author: HALBROOKS, Judge. DAVIES, Judge

text:
    In the Matter of the Petition for IMPROVEMENT OF COUNTY DITCH NO. 86, BRANCH 1, COUNTY OF BLUE EARTH, Minnesota, Respondent, v. Blaine PHILLIPS, et al., Appellants. Wayne Pestka, et al., Appellants, v. County of Blue Earth, Krengel Brothers Construction, Inc., Respondents.
    Nos. C7-99-2051, C4-99-2105.
    Court of Appeals of Minnesota.
    July 25, 2000.

      Ross Arneson, Blue Earth County Attorney; and Avid Wendland, Wendland Timmerman, P.A., Blue Earth, for respondent County of Blue Earth.
    Charles K. Frundt, Frundt & Johnson, Ltd., Blue Earth, for appellants.
    Considered and decided by DAVIES, Presiding Judge, HALBROOKS, Judge, and HUSPENI, Judge.

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

   OPINION

HALBROOKS, Judge.

In the context of a petition for improvement of County Ditch No. 86, Branch 1, appellants Blaine Phillips and Wayne Pest-ka contend that the district court erred by dismissing, first, their challenge to the adoption of the amended viewers’ report by respondent County of Blue Earth and, second, their separate action seeking a declaratory judgment and injunction to stop construction of the drainage project by respondent Krengel Brothers Construction, Inc. Appellants claim that (1) under Minn.Stat. § 103E.511 (1998), the original viewers’ report was final and the Blue Earth County Board lacked the authority to approve the amended report; (2) pursuant to MinmStat. § 103E.606, subd. 2 (1998), the construction contract could not be awarded until there was a final determination that benefits of the improvement exceeded the costs; (3) dismissal of the claim for injunctive relief was error without a factual determination as to whether or not appellants would suffer irreparable injury; and (4) the stipulation signed by the parties did not preclude appellants from subsequently appealing the effect of the drainage authority’s orders on non-owned parcels of land. We affirm.

FACTS

Two petitions, one for improvement of the lower part of Branch 1 of Blue Earth County Ditch No. 86 and one for the upper part, were consolidated by the Blue Earth County Board in its capacity as a drainage authority. The improvement was established by order dated December 23, 1997. No one appealed from the establishment order itself pursuant to MinmStat. § 103E.095 (1998). But Minn.Stat. § 103E.341 (1998) provides that:

The drainage authority must dismiss the proceedings and petition, by order, if it determines that:
(1) the benefits of the proposed drainage project are less than the total cost, including damages awarded * * *.

MinmStat. § 103E.341, subd. 1.

Appellants and some other affected individuals challenged the benefits-and-damages awards contained in the establishment order, pursuant Minn.Stat. § 103E.091 (1998). In total, the determination of benefits and damages for 13 parcels of land were appealed. Appellants, who each own four parcels of land, appealed only the benefits and damages allocated to parcels they own. Their consolidated appeals were tried to a jury in January 1999. During trial, the jury heard testimony from the viewers that they had made an error in the capitalization of the projected stream of income resulting from the anticipated enhanced productivity of the land as a result of the improvement of Branch No. 1. As a result of the error, the benefit amounts originally calculated by the viewers were increased in each class of land. Appellants were first advised of this error two weeks before trial and appellants’ counsel rigorously cross-examined the viewers on this issue at trial.

On January 20,1999, the jury returned a verdict, finding benefits in the amount of $293,720 and damages in the amount of $29,438. • The net effect of the jury’s determination was that the cost of the improvement exceeded the benefits by $28,950. Appellants filed a motion for new trial. Before the entry of judgment, the parties drafted and signed .a stipulation of settlement dated March 26, 1999, the day the hearing on appellants’ post-trial motion was scheduled. The stipulation, relating to the 13 parcels then at issue, was subsequently incorporated into the trial court’s findings of fact, conclusions of law, and order for judgment.

The stipulation contained the following provisions, among others:

The above entitled parties hereby stipulate and agree to settle and resolve all issues between the parties relating to the determination of benefits and damages in the above proceeding as follows:
1. That the jury verdict as to benefits and damages will become the benefits and damages as determined for Appellants land in the improvement for County Ditch No. 86, Branch 1, Blue Earth County, Minnesota.
⅜ ⅜ ⅜ ⅜
5. By entering into this Stipulation, the Appellants are not estopped and do not waive their right to challenge the feasibility of the ditch if the estimated costs and damages exceed the benefits.

It was also agreed that (1) the appellants would be paid for loss of crops if easements were not flagged prior to planting; (2) contractors would remove and replace the topsoil on disturbed ground; (3) appellants would be paid their damages in cash up front rather than have them offset against benefits; and (4) appellant Phillips would get an extra field crossing. The total cost of these negotiated terms was about $10,000.

Prior to this stipulated settlement, the Blue Earth County Board had accepted bids for construction of the improvement project.. Assuming the amount of the lowest bid received for construction cost, appellants filed a petition with the county board seeking dismissal of the entire proceeding on the grounds that the total cost of the improvement exceeded benefits by $22,994.86, making the project unlawful.

On June 7, 1999, one of the original petitioners for improvement to the upper part of Branch 1, who had not been a party to appellants’ original lawsuit, filed a petition with the county board. The petition sought to amend the viewers’ report to correct the errors in the original report-. The amended report increased total benefits to $324,186, making the project lawful.

A hearing on separate petitions filed by appellants and respondents was held on August 9, 1999. Following the hearing, the county board issued an order adopting the amended viewers’ report determining the benefits to be $324,186 and the projected cost of the improvement to be $313,577. The August 9,1999 order did not affect the benefits or damages for appellants’ previously appealed parcels. Based on this order, the benefits of the project exceeded the cost.

Within 30 days after the entry of the county board’s order, appellants, although they do not own any of the affected parcels, served and filed their notices of appeal to the district court pursuant to Minn. Stat. § 103E.091 with respect to each parcel of land that had an increase in benefits resulting from the order. Respondents served a motion to dismiss the appeals on September 8,1999.

At an October 5, 1999 meeting of the county board, an order was entered, over appellants’ objections, awarding the construction contract to respondent Krengel Brothers Construction, Inc. The contract amount was $129,834.60. On October 15, 1999, appellants served a separate summons and complaint seeking declaratory and injunctive relief against respondents.

A combined hearing on the appellants’ motion for a temporary restraining order and respondents’ motion for dismissal was held on October 26, 1999. Respondents argued that dismissal was proper on the grounds that appellants had settled all their claims on March 26, 1999, and were precluded from appealing from an increase of the benefits on land owned by other people. Following the hearing, the district court dismissed appellants’- statutory appeal pursuant to Minn.Stat. § 103E.091. The court then dismissed appellants’ declaratory judgment and injunctive relief action as moot. No memorandum was filed. This appeal follows.

ISSUES

1. Did a stipulation of settlement entered into by the parties act as a bar to any future appeals relating to the same drainage project?

2. Is res judicata applicable to appeals from administrative-agency decisions specifically related to drainage-improvement projects?

3. Does a landowner seeking to challenge the amount of benefits or damages awarded in an establishment order for a drainage project have standing to appeal awards that relate exclusively to lands not owned by that party?

4. Was the district court’s dismissal of appellants’ action for declaratory judgment and injunctive relief proper?

ANALYSIS

1. Standard of Review

Where the trial court reviewing an agency decision makes independent factual determinations and otherwise acts as a court of first impression, this court applies the “clearly erroneous” standard of review. Where, on the other hand, the trial court is itself acting as an appellate tribunal with respect to the agency decision, this court will independently review the agency’s record.

In re Hutchinson, 440 N.W.2d 171, 175 (Minn.App.1989) (quotation and citations omitted), review denied (Minn. Aug. 9, 1989). In this instance, the district court based its decisions on legal rather than factual considerations. This court conducts a de novo review of such issues and is not bound by the legal conclusions of the district court or the agency itself. Id. Furthermore, statutory construction is a question of law, which we review de novo. Sorenson v. St Paul Ramsey Med. Ctr., 457 N.W.2d 188,190 (Minn.1990).

2. The District Court’s Dismissal of Appellants’ Second Appeal of Benefits and Damages

A. Stipulation of Settlement

Respondents maintain that appellants’ second appeal to the district court is barred by the stipulation of settlement entered into by the parties on March 26, 1999, following the jury verdict in appellants’ challenge to the benefits and costs determined for parcels they and others owned. Respondents contend that they would not have entered into the stipulation if the threat of future litigation was not precluded in a “global” fashion.

“Stipulations are treated and interpreted as binding contracts.” Emerick ex rel. Howley v. Sanchez, 547 N.W.2d 109, 112 (Minn.App.1996) (citation omitted). But the parties dispute the meaning of paragraph five of the stipulation.

A contract provision is unambiguous when its meaning can be ascertained “without any guide other than knowledge of the facts on which the language depends for meaning.” VanderLeest v. VanderLeest, 352 N.W.2d 54, 57 (Minn.App.1984) (citations omitted). Absent ambiguity, it is not proper for a court to interpret a stipulation or a contract. See Starr v. Starr, 312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977) (court cannot construe stipulation language that is plain and unambiguous); Telex Corp. v. Data Prods. Corp., 271 Minn. 288, 295, 135 N.W.2d 681, 686-87 (1965) (if a contract is clear, “it is neither necessary nor proper in construing it to go beyond the wording of the instrument itself’). Paragraph five of the parties’ stipulation is not ambiguous. It specifically reserves a right to challenge the feasibility of the ditch if the estimated costs and damages exceed the benefits. The stipulation is not “global” and could not entirely preclude a subsequent appeal the way it is drafted.

B. Res Judicata

Respondents next contend that res judicata applies as a bar to the second appeal. Determining the availability of res judicata is a legal question, which. this court reviews de novo. Paulos v. Johnson, 597 N.W.2d 316, 319-20 (Minn.App.1999) (citing Hibbing Educ. Ass’n v. Public Employment Relations Bd., 369 N.W.2d 527, 529, (Minn.1985)), review denied (Minn. Sept. 28, 1999). Ordinarily, a final judgment on the merits serves as an absolute bar to a second suit involving identical parties and the same cause of action, and conclusively determines every matter that was litigated or may have been litigated. Beutz v. A.O. Smith Harvestore Prods., Inc., 431 N.W.2d 528, 531 (Minn.1988) (citation omitted).

