded that the limitations period of section 257.57 did not apply. Jotham, 704 N.W.2d at 213-14. The court also observed that another section of the Parentage Act, Minn.Stat. § 257.55, subd. 2 (2004), authorizes rebuttal of a paternity presumption “in an appropriate action,” without limiting “an appropriate action” to one brought under the Parentage Act. Id. at 214. We granted Barnett’s petition for review on the issue of whether Minn.Stat. § 257.57 bars Nelson’s attempt to rebut the presumption of Jotham’s paternity of Barnett for purposes of intestate succession.

I.

The construction of a statute is a question of law, subject to de novo review by our court. In re Estate of Palmer, 658 N.W.2d 197, 199 (Minn.2003). The goal of statutory construction is “to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2004). A court must construe the words of a statute according to their plain meaning. River Valley Truck Ctr., Inc. v. Interstate Cos., 704 N.W.2d 154, 161 (Minn.2005). If the meaning of the words of a statute is not clear, a court construes the statute by considering the intent of the legislature in drafting the law. Minn.Stat. § 645.16 (2004). Uniform laws are construed to effectuate their purpose of making uniform the laws of the states in which they are enacted. Minn.Stat. § 654.22 (2004).

The Minnesota Probate Code gives district courts “jurisdiction over all subject matter relating to estates of decedents, including * * * determination of heirs and successors of decedents.” Minn.Stat. § 524.1-302(a) (2004). The Probate Code recognizes that cases may arise in which a parent-child relationship must be established in order to determine heirship for purposes of intestate succession. Minn. Stat. § 524.2-114 (2004) (amended 2005). In cases not involving adoption, the Code provides that “a person is the child of the person’s parents regardless of the marital status of the parents and the parent and child relationship may be established under the Parentage Act, sections 257.51 and 257.74.” Minn.Stat. § 524.2-114.

Minnesota’s Parentage Act, Minn.Stat. §§ 257.51-257.74 (2004), was adopted in 1980 and is modeled on the Uniform Parentage Act. Morey v. Peppin, 375 N.W.2d 19, 22 (Minn.1985). Minnesota’s Parentage Act creates causes of action for individuals seeking to establish the existence or nonexistence of a father-child relationship. Minn.Stat. § 257.57. The standing and timeliness requirements for the causes of action set forth in section 257.57 vary depending on whether the suit is brought for the purpose of declaring the existence or the nonexistence of a father-child relationship and which, if any, of the paternity presumptions apply. See id. In particular, section 257.57, subdivision 1(b), imposes a three-year statute of limitations running from the date of the child’s birth for an action to declare the nonexistence of a father-child relationship that is presumed based on a marital relationship. Section 257.57, subdivision 1(b), also restricts standing to bring such an action to the child, the child’s biological mother, and a man presumed to be the child’s father under Minn.Stat. § 257.55, subd. l(a)-(c).

In addition to creating causes of action, the Parentage Act sets forth nine paternity presumptions, including the presumption that a man is the biological father of a child born to the man’s former wife within 280 days of the termination of their marriage relationship. Minn.Stat. § 257.55, subd. 1(a). The Act provides that a presumption of paternity “may be rebutted in an appropriate action only by clear and convincing evidence.” Minn.Stat. § 257.55, subd. 2.

On appeal to our court, Barnett argues that the three-year statute of limitations and the standing requirements of section 257.57, subdivision 1(b), for actions to declare the nonexistence of a father-child relationship presumed under section 257.55, subdivision 1(a), prohibit Nelson from presenting evidence to rebut the presumption of Jotham’s paternity of Barnett. Barnett notes that Nelson does not fall within the limited class of people permitted to bring an action under section 257.57, subdivision 1(b), and that the limitations period for bringing such an action has long since expired. While Barnett’s standing argument was not raised either at the district court or at the court of appeals, standing is jurisdictional and thus may be raised at any time. In re Petition for Improvement of County Ditch, No. 86, Branch 1, 625 N.W.2d 813, 817 (Minn. 2001); In re Welfare of Mullins, 298 N.W.2d 56, 61 n. 7 (Minn.1980).

In opposition to Barnett’s argument, Nelson asserts that her effort to rebut the presumption of Jotham’s paternity of Barnett cannot be equated with the institution of an action under section 257.57 and thus is not subject to the standing requirements or time limitations of that section. Instead, Nelson contends that she is simply litigating heirship in a probate proceeding, and this proceeding is outside the scope of the Parentage Act.

The narrow issue presented for our review is whether the statute of limitations and/or standing requirements in section 257.57, subdivision 1(b), apply to a party in a probate proceeding attempting to rebut a presumption of paternity for intestacy purposes. While this is an issue of first impression for our court, we recently considered a related issue in In re Estate of Palmer, 658 N.W.2d 197. In Palmer, Michael Smith petitioned for summary distribution of the estate of James Palmer, alleging that Smith was Palmer’s child, despite the fact that none of the statutory presumptions of paternity applied. Palmer, 658 N.W.2d at 198. Palmer’s widow objected, arguing that paternity for purposes of intestate succession must be decided under the methods set forth in the Parentage Act. Id. at 199. Had Smith been required to use the Parentage Act to establish paternity, his claim would have been barred by the statute of limitations in Minn.Stat. § 257.58.

In Palmer, we interpreted the phrase “may be established” in MinmStat. § 524.2-114 as permissive, “permitting, but not requiring, that parentage in a probate proceeding be determined in accordance with the dictates of the Parentage Act.” Id. Accordingly, we held that, for the purpose of establishing intestate succession, parentage may be established by “clear and convincing evidence apart from the Parentage Act and its time limitation on bringing actions to determine paternity.” Id. at 197. Nelson contends this language in Palmer permits her to introduce evidence to dispute Jotham’s paternity of Barnett and obligates Barnett to prove Jotham’s paternity by clear and convincing evidence. But Barnett contends, and we agree, that the case before us is distinguishable from Palmer in a crucial way. Palmer held that, where a party is unable to use the Parentage Act to establish paternity for purposes of intestate succession, the party may employ an alternative means of establishing paternity— namely, proving paternity by clear and convincing evidence. See id. at 197, 198. Here, unlike in Palmer, a party is attempting to challenge the paternity of an individual who is presumed to be the decedent’s child, rather than seeking to establish the parentage of one who does not benefit from a presumption of paternity under the Parentage Act. Thus, we conclude that Palmer does not decide the outcome of this case.

Instead, this case presents an opportunity for us to clarify when it is appropriate for a probate court to use a Parentage Act presumption to establish paternity for intestacy purposes and when the alternative method described in Palmer — clear and convincing evidence of paternity — may be employed. When a party benefits from a Parentage Act presumption of paternity and relies on that presumption to establish paternity in a probate proceeding, the party has chosen to establish paternity under the Parentage Act, as expressly authorized by the Probate Code. See MinmStat. § 524.2-114. In such a situation, the provisions of the Parentage Act must apply in their entirety. That is, when a party seeking to establish paternity in a probate proceeding invokes a Parentage Act presumption, the provisions of the Act limiting attempts to rebut such a presumption may not be disregarded. Put another way, because the Parentage Act sets forth a carefully constructed, unitary statutory scheme, the presumptions found in section 257.55, subdivision 1, cannot be divorced from the rest of the Act. Cf. Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 12 (Minn.2002) (noting that a statute must be read and construed as a whole). Our holding in Palmer thus does not give probate courts license to pick and choose among the provisions of the Parentage Act when ascertaining parentage for probate purposes. Accordingly, we conclude that when a party benefits from a presumption of paternity found in the Parentage Act and relies on that presumption to establish paternity in a probate proceeding, the probate court must apply the Parentage Act in its entirety to determine paternity for purposes of intestate succession.

