author: HUDSON, Judge.

text:
    In re Jane McNaught STAGEBERG, petitioner, Appellant, v. Mark Nissi STAGEBERG, Respondent.
    No. A04-1230.
    Court of Appeals of Minnesota.
    May 3, 2005.
    As Amended May 6, 2005.

      Alan C. Eidsness, Timothy Mulrooney, Henson & Efron, P.A., Minneapolis, MN, for appellant.
    Robert A. Standke, Standke, Greene & Greenstein, Minnetonka, MN, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge; TOUSSAINT, Chief Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

On appeal from a judgment dissolving the marriage of appellant-wife Jane Stage-berg and respondent-husband Mark Stage-berg, husband challenges the determination that certain contingency fees his law practice was earning when the marriage was dissolved should be treated as marital property. Wife argues that the district court undervalued these interests. In addition, wife argues that the district court abused its discretion by treating her non-marital interest in certain property as marital, and she moves to strike portions of husband’s brief and appendix. Husband argues that the record does not support the determination that wife has a nonmari-tal interest in the home and that the district court overvalued the parties’ golf-club membership. We reverse the district court’s valuation of the marital interest in the contingent fees and the treatment of wife’s nonmarital interest in the property distribution and remand for revaluation of the contingency fees and any necessary adjustment of the property distribution. We otherwise affirm the district court and grant wife’s motion to strike.

FACTS

The parties married in September 1990 and separated in June 2002. The marriage produced no children. Wife has been in the private practice of psychology for twenty-two years, having obtained her Ph.D. in psychology in 1982. Wife’s clients pay her upon services rendered. Husband is self-employed as an attorney and has practiced almost exclusively in the area of plaintiffs personal-injury cases since 1994.-

Wife petitioned to dissolve the marriage, and the district court entered a December 2002 judgment dissolving the parties’ marriage but reserving all other issues for settlement or trial. The parties stipulated to the value of most of their assets and the division of their debts. The parties appeared for trial in December 2002 on remaining issues.

At trial, husband produced an exhibit detailing the cases he was handling on a contingency-fee basis as of the July 2002 stipulated valuation date. Wife’s expert, Charles T. Hvass, Jr., testified that the exhibit included cases that had settled either before the valuation date with fees received or due to be received by husband at the time of trial, as well as cases that were relatively new and would require considerable post-marital effort. Wife argued that any portion of a contingency fee received after the valuation date as a result of work husband did before the valuation date was a marital asset and that she was entitled to half the recovery.

The district court issued its amended findings and conclusions in January 2004. Wife subsequently ■ moved for amended findings and/or a new trial.

In May 2004, the district court issued a second set of amended findings in which it found that neither party required maintenance from the other but that husband’s business was becoming more difficult due to the loss of several key referrals, changing attitudes of juries and insurance companies, and a diminished case volume because of increased competition. Regarding the property settlement, the district court ruled, in relevant part, that (a) while wife traced a nonmar-ital interest to the parties’ homestead, husband would be awarded half of wife’s nonmarital interest because not doing so would work an unfair hardship on husband, who had used nonmarital assets to pay off marital debt that had not resulted in acquisition of an asset; (b) while the homestead was purchased before the parties’ marriage, the parties purchased it jointly and used marital funds to pay the mortgage and make improvements, creating a marital interest in the homestead and the increase in its value; (c) the parties’ golf club membership was worth $35,000 — the cost of a new membership.

In its amended findings, the district court acknowledged that the majority of jurisdictions view contingency fee contracts as having “marital value,” but determined that the best way to determine that value is to apply what it called “The Historical Average Income Approach.” In this approach, the district court assumed a 40% tax rate and calculated husband’s average annual net profit over the past five years (excluding costs). Because husband would resolve some cases each year and take on additional cases, the court then reduced husband’s net profit by 50% to reflect the average declining percent of marital' effort in the cases that are concluded during the course of a year. The court found that wife was entitled to one-half of the remaining after-tax marital share. The district court entered judgment on May 12, 2004. This appeal follows.

ISSUES

I. Are portions of husband’s brief and appendix referring to a matter that the parties agreed would “have no impact” on the district court’s valuation decision outside the record on appeal?
II. Are unrecovered contingent fees derived from work performed during a marriage marital assets?
III. Did the district court clearly err by valuing wife’s marital interest in the contingent fees using a historical average-income approach?
IV. Did the. district court abuse its discretion by awarding husband an interest in wife’s nonmarital property?
V. Is the district court’s characterization of 'Wife’s nonmarital interest in the homestead supported by the record?
VI. Did the district court abuse its discretion by valuing the parties’ golf-club membership at the cost of obtaining a new membership?

ANALYSIS

I

With respect to his legal practice, husband’s brief and appendix refer to a matter that the parties agreed would “have no impact” on the valuation of his practice and would be “disregarded by the parties and the Court in the determination of the assets and liabilities of the parties.” Wife moves to strike these portions of husband’s brief and appendix as containing a matter outside the record on appeal. The record on appeal includes the papers filed in the district court, the exhibits, and the transcript of the proceedings, if any. Minn. R. Civ.App. P. 110.01. Appellate courts may not consider matters outside the record on appeal and will strike references to such matters from the parties’ briefs. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn.App.1992), aff'd 504 N.W.2d 758 (Minn.1993). Here, because the parties agreed that the contested material would not be considered by the district court, they functionally agreed that it was outside the record, and we grant wife’s motion to strike.

II

The district court held that the fees stemming from husband’s contingent-fee cases in progress on the valuation date are marital property to the extent that those fees are attributable to work husband did on the cases before the valuation date. Husband challenges the determination that any property interest in these contingent-fee cases is marital. Whether property is marital or nonmarital is a legal question, but a reviewing court defers to the district court’s underlying findings of fact. Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn.1997). The extent to which a marital estate can include contingent fees for work in progress on the valuation date in a marital dissolution is a question of first impression for this court.

Here, husband challenges the district court’s determination of contingency fees as marital property arguing that: (1) contingent fees are only an expectation interest, not an enforceable contract right; (2) contingent fees represent future income (or the potential for future income) and cannot be considered a marital asset; and (3) contingent fees are too remote, speculative, and uncertain to be considered a marital asset.

Generally, “[mjarital property” is property, real or personal, including vested public or private pension plan benefits or rights, acquired by the parties, or either of them, to a dissolution ... at any time during the existence of the marriage relation between them, ... but prior to the date of valuation under section 518.58, subdivision 1. All property acquired by either spouse subsequent to the marriage and before the valuation date is presumed to be marital property.... Each spouse shall be deemed to have a common ownership in marital property that vests not later than the time of the entry of the decree' in a proceeding for dissolution or annulment. The extent of the vested interest shall be determined and made final by the court pursuant to section 518.58.

Minn.Stat. § 518.54, subd. 5 (2004).

In Janssen v. Janssen, 331 N.W.2d 752 (Minn.1983), the supreme court addressed “whether a nonvested, unmatured pension [of one of the parties] is marital property which can be divided in a marital dissolution proceeding.” Id. at 753. In doing so, Janssen recited the definition of marital property set out above, stated that the definition was “expansive,” and noted that “[a] vested pension refers to a pension right which is not subject to a condition of forfeiture if the employment relationship terminates before retirement” and that “[a] matured pension is one to which the employee has an unconditional right to immediate payment.” Id. at 753-55 (emphasis in original). In resolving the question, it stated:

[WJhether a nonvested pension right is marital property is substantially answered by our recent opinion in Christensen v. Minneapolis Municipal Employees Retirement Board, 331 N.W.2d 740 (Minn.1983), in which we held that a public employer’s promise of a pension to the appellant in that case was binding on the public employer under the principles of promissory estoppel, overruling Gibbs v. Minneapolis Fire Dept. Relief Ass’n, 125 Minn. 174, 145 N.W. 1075 (1914), and other cases that had used a gratuity approach to public pension or retirement plans. Now, in consequence, the interest appellant holds becomes more than a mere expectancy — it becomes a chose in action, a contractual right: a property interest.

Id. at 754 (emphasis omitted). Thus, the crux of Janssen’s holding that an unvest-ed, unmatured pension can be property for dissolution purposes was that (a) the employed spouse had, during the marriage, entered a pension contract under which that spouse acquired certain rights, albeit contingent, to benefits; and (b) the contractual nature of the right to receive benefits under the pension meant that the employed spouse had more than a mere expectancy in pension benefits, and therefore that the contingent nature of the contractual right to receive benefits did not preclude the right from falling within the “expansive” definition of “marital property.” See id. at 754-56 (noting supreme court’s decision in Elliott v. Elliott, 274 N.W.2d 75 (Minn.1978), forecast Janssen’s holding, even before the definition of marital property in Minn.Stat. § 518.54, subd. 5 was amended to explicitly mention pension interests as property). Janssen also noted that “[t]o award one party [the pension as nonmarital property] would ignore the presumption ... that each spouse contributed to the acquisition of property while they lived together as husband and wife.” Id. at 756. Subsequently, this court has applied a Janssen-like rationale to allow classification of other contingent interests as marital property. See Salstrom v. Salstrom, 404 N.W.2d 848, 850-51 (Minn.App.1987) (incentive stock options); Marshall v. Marshall, 350 N.W.2d 463, 466 (Minn.App.1984) (deferred compensation); VanderLeest v. VanderLeest, 352 N.W.2d 54, 57-58 (Minn.App.1984) (disability annuity).

