author: CARTER, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Brett Ivan ANDERSON, Respondent.
    No. 04-0935.
    Supreme Court of Iowa.
    Oct. 6, 2004.

      Norman G. Bastemeyer and David J. Grace, Des Moines, for complainant.
    Brett I. Anderson, Des Moines, pro se.
   CARTER, Justice.

This matter is before us on a review of the Grievance Commission’s findings and recommendations for discipline based on several allegations of ethical misconduct against respondent attorney Brett Ivan Anderson by the Iowa Supreme Court Board of Professional Ethics and Conduct. Our review of the record convinces us that the findings of the Grievance Commission with respect to the alleged violations are supported by a convincing preponderance of the evidence. With respect to the Grievance Commission’s recommendation of a suspension of respondent’s license, we conclude that the seriousness of the unethical conduct that has been established warrants revocation of his license to practice law.

The initial complaint against respondent involved a transaction in which he represented a partnership known as Southern Manor Partners (Southern Man- or) in an attempt to secure refinancing of the debt on their business property. In pursuing that effort, respondent successfully arranged for a refinancing loan to Southern Manor from Preferred Risk Insurance Company (Preferred Risk). The loan commitment was for the sum of $400,000 to be loaned at 9.5% interest with a 1% loan origination fee payable to Preferred Risk.

The closing documents that respondent presented to Southern Manor with respect to this transaction indicated that the loan proceeds would be reduced by a closing fee of $250, an attorney fee of $275, and a loan origination fee of $8000. The origination fee shown on the closing documents was twice the sum that had been negotiated with Preferred Risk, a fact not known by Southern Manor and not disclosed by respondent. Half of the $8000 origination fee paid by Southern Manor was remitted to Preferred Risk, and the other half was divided equally between respondent and the real estate professional who had referred Southern Manor to respondent for assistance in obtaining the loan. The Grievance Commission found that the misrepresentation with respect to the amount of the origination fee constituted a violation of Disciplinary Rule 1-102(A) of the Iowa Code of Professional Responsibility for Lawyers (lawyer shall not engage in dishonest conduct).

In subsequent litigation between the partners of Southern Manor, the facts involving the loan-origination fee transaction were discovered. That information led to the original complaint against respondent by the board of professional ethics and conduct. Later, other information revealed in the Southern Manor litigation indicated that respondent, on two occasions, had withdrawn funds for his personal use from an escrow account in which the proceeds of the Southern Manor refinancing loan had been deposited. These withdrawals consisted of $10,000 removed from the account on October 23, 1992, and $3500 removed from the account on December 16, 1992. Respondent later replaced these monies in the escrow account.

Southern Manor had entrusted respondent with check-writing authority in the administration of the escrow account. The ledger sheet that he maintained to show deposits and disbursements for the escrow account did not disclose the unauthorized withdrawals for his personal use. Upon learning of these events, the board of professional ethics and conduct amended its initial complaint against respondent to charge additional ethical violations based upon these unauthorized withdrawals and improper recordkeeping for the escrow account.

The Grievance Commission found that respondent’s actions in withdrawing a portion of the escrow funds for his personal use constituted a violation of DR 1-102(A) (dishonest conduct). It further found that by not accurately reflecting the transactions in the records he kept for that account he violated DR 9-102(B)(3) (lawyer shall maintain record of all client funds in lawyer’s possession).

In addition to the matters we have discussed, the board of professional ethics and conduct also alleged in its amended complaint that respondent had assisted a company known as Colonial House II in securing refinancing of its indebtedness and was entrusted with the escrow account in which the proceeds of that loan were deposited. The evidence presented in support of that allegation revealed that, in March of 1993, he withdrew $7500 from that account for his personal use and, in April 1993, withdrew an additional $1500 for that purpose. These amounts were later repaid to the escrow account by respondent. The commission found that respondent’s actions in withdrawing these funds for his personal use constituted an additional violation of DR 1-102(A).

With regard to another transaction, the amended complaint alleged that respondent had undertaken the representation of an elderly man with respect to a dispute with a neighbor. The nature of this dispute is not entirely clear. The elderly gentleman died, and when his wife and daughter later inquired as to the status of respondent’s efforts, he falsely represented the amount and nature of the work that he had done on the decedent’s behalf. The commission found that respondent’s conduct in this matter constituted a violation of the duty to accurately report the status of the work he had undertaken to perform.

The Grievance Commission recommended that respondent’s license be suspended for sixty days. This court gives respectful consideration to the Grievance Commission’s recommendation concerning the appropriate sanction. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Waples, 677 N.W.2d 740, 743 (Iowa 2004). However, on review of that recommendation under Iowa Court Rule 35.10, “the supreme court may impose a lesser or greater sanction than the discipline recommended by the grievance commission.”

Our views of professional standards as they relate to the protection of a client’s funds are well known and of long-standing. We have observed in several cases that “it is almost axiomatic that the licenses of lawyers who convert funds entrusted to them should be revoked.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Irwin, 679 N.W.2d 641, 644 (Iowa 2004); accord Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Williams, 675 N.W.2d 530, 533 (Iowa 2004); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bell, 650 N.W.2d 648, 652 (Iowa 2002); Comm. on Prof'l Ethics & Conduct v. Ottesen, 525 N.W.2d 865, 866 (Iowa 1994). Instances in which revocation has not been ordered for the taking of client’s money or fiduciary funds have involved situations in which the attorney had a colorable future claim to the funds or did not take the funds for his own use. See, e.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Allen, 586 N.W.2d 383, 391 (Iowa 1998); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hansel, 558 N.W.2d 186, 192 (Iowa 1997); Comm. on Prof'l Ethics & Conduct v. Rauch, 486 N.W.2d 39, 40 (Iowa 1992).

We have not hesitated to follow this course in situations in which the embezzled funds have been returned prior to any discovery by the client or third parties. Comm. on Prof'l Ethics & Conduct v. Pappas, 313 N.W.2d 532, 533-34 (Iowa 1981). Revocation of an offending attorney’s license has been imposed in situations involving substantially smaller embezzle-ments than those that occurred in the present case. See Comm. on Prof'l Ethics & Conduct v. Rowe, 225 N.W.2d 103, 104 (Iowa 1975) ($1500 of funds recovered for client placed in attorney’s personal checking account — license revoked). The situation involving respondent’s conversion of client funds is aggravated by the other transaction in which he misstated the amount of the origination fee on the Preferred Risk loan and pocketed a portion of the overage. This was another act involving dishonesty. As we recognized in Irwin, 679 N.W.2d at 644, “dishonesty is a trait that should disqualify the dishonest person from the practice of law.” Given the seriousness of the ethical violations that have been established by the evidence, we are satisfied that the only appropriate sanction is revocation of respondent’s license to practice law.

For all of the reasons stated in this opinion, the license of respondent, Brett Ivan Anderson, is revoked effective with the filing of this opinion. Costs are assessed to respondent as provided in Iowa Court Rule 35.25(1).

LICENSE REVOKED.

All justices concur except WIGGINS, J., who takes no part.

      . Further references to the disciplinary rules contained in the Iowa Code of Professional Responsibility for Lawyers will designate the particular rule only as DR and number.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    Charles E. ROBINSON, Appellee, v. STATE of Iowa, Appellant.
    No. 03-1387.
    Supreme Court of Iowa.
    Oct. 6, 2004.
    Thomas J. Miller, Attorney General, and Kristin W. Ensign, Assistant Attorney General, for appellant.

      Larry J. Cohrt and Jay P. Roberts of Roberts, Cohrt, Stevens & Lekar, P.L.C., Waterloo, for appellee.
   LARSON, Justice.

Charles Robinson was an inmate at the Iowa Medical and Classification Center when he was struck in the face by another inmate, causing the loss of his only good eye. Robinson filed a tort claim with the State Appeal Board, which denied the claim. Robinson filed suit, but the State moved to dismiss it on the ground it was untimely. The court denied the motion, and we granted the State’s application for interlocutory appeal. We affirm and remand.

I. Facts and Prior Proceedings.

Robinson was injured on November 1, 1999, and on October 30, 2001, he filed a claim against the State under the Iowa Tort Claims Act, Iowa Code ch. 669 (1999). The claim showed Robinson as the claimant and Jay Roberts and James Sheerer as his attorneys of record. The appeal board denied the claim on September 4, 2002, and notified Jay Roberts, one of Robinson’s attorneys, of the denial by a letter dated September 5, 2002. The board did not send a notice of denial to Robinson.

On March 7, 2003, Robinson filed suit against the State, which moved to dismiss because the suit was not filed within six months of the appeal board’s notice of denial as required by Iowa Code section 669.13:

Every claim and suit permitted under this chapter shall be forever barred, unless within two years after such claim accrued, the claim is made in writing to the state appeal board under this chapter. The time to begin a suit under this chapter shall be extended for a period of six months from the date of mailing of notice to the claimant by the state appeal board as to the final disposition of the claim or from the date of withdrawal of the claim from the state appeal board....

Iowa Code § 669.13 (emphasis added).