While it appears that no other court has addressed the precise question presented in this case, the New Jersey Supreme Court in In re Trust Created by Agreement Dated December 20, 1961, 166 N.J. 340, 765 A.2d 746 (2001) [hereinafter Trust 1961], considered a similar issue. In Trust 1961, several trust beneficiaries challenged the paternity of another beneficiary, Jenia, thereby contesting Jenia’s status as a beneficiary. Id. at 751. Under New Jersey’s Parentage Act, Jenia was presumed to be the child of the trustor’s son and, under the terms of the trust, was therefore a beneficiary. Id. at 749, 753. To contest Jenia’s parentage, the beneficiaries relied on a provision in the New Jersey Probate Code that a parent-child relationship “ ‘may be established * * * regardless of the time limitations set forth in [the Parentage Act].’ ” Id. at 754 (alteration and omission in original) (quoting N.J. Stat. Ann. § 3B:5-10).

In rejecting the beneficiaries’ challenge, the New Jersey court in Trust 1961 drew a conceptual distinction between that case and one of its earlier cases, Wingate v. Estate of Ryan, 149 N.J. 227, 693 A.2d 457 (1997), which held, as we did in Palmer, that an individual who seeks to establish paternity in a probate proceeding but who does not benefit from a presumption of paternity found in the Parentage Act is not required to use the Parentage Act to prove paternity. Trust 1961, 765 A.2d at 754-55. The court in Trust 1961 noted that the Parentage Act was meant to facilitate, not hinder, the establishment of paternity for inheritance purposes. Trust 1961, 765 A.2d at 754-55 (citing Wingate, 693 A.2d at 457). The New Jersey court concluded that the holding in Wingate applies “principally to parties seeking to establish or confirm their parentage, as opposed to those seeking to defeat the established parentage of others.” Id. at 755, 166 N.J. 340 (emphasis added).

We agree with the distinction drawn in Trust 1961 between individuals seeking to establish paternity and those contesting the presumed paternity of another. In the Parentage Act, the legislature also recognized this distinction, differentiating between actions to declare the nonexistence of a presumed parent-child relationship and actions to establish a parent-child relationship. See Minn.Stat. §§ 257.57; 257.58. By imposing substantially shorter limitations periods for actions to declare the nonexistence of a presumed parent-child relationship than for suits to declare the existence of such a relationship, the Act evinces a policy favoring the establishment of parent-child relationships. Compare MinmStat. §§ 257.57, subd. 1(a) (allowing actions to declare the existence of a father-child relationship to be brought at any time), with MinmStat. § 257.57, subd. 1(b) (requiring actions to declare the nonexistence of a father-child relationship to be brought no later than three years after the child’s birth). This policy discouraging challenges to presumed parent-child relationships bolsters our conclusion that, in a probate proceeding in which a Parentage Act presumption is invoked, paternity must be determined in accordance with the dictates of the Parentage Act.

II.

Having concluded that, because Barnett benefits from a presumption of paternity, paternity for intestacy purposes must be determined under the Parentage Act, we now turn to the provisions of that Act to ascertain whether the Act permits Nelson to rebut the presumption of paternity in this case. The Parentage Act permits presumptions of paternity to be rebutted in “an appropriate action” by clear and convincing evidence. Minn.Stat. § 257.55, subd. 2. Section 257.55, subdivision 2, provides:

A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.

(Emphasis added.) But the Act does not define “an appropriate action,” nor is there a single common meaning of that phrase. See Minn.Stat. § 645.08(1) (2004) (providing that phrases in a statute should be construed according to their common and approved usage). Because this phrase is susceptible to more than one reasonable interpretation, we conclude that it is ambiguous. See Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). Consequently, we look beyond the words of section 257.55 to ascertain the legislature’s probable intent. See Minn.Stat. § 645.16. In so doing, we consider the purpose of the Parentage Act and the consequences of a particular construction. Id.

The legislature’s use of the limiting phrase “an appropriate action” demonstrates the legislature’s intent to restrict the circumstances in which a presumption of paternity under the Parentage Act may be rebutted. See In re Nicholas H., 28 Cal.4th 56, 120 Cal.Rptr.2d 146, 46 P.3d 932, 941 (2002). To interpret “an appropriate action” to mean any properly instituted legal proceeding would render the phrase essentially meaningless and runs afoul of the rule of statutory construction that dictates that, if possible, no word or phrase of a statute should be deemed superfluous or insignificant. See Amaral, 598 N.W.2d at 384; see also Minn.Stat. § 645.16 (“Every law shall be construed, if possible, to give effect to all its provisions.”). Thus, we conclude that a narrower construction of “an appropriate action” is required.

That the legislature elsewhere in the Parentage Act explicitly created causes of action to declare the nonexistence of a presumed father-child relationship informs our efforts to discern the meaning of “an appropriate action.” See Minn.Stat. § 257.57. We have said that statutes relating to the same person or thing or having a common purpose should be construed together. Apple Valley Red-E-Mix, Inc. v. State by Dept. of Public Safety, 352 N.W.2d 402, 404 (Minn.1984) (explaining the doctrine of in pari materia); see also State v. Lucas, 589 N.W.2d 91, 94 (Minn. 1999) (“The doctrine of in pari materia is a tool of statutory interpretation that allows two statutes with common purposes and subject matter to be construed together to determine the meaning of ambiguous statutory language.”). Because section 257.57 and section 257.55, subdivision 2, deal with the same subject matter — challenging presumed father-child relationships — and appear in a single act having a single purpose, we conclude that they are in pari materia and should be construed together. See In re Improvement of Murray County Ditch No. 34, 615 N.W.2d 40, 46 (Minn.2000) (quoting Hagen v. County of Martin, 253 Minn. 367, 371, 91 N.W.2d 657, 660 (1958)). Reading these sections together strongly suggests that the legislature intended the phrase “an appropriate action” in section 257.55 to signify an action in which the party seeking to rebut a paternity presumption would not be barred by the standing or timeliness requirements in section 257.57 from bringing an action to declare the nonexistence of the presumed father-child relationship.

Other courts analyzing the meaning of “an appropriate action” in the context of the Uniform Parentage Act have similarly concluded that the phrase signifies an action instituted pursuant to the Act. See P.G. v. G.H., 857 So.2d 823, 828 (Ala.Civ. App.2002); J.A. v. C.J.H., 923 P.2d 758, 761-62 (Wyo.1996); see also Nicholas H., 120 Cal.Rptr.2d 146, 46 P.3d at 941. While we are not bound by these courts’ interpretations, we endeavor to construe uniform laws to effectuate their purpose of making the laws of the states in which they are enacted consistent with each other. Minn.Stat. § 654.22.

Moreover, as a matter of public policy, construing “an appropriate action” to encompass suits not satisfying the standing and timeliness requirements of section 257.57 would frustrate one of the Parentage Act’s primary purposes — the establishment of parent-child relationships — and would be contrary to legislatively established public policy favoring presumptions of legitimacy and the preservation of family integrity. See Minn.Stat. §§ 257.55, 257.57; Schaefer v. Weber, 567 N.W.2d 29, 30-31 (Minn.1997); Murphy v. Myers, 560 N.W.2d 752, 756 (Minn.App.1997); Pierce v. Pierce, 374 N.W.2d 450, 452 (Minn.App. 1985). A broad interpretation of “an appropriate action” would permit parties to circumvent the standing and timeliness requirements of section 257.57 and would eviscerate the carefully crafted limitations the legislature has placed on challenges to a presumed father-child relationship. We do not believe that the legislature, which has unmistakably expressed its desire to foster and protect a child’s legitimacy, meant in section 257.55 to permit an individual to challenge a sibling’s parentage more than 50 years after her birth. Such belated challenges would be destructive of family harmony and stability and would undermine familial relationships long presumed to exist.