We conclude that the portion of a contingent fee for work in progress on the valuation date that is attributable to work done before the valuation date is sufficiently analogous to unvested pensions and incentive stock options and therefore those fees may be treated as marital property for dissolution purposes. Significantly, under Minnesota law, once a legal proceeding is started, an attorney has a lien for compensation on any money involved. Minn. Stat § 481.13 (2004). Furthermore, the right to compensation for the reasonable value of services continues even if the attorney rightfully withdraws from representation or the client discharges the attorney. Nordling v. N. States Power Co., 478 N.W.2d 498, 501 (Minn.1991); Ashford v. Interstate Trucking Corp. of Am., Inc., 524 N.W.2d 500, 502-03 (Minn.App.1994). Thus, like a pensioner’s ability to collect on an unvested, unmatured pension, counsel’s ability to collect a fee is a right vesting before the valuation of that right, and the existence of counsel’s right is not affected by the fact that the actual recovery of a fee depends on a contingent event — -a favorable resolution of the case.

The conclusion that contingent fees, to the extent attributable to work done before a valuation date, can be treated as marital property is also consistent with the idea that, in Minnesota, accounts receivable are generally considered marital property. Davey v. Davey, 415 N.W.2d 84, 88 (Minn.App.1987), review denied (Minn. Jan. 20, 1988). It is likewise consistent with foreign authority. According to the Arizona Court of Appeals, “while it is true that an attorney is not entitled to the full benefit of his contract until the contingency upon which it is based is fulfilled, this does not mean that valid enforceable contract rights do not exist regardless of its fulfillment.” Garrett v. Garrett, 140 Ariz. 564, 683 P.2d 1166, 1169 (Ct.App.1983). Likewise, the Supreme Court of Arkansas noted that “[i]t is axiomatic that the right to perform a contract and to receive its profits, and the right to performance by the other party, are property rights entitling each party to the fulfillment of the contract by performance.” McDermott v. McDermott, 336 Ark. 557, 986 S.W.2d 843, 847 (1999). Because the Arkansas legislature expressly protected the rights of attorneys in their fee agreements by codifying an attorney’s lien statute, the Arkansas court held that contingency-fee agreements are enforceable contract rights, and those rights are property rights. Id.

Husband correctly notes that treating contingent fees as income if and when they are received is consistent with Minnesota’s pension-related dissolution authorities. See Kruschel v. Kruschel, 419 N.W.2d 119, 122 (Minn.App.1988) (noting authority exists for proposition that pensions “should be viewed as property or income, but not both”). Treating contingency fees as income, however, is inconsistent with the above-cited Minnesota authority on the characterization of contract rights. In addition, treating the fees as income rather than property would preclude wife from receiving a portion of the fees as part of the property division. Under these circumstances, we reject husband’s argument that the fees must be deemed income.

Finally, husband argues that the fees are too speculative to be characterized as property. Husband’s argument has support in a minority of jurisdictions. With contingent-fee cases, the attorney is not assured of earning anything for efforts expended, nor does he acquire a vested interest in the actual agreed contingency fee unless the client recovers. But, as noted above, the contingent nature of the fees does not preclude their treatment as property. Moreover, unless one assumes that husband will lose all of the contingent-fee cases he had in progress on the valuation date, the root of husband’s third challenge to the treatment of the fees as marital property lies in valuing the marital interest in the fees, not treatment of the fees as marital property. Furthermore, characterizing contingency fees as marital assets is, in this case, not inequitable. During the marriage, both parties bore the impact of delayed contingent-fee recovery. During those delays, the parties relied on wife’s income to meet expenses, precluding use of that income to generate marital assets. Therefore, we affirm the district court’s decision to treat as marital property the portion of the contingent fees generated by husband’s contingent-fee cases that is attributable to work husband did on those cases before the valuation date.

Ill

Both parties challenge the district court’s valuation of the marital interest in the contingent fees generated by husband’s cases in progress on the valuation date. A district court’s valuation of an asset is a finding of fact and an appellate court will not set it aside unless it is clearly erroneous. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975); see Minn. R. Civ. P. 52.01. “Exactitude” in valuing an asset “is not required ... it is only necessary that the value arrived at lies within a reasonable range of figures.” Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn.1979); see Hertz, 304 Minn. at 145, 229 N.W.2d at 44. Here, the district court did not individually value husband’s contingent-fee cases that were in progress at the valuation date; it assumed that all of those cases constituted a single asset and valued that asset using the “historical average income” method described above.

Both parties contend that the district court “erred” in applying this method because it is “novel” and “unsupported.” We are not convinced that using a “novel” method of resolving a question is necessarily fatal to the resolution of that question, especially where the question is one of first impression. For at least three reasons, however, we are concerned about the lack of support for the “historical average income” method used by the district court. First, the district court did not provide any authority for its approach, and, on appeal, we are cited to none. Indeed, a majority of courts allowing pending contingent-fees cases to be treated as generating a marital interest in yet-to-be-recovered fees instruct the district court to reserve jurisdiction over the fees until the underlying actions are resolved. Second, and more importantly, by using an annual-income figure in its formula and applying the formula to only one year of husband’s practice of law, the district court implicitly assumed that all of husband’s contingent-fee cases that were in progress on the valuation date would be resolved within one year of that date. This assumption is supported neither by evidence in this record nor by general experience. See Minn. R. Evid. 201 (addressing judicial notice). Third, because the judgment currently awards wife a share of the marital interest in fees husband has yet to receive, the judgment overstates wife’s interest in those fees by not reducing her interest to its present value. See generally DuBois v. DuBois, 335 N.W.2d 503, 506 (Minn.1983) (defining “present value” as “the sum which a person would take now in return for giving up the right to receive an unknown number of monthly checks in the future”) (emphasis omitted).

Thus, on this record, we reverse the district court’s valuation of the marital interest in the fees to be generated by husband’s contingent-fee cases in progress on the valuation date, and remand for the district court to either value the marital interest in those fees in a legally and factually supportable manner, or to retain jurisdiction over the matter and to calculate and divide the marital interest in the unre-covered contingent fees when (and if) those fees are received. If the district court retains jurisdiction over the question, it shall determine the marital and nonmar-ital interests in the recoveries based on the pro rata amounts of time husband put into the cases before and after the valuation date. While we do not require the district court to retain jurisdiction over the contingent-fee question, we note that doing so would be consistent with the “reserved jurisdiction method” of addressing pensions. See DuBois, 335 N.W.2d at 505 (describing methods of dividing pensions, including reserved jurisdiction method).

Husband argues that there is no reasonable method for valuing the marital interests in the recoveries from contingent-fee cases that were in progress on the valuation date because (a) any valuation of fees to be received ignores the cost of the losing cases; (b) any attempt by the district court to address how much time was spent on the cases before and after the valuation date would be speculative because attorneys who do contingent-fee cases typically do not keep time records; and (c) retaining jurisdiction would only prolong already contentious dissolution cases by requiring a new evidentiary hearing when each case is resolved.

But husband’s first concern misconstrues the nature of the recovery. To the extent that costs were incurred for cases that did not produce recoveries, those costs were borne during the marriage, and after the valuation date, husband bears those costs individually. While husband’s second concern will require a certain amount of candor on his part, he has a fiduciary obligation to present full and complete information to the dissolution court. See Doering v. Doering, 629 N.W.2d 124, 130 (Minn.App.2001) (discussing affirmative duty to disclose information present for parties to dissolution proceedings), review denied (Minn. Sept. 11, 2001); see also Minn.Stat. § 518.58, subd. 1(a) (2004) (noting parties’ fiduciary duty to each other regarding marital assets). And the district court will be aware that husband’s evidence on the question of the amount of time spent on the cases before and after the valuation date may be, less than precise. Also, husband’s third concern is answered by the fact that foreign authorities often direct what we are giving the district court the option of doing here. Furthermore, our supreme court has rejected the idea that a valuation should not occur simply because it is cumbersome to do so. See Janssen, 331 N.W.2d at 756 (instructing courts to retain jurisdiction because the “administrative burden [was] not insuperable”); see also Salstrom, 404 N.W.2d at 851-52 (devising a fractional “time rule” to value incentive stock options).

IV

Wife challenges the district court’s award to husband of part of her nonmarital property. “A trial court’s distribution of marital property may be entitled to great deference, but its discretion is limited once property has been defined as nonmarital.” Graeber v. Graeber, 392 N.W.2d 589, 590 (Minn.App.1986). The district court can apportion up to one-half of a spouse’s nonmarital property if it finds that the benefiting spouse’s “resources or property, including the spouse’s portion of the marital property ... are so inadequate as to work an unfair hardship” based on the factors listed in Minn.Stat. 518.58, subd. 2 (2004). “A very severe disparity between the parties is required to sustain a finding of unfair hardship necessary to apportion nonmarital property.” Ward v. Ward, 453 N.W.2d 729, 733 (Minn.App.1990), review denied (Minn. June 6, 1990). Here, neither the district court’s findings nor the record show the hardship required to apportion wife’s nonmarital assets to husband.