Robinson resisted the motion on two grounds: (1) The State’s mailing of the notice of denial to the plaintiffs lawyers, instead of Robinson personally, did not comply with the statute and therefore did not commence the six-month period of limitations; and (2) the State failed to establish that the letter denying Robinson’s claim, showing a date of September 5, 2002, was actually mailed on that date.

We affirm the court’s order denying the motion to dismiss. We do so on the second ground — failure by the State to establish grounds for the motion to dismiss. We disagree with the court, however, on the issue of whether notice sent to a claimant’s attorney satisfies the requirements of section 669.13.

II. The Motion to Dismiss.

We have criticized the use of motions to dismiss in these circumstances. In Cutler v. Klass, Whicher & Mishne, 473 N.W.2d 178 (Iowa 1991), we discussed the problems:

The reasons are clear enough. In the first place, in filing a motion to dismiss, a defendant gives away all the facts because in ruling on the motion well-pled facts are assumed to be true. Combined with this venerable rule is a more recent one. Under notice pleading a suit will survive a motion to dismiss whenever a valid recovery can be gleaned from the pleadings.
We recognize the temptation is strong for a defendant to strike a.vulnerable petition at the earliest opportunity. Experience has however taught us that vast judicial resources could be saved with the exercise of more professional patience. Under the foregoing rules dismissals of many of the weakest cases must be reversed on appeal. Two appeals often result where one would have sufficed had the defense moved by way of summary judgment, or even by way of defense at trial. From a defendant’s standpoint, moreover, it is far from unknown for the flimsiest of cases to gain strength when its dismissal is reversed on appeal.

Cutler, 473 N.W.2d at 181 (citations omitted).

The present case shows the danger of premature dismissal of a case that, if facts were allowed to be developed, would result in a more informed disposition. The plaintiffs resistance clearly pointed out the defect in the State’s position: the notice showed when the letter was drafted (September 5, 2002), but that is not the issue. The issue is when the letter was mailed. See Iowa Code § 669.13.

We will reverse an order denying a motion to dismiss a petition for failure to state a claim only if the petition shows on its face there is no right of recovery under any state of facts. Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999). In considering a motion to dismiss, we do not consider any facts not set out in the petition. Id.-, Tate v. Derifield, 510 N.W.2d 885, 887 (Iowa 1994). Even if we were to consider the State’s evidence that the letter was dated September 5, that still would not establish the date the letter was mailed. It is undisputed that the letter was dated September 5, 2002, and was received by Robinson’s attorney on September 9, 2002. It is possible that the letter was not mailed until September 7, 2002, which would make the plaintiffs petition filed on March 7, 2003, fall within the six-month limitation of section 669.13. No facts are alleged in the petition that would support a conclusion as a matter of law that the mailing date was September 5, 2002, as the State assumes. We affirm the order denying the State’s motion to dismiss, but on a different ground than that cited by the district court.

III. The Notice of Denial.

Another issue has been raised, although only in a collateral manner (in the plaintiffs resistance to the motion to dismiss). While resolution of that issue is not critical to our ruling on the motion to dismiss, it is almost certain to arise in further proceedings on remand. The question is whether the appeal board is required by statute to send notice to the claimant personally, or whether sending it to his attorney of record is sufficient.

Robinson argues that the statute only refers to “notice to the claimant,” which is unambiguous and means the limitation period will not begin to run until he has personally received notice. The State argues that the word “claimant” must include the claimant’s attorney to be consistent with the general rule that notice to an attorney is considered notice to the client and also to give effect to the goals of the legislature in enacting section 669.13. Under the State’s interpretation, if sufficient notice is sent to either the client or his attorney, the goal of notice of the denial is met and the limitations period begins.

Both parties’ interpretations are reasonable. When that is the case, we rely on rules of statutory interpretation provided by statute and our case law. See Nash Finch Co. v. City Council of Cedar Rapids, 672 N.W.2d 822, 827 (Iowa 2003). These rules allow the court to consider: the purpose of the statute, Iowa Code § 4.6(l)-(3) (2001); “[t]he common law,” id. § 4.6(4); “[t]he administrative construction of the statute,” id. § 4.6(6); and “[t]he consequences of a particular construction.” Id. § 4.6(5); see also Nash Finch Co., 672 N.W.2d at 827; State v. Sailer, 587 N.W.2d 756, 760 (Iowa 1998).

A. The statute’s purpose. We first consider the legislature’s likely purpose in enacting the statute. Beier Glass Co. v. Brundige, 329 N.W.2d 280, 283 (Iowa 1983). The primary purpose of the statute is clear: as the title suggests, it is a “Limitation of Actions” statute. Iowa Code § 669.13. We believe the legislature’s main goal was to limit the time period in which claimants could bring claims under the Tort Claims Act. See id. The second purpose, advising the claimant of the board’s action, is also apparent from the statute: “The time to begin a suit under this chapter shall be extended for a period of six months from the date of mailing of notice to the claimant....” Id. As we discuss later, interpreting the statute as urged by Robinson would not give effect to both purposes because it would mean that, when notice of denial has not been mailed to the claimant, but instead only to his attorneys, the statute of limitations would never begin to run even though his attorneys had been notified of the board’s denial.

B. The common law. Our courts have long recognized the general rule that “notice to an attorney in respect to a matter in which he is then acting for a client is notice to the client.” Perpetual Sav. & Loan Ass’n v. Van Atten, 211 Iowa 435, 438, 233 N.W. 746, 747 (1930); accord Carroll v. Martir, 610 N.W.2d 850, 859 (Iowa 2000) (stating the general rule that “knowledge of an attorney is knowledge of the client,” noting that an “attorney acts as the representative and alter ego of his client” (emphasis added) (citing 7A C.J.S. Attorney & Client § 180 n. 57, at 284 (1980))); Superior/Ideal, Inc. v. Bd. of Review, 419 N.W.2d 405, 408 (Iowa 1988) (“An attorney may accept service of notice, or waive it, if the attorney has authority to do so. In the case of an appeal notice, a lawyer is presumed to be authorized to acknowledge service.” (citations omitted)); McClelland v. Saul, 113 Iowa 208, 209-10, 84 N.W. 1034, 1034 (1901) (stating that it is “an elementary principle” that notice to an attorney is treated as notice to the client as long as the attorney is “acting within the scope of his authority” regarding “matters over which his authority extends”); Jones v. Bamford, 21 Iowa 217, 219 (1866) (“The knowledge or notice of facts acquired by an attorney or agent when engaged properly in the business of his client or principal, becomes, in law, the knowledge or notice of such fact to the client or principal.”); Walker v. Ayres, 1 Iowa (Clarke) 449, 454 (1855) (holding that notice of a judgment given to the client’s attorney “was the same as if brought directly home to [the client]”); see also 7 Am. Jur. 2d Attorneys at Law § 148, at 197 (1997) (“Notice to an attorney is effective as notice to the client when the notice is received in the course of the transaction in which the attorney is acting.”).

Courts especially adhere to this general rule when, as in this case, the client’s attorney is an attorney of record in an ongoing legal proceeding. See, e.g., Roma v. Indus. Comm’n of Ohio, 97 Ohio St. 247, 119 N.E. 461, 462 (1918) (“[0]rdinarily in a pending judicial proceeding notice to an attorney of record is notice to his client.... In fact, the rule is even stronger than just stated; for ... the general rule is that in all pending judicial proceedings, wherein the party has an attorney, notice must be given to that attorney as agent and not to the party himself.”); see also 7A C.J.S. Attorney & Client § 185, at 299-300 (“Knowledge of, or notice to, the attorney for a litigant or party to a. legal proceeding, of matters arising in the course of the litigation or proceeding, is ordinarily imputable to such litigant or party.... Also, notice may be imputed as to the rendition or entry of a judgment for or against a client... .”). Here, there is no question that attorney Jay Roberts, to whom the notice was mailed, was listed by the claimant as his attorney of record.

Even if we were to conclude that mailing notice to Robinson is required by the statute, we believe substantial compliance would be sufficient. We have said “substantial compliance” means “compliance in respect to essential matters necessary to assure the reasonable objectives of the statute.” Superior/Ideal, 419 N.W.2d at 407-08 (holding service of notice of appeal from tax assessment on clerk of board of adjustment was substantial compliance with the statute requiring service on its “presiding officer”). Here, the purposes of the statute are to advise the claimant of the status of his claim and to start the running of the statute of limitations. Allowing service of notice on the attorneys of record, as urged by the State, satisfies both goals.

C. Agency interpretation. The appeal board has interpreted section 669.13 to allow mailing of a notice to the claimant’s attorney. Under its rule, “[t]he special assistant attorney general shall notify the claimant or the claimant’s attorney, in writing, of the board’s determination .... ” Iowa Admin. Code r. 543— 1.8(25A) (1988) (emphasis added). The agency rule, of course, is not controlling. See Locate.Plus.Com, Inc. v. Iowa Dep’t of Transp., 650 N.W.2d 609, 613 (Iowa 2002) (statutory interpretation “is a legal question for the courts, not for agencies”).

