author: G. BARRY ANDERSON, Judge. AMUNDSON, Judge

text:
    Michael K. RILEY, Sr., Respondent, v. 1987 STATION WAGON, Appellant.
    No. C8-01-21.
    Court of Appeals of Minnesota.
    Oct. 2, 2001.

      Michael K. Riley, Sr., Nicollet County Attorney, Michelle M. Zehnder Fischer, Assistant County Attorney, St. Peter, (for respondent).
    Cathryn Middlebrook, Legal Assistance to Minnesota Prisoners, Ben Gisselman, (certified student attorney), Minneapolis, (for appellant).
    Considered and decided by PETERSON, Presiding Judge, AMUNDSON, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

This appeal is from a judgment ordering forfeiture of appellant’s vehicle following a conviction for conspiracy to commit first-degree murder. We affirm.

FACTS

On September 15, 1998, John Sullivan reported to a North Mankato police officer that a friend, John Duwenhoegger, had contacted him to plan the murder of his girlfriend’s son and mother. The police began surveillance of Duwenhoegger and Sullivan cooperated. Sullivan and Duwen-hoegger then met four more times to create the murder plan. The meetings were held at Jeffs Superette in North Mankato and each of the meetings were videotaped or audiotaped by police. Duwenhoegger arrived at each of the meetings in his 1987 Jeep, but all four meetings took place inside of Sullivan’s vehicle.

On September 21, 1998, the date of the last meeting, Duwenhoegger drove to the meeting point in his Jeep and brought with him a drill, a drill bit, and wire that were to be used to carry out part of the murder plan. After meeting with Duwenhoegger at Jeffs Superette, Sullivan drove his vehicle to the home of one of the planned victims — his girlfriend’s mother. He knew that she was out of town at the time. According to the plan, Duwenhoegger was to enter the home through a basement window and rig the window so that he could later re-enter the home and commit murder. Duwenhoegger was unable to get into the window and, after a short while, returned to Sullivan’s car with the tools. Sullivan drove Duwenhoegger back to his vehicle parked at Jeffs Superette.

Later that day, Duwenhoegger was arrested for two counts of conspiracy to commit first-degree murder. A jury convicted Duwenhoegger of both counts and he was sentenced to consecutive terms of 190 and 180 months in prison.

On October 5, 1999, the Nicollet County Attorney’s Office filed a complaint to forfeit Duwenhoegger’s vehicle. The district court granted the county’s motion for summary judgment, finding that Duwenhoeg-ger used the vehicle to transport himself to and from the meetings and to transport tools used in furtherance of the conspiracy. This appeal followed.

ISSUES

I. Did the district court err by ordering forfeiture of a vehicle on summary judgment where the vehicle transported a participant in a conspiracy to a meeting site and transported tools used in the conspiracy to a rendezvous site?

II. Does the civil forfeiture constitute a second punishment in violation of the double jeopardy clauses of the United States and Minnesota constitutions?

ANALYSIS

On appeal from summary judgment, we ask whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

I.

Duwenhoegger contends that the district court erred by ordering the forfeiture of the vehicle. He argues that because the vehicle was only used on four occasions to transport him to the location where he met with Sullivan and to transport “ordinary tools,” no nexus was established between the forfeited property and the underlying crime.

Under Minnesota law,

[a]ll personal property is subject to forfeiture if it was used or intended for use to commit or facilitate the commission of a designated offense.

Minn.Stat. § 609.5312, subd. 1 (2000). Conspiracy to commit first-degree murder is a “designated offense” as defined in the statute. Minn.Stat. § 609.531, subd. 1(f)(2).

In City of Worthington Police Dept. v. One 1988 Chevrolet Berreta, we concluded that using a vehicle for transportation to and from the site of a third-degree burglary and using the vehicle to transport a stolen item to another person constituted a sufficient nexus to the crime to subject the vehicle to forfeiture even though the vehicle was not used to commit an element of the crime. 516 N.W.2d 581, 582, 584 (Minn.App.1994). Similarly, in United States v. Lewis, the Eighth Circuit Court of Appeals held that 21 U.S.C. § 853(a)(2) (1988), which provides for forfeiture of property used to facilitate the commission of certain drug crimes, warranted the forfeiture of a vehicle when a conspirator drove it to meetings with other conspirators and when one meeting took place inside the vehicle. 987 F.2d 1349, 1356 (8th Cir.1993). A cellular phone was also subject to forfeiture because a conversation was made using it that was “an overt act in furtherance of [the crime].” Id. The court concluded that there was a sufficient nexus between the property forfeited and the conspiracy to distribute cocaine to justify the forfeiture because the vehicle was sufficiently connected to the underlying crime of conspiracy to distribute cocaine. Id. at 1356-57. In contrast, a vehicle used simply to transport a heroin buyer to the airport for a flight to Mexico, where the buyer bought heroin, was not sufficiently connected with the crime of buying heroin to facilitate the crime where the contraband was never in the car and no negotiations took place inside the vehicle. United States v. One 1970 Buick Riviera, 374 F.Supp. 277, 280 (D.Minn.1973).

Here, the crime underlying the forfeiture is conspiracy to commit first-degree murder. As noted, the forfeiture statute requires that we determine whether the property subject to forfeiture was used to commit or facilitate the crime. Minn.Stat. § 690.5312, subd. 1. The crime of conspiracy requires an agreement between two or more people to commit a crime and an overt act in furtherance of the conspiracy. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.2001). The overt act may be the slightest action on the part of a conspirator. State v. St. Christopher, 305 Minn. 226, 235, 232 N.W.2d 798, 804 (1975). Duwenhoegger committed several overt acts in furtherance of the conspiracy and each time used the 1987 Jeep to facilitate the commission of these overt acts. He met four times with Sullivan to create a plan and, each time they met, Duwenho-egger drove the 1987 Jeep to the meeting site. The plan they developed involved breaking into the home of one of the victims while she was out of town and rigging a basement window so that he could later secretly enter the home when the victim returned. To accomplish this plan, Du-wenhoegger used his vehicle to transport tools to the agreed rendezvous site. Once he brought the tools to the rendezvous site, he immediately transferred them to Sullivan’s vehicle, rode with Sullivan to victim’s residence, and used the tools in an unsuccessful attempt to break into the victim’s home. The fact that Duwenhoegger is a carpenter and therefore would have been transporting the tools for legitimate purposes is of no import. The fact remains that the tools were used in committing an overt act in furtherance of the conspiracy.

We hold that the use of the vehicle to transport tools used to commit an overt act in furtherance of a conspiracy, and its use in transporting a - conspirator to a site where he formulated the conspiracy plan with a co-conspirator, facilitated the crime and provided a sufficient nexus to warrant forfeiture of the vehicle.

II.

Appellant contends that this forfeiture constitutes a second punishment and therefore violates the double jeopardy clauses of the United States and Minnesota constitutions. “[A] criminal adjudication followed by a civil forfeiture, or vice versa, violates double jeopardy only if the forfeiture constitutes punishment.” City of Pine Springs v. One 1992 Harley Davidson, 555 N.W.2d 749, 750 (Minn.App.1996) (citation omitted). In determining whether a civil forfeiture constitutes “punishment” for double jeopardy purposes, we follow the two-step test set forth in United States v. Ursery, 518 U.S. 267, 277-78, 116 S.Ct. 2135, 2142, 135 L.Ed.2d 549 (1996). Lukkason v. 1993 Chevrolet Extended Cab Pickup, 590 N.W.2d 803, 807 (Minn.App.1999), revieiv denied (Minn. May 18, 1999). Ursery first requires that we examine the forfeiture statute to determine whether the forfeiture is intended to be, or by its nature is, criminal and punitive rather than civil and remedial. Id. If the legislature designates forfeiture as civil, we presume that forfeiture does not implicate double jeopardy concerns. Id. Here, the Minnesota forfeiture statute is specifically defined as a “civil in rem action and is independent of any criminal prosecution.” Minn.Stat. § 609.531, subd. 6a (2000).

The second prong of the Ursery test requires a showing by the “clearest proof’ that a forfeiture under the statutory scheme is so punitive in form and effect as to render it criminal. Lukkason, 590 N.W.2d at 807. Here, Duwenhoegger argues that the forfeiture constitutes a second punishment under the facts of this case. But we have previously held that the forfeiture of a 2000 Ford Excursion for a DWI offense was not so punitive so as to constitute second criminal punishment. City of New Brighton v. 2000 Ford Excursion, 622 N.W.2d 364, 369 (Minn.App.2001), review denied (Minn. Apr. 17, 2001). Certainly the forfeiture of a 14-year-old vehicle after a conviction for conspiracy to commit first-degree murder is not the type of forfeiture that is so punitive so as to constitute a second punishment.