Respondents maintain that the benefits allocated to non-owned lands could have been litigated in the first appeal. This is correct. See Minn.Stat. § 103E.091, subd. 2(a) (1998). Appellants correctly point out, however, that the action of the county board with respect to raising the benefits on the non-owned lands had not occurred prior to the judgment being entered on the first appeal.

Res judicata is also considered an equitable doctrine that must be applied in light of the facts of each individual case. R.W. v. T.F., 528 N.W.2d 869, 872 n. 3 (Minn.1995). The court must focus on whether applying res judicata would work an injustice on the party against whom it is urged. Id. This court has previously stated that the doctrine of res judicata may not be as applicable to administrative agencies as it is to court decisions because of fundamental differences between the two:

Court decisions are reflected in a judgment which is docketed and final; the trial court’s work is at an end with regard to the matter. In the administrative process, however, agencies typically exert continuing supervisory and regulatory jurisdiction over the affected person. In addition, administrative policies are in a constant state of change, and administrative decision-makers are not only adjudicating but often policy-making. Finally, administrative agencies are charged by a legislative body with protecting public health, safety, and welfare, not merely resolving past adjudicative facts in light of existing law.

Wangen v. Commissioner of Pub. Safety, 437 N.W.2d 120, 123 (Minn.App.1989) (quoting W. Keppel & D. Gilbert, Minnesota Administrative Practice and Procedure § 624 at 119-20 (1982)), review denied (Minn. May 12, 1989). Given the facts of this case, the application of res judicata would not be equitable.

C. Non-Owned Property and Standing

Respondents contend that the statute does not allow a party to appeal only non-owned lands. This issue is one of first impression.

The procedure for appealing benefits and damages is set out as follows:

Procedure for appeals related to benefits and damages, (a) A person who appeals the amount of benefits or damages may, include benefits and damages affecting property not owned by the appellant. Notice of the appeal must be served to the auditor and to the owner or occupant of property included in the appeal or to the attorney representing the property owner in the proceedings.
(b) The appellant must file a notice of appeal with the auditor within 30 days after the order to be appealed is filed. The notice must state the particular benefits or damages appealed and the basis for the appeal. Within 30 days after the notice is filed, the auditor must file the original notice with the court administrator of the district court.

Minn.Stat. § 103E.091, subd. 2 (1998) (emphasis added). Respondents emphasize the language “may include * * * ” in subsection (a). They argue that appellants, in seeking to appeal only non-owned lands, are attempting to read subdivision 2 to permit bifurcation of their appeals.

“The objective of statutory interpretation is to ascertain and effectuate the intent of the legislature.” State v. Coauette, 601 N.W.2d 443, 445 (Minn.App. 1999) (citing Minn.Stat. § 645.16 (1998)), review denied (Minn. Dec. 14, 1999). As a fundamental principle of statutory interpretation, this court “should look first to the specific statutory language and be guided by its natural and most obvious meaning.” Heaslip v. Freeman, 511 N.W.2d 21, 22 (Minn.App.1994), review denied (Minn. Feb. 24, 1994).

It is clear that the legislature intended to allow for appeals when it enacted Minn. Stat. § 103E.091, subd. 2. But respondents contend that if the legislature had intended to allow an individual to appeal non-owned property only, it could have used the language “may appeal” in place of “may include.”

As indicated by Minn.Stat. § 645.16 (1998), the “consequences of a particular interpretation” is an important consideration when ascertaining legislative intent. If Minn.Stat. § 103E.091 is interpreted to allow a party to unilaterally appeal property that the party does not own, as appellant argues, the consequence of such an action would be to confer standing on that party to intrude on the affairs of others when the party has no interest of its own.

“Standing is a jurisdictional question to be determined by this court.” In re Implementation of Util. Energy Conservation Improvement Programs, 368 N.W.2d 308, 312 (Minn.App.1985) (citation omitted).

In the absence of a discernible legislative intent to the contrary, it has long been established that a person has standing to invoke judicial review of agency action only if that person suffers “injury in fact” as a consequence of that action.

In re Sandy Pappas Senate Comm., 488 N.W.2d 795, 797 (Minn.1992) (citation omitted).

[T]he fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a * * * court and not on the issues he wishes to have adjudicated.

Sundberg v. Abbott, 423 N.W.2d 686, 688 (Minn.App.1988) (quoting Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968)), review denied (Minn. June 29, 1988). “A party must have more than an abstract concern and the injury must not be merely speculative.” State v. Knutson, 523 N.W.2d 909, 911 (Minn.App. 1994) (citation omitted), review denied (Minn. Jan. 13, 1995). “To have standing, a plaintiff * * * must allege specific, concrete facts showing [they have] been personally harmed.” Villars v. Provo, 440 N.W.2d 160, 162 (Minn.App.1989) (citation omitted). Appellants have not alleged an injury in fact because they have not demonstrated that they were personally harmed by the amended viewers’ report adopted on August 9,1999.

Appellants’ ultimate objective has been to thwart the improvement project in its entirety. To do so, appellants challenged the benefits/cost ratio in their own trial and, following settlement of those claims, seek to reframe the same issue in the name of other parcel owners. In this case, the county board’s actions, with regard to the non-owned property, had no impact on appellants’ benefits-and-damages assessments. The amended order adopted by the county board redetermined benefits and cost oh parcels not involved in the jury verdict. The resulting effect is to advance completion of the drainage project, to which the appellants are opposed. But there is no “injury in fact” to appellants. Therefore, appellants lack standing to appeal benefits-and-damages decisions affecting only non-owned property. The district court’s dismissal of the appeal on this basis was appropriate.

3. The District Court’s Dismissal of Appellants’ Action for Declaratory Judgment and Injunctive Relief

Appellants challenge the validity of the drainage authority’s award of the improvement contract while an appeal of benefits was still pending, based on Minn.Stat. § 103E.505, subd. 2 (1998), which provides:

If an appeal regarding the determination of benefits and damages is made within 30 days after the order establishing the drainage project has been filed, a contract may not be awarded until the appeal has been determined, unless the drainage authority orders the contract awarded.

(Emphasis added.) The drainage authority ordered the contract awarded to Kren-gel Construction at a hearing held October 5,1999.

At the October 26, 1999 hearing, appellants acknowledged that their declaratory judgment/injunctive relief claim would be moot if the appeal were dismissed. The district court included this admission in its order dismissing the declaratory judgment and injunctive relief action.

Because of our decision that dismissal of this matter was proper on the ground that appellants lack standing, we do not reach this issue.

DECISION

Appellants lack standing to challenge the drainage authority’s adoption of an amended viewers’ report that modified benefits-and-damages awards relating exclusively to property not owned by appellants.

Affirmed.

DAVIES, Judge

(dissenting).

I respectfully dissent.

Although I agree with the majority in all other respects, the majority gives an unreasonably narrow reading to Minn.Stat. § 103E.091 (1998). Subdivision 1 of that section is a broad grant of authority to landowners to

appeal to the district court from a recorded . order of a drainage authority made in a drainage proceeding that determines:
(1) the amount of benefits;
(2) the amount of damages;
(3) fees or expenses allowed; or
(4) whether the environmental and land use requirements and criteria * * * are met.

Despite this broad authority to appeal, the majority finds in subdivision 2 a limitation on this authority deriving from the word “include.” They read it as if it said the person who appeals “may include benefits and damages affecting property not owned by the appellant” only in conjunction with an appeal of the amount of benefits or damages to their own property. I read the provision differently; I believe it authorizes an appeal limited to the benefits and damages to the property of others, or to the total benefits and costs, so long as the appellant has. standing because the project affects the appellant directly. The majority focuses on the word “include,” but it ignores the larger context in which it is used.

There are many situations in which a landowner may have a reason to appeal a drainage decision, yet have no reason to challenge the benefit allocation to its own land. One that comes to mind is when the landowner is satisfied with the amount of benefits allocated to its own property, but feels that the benefits allocated to other properties (and the assessments against them) are inappropriately low. The issue the party wants to raise in that circumstance relates to other people’s properties, rather than its own. Why should an appellant not be able to bring to the district court the issue of benefit to other properties, without complicating the case with a phony claim relating to the appellant’s own property?

Another example is when landowners do not want a project to go ahead and will themselves bear some of the cost if it does. Why should they not be able to pursue their claim of overall imbalance between benefit and cost, an imbalance that destroys the legality of the project, without complicating the case with a baseless claim about their own benefits?

The action of the appellants should be allowed to proceed. They are directly affected by this project. If they were not, contrary to the concern expressed by the majority, the ordinary judicial rules of standing would apply to prevent them from intruding into the affairs of others.

      . "Viewers” are defined in Minn.Stat. § 103E.305 (1998) as three disinterested residents of the state qualified to assess benefits and damages to property.


source: Caselaw Access Project

author: WILLIS, Judge.

license: Public Domain

text:
    Georgina Y. STEPHENS, Relator, v. BOARD OF REGENTS OF the UNIVERSITY OF MINNESOTA, et al., Respondents.
    No. C1-99-2109.
    Court of Appeals of Minnesota.
    July 25, 2000.
    Review Denied Sept. 26, 2000.

      Karl A. Oliver, Oliver & Associates, PLC, Roseville, for relator.
    Mark B. Rotenberg, General Counsel, University of Minnesota, Thomas J. Schu-macher, Associate General Counsel, Minneapolis, for respondents.
    Considered and decided by LANSING, Presiding Judge, RANDALL, Judge, and WILLIS, Judge.

       PAGE, J., took no part in the consideration or decision of this case.

   OPINION

WILLIS, Judge.

Relator Georgina Y. Stephens seeks review by writ of certiorari of the decisions of the University of Minnesota to reassign her from her duties as associate vice president and treasurer and to not renew her contract with the university. We discharge the writ of certiorari.

FACTS

In 1997, relator Georgina Y. Stephens accepted a position as the University of Minnesota’s “Associate Vice President for Finance and Operations and Treasurer.” In September 1999, a former employee in Stephens’s department alleged to the university that Stephens had engaged in misconduct in litigation to which Stephens was party before she was employed by the university. After a preliminary investigation, university officials met with Stephens on October 18, 1999, and asked her to comment on her conduct during that litigation and her failure to disclose that litigation in a residential-loan application she made in 1993. On October 20, the university told Stephens that she would be placed on paid administrative leave while it investigated further to determine whether, and to what extent, her conduct outside the university affected her ability and fitness to continue in her position.