When reviewing interpretive rules, we must first determine whether the agency was clearly vested by the legislature with the discretion to interpret the statute. See Iowa Code § 17A.19(10)(c), (Í); ABC Disposal Sys., Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 602 (Iowa 2004); see also Arthur Earl Bonfield, Amendments to Iowa Administrative Procedure Act, at 61-63 (1998) [hereinafter Bonfield]. If the authorizing statute clearly delegates interpretive authority to the agency, we review the agency’s interpretation with deference and will strike it only if it is “irrational, illogical, or wholly unjustifiable.” Iowa Code § 17A.19(10)(Z). If the authorizing statute does not clearly delegate interpretive authority to the agency, a court “may substitute its judgment for that of the agency, without any deference, and determine de novo whether the agency interpretation was correct....” Bonfield at 63; see also Iowa Code § 17A.19(10)(c). In making the determination of whether interpretive authority has clearly been delegated to the agency, the court,

using its own independent judgment and without any required deference to the agency’s view, must have a firm conviction from reviewing the precise language of the statute, its context, the purpose of the statute, and the practical considerations involved, that the legislature actually intended (or would have intended had it thought about the question) to delegate to the agency interpretive power with the binding force of law over the elaboration of the provision in question.

Bonfield at 63; see also Iowa Code § 17A.19(ll)(a) (stating that a court “[s]hall not give any deference to the view of the agency with respect to whether particular matters have been vested by a provision of law in the discretion of the agency”).

Iowa Code section 669.3 delegates to the board the power to “adopt rules and procedures for the handling, processing and investigation of claims” under the Tort Claims Act. However, we do not find that the legislature has therein clearly vested the agency with interpretive powers with respect to what type of notice is required to commence the statute of limitations. Nevertheless, our independent interpretation of the statute comports with that of the agency: service on the claimant or the claimant’s attorney is sufficient to commence the statute of limitations.

D. Consequences of interpretation. Under Iowa Code section 4.6(5), we may consider the consequences of a particular interpretation of a statute. Under Robinson’s interpretation of the statute, only the mailing of a notice to him, regardless of whether it has been mailed to his attorneys, would commence the running of the statute of limitations. Under his interpretation, if the State notified the claimant’s lawyer, but not the claimant personally, the statute of limitations would never run. We do not believe the legislature would have intended such a result.

For all the reasons stated, we believe that the statute is satisfied when the appeal board mails notice to the claimant or the claimant’s attorney of record. Although we disagree with the district court’s interpretation of section 669.18, we nevertheless affirm its denial of the State’s motion to dismiss. We remand for further proceedings.

AFFIRMED AND REMANDED.


author: /a/ Paul H. Anderson Associate Justice

text:
    In re Petition for Transfer to Disability Inactive Status of Michael Dennis VERBRICK, a Minnesota Attorney, Registration No. 280033.
    No. A04-1854.
    Supreme Court of Minnesota.
    Oct. 14, 2004.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for transfer of respondent Michael Dennis Verbrick to disability inactive status. The petition alleges that the Director learned in the course of investigating disciplinary complaints against respondent that respondent suffers chemical abuse and psychological problems that prevent him from competently representing clients.

The parties have entered into a stipulation in which respondent agrees that he suffers a disability that prevents him from competently representing clients and the parties jointly recommend that the court transfer respondent to disability inactive status. The parties also agree that the requirements of Rule 26, Rules on Lawyers Professional Responsibility (RLPR), regarding notice to clients of a transfer to disability inactive status be waived because respondent has closed his law practice and transferred or made arrangements to return all active client files.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Michael Dennis Verbrick is transferred to disability inactive status effective immediately. All further proceedings in connection with the pending complaints under investigation are stayed until such time as respondent petitions for reinstatement. The notice requirements of Rule 26, RLPR, are waived.

BY THE COURT:

/a/ Paul H. Anderson Associate Justice


author: WRIGHT, Judge.

text:
    STATE of Minnesota, Respondent, v. Wendy Ann BIRK, Appellant.
    No. A03-1903.
    Court of Appeals of Minnesota.
    Oct. 5, 2004.

      Steven V. Grigsby, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Barry A. Sullivan, William G. Hawkins & Associates, Anoka, MN, for respondent.
    Considered and decided by PETERSON, Presiding Judge; STONEBURNER, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

Appellant challenges her conviction of third-degree driving while impaired (DWI) (having an alcohol concentration of .10 or more within two hours of driving), arguing that (1) the evidence was insufficient to prove that the Intoxilyzer test was reliable and (2) she faced an unconstitutional presumption of guilt at trial based on the Intoxilyzer test result. We affirm.

FACTS

At approximately 1:00 a.m. on May 13, 2003, Lino Lakes Police Officer Adam Hal-verson stopped appellant Wendy Birk for an improper lane change. Halverson noticed a strong odor of alcohol while speaking with Birk. He also observed that she had slurred speech and bloodshot, watery eyes. Halverson asked Birk to perform several field sobriety tests. Based on Birk’s performance of the sobriety tests, Halverson believed that Birk was under the influence of alcohol and placed her under arrest for DWI.

Halverson read the implied consent advisory to Birk, who agreed to take a breath test. Halverson testified that the Intoxilyzer indicated that it was functioning properly and performing all the necessary calibrations to provide an accurate reading. At 1:42 a.m., Halverson administered the Intoxilyzer test, which produced an alcohol concentration reading of .14.

Birk was charged with third-degree DWI (driving under the influence of alcohol), in violation of Minn.Stat. §§ 169A.20, subd. 1(1), .27, subd. 1(a) (2002), and third-degree DWI (.10 or more within two hours of driving), in violation of Minn.Stat. §§ 169.20, subd. 1(5), .27, subd. 1(a) (2002). The case proceeded to trial, during which Birk moved for a judgment of acquittal. In support of the motion, Birk argued that the state failed to prove the reliability of the Intoxilyzer test and that the state failed to prove that her alcohol concentration was .10 or more within two hours of driving. The district court denied the motion. The jury found Birk guilty of the charged offenses. This appeal followed.

ISSUES

I. Is the evidence sufficient to support the conviction of third-degree DWI (.10 or more within two hours of driving)?

II. Did the admission of the Intoxilyzer test result and the reading of the standard jury instruction defining the offense create an impermissible presumption of guilt?

ANALYSIS

I.

In considering a claim of insufficient evidence, our review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). In doing so, we assume that the jury believed the evidence supporting the conviction and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, reasonably could conclude that the defendant was guilty of the charged offenses. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

An Intoxilyzer test consists of “one adequate breath sample analysis, one calibration standard analysis, and a second, adequate breath sample analysis.” MinmStat. § 169A.51, subd. 5 (2002); State v. Rader, 597 N.W.2d 321, 323 (Minn.App.1999). A test sample is “deemed adequate if the instrument analyzes the sample and does not indicate the sample is deficient.” Rader, 597 N.W.2d at 323-24. Halverson testified that Birk gave two adequate breath samples and that the machine performed a calibration standard analysis between each sample. The Intoxilyzer printout corroborates Halverson’s testimony. It shows that the machine tested the first breath sample and recorded a .14 reading; the machine then registered two calibration standard readings of .11. Next the Intoxilyzer tested a second breath sample from Birk, recording another reading of .14. Neither the test reading nor Halver-son’s testimony supports Birk’s claim that the breath samples were deficient.

We, therefore, conclude that the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, reasonably could have found Birk guilty of testing .10 or more within two hours of driving and driving under the influence of alcohol.

II.

At oral argument, Birk challenged the state’s evidence of the reliability of the Intoxilyzer test result from a different perspective. Birk argued that the statutorily prescribed admission of the Intoxilyzer test result without supporting expert testimony, in conjunction with the standard jury instruction defining the offense, created an impermissible presumption of guilt.

The results of an Intoxilyzer test are admissible as a trustworthy and reliable measure of breath alcohol if a properly certified operator performs the test. MinmStat. § 634.16 (2002). Expert testimony that “an infrared ... breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath” is not required for the test result to be admissible. Id. The applicable standard jury instruction, however, instructs the jury that it must “evaluate the reliability of the testing method and the test results.” 10A Minnesota Practice, CRIMJIG 29.10 (1999) (emphasis added).

At trial, the state did not present expert testimony on the reliability of the infrared breath test method used by the Intoxilyzer machine in measuring the amount of alcohol in Birk’s breath. Birk argues that, because expert testimony was not presented, the jury could have found that test method reliable only by presuming that a test used by police must be reliable. We note, however, that the Intoxilyzer correctly measured the room air sample at .000; that it measured Birk’s two breath samples. at nearly the same alcohol concentration (.146 and .147); and that the field sobriety tests and the officer’s observation of Birk’s indicia of intoxication generally tended to corroborate the test readings. Accordingly, there .was circumstantial evidence tending to show that the infrared test method used by the Intoxilyzer was a reliable means of measuring breath alcohol.

Birk’s argument that she faced an improper presumption of guilt at trial also is without merit. We have summarily rejected the argument that the DWI (over .10) statute impermissibly shifts the burden of proof. See State v. Chirpich, 392 N.W.2d 34, 37 (Minn.App.1986), review denied (Minn. Oct. 17, 1986). Although the Chir-pieh court reached this conclusion without a detailed explanation of its reasoning, an analysis of Birk’s claim offers ample support for the holding.