DECISION

We affirm the district court’s determination that the civil forfeiture in this case is warranted because Duwenhoegger used the vehicle to facilitate several overt acts in furtherance of the conspiracy and that the forfeiture does not constitute double jeopardy. Because no genuine issues of material fact exist, we conclude that Du-wenhoegger’s vehicle is subject to forfeiture as a matter of law.

Affirmed.

AMUNDSON, Judge

(dissenting).

I respectfully dissent. Under Minnesota law, personal property may be subject to forfeiture if “used to commit or facilitate the commission of’ a listed offense, including conspiracy to commit first-degree murder. Minn.Stat. § 609.531, subd. 1(f)(2) (2000), Minn.Stat. § 690.5312, subd. 1 (2000). But forfeitures are not favored. City of Faribault v. One 1976 Buick LeSabre, 408 N.W.2d 584, 588 (Minn.App.1987).

While forfeiture proceedings are not of course, criminal in nature, their effect, when invoked, is to permanently deprive the owner of the forfeit property of its use. To the extent that the owner of forfeit property is caused loss and inconvenience resulting from the commission of certain offenses, the forfeiture provisions are punitive in effect and are subject to careful scrutiny by the [cjourt.

Id. (quoting United States v. One 1970 Buick Riviera, 374 F.Supp. 277, 279 (D.Minn.1973)). To the extent that forfeiture provisions penalize a person for participating in a designated offense by the loss of use of property, the forfeiture statute is in effect a quasi-penal statute. Id. Penal statutes are strictly construed and any doubt is resolved in favor of the defendant. Id.

Duwenhoegger’s vehicle was only remotely connected to the crime barely more than the alarm clock that woke him up that morning. Each in its unique way facilitated the accomplishment of the crime. Here there was a discrete beginning to Duwen-hoegger’s criminal activity, and Duwenho-egger involved his vehicle only before that point.

The underlying crime was conspiracy to commit first-degree murder. The overt acts of this conspiracy, making Duwenho-egger’s actions a crime, consisted of the clandestine meetings to plot the deed and also driving to an intended victim’s residence to attempt a break-in. Duwenhoeg-ger did not use this vehicle in any one of those endeavors. Each of the four meetings took place outside of Duwenhoegger’s vehicle. His accomplice, Sullivan, drove Duwenhoegger, and the tools used in the break-in, to the intended crime site in his own vehicle. Duwenhoegger and Sullivan left the scene of the failed attempt in that same vehicle. Duwenhoegger simply used Ms vehicle to travel to and from a meeting place four times. His vehicle was not itself used for any activity that was inherently criminal. Employing the majority’s reasomng that the vehicle was subject to forfeiture because it facilitated the crime, will there be any practicable stopping point? Wouldn’t anything that a perpetrator used to prepare for the act be subject to forfeiture? This cannot be the law.

This case is essentially like One 1970 Buick Riviera, where a vehicle was used to transport a heroin buyer to the airport for a flight to Mexico. 374 F.Supp. 277, 280 (D.Minn.1973). In that case, the court denied the forfeiture because neither the negotiations to purchase the heroin, nor the contraband itself, was ever in the vehicle and therefore the use of the vehicle did not make the commission of the crime less difficult. Id. Thus, the vehicle was not sufficiently connected with the crime of buying heroin to “facilitate” the crime. Similarly, in State by Mendota Heights Police Dept. v. Coley, we denied forfeiture where the owner drove from Oklahoma to Minnesota; then, the next morning, took a bus to his ex-wife’s home where he committed the underlying crimes. 453 N.W.2d 64, 65 (Minn.App.1990). The district court decided that the owner’s use of the car to drive to Minnesota from Oklahoma constituted a sufficient connection to the crime to subject the car to forfeiture. Id. at 66. Because there was no evidence that the owner came to Minnesota to commit a crime, or that he even used the car the day of the crime, we determined there was not a sufficient nexus between the vehicle and the crime to warrant forfeiture. Id. The courts in One 1970 Buick Riviera and Coley limited forfeitures to instances where the forfeited property is used to commit or facilitate the actions which themselves constitute crimes, not those which obliquely facilitated conduct culminating in transgressive behavior.

I wonder if the majority’s reliance on City of Worthington Police Dept. v. One 1988 Chevrolet Berreta, 516 N.W.2d 581 (Minn.App.1994), is not misplaced. In that case the vehicle was used not only to transport the burglar to the burglary location, but also to transport a stolen item away from the burgled building. Id. at 582. Similarly, the majority cites to United States v. Lewis, another conspiracy case. But, in Lewis, the vehicle was subject to forfeiture in a conspiracy not only because the vehicle owner drove the vehicle to a meeting point to meet with other conspirators, but also because one of the conspirators’ meetings actually took place inside the vehicle. 987 F.2d 1349, 1356 (8th Cir.1993).

Because this vehicle was never used to commit or facilitate any act that directly constituted a crime, I do not believe the forfeiture statute should apply, and I respectfully dissent.


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Rodney Lyle GILBERT, Appellant.

      No. C5-01-803.
    Court of Appeals of Minnesota.
    Oct. 2, 2001.

      Mike Hatch, State Attorney General, St. Paul; and Paul D. Baertschi, Tallen & Baertschi, Minneapolis, for respondent.
    John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, Minneapolis, for appellant.
    Considered and decided by PETERSON, Presiding Judge, AMUNDSON, Judge and G. BARRY ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

At a probation-revocation hearing, the district court ordered appellant to serve a previously imposed but partially stayed sentence consecutively to a later-executed sentence from another county. Appellant argues that the district court erred by imposing its sentence consecutive to a later-imposed sentence from another county because doing so violates Minn.Stat. § 609.15, subd 1(a) (2000). We agree and reverse.

FACTS

On December 16, 1999, appellant Rodney Lyle Gilbert pleaded guilty to gross-misdemeanor driving under the influence of alcohol. The Hennepin County District Court sentenced appellant to 365 days in jail and stayed the execution of 320 days subject to certain probation conditions, in-eluding an absence of alcohol-related arrests for two years.

On September 15, 2000, appellant pleaded guilty to gross-misdemeanor driving after cancellation and gross-misdemeanor refusal to submit to testing in Sherburne County. The Sherburne County District Court sentenced appellant to 365 days for each offense, to be served concurrently.

On March 19, 2001, the Hennepin County District Court determined that appellant’s alcohol-related convictions in Sher-burne County violated the terms of his Hennepin County probation. The district court executed the remaining 320 days of appellant’s stayed sentence, and ordered that sentence to be served consecutively to the Sherburne County sentences.

Appellant now challenges the consecutive nature of his sentences.

ISSUE

Did the district court err by executing a previously imposed but partially stayed sentence consecutive to a later-executed sentence imposed in another county?

ANALYSIS

The district court in gross-misdemeanor cases has broad discretion to sentence a defendant within the statutory limits. State v. Lambert, 392 N.W.2d 242, 243-44 (Minn.1986). Whether a statute has been properly construed, however, is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

Where multiple sentences are involved, Minnesota law provides:

[T]he court in the later sentences shall specify whether the sentences shall run concurrently or consecutively. If the court does not so specify, the sentences shall run concurrently.

Minn.Stat. § 609.15, subd. 1(a) (2000); see State v. Rasinski, 527 N.W.2d 593, 595 (Minn.App.1995) (holding that the failure to pronounce a consecutive sentence on the record at sentencing makes defendant’s sentence concurrent by statutory presumption). In addition, at the time the sentence is imposed, the district court is required to “state the precise terms of the sentence.” Minn. R.Crim. P. 27.03, subd. 4(A); see State v. Wakefield, 263 N.W.2d 76, 78 (Minn.1978) (“precise terms of the sentence” includes whether multiple sentences are to run concurrently or consecutively).

The Sherburne County sentencing judge did not state whether the two sentences imposed by that court were concurrent or consecutive to the previously imposed but partially stayed sentence in Hennepin County. Appellant argues that under Minn.Stat. § 609.15, subd. 1(a), the Henne-pin County sentence was presumptively concurrent to the Sherburne County sentence. The state, however, contends that Minn.Stat. § 169A.28 (2000) mandates a district court to sentence a defendant consecutively for specified alcohol-related convictions. That statute provides:

Mandatory consecutive sentences. The court shall impose consecutive sentences when it sentences a person for:
(1) violations of section 169A.20 (driving while impaired) arising out of separate courses of conduct; [or]
(2) a violation of section 169A.20 when the person, at the time of sentencing, is on probation for, or serving, an executed sentence for a violation of section 169A.20 or Minnesota Statutes 1998, section 169.121 (driver under the influence of alcohol or controlled substance) or 169.129 (aggravated DWI-related violations; penalty), and the prior sentence involved a separate course of conduct * * ⅜

Id., subd., (1), (2) (emphasis added). Thus, the state argues that the Hennepin County District Court correctly made appellant’s sentence consecutive to the Sherburne County sentences.

When there is an apparent conflict between Minnesota statutes, this court looks to Minn.Stat. § 645.26, subd. 1 (2000), which states:

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

Id.

