author: WIGGINS, Justice. LARSON, Justice

text:
    In the Interest of J.A.L., Minor Child, J.A.L., Minor Child, Appellant.
    No. 04-1163.
    Supreme Court of Iowa.
    April 8, 2005.

      Curtis Puetz of Puetz Law Office, P.C., Sioux Center, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Coleman J. McCallister, Assistant County Attorney, for appellee.
   WIGGINS, Justice.

The juvenile court adjudicated J.A.L., a minor, a delinquent child after the court concluded J.A.L. falsely reported the placement of an explosive device in violation of Iowa Code section 712.7 (2003). At the hearing, the juvenile court admitted J.A.L.’s journal entries as character evidence. J.A.L. appeals the juvenile court’s decision arguing his journal entries were not admissible, and the State failed to prove beyond a reasonable doubt that J.A.L. violated section 712.7. Although we agree with J.A.L. that the journal entries were inadmissible as character or other-acts evidence, we nevertheless affirm the finding of delinquency by the juvenile court because the admissible evidence established J.A.L. violated section 712.7 beyond a reasonable doubt.

I. Proceedings.

The State filed a delinquency petition alleging on or about March 4, 2004, J.A.L. “did knowingly convey false information concerning the placement of an explosive device or material at the West Sioux Community High School, in violation of Iowa Code section 712.7.” Iowa Code section 712.7 provides:

A person who, knowing the information to be false, conveys or causes to be conveyed to any person any false information concerning the placement of any incendiary or explosive device or material or other destructive substance or device in any place where persons or property would be endangered commits a class “D” felony.

Iowa Code § 712.7.

Before trial J.A.L. filed a motion in li-mine. His motion asked the court to exclude his personal journals and notes found by his foster mother in his foster home. These materials contained disturbing handwritten messages of blood, murder, and death. The juvenile court took the motion under advisement. At the hearing, the juvenile court admitted the evidence subject to the motion. In a separate ruling filed at the same time it filed its delinquency order, the juvenile court denied the motion concluding the offered exhibits constitute ‘“evidence of a pertinent trait of the (juvenile’s) character’ and are admissible” pursuant to Iowa Rule of Evidence 5.404(a)(1).

In its delinquency order, the juvenile court concluded beyond a reasonable doubt that J.A.L. was the “author [of] the three notes (information) and that the notes concerned the placement of an explosive device at a place where people would be endangered, a public school.” Therefore, the juvenile court adjudicated J.A.L. a delinquent child and placed him in the custody of the department of human services for evaluation and placement in a juvenile facility.

II. Issues.

We must determine whether J.A.L.’s journal entries were admissible and whether the State established J.A.L. violated Iowa Code section 712.7 beyond a reasonable doubt.

III. Scope of Review.

Delinquency proceedings are nob criminal proceedings but are special proceedings that serve as an alternative to a criminal prosecution of the child with the best interest of the child as the objective. In re J.D.F., 553 N.W.2d 585, 587 (Iowa 1996); In re Henderson, 199 N.W.2d 111, 116 (Iowa 1972). We review delinquency proceedings de novo. J.D.F., 553 N.W.2d at 587; In re D.L.C., 464 N.W.2d 881, 883 (Iowa 1991). We presume the child to be innocent of the charges, and the court cannot find that the child engaged in the delinquent conduct unless the State can prove beyond a reasonable doubt that the child engaged in such behavior. Iowa Code § 232.47(10).

We generally review evidentiary rulings regarding other-acts evidence for abuse of discretion. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). A court abuses its discretion when it exercised its discretion on “grounds or for reasons clearly untenable or to an extent clearly unreasonable.” State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997). A ground or reason based on an erroneous application of the law is clearly untenable. Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997). Even if we find the district court abused its discretion and admitted the evidence, we are not required to reverse if the admission of the evidence was harmless. State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004); Iowa R. Evid. 5.103(a).

IV.Admissibility of the Journal Entries.

The State claims J.A.L. failed to preserve error on this issue arguing J.A.L. needed to do more than just file a motion in limine to preserve error. In his pretrial motion in limine, J.A.L. argued the State could not use the journal entries as character evidence under Iowa Rule of Evidence 5.404(a)(1) to prove that he acted as alleged in the delinquency petition. In his motion, J.A.L. also argued:

while [rule] 5.404(5) [of the Iowa Rules of Evidence] does permit character evidence to be admissible for matters such as proof of motive, opportunity, intent, preparation, etc., none of these materials contain statements other than the angst and hopelessness expressed by a teenage boy who has drifted from placement to placement and for whom the juvenile system has been a complete and total failure.

At the start of the delinquency adjudication hearing, the juvenile court indicated it would take the motion in limine under advisement and ultimately file a ruling on the motion. The State then formally resisted the motion on the record and offered the journal entries as eleven separate exhibits, subject to the motion in limine, with the understanding J.A.L. was objecting to the admissibility of the journal entries for the reasons set forth in his motion. The court admitted the journal entries subject to the motion in limine. This record is sufficient to preserve error on the admissibility of the journal entries.

The district court allowed the journal entries into evidence as character evidence under rule 5.404(a)(1). Character evidence of the accused is only admissible if offered by the prosecution to rebut character evidence offered by the accused. Iowa R. Evid. 5.404(a)(1). On appeal, the State acknowledges the journal entries are not admissible under rule 5.404(a)(1), because J.A.L. never offered any evidence of his character. Therefore, admitting the journal entries under rule 5.404(a)(1) constituted an abuse of discretion.

The State now argues the journal entries are admissible under rule 5.404(5) on the issue of the identity of the perpetrator. See DeVoss v. State, 648 N.W.2d 56, 62-63 (Iowa 2002) (recognizing appellate court may uphold evidentiary rulings on a theory not urged at trial based on “the realization that on retrial the error could easily be corrected”).

Iowa Rule of Evidence 5.404(5) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Iowa R. Evid. 5.404(5). Journal entries can be other-acts evidence under rule 5.404(5). See Turpin v. Kassulke, 26 F.3d 1392, 1399-1400 (6th Cir.1994) (holding diary entries displaying defendant’s longings for wealth are admissible to show the defendant had arranged her husband’s death out of a desire to collect on his life insurance). To determine if other-acts evidence is prima facie admissible, courts must determine whether the other-acts evidence is relevant “ ‘to a legitimate issue in the case other than a general propensity to commit wrongful acts.’ ” State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004) (quoting Sullivan, 679 N.W.2d at 25). Even though the court may determine the other-acts evidence is prima facie admissible, the other-acts evidence must be excluded if the court determines the evidence’s probative value is substantially outweighed by the danger of unfair prejudice to the person against whom the evidence is offered. Id.

Although both sides in oral argument conceded the identity of the perpetrator was a legitimate issue at the adjudication hearing, we still must decide whether the journal entries were relevant to the issue of identity. The State maintains the journal entries were relevant to establish the author of the threats. The State points to two of the eleven exhibits referencing bombing. One exhibit uses the phrase “Justice Of Bombers,” while another contains the word “bombs” several times. It further argues all eleven exhibits contain “statements and/or attacks against authority figures” and are relevant to establish the identity of the author of the threats. From these journal entries, the State contends the finder of fact could infer J.A.L. wrote the threats found in the computer room at the school.

Evidence is relevant when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Iowa R. Evid. 5.401. To permit the inference that similar acts establish the same person committed both acts, we have required that the other acts must be “strikingly similar” or of a “unique nature.” State v. Barrett, 401 N.W.2d 184, 189 (Iowa 1987); State v. Walsh, 318 N.W.2d 184, 186 (Iowa 1982). Similarity or uniqueness is required to prevent identification based on the forbidden inference of propensity. See United States v. Pisari, 636 F.2d 855, 858-59 (1st Cir.1981); 2 Joseph M. McLaughlin et al., Weinstein’s Federal Evidence § 404.22[5][c], at 404-122 (2d ed. 2004).

A review of J.A.L.’s journal entries indicates J.A.L. was fascinated with suicide, death, and murder. The journal entries, however, do not offer any indication J.A.L. was preparing to place a bomb threat at the school. The entries do not contain any plans to place a bomb threat or to kill any of his fellow students. A reader of the journal must use his or her imagination to fill in any planning or operational aspects of a plan to place a bomb threat at the school or a plot to kill his fellow students. Although the journal entries indicated J.A.L. was a troubled young man, the journal entries do not make it more probable that J.A.L. was the author of the notes found at the high school on March 4. See Barrett, 401 N.W.2d at 189 (holding sketchy plans for carrying out crimes contained in defendant’s journal were not similar to the modus operandi of the crimes for which defendant was being tried and were not admissible). The juvenile court was incorrect to admit into evidence the eleven exhibits containing the journal entries. Admitting other-acts evidence that is not relevant to identity constitutes an abuse of discretion. See United States v. Lail, 846 F.2d 1299, 1301 (11th Cir.1988) (holding despite some similarities between a prior bank robbery committed by the defendant and the bank robberies that were the subject of the defendant’s trial, the prior bank robbery was not sufficiently similar to be admissible on issue of identity; thus, the trial court’s admission of the prior bank robbery was an abuse of discretion requiring the appellate court to reverse the conviction).

We need not decide if the juvenile court’s decision to admit the journal entries into evidence was harmless error because our review on whether the evidence established J.A.L. violated Iowa Code section 712.7 beyond a reasonable doubt is de novo on the record. We will not consider any of J.A.L.’s journal entries in our de novo review.