Accordingly, we conclude that the phrase “an appropriate action” as used in the first sentence of section 257.55, subdivision 2, is limited to an action in which the party seeking to rebut a paternity presumption would not be barred from bringing an action to declare the nonexistence of the presumed father-child relationship under Minn.Stat. § 257.57. That is, a Parentage Act paternity presumption may be rebutted only by one who meets the standing and timeliness requirements for an action to declare the nonexistence of the presumed father-child relationship under section 257.57. Because Nelson does not satisfy the standing and timeliness requirements of section 257.57, subdivision 1(b), this is not “an appropriate action” ■within the meaning of section 257.55, subdivision 2, and Nelson cannot attempt to rebut the presumption of Jotham’s paternity of Barnett.

III.

To avoid the statute of limitations of section 257.57, Nelson contends that her attempt to rebut the presumption of Jot-ham’s paternity of Barnett is a defensive denial of paternity not subject to a statute of limitations. Nelson cites earlier decisions of our court in which we stated that a defensive denial of paternity, even when asserted to rebut a paternity presumption, is not subject to time limitations. State of Georgia ex rel. Brooks v. Braswell, 474 N.W.2d 346, 349-50 (Minn.1991); see also Reynolds v. Reynolds, 458 N.W.2d 103, 105 (Minn.1990). In opposition, Barnett urges us to adopt a narrow definition of a defensive denial of paternity, a definition that Nelson does not meet. Barnett argues that “[a] denial of paternity is defensive only when asserted by the presumed father of the child in an action seeking to enforce a legal duty that exists by reason of the parentage at issue.”

Generally, a “statute of limitations may be used as a shield, not as a sword, and * * * the statute of limitations does not bar a party from raising a pure defense.” Reynolds, 458 N.W.2d at 105. Consequently, we have distinguished between a defensive denial of paternity and an action to declare the nonexistence of a parent-child relationship pursuant to section 257.57. See Braswell, 474 N.W.2d at 349-50; Reynolds, 458 N.W.2d at 105; State ex rel. Ward v. Carlson, 409 N.W.2d 490, 493 (Minn.1987). We have said that “the right to deny paternity defensively, whether asserted to rebut a presumption of paternity or simply to defend against an allegation of paternity where there is no presumed father, is not subject to time limitations and may be exercised by the defendant in any action in which it is alleged that he is the child’s father.” Braswell, 474 N.W.2d at 350. Because Nelson seeks to offer evidence to rebut a presumption of paternity, the court of appeals characterized Nelson’s position as a defensive denial of paternity. See Jotham, 704 N.W.2d at 214.

We disagree with the court of appeals and conclude that Nelson is not defensively denying paternity in the sense expressed in Braswell, where we spoke only of a denial of paternity “by the defendant in any action in which it is alleged that he is the child’s father.” Braswell, 474 N.W.2d at 350. The cases in which we have discussed defensive denial of paternity all involved a putative or presumed father defending himself against a charge of paternity, either in a divorce proceeding or in a child support action. See id. at 348, 350; Reynolds, 458 N.W.2d at 104-05; Carlson, 409 N.W.2d at 490, 493. Consequently, we conclude that a denial of paternity is defensive only when asserted by a presumed or putative father in a suit seeking to enforce against him a legal obligation that exists by reason of the contested father-child relationship.

Here, while Nelson is attempting to rebut a presumption of paternity, the presumption is not being used to bind her to a legal obligation arising out of the presumed parent-child relationship. Further, our case law indicates that only a presumed or putative father may be considered to be defensively denying paternity. See Braswell, 474 N.W.2d at 350. In addition, Nelson is not asserting a “pure defense,” the term used in Reynolds, as she is not defending herself against a suit brought by Barnett. See Reynolds, 458 N.W.2d at 105.

Because Nelson is not defensively denying paternity, she may only rebut the presumption of Jotham’s paternity of Barnett if she can bring action under section 257.57, subdivision 1(b), of the Parentage Act — that is, “an appropriate action.” But Nelson plainly does not satisfy either the standing or the timeliness requirements of section 257.57, subdivision 1(b), and thus cannot bring an action to contest Jotham’s presumed paternity of Barnett. Accordingly, we conclude that Nelson is barred from attempting to rebut the presumption of Jotham’s paternity of Barnett in this probate proceeding. Therefore, we hold that the court of appeals erred in reversing the district court’s conclusion that Nelson cannot challenge the presumption of paternity, and we reverse the court of appeals and remand to the district court for further proceedings consistent with this opinion.

Reversed and remanded.

GILDEA, Justice

(dissenting).

I respectfully dissent. I agree with the majority that Barnett benefits from the presumption of paternity found in Minn. Stat. § 257.55, subd. 1(a) (2004). I depart from the majority in its conclusion that the presumption is conclusive. In my view, this construction is inconsistent with the Parentage Act. I would affirm the court of appeals.

The statute of limitations and standing requirements of Minn.Stat. § 257.57, subdivision 1(b) (2004), by the statute’s plain language, apply only to actions brought “[f]or the purpose of declaring the nonexistence of [a presumed] father and child relationship.” As the court of appeals correctly observed, the case at bar is not such an action. In re Estate of Jotham, 704 N.W.2d 210, 213-14 (Minn.App.2005). Rather, this is a probate proceeding instituted for the purpose of determining the appropriate devolution of Jotham’s property upon his death. Because Nelson has not brought an action under section 257.57, subdivision 1(b), the requirements in that subdivision do not apply to her attempt to rebut the presumption of Jotham’s paternity of Barnett.

Notwithstanding the plain language, the majority imports the statute of limitations and standing requirements of section 257.57 into this case through its construction of section 257.55. In section 257.55, subdivision 2, the Parentage Act provides that a paternity presumption may be rebutted “in an appropriate action only by clear and convincing evidence.” Minn. Stat. § 257.55, subd. 2 (2004). To render the requirements of section 257.57, subdivision 1(b), applicable to Nelson, the majority construes “an appropriate action” to mean a suit in which the party seeking to rebut a paternity presumption satisfies the standing requirements and statute of limitations óf Minn.Stat. § 257.57 (2004). I disagree.

We have said that rules of statutory construction “forbid adding words or meaning to a statute that were intentionally or inadvertently left out.” Genin v. 1996 Mercury Marquis, 622 N.W.2d 114, 117 (Minn.2001); see River Valley Truck Ctr., Inc. v. Interstate Cos., Inc., 704 N.W.2d 154, 167 (Minn.2005) (“[T]he rules of statutory construction forbid us from adding words to a statute.”); Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn.1995) (noting that courts should not read into statutes restrictions that the legislature did not include). Yet, the majority reads into section 257.55, subdivision 2, the standing and timeliness requirements of section 257.57, restrictions which the plain language of the Parentage Act make inapplicable here.

In my view, if the legislature meant “an appropriate action” to have the narrow meaning the majority ascribes to it, the legislature could have so provided. In fact, in other sections of the Parentage Act, the legislature displayed its ability to specifically identify a .Parentage Act suit by referring to a Parentage Act suit as “[a]n action under sections 257.51 to 257.74,” MinmStat. § 257.65 (2004), “an action to determine the existence of the father and child relationship under sections 257.51 to 257.74,” Minn.Stat. § 257.651 (2004), and “an action brought under sections 257.51 to 257.74,” Minn.Stat. § 257.59, subd. 1 (2004). The legislature’s use of a different phrase in section 257.55, subdivision 2, strongly indicates that the legislature meant to denote something other than a Parentage Act suit. See 2A Norman J. Singer, Statutes and Statutory Construction § 46.06 (6th ed. 2000) (“[WJhen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.”); cf. Vlahos v. R & I Constr. of Bloomington, Inc., 676 N.W.2d 672, 677 n. 4 (Minn.2004) (“The legislature would not have employed different terms in different subdivisions of the statute if it had intended those subdivisions to have the same effect.”).

