author: PETERSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Raven A. TRACY, Appellant.
    No. C4-02-1662.
    Court of Appeals of Minnesota.
    Aug. 8, 2003.

      Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, MN; and Lisa Borgen, Clay County Attorney, Clay County Courthouse, Moor-head, MN, for respondent.
    John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by PETERSON, Presiding Judge, ANDERSON, Judge, and PARKER, Judge.

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

   OPINION

PETERSON, Judge.

Appellant Raven A. Tracy was convicted of conspiracy to commit a first-degree controlled-substance crime in violation of Minn.Stat. §§ 152.021, subd. 1(1) (sale of controlled substance), 152.096, subd. 1 (2000) (prohibiting conspiracies); and conspiracy to commit a controlled-substance crime in violation of Minn.Stat. §§ 152.0261, subd. 1 (importing controlled substance across state borders), 152.096, subd. 1 (2000) (prohibiting conspiracies). In this appeal from her conviction of conspiracy to import a controlled substance, appellant argues that (1) Minn.Stat. § 152.0261 (2000) is violated only where a defendant crosses a Minnesota border while in possession of a controlled substance; and (2) the evidence fails to support the court’s verdict that she was guilty of conspiring to import a controlled substance across state borders. Alternatively, appellant argues that because her convictions were part of a single behavioral incident, she should not have been sentenced on both convictions. We reverse.

FACTS

When police officers executed a search warrant at the residence of Patricia Schwartz in Moorhead, Minnesota, they found: 17 grams of methamphetamine; drug paraphernalia for personal use of controlled substances and for use in the sale and distribution of controlled substances; an “owed/paid” list; two address books that contained appellant’s name with a California address; and an envelope addressed to “R. Tracy” at a San Leandro, California address. The envelope contained $8,000 and a letter purportedly referencing several drug transactions between appellant and Schwartz.

Based on the evidence found in Schwartz’s home, officials in California executed a search warrant at appellant’s California address. Officers found a small amount of methamphetamine and an address book containing Schwartz’s name and address. Subpoenaed telephone records showed numerous calls between appellant and Schwartz.

Appellant stipulated that she and Schwartz had an arrangement under which appellant provided methamphetamine to Schwartz, and Schwartz divided up and sold the methamphetamine in Clay County, Minnesota. Schwartz then mailed to appellant the cash she received for the methamphetamine. The specific arrangements were made by telephone, and the United States postal service was used to deliver the drugs and money.

Two of Schwartz’s friends, Michelle Specht and Carl Renecker, occasionally received packages of methamphetamine from appellant, which they, in turn, routed to Schwartz.

Following a bench trial, the court found appellant guilty of conspiracy to commit a first-degree eontrolled-substance crime in violation of Minn.Stat. §§ 152.021, subd. 1(1) (sale of controlled substance), 152.096, subd. 1 (2000) (prohibiting conspiracies); and conspiracy to commit a controlled-sub-stanee crime in violation of Minn.Stat. §§ 152.0261, subd. 1 (importing controlled substance across state borders), 152.096, subd. 1 (2000) (prohibiting conspiracies). The court sentenced appellant to concurrent terms of 105 months for conspiracy to sell and 129 months for conspiracy to import a controlled substance.

In her appeal to this court, appellant challenges the sufficiency of the evidence to support her conviction of conspiracy to import a controlled substance. During oral argument, the state argued that appellant waived her sufficieney-of-the-evi-dence claim when she entered a Lothen-bach plea.

ISSUES

1. Did appellant waive her sufficiency-of-the-evidenee claim?

2. Is the evidence sufficient to convict appellant of conspiring to import a controlled substance across a Minnesota border in violation of Minn.Stat. §§ 152.0261, subd. 1, 152.096, subd. 1 (2000)?

ANALYSIS

Minn.Stat. § 152.0261, subd. 1 (2000), provides:

A person who crosses a state or international border into Minnesota while in possession of an amount of a controlled substance that constitutes a first degree controlled substance crime under section 152.021, subdivision 2, is guilty of importing controlled substances and may be sentenced as provided in subdivision 3.

Minn.Stat. § 152.096, subd. 1 (2000), provides:

Any person who conspires to commit any act prohibited by this chapter * * * is guilty of a felony and upon conviction may be imprisoned, fined, or both, up to the maximum amount authorized by law for the act the person conspired to commit.

Appellant argues that the evidence is insufficient to prove beyond a reasonable doubt that she conspired to import a controlled substance across a Minnesota border because there is no evidence that the conspirators agreed that they would physically cross a Minnesota border while in possession of a controlled substance.

1. Citing State v. Busse, 644 N.W.2d 79 (Minn.2002), the state argued for the first time at oral argument that because appellant entered a Lothenbach plea, she waived any claim that the evidence is not sufficient to support her conviction. The state provided written notice that pursuant to Minn. R. Civ.App. P. 128.05, it intended to cite Busse at oral argument.

Minn. R. Civ.App. P. 128.05 states:

If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed or after oral argument but before decision, a party may promptly advise the clerk of the appellate courts by letter, with a copy to all other parties, setting forth the citations. The letter must state without argument the reasons for the supplemental citations, referring either to the page of the brief or to the point argued orally. Any response must be made promptly and must be similarly limited. Minn. R. Civ.App. P. 128.05 (2000) advi-

sory comm. cmt. states:

The rule contemplates a very short submission, simply providing the citation of the new authority and enough information so the court can determine what previously-made argument it relates to.

Rule 128.05 does not authorize a party to raise issues at oral argument that were not previously raised; it authorizes a party to provide supplemental citations of new authority for an argument that was previously made. Because the state did not argue in its brief that appellant waived her sufficiency-of-the-evidence claim when she entered a Lothenbach plea, it may not make this argument for the first time during oral argument. See State v. Butcher, 563 N.W.2d 776, 780 (Minn.App.1997) (issues not briefed on appeal are waived); review denied (Minn. Aug. 5, 1997). We, therefore, decline to address the waiver issue.

2. In considering a claim of insufficient evidence, this court’s 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 permit the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

Appellant waived her right to a jury trial, and, consequently, the district court was the fact-finder.

It is well established that the findings of the [district] court, after waiver of a jury trial by a defendant, are entitled to the same weight as a jury verdict.

State v. Bouwman, 354 N.W.2d 1, 4 (Minn.1984) (quotation and citations omitted).

Whether a statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). When the words in a statute are clear and unambiguous, courts must give effect to their plain meaning. Minn.Stat. § 645.16 (2002); McCaleb v. Jackson, 307 Minn. 15, 17 n. 2, 239 N.W.2d 187, 188 n. 2 (1976). A statute may not be interpreted to create criminal offenses that the legislature did not contemplate. State v. Soto, 378 N.W.2d 625, 627-28 (Minn.1985).

The rule of strict construction of criminal statutes is essential to guard against the creation of criminal offenses outside the contemplation of the legislature, under the guise of “judicial construction.”

Id. at 628 (citations omitted). However, this court is not required to give a statute the narrowest possible interpretation. State v. Wagner, 555 N.W.2d 752, 754 (Minn.App.1996).

[T]he crime of conspiracy requires (1) an agreement between two or more people to commit a crime and (2) an overt act in furtherance of the conspiracy.

State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.2001). Proof of a formal agreement to commit a crime is not required, but there must be evidence that objectively indicates an agreement between the parties to commit a crime. State v. Hatfield, 639 N.W.2d 372, 376 (Minn.2002). The elements of the underlying crime need not be proven to establish conspiracy since the crime itself need not be proven to prove conspiracy. State v. Strodtman, 399 N.W.2d 610, 615 (Minn.App.1987), review denied (Minn. Mar. 25, 1987). But, there must be “both knowledge of an agreement and evidence of intent to commit the crime or act that is the object of the conspiracy.” Kuhnau, 622 N.W.2d at 556.

Appellant was convicted of conspiring to violate Minn.Stat. § 152.0261, subd. 1. Under that statute, a violation occurs when a person “crosses a state or international border into Minnesota while in possession of [a specified] amount of a controlled substance.” Therefore, to prove the conspiracy, there must be evidence that objectively indicates an agreement to cross a border into Minnesota while in possession of a controlled substance.

Appellant stipulated that she mailed methamphetamine to Schwartz and Reneker in Minnesota. There is no evidence that appellant, Schwartz, Reneker, or Specht agreed to cross a Minnesota border while possessing the methamphetamine or that any of them crossed a Minnesota border while possessing the methamphetamine. The packages of methamphetamine crossed a Minnesota border in the mail.