A presumption ordinarily is presented to the jury through the jury instructions that direct the jury’s consideration of the evidence. See generally State v. Williams, 324 N.W.2d 154, 160 (Minn. 1982) (holding that instruction that directs jury to find intent from basic facts without allowing it to weigh defense rebuttal evidence is unconstitutional). When deciding whether an irrebuttable presumption has been presented to the jury, the jury instructions generally are controlling. County Court of Ulster County v. Allen, 442 U.S. 140, 157 n. 16, 99 S.Ct. 2213, 2225 n. 16, 60 L.Ed.2d 777 (1979). The jury instruction in this case did not create a presumption. On the contrary, CRIMJIG 29.10negates any suggestion that a presumption is created by the Intoxilyzer test.

CRIMJIG 29.10 tells the jury it must “evaluate the reliability of the test method and the test results” in determining whether the element of over .10 has been proven. 10A Minnesota Practice, CRIMJIG 29.10 (1999). This instruction discourages any notion that the jury may infer proof of the element solely from the Intoxilyzer test result. The jury is instructed to evaluate not only the reliability of the test result, but also the reliability of the test method, even though the reliability of a scientific test method generally is a question for the district court to determine in deciding the admissibility of the evidence. See generally State v. Schwartz, 447 N.W.2d 422, 424 (Minn.1989) (holding Frye-Mack test applicable to admissibility of DNA testing as a new scientific technique).

Birk requested a modified jury instruction that would have warned the jury against relying on the Intoxilyzer merely because it was used by police. That the defense requested modification of the jury instruction, however, does not imply that CRIMJIG 29.10, the instruction given, creates a presumption. Indeed, CRIMJIG 29.10carefully avoids suggesting that any inference or presumption must be drawn from an Intoxilyzer reading of over .10.

Birk’s complaint is not with CRIMJIG 29.10itself, but rather with the statutory definition of the offense in light of the means used to prove the over-.10 element. The DWI statute defines the offense of DWI (over .10) in terms of alcohol concentration, which is provable by means of a scientific test. Birk does not argue that it is impermissible for a scientific test to prove an ultimate issue. Cf. Minn. R. Evid. 704 (providing that expert testimony is not objectionable because it “embraces an ultimate issue to be decided by the trier of fact”). Rather, she argues that expert testimony, in addition to the Intoxilyzer test, is required to establish proof beyond a reasonable doubt.

This argument fails, however, because the standard of proof beyond a reasonable doubt does not dictate any particular type of evidence. See State v. Trimble, 371 N.W.2d 921, 926 (Minn.App.1985) (noting that proof beyond a reasonable doubt does not depend on quantity of evidence), review denied (Minn. Oct. 11, 1985). The standard does not define how much evidence the state must provide, only how convincing the evidence must be to the trier of fact. If it were otherwise, then convictions could not rest, for example, on eyewitness identifications that were less than positive and certain. See State v. Lando, 642 N.W.2d 720, 725-26 (Minn. 2002). Thus, we hold that the standard of proof beyond a reasonable doubt by itself does not require the state to present expert testimony on the reliability of the test method used by the Intoxilyzer 5000.

When applied to. the evidence here, CRIMJIG 29.10’s requirement that the jury evaluate the reliability of the test result and the test method does not undermine this holding. Although CRIMJIG 29.10 directs the jury to evaluate the test method, it does not imply any particular kind of evidence must be presented on that issue. The jury had circumstantial 'evidence (the correct room-air reading, the consistent ■ readings on separate breath samples, and the corroborating field sobriety tests and observations of intoxication) from which it could infer that the test method, as well as the test result, was reliable. Without expert testimony, of course, the jury was without evidence from which to assess the theory of infrared breath testing. But Birk has presented no authority requiring the jury, rather than the district court, to evaluate the admissibility of evidence developed under an emerging scientific theory.

We concede, as Birk argues, that there are cases in which the admissibility of the Intoxilyzer test has been confused with the sufficiency of the test to prove guilt beyond a reasonable doubt. And there has been some confusion between the sufficiency of the test to support a DWI conviction' and its sufficiency to sustain a license revocation under the lower civil standard of proof. See State v. Rader, 597 N.W.2d 321, 323-24 (Minn.App.1999). Notwithstanding this confusion, however, Birk’s argument that admitting the Intoxilyzer test without antecedent expert testimony under Minn.Stat. § 634.16 creates an improper presumption of guilt is without merit.

DECISION

The Intoxilyzer test provided sufficient evidence to prove that appellant’s alcohol concentration was .10 or more within two hours of driving. ' The admission of that test, without antecedent expert testimony as to the test method, did not create an unconstitutional presumption of guilt despite the instruction in CRIMJIG 29.10 that the jury must evaluate both the reliability of the test method and the reliability of the test result.

Affirmed.


author: PETERSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Kenneth Conrad CONGER, Jr., Appellant.
    No. A03-1771.
    Court of Appeals of Minnesota.
    Oct. 12, 2004.

      Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, St. Paul, MN; and Earl E. Maus, Cass County Attorney, Courthouse, Walker, MN, for respondent.
    Melissa V. Sheridan, Assistant State Public Defender, Eagan, MN, for appellant.
    Considered and decided by PETERSON, Presiding Judge; ANDERSON, Judge; and PARKER, Judge.

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

   OPINION

PETERSON, Judge.

Appellant Kenneth Conrad Conger, Jr. pleaded guilty to one count of aiding and abetting second-degree intentional murder and two counts of aiding and abetting second-degree unintentional murder. The district court sentenced appellant on the intentional-murder count to a 420-month prison term, which is a 114-month upward durational departure from the presumptive sentence of 306 months. Appellant challenged his sentence in an appeal to this court, arguing that the durational departure was an abuse of the district court’s discretion because appellant’s offense did not involve substantial and compelling circumstances. After the parties submitted their briefs, the United States Supreme Court issued its decision in Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). This court granted the parties leave to file supplemental briefs addressing the impact of Blakely on appellant’s sentence. Because we conclude that appellant’s right to a jury trial was violated when the district court imposed the upward departure, we reverse and remand for resentencing.

•FACTS

Following the death of Brian Jenny, and pursuant to a plea agreement, appellant pleaded guilty to one count of aiding and abetting second-degree intentional murder in violation of Minn.Stat. §§ 609.19, subd. 1(1), 609.05, súbd. 1 (2002), and two counts of aiding and abetting second-degree unintentional murder while committing robbery and kidnapping in violation of Minn. Stat. §§ 609.19, subd. 2(1) (2002), 609.05, subd. 1.

At his guilty-plea hearing, appellant admitted the following facts:

During the evening of October 4, 2002, appellant partied with several people, including Stephanie Losh, Stephanie Day, and Leah Harper-Jenkins, at a resort in Federal Dam, where they met the victim, Brian Jenny, and Jenny’s brother-in-law, David Matzke. Jenny and Matzke invited appellant and his friends into their cabin to party with them. When the group ran out of beer, appellant and Jenny left the cabin to walk to the resort bar to buy more beer.

When appellant heard someone following them, he turned and saw Harper-Jenkins dragging a baseball bat. Appellant left Jenny with Harper-Jenkins and returned to the cabin to get more money for beer from his friends. When appellant arrived at the cabin, Matzke asked where Jenny was, and appellant pointed out the door toward Jenny’s general location. As appellant was walking out of the cabin, Matzke went back inside and then came out with a gun. Matzke started waving the gun around and asking where Jenny was. Appellant ran and got into a car that Losh and Harper-Jenkins were in, and Losh drove to appellant’s uncle’s house, where appellant told his uncle what had happened and asked his uncle for a gun because appellant was scared. The group returned to the cabin, and appellant saw Matzke still running around with the gun. The group then drove to the Federal Dam bridge, and appellant started walking back from there toward the cabin. Appellant saw Losh and Harper-Jenkins in a car at the resort bar and met up with them at the bar. Appellant got into the hatchback car with Losh and Harper-Jenkins, and they started driving back to the cabin. On the way, they saw Jenny lying on the ground, and they stopped. Harper-Jenkins told appellant to help get Jenny in the trunk, and the two of them put Jenny in the back portion of the hatchback. Appellant could not tell whether Jenny was alive, but he knew that Jenny was severely hurt. They drove toward appellant’s home, and, along the way, they stopped, and Harper-Jenkins told appellant to help her get Jenny out of the car. They took Jenny from the car and left him by the side of the road. Jenny later died from his injuries. Appellant rode with Day to Burnsville, and the next day, after learning that the police wanted him for questioning, he went to the Burnsville Police Department and gave a statement, and the police took him into custody.

Appellant testified at the plea hearing that he did not strike Jenny with the bat and that it was Harper-Jenkins who beat Jenny. Appellant testified that when he saw Harper-Jenkins for the first time after leaving her with Jenny, she told appellant, “That mother f — ker cut me, so I done him in.” Appellant acknowledged that his testimony was contrary to statements made by Losh and Harper-Jenkins, who both claimed that appellant hit Jenny with the baseball bat. Appellant maintained that the only things that he did wrong were helping to load Jenny into the car, taking Jenny out of the car, and failing to call for help.

