author: MEYER, Justice.

text:
    In re the ESTATE OF Francis E. BARG, a/k/a Francis Edward Barg.
    No. A05-2346.
    Supreme Court of Minnesota.
    May 30, 2008.
    Rehearing Denied July 21, 2008.

      Janice S. Kolb, Mille Lacs County Attorney, Melissa M. Saterbak, Asst. Mille Lacs County Attorney, Milaca, MN, for appellant Mille Lacs County.
    Thomas J. Meinz, Princeton, MN, for respondent Michael Barg.
    Julian J. Zweber, St. Paul, MN, for ami-ci curiae Elder Law Section of the Minnesota State Bar Association and National Senior Citizens Law Center.
    Lori Swanson, Attorney General, Robin Christopher Vue-Benson, Asst. Attorney General, St. Paul, MN, for amicus curiae Minnesota Commissioner of Human Services.
   OPINION

MEYER, Justice.

The Mille Lacs County Family Services and Welfare Department (County) filed a claim against the Estate of Francis E. Barg (Estate), seeking to recover Medicaid benefits correctly paid on behalf of his predeceased wife, Dolores Barg. The Estate partially allowed the claim, and disallowed the other part. The district court, concluding that Dolores Barg’s interest in the couple’s property was limited because she had conveyed it to her husband before her death, evaluated her interest as a life estate, and upheld the partial disallowance. The County appealed, arguing that it was entitled to recovery from the full value of the property. The court of appeals reversed and remanded, partially allowing the claim and evaluating Dolores Barg’s interest in the property as a joint tenancy interest equivalent to one-half the value of the property. In re Estate of Barg, 722 N.W.2d 492, 497 (Minn.App.2006). We affirm in part and reverse in part.

Factual and Procedural Background.

The parties have stipulated to the facts in this case. Dolores J. Barg was born in 1926, married Francis E. Barg in 1948, and remained married to him until her death in 2004. In 1962 and 1967, in two separate transactions, the Bargs took title as joint tenants to real property in Princeton, Minnesota. Their home was located on this property. On October 24, 2001, Dolores Barg entered a nursing home in Mille Lacs County, at first paying the costs herself. In December 2001, she applied for long-term Medicaid benefits.

An asset assessment for Dolores Barg was completed in February 2002. The Bargs’ marital assets including their homestead totaled $137,272.63. Approval for long-term Medicaid benefits was given retroactive to December 1, 2001.

On February 27, 2002, Francis Barg executed his will, nominating the couple’s son Michael F. Barg as personal representative, leaving his estate to his surviving descendants, and making no provision for his wife. Dolores Barg transferred her joint tenancy interest in the homestead property to Francis Barg on July 2, 20.02, when her daughter and guardian of her estate, Barbara Anderson, executed a Guardian’s Deed. Also in July 2002, Barbara Anderson deleted Dolores Barg’s name from certificates of deposit the couple held jointly at Bremer Bank. There is no allegation that these actions were improper or fraudulent.

On January 1, 2004, Dolores Barg died, having received - $108,413.53 in Medicaid benefits. At the time of her death, assets belonging to either Dolores or Francis Barg included three certificates of deposit, a checking account, and an IRA account, all in the name of Francis Barg alone; one certificate of deposit payable to the funeral home for Dolores Barg’s funeral; two vehicles, together worth approximately $9,000; the homestead titled in Francis Barg’s name, valued at $120,800; and miscellaneous household goods and furniture. All of these assets had been jointly held at some time during the couple’s 55-year marriage.

On May 27, 2004, Francis Barg died, never having received Medicaid benefits. On July 30, 2004, the County filed a claim against Francis Barg’s estate, seeking to recover $108,413.53, the full amount Dolores Barg had received in Medicáid bené-fits.

Michael Barg disallowed $44,533.53 of the claim, and allowed $63,880. The County petitioned for an allowance of the full claim, arguing that the entire value of the marital property, both the homestead and the certificates of deposit, was subject to its claim because Dolores Barg’s joint tenancy interest gave her a right to use of the entire property. The district court concluded that Dolores Barg’s interest in the property at the time of her death was equivalent to a life estate, and upheld the partial disallowance.

The County appealed. The court of appeals explained that, based on In re Estate of Gullberg, 652 N.W.2d 709 (Minn.App.2002), the County’s ability to recover against Francis Barg’s estate was limited to Dolores’s interest in marital or jointly owned property at the time of her death. Barg, 722 N.W.2d at 496. The court decided that property law principles should be applied to determine the nature of that interest and that under federal law and Gullberg, Dolores Barg retained a joint tenancy interest in the homestead at the time of her death. Id. at 497. The court valued that interest as an undivided one-half of the property’s value, and remanded the case to the district court for a recalculation of the amount of the claim that was allowable. Id.

The County petitioned for review. The Estate opposed review but sought conditional cross-review on the issue of whether federal law permits the State to recover at all from a surviving spouse’s estate. We granted review, as well as cross-review, and asked for briefing on whether the Estate had adequately preserved for review the issue of “whether the county may recover Medicaid benefits correctly paid on behalf of a predeceased spouse from the estate of a surviving spouse.” We granted requests by the Minnesota Commissioner of Human Services to file an amicus curiae brief aligned with the County and to participate in oral argument. We also granted requests by the Elder Law Section of the Minnesota State Bar Association and the National Senior Citizens Law Center to file an amicus curiae brief aligned with the Estate. After oral argument, we asked the parties for supplementary briefing on the relationship of the 2003 and 2005 amendments of Minn.Stat. § 256B.15, subds. 1 and lc-lk (2006), to the authority the County argues exists under Minn.Stat. § 256B.15, subd. la (2006) and Minn.Stat. § 256B.15, subd. 2 (2006), and how that relationship affects preemption analysis and the scope of recovery permissible under Minnesota law.

Statutory Framework.

Congress enacted Medicaid in 1965 as Title XIX of the Social Security Act to ensure medical care to individuals who do not have the resources to cover essential medical services. Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 9 (Minn.2002). Medicaid was intended to be the payor of last resort. Id. The program is jointly funded with the states as a “cooperative endeavor in which the Federal Government provides financial assistance to participating States to aid them in furnishing health care to needy persons.” Harris v. McRae, 448 U.S. 297, 308, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). Participating states enact legislation and rules, incorporate them into state medical assistance plans, and submit those plans to the U.S. Secretary of Health and Human Services for approval. 42 U.S.C. § 1396a(a)-(b) (2000 & Supp. Ill 2003). After this, the states can receive federal payments. 42 U.S.C. § 1396 (2000). Each state administers its own program within the federal requirements, and the Centers for Medicare and Medicaid Services (CMS) administer the program and approve state plans. Martin, 642 N.W.2d at 9. One of the requirements imposed on state plans is that they must “comply with the provisions of [42 U.S.C. § 1396p] with respect to liens, adjustments and recoveries of medical assistance correctly paid, transfers of assets, and treatment of certain trusts.” 42 U.S.C. § 1396a(a)(18) (2000).

To receive Medicaid, a person must qualify as either “categorically” or “medically” needy. Estate of Atkinson v. Minn. Dep’t of Human Servs., 564 N.W.2d 209, 210-11 (Minn.1997). A person is “categorically needy” if he is eligible for other specified federal assistance programs. Id. at 211. A person is “medically needy” if he incurs medical expenses that reduce his income to roughly the level of those who are categorically needy. Id. To qualify as medically needy a person may have income no higher than a defined threshold and may own assets of no more than a defined value. Id. If the assets of a Medicaid applicant and her spouse exceed the qualifying threshold, they must “spend down” their assets until they are at or below the qualifying threshold. Id. If a potential Medicaid recipient transfers assets below fan market value within a certain period of time before eligibility, the recipient is deemed ineligible for benefits for a time period mandated by statute. 42 U.S.C. § 1396p(c) (2000). This provision prevents people who are not needy from becoming eligible for Medicaid by transferring their assets away.

When determining the eligibility of a married person to receive Medicaid, states consider assets of both husband and wife as available to the spouse requesting benefits. 42 U.S.C. § 1396r-5(c) (2000). But there are several provisions in place to protect the community spouse from being impoverished as a result of the spend-down of assets needed to qualify the applicant for Medicaid. See Atkinson, 564 N.W.2d at 211; 42 U.S.C. § 1396r-5 (2000). The value of the couple’s home is not included among assets considered eligible to pay for medical care. Id. § 1396r-5(c)(5); 42 U.S.C. § 1382b(a)(l) (2000). The community spouse of a Medicaid recipient is also entitled to an allowance of income and assets designated for his or her needs that is not considered available to pay for the recipient spouse’s medical care. 42 U.S.C. § 1396r-5(d). Furthermore, the recipient spouse has the right to transfer assets, including an interest in the homestead, to his or her community spouse. 42 U.S.C. § 1396p(c)(2). Medicaid thus balances the obligation of community spouses to contribute to the payment of medical expenses for their recipient spouses against the accommodation of the community spouse’s need to provide for his or her own support.

Federal Medicaid Recovery Provisions.

Although it is not applicable to the facts before us, it is useful to start with the pre-1993 federal law on Medicaid recovery, because it is relied on in the parties’ arguments and is the basis for the rationale of several relevant cases. Prior to amendments adopted in the Omnibus Budget Reconciliation Act (OBRA) of 1993, the federal Medicaid statute stated a general principle that there should be no recovery of correctly paid Medicaid benefits, subject to several exceptions, one of which is relevant here:

No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be made, except—
* * * *
(B) in the case of any other individual who was 65 years of age or older when he received such assistance, from his estate.