The state argues that appellant has cited no authority that supports her argument that a criminal conspiracy exists only when the agreement of the conspirators is that members of the conspiracy will perform all the acts necessary to commit the crime. But Minn.Stat. § 152.096, subd. 1, explicitly provides that “[a]ny person who conspires to commit any act prohibited by this chapter * * * is guilty of a felony,” and the act that is prohibited by Minn.Stat. § 152.0261, subd. 1, is crossing a Minnesota border while in possession of a specified amount of a controlled substance. The plain language of Minn.Stat. § 152.096, subd. 1, requires that the conspirators conspire to commit a prohibited act, which does not include conspiring to cause another to commit a prohibited act.

[W]hen a statutory question involves the failure of expression rather than the ambiguity of expression, this court is not free to substitute amendment for construction and thereby supply the omissions of the legislature.

Tracy State Bank v. Tracy-Garvin Coop., 573 N.W.2d 393, 395 (Minn.App.1998) (citing State v. Moseng, 254 Minn. 263, 269, 95 N.W.2d 6, 11-12 (1959) (other citations omitted)); see Minn.Stat. § 645.16 (stating where words of law are clear and free from ambiguity, courts shall not disregard letter of law under pretext of pursuing spirit); see also State v. Collins, 580 N.W.2d 36, 41 (Minn.App.1998) (stating rule of lenity is to ensure that criminal statutes provide fair warning concerning illegal conduct), review denied (Minn. July 16, 1998).

Citing State v. Burns, 215 Minn. 182, 9 N.W.2d 518 (1943), the state argues that even though postal-service personnel had no knowledge of the conspiracy, a conspiracy agreement existed among appellant, Schwartz, Renecker, and Specht, because general agency principles and the doctrine of respondeat superior provide that a principal is liable for an agent’s actions, and the postal-service personnel were appellant’s agents. The state misinterprets Burns.

In Bums, the defendants were convicted of conspiring to cheat and defraud an individual by means of false representations made by their employee. 215 Minn, at 182, 9 N.W.2d at 518-19. In reversing the convictions, the supreme court stated:

In order to hold defendants criminally liable, it would be necessary to impute to them under the doctrine of respondeat superior actual knowledge of * * * facts known only by their employee.

Id. at 187, 9 N.W.2d at 520. The state construes this language to mean that under the doctrine of respondeat superior, an employer is criminally liable if the employer has actual knowledge of facts known by an employee. But, in Bums, the supreme court declined to apply the doctrine of respondeat superior to conspiracy crimes. Id. at 187-189, 9 N.W.2d at 520-21. The court explained, “Ordinarily, the doctrine of respondeat superior has no application in criminal cases” because “[cjriminal liability for conspiracy is predicated upon personal guilt.” Id. at 187-88, 9 N.W.2d at 520-21. Exceptions to the rule concern statutes that expressly or implicitly provide for vicarious liability and generally relate to the sale of liquor and food and similar regulations. Id. at 188, 9 N.W.2d at 521. Minn.Stat. § 152.096, subd. 1, does not expressly or implicitly provide for vicarious liability.

Finally, the state argues that appellant fails to account for Specht’s involvement in the conspiracy. The state contends that because appellant stipulated to the fact that Schwartz arranged for methamphetamine to be sent to both Specht and Re-necker, and because Specht lived in North Dakota, whenever Schwartz obtained a package of methamphetamine from Specht, one of them necessarily crossed the Minnesota border. But the facts to which appellant stipulated indicate only that Schwartz had appellant send drugs to Renecker and Specht. There is no evidence that indicates how the drugs moved from Specht to Schwartz.

We conclude that because there is no evidence that the alleged conspirators agreed that one of them would cross a Minnesota border while in possession of a controlled substance, the evidence was not sufficient to convict appellant of conspiracy to import a controlled substance across a state border, and therefore, we reverse appellant’s conviction.

Because we reverse appellant’s conviction for conspiracy to import a controlled substance across a state border, the sentence for that crime is necessarily vacated.

DECISION

The state may not argue for the first time during oral argument that appellant waived her sufficiency-of-the-evidence claim when she entered a Lothenbach plea. Because there is no evidence that appellant, Schwartz, Reneker, or Specht agreed to cross a Minnesota border while possessing a controlled substance, the evidence is not sufficient to convict appellant of conspiracy to import a controlled substance across a state border in violation of Minn. Stat. §§ 152.0261, subd. 1, 152.096, subd. 1 (2000). Therefore, we reverse appellant’s conviction of conspiracy to import a controlled substance across a state border.

Reversed.

      . Schwartz pleaded guilty to second-degree eontrolled-substance crime, and Renecker pleaded guilty to second-degree conspiracy to commit a controlled substance crime.

      . Pursuant to State v. Lothenbach, 296 N.W.2d 854, 857 (Minn.1980), a defendant may preserve pretrial issues for appellate review by entering a plea of not guilty, waiving the right to a jury trial, and then stipulating to the prosecution’s case.

      . Appellant contended at oral argument that she did not enter a Lothenbach plea. Because we conclude that the state may not raise this issue for the first time during oral argument, we need not determine whether appellant entered a Lothenbach plea.


source: Caselaw Access Project

license: Public Domain

text:
    Torrey WESTROM, Appellant, Dennis Westrom, et al., Appellants, v. MINNESOTA DEPARTMENT OF LABOR AND INDUSTRY, Respondent.
    Nos. C9-03-128, C0-03-129.
    Court of Appeals of Minnesota.
    Aug. 11, 2003.

      Robert A. Awsumb, R.A. Awsumb & Associates, PLC, St. Paul, MN, for appellant Torrey Westrom.
    Stephen F. Rufer, Pemberton, Sorlie, Rufer & Kershner, PLLP, Fergus Falls, MN; and Edward F. Klinger, Gunhus, Grinnell, Klinger, Swenson & Guy, Ltd., Moorhead, MN, for appellants Dennis Westrom, et al.
    Mike Hatch, Attorney General, Erica Jacobson, Richard L. Vareo, Jr., Assistant Attorneys General, St. Paul, MN, for respondent.
    Considered and decided by PETERSON, Presiding Judge, ANDERSON, Judge, and PARKER, Judge.

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

   OPINION

PETERSON, Judge.

In these consolidated appeals from summary judgments, appellants argue that the district court erred when it ruled that documents that the Department of Labor and Industry released to the news media concerning appellants’ alleged violations of the workers’-compensation law are public data under the Minnesota Government Data Practices Act (MGDPA), Minn.Stat. ch. 13 (2002). We reverse and remand.

FACTS

On March 25 and September 24, 1998, the Department of Labor and Industry (department) issued an order and an amended order to comply and penalty assessments (orders) to Dennis, Torey, and Trevor Westrom and their companies. The orders were based on a determination that appellants had violated the workers’compensation law by not maintaining workers’-compensation insurance. The orders assessed monetary penalties for the violations and required appellants to obtain insurance. On April 22 and October 1, 1998, appellants filed objections to the orders. Appellants asserted that Dennis and Torrey Westrom did not direct or control activities of the employees and should be dismissed as individual respondents. They also asserted that one of the companies, WBC Construction, had no employees for whom workers’-compensation insurance was required.

In response to media requests during mid to late October 1998, the department released the orders and the objections filed by appellants to various news organizations, which then published information from the documents. The published information apparently drew heightened attention because, at the time, appellant Torrey Westrom was running for re-election as a state representative in the general election to be held on November 3,1998.

In two separate actions, appellants sued the department, alleging that the department violated the MGDPA when it released the orders and the objections. The department moved for summary judgment. The district court concluded that the data released by the department are public data and granted summary judgment in favor of the department and dismissed the underlying actions. This court consolidated the appeals from the summary judgments in both actions.

ISSUE

Are the data in the documents that the department released to the news organizations public data under the MGDPA?

ANALYSIS

The construction of the MGDPA, Minn. Stat. ch. 13 (2002), is a question of law subject to de novo review on appeal. Wiegel v. City of St. Paul, 639 N.W.2d 378, 381 (Minn.2002).

All state agencies are required to “make and preserve all records necessary to a full and accurate knowledge of their official activities.” Minn.Stat. § 15.17, subd. 1 (2002). Access to such records is governed in relevant part by Minn.Stat. § 13.03 of the MGDPA. MinmStat. § 15.17, subd. 4 (2002).