In applying Minn.Stat. § 645.26, subd. 1, to the facts of this case, we find no irreconcilable conflict between Minn.Stat. § 609.15, subd. 1(a), and Minn.Stat. § 169A.28. Minn.Stat. § 609.15, subd. 1(a), presumes that a district court has a choice between imposing a concurrent or consecutive sentence and has broad application with respect to sentencing matters. On the other hand, Minn.Stat. § 169A.28, subd. 1, contains mandatory language requiring that a sentence for a DWI that is issued during a time that a defendant is on probation for a previous DWI offense must be consecutive to the probationary sentence. This unambiguous language mandates the imposition of consecutive sentences in limited circumstances, set forth in Minn.Stat. § 169A.28, subd. 1. We therefore conclude that there is no irreconcilable conflict between these two statutes.

Appellant, however, contends that even if Minn.Stat. § 169A.28, subd. 1 ordinarily requires a consecutive sentence, the plain language of Minn.Stat. § 609.15, subd. 1(a), mandates that the later sentencing court, in this case the Sherburne County District Court, impose the consecutive sentence. See State v. Dulski, 368 N.W.2d 307, 309 (Minn.1985) (“Since the Carlton County sentence was the later one imposed, it was the Carlton County Court whose role it was to specify whether consecutive or concurrent sentencing was contemplated.”). Thus, appellant contends that the Hennepin County District Court had no authority to order the previously imposed sentence to run consecutively to the later-imposed sentence from Sher-burne County. See State v. Braun, 487 N.W.2d 232, 234 (Minn.1992) (district court not free to increase defendant’s sentence from concurrent to consecutive at probation revocation hearing); State v. Klang, 320 N.W.2d 718, 719 (Minn.1982) (“in revoking the stay of execution of the 1979 sentences, [the district court] improperly ordered those sentences to run consecutively to the sentences imposed in 1980”).

The state, however, argues that a district court has venue at any time to correct a sentence that is not authorized by law. See Minn. R.Crim. P. 27.03, subd. 9 (“The court at any time may correct a sentence not authorized by law.”). But rule 27.03, subd. 9, also provides that a district court may not, in modifying a stayed sentence, increase a defendant’s period of confinement.

Respondent also cites State v. Humes, 581 N.W.2d 317 (Minn.1998), to support its argument. In Humes, the supreme court concluded that a district court could subsequently amend a defendant’s sentence, without a hearing, to include a conditional-release term mandated by Minn.Stat. § 609.346, subd. 5(a) (1996). Id. at 320-21 (failure to include the mandatory conditional-release term in defendant’s sentence is simply an error of law and not a waiver of the conditional-release term required by law).

But the Humes court was faced with distinguishable facts. In Humes, a district court was allowed to amend its earlier erroneous sentence. In contrast, here the Hennepin County District Court, in effect, modified the Sherburne County District Court’s sentence by requiring appellant’s stayed sentence to be served consecutively to the Sherburne County sentences. Nothing in Humes allows this modification in sentencing. In fact, the Hennepin County District Court’s actions violate Minn.Stat. § 609.15, subd. 1(a), because that statute provides that the later-sentencing court “shall” make the decision as to whether the sentencing should be consecutive or concurrent, or in this case, to follow the mandate set forth in Minn.Stat. § 169A.28, subd. 1. Therefore, we conclude that the Hennepin County District Court, in executing the previously imposed but partially stayed sentence, erred by making the sentence consecutive to the sentence issued by Sherburne County.

DECISION

The Hennepin County District Court violated Minn.Stat. § 609.15. subd. 1 (2000), by executing a previously imposed but partially stayed sentence and imposing its sentence consecutive to the sentence from Sherburne County.

Reversed.

      . It is clear from the record that Minn.Stat. § 169.121, subd. 3(g) (1998), was in effect at the time appellant was charged with gross-misdemeanor DWI in Hennepin County on July 14, 1999. This statute was the predecessor section to Minn.Stat. § 169A.28, subd. 1 (2000), referenced above, which became effective in 2000. Both statutes contain the mandatory "shaH” language with respect to certain alcohol-related sentences. This opinion will refer to Minn.Stat. § 169A.28 because it is the current statutory citation.

      . The Sherburne County District Court may amend it earlier sentence pursuant to Minn. R.Crim. P. 27.03, subd. 9 to conform to Minn. Stat. § 609.15, subd. 1(a) (2000).


author: CRIPPEN, Judge. SCHUMACHER, ROBERT H., Judge

text:
    In the Matter of the CHILD of E.V., parent, L.S.V., child.
    No. C8-01-147.
    Court of Appeals of Minnesota.
    Oct. 9, 2001.

      Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant County Public Defender, Minneapolis, (for appellant E.V.).
    Amy Klobuehar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, Minneapolis, (for respondent Hennepin County).
    Stephen M. Goldfarb, Goldfarb & Associates, P.A., St. Louis Park, (for respondent guardian ad litem).

      Considered and decided by CRIPPEN, Presiding Judge, SCHUMACHER and SHUMAKER, Judges.
   OPINION

CRIPPEN, Judge.

Appellant E.V. contends that the trial court erred in terminating her parental rights because she is adequately rehabilitated, her case was over-managed, and termination is not in the child’s best interests. Because the trial court’s findings do not address whether appellant’s attempts to comply with the case plan failed to correct the conditions that led to her son’s out-of-home placement, cautious review of the case requires that it be reversed and remanded for further findings.

FACTS

The court adjudicated L.S.V. a child in need of protection or services (CHIPS) in September 1999 based on appellant-mother E.V.’s certified conviction of child neglect for “knowingly permitting the continuing physical abuse of [her] child” by her boyfriend. The court ordered compliance with the April 1999 case plan that required appellant to participate in therapy for herself, work with the child’s mental-health professionals, and participate in a parenting education program. The boyfriend was convicted of assault and later deported to Jamaica. L.S.V., now 10 years of age, has been in out-of-home placement since April 1999.

Michael Sancilio, L.S.V.’s psychologist, diagnosed L.S.V. in consultation with a psychiatrist and clinical nurse specialist as having: (1) Attention Deficit Hyperactivity Disorder (ADHD); (2) Adjustment Disorder with Mixed Disturbance of Emotions and Conduct; (3) Possible Mixed Receptive Expressive Language Disorder; and (4) Klinefelter’s Syndrome — according to a report from the Hennepin County Medical Center. For treatment, L.S.V. attended Washburn Child Guidance Center and by February 2000 had made significant progress. His “symptoms of impulsivity, dis-tractability, hyperactivity, anxiety and worry, rapid mood changes, sudden angry outbursts, expressive language and reading delays” diminished after his doctor changed his medication from Ritalin to Dexedrine. Appellant did follow through with Hennepin County Medical Center where L.S.V. was diagnosed with Klinefel-ter’s Syndrome, but failed to follow through with all of L.S.V.’s other mental-health professionals, including staff of L.S.V.’s program at Washburn.

In May 2000, appellant stated that she did not believe that L.S.V. needs special educational services or medication and that she would not continue those services. Appellant disputes that L.S.V. suffers an attention deficit disorder. Consequently, the court refused to return L.S.V. to appellant because “[s]he said she would not keep [L.S.V.] at Washburn Child Guidance Center, she would not have him take speech and language evaluation.” The child services worker and Sancilio testified that it would be “critical” for L.S.V. to continue the services he is receiving.

Appellant completed the psychological evaluation and parenting assessment and met with an individual therapist, but did not complete individual therapy. Appellant did, however, receive a certificate for completing a workshop in nonviolent conflict resolution and participated in an anger management group in conjunction with the probationary terms of her conviction.

Appellant participated in in-home parenting services with Trenton Peterson, a home-based therapist for Generations Community Support Services. Peterson reported that appellant willingly met with him for parenting education. He observed her with L.S.V., witnessed “exceptional parenting skills,” and noted that appellant expressed her understanding of acceptable discipline techniques. Peterson also reported that appellant expressed a continued unwillingness to work with the county and stated that appellant “clearly believes in physical punishment,” explained that she could still spank the children “with a hand on the bottom,” and stated that she would home-school L.S.V. to ensure he received the attention he needs in school. Peterson discontinued working with appellant in September 2000 because he no longer acted as a therapist for appellant but as more of a supervisor and observer for her visits with L.S.V.

ISSUES

1. Did the trial court err when it terminated appellant’s parental rights?

2. Did the trial court err when it found that long-term foster care for the child is prohibited by law?

ANALYSIS

Reviewing courts determine whether the trial court’s termination findings address the statutory criteria, are supported by substantial evidence, or are clearly erroneous. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn.1980). Although some deference is given to the trial court’s findings, appellate courts exercise great caution and “closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing.” In re Welfare of A.H., 402 N.W.2d 598, 603 (Minn.App.1987) (quotations omitted).