The court sentenced appellant to 420 months in prison, which is an upward departure from the presumptive guidelines sentence of 306 months. The court stated that the departure was based on four aggravating factors: (1) the victim was particularly vulnerable; (2) the victim was treated with particular cruelty; (3) the victim was left without medical care; and (4) there was a conscious concealment of the body in a ditch in temperatures at or near freezing while the victim was still alive. The court found that appellant’s account of his involvement in the offense was not credible.

Appellant initially appealed his sentence arguing that because his offense did not involve substantial and compelling circumstances, the district court abused its discretion by imposing an upward departure. After the parties submitted briefs, the United States Supreme Court issued its decision in Blakely v. Washington, — U.S.—, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). This court granted the state’s motion for supplemental briefing to address the impact of Blakely on appellant’s sentence.

ISSUE

Did the district court violate appellant’s right to a jury trial under the Sixth Amendment to the United States Constitution when it imposed an upward durational departure from the presumptive, fixed sentence established by the Sentencing Guidelines Commission for appellant’s offense?

ANALYSIS

Appellant argues that under Blakely v. Washington, — U.S.—, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the district court violated his right to a jury trial by departing from the presumptive guidelines sentence based on findings of fact that were not made by a jury, and, therefore, his sentence must be reversed and his case remanded for imposition of a sentence that does not exceed the maximum sentence in the sentencing guidelines presumptive-sentence range.

In Blakely, the United States Supreme Court considered whether the State of Washington’s sentencing procedure deprived the defendant of his Sixth Amendment right “to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.” Id. at 2536. Following an incident that involved his wife and son, the defendant in Blakely pleaded guilty to second-degree kidnapping involving domestic violence and use of a firearm. Id. at 2534-35. In his guilty plea, the defendant admitted the elements of second-degree kidnapping and the domestic-violence and firearm allegations, but he did not admit any other relevant facts. Id. at 2535.

Under the Washington criminal code, second-degree kidnapping was a class-B felony that carried a maximum statutory sentence of ten years, but the Washington Sentencing Reform Act further limited the sentencing range to 49-53 months and permitted a judge to impose a sentence above that range only upon finding “substantial and compelling reasons justifying an exceptional sentence.” Id. at 2535. After hearing the victim’s description of the kidnapping, the judge imposed' an “exceptional sentence” of 90 months on the ground that the defendant acted with deliberate cruelty, a statutorily enumerated ground for departure under the Washington Sentencing Reform Act. Id. The defendant objected, and after conducting a hearing that included testimony from the defendant, the defendant’s wife and son, a police officer, and medical experts, the judge made findings of fact and adhered to his determination of deliberate cruelty. Id. at 2535-36. The defendant appealed, arguing that the Washington sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence. Id. at 2536.

The Supreme Court agreed and explained that when, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), it expressed the rule that “ ‘[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,’ ” Blakely, 124 S.Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, 147 L.Ed.2d 435), the prescribed statutory maximum meant

the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge exceeds his proper authority.

Id. at 2537 (citations and quotation omitted) (emphasis in original).

The Supreme Court determined that the facts that supported the judge’s finding that the defendant acted with deliberate cruelty were neither admitted by the defendant nor found by a jury. Id. Therefore, because the judge could not have imposed the “exceptional sentence” solely on the basis of the facts admitted in the guilty plea, the Supreme Court held that the Washington sentencing procedure did not comply with the Sixth Amendment to thé United States Constitution, and the defendant’s sentence was invalid. Id. at 2537-38.

The state argues that because the sentencing guidelines promulgated by' the Minnesota Sentencing Guidelines Commission operate differently from the legislatively enacted sentencing guidelines in effect in Washington state, the Minnesota sentencing guidelines are not affected by the Supreme Court’s decision in Blakely.

The sentencing guidelines promulgated by the Minnesota Sentencing Guidelines Commission establish:

(1) The circumstances under which imprisonment of an offender is proper; and
(2) A presumptive, fixed sentence for offenders for whom imprisonment is proper, based on each appropriate combination of reasonable offense and offender characteristics. The guidelines may provide for an increase or decrease of up to 15 percent in the presumptive, fixed sentence.

Minn.Stat. § 244.09, subd. 5 (2002).

The state contends that unlike the Washington sentencing guidelines, the Minnesota sentencing guidelines are not mandatory but merely “advisory to the district court.” Id. The state also contends that unlike the Washington statute, the Minnesota sentencing statute explicitly states that “[s]enteneing pursuant to the sentencing guidelines is not a right that accrues to a person convicted of a felony; it is a procedure based on state public policy to maintain uniformity, proportionality, rationality, and predictability in sentencing.” Id. According to the state, these differences demonstrate that the Minnesota sentencing guidelines “do no more than fetter the discretion of sentencing judges to do what they have done for generations' — impose sentences within the broad limits established by the Minnesota legislature.”

But the state candidly acknowledges that although the sentencing guidelines are advisory to the district court, the sentencing statute provides that “the court shall follow the procedures of the guidelines when it pronounces sentence in a proceeding to which the guidelines apply by operation of statute.” Minn.Stat. § 244.09, subd. 5 (emphasis added). Under the procedures of the guidelines, “[wjhenever a person is convicted of a felony, the court, upon motion of either the defendant or the state, shall hold a sentencing hearing” to permit the parties “to prepare and present arguments regarding the issue of sentencing.” Minn.Stat. § 244.10, subd. 1 (2002). The Minnesota sentencing statute further provides that:

Whether or not a sentencing hearing is requested ... the district court shall make written findings of fact as to the reasons for departure from the sentencing guidelines in each case in which the court imposes or stays a sentence that deviates from the sentencing guidelines applicable to the case.

Minn.Stat. § 244.10, subd. 2 (2002) (emphasis added). “ ‘Shall’ is mandatory.” Minn.Stat. § 645.44, subd. 16 (2002).

Therefore, even though the sentencing guidelines are advisory to the district court, and a person convicted of a felony does not have a right to receive the presumptive, fixed sentence established by the Sentencing Guidelines Commission for that person’s offense, a district court that does not impose the presumptive, fixed sentence is required to make findings of fact that support the court’s reasons for departing from the presumptive sentence. This means that under the Minnesota sentencing procedures, the applicable presumptive, fixed sentence established by the Sentencing Guidelines Commission is the maximum sentence that a judge may impose without finding facts that support a departure, and a judge who imposes an upward durational departure must do so in a manner that complies with the Sixth Amendment to the United States Constitution as explained in Blakely.

Under Blakely, when a judge relies upon a fact other than the fact of a prior conviction to impose a sentence that is greater than the maximum sentence that the judge may impose without relying on that fact, the fact must be found by a jury or admitted by the defendant. Consequently, when a judge imposes an upward durational departure from the presumptive, fixed sentence established by the Sentencing Guidelines Commission, the judge’s reasons for departing must be supported by facts that were found by a jury or admitted by the defendant. When a defendant pleads guilty, as appellant did, any upward durational departure that is not based solely on the facts admitted in the guilty plea does not comply with the Sixth Amendment to the United States Constitution and is invalid.

The district court held a sentencing hearing where it heard arguments regarding appellant’s sentence, and following the hearing, the court imposed a 420-month sentence and stated on the record:

This is a departure from the sentencing guidelines based on the following aggravating factors:
One, that the victim was particularly vulnerable;
Two, that he was treated with particular cruelty; and
Three, that he was left without medical care; and
Four, that there was a conscious concealment of the body. The concealment of the body being in the ditch in temperatures at near freezing while he was still alive.

The district court reiterated these reasons for the departure in a written departure report.

Only one of the aggravating factors cited by the district court as a reason for departing from the sentencing guidelines is based solely on facts admitted by appellant in his guilty plea. Appellant admitted that he took Jenny out of the car and left him by the side of the road without calling for help. This admission provides a basis for the district court’s finding that appellant left Jenny without medical care. But we have not found any fact admitted by appellant that provides a basis for the district court’s finding that appellant consciously concealed the victim’s body in a ditch at near-freezing temperatures while the victim was still alive. Appellant did not admit that he consciously concealed Jenny’s body while Jenny was still alive. Appellant admitted only that he left Jenny by the side of the road and he could not tell whether Jenny was alive. Jenny was later discovered alive, which conclusively proves that he was alive when appellant left him, but it does not prove that appellant consciously concealed Jenny or was conscious of the fact that Jenny was alive.

The district court made no findings of fact that support its determinations that the victim was particularly vulnerable and that the victim was treated with particular cruelty; the court simply stated in conclu-sory fashion that particular cruelty and particular vulnerability are reasons for departing. Without any findings of fact that support the district court’s determinations of particular cruelty and particular vulnerability, we cannot determine whether these reasons for departing are supported by facts admitted by appellant in his guilty plea.

Therefore, we reverse appellant’s sentence and remand to the district court for resentencing. When resentencing appellant, any reason that the district court relies upon as a basis for departing from the presumptive,. fixed sentence established by the Sentencing Guidelines Commission must be based solely on facts admitted by appellant in his guilty plea.