Under the MGDPA, government data are presumed to be accessible to the public “unless there is federal law, a state statute, or a temporary classification of data that provides that certain data are not public.” Minn.Stat. § 13.01, subd. 3 (2002). Through the MGDPA, the legislature intended to balance the privacy rights of the data subjects with the public’s right “to know what the government is doing * * * within a context of effective government operation.” Montgomery Ward & Co., Inc. v. County of Hennepin, 450 N.W.2d 299, 307 (Minn.1990) (quotation omitted).

The department issued the orders, and appellants filed their objections, pursuant to Minn.Stat. § 176.181, subd. 3(a) and (b) (2002), which provide:

(a) The commissioner [of labor and industry], having reason to believe that an employer is in violation of subdivision 2 may issue an order directing the employer to comply with subdivision 2, to refrain from employing any person at any time without complying with subdivision 2, and to pay a penalty of up to $1,000 per employee per week during which the employer was not in compliance.
(b) An employer shall have ten working days to contest such an order by filing a written objection with the commissioner, stating in detail its reasons for objecting. If the commissioner does not receive an objection within ten working days, the commissioner’s order shall constitute a final order not subject to further review, and violation of that order shall be enforceable by way of civil contempt proceedings in district court. If the commissioner does receive timely objection, the commissioner shall refer the matter to the office of administrative hearings for an expedited hearing before a compensation judge. The compensation judge shall issue a decision either affirming, reversing, or modifying the commissioner’s order within ten days of the close of the hearing. If the compensation judge affirms the commissioner’s order, the compensation judge may order the employer to pay an additional penalty if the employer continued to employ persons without complying with subdivision 2 while the proceedings were pending.

Minn.Stat. § 13.39, subd. 2(a) (2002), provides:

[D]ata collected by state agencies * * * as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action, are classified as protected nonpublic data pursuant to section 13.02, subdivision 13, in the case of data not on individuals and confidential pursuant to section 13.02, subdivision 3, in the case of data on individuals.

Appellants contend that data in the orders and objections released by the department are civil investigative data, and, therefore, under Minn.Stat. § 13.39, subd. 2(a), the data are confidential or protected nonpublic data. The department contends that the data in the orders and objections are not civil investigative data because (1) the department did not collect the data, and (2) the orders and objections were created following the completion of an investigation; they were not obtained as part of an active investigative process.

The department’s argument that the data are not civil investigative data under Minn.Stat. § 13.39, subd. 2(a), because they were not collected as part of an active investigation is based on the premise that the statute classifies only data collected as part of an active investigation. But under the plain language of MinmStat. § 13.39, subd. 2(a), both data collected as part of an active investigation and data “which are retained in anticipation of a pending civil legal action” are classified as “protected nonpublic” or “confidential” data.

“A ‘pending civil legal action’ includes but is not limited to judicial, administrative or arbitration proceedings.” Minn.Stat. § 13.39, subd. 1 (2002). Under MinmStat. § 176.181, subd. 3(a) and (b), the commissioner must retain an order for at least ten days to allow the employer to file an objection. Then, if the employer files a timely objection, the commissioner must “refer the matter to the office of administrative hearings for an expedited hearing before a compensation judge.” If the employer does not file an objection, the order becomes final, “and violation of that order shall be enforceable by way of civil contempt proceedings in district court.” Minn.Stat. § 176.181, subd. 3(b). Consequently, Minn.Stat. § 176.181, subd. 3(a) and (b), required the commissioner to retain the orders in anticipation of a civil contempt proceeding or an administrative proceeding and to retain the objections in anticipation of an administrative proceeding. Therefore, the orders and objections are civil investigative data under Minn. Stat. § 13.39, subd. 2(a).

Citing Everest Dev., Ltd. v. City of Roseville, 566 N.W.2d 341, 344 (Minn.App.1997), the department argues that the data in the orders and objections cannot be classified as “confidential” or “protected nonpublic” civil investigative data because, under the statutory definitions of those data classifications, the data subject does not have access to the data, and under Minn.Stat. § 176.181, subd. 3(a) and (b), an employer who is the subject of an order or objection must have access to the data in the order and objection.

“Confidential data on individuals” means data which is made not public by statute or federal law applicable to the data and is inaccessible to the individual subject of that data.

Minn.Stat. § 13.02, subd. 3 (emphasis added). Similarly,

“protected nonpublic data” means data not on individuals which is made by statute or federal law applicable to the data (a) not public and (b) not accessible to the subject of the data.

Id., subd. 13 (emphasis added). Under both classifications, the data are not accessible to the subject of the data.

In Everest, this court stated that settlement documents that had been distributed among the parties to a lawsuit could not be civil investigative data because the documents were accessible to the subjects of the data. Everest, 566 N.W.2d at 344. This court stated,

The legislature could not have intended to make settlement documents protected nonpublic data because the documents, by their very nature, must be made available to the parties to the settlement.

Id. at 344^5. The department argues that the same reasoning should apply here because the orders and objections, by their very nature, must be made available to the employers who are the subjects of the documents.

But Everest is distinguishable in one very important respect. In Everest, the documents were not given to the data subjects pursuant to a statutory directive. Here, although Minn.Stat. § 13.39, subd. 2(a), classified the orders and objections as confidential data or protected nonpublic data, Minn.Stat. § 176.181, subd. 3(a), required the Department of Labor and Industry to provide the orders to appellants, and Minn.Stat. § 176.181, subd. 3(b), allowed appellants to file the objections in response to the orders.

When a general provision in a law is in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions be irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted at a later session and it shall be the manifest intention of the legislature that such general provision shall prevail.

Minn.Stat. § 645.26, subd. 1 (2002).

Here, the general provision is Minn.Stat. § 13.39, subd. 2(a), which classifies the orders and objections as either confidential or protected nonpublic civil investigative data that are not accessible to appellants, and the special provision is Minn.Stat. § 176.181, subd. 3(a) and (b), which make the orders and objections accessible to appellants. Because these two provisions cannot be construed to give effect to both, and there is no indication that it is the manifest intention of the legislature that the orders and objections should not be made accessible to appellants, the special provision shall prevail, and Minn. Stat. § 176.181, subd. 3(a) and (b), must be interpreted to be an exception to Minn. Stat. § 13.89, subd. 2(a).

Unlike the parties in Everest, appellants have access to the orders and objections pursuant to a special statutory provision that creates an exception from the general rule that civil investigative data are confidential or protected nonpublic data. But the exception created by Minn.Stat. § 176.181, subd. 3(a) and (b), only permits the employer who is the subject of an order or objection to have access to data that are otherwise confidential or protected nonpublic data. It does not change the classification of the data. Therefore, when the department released the orders and the objections to news organizations, it released confidential or protected nonpublic data.

DECISION

Because the department retains data in an order or an objection created pursuant to MinmStat. § 176.181, subd. 3(a) or (b), in anticipation of a pending civil legal action, the data are civil investigative data under Minn.Stat. § 13.39, subd. 2(a). Therefore, data in the orders and objections released to news organizations are confidential or protected nonpublic data, and the decision of the district court granting summary judgment to the department is reversed, and the matter is remanded to the district court.

Reversed and remanded.

      . Appellants Roseanne Westrom and Tonya Westrom were not identified in the orders.

      . Minn.Stat. § 176.181, subd. 2 (2002), requires employers who are liable under chapter 176 to pay workers'-compensation benefits to
      insure payment of compensation with some insurance carrier authorized to insure workers’ compensation liability in this state, or obtain a written order from the commissioner of commerce exempting the employer from insuring liability for compensation and permitting self-insurance of the liability.

      . Under Minn.Stat. § 13.39, subd. 3 (2002), inactive civil investigative data are public, and
      [c]ivil investigative data become inactive upon the occurrence of any of the following events:
      (1) a decision by the state agency * * * or by the chief attorney acting for the state agency * * * not to pursue the civil action;
      (2) expiration of the time to file a complaint under the statute of limitations or agreement applicable to the civil action; or

        (3) exhaustion of or expiration of rights of appeal by either party to the civil action.
      The department does not claim that any of these events has occurred.


author: LANSING, Judge.

text:
    STATE of Minnesota, Respondent, v. Dane Joseph RILEY, Appellant.
    No. C4-02-1998.
    Court of Appeals of Minnesota.
    Aug. 12, 2003.

      Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul; and Earl E. Maus, Cass County Attorney, Walker, for respondent.
    John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Minneapolis, for appellant.
    Considered and decided by PETERSON, Presiding Judge, LANSING, Judge, and HUSPENI, Judge.

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

   OPINION

LANSING, Judge.