V. De Novo Review on the Record.

On our de novo review, we give weight to the juvenile courts fact-findings, especially when considering the credibility of witnesses, but those findings ’do not bind us. J.D.F., 553 N.W.2d at 587. Applying this standard, we find that on March 4, 2004, a female student at West Sioux Community High School’s computer lab printed materials for a class on purple paper. The purple paper, which had been on a shelf in the computer lab, had just been loaded into the printer by another student because the printer was out of paper. After the student printed her pages, she noticed on the backside of each of the three printed sheets were the typed messages: “You are all going to die;” “There is a bomb in the building;” and “I’m going to shoot you all dead.” She immediately informed her teacher, who in turn, notified the principal. Taking the threats seriously, school officials evacuated the school and called the police. The police called the state fire marshal.

Shortly thereafter, a male student informed a teacher that he knew the identity of the author of the threats. The male student told the authorities that on February 26, 2004, he had sat beside J.A.L. in the computer lab during a class. After J.A.L. printed out three separate sheets on purple paper, J.A.L. told the male student to read the sheets in the printer. The student read the sheets, which contained the identical threats found by the female student on March 4. After reading the sheets, he dropped the sheets into the garbage can. As the male student was leaving the computer lab, he observed J.A.L. alone in the computer lab, and a printer began printing.

After receiving this information from the male student, the authorities interviewed J.A.L., who denied making any of the threats. When the police asked J.A.L. whether the police would find his fingerprints on the printed sheets containing the threats, J.A.L. responded that they could be. The police never conducted any tests to determine whether J.A.L.’s fingerprints were on the paper. The fire marshal asked J.A.L. whether J.A.L. had anything to do with the threats and if J.A.L. knew of any explosive devices that might be in the school. J.A.L. denied any knowledge concerning the threats and any knowledge of any explosive devices that might be in the school. After this interview, the fire marshal searched the school with the assistance of a bomb-sniffing dog. The search determined there were no incendiary or explosive devices in the building.

To establish J.A.L. violated Iowa Code section 712.7, the State must prove: (1) J.A.L. conveyed or caused to be conveyed to any person false information concerning the placement of an explosive device; (2) J.A.L. conveyed or caused to be conveyed that the device was in a place where persons or property would be endangered; and (3) at the time J.A.L. conveyed or caused to be conveyed information concerning the placement of an explosive device, J.A.L. knew the information to be false. Iowa Code § 712.7. For a violation of section 712.7 to occur, the legislature did not require that the person conveying the information have the actual intent to cause fear or alarm in the person or persons who receives the threat. Additionally, the legislature did not make a violation of section 712.7 dependent on causing actual fear or creating a condition of public disruption. Unlike the crime of terrorism, a violation of section 712.7 is complete when a person, knowing the information to be false, conveys or causes to be conveyed to any person false information concerning the placement of an explosive device regardless of the impact it may have on the person who receives it. See Iowa Code § 708A.1(3) (providing “ ‘[tjerrorism’ means an act intended to intimidate or coerce a civilian population, or to influence the policy of a unit of government by intimidation or coercion, or to affect the conduct of a unit of government ... ”).

J.A.L. admits the evidence presented at trial supports the conclusion that on February 26, he typed and printed the bomb threats that he encouraged the male student to read. He argues, however, that the evidence is insufficient to prove beyond a reasonable doubt that he violated section 712.7 on March 4, when the female student noticed the threats on the back of her printed pages. The State argues the crime was complete on February 26 when J.A.L. conveyed the threat to the male student, and what happened after this date is irrelevant. In response to this argument, J.A.L. contends the State should not be allowed to argue the statute was violated on a date different from the date charged in the delinquency petition.

Although J.A.L. is correct that the delinquency petition alleged on or about March 4, J.A.L. “did knowingly convey false information concerning the placement of an explosive device or material at the West Sioux High School, in violation of Iowa Code section 712.7,” we have held

[t]he date or dates fixed in the indictment for the commission of a crime are not material, and a conviction can be returned upon any date within the limitations statute, if there is no fatal variance between the indictment allegations and the proof offered.

State v. Washington, 356 N.W.2d 192, 196 (Iowa 1984) (holding information charging defendant with theft on or about January 5, 1983, did not preclude defendant’s conviction for thefts in February 1982, when evidence admitted tended to show commission of a theft in 1982); see also State v. Young, 172 N.W.2d 128, 129 (Iowa 1969) (holding information charging defendant with statutory rape on June 15, 1968, did not prevent defendant from being convicted for rape on June 22, 1968, when evidence admitted showed statutory rape occurred on June 22, 1968); State v. Hardesty, 261 Iowa 382, 393, 153 N.W.2d 464, 471-72 (1967) (holding indictment charging defendant with larceny between August 10 and August 14 did not immunize defendant from conviction when jury instruction stated the larceny occurred between August 1 and August 15, because evidence admitted showed the time period of the larceny to have occurred between August 1 and August 15).

The evidence admitted without objection showed J.A.L. conveyed information concerning the placement of an explosive device to a male student on February 26, while they were both in the computer lab. Therefore, “there is no fatal variance between the indictment allegations and the proof offered.” See, e.g., Washington, 356 N.W.2d at 196.

Relying on all this evidence, we find on this de novo review the evidence established beyond a reasonable doubt J.A.L., knowing the information to be false, conveyed false information concerning the placement of an explosive device in a place where persons or property would be endangered in violation of Iowa Code section 712.7. J.A.L. conveyed false information of the placement of an explosive devise to a male student on February 26, while in the computer lab. The State does not have to prove J.A.L. actually authored the threats found on March 4 for us to find a violation of section 712.7 under this record. The State has met its burden. Therefore, we find that the juvenile court was correct when it adjudicated J.A.L. a delinquent child.

VI. Disposition.

Because we agree the admissible evidence establishes beyond a reasonable doubt that J.A.L. violated Iowa Code section 712.7, the juvenile court was correct in adjudicating J.A.L. a delinquent child.

AFFIRMED.

All justices concur except LARSON, CADY, and STREIT, JJ., who concur specially.

LARSON, Justice

(concurring specially).

I concur in the affirmance of the delinquency adjudication, but I do not agree with the majority’s conclusion that the juvenile court abused its discretion in allowing the journal entries into evidence. They were clearly relevant on the issue of identity.

CADY and STREIT, JJ., join this special concurrence.


source: Caselaw Access Project

author: ANDERSON, G. BARRY, J.

license: Public Domain

text:
    MBNA AMERICA BANK, N.A., & Affiliates, Relator, v. COMMISSIONER OF REVENUE, Respondent.
    No. A04-1826.
    Supreme Court of Minnesota.
    April 7, 2005.

      Jerome A. Geis, Briggs and Morgan, P.A., St. Paul, MN, Arthur R. Rosen, Margaret C. Wilson, McDermott Will & Emery, L.L.P., New York City, for Appellant.
    Mike Hatch, Atty. Gen., James W. Neher, Bradford S. Delapena, Asst. Attys. Gen., St. Paul, MN, for Respondent.
   OPINION

ANDERSON, G. BARRY, J.

Relator MBNA America Bank, N.A. and Affiliates (“MBNA”) appeals from the Minnesota Tax Court’s dismissal of its action seeking a refund of Minnesota corporate franchise tax for 1991 and 1992. MBNA, although it has no physical presence in Minnesota, does substantial business within the state. For the two tax years in dispute, the year ending December 31, 1991, and the year ending December 31, 1992, MBNA’s net income apportioned to Minnesota was $2,076,600 and $2,146,269, respectively.

In 1995, because MBNA had not filed any Minnesota corporate franchise tax returns nor paid any tax, the Commissioner of Revenue (the “Commissioner”) requested information from MBNA regarding its business in the state. MBNA responded to this request on June 30, 1995. Approximately one year later, MBNA and the Commissioner entered into an agreement (the “1996 Agreement”) whereby the Commissioner requested and MBNA agreed to timely provide all records and documents necessary to calculate MBNA’s alleged Minnesota corporate franchise tax liability. The 1996 Agreement expressly states MBNA’s position that it was not subject to the Commissioner’s jurisdiction, and that MBNA was not required to file Minnesota corporate franchise tax returns nor pay the tax. On September 24, 2001, the Commissioner issued a “Notice of Change in Your Tax” (the “Assessment”) assessing corporate franchise tax for the years 1991 to 1996. MBNA paid the amounts set forth in the Assessment, including penalties and interest, on November 21, 2001.

In October, 2002, MBNA filed refund claims for the tax years 1991 and 1992 for amounts, including penalties and interest, of $395,004 and $388,570, respectively. MBNA argued that, because it is a national bank with its principal place of business in Delaware, and because it is without any physical presence in Minnesota, MBNA does not have a taxable nexus in Minnesota, and imposition of the corporate franchise tax violates the Due Process and Commerce Clauses of the United States Constitution under Quill Corp. v. North Dakota, 504 U.S. 298, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992). The Commissioner denied the claims for refund on November 12, 2002, without mentioning the issue asserted before us today — that the claim was filed after the expiration of the period for filing refund claims. MBNA then filed an administrative appeal of the Commissioner’s denial, which the Department of Revenue rejected on April 7, 2003.

Having exhausted administrative appeals, MBNA filed a notice of appeal, dated June 4, 2003, with the Tax Court. The Commissioner initially admitted that the Tax Court had jurisdiction to hear the appeal, but subsequently filed a motion to dismiss for lack of subject matter jurisdiction on February 19, 2004. The Commissioner argued that the October 2002 refund claims were filed three weeks after the expiration of the period allowed for refund claims under Minn.Stat. § 289A.40, subd. 1 (2004), taking the position that the filing period expired one year from the date of the Assessment (one year from September 24, 2001). The Tax Court granted the motion to dismiss for lack of subject matter jurisdiction. MBNA now appeals from that decision. In this appeal, MBNA argues (1) that the one-year filing period is not triggered by the issuance of the Assessment, but rather by the payment of the tax assessed, and (2) that the Assessment violated the Taxpayers’ Bill of Rights by failing to set forth the refund claim limitation period and the methods for obtaining a refund, and therefore could not have triggered the claims filing period.