1. Termination

“Parental rights are terminated only for grave and weighty reasons.” In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn.1990) (citation omitted). There is a presumption that the natural parent is suitable to be entrusted with the care of his or her child and that it is in the child’s best interests to be in the natural parent’s care. In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn.1980). The party petitioning for termination must prove one or more of the statutory grounds by clear and convincing evidence. In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn.App.1991), review denied (Minn. July 24, 1991). A “trial court [must] make clear and specific findings [that] conform to the statutory requirements for termination adjudications.” Chosa, 290 N.W.2d at 769 (citation omitted).

The trial court concluded that clear and convincing evidence supported termination under four provisions of the statute: (1) refusal to comply with duties of the parent and child relationship under Minn.Stat. § 260C.301, subd. 1(b)(2) (2000); (2) reasonable efforts have failed to correct the conditions leading to the CHIPS determination under Minn.Stat. § 260C.301, subd. 1(b)(5) (2000); (3) the father is not known, has not registered with the adoption registry, and is not entitled to notice under Minn.Stat. § 260C.301, subd. 1(b)(7) (2000); and (4) the child is neglected and in foster care under Minn.Stat. § 260C.301, subd. 1(b)(8) (2000). No one seeks review of the third criterion concerning the father.

Each CHIPS intervention requires a case plan that reflects the reasonable efforts of the agency to facilitate reunification, and termination is appropriate when those reasonable efforts fail. Id., subds. 1(b)(2) (allowing termination when “reasonable efforts by the social services agency have failed to correct the conditions that formed the basis of the petition or reasonable efforts would be futile and therefore unreasonable”), 1(b)(5) (allowing termination when “reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child’s placement”), 1(b)(8) (allowing termination when the child is neglected and in foster care, which, under Minn.Stat. § 260C.007, subd. 18(c) (2000), means that the “parents, despite the availability of needed rehabilitative services, have failed to make reasonable efforts to adjust their circumstances”).

Appellant contends that the scope of the case plan exceeded what was necessary “to correct the conditions that formed the basis of the petition,” and that the court should have found that she was adequately rehabilitated and returned her son to her. The court’s findings about appellant’s failure to comply with the case plan, which singularly support the court’s conclusions that reasonable efforts have failed and termination is appropriate on three statutory grounds, fall into three broad categories: (a) appellant’s failure to follow through with individual therapy (findings 6.1 and 6.2); (b) appellant’s failure to follow through with the child’s therapy and services (findings 7-13); and (c) appellant’s failure to follow through with parenting education (findings 6.1 and 14-15). These findings, which are conclusory, fail on a basic level to address whether full compliance with the case plan’s requirements was necessary to correct the conditions that led to the out-of-home placement and whether the efforts appellant did make were insufficient to correct the conditions. See In re Welfare of M.A., 408 N.W.2d 227, 236 (Minn.App.1987) (stating case plan cannot consist of “a litany of required services that were not related to the conditions that eventually gave rise to the dependency adjudication”), review denied (Minn. Sept. 18, 1987). And prior approval of a case plan does not permit a current assumption that the breadth of the plan is limited to steps needed to correct the cause of an initial intervention.

a. Failure to complete individual therapy

The court found that appellant “failed to follow through with * * * therapy for herself * * * despite continued requests by the Department and orders of the Court.” The court did not find that failure to obtain individual therapy impeded correction of the conditions that led to the out-of-home placement, and the cautious review that is required of us demands the conclusion that the therapy finding is insufficient to support termination. See Clausen, 289 N.W.2d at 156 (mandating appellate court exercise of “great caution” in termination proceedings).

h. Failure to cooperate with L.S.V.’s mental health professionals

The court made extensive findings about L.S.V.’s behavioral and emotional problems and documented appellant’s failure to participate in his therapy or programming. Like the previous category of findings, the court failed to find the case plan’s requirements germane or necessary to correct the conditions that led to the out-of-home placement. The court quoted extensively from a June 1999 parenting evaluation but neither adopted the evaluator’s findings nor explained cause for adopting those findings. Moreover, appellant contends that she failed to cooperate with L.S.V.’s mental-health professionals because she disagreed fundamentally with the diagnosis that her child has ADHD. She disputed that medication was necessary to correct L.S.V.’s problems, which she believed were caused by Klinefelter’s Syndrome that apparently has similar behavioral manifestations. The court did not discuss her reasons for failing to comply, and most importantly, the court failed to find that medicating the child would be necessary to correct the conditions that led to the child’s out-of-home placement.

c. Failure to follow through with parenting education

Again, the court stated conclusively that appellant “failed to fully participate in an approved parenting education program.” The difficulty with this set of findings is that appellant did participate in an at-home parenting education program for nearly six months, yet the court did not address whether her active participation in this program failed to correct the conditions that led to the out-of-home placement. More problematic was the court’s singular focus on flaws in her progress in this program.

The record contains many progress reports by the therapist that show favorable opinions about appellant’s parenting of L.S.V. The therapist reported that appellant willingly met with him individually for parenting education. He also observed her with L.S.V., witnessed exceptional parenting skills, and noted that appellant expressed her understanding of appropriate disciplinary techniques. Although the therapist discontinued his relationship with appellant, the court did not find that the progress noted by the therapist failed to correct the conditions or that appellant made too little progress. Instead, the court quoted the therapist incompletely and presented only the negative comments about appellant’s parenting skills. The court did not address appellant’s testimony in which she seemed to explain appropriate disciplinary techniques or her testimony that L.S.V. is now at an age at which she would not discipline him physically regardless of her general ideas about discipline.

There are evaluations in the record that pertain to the question of whether the case-plan components were germane. The court did not adopt portions of those evaluations to explain why the case-plan components were necessary to correct the conditions that first prompted public intervention. The case plan invited failure by making completion of therapy necessary for the return of her child, and the court did not wrestle with the core question of whether appellant’s efforts failed to correct the conditions.

The grave danger in these incomplete and conclusory findings is that the court will find merely “no compliance with the case-plan” without finding that these failures demonstrate cause for terminating parental rights. We reverse and remand for the court to make findings of fact and conclusions of law that address the issues raised in this opinion.

2. Long-term Foster Care

Appellant contends that the trial court contravened the child’s best interests when it failed to consider long-term foster care without termination. When the court determines that termination of parental rights is not appropriate, the court’s ability to place the child in long-term foster care is governed by section 260C.201. Minn. Stat. § 260C.312 (2000). Section 260C.201 prohibits long-term foster care for children under the age of 12. Minn. Stat. 260C.201, subd. 11(e)(3)® (2000). The age restriction reflects a policy determination that children should be placed in permanent homes and that foster care should be a temporary solution only. The Minnesota Supreme Court addressed the issue of whether the age requirement conflicted with the best interests of the child. In re Welfare of J.M., 574 N.W.2d 717, 722 (Minn.1998). The court found no conflict and that canons of statutory interpretation barred the court from ordering “a statutorily-prohibited placement.” Id. Because L.S.V. is only 10 years old, the court did not err by failing to consider long-term foster care without termination of appellant’s parental rights because the law as currently developed prohibits this option.

Appellant asks us to find cause to act in contradiction to the statute. J.M. may represent a departure from the supreme court’s historic stance in favor of using equitable powers to order a statutorily prohibited placement, but it does not appear that the J.M. court was asked to consider the power of the court acting in equity in child-welfare matters. In an early case, Justice Cardozo stated the equity court has inherent power to order a statutorily prohibited remedy in the best interests of the child. Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 625-26 (1925). Minnesota courts have invoked their inherent power to grant equitable relief “as the facts in each particular case and the ends of justice may require.” Johnston v. Johnston, 280 Minn. 81, 86, 158 N.W.2d 249, 254 (1968); see also DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755, 758 (Minn.1981) (finding district court has inherent power in family law cases to grant relief as facts and equities require); State ex rel. Flint v. Flint, 63 Minn. 187, 189-90, 65 N.W. 272, 273 (1895) (holding statutory mandate that custody be awarded to the father did not prohibit court’s decision to place the child with its mother); Kimmel v. Kimmel, 392 N.W.2d 904, 908 (Minn.App.1986) (finding court had equitable power to disregard statutory procedure when child’s welfare in jeopardy), review denied (Minn. Oct. 29, 1986). C.f. Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn.1997) (stating “each marital dissolution proceeding is unique and centers upon the individualized facts and circumstances of the parties and that, accordingly, it is unwise to view any marital dissolution decision as enunciating an immutable rule of law applicable in other proceeding”). Infringing on the court’s equitable powers can violate separation of powers. Holmberg v. Holmberg, 588 N.W.2d 720, 725-26 (Minn.1999) (finding statutory process violated separation of powers by infringing on court’s original, equitable jurisdiction in family law).