Dane Riley was charged with illegal possession of a firearm and two counts of second-degree assault after drivers reported that their cars had been hit by gun shots on Highway 371, north of Pine River. At a contested omnibus hearing, Riley moved to suppress all evidence, including a rifle, obtained during a stop of the car in which he was a passenger. The district court denied the suppression motion. Riley and the state agreed to submit an amended second-degree assault charge to the court on stipulated facts under the procedure provided in State v. Lothenbach, 296 N.W.2d 854 (Minn.1980), and the state dismissed the remaining charges. In this appeal from conviction, Riley challenges the correctness of the pretrial ruling and the sufficiency of the evidence to support the second-degree assault conviction.

FACTS

A deputy sheriff on patrol in the Pine River area about 10:00 p.m. was approached by a truck driver who said that his track had been shot at while he was driving on Highway 371, just north of Pine River. The driver showed the deputy a bullet hole on the side of the track.

About ten minutes later, while the deputy and two other law enforcement officers were checking the area north of Pine River, local dispatch received another call from a driver reporting that someone had shot at her car near the intersection of Highway 371 and Black Bear Golf Course Road. The deputy was in that area when he received the report.

As the deputy continued driving, he saw a pickup weaving and nearly leave the road as it rounded a corner. He stopped the pickup and noticed that the driver appeared to be intoxicated. When one of the other officers joined the deputy where he had stopped the pickup, he left the intoxicated driver in his custody and went to look through the ditch area to see if the driver had thrown anything out the window. After he returned to the stopped pickup, a car approached from the direction of the last reported shooting.

Omnibus testimony differs on what happened next. The deputy testified that the car slowed and then stopped approximately five to ten feet from where he was standing. Riley testified that as they approached the police cars, an officer “stepped in the middle of the road waving his flashlight and then walked up to the car and started flashing his light around.” The other occupants of the car gave similar testimony.

The testimony was uncontradicted that, when the deputy looked into the car with his flashlight, he saw an uncased rifle on the floor of the back seat. After discovering the rifle, the deputy walked the driver to the squad car and took his statement. The driver confessed to police that he, Dane Riley, and the third person in the car had taken turns using the rifle to shoot at passing cars on Highway 371 because it gave them a “rush.”

At the contested omnibus hearing, Riley moved to suppress all evidence obtained from the stop of the car, arguing that the stop was unconstitutional. After the district court denied Riley’s motion, Riley and the state agreed that Riley would waive his right to a jury trial and submit the second-degree-assault charge to the district court on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). The state dismissed the remaining charges. The stipulated evidence included arrest and investigation reports, statements given by Riley and his two companions in the car, the guilty plea transcripts of Riley’s two companions, the rifle, photographs, and Riley’s stipulation that he was with his two companions when they fired the rifle.

The district court found Riley guilty of second-degree assault. Riley appeals the pretrial ruling on the validity of the stop and the sufficiency of the evidence to support his conviction for second-degree assault.

ISSUES

I. Did the district court err in denying the motion to suppress evidence obtained from the car in which Riley was a passenger?

II. If a defendant waives his right to a jury trial, stipulates to the facts, and submits the case to the court under State v. Lothenbach, 296 N.W.2d 854 (Minn.1980), may he challenge the sufficiency of the evidence to sustain his conviction on appeal?

ANALYSIS

I

The district court found that the car in which Riley- was a passenger “most likely stopped or slowed to a crawl because the occupants saw the police cars and flashing lights and knew they should be extremely cautious.” On this finding, the court concluded that the deputy’s approach to the car did not trigger Fourth Amendment protections.

It is well settled that a police officer, while standing in a place in which he has a right to be, next to an automobile which he has not stopped, may properly shine his flashlight through the car window into the passenger compartment and observe anything in plain view. See State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn.1980). Thus, if the driver of the car in which Riley was riding stopped voluntarily, the flashlight-aided visual check of the passenger compartment does not constitute a seizure for purposes of the Fourth Amendment.

Riley contends that the district court did not unequivocally find that the car in which he was riding voluntarily stopped. Although we read the findings otherwise, we agree that the district court’s memorandum does analyze the issue in the alternative. Consequently, we extend our analysis to determine whether the facts provide a constitutional basis for an investigatory stop.

A vehicle stop is a seizure. State v. Greyeagle, 541 N.W.2d 326, 328 (Minn. App.1995). A limited investigative stop is permissible if the officer is able to articulate that he had a particularized and objective basis for suspecting criminal activity. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981). The officer makes his assessment on the basis of “all the circumstances” and draws inferences and makes deductions based on his training and experience in law enforcement. Id. at 418, 101 S.Ct. at 695. “These circumstances include the officer’s general knowledge and experience, the officer’s personal observations, information the officer has received from other sources, the nature of the offense suspected, the time, the location, and anything else that is relevant.” Appelgate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn.1987). We review the legality of a limited investigatory stop and questions of reasonable suspicion de novo. State v. Munson, 594 N.W.2d 128, 135 (Minn.1999).

Under the totality of the circumstances in this case, the deputy had a particularized and objective basis for stopping the car in which Riley was a passenger. The deputy knew that two vehicles had been shot north of Pine River between 10:00 and 10:30 p.m., and that the most recent shooting occurred near the Black Bear Golf Course. The deputy had immediately proceeded to the Black Bear Golf Course area after the first motorist reported the shooting, and the deputy was on Black Bear Golf Course Road when dispatch received the call from the second motorist, who reported that her car was shot “in the area of the Black Bear Golf Course Road.”

Black Bear Golf Course Road is located in a remote area. The driver of the car in which Riley was riding agreed that Black Bear Golf Course Road was “out in the middle of nowhere.” The deputy observed only two vehicles aside from the police cars and the tow truck: the pickup of the intoxicated driver and the car in which Riley was a passenger. Both were coming from the direction of the most recent reported shooting. Under these circumstances it was reasonable for the deputy to suspect that the occupants of the two vehicles he observed driving on Black Bear Golf Course Road shortly after the reported shootings might be involved in the shootings. See Appelgate, 402 N.W.2d at 108 (discussing factors relevant to validity of stop conducted in vicinity of recently committed crime). Thus, if the deputy initiated the stop of Riley’s car, he had a particularized and objective basis for the stop.

Because the deputy could legally approach Riley’s car whether the car stopped voluntarily or was forced to stop, the district court did not err in denying Riley’s motion to suppress the state’s evidence.

II

Riley argues on appeal that his conviction must be reversed because the evidence is insufficient to sustain his conviction of second-degree assault. It is undisputed that Riley submitted his case to the district court on stipulated facts under the procedures outlined in State v. Lothenbach, 296 N.W.2d 854 (Minn.1980).

Lothenbach recognized that Minnesota does not allow a conditional plea of guilty that would preserve the right to appeal an adverse suppression order. State v. Verschelde, 595 N.W.2d 192, 194 (Minn.1999). Instead the Lothenbach court sanctioned a procedure in which the defendant pleads guilty, waives his right to jury trial, and then stipulates to the prosecutor’s case as a means of avoiding an unnecessary trial when the defendant contests only the pretrial suppression ruling. Lothenbach, 296 N.W.2d at 857-58. In essence, when submitting his case under Lothenbach, a defendant concedes the truth of the facts that the state presents to the district court. See 8 Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 19.5 (2001) (stating that a defendant who submits his case to the district court under Lothenbach “conced[es] factual guilt conditional upon the correctness of the pre-trial ruling to be appealed”).

Nine years after the Lothenbach decision, a provision allowing for a trial on stipulated facts was added to the Minnesota Rules of Criminal Procedure. See Minn. R.Crim. P. 26.01, subd. 3. Although the Lothenbach procedure and the “stipulated facts” trial permitted in rule 26.01 have been viewed by many courts and practitioners as the same procedure, a recent decision of the Minnesota Supreme Court suggests that the procedures differ in their effect on a defendant’s right to challenge the sufficiency of evidence. In State v. Busse, 644 N.W.2d 79 (Minn.2002), the supreme court held that an appellant may not challenge the sufficiency of the evidence after a Lothenbach trial on stipulated facts because the Lothenbach procedure is used to submit a ease to the district court while “preserving pretrial issues for appeal.” Busse, 644 N.W.2d at 88 (quotation omitted). According to the court, the proper means of challenging the state’s proof of elements of the charge is to “proeeed[] to trial and argue[] to a factfinder that the state has not proven all the elements of the charge instead of stipulating to the state’s case.” Id. at 89.

