author: LANCASTER, Justice. GILBERT, Justice

text:
    PRIOR LAKE AMERICAN, a newspaper of Red Wing Publishing Company, Inc., Petitioner, Appellant, v. Wes MADER in his capacity as mayor of Prior Lake, et al., Respondents.
    No. C7-00-1909.
    Supreme Court of Minnesota.
    May 2, 2002.

      Mark R. Anfinson, Minneapolis, MN, for appellant.
    George C. Hoff, Scott B. Landsman, Hoff, Barry & Kuderer, P.A., Eden Prairie, MN, for respondents.
    Randy Lebedoff, Minneapolis, MN, for amici curiae Minnesota Newspaper Assoc, and Associated Press.

      Manuel Cervantes, City Attorney, Gerald T. Hendrickson, Asst. City Attorney, St. Paul, MN, for amicus curiae City of Saint Paul.
    Barbara Berglund, Ely, MN, for amicus curiae Ely Area Citizens Concerned about Wastewater Treatment Affecting Shagawa and White Iron Lakes.
    Susan L. Naughton, League of Minnesota Cities, St. Paul, MN, for amicus curiae League of Minnesota Cities.
   OPINION

LANCASTER, Justice.

The Prior Lake American, a newspaper published in Prior Lake, Minnesota, sued the Mayor of Prior Lake and three members of the Prior Lake City Council (respondents), claiming that they violated the Minnesota Open Meeting Law when they invoked the attorney-client privilege exception to close a Council meeting. The district court granted respondents’ motion for summary judgment, holding that respondents’ need for confidential legal advice relating to a threat of litigation outweighed the public’s right to access. The Prior Lake American appealed and the court of appeals affirmed. To determine whether the attorney-client privilege exception to the Open Meeting Law applies, we balance the purposes served by the attorney-client privilege against those served by the Open Meeting Law. The exception applies when this balancing dictates the need for absolute confidentiality. In this case, the balancing does not dictate the need for absolute confidentiality and, therefore, we reverse and remand.

The parties agree that there are no material facts in dispute. Ryan Contracting Co. (Ryan) applied for a conditional use permit (CUP) to operate a gravel extraction site in the City of Prior Lake (City). Ryan’s application sparked concern from several sources, including the Shakopee Mdewakanton Sioux Community (SMSC), the Minnesota Department of Natural Resources, and the City. On January 18, 2000, Ryan sent a letter to the City that responded to several issues surrounding its application. The letter stated in part:

In 1997-98 Ryan Contracting had secured an approved grading permit allowing the removal of material from this property. The City of Prior Lake revoked Ryan Contracting’s approved grading permit while allowing an adjacent property owner and contractor to mine sand material from their property * * *. Ryan Contracting suffered severe financial harm as a result of the revocation of our approved grading permit. At this present time Ryan Contracting has voluntarily decided to comply with the City of Prior Lake’s request to apply for a Conditional Use Permit. In the event Ryan Contracting is denied its CUP as allowed by City ordinance or an EAW is required, Ryan Contracting will revise its application to include any or all of the above items [set forth in preceding paragraphs]. Furthermore Ryan Contracting may seek legal action to ensure proper handling and compliance of this matter as well as legal action to recover lost revenues and/or costs incurred as a result of actions by the City of Prior Lake.

The Council’s first opportunity to consider Ryan’s letter took place at its regularly scheduled February 7, 2000, meeting.

The February 7, 2000, meeting was open to the public. Council members Ericson, Gundlach, Petersen, and Schenck attended, as did Mayor Mader. Lee Ann Schütz, the editor of the Prior Lake American, also attended the meeting.

The Council’s agenda included the following item: “Consider Approval of Report Regarding the Petition for Preparation of an Environmental Assessment Worksheet for Ryan Contracting’s Application for a Conditional Use Permit for Gravel Excavation.” The City’s staff presented its findings and recommended that the petition for an environmental assessment worksheet (EAW) be denied and that Ryan’s CUP application be approved.

A discussion of the staffs report followed. Although Mader acknowledged that the petitioner had not submitted facts to prove that Ryan’s gravel excavation operation “would necessarily represent a risk to the water supply,” he believed that the petitioner had submitted facts showing that Ryan’s operation might pose a threat to the water supply. Mader continued, asking questions about the acreage that Ryan intended to mine, traffic concerns, and effects Ryan’s operation would have on water resources. Mader concluded, “I’m not persuaded that * * * there isn’t a potential environmental problem, nor * * * am I persuaded that this can be carried out without impact on neighboring properties, significant impact on neighboring properties.”

Gundlach followed Mader. Gundlach asked about an observation well, traffic concerns, an aquifer, noise concerns, enforcement of conditions attached to Ryan’s CUP, and tree replacement. Petersen spoke next. He believed that the Council should grant the petition for an EAW:

[T]he Mayor brought up a bunch of concerns that in denying this environmental assessment worksheet which I though[t] we were going to do here, and I just hardly can’t go along with that at this point. There are too many concerns that got brought up on that and so I have to change my opinion on that a little bit. I think if we go anyplace on this we’ll have to have that worksheet brought up. There are just too many things.

After Petersen’s questions, Schenck asked about the timing and cost of an EAW, dewatering, cleaning, the length of time it would take Ryan to complete its gravel extraction, road maintenance, and property reclamation. Ericson then stated that “it would be prudent for us to conduct an EAW since there have been significant issues raised this evening.”

Mader summarized his thoughts with respect to the petition for an EAW:

Let me again reiterate that I think there are some serious concerns [that] have been raised and I certainly am not comfortable, for example, that we’ve addressed the water issue carefully when our own documentation and the documentation from the DNR and from the Council are both suggesting we should have an EAW. Our own data, at least from what I understand now, we also indicate that site is also within the well head protection area of the well that the Dakota Community has[.] * * * [I]t should be an obvious! ] conclusion that if State regulatory agencies are imposing well head protection for protection of water, I can’t understand how we could possibly justify going ahead with an excavation operation within a well head protection area just because it doesn’t happen to be our well. I think that would be inappropriate.

Mader addressed Ryan’s letter:

I’m looking at * * * a letter to the City from Ryan Contracting * * * which says “In the event Ryan Contracting is denied its CUP as allowed by City ordinance, or an EAW is required, Ryan Contracting will revise[] its application to include any or all of the above items.” Those are the items, incidentally, that have been previously determined to be objectionable * * *. The implication of that as I read it is “if you don’t give us what we want, we[’re] going to come back and add all those things that are so objectionable,” and I really have some problems with that. But more important, the next sentence says, “Ryan Contracting may seek legal action to ensure proper handling and compliance of this matter, as well as legal action to recover lost revenues and/or costs incurred as a result of actions by the City of Prior Lake.” Now, unless I don’t understand what that means, I think what that says is “hey City Council, if you don’t approve this tonight, we’re going to sue you.”

Mader then suggested that the Council retire to executive session:

I read this as a clear indication of a threat of litigation, and I am going to suggest to the rest of the Council members, that it is not inappropriate for the Council to meet in executive session to discuss any potential action that relates to potential litigation, and I’m not so sure that it wouldn’t be very appropriate for the Council to recess and go into executive session so that we can discuss with counsel in an executive session just how we should view this threat of litigation relative to the actions that are before the Council this evening.

Gundlach made a motion to recess into executive session and Ericson seconded the motion. Schenck questioned the propriety of the meeting’s closure:

[D]o we have enough here to legally retire into executive session? I know what this letter is getting at and we’ve got the CUP behind us, we require an EAW tonight, we move forward. There is no need for an executive session. Let them sue us.

Mader responded: “All I’m suggesting * * * is we do have the right to go into executive session when there is a threat of litigation, and I think this is a pretty clear threat. I assume you would agree! ] with that?” Schenck disagreed, regarding Ryan’s letter as “negotiation tactics, scare tactics.” The Council passed the motion. Mader, Gundlach, Petersen, and Ericson voted in favor of the motion and Schenck voted against it. The Council adjourned to executive session. Schütz objected to the meeting’s closure. Schenck did not participate in the executive session.