The district court found that wife traced a $77,724 nonmarital interest to the homestead and awarded wife the homestead, but did not treat her $77,724 interest therein as her nonmarital property. Instead, it found that husband used about $96,000 of his nonmarital funds to pay marital debts and concluded that an equitable division of property required an apportionment of wife’s nonmarital asset to avoid the hardship to husband of not compensating him for his use of his nonmari-tal funds to pay marital debt. But the district court’s findings address the factors in Minn.Stat. 518.58, subd. 2, and show that husband (a) enjoys good health; (b) has achieved professional success; (c) earned an average of $260,000 annually from 1998 to 2001 and reported gross receipts of $461,000 in 2002; and (d) received marital assets worth at least $430,000 in the judgment’s equal division of marital property. The district court apportioned husband’s part of wife’s non-marital interest because husband’s law practice may not be as profitable in 2004 as previously and because husband made nonmarital contributions to the marital estate that the district court could not recognize under the relevant statutes. These findings do not show a disparity between the parties, much less a disparity of sufficient severity to warrant apportionment of wife’s nonmarital property. See Robert v. Zygmunt, 652 N.W.2d 537, 546 (Minn.App.2002) (finding that appellant suffered no unfair hardship although respondent’s financial circumstances are significantly better due to substantial nonmarital holdings because appellant was in good health, possessed marketable skills, and was able to meet his reasonable expenses).

Husband cites Hein v. Hein, 366 N.W.2d 646 (Minn.App.1985), in support of his argument that the district court did not abuse its discretion in finding unfair hardship. But in Hein, the nonmarital interest at issue was much larger relative to the size of the marital estate, and the party receiving the benefit of the division of the nonmarital asset was making less than half of the amount earned by the party who had traced the nonmarital interest that was divided by the district court. Id. at 647-48. Here, husband has a professional degree and a lucrative job, complemented by the $430,000 he received in marital property.

V

Husband argues that the record does not support the finding that wife has a nonmarital interest in the homestead. As stated above, whether property is marital or nonmarital is a legal question reviewed de novo, but this court defers to the district court’s underlying findings of fact unless they are clearly erroneous. Olsen, 562 N.W.2d at 800.

Husband argues that wife loses her non-marital interest in the homestead because the parties constructed and purchased the homestead during a period of cohabitation that preceded the marriage. Property acquired during cohabitation prior to marriage is not marital property for purposes of Minn.Stat. 518.58 (2004). Cummings v. Ctummings, 376 N.W.2d 726, 730 (Minn.App.1985). Here, the district court characterized the entire homestead, including the portion acquired prior to the marriage, as marital property, and husband does not challenge this characterization. Thus, the only issue before the district court was the equitable distribution of the marital asset, the homestead. Because wife successfully traced a nonmarital contribution to the purchase of the homestead, the district court did not err in finding that she had a nonmarital interest.

VI

The district court awarded husband the parties’ golf-club membership at a value of $35,000. Husband challenges the valuation, alleging that it should be $500, because that is the amount for which the parties could sell the membership back to the golf club. This court will set aside a district court’s valuation of asset only if the valuation is clearly erroneous. Bur-ivell v. Burwell, 438 N.W.2d 433, 435 (Minn. Ct. App. 1989). The record shows that obtaining a new membership would cost $35,000, and the district court had a willing buyer for the parties’ membership at that price-wife. The district court’s valuation was reasonable and not clearly erroneous.

DECISION

Because wife has a marital interest in husband’s unrecovered contingency fees, the portion of a contingent fee for work in progress on the valuation date that is attributable to work done before the valuation date shall be treated as marital property for dissolution purposes.

Affirmed in part, reversed in part, remanded; motion granted.

      . The district court's calculation summary is as follows:
      Annual Gross Receipts 1997-2002 $412,861
      Less Average % of Business Costs_x .697
      Average Net Profit $287,764
      Less 40% Tax Effect x .60
      After-Tax Profit $ 172,65 8
      50% Reduction Reflecting Decline in Marital Effort x .50
      Net Marital Share $ 86,329
      Less Husband's Half x .50
      Wife’s Marital Share $43,164.50

      . This court has upheld property distributions in prior cases that considered contingency fees and the value of work-in-progress as marital assets without specifically addressing whether the assets in question should be considered marital property. See Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362-63 (Minn.App.1987) (upholding district court's findings of facts in valuing a law practice that included income from work-in-progress contingency fees), review denied (Minn. Oct. 28, 1987); Peterson v. Peterson, 367 N.W.2d 90, 92 (Minn.App.1985) (upholding an expert valuation of a law firm’s assets in a marital dissolution that included shareholder’s equity, accounts receivable, work in progress, and known contingency fee settlement offers), review denied (Minn. July 17, 1985). Thus, these cases are of limited assistance in addressing whether the contingent fees at issue here can be treated as marital property. See Skelly Oil Co. v. Comm’r of Taxation, 269 Minn. 351, 371, 131 N.W.2d 632, 645 (1964) (stating " '[ajlways the language used in an opinion must be read in the light of the issues presented’ ”) (quoting Sinclair v. United States, 279 U.S. 749, 767, 49 S.Ct. 471, 477, 73 L.Ed. 938 (1929)). We also note that the record does not address whether husband’s legal practice has a separate legal existence as some type of partnership or corporation. Therefore, this appeal does not involve questions about contingent fees payable to an entity other than husband, such as a separately existing law firm.

      . While the majority of jurisdictions considering this issue have arrived at the conclusion we do here, that contingent fees are marital property to the extent they were earned based on work done before a marriage is dissolved, some jurisdictions have ruled otherwise. See, e.g., Roberts v. Roberts, 689 So.2d 378, 381-82 (Fla.Dist.Ct.App.1997).

      . See, e.g., Roberts, 689 So.2d at 381 (holding that contingency fees for cases pending at the time of distribution are not marital property because the "value of those cases is highly speculative until the occurrence of the contingency vesting the right to compensation under the contract”); Goldstein v. Goldstein, 262 Ga. 136, 414 S.E.2d 474, 476 (1992) (refusing to characterize contingent-fee agreement as marital assets because it is "nearly impossible” to gauge the amount of work necessary following the divorce to collect the fee).

      . See Garrett v. Garrett, 140 Ariz. 564, 683 P.2d 1166, 1169 (Ct.App.1984); In re Marriage of Vogt, 773 P.2d 631, 632 (Colo.Ct.App.1989); In re Marriage of Estes, 84 Wash.App. 586, 929 P.2d 500, 502 (1997); Metzner v. Metzner, 191 W.Va. 378, 446 S.E.2d 165, 173 (1994).

      . We leave to the district court how to apportion costs associated with recovering the fees.


source: Caselaw Access Project

author: RANDALL, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Ari David LEVIE, Appellant.
    No. A04-381.
    Court of Appeals of Minnesota.
    May 3, 2005.

      Mike Hatch, Minnesota Attorney General, Kimberly Parker, Assistant Attorney General, St. Paul, MN, Stephen N. Betcher, Goodhue County Attorney, Goodhue County Justice Center, Red Wing, MN, for respondent.
    Douglas H.R. Olson, Rider Bennett, LLP, Minneapolis, MN, for appellant.
    Considered and decided by RANDALL, Presiding Judge; MINGE, Judge; and WRIGHT, Judge.
   OPINION

RANDALL, Judge.

Appellant was charged with two counts of attempted use of a minor in a sexual performance, in violation of Minn.Stat. §§ 617.246, subd. 2, 609.17, subd. 1, 4(2) (2002), and two counts of solicitation of a child to engage in sexual conduct, in violation of Minn.Stat. § 609.352 (2002). Appellant waived his right to a jury trial and was convicted on all four counts by the district court. On appeal, appellant argues that the district court erred in admitting evidence of appellant’s internet use and the encryption capability of his computer. Appellant also argues that the victim’s testimony was too vague to support the charges against him and, specifically, the victim’s testimony that she refused appellant’s request to take nude photos of her was insufficient to prove an attempt. Further, appellant argues that the court improperly referred to matters outside the record, and erred by basing its finding of guilt on simulated physical conduct that was not charged in the complaint. Finally, appellant argues that all four counts were part of the same behavioral incident and, thus, separate sentences for each count were inappropriate.

FACTS

Prior to the start of his trial, appellant objected to the admission of a forensic report on the contents of his computer known as an EnCase Report (report). Appellant argued that the report was irrelevant because it showed only that appellant may have received a lot of junk-email, and that a search of “80 or 90 pei'cent of all computers in the State” would produce similar results. But the district court determined that sections of the report were admissible, and stated, “[i]t is important for the State to be able to follow-up with that evidence to show ... what the Defendant allegedly did, how he allegedly did it, and what [the author of the report] may have found.” The court went on to state that sections of the report regarding search terms such as “Lolitas” were relevant because “such a term may be aimed toward the uncovering of materials that are directed to the subject matter of sex with minors.” For appellant, the district court did exclude other and more inflammatory search terms and phrases because it found them more prejudicial than probative.