On November 8, 1999, university officials interviewed Stephens as part of the university’s continuing investigation. During this interview, Stephens acknowledged that (1) in 1993, she failed to disclose in a residential-loan application that she was a party to a lawsuit, despite the application’s request for disclosure of such information; (2) in 1996, a Minnesota district court com eluded that Stephens had lied in submissions to the court, and the court would no longer meet with her without a court reporter present; (3) the same district court later “specifically found” that Stephens’s purported real-estate transactions at issue were a “fake and a sham”; (4) Stephens failed to file federal and state income-tax returns for “several years” before the university reached its decisions; and (5) in both her 1998. chapter 7 bankruptcy petition and her 1999 chapter 13 bankruptcy petition, Stephens failed to disclose her husband’s bankruptcy filings despite the petitions’ requests for disclosure of such information. Also on November 8, Stephens filed a grievance with the university grievance office but later suspended her grievance, pending the outcome of the university’s investigation.

On November 10, 1999, the university associate general counsel responsible for the investigation concluded that the district court’s findings in 1996, Stephens’s failure to disclose required information in her bankruptcy petitions, and Stephens’s failure to file her tax returns “each separately and together make her uninsurable” under the university’s fidelity-and-crime insurance policy. In a November 20,1999, letter from the university’s president, Mark Yudof, the university notified Stephens that it had concluded that it would be “inappropriate” for her to return to her then-current position and duties at the university, but that the university would “hon- or the remainder of [her] contract either by reassigning [her] or by some other arrangement.” She then “restarted” the grievance process ■ by filing an amended grievance on November 21.

In a December 1,1999, letter from President Yudof and Patricia Spence, chair of the university’s board of regents, the university notified Stephens that her contract, which was to expire on June 30, 2000, would not be renewed. On December 3, 1999, the university notified Stephens that “[e]ffective immediately, you are relieved of all your current associate vice president and treasurer responsibilities.” Stephens was assigned to other duties and was to maintain her salary level and title of associate vice president until the end of her contract and her title of treasurer until the board of regents removed the title.

A grievance officer, acting under the University of Minnesota Grievance Policy, scheduled a meeting between President Yudof and Stephens for December 15, 1999. But in a letter dated December 14, one day after Stephens petitioned this court for certiorari review of the university’s decisions to reassign her and to not renew' her contract, Stephens notified the university that she was withdrawing from the university’s grievance process and can-celled the meeting with President Yudof.

Among the numerous claims Stephens includes in her petition for certiorari review, Stephens alleges that, through its decisions to reassign her and to not renew her contract, the university defamed her, retaliated against her because of her public statements regarding the university, violated her due-process rights, and discriminated against her because she had filed for bankruptcy. Stephens also alleges that the university breached her contract and violated its own policies in reaching the decisions challenged here, which she claims are arbitrary and capricious.

ISSUES

1. Are materials submitted to this court that were not considered by the university in reaching the decisions challenged in this certiorari appeal properly part of the appellate record?

2. Is Stephens’s claim that the university discriminated against her, in violation of 11 U.S.C. § 525 (1994), because she filed for bankruptcy properly brought by writ of certiorari?

3. Is Stephens’s challenge by writ of certiorari to the university’s decisions that adversely affected her employment properly before this court despite her failure to exhaust the university’s grievance process?

ANALYSIS

Stephens appeals by writ of certio-rari the University of Minnesota’s decisions to reassign her from the duties she had as associate vice president and treasurer and to not renew her contract. See generally Minn.Stat. § 606.01-.06 (1998) (providing for review by writ of certiorari); Shaw v. Board of Regents, 594 N.W.2d 187,191 (Minn.App.1999) (holding that as a general rule, certiorari is “the only method available for [judicial] review of a university decision”), review denied (Minn. July 28, 1999). Our certiorari review of a decision of the university is limited to an inspection of the record developed by the university in reaching its decision and is necessarily confined to questions affecting the jurisdiction of the decision-maker, the regularity of the proceedings, and, regarding the merits of the dispute, whether the decision was “arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.” Ganguli v. University of Minnesota, 512 N.W.2d 918, 921 (Minn.App.1994) (quoting Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992) (quotation omitted)).

I. Requests to Strike and to Supplement Record

Stephens asks this court to strike eight exhibits from the record provided by the university. The record in a certiorari appeal comprises the papers, exhibits, and transcripts of any testimony considered by the body whose decision is to be reviewed. See Minn. R. Civ.App. P. 110.01; Minn. R. Civ.App. P. 115.04 (providing that rule 110 should be applied to certiorari proceedings “[t]o the extent possible”); In re Demotion of Dillenberger, 486 N.W.2d 17, 21 (Minn. App.1992). This court may not base its decision on matters outside of the record on appeal. Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn.1977). Thus, this court will grant a party’s request to strike materials that are not part of the appellate record. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn.App.1992), aff'd, 504 N.W.2d 758 (Minn.1993).

Stephens asks this court to strike exhibits 1 and 2, which are affidavits of university officials dated January 10, 2000. Because the university decisions challenged here were made no later than December 3,1999, it is clear that these affidavits were not considered by the university in reaching those decisions. We therefore grant Stephens’s request to strike the two affidavits.

Stephens also asks this court to strike exhibits 3 through 8 because, she alleges, (1) she had not seen these exhibits until the university submitted them as part of the record in response to this court’s writ of certiorari; (2) there is no evidence that the exhibits were generated before the university reached its decisions; (3) there is no evidence that the university considered the exhibits; and (4) there is no indication that the submitted exhibits are complete reproductions of the documents considered. But it is of no legal significance that Stephens did not previously view the entirety of the record developed by the university in reaching its decisions, and Stephens provides no citation to legal authority or any legal analysis in support of her request to strike exhibits 3 through 8. We therefore deny her request. See Minn. R. Civ.App. P. 128.02, subd. 1(d) (providing that appellant’s argument must be accompanied by citations to relevant authority and analysis); State, Dep’t of Labor & Industry v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.1997) (declining to address issue not adequately briefed); Whalen ex rel. Whalen v. Whalen, 594 N.W.2d 277, 282 (Minn.App.1999) (declining to address issues unsupported by citation to relevant law or legal analysis).

In her reply brief, Stephens requests leave to supplement the record with additional documents, pursuant to Minn. R: Civ.App. P. 110.05. Rule 110.05 provides that this court, “on motion by a party or on its own initiative,” may direct that the record be supplemented with a document that was considered by the administrative decision-maker but is either omitted from the record “by error or accident” or is misstated in the record. Minn. R. Civ.App. P. 110.05; Minn. R. Civ.App. P. 115.04; see Stanek v. A.P.I., Inc., 474 N.W.2d 829, 831-32 (Minn.App.1991) (supplementing district court record on court’s own initiative), review denied (Minn. Oct. .31, 1991). But Stephens raised this request in her reply brief, rather than by filing a motion in the form required by Minn. R. Civ.App. P. 127. See Minn. R. Civ.App. P. 127 (describing required appellate court motion procedure). And even if her request to supplement the record were properly before us, Stephens does not assert that the documents she seeks to add to the record were considered by the university. We therefore deny Stephens’s request to supplement the record.

The university requests that this court strike Stephens’s affidavit dated February 11, 2000. We grant the university’s request because the affidavit could not have been considered by the university in reaching its decisions challenged here. See Plowman, 261 N.W.2d at 583; Fabio, 489 N.W.2d at 246. The university also requests that we strike “many other documents outside the [rjecord” that are attached to Stephens’s brief, without identifying those documents with particularity. We are unwilling to grant a request to strike where the requesting party fails to identify specifically the materials it wants stricken and, therefore, deny the university’s broad request. Cf. Minn. R. Civ.App. P. 127 (providing that motion “shall state with particularity the grounds” for relief sought).

II. Scope of Certiorari Review

In Stephens v. Board of Regents, No. C1-99-2109 (Minn.App. Dec. 30, 1999) (order), this court questioned whether Stephens’s claims of defamation, retaliation, violation of due process, and bankruptcy discrimination should “be dismissed as outside the scope of a certiorari appeal.” We subsequently deferred resolution of these questions to our determination on the merits of Stephens’s appeal. Stephens v. Board of Regents, No. C1-99-2109 (Minn. App. Jan. 18, 2000) (order).

A. Defamation, Retaliation, and Violation of Due Process

Stephens’s claims of defamation, retaliation, and violation of due process are not properly before us. She offers no citation to legal authority and no legal analysis in support of her defamation claim. And Stephens only cites to the constitutional provision she alleges applies to her retaliation claim and offers no supporting legal analysis. We decline to address these claims and, therefore, need not determine whether the claims are within the scope of certiorari review. See Minn. R. Civ.App. P. 128.02, subd. 1(d); Wintz Parcel Drivers, 558 N.W.2d at 480; Whalen, 594 N.W.2d at 282; State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn.App.1997) (declining to address issue unsupported by legal analysis). And because Stephens presents no argument in her brief alleging any deprivation of due process, she has waived that claim. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982).

B. Bankruptcy Discrimination

Both Stephens and the university argue that Stephens’s allegation that the university discriminated against her in violation of the Bankruptcy Code may be brought by writ of certiorari. “[I]n the absence of an adequate method of review or legal remedy,” judicial review of the decisions of administrative bodies “must be invoked by writ of certiorari.” Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). But when a party has a statutory cause of action by which to pursue a claimed statutory violation by an administrative decision-maker, review of that claim by writ of certiorari is not appropriate even if “prosecution of the alleged violation * * * may implicate at least some aspects of the [administrative] decision.” Willis v. County of Sherburne, 555 N.W.2d 277, 283 (Minn.1996); Manteuffel v. City of North St. Paul, 538 N.W.2d 727, 729-30 (Minn.App.1995).