I agree with the court of appeals that a probate proceeding such as the instant case is “an appropriate action” in which a presumption of paternity may be rebutted. Jotham, 704 N.W.2d at 214-15. Minnesota Statutes § 645.45 (2004) provides that the word “action,” when used in a statute, means “any proceeding in any court of this state.” “Appropriate” is defined as “suitable” or “compatible.” American Heritage Dictionary of the English Language 91 (3rd ed.1992); MerriamAWebster’s Collegiate Dictionary 57 (10th ed.1993); see also Minn.Stat. § 645.08(1) (2004) (providing that words in a statute are construed according to their common usage). Permitting rebuttal of a paternity presumption for intestacy purposes does not interfere with the purpose of the Parentage Act, which we have recognized is to enforce child support obligations. See In re Estate of Palmer, 658 N.W.2d 197, 200 (Minn.2003). Thus, I would hold that a probate proceeding is “an appropriate action” within the meaning of section 257.55, subdivision 2.

An examination of other provisions in the Parentage Act confirms that this result accords with legislative intent. For example, in section 257.66, subdivision 1, the legislature provided that a “judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes.” Consistent with this provision, a paternity presumption would be conclusive in a probate case if the presumption had been the subject of a court order or judgment. See id. The presumption at issue here was not the subject of a “judgment or order of the court,” and therefore, consistent with section 257.66, subdivision 1. it should not be deemed conclusive.

The majority’s construction, however, converts what the legislature intended to be a rebuttable presumption into a presumption that essentially becomes conclusive after three years. Under the majority’s reasoning, a party need not obtain a Parentage Act judgment to conclusively establish a parent-child relationship, as section 257.66 contemplates. Instead, a party may simply wait for the three-year limitations period in section 257.57, subdivision 1(b), to expire and the paternity presumption to become irrefutable. In my view, such a construction runs afoul of the objective that statutes should “be construed as a whole so as to harmonize and give effect to all its parts.” Smith v. Barry, 219 Minn. 182, 187, 17 N.W.2d 324, 327 (1944).

Because I conclude that this probate proceeding is “an appropriate action” in which a presumption of paternity may be rebutted, I would affirm the court of appeals.

ANDERSON, G. BARRY, Justice

(dissenting).

I join in the dissent of Justice Gildea.

      . The district court first considered whether the Parentage Act, Minn.Stat. §§ 257.51-257.74 (2004), applies to individuals born before it was enacted in 1980 and decided that it does apply. The court of appeals agreed with the district court, and the parties did not seek further review of this question. Jotham, 704 N.W.2d at 213, 215.

      . The three-year limitations period is subject to a narrow exception, which is not at issue in this case. Minn.Stat. § 257.57, subd. 1(b).

      . In addition, Jenia's paternity had previously been adjudicated in her presumed parents' divorce proceeding. Trust 1961, 765 A.2d at 748-49. Though the instant case does not involve a prior adjudication of paternity, the New Jersey court's analysis in Trust 1961 is nonetheless instructive, as the court distinguished that case from a case similar to Palmer. See Trust 1961, 765 A.2d at 754-55.

      . In addition, in the 2002 version of the Uniform Parentage Act, the phrase "in an appropriate action" has been deleted, and the 2002 version explicitly provides that a presumption of paternity under the Act may be rebutted only by an adjudication also obtained under the Parentage Act. National Conference of Commissioners on Uniform State Laws, Uniform Parentage Act § 204 (2002), available at http://www.law.upenn.edu/bll/ulc/upa/final 2002.pdf. We read this alteration as a clarification of the meaning of "an appropriate action," indicating that the phrase was meant to denote an action in compliance with the standing and timeliness requirements of the Parentage Act.

      . Contrary to the dissent’s assertion, our opinion today does not render a cause of action under Minn.Stat. § 257.57, subd. 1(a), "superfluous upon expiration of the three-year statute of limitations.” Given our conclusion in State of Georgia ex rel. Brooks v. Braswell, 474 N.W.2d 346, 349-50 (Minn. 1991), that a presumed father's defensive denial of paternity is not subject to any statute of limitations, a paternity presumption is not necessarily conclusive after the three-year statute of limitations in section 257.57, subdivision 1(b), has run.
      As to the balance of the dissent's argument, while we acknowledge that there is often more than one viable approach to interpreting a statute, we believe that the approach we have taken is the better way to resolve this case because it adheres more closely to the legislature’s intent.

      . Braswell, Reynolds, and Carlson essentially carve out a narrow exception to our interpretation of "an appropriate action” as an action in compliance with, the standing and timeliness requirements of section 257.57. That is, "an appropriate action" means an action in which the party seeking to rebut a paternity presumption would not be barred from bringing an action to declare the nonexistence of the presumed father-child relationship under section 257.57 or a suit instituted against a presumed father seeking to enforce against him a legal duty arising out of the presumed father-child relationship.

      . The majority's citation of the 2002 revised version of the Uniform Parentage Act underscores this point. The revision referenced by the majority reveals both that the legislature is perfectly capable of specifying that a paternity presumption may be rebutted only by an action comporting with section 257.57 and that the legislature, not this court, is the appropriate body to do so.

      . Even if, as the majority concludes, this is not "an appropriate action” within the meaning of section 257.55, our analysis cannot end there. If this is not "an appropriate action,” section 257.55, subdivision 2, does not set the evidentiary standard for rebuttal of the paternity presumption, and we must instead look to the common law, which developed its own demanding standard for overcoming a presumption of paternity based on marriage. See Golden v. Golden, 282 N.W.2d 887, 889 (Minn. 1979); State v. E.A.H., 246 Minn. 299, 306, 75 N.W.2d 195, 200 (1956); Haugen v. Swanson, 219 Minn. 123, 127, 16 N.W.2d 900, 902 (1944).

      . As the Minnesota Court of Appeals has said, "[t]he presumptions contained in the Parentage Act are not conclusive of paternity, but rather create a functional set of rules that point to a likely father.” State v. Thomas, 584 N.W.2d 421, 424 (Minn.App.1998) (quotation omitted), rev. denied (Minn. Nov. 17, 1998).

      .In addition, the majority’s construction renders the cause of action authorized by section 257.57, subdivision 1(a), superfluous upon expiration of the three-year statute of limitations in subdivision 1(b). See Minn.Stat. § 257.57, subd. 1(a) (noting that an action to establish paternity may be brought "[a]t any time”). Because a paternity presumption would be conclusive after the three-year period expired, an action under section 257.57, subdivision 1(a), to declare the existence of a presumed father-child relationship would be unnecessary. Thus, the majority's interpretation of the phrase "an appropriate action” violates the very canon of construction on which the majority purports to rely, that a statute must be construed to give effect to all of its provisions. Minn.Stat. § 645.16 (2004).


source: Caselaw Access Project

author: PAGE, Justice. MEYER, Justice ANDERSON, PAUL H., Justice HANSON, J.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Clay Carl CLARK, Appellant.
    No. A04-1101.
    Supreme Court of Minnesota.
    Oct. 12, 2006.

      John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

PAGE, Justice.

Following a jury trial in Hennepin County District Court, appellant Clay Carl Clark was convicted of being a prohibited person in possession of a firearm, fleeing a police officer in a motor vehicle, and theft of a motor vehicle. On appeal to the court of appeals, Clark argued that the trial court erred in denying his requests for substitute counsel, for advisory counsel after he elected to represent himself, and to relinquish self-representation. The court of appeals affirmed. State v. Clark, 698 N.W.2d 173 (Minn.App.2005). Concluding that any error in the trial court’s failure to exercise its discretion under our rules of criminal procedure for designation of advisory counsel does not warrant a new trial, we affirm.