DECISION

Because the reasons that the district court relied upon as bases for departing from the presumptive, fixed sentence established by the Sentencing Guidelines Commission were not based solely on facts admitted by appellant in his guilty plea, the procedure used when sentencing appellant did not comply with the Sixth Amendment to the United States Constitution, and appellant’s sentence is invalid.

Reversed and remanded.

      . There is nothing in the record that indicates that appellant's uncle gave appellant a gun.

      . The presumptive guidelines sentence is based on appellant’s criminal history.

      . It is not clear why the district court concluded that leaving Jenny without medical care distinguishes appellant's offense from other second-degree intentional murder offenses.

      . It is possible that the district court's determinations that appellant left Jenny without medical care and consciously concealed Jenny in a ditch at near-freezing temperatures while Jenny was still alive were intended to be fact findings to support the court’s determination that appellant treated Jenny with particular cruelty, but because the district court described each of the determinations as an aggravating factor, we cannot conclude that this is what the district court intended.


author: LANSING, Judge.

text:
    CONSECO LOAN FINANCE COMPANY, f/k/a Green Tree Financial Servicing Corporation, a/f/k/a Green Tree Financial Corporation, claimant, Respondent, v. Michael S. BOSWELL, et al., Respondents Below, Uniprop Homes, Inc., a Florida corporation, et al., Appellants.
    No. A04-161.
    Court of Appeals of Minnesota.
    Oct. 19, 2004.

      James A. Sanford, Paige M. Fitzgerald, Stephenson & Sanford, P.L.C., Wayzata, MN, for respondent Conseco Loan Finance Company.
    Thomas Francis DeVincke, Robyn Kay Johnson, Bonner & Borhart, LLP; and Edward S. Adams, University of Minnesota Law School, Minneapolis, MN, for appellants.
    Considered and decided by LANSING, Presiding Judge; SHUMAKER, Judge; and FORSBERG, Judge.

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

   OPINION

LANSING, Judge.

This appeal in an action for replevin of a manufactured home involves a dispute between a sales finance company with a security interest in the home and the corporate manager of the manufactured-home park where the home was abandoned. The district court determined that the home had been abandoned, the management company did not have a removal-and-storage lien, and the sales finance company was entitled to possession. We affirm the district court’s determinations and reject the management company’s claim that the failure to join the Minnesota Department of Public Safety and the Anoka County Sheriffs Department deprived the court of jurisdiction to grant declaratory relief.

FACTS

Conseco Loan Finance Company is engaged in the business of financing the purchase of manufactured homes. In this capacity, Conseco provided the financing for Michael Boswell and Hope Lemieux to purchase a manufactured home, and Boswell and Lemieux signed a manufactured-home retail installment contract and security agreement. The contract provided that failing to remit monthly payments would result in a default, authorizing Conseco to accelerate the contract and repossess the manufactured home. The record shows that Conseco’s lien was perfected with the Minnesota Department of Public Safety in January 1999.

Boswell and Lemieux leased a lot in a Blaine manufactured-home park, owned and operated by Uniprop Homes, Inc. They placed their manufactured home on the lot and paid rent under the lease from April 1998 until December 2001. In January 2002 Uniprop sent them a ten-day notice of nonpayment of rent as a precursor to an eviction action. Conseco received a copy of the notice. Thereafter, Uniprop initiated an eviction action and obtained a writ of recovery for the rented lot on February 5, 2002.

Beginning in December 2001, Boswell and Lemieux failed to remit their monthly retail installment payments to Conseco. Conseco sent them a notice of default and right to cure on February 4, 2002, stating that if they failed to cure within thirty days, Conseco would exercise its right to repossess. Conseco was unable to locate Boswell and Lemieux to personally serve the notice of default or to serve the summons and complaint for the ensuing re-plevin action. Conseco served them by publication, with the first publication appearing on April 12, 2002.

On the same day, Uniprop published a notice of public sale of the manufactured home as abandoned property to satisfy its claim for $2,107 in storage and preservation costs. Uniprop had secured the manufactured home, but had not moved it from the rented lot. The Anoka County Sheriffs Department conducted an execution sale on May 3, 2002. Uniprop, the only bidder at the sale, purchased the home for $1. The undisputed fair market value of the home at the time of the sale was $36,000.

Conseco amended its complaint in the replevin action to add Uniprop as a defendant and to add a request for judgment declaring Conseco’s ownership of the home or, in the alternative, providing that it be listed as a secured party on the certificate of title. The district court granted Conse-co temporary possession of the home pending the hearing. In its response to the amended complaint, Uniprop asserted the affirmative defense that Conseco had failed to join parties necessary to the declaratory judgment action.

The district court granted Conseco’s motion for summary judgment and granted Conseco the immediate and permanent right to possession of the home. The court concluded that even though Uniprop had a claim for storage and preservation of the abandoned home, this claim did not provide a basis for a removal-and-storage lien and, therefore, Uniprop’s claim was subordinate to Conseco’s perfected security interest.

Uniprop appeals, asserting that (1) it had a landlord’s lien under Minn.Stat. § 504B.365 (2002) or a statutory possesso-ry lien under Minn.Stat. § 514.18 (2002) for reasonable storage and preservation costs, which took priority over Conseco’s secured interest and was enforceable by public sale; and (2) the district court erred by issuing its declaratory judgment absent joinder of the Minnesota Department of Public Safety and the Anoka County Sheriffs Department.

ISSUES

I. Does a landlord who stores a defaulting tenant’s manufactured home on the rental premises have a landlord’s lien under Minn.Stat. § 504B.365 (2002) or a possessory lien under Minn.Stat. § 514.18 (2002) that would take priority over a previously perfected security interest in the property?

II. Are the Minnesota Department of Public Safety and the Anoka County Sheriffs Department necessary parties for the court to provide declaratory relief in the replevin action?

ANALYSIS

I

A summary judgment based' on application- of a statute to undisputed facts is a legal determination that we review de novo. Wiegel v. City of St. Paul, 639 N.W.2d 378, 381 (Minn.2002). To determine whether a statute has been correctly applied, we focus on the words of the statute to “ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2002). If the meaning is plain and unambiguous we apply that meaning as a manifestation of legislative intent. Kersten v. Minn. Mut. Life Ins. Co., 608 N.W.2d 869, 874-75 (Minn.2000).

Article 9 of the Uniform Commercial Code governs a security interest in personal property in Minnesota. See Minn.Stat. § 336.9-109(a) (2002) (stating Article 9 applies to transactions that create security interest in personal property or fixtures by contract). The retail installment contract by which Boswell and Lemieux purchased the manufactured home specified that the home would be considered personal property, and that designation is not disputed in this litigation. It is also undisputed that the contract created a purchase-money security interest in the home. See Minn. Stat. § 336.1-201(37) (2002) (defining UCC “security interest” as “an interest in personal property or fixtures which secures payment or performance of an obligation” under law in effect at time of transaction; definition revised under 2004 Minn. Laws ch. 162, art. 1, § 10); see also Minn.Stat. § 336.9-103 (2002) (defining purchase-money security interest). Finally, it is undisputed that Conseco had perfected its purchase-money security interest in 1999 as stated in a confirmation of lien perfection issued by the Minnesota Department of Public -Safety. See Minn.Stat. §§ 168A.01, subd. 3, 168A.05, 168A.17, subd. 2, 168A.18 (2002) (providing that the “department,” defined as the registrar of motor vehicle's, shall issue a certificate of title for a manufactured home so long as personal■ property tax is,paid; governing method of perfecting a security interest under this chapter; stating department will mail a certificate of title showing name and address of secured party).

Except as otherwise provided under the UCC, Article 9 provides that “a security agreement is effective according to its terms between the parties, against purchasers of the collateral, and against creditors.” Minn.Stat. § 336.9-201(a) (2002). Uniprop contends that MinmStat. § 504B.365, subd. 3 (2002), authorized its assertion of a landlord’s lien against the home, that this lien was not subject to the provisions of the UCC, and that it could be enforced by sheriffs execution sale without regard to Conseco’s security interest. See Minn.Stat. § 336.9-109(d)(l) (2002) (stating inapplicability of Article 9 to landlord’s liens); see also Minn.Stat. Ann. § 336.9-109 U.C.C. cmt., para. 10 (West 2002) (noting that Article 9 generally applies only to consensual security interests in personal property and excludes landlord’s liens).

Under Minn.Stat. § 504B.365, subds. 3(a)-3(c), “[i]f the defendant’s personal property is to be stored in a place other than the premises, the officer shall remove all personal property of the defendant at the expense of the plaintiff’ and, if the defendant does not pay the expenses of removing the property, “the plaintiff has a lien on all the personal property for the reasonable costs and expenses incurred in removing, caring for, storing, and transporting it to a suitable storage place,” which may be enforced by execution and public sale. (Emphasis added.) For personal property that the landlord does not remove, Minn.Stat. § 504B.365, subd. 3(d), states, 7i]f the defendant’s personal property is to be stored on the premises, the officer shall enter the premises ... and the plaintiff may remove the defendant’s personal property. Section 504B.271 applies to personal property removed under this paragraph.” (Emphasis added.) Specifically addressing abandonment of property on rental premises, Minn.Stat. § 504B.271, subd. 1 (2002), provides that “[t]he landlord has a claim against the tenant for reasonable costs and expenses incurred in removing the tenant’s property and in storing and caring for the property.” (Emphasis added.)