Stephens argues that the university’s decisions to reassign her from her duties as associate vice president and treasurer and to not renew her contract violate the proscription in 11 U.S.C. § 525 (1994) of discriminatory treatment of persons who have filed for bankruptcy. But there is a statutory cause of action for redress of discrimination in violation of section- 525. Lesniewski v. Kamin, 246 B.R. 202, 213 (Bankr.E.D.Pa.2000) (stating that a person alleging violation of section 525 has a private right of action under section 525 and 28 U.S.C. § 1471); McKibben v. Titus County Appraisal Dist., 233 B.R. 378, 384-85 (Bankr.E.D.Tex.1999) (holding that a person alleging violation of section 525 has a cause of action pursuant to 42 U.S.C. § 1983). Because Stephens may pursue a statutory cause of action for redress of her allegation that the university violated section 525, her claim that the university discriminated against her because she filed for bankruptcy is beyond the scope of cer-tiorari review.

III. Stephens’s Failure,to Exhaust the University’s Grievance Process

The university argues that Stephens’s claims are not properly before us because she failed to exhaust the remedies available to her under the University of Minnesota Grievance Policy. In support of this contention, the university relies on the doctrine of exhaustion of administrative remedies.

The applicability of the. doctrine of exhaustion of administrative remedies to a dispute brought by a university employee involving a university decision is & matter of first impression for Minnesota appellate courts. This doctrine was discussed in the context of a different sort of dispute involving the university in State ex rel. Sholes v. University of Minnesota, 236 Minn. 452, 54 N.W.2d 122 (1952). In Sholes, the petitioner, as a citizen-taxpayer of Minnesota, sought a writ of mandamus to compel the board of regents to adopt and enforce rules and regulations prohibiting the use of university property or facilities for the’ teaching or dissemination of religious doctrine. 236 Minn, at 453, 54 N.W.2d at 124., The university -argued that the writ of mandamus should be discharged because the petitioner had failed to exhaust administrative remedies within the university. Id. at 455, 54 N.W.2d at 125.

The supreme court declined to extend the doctrine of exhaustion of administrative remedies to disputes brought by a citizen-taxpayer. The court noted that even if it were to assume that the board of regents “could be considered to occupy a position analogous to an administrative agency in the application of this doctrine, there has been no action taken.” Id. at 457, 54 N.W.2d at 126. This rendered the doctrine inapplicable because the doctrine “usually presupposes thát some action has been taken by the administrative agency.” Id. The court also noted that the University of Minnesota is not an administrative agency. See id. at 456-57, 54 N.W.2d at 126. Rather, the board of regents is

a body corporate, created by our constitution and endowed by it with the power to govern the institution which it controls, free from interference by either [the] legislature or the- courts so long as it stays within the scope of its constitutional powers.

Id. at 456, 54 N.W.2d at 126.

The supreme court instead turned to “a doctrine common to the law of corporations.” Id. at 458, 54 N.W.2d at 127. The court first noted that the.

people were the “[in]corporators of this institution of learning” and “by their Constitution, conferred the entire control and management of its affairs and property” upon the board of regents.

Id. (quoting State ex rel., University of Minnesota v. Chase, 175 Minn. 259, 268, 220 N.W. 951, 955 (1928)). The Sholes court likened the petitioner to a corporate shareholder and found “applicable by analogy and controlling here” the doctrine that a shareholder “cannot maintain suit against the corporation to redress a corporate wrong until he has done all in his power to obtain within such corporation redress for the wrong complained of.” Id. at 458, 460, 54 N.W.2d at 127-28 (quotation omitted). The supreme court held that “[i]t is only a matter of fairness and a requirement of orderly procedure that a citizen be -required to seek relief from the board of regents before proceeding in court.” Id. at 461-62, 54 N.W.2d at 129. Thus, while the court found that the doctrine of exhaustion of administrative remedies was not applicable, the court, in effect, applied the substance of the doctrine — that a party seeking judicial relief from a decision of an administrative body must have first exhausted her right to seek relief within that body. See generally City of Richfield v. Local No. 1215, Int’l Ass’n of Fire Fighters, 276 N.W.2d 42, 51 (Minn. 1979) (defining doctrine of exhaustion of administrative remedies).

In determining whether Stephens must exhaust the remedies available to her under the University of Minnesota Grievance Policy before she may seek review of the university’s decisions by writ of certio-rari, we too must be mindful of the unique grant of authority given to the university by our state’s constitution. The University of Minnesota was incorporated by Terr. L.1851, c. 3. Upon the grant of statehood to Minnesota, the people of the state

by their constitution chose to perpetuate the government of the university which had been created by their territorial legislature in a board of regents, and the powers they gave are not subject to legislative or executive control.

Fanning v. University of Minnesota, 183 Minn. 222, 225, 236 N.W. 217, 219 (1931); see Minn. Const. art. XIII, § 3. Thus, the university is “a unique constitutional corporation.” Winberg v. University of Minnesota, 499 N.W.2d 799, 801 (Minn. 1993). And the board of regents is “a ‘body corporate’ with [the] power to govern.” Chase, 175 Minn, at 265, 220 N.W. at 953; State ex rel. Peterson v. Quinlivan, 198 Minn. 65, 67, 268 N.W. 858, 860 (1936) (stating that the board of regents has the “duty to enact laws for the government of the [u]niversity” (quoting Terr. L.1851, c. 3, § 9)). University rules governing employee grievances are enacted pursuant to this constitutional grant of authority. Chronopoulos v. University of Minnesota) 520 N.W.2d 437, 441 (Minn. App.1994), review denied (Minn. Oct. 27, 1994); see Winberg, 499 N.W.2d at 803 n. 3 (stating that “the internal management of the [u]niversity has been constitutionally placed in the hands of the regents alone”). And this court may not interfere with the board of regents “in the proper exercise of their function in governing the [university’s] affairs.” Bailey v. University of Minnesota,) 290 Minn. 359, 360, 187 N.W.2d 702, 704 (1971); see Sholes, 236 Minn, at 456, 54 N.W.2d at 126 (stating that the board of regents is endowed by the Minnesota constitution with the power to govern the university “free from interference by [the] legislature or the courts”).

Given the constitutional authority of the university, and the fact that university rules governing employee grievances are enacted pursuant to this authority, we find analogous two circumstances that require the exhaustion of internal processes before seeking redress in the courts.

First, we find similar to Stephens’s employment relationship with the university the relationship between unionized employees and their employers. As a general rule, unionized employees cannot seek redress in the courts for an employer’s claimed violation of an employee’s rights under a collective-bargaining agreement (“CBA”) without first exhausting the grievance process that the CBA provides. Rowan v. K.W. McKee, Inc., 262 Minn. 366, 375-76, 114 N.W.2d 692, 697-98 (1962). The premise underlying this rule is that if an employee is allowed to seek redress in the courts before exhausting the grievance process provided in a CBA, the “collective bargaining agreement is effectively undermined.” Schuyler v. Metropolitan Transit Comm’n, 374 N.W.2d 453, 455 (Minn.App.1985). Likewise, were we to allow a university employee to seek redress in this court before she has exhausted the grievance process applicable to her position, we would effectively undermine the rules, and thus' the constitutional authority, of the university. Cf. McKart v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194 (1969) (stating that allowing party to circumvent internal agency remedies could weaken authority of agency).

Second, while the' supreme court in Sholes determined that it is not 'precisely applicable, we find analogous the doctrine of exhaustion of administrative remedies, which the university urges us to apply. This doctrine is a development of federal administrative law and has been adopted in Minnesota regarding state court review of state administrative decisions. International Ass’n of Fire Fighters, 276 N.W.2d at 51; Sholes, 236 Minn, at 457, 54 N.W.2d at 126. Under this doctrine, “[i]t is fundamental that before judicial review, of administrative proceedings will be permitted, the appropriate channels Of administrative appeal- must be followed.” International Ass’n of Fire Fighters, 276 N.W.2d at 51. Exhaustion is required because it serves two important purposes — protecting the autonomy of administrative agencies and promoting judicial efficiency. See McCarthy v. Madigan, 503 U.S. 140, 145, 112 S.Ct. 1081, 1086, 117 L.Ed.2d 291 (1992). Both of these purposes would be served by applying the substance of the doctrine here.

In the federal context, the autonomy due to an administrative agency is grounded in deference to Congress’s delegation of authority to coordinate branches of the federal government. See'id. 'Because an administrative agency is invested by Congress with certain powers and duties, courts should not ordinarily interfere with an agency’s execution of its powers until its internal-review processes are exhausted or unless it has clearly exceeded its jurisdiction. See McKart, 395 U.S. at 196, 89 S.Ct. at 1663. This deference reflects recognition that ah agency must have the opportunity to correct its- own errors “before it is haled into federal court.” McCarthy, 503 U.S. at 145, 112 S.Ct: at 1086. Additionally, allowing a party to circumvent administrative processes could weaken the authority of an agency “by encouraging people to ignore its procedures.” McKart, 395 U.S. at 195, 89 S.Ct. at 1663.

The University of Minnesota, however, is not a mere administrative agency — it is much more than that. See Winberg, 499 N.W.2d at 801; Sholes, 236 Minn, at 456, 54 N.W.2d at 126. The university’s powers and duties are invested by our state’s constitution. E.g., Winberg, 499 N.W.2d at 801. Thus, the deference owed by courts to administrative agencies as required by the doctrine of exhaustion of administrative remedies is at least as important here because of the deference owed by this court to the university in executing its constitutional powers and duties. And because “the internal management of the [u]niversity has been constitutionally placed in the hands of the regents alone,” id. at 803 n. 3, the university should also be allowed to correct its own errors through its internal processes before being haled into court. Additionally, allowing a university employee to circumvent the grievance process applicable to her position would encourage employees to ignore the university’s grievance processes and thereby weaken the constitutional authority of the institution.

The interest in promoting judicial efficiency served by the doctrine of exhaustion of administrative remedies would also be served by applying the substance of the doctrine here. If the university is allowed to address its own alleged errors through its grievance processes, the need for parties to resort to judicial review may be mooted, or at least piecemeal appeals may be avoided. See McCarthy, 503 U.S. at 145,112 S.Ct. at 1086-87. And if a dispute remains unresolved after review by the university through its grievance processes, exhaustion of those processes will likely produce a record that facilitates subsequent judicial review. See id. at 145-46, 112 S.Ct. at 1087; see also University of Minnesota Grievance Policy, § IV(D) (requiring hearing panel to prepare decision consisting of statement of issues, contentions of parties, findings of fact, and opinion).