After the Council returned, the members explained why they retired to executive session. Mader said, “We went into executive session because of * * * the threat of litigation if we do not grant * * * the CUP petition and we do not deny the EAW.” He reasoned:

I think it’s certainly appropriate that as a Council deliberates and makes decisions, that it do so, hopefully -without threat of litigation, but if there is a threat of litigation, the Council at least have an opportunity to hear from our counsel regarding what the implications of litigation would be and what the probability of litigation, that sort of thing. I think it’d be very imprudent for the Council to sit and make decisions without talking to its own counsel when there is implied litigation.

Gundlach “felt very strongly with that threat of lawsuit that we needed some counsel from our attorney.” He acknowledged the constraints imposed by the Open Meeting Law:

We are forbidden to discuss this stuff prior to the meeting * * * among each other due to the open meeting laws, and therefore, can only do it during a meeting either here in front of- everyone, or in a closed session where we feel we have confidential information we have to discuss with our attorney as to what our liabilities are, and I felt very strongly about that.

Petersen explained, “I feel we need a little bit of help from counsel on this, so that’s our reason for doing this.” Ericson stated, “There [are] a lot of issues as far as litigation that we discussed in executive session, and I just wanted to make sure I had the benefit of our legal counsel before making any decisions on this.” Mader summarized the events surrounding Ryan’s application: “The history on the project, the correspondence and that sort of thing, I certainly interpret that if we do not respond the way the petition [Ryan’s application for a CUP] has asked, that the threat of litigation is imminent.”

The Council unanimously passed a motion to direct the staff to prepare a resolution with specific findings of fact for requiring an EAW. On February 22, 2000, the Council adopted a resolution requiring an EAW.

In March 2000, the Prior Lake American commenced this litigation seeking a declaration that respondents violated the Open Meeting Law when they retired to executive session on February 7, 2000. In October 2000, the district court denied the newspaper’s motion for summary judgment and granted respondents’ motion for summary judgment. In its Memorandum of Law, the district court stated:

The Council demonstrated that there was a specific threat of litigation by a specific party, namely Ryan Contracting. Regardless of whether or not litigation was imminent, the Council needed advice from its attorney relating to that specific situation. Therefore, the type of advice sought by the Council rose above the level of mere general legal advice. Moreover, [respondents] have shown that the need to discuss the matter with the city attorney in confidence outweighed the public’s right to access. Accordingly, the court concludes that [respondents] did not violate the open meeting law and that [respondents] are entitled to summary judgment * * *.

The court of appeals affirmed:

In response to a threat from the contractor, respondents needed timely legal advice on specific acts and their consequences. That need justified the application of the exception. We agree with the district court that the attorney-client privilege exception was properly applied.

Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together "with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. On appeal from a summary judgment where there are no genuine issues of material fact, our review is limited to determining whether the district court erred in its application of the law. Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 298 (Minn.2000); Metro. Prop. & Cas. Ins. Co. v. Metro. Transit Comm’n, 538 N.W.2d 692, 695 (Minn.1995). We review de novo whether the district court erred in its application of the law. Employers Mut. Cas. Co. v. A.C.C.T., Inc., 580 N.W.2d 490, 493 (Minn.1998); Art Goebel, Inc. v. N. Suburban Agencies, Inc., 567 N.W.2d 511, 515 (Minn.1997).

The Minnesota Open Meeting Law was enacted in 1957. Act of Apr. 27, 1957, ch. 773, 1957 Minn. Laws 1043 (codified as amended at Minn.Stat. ch. 13D (2000)). It provides that “[a]ll meetings, including executive sessions, must be open to the public,” including those “of the governing body of a statutory * * * city.” Minn. Stat. § 13D.01, subd. 1(b)(4) (2000). Meetings may be closed under certain circumstances, however, including when “the closure is * * * permitted by the attorney-client privilege.” Minn.Stat. § 13D.05, subd. 3(b) (2000); see Minneapolis Star & Tribune Co. v. Hous. & Redev. Auth., 310 Minn. 313, 323, 251 N.W.2d 620, 625 (1976) (hereinafter HRA).

The Open Meeting Law serves several purposes:

(1) “to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning [public bodies’] decisions or to detect improper influences”; (2) “to assure the public’s right to be informed”; and (3) “to afford the public an opportunity to present its views to the [public body].”

St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs., 332 N.W.2d 1, 4 (Minn.1983) (citations omitted). These purposes are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government.

Because the Open Meeting Law was enacted for the public benefit, we construe it in favor of public access. State by Archabal v. County of Hennepin, 505 N.W.2d 294, 297 (Minn.1993); see St. Cloud Newspapers, 332 N.W.2d at 6 (stating that the Open Meeting Law “will be liberally construed in order to protect the public’s right to full access to the decision-making process of public bodies”). “The few exceptions that exist are carefully restrained to avoid abuse.” Archabal, 505 N.W.2d at 297; see St. Cloud Newspapers, 332 N.W.2d at 5 (“The Minnesota Legislature clearly intended that all meetings of public agencies be open, with rare and carefully restrained exception.”).

From 1957 to 1990, the Open Meeting Law’s text did not include an attorney-client privilege exception. See Minn.Stat. § 471.705 (1988). In 1976, however, we recognized such an exception. HRA, 310 Minn. at 323, 251 N.W.2d at 625. In HRA, we confronted the conflict between “the basic principles of the attorney-client privilege” and “the public’s right to be informed of all actions and deliberations made in connection with activities geared to ultimately affect the public interest.” Id. at 318, 251 N.W.2d at 623. We recognized the exception “only after a thorough consideration of the record, which disclose[d] that the members of HRA were involved in active and immediate litigation.” Id. at 323, 251 N.W.2d at 625.

In HRA, we grounded our analysis on the fact that the supreme court has the power to administer the practice of law. Id. at 318, 251 N.W.2d at 623. That power allowed us to determine the scope of the attorney-client privilege within the context of the Open Meeting Law. HRA 310 Minn. at 320, 251 N.W.2d at 624. We described as “notable” a California case that faced a similar issue and quoted from it at length:

“The two enactments are capable of concurrent operation if the lawyer-client privilege is not overblown beyond its true dimensions. As a barrier to testimonial disclosure, the privilege tends to suppress relevant facts, hence is strictly construed. As a barrier against public access to public affairs, it has precisely the same suppressing effect, hence here too must be strictly construed. As noted earlier, the assurance of private legal consultation is restricted to communications ‘in confidence.’ Private clients, relatively free of regulation, may set relatively wide limits on confidentiality. Public board members, sworn to uphold the law, may not arbitrarily or unnecessarily inflate confidentiality for the purpose of deflating the spread of the public meeting law. Neither the attorney’s presence nor the happenstance of some kind of lawsuit may serve as the pretext for secret consultations whose revelation will not injure the public interest. To attempt a generalization embracing the occasions for genuine confidentiality would be rash.”

Id. at 320-21, 251 N.W.2d at 624 (quoting Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 263 Cal.App.2d 41, 69 Cal.Rptr. 480, 492 (1968) (citation omitted)). We emphasized the limited scope of the exception: “Clearly the blind application of the attorney-client privilege in all such cases without guidelines or limitations would potentially jeopardize the public’s right to be informed as required by the Open Meeting Law. Public matters should be discussed openly and freely * * HRA, 310 Minn. at 322, 251 N.W.2d at 625. We cautioned against unfettered application of the exception:

The attorney-client exception discussed herein would almost never extend to the mere request for general legal advice or opinion by a public body in its capacity as a public agency. We cannot emphasize too strongly that should this exception be applied as a barrier against public access to public affairs, it will not be tolerated, for this court has consistently emphasized that respect for and adherence to the First Amendment is absolutely essential to the continuation of our democratic form of government. It will be upheld, however, if the balancing of these conflicting public policies dictates the need for absolute confidentiality. The exception is therefore available to satisfy the concerns expressed herein but is to be employed or invoked cautiously and seldom in situations other than in relation to threatened or pending litigation.