42 U.S.C. § 1396p(b)(l) (1988). Under this pre-1993 law, states were allowed, but not required, to recover Medicaid benefits paid to recipients 65 or older, and the statute specified the recovery would be from the recipient’s estate. The statute also provided that this recovery from the recipient’s estate could only be made after the death of the recipient’s surviving spouse. Id. § 1396p(b)(2) (1988). Despite this prohibition against recovery before the death of a surviving spouse, there was no express mention of recovery from the estate of a surviving spouse. The pre-1993 federal law contained no definition of “estate.”

Section 1396p(b) was amended as part of the OBRA amendments of 1993. Omnibus Budget Reconciliation Act of 1993, Pub.L. No. 103-66, § 13612(a), (c), 107 Stat. 312, 627-28 (codified as amended at 42 U.S.C. § 1396p(b)(l), (4) (2000)). As amended, the federal law retained the general prohibition against states attempting to recover Medicaid payments correctly paid on behalf of an individual, with limited exceptions. 42 U.S.C. § 1396p(b) (2000). But the 1993 amendments changed section 1396p(b) in several ways. First, they lowered the age criterion for recovery from 65 to 55. Second, they made recovery allowed by the exceptions mandatory rather than permissive. Third, they added a definition of “estate,” which itself had both mandatory and permissive elements. As amended, the general nonrecovery rule and the relevant exception read as follows:

(1) No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be made, except that the State shall seek adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan in the case of the following individuals:
(B) In the case of an individual who was 55 years of age or older when the individual received such medical assistance, the State shall seek adjustment or recovery from the individual’s estate * * *.

Id. The amended version of section 1396p(b)(l)(B) retained the express reference to recovery from the recipient’s estate. Furthermore, as was true pre-amendment, this recovery from the recipient’s estate is only permitted after the death of the recipient’s surviving spouse: “Any adjustment or recovery under paragraph (1) may be made only after the death of the individual’s surviving spouse, if any * * *.” 42 U.S.C. § 1396p(b)(2) (emphasis added). And like the pre-1993 version, the amended federal statute contains no express authorization for, or reference to, recovery from a surviving spouse’s estate.

The 1993 amendments added a definition of “estate” for purposes of Medicaid recovery, with a mandatory provision that looks to state probate law and an optional provision that authorizes states to expand the definition beyond the scope of probate law:

[T]he term “estate”, with respect to a deceased individual—
(A) shall include all real and personal property and other assets included within the individual’s estate, as defined for purposes of State probate law; and
(B) may include, at the option of the State * * * any other real and personal property and other assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.

42 U.S.C. § 1396p(b)(4) (emphasis added). Under this provision, a state has the option to adopt a definition of “estate”' for Medicaid recovery purposes that includes some assets which, under ordinary probate law, would not be part of the Medicaid recipient’s estate, because they would pass immediately to someone else on the recipient’s death. For example, when two persons hold property in joint tenancy with a right of survivorship and one dies, the deceased joint tenant’s interest ordinarily passes directly to the surviving joint tenant and is not part of the probate estate. Under the optional expanded definition allowed by federal law, for Medicaid recovery purposes the interest of a deceased joint tenant who had received Medicaid would be included in his estate, rather than passing directly to the surviving joint tenant.

Minnesota’s Medicaid Recovery Laws.

Minnesota has long had a policy of requiring participants in the Medicaid program and their spouses to use their own assets to pay their share of the cost of care during or after enrollment. Minn.Stat. § 256B.15, subd. 1(a) (2006). To implement this policy, since 1987 Minnesota law has provided for recovery of Medicaid benefits paid from the estate of a recipient or the estate of the recipient’s surviving spouse. Minn.Stat. § 256B.15, subd. la (originally enacted as Act of June 12, 1987, ch. 403, art. 2, § 82,1987 Minn. Laws 3255, 3347). As relevant here, subdivision la provides that, “on the death of the survivor of a married couple, either or both of. whom received medical assistance, * * * the total amount paid for medical assistance rendered for the person and spouse shall be filed as a claim against the estate of the [recipient] or the estate of the surviving spouse.” Id. (emphasis added). A claim against the estate of a surviving spouse for medical assistance provided to the recipient spouse may be made up to “the value of the assets of the estate that were marital property or jointly owned property at any time during the marriage.” Id., subd. 2 (emphasis added).

The broad estate recovery authority contained in subdivisions la and 2 was supplemented in 2003 by amendments to the statute expanding subdivision 1 and adding subdivisions lc-lk. Act of June 5, 2003, ch. 14, art. 12, §§ 40-50, 2003 Minn. Laws 1st Spec. Sess. 1751, 2205-17. These amendments implement the optional expanded definition of “estate” authorized in the 1993 amendments to the federal law. See MinmStat. § 256B.15, subd. 1(a)(2) (2006); 42 U.S.C. § 1396p(b)(4)(B). The 2003 amendments to the Minnesota estate recovery law modify common law to provide for continuation of a recipient’s life estate or joint tenancy interest in real property after his death for the purpose of recovering medical assistance, MinmStat. § 256B.15, subd. 1(a)(3) (2006), and include that continued interest in the recipient’s estate. Minn.Stat. § 256B.15, subds. lg, lh(b), li(a), lj. The 2003 amendments also establish specific procedures for exercising claims' against these continued life estate and joint tenancy interests, as well as procedures and waiting periods that differ according to whether the recipient’s spouse, dependent children, or other relatives living in the homestead survive the recipient. Act of June 5, 2003, ch. 14, art. 12, §§ 48-49, 2003 Minn. Laws 1st Spec. Sess. 1751, 2213-17 (codified as amended at Minn.Stat. § 256B.15, subds. li and lj). In this case, the County filed its claim under subdivisions la and 2 and did not rely on provisions added in the 2003 amendments.

The issues presented in this case involve several questions about the relationship between the recovery provisions of federal and Minnesota Medicaid law. The court of appeals held that a partial disallowance of the County’s claim was proper, relying on its earlier decision in Gullberg that the broad authorization in subdivision 2 for recovery up to the value of all assets of the estate that were marital property or jointly owned at any time during the marriage was partially preempted by the 1993 amendments to the federal law that limit the expanded estate to assets in which the recipient spouse had a legal interest at the time of her death. Barg, 722 N.W.2d at 595-96 (citing Gullberg, 652 N.W.2d at 714).

The County, and its supporting amicus curiae the Commissioner of the Department of Human Services, argue that the court of appeals was wrong, both here and in Gullberg, in finding any preemption of the broad estate recovery authorized in subdivisions la and 2. They contend that there was nothing in the federal statute prior to the 1993 amendments that limited the states’ authority to pursue estate recovery of Medicaid benefits paid, and that the 1993 amendments were intended by Congress to expand state options, not limit them. Alternatively, the County argues that even if recovery is limited to the assets in which the recipient had an interest at the time of her death, Dolores Barg had an interest in the property notwithstanding the conveyance to her husband, and the court of appeals erred in valuing that interest as only one-half the value of the homestead.

The Estate and its supporting amici curiae counter that federal law authorizes recovery only from a recipient’s estate, and Minnesota law that allows recovery from a surviving spouse’s estate is therefore preempted. The Estate argues that recovery is also barred because, to the extent recovery is allowed from the estate of a surviving spouse, federal law limits that recovery to the value of assets in which the recipient had a legal interest at the time of her death, and subdivision 2 of section 256B.15 is preempted to the extent it allows broader recovery. Finally, the Estate argues that there should be no recovery here because Dolores Barg had no legal inter-est in the homestead or the certificates of deposit at the time of her death, having conveyed her interest to her husband during her lifetime.

Thus, the issues presented are as follows. First, does federal law preempt the authorization in Minn.Stat. § 256B.15, subd. la, for recovery of Medicaid benefits paid for a recipient spouse from the estate of the surviving spouse? Second, if such recovery from a surviving spouse’s estate is not preempted, does federal law limit the recovery to assets in which the recipient had an interest at the time of her death, preempting the broader recovery allowed in MinmStat. § 256B.15, subd. 2, as to assets owned as marital property or in joint tenancy at any time during the marriage? Third, if recovery is limited to assets in which the recipient had an interest at the time of her death what, if any, interest did Dolores Barg have in the homestead or the certificates of deposit at the time of her death, and specifically, was the court of appeals correct in holding that Dolores Barg had a joint tenancy interest for purposes of estate recovery even though she transferred that interest to her husband during her lifetime? We address these issues in turn, after first reviewing basic preemption principles.

I.

Whether federal law preempts state law is primarily an issue of statutory interpretation, which we review de novo. Martin, 642 N.W.2d at 9. The application of law to stipulated facts is a question of law, which we also review de novo. Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992).

Congressional purpose is “ ‘the ultimate touchstone’ ” of the preemption inquiry. Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978) (quoting Retail Clerks Int’l Ass’n, Local 1625 v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963)). Our primary focus in the analysis must be to ascertain the intent of Congress. See Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 280-81, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987). The United States Supreme Court has explained that “[Consideration of issues arising under the Supremacy Clause ‘start[s] with the assumption that the historic police powers of the States [are] not to be superseded by Federal Act unless that [is] the clear and manifest purpose of Congress.’ ” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Thus, preemption is generally disfavored. Martin, 642 N.W.2d at 11 (citing Cipollone, 505 U.S. at 516, 518, 112 S.Ct. 2608).

Congress may preempt state law in several ways. Cal. Fed. Sav. & Loan Ass’n, 479 U.S. at 280, 107 S.Ct. 683. First, it may do so with express language preempting state law. Id. Second, it may do so by fully occupying the field, that is, “congressional intent to pre-empt state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation.” Id. at 280-81, 107 S.Ct. 683 (quoting Rice, 331 U.S. at 230, 67 S.Ct. 1146). Here, it is clear that Congress neither expressly preempted state law nor so completely occupied the field as to leave no room for state action, because the Medicaid program specifically permits and even requires action by participating states. Martin, 642 N.W.2d at 11.