I

The facts in this case are undisputed. The central issues in this case are purely matters of statutory interpretation. We review de novo the tax court’s interpretation of statutes. Chapman v. Comm’r of Revenue, 651 N.W.2d 825, 830 (Minn.2002). Minn.Stat. § 289A.40, subd. 1, states in relevant part:

[A] claim for a refund of an overpayment of state tax must be filed within 3-1/2 years from the date prescribed for filing the return, * * * or one year from the date of an order assessing tax * * *, upon payment in fall of the tax, penalties, and interest shown on the order or return made by the commissioner, whichever period expires later.

(Emphasis added.) Here, the later-expiring period is the period measured one year from the date of the order assessing tax. The Tax Court held that, under the plain language of the statute, the one-year filing period is triggered by the date of the order assessing tax, here, September 24, 2001.

MBNA argues that several rules of statutory construction weigh in favor of its position. First, Minn.Stat. § 645.16 (2004) provides that “[ejvery law shall be construed, if possible, to give effect to all of its provisions.” Additionally, “words and phrases are construed according to rules of grammar and according to their common and approved usage.” Minn.Stat. § 645.08(1) (2004). And finally, “[wjhen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (2004).

MBNA argues that reading the statute to trigger the one-year filing period upon the date of the Assessment would render the language “upon payment in full of the tax” meaningless, in violation of the canon of statutory construction that each provision in a statute is to be given meaning. Instead, given the plain meaning of “upon,” which MBNA argues refers to a time frame, the payment of the tax must trigger the filing period.

MBNA’s arguments fail. The words of the statute are clear. The statute states that the filing period shall be “one year from the date of the order assessing tax.” Minn.Stat. § 289A.40, subd. 1. Absent ambiguity, we cannot avoid the plain meaning of words to give effect to the spirit of the law. Minn.Stat. § 645.16. Reading the statute in this way does not render “upon payment in full of the tax, penalties, and interest” meaningless. The key word in this phrase is “full” — the phrase adds a condition, namely that neither a partial payment of the tax nor a payment of the tax but not penalties and interest gives rise to the right to claim a refund. Only a payment in full of tax, penalties, and interest gives rise to the entirely statutory right to claim a refund, and the period to claim the refund is limited by the entirely separate and distinct statutory language regarding timing — one year from the date of an order assessing tax. Reading the statute this way, every clause is given meaning, and the plain meaning of the statute is given effect.

It is also clear from the history of the statute that the legislature specifically intended the claims filing period to be triggered on the date of the order assessing tax, not upon payment of the tax. An amendment to section 289A.40, subd. 1, signed into law on June 1, 1995, altered the calculation of the one-year period. Prior to that time, the statute stated that, as relevant here, “a claim for a refund of an overpayment of state tax must be filed within * * * two years from the time the tax is paid in full.” Minn.Stat. § 289A.40, subd. 1 (1994). The 1995 amendment not only shortened the filing period to one year, but also added the language “from the date of an order assessing tax.” Act of June 1, 1995, ch. 264, art. 18, § 11, 1995 Minn. Laws 2872, 3053-54. As the Commissioner correctly asserts, had the legislature merely intended to shorten the time period, the additional language regarding the date of an assessment order, wholly absent from the 1994 statute, would have been omitted. The legislature would merely have changed the time period. Further, the amendment added the language that prohibits a refund claim until not only the tax but also all “penalties and interest shown on the order” are paid in full. Id. In light of the foregoing, we hold that the period for fifing a refund for overpayment of tax under Minn.Stat. § 289A.40, subd. 1, is triggered by the date of an order assessing tax.

II

We turn next to MBNA’s argument that the failure of the Commissioner to state the one-year limitation period, in writing, violates Minnesota law and, as a consequence of this failure,- MBNA’s refund claim is not barred. Two statutes impose requirements on the tax assessment order here.

First, the statute authorizing such assessments states, in relevant part:

When no return has been filed, the commissioner ... may send an order of assessment under this subdivision. The order must explain the basis for the assessment and must explain the taxpayer’s appeal rights.

Minn.Stat. § 289A.37, subd. 1(a) (2004). The Assessment at issue in the present case did meet the requirements of this section- — it explained the taxpayer’s appeal rights. But MBNA asserts that the Minnesota Taxpayers’ Bill of Rights, passed after the above statute was enacted, adds additional requirements with which the Commissioner failed to comply. The Commissioner argues that the requirements under the Taxpayers’ Bill of Rights are “separate and distinct” from those in the assessment statute. MBNA argues that the Taxpayers’ Bill of Rights Act’s universal requirements are triggered by its broad language, which provides that “[t]he appropriate statement prepared in accordance with subdivisions 1 and 2 must be distributed by the commissioner to all taxpayers contacted with respect to the determination or collection of a tax, other than the providing of tax forms.” Minn. Stat. § 270.0603, subd. 3 (2004). Subdivision 1 requires that the statement provide the following information:

(1) the rights and obligations of the Department of Revenue and the taxpayer during an audit;
(2) the procedures by which a taxpayer may appeal an adverse decision of the department, including administrative and judicial appeals;
(3) the procedures for filing refund claims and filing of taxpayer complaints; and
(4) the procedures that the department may use in enforcing the tax laws, including assessment, jeopardy assessment, levy and distraint, and the filing of liens.

Minn.Stat. § 270.0608, subd. 1 (2004) (emphasis added). It is undisputed that the Assessment explained the taxpayer’s appeal rights as required by the statute authorizing the Assessment, but did not explain the procedures for filing refund claims or taxpayer complaints as required by the Taxpayers’ Bill of Rights.

The triggering language for the Taxpayers’ Bill of Rights is broad — any statement to “taxpayers contacted with respect to the determination or collection of a tax” must meet the four requirements outlined above. The Commissioner cannot argue that the Assessment in the present case is not a statement “with respect to the determination or collection of a tax.” Absent any statutory language indicating that the requirements of the Taxpayers’ Bill of Rights will not be enforced when there is an order of assessment under Minn.Stat. § 289A.37, and because the requirements of the Taxpayers’ Bill of Rights do not conflict with the requirements of Minn.Stat. § 289A.37, we read the plain language of the Taxpayers’ Bill of Rights to create requirements in addition to those of the statute authorizing the assessment order.

The Assessment in the present case made no mention of “the procedures for filing refund claims and filing of taxpayer complaints” as required by Minn. Stat. § 270.0603, subd. 1. The procedures for filing a refund claim are obviously distinct from the procedures for appeal to the Tax Court, which were included in the order, and therefore the Assessment did not meet the requirements of the Taxpayers’ Bill of Rights.

The parties differ with respect to what effect nonconformity of the Assessment should have on the one-year period for filing a refund claim. The Commissioner essentially argues that the Taxpayers’ Bill of Rights is hortatory, and does not create any remedy for the taxpayer. In support of this proposition, the Commissioner cites Minn.Stat. § 270.0603, subd. 3, concerning statements required by the Taxpayers’ Bill of Rights which states that “[f]ailure to receive the statement does not invalidate the determination or collection action.” 'MBNA argues, however, that while Minn.Stat. § 270.0603, subd. 3, makes clear that the actual determination of tax in the order of assessment remains valid, the provision is silent as to what effect a nonconforming assessment has on the statute of limitations for filing a refund claim. Allowing the Commissioner to rely on a non-conforming assessment to trigger the one-year refund filing period and thereby deny the taxpayer his day in court, MBNA argues, would not only be inequitable, but would essentially write the Taxpayers’ Bill of Rights out of the law.

We recognize that the silence of the Taxpayers’ Bill of Rights as to what effect non-conformity should have on the statute of limitations for a taxpayer’s claim creates ambiguity. But we note that any ambiguities in the law must be interpreted in favor of the taxpayer. Dumont v. Comm’r of Taxation, 278 Minn. 312, 317, 154 N.W.2d 196, 200 (Minn.1967). This rule of construction is particularly relevant here, where the Commissioner seeks to use an ambiguity in the Taxpayers’ Bill of Rights to bar the taxpayer from ever presenting a claim.

In light of this rule of construction and the language of the Taxpayers’ Bill of Rights, we hold that the non-conforming assessment did not trigger the one-year filing period for refund claims under Minn. Stat. § 289A.40, subd. 1. The decision of the tax court is reversed.

Reversed.

Took no part, HANSON, J.


author: /s/Alan C. Page Associate Justice

text:
    Rhonda S. KUNFERMAN, Relator, v. FORD MOTOR COMPANY, Self-Insured, Respondent.
    No. A05-92.
    Supreme Court of Minnesota.
    April 19, 2005.
    Curtis H. Foster, Minneapolis, MN, for Relator.
    D. Jeffrey Pricco, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed December 16, 2004, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/Alan C. Page Associate Justice


author: ANDERSON, RUSSELL A., Justice.

text:
    STATE of Minnesota, Respondent, v. Kevin Ross BARRETT, Appellant.
    No. A04-29.
    Supreme Court of Minnesota.
    April 21, 2005.

      Mike Hatch, Attorney General, St. Paul, MN, Jeffrey R. Edblad, Isanti County Attorney, Thad N. Tudor, Assistant Isanti County Attorney, Cambridge, MN, for Respondent.
    John Stuart, State Public Defender, Lawrence Hammerling, Assistant Public Defender, Minneapolis, MN, for Appellant.
   OPINION

ANDERSON, RUSSELL A., Justice.

In this case, we conclude that failure to serve notice of appeal upon the State Public Defender, as required by Minnesota Rules of Criminal Procedure 28.04, subd. 2(2), deprives the court of appeals of jurisdiction over a prosecuting attorney’s pretrial appeal. We reverse the decision of the court of appeals to the contrary and remand to the district court for entry of judgment dismissing the complaint.