The plain language of Minn.Stat. § 504B.365, subd. 3, and its related section, Minn.Stat. § 504B.271, subd. 1, furnishes two distinct remedies for the landlord if the tenant abandons personal property after an eviction. First, if the landlord chooses to remove the property from the premises and store it in another location, Minn.Stat. § 504B.365, subd. 3(a)-(c), authorizes a lien on the property for reasonable costs for removal and storage of the property, which may be enforced by execution and public sale. Alternatively, should the landlord elect to store the property on the premises, Minn. Stat. § 504B.365, subd. 3(d), read in conjunction with Minn.Stat. § 504B.271, subd. 1, provides that the landlord has a claim, rather than a lien, against the tenant for reasonable costs and expenses incurred in storing and caring for the property. This interpretation is consistent with commentary addressing the interpretation of the statutes. See Lawrence R. McDonough, Wait a Minute! Residential Eviction Defense is Much More Than “Did You Pay the Rent?, ” 28 Wm. Mitchell L.Rev. 65, 141 n. 370 (2001) (stating that “[w]hen property is to be stored on the premises ... the landlord has only a claim, and not a lien, for the reasonable removal and storage costs”).

Uniprop cites a previous version of the unlawful detainer statute, which created a landlord’s lien for “reasonable costs and expenses incurred for removing [a tenant’s] personal property [after eviction] and for the proper caring and storing [of] the same.” Minn.Stat. § 566.17 (1988) (repealed by 1998 Minn. Laws ch. 253, § 80). But the legislature recodified landlord-tenant statutes in 1998, and the statutory provisions at issue, Minn.Stat. §§ 504B.271 and 504B.365, were enacted in 1999. 1999 Minn. Laws ch. 199, art. 1 §§ 35, 53.

The plain language of the recodi-fied statutes provides for distinct remedies for a landlord who stores the property on the rental premises and a landlord who incurs moving and off-site storage costs by transferring the property to another location. See Honeymead Prods. Co. v. Aetna Cas. & Sur. Co., 270 Minn. 147, 150, 132 N.W.2d 741, 743 (1965) (stating presumption that a legislative amendment to a statute demonstrates an intention to change existing law). Thus, by the plain terms of the governing statute, Uniprop’s act of storing the manufactured home on the rental premises after the tenants’ default created only a claim for reasonable storage and preservation costs, rather than a landlord’s lien, and the UCC applies to establish the priority of Conseco’s secured interest over that claim.

Additionally, Uniprop argues that the application of Minn.Stat. § 514.18 (2002) provided Uniprop with a possessory lien, which, under the UCC, takes priority over Conseco’s security interest. See Minn. Stat. § 336.9-333(b) (2002) (stating that possessory lien on goods has priority over security interest in the goods unless lien is created by a statute expressly providing otherwise).

Uniprop’s argument overlooks the fact that Minn.Stat. § 514.18, by its terms, is limited to a party who stores or cares for personal property “at the request of the owner or legal possessor of [the] property” in certain specified situations, such as a bailment. Minn.Stat. § 514.18, subd. 1. Thus, the statute applies to liens arising from transactions in the normal course of business and does not support an interpretation creating a lien for Uniprop’s act of storing and caring for abandoned property on rental premises following an eviction. See Aircraft Repair Servs. v. Stambaugh’s Air Serv., Inc., 175 F.3d 314, 320 (3d Cir.1999) (defining possessory liens as consensual in nature, arising from agreement between owner of goods and artisan rendering services for those goods); see also Minn.Stat. Ann. § 336.9-333 U.C.C. emt., para. 2 (West 2002) (defining possessory liens as “statutory liens whose effectiveness depends on the lien- or’s possession of goods with respect to which the lienor provided services or furnished materials in the ordinary course of its business”). For these reasons we agree with the district court’s determination that no possessory lien attached to Uniprop’s claim and Conseco’s security interest remains superior to Uniprop’s interest as an unsecured subsequent creditor.

Under the UCC, a security interest continues in collateral notwithstanding its sale or disposition unless the secured party authorized the disposition. Minn.Stat. § 336.9-315(a)(l) (2002). Conseco did not authorize the sheriffs sale of the manufactured home. Thus, its security interest was not extinguished by the sale to Uni-prop, and the district court did not err in granting summary judgment declaring Conseco’s right to permanent possession of the manufactured home.

II

The Minnesota Declaratory Judgment Act authorizes the courts to declare rights, status, and other legal relations that are affected by a statute, ordinance, contract, or franchise. Minn.Stat. §§ 555.01, 555.02 (2002). In a declaratory judgment action, “all persons shall be made parties who have or claim any interest which would be affected by the declaration.” Minn.Stat. § 555.11 (2002). This joinder requirement “is consonant with but broader than the joinder requirement in [Minn. R. Civ. P.] 19.” Unbank Co., LLP v. Merwin Drug Co., 677 N.W.2d 105, 108 (Minn.App.2004); see Minn. R. Civ. P. 19 (listing factors for determining whether party is indispensable).

Uniprop argues that the district court erred by adjudicating the propriety of the acts of the Minnesota Department of Public Safety and the Anoka County Sheriffs Department without the presence of those agencies in the action. But the agencies’ acts of conducting a sheriffs sale and issuing a new certificate of title after the sale were purely ministerial, and those acts did not implicate their legislatively mandated power or discretionary authority. Cf. Frisk v. Bd. of Educ., 246 Minn. 366, 382, 75 N.W.2d 504, 514 (1956) (declining to declare rights under teachers retirement act when administering board was not party to declaratory judgment action). The district court’s order granting Conseco permanent possession of the manufactured home did not address the actions of the sheriffs department in conducting the sale, but only determined that the sale did not have the legal effect of extinguishing Conseco’s prior secured claim. Similarly, the district court’s declaration of error in failing to list Conseco as a secured party on the certificate of title did not affect any interest of the department of public safety because the issuance of a certificate of title after an involuntary transfer is not conclusive of the rights of the parties involved. See Minn.Stat. § 168A.12, subd. 3 (2002) (stating action of issuing new certificate of title is not conclusive of rights of owner or secured party named in old certificate). Thus, because the Minnesota Department of Public Safety and the Anoka County Sheriffs Department were not necessary parties to the declaratory judgment action, the district court did not lack jurisdiction.

DECISION

A residential landlord who stores the personal property of a defaulting tenant on the rental premises does not have a landlord’s lien or a statutory possessory lien in the property. ■ We affirm the district court’s summary judgment in the replevin action determining that Conseco’s perfected security interest in the manufactured home is superior to Uniprop’s claim for preservation and storage costs arising from its on-site storage of the home. The district court did not err in concluding, as a matter of law, that the sheriffs sale failed to extinguish Conseco’s interest in the property. Finally, the joinder of governmental agencies that exercised solely ministerial duties in connection with the property in dispute was not necessary for the district court to exercise declaratory relief.

Affirmed.


text:
    Sara THORSON, Appellant, v. BILLY GRAHAM EVANGELISTIC ASSOCIATION, Respondent.
    No. A04-404.
    Court of Appeals of Minnesota.
    Oct. 19, 2004.

      Anne M. Radolinski, Wade S. Davis, Fredrikson & Byron, P.A., Minneapolis, MN, for respondent.
    Considered and decided by PETERSON, Presiding Judge; STONEBURNER, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

Appellant brought an employment-discrimination action under the Minnesota Human Rights Act (MHRA), alleging that respondent terminated her employment on the basis of her sexual orientation. The district court granted respondent’s motion for summary judgment, finding respondent exempt from the sexual-orientation provisions of the MHRA because it is a nonprofit religious association not engaged in a secular business activity. We affirm.

FACTS

Respondent Billy Graham Evangelistic Association (BGEA) promotes Christianity through a combination of five events, productions for film and television,- and publication of books, pamphlets, and magazines. Its employees are required to profess Christianity and participate in devotional activities.

Appellant Sarah Thorson is a professed Christian who has worked at BGEA since June 1971. She started as a mailroom clerk and has continued in mailroom functions over the course of her career. In one position, as a night supervisor, she led other employees in prayer during meetings. Thorson’s most recent position was as a bulk-mail services coordinator, in which she prepared mail and reported shipping for various BGEA departments. Her responsibilities have never involved development or production of evangelical media.

In February 2002, two employees reported seeing Thorson kissing another woman in the parking lot at work. At a meeting on February 21, 2002, two supervisors confronted Thorson with the allegations. Thorson admitted that she is a lesbian. One of her supervisors advised that, unless Thorson reconsidered her “lifestyle,” she would be terminated.

Following the meeting, Thorson was placed on leave. Thorson sent a letter to BGEA on March 7, 2002, asserting that her sexual orientation did not affect her employment and requesting that she be allowed to continue working for BGEA. BGEA did not respond to this request. Based on a determination that Thorson’s sexual orientation was inconsistent with BGEA’s mission, BGEA terminated Thor-son’s employment on June 24, 2002.