HRA, 310 Minn. at 323-24, 251 N.W.2d at 626.

Almost fourteen years after we decided HRA, the legislature amended the Open Meeting Law to include an attorney-client privilege exception. Act of May 3, 1990, ch. 550, § 2, 1990 Minn. Laws 1517, 1519 (codified at MinmStat. § 13D.05, subd. 3(b)). Respondents and amici curiae note that the 1990 amendment adopted the attorney-client privilege exception without limitation. We therefore address what impact, if any, Minn.Stat. § 13D.05, subd. 3(b), has on the attorney-client privilege exception as set forth in HRA. We are mindful that “[w]e have occasionally permitted a statute to stand as a matter of comity, even where the legislature has encroached somewhat upon a judicial function, so long as the statute does not conflict with this court’s inherent authority to make the final decision.” State by Humphrey v. Jim Lupient Oldsmobile Co., 509 N.W.2d 361, 363 (Minn.1993); see Sharood v. Hatfield, 296 Minn. 416, 424, 210 N.W.2d 275, 279 (1973) (noting that “this court has acquiesced in legislative acts prescribing administrative procedures for admission and discipline of attorneys as long as such acts did not usurp the right of the court to make the final decision”).

The supreme court, as we have noted, has the inherent power to regulate the practice of law. In re Zbiegien, 433 N.W.2d 871, 874 (Minn.1988) (per curiam); Sharood, 296 Minn. at 425, 210 N.W.2d at 280. We exercised this power in HRA to establish the attorney-client privilege exception to the Open Meeting Law. ‘Words and phrases which have acquired an established meaning by judicial construction are deemed to be used in the same sense in a subsequent statute relating to the same subject matter.” Minn. Wood Specialties, Inc. v. Mattson, 274 N.W.2d 116, 119 (Minn.1978); see State v. Gorman, 546 N.W.2d 5, 8 (Minn.1996) (stating that prior judicial efforts to define a term may guide a court’s interpretation of a statute). We do not discern any intent in Minn.Stat. § 13D.05, subd. 3(b), to change the exception from the one recognized by HRA. We therefore conclude that Minn.Stat. § 13D.05, subd. 3(b), is consistent with HRA Pursuant to the rule of HRA the attorney-client privilege exception to the Open Meeting Law applies when the balancing of the purposes served by the attorney-client privilege against those served by the Open Meeting Law dictates the need for absolute confidentiality. HRA, 310 Minn. at 324, 251 N.W.2d at 626.

Because the attorney-client privilege exception to the Open Meeting Law applies only when there is a need for absolute confidentiality, the scope of the privilege is narrower for public bodies than it is for private clients. The Restatement (Third) of the Law Governing Lawyers recognizes that an open meeting law may constrain a public body’s attorney-client privilege:

A narrower privilege for governmental clients may be warranted by particular statutory formulations. Open-meeting and open-files statutes reflect a public policy against secrecy in many areas of governmental activity. Moreover, unlike persons in private life, a public agency or employee has no autonomous right of confidentiality in communications relating to governmental business.

Id. § 74 cmt. b (1998). The considerations recognized in the Restatement make sense to us. Although the attorney-client privilege is available both to public bodies and to private clients, public bodies are subject to the Open Meeting Law whereas private clients are not. The attorney-client privilege is, therefore, available to public bodies as constrained by the Open Meeting Law.

Respondents rely on the final sentence of HRA to interpret the case as an adoption of a per se exception to the Open Meeting Law in cases of threatened or pending litigation. That sentence states: “The exception is therefore available to satisfy the concerns expressed herein but is to be employed or invoked cautiously and seldom in situations other than in relation to threatened or pending litigation.” HRA 310 Minn. at 324, 251 N.W.2d at 626. For the reasons set forth below, we reject respondents’ interpretation.

First, respondents’ interpretation amounts to a bright-line rule, but in HRA we rejected the notion that application of the attorney-client privilege exception to the Open Meeting Law is susceptible to bright-line rules. In fact, we said it would be “rash” to “attempt a generalization embracing” the circumstances in which the exception applies. HRA, 310 Minn. at 321, 251 N.W.2d at 624 (quoting Sacramento Newspaper Guild, 69 Cal.Rptr. at 492). Instead, we endorsed a case-by-case determination as to the exception’s applicability. Id. at 324, 251 N.W.2d at 626. Further, in an order denying a rehearing, we refused to “establish certain controlling procedures and standards” for application of the exception. Id. at 324-25, 251 N.W.2d at 626. In short, we did not adopt bright-line rules as to the exception’s applicability.

Second, the interpretation of the final sentence of HRA urged on us by respondents ignores its context. The preceding sentence endorses a balancing test: “[The attorney-client privilege exception] will be upheld, however, if the balancing of these conflicting public policies dictates the need for absolute confidentiality.” Id. at 324, 251 N.W.2d at 626.

Third, the sentence itself does not state that the exception may always be invoked when litigation is threatened or pending. Instead, it says that the exception is to be invoked “cautiously and seldom in situations other than in relation to threatened or pending litigation.” Id., 251 N.W.2d at 626.

Finally, the fact of threatened litigation does not necessarily mean that a public body has “the need for absolute confidentiality” in its dealings with its counsel. The need for absolute confidentiality is the justification for closing an otherwise open meeting — that was our overriding message in HRA. For these reasons, we cannot agree with respondents’ interpretation of HRA.

Application of HRA to the instant case reveals that the district court erred in its application of the law. First, we analyze the purposes served by the attorney-client privilege in this case. We have described the attorney-client privilege by reference to its statutory formulation and Wigmore’s classic explication:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

8 John Henry Wigmore, Evidence § 2292, at 554 (1961), quoted in Kobluk v. Univ. of Minn., 574 N.W.2d 436, 440 (Minn.1998). The attorney-client privilege exists “ ‘to encourage the client to confide openly and fully in his attorney without fear that the communications will be divulged and to enable the attorney to act more effectively on behalf of his client.’ ” Kobluk, 574 N.W.2d at 440 (quoting Nat’l Texture Corp. v. Hymes, 282 N.W.2d 890, 896 (Minn.1979)).

Here, the record does not reveal what respondents discussed in the closed meeting. Mader suggested that the Council adjourn to discuss Ryan’s threat of litigation. When the Council returned, Mader reiterated that respondents closed the meeting because of Ryan’s threat. Gund-lach, Petersen, and Ericson echoed Mad-er’s reasoning. We have no reason to doubt as a factual matter that respondents sought and received legal advice relating to Ryan’s threat during the closed meeting. As a legal matter the attorney-client privilege exists to facilitate communications between those who seek and those who give legal advice. As we have said, though, the privilege is narrower in the context of the Open Meeting Law and so the analysis cannot end here.

We now turn our attention to the other side of the balance: the purposes served by the Open Meeting Law in this case. We are particularly concerned in the context of this case with “the public’s right to be informed of all actions and deliberations made in connection with activities geared to ultimately affect the public interest.” HRA, 310 Minn. at 318, 251 N.W.2d at 623. The Council had before it the question of whether to require an EAW. When the Council adjourned to executive session, it had not yet decided whether to require the EAW.