Appellant Kevin Ross Barrett was charged on June 17, 2003 with fifth-degree possession of a controlled substance, as the result of methamphetamine found by a police officer during a search of Barrett’s car in Isanti County. Following an omnibus hearing, the district court concluded that the search of the car was unlawful and granted the motion of Barrett’s public defender to suppress the methamphetamine as evidence, and to dismiss the charge.

The prosecuting attorney appealed the district court’s pretrial order, but failed to serve the notice of appeal upon the State Public Defender, as required by Minn. R.Crim. P. 28.04, subd. 2(2). The prosecutor served the notice of appeal by mail upon Barrett’s public defender at her office in Isanti County, but before the district court issued its order, Barrett’s public defender had moved from her Isanti County office to the Washington County Public Defender’s Office. She did not receive the mailed notice of appeal, nor was she aware of the district court’s order. Unaware of the prosecuting attorney’s appeal, neither Barrett, his public defender nor the State Public Defender filed an appellate brief and, by failing to timely file a brief, Barrett forfeited the right to oral argument. See Minn. R.Crim. P. 28.02, subd. 13(1); 28.04, subd. 2(4). In an unpublished opinion, the court of appeals reversed the district court. State v. Barrett, 2004 WL 1445589 (Minn.App. June 29, 2004).

After learning of the court of appeals decision, the State Public Defender on Barrett’s behalf filed a motion with the court of appeals to vacate the opinion and dismiss the appeal based on failure to serve the State Public Defender with the notice of appeal. The court of appeals denied the motion. We granted Barrett’s petition for review of both the order denying the motion and the decision reversing the district court.

I.

Because jurisdiction is a question of law, our standard of review is de novo. In re Welfare of J.R., Jr., 655 N.W.2d 1, 2 (Minn.2003). To determine whether failure to serve notice of appeal upon the State Public Defender deprives the court of appeals of jurisdiction, we first look to Minn. R.Crim. P. 28.04, subd. 2(2), which allows prosecuting attorneys a limited right of appeal from a pretrial order. We construe and interpret de novo our rules of procedure. State v. Hugger, 640 N.W.2d 619, 621 (Minn.2002).

Under this rule, a prosecution appeal from a pretrial order must be taken within five days after the prosecutor is served with notice of entry of the order or is notified in court of the order, whichever occurs first. Minn. R.Crim. P. 28.04, subd. 2(8). Upon oral notice that the prosecutor intends to appeal, the district court must stay proceedings for five days to allow time to perfect the appeal. Id., subd. 2(1). To appeal, the prosecuting attorney must file with the clerk of appellate courts a notice of appeal, a statement of the case, and a written request for transcripts, all of which “shall have attached at the time of filing, proof of service on the defendant or defense counsel, the State Public Defender, the attorney general for the State of Minnesota, and the clerk of the trial court in which the pretrial order is entered.” Id., subd. 2(2).

Rule 28.04, subdivision 2, lists certain procedural shortcomings that may not be fatal to the prosecutor’s pretrial appeal:

Failure to serve or file the statement of the case, to request the transcript, to file a copy of such request, or to file proof of service does not deprive the Court of Appeals of jurisdiction over the prosecuting attorney’s appeal, but it is ground only for such action as the Court of Appeals deems appropriate, including dismissal of the appeal.

Minn. R.Crim. P. 28.04, subd. 2(2). Absent from this list of nonjurisdictional shortcomings is the failure to actually serve the notice of appeal on the State Public Defender. By negative implication, the language of the rule supports the con-elusion that failure to serve the notice on the State Public Defender is a jurisdictional defect.

Outside the context of pretrial prosecution appeals, our rules of procedure sometimes make the filing of the notice of appeal the sole jurisdictional prerequisite to vest jurisdiction in the appellate courts. For example, in the case of a defendant’s appeal from conviction or an adverse post-conviction order, “[failure of the defendant to take any other step than timely filing the notice of appeal does not affect the validity of the appeal * * Minn. R.Crim. P. 28.02, subd. 4(1). The same language is used in provisions governing prosecution appeals from an adverse post-conviction order, or from a judgment of acquittal, vacation of judgment or order granting a new trial following a guilty verdict by the jury. Minn. R.Crim. P. 28.04, subds. 6, 7. See also Minn. R. Juv. Delinq. P. 21.03, subd. 2(B) (stating “[e]x-cept for the timely filing of the notice of appeal,” a party’s failure to comply with the appellate rules does not affect the validity of the appeal). In other cases, service of the notice of appeal upon a party is also required to vest jurisdiction in the appellate court. See, e.g., Minn. R. Civ.App. P. 103.01, subd. 1, & advisory comm. cmt.— 1998; In re Welfare of J.R., Jr., 655 N.W.2d at 3 (applying predecessor to Minn. R. Juv. Prot. P. 47.02). Because our rules of procedure provide that failure to serve the notice of appeal is a jurisdictional defect in some types of cases but not others, we do not believe it was a mere oversight to exclude the failure to serve the notice upon the State Public Defender from the list of nonjurisdictional defects in Minn. R.Crim. P. 28.04, subd. 2(2).

In the unique context of pretrial prosecution appeals, the purpose of the requirement that the State Public Defender be served with the notice of appeal also supports the conclusion that failure to do so is a jurisdictional defect. Minn. R.Crim. P. 28.04, subd. 5, requires an indigent defendant who desires representation by counsel in a pretrial prosecution appeal to proceed under Minn. R.Crim. P. 28.02, subd. 5. The latter rule provides that application is made to the State Public Defender’s Office, and if that office determines that the defendant is eligible for representation, “the State Public Defender is automatically appointed for that purpose without order of the court.” Minn. R.Crim. P. 28.02, subd. 5(1), (5). Thus, it is the State Public Defender who is appointed as appellate counsel for indigent defendants in pretrial prosecution appeals. From the date the notice of appeal is filed and served, the time the State Public Defender has to determine client eligibility, examine the file, conduct legal research and complete a brief can be as short as 23 days. See Minn. R.Crim. P. 28.04, subd. 2(3) (setting out 15- and 8-day briefing schedule). The requirement that the State Public Defender be served with the notice of appeal facilitates that office’s ability to perform its duties within the very abbreviated timelines for pretrial prosecution appeals.

Construing as jurisdictional the requirement of Rule 28.04, subd. 2(2), that the prosecutor serve the State Public Defender with the notice of appeal is also in keeping with the principle that rules governing pretrial prosecution appeals are strictly construed. Historically, the prosecution lacked any authority to appeal absent express legislative authorization. Arizona v. Manypenny, 451 U.S. 232, 245, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981); see also In re Welfare of C.W.S., 267 N.W.2d 496, 498 (Minn.1978) (stating it is “axiomatic” that state’s right to appeal in criminal proceedings is contrary to common law and must be expressly conferred by statute or must arise by necessary implication) (citation omitted). The need to restrict prosecution appeals reflected both “a prudential concern that individuals should be free from the harassment and vexation of unbounded litigation by the sovereign” and by the constitutional prohibition against double jeopardy which bars appeals following acquittal by a jury. Manypenny, 451 U.S. at 246, 101 S.Ct. 1657.

In Minnesota, pretrial prosecution appeals have been permitted for nearly 40 years, initially by statute. Minn.Stat. § 632.11(3) (1967); Minn. R.Crim. P. 28.04, subd. 1(1). Such appeals are restricted in a number of ways, however. First, not all pretrial orders may be appealed. A pretrial order is not appealable if it is based solely on a factual determination that a complaint lacks probable cause or if it is an order dismissing a complaint in the interests of justice under Minn.Stat. § 631.21 (2004). Minn. R.Crim. P. 28.04, subd. 1(1). Next, in order for the appeal to be considered, as a threshold matter “the state must ‘clearly and unequivocally’ show both that the trial court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (quoting State v. Zanter, 535 N.W.2d 624, 630 (Minn.1995)). Additionally, there are three events unique to pretrial prosecution appeals that can terminate the appeal and require the case to proceed as if there had been no appeal. The attorney general may dismiss the appeal. Minn. R.Crim. P. 28.04, subd. 2(4). If the prosecution fails to timely file and serve its brief, the court will dismiss the appeal absent extraordinary circumstances. State v. Keith, 325 N.W.2d 641, 642 (Minn.1982). And if the case is not orally argued or considered without oral argument within a prescribed time, the court of appeals is prohibited from acting. Minn. R.Crim. P. 28.04, subd. 2(5). Finally, a pretrial prosecution appeal is the only type of criminal appeal in which attorney fees and costs are allowed to the adverse party. Id., subd. 2(6).

There are good reasons for strictly construing the rule granting the prosecution the right to appeal a pretrial order. The appeal occurs while the defendant is awaiting trial, presumed innocent, and possibly confined. The defendant’s right to a speedy trial is also implicated by the prosecution taking a pretrial appeal. We recognize that these interests are less compelling when the appeal is from a pretrial order dismissing the complaint, as here. But if the State Public Defender is not served with the notice of appeal an indigent defendant may be wholly deprived of representation on appeal, as occurred in this case. In this state, we have “a long tradition of assuring the right to counsel.” Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 831 (Minn.1991). An appeal should not proceed if counsel for an indigent defendant is not notified of the appeal. Nor should indigent defendants be required to rely upon the timely forwarding of mailed service of the notice to the district public defender when the rules expressly provide for service upon the State Public' Defender, who in all likelihood will be appointed counsel for the appeal.

When an appeal is not perfected, the failure to abide by the governing rules of procedure deprives the reviewing court of jurisdiction to hear the appeal. In re Welfare of J.R., Jr., 655 N.W.2d at 3. We hold that the court of appeals does not have jurisdiction over a pretrial prosecution appeal if the prosecuting attorney has failed to serve the notice of appeal upon the State Public Defender, as required by Minn. R.Crim. P. 28.04, subd. 2(2). We therefore vacate the opinion of the court of appeals, reverse its order denying the motion to dismiss the appeal, and remand to the district court for entry of judgment dismissing the complaint.