Appellant also contends that termination is not in L.S.V.’s best interests because they share a bond of love and affection for each other. If this fact is shown, it must be determined if it is offset by other best interests considerations. Because we are remanding the case for further findings on the question of statutory grounds for termination, we decline to weigh the importance of L.S.V.’s bond with appellant in this case.

Appellant also contends that the county failed to investigate potential relative placements. But the county attempted unsuccessfully to place L.S.V. with relatives and appellant did not cooperate with the county to provide names of other relatives who would be willing to take care of L.S.V.

DECISION

The trial court’s findings did not address the core issue of the case: whether appellant’s efforts and failure to follow through completely with the case plan were a failure to correct the conditions that led to the out-of-home placement. Upon remand, it remains within the trial court’s discretion whether to open the record for the presentation of additional evidence.

Reversed and remanded.

SCHUMACHER, ROBERT H., Judge

(dissenting).

I respectfully dissent. As the trial court stated in finding of fact 13.0, mother “has been unwilling to meet [L.S.V.’s] basic needs and her actions say (loud and clear) that she does not want her son returned to her home.” The record readily supports the trial court’s conclusion that termination of parental rights is in the best interests of L.S.V. The majority nonetheless faults the trial court for not specifically detailing why mother’s continued compliance with the court-ordered case plan is necessary to correct the conditions that led to the initial removal. Such a critique only serves to further delay the final resolution of this case.

MinmStat. § 260C.201, subd. 11 (2000), requires that the trial court hold a permanency hearing within 12 months of out-of-home placement for children over the age of eight. The dispositions available to the trial court are (1) reunification; (2) transfer of legal custody to a relative; (3) long-term foster care; or (4) termination of parental rights. Minn.Stat. § 260C.201, subd. 11(e). In this case, L.S.V. has been in out-of-home placement since April 1999, over two and a half years. As counsel for the guardian ad litem stated in his appellate brief: “Every day spent in reunification past the 12-month timeline is another day lost for finding a permanent home for this child.” The focus in this case should be on L.S.V.’s need for permanency, not on the trial court’s findings.

      . The legislature has changed some of the terminology of this section, but the changes cio not affect our decision. See 2001 Minn. Laws ch. 178, art. 1 § 33.

      . Minn.Stat. §§ 260.012 (outlining reasonable efforts for rehabilitation and reunification), 260C.201, subd. 6 (requiring case plans with CHIPS dispositions), 260C.212 (governing the placement of children in foster homes and case plans) (2000). Minn.Stat. § 260.012 was amended in 2001 to add that reasonable efforts are not required when the parent’s custodial rights to another child have been involuntarily transferred to a relative. 2001 Minn. Laws ch. 178, § 4.

      . But c.f. In re Welfare of D.D.K., 376 N.W.2d 717, 721 (Minn.App.1985) ("We do not believe the ‘conditions leading to the determination [of dependency],' which the parent must correct, can be read so narrowly as to exclude the psychological effects of the physical abuse experienced by the child.” (citation omitted)).

      . Barbara Belzer noted in her parenting-evaluation summary that given the cultural context of the pattern of abuse of L.S.V., E.V. needed "to adopt a new way of thinking about [L.S.V.’s] development.” Dawn Bove noted in her parenting-evaluation summary that E.V. needed to change her way of thinking in order "to more appropriately parent” L.S.V., and that individual therapy might help her to change.

      . The legislature has added to this provision but not deleted the reference to section 260C.201. See 2001 Minn. Laws ch. 178, art. 1, § 37.

      . The legislature’s recent changes to the statute do not alter this rule. See 2001 Minn. Laws ch.178, art. 1, § 22.

        .E.g., Sen. Jane Ranum, Minnesota’s Permanency and Concurrent Planning Child Welfare System, 26 Wm. Mitchell L.Rev. 687, 693-96 (2000).


author: HALBROOKS, Judge

text:
    EVERYTHING ETCHED, INC., Appellant, v. SHAKOPEE TOWING, INC., Respondent.
    No. CX-01-490.
    Court of Appeals of Minnesota.
    Oct. 9, 2001.

      Samuel A. McCloud, Richard P. Ohlen-berg, McCloud & Boedigheimer, P.A., Shakopee, MN, (for appellant).
    Kevin P. Staunton, Hinshaw & Culbertson, Minneapolis, MN, (for respondent).

      Considered and decided by TOUSSAINT, Chief Judge, KLAPHAKE and HALBROOKS, Judges.
   OPINION

HALBROOKS, Judge

At the request of police, respondent towed and stored a vehicle owned by appellant. Respondent later sold the vehicle at an auction. Appellant argues that the district court erred by finding that Minn. Stat. § 168B.08 (2000), which regulates nonpublic and public impound lots differently, does not violate equal protection and substantive due process. Because the statute advances a legitimate governmental purpose, we affirm.

FACTS

On September 29, 1999, respondent Shakopee Towing, Inc., towed a Dodge Stealth (“the vehicle”) registered to appellant Everything Etched, Inc., at the request of the Prior Lake police department. On October 8, 1999, respondent notified appellant via certified mail that the vehicle had been towed, was being stored on respondent’s premises, and would be auctioned off if appellant did not reclaim it within 45 days.

Appellant did not contact respondent until sometime in January 2000. By that time, respondent was beginning to prepare to auction off the vehicle. Appellant began negotiating with respondent’s owner, Du-Wayne Ege, for return of the vehicle. After failing to reach an agreement with Ege, appellant filed a complaint against respondent and sought a temporary restraining order. On January 13, 2000, an ex párte temporary restraining order was issued based on appellant’s assertion that respondent had not provided sufficient notice of its intent to sell the vehicle and retain the sale proceeds. On January 27, 2000, the district court dissolved the temporary restraining order on the ground that the notice was proper.

The parties resumed negotiations, and appellant offered respondent $3,500 for the return of the vehicle. On February 24, 2000, respondent rejected appellant’s offer and submitted a counteroffer of $7,500. When appellant did not meet the asking price, respondent auctioned off the vehicle on March 30, 2000, and received $8,200. Respondent paid the auctioneer $185 and kept the remainder. Respondent also kept $483 that was found in the vehicle at the time it was impounded.

Following discovery, appellant moved for summary judgment on the ground that respondent failed to provide the second notice required by the statute. The district court denied the motion, ruling as a matter of law that a February 24, 2000 letter from respondent to appellant’s counsel met the statutory second notice requirements.

On October 11, 2000, appellant moved the district court to declare the impound statute unconstitutional. The court denied the motion, holding that appellant had failed to meet its burden of persuasion. The case proceeded to a jury trial, and ultimately, the jury returned a special verdict, finding that respondent did not convert appellant’s vehicle. This appeal follows.

ISSUE

Does Minn.Stat. § 168B.08 (2000) violate the equal-protection or due-process clauses of the Minnesota and U.S. Constitutions?

ANALYSIS

Appellant argues that the statute regulating impound lots (“the impound statute”) violates equal protection and substantive due process because it differentiates between nonpublic and public impound-lot owners. See Minn.Stat. § 168B.011, subds. 11, 12 (2000); see also U.S. Const.amend. XIV, § 1 (equal protection and due process); Minn. Const, art. I, § 2 (equal protection). Appellant does not assert in this appeal that the impound statute results in an impermissible taking or that respondent failed to follow the statutory guidelines.

Because the constitutionality of a statute is a question of law, our review is de novo. Estate of Jones by Blume v. Kvamme, 529 N.W.2d 335, 337 (Minn.1995). Appellant has a heavy burden of persuasion given that statutes enjoy a strong presumption of constitutionality. Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979). Further, “our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989) (citation omitted).

We review both of appellant’s claims under the same standard: if legislation does not violate equal protection, it does not violate substantive due process. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470 n. 12, 101 S.Ct. 715, 727 n. 12, 66 L.Ed.2d 659 (1981); see also State v. Morrow, 492 N.W.2d 589, 547 (Minn.App.1992) (constitutional challenge under either due process or equal protection provisions of federal or state constitutions raises similar questions). When a statute does not contain suspect classifications or impinge on fundamental rights, it only needs to be rationally related to a legitimate governmental purpose to withstand either an equal-protection or a substantive-due-process challenge. Lukkason v. 1993 Chevrolet Extended Cab Pickup, 590 N.W.2d 803, 806 (Minn.App.1999) (relying on Hodel v. Indiana, 452 U.S. 314, 331, 101 S.Ct. 2376, 2387, 69 L.Ed.2d 40 (1981)), review denied (Minn. May 18, 1999).

“Legislation will fail rational-basis review only when it rests on grounds irrelevant to the achievement of a plausible governmental objective.” Lukkason, 590 N.W.2d at 806 (citing Heller v. Doe, 509 U.S. 312, 324, 113 S.Ct. 2637, 2645, 125 L.Ed.2d 257 (1993)). But unlike the federal courts, when Minnesota courts apply a rational-basis review, we are “unwilling to hypothesize a rational basis to justify a classification, as the more deferential federal standard requires.” State v. Russell, 477 N.W.2d 886, 889 (Minn.1991). Therefore, Minnesota courts require the proponent of a statute’s constitutionality to establish “a reasonable connection between the actual, and not just the theoretical, effect of the challenged classification and the statutory goals.” Id.