The factors that determine whether to require an EAW are detailed and specific. The assessment of litigation risks is not among them. An EAW shall be prepared if a project “may have the potential for significant environmental effects.”. Minn. R. 4410.1100, subp. 6 (2001). To determine whether a project has the potential for significant environmental effects, the following factors are considered: (1) “type, extent, and reversibility of environmental effects”; (2) “cumulative potential effects of related or anticipated future projects”; (3) “the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority”; and (4) “the extent to which environmental effects can be anticipated and controlled as a result of other available environmental studies undertaken by public agencies or the project proposer.” Minn. R. 4410.1700, subp. 7 (2001). The Council did not need information regarding possible litigation with Ryan to determine whether Ryan’s project may have the potential for significant environmental effects. If an appeal were to be taken from the Council’s ultimate decision on the issue of whether to require an EAW, judicial review would be limited to determining whether the Council’s action was unreasonable, arbitrary, or capricious, using the enumerated factors. See Carl Bolander & Sons v. City of Minneapolis, 502 N.W.2d 203, 207 (Minn.1993). That analysis would not depend on “litigation risk.” Thus, the Council arguably inserted an additional, and non-public, factor into its EAW decision.

The fact that Ryan’s threat of litigation was worded partly in terms of “proper handling” of its application for a CUP can be construed simply as an expectation that land-use applicants have in every case — “proper handling.” While Ryan might sue if the Council required an EAW, the denial of an EAW might lead another party, such as the SMSC, to sue. Given the contentious nature of many land-use proceedings, we are concerned about the ramifications of holding that open meetings may be closed to allow council members to meet with an attorney about how to view a threat of litigation relating to a public matter that has yet to be decided. Such a holding might well eviscerate the Open Meeting Law. No doubt public bodies frequently face threats of litigation associated with their decisions. Threats of litigation notwithstanding, the public has a right “to be informed of all actions and deliberations” that affect the public interest. Balancing the policies behind the attorney-client privilege and the Open Meeting Law, it is clear to us that when a public body is deciding a matter within its jurisdiction, the threat that litigation might be a consequence of deciding the matter one way or another does not, by itself, justify closing the meeting.

The attorney-client privilege exception to the Open Meeting Law applies when a public body seeks legal advice concerning litigation strategy. “A basic understanding of the adversary system indicates that certain phases of litigation strategy may be impaired if every discussion is available for the benefit of opposing parties who may have as a purpose a private gain in contravention to the public need as construed by the agency.” HRA, 310 Minn. at 323, 251 N.W.2d at 625.

The record here is devoid of information about how, or whether, the private meeting would contribute to litigation strategy. Respondents did not identify, even in general terms, the type of information whose public disclosure would damage the City’s position in future litigation with Ryan. In contrast, in HRA the record clearly showed that the Housing and Redevelopment Authority (HRA) held closed meetings with its attorney to discuss litigation strategy in a case then pending in the United States District Court. Id. at 315, 251 N.W.2d at 621. An affidavit submitted by the HRA’s attorney revealed that the closed meetings were necessary to protect the HRA’s litigation strategy and to discuss settlement proposals. The affidavit stated in part:

“3. That after motions were argued before Judge Miles Lord in United States District Court on April 21, 1975 regarding proceedings with the Cedar-Riverside environmental litigation, our office, as attorneys for the Authority, felt it imperative that we meet with our clients to discuss some of the questions that had been raised thereby and the alternatives available to us in that litigation. Accordingly, on April 23, 1975, [HRA’s attorneys] recommended a meeting with the Commissioners to discuss trial strategy and further recommend[ed] that said meeting be closed to the public and the press.
“4. That before said April 23 meeting, I explained to plaintiff * * * the reasons for which we were recommending that he be excluded.
“5. That the meeting was then held and matters discussed related solely to Cedar-Riverside environmental litigation strategy.
“6. That as general counsel to the Housing Authority we have exercised extreme caution in the recommendation of or participation in closed meetings. This has been because of the ultimate remedy of ‘ouster’ which exists in the Minnesota Open Meeting Law. On April 29, 1975, we received an offer of settlement of the Cedar-Riverside environmental litigation from [an] attorney for the Cedar-Riverside Defense Fund. On May 6,1975, a committee of the Housing Authority had on its meeting agenda this settlement offer. At the meeting, I advised the Commissioners of the offer, stated that it was my professional opinion that it would not be in the best interests of the Authority to discuss the settlement in the presence of the opposition, but stated that until the Open Meeting Law was clarified, I did not feel that I could recommend another closed meeting at that time. As a result, the Cedar-Riverside litigation item was removed from the agenda.
“7. That it is my opinion that our obligation as attorneys cannot be fulfilled unless we confidentially confer with our clients regarding this lawsuit. At the same time, it is our opinion that it would be extremely detrimental to the Authority to discuss trial strategy and settlement proposals in the presence of our litigating opposition. Failure to recognize an attorney-client privilege in this and similar matters will have a significant negative impact upon the Authority’s ability to effectively deal with litigation matters such as the Cedar-Riverside environmental suit.”

HRA, 310 Minn. at 316-17, 251 N.W.2d at 622. We recognized in HRA that “[t]he advisory meetings with the attorney were necessary to perhaps attain a settlement ultimately beneficial to the agency, the individual, and the general public.” Id. at 323, 251 N.W.2d at 625.

In avoiding bright-line rules as to timing, we have technically left open the possibility that the attorney-client privilege might legitimately be invoked before a substantive decision is made on the public issue before the public body. However, we note that invocation of the attorney-client privilege under such circumstances is fraught with peril. First, as we have emphasized today, the public has a right to be informed of all actions and deliberations made in connection with activities ultimately geared to affect the public interest. Id. at 318, 251 N.W.2d at 623. Moreover, the public’s input and its knowledge of the bases for the decisions of its elected officials lie at the heart of a democratic government. Rooted in the separation of powers doctrine, judicial review of the decisions of public bodies is limited. If a public body closes its deliberations to obtain confidential advice of counsel during the course of its work on a public issue, review of its ultimate decision for arbitrariness and capriciousness is nearly impossible and the attorney-client exception could swallow the rule of public access.

The balancing of the policies served by the attorney-client privilege and the Open Meeting Law does not dictate the need for absolute confidentiality in this case. We hold, therefore, that respondents violated the Open Meeting Law when they closed the February 7, 2000, Council meeting. Because the lower courts found no such violation, they did not consider what remedies to impose, if any. Accordingly, we remand the case to the district court.

Reversed and remanded.

GILBERT, Justice

(dissenting).

I respectfully dissent from the majority opinion. In light of the undisputed fact that there was a specific threat of litigation made by the developer of the property at issue, allowing a short time-out for the city officials to consult privately with the city attorney seems to be the most reasonable course of action. In a letter, Ryan Contracting Co. (Ryan) alleged severe financial harm as a result of the city’s revocation of its gravel removal and grading permit. Ryan’s letter went on to threaten legal action to recover lost revenues and/or costs if the city decided to either deny its request for a conditional use permit (CUP) or require an environmental assessment worksheet (EAW).

The council’s first opportunity to consider Ryan’s letter took place at its regularly scheduled meeting on February 7, 2000. At that meeting, there were two resolutions before the council: one to deny the EAW and one to approve the CUP. The council had tabled the CUP application at its prior meeting after it learned that the Environmental Quality Board had received a petition for an EAW and that no further action could be taken on the CUP until the council determined whether to require an EAW.

Ryan’s threat of litigation related to the same project, the same development permit, and the same responsible government unit and involved environmental and non-environmental issues. The letter threatened specific legal action and was a direct, relevant, and material legal matter intertwined with the revocation of Ryan’s 1997 and 1998 grading permits and its request for a CUP allowing gravel extraction on its property.

There is no allegation that Ryan’s threat of litigation was frivolous. It is undisputed that the district court found that there was a specific threat of litigation and that the council needed advice from its attorney relating to that specific situation. The district court held that this type of advice rose above the level of mere general legal advice, that the mayor and council members demonstrated a need to discuss the matter with the city attorney in confidence, and that this need outweighed the public’s right to access. Minnesota statutes and our precedent allow for the closure of public meetings when permitted by the attorney-client privilege. Minn.Stat. § 13D.05, subd. 3(b) (2000); Minneapolis Star & Tribune Co. v. Hous. & Redev. Auth., 310 Minn. 313, 323, 251 N.W.2d 620, 625 (1976). The majority opinion wrongfully singles out one reason for open meetings — “the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government” — but then ignores both the facts of this case and the equally compelling fundamental proposition that, in a democratic society, citizens should be encouraged to participate in governmental functions as elected officials. When there is a real threat of litigation relating to their decisions, they should be allowed to seek legal counsel. This fundamental proposition is particularly compelling when, as here, the threatened litigation includes claims for damages against the city itself and potential statutory liability for individual council members.