The third kind of preemption is at issue in this case. Even when Congress has not chosen to displace state law expressly or by fully occupying the field, “federal law may nonetheless pre-empt state law to the extent it actually conflicts with federal law.” Cal. Fed. Sav. & Loan Ass’n, 479 U.S. at 281, 107 S.Ct. 683. Conflict preemption occurs when compliance with both state and federal laws is impossible, Fla. Lime Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), or when the state law is “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941).

II.

We now turn to the question of whether Minn.Stat. § 256B.15, subd. la, which requires Medicaid recovery against the estate of a surviving spouse, is preempted by federal law, particularly 42 U.S.C. § 1396p(b)(l)(B). Because only conflict preemption may be applicable, we seek to determine whether compliance with both statutes is impossible or whether the state law stands as an obstacle to accomplishment of the purposes of the federal law.

The County seeks recovery here under subdivision la of section 256B.15, which authorizes — indeed requires — recovery of Medicaid benefits from the estate of the surviving spouse of a recipient. The Estate argues that this state law authorization to recover from the estate of the surviving spouse is preempted because it conflicts with 42 U.S.C. § 1396p(b)(l), which prohibits recovery of correctly paid Medicaid benefits except from the estate of the recipient of the benefits.

The federal statute establishes a general prohibition against recovery of correctly paid Medicaid benefits, subject to three specified exceptions:

(1) No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be made, except that the State shall seek adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan in the case of the following individuals:

42 U.S.C. § 1396p(b)(l) (emphasis added). Only one exception potentially applies to the circumstance of this case:

(B) In the case of an individual who was 55 years of age or older when the individual received such medical assistance, the State shall seek adjustment or recovery from the individual’s estate * * *.

Id. § 1396p(b)(l)(B) (emphasis added). Because this express exception to the general rule against recovery of Medicaid benefits directs that recovery come from the recipient’s estate and makes no reference to a surviving spouse’s estate, the Estate argues that recovery from the surviving spouse’s estate is not allowed under federal law. Because exceptions to a general statement of policy are to be construed narrowly, Comm’r v. Clark, 489 U.S. 726, 739, 109 S.Ct. 1455, 103 L.Ed.2d 753 (1989), it appears on its face that recovery from the surviving spouse’s estate is not permitted by federal law.

Two courts have agreed with this analysis and concluded that section 1396p(b)(l)(B) authorizes recovery only from the recipient’s estate and does not allow recovery from the estate of a surviving spouse. Hines v. Dep’t of Pub. Aid, 221 Ill.2d 222, 302 Ill.Dec. 711, 850 N.E.2d 148, 152-53 (2006); In re Estate of Budney, 197 Wis.2d 948, 541 N.W.2d 245, 246 (1995), rev. denied 546 N.W.2d 471 (Wis.1996). The Wisconsin Court of Appeals explained that the federal statute never “countered] the initial blanket prohibition” on recovery by authorizing recovery from the surviving spouse’s estate. Budney, 541 N.W.2d at 246. The Illinois Supreme Court noted that under federal and Illinois law, the state had authority to seek reimbursement from the recipient’s estate after the death of his surviving spouse. Hines, 302 Ill.Dec. 711, 850 N.E.2d at 153. But instead, as here, the state sought recovery from the estate of the surviving spouse. Id. The court explained that federal law allows only three exceptions under which a state may seek reimbursement and “[a]ll are specifically directed to the estate of the recipient. No provision is made for collection from the estate of the recipient’s spouse.” Id. The court declined to add to the unambiguous language of the federal statute or to recognize exceptions beyond those specified in the federal law. Id.

The Commissioner argues that Hines and Budney were wrongly decided, misinterpreting the federal statute, particularly in light of the presumption against preemption. The County contends that this statutory exception to the nonrecovery principle allows recovery generally against individuals who received benefits after age 55, and does -not narrowly limit the sources of recovery. The County asserts that the reference to the individual’s estate is merely a designation of the timing for recovery rather than a limit on the scope of recovery, because the language does not say that the state may recover “only” from the individual’s estate. The County argues that, absent such express limiting language, and applying the presumption against preemption, section 1396p(b)(l)(B) merely specifies one potential source of recovery, the recipient’s estate, and does not preclude others, such as a spouse’s estate.

In our view, the plain language of section 1396p(b)(l)(B) comports far more closely with the interpretation of the Illinois Supreme Court in Hines than with the County’s expansive view of the authority imparted by that provision. Moreover, we know of no court that has adopted the County’s broad view of that language alone. Indeed, in explaining the then-existing law in a report on proposed OBRA amendments in 1993, a House Report referred only to the possibility of recovery from the estate of the recipient, even when describing recovery after the death of a surviving spouse:

Under current law, a State has the option of seeking recovery of amounts correctly paid on behalf of an individual under its Medicaid program from, the individual’s estate if the individual was 65 years or older at the time he or she received Medicaid benefits. The State may not seek recovery from the beneficiary’s estate until the death of the surviving spouse, if any, and only if the individual has no surviving minor or disabled child.

H.R.Rep. No. 103-111, at 208 (1993), as reprinted in 1993 U.S.C.C.A.N. 378, 535 (emphasis added). In contrast, describing the proposed 1993 amendments to the Medicaid recovery law passed by the House, the same House Report stated that newly-required state estate recovery programs would have to “provide for the collection of the amounts correctly paid by Medicaid on behalf of the individual for long-term care services from the estate of the individual or the surviving spouse.” Id. Thus, when the House wanted to describe recovery from the surviving spouse’s estate, it said so clearly.

Nevertheless, despite the seemingly plain language providing only for recovery from the recipient’s estate, we acknowledge that several courts have interpreted the federal recovery provisions to allow recovery from the estate of a surviving spouse. The courts reaching this conclusion have for the most part relied on the 1993 amendments to the federal law that allow the states to adopt an expanded definition of estate for purposes of Medicaid recovery. For example, the New York Court of Appeals explained, in dicta, that although federal law did not expressly provide for recovery of Medicaid payments from the “secondarily dying spouse’s estate,” the 1993 amendments gave the states power to recover against the spouse’s estate for certain categories of assets. In re Estate of Craig, 82 N.Y.2d 388, 604 N.Y.S.2d 908, 624 N.E.2d 1003, 1006 (1993). The North Dakota Supreme Court agreed with the Craig interpretation that the 1993 expanded estate provision gave the states the option to recover against a surviving spouse’s estate assets conveyed through joint tenancy or right of survivorship. In re Estate of Thompson, 586 N.W.2d 847, 850 (N.D.1998). Indeed, the court in Thompson rejected the ruling in Budney that recovery against a surviving spouse’s estate is not allowed under federal law on the basis that the Budney court had not considered the optional expanded definition of “estate.” Thompson, 586 N.W.2d at 850. The North Dakota court concluded that “consideration of all the relevant statutory provisions, in light of the Congressional purpose to provide medical care for the needy, reveals a legislative intention to allow states to trace the assets of recipients of medical assistance and recover the benefits paid when the recipient’s surviving spouse dies.” Id. at 851. The court explained that, under the circumstances, it made no difference whether recovery was from one estate or the other:

Because the expansive federal definition of “estate” in 42 U.S.C. § 1396p(b)(4) extends only to assets in which the medical assistance benefits recipient “had any legal title or interest in at the time of death,” it is a matter of little moment whether the department seeks to recover the benefits paid by filing a claim in the estate of the recipient after the death of the recipient’s surviving spouse or by filing a claim in the surviving spouse’s estate.

Id. n. 3 (emphasis added). Finally, in Idaho Department of Health and Welfare v. Jackman, 132 Idaho 213, 970 P.2d 6, 9-10 (1998), the Supreme Court of Idaho also ruled that some recovery of Medicaid benefits could be made from the estate of a surviving spouse, but held that such recovery was preempted by federal law except to the extent of assets that had been in the recipient’s estate as defined by state probate law.

These courts provide little explanation for their conclusions that the statutory language expressly mentioning recovery only from the recipient’s estate also allows recovery from the surviving spouse’s estate. We infer that the courts viewed the authority to recover from assets that were part of the recipient’s estate after the death of the surviving spouse to fairly imply authority to recover those assets from the surviving spouse’s estate to which they had passed on the death of the recipient. In other words, to the extent assets in the surviving spouse’s estate are there because they had passed to the surviving spouse from the estate of the recipient, recovery from those assets in the surviving spouse’s estate is, in essence, recovery from the recipient’s estate.

The Ninth Circuit Court of Appeals appears to have made a similar unspoken inference in assessing preemption of California Medicaid recovery laws in two cases. Bucholtz v. Belshe, 114 F.3d 923 (9th Cir.1997); Citizens Action League v. Kizer, 887 F.2d 1003 (9th Cir.1989), cert. denied, 494 U.S. 1056, 110 S.Ct. 1524, 108 L.Ed.2d 764 (1990). In both cases, the Ninth Circuit addressed whether California’s Medicaid recovery law was preempted by pre-1993 amendment federal law. The California law allowed the state to seek recovery not only from the estate of the deceased Medicaid recipient, but “ ‘against any recipient of the property of that decedent by distribution or survival.’ ” Kizer, 887 F.2d at 1005 (quoting Cal. Welf. & Inst.Code § 14009.5 (West Supp.1989)). Thus, California law allowed the state to trace assets of the deceased Medicaid recipient and seek reimbursement from the recipients of those assets.

In Kizer the plaintiffs were individuals who had owned property in joint tenancy with a Medicaid recipient and had succeeded to ownership by right of survivorship upon the death of the Medicaid recipient. Id. at 1005. To determine whether California’s claimed right of recovery from these surviving joint tenants was inconsistent with federal law, the court looked to section 1396p(b)(l)(B), which, as discussed above, provided the general prohibition against recovery with the exception for individuals who were 65 years old when they received assistance. Id. at 1006. The Ninth Circuit noted that the federal statute provided only for recovery from the individual’s “estate,” and in the absence of a federal statutory definition of estate, looked to common law for the meaning of the term. Id. at 1006. The court held that an “estate” under common law did not include property held in joint tenancy at death, and therefore the California law that allowed recovery against such property went beyond the recipient’s estate and was too broad. Id. at 1008. The court in Kizer did not expressly address the issue of whether assets within the definition of “estate” could only be reached by a claim against the recipient’s estate, or whether federal law would permit the state to follow those assets and make the claim against a surviving joint tenant — or, as here, a surviving spouse.