Here, the statutory scheme for notifying an owner that his or her vehicle has been impounded is the same for both public and nonpublic impound lots. After a vehicle has been impounded, both types of lots must inform the registered owner within five days that the vehicle has been taken and may be reclaimed by paying all towing and storage fees. Minn.Stat. §§ 168B.06, subd. 1, .07, subd. 1 (2000). If the vehicle remains unclaimed after 30 days from the time that the first notice was sent, the statute requires public and nonpublic impound lots to send a second notice by certified mail, return receipt requested. Minn.Stat. § 168B.06, subd. 3 (2000). If the owner fails to respond within 45 days, an impound lot may dispose of the vehicle and its contents. Minn.Stat. § 168B.051, subd. 2 (2000).

Once a vehicle has been sold, however, the statute treats public and nonpublic lots differently. After a nonpublic impound lot auctions off a vehicle, the impound lot

may retain any proceeds derived from a sale * * ⅜. The operator may retain all proceeds from sale of any personal belongings and contents in the vehicle that were not claimed by the owner * ⅜ * before the sale ⅜ * *.

Minn.Stat. § 168B.08, subd. 4 (2000). When a public lot sells an impounded vehicle, it can immediately “reimburse itself for the cost of towing, preserving and storing the vehicle, and all administrative, notice and publication costs incurred in handling the vehicle.” Minn.Stat. § 168B.08, subd. 3 (2000). But a public entity must hold any profit for 90 days, a window of time during which the impounded vehicle’s owner may claim the profit. Id. If the owner fails to claim the money during this time period, the remainder is deposited in the public treasury. Id.

Appellant argues that the difference in the way that public and nonpublic impound lots treat sale proceeds serves no legitimate governmental purpose. We start by looking at the statute’s plain language to determine what the legislative intent was for differentiating between public and nonpublic impound lots. Minn.Stat. § 645.16 (2000). Because we cannot immediately discern why the legislature chose to draw this distinction, we turn to the legislative history. See Weber v. Hvass, 626 N.W.2d 426, 432 (Minn.App.2001), review denied (Minn. June 27, 2001); cf. Minn.Stat. § 645.16 (ascertaining legislative intent by considering the need for the law, the circumstances under which it was enacted, the consequences of an interpretation, contemporaneous legislative history, and the object to be attained).

The legislature amended the impound statute in 1995 and again in 1997 to address the concerns of municipalities, law-enforcement agencies, and private towing companies. The legislature noted that private towing companies contract with municipalities and law-enforcement agencies to provide towing and limited storage facilities. Hearing on H.F. No. 586 Before the House Comm. on Transp. (Mar. 1, 1995) (statement of Rep. Bertram). But these private companies were becoming de facto impound lots, because the impound statute did not contain language specifically regulating disposal of unclaimed vehicles. Id.; see also 1995 Minn. Laws ch. 137, § 4 (amending notice requirements to include nonpublic impound lots). Towing companies could not keep up with their contractual obligations because some individuals would not reclaim a vehicle if the towing and storage fees exceeded the vehicle’s value. Hearing on H.F. No. 586 Before the House Comm, on Transp. (statements of Rep. Betram and of towing association members Joe Schroga, Todd Sewerts, and Renee Gardas). Vehicles that could not be sold or salvaged also posed an environmental hazard, as they often contained chemicals such as antifreeze, freon, and battery acid. Id. (statement of Joe Schroga). Additionally, the legislature heard testimony that towing companies were losing money when vehicles remained unclaimed because the companies were receiving remuneration for their services only from owners who reclaimed their vehicles. Id. (statements of Joe Schroga, Todd Sewerts, and Renee Gardas).

Several members of the legislature expressed concerns that “snowbirds” (Minnesotans who spend their winters in southern states) would not realize that their vehicles had been impounded and could be sold. Id. (statement of Rep. McElroy). But others observed that if an unclaimed vehicle required extensive repairs and had little resale value, a towing company might not recoup the cost of towing, storage, and disposal even if it could sell the vehicle. Hearing on H.F. No. 586 Before the House Comm, on Commerce, Tourism, and Consumer Affairs (Mar. 28, 1995) (statements of Renee Gardas and Rep. Mulder). To strike a balance between the concern that owners may not learn of towing immediately and the need to provide a means for disposing of unclaimed vehicles, the legislature added the notice provision to the impound statute. Based on the experiences of private towing companies and municipal impound lots, the legislature assumed that if a vehicle was usable and valuable, a reasonable owner would respond to the notice in a timely manner. Hearing on H.F. No. 586 Before the House Comm, on Transp. (statement of Rep. Bertram); see also Hearing on S.F. No. 166 Before the Senate Comm, on Transp. (Feb. 25, 1997) (statement of Sen. Kelly).

In light of the legislative history, we agree with the district court’s determination that the impound statute serves a legitimate governmental purpose and is, therefore, constitutional. The purpose of the statute is to create a quick and orderly scheme to deal with abandoned vehicles that “constitute a hazard to the health and welfare of the people of the state.” Minn. Stat. § 168B.01 (2000) (noting that abandoned vehicles “can harbor noxious diseases, furnish shelter and breeding places for vermin, and present physical dangers to the safety and well-being of children and other citizens”). The notice-and-disposal scheme alleviates overcrowding for nonpublic towing companies and provides them with a financial mechanism to recoup their costs.

Additionally, we disagree with appellant’s contention that the legislature never contemplated that this situation might occur. The legislature intended to relieve nonpublic impound lots of the burden of disposing of unclaimed, abandoned vehicles. Recognizing that some owners would want to reclaim their vehicles, the legislature required that nonpublic towing companies send two notices to owners before disposing of a vehicle. Thus, the legislature recognized that not all impounded vehicles are “junk,” and that individuals in appellant’s situation are likely to claim their vehicles promptly so as to limit daily storage fees and avoid the potential loss of the vehicle through sale or auction. As the district court found, appellant received the required two notices, but did not respond in a timely fashion.

DECISION

Minn.Stat. § 168B.08 (2000) serves a legitimate government purpose and is, therefore, constitutional.

Affirmed.

      . As required, appellant notified the attorney general that it intended to challenge the constitutionality of the impound statute, but the state declined to intervene at either the trial or appellate level. See Minn. R. Civ.App. P. 144 ("When the constitutionality of an act * ⅜ * is questioned in any appellate proceeding to which the state * * * is not a party, the party asserting the unconstitutionality of the act shall notify the attorney general * * *.”).

      . Absent good reason, we apply federal interpretations to a state constitutional provision that has "almost identical” language to the federal version. City of Pine Springs v. One 1992 Harley Davidson, 555 N.W.2d 749, 752 (Minn.App.1996).

      . Vehicles impounded by the cities of Minneapolis and St. Paul may be sold 15 days after notice to the owner. Minn.Stat. § 168B.051, subd. la (2000).


author: G. BARRY ANDERSON, Judge

text:
    Janet A. LISHINSKI and Gary H. Lishinski, individually and as Trustees for the heirs and next-of-kin of Jessica A. Lishinski, Respondents, v. CITY OF DULUTH, Appellant.
    No. CX-01-747.
    Court of Appeals of Minnesota.
    Oct. 16, 2001.

      H. Jeffrey Peterson, Alicia L. Cope, Virginia, MN, for respondents.
    Bryan F. Brown, City Attorney, M. Alison Lutterman, Deputy City Attorney, Cynthia Albright, Assistant City Attorney, Duluth, MN, for appellant.
    Considered and decided by PETERSON, Presiding Judge, AMUNDSON and ANDERSON, Judges.
   OPINION

G. BARRY ANDERSON, Judge

Appellant City of Duluth challenges the district court’s denial of its motion for summary judgment based on statutory recreational immunity, arguing that the court erred in concluding that whether an artificial and allegedly dangerous condition was “hidden,” such that appellants would have a duty to warn, involved a genuine issue of material fact. Because we agree that there is a genuine issue of material fact, we affirm denial of summary judgment.

FACTS

Respondents Janet A. Lishinski and Gary H. Lishinski, individually and as trustees for the heirs and next-of-kin of Jessica A. Lishinski, filed this wrongful-death action against appellant City of Duluth. The Lishinski’s daughter, Jessica A. Lishinski, died as the result of injuries sustained while in-line skating on a blacktop pathway in Duluth’s Leif Erickson Park.