Our citizen taxpayers expect their city council members to be prudent in exercising their judgment. When faced with a specific threat of litigation, it is prudent for a city council to seek timely advice from its counsel. Without legal advice, the council may fail to take proper legal considerations into account in making its decision and unwittingly expose its taxpayer constituents to potentially millions of dollars of damages.

This case does not come close to representing the blind application of the attorney-client privilege to all cases. The record demonstrates that the privilege was invoked only in response to a specific, written threat of litigation that included a claim for damages. This minimal intrusion on the principle of open meetings is the responsible reaction to an increasingly litigious society in which city councils are brought into court on a regular basis to defend themselves and/or pay damages for wrongful conduct.

I submit that when there is a bona fide threat of specific litigation, there is also a corresponding need to recognize the importance of timely and confidential attorney-client communications between public servants and their counsel. The majority opinion fails to deal with the facts of this case, which are uncontested with respect to the written threat of specific litigation. Although the majority purports to discard a bright-line rule in favor of a case-by-case approach, it in fact adopts a bright-line rule that applies irrespective of the specific facts of the case. Under the majority’s analysis, the threat of litigation would never justify a public body’s decision to close a public meeting to obtain confidential legal advice from its attorney. This case presents one of the rare situations in which we must balance the public policy of favoring open meetings against the need for absolute confidentiality. Furthermore, there is no basis for discounting or ignoring the threat of litigation in this analysis. In fact, we have declined to make a distinction between threatened and pending litigation in the past. See Minneapolis Star & Tribune Co., 310 Minn. at 324, 251 N.W.2d at 626. The record in the case at bar reflects that the only item that prompted the closed session with counsel was the threat of litigation.

In support of its decision, the majority-attempts to isolate the EAW decision from other actions impacting Ryan’s project, i.e., the grading and extraction permit and the CUP. The majority states that “[t]he factors that determine whether to require an EAW are detailed and specific. The assessment of litigation risks is not among them.” However, in this case, the city had already issued a grading permit for the property at issue and then summarily revoked the permit. The EAW was considered only in the context of Ryan’s CUP application and the validity of the city’s revocation of Ryan’s grading permit. Indeed, these other decisions directly impact the EAW as to the type, extent, and reversibility of any environmental effects and the cumulative potential effects of related or anticipated future projects, such as the site that was being graded immediately adjacent to Ryan’s property. The majority then concludes that “[t]he Council did not need information regarding possible litigation with Ryan to determine whether Ryan’s project may have the potential for significant environmental effects.” The majority’s great concern with the open meeting principle throws out of balance the ramifications of disallowing an attorney-client privilege exception to the Open Meeting Law. Such an exception would allow the council to close its meeting to discuss how to assess a collaterally related threat of litigation arising from the grading permit revocation and the CUP. Moreover, our citizens expect more of then-elected officials and the attorneys who advise them when they are faced with a specific threat of litigation. Importantly, all of these matters — including the grading permit, the CUP, and the EAW — were within the city’s jurisdiction. We should not splice out segments of these governmental actions and review them in isolation, but rather look to the context of the whole picture. Furthermore, contrary to the majority’s assertion, the fact that the threatened litigation is contingent upon a public matter pending before the council should have no bearing on this analysis.

In a practical sense, the majority either forces a city council to proceed with their business and avoid discussing the threatened litigation or, alternatively, to conduct a public discussion of the threatened litigation with their city attorney in an open meeting. Such a discussion would force the city attorney to become a witness in any litigation that ensues. It may also require the city to seek outside counsel because of the conflict that is created when the city attorney becomes a material -witness in the litigation. See Minn. R. Prof. Conduct 3.7 (stating the general rule that a “lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness”). Having closed sessions with an attorney to discuss settlement or ultimate strategy involving actual litigation is obviously not the sole purpose of having confidential communications with an attorney. The attorney’s advice can also be used in anticipation of litigation and in mitigation of potential damages. The availability of confidential advice from an attorney to a representative of a public body assists the making of informed decisions and prevents legal mistakes. Such advice should be deemed by this court to be appropriate preventive legal medicine that justifies the invocation of the attorney-client privilege.

The majority remands this case to the district court, commenting that “because the lower courts found no such violation [of the Open Meeting Law], they did not consider what remedy to impose, if any.” The potential consequences of intentionally violating the Open Meeting Law are serious. In this case, the city council obviously intended to close its meeting to the public to discuss with its attorney the ramifications of the threatened litigation in the context of this very complex land development situation. The record also reflects that the council was fully aware of the Open Meeting Law. One council member voted against the closure and, in addition, a member of the media challenged the closure. Upon remand now, the district court may have to consider whether to assess a civil penalty of up to $300 against the individual council members, “which may not be paid by the public body.” Minn.Stat. § 13D.06, subd. 1 (2000). An action to enforce this penalty may be brought by “any person.” Id., subd. 2. Moreover, if an individual intentionally violates the Open Meeting Law on three or more occasions, the individual must forfeit his or her office. Id., subd. 3. In addition to other remedies, the court may award reasonable costs, disbursements, and reasonable attorney fees up to $13,000 to any party. Id., subd. 4. Although the city “may pay any costs, disbursements, or attorney fees incurred by or awarded against any of its [city council] members,” id., subd. 4(c), it is not required to do so. It is true that these monetary penalties and attorney fees can be awarded against a council member only if the court finds that there was a specific intent to violate the Open Meeting Law. Id., subd. 4(c). Yet this rule does not remove the possibility that council members will have to individually defend themselves and incur personal liability if the city chooses not to indemnify them. The city may also incur further costs in defending such actions and then paying out an ultimate award. The taxpayers again may end up footing the bill on these additional costs and expenses. Could there be a closed meeting to discuss possible disposition of these further claims? Or would that discussion have to take place in a public meeting?

Anything short of affirming the decision of the lower courts will jeopardize our citizens’ trust and confidence in the decisions under consideration by public bodies and may even discourage our citizens from serving in an elected capacity. This service is essential in our democratic form of government. Finally, if a mistake is made and the city unknowingly or unwittingly makes a legal blunder because of its inability to consult with its attorney in private, the taxpayers are the ones who really lose. The balance needed in our system compels allowing our city officials to meet and discuss a specific threat of litigation in confidence with their attorney. We have thousands of public bodies meeting throughout the state on a regular basis. These entities are dealing with ever-more complex issues that often end up in court. We must be mindful of exposing our individual city council members and public bodies to damages and the enormous costs of defending such litigation. A short recess to consider preventative legal remedies provides the proper balance to these important, competing public interests when there is a bona fide threat of litigation.

      . The complaint named Wes Mader in his capacity as Mayor of the City of Prior Lake and James Ericson, Michael Gundlach, and James Petersen, in their capacity as members of the Prior Lake City Council, as defendants. The complaint did not name council member Pete Schenck, who opposed the meeting's closure and did not participate in the executive session, as a defendant.

      . The record does not state who petitioned for an EAW. In a letter to the City dated October 7, 1999, the SMSC asked the City to require an EAW. In its January 18, 2000, letter, Ryan characterized the petition as "produced under the direction of the [SMSC].”

      . Consideration of whether to approve Ryan's CUP application was not on the agenda. The staff’s recommendation to approve it surprised Mader and Schenck. Schenck stated, "I wasn’t prepared to talk CUP tonight * ⅜ * >> Mai¿er said, "I was looking primarily at the EAW issue as being the thing we were going to discuss, and I didn’t discover until late today * * * that the resolution [to approve Ryan's CUP application] was also in [the staff's report].”