Vacated, reversed and remanded to the district court.

      . Nor did Barrett's public defender receive a copy of the clerk of appellate courts’ subsequent notice to the prosecuting attorney that the notice of appeal had not been served upon the Attorney General. Service upon the Attorney General is also required by Rule 28.02, subd. 2(2).

      . The comment to this rule expressly states that the timely filing of the notice of appeal "is the jurisdictional prerequisite for the appeal.” Minn. R.Crim. P. 28.02, subd. 4 cmt. Although we have not adopted the comments and are not bound by diem, we note that no similar statement appears in the comment to Rule 28.04, subd. 2, governing pretrial prosecution appeals.

      . The critical-impact requirement originated in statute and was retained with some modifications by this court after adoption of the Rules of Criminal Procedure. Minn.Stat. § 632.12 (1967); State v. Webber, 262 N.W.2d 157, 159 (Minn.1977); State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn.1987). The rules require the prosecutor to include a statement showing how the pretrial order has a critical impact on the prosecution, both when the prosecutor gives oral notice to the district court of intent to appeal the order and in the statement of the case filed with the notice of appeal. Minn. R.Crim. P. 28.04, subd. 2(1), (2).

      . As we noted in J.R., Jr., this court has "inherent authority to [accept] an appeal in the interests of justice even when the filing or service requirements set forth in a rule or statute have not been met.” 655 N.W.2d at 3. It is an "exceptional case,” however, that merits such a departure from rules that are jurisdictional. Id. at 4. This is not such a case, and respondent has not requested us to invoke our inherent authority.


author: BLATZ, Chief Justice.

text:
    Matthew RADKE, as trustee for the next of kin of Makaio Lynn Radke, Appellant, v. COUNTY OF FREEBORN, et al., Respondents.
    No. A03-797.
    Supreme Court of Minnesota.
    April 21, 2005.

      Stephen C. Feibiger, Burnsville, MN, for Appellant.
    James Robert Anderson, Minneapolis, MN, for Respondent.
   OPINION

BLATZ, Chief Justice.

The issue in this case is whether a negligence cause of action can be maintained for the intervention and investigation of reports of suspected child abuse and neglect as required under the Child Abuse Reporting Act, Minn.Stat. § 626.556 (2004) (CARA). Appellant Matthew Radke (appellant), as trustee for the next of kin of his son Makaio Lynn Radke (Makaio), brought a -wrongful death action against Freeborn County and two county child protection workers alleging that they negligently investigated reports of suspected abuse of Makaio. The district court granted respondents’ motion to dismiss for failure to state a claim upon which relief can be granted under Minn. R. Civ. P. 12.02(e). The court of appeals affirmed, holding that the “legislature did not expressly or impliedly create a civil cause of action under the Child Abuse Reporting Act.” Radke v. County of Freeborn, 676 N.W.2d 295, 301 (Minn.App.2004). We hold that a cause of action can be maintained for negligence in the investigation and intervention of child abuse and neglect reports as required under CARA. We therefore reverse and remand.

Nineteen-month-old Makaio was beaten to death on April 21, 2001 by Paul Gutierrez, a friend of his mother’s. During the months preceding Makaio’s tragic death, he was the subject of a child abuse and neglect investigation by the Freeborn County Department of Human Services. At the time of his death, Makaio’s parents had separated and were in the process of dissolving their marriage. In January 2001, appellant had moved out of the family’s home and Makaio was living with his mother, Peggy Radke (Radke), and two other adults, Gutierrez and Kristina Baker. Upon learning that Gutierrez was living at the home, appellant become concerned and called the Albert Lea Police Department to make a complaint on January 20, 2001.

On February 28, 2001, appellant brought Makaio to the Albert Lea Medical Center where a doctor examined Makaio. Based on his examination of Makaio, which revealed that Makaio had. lesions behind his ears and bruises on his cheeks, the doctor reported suspected child abuse and neglect to the Freeborn County Human Services Department. In response to that report, Tammy Ressler, a Freeborn County child protection worker, visited Radke’s residence on March 2, 2001. Radke told Res-sler that Makaio’s injuries were caused by a fall. Ressler did no further investigation and took no protective action on behalf of Makaio.

On March 21, 2001, appellant brought Makaio to the Albert Lea Police Department after he discovered bruising on Ma-kaio’s testicles. The police reported the suspected abuse to the county the next day. After the police took photographs, appellant again took Makaio to the Albert Lea Medical Center. The doctor who examined Makaio at the medical center noted Makaio’s injuries which included abrasions on his head, a bruise on his jaw and his back, and wounds on his thigh and foot which resembled burns. Based on this examination of Makaio, the doctor also reported suspected abuse to the county.

In response to these reports, Ressler again visited Makaio at. Radke’s home on March 26, 2001. Radke told Ressler that the mark on Makaio’s foot was caused by “hand-foot-and-mouth disease.” Ressler apparently accepted this explanation, despite the fact that the doctor who examined Makaio diagnosed his injuries as resembling a burn. Although. Ressler observed Gutierrez present in the home and talked to him briefly, she did not question him about Makaio. No further investigation was conducted at that time, nor was any protective action undertaken.

Shortly thereafter, on April 10, 2001, appellant received a letter from Ressler advising him that the Freeborn County Department of Human Services had determined that no abuse had occurred and that child protective services were not necessary. The following day, appellant again contacted the Albert Lea Police Department to report his concern that Makaio was being abused. Two days later, Ma-kaio’s guardian ad litem also contacted the police after she visited the Radke home and observed that Makaio had some bruises on his face. The guardian ad litem took photographs of the bruising and reported to the police that Radke had claimed that the bruising occurred the night before while Makaio was in the bathtub.

It was not until April 20, 2001, seven days after the guardian ad litem reported suspected abuse to police and nine days after appellant’s report, that the county took any steps to investigate. On that date, Lisa Frank, a second county child protection worker, visited Makaio at Rad-ke’s home at approximately 11:00 a.m. Present at the home during the visit were Radke, Makaio, Makaio’s sister, Baker, and Baker’s child. Frank was aware of the prior reports of abuse, and observed a small bruise on Makaio’s left temple, a similar bruise on his rib cage, a third bruise on his backbone just above his diaper, and a healing injury to his foot. Frank also observed that Makaio was lethargic and had a runny nose. After a half-hour visit, Frank departed without instituting any precautionary measures and left Makaio with Radke at the home.

Later that day, Radke and Baker went out leaving Gutierrez in charge of Makaio, Makaio’s sister, and Baker’s child. Radke and Baker returned home at about 1:00 a.m. The next morning, Radke brought Makaio to the medical center where he was pronounced dead at 10:19 a.m. An autopsy conducted by the Ramsey County Medical Examiner determined that Makaio had died 10 to 12 hours before he was confirmed dead at the hospital. Makaio had multiple bruises on his face, back, legs, arms, lower extremities and head. Makaio also had multiple fractures of his ribs, sub-subcutaneous emphysema, a small abrasion on the back of his head, and a laceration on the edge of his rectum. Gutierrez was subsequently convicted of two counts of first-degree murder by criminal sexual conduct and by child abuse, and one count of second-degree murder. We affirmed his convictions. State v. Gutierrez, 667 N.W.2d 426 (Minn.2003).

Appellant was appointed trustee and next of kin of Makaio by order of the Freeborn County District Court on December 18, 2002. Shortly thereafter, appellant commenced this wrongful death negligence action against Freeborn County and the county’s child protection workers Frank and Ressler, individually and in their capacities as employees of Freeborn County. Radke and Gutierrez were also named in the suit, but did not respond to the complaint and are not parties to this appeal.

Pursuant to Minn. R. Civ. P. 12.02(e), respondents Freeborn County, Frank, and Ressler moved to dismiss for failure to state a claim upon which relief can be granted. On June 2, 2003, the district court granted the respondents’ motion to dismiss. The court of appeals affirmed the dismissal holding that “[t]he legislature did not expressly or impliedly create a civil cause of action” under CARA. Radke, 676 N.W.2d at 301. We granted review to answer the question of whether a cause of action exists for the wrongful death of a child allegedly caused by the negligent investigation of child abuse or neglect reports by the county and two county child protection workers.

Review of a case dismissed for failure to state a claim upon which relief can be granted is limited to whether the complaint sets forth a legally sufficient claim for relief. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn.2003). An appellate court reviews the claim’s legal sufficiency de novo and, in doing so, the facts, of the complaint are accepted as true and all reasonable inferences are construed in favor of the non-moving party. Id. We will not uphold a Rule 12.02(e) dismissal “if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.” N. States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963).

Relying heavily on Cracraft v. City of St. Louis Park, 279 N.W.2d 801 (Minn.1979), appellant argues that a special relationship existed between the county, its child protection workers, and Makaio because, under the factors established in that case, CARA created a special duty requiring respondents to act with due care in investigating reports of abuse. Appellant also relies on our decision in Andrade v. Ellefson, 391 N.W.2d 836 (Minn.1986), in which we applied the Cracraft factors and held that the county owed a special duty to children who were injured in a county-licensed home day care facility. Respondents, however, argue that no cause of action can be maintained under CARA as it is very similar to the Vulnerable Adults Reporting Act, Minn.Stat. § 626.557 (2004) (VARA), the statute at issue in Hoppe v. Kandiyohi County, 543 N.W.2d 635 (Minn.1996), where we held that no cause of action could be maintained under VARA.