Shortly after 1:00 a.m. on November 22, 2003, Minneapolis Police Officer Michael Geere was seated in his parked squad car on 21st Avenue North, facing east, when he saw Clark driving westbound in a red 1993 Ford Tempo. Earlier that evening, a woman had reported that her 1993 red Ford Tempo had been stolen by a man wearing a black leather, waist-length jacket. Officer Geere looked at the license plate of the red Tempo and realized the car was the one that had been reported stolen. As Clark “slowly rolled past” Geere’s squad car, he and the officer made eye contact. The officer turned his squad car around and followed Clark, who turned north on Lyndale. The officer notified dispatch and continued to follow Clark. When Clark began to accelerate, the officer activated his squad car’s lights and siren. Clark continued on at speeds up to 40 mph.

Officer Geere pursued Clark for several blocks and through an alley, all the while reporting his location over the radio so other officers would know where he was going. Clark eventually took a corner too fast, lost control, and crashed into a boulevard tree. Clark got out of the Tempo and fell down in front of Officer Geere’s car. As Officer Geere got out of his ear, Clark got up and started to run, but a 12-foot-high retaining wall blocked him from going west. As Officer Geere chased Clark up a residential driveway and through the backyard to a chain-link fence, he saw Clark reaching into his jacket and assumed Clark was either going for a gun or trying to dump drugs.

Officer Geere tackled Clark, and the two rolled over the fence. The officer instructed Clark to put his hands behind his back, but Clark would not comply. After a brief struggle, during which Clark’s jacket came off, Officer Richard Hand arrived and helped take Clark into custody. Officer Geere picked up Clark’s black waist-length jacket and recovered a loaded 9 millimeter semiautomatic handgun from the inside pocket. As part of routine police practice, Officer Geere removed the magazine and the round that was in the chamber.

Clark was charged with being a prohibited person in possession of a firearm in violation of Minn.Stat. § 624.713, subd. 1(b) (2004); fleeing a police officer in a motor vehicle in violation of Minn.Stat. § 609.487, subd. 3 (2004); receiving stolen property in violation of Minn.Stat. § 609.53, subd. 1 (2004); and theft of a motor vehicle in violation of Minn.Stat. § 609.52, subd. 2(17) (2004). At Clark’s first appearance on November 26, 2003, upon finding eligibility, the trial court appointed a public defender to represent Clark. At an omnibus hearing on December 15, 2003, Clark pleaded not guilty and demanded a speedy trial. Clark also indicated to the court that he intended to hire private counsel. On January 5, 2004, Clark appeared with his public defender and informed the court that he was unable to retain private counsel.

On February 17, 2004, Clark appeared for trial with his public defender. Following a Rasmussen hearing, jury selection commenced. On February 18, Clark informed the trial court that he wanted another attorney because his assigned public defender was “not representing [his] interests in this case.” The request was denied. Later that day, after completion of jury selection, Clark informed the court that he wanted to represent himself. The court explained to Clark that, in the court’s experience, it was not a good idea for a defendant to represent himself, that he would not be granted a continuance, that if granted the right to represent himself he would not be permitted to change his mind later, that he would be held to the same standards as an attorney, and that he would not have the assistance of standby counsel. Following a formal and comprehensive waiver-of-counsel inquiry, the court granted Clark’s request to proceed pro se and discharged his public defender.

Trial proceeded with the testimony of the car owner, who said that at around 7:00 p.m. on November 21, 2008, she was dropping her child off at her day-care provider’s home when she noticed Clark sitting at a nearby bus stop. As she opened the day-care provider’s screen door, she saw Clark get up and walk to the middle of the street as if looking for a bus and, as she closed the screen door after handing her child to the day-care provider, she heard the door to her car slam and saw Clark drive off in it.

Officer Geere testified regarding the circumstances surrounding his pursuit and arrest of Clark six hours later. During Officer Geere’s cross-examination, after encountering some frustration with attempts to impeach the officer’s testimony with prior statements, Clark sought to relinquish self-representation. In seeking to relinquish self-representation, Clark asserted that in choosing to represent himself he thought that he would have his discharged attorney to help him during trial. He also stated that he thought it was his “constitutional right to, you know, have an attorney present.” The court then reminded Clark that he had been told before he relinquished his appointed counsel that he would not have the assistance of standby counsel. In the end, standby counsel was not appointed, and Clark’s request to rescind self-representation was denied. After watching the means by which the state rehabilitated the witness with prior statements on redirect, Clark used the same means for his impeachment on re-cross. Officer Hand testified as to his role in the pursuit and arrest. At the end of the state’s case-in-chief, by pretrial agreement, the court read the parties’ stipulation that Clark was legally prohibited from possessing a handgun so as to prevent unduly prejudicial information from getting to the jury.

Clark testified on his own behalf and admitted the offense of fleeing a police officer in a motor vehicle. He explained that he fled because he had drug paraphernalia in his possession at the time. He said that when the officer turned on the squad car’s lights, he “panicked” and ran into a tree; and when “[he] got out, * * * and [the officer] almost ran [ ] over [him], [He] got up and just ran, you know. Wasn’t no excuse for that.” But he denied stealing the red 1993 Ford Tempo, denied having knowledge that it was stolen, and denied possession of the handgun.

The jury found Clark guilty as charged. Judgment of conviction was entered on the firearm, fleeing, and theft offenses. Clark was sentenced to an executed aggregate concurrent term of 60 months in prison. The court of appeals affirmed, and we granted further review. Clark claims reversible error in the denial of substitute counsel, advisory counsel, and relinquishment of self-representation.

I.

We first address Clark’s substitute counsel claim. The decision to grant or deny a request for substitute counsel lies within the trial court’s discretion. State v. Worthy, 583 N.W.2d 270, 278 (Minn.1998). In Worthy, we held that a defendant’s constitutional right to counsel “includes a fair opportunity to secure an attorney of choice, but an indigent defendant does not have the unbridled right to be represented by the attorney of his choice.” Id. We further held that “[a] court will grant an indigent’s request for different counsel ‘only if exceptional circumstances exist and the demand is timely and reasonably made.’ ” Id. (quoting State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977)).

During jury selection on the second day of what was anticipated to be a two- or three-day trial, Clark sought substitute counsel, explaining:

I got evidence that can help prove my innocence, and everytime I tell [the public defender] something about it, you know, she tell[s] me that, you know, it’s not admissible or that’s not happening, and I’ve been here four months, she has never came to see me or gave me any paperwork telling me that — you know, this what this statement is. Then she told me that it’s like an open[-]and[-]shut case, that I need to plead to 60 months or, you know, I can’t defend this, you know, so I don’t — you know, everytime we — you know, she talked to me, we sitting in court, you know, I haven’t had a chance to talk to her about no witnesses, nothing. I speak — you know, something to prove my innocence and I feel like she just don’t have the same interests, you know. -

In denying Clark’s request, the trial court noted that Clark had requested a speedy trial and that the case had already been continued to give him an opportunity to retain private counsel. The court told Clark, “we moved [another] case to accommodate” his speedy-trial demand “and there is a strong reluctance to continue matters” after the trial begins. The court informed Clark, “[u]nder the [local public defender’s internal] rules, you would not be re-assigned a different lawyer from the Public Defender’s office.”

Clark contends that he raised substantial complaints about the effectiveness of the representation provided by appointed counsel, amounting to “exceptional circumstances” such that the trial court should have conducted a more “searching inquiry” before ruling on the request. That may be so, particularly when a defendant voices serious allegations of inadequate representation before trial has commenced. But here it is evident from the record that the trial court was satisfied that appointed counsel had conducted a proper investigation, was thoroughly prepared for trial, and had, in fact, maintained contact with Clark. The record reflects that before trial, counsel for both sides engaged in discussions "with the court on a number of procedural and substantive matters. Appointed counsel challenged the legality of the stop and search incident to Clark’s arrest at the Rasmussen hearing. Counsel also obtained rulings favorable to Clark, including the exclusion of an attempted-murder conviction that had been offered for impeachment use. During what the record reflects to have been a thorough waiver-of-counsel inquiry, the trial court ascertained that Clark’s counsel had gone over evidence with Clark. ' The court also told Clark that his counsel was skilled, experienced, and prepared for trial.