      . The complaint also sought a declaration that respondents violated Minn.Stat. § 15.17, subd. 1 (2000), when they removed Schütz's objection to the meeting’s closure from the minutes of the February 7, 2000, meeting, and an order requiring respondents to restore the record of the objection. This claim is not before the court.

      . "A popular Government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps, both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 3 Letters and Other Writings of James Madison 276, 276 (Philadelphia, J.B. Lippincott & Co. 1865).

      . The Open Meeting Law appeared at section 471.705 until a recent recodification.

      . "An attorney cannot, without the consent of the attorney’s client, be examined as to any communication made by the client to the attorney or the attorney’s advice given thereon in the course of professional duty * * *, without the client’s consent.” Minn.Stat. § 595.02, subd. 1(b) (2000).

      . A brief review of our opinions from the past several years reveals suits against cities arising out of a wide range of decisions. See, e.g., Conlin v. City of Saint Paul, 605 N.W.2d 396, 399 (Minn.2000) (motorcyclist injured in tip-over alleges city was negligent in failing to inspect and maintain street, creating the hazardous condition, and failing to warn of the dangerous condition); Johnson v. City of Eagan, 584 N.W.2d 770, 771 (Minn.1998) (landowners challenge city-imposed lateral benefit water fee); Country Joe, Inc. v. City of Eagan, 560 N.W.2d 681, 682 (Minn.1997) (home building contractors challenge city’s decision to impose road unit connection charge as a condition of issuance of building permits); Zeman v. City of Minneapolis, 552 N.W.2d 548, 550 (Minn.1996) (property owner challenges city's revocation of rental dwelling license); Wheeler v. City of Wayzata, 533 N.W.2d 405, 405 (Minn.1995) (landowners seek declaration of the invalidity of city’s zoning ordinances); Knudtson v. City of Coates, 519 N.W.2d 166, 167 (Minn.1994) (bar owner challenges constitutionality of city ordinances prohibiting nudity in licensed liquor establishments); Carl Bolander & Sons, 502 N.W.2d at 206 (after city council ordered preparation of an EAW, applicant seeks order requiring city to grant license without preparation of an EAW); Krmpotich v. City of Duluth, 483 N.W.2d 55, 55-56 (Minn.1992) (citizens group seeks declaratory judgment that retail project would violate Minnesota Environmental Rights Act if completed according to city council’s rezoning); Northpointe Plaza v. City of Rochester, 465 N.W.2d 686, 686-87 (Minn.1991) (property owner alleges violation of due process rights arising from city’s refusal to grant conditional use permit).

      . In Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977), we stated:
      We have consistently viewed with disfavor statutes which specify trials de novo and which attempt to confer original jurisdiction on trial courts over policy matters which are the responsibility of the legislative and executive branches. * * * We have repeatedly called attention to the danger of eroding the barriers which guarantee the separation of powers.

      . In Village of Edina v. Joseph, 264 Minn. 84, 93, 119 N.W.2d 809, 815 (1962), we stated:
      We have repeatedly said with respect to the decisions of municipal and other governmental bodies having the duty of making decisions involving judgment and discretion that it is not the province of the court to substitute its judgment for that of the body making such a decision, but merely to determine whether that body was within its jurisdiction, was not mistaken as to the applicable law, and did not act arbitrarily, oppressively, or unreasonably, and to determine whether the evidence could reasonably support or justify the determination.

      . Reliance on factors that the legislature did not intend a public body to consider renders the body’s decision arbitrary and capricious. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Reliance on secret advice thwarts review of whether the decision is arbitrary and capricious because the court cannot determine what the public body considered.

      . There are 87 counties, 854 cities, and 1,792 townships in Minnesota.


source: Caselaw Access Project

author: LANCASTER, Justice.

license: Public Domain

text:
    Jeffrey T. WALKER, individually and as Mayor of Cohasset, et al., Petitioners, Appellants, v. Itasca County Auditor Robert ZUEHLKE, et al., Respondents.
    No. C9-00-1863.
    Supreme Court of Minnesota.
    May 2, 2002.

      Phillip R. Krass, Krass Monroe, P.A., Bloomington, Appellants’ Attorney(s).
    Mike Hatch, Attorney General, Bradford S. Delapena, James W. Neher, Asst. Attorneys General, St. Paul, Respondents’ Attorney(s).
   OPINION

LANCASTER, Justice.

The issue before us is whether Minn. Stat. ch. 276A (1998), commonly referred to as the Range Fiscal Disparities Act (RFDA), violates the Uniformity Clause of the Minnesota Constitution, Minn. Const, art. X, § 1. The district court held the RFDA violates the Uniformity Clause, finding no reasonable relationship between the benefits and burdens of the RFDA. The court of appeals reversed. Walker v. Itasca County Auditor, 624 N.W.2d 599, 603 (Minn.App.2001). We affirm.

Appellant Jeffrey Walker resides in and is the mayor of Cohasset, Minnesota. He is also a general partner in appellant J.R. Properties. J.R. Properties owns commercial property in Grand Rapids, Minnesota. Both appellants pay taxes on their respective properties. On September 14, 1998, appellants filed suit against the State of Minnesota to challenge the constitutionality of the RFDA.

We begin with a review of relevant legislation affecting northeast Minnesota, known informally as the “Iron Range,” to place the RFDA in context. For more than 60 years, the legislature has recognized the potential for economic hardship in northeast Minnesota due to the region’s dependence on the mining industry. In 1941, the Office of Commissioner of Iron Range Resources and Rehabilitation was established to alleviate “distress and unemployment * * * by reason of the removal of natural resources and the decrease in employment resulting therefrom.” Act of Apr. 28, 1941, ch. 544, § 4, 1941 Minn. Laws 1077, 1078-79 (codified as amended at MinmStat. § 298.22, subd. 1 (2000)); see Act of June 2, 1977, ch. 423, art. 10, §§ 25-28, 1977 Minn. Laws 1009, 1079 (codified as amended at Minn.Stat. §§ 298.291-.294 (1998)) (establishing northeast Minnesota economic protection fund).

Also in 1941, the legislature enacted a tax on taconite production in lieu of local property taxes. Act of Apr. 22, 1941, ch. 375, §§ 2-3, 1941 Minn. Laws 692, 692-93 (codified as amended at Minn.Stat. §§ 298.24- 25 (1998)). Originally, the municipalities, counties, and school districts from which the taconite was taken shared the tax proceeds with the state. Minn. Stat. § 298.28 (1941). The legislature has since allocated the tax proceeds to several more funds and organizations. We summarize them, in relevant part, below.

Several changes to the allocation of the taconite production tax depend on an area known as the Taconite Tax Relief Area (TTRA), which the legislature created more than 30 years ago. Act of May 31, 1969, ch. 1156, § 4, 1969 Minn. Laws 2645, 2648-49 (codified as amended at Minn. Stat. § 273.134 (1998)). The TTRA includes the area within the boundaries of a school district that contains a municipality “in which the assessed valuation of un-mined iron ore on May 1, 1941, was not less than 40 percent of the assessed valuation of all real property” or “in which, on January 1, 1977 or the applicable assessment date, there is a taconite concentrating plant or where taconite is mined or quarried or where there is located an electric generating plant which qualifies as a taconite facility.” Minn.Stat. § 273.134. The TTRA includes all or parts of Cook, Lake, St. Louis, Itasca, Aitkin, Crow Wing, and Koochiching Counties.