Several years later, still applying pre-1993 federal law, the Ninth Circuit again addressed a preemption challenge to the same broad California Medicaid recovery provision. Bucholtz, 114 F.3d at 924. At issue in Bucholtz was application of the state recovery law to assets of Medicaid recipients that had been subject to three forms of joint interests: inter vivos trusts, tenancy in common, and community property. Id. at 924. The court applied the Kizer principle that “ ‘use of the word “estate” in the [federal] recoupment provision limits a state’s recovery to property which descends to the recipient’s heir or the beneficiaries of the recipient’s will upon death,’ ” id. at 925 (quoting Kizer, 887 F.2d at 1005), to each of the forms of shared interest at issue. The court concluded that, like the joint tenancy in Kizer, property held in an inter vivos trust is not part of the decedent’s estate under California common law, and therefore was not part of the estate subject to recovery under the federal law. Id. at 926. In contrast, the court explained, a decedent’s interest in property held in tenancy in common or community property is subject to disposition and administration as part of the decedent’s estate under California law. Id. at 926-27. The Ninth Circuit concluded not only that the decedent’s interest in property held in those forms was subject to recovery under the federal law, but also held, albeit without explanation, that recovery could be sought from the heirs or beneficiaries who received that property: “[California] may, however, pursue people who received property held by the decedent in the form of tenancy in common or community property.” Id. at 928 (emphasis added). Like other courts, the Ninth Circuit seems to have inferred that the federal law’s reference to recovery from the Medicaid recipient’s “estate” conferred authority to follow the assets from that estate and recover them from the people who received the property.

Thus, the courts that have considered the issue are split on the question of whether the narrow reference in section 1396p(b)(l) to recovery from the estate of the Medicaid recipient allows recovery only through a direct claim against that estate, or whether recovery is also allowed from those who received covered assets from the Medicaid recipient’s estate, including the estate of a surviving spouse. Were this an ordinary question of statutory interpretation, we would conclude that the plain language of the federal statute provides only for recovery against the Medicaid recipient’s estate, as the Illinois court persuasively reasoned in Hines. But we are influenced by the principle that preemption of state laws is disfavored, combined with the fact that allowing recovery against a surviving spouse’s estate is consistent with both the federal provision precluding recovery from the Medicaid recipient’s estate until after the death of a surviving spouse as well as with the purposes of the federal legislation. These additional considerations lead us to conclude that the split in authority, in these particular circumstances, illustrates sufficient ambiguity about the intent of the federal estate recovery language that we cannot say that Minnesota’s requirement in Minn.Stat. § 256B.15, subd. la, to seek reimbursement from the estate of a surviving spouse conflicts with federal law such that it is preempted.

Accordingly, we hold that federal law does not preclude all recovery from the estate of a surviving spouse, and the authorization in subdivision la to make a claim against the estate of a surviving spouse is therefore not preempted. The question remains whether federal law limits the scope of recovery against the estate of a surviving spouse and, in particular, whether that recovery may reach all property previously held by the Medicaid recipient spouse either as marital property or jointly with the surviving spouse during the marriage, as allowed by Minn.Stat. § 256B.15, subd. 2.

III.

We turn to a determination of whether the scope of recovery from a surviving spouse’s estate allowed under Minnesota law is consistent with federal law. Subdivision 2 of Minn.Stat. § 256B.15 allows the state to recover from a surviving spouse’s estate “the value of the assets of the estate that were marital property or jointly owned property at any time during the marriage.” (Emphasis added.) The County argues that this broad estate recovery authority does not conflict with federal law because the pre-1993 version of section 1396p(b) should be construed broadly and the 1993 amendments were intended to expand, not restrict, state estate recovery authority. In asserting this argument for broad estate recovery authority, the County emphasizes that it is consistent with the dual goals of federal law of recouping Medicaid expenses to make assistance available to more qualifying recipients, while protecting community spouses from pauperization during their lifetimes. The Estate argues that, because section 1396p(b)(l) allows recovery only from- a recipient’s estate and section 1396p(b)(4) allows expansion of the estate only to include assets in which the recipient had an interest at the. time of death, the “any time during the marriage” recovery allowed by subdivision 2 is preempted.

The County’s argument would take us too far down the path of favoring the purpose of the law at the expense of the plain meaning of its language. Significantly, no court has embraced the County’s argument that the pre-1993 federal law authorized recovery from a surviving spouse’s estate of assets that were jointly owned during the marriage but transferred by the recipient spouse prior to her death. Indeed, of the courts that have interpreted federal law to allow direct claims against the estate of a surviving spouse, only one has construed that authority to extend to assets that were transferred before the death of the Medicaid recipient, and that court relied on language from the 1993 amendments to support that extension. See In re Estate of Wirtz, 607 N.W,2d 882, 885-86 (N.D.2000).

Other courts that have recognized authority to recover from a source other than the Medicaid recipient’s estate have construed that authority to reach only assets in which the Medicaid recipient had an interest at the time of her death, that is, assets which were part of the recipient’s estate as defined by traditional state probate law or included in the estate under an expanded definition allowed by the 1993 amendments to federal law. See Bucholtz, 114 F.3d at 925-27 (limiting recovery to assets that were part of recipient’s estate as defined by state probate law); Kizer, 887 F.2d at 1006 (same); Jackman, 970 P.2d at 8-10 (holding that recovery from surviving spouse’s estate allowed by Idaho Medicaid recovery statute is limited by federal law to assets that were part of the Medicaid recipient’s estate as defined under state probate law); Thompson, 586 N.W.2d at 851 n. 3 (recognizing that “expansive. definition of 'estate’ in [section] 1396p(b)(4) extends only to assets in which the medical assistance benefits recipient ‘had any legal title or interest in at the time of death’ ”); see also In re Estate of Smith, No. M2005-01410-COA-R3-CV, 2006 WL 3114250 at *4 (Tenn.Ct.App. Nov.1, 2006) (explaining that courts that have allowed recovery against estates of surviving spouses have required that recipient had interest in assets at time of death).

Similarly, in relying on the 1993 amendments as authority for recovery from a surviving spouse’s estate, our court of appeals acknowledged that the 1993 amendments limit the assets subject to recovery to those in which the Medicaid recipient had a legal, interest at the time of her death. See Gullberg, 652 N.W.2d at 714 (holding that Minn.Stat. § 256B.15, subd. 2, authorization to reach assets that were marital property or owned jointly at any time during the marriage, is partially preempted by federal law limitation to assets in which recipient had interest at time of death). And the court of appeals acknowledged that limitation again in this case. Barg, 722 N.W.2d at 496 (“After Gullberg, the state’s ability to recover was limited to the recipient’s interest in marital or jointly owned property at the time of the recipient’s death.”).

As noted above, the only decision to deviate from this limiting principle requiring an interest at the time of death is Wirtz. Although the North Dakota court had acknowledged in its earlier Thompson decision that recovery allowed under section 1396p(b) is limited to assets in which the Medicaid recipient had an interest at the time of death (indeed that was the basis on which the court rationalized allowing recovery from the surviving spouse’s estate), 586 N.W.2d at 851 n. 3, the court held in Wirtz that any assets conveyed by the Medicaid recipient to his spouse before his death were subject to recovery from the surviving spouse’s estate, 607 N.W.2d at 886. The court stated that limiting recovery under section 1396p(b) to “assets in the surviving spouse’s estate that the Medicaid recipient had legal title to and conveyed through joint tenancy, tenancy-in-common, surviv-orship, life estate, or living trust” would ignore the words “interest” and “other arrangement” in the federal law. Wirtz, 607 N.W.2d at 885. Concluding that the words “interest” and “other arrangement” are ambiguous, the court relied on the Congressional intent it perceived “to allow states a wide latitude in seeking Medicaid benefit recoveries.” Id. at 885-86. The court did not explain why the same purpose acknowledged in Thompson was consistent with the limitation to recovery from assets in which the recipient had an interest at the time of death, yet also justified abandoning that limitation in Wirtz.

We cannot agree that the “other arrangement” language in the 1993 amendment is ambiguous in the sense implied in Wirtz. The plain meaning of “other arrangement,” read in the context of section 1396p(b)(4), is arrangements other than those expressly listed that also convey assets at the time of the Medicaid recipient’s death.

We return again to the language of the federal statute. The federal optional definition of “estate” allows inclusion of

any other real and personal property and other assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.

42 U.S.C. § 1396p(b)(4)(B) (emphasis added). The “including” clause further describes .the assets that a state may include in this expanded estate. The clause describes those assets in two ways — first by the limiting adjective “such,” and second by the language describing how and to whom “such assets” are “conveyed.” -The “such” limitation plainly refers back to the immediately preceding clause describing the assets as those “in which the individual had any legal title or interest at the time of death.” The including clause then describes to whom “such” assets may have been conveyed — a “survivor, heir, or assign of the deceased individual.” Id. (emphasis added). And finally, the clause describes several methods by which the conveyance of “such” assets might take place — “through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.” Id.