This interpretation is consistent with the supreme court’s description of the Lothenbach procedure in, In re Welfare of R.J.E., 642 N.W.2d 708 (Minn.2002), a case decided a month before Busse. In that case, the court explained that “[t]he procedure for trials on stipulated facts, which we approved in Lothenbach, permits a criminal defendant, in the absence of an interlocutory appeal, to obtain review of pretrial issues without going through a contested trial.” In re Welfare of R.J.E., 642 N.W.2d 708, 711. The court reiterated that the rationale for the Lothenbach procedure is to prevent the inefficient use of judicial resources that occurs when the facts are undisputed, but a trial is necessary to obtain appellate review of a pretrial ruling. Id.

We have observed continuing confusion over the distinction between a stipulated-facts trial under rule 26.01 and a stipulated-facts trial under Lothenbach. The terms of the rule specify that after a trial on stipulated facts a “defendant may appeal from the judgment of conviction and raise issues on appeal the same as from any trial to the court.” Minn. R.Crim. P. 26.01, subd. 3 (emphasis added). The reach of the rule has not been specifically determined, and the rule’s reference to the Lothenbach procedure in a comment suggests interrelationship between the rule and the case. See, e.g., Minn. R.Crim. P. 26.01 cmt. (referring to Lothenbach and stating that under the rule a denial of a motion to suppress evidence or other pretrial order may be preserved).

We recognize that, unlike the criminal-procedure rules, the comments to the rules are not promulgated or approved by the supreme court. State v. Bonafide, 457 N.W.2d 211, 213 (Minn.App.1990). The comments are advisory only and not binding on the courts. State v. Pero, 590 N.W.2d 319, 326 (Minn.1999). In promulgating the amendments to the rules of criminal procedure, the court stated that “the inclusion of Advisory Committee Comments is made for convenience and does not reflect court approval of the comments made therein.” Minnesota Supreme Court Order Promulgating Amendments to the Rules of Criminal Procedure (Dec. 13, 1989).

In light of the advisory status of the rules and the language in Busse, we conclude that the supreme court has drawn a distinction between the Lothen-bach procedure and a stipulated-facts trial under rule 26.01. In keeping with that distinction, when a case is submitted on stipulated facts to obtain review of a pretrial ruling under the Lothenbach procedure, appellate review is limited, and the defendant may not, on appeal, challenge the sufficiency of the evidence to support his conviction.

Because Riley submitted his case under the Lothenbach procedure, the holding in Busse precludes him from raising a sufficiency-of-the-evidence argument on appeal. If he believed that the state could not meet its burden of proof for the second-degree-assault charge, Riley should have instead challenged the state’s evidence by proceeding to trial. Consequently, we decline to consider Riley’s sufficiency-of-the-evidence argument.

DECISION

The district court did not err in denying Riley’s motion to suppress the state’s evidence. Whether Riley’s car stopped voluntarily or in response to the deputy’s actions, the stop was not illegal because the deputy had a particularized and objective basis to suspect the occupants of criminal activity. Under State v. Busse, 644 N.W.2d 79 (Minn.2002), Riley is precluded from raising a sufficiency-of-the-evidence argument on appeal after submitting his ease to the district court under the procedure outlined in State v. Lothenbach, 296 N.W.2d 854 (Minn.1980).

Affirmed.


author: MINGE, Judge.

text:
    MINNESOTA AUTOMATIC MERCHANDISING COUNCIL, et al., Appellants, v. Matthew G. SMITH, as Commissioner of the Minnesota Department of Revenue, et al., Respondents.
    No. C0-03-65.
    Court of Appeals of Minnesota.
    Aug. 12, 2003.

      Walter A. Pickhardt, Lisa R. Pugh, Faegre & Benson, LLP, Minneapolis, MN, for appellants.
    Mike Hatch, Attorney General, James W. Neher, Assistant Attorney, General, St. Paul, MN, for respondents.
    Considered and decided by TOUSSAINT, Chief Judge, HARTEN, Judge, and MINGE, Judge.
   OPINION

MINGE, Judge.

Appellant trade association of vending-machine operators and appellant vending-machine operator sought a declaratory judgment that the application of the Minnesota sales tax to all sales of food in vending machines under Minn.Stat. §§ 297A.61, subds. 3(d)(4), 31-34, .67, subd. 2 (Supp.2001) violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the Uniformity Clause of the Minnesota Constitution. The district court granted summary judgment against appellants. Because there is a rational basis for the application of the sales tax to vending-machine sales of food items, and because the distinction between vending-machine sales and sales that may otherwise be exempt is not arbitrary and capricious, we affirm.

FACTS

In 2001, the Minnesota legislature amended the statutes governing taxation of food sales. 2001 Minn. Laws 1st Spec. Sess. ch. 5, art. 12, §§ 8 (amending Minn. § 297A.61, subd. 3 (2000)), 27-30 (adding Minn.Stat. § 297A.61, subds. 31-34), 36 (amending Minn.Stat. § 297A.67, subd. 2 (Supp.2000)). The amendments were passed as part of the legislature’s adoption of the Uniform Sales and Use Tax Administration Act proposed by the Multi-State Streamlined Sales Tax Project. 2001 Minn. Laws 1st Spec. Sess. ch. 5, art. 12, § 84 (codified as Minn.Stat. § 297A.995 (Supp.2001)). The purpose of the streamlined Sales and Use Tax Agreement is to “simplify and modernize sales and use tax administration in order to substantially reduce the burden of tax compliance.” Minn.Stat. § 297A.995, subd. 3. • This agreement provides for uniform rules and definitions, access to a simplified electronic registration system for member states, and uniform sourcing rules for taxable transactions. Minn.Stat. § 297A.995 (Supp.2001). Despite these changes, the existing Minnesota law that all vending-machine food sales are subject to sales tax was not changed.

The Minnesota Automatic Merchandising Council (MAMC), a nonprofit membership organization that includes corporations, partnerships, and individuals operating vending machines, and one of its members, MSY Enterprises, Inc. d/b/a Apple Automatic Food Service (Apple), brought a declaratory judgment action challenging the continuing application of a sales tax to food sales through vending machines. Apple operates and maintains 550 vending machines in Minnesota in office buildings, manufacturing plants, shopping centers, and car dealerships. Two of the machines are located near employee lunchrooms. Apple’s machines contain a variety of food products, including prepackaged sandwiches, bottled water, cookies, various types of chips, popcorn, soups, and boxed entrees such as lasagna.

MAMC and Apple moved for summary judgment, asking the court to find that the amended statutes are unconstitutional under both the United States and. Minnesota Constitutions. The defendants in the action (the Commissioner of Revenue, Minnesota Department of Revenue, and the State of Minnesota) also requested summary judgment dismissing the action.

The disputed changes in the Minnesota sales tax law involve shifting the definition of exempt food sales while maintaining a tax on all food sold through vending machines. The prior sales tax law taxed food “sold by the retailer for immediate consumption on the retailer’s premises.”. Minn.Stat. § 297A.61, subd. 3(d)(1) (2000). The tax also had been applied to food “prepared by the retailer for immediate consumption either on or off the retailer’s premises.” Id., subd. 3(d)(2) (2000). This covered essentially all sales of food at restaurants, delis, coffee shops, concession stands, and lunch vehicle sales, as well as prepared food sold at convenience stores. The emphasis was on imposing the tax if either the nature of the food product being sold, the place of consumption, or the portion size was covered by the statute. Without exception, under the old law, all vending-machine sales of food were taxed. Id., subd. 3(d)(7) (2000).

Except for vending-machine sales, the new statute uses a functional approach in determining what food sales are exempt from the sales tax. All vending-machine sales of food are taxed. Minn.Stat. § 297A.61, subd. 3(d)(4) (2002). For other retailers, food that is taxed is limited to soft drinks, candy, and prepared food. Minn.Stat. § 297A.61, subd. 3(d) (2002). The statute defines “prepared food” as:

(1) * * * food * * * sold with eating utensils provided by the seller, including plates, knives, forks, spoons, glasses, cups, napkins, or straws; or
(2) * * * food * * * sold in a heated state or heated by the seller or two or more food ingredients are mixed or combined by the seller for sale as a single item, except for [exceptions omitted].

Minn.Stat. § 297A.61, subd. 31 (2002).

The district court found that there is a rational basis to distinguish, for sales tax purposes, between vending-machine food sales and grocery-type food sales, that the exception to the taxation of eating-establishment food sales for grocery-type foods is consistent with the legislature’s intent to avoid taxing food necessities, and that imposing a sales tax on all the sales of food sold through vending machines is constitutional. Accordingly, the district court granted summary judgment in favor of the state and denied summary judgment to MAMC and Apple. This appeal followed.