Thus, in summary, the following factors guide our decision here: (1) the supreme court’s holding in Sholes requiring a citizen-taxpayer to seek redress from the board of regents before proceeding to court; (2) the deference owed by this court to the university because of its status under our state’s constitution and the fact that the university enacted rules governing employee grievances pursuant to its constitutional authority; (3) the fact that to allow an employee to circumvent university grievance processes would weaken the university’s constitutional authority; and (4) our determination that the interests of judicial efficiency would be furthered by requiring exhaustion of university grievance processes. We conclude, therefore, that an employee of the university who challenges a university decision adversely affecting her employment must exhaust the grievance process applicable to her position before she seeks review of the decision by writ of certiorari.

Stephens has failed to exhaust the applicable university grievance process. A party may challenge a university decision imposing discipline by filing a grievance with the university grievance office. University of Minnesota Grievance Policy, § II, IV(A). A grievance officer then arranges an informal “Phase I” meeting between the grievant and the party responsible for the decision challenged. Id. at § IV(B). If the grievant is not satisfied with the results of this meeting, the officer then arranges a “Phase II” meeting between the grievant and the supervisor of the person imposing discipline. Id. at § IV(C). If the grievant desires further review, the officer then arranges a “Phase III” hearing before a panel. Id. at § IV(D).

After Stephens filed her amended grievance on November 21, 1999, the grievance officer contacted President Yudof, and a Phase I meeting was scheduled for December 15, 1999. But Stephens cancelled her meeting with President Yudof and, therefore, withdrew from the university’s grievance process before exhausting it.

Although Stephens initially sought review of the university’s decisions by filing a grievance, she now argues that the University of Minnesota Grievance Policy is not applicable to her former position with the university. In 1997, Stephens accepted a position as the university’s “Associate Vice President for Finance and Operations and Treasurer.” This “academic administrative” position is subject annually to “nonrenewal” and is governed by the university’s Academic Professional and Administrative Staff Policies and Procedures, An administrative staff member “may be disciplined for just cause” and may grieve imposition of discipline by filing a grievance with the university grievance officer. Academic Professional and Administrative Staff Policies and Procedures, § 1(C)(7); see University of Minnesota Grievance Policy, § 11(A) (providing that grievance policy is applicable to academic administrative employees). Thus, it is clear that the grievance process established by the University of Minnesota Grievance Policy is applicable to Stephens’s former position with the university.

Stephens also argues that this court may review her claims despite her failure to exhaust the process established by the grievance policy because, she alleges, it would have been futile for her to do so. As a general rule, a party may seek judicial review before the party exhausts internal-remedy processes where exhaustion would be futile. See, e.g., Rowan, 262 Minn, at 375-76, 114 N.W.2d at 697-98 (holding that employee must exhaust grievance procedures established in CBA unless employee can show that resort to those procedures would be futile); International Ass’n of Fire Fighters, 276 N.W.2d at 51 (stating that doctrine of exhaustion of administrative remedies “is not applicable where it would be futile to seek such redress”). But see Sholes, 236 Minn, at 461, 54 N.W.2d at 128 (finding when petitioner alleged “numerous acts of questionable legality * * * it will be time enough for the courts to intervene” after petitioner shows that board of regents “has been requested to act and has failed to take such corrective action as may be necessary”). Whether exhausting internal remedies would have been futile is a question of law for this court. See Leaon v. Washington County, 397 N.W.2d 867, 874 (Minn.1986).

Stephens argues that because any hearing panelist would be “directly or indirectly responsible” to President Yudof or the board of regents, no disinterested persons could be impaneled to hear her grievance. Thus, Stephens argues, exhausting the applicable university grievance process would have been futile. We disagree.

In Ellingson & Assocs., Inc. v. Keefe, 410 N.W.2d 857 (Minn.App.1987), the party seeking judicial review argued that exhaustion of administrative remedies would be futile because the workers’ compensation rehabilitation review panel comprised the commissioner of labor and industry, who had previously ruled against the party, and his appointees. We found that resort to the panel would not be futile. Ellingson, 410 N.W.2d at 860. First, we noted that the panel was required to “fairly consider the merits of each allegation.” Id. We then noted that the circumstances of Ellingson were no different from “countless imaginable cases preceded by decisions or statements of the [c]ommis-sioner” or his department’s staff. Id. Finally, we noted that “meaningful review” of the panel’s decision' would be available through both the workers’ compensation court of appeals and the Minnesota Supreme Court. Id.

The members of a university Phase III grievance panel are even further removed from potential presidential influence than the panel discussed in Ellingson .was removed from the influence of the commissioner. For example, the president does not sit on a Phase III panel. University of Minnesota Grievance Policy, § IV(D). Rather, such a panel comprises one member of the university grievance board chosen by the grievant, one designee of either the vice-president or the president, and one hearing officer, selected by the grievance officer, who is of the same employee category as the grievant. Id. And the grievance policy provides that “[n]o panelist shall have a direct interest in the grievance.” Id. Additionally, if we were to conclude that Stephens’s pursuit of a grievance would have been futile, we would in effect be concluding that the pursuit of any grievance arguably involving a decision of. the university’s president would be futile, .a conclusion we are unwilling to reach. Finally, if Stephens had exhausted the grievance process and was dissatisfied with the result, she would still have had judicial review available to her. We therefore conclude as a matter of law that it would not have been futile for Stephens to have exhausted. the university’s grievance process.

Thus, because Stephens failed to exhaust the grievance process applicable to her position with the university, and because exhaustion of that process would not have been futile, we discharge the writ of certiorari issued in response to her December IB, 1999, petition. Stephens’s claims that the university breached her contract and that the decisions challenged here were arbitrary, capricious, and made in violation of the university’s policies are, therefore, not properly before us.

The University of Minnesota is clearly not “above the law.” Fanning, 183 Minn, at 226, 236 N.W. at 219. When a party has exhausted the remedies available to her at the university, we will reverse the university’s decision if it is arbitrary, oppressive, unreasonable, fraudulent, reached under an erroneous theory of law, or without any evidence to support it. See, e.g., Ganguli, 512 N.W.2d at 921-23. But Stephens has purposefully circumvented the university’s processes by withdrawing her grievance and instead asking this court to intervene by writ of certiorari. The supreme court.has repeatedly warned of preemptive judicial intervention in the university’s execution of its constitutionally vested powers, and we decline to intervene in such a manner here.

DECISION

We grant, in part, Stephens’s, request to strike portions of the record submitted by the university. We deny Stephens’s request to supplement the record. Additionally, we grant, in part, the university’s request to strike portions of Stephens’s appendix.

Stephens cannot pursue by writ of cer-tiorari her claim that the university discriminated against her, in violation of 11 U.S.C. § 525 (1994), because she filed for bankruptcy. And because Stephens failed to exhaust the university’s grievance process applicable to her position with the university, and because exhaustion of that process would not have been futile, we discharge the writ of certiorari issued in response to Stephens’s December 13, 1999, petition.

Writ of certiorari discharged.

      . This court affirmed the district court’s decision, though not specifically addressing this particular finding of fact, in Stephens v. Chrysler First Fin. Servs. Corp., No. C0-97-153, 1997 WL 457448 (Minn.App. Aug. 12, 1997), review denied (Minn. Sept. 12, 1997).

      . The record shows that Stephens and her husband failed to file income-tax returns from 1994 through 1997.

      . This court may consider cases, statutes, rules, and scholarly journal articles not presented or considered below. See Pairview Hosp. & Health Care Servs. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 340 n. 3 (Minn. 1995); Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co., 480 N.W.2d 368, 376-77 (Minn.App.1992), review denied (Minn. Mar. 26, 1992). Thus, those portions of Stephens's brief and appendix that contain or refer to such materials are properly before us.

      . Stephens identified in her statement of the case significantly fewer claims to be raised on appeal than she did in her petition for certio-rari review. Thus, in our December 1999 order, we limited our questions to the parties regarding the scope of certiorari review to those claims that were identified in Stephens's statement of the case. But Stephens purports to raise in her brief the additional claims she identified in her petition, including allegations of race discrimination, sex discrimination, denial of equal protection, interference with free speech, tortious interference with prospective business advantage, tortious interference with contract, fraud and misrepresentation, publication of private facts, intrusion upon seclusion, breach of fiduciary duty, violation of the Minnesota government data practices act (Minn.Stat. §§ 13.01-99 (1998)), intentional infliction of emotional distress, and indemnification for costs and attorney fees. We decline to address these claims, however, because Stephens provides no citation to relevant authority or legal analysis in support of any of these claims. See Minn. R. Civ.App. P. 128.02, subd. 1(d); Wintz Parcel Drivers, 558 N.W.2d at 480; Whalen, 594 N.W.2d at 282; Modern Recycling, 558 N.W.2d at 772.

        . Additionally, we question whether any Minnesota state court has jurisdiction to hear Stephens’s claim that the university violated title 11. See 28 U.S.C. § 1334(a) (1994) (providing that, except as provided in 28 U.S.C. § 1334(b), federal district courts have “original and exclusive jurisdiction of all cases under title 11”); id. at § 1334(b) (providing that federal district courts have "original but not exclusive jurisdiction of all civil proceedings arising under title 11”); Celotex Corp. v. Edwards, 514 U.S. 300, 307, 115 S.Ct. 1493, 1498-99, 131 L.Ed.2d 403 (1995) (construing "not exclusive" language of section 1334(b) to refer to bankruptcy court jurisdiction under 28 U.S.C. § 157).

      . According to Stephens’s notice of appointment from the university, her position is given a class title of "9303.” Under the university’s Academic Professional and Administrative Staff Policies and Procedures, § 1(B), all positions of a class title “93xx” are "academic administrative” positions and are subject to the Academic Professional and Administrative Staff Policies and Procedures.

      . Because Stephens’s challenge to the university’s decisions is not properly before us, we need not address her contentions that portions of the record must be suppressed under 18 U.S.C. §§ 2511, 2515 (1994), and the Fourth Amendment.

      . Because Stephens failed to exhaust any phase of the university’s grievance process, we do not address whether a party would be precluded from seeking judicial review before exhausting “Phase IV’’ arbitration in which a grievant agrees to binding arbitration and purportedly ”waive[s] and release[s] all rights to pursue substantially the same claim in any other forum.” University of Minnesota Grievance Policy, § IV(D).


author: MILLER, Chief Justice.

text:
    2000 SD 93
    STATE of South Dakota, Plaintiff and Appellee, v. Jason Todd AUGUSTINE, Defendant and Appellant.
    No. 21154.
    Supreme Court of South Dakota.
    Considered on Briefs May 30, 2000.
    Decided July 19, 2000.
    Mark Barnett, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Ramon A. Roubideaux, Rapid City, South Dakota, Attorney for defendant and appellant.
   MILLER, Chief Justice.