At the same time as the TTRA’s creation, the legislature allocated part of the taconite production tax proceeds to the taconite property tax relief account. Act of May 31, 1969, ch. 1156, § 2, 1969 Minn. Laws 2645, 2646-48 (codified as amended at Minn.Stat. § 298.28, subd. 6 (1998)). Homestead property within the TTRA is subject to a reduced tax. Minn.Stat. § 273.185, subds. 1-2 (1998). The taconite property tax relief account replaces revenues lost because of the reduction of homestead property taxes. Minn.Stat. § 273.136, subds. 1-2 (1998).

In 1977, the legislature assigned a portion of the taconite production tax to the taconite municipal aid account, the Iron Range Resources and Rehabilitation Board (IRRRB), the taconite environmental protection fund, and the northeast Minnesota economic protection fund. Act of June 2, 1977, ch. 423, art. 10, § 16, 1977 Minn. Laws 1009, 1073-76. The taconite municipal aid account is distributed to municipalities within the TTRA. Minn.Stat. § 298.282, subd. 1 (1998). Funds allocated to the IRRRB from the taconite production tax must be used in or for the benefit of areas within the TTRA. Minn.Stat. § 298.28, subd. 7 (1998). The commissioner of the IRRRB may use the funds to develop a county’s remaining resources and train its residents upon a determination that distress and unemployment exist or may exist by reason of the removal or possibly limited use of natural resources. Minn.Stat. § 298.22, subd. 1(3). The taco-nite environmental protection fund exists to reclaim, restore, and enhance areas within the TTRA “that are adversely affected by the environmentally damaging operations involved in mining taconite and iron ore and producing iron ore concentrate and for the purpose of promoting the economic development of northeast Minnesota.” Minn.Stat. § 298.223, subd. 1 (1998). Funds allocated to the northeast Minnesota economic protection trust fund from the taconite production tax may only be used in or for the benefit of the TTRA. Minn.Stat. § 298.292, subd. 2 (1998). The fund is devoted to economic rehabilitation and diversification of areas adversely affected by the decline of an industry on which the area is dependent. Id., subd. 1.

In 1978, the legislature added the range association of municipalities and schools to the list of recipients of the taconite production tax. Act of Mar. 31,1978, ch. 721, art. 9, § 3, 1978 Minn. Laws 734, 751-55 (codified as amended at Minn.Stat. § 298.28, subd. 8 (2000)). Funds are allocated to the association from the taconite production tax

for the purpose of providing an areawide approach to problems which demand coordinated and cooperative actions and which are common to those areas of northeast Minnesota affected by operations involved in mining iron ore and taconite and producing concentrate therefrom, and for the purpose of promoting the general welfare and economic development of the cities, towns, and school districts within the iron range area of northeast Minnesota.

Minn.Stat. § 298.28, subd. 8.

As of late 1999, St. Louis County held approximately 90% of the present total effective capacity of Minnesota’s taconite industry and Itasca County held approximately 10%. Currently, the recipients of the taconite production tax include: (1) TTRA municipalities, id., subds. 2-3; (2) TTRA school districts, id., subd. 4; (3) counties where taconite is mined, quarried, or concentrated, id., subd. 5; (4) the taco-nite property tax relief fund, id., subd. 6; (5) the IRRRB, id., subd. 7; (6) the range association of municipalities and schools, id., subd. 8; (7) the northeast Minnesota economic protection trust fund, id., subd. 9; (8) the taconite economic development fund, id., subd. 9a; and (9) the taconite environmental fund, id., subd. 9b.

The legislature enacted the RFDA in 1996. Act of Apr. 12,1996, ch. 471, art. 11, §§ 3-11, 1996 Minn. Laws 1717, 1865-72 (codified as amended at Minn.Stat. ch. 276A). The RFDA is similar to Minn.Stat. ch. 473F (1998), commonly referred to as the Metropolitan Fiscal Disparities Act (MFDA), which was enacted more than 30 years ago. Act of July 23, 1971, ch. 24, §§ 1-13, 1971 Minn. Laws 2286. We upheld the constitutionality of the MFDA against a Uniformity Clause challenge in Village of Burnsville v. Onischuk, 301 Minn. 137, 222 N.W.2d 523 (1974).

The RFDA imposes a limited form of commercial-industrial tax base sharing within the TTRA. Each municipality within the TTRA that experiences growth in its commercial-industrial tax base after 1995 contributes 40% of that growth to a pool. Minn.Stat. §§ 276A.04-.05 (2000). The pool is allocated to each municipality according to an index calculated in direct relation to the municipality’s population and in inverse relation to its fiscal capacity. The tax base sharing imposed by the RFDA effectively redistributes tax revenues across the TTRA.

Having discussed the relevant statutory provisions, we turn our attention to the proceedings below. After trial, the district eourt held that the RFDA violates the Uniformity Clause. The district court’s analysis centered on our decision in Onis-chuk. The district court interpreted Onis-chuk “as recognizing that under the law at the time of that decision, the MFDA would have been unconstitutional but for the Supreme Court’s decision to apply an expanded definition of the term ‘benefit.’ ” The district court read Onischuk to expand the definition of “benefit” to one that includes “the benefits derived from living in a highly structured and interdependent commercial-industrial area.”

The district court devoted a substantial portion of its Findings of Fact to distinctions between the Iron Range and the Twin Cities metropolitan area. The distinctions led the district court to conclude that “[t]he reasons which gave rise to the MFDA simply do not apply in the TTRA. The MFDA clearly was passed to address and control issues that the two core cities had concerning the supplying of services, a job base, transportation, the environment, etc.” The district court found that TTRA communities are not interdependent:

[Communities within the TTRA are not interdependent and * * * they share few, if any, reciprocal benefits. The evidence shows that expansion of commercial-industrial property in Lake or Cook counties does not confer any benefit on Aitkin or Itasca county, or vice-versa. For that matter, there is no evidence that such development imposes any burden on communities separated by such great distances. In this time of modern transportation and communications the Court recognizes that development and the creation of jobs anywhere within the TTRA has some positive impact on the region’s overall economy. However, there is also some positive impact on the economy in the TTRA when there is commercial-industrial development and job creation in Duluth, Brainerd, or even the Twin Cities or Winona.

The district court reached a similar conclusion with respect to tax expenditures: “[J]ust as the evidence that development in one portion of the TTRA does not confer any benefit on other, especially distant, portions of the TTRA, the expenditure of tax dollars in one community does not benefit other, distant communities.”

The district court rejected respondents’ argument that the IRRRB and the distribution of the taconite production tax create interdependence within the TTRA. First, the district court characterized the distribution of the taconite production tax within the TTRA as a legislative creation that creates “a sort of pseudo-interdependence among communities that are otherwise fiercely independent.” In contrast, the metro area’s interdependence “grew without legislative interference.” Second, the district court found that the proper consideration to determine the constitutionality of a tax is the relationship between the benefits derived from and the burdens imposed by the challenged tax. The district court also concluded that the burdens and the benefits of unrelated legislation are not appropriate to consider when determining the constitutionality of a tax.

The court of appeals reversed, concluding that the RFDA does not violate the Uniformity Clause. Walker, 624 N.W.2d at 603. The court of appeals found that the district court had “focused too narrowly upon the factual environment in Onis-chuk” Walker, 624 N.W.2d at 602. Although it acknowledged that communities within the TTRA, unlike those in the Twin Cities metropolitan area, do not derive benefits from social and economic integration, the court of appeals concluded that TTRA communities derive substantial benefits from the distribution of the taco-nite production tax that justify the burdens imposed by the RFDA. Id. at 602-03.

The court of appeals rejected the district court’s conclusion that the RFDA was “unrelated” to the distribution of the taconite production tax. Walker, 624 N.W.2d at 603. Instead, the court of appeals characterized the RFDA as “a natural outgrowth of the TTRA — the sharing of the taconite production tax revenue finances the economic development efforts that help produce the growth in the commercial-industrial property tax base.” Walker, 624 N.W.2d at 603. It was also the court of appeals’ view that we had already decided the issue: “[T]he Minnesota Supreme Court has already held that the benefits of sharing the taconite production tax may be used to support an extension, in separate legislation, of revenue sharing within the TTRA.” Id. (citing In re United States Steel Corp., 324 N.W.2d 638, 645 (Minn.1982)).