ISSUE

Does the imposition of Minnesota sales tax on all vending-machine food sales violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution or the Uniformity Clause of the Minnesota Constitution because some of the same items are tax-exempt when sold by other establishments?

ANALYSIS

At its core, the challenge to the statute is simple. Appellants contend that the classification in the law is unconstitutional because it makes the sale of vending-machine food always taxable, and it makes the sale of the same food by others taxable only when sold in defined contexts. Appellants contend that this classification is unconstitutional under both the United States and Minnesota Constitutions. Appellants further contend that the statute is discriminatory on its face and thus should be either stricken in its entirety or modified by striking certain language.

The scope of protection under the Equal Protection Clause of the United States Constitution and the Uniformity Clause of the Minnesota Constitution is identical. Lutheran Bhd. Research Corp. v. Comm’r of Revenue, 656 N.W.2d 375, 382 (Minn.2003). The United States Constitution states that “[n]o state shall * * * deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The Uniformity Clause of Minnesota Constitution requires that “[tjaxes shall be uniform upon the same class of subjects.” Minn. Const, art. X, § 1. This court has previously addressed the relationship between the Equal Protection Clause and Uniformity Clause. Westling v. County of Mille Lacs, 581 N.W.2d 815, 820 (Minn.1998) (stating that neither clause is more restrictive); Little Earth of United Tribes, Inc. v. Hennepin County, 384 N.W.2d 435, 441 (Minn. 1986) (finding that both clauses are “equally restrictive of the legislature’s power to tax and to classify”).

Our review is both broad and narrow. It is broad because the constitutionality of a statute is purely a question of law; thus this court reviews the district court order de novo. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999). But in examining the statute, the standard is narrow because

[t]he power of this court to declare a statute unconstitutional is to be exercised only when absolutely necessary and with extreme caution. A statute will not be declared unconstitutional unless the party challenging it demonstrates beyond a reasonable doubt that the statute violates some constitutional provision.

Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979) (citations omitted); Walker v. Zuehlke, 642 N.W.2d 745, 750-51 (Minn.2002). Additionally, “taxation policy is peculiarly a legislative function,” and thus “the courts are very deferential in their review of tax legislation.” Walker, 642 N.W.2d at 751 (citing Metro. Sports Facilities Comm’n v. County of Hennepin, 478 N.W.2d 487, 489 (Minn.1991)). Although parties challenging the constitutionality of a tax statute have a heavy burden, an arbitrary classification without any rational basis is unconstitutional. McGuire v. C & L Rest., Inc., 346 N.W.2d 605, 613 (Minn.1984); Northern States Power Co. v. Esperson, 274 Minn. 451, 457, 144 N.W.2d 372, 376 (1966).

Under the statute at issue, a special class exists just for vending-machine sales. The application of sales tax to food items sold by restaurants and grocery stores is based on the type of product and the context of the sale rather than on the type of establishment selling the product. In contrast, the application of sales tax to food sold by vending-machine operators is based solely on the fact that the method of distribution of the food product is a vending machine and gives no regard to other factors in the sales context.

, Although this is not an easy case, we are mindful that this is not the first time Minnesota courts have addressed the question of whether the taxation of vending-machine food sales violates the Equal Protection Clause. See Associated Food Servs., Inc. v. Comm’r of Taxation, 298 Minn. 277, 216 N.W.2d 253 (1974). While the language of the pertinent statute in effect at the time of Associated Food has changed, the classification issue is parallel. The former law taxed all food sold by vending-machine sales and drew certain distinctions between taxable and nontaxable sales by other retailers. See, e.g., Minn.Stat. § 297A.01, subd. 3(c)(3) (2000). The primary area of conflict appears to have been sales of certain types of packaged and prepared food by grocery and convenience stores compared to such sales in restaurants and by vending machines. In upholding the previous classification, the analysis from Associated Food of the differences between vending machines and grocery stores or restaurants is still relevant. That decision noted that the distinction between food sales by grocery stores and those by restaurants is one of luxury versus necessity: grocery store food is a necessity; restaurant food is a luxury. Associated Food, 298 Minn, at 282, 216 N.W.2d at 256. In Associated Food, the court declined to focus on potential discrimination and instead determined that a vending-machine operator’s primary competition is a coffee shop or snack bar, not the grocery store, and that purchases from a vending machine are a luxury and should be subject to sales tax. Id. at 284, 216 N.W.2d at 257. We note these differences not to determine if vending-machine operators are selling prepared foods, and not to determine whether such a luxury versus necessity concept is relevant to the classification in this case, but as an indication of the reluctance of the courts to set aside tax classifications generally and this classification in particular.

In applying both the Equal Protection Clause and the Uniformity Clause, Minnesota has established a three-part test to determine if there is a rational basis for the classification. The test is from Miller Brewing Co., and the three parts are:

(1) The distinctions which separate those included within the classification from those excluded must not be manifestly arbitrary or fanciful but must be genuine and substantial, thereby providing a natural and reasonable basis to justify legislation adapted to peculiar conditions and needs; (2) the classification must be genuine or relevant to the purpose of the law; that is, there must be an evident connection between the distinctive needs peculiar to the class and the prescribed remedy; (3) the purpose of the statute must be one that the state can legitimately attempt to achieve.

Lutheran Bhd. Research Corp., 656 N.W.2d at 382 (citing Miller Brewing Co., 284 N.W.2d at 356).

The first prong of the Miller Brewing test is to determine whether the classification is arbitrary. Id. Appellants claim that because vending-machine operators are treated differently from other sellers of the same product, the classification is necessarily arbitrary. But as noted, Minnesota has previously upheld this distinction. Associated Food, 298 Minn. 277, 216 N.W.2d 253. In a more recent case, this court stated that classifications are not arbitrary if the court can find some distinctions between the classes. State v. Gresser, 657 N.W.2d 875, 882 (Minn.App. 2003). In Gresser, we made comparisons between personal watercraft and other motorboats, delineating clear differences between the two kinds of watercraft. We found that personal watercraft are smaller and thus more vulnerable and more maneuverable. Id. We held that, based on the differences, the classifications are not arbitrary. Id.

By contrast, in George Benz Sons, Inc. v. Ericson, this court held a classification differentiating between liquor wholesalers and liquor retailers was arbitrary because both groups sell the same products, and the goal the legislature was trying to achieve applied to both groups. George Benz Sons, Inc. v. Ericson, 227 Minn. 1, 15-16, 34 N.W.2d 725, 733 (1948) (finding that controlling sales by manufacturers and wholesalers but not controlling sales by retailers was arbitrary). Thus, unless there are distinctions between the sales of food by vending-machine operators and the sale of food by other establishments, the classification is arbitrary.

Going beyond the analysis in Associated Food, we note that there are other distinctions between vending-machine operators and other establishments that sell food. When food is sold by a supermarket, restaurant, or snack bar, a person employed by the seller is on the premises to make a decision about the nature of the food and whether it is subject to tax. The employee can differentiate between a prepared food and non-prepared food. When that decision is based on the availability of utensils or napkins to, or use of the same by, customers or based on other judgment calls, a person on the premises can make the distinction. It is difficult, if not impossible, for a machine to make those distinctions. While the installer of a vending machine may make eating utensils or a microwave oven available, the similarity stops there. The vending machine does not know whether the oven is used or whether napkins are present, and the operator of a vending machine does not provide an employee to make such determinations.

Restaurants, lunch counters, take-out windows, and convenience stores invariably have napkins, and usually straws and some eating utensils, available. To the extent they are selling food with such additional items present, virtually all of their food sales will meet the statutory definition of “prepared food.” Minn.Stat. § 197A.61, subd. 31(l)-(2). Only if the “prepared food” definition is not met, will the sale of food not be taxed. The legislature did not give vending-machine operators the opportunity to be in that category with other retailers. Although discriminatory, it is unclear that this is a significant level of discrimination. As a practical matter, it appears that the expansive definition of “prepared foods” will result in the taxation of most food sales by lunch counters and other food service businesses.

If vending-machine operators were treated like other retailers, it is unclear how much of their sales would avoid the “prepared food” test and not be taxed. At a minimum, vending-machine operators would have to avoid making napkins or other items available for their customers. There is no showing on this record that appellant Apple’s vending-machine sales are in settings without napkins or other items, nor is there any showing that any significant portion of the vending-machine business is conducted in that setting. When the legislature decides to maintain a tax classification that has previously been upheld by the courts of this state, we are not prepared to find a slightly modified version of that statutory classification unconstitutional if the impact of the classification is minimal.