[¶ 1.] Jason Augustine appeals his conviction on four separate counts of child abuse, claiming (1) that such conviction violated his constitutional right against double jeopardy and (2) that there was insufficient evidence to sustain the jury’s verdict. We affirm.

FACTS

[¶ 2.] On October 20, 1998, daycare workers noticed what appeared to be cigarette burn marks on 4-year-old female M.A.’s ankle, forehead, fingers and toe. They contacted the police and the Department of Social Services to investigate. M.A. was taken to the emergency room of a local hospital, where she told the examining pediatrician that there were cigarette burns on her body. After studying the injuries, the doctor confirmed them to be consistent with cigarette burns.

[¶ 3.] M.A.’s father, Jason Augustine, was twice interviewed by the police regarding her injuries. At the first interview, he denied any responsibility for the injuries. However, during the second interview, which was videotaped, he admitted to using a cigarette to burn M.A. on several different occasions.

[¶ 4.] Regarding the burns to M.A.’s ankle, Augustine told police that he came home during the early morning hours of October 4, 1998, in an intoxicated state after celebrating his birthday. According to Augustine, while he was sitting on the couch, M.A. awoke, came downstairs and joined him. He told her to go to bed, but she would not, só he reached out to push her away by touching her on the ankle with his cigarette: He recalled seeing sparks fly from the end of the cigarette when it came into contact with her ankle. After being burned once with the cigarette, M.A. would still not go to bed, so Augustine said he burned her a second time on the ankle. After the second burn, he stated that M.A. ran upstairs and he passed out.

[¶ 5.] Augustine further told the police that he inflicted the forehead injury on another occasion at his sister’s house, although he cotdd not remember the exact date. He stated that he had been drinking, and when M.A. misbehaved, he touched her with his cigarette.

[¶6.] The burns to M.A.’s fingers, Augustine told police, were inflicted while he was babysitting M.A. and his other children at home and his wife was at work. According to Augustine, M.A. pushed her sibling, then threw a ball inside the house, which knocked over some CD’s. This angered him, so he burned her on the fingers with his cigarette.

[¶ 7.] Augustine also admitted inflicting the injury to M.A.’s toe. He said that particular injury happened at home when M.A. was misbehaving and kicking him. He said he lost his patience and burned her with his cigarette “in an instant.”

[¶ 8.] In the interview Augustine claimed that each time he burned M.A., he was unfler the influence of alcohol and was experiencing significant stress in his life stemming from arguments with his wife, misbehaving children, and lack of a job. Therefore, he explained that when he became frustrated with M.A.’s misbehavior, he reacted by burning her with a cigarette.

[¶ 9.] Augustine was subsequently charged with four counts of child abuse for the burns to each different body part: Count T related to burns on M.A.’s ankle, Count II pertained to a burn on her forehead, Count III originated from burns on her fingers, and Count IV related to a burp on her toe. A jury trial was held on May 12-13, 1999, during which he was: convicted on all four counts. He appeals, raising two issues:

1. Did the State’s use of the same evidence to support the convictions in all of the counts violate, his constitutional right against double jeopardy?
2. Was the evidence presented at trial sufficient to sustain the jury verdiets?

DECISION

[¶ 10.] 1. Augustine’s constitutional right against double jeopardy was not violated by his conviction on four separate counts of child abuse.

[¶ 11.] The Fifth Amendment to the United States Constitution, as applied to the states by'the Fourteenth Amendment, and Article VI, § 9 of the South Dakota Constitution, provide that no person shall be put into jeopardy twice for the same offense. The double jeopardy clause has been used to guard'against three types of governmental abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. State v. Beck, 1996 SD 30, ¶ 8, 545 N.W.2d 811, 813; State v. Grey Owl, 316 N.W.2d 801, 803 (S.D.1982).

[¶ 12.] Augustine was convicted on four separate counts of abuse or cruelty to a minor in violation of SDCL 26-10-1, which provides: “Any person who abuses, exposes, tortures, torments, or cruelly punishes a minor in a manner which does not constitute aggravated assault, is guilty of a Class 4 felony.” He argues that because the sole distinction between each count was the part of the body injured, the actions “should have been considered a course of conduct which, when combined, resulted in one criminal offense instead of four separate criminal offenses.” We disagree.

[¶ 13.] We have adopted the “same offense” or “same evidence” test when examining claims of double jeopardy. State v. Darby, 1996 SD 127, ¶ 16, 556 N.W.2d 311, 317; State v. Shilvock-Havird, 472 N.W.2d 773, 778 (S.D.1991); State v. Hoffman, 430 N.W.2d 910, 911 (S.D.1988); State v. Seidschlaw, 304 N.W.2d 102, 106 (S.D.1981); State v. Pickering, 88 S.D. 548, 553-54, 225 N.W.2d 98, 100-01 (1975). The test is whether “‘[t]he same act or transaction may constitute two distinct offenses ... if each offense as defined by statute requires the proof of some fact or element not required to establish the other.’ ” Seidschlaw, 304 N.W.2d at 106 (quoting State v. Teutsch, 80 S.D. 462, 468, 126 N.W.2d 112,115 (1964)).

[¶ 14.] The “same evidence” test originated from the United States Supreme Court’s decision in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). There the petitioner was convicted on two violations of the same provision in the Harrison Narcotics Act for selling a drug to the same person on two occasions. In connection with one of those sales, he was also convicted under another provision of the act for selling the drug without a written order. He claimed on appeal that (1) the first two convictions constituted a single offense because they were made to the same purchaser within a brief period of time, and (2) the second and third convictions constituted a single offense because they stemmed from the same transaction.

[¶ 15.] The Supreme Court affirmed all three convictions. Addressing the petitioner’s first issue, which is analogous to the instant case, the Court characterized the two violations of the same statute as isolated transactions, rather than one continuous transaction. It explained the distinction:

“[W]hen the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie. [ ... ] The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately.... If the latter, there can be but one penalty.”

Blockburger, 284 U.S. at 302, 52 S.Ct. at 181, 76 L.Ed. at 308 (quoting Wharton’s Criminal Law § 34 (11th Ed.)).

[¶ 16.] The Court reasoned that since the first sale had been completed, the second sale, even though close in time to the first, was “not the result of the original impulse, but of a fresh one — that is to say, of a new bargain.” Id. at 303, 52 S.Ct. at 181, 76 L.Ed. at 309. In support of its position, the Court cited Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915), wherein it upheld the defendant’s multiple convictions for cutting into numerous mailbags, rejecting his contention that his actions constituted one offense.

[¶ 17.] Regarding Blockburger’s second issue, the Court held that “where the same act [ ] constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309 (citation omitted). It therefore affirmed both convictions for different statutory violations, even though they originated from the same transaction.

[¶ 18.] The above-quoted phrase has been subsequently applied by this Court to cases involving one transaction! which results in different statutory violations, Darby, 1996 SD 127, ¶¶ 14-20; 556 N.W.2d at 317-18; Shilvock-Havird, 472 N.W.2d at 777-78; State v. Groves, 473 N.W.2d 456 (S.D.1991); State v. Michalek, 407 N.W.2d 815 (S.D.1987); State v. Simons, 313 N.W.2d 465 (S.D.1981); Pickering, 88 S.D. at 553-554, 225 N.W.2d at 101; and to cases involving one statute for which there have been multiple violations, as in the present case. State v. Sprik, 520 N.W.2d 595 (S.D.1994); Hoffman, 430 N.W.2d at 911; State v. Waller, 338 N.W.2d 288 (S.D. 1983); Seidschlaw, 304 N.W.2d at 106.

[¶ 19.] In Seidschlaw, we upheld the defendant’s conviction on two counts of first-degree manslaughter in connection with the deaths of two people whom he had hit while eluding police. In holding that double jeopardy did not attach, we concluded that although each conviction was for a violation of the same statute, the death of the particular victim named in each count was a fact the proof of which was required for that but not the other count. 304 N.W.2d at 106. We applied similar reasoning in Waller, where we affirmed the defendant’s conviction on two counts of intentional damage to property for damage sustained both to a car the defendant was driving and the building he drove it into. 338 N.W.2d at 292-93.

[¶ 20.] In Hoffman,, the defendant’s convictions on four separate and specific counts of child abuse were upheld, but his convictions on two general allegations of torment were overturned as violative of double jeopardy. The evidence showed that the defendant struck one of his stepchildren’s head against a truck and that he hit the same child in the face with his fist. Further evidence showed that the defendant struck a second step-child on the head with a bar or rod and that he pulled hair out of the child’s head. We stated, “[t]o support a conviction on six counts originating from this statute [the same child abuse statute at issue here], there must be a separate factual basis for each count.” 430 N.W.2d at 911. Finding no separate factual bases to support the torment claims, we reversed.

[¶ 21.] Finally, in Sprik, we held that the defendant could be charged with multiple counts of rape for a single incident that involved multiple instances of penetration. We surmised that to hold otherwise “would be to hold that a defendant can perform as many acts of penetration as possible during a sexual encounter or transaction and be subject to punishment for only one act of penetration.” 520 N.W.2d at 598.

[¶ 22.] In comparing the present ease to those previously decided, we find no violation of Augustine’s right against double jeopardy. Each count, by specifying a burn to a separate and distinct part of M.A.’s body, alleged acts of isolated, separate impulses. Blockburger, 284 U.S. at 302, 52 S.Ct. at 181, 76 L.Ed. at 308. Therefore, although identical in law, each count was different in fact.

[¶ 23.] Moreover, the evidence showed that the crimes did not occur simultaneously. According to Augustine’s videotaped confession, at least three of the crimes occurred at different times in October 1998, and at least one occurred in a different location. The photographs of the burns, taken on October 20, 1998, show the injuries in different phases of the healing process. While the pictures cannot be a conclusive determinant of exactly when the injuries were inflicted, they could be an indication that such injuries were not simultaneous.