Inclusion in the list of examples of “such assets” is predicated on the recipient having a legal interest at the time of death. When we construe a federal statute we must, if at all possible, give effect “to every word Congress used.” Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979). To read “other arrangement” to include a lifetime transfer would be to read the words “at the time of death” out of the statute. The conclusion that “other arrangement” cannot include lifetime transfers is further supported by the additional context. “[0]ther arrangement” ends a list of examples of conveyances that occur at the time of death. The list of recipients of the conveyance, “a survivor, heir, or assign of the deceased individual,” leaves no doubt that the “individual,” a Medicaid recipient, must have died for the conveyance to occur. A recipient cannot have heirs or survivors during his or her lifetime. Nor can there be an “assign of the deceased” during the recipient’s lifetime. In light of the plain statutory language and its context, the conclusion of the Wirtz court that “other arrangement” is sufficiently ambiguous to include lifetime transfers is unreasonable.

We conclude that there is no principled basis on which to interpret the federal law to allow recovery of assets in which the Medicaid recipient did not have an interest at the time of her death. As explained above, the rationale for finding authority to recover from a surviving spouse’s estate at all emanates from the authority granted in the federal law to recover from the “estate” of the Medicaid recipient. Property transferred prior to death would not be part of the recipient’s estate. Further, as recognized by every decision except Wirtz, to the extent the 1993 amendments allow states to expand the definition of “estate” for Medicaid recovery purposes, the language of the federal law clearly limits that expansion to assets in which the recipient had an interest at the time of her death. Accordingly, we hold that Minn.Stat. § 256B.15, subd. 2, is partially preempted to the extent that it authorizes recovery from the surviving spouse’s estate of assets that the recipient owned as marital property or as jointly-owned property at any time during the marriage. To be recoverable, the assets must have been subject to an interest of the Medicaid recipient at the time of her death.

IV.

This brings us to the question of whether Dolores Barg had any interest in property at the time of her death that would allow the County to make a claim against the estate of her surviving spouse, despite her transfer of her joint interest in the property prior to her death. As we have noted, the court of appeals acknowledged the interest-at-time-of-death limitation on spousal estate recovery, but nevertheless found that for these purposes Dolores retained a joint tenancy interest at the time of her death that made the value of that interest recoverable from Francis’s estate. Barg, 722 N.W.2d at 496, 497. Eschewing reference to either marital property law or probate law to determine the nature of any interest at the time of death, the court of appeals looked to standard real property law and Gullberg in deciding that Dolores retained a joint tenancy interest. Id. at 496-97. We do not agree.

The court of appeals determined that Dolores retained a joint tenancy interest in the property based on its understanding that the court in Gullberg had recognized a continuing joint tenancy interest because the lifetime transfer was an “other arrangement,” and because the court apparently understood section 1396p(b)(4) to “explicitly allow[ ] a state to broaden the definition [of estate] beyond the meaning used in probate law and to include joint-tenancy interests that have been previously conveyed to a spouse.” Id. at 497. Section 1396p(b)(4) cannot be construed to include lifetime transfers of property in the phrase “other arrangement” because the plain language and the context require that phrase to be limited to conveyances occurring upon the death of the recipient. For that reason, we cannot agree with the court of appeals’ characterization of section 1396p(b)(4) as allowing the expanded definition of estate to include “previously conveyed” joint tenancy interests. The language of section 1396p(b)(4) requires that any interest included in the expanded estate must be one in which the Medicaid recipient had an interest at the time of her death, not one that was previously conveyed. We conclude that Dolores did not retain a joint tenancy interest in the property at the time of her death, because that interest was effectively and legally transferred before her death.

The question remains whether Dolores had any other interest in the property at the time of her death that may be considered part of an expanded estate for recovery purposes under Minnesota law. We agree with the court of appeals that courts should not look to marital property law to find such an interest, because the statute in which marital property is defined limits the definition to the purposes of that chapter. Minn.Stat. § 518.003, subds. 1, 3b (2006); see Barg, 722 N.W.2d at 496. Similarly, we agree that the recognizable interests at the time of death cannot be limited to those defined by probate law, because the purpose of section 1396p(b)(4) is to allow states to expand the definition of estate beyond probate law. See Barg, 722 N.W.2d at 497. We therefore agree that real property law principles, informed by principles of probate law, should be the basis for ascertaining any interests at the time of death. Any interest recognized must be consistent with the underlying foundational rationale that recovery from a surviving spouse’s estate is allowed only because of its relationship to the recipient’s estate, from which federal law expressly allows recovery. With those principles in mind, we caution that for an interest to be traceable to and recoverable from a surviving spouse’s estate, the interest must be (1) an interest recognized by law, (2) which the Medicaid recipient held at the time of death, and (3) that resulted in a conveyance of an interest of some value to the surviving spouse that occurred as a result of the recipient’s death. Further, to the extent the interest is not part of the standard probate estate, Minnesota law must have expanded the definition of estate to include the interest, as authorized by section 1396p(b)(4).

Dolores’s joint ownership in the homestead and certificates of deposit no longer existed at the time of her death. No other recognizable interest has been identified.

The County argues that the reference to marital property in subdivision 2 reflects the Minnesota legislature’s intent to make all marital property subject to spousal estate recovery. But subdivision 2 makes no reference to an interest at the time of death or to re-defining the probate estate to include all marital property, even property transferred prior to death. This is not surprising because subdivision 2 was enacted long before the optional estate definition authority was added to federal law.

The district court indicated that because Dolores was married to Francis even after the transfer of her interest in the homestead, she retained some interest in the property. But whatever that interest, it dissipated at Dolores’s death, rather than resulting in transfer of an interest of value to Francis.

We conclude that Dolores had no interest in assets at the time of her death that were part of a probate estate or an expanded estate definition permissible under federal law, and therefore there is no basis for the County’s claim against the estate.

Finally, we note that in 2003 the Minnesota legislature amended section 256B.15 by extending the definition of estate for Medicaid recovery purposes to include assets owned by a recipient spouse in joint tenancy or life estate at the time of her death. Act of June 5, 2003, ch. 14, art. 12, §§ 40-50, 2003 Minn. Laws 1st Spec. Sess. 1751, 2205-2217 (codified as amended at Minn.Stat. § 256B.15, subds. 1, lc-lk). The amendments do not mention the other forms of conveyance at death listed in the federal definition of “estate,” except that the “right of survivorship” is mentioned with respect to joint tenancies. Id. subds. 1(a)(6), lg, lh(b). Thus, the legislature chose only to include two forms of ownership in the expanded definition of estate. Also, as provided in the federal law, the inclusion of joint tenancy and life estate interests in the recipient’s estate is expressly limited to interests the recipient owned at the time of death. MinmStat. § 256B.15, subds. lh(b)(2), li(a). The amendments further limit the scope of recovery by exempting from the reach of subdivisions lc through lk a “homestead owned of record, on the date the recipient dies, by the recipient and the recipient’s spouse as joint tenants with a right of survivorship.” Minn.Stat. § 256B.15, subd. 1(a)(6). In 2005, the legislature retroactively made the provisions continuing life estates and joint tenancies effective only for life estate and joint tenancy interests created on or after August 1, 2003. Act of July 14, 2005, 1st Spec. Sess., ch. 4, art. 7, 2005 Minn. Laws 2454, 2649 (codified at Minn.Stat. § 256B.15, subd. 1(c)).

It is difficult to discern the intended reach of the 2003 amendments. If the pre-2003 law allowed recovery against the surviving spouse’s estate as argued by the County, there was little need to enact the 2003 amendments to reach those assets in the case of a recipient who leaves a surviving spouse. The parties apparently agree that the 2003 amendments do not apply to or influence this case, for reasons that are not clear to us.

It suffices to say that even if the 2003 amendments were applicable, they would provide no basis for the County’s claim. The new subdivision li specifically applies to circumstances in which a Medicaid recipient against whom a recovery claim could otherwise be filed is survived by a spouse. Minn.Stat. § 256B.15, subd. li(b). That subdivision provides procedures for filing a claim without making a recovery until the death of the surviving spouse. Id., subd. 1(f). If this subdivision were to be applied to this case, several limitations would preclude recovery. Dolores Barg, the recipient, owned no life estate or joint tenancy interest at the time of her death. If she had owned a joint tenancy at the time of her death, it would have been a homestead owned of record by her and her spouse as joint tenants with a right of survivorship, and thus exempted from the reach of subdivision li. Id, subd. 1(a)(6). Finally, that joint tenancy was established in the 1960s, well before August 1, 2003.

In summary, we hold that federal law does not preempt all Medicaid recovery from spousal estates, and Minn.Stat. § 256B.15, subd. la, is therefore not preempted to the extent it allows claims against the estate of a surviving spouse of a Medicaid recipient. However, the allowable scope of spousal estate recovery is limited. Subdivision 2 of section 256B.15 is preempted to the extent that it allows recovery from assets in which the deceased Medicaid recipient did not have a legal interest at the time of death, and to the extent that it permits recovery beyond the extent of the recipient’s interest. Finally, we hold that Dolores Barg had no interest in property at the time of her death that can form the basis for recovery against the estate of Francis Barg.

V.

We have concluded that the County’s claim for full recovery against all the assets in Francis Barg’s estate was preempted by federal law because recovery is limited to assets in which Dolores had an interest at the time of her death, but the question of the appropriate remedy remains, because the County argues that the Estate waived the right to deny the claim in its entirety. Although we have decided as a matter of law in our preemption analysis that the state is preempted from requiring reimbursement from assets in a spouse’s estate in which the recipient spouse had no interest at the time of her death, that does not resolve the remedy issue here. Although a state may not compel payment from a spouse’s estate beyond the scope authorized by federal law, federal preemption does not preclude an estate from voluntarily paying all or part of a claim that could not be compelled.