At trial, the district court heard testimony from a number of witnesses, including: the victim (S.M.), her mother, the police officer who conducted the investigation, Peter Badker (Badker), and the retired police officer who authored the EnCase Report, Brooke Schaub (Schaub).

S.M.’s mother testified mainly about S.M.’s relationship with appellant and the circumstances in which she learned of appellant’s improper behavior with her daughter. Specifically, S.M.’s mother testified that S.M. “froze” one night in the middle of the grocery store when she defined child pornography in the context of a story about a relative. S.M.’s mother testified that she later called social services and reported that S.M. told her appellant “had offered her money to take nude photographs.”

S.M. then testified at length about her experiences with appellant, who is her uncle. And S.M. was cross-examined at length regarding inconsistencies between her trial testimony, and her videotaped statements to Officer Badker. Further specifics regarding S.M.’s testimony will be discussed below.

Badker next testified that, on January 7, 2003, he was contacted by Social Services and given a report that stated, “maternal uncle is soliciting the victim to let him take nude photos of her and offering her money if she complied.” Badker conducted a video-recorded interview with S.M. on the same day. The videotape of the January 7, 2003 interview was admitted without objection and played in its entirety for the district court. Badker conducted a second video-recorded interview of S.M. on January 16, 2003. The January 16 tape was also admitted without objection, -and was played in its entirety for the district court.

Finally, Schaub testified that, in a file entitled “research,” he found the text of Minn.Stat. § 617.246, which included “the definition of minor sexual performance, sexual conduct, things of that nature.” He also testified that he found an encryption program, PGP, on appellant’s computer; PGP “can basically encrypt any filé;” and, “other than the National Security Agency,” he was not aware of anyone who could break such an encryption. But Schaub also admitted that the PGP program may be included on every Macintosh computer that comes out today, and appellant may have had the text of MinmStat. § 617.246 in his computer because of prior allegations against him.

Appellant did not call any witnesses in his defense, and waived his right to testify. After closing arguments and an adjournment, the court explained its findings orally, noting that: appellant frequently hosted sleepovers for 8 to 10-year old girls; appellant’s relationship with S.M. had qualities of a “fixation;” the physical evidence presented was not sufficient to support a conviction, but such evidence was “taken into account;” the “evidence tends to show that an encrypting capability was employed by the Defendant;” and there are “occasions that indicate that there was advance notice of that so called surprising and thorough search warrant” executed at appellant’s home.

The court found that the statements of S.M. were “[cjritically important for the court’s determination,” and acknowledged that it “spent the most time” examining S.M.’s testimony. Further, the court noted that “the poses which [S.M.] described are very specific.” And, the court stated that “there is a consistency that runs from the first time she’s reporting it on through to when she gets off of the stand. In her testimony, the consistency is what is happening to her. It gets amplified; it gets changed in terms of numbers of times, but basic things, is the same.” And “she’s consistent in many respects even on the stand, regarding frequencies, numbers of times it'has happened, and as I sense, not telling the whole- story still. But she’s telling the truth, about the guts of this case, absolutely.”

Finally, the district court found that there was evidence corroborating S.M.’s testimony. The court cited “some evidence of grooming from the photos;” appellant’s “computer knowledge and skills;” and that S.M. “talk[ed] about [appellant] placing stickers on her nipples.”

The district court subsequently found appellant guilty on all four counts. Appellant was sentenced to a stayed sentence on each of the four counts “with concurrent probation and conditions on each count.” This appeal followed.

ISSUES

1. Did the district court err in admitting evidence concerning appellants internet usage and encryption capability for his computer?

2. Is there sufficient evidence to support appellant’s conviction for two counts of Attempted Use of a Minor in a Sexual Performance and two counts of Solicitation of a Minor to Engage in Sexual Conduct?

3. Does the complaint adequately set forth the essential facts constituting the offenses of which appellant was convicted?

4. Did the district court’s findings regarding matters outside of the record deny appellant his right to a fair trial?

5.Does appellants sentence violate Minn. Stat. § 609.04, subd. 1(4) (2002) (multiple convictions), or § 609.035 (2002), which prohibits multiple sentences for offenses arising out of the same behavioral incident?

ANALYSIS

I. Relevance

Appellant first argues that he is entitled to a new trial because the district court erred in admitting irrelevant evidence of his internet usage and the existence of an encryption program on his computer. Rulings involving the relevancy of evidence are generally left to the sound discretion of the district court. State v. Swain, 269 N.W.2d 707, 714 (Minn.1978). And rulings on relevancy will only be reversed when that discretion has been clearly abused. Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn.1994). “The party claiming error has the burden of showing both the error and the prejudice.” State v. Horning, 535 N.W.2d 296, 298 (Minn.1995).

Appellant argues that his “internet use had nothing to do with the issues in this case;” “there was no evidence that there was anything encrypted on the computer;” and that he “was prejudiced because the court specifically used this evidence in its findings of fact and in reaching its verdict.” We are not persuaded by appellant’s arguments. The record shows that appellant took a large number of pictures of S.M. with a digital camera, and that he would upload those pictures onto his computer soon after taking them. We find that evidence of appellant’s internet use and the existence of an encryption program on his computer was at least somewhat relevant to the state’s case against him. See Minn. R. Evid. 401.

II. Double Jeopardy (A)

1. Appellant’s conviction of more than one crime based on the same facts

Before turning to appellant’s sufficiency of the evidence claims, we address the double-jeopardy issues implicated by his four convictions.

In Minnesota, upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both. An included offense is “[a] crime necessarily proved if the crime charged were proved.” Minn.Stat. § 609.04, subd. 1(4), (2002). Subdivision 2 of section 609.04 points out that “[a] conviction or acquittal of a crime is a bar to further prosecution of any included offense .... ” In this case, identical facts were used to fulfill the essential'elements of attempted use of a minor in a sexual performance and soliciting a child to engage in sexual conduct.

Count 1 of the complaint charges appellant with attempted use of a minor in a sexual performance under Minn.Stat. § 617.246, subd. 2 (2002), and ■ Minn.Stat. § 609.17, subd. 1, 4(2) (2002). Count 1 states, in relevant part:

In the time period from approximately July 2002, through mid-December 2002, the defendant ... with the intent to commit a crime ... offered money to and attempted to persuade [S.M.] to allow him to take a photograph of her naked vagina and to pose naked for him with her legs straddling his body as he lays between her legs and takes a picture of her naked vagina.

Count 2 of the complaint charges appellant with attempted use of a minor in a sexual performance under Minn.Stat. § 617.246, subd. 2, and . Minn.Stat. § 609.17, subd. 1, 4(2). Count 2 of the complaint states, in relevant part:

In the time period from approximately late December 2002 through January 4, 2003, the defendant, with the intent to commit a crime ... offered money to and attempted to persuade [S.M.] to pose and to allow the defendant to take a close up photograph of her naked vagina.

Count 3 of the complaint charges appellant with solicitation of a child to engage in sexual conduct under Minn.Stat. § 609.352 (2002). Count 3 of the complaint states, in relevant part:

In the time period from approximately late December 2002 through January 4, 2003 ... the defendant solicited a child ... to wit: offered money to [S.M.] in order to . entice her to pose for a picture and to allow him to take a “straight on” picture of her naked vagina.

And Count 4 of the complaint charges appellant with solicitation' of a child to engage in sexual conduct under Minn.Stat. § 609.352. Count 4 of the complaint" states, in relevant part

In the time period from approximately July 2002, through mid-December 2002 ... the defendant .'.. solicited a child ... to wit: offer money to [S.M.] in order to entice her to allow him to photograph hér naked vagina and to pose naked for him with her legs straddling his body while he lays in between her legs to take the photograph.

The state can try to fashion a complaint with separate charges or counts based on similar conduct, but when the conduct merges into “an included offense,” the defendant can only be convicted of one or the other, the crime charged or an included offense. Put another way, if it is against the law in a particular municipality to ride a horse on Sunday, you cannot be convicted of two separate counts if the first count charges you with “riding a horse” and the second count charges you with “being seen astride a horse.” You will “necessarily prove one” if you prove the other.

Accordingly, we vacate appellant’s two convictions for attempted use of a child in a sexual performance (Counts 1 and 2). Appellant is left with one conviction for solicitation for the time period of “late December 2002 through January 4, 2003,” and one conviction for solicitation for the time' period' of “July 2002, through mid-December 2002.”

Because we vacate two of appellant’s convictions under Minn.Stat. § 609.04, subd. 1(4), we do not need to analyze appellant’s conduct under Minn.Stat. § 609.035 (2002), the “single-behavioral-incident” statute. We note that it is to appellant’s benefit to have his convictions vacated pursuant to Minn.Stat. § 609.04, subd. 1(4). This is so because, under Minn.Stat. § 609.035, relief can lead to sentencing on only one count, but the other convictions would remain on the books and become part of appellant’s record.

2. Sufficiency of the evidence

In light of our vacation of appellants two attempt convictions, we will analyze appellants sufficiency of the evidence claims only in the context of the remaining solicitation convictions (Counts 3 and 4). In considering a claim of insufficient evidence, this courts review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). And this court applies the same standard of review to bench trials and jury trials when examining a sufficiency of the evidence claim. Davis v. State, 595 N.W.2d 520, 525 (Minn.1999).