[¶ 24.] Each time an adult abuses a child, it is a separate, isolated impulse; not an inherently continuous offense. Individual acts of child abuse, especially when not shown to be inflicted simultaneously, constitute successive violations of SDCL 26-10-1, therefore, Augustine’s right against double jeopardy was not violated by his conviction on four separate counts of that statute.

[¶ 25.] 2. The evidence was sufficient to sustain the jury’s verdict against Augustine.

[¶ 26.] Our standard of review for determining the sufficiency of evidence is well settled:

In determining the sufficiency of the evidence on appeal in a criminal case, the issue before this [C]ourt is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt ... In making our determination, this Court will accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict.

State v. Davi, 504 N.W.2d 844, 856 (S.D. 1993) (citations omitted); see also State v. Edelman, 1999 SD 52, ¶4, 593 N.W.2d 419, 421; State v. Thompson, 1997 SD 15, ¶ 34, 560 N.W.2d 535, 542-43; Sprik, 520 N.W.2d at 601; State v. Brings Plenty, 490 N.W.2d 261, 266 (S.D.1992).

[¶27.] The record contains sufficient evidence to sustain the jury’s verdict against Augustine. The primary source of evidence is the videotaped confession, where he admits burning M.A. on various occasions when he was under the influence of alcohol and experiencing other difficulties in life.

[1128.] Although guilt cannot be established by admission alone, State v. Best, 89 S.D. 227, 235, 232 N.W.2d 447, 452 (1975), Augustine’s confession was corroborated by other evidence. The pediatrician who initially examined M.A. testified that when he first asked her what had happened, she told him that there were cigarette burns on her body. He also testified that while he could not say with certainty that all the wounds were from cigarette burns, he believed that some were certainly cigarette burns and that all were consistent with such an injury. Further, the detective who interviewed Augustine testified that, during the interview, he made hand gestures to show how he inflicted the injuries to M.A.

[¶ 29.] Augustine claimed at trial that his videotaped confession was a lie. He contended that he only admitted to the allegations because he wanted his children to be reunited with their mother (M.A. and her siblings were placed in foster care after the allegations of abuse arose on October 20, 1998), and he thought his confession would be a means to that end. His medical expert also testified that in his opinion, he did not believe the injuries to M.A. were cigarette burns; rather, he concluded they resulted from a skin infection. The jury apparently believed the State’s version of events.

[¶ 30.] At sentencing, despite his earlier claims that his confession was fabricated and that M.A.’s injuries were not the result of cigarette burns, Augustine’s counsel conceded that “[h]e admits that he probably did it but he doesn’t remember the exact details.”

[¶ 31.] Viewing the record in a light most favorable to the verdict, there was sufficient evidence to sustain the jury’s verdict against Augustine on all four counts of child abuse. Affirmed.

[¶ 32.] SABERS, AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.


author: SABERS, Justice. AMUNDSON, Justice

text:
    2000 SD 95
    Richard AMUNDSON Appellee, v. SOUTH DAKOTA BOARD OF PARDONS & PAROLES, Appellant.
    No. 21216.
    Supreme Court of South Dakota.
    Considered on Briefs May 30, 2000.
    Decided July 19, 2000.

      ■ Richard L. Travis and Deborah A. Bir-gen of May, Johnson, Doyle and Becker, P.C.,-Sioux Falls, South Dakota, Attorneys for appellee.
    Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellant.
   SABERS, Justice.

[¶ 1.] The Board of Pardons and Paroles revoked the suspended sentence of Richard E.' 'Amundson and ordered that he serve the remainder of his sentence, one year, in the state' penitentiary. The circuit court reversed. ' 'The Board appeals and we reverse.

FACTS

[¶ 2.] Amundson was convicted of possession of a firearm by a felon and was sentenced to serve a term of two years with one year suspended. He was incarcerated from December 10, 1997 to December 10, 1998 when he was released under “intensive supervision.” Pursuant to the Suspended Sentence Agreement that he signed, Amundson agreed that he would not “own,- purchase or have under [his] control, possess, transport or use weapons ... considered [to be] dangerous by [his] Parole Agent_” Duane Ries, Amundson’s sponsor, specifically asked Parole Agent Greg Barnett whether Amund-son could possess a‘ kitchen knife. Barnett approved Amundson’s possession of a kitchen knife:

I told him that a knife that would be in the kitchen used only for kitchen purposes would be appropriate, but a knife on his person or used for something like as a weapon would be a violation of his parole or suspended sentence.

Ries testified that Barnett merely approved the -knife for preparation of food and things associated with “everyday living.” Neither version of the oral instructions was reduced to writing.

[¶ 3.] Amundson lived with Ries and his family out on their farm for nine days until he could find an apartment in Sioux Falls. On December 19, Ries helped Amundson move into a one-room efficiency apartment and supplied him with some kitchen utensils, including a kitchen knife. That night and the next night, Amundson heard loud voices from the neighboring apartment from 12:00 a.m. to 2:00 a.m. He could not understand what they were saying because they were speaking and yelling in Spanish. He testified that he heard “bottles and things being clinked around in the neighbor’s apartment” and thought he “detected the odor of marijuana smoke.” He also testified that he was “concerned” about the neighbors’ behavior and discussed the situation with Ries. Ries confirmed this conversation:

[Amundson] said he had been awakened the previous nights by loud noise from the adjacent apartment and that was occurring late at night, or somewhere around the midnight hour and he thought that they were probably getting off from work and, [ ] they were coming in and being very noisy [ ] in that process.

Amundson testified that he felt intimidated by the noise because the neighbors seemed to be fighting or cursing in Spanish, a language he did not understand.

[¶ 4.] Barnett had six personal contacts and six collateral contacts with Amund-son between December 10 and December 21. Barnett testified and noted in his violation report that Amundson complied with all the conditions and “had been mostly agreeable to his supervision and all imposed conditions.” In fact, there was testimony that Amundson was acting as a “model parolee.”

[¶ 5.] Amundson testified that at 8:00 p.m. on December 21, 1998, he laid out his clothing and equipment for his first day of work the next morning at Sioux Steel and went to bed at 9:00 p.m. At 11:32 p.m., Barnett and Parole Agent Travis Ripperda arrived at Amundson’s apartment to conduct a random curfew check. As they entered the building, they heard a “commotion” from the apartment next to Amundson’s and identified the occupants as Hispanic. The agents testified that they knocked on Amundson’s door three times. Despite the fact that this was the first curfew check conducted on Amundson and despite an internal policy, the agents failed to identify themselves.

[¶ 6.] Inside the apartment, Amundson was asleep. He woke up and listened when he heard “pounding” on his door. He testified that the “pounding” continued so he called out and asked who was there, but received no response. The “pounding” continued again so he claimed he got out of his bed and shouted, “who is there,” but received no response. He stated that he was concerned that it might be the neighbors and that he grew “very nervous” because his door is secured with only a single bolt and was without a peephole or chain. He grabbed the kitchen knife, which had a six and one-half inch blade, and stuck it in the waistband of his jeans behind his back. Dressed only in his jeans, he approached the door and heard his neighbors “jibber-ing in Spanish.” He claims he asked a third time, “who is it,” but there was no response.

[¶ 7.] Barnett and Ripperda claim that they did not hear any requests for identification from Amundson. Amundson testified that he put his left foot up against the door and slowly opened the ‘door. At that point, he recognized Barnett and opened the door.'

[¶ 8.] Once inside, Ripperda administered a breathalyzer test while Barnett looked around the apartment. According to Amundson, after he finished taking the breathalyzer test, he told Ripperda that he started a new job the next morning. As he was talking, he claims that he turned his back to Ripperda and stepped into the kitchen area, faced the kitchen sink, removed the knife from his waistband and placed it on the counter in front of him. Because his back was towards Ripperda, he claims that Ripperda saw him openly remove the knife from his waistband. Conversely, Ripperda testified that Amundson stepped backward into the kitchen area and “discreetly” removed the knife from his waistband while he was facing Ripperda. Ripperda also testified that Amundson reached behind his back, took the kitchen knife out of his waistband and “set it on the counter right in front of him.” (emphasis added). It is undisputed that Amundson did not use the knife in a threatening manner or make threatening statements or motions with the knife toward the agents.

[¶ 9.] Once confronted, Amundson explained that he possessed the knife because he was “scared” as he was new in the apartment building and did not know who was at his door. Barnett repeatedly testified that Amundson truthfully answered all of the questions, fully cooperated and did not feel that the situation was dangerous. However, Barnett and Rip-perda concluded that Amundson’s possession of the knife on his person was -a violation of his suspended sentence agreement. They handcuffed Amundson and took him to jail.

[¶ 10.] Barnett reported the violation to the Board on December 22, 1998. On January 4, 1999, the Board concluded that probable cause existed to believe that Amundson violated the terms of his Suspended Sentence Agreement. A hearing was conducted on March 25, 1999. On March 30, 1999, the Board concluded that Amundson’s conduct was a violation of his suspended sentence. The Board’s findings of fact and conclusions of law, dated April 7, 1999, do not provide that Amundson lacked credibility. The ten days during which, Amundson was released were considered “dead time” and he was ordered to jail until December 20,1999.

[¶ 11.]' Amundson appealed the Board’s decision to the circuit court. A hearing was held on October 4, 1999. The Board argued that Amundson intended to use the kitchen knife as a weapon, if the need arose, and this intention violated the conditions of his suspended sentence. In addressing the Board’s position, the circuit court stated:

[Y]ou are in effect saying if a parolee is told they may not under any conditions have a weapon and then the State does things to put them in fear of their life or their personal safety and they have a weapon, they are'going to get violated. That causes a problem.... Is the State coming here with clean hands then?

The circuit court determined that the agents created the situation by failing to identify ‘ themselves and that Amundson had reasonable concern for his safety. It concluded that the Board’s decision was clearly erroneous. By Order, dated October 12, 1999, Amundson was to be immediately released from the South Dakota State Penitentiary and placed under the Board’s supervision until his suspended sentence was served in full. The circuit court reinstated the ten days of “dead time” and determined that his suspended sentence terminated, on December 10, 1999. However,' the trial court later determined, during a bond hearing, that the Board’s appeal stayed the Order -under SDCL 15-26A-38 and Amundson was denied release on bond pending the appeal. The trial court did not enter any findings of fact or conclusions of law.

[¶ 12.] The Board appeals.