Thorson brought a lawsuit against BGEA, claiming that BGEA had discriminated against her on the basis of sexual orientation, in violation of the MHRA, Minn.Stat. § 363A.08, subds. 2 (barring discharge of employee because of sexual orientation), 4 (barring employer from requesting that employee furnish information as to sexual orientation) (Supp.2003). BGEA moved for summary judgment, contending that it was exempt from the sexual-orientation provisions of the MHRA. The district court entered summary judgment in favor of BGEA. This appeal followed.

ISSUE

Is the Billy Graham Evangelistic Association exempt from the Minnesota Human Rights Act’s prohibition against discrimination in employment based on sexual orientation?

ANALYSIS

Thorson argues that, because she was engaged in a secular business activity as a mailroom employee, BGEA is not exempt from the operation of the MHRA. On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, which we review de novo. Lefto v. Hoggsbreath Enters. Inc., 581 N.W.2d 855, 856 (Minn.1998). In doing so, we view the evidence in the light most favorable to the party against whom judgment was entered. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

Under limited circumstances, nonprofit religious associations are exempt from the MHRA’s prohibition against discrimination based on sexual orientation. The exemption provides in relevant part:

Nothing in this chapter prohibits any religious association ... that is not organized for private profit, or any institution organized for educational purposes that is operated ... by a religious association ... that is not organized for private profit, from: ...
(2) in matters relating to sexual orientation, taking any action with respect to education, employment, housing and real property, or use of facilities. This clause shall not apply to secular business activities engaged in by the religious association ... the conduct of which is unrelated to the religious and educational purposes for which it is organized.

Minn.Stat. § 363A.26 (Supp.2003). The critical question for our consideration is the meaning of “secular business activities ... the conduct of which is unrelated to the religious and educational purposes for which [a nonprofit religious association] is organized.”

Our primary purpose, when considering the meaning of this statute, is to give effect to legislative intent as expressed in the statutory language. Minn. Stat. § 645.16 (2002); State v. Koenig, 666 N.W.2d 366, 372 (Minn.2003). When the meaning of a statute’s language is clear, we interpret the language according to its plain meaning without resorting to further construction. Minn.Stat. § 645.16; Molloy v. Meier, 679 N.W.2d 711, 723 (Minn.2004). But when the language of a statute is reasonably susceptible of more than one meaning, we may employ principles of construction to resolve the ambiguity. Minn. Stat. § 645.16; Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn.2002).

To determine whether a workplace activity is a secular business activity, Thor-son asserts that the activity should be evaluated according to the job responsibilities of the particular employee. BGEA counters that the activity should be viewed in the context of the employer’s purpose and mission as a whole to determine whether the business activity is secular or religious. Because we conclude that the statutory phrase “secular business activities” is reasonably susceptible to more than one interpretation, we employ applicable principles of construction to determine its meaning here. See Minn.Stat. § 645.16 (listing appropriate considerations to use when resolving ambiguity).

Legislative history, including records of legislative hearings and changes in statutory language, may be used to resolve ambiguity in statutory language. Minn. Stat. § 645.16(7); Baker v. Ploetz, 616 N.W.2d 263, 269 (Minn.2000). Of relevance here are the statements made by the bill’s sponsors during legislative floor debates. One of the House sponsors, Representative Ron Abrams, offered this observation regarding the statutory language at issue here:

[U]pon receiving a complaint ... dealing with, let’s say, the termination of a pastor’s secretary because of her [sexual orientation], ought to have the right not to be investigated_[W]hat the intention here is to give the broadest possible recognition and scope to the fundamental American value of separation of church and state....
I asked the Commissioner of Human Rights ... under [a prior version of the bill], if they received a complaint dealing with a secretary or a choir director or a janitor, and they found probable cause that the person was terminated solely based upon sexual orientation, would the department prosecute? And his unequivocal answer was “yes.” This language changes it to “no.”

Floor Debate on H.F. 585, 78th Legis. (Mar. 18, 1993). He also explained that certain secular activities of a religious association, such as running a “for-profit printing press” or a hospital would remain subject to the MHRA. Id.

Similar concerns were raised in the Senate, leading to these comments by the Senate sponsor, Senator Allen Spear:

The religious exemption that’s in the bill was worked out with the joint-religious legislative coalition and other interested religious groups. Since then we’ve had more discussions, and have decided to broaden the amendment and make it absolutely clear that religious organizations would not be forced to hire people who adhere to a lifestyle that is contrary to their religious beliefs.
Some few people did come to me and say, “Why don’t we just make it an absolute exemption.” And this is what this amendment does. There is one clause in there that simply clarifies that while we are giving absolute exemption to churches, synagogues, religious institutions and societies, we would not be covering secular business activities that are not related to the purpose of the church. So we’re talking about things, perhaps, like Augsburg Publishing, or something like that, which is a commercial secular business enterprise. But all the hiring, the renting of facilities, that are done by the church or the religious organizations would be exempt under this amendment.

Floor Debate on S.F. 444, 86th Legis. (Mar. 18,1993). Later in the debate Senator Joann Benson asked Senator Spear:

In those religious organizations, let’s say a school or whatever, [the religious association exemption] then allows the person who hires to hire everyone in that school, from top to bottom, whether they’re teachers or cooks or whatever, if they look at this as a whole entity?

Id. Senator Spear responded:

Madame Chair, that’s correct. It would allow them to hire as they choose without regard to the restrictions of this bill for everyone that they hire.
The question had been raised ... about what the words meant [under a prior version of the bill] that it is “necessary to promote the religious tenets, teachings' or principles for which it is established or maintained.” And there was some confusion whether that meant just the ministers or the teachers but it would also include the cooks and the janitors. By removing that language we make it clear that the exemption includes everybody.

Id.

The MHRA’s prohibition against discrimination in employment based on sexual orientation applies to the secular business activities of a nonprofit religious association that are “unrelated to the religious and educational purposes for which [the religious association] is organized.” Minn.Stat. § 363A.26(2) (emphasis added). In accordance with legislative intent, we conclude that the phrase “secular business activities” is properly considered in light of the purpose and mission of the entire entity, not the job responsibilities of the individual employee. Here, BGEA’s activities are exclusively evangelical and are entirely related to the religious purpose for which it is organized. It is, therefore, exempt from the sexual orientation provisions of the MHRA.

Thorson maintains that, because any activity of a nonprofit religious association may be deemed to serve a religious purpose, under the construction adopted here, there are no secular business activities that are governed by the MHRA. In effect, Thorson argues, the exception swallows the rule. We disagree. Indeed, the statute must be construed, whenever possible, in a manner that gives effect to all its provisions. Minn.Stat. § 645.16; Vlahos v. R & I Const, of Bloomington, Inc., 676 N.W.2d 672, 679 (Minn.2004). It is evident from the legislative history that, when a nonprofit religious association is engaged in ordinary commerce, such as operating a hospital or printing press, the exemption will not cover these secular activities. Conversely, BGEA’s business is the promotion of its evangelical ministry. Its business activities are not a matter of ordinary commerce. Rather, they are exclusively in furtherance of BGEA’s religious purpose. Even though we determine that BGEA is not engaged in a secular business activity, our holding does not preclude a contrary result when a nonprofit religious association’s business activity cannot be attributed to its religious purpose.

Citing our recent holding in Egan v. Hamline United Methodist Church, 679 N.W.2d 350, 355-56 (Minn. App.2004), review denied (Minn. June 29, 2004), Thorson also argues that we should apply the “ministerial exception” of Title VII of the Civil Rights Act to determine whether her employment is a secular business activity. This federal constitutional doctrine, developed in accordance with the Free Exercise Clause, prevents the operation of Title VII of the Civil Rights Act when it potentially encroaches on matters of religious practice. See Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1168-69 (4th Cir.1985) (applying exception to bar suit by woman denied pastoral position because state’s scrutiny of church’s choice violates the free exercise clause); McClure v. Salvation Army, 460 F.2d 553, 560 (5th Cir.1972) (establishing exception because applying Title VII to employment relationships between church and minister results in an unconstitutional encroachment into religious freedom). But in Egan we did not conclusively adopt the ministerial exception, noting that it “is more demanding than the Minnesota statutory test.” 679 N.W.2d at 356. To effectuate legislative intent and give proper effect to the religious-association exemption of the MHRA, we decline to apply the ministerial exception here.

Both parties raise several additional statutory and constitutional claims, none of which were decided by the district court. Because there is no present controversy to be resolved on these issues, we decline to consider them here. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (appellate court must generally consider only matters argued before and decided by the district court); Edina Cmty. Lutheran Church v. State, 673 N.W.2d 517, 521-22 (Minn.App.2004).

DECISION

Because BGEA’s business activities are exclusively related to its evangelical ministry, they are not secular business activities unrelated to the religious and educational purposes for which BGEA is organized. Accordingly, BGEA is exempt from the sexual-orientation provisions of the Minnesota Human Rights Act. The district court applied the law correctly when it entered summary judgment in favor of BGEA.

Affirmed.