In State v. Koenig, the supreme court analyzed Minnesota’s solicitation statute, and clarified the definition of the term solicitation as follows:

“Solicit” is defined as “commanding, entreating, or attempting to persuade a specific person. Minn.Stat. § 609.352, subd. 1(c) (2002). The dictionary definition of “solicit is “[t]o seek to obtain by persuasion entreaty, or formal application.” While we do not rely on this definition of solicit because the statute provides a definition, we note that the statute’s definition appears to be in accord with the general understanding of the word “solicit.” “Entreat is defined as “[t]o make an earnest request of.” “Earnest” is defined as “[mjarked by or showing deep sincerity or seriousness.” Regarding an attempt to persuade, an attempt is defined as “[a]n effort or try.” “Persuade” means “[t]o cause (someone) to do something by means of argument, reasoning, or entreaty.” “Command” means “[t]o direct with authority; give orders to.” The statute requires that the acts of commanding, entreating, or attempting to persuade be directed at a specific person. Minn.Stat. § 609.352, subd. 1(c).

666 N.W.2d 366, 373 (Minn.2003) (citations omitted). This court has also stated that “[solicitation, like the offer to engage in sexual conduct for hire, is an inchoate activity which permits application of Minn. Stat. § 609.352 to conduct that is in some degree ambiguous.” State v. McGrath, 574 N.W.2d 99, 102 (Minn.App.1998) (quotation omitted), review denied (Minn. Apr. 14, 1998). These definitions indicate that S.M.’s testimony and out-of-court statements are sufficient to support the remaining convictions. See State v. Lanam, 459 N.W.2d 656, 661-62 (Minn.1990) (holding evidence consisting largely of four-year-old victims out-of-court statement identifying defendant as perpetrator was sufficient to sustain defendants conviction of first-degree criminal sexual conduct).

Here, the district court relied on both S.M.s testimony at trial and her out-of-court statements, which were recorded by Badker on January 7 and 16, 2003. At trial, S.M. testified that appellant first asked her if he could take nude photos of her when she was eight years old, and she agreed to allow such photos when she was nine years old. S.M. also testified at trial that appellant would ask her to pose on the bed or “[slitting on a stool with my hands like this, pushing on the stool, and my legs out,” while wearing nothing, and that appellant asked her to take “the gymnastics” pictures without her clothes on “[f]our or five times.” And S.M. testified that appellant, on numerous occasions, offered her between $5 and $100 to pose nude for him.

In the January 7 interview, S.M. stated that appellant told her he wanted to take a “straight-on” photograph of her vagina “the time before last.” The record indicates that S.M.s reference to “the time before last” meant the second to last time that she visited appellants home, which, as the state points out, would have been in December 2002. In the January 16 interview, S.M. also stated that, in November 2002, appellant took pictures of her without her clothes on and “was telling [her] to do poses” while she was behind a white curtain.

Appellant contends that the evidence is insufficient because S.M.s testimony was, at times, inconsistent. However, even when a child’s statements are inconsistent, such evidence standing alone may support a conviction. See State v. Blair, 402 N.W.2d 154, 158 (Minn.App.1987) (holding that, despite numerous inconsistencies in child-victims testimony, such testimony standing alone supported jurys verdict). Further, the weight and credibility of witnesses testimony are the province of the fact-finder. State v. Dickerson, 481 N.W.2d 840, 843 (Minn.1992). While there were inconsistencies between S.M.s trial testimony and her videotaped statements to Badker, the record is clear that the district court believed her enough to enter a verdict of guilty on the charged counts.

We note that, generally, exact dates need not be alleged where sexual abuse is charged, particularly when child-victims are involved. See State v. Williams, 363 N.W.2d 911, 914 (Minn.App.1985) (noting particular time not an element of offense), review denied (Minn. May 1, 1985); State v. Becker, 351 N.W.2d 923, 927 (Minn.1984) (allowing the state to charge multiple acts of sexual abuse over an unspecified period of time where defendant availed herself of discovery opportunities). However, S.M. did, importantly, identify instances of appellant’s solicitous advances during the two separate time frames in her January 7 and January 16 videotaped statements to Badker.

Finally, appellant argues both that the evidence does not show he was soliciting “lewd” photographs, and that “naked child photography is not illegal.” But, as appellant points out in his own brief, “the purpose of the child-solicitation statute is to prohibit any persuasive conduct by adults that might entice children to engage in sexual activity.” State v. Coonrod, 652 N.W.2d 715, 723 (Minn.App.2002). His only citation in support of the proposition that he was not soliciting S.M. to engage in “sexual activity” is a court of appeals case regarding the conduct of a woman employed as an exotic dancer. See State v. Botsford, 630 N.W.2d 11, 17 (Minn.App.2001), review denied (Sept. 11, 2001). It is clear that the standard for obscenity or lewdness in the context of exotic dancing is not the same as that applied when children are involved. See Koenig, 666 N.W.2d at 373-75.

With S.M.s extensive trial testimony regarding appellants behavior in mind, and viewing the evidence in the light most favorable to the verdict, we find that appellant fails in his challenge to the sufficiency of the evidence on the remaining two counts.

III. Due Process

Appellant next argues that the district court “convicted [him] for allegations that are not charged in the Complaint,” and his right to prepare a defense was therefore infringed upon. Appellant claims that the district court “added an additional offense not charged” when it cited the placing of stickers on S.M.’s breasts as support for -his convictions. This is simply not the case.

Appellant’s claim that “he had no notice that the court was going to render its verdict based on” the breast-sticker incident and, thus, his right to put on a defense was violated, is a misstatement of the law. See State v. Bias, 419 N.W.2d 480, 486 (Minn.1988) (holding “that a conviction after a fair trial will stand unless there is actual proof that defendant has in fact been misled as to the charge brought against him, to his prejudice) (emphasis added).” There was no confusion as to the charges brought here, there were simply more facts brought out at trial than were stated in the complaint. See Minn. R.Crim. P. 2.01 (“[t]he complaint is a written signed statement of the essential facts constituting the offense charged”). As appellant’s counsel conceded in his oral argument before this court, relevant facts not previously listed in the complaint may be, and often are, elicited and admitted during criminal trials. There is absolutely no support for the proposition that the state cannot attempt to introduce evidence not previously identified in the criminal complaint. The complaint is simply the charging document and, as a matter of fact, the standard criminal jury instructions will tell the jury that the complaint itself is not evidence. See 10 Minnesota Practice, CRIMJIG 1.01 (1999). There are criminal rules of procedure governing the pretrial exchange of contemplated evidence. See Minn. R.Crim. P. 7.01. But a claimed discovery violation is not our issue here.

It is clear that the complaint put appellant on notice that he would have to defend himself against allegations that he had attempted to engage S.M. in a sexual performance, and that he had solicited her to engage in sexual conduct. See State v. DeVerney, 592 N.W.2d 837, 847 (Minn.1999). The language of the complaint made plain what the state basically contended had happened. Id. (citation omitted). Accordingly, because the complaint gave appellant sufficient notice of the charges against him, we refuse to overturn the verdict on these grounds.

IV. Findings of Fact

Appellant argues that the district court's findings regarding an alleged lack of surprise on his part when the search warrant was executed, the encryption capability of his computer, and the court’s prior experience in sexual abuse cases, are not supported by the record and indicate appellant did not receive a fair trial; and, thus, reversal of his convictions is required. We disagree. It is clear that the district court, in making these findings in its role as the trier of fact, was simply explaining the reasons behind its credibility determinations. Just as a jury can, in deciding the guilt or innocence of a defendant, a district court is entitled to rely on any admitted evidence that bears on the believability and weight of the witnesses and, in fact, “should rely in the last analysis upon [its] own experience, good judgment, and common sense” in making its decision. See 10 Minnesota Practice, CRIMJIG 3.12 (1999) (“Evaluation of testimony-believability of witnesses”). As such, we find nothing improper in the district court’s explanation of its findings.

We also note that the district court’s findings do not detract from its main holding that S.M. testified truthfully. S.M.’s testimony, if taken as true by the district court, could have been legally sufficient to support the convictions here. See Blair, 402 N.W.2d at 158 (holding despite numerous inconsistencies in child’s testimony, such testimony standing alone supported jury’s verdict). We find appellants argument on this issue without merit.

V. Double Jeopardy (B)

Finally, appellant argues that his sentence violates Minn.Stat. 609.035 (2002). Minnesota’s statutory double jeopardy protection prohibits multiple sentencing for conduct that is part of a single behavioral incident. MinmStat. § 609.035, subd. 1.

As noted, this issue is mooted by our decision to vacate appellant’s two attempt convictions using the authority of Minn. Stat. § 609.04, subd. 1(4). Thus, the sentences imposed by the district court on those two counts cease to exist and no analysis under section 609.035 is needed.

As earlier noted, we reject appellant’s sufficiency argument on the solicitation charges, and find there is enough evidence in the record to support sentencing appellant on the two remaining solicitation charges, one in each of the two different time frames. Accordingly, we remand to the district court for resentencing consistent with this opinion.