Generally, a person has no common law duty to prevent a third person from injuring another unless there is some kind of special relationship. Andrade, 391 N.W.2d at 841; Restatement (Second) of Torts § 315 (1965). Applying this principle to governmental torts in what is called the “public duty rule” requires that a governmental unit owe the plaintiff a duty different from that owed to the general public in order for the governmental unit to be found liable. Cracraft, 279 N.W.2d at 806. In other words, a purely “public duty” — as opposed to a “special duty”— cannot give rise to government tort liability. Id. Our decision in Cracraft set out the test for determining whether a special duty exists. Id. at 806-07. Under Cra-craft, the existence of a statute or ordinance is not sufficient to create a special duty; instead, a special duty of care arises only when “there are additional indicia that the [governmental unit] has undertaken the responsibility of not only protecting itself, but also undertaken the responsibility of protecting a particular class of persons” from the risks associated with a particular harm. Id. at 806.

The issue before the court in Cracraft was whether a special duty existed on the part of the city under its fire code ordinance. Id. at 803. In Cracraft, two children died and one child was injured when a 55-gallon drum of duplicating fluid ignited on the loading dock of a high school. Id. The suit against the city brought on behalf of two of the children by their parents alleged negligence because of the failure of a city fire inspector to discover the drum on the loading dock — a violation of the city’s fire ordinance — at the high school during an inspection conducted a few weeks earlier. Id. at 802.

In determining whether a special duty existed in Cracraft, we listed four factors to be considered:

(1) Whether the governmental unit had actual knowledge of the dangerous condition;
(2) Whether there was reasonable reliance by persons on the governmental unit’s representations and conduct (such reliance must be based on specific actions or representations which cause the persons to forego other alternatives of protecting themselves);
(3) Whether an ordinance or statute set forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole; and
(4) Whether the governmental unit used due care to avoid increasing the risk of harm.

Id. at 806-07. In setting out the four factors, we were careful to note that the factors were not exhaustive and that we were not creating a “bright line test.” Id. at 806. After analyzing the facts of the case within this framework, we concluded that none of the four factors were present in Cracraft and thus refused “to impose a duty of care merely because an inspection is undertaken.” Id. at 808.

Subsequently in Andrade v. Ellefson, we applied the same four-factor test and held that the county had a special duty of care to the children injured in the county-licensed home day care facility. 391 N.W.2d at 843. The underlying statute at issue in Andrade was the Public Welfare Licensing Act, Minn.Stat. §§ 245.781-245.812, 252.28, subd. 2 (1984) (PWLA). The PWLA required that certain day care facilities obtain annual licenses and, as part of the licensing process, the county sent inspectors to the applicant’s facility. Andrade, 391 N.W.2d at 838. Additionally, in response to complaints of overcrowding, the county conducted two unannounced inspections of the day care facility. Id. During one of the unannounced inspections, the county inspector found more than the maximum number of children in the facility than the license allowed. Id. The county inspector nevertheless continued to recommend approval of the license. Id. at 838-39. Two children were eventually injured at the day care facility — one child sustained a skull fracture and developed epilepsy and the other child sustained a subarach-noid hemorrhage, an injury consistent with a violent fall or shaking, and an arm fracture. Id. at 837.

The injured children and their parents filed suit against the county for negligence in supervising, inspecting, and recommending relicensing of the day care facility where the children were injured. Id. On appeal from the trial court’s grant of summary judgment for the county, we applied the Cracraft factors and concluded that the county owed a special duty to the children in the county-licensed day care facility. Andrade, 391 N.W.2d at 841-43. In doing so, we concluded that the first factor— actual knowledge of a dangerous condition — was “arguably met partially” because there was “some evidence that the county had actual knowledge of overcrowding.” Id. at 841-43. We then concluded that the second and fourth factors — reasonable reliance and increasing the risk of harm, respectively — were not met. Id. at 842-43. However, we concluded that the third factor — that the ordinance or statute set forth mandatory acts for the protection of a particular class of persons — was “so overwhelmingly dominant” that we had “no difficulty” in finding a “special relation” existed between the county and the children in the home day care facilities it inspected for licensure. Id. at 843. We then held that the county owed-a special duty to the injured children, emphasizing that “the [Public Welfare Licensing] Act clearly mandates that small children in a licensed day care facility are a particular protected class” and that the class consisted of “uniquely vulnerable persons.” Id. at 842. Thus, the statute was “doing more than benefiting the general public * * * as its immediate concern is for the children.” Id. at 842.

Ten years later, in Hoppe v. Kandiyohi County we were presented with the question of whether VARA, could form the basis for a civil cause of action in negligence. 543 N.W.2d at 635. In Hoppe, the guardian of an elderly woman brought an action against Kandiyohi County for its negligent investigation and intervention after the county received reports of financial abuse of Hoppe by Paul Bengston, a former bank employee with power of attorney. Id. at 637. The county waited six months after the initial report of suspected abuse was filed before interviewing Hoppe and determining her competency. Id. In the meantime, Bengston continued writing checks to himself from Hoppe’s account. Id. Hoppe’s guardian sued, alleging that as a result of the county’s failure to perform its investigatory and intervention duties as required by VARA, Hoppe sustained monetary damages for the amounts converted from her bank account. Id.

In Hoppe, without directly applying the Cracraft factors, we distinguished An-drade by stating:

Implicit in [our holding in Andrade] was our recognition that the licensing procedure entails a detailed inspection and evaluation of an applicant facility and an ultimate determination of fitness to operate this service, i.e., that the licensing requirements were adopted to “ensure a safé environment for children” in accordance with Minn.Stat. § 245.802, subd. 4 (1984), and our concern that the abuse of which the children complained occurred in the facility itself.

Hoppe, 543 N.W.2d at 638. We then concluded that no cause of action could be maintained because the legislature did not “explicitly or by implication identif[y] a civil cause of action for alleged negligent investigation or intervention” in VARA. Id.

In the instant case, the court of appeals acknowledged that the “law is not clear cut,” but concluded that, given the similarity between CARA and VARA and our holding in Hoppe that no cause of action could be maintained under VARA, no cause of action could be maintained under CARA. Radke, 676 N.W.2d at 300. The statutes at issue in Hoppe and in the present case, VARA and CARA respectively, while not identical, are similar. Compare Minn.Stat. § 626.557 (2004) with Minn. Stat. § 626.556 (2004). Here, however, we also, have considerations which closely resemble the considerations we relied on in Andrade when we found a cause of action did exist. See Andrade, 391 N.W.2d at 843. For example, like the licensing statute at issue in Andrade, CARA was adopted to ensure a safe environment for children. Moreover, as was the case in Andrade, the abuse complained of in the current case occurred in a home that was the subject of the investigation by the county. Therefore, insofar as we relied on these distinctions between Hoppe and Andrade in concluding that there was no cause of action in Hoppe, the same reasoning does not distinguish Andrade from the present case. Further, the question of whether a statute creates a special duty is answered on a case-by-case basis by applying the Cracraft factors to the facts of the case. See Cracraft, 279 N.W.2d at 807 (stating “[a]pplying these factors to this case, we find no evidence in the record indicating that a duty was assumed or a special duty was created.”); Andrade, 391 N.W.2d at 841.

Given this background and our precedent, we turn then to applying the Cra-craft factors to discern if the county owed a special duty under CARA. We first note that three of the Cracraft factors require an analysis of the facts of the case: whether the county had actual knowledge of the dangerous condition (factor one); whether there was reasonable reliance on the county’s representation (factor two); and whether the county increased the risk of harm (factor four). To the extent that the Cracraft analysis relies on the particular facts of the case, our analysis in this appeal from a 12.02(e) dismissal is limited to the facts set forth in the complaint. See Bodah, 663 N.W.2d at 553. In contrast, factor three — mandatory acts for the protection of a particular class-involves an analysis of the statute alone. Thus, we will begin our discussion with this factor.

The third factor used to determine if a special duty exists is whether the statute sets forth mandatory acts that are for the protection of a particular class of persons and not the public in general. CARA requires that certain persons, including medical professionals, clergy, and law enforcement personnel, who know or have reason to believe that child abuse or neglect is occurring, report such information immediately. Minn.Stat. § 626.556, subd. 3(a). The statute also facilitates voluntary reporting from any other person suspecting child abuse or neglect. Id. at subd. 3(b). Reports made under CARA must be specific and contain “sufficient content to identify the child, any person believed to be responsible for the abuse or neglect of the child if the person is known, the nature and extent of the abuse or neglect and the name and address of the reporter.” Id. at subd. 7.

Once a report is received, CARA mandates that the proper authority investigate the report. Id. at subd. 10(a). According to the statute, when the local welfare agency receives a report, “the local welfare agency shall immediately conduct an assessment * * * and offer protective social services for purposes of preventing further abuses, safeguarding and enhancing the welfare of the abused or neglected minor, and preserving family life whenever possible.” Id. (emphasis added). The statute further provides: “When necessary the local welfare agency shall seek authority to remove the child from the custody of a parent, guardian, or adult with whom the child is living” and the “local welfare agency shall collect available and relevant information to ascertain whether maltreatment occurred and whether protective services are needed.” Id. at subd. 10(a), (h) (emphasis added). In addition, the statute states that “[e]ach agency shall prepare a separate report of the results of its investigation.” Id. at subd. 10(a) (emphasis added).

The statute dearly and repeatedly requires the performance of mandatory acts. These mandatory acts prescribed by the statute are for the protection of a particular class of persons — children who are identified as abused or neglected. In fact, the express public policy set forth in the statute is “to protect children whose health or welfare may be jeopardized through physical abuse, neglect, or sexual abuse.” Id. at subd. 1. The statute further emphasizes that

it is the policy of this state to require the reporting of neglect, physical or sexual abuse of children in the home, school, and community settings; to provide for the voluntary reporting of abuse or neglect of children; to require the assessment and investigation of the reports; and to provide protective and counseling services in appropriate cases.