Moreover, Clark’s request for substitute counsel, like the request made in Worthy, was untimely. In Worthy, the defendants fired their public defenders on the first morning of trial, telling the trial court that they “felt they were not being properly represented.” Worthy, 583 N.W.2d at 279. Their specific complaint was that “[their] attorneys told them that they did not have a strong case.” Id. at 274. The defendants asked the court to grant them a continuance so that they could obtain substitute counsel. Id. The court denied the defendants’ request, stating the case was set for trial and would start that morning. Id. The court further explained to the defendants that if they rejected their public defenders’ representation they could proceed pro se with the public defenders as advisory counsel. Id. On appeal to' our court, the defendants argued, among other issues, that the trial court erred by refusing to grant their request for substitute counsel. Id. at 278. We rejected that claim, holding that the. defendants’ request for substitute counsel, which was made on the morning of trial and after the jury selection had begun, was not timely. Id. at 274, 279.

The facts here are strikingly similar to those in Worthy. As in Worthy, Clark claims that his public defender was not representing his interests. Also, as in Worthy, the request for substitute counsel was made after jury selection had begun. Further, as the trial court noted, Clark had requested a speedy trial and his case had been moved to accommodate that request. On these facts, we hold that the denial of Clark’s request for substitute counsel was not an abuse of discretion.

II.

We next consider Clark’s argument that the denial of his request for advisory counsel was reversible error because (1) the Minnesota Constitution guarantees advisory counsel and (2) the court failed to exercise its discretion to appoint advisory counsel pursuant to Rule 5.02, subdivision 2, of the Minnesota Rules of Criminal Procedure, which provides that a trial court “may appoint ‘advisory counsel’ to assist the accused who voluntarily and intelligently waives the right to counsel.”

We first address Clark’s claim that he is entitled to advisory counsel under the Minnesota Constitution. According to Clark, although the Sixth Amendment of the United States Constitution, which states that a defendant has the right to “have the assistance of counsel for his defense” (emphasis added), does not require the appointment of advisory counsel for a pro se defendant, the Minnesota Constitution guarantees the appointment of advisory counsel for a pro se defendant. We review issues of constitutional interpretation de novo. State v. Brooks, 604 N.W.2d 345, 348 (Minn.2000). Minnesota Constitution, Article 1, Section 6, provides, in pertinent part:

In all criminal prosecutions * * * [t]he accused shall enjoy the right to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel in his defense.

(Emphasis added.)

We have stated that “[i]t is our responsibility as Minnesota’s highest court to independently safeguard for the people of Minnesota the protections embodied in our constitution.” State v. Askerooth, 681 N.W.2d 353, 362 (Minn.2004). However, “in independently safeguarding these protections Sve will [not] cavalierly construe our constitution more expansively than the United States Supreme Court has construed the federal constitution.’ ” Id. (quoting State v. Fuller, 374 N.W.2d 722, 726-27 (Minn.1985)). This court will not lightly reject a Supreme Court interpretation of identical or substantially similar language. State v. Harris, 590 N.W.2d 90, 97-98 (Minn.1999). Here, the language of the Minnesota Constitution is substantially similar to that of the United States Constitution, and we see no reason to construe the Minnesota Constitution more broadly than the United States Constitution. We therefore decline to read the Minnesota Constitution as guaranteeing advisory counsel for pro se defendants.

We now turn to Clark’s claim of reversible error in the denial of advisory counsel pursuant to Minn. R.Crim. P. 5.02, subd. 2. According to Clark, the trial court, mistakenly believing that it lacked authority to appoint advisory counsel, denied his request for advisory counsel without exercising any discretion and, he asserts, committed reversible error in the failure to exercise this discretion. The state argues that no error occurred because Minn.Stat. § 611.17, subd. 1(b)(4) (2004), which states that “[t]he court must not appoint the district public defender as advisory counsel,” precluded the appointment of advisory counsel in this case.

As a preliminary matter, we note that, to the extent that Minn.Stat. § 611.17, subd. 1(b)(4), purports to limit judicial discretion to appoint advisory counsel, it is in conflict with Minn. R.Crim. P. 5.02, subd. 2. In State v. Johnson, 514 N.W.2d 551, 554 (Minn.1994), we stated:

Determination of procedural matters is a judicial function. The legislature, for its part, determines matters of substantive law and has carefully protected that prerogative by providing that the Rules of Criminal Procedure “shall not abridge, enlarge, or modify the substantive rights of any person.” As a matter of substantive law, the legislature has “[t]he power to define the conduct which constitutes a criminal offense and to fix the punishment for such conduct * * *.” Both branches agree that “[i]n matters of procedure rather than substance, the Rules of Criminal Procedure take precedence over statutes to the extent that there is any inconsistency.”
* * * This court has distinguished substantive and procedural law as follows:
[B]y substantive rights the legislature was referring to statutes which declare what acts are crimes and prescribe punishment for their violation, rather than statutes which regulate the steps by which the guilt or innocence of one who is accused of a criminal statute is determined.

(Citations omitted.) Clearly, the appointment of counsel under Minn. R.Crim. P. 5.02, subd. 2, is a procedural matter for judicial determination. Accordingly, to the extent that Minn.Stat. § 611.17, subd. 1(b)(4), conflicts with Rule 5.02, the rule takes precedence.

The next question is whether the failure to exercise discretion regarding the appointment of advisory counsel for Clark was reversible error. In reliance on People v. Bigelow, 37 Cal.3d 731, 209 Cal.Rptr. 328, 691 P.2d 994, 1001 (1985), Clark argues that the trial court’s failure to consider appointing advisory counsel warrants per se reversal. In Bigelow, the California Supreme Court held that, similar to the denial of the right to appointed counsel and to self-representation, a trial court’s failure to exercise discretion with respect to the appointment of advisory counsel, when “a refusal to so appoint would be an abuse of discretion,” also warrants “the same rule of per se reversal.” Id.

Bigelow is distinguishable. The court in Bigelow specifically stated that “we have no doubt that the trial court, had it realized that it could appoint advisory counsel, would have exercised its discretion to do so” and “[h]ad the [trial] court refused, we would find that action an abuse of discretion.” Id. That is not the case here. We cannot say with any certainty that, had the trial court exercised its discretion, it would have appointed advisory counsel for Clark. Nor can we say on this record that, had the trial court exercised its discretion and declined to appoint advisory counsel, the trial court would have abused its discretion. Further, Bigelow was a capital case, and as the California Supreme Court recognized, “[s]uch cases raise complex additional legal and factual issues beyond those raised in an ordinary felony trial,” id., 209 Cal.Rptr. 328, 691 P.2d at 1000, and that it was “unquestionably true” that the defendant, who only had a ninth grade education, “was not competent to defend a capital case.” Id., 209 Cal.Rptr. 328, 691 P.2d at 1001. This non-capital case does not present any such complex legal and factual issues.