DECISION

Evidence of appellant’s computer usage and the presence of an encryption program on his computer was relevant to the . state’s case. We affirm the district court’s evi-dentiary rulings.

Because we find that appellant’s two convictions for attempted use of a minor in a sexual performance were based on the same facts and the same time frame as his two solicitation convictions, we vacate his convictions on the attempt charges. Appellant’s other challenges to his solicitation convictions are without merit.

Because of our reversal and vacation of appellant’s attempt convictions, we vacate those two sentences and remand to the district court for resentencing.

Affirmed in part, reversed and vacated in part, and remanded.

      . An EnCase Report is a summary of the contents of appellant’s computer hard-drive. EnCase "is a forensic program sold to law enforcement ... [tjhat’s used for obtaining images of hard-drives.”

      . Historically, Minn.Stat. § 609.035 and Minn.Stat. § 609.04, subd. 1(4) are close, if not interchangeable. An examination of a 1966 case, State v. Reiland, (which we do not need because, as stated above, we are deciding this case based on section 609.04), shows an intentional emphasis on section 609.035 as preventing multiple prosecutions as well as multiple punishment where you have a classic "single behavioral incident." See 274 Minn. 121, 123, 142 N.W.2d 635, 637 (1966) ("while there is no necessity for reiterating the background, policy, and purpose of the statute, it must be emphasized that it does prohibit multiple prosecutions as well as double punishment. ...”).
      In recent years, section 609.04 has been used as the means to vacate convictions. See State v. Bookwalter, 541 N.W.2d 290, 294 n. 2 (Minn.1995) ("Minnesota Statute section 609.04 generally governs the question of whether multiple convictions, as opposed to multiple sentences, are permitted.”); accord Langdon v. State, 375 N.W.2d 474, 476 n. 1 (Minn. 1985) ("The issue of when multiple convictions based on a single act or behavioral incident are permitted is covered by Minn. Stat. § 609.04 (1984), which is not at issue here, since petitioner, by pleading guilty to four burglary charges, in effect conceded that four convictions were proper.”).

      . We note that appellant’s trial counsel did not object when the videotapes were received in evidence at trial. And failure to make a timely objection to the admission of evidence is a bar to appeal. State v. Miller, 573 N.W.2d 661, 675 (Minn.1998). Nevertheless, if the admission is plain error it may be reviewed. Id. But appellant does not argue plain error and issues not briefed on appeal are waived. State v. Butcher, 563 N.W.2d 776, 780 (Minn.App.1997), review denied (Minn. Aug. 5, 1997). We also note that, at trial, appellant’s counsel stated on the record his objection to Badker testifying at length regarding the taped interview because the tape was "the best evidence” of what was said, and of S.M.’s demeanor at the time. On appeal, appellant's counsel now argues that "[t]he videotape was presumably offered into evidence as a prior consistent statement” and "[t]he use of the videotape to convict Appellant ... violates defendant's right of confrontation and demonstrates that there is little admissible evidence to support these convictions.” But it is clear that the tapes were admitted at trial as substantive evidence with no restrictions, and that appellant’s counsel vigorously cross-examined S.M. regarding the differences between her trial testimony and her videotaped statements.


author: PORITSKY , Judge.

text:
    LAW ENFORCEMENT LABOR SERVICES, INC., Local No. 158, et al., Appellants, v. SHERBURNE COUNTY, et al., Respondents.
    No. A04-1474.
    Court of Appeals of Minnesota.
    May 3, 2005.

      Marylee Abrams, Tiffany L. Schmidt, Law Enforcement Labor Services, Inc., St. Paul, MN, for appellants.
    Scott M. Lepak, Barna, Guzy & Steffen, Ltd., Coon Rapids, MN, for respondents.
    Considered and decided by WILLIS, Presiding Judge; STONEBURNER, Judge; and PORITSKY, Judge.
   OPINION

PORITSKY , Judge.

This appeal is from a summary judgment dismissing appellant-labor union’s claims seeking relief from a county-employer’s unilateral implementation of a random drug-testing policy, established by the county in accordance with Minn.Stat. § 181.951, subd. 4 (2004). We conclude that the establishment of a random drug-testing policy as expressly authorized by statute, including the designation of which employees are in the “safety-sensitive” positions, is not subject to collective bargaining even though it affects the terms and conditions of employment. But aspects of the implementation of the policy that are not inextricably intertwined with its establishment are mandatory subjects for collective bargaining. Thus, when the county unilaterally imposed terms and conditions of employment under such a policy without providing an opportunity to bargain the terms of its implementation, the county committed an unfair labor practice. Appellants did not waive their right to pursue an unfair-labor-practice claim when they refused the county’s offer to “meet and confer” on the policy. Finally, we conclude that the establishment of a random drug-testing policy for employees in safety-sensitive positions does not violate the employees’ Fourth Amendment rights. We therefore (1) affirm the district court’s determination that the establishment of the policy does not constitute an unfair labor practice, (2) affirm the court’s denial of the Fourth Amendment claim, but (3) reverse the district court’s determination that the parties had no obligation to meet and negotiate those aspects of the policy’s implementation that are severable from its establishment, and remand with directions that the district court allow the union to pursue its unfair-labor-practice claim, insofar as the claim relates to bargainable terms of the policy’s implementation.

FACTS

As exclusive representative, the appellant labor union is responsible for contract negotiations, grievance representation, and internal-affairs representation for its members. In September 2003, Sher-burne County’s human resources director sent a memorandum to the union proposing to amend the county’s existing alcohol and drug use policy to include random drug testing of employees in safety-sensitive positions in accordance with the Minnesota Drug and Alcohol Testing in the Workplace Act (Workplace Testing Act). The memorandum stated that the county was willing to meet and confer on the proposed amendments. The union replied with its position that the proposed amendments constituted terms and conditions of employment under the Minnesota Public Employment Labor Relations Act (PELRA),. so that-the county was required to meet and negotiate over the proposed amendments prior to implementation. At about the same time, the county met and conferred with another bargaining unit, which had no objection to the proposed policy changes.- The county then adopted the amendments in October 2003.

In January 2004, the union reiterated its opposition to the amendments and, in February 2004, submitted a grievance under its labor agreement with the county, alleging failure to meet and negotiate over terms and conditions of employment. Just prior to filing the grievance the union learned that the county had tested three employees in accordance with the .amended policy.

LELS and Local No. 158, the local representing patrol deputies, investigators, and transport/security deputies, filed a complaint in district court, seeking injunc-tive relief restraining the county from unilaterally implementing the policy,, damages, and an order requiring the county to meet and negotiate over the terms of the drug-testing policy. The district court denied the union’s application for a temporary restraining order. After both parties moved for summary judgment, the district court granted the union’s motion to amend the complaint to allege a violation of Fourth Amendment rights and to add Local 158.12, representing 911 dispatchers, as a plaintiff.

The district court- rendered summary judgment for the county, denying all of the union’s claims. The court determined that although the amended testing policy had an impact on the terms and conditions of employment, the policy was inseparable from its implementation under the Workplace Testing Act. Further, the court ruled that . the requirement of Minn.Stat. § 181.955, subd. 1- (2004), that bargaining be permitted over a drug-testing policy that “meets or exceeds” the minimum statutory requirements, did not apply when the policy did not differ meaningfully from the statute. The union has appealed, arguing that (1) the district court erred as a matter of law in concluding that the establishment and implementation of the policy did not require collective bargaining under PELRA; (2) the imposition of the policy constituted an unfair labor practice under the parties’ collective-bargaining agreement, which the union did not waive; and (3) the application of the policy to its members violated the Fourth Amendment.

ISSUES

I. Did the district court err in concluding as a matter of law that both the establishment and implementation of the county’s random drug-testing policy were not subjects for mandatory collective bargaining?

' II. Did the county’s' unilateral Imposition of the random drug-testing policy constitute an unfair labor practice, and if so, did the union waive its right to pursue an unfair-labor-practice claim when it did not accept the county’s offer to meet and confer?

III. Did the implementation of the random testing policy violate the Fourth Amendment rights of affected employees?

ANALYSIS

I

The district court granted summary judgment for the county on the basis that the county’s random drug-testing policy, established and implemented under the Workplace Testing Act, did not require collective bargaining with the union. When a district court grants summary-judgment based on the application of a statute to undisputed facts, the result is a legal conclusion that is reviewed de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998). Statutory construction is similarly a question of law, renewable on a de novo basis. Wiegel v. City of St. Paul, 639 N.W.2d 378, 381 (Minn.2002).

In examining the application of a statute, we look first to its language to ascertain and effectuate legislative intent. Minn.Stat. § 645.16 (2004) (setting forth plain meaning rule); Kersten v. Minn. Mut. Life Ins. Co., 608 N.W.2d 869, 874-75 (Minn.2000). If the meaning of a statute is plain, judicial construction is neither necessary nor proper. Occhino v. Grover, 640 N.W.2d 357, 359 (Minn.App.2002), review denied (Minn. May 28, 2002). Plain meaning embodies ordinary use of language in the context of the whole-act structure, applying the usual conventions of syntax and grammar. Id. Statutory interpretation should, if possible, give effect to all the provisions of a statute, and “ ‘no word, phrase, or sentence should be deemed superfluous, void, or insignificant.’ ” Baker v. Ploetz, 616 N.W.2d 263, 269 (Minn.2000) (quoting Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999)). In addition, courts must presume that the legislature intends to give effect to all the provisions of a statute, Minn.Stat. § 645.17(2) (2004), and must construe every law, if possible, in order to give effect to all its provisions. MinmStat. § 645.16.