At approximately 5:30 p.m. on May 18, 1999, Jessica Lishinski, a 21-year-old college student, and her roommate, Shari Undeland, decided to go in-line skating along Lake Superior on the Lakewalk path. The women drove to Canal Park, parked their car, and skated along the Lakewalk path. A sign placed along the path instructed in-line skaters to “[u]se blacktop only.” As they approached Leif Erickson Park, the women stopped atop a hill to decide which way to go. The Lake-walk path continued through the park, while a path known as the “park path” veered to the right, toward a stage and Lake Superior. Both paths were blacktop and had a downward gradient, and the Lakewalk path was approximately one yard wider than the park path. There were no signs in Leif Erickson Park restricting the use of bicycles, in-line skates, or skateboards. Lishinski suggested that the two women use the path closer to the lake for that reason.

The park path leads to a stone stage, which abuts the natural slope of the Lake Superior shoreline and the beach area below. As the path approaches the stage, it curves sharply to the left, behind the stage, and straightens out for a short distance. The surface of the path then changes from blacktop to pavement stone. The pavement change is not visible until the skater turns the corner. Lishinski had never been on the park path before.

Lishinski, an experienced in-line skater, headed down the park path towards the stage. Undeland initially followed, but stopped to remove her skates because she was not comfortable going down the hill. While removing her skates, Undeland heard a crash and saw people running behind the stage. Undeland approached the area and saw Lishinski lying on the rocks near the lake. Lishinski died from her injuries.

Undeland did not see the accident, and no other eyewitnesses to the accident have been identified. Undeland stated in her deposition (a) that Lishinski had not consumed alcohol or taken drugs prior to the accident and was not racing, skating inappropriately or skating in a reckless manner, and (b) that immediately prior to the accident, Lishinski was standing up straight and not doing anything out of the ordinary.

Appellant City of Duluth asserted a defense of recreational immunity pursuant to Minn.Stat. § 466.03, subd. 6e (1998), and moved for summary judgment. The district court denied the motion, concluding that there were genuine issues of material fact regarding whether the allegedly artificial dangerous condition was “hidden,” such that appellant had a duty to warn of the alleged danger. This appeal follows.

ISSUE

Did the district court err by denying summary judgment and concluding, as a matter of law, that the city was not entitled to recreational-use immunity pursuant to Minn.Stat. § 466.03, subd. 6e (1998)?

ANALYSIS

On appeal from summary judgment, this court considers whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The evidence is viewed in the light most favorable to the non-moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Summary judgment is appropriate when a governmental entity establishes that its actions are immune from liability. In re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543, 546 (Minn.App.1997), review denied (Minn. June 26, 1997). Whether governmental action is protected by statutory immunity is a question of law, which we review de novo. Zank v. Larson, 552 N.W.2d 719, 721 (Minn.1996).

Appellant argues that the district court erred by concluding that the city was not entitled to recreational-use immunity under Minn.Stat. § 466.03, subd. 6e (1998). That statute provides that a municipality is immune from tort claims

based upon the construction, operation, or maintenance of any property owned or leased by the municipality that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services, * * * if the claim arises from a loss incurred by a user of park and recreation property or services. Nothing in this subdivision limits the liability of a municipality for conduct that would entitle a trespasser to damages against a private person.

Id. Accordingly, a municipality is entitled to recreational-use immunity unless its conduct would entitle a trespasser to recover damages against a private person. Schaffer v. Spirit Mountain Recreation Area Auth., 541 N.W.2d 357, 360 (Minn.App.1995).

The general-trespasser standard of the Restatement (Second) of Torts § 335 (1965) defines the duty owed by a municipality to users of its recreational facilities. Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn.1994); Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 494 (Minn.1984). Section 335 provides that a possessor of land is subject to liability for bodily harm caused to a trespasser by an artificial condition on the land if

(a) the condition
(i) is one which the possessor has created or maintains and
(ii) is, to his knowledge, likely to cause death or serious bodily harm to such trespasser and
(iii) is of such a nature that he has reason to believe that such trespassers will not discover it and,
(b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.

Schaffer, 541 N.W.2d at 360 (quoting Restatement (Second) of Torts § 385 (1965)). A plaintiff must prove all of the elements of section 335 to defeat immunity. Id.

Under section 335, “a landowner will be liable only for failing to exercise reasonable care to warn trespassers about hidden, artificial dangers created or maintained by the landowner.” Sirek v. State, Dep’t of Natural Res., 496 N.W.2d 807, 810 (Minn.1993). Whether a condition was hidden or concealed depends on the visibility of the condition, not on whether the injured party actually saw the danger. Steinke v. City of Andover, 525 N.W.2d 173, 177 (Minn.1994). If “a brief inspection would have revealed the condition, it is not concealed.” Johnson v. State, 478 N.W.2d 769, 773 (Minn.App.1991) (citation omitted). Recreational users are required to be alert to conditions existing on the land. Sirek, 496 N.W.2d at 812.

Appellant argues that Minnesota law requires an objective analysis of whether a condition is hidden and that the district court failed to apply that law to the facts of this case. See Steinke, 525 N.W.2d at 177 (common earthen drainage ditch not hidden or artificial condition, where plaintiff failed to make even cursory inspection of land before snowmobiling); Sirek, 496 N.W.2d at 812 (state immune for injuries to supervised six-year-old girl who ran in front of car, crossing highway that was visible for 100 feet before trail ended); Schaffer, 541 N.W.2d at 361 (municipality immune from liability where 14-year-old girl ran into metal barrel while skiing, because barrel was not a hidden hazard and large portion of barrel and its yellow top were visible); Watters v. Buckbee Mears Co., 354 N.W.2d 848, 851 (Minn.App.1984) (under restatement, vertical drop in dirt hill was not concealed from plaintiff injured while four-wheeling because brief inspection would have revealed it).

Appellant argues that because the alleged dangerous condition could have been seen with a brief inspection, under Minnesota law, it was not hidden. Appellant contends that, as a result, summary judgment was appropriate.

The district court, however, rejected this argument, stating:

[Appellant] points to several cases in which our appellate courts have held certain particular hazards were not hidden from view and that as a result[,] persons injured in incidents were not entitled to recovery under the statute. The Court finds those cases distinguishable, however. The [respondents] here have presented evidence to suggest the particular hazard claimed to exist was hidden or concealed in nature rather than obvious upon reasonable inspection.

(Emphasis added.)

We agree. In Sirek, the highway where the child was struck was visible 100 feet before the trail ended and was not hidden. Sirek, 496 N.W.2d at 812. In Schaffer, photographs taken the day of the skiing accident reveal that the yellow barrel was clearly visible to skiers. Schaffer 541 N.W.2d at 359. And, in Watters, the men who were four-wheeling had been drinking and two of them had been on the property before and were familiar with the area. Watters, 354 N.W.2d at 849.

We find Noland v. Soo Line R.R., 474 N.W.2d 4 (Minn.App.1991), review denied (Minn. Sept. 13, 1991), helpful. In No-land, this court reversed a grant of summary judgment, concluding that material facts were in dispute and warranted a trial. Id. at 7. A snowmobiler had driven over the side of a railroad trestle and was injured. Id. at 5. There was no evidence that the snowmobiler had been in the area before or was aware that she was on a trestle at the time of the accident. Id. Moreover, the snowmobiler stated that the trestle was covered with snow and that visibility had been reduced by darkness and blowing snow. Id. This court concluded that because “[tjhese conditions may have obscured the trestle enough to make it difficult for even an attentive snowmobiler to discover,” the plaintiff had raised “a fact question about whether the trestle was so concealed respondent had reason to believe trespassers would not discover it.” Id. at 7. Thus, there was a fact question as to whether the allegedly dangerous condition involved in that accident was hidden or concealed.

Appellant disputes the applicability of Noland to this case, arguing that the defendant in that case did not argue that the condition was visible, but rather that the trestle was not on a snowmobile trail and the plaintiff should have known that she was on a railroad right-of-way. See id. But this court clearly described the “fact question” raised by the plaintiff as “whether the trestle was so concealed [the defendant] had reason to believe trespassers would not discover it.” Id. (emphasis added).

Appellant asserts that because variations in the surface of multi-use trails should be anticipated, recreational immunity should apply. See Johnson, 478 N.W.2d at 773 (municipality immune where pedestrian tripped over uneven sidewalk and fell); Lundstrom v. City of Apple Valley, 587 N.W.2d 517, 520 (Minn.App.1998) (municipality immune where tennis player tripped over court tape). We disagree. In Johnson, the pedestrian admitted that she was looking down as she walked over a sidewalk joint and fell. Johnson, 478 N.W.2d at 773. In Lundstrom, the tennis player admitted that he saw the tape on the court prior to tripping on it. Lundstrom, 587 N.W.2d at 520. In contrast, Lishinski had never been on the park path before, and the sharp curve and changing surface of the path were concealed by the stage. No signs warned of danger.