Relying on our decisions in State v. Costello, 646 N.W.2d 204 (Minn.2002), and State v. Logan, 535 N.W.2d 320 (Minn. 1995), Clark asserts that “the rationale of Bigelow applies equally to non-capital cases.” Costello and Logan, however, are also clearly distinguishable. Those cases presented issues at the core of a defendant’s right to a fair trial. In Costello, we held that a trial court’s error in allowing jurors to question witnesses was not subject to harmless error analysis. 646 N.W.2d at 215. We explained that, “because juror questions may imperceptibly affect the production of evidence, the presentation of the state’s case, and the jury’s deliberations, it is impossible for an appellate court to infer from a record that the verdict rendered is ‘surely unattributable’ to the error.” Id. In Logan, we reversed the defendant’s conviction and remanded for a new trial after we concluded that actual prejudice did result from the seating of a juror who during voir dire had expressed a bias in favor of the police. 535 N.W.2d at 324. We further concluded that the error in allowing the biased juror to sit “undeirainefs] the basic ‘structural integrity of the criminal tribunal itself, and is not amenable to harmless-error review.’ ” Id. (quoting Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)). Unlike the errors in Costello and Logan, the trial court’s failure to exercise discretion here did not affect the structural integrity of the tribunal. Clark did not have a constitutional right to advisory counsel and, as noted, we cannot say that had the trial court exercised its discretion and declined to appoint advisory counsel it would have been an abuse of discretion. Minnesota Rule of Criminal Procedure 5.02, subd. 2, simply provides that the trial court “may,” at its direction, appoint advisory counsel.

Having concluded that any error in failing to exercise discretion regarding the appointment of standby counsel is not subject to per se reversal, we now turn to whether the trial court’s failure to exercise discretion in this case warrants a new trial. The role of advisory counsel is “fundamentally different from the role of counsel generally.” State v. Richards, 552 N.W.2d 197, 207 (Minn.1996). “Standby counsel are present ‘to steer a defendant through the basic procedures of the trial’ and ‘to relieve the judge of the need to explain and enforce basic rules of [the] courtroom.’ ” Id. at 206 (quoting McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)). But the standard by which standby counsel’s representation is to be measured “remains an open question.” Id. at 207.

Clark claims prejudice in the denial of advisory counsel because there were “numerous instances where he could have benefited from counsel’s presence.” Specifically, Clark contends that advisory counsel could have assisted him in “subpoenaing his defense witnesses,” in “advising him on how to properly impeach the state’s witnesses with their prior inconsistent statements,” in “helping him obtain an admissible weather report,” in “consulting with him about the pros and cons of testifying on his own behalf,” and in “helping him to fashion a response to the jury questions.” Based on our review of the record, we conclude that Clark has not made a showing that lack of advisory counsel resulted in prejudice to him.

The only issues in serious dispute were whether Clark possessed the firearm admitted into evidence and whether he either stole the 1993 Ford Tempo or had knowledge that it had been stolen. Clark identified two women whose names had been supplied to him by a jail inmate who said the women were at a bar two blocks away from where Clark was arrested and “saw it.” Clark suggested that the witnesses would testify that Officer Geere’s squad car struck him. But Clark’s own testimony belies this claim and, in any event, the proffered testimony would have had no bearing on the issues in dispute. Neither would a weather report have been germane to these issues. As for impeachment of the state’s witnesses with prior inconsistent statements, with some help from the prosecutor and the trial court, Clark accomplished this. As for advice in deciding whether or not to testify, the record fairly well establishes that Clark firmly believed his testimony was essential. With respect to the jury’s questions during deliberations, the record reflects that the court’s answers were proper.

The primary justifications for advisory counsel are: ensuring the fairness of the criminal justice process, promoting judicial efficiency, and preserving the appearance of judicial impartiality. Minn. R.Crim. P. 5.02, subd. 2, cmt.; Marie Higgins Williams, The Pro Se Defendant, Standby Counsel, and the Judge: A Proposal for Better-Defined Roles, 71 U. Colo. L.Rev. 789, 804-06 (2000). We have long encouraged use of advisory counsel. See State v. Jones, 266 N.W.2d 706, 711 n. 1 (Minn.1978). But a defendant is entitled to a fair trial, not an error-free trial. State v. Zenanko, 552 N.W.2d 541, 543 (Minn.1996). An accused “ ‘is entitled to a fair trial, and it is the duty of the court, and of prosecuting counsel as well, to see that he gets one.’ ” State v. Litzau, 650 N.W.2d 177, 185 n. 6 (Minn.2002) (quoting State v. Haney, 222 Minn. 124, 125, 28 N.W.2d 369, 370 (1946)). Here, the record reflects that the court and prosecuting attorney treated Clark with complete respect, provided him with assistance, and fulfilled their duty to see that he had a fair trial. The denial of advisory counsel was not reversible error.

III.

Finally, we consider Clark’s argument that the trial court erred when it denied his request to relinquish self-representation. We have stated that, once a defendant waives his right to counsel, the defendant does not have an absolute right to relinquish the right of self-representation. Richards, 552 N.W.2d at 206. Rather, a defendant will only be permitted to relinquish self-representation if the request is timely, reasonable, and reflects extraordinary circumstances. Id. The decision to grant a defendant’s request to relinquish self-representation is within the trial court’s discretion and, in exercising its discretion, a trial court balances the request “against the progress of the trial to date, the readiness of standby counsel to proceed, and the possible disruption of the proceedings.” Id. at 206-07. Here, the request was made on the third day of a three-day trial. As the trial court correctly noted, jeopardy had attached, the state was nearing the conclusion of its ease-in-chief, and reappointment of counsel would have necessitated a continuance. Under these circumstances, the denial of the request to relinquish self-representation was not an abuse of discretion.

Affirmed.

MEYER, Justice

(concurring).

I write separately because I do not agree with the majority that Clark did not raise substantial complaints about the effectiveness of the representation provided by appointed counsel. I agree with the dissent of Justice Hanson that “Clark’s claims that counsel had not visited him in jail, had not discussed the case with him, would not seek out suggested witnesses, and would not have the gun checked for fingerprints, raised serious questions that required inquiry.” These claims amounted to “exceptional circumstances” such that the trial court should have conducted a more “searching inquiry” before ruling on the request. The court apparently did not make that inquiry because it was under the mistaken belief that the rules precluded appointment of a different public defender. I believe that the lack of inquiry precludes a finding that Clark’s waiver of his Sixth Amendment right to counsel was voluntarily made.

Nevertheless, because I conclude that Clark’s request for substitute counsel was untimely under the Worthy decision, the denial of his request was not an abuse of discretion. State v. Worthy, 583 N.W.2d 270, 278-79 (Minn.1998).

ANDERSON, PAUL H., Justice

(dissenting).

I respectfully dissent. I do so because I disagree with the majority’s conclusion that the district court did not commit reversible error when it failed to exercise its discretion regarding the appointment of advisory counsel. Minnesota Rule of Criminal Procedure 5.02, subd. 2, states that the “court may appoint ‘advisory counsel’ to assist the accused who voluntarily and intelligently waives the right to counsel.” Here, the district court mistakenly believed it could not appoint advisory counsel, and therefore appellant, Clay Carl Clark, did not have the benefit of the court properly exercising its discretion.

While I agree with the majority’s holding that there is no constitutional right to advisory counsel, the importance of such counsel should not be discounted. The majority fashions a very narrow role for advisory counsel, citing State v. Richards for the proposition that advisory counsel’s responsibilities are “ ‘to steer a defendant through the basic procedures of trial’ and ‘to relieve the judge of the need to explain and enforce basic rules of [the] courtroom.’ ” 552 N.W.2d 197, 206 (Minn.1996) (quoting McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)). But the context in which the issue of advisory counsel’s role arose in Richards was much different than in Clark’s case. In Richards, the pro se defendant had the benefit of advisory counsel, and the issue was whether the defendant could step aside to have his advisory counsel proceed in his place. Id. at 205. In such circumstances, we were construing the already-appointed advisory counsel’s role narrowly in order to emphasize that advisory counsel “ ‘should not be allowed to destroy the jury’s perception that the defendant is representing himself.’ ” Id. at 206 (quoting McKaskle, 465 U.S. at 184, 104 S.Ct. 944).