When employers — either public or private — seek to require employees to undergo drug testing, the matter is governed by the Workplace Testing Act, MinmStat. §§ 181.950-.957 (2004). Section 181.951 generally authorizes employers to “request or require” employees to undergo such testing, but, at the same time, imposes limits on that authority. Subdivision 4 of section 181.951 specifically provides that “[a]n employer may request or require only employees in safety-sensitive positions to undergo drug and alcohol testing on a random selection basis.” The Workplace Testing Act defines “safety-sensitive positions” as positions “in which an impairment caused by drug or alcohol usage would threaten the health or safety of any person.” MinmStat. § 181.950, subd. 13.

The Workplace Testing Act, MinmStat. § 181.955, subd. 1, also permits collective bargaining on drug-testing policies that “meet or exceed” the act’s requirements. That subsection provides:

Sections 181.950 to 181.954 shall not be construed to limit the parties to a collective bargaining agreement from bargaining and agreeing with respect to a drug and alcohol testing policy that meets or exceeds, and does not otherwise conflict with, the minimum standards and requirements for employee protection provided in those sections.

Id. (emphasis added).

Because the county is a public employer, we consider the application of the Workplace Testing Act in this case under the requirements for collective bargaining imposed by PELRA. Under PELRA, public employers are not required to negotiate over “matters of inherent managerial policy.” Minn.Stat. § 179A.07, subd. 1 (2004). Such matters include discretionary or policy matters such as an employer’s functions or programs, budget, technology use, organizational structure, and the selection, direction and numbers of personnel. Id. But PELRA imposes on a public employer the “obligation to meet and negotiate in good faith ... regarding grievance procedures and the terms and conditions of employment.” Minn.Stat. § 179A.07, subd. 2 (2004). Terms and conditions of employment are defined under PELRA as hours, compensation, certain benefits, and “personnel policies affecting the working conditions of the employees.” Minn.Stat. § 179A.03, subd. 19 (2004).

The Minnesota Supreme Court has recognized that in some close cases, “inherent managerial policy” overlaps with “terms and conditions of employment.” Law Enforcement Labor Servs., Inc. v. County of Hennepin, 449 N.W.2d 725, 727 (Minn.1990) (quotation omitted). In these cases, “[i]f the policy decision ... is so intrinsically interwoven with its implementation that to require the public employer to negotiate its implementation would also force it to negotiate the underlying policy decision, no negotiation is required.” Id. In cases where there is such an overlap, a two-step process is required: first, the court must determine whether the policy has an impact on “terms and conditions' of employment,” and second, if it does, the court must ascertain whether the policy’s establishment is separate and distinct from its implementation. Id at 728.

If the establishment and the implementation are not separate and distinct, implementation is not subject to mandatory bargaining. See id. at 729 (concluding that because, establishment of grooming policy for sheriffs department personnel was inseparable from implementation of policy, mandatory bargaining was not required). But if establishment and implementation are separate and distinct, implementation is subject to bargaining. In City of West St. Paul v. Law Enforcement Labor Servs., Inc., 481 N.W.2d 31, (Minn.1992), the city had a police ride-along program. One part of the program was for people training to become licensed police officers, and the court ruled that this part of the program was “inextricably entwined” with the establishment of the program and thus not subject to mandatory bargaining. Id. at 35. But as to another part of the program, which was for Explorer Scouts and other community volunteers, the implementation was sufficiently sever-able from the decision to establish the program such that implementation was subject to mandatory bargaining. Id; see also Law Enforcement Labor Servs., Inc. v. City of Luverne, 463 N.W.2d 546, 549-50 (Minn.App.1990) (implementation of certain aspects of physical examination policy for police officers was not so inextricably intertwined with policy itself so as to render those aspects nonnegotiable), review denied (Minn. Feb. 20,1991).

Accordingly, we first determine whether the county’s establishment of the random drug-testing policy is subject to negotiation. In City of West St. Paul the supreme court had “no difficulty, ... in concluding that the decision to establish a particular ride-along program is generally a discretionary policy decision not subject to mandatory bargaining.” 481 N.W.2d. at 34. Here, the county’s policy for random drug, testing furthers the county’s function of providing for the public safety at least to the same degree as did that part of West St. Paul’s ride-along program for persons training to become licensed police officers, and certainly more than did that part of the West St.’ Paul’s program for Explorer Scouts. See also City of Luverne, 463 N.W.2d at 548 (police officer’s union agreed that establishment of physical examination policy applicable to all full-time employees was a matter of inherent managerial right, even though union challenged policy’s implementation.)

As we have noted, the Workplace Testing Act authorizes an employer to “request or require” drug and alcohol testing, Minn. Stat. § 181.951, subd. 1, and further authorizes the employer, subject to certain limits, to “request or require” random drug testing. Id. subd. 4. If the language authorizing testing has any meaning, in our view it must at least refer to an employer’s right to establish a random drug-testing policy, or else it has no meaning.

In a similar vein, we note that the union, while arguing that the employees have a right to collectively bargain over any random drug testing, does acknowledge that the Workplace Testing Act protects “an employers’ [sic] right to choose whether to test.” Here, too, we conclude that if the county has any right to choose whether to test, that right must include the right to establish a random drug-testing program, or else the county has no right whatsoever under section 181.951, subdivision 4.

Consequently, we conclude that the district court did not err in its implicit ruling that the county’s decision to establish a random drug-testing policy is an inherent managerial right. This conclusion leads to the next step in the analysis: Does the decision have an impact on the terms and conditions of employment? On this issue we agree with the district court’s finding that, “[t]he random drug testing policy has an impact on the union members’ terms and conditions of employment, because members would be subject to a change of duties, discipline, and possible dismissal.”

The final step in this analysis is to determine whether the establishment of the policy under Minn.Stat. § 181.951, subd. 4 is inseparable from the policy’s implementation, so that neither the establishment nor the implementation of the policy is subject to collective bargaining. On this issue, we look first to that part of the policy designating certain categories of employees as “safety sensitive” and thus subject to testing. The Workplace Testing Act specifically authorizes testing of employees in “safety-sensitive positions,” Minn.Stat. § 181.951, subd. 4, and defines those positions as those “in which an impairment caused by drug or alcohol usage would threaten the health or safety of any person.” Minn.Stat. § 181.950, subd. 13. The county’s policy identifies the following categories of employees as safety sensitive: jail personnel, patrol officers, investigators, the director of emergency management, and transport/court security deputies. This provision sufficiently describes the scope of positions subject to testing, and there can be no serious question that all the positions on the county’s list are those with duties that implicate the public safety and health. In our view, to require the county to bargain on the issue of which positions are safety sensitive would “likely hamper the establishment of the policy.” City of West St. Paul, 481 N.W.2d at 34. We conclude, therefore, that designation of which positions are safety sensitive, and thus subject to the policy, is so interwoven with the establishment of the policy that to force the county to negotiate the issue of designation would be to force the county to negotiate the underlying policy. We further conclude although designating which positions are safety sensitive may be part of implementing the policy, the county is not required to negotiate on that issue.

We disagree, however, with the district court’s conclusion that, as a matter of law, none of the aspects of the policy’s implementation is severable from its establishment. The plain language of Minn.Stat. § 181.955, subd. 1, permits the parties to bargain, concerning a policy that “meets or exceeds” the minimum standards for employee protection specified in-the Workplace Testing Act. This is consistent with legislative policy that provisions of the Workplace Testing Act were intended to provide a level of minimum mandated protection for employees affected by random drug testing. See Barbara Jean D’Aquila, Drug and Alcohol Testing in the Workplace: the Legislative Response, 14 Wm. Mitchell L.Rev. 255, 270 (1988) (“In an organized labor setting, the [Workplace Testing] Act only establishes the statutorily-minimum protections that employers must provide to employees.”).

Although it is not the province of the courts to suggest which areas are subject to collective bargaining, we agree with the union that such areas exist. Therefore, we conclude that the district court erred in determining that the parties had no obligation to meet and negotiate concerning those areas of implementation of the county’s random drug-testing policy.