STANDARD OF REVIEW

[¶ 13.] In reviewing decisions from the Board of Pardons and Paroles:

The court shall give great weight to the findings made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
5) [c]leariy erroneous in light of the entire evidence in the record; or
6) [arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

SDCL 1-26-36. See also Hughes v. South Dakota Bd. of Pardons, 1999 SD 44,. ¶ 11, 593 N.W.2d 789, 791 (quoting In re Brown, 1997 SD 133, ¶ 7, 572 N.W.2d 435, 436-37).

[¶ 14.] 1. WHETHER THE BOARD ERRED IN REVOKING THE SUSPENDED PORTION OF AMUND-SON’S SENTENCE.

[¶ 15.] The Board first argues that it was not clearly erroneous in determining that Amundson’s explanation of his acts did not justify his concealing a knife in his waistband when he answered his door on December 21, 1998. The Board, therefore, argues that the evidence is insufficient to support the circuit court’s characterization of that night; namely, the agents were not at fault for Amundson’s decision to arm himself with a concealed weapon. Additionally, the Board claims that it properly determined Amundson violated the conditions of his agreement due to its zero-tolerance policy which was intended to protect its unarmed parole agents.

[¶ 16.] Condition four of Amund-son’s Suspended Sentence Agreement provides:

I will not own, purchase or have under my control, possess, transport or use weapons or explosives considered dangerous by my Parole Agent, or any type of firearm.

Barnett permitted Amundson to own, possess and use a knife for kitchen purposes. The instructions accompanying this permission were not reduced to writing and are disputed.

[¶ 17.] Amundson, argues that there is a distinction between the words “possession” and “use.” He points out that he was permitted to possess the knife and, while he possessed the knife, his hands were empty and in front of him when he opened his door. He further claims that he never displayed the knife until he placed it on the kitchen counter. Therefore, he argues that the facts clearly reflect that he never used the knife as a weapon and the Board was clearly erroneous in determining that he violated the terms and conditions of his suspended sentence agreement.

[¶ 18.] As indicated, the verbal instructions from Barnett to Amundson, given when Barnett excluded the ownership, possession and use of a kitchen knife from condition four of the agreement, were not reduced to writing and are disputed. The Board, however, found that “Amundson was told by [Barnett] that it was acceptable for him to have a knife for kitchen and cooking-related purposes, but that it was not allowable for him to use the knife for other purposes.” The Board also found that Amundson’s “use of the knife as a weapon” was not justified by his explanation and his “use of the knife ... was clearly a use of the knife as a potential weapon.” There is evidence to support these findings.

[¶ 19.] When Amundson opened the door to allow the agents to enter his apartment, he unquestionably possessed a knife. That possession constitutes using the knife as a potential weapon. Amundson attempts to justify his use of the knife, in this manner by asserting that he was uncertain who was at the door and that he was “scared.” However, Amundson had a reasonable alternative to using the knife as a potential weapon. For example, he could have insisted on identification before he opened the door or left the knife in the kitchen. See United States v. Lomax, 87 F.3d 959, 962 (8th Cir.1996) (holding that the defendant, a convicted felon, was not legally justified in possessing a firearm because potentially effective legal options existed). Therefore, the Board’s findings, that Amundson’s use of the knife was a violation of his agreement, were not clearly erroneous.

[¶ 20.] Further, the Board found that “Amundson was instructed that having a knife on his person would be a violation of his supervision.” In support .of this finding, Barnett testified that he told Amund-son that a “knife on his person ... would be a violation of his .... suspended sentence.” Amundson disputes that this was communicated to him.. However, it is not this court’s role to act as the factfinder. Instead, “great weight [is given] to the findings made and inferences drawn by [the Board] on questions of fact.” SDCL 1-26-36.

[¶ 21.] The Board found that Amundson did not comply with Barnett’s instruction that “having a knife on his person would be a violation of his supervision.” Therefore, it concluded that Amundson violated condition 10 of his agreement, which provides: “I will comply with all instructions in matters affecting my supervision, and cooperate by promptly and truthfully answering inquires directed to me by a Parole Agent.” Clearly, the Board was “reasonably satisfied” that the terms of the suspended sentence were violated and it’s findings were not shown to be clearly erroneous. Consequently, we reverse.

[¶ 22.] In light of our determination on Issue 1, we need not reach the next two issues. However, we do so for the future benefit of the bench and the bar.

[¶ 23.] 2. WHETHER THE CIRCUIT ERRED IN FAILING TO APPLY THE PROPER STANDARD OF REVIEW.

[¶ 24.] The circuit court determined that the facts justified Amundson’s. possession of- the knife. The Board argues that in making this determination, the circuit court failed to apply the proper standard of review and erroneously substituted its own judgment for that of the .Board.

[¶ 25.] As stated above, in reviewing a decision from the Board, the function of the Circuit court and this court is to determine whether the Board’s findings were clearly erroneous. While the Board’s conclusions of law are reviewable de novo, “great weight [is given]- to the findings made and inferences drawn by [the Board] on questions of fact.” SDCL 1-26-36.

[¶ 26.] Although the agents failed to identify themselves to Amundson at 11:30 p.m., they claim they did not hear him ask for their identification. In addressing this issue, the circuit court exceeded its appellate role and mis-characterized some of the events. For example, the court stated that it was not surprised that the agents did not hear Amundson ask who was at the door because the neighbors were “screaming” in the next apartment. Amundson’s testimony was that he heard his neighbors “jibbering in Spanish” once he approached the door, not “screaming.” The court also found that the agents “repfeatedly refused to identify themselves.” The agents testified that they did not hear Amundson ask for their identification. As we have stated before, “[t]he trier of fact is permitted to determine the questions of fact and to choose one opinion over that of another when that opinion' is properly supported by the evidence.” Erickson v. Minnesota Gas Co., 358 N.W.2d 526, 528 (S.D.1984).

[¶ 27.] 3. WHETHER THE CIRCUIT COURT ERRED IN FAILING TO ENTER FINDINGS OF FACT AND CONCLUSIONS OF LAW.

[¶ 28.] During the hearing, the circuit court stated “I’m not the fact finder” and refused to enter into findings of fact and conclusions of law. The Board claims that the circuit court’s refusal to enter mandatory findings of fact and conclusions of law requires reversal. Amundson agrees in part and argues that if we determine that the Board’s' revocation was not error, then the circuit court erred in refusing to enter into findings of fact and conclusions of law (citing State, Div. of Human Rights ex rel. v. Miller, 349 N.W.2d 42 (S.D.1984)).

[¶ 29.] SDCL 1-26-36 provides, in part: “A court shall enter its own findings of fact and conclusions of law or may affirm the findings and conclusions entered by the agency as part of its judgment.” (emphasis added). The statutory language is clear and provides that the court “shall” enter its own findings of fact and conclusions of law when reversing or modifying an administrative agency’s decision. See Miller, 349 N.W.2d at 46 (interpreting this statute as “requiring] the circuit court to enter its own findings and conclusions if it modifies or reverses the agency.”). The statutory language is mandatory and the circuit court was required to enter its own findings and conclusions.

[¶ 30.] In Schroeder v. Dep’t of Social Services, 529 N.W.2d 589, 591 (S.D.1995), we were presented with a similar situation. In interpreting SDCL 1-26-36, we stated: “[s]ince the circuit court reversed [the Board’s] findings and conclusions, the plain language of SDCL 1-26-36 requires the court to enter separate findings of fact and conclusions of law specifying where and why [the Board’s] decision was in error.”

We further determined that the circuit court’s decision and order are not valid substitutes for the required findings and conclusions. In remanding the case to the circuit court, we stated:

[C]ircuit courts, acting as a reviewing court for administrative decisions, must clearly articulate findings of fact and conclusions of law to support their decisions. Without entering findings of fact and conclusions of law, this court cannot decipher why the circuit court reversed thé trier of fact in this case. Therefore, we remand for the entry of specific findings of fact and conclusions of law providing reasons for reversing Commission’s decision.

Id. at 592 (internal citation omitted). In other words, to comply with SDCL 1-26-37, the court must make findings of fact and conclusions of law when reversing or modifying the agency’s decision. It failed to do so and thereby erred.

[¶ 31.] Similarly, we would reverse and remand this case to the circuit court for both reasons (to apply the proper standard of review and to enter specific findings of fact and conclusions of law) if we had not already concluded, under Issue 1, that the Board did not err in revoking Amundson’s sentence.

[¶ 32.] Reversed.

[¶ 33.] MILLER, Chief Justice, and KONENKAMP and GILBERTSON, Justices, concur.

[¶ 34.] AMUNDSON, Justice, dissents.

AMUNDSON, Justice

(dissenting).

[¶ 35.] I respectfully dissent.

[¶ 36.] This Court previously held in Schroeder v. Department of Soc. Servs., 529 N.W.2d 589, 591 (S.D.1995), that “SDCL 1-26-36 requires the court to enter separate findings of fact and conclusions of law specifying where and why Commission’s decision was in error.” (Emphasis added.) Further, we held that the “circuit courts, acting as a reviewing court for administrative decisions, must dearly articulate findings of fact and conclusions of law to support their decisions.” Id. at 592 (emphasis added). Therefore, the entering of findings of fact and conclusions of law by the circuit court are mandatory, not discretionary. See id.

[¶ 37.] In the present case, the circuit court refused to enter findings of fact and conclusions of law to support its reversal of Board of Pardons and Paroles. As we stated in Schroeder, “[without entering findings of fact and conclusions of law, this court cannot decipher why the circuit court reversed the trier of fact in this case.” Id. Before a meaningful appellate review can be conducted on any of the'issues in this case, I would remand this action to the circuit court with instructions to enter the mandatory findings and conclusions.

      . These “collateral contacts” consisted of telephone calls to Barnett from Amundson.

      . The testimony was:
      Q: Now, just, this is just a procedural matter, when you do these visits on intensive parole and you knock on the door do you announce who you are if you're asked? Is that procedure?
      A: We always do it, we always announce ourselves,

      Q: So on this particular occasion you didn’t, you did not ... announce to him who you were?
      A: No, we didn't.

      . This statute provides:
      An aggrieved party or the agency may obtain a review of any final judgment of the circuit court under this chapter .by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give thet same deference to the findings of fact, conclusions of law and final judgment of the circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo,
      (emphasis added).