Based on the foregoing distinctions regarding staffing, the limited reach of the distinction, and the prior Minnesota decision in Associated Food, we determine that the distinction between vending machine and other sales of food is not manifestly arbitrary. The first prong of the Miller Brewing test is satisfied.

The second prong of the Miller Brewing test is to determine whether the classification is relevant to the purpose of the law. Miller Brewing Co., 284 N.W.2d at 356. The underlying purpose of any tax is to generate revenue. Taxing all vending-machine sales raises more revenue. In addition, there are other purposes, including simplicity of administration and ease of retañer compliance. Because the generating of revenue is a legitimate government purpose and the legislature has broad discretion in establishing revenue-raising policies through taxation, taxation of all vending-machine sales fulfills this purpose. See Westling, 581 N.W.2d at 820; Walker, 642 N.W.2d at 751 (citing Metro. Sports Facilities Comm’n, 478 N.W.2d at 489). In Associated Food, this court quoted the esteemed Justice Cardozo who said:

[t]he operation of a general rule will seldom be the same for everyone. If the accidents of trade lead to inequality or hardship, the consequences must be accepted as inherent in government by law instead of government by edict.

Associated Food, 298 Minn, at 285, 216 N.W.2d at 258 (quoting Fox v. Standard Oil Co. of N.J., 294 U.S. 87, 102, 55 S.Ct. 333, 339, 79 L.Ed. 780 (1935)).

Another purpose may be ease of administration. At the simplest level, it is easier to administer a tax on all vending-machine sales than it is to administer a tax on some vending-machine sales but not others. However, this runs the risk of being arbitrary on its face. More significantly, the drafter of the uniform act and the legislatures of the states that adopted the act, including Minnesota, apparently found the “prepared food” concept was easier to administer and more fair than the distinctions formerly used. See Minn.Stat. § 297A.995, subd. 3. No longer would grocery stores and convenience stores benefit from distinctions that would result in those stores being able to seU certain foods as tax-exempt whüe the same foods, if sold by a restaurant or cafe would be taxable. And, if restaurants or cafes wished that their staff control the setting of the purchase, they would now be able to sell single servings of food, other than prepared food, without having to collect sales tax. In this sense, the new law simply recasts the Associated Food distinction.

Administrative ease is an adequate justification for establishing a classification. Bituminous Cas. Corp. v. Swanson, 341 N.W.2d 285, 289 (Minn.1983) (citing Hoyt v. Florida, 368 U.S. 57, 63-64, 82 S.Ct. 159, 163-64, 7 L.Ed.2d 118 (1961)). Because adopting a simple rule and raising revenue with administrative ease are relevant purposes of the statute, the second prong of the Miller Brewing test is satisfied.

The third prong of the Miller Brewing test requires an analysis of whether the purposes of the statute, as determined by the analysis of the second prong, are purposes the state can legitimately attempt to achieve. Miller Brewing Co., 284 N.W.2d at 356. We have previously recognized that “any legitimate purpose can support [a] tax.” Westling, 581 N.W.2d at 822 (quoting Erie Mining Co. v. Comm’r of Revenue, 343 N.W.2d 261, 268 (Minn.1984)). Unless the purpose of the statute is arbitrary, the statute will be upheld. Westling, 581 N.W.2d at 822. We have previously discussed reasons for adopting the uniform act and not distinguishing between different types of vending-machine sales. The purposes include raising revenue, various ways of simplifying administration, and perhaps not wanting to provide vending-machine operators with a tax incentive to avoid meeting the prepared food definition by not making napkins or other items available. Because the purposes and advantages of the uniform act are legitimate, and because there are legitimate reasons for not drawing distinctions between various vending-machine sales, the third prong is satisfied.

In addition to evaluating the classification under the Miller Brewing test, we also consider the nature of the interest and the nature of the discriminatory treatment involved. This case does not involve a fundamental right, nor does it involve a group or interest that has been the victim of discrimination, nor does it involve a claim of no access to or no opportunity to participate in the legislative process, nor does it contain any indication of invidious or historic economic discrimination. If this case did involve any of the above-noted claims or elements, closer judicial scrutiny of the classification, in some cases strict scrutiny, and a greater judicial willingness to accept a facial overbreadth challenge may be expected. But, in the area of taxation policy, absent some failure in the legislative process, the courts grant great latitude to legislative determinations. The justifications for the distinction between vending-machine sales of food and all other sales may be thin, but Associated Food upheld such a distinction, and no compelling argument exists for departing Associated Food and overturning the distinction today.

DECISION

The district court properly granted summary judgment.

Affirmed.

      . Candy and soft drink sales are taxed in every setting, vending machine or otherwise. Minn.Stat. § 297A.61, subd. 3(d) (2002).

      . Even if there are vending machines in that type of setting, the legislature may have legitimately determined that it did not wish to discourage furnishing napkins and utensils by taxing vending-machine sales with such amenities. This would be related to the purpose of the distinction.

      . The only setting in which the sales tax schedule appears to be unreasonable is bulk food sales by vending machines. However, there is no argument or evidence on this record that any such vending machine exists in Minnesota.


author: PER CURIAM.

text:
    2003 ND 126
    In the Matter of the APPLICATION FOR TRANSFER TO INCAPACITATED STATUS OF Eric K. FOSAAEN, a Member of the Bar of the State of North Dakota.
    No. 20030195.
    Supreme Court of North Dakota.
    Aug. 15, 2003.
   PER CURIAM.

[¶ 1] On January 8, 2003, based on a Stipulation, Eric K. Fosaaen was transferred to disability inactive status by the Supreme Court of Minnesota.

[¶ 2] On February 21, 2003, Fosaaen admitted service of a Summons, Petition for Transfer to Incapacitated Status, Notice of Appointment of Hearing Panel, and Certificate of Service.

[¶ 3] The Petition asserts that Fosaaen was admitted to practice as an attorney and counselor at law in the Courts of North Dakota on October 10, 1991, and that he is incapacitated from the practice of law. Fosaaen did not respond to the Petition.

[¶ 4] On June 18, 2003, Disciplinary Counsel served on Fosaaen a Motion for Default, Affidavit and Brief in Support of Motion, and proposed Report of the Hearing Panel. Fosaaen did not respond to the Motion for Default.

[¶5] On June 30, 2003, the Hearing Panel filed its Report recommending Fo-saaen be transferred to incapacitated status. The Report was served on Fosaaen by certified mail, return receipt requested, on July 3, 2003. Fosaaen did not file objections to the Report of the Hearing Panel. The Report was referred to the Court under N.D.R. Lawyer Discipl. 3.1F(2).

[¶ 6] ORDERED, Eric K. Fosaaen is transferred to incapacitated status until further order.

[¶ 7] FURTHER ORDERED, Eric K. Fosaaen comply with N.D.R. Lawyer Dis-cipl. 6.3(F).

[¶ 8] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ.


text:
    2003 SD 78
    The PEOPLE of the State of South Dakota in the Interest of C.G.(H.), T.N., and M.G., Minor Children, and Concerning S.G. and T.G., Respondents, and M.N., Interested Party.
    No. 22590.
    Supreme Court of South Dakota.
    Considered on Briefs on May 28, 2003.
    Decided July 9, 2003.
    Jennifer N. Coleman of Dakota Plains Legal Services, Rapid City, for respondent and appellant S.G.

      Glenn Brenner, State’s Attorney and Roxanne Boettcher, Deputy State’s Attorney,- Rapid City, for appellee State of South Dakota.
    Charles J. Mickel, Rapid City, for M.N. interested party and appellee.
   PER CURIAM.

[¶ 1.] S.G. (Mother) appeals the trial court’s grant of physical custody of T.N. to her father M.N. Mother contends the trial court abused its discretion by separating T.N. from her half siblings, C.G.(H) and M.G., without compelling reasons. We affirm.

FACTS AND PROCEDURE

[¶2.] On August 1, 2001, Mother and her husband T.G. were arrested on drug charges following a raid of their residence in Rapid City, South Dakota. An active methamphetamine lab was found in the basement of the home. The children, C.G. and T.N., were present at the time of the raid and resided in the home. The two children were taken into protective custody. The children have two different fathers. T.N. was six years old at the time of removal and her father is M.N. (Father). C.G.(H) was three years old at the time of removal and her father is T.G. Mother was also five months pregnant with M.G. at the time of her arrest. M.G.’s father is also T.G.