II

Since we have determined that the union has collective bargaining rights in some areas of policy implementation, we address whether the county engaged in an unfair labor practice by refusing to meet and negotiate concerning those areas. Under PELRA, an employer has engaged in an unfair labor practice if it “refus[ed] to meet and negotiate in good faith with the exclusive representative of its employees in an appropriate unit.” MinmStat. § 179A.13, subd. 2(5) (2004). This requirement comports with the established labor law principle that a unilateral change by an employer in the terms and conditions of employment constitutes a prima facie violation of the employees’ collective-bargaining rights. Foley Educ. Ass’n v. Indep. Sch. Dist. No. 51, 353 N.W.2d 917, 920-21 (Minn.1984) citing NLRB v. Katz, 369 U.S. 736, 742-43, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962). In order to constitute an unfair labor practice, the unilateral change must affect a mandatory bargaining term and be inconsistent with past practices of the parties. Id. at 921. “The crucial inquiry in such event is whether the employer’s unilateral action deprived the union of its right to negotiate a subject of mandatory bargaining.” Id. This court has recently held that a unilateral freeze in wages and benefits, coupled with an employer’s failure to respond to the employees’ union’s demand for bargaining, constituted a refusal to bargain, which was an unfair labor practice. Educ. Minn.Greenway, Local 1330 v. Indep. Sch. Dist. No. 316, 673 N.W.2d 843, 851 (Minn.App.2004), review denied (Minn.Apr.20, 2004).

The county argues that its amendment of the policy was consistent with past practice because a previous drug and alcohol testing policy was already in place, which operated outside of the collective bargaining process, and that the collective bargaining agreement gave the county broad authority to establish any term or condition of employment not specifically referenced in the agreement. But Minnesota courts have recognized that under the past-practices doctrine, “the industrial law- — the practices of the industry and the shop — is equally a part of the collective bargaining agreement although not expressed in it.” Ramsey County v. AFSCME, Council 91, Local 8, 309 N.W.2d 785, 791 (Minn.1981) (quoting United, Steelworkers of Am.v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-82, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960)). And the past drug-testing policy allowed testing only in for-cause situations: job applications, reasonable suspicion to test, or if an employee had participated in a prescribed chemical dependency program. The amended drug-testing policy provided an increased level of intrusiveness for affected employees and was therefore inconsistent with past practice. Further, the application of the PELRA analysis and Minn.Stat. § 181.955, subd. 1, which recognizes that certain areas of implementation of a drug-testing policy are subject to collective bargaining, supports the determination that a unilateral change occurred, affecting mandatory bargaining terms.

The county further argues that the union waived its right to bargain concerning these terms when it failed to respond to the county’s offer to “meet and confer” concerning the random-testing policy. Minnesota courts have recognized that “[i]n order to waive a statutory right to negotiate on a mandatory subject of bargaining, a union must express its intention to waive in ‘clear and unmistakable language.’ ” City of Luverne, 463 N.W.2d at 550 quoting Gen. Drivers Union Local 346 v. Indep. Sch. Dist. No. 704, 283 N.W.2d 524, 527 (Minn.1979). The drug-testing policy was initially outlined in a memorandum that gave the union an opportunity to “meet and confer” about the proposed changes. But under PELRA, “meet and confer” has a substantially different meaning from “meet and negotiate.” Compare Minn.Stat. § 179A.03, subd. 10 (2004) (defining “meet and confer” as “the exchange of views and concerns between employers and their employees”); with Minn.Stat. § 179A.03, subd. 11 (2004) (defining “meet and negotiate” as “the performance of the mutual obligations of public employers and the exclusive representatives of public employees to meet at reasonable times ... with the good faith intent of entering into an agreement on terms and conditions of employment”). Thus, the county’s offer to “meet and confer” did not constitute an offer to “meet and negotiate,” and we conclude that the union did not waive its collective-bargaining rights by not agreeing to the county’s offer. Therefore, we remand for the district court to make a determination on the union’s request for injunctive relief and, if appropriate, to order damages.

Ill

The union also argues that the county’s implementation of the random-testing policy for “safety-sensitive” employees, which is authorized by the Workplace Testing Act, violates the Fourth Amendment rights of the affected employees. The district court granted the union’s motion to add this cause of action to its complaint but granted summary judgment denying the claim without comment.

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. Const, amend. IV; Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 613-14, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989). In criminal cases, “[ejxcept in well-defined circumstances” a search is not reasonable unless it is accomplished pursuant to a warrant issued upon probable cause. Id. at 619, 109 S.Ct. at 1414. But the Supreme Court has recognized limited exceptions to this rule in “when special needs, beyond the normal need for law enforcement make the warrant and probable-cause requirement impracticable.” Id. (quotation omitted). In those situations, a court carefully balances an individual’s need for privacy against the government’s need to conduct the search. Id. Thus, the Supreme Court in Skinner upheld Federal Railway Administration’s regulation requiring breath and urine tests of all employees involved in accidents and allowed for reasonable-suspicion testing after a violation of safety rules. Id. at 623-33, 109 S.Ct. at 1417-22. Moreover, the Court has upheld drug testing even when there was no individualized suspicion of wrongdoing on the part of the persons tested. See Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 660-61, 677, 109 S.Ct. 1384, 1396-97, 103 L.Ed.2d 685 (1989) (as condition of placement or employment in positions directly involving the interdiction of illegal drugs or positions that require carrying firearms, customs agents could be required to undergo drug testing).

Following the reasoning in Skinner, the Minnesota federal district court has held that Metropolitan Council’s random drug-testing policy for its wastewater treatment plant employees did not violate the Fourth Amendment. Geffre v. Metro. Council, 174 F.Supp.2d 962, 967-68 (D.Minn.2001). In Geffre, the court issued summary judgment for the employer, concluding in relevant part that as a matter of law, the drug testing was reasonable because the employees occupied safety-sensitive positions. Id. In analyzing the Fourth Amendment claim, the court concluded that the Metropolitan Council had a special need because there was a risk of serious personal injury and harm to public health and the environment. Id. Further, the plaintiffs had a diminished expectation of privacy, as did the railway workers in Skinner, because they worked in an industry that was heavily regulated to insure safety. Id. The court also noted that the testing procedure was designed to minimize the intrusion on employees’ privacy. Id. at 968. Thus, on the Fourth Amendment claim, the court ruled that employees could be subject to random drug testing, even though there was no individualized reason for singling out the persons tested.

Here, the union argues that the application of the county’s policy impermissibly bypasses the required fact-specific constitutional scrutiny of the balancing test by permitting the county to require random drug testing of employees in safety sensitive positions. But, as in Von Raab and Geffre, here there is a risk of serious harm to the public, should the designated safety-sensitive employees be working under the influence of alcohol or drugs. The public employees involved in the present case also have a diminished expectation of privacy through their work in safety-sensitive positions with the county. And the county’s policy specifically references the Workplace Testing Act, which provides reliability and fairness safeguards for testing, including standards for laboratories used, the employee’s right to explain a positive test, the right to obtain a confirmatory retest, and a limitation on discharge or discipline 'without a confirmatory retest. Minn.Stat. §§ 181.953. In light of all these considerations, we conclude that the district court did not err in granting summary judgment for the county on the Fourth Amendment claim.

DECISION

We conclude that the establishment of .a random drug-testing policy under the Workplace Testing. Act is an inherent managerial right and not subject to collective bargaining under PELRA. As to the implementation of the policy, the categorization of which positions are “safety sensitive” is so intertwined with the establishment of the policy as to be equivalent to its establishment and not, therefore, subject to collective bargaining. But in other areas not covered by the Workplace Testing Act, the implementation of the policy may be separated from the policy’s establishment and thus requires collective bargaining as provided by Minn.Stat. § 181.955, subd. 1 (2004). As- to those areas, the county committed an unfair labor practice by refusing to meet and negotiate with the -union. Finally, the application of the random drug-testing policy to employees who occupy “safety-sensitive” positions does not violate the employees’ Fourth-Amendment rights.

Affirmed in part, reversed in part, and remanded.

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

      . Appellants are Law Enforcement Labor, Services, Inc., (LELS) a labor union representing law enforcement personnel throughout Minnesota, and its Locals No. 158 and 158.12, which represent patrol deputies, investigators, transport/security deputies, and 911 dispatchers employed by Sherburne County. All three appellants will be collectively referred to as "the union.”

      . The policy provides in part: "Violations of this policy will constitute just cause for discipline, up to and including discharge.”

      . The policy specifically identifies the following safety-sensitive positions: "corrections officer, jail sergeant, jail captain, jail administrators, jail recreation/programming staff, master control operators, patrol deputies, patrol sergeants, patrol captain, investigators, investigative sergeant, director of emergency management, and transport/court security deputies.”

      . In City of Luveme this court said: "We decline to hold the parties to the ... areas ... as either negotiable or non-negotiable. Rather, the parties must be free to explore a variety of avenues in negotiating the implementation of the policy.” 463 N.W.2d at 550 n. 3.

      . The Minnesota Supreme Court has recognized, in interpreting PELRA, that "it is often instructive to refer to decisions interpreting the National Labor Relations Act (NLRA), 29 U.S.C.A. §§ 151 to 168.” Int’l Union of Operating Eng'rs, Local No. 49 v. City of Minneapolis, 305 Minn. 364, 368, 233 N.W.2d 748, 752 (1975).

      . The union has made no claims under the Minnesota Constitution.

      . The union also argues on appeal that the county impermissibly equated the category of "safety-sensitive” employees with the broader designation of "essential employees” who are not permitted to strike. See Minn.Stat. § 179A.03, subd. 7 (2004) (defining "essential employees”). But the district court did not rule on this issue, and we decline to consider it on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (reviewing court must generally consider only issues presented and considered by district court).