Here, the Estate only partially disallowed the County’s claim, thus allowing the remainder of the claim. Minnesota Statutes § 524.3-806(a) (2006) provides that, on petition of the personal representative after notice to the claimant, the court may “for cause shown permit the personal representative to disallow” a previously-allowed claim. But the personal representative made no such request here. When questioned at the hearing in district court whether the personal representative was challenging the entire claim of the County, the representative affirmed that he was challenging only the part already disallowed. When the district court affirmed that partial disallowance and the County appealed, the Estate did not file a notice of review in the court of appeals to challenge the implicit award to the County of the allowed part of its claim. A respondent who does not file a notice of review to challenge an adverse ruling of the district court waives that issue in the court of appeals. See Minn. R. Civ.App. P. 106; Ford v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 294 N.W.2d 844, 845 (Minn.1980). Having partially allowed the County’s claim and having then failed to properly seek a reversal of that allowance in both the district court and court of appeals, the Estate will not be permitted to seek that relief for the first time in this court.

Accordingly, the decision of the court of appeals is affirmed in part and reversed in part. The court’s denial of the County’s claim for full recovery is affirmed. The court’s remand for an award to the County based on the existence of a joint tenancy interest is reversed. The matter is remanded to the district court for entry of judgment based on the partial allowance made, but not subsequently challenged, by the Estate.

Affirmed in part and reversed in part.

ANDERSON, PAUL H„ J., took no part in the consideration or decision of this case.

DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . "Medicaid” is the popular name for this cooperative federal-state prográm. See 42 U.S.C. § 1396-1396v (2000). In Minnesota it is referred to as "medical assistance.” Minn. Stat. § 256B.02, subd. 8 (2006).

      . For purposes of determining eligibility of one spouse for Medicaid, the value of a couple's home is excluded. 42 U.S.C. § 1396r-5(c)(2), (5) (2000); 42 U.S.C. § 1382b(a)(l)(2000). In the asset assessment for Dolores Barg, $104,875 was excluded. This amount corresponds to the value of the home, one jointly-owned vehicle, and a burial lot. When completing the asset assessment, a portion of the couple's resources is reserved for the needs of the spouse not applying for Medicaid. 42 U.S.C. § 1396r-5(c)(2), (f)(2)(A) (2000). Protected assets for the non-recipient spouse, Francis Barg, were calculated to be $24,607.

      . The Commissioner's motion to supplement the record on review is granted as to the following documents: North Dakota Medicaid State Plan, Transmittal No. 95-016; Indiana Medicaid State Plan, Transmittal No. 05-012; Idaho Medicaid State Plan, Transmittal No. 01-006; and Minnesota Medicaid State Plan, Transmittal No. 06-10. The motion is denied as to the e-mail correspondence dated November 4, 1999.

      . Formerly the Health Care Financing Administration (HCFA). See Wis. Dep’t of Health & Family Servs. v. Blumer, 534 U.S. 473, 479 n. 1, 122 S.Ct. 962, 151 L.Ed.2d 935 (2002).

      . Throughout this opinion, our discussion of spouses is premised on circumstances similar to those of the Bargs. One spouse, who we refer to as the recipient spouse, applies for and receives Medicaid benefits. The other, who we refer to as the community or surviving spouse, receives no Medicaid benefits and survives the recipient spouse.

      . The Estate sought cross-review on this issue of "whether the county may recover Medicaid benefits correctly paid on behalf of a predeceased spouse from the estate of a surviving spouse.” We requested briefing on whether that issue had been adequately preserved for review. The County argues that the Estate failed to preserve the issue because it only partially disallowed the County’s claim, it confirmed before the district court that only the disallowed portion of the claim was contested, and it asked the court of appeals to affirm the district court's decision. The County’s arguments go to the scope of the remedy available in this case, an issue that we address infra. But this issue also has a legal aspect independent of the specific scope of recovery available in this case. That legal component is necessary to a thorough analysis of the preemption issues presented here, and we will therefore address the issue in that context. No new or controverted facts are needed in order to address this purely legal question, and no prejudice will result from our consideration of the issue because the parties addressed the issue in their briefs to the district court, the court of appeals, and this court. See Watson v. United Servs. Auto. Assn, 566 N.W.2d 683, 687-88 (Minn.1997).

      . The United States Supreme Court has described Congress's passage of the anti-impoverishment provisions as an effort to "protect community spouses from 'pauperization' while preventing financially secure couples from obtaining Medicaid assistance.” Wis. Dep’t of Health & Family Servs. v. Blumer, 534 U.S. 473, 480, 122 S.Ct. 962, 151 L.Ed.2d 935 (2002). Allowing recovery from a spouse's estate does not risk impoverishing a community spouse, because the spouse must be dead for the recovery to occur. Nor does it impede the furnishing of Medicaid benefits to other impoverished individuals; indeed, it can be expected to do quite the opposite. See West Virginia v. U.S. Dep’t of Health & Human Servs., 289 F.3d 281, 285 (4th Cir.2002) (noting that Congress expected the estate recovery provisions to allow government to realize savings of $300 million over five years, and that the savings have been even greater).

      . Formerly Minn.Stat. § 518.54, subds. 1, 5 (2004).

      . The parties' supplemental briefs shed little light on this question.


source: Caselaw Access Project

author: /s/Alan C. Page Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Donald B. DAVISON, a Minnesota Attorney, Registration No. 21568.
    No. A08-754.
    Supreme Court of Minnesota.
    July 2, 2008.
   ORDER

On May 2, 2008, the Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Donald B. Davison, alleging that respondent committed professional misconduct warranting public discipline, namely, neglect of a client matter resulting in entry of judgment and imposition of monetary sanctions against respondent’s client, and failure to cooperate with the Director’s investigation of the matter, in violation of Minn. R. Prof. Conduct 1.4(a) (as it existed prior to October 1, 2005), 1.3, 3.2, 3.4(c), 8.1(b), and 8.4(d), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR). Respondent and the Director entered into a stipulation under which respondent admitted the allegations of the petition, waived his procedural rights under Rule 14, RLPR, and joined with the Director in recommending that the appropriate sanction is a public reprimand and 2 years of unsupervised probation.

By order filed on May 27, 2008, we ordered the parties to show cause why the court should not suspend respondent and impose supervised, rather than unsupervised, probation upon respondent’s reinstatement to the practice of law. On June 10, 2008, the Director filed a memorandum of law in response to our order to show cause and provided additional information concerning the case.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Donald B. Davison is publicly reprimanded and placed on probation for a period of 2 years from the date of entry of this order, subject to the following conditions:

(a) Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with the terms of this probation and shall promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(b) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(c) With respect to the representation, whether paid or pro bono, of any clients other than the City of Grand Marais and its officials, agencies, and employees during the period of probation, respondent shall be subject to supervision by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Within 10 days of agreeing to represent such a client, respondent shall notify the Director and provide the Director with the names of two attorneys who have agreed to be nominated as respondent’s supervisor. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, respondent shall on the first day of each month provide the Director ‘with information concerning respondent’s representation of the private client, as described in paragraph (d) below. Respondent shall make private client files available to the Director upon request.
(d) Respondent shall cooperate fully with the supervisor in his or her efforts to monitor compliance with this probation. During such time as respondent is representing a private client, respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Before each quarterly meeting, respondent shall submit to the supervisor an inventory of all active files for private clients showing the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director as the Director may reasonably request. Once respondent’s representation of the private client ceases, respondent shall notify the supervisor and the Director.
(e)Respondent shall initiate and maintain office procedures that ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts, and other persons interested in matters that respondent is handling, and that will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.

Respondent shall pay costs in the amount of $900 pursuant to Rule 24(a), RLPR.

BY THE COURT:

/s/Alan C. Page Associate Justice


author: PAGE, Justice.

text:
    Theodore Sherman ASHBY, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-2385.
    Supreme Court of Minnesota.
    July 10, 2008.

      Theodore Sherman Ashby, Bayport, MN, Pro Se Appellant.

      Lori Swanson, Attorney General, St. Paul, MN, Michael 0. Freeman, Hennepin County Attorney, Elizabeth Johnston, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

PAGE, Justice.

In May 1996, Theodore Sherman Ashby was convicted of first-degree murder in connection with the September 1995 shooting death of Leslie Wayne Bryant and is currently serving a sentence of life in prison. On direct appeal, we affirmed Ashby’s conviction. State v. Ashby, 567 N.W.2d 21, 24 (Minn.1997). In July 2007, Ashby filed a petition for postconviction relief. The postconviction court determined that Ash-by’s claims were proeedurally barred and denied the petition without an evidentiary hearing. We affirm.

Ashby’s petition, construed liberally as required under Minn.Stat. § 590.03 (2006), asserts that Ashby is entitled to relief because: (1) the State improperly charged him by complaint before seeking an indictment, and the grand jury proceedings were tainted when the members of the grand jury were informed of that complaint; (2) the prosecution committed multiple acts of misconduct at trial; (3) the trial judge favored the prosecution’s case by interrupting defense counsel’s closing arguments and issuing improper instructions to the jury; (4) the trial judge failed to recuse herself from the case, despite her bias against him; and (5) a child who testified against him was incompetent to testify. The postconviction court determined that Ashby’s claims were barred under State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), and summarily denied his petition. Ashby now appeals the denial of the petition and, in addition, asserts for the first time that his claims are not barred under Knaffla because the exceptions to Knaffla apply to his claims. Ashby also asserts for the first time a claim of ineffective assistance of trial and appellate counsel.

Under MinmStat. § 590.01, subd. 1 (2006), an individual convicted of a crime may petition for postconviction relief on the ground that his conviction was obtained in violation of state or federal law. An evidentiary hearing must be held on a postconviction petition unless “the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2006). “[A]n evidentiary hearing is unnecessary if the petitioner fails to allege facts that are sufficient to entitle him or her to the relief requested.” Leake v. State, 737 N.W.2d 531, 535 (Minn.2007). On appeal from the decision of a postconviction court, we review legal matters de novo, and review the postconviction court’s factual findings to determine whether they are supported by sufficient evidence in the record. Butala v. State, 664 N.W.2d 333, 338 (Minn.2003).