Id. Based on these declared public policy goals, we conclude that the acts mandated in CARA are not for the protection of the public or even children in general, but are mandated for the protection of a particular class of persons — children who are identified in suspected abuse or neglect reports received by the county. Like the class of persons in Andrade, the children protected by CARA are “uniquely vulnerable persons.” These children have been identified by suspected child abuse or neglect reports. They are especially vulnerable because they are alleged to have suffered abuse or neglect in the privacy of their homes, often at the hands of a parent or other family member, and cannot protect themselves. Therefore, we hold that the third factor clearly is met in this case.

As noted above, we have only the facts in the complaint before us and are thus limited in our analysis of the remaining Cracraft factors. We accept those facts as true and draw all reasonable inferences in favor of the nonmoving party — here, appellant. See Bodah, 663 N.W.2d at 553. Within this constricted framework, we offer the following observations regarding the remaining Cracraft factors.

The first Cracraft factor requires that the county have actual knowledge of the dangerous condition. Cracraft, 279 N.W.2d at 806. According to the complaint, the county received numerous reports of suspected abuse of Makaio from appellant, the police, doctors, and Makaio’s guardian ad litem. Accordingly, because we draw all reasonable inferences in favor of the nonmoving party on appeal from a motion to dismiss, actual knowledge on the part of the county is established.

The second Cracraft factor requires reasonable reliance on the county’s representations and conduct. Cracraft, 279 N.W.2d at 806-07. Such reliance must be based on specific actions or representations which cause the person to forego other alternatives of protection. Id. at 807. Given the limited facts before us, we cannot conclusively say whether this factor is met. However, given the repeated reports to the county detailed in the complaint, we find it difficult to speculate as to what more appellant could have done.

Finally, the fourth Cracraft factor requires an analysis of whether the county has increased the risk of harm. The limited facts before us suggest that this factor is not established. Such a conclusion is not a bar, however, from this case going forward. As we clearly stated in Andrade, all four factors need not necessarily be met for a special duty to exist. 391 N.W.2d at 841; see also Cracraft, 279 N.W.2d at 806 (noting that the factors listed do not create a “bright line” test and are not exhaustive). Here, the third factor is “overwhelmingly dominant.” See Andrade, 391 N.W.2d at 843 (stating “this third factor is so overwhelmingly dominant that we have no difficulty in finding a ‘special relation’ exists between the county and the small children .in the day care homes that it inspects for licensure.”). Accordingly, we hold that based on the application of the Cracraft factors to the facts of this case, respondents owed a special duty to Makaio once they received reports identifying him as a suspected victim of abuse.

Our holding embraces the reasoning set forth in Cracraft and Andrade and eon-forms with the majority of other jurisdictions recognizing a duty on the part of social service agencies to investigate reports of child abuse and neglect. From the clear language of CARA, it is manifest that the legislature intended to provide safety and protection for children in abusive and neglectful situations and for the county social services department and its child protection workers to act immediately when they receive specific reports of abuse or neglect. See Minn.Stat. § 626.556, subd. 10(a) (“[T]he local welfare agency shall immediately conduct an assessment * * *.”). Given this express intent, it is incongruous to conclude that the legislature intended to impose criminal penalties on those persons who fail to report as mandated under the statute, but intended that there be no duty on the part of the county welfare department or its employees to investigate or act on the reports. See Minn.Stat. § 626.556, subd. 6 (providing for misdemeanor, gross misdemeanor, or felony sanctions for failure to report under the statute). We believe that the statute, taken as a whole, leads to the inescapable conclusion that respondent county and its employees had a duty to act. This conclusion is further supported by CARA’s statutory provision granting immunity to “person[s] with responsibility for performing duties” under the statute if the person is “acting in good faith and exercising due care.” See Minn.Stat. § 626.556, subd. 4(b). This language suggests that the subject of the statute had a duty to act.

We recognize that our holding here overrules our decision in Hoppe. Nonetheless, given the vitality of Cracraft and Andrade, the facts of this case have made it clear that it is impossible to harmonize Hoppe with Cracraft and Andrade; therefore Hoppe cannot stand. To decide otherwise would eviscerate the legal principles regarding special duties set forth in Cracraft and Andrade.

Accordingly, we hold that a cause of action can be maintained for negligence in the investigation of child abuse and neglect reports as required under CARA. The court of appeals’ decision affirming the dismissal of appellant’s complaint is reversed and the case is remanded to the district court for further proceedings in accordance with this opinion.

Reversed and remanded.

      . Because this appeal arises in the context of a Rule 12.02(e) motion, all of the facts are taken from the complaint. See Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn.2003).

      . CARA requires that the “police department or the county sheriff, upon receiving a report * * * immediately notify the local welfare agency or agency responsible for assessing or investigating the report, orally and in writing.” Minn.Stat. § 626.556, subd. 3(a).

      . While not central to its holding, the court of appeals attempted to reconcile Andrade and Hoppe by applying immunity law and stating that "it appears that the Minnesota Supreme Court in Andrade looked at the day care checklist as ministerial" — i.e., no immunity— “but in Hoppe found the decision-making to be discretionary" — i.e., the county was immune. Radke, 676 N.W.2d at 300. This distinction is incorrect as we in Andrade stated that the county was immune, but that the county had waived immunity. 391 N.W.2d at 843. Further, the distinction noted by the court of appeals relates to the question of governmental immunity and not the existence of a special duty. Although immunity may be a relevant factor in determining whether appellant can ultimately recover, it is not currently before us. If anything, the grant of immunity under the statute for actions done in "good faith,” see Minn.Stat. § 626.556, subd. 4, suggests that the subject of the statute had a duty to act in the first place.

      . Other courts considering the issue of whether a child protection statute creates a public duty or special duty have also concluded that such statutes are intended to protect a specific class of children, i.e. those suspected of suffering abuse or neglect. See, e.g., Horridge v. St. Mary’s County Dep’t of Soc. Servs., 382 Md. 170, 854 A.2d 1232, 1244 (2004) ("Clearly, the essential purpose of the statutory duties created by [the Maryland child abuse prevention statute] and the implementing regulations of the Department of Human Resources was to protect a specific class of children * * Brodie v. Summit County Children Servs. Bd., 51 Ohio St.3d 112, 554 N.E.2d 1301, 1308 (1990) ("[T]he action required by the statute is not directed at or designed to protect the public at large, but intended to protect a specific child who is reported as abused or neglected.”); Mammo v. State, 138 Ariz. 528, 675 P.2d 1347, 1351 (Ct.App.1983) (concluding that the Arizona child protection statute "is quite specific and sets forth duties on the part of protective services workers which are clearly for the protection of threatened individuals”).

      . See Mammo, 675 P.2d at 1350-51; Dep't of Health and Rehab. Servs. v. Yamuni, 529 So.2d 258, 261-62 (Fla.1988); Horridge, 854 A.2d at 1238-40; Brodie, 554 N.E.2d at 1308-09; Jensen v. Anderson County Dep’t of Soc. Servs., 304 S.C. 195, 403 S.E.2d 615, 619 (1991); Owens v. Garfield, 784 P.2d 1187, 1191-92 (Utah 1989); Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1191-92 (1995); Yonker v. Wash., 85 Wash.App. 71, 930 P.2d 958, 963 (1997); see also Susan Abbott, Note, Liability of the State and its Employees for the Negligent Investigation of Child Abuse Reports, 10 Alaska L. Rev. 401 (1993); Jason This, Casenote, Brodie v. Summit County Children Services Board: A Statutory Duty Exception to the Public Duty Rule for Children Service Agencies, 17 Ohio N.U. L. Rev. 711 (1991).

      . We are aware that this case is currently before us on a Rule 12.02(e) motion to dismiss, that discovery will continue on remand, and that the county and its employees may raise defenses of immunity. Nonetheless, as pleaded, we have significant concerns about the actions of the county and its employees and whether they protected the child as required under the statute.


author: TOUSSAINT, Chief Judge.

text:
    John N. ALLEN, et al., petitioners, Appellants, v. CITY OF MENDOTA HEIGHTS, a municipal corporation, Respondent.
    No. A04-1278.
    Court of Appeals of Minnesota.
    March 29, 2005.

      Mark Handley Thieroff, Gerald S. Duffy, Siegel, Brill, Greupner, Duffy & Foster, P.A., Minneapolis, MN, for appellants.
    John Michael Baker, Greene Espel, P.L.L.P., Minneapolis, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; HUDSON, Judge; and PORITSKY, Judge.

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

   OPINION

TOUSSAINT, Chief Judge.

In this mandamus proceeding, appellants argue that their applications for permits to respondent City of Mendota Heights were automatically approved under Minn.Stat. § 15.99, subd. 2 (2004). Upon a citizens’ petition for environmental review of appellants’ project, the city tolled the running of the automatic approval period. Because the city and district court correctly interpreted an express exception in section 15.99 to allow for tolling of the deadline for agency action on the applications pending the environmental review process under the Minnesota Environmental Policy Act, we affirm. The city’s motion to supplement the record is granted.

FACTS

Appellants John Allen and Joel Buttenhoff own land in respondent City of Mendota Heights (the city). Appellant Minnstar Builders, Inc., a Ron Clark Company, executed purchase agreements with Allen, Buttenhoff, and Acacia Park Cemetery Association to buy the property for a proposed residential development with adjacent property. On November 5, 2002, Minnstar applied for preliminary plat approval, rezoning, site-plan approval, a conditional-use permit for a planned-unit development, a variance, and a street vacation.

On December 2, 2002, citizens petitioned the Minnesota Environmental Quality Board (EQB) for an environmental-assessment worksheet (EAW). On December 18 the city wrote Ron Clark of Minnstar that it had taken action on December 3 to grant conditional approval, “in this instance meaning only a vote of confidence, for the application based on nine conditions.” The letter also stated that on December 17 the city council had met again and taken further action on the rezoning, conditional use permit, variance, and preliminary plat. The council continued the development-application matters and the EAW petition to its next meeting on January 7, 2003. It also extended the 15-day period for deciding the EAW petition and the 60-day deadline for the rezoning and other matters under Minn.Stat. § 15.99 (2004). The letter indicated that the 60-day period was stayed by the EAW process on December 9 when it was designated the Responsible Governmental Unit (RGU) for the EAW petition, and that the 60-day period would begin to run either after the council decides no EAW is warranted or after the environmental-review process is complete.