The role of advisory counsel need not be as narrow as the majority suggests. In Richards, we cited the United States Supreme Court’s discussion of advisory counsel in McKaskle. The issue considered in McKaskle was the role of advisory counsel when the district court appointed such counsel for a pro se defendant, who objected to the presence of any advisory counsel. 465 U.S. at 170-71, 104 S.Ct. 944. In McKaskle, the Supreme Court articulated the minimal role of advisory counsel- — to help the pro se defendant with the basic mechanics of courtroom procedures. Id. at 184, 104 S.Ct. 944. In contrast, Clark affirmatively requested that the district court provide him with the assistance of advisory counsel. If advisory counsel had been appointed, it may be that Clark would have utilized such counsel to a far greater extent than the minimal role the Court envisioned for a pro se defendant who did not want help in the first instance. Importantly, neither the Supreme Court nor our court has held that advisory counsel is limited to helping the pro se defendant with procedural issues.

With this more expansive view of advisory counsel in mind, I turn to the fact that the district court violated Minn. R.Crim. P. 5.02, subd. 2. This rule gives the court discretion in appointing advisory counsel upon the defendant’s request. At trial, the court mistakenly informed him that the “rules have now changed. There is no stand-by counsel.” Thus, the court committed error by not contemplating the exercise of its discretion to appoint advisory counsel. Yet, the majority concludes that “Clark has not made a showing that lack of advisory counsel resulted in prejudice to him.” I do not reach the same conclusion, as I believe it is too difficult, if not impossible, to measure the impact advisory counsel may have had on Clark’s trial. I do not believe that we can say with any fair degree of certainty that if Clark had been granted his request for advisory counsel, it would not have led to additional witnesses, better arguments, and perhaps even a different outcome. I agree with the California Supreme Court when it reversed a trial court that failed to exercise its discretion because it “[m]istakenly be-liev[ed] it had no authority to appoint advisory counsel.” People v. Bigelow, 37 Cal.3d 731, 209 Cal.Rptr. 328, 691 P.2d 994, 1000 (1984). The California court reversed and granted a new trial because of the “impossibility of assessing the effect of the absence of counsel upon the presentation of the case.” Id., 209 Cal-Rptr. 328, 691 P.2d at 1001. For this same reason, the court in Clark’s case must at least consider the effect of granting advisory counsel, as the rules of criminal procedure dictate.

Finally, while I do not conclude that a district court’s failure to exercise its discretion regarding the appointment of advisory counsel should result in per se reversal, I nevertheless conclude that the circumstances in Clark’s case do require reversal. Therefore, I would hold the court’s error was prejudicial and warrants granting a new trial.

HANSON, J.

(dissenting).

I join the dissent of Justice Paul H. Anderson but write separately to state additional grounds for dissent.

On the issue of the district court’s denial of Clark’s request for substitute counsel, I would structure the analysis differently than the majority opinion. First, because Clark’s request was not made until after the Rasmussen hearing had been completed and jury selection had commenced, Clark’s right to defend himself was not “unqualified,” but was “ ‘subject to the trial court’s discretion which requires a balancing of the defendant’s legitimate interests in representing himself and the potential disruption and possible delay of proceedings already in progress.’ ” State v. Christian, 657 N.W.2d 186, 191 (Minn. 2003) (quoting United States v. Wesley, 798 F.2d 1155, 1155-56 (8th Cir.1986)). In Christian we held that when a self-representation motion is made after jury voir dire begins, the district court must exercise its discretion and we affirmed the district court’s denial of such a motion. Id. at 193-94.

Here, the district court did not exercise that discretion but simply proceeded to secure Clark’s waiver of his right to counsel. Of course, it could be said that Clark can hardly complain about the district court’s grant of his own motion. But, because the court’s discretion to deny a request for self-representation requires the court to consider the defendant’s interest, I would conclude that a defendant who makes such a motion, against the advice of or without the support of his appointed counsel, has not waived the requirement that the district court exercise discretion.

More important, even if the district court does not consider the possibility of denying the motion for self-representation, the court is obliged to assure that the defendant’s waiver of counsel is knowing, voluntary, and intelligent. State v. Worthy, 583 N.W.2d 270, 276 (Minn.1998); Minn. R. Crim P. 5.02, subd. 1(4). And, where a defendant seeks substitute counsel on the basis of a claim that his present counsel is ineffective, a defendant’s waiver of counsel may not be voluntary where the court narrows the defendant’s options to either self-representation or proceeding with his present counsel. See, e.g., Pazden v. Maurer, 424 F.3d 303, 313 (3d Cir.2005); Gilbert v. Lockhart, 930 F.2d 1356, 1360 (8th Cir.1991) (holding that a defendant’s waiver was invalid where he was required to choose between proceeding with unprepared counsel or no counsel). At the very least, the court was required to make a searching inquiry of Clark’s reasons for wanting to dismiss his present counsel. , On their face, Clark’s claims that counsel had not visited him in jail, had not discussed the case with him, would not seek out suggested witnesses, and would not have the gun checked for fingerprints, raised serious questions that required inquiry. See, e.g., United States v. Morrissey, 461 F.2d 666, 669 (2d Cir. 1972) (holding that a defendant’s claim that his attorney did not meet with him or seek out witnesses required a searching inquiry before denying the request for new counsel).

The majority suggests that Clark’s claims do not constitute “serious allegations of inadequate representation.” But, to reach that conclusion, the majority must speculate because no inquiry was made on the record. In the end, the majority relies on the district court’s apparent conclusion, without record basis, that “appointed counsel had conducted a proper investigation, was thoroughly prepared for trial, and had, in fact, maintained contact with Clark.” Because the district court did not devise a procedure to inquire of appointed counsel about Clark’s claims, the court had no basis to know what investigation had been conducted or what contact had been maintained. The court’s only basis for knowledge was the performance of counsel in the Rasmussen hearing and voir dire, and perhaps the court’s familiarity with counsel in other cases, but neither of these would provide information about the nature and extent of counsel’s investigation or communication with Clark.

I would conclude that the district court abused its discretion by not making a searching inquiry into Clark’s claims; by narrowing Clark’s choices to only self-representation or representation by current counsel; and by granting Clark’s motion for self-representation without balancing all interests, including the interests of Clark in the effective assistance of counsel.

On the issue of the district court’s denial of Clark’s request for advisory counsel, I conclude that the harmless error analysis must not focus on the strength of the state’s case, which was not known to the court when the motion was made and which, even at the close of trial, only reflects a record that was created without the assistance of defense counsel. The analysis should focus, instead, on whether Clark was effective in his attempts at self-representation. My review of the record reveals that, as could be expected, Clark was repeatedly stymied by his lack of expertise in trial procedure. He could not assess the significance of evidence presented by the state, present proper objections to the state’s evidence, develop meaningful cross-examination of the state’s witnesses, or secure and present evidence of his own.

Accordingly, I would reverse Clark’s conviction and grant a new trial.

      . The receiving-stolen-property offense was "merged” with the theft offense at sentencing.

      . When defense counsel and defendant disagree on significant matters of tactics or strategy, we have suggested that a record should be made by "means which best serves to protect both the confidentiality of the attorney-client relationship and the safeguards present in the criminal system.” State v. Eling, 355 N.W.2d 286, 294-95 (Minn.1984).

      . In pretrial discussions, counsel for both sides and the court talked about the admissibility of copies of certain web pages obtained from the internet website "wunder-ground.com” containing weather information for the time period when Clark was arrested. Because the documents did not contain the relevant precipitation data, the public defender attempted to locate a reporting service that did have that information. Clark wanted to impeach the officer's testimony that Clark could not "accelerate” away from the officer during the police chase because of snowy conditions in the alley, but the officer also said that Clark was driving a vehicle with a four-cylinder engine. Whether there was snow in the alley during the police chase was not germane to any of the disputed elements of the charged offenses.

      . See, e.g., State v. Eling, 355 N.W.2d 286, 294-95 (Minn. 1984).