If a direct appeal has been taken from a conviction, “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. The Knaffla rule also bars all claims that should have been known at the time of direct appeal but were not raised in the direct appeal. See Black v. State, 560 N.W.2d 83, 85 (Minn.1997). The Knaffla rule has two narrow exceptions. The first permits review of claims so novel as to make their legal bases unavailable at the time of direct appeal. Case v. State, 364 N.W.2d 797, 800 (Minn.1985). The second permits review when fairness so requires, unless the petitioner deliberately and inexcusably failed to raise the issue on appeal. Fox v. State, 474 N.W.2d 821, 825 (Minn.1991). A postconviction court is not required to apply the Knaffla exceptions if they are not raised by the petitioner. See Brown, v. State, 746 N.W.2d 640, 642 (Minn.2008) (citing Erickson v. State, 725 N.W.2d 532, 535 (Minn.2007)).

All of the claims raised in Ashby’s petition are barred under Knaffla. Each of the claims involves conduct occurring either before or during trial. Thus, Ashby either knew or should have known of these claims at the time of his direct appeal but failed to raise them at that time. As a result, those claims are barred. See Black, 560 N.W.2d at 85.

Further, because Ashby failed to raise the Knaffla exceptions in his petition, the postconviction court did not err when it failed to apply either exception. Brown, 746 N.W.2d at 642; Erickson, 725 N.W.2d at 535. Moreover, our review of the record satisfies us that the claims are not so novel as to have been unavailable at the time of Ashby’s direct appeal. Nor have we been able to identify anything in the record suggesting that fairness requires us to review these claims.

Finally, with respect to Ashby’s claims of ineffective assistance of trial and appellate counsel, we conclude that those claims have been waived due to Ashby’s failure to raise them before the postconviction court. See State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989) (“[W]e will not decide issues * * * raised for the first time on appeal even if the issues involve constitutional questions regarding criminal procedure.”). Therefore, we affirm in all respects the postconviction court’s decision to deny Ashby’s petition without a hearing.

Affirmed.

      . Further details concerning the shooting and Ashby’s conviction are set forth in our opinion on direct appeal.


author: ROSS, Judge.

text:
    STATE of Minnesota, Respondent, v. Keith Allen HOOKS, Appellant.
    No. A07-0597.
    Court of Appeals of Minnesota.
    July 1, 2008.

      Lori Swanson, Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for respondent.
    Lawrence Hammerling, Chief Appellate Public Defender, Marie Wolf, Assistant Public Defender, St. Paul, MN, for appellant.
    Considered and decided by ROSS, Presiding Judge; CONNOLLY, Judge; and HARTEN, Judge.

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

   OPINION

ROSS, Judge.

Keith Hooks appeals his conviction of third-degree controlled substance crime. Hooks sold cocaine from his car to an undercover police officer who later identified Hooks as the seller by obtaining and viewing Hooks’s driver’s license photograph from the Department of Motor Vehicles electronic database. Hooks contends on appeal that the district court violated his constitutional right to due process by failing to suppress evidence of the identification, arguing that the identification procedure was tantamount to an unduly suggestive one-person photographic lineup. Hooks also maintains that the district court erroneously instructed the jury that it “must” find him guilty if the state proved the elements of the offense charged; he argues that the instruction directly contradicts the well-settled prerogative of jury nullification, which permits a jury to acquit a defendant regardless of proven guilt. Because an investigating officer does not trigger the due process concerns of an impermis-sibly suggestive identification procedure when the officer independently obtains and views a state-maintained driver’s license photograph to identify a suspect, the district court did not err by refusing to suppress evidence of the identification. And because the district court may instruct the jury of its duty to find a defendant guilty if the defendant committed the crime charged, notwithstanding the jury’s inherent power to disregard that duty, the jury instructions were not erroneous. We therefore affirm.

FACTS

St. Paul police officer Jason Urbanski was working undercover and attempting to arrange a controlled purchase of drugs on October 11, 2005, when a woman entered his car and directed him to drive to Willard’s Bar in St. Paul. There, the woman spoke with a man sitting in a parked car. The man then made a u-turn and stopped his car alongside Urbanski’s so that the drivers were within reach of each other. The driver told Officer Urbanski that he had a “dub” — the street term for a twenty-dollar-size rock of crystallized “crack” cocaine. Urbanski purchased the “dub” of crack cocaine from the man. The interaction lasted less than one minute, but Ur-banski could see the man’s face clearly enough to identify him later.

Urbanski reported the car’s description and license plate number to other officers in the narcotics unit as the man drove away, and officers stopped the car. One of the officers radioed to Urbanski that the driver’s name was Keith Hooks, based on his driver’s license.

Urbanski decided to confirm that the man stopped by the officers was the man who had just sold him the cocaine. He returned to the police department and looked up Hooks’s driver’s license photograph on the Department of Motor Vehicles electronic database. Urbanski viewed the photograph within 20 minutes after the drug purchase. Seeing the photograph satisfied Urbanski that Hooks was the seller.

The state charged Hooks with third-degree controlled substance crime, Minnesota Statutes section 152.023, subdivision 1(1) (2004). Hooks moved to suppress officer Urbanski’s identification testimony on the theory that it resulted from an unfairly suggestive, one-person photographic lineup. At the end of the Rasmussen hearing, the district court concluded that it would allow the identification testimony to be heard by the jury. It opined that the single-photo identification process might have been impermissibly suggestive had the witness been an unsworn civilian, but it questioned whether it should analyze the constitutionality of an undercover police officer’s identification testimony using the test that applies to the admissibility of civilian eyewitness identification testimony. It went on to analyze the officer’s identification procedure under that test, concluding ultimately that the procedure did not violate Hooks’s due process rights.

At trial, the jury heard testimony from Urbanski, from two other officers who participated in the undercover operation, and from a forensic scientist from the St. Paul Police Department. Urbanski testified about his purchase of the crack cocaine and his identification of Hooks through the motor vehicle department’s database. He also identified Hooks in court. The officers who assisted Urbanski in the undercover operation testified that they stopped Hooks’s car and asked to see his driver’s license shortly after Urbanski reported the license plate number. One of the officers testified that the driver’s license photograph and descriptive information matched the driver, who was Hooks. The forensic scientist testified that a test revealed that the substance purchased by Urbanski was cocaine.

The jury found Hooks guilty of third-degree sale of a controlled substance. This appeal follows.

ISSUES

I. Did the district court deny Hooks a fair trial by admitting evidence of the undercover police officer’s identification testimony?
II. Did the district court contradict the jury’s nullification power and commit plain error by instructing the jury that it “must” find Hooks guilty if the state proved all the essential elements of the charged offense beyond a reasonable doubt?

ANALYSIS

I

Hooks first argues that the district court erred by failing to suppress Officer Urbanski’s identification testimony on the ground that the identification resulted from an impermissibly suggestive procedure, denying him a fair trial. The district court correctly questioned whether the identification procedure here triggers a due process analysis based on whether it was impermissibly suggestive. We hold that because a police officer cannot imper-missibly suggest a suspect to himself, Officer Urbanski’s identification procedure raises no due process concerns.

Evidentiary decisions generally rest within the discretion of the district court, not to be reversed absent an abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn.2003). But despite the district court’s general discretion to make evidentiary decisions, we review de novo whether a defendant has been denied due process. Spann v. State, 704 N.W.2d 486, 489 (Minn.2005). The United States Constitution guarantees all criminal defendants due process of law. U.S. Const, amend. XIV. The admission of pretrial identification evidence violates due process if the procedure “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidenti-fication.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); accord State v. Roan, 532 N.W.2d 563, 572 (Minn.1995). Our threshold question is whether we must analyze the identification under the test established in the suggestive-identification line of cases when the officer who designed the identification procedure is also the witness who made the identification. The answer is no.

In the typical circumstance in which police provide the lineup options to an eyewitness, we apply a two-part test to determine whether the pretrial identification procedure created a substantial likelihood of irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98, 110, 114, 97 S.Ct. 2243, 2251, 2253, 53 L.Ed.2d 140 (1977); State v. Ostrem, 535 N.W.2d 916, 921 (Minn.1995). The test is whether the identification procedure was unnecessarily suggestive, and, if so, whether the identification is nonetheless reliable when considered as part of the totality of the circumstances., Ostrem, 535 N.W.2d at 921. But this case does not present the typical circumstance. The reason a due process issue arises when a pretrial identification procedure is unnecessarily suggestive in the typical circumstance is that the defendant was unfairly singled out by police for the witness to identify. Simmons, 390 U.S. at 383-84, 88 S.Ct. at 971-72; see also Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) (holding procedure impermissibly suggestive when in an initial lineup included considerably shorter men than defendant, and victim identified defendant only after a prior one-man viewing). The traditional test is designed to measure whether police influence rather than the witness’s own reasoning and recollection led to the witness’s identification of the defendant. See State v. Taylor, 594 N.W.2d 158, 161 (Minn.1999) (stating that the ultimate concern of the unnecessarily-suggestive inquiry is whether the procedure used by police influenced the witness identification of the defendant). The constitutional concern about police-induced identification is not present where, as here, the facts include no conceivable identification-inducing interaction between police and the identifying witness.

Hooks’s constitutional challenge overlooks why single-person lineups trigger a constitutional concern, so we briefly outline the reasoning behind the concern. It is commonly understood that the police solve crimes, so a witness naturally assumes that the police have unique expertise and information to determine the offender’s identity. This confidence in police skill and insight demonstrates itself routinely; when the public learns that police have identified a suspect in some publicized crime, for example, the public, relying only on the perception of police credibility rather than on specific evidence, is generally influenced by the announcement and may tend to prejudge the suspect to be guilty. In some cases, this prejudice from police influence on public perception is so substantial that an affected defendant has the right to have his trial relocated. See Minn. R.Crim. P. 25.02, subd. 3 (requiring change of venue when dissemination of potentially prejudicial material creates a reasonable likelihood that a fair trial cannot be had).