On January 7, 2003, the city resolved that pursuant to its consideration of the citizens’ petition for environmental review, an EAW would be prepared. On February 19, Minnstar submitted data for the EAW. On November 24, by resolution of the city council, the city made a positive declaration of the potential for significant environmental effects requiring preparation of an environmental-impact statement (EIS).

Appellants petitioned the district court for a writ of mandamus compelling the city to grant Minnstar’s various written requests or, alternatively, compelling the city to show cause why the written requests should not be approved. Appellants moved for summary judgment, and the city moved for judgment on the pleadings. The district court filed an order granting the city’s motion and dismissing the petition. Appellants filed a notice of appeal, and the city filed an unopposed motion to supplement the record.

ISSUE

Is the 60-day deadline for agency action under Minn.Stat. § 15.99, subd. 2 (2004) extended by subdivision 3(d) of that statute when citizens initiate the environmental review process with a petition for an environmental-assessment worksheet under the Minnesota Environmental Policy Act, MinmStat. Ch. 116D (2004)?

ANALYSIS

When the facts are undisputed and the issuance of a writ of mandamus turns on purely legal determinations, this court need not defer to the district court’s decision. Castor v. City of Minneapolis, 429 N.W.2d 244, 245 (Minn.1988).

This action concerns the interpretation and application of Minn.Stat. § 15.99 (2004), which requires agencies to take action on written requests within 60 days, and its interplay with the Minnesota Environmental Policy Act, Minn.Stat. Ch. 116D (2004) (MEPA). Specifically, this action presents an issue of first impression: whether a citizens’ petition for environmental review under MEPA tolls the running of the 60-day period for city action under Minn.Stat. § 15.99, subd. 2. The city argues that the 60-day deadline for agency action is tolled by Minn.Stat. § 15.99, subd. 3(d), when environmental processes under MEPA are initiated. We agree.

‘We review questions of statutory construction de novo.” Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn.2002). “The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2004). When interpreting a statute, this court first determines whether the statute’s language,- on its face, is ambiguous. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001). A statute is only ambiguous when its language is subject to more than one reasonable interpretation. Amaral v. Saint Cloud Hosp., 598 N.W.2d 879, 384 (Minn.1999). “Where the legislature’s intent is clearly discernable from plain and unambiguous language, statutory construction is neither necessary nor permitted and courts apply the statute’s plain meaning.” Am. Tower, 636 N.W.2d at 312.

Section 15.99 was part of a bill relating to public administration and designed to improve efficiency and operation of the government. 1995 Minn. Laws ch. 248, at 2415. At all levels of government, the statute imposes a 60-day time deadline for agencies to act on certain written requests. Minn.Stat. § 15.99, subds. 1, 2 (defining “agency” and setting deadline). Subdivision 2, setting the deadline for the agency’s response, states:

Except as otherwise provided in this section ... and notwithstanding any other law to the contrary, an agency must approve or deny within 60 days a written request relating to zoning, septic systems, or expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action. Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

Id., subd. 2(a). The legislature contemplated the need for extensions and rules on time computation of the 60-day period, which are addressed in six subsections of subdivision 3 of the statute. The provision at issue here is subdivision 3(d) which states:

The time limit in subdivision 2 is extended if a state statute, federal law, or court order requires a process to occur before the agency acts on the request, and the time periods prescribed in the state statute, federal law, or court order make it impossible to act on the request within 60 days. In cases described in this paragraph, the deadline is extended to 60 days after completion of the last process required in the applicable statute, law, or order. Final approval of an agency receiving a request is not considered a process for purposes of this paragraph.

Id., subd. 3(d).

MEPA is the state statute that the city claims extends the 60-day deadline for agency action because it “requires a process to occur before the city acts” on appellants’ requests for rezoning under subdivision 3(d) of section 15.99. The city argues that the MEPA “process” includes the steps involved in a petition for an environmental-assessment worksheet (EAW), the determination of whether an environmental-impact statement (EIS) is required, and, if required, the steps to prepare the EIS.

Pursuant to MEPA, the Environmental Quality Board (EQB) has promulgated rules that, in most cases, involve a three-step environmental-review process with timeframes for each step. Minn.Stat. § 116D.04; Minn. R. 4410.1000-4410.3000 (2003) (setting out general process from citizens’ petition through EIS preparation). First, there are various means to initiate environmental review. When, as here, mandatory and discretionary review provisions do not apply to the project, a petition signed by at least 25 individuals initiates environmental review. Minn. R. 4410.1000^4410.1100. The provisions governing the petition allow up to 40 days from the date the proposer is notified of the petition for the RGU to decide the need for an EAW and to notify the proposer and others of its decision. Minn. R. 4410.1100. Second, upon the RGU’s decision that an EAW is required, there is a process for its preparation. Minn. R. 4410.1400-4410.1700 (2003). It begins with the proposer submitting, with no specific deadline for compliance, data to the RGU. Minn. R. 4410.1400. When the RGU deems the submittal for the EAW complete, specific steps with time periods are provided to complete the EAW process. From the date the submittal is deemed complete, the RGU has up to 75 days, not including adequate time to publish notice and to hold public meetings, to complete the EAW process. Minn. R. 4410.1400-4410.1600. Third, upon a declaration that an EIS is required, the EIS preparation process is initiated. The EIS shall be prepared and its adequacy determined within 280 days after notice of its preparation, unless the time is extended. Minn.Stat. § 116D.04, subd. 2a(g).

We conclude that a plain reading of section 15.99 and MEPA unambiguously supports a tolling of the 60-day time period for agency action until completion of the environmental-review process under MEPA. Subdivision 3(d) expressly extends the 60-day period if (1) a state statute requires a process to occur before the agency acts and (2) the time periods prescribed in the state statute make it impossible to act within 60 days.

We think it is clear that MEPA requires a process to occur before the city acts on written requests for action on a proposed development. First, MEPA mandates that “to the fullest extent practicable the policies, rules and public laws of the state shall be interpreted and administered in accordance with the policies set forth in [MEPA].” Minn.Stat. § 116D.03, subd. 1. Second, MEPA and the environmental-review rules specifically mandate that environmental review of projects take priority by prohibiting granting a permit, approving a project, or beginning a project until the environmental-review process is complete. Minn.Stat. § 116D.04, subd. 2b; Minn. R. 4410.3100 subd. 2 (2003). Third, MEPA instructs all state agencies to “identify and develop methods and procedures that will ensure that environmental amenities and values, whether quantified or not, will be given at least equal consideration in decision making along with economic and technical considerations.” Minn.Stat. § 116D.03, subd. 2(3); see also No Power Line, Inc. v. Minn. Envtl. Quality Council, 262 N.W.2d 312, 327 (Minn.1977) (stating that MEPA “force[s] agencies to make their own impartial evaluation of environmental considerations before reaching their decisions”).

We also conclude that a plain reading of section 15.99, together with MEPA, makes action by the city on the environmental-review process impossible within the 60-day period. It is conceivable that the first step of that process, in this case, a decision on the citizens’ petition for an EAW, could be completed within 60 days. But section 15.99, subdivision 3(d) does not require breaking down a statutory “process” into parts and applying the impossibility standard to each of the parts. See Minn.Stat. § 645.08(1) (2004) (words and phrases are construed according to their common and approved usage). The express language of subdivision 3(d) contemplates that a statute could require more than one “process” when it clarifies that “the [60-day] deadline is extended to 60 days after completion of the last process required in the applicable statute.” Minn.Stat. § 15.99, subd. 3(d) (emphasis added). At the time the petition for an EAW is filed and the proposer is notified thereof, it is uncertain what process will be the “last” process and how long the process will take. The rules acknowledge as much by prohibiting action on a project until either an EAW petition is dismissed, a negative declaration on the need for an EIS is issued, an EIS is determined adequate, or a variance is granted. Minn. R. 4410.3100. subp. 1. Thus, the plain language of subdivision 3(d) tolls the running of the 60-day period from the time the citizens’' petition is filed until after MEPA’s environmental process is completed.

The city moved to supplement the record on appeal with three items to show that environmental review was part of several Minnesota cases involving Minn.Stat. § 15.99. Appellants did not oppose the motion. Because all of the items included in the supplement fall within “publicly available articles that were not previously presented to the district court,” Fairview Hosp. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 340 n. 3 (Minn.1995), we grant the motion to supplement.

DECISION

Because a citizens’ petition for an environmental-assessment worksheet under Minnesota’s Environmental Policy Act initiated a process that must occur before agency action on a written request under Minn.Stat. § 15.99, subd. 2 (2004), and that made it impossible to act within 60 days, the 60-day deadline of section 15.99 is extended by subdivision 3(d) to 60 days after completion of the last environmental-review process required by MEPA.

Affirmed; motion granted.

      . Previous cases before this court have involved tolling of the 60-day period due to environmental review. In one case the deadline had been extended by operation of subdivision 3(e), Northern States Power v. City of Mendota Heights, 646 N.W.2d 919, 922 (Minn.App.2002) (stating fact that 60-day period of subdivision 2 was "suspended pending completion of proceedings before the Minnesota Environmental Quality Board (MEQB)," pursuant to subdivision 3(e)), review denied (Minn. Sept. 25, 2002). In Kramer v. Otter Tail County Bd. of Comm’rs, 647 N.W.2d 23, 25 (Minn.App.2002), the parties assumed that subdivision 3(d) tolled the 60-day period, but argued whether the 60-day period recommenced on the day after the negative declaration for an EIS was filed or if the appeal period for a negative declaration added another 30 days to the 60-day period.