We conclude that the district court did not err by denying summary judgment. Appellant’s posted signs instructed Lishin-ski to stay on the blacktop path. The park path, although a little narrower that the Lakewalk path, was made of blacktop. There was no warning of either the curve or the surface change. Pictures from the scene of the accident demonstrate that the park path appears to continue with the same surface conditions behind the stage as before and after the stage. Two experts testified that in-line skaters were not likely to discover the hidden danger until they found themselves imperiled. Appellant conceded at oral argument that an inline skater is not required to walk an entire pathway before skating.

We note that we need not speculate as to whether respondents will succeed in their lawsuit, but must only determine whether the district court erred in finding that a genuine issue of material fact remains for trial. Viewing the evidence in the light most favorable to respondents, we agree with the district court that it is for the jury to decide whether the condition behind the stage was hidden or whether brief inspection would have revealed the condition.

Appellant also argues that the district court clearly erred by viewing subjectively whether Lishinski actually saw the alleged dangerous condition. For support, appellant cites the following statement by the court:

Clearly, if decedent had inspected the area behind the stage it would have been readily apparent the character of the pathway changed abruptly very shortly after it went behind the stage structure.

But the district court also said:

As noted, however, viewed from the brow of the hill[,] the pathway arguably appeared to proceed with the same surface characteristics behind the stage as before it and after it. In effect, [respondents] suggest the setup of the pathway created the illusion of a continuity of the pathway surface. The Court is asked by [appellant] to conclude as a matter of law, given the particular facts and physical configuration of the pathway, the hazard was not hidden and that decedent must bear sole responsibility for proceeding as she did. The Court concludes neither the record nor the law supports defendant’s request for relief on this ground. This issue is properly one for jury determination.

It is clear from the above language that the district court did not focus on whether the decedent actually saw the alleged dangerous condition, but instead took an objective viewpoint. Appellant’s argument is without merit.

In the reply brief, appellant argues that respondents have failed to prove the cause of Lishinski’s accident. But as appellant admits in its brief, interlocutory appeal is not available for the denial of a motion for summary judgment based on a lack of evidence to sustain a finding of causation. A governmental entity is entitled to appellate review of an adverse ruling on a claim of immunity, but orders denying summary judgment are generally not appealable, and interlocutory review does not extend to issues that do not involve immunity from suit. McDonough v. City of Rosemount, 503 N.W.2d 493; 496 (Minn.App.1993), review denied (Minn. Sept. 10, 1993). Therefore, any arguments regarding causation are beyond the scope of this appeal.

DECISION

The district court properly denied summary judgment because a genuine issue of material fact remains for the jury. The jury must determine whether the condition of the park path was hidden from Lishin-ski and whether a brief inspection would have revealed the condition. We affirm the denial of summary judgment.

Affirmed.


author: PER CURIAM.

text:
    2001 ND 158
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Gary S. GRONNEBERG, a Person Admitted to the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Gary S. Gronneberg, Respondent.
    No. 20010184.
    Supreme Court of North Dakota.
    Sept. 26, 2001.
   SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] On July 20, 2001, a Hearing Body of the Disciplinary Board submitted its Report to the Supreme Court recommending that Gary S. Gronneberg be suspended from the practice of law for a period of one year, following any application by him for licensure of an inactive attorney under Rule 7, Admission to Practice Rules, and that he pay the costs and expenses of the disciplinary proceedings in the amount of $935.00 and the cost of the transcript of the proceeding on June 13, 2001. The Supreme Court considered the matter under N.D.R. Lawyer Discipl. 3.1(G).

[¶ 2] Gary S. Gronneberg was admitted to practice law in North Dakota on September 22, 1976. On December 31, 1994, Gronneberg was suspended from practice for failure to satisfy the educational requirements of the North Dakota Rules for Continuing Legal Education. Gronneberg has been suspended from the practice of law in North Dakota since that time.

[¶ 3] In March, 1994, Gronneberg, on behalf of Red River Collections, filed a foreign judgment it had obtained against Kathy Obregon with the District Court, South Central Judicial District, Burleigh County, North Dakota (District Court).

[¶ 4] On March 21, 2000, Steven Bala-ban, a licensed North Dakota attorney, on behalf of Obregon, filed a letter and certified documents from the United States Bankruptcy Court from the District of Minnesota with the District Court. Bala-ban requested the foreign judgment filed by Gronneberg be voided.

[¶ 5] On March 24, 2000, Gronneberg filed a letter and accompanying documents with the District Court. In the letter he requested that “our objection to a change in the current status of the above referenced judgment” be noted. He asked that “[i]f the District Judge assigned to this case needs any further information, please advise.” One of the accompanying documents was a copy of a letter dated March 24, 2000, to Balaban signed by Gronne-berg, as Staff Counsel, Red River Collections, Inc.

[¶ 6] On March 30, 2000, Gronneberg filed a letter and accompanying document with the District Court. In the letter, he stated he had completed research and analysis of the issues, and reiterated Red River Collections, Inc. continued to object to the discharge or satisfaction of the judgment. Gronneberg stated he was enclosing a copy of the analysis of the Chapter 7 bankruptcy discharge issue. The accompanying document was entitled Student Loan Dischargeability After Bankruptcy Discharge. It consisted of three pages and contained argument and case citations in support of the contention that the judgment was not discharged.

[¶ 7] On July 19, 2000, Gronneberg was personally served the Summons and Petition for Discipline, which alleged the above actions violated N.D.R. Prof. Conduct 5.5, which provides that a lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession, as Gronneberg was suspended from the practice law from December 31, 1994, through the dates of the above actions. The Petition also alleged a violation of N.D.R. Prof. Conduct 8.4 through Gronneberg’s violation of § 27-13-01(1), N.D.C.C., maintaining respect for the court.

[¶ 8] Gronneberg’s Answer to the Petition for Discipline was filed July 13, 2001. Gronneberg’s Answer, in part, states:

“3. I was a concerned party in this matter due to the availability of an attorney’s lien pursuant to N.D.C.C. 35-20-08. Since this is a lien personal only to me, I believe a personal response by me to the application filed by Attorney Balaban was warranted, in good faith, and appropriate to protect any interest I may personally have in this matter.”
“4. Since I believe there was no basis in fact or law to support the Application to void the judgment, I did not see the need for Red River Collections, Inc., to hire legal counsel to reply to the Application. I considered the Application as an attempt to harass the judgment creditor and needlessly increase the cost of litigation.... ”
“6. My actions were based upon my opinion that the application by Attorney Balaban was an improper use of the North Dakota statutes and the applicable bankruptcy law. I also acted due to the ex parte nature of the application and the potential urgency of a reply to an improper application.”
“7. The purpose of the Rules of Professional Conduct are to protect the public from improper legal information and advice. I did not attempt to give improper information or advice to either Attorney Balaban or the District Court. I believe a review of the information I provided to Attorney Balaban and the District Court will determine the information was fair and accurate.”

[¶ 9] A hearing before a three-member panel of the Disciplinary Board was set and the Notice of Hearing was mailed to Gronneberg on April 6, 2001. Gronneberg made no appearance at the hearing. The Hearing Panel heard no witnesses, but received exhibits offered by Disciplinary Counsel, and heard the argument of Disciplinary Counsel.

[¶ 10] Gronneberg was informed on July 20, 2001, in writing, by certified mail return receipt requested, the Report of the Hearing Panel had been filed in the Supreme Court. Gronneberg was advised under N.D.R. Lawyer Discipl. 3.1(G) objections must be filed within 20 days of service of the Report and that if timely objections were filed, briefs limited to those objections would be due 50 days after service of the Report.

[¶ 11] Gronneberg did not timely file objections to the Report of the Hearing Panel and the matter was referred to the Supreme Court.

[¶ 12] Gronneberg’s actions violate N.D.R. Prof. Conduct 5.5 which provides that a lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession, as Gronneberg was suspended from the practice of law under N.D.R. Continuing Legal Ed. 4 from December 31, 1994, and continued to be suspended at the time he wrote the letter as “Staff Counsel” clearly implying he was acting as legal counsel for Red River Collections, Inc. In addition, Gronne-berg’s actions in this matter violate N.D.R. Prof. Conduct 8.4 through violation of § 27-13-01(1), N.D.C.C., maintaining respect for the court.

[¶ 13] Under N.D. Stds. Imposing Lawyer Sanctions 7.2 suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession and causes injury or potential injury to a client, the public, or the legal system.

[¶ 14] Neither mitigating nor aggravating factors under N.D. Stds. Imposing Lawyer Sanctions 9.0 was presented

[¶ 15] ORDERED, the Report of the Hearing Panel is approved.

[¶ 16] FURTHER ORDERED, Gronneberg is suspended from the practice of law for one year following any application by him for licensure of an inactive attorney under Admission to Practice R. 7.

[¶ 17] FURTHER ORDERED, Gronneberg pay the costs and expenses of the disciplinary proceedings in the amount of $935.00, plus the cost of preparation of the transcript of the hearing dated June 13, 2001, as certified by Disciplinary Counsel, payable to the Secretary of the Disciplinary Board.

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