This same prejudicial influence occurs more acutely when an eyewitness learns that police suspect a particular individual. The eyewitness’s subsequent identification of the same individual is questionable because of the significant possibility that the identification rests indirectly on the officer’s perceived suspicion rather than on the witness’s own direct recollection. And because the reliability of identification evidence is crucial, an eyewitness’s tainted identification conflicts with the fundamental fairness required to satisfy due process. See Roan, 532 N.W.2d at 572 (stating that admission of identification evidence derived from suggestive identification procedures may violate a defendant’s due process rights).

Police need not expressly announce a suspect for the improper suggestion to occur. In the context of eyewitness pretrial identification from police photographic lineups, courts have often concluded that a police officer’s showing of too few viable identification options unfairly suggests who the witness should identify. See Manson v. Brathwaite, 432 U.S. 98, 104, 97 S.Ct. 2243, 2247-48, 53 L.Ed.2d 140 (1977) (condemning single-photo lineups); Simmons, 390 U.S. at 383, 88 S.Ct. at 971 (discouraging use of single photo or photos of several persons among which a single individual appears multiple times or whose image is emphasized); United States v. Hines, 387 F.3d 690, 693-94 (8th Cir.2004) (noting that one-person photo lineup was unduly suggestive and analyzing identification under the totality of the circumstances); Ostrem, 535 N.W.2d at 921 (“Single photo line-up identification procedures have been widely condemned as unnecessarily suggestive.”); State v. Lindahl, 309 N.W.2d 763, 765 (Minn.1981) (finding suggestive a photo lineup containing two pictures of defendant); State v. Witt, 310 Minn. 211, 212-13, 245 N.W.2d 612, 614-15 (1976) (finding improper suggestion when victim who failed to pick defendant from a photo lineup later picked the defendant in an in-person lineup); State v. Erickson, 396 N.W.2d 265, 268 (Minn.App.1986) (finding unduly suggestive a 12-photo lineup with three photos of the defendant), revieiu denied (Minn. Dec. 12, 1986).

Recognizing the reasoning that drives the constitutional concern in these cases, we hold that an investigating police officer who obtains and observes for himself a driver’s license photograph to identify/or himself the person he observed committing the investigated crime does not implicate that person’s due process rights. Unlike the eyewitness to whom a single police-supplied photograph might suggest the photographed person’s guilt, Officer Urbanski could not have been unduly influenced by his own identification procedure. Acting as the investigating officer, Urban-ski decided for himself which photograph to view to confirm his reasoning that the licensed driver of the car that officers stopped leaving the scene of the crime was the offending drug dealer. The lineup options therefore narrowed to a single photograph based on Urbanski’s own reasoning, not based on the influence of an authority whose narrowing would tend to suggest a particular suspect to a witness.

We conclude that this process does not raise any fairness concerns that require the application of our two-part test. The district court therefore did not need to assess the identification for suggestibility under the traditional test, and it did not err by denying Hooks’s motion to suppress the identification evidence.

II

Hooks also contends that he is entitled to a new trial because the district court gave three erroneous jury instructions. The district court gave the challenged instructions at the beginning and end of Hooks’s trial. At the start of trial, the district court instructed the jury that if it was left with reasonable doubt as to any essential element, it must find Hooks not guilty. It then instructed the jury that, “[o]n the other hand, if after you’ve considered all the evidence in the case you have no reasonable doubt, but rather the State has proved each essential element of the crime beyond a reasonable doubt, then you must find the defendant guilty of such ... crime.” And in its final instructions to the jury, the district court stated that the jury “must follow the law as I give it to you whether you agree with it or not, and whether you think the law is or should be different from what I tell you it is.”

Hooks did not object to these instructions at trial. We therefore review for plain error, and we will reverse only if we conclude that there is an error, that is plain, and that affects Hooks’s substantial rights. State v. Martinez, 725 N.W.2d 733, 738 (Minn.2007). District courts have considerable latitude when choosing jury instructions, but the instructions, viewed as a whole, must accurately state the law. State v. Baird, 654 N.W.2d 105, 113 (Minn.2002); State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). We hold that the jury instructions that Hooks challenges are not erroneous.

Hooks argues that the instructions to the jury that it “must” convict if it finds that Hooks’s actions meet all elements of the charged crime contradict the jury’s nullification power, which allows the jury not to convict even if Hooks’s actions meet all the elements. Hooks’s argument is facially logical, but it is unpersuasive because it fails to account for the unique essence of the power of jury nullification.

Jury nullification, also called jury lenity, is the extraordinary power of the jury to issue a not-guilty verdict even if the law as applied to the proven facts establishes that the defendant is guilty. State v. Perkins, 353 N.W.2d 557, 561 (Minn.1984). Jury nullification is a curious paradox: it is the jury’s prerogative to disregard the law without actually committing an unlawful offense in doing so; its exercise is literally illegitimate (contrary to law) but practically legitimate (allowed by law). It is “the physical power to disregard the law” that has been “laid down to [the jury] by the court.” United States v. Battiste, 24 F. Cas. 1042, 1043 (C.C.Mass.1835) (Story, J.). In that sense, the most accurate description of the jury’s paradoxical authority to act on its own in disregard of the law even while it is charged with following the law is “the raw power to bring in a verdict of acquittal in the teeth of the law and the facts.” Perkins, 353 N.W.2d at 561.

One paradox begets another. So in the universe of logic in which a true thing cannot simultaneously be a false thing, there have been ripples in reason to accommodate the tension between the jury’s lawful duty to follow the law and the jury’s unlawful power not to. So, for example, a jury may render obviously inconsistent verdicts by finding a defendant guilty of one offense while acquitting him of another when identical evidence supports both charges alike. State v. Morris, 149 Minn. 41, 182 N.W. 721 (1921) (allowing guilty verdict for lesser offense on evidence that would have led to guilty verdict for greater offense for which the jury acquitted the defendant); see also State v. Holbrook, 305 Minn. 554, 556, 233 N.W.2d 892, 894-95 (1975) (relying on the jury’s power of lenity to rationalize jury’s conviction for possessing heroin with the intent to sell while acquitting him for selling heroin). Although issues already decided are generally subject to collateral estoppel, the district court may not dismiss a criminal complaint on grounds of collateral estoppel in favor of a criminal defendant because of the indirect application of the rule of lenity. State v. Juelfs, 281 N.W.2d 148, 150 (Minn.1979) (“The reason collateral estoppel does not apply to a case such as this is that one cannot conclude from the verdicts that the jury necessarily found against the state on an issue or issues common to both charges”)- And although courts must instruct jurors on the legal framework to guide their decision whether to convict or acquit, it is not required to instruct jurors that they also have the power of lenity allowing them to disregard that legal framework. Perkins, 353 N.W.2d at 562. Similarly, district courts are prohibited from directing verdicts for the state even if all the facts point only to guilt. Id. at 561 (“Recognition of this power [of jury lenity] also underlies the rule that the trial court may not direct a verdict for the state in a criminal case.”). So also, a defendant “is entitled to have all the elements of the offense with which he is charged submitted [to the jury] even if the evidence relating to these elements is uncontradicted.” State v. Carlson, 268 N.W.2d 553, 560 (Minn.1978).

The nullification paradox is particularly conspicuous when applied to Hooks’s contention. He maintains that instructing that the jury “must” convict if the charges are proven conflicts with the possibility that the jury, exercising lenity, need not convict. Hooks is right that the instruction conflicts with the power of lenity; he is wrong that the conflict is unacceptable. Indeed, the conflict is unavoidable. The exercise of the power of jury lenity is, by definition, a contradiction or usurpation of the law. So if the district court is prohibited from informing the jury of the law merely for the sake of preserving the rule of lenity, it could give no specific law to guide jury deliberation, and nothing would then remain of the rule of lenity, because the rule depends on the law. All that would remain if there is no law to nullify is a sort of anarchy in which the jury would be free to decide “the law” for itself. Justice Story challenged that idea 173 years ago while declaring the jury’s “physical power to disregard the law” in its exercise of lenity: “But I deny, that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions, or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law.” Battiste, 24 F.Cas. at 1043.

To demonstrate just how extreme Hooks’s argument really is, one need look no further than the statute that he violated. “A person is guilty of controlled substance crime in the third degree if ... the person unlawfully sells one or more mixtures containing a narcotic drug.” Minn. Stat. § 152.023, subd. 1(1) (2004) (emphasis added). If Hooks is correct that the challenged instructions are erroneous, it is also true that even reading the applicable statute to the jury was erroneous since the statute dictates that “a person is guilty ” for doing what Hooks did.

The jury instructions did not direct the jury not to exercise its extraordinary power of jury nullification. Because the inherently lawless power of jury nullification exists regardless of whether (and particularly when) a judge orders a jury to convict a defendant if the elements are proven, the district court did not err by instructing the jury that it must find Hooks guilty if the state proved all elements of the crime beyond a reasonable doubt.

DECISION

The district court properly denied Hooks’s motion to suppress identification evidence because the procedure used does not raise the due process concerns associated with impermissibly suggestive identification procedures. The district court did not err by instructing the jury that it must find Hooks guilty if the state proved the essential elements of the charged offense.

Affirmed.

      . For a thorough account of the English origins and American development of the rule of jury nullification, see United States v. Dougherty, 473 F.2d 1113, 1130-38 (D.C.Cir.1972).

      . Hooks also challenges the jury instruction, "When you reach a verdict it must be agreed upon by all of you," asserting that this requires the jury to reach a verdict. He misconstrues the instruction, which, as a whole, accurately states that the jury’s verdict must be unanimous. See State v. Hysell, 449 N.W.2d 741, 744-45 (Minn.App.1990) (affirming instructions informing the jury that a verdict must be unanimous).