[¶ 3.] Mother tested positive for methamphetamine. Mother was arrested and placed in detox on a 90-day involuntary commitment. T.N. was placed with Father who resided in Custer, South Dakota. C.G.(H.) was placed with his paternal grandparents. Upon birth, M.G. was also placed with the paternal grandparents.

[¶4.] Mother was indicted on charges of conspiracy to commit unauthorized manufacture of controlled substance, possession of controlled substance, keeping a place for use or sale of a controlled substance, and possession of drug paraphernalia. Mother pleaded guilty to conspiracy to commit an unauthorized manufacture of controlled substance, a class 4 felony. She was sentenced to three years in the state penitentiary.

[¶ 5.] Mother entered into a family service agreement with DSS. The agreement identified risk factors for Mother’s failure to provide for the basic needs of the children, possible drug and alcohol problems, day-to-day home life stability problems, and depression. By all accounts, Mother performed admirably in meeting the goals set for her by the Department of Social Services (DSS) including: completing counseling, following the conditions of her aftercare, passing all of her UA’s, gaming full-time employment and completing educational classes. However, DSS had concerns regarding Mother’s future stability, especially since her husband’s release from prison.

[¶ 6.] T.N.’s father, M.N., met Mother when she was 18 years old and he was 22 years old. Mother claimed that Father purchased alcohol for her and then raped her after she passed out. She maintained that her parents forced her to live with him following the birth of T.N. Mother alleged Father physically and emotionally abused her. Mother also alleged that Father mistreated T.N. and that his home was defective. Father denied all of these allegations. The trial court specifically found Mother’s testimony not credible as it related to these allegations. The DSS worker and child advocacy volunteer investigated and determined that allegations of Father’s mistreatment of T.N. were unfounded.

[¶ 7.] T.N. began residing with Father the first week of August 2001. She attended school in Custer earning above average grades. Father enrolled T.N. at the YMCA; she developed friendships in Custer and was involved in Girl Scouts and Tae Kwon Do. Father lives in his own home in the country with his family living nearby. T.N. has had regular visitation with her siblings and Mother while in her Father’s care. When T.N. resided with Mother, Father was only allowed sporadic visitation and the matter had to be referred to a mediator. While in Mother’s care, T.N. was absent from school 18 days and tardy 41 times in a year. While in Father’s care in Custer, she was absent five days (three for a funeral) and tardy none. Custer school officials indicated that T.N. appeared clean and well kept and seemed happy and well cared for emotionally.

[¶ 8.] The DSS worker testified that Father was doing a good job with parenting T.N. and that the two got along very well. All the reports relating to Father’s care of T.N. were positive. The reports relating to Mother’s care of T.N. reflected concerns with Mother’s ability to provide a safe and stable environment and concerns regarding her prior depression and anxiety. DSS recommended continued custody with Father as the least restrictive alternative in the best interests of the child.

[¶ 9.] A child advocacy volunteer visited both Mother and Father’s home. The volunteer determined that both parents loved T.N. very much and that T.N. was a happy child. T.N. advised the volunteer that she preferred living with her Mother and that she missed her siblings. Initially, the volunteer indicated that it was her opinion that T.N. should be with Mother. Subsequently, the volunteer changed the recommendation in light of what she viewed as Mother’s manipulative behavior and false allegations concerning Father. However, at the dispositional hearing the volunteer again reversed field and recommended that T.N. be placed with Mother. A family advocate from Custer, Misty Bad-gett, also visited with T.N. and reported to the volunteer that in her opinion T.N. should be in the custody of Mother.

[¶ 10.] Dr. Leslie Fiferman, a clinical psychologist, interviewed T.N. on four occasions. Dr. Fiferman found that T.N. was a well adjusted young girl who was doing very well given the situation. Dr. Fiferman testified that it would be disconcerting to place T.N. in an environment other than the one she was currently in with Father. Dr. Fiferman also testified that he did not ask T.N. where she wanted to live because that answer can be a product of manipulation. Dr. Fiferman recommended that custody remain with Father.

[¶ 11.] The trial court returned legal and physical custody of C.G.(H) and M.G. to Mother. However, the trial court continued jurisdiction over the two children for three months in order to provide a safety net should Mother falter. While the trial court awarded joint legal custody of T.N. to Mother and Father, it determined that physical custody of T.N. should remain with Father as the least restrictive alternative commensurate with the best interests of the child. The trial court found that compelling reasons existed to separate the half-siblings based on the following: (1) Father had demonstrated a stable lifestyle; (2) T.N. had successfully resided with Father for a year; (3) T.N. had excelled in school and achieved an excellent attendance record; (4) T.N. was well adjusted to Father’s home; (5) T.N. was not at an age where her preference was determinative; (6) Father was more likely to encourage meaningful contact between T.N. and the other parent; (7) Mother had repeatedly brought unfounded allegations of Father’s mistreatment of the child; and (8) Mother’s actions brought this ease into the system when she chose to reside with her children in a home with an active methamphetamine lab in the basement.

STANDARD OF REVIEW

[¶ 12.] We review a trial court’s findings of fact in an abuse and neglect proceeding under a clearly erroneous standard. In re S.A.H., 537 N.W.2d 1, 5 (S.D. 1995). In applying this standard, this Court does not determine whether it would have made the same findings the trial court did, but whether on the entire evidence it is left with a definite and firm conviction that a mistake has been committed. Id. “Trial courts possess broad discretion in deciding the best interests of a child; their decisions will only be disturbed upon a finding of abuse of discretion.” Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d 798, 807 (citations omitted).

ANALYSIS

ISSUE

[¶ 13.] Whether the trial court abused its discretion when it granted physical custody of T.N. to Father.

[¶ 14.] When a parent’s rights are not terminated at the dispositional hearing, SDCL 26-8A-22 provides a number of options available to the trial court, including granting custody of the child to the other parent. “In deciding which of these options is the least restrictive alternative, the question is viewed from the child’s perspective.” Matter of C.W., 1997 SD 57, ¶ 18, 562 N.W.2d 903, 906. “In determining the best interests of a child, the court must consider the child’s temporal, mental and moral welfare.” Hathaway v. Bergheim, 2002 SD 78, ¶ 19, 648 N.W.2d 349, 352. “The trial court may consider these factors in determining which parent should have primary care of the child: (1) parental fitness; (2) stability; (3) primary caretaker; (4) child’s preference; (5) harmful parental misconduct; (6) separation of siblings; and (7) substantial change in circumstances.” Id.

[¶ 15.] After considering these factors the trial court found physical custody of T.N. with Father to be the least restrictive alternative commensurate with the best interests of the child. The trial court recognized that while Mother had been the primary caretaker prior to her arrest, Father has been the primary caretaker of T.N. for one year as of the date of the dispositional hearing. Testimony indicated that both Father and Mother were fit parents. For the two children returned to Mother, the trial court determined it was in their best interests to retain jurisdiction in order to insure Mother was capable of properly caring for them on a consistent basis. Certainly, the trial court was concerned with Mother’s ability to provide a stable home environment. Father clearly had demonstrated more stability. Mother is on strict supervision for her crime; and although she has performed remarkably well, whether she will continue when released from supervision is unknown. It cannot be disputed that Mother’s decision to have these children in a home with an active methamphetamine lab in the basement endangered their safety and was harmful parental misconduct. In addition, while a child’s preference is a consideration, SDCL 25-4-45 provides that the child must be of a sufficient age to form an intelligent preference before it can be considered. The trial court determined that T.N. was not of a sufficient age. After considering the appropriate factors, the trial court determined that compelling reasons existed for the separation of the half siblings. Cf. Matter of C.W., 1997 SD 57 at ¶ 22, 562 N.W.2d at 907.

[¶ 16.] On these facts, the trial court was presented with a situation where the least restrictive alternative for two of the three children was returning the children to Mother with continued monitoring. However, with T.N. there was another alternative, placement of the child with Father. This decision is supported by the trial court’s findings and was not an abuse of discretion.

[¶ 17.] Affirmed.

[¶ 18.] SABERS, KONENKAMP and MEIERHENRY, Justices, and WILBUR and VON WALD, Circuit Judges, participating.

[¶ 19.] VON WALD, Circuit Judge, for GILBERTSON, Chief Justice, disqualified.

[¶ 20.] WILBUR, Circuit Judge, for ZINTER, Justice, disqualified.

      . Mother testified that she inadvertently took methamphetamine when her husband put methamphetamine in cold capsules. She admitted to voluntary use on other occasions. The trial court found her testimony not credible on this issue.

      . T.G., the father of the other two children, was charged in federal court and received a 23 month sentence.