The constitutionality of a statute is a question of law subject to de novo review. Westling v. County of Mille Lacs, 581 N.W.2d 815, 819 (Minn.1998). We presume that statutes are constitutional. Scott v. Minneapolis Police Relief Ass’n, 615 NW.2d 66, 73 (Minn.2000); In re Welfare of D.L., 486 N.W.2d 375, 379 (Minn.1992). Therefore, “we exercise our power to declare a statute unconstitutional with extreme caution and only when absolutely necessary.” Boutin v. LaFleur, 591 N.W.2d 711, 714 (Minn.1999). A party challenging a statute’s constitutionality must establish beyond a reasonable doubt that the statute is unconstitutional. Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 299 (Minn.2000); McGuire v. C & L Rest. Inc., 346 N.W.2d 606, 611 (Minn.1984).

We review the RFDA, like all tax legislation, with great deference to the legislature: “Because taxation policy is peculiarly a legislative function, involving political give-and-take and an awareness of local conditions, the courts are very deferential in their review of tax legislation.” Metro. Sports Facilities Comm’n v. County of Hennepin, 478 N.W.2d 487, 489 (Minn.1991). We find the United States Supreme Court’s explanation of the reasons for judicial deference to the legislative branch with respect to tax policy particularly instructive:

“The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized .... [T]he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies.... It has ... been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes.... ”
* * * No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause.

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 40-41, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (quoting Madden v. Kentucky, 309 U.S. 83, 87-88, 60 S.Ct. 406, 84 L.Ed. 590 (1940)) (citations omitted).

The Uniformity Clause of the Minnesota Constitution provides that “[tjaxes shall be uniform upon the same class of subjects.” Minn. Const, art. X, § 1. In 1906, the people of Minnesota amended the constitution to adopt the Uniformity Clause. The purpose of the amendment was “to relieve the legislature of the rather narrow restrictions theretofore placed upon that branch of the government by the constitution and to enlarge its powers in regard to taxation.” Reed v. Bjornson, 191 Minn. 254, 258, 253 N.W. 102, 104 (1934). “The fair adjustment of tax burdens under rapidly changing social conditions demanded more comprehensive powers in the legislature; and the people, relying upon the responsibility of that body to its constituents, relaxed the restraints theretofore existing.” Id. at 259, 253 N.W. at 104.

The Uniformity Clause does not require absolute equality of taxation; it requires only that a reasonable relationship exist between the burdens and benefits of a tax:

Absolute equality of taxation is never attained. In all segments of the population there are those who must pay taxes for a purpose from which, it might be argued, they derive no direct benefit. But absolute equality has never been required. If there is a reasonable relationship to the apportionment of the taxes and the benefit to be derived by that segment of our population required to bear the financial burden, it lies within the province of the legislature to make such apportionment.

Visina v. Freeman, 252 Minn. 177, 195, 89 N.W.2d 635, 650 (1958). Thus, the issue before us is whether those units of government within the TTRA that contribute more of their tax base to the pool than is redistributed to them in a given year receive sufficient benefits to satisfy the constitutional requirement of uniformity.

We begin our analysis with Onischuk because there we analyzed the constitutionality of the MFDA, which is the statutory foundation of the RFDA. The parties offer conflicting interpretations of Onis-chuk. Appellants maintain that Onischuk “carved out a limited exception” to the Uniformity Clause for metropolitan areas. Respondents contend that Onischuk “simply applied general uniformity principles to the particular facts before it.”

In Onischuk, we acknowledged that a literal reading of our prior opinions indicated that the MFDA violated the Uniformity Clause. Onischuk, 301 Minn. at 149, 222 N.W.2d at 530. Our decision to uphold the constitutionality of the MFDA “hinge[d] on what we deem[ed] to be a developing concept of the meaning of the word ‘benefit.’ ” Onischuk, 301 Minn. at 149, 222 N.W.2d at 530. We stated that “fi]n a seven-county area which is heavily populated, * * * it is no longer necessary for units of government providing tax revenues to receive the kind of tangible and specific benefits to which our court has previously referred in order to satisfy the uniformity clause.” Onischuk, 301 Minn. at 149, 222 N.W.2d at 530. We recognized the “high degree of mobility and political, social, and economic interdependence” within the Twin Cities metropolitan area. Id. at 152, 222 N.W.2d at 532. We acknowledged the theory underlying the MFDA is that “the residents of highly developed commercial-industrial areas do enjoy direct benefits from the existence of adjacent municipalities which provide open spaces, lakes, parks, golf courses, zoos, fairgrounds, low-density housing areas, churches, schools, and hospitals.” Onischuk, 301 Minn. at 153, 222 N.W.2d at 532. We concluded that the MFDA satisfied the Uniformity Clause. Onischuk, 301 Minn. at 153-54, 222 N.W.2d at 532-33.

Appellants argue, as already noted, that Onischuk created a “metropolitan area” exception to the Uniformity Clause; however our decision in that case turned on the developing concept of the term “benefit.” The distinctions between the TTRA and the Twin Cities metropolitan area, therefore, do not persuade us that the RFDA violates the Uniformity Clause.

We have already upheld tax revenue sharing within the Iron Range. In United States Steel, we held that the distribution to the IRRRB of taxes on omitted iron ore did not violate the Uniformity Clause. United States Steel, 324 N.W.2d at 645. In that case, Itasca County and U.S. Steel argued that “the proceeds of an ad valo-rem tax must benefit only the taxing districts where the taxed property is located.” Id. at 644. We rejected this argument because Itasca County was a likely candidate for IRRRB assistance:

The principle thrust of the IRRRB Act is directed at mining areas where the removal of natural resources contributes to decreased employment and distressed economy. Which mining operations will be curtailed or shut down and for what periods of time are unpredictable. A number of iron ore producing counties and municipalities are equally vulnerable, after enjoying equal benefits for decades of successful operation. To say that Itasca County is unconstitutionally deprived of benefits because taxes realized from its mines can be used not only to meet its obligations and relieve its distress, but to relieve the distress of other areas similarly situated, is to ignore the proliferating interdependence of one community with another in a highly structured economy.

United States Steel, 324 N.W.2d at 644.

In addition, as we observed almost 20 years ago, “the traditionally rigid standards governing what constitutes burdens and benefits have been considerably relaxed in this state.” Id. Although the present effective capacity of Minnesota’s taconite industry is now found only in St. Louis and Itasca Counties, all communities within the TTRA continue to enjoy benefits from the taconite production tax. The distribution replaces lost revenue because of homestead property tax relief within the TTRA. Municipalities, school districts, and counties within the TTRA receive a portion of the tax. Recognizing the potential for economic hardship because of the region’s dependence on a single industry, the legislature established several organizations and funds to rehabilitate areas adversely affected by the mining industry, to foster economic growth, and to diversify the region’s economy, and allocated part of the taconite production tax to these organizations and funds. Where the taconite production tax has been distributed among the communities of the TTRA and that revenue sharing has spurred more commercial-industrial growth in some communities than in others, it is reasonable for the legislature to direct that a portion of the increase in commercial-industrial property tax base generated by that growth be shared among the communities within the TTRA. We hold, therefore, that the RFDA does not violate the Uniformity Clause.

Affirmed.

      . On November 9, 1998, appellants filed an amended complaint. The amended complaint differed from the original complaint by adding the auditors of Itasca, St. Louis, Aitkin, Cook, Lake, and Crow Wing Counties as defendants.
      The City of Cohasset also joined the complaints as a plaintiff, but was dismissed for lack of standing.

      . A municipality’s fiscal capacity is "its valuation, determined as of January 2 of any year, divided by its population, determined as of a date in the same year.” Minn.Stat. § 276A.01, subd. 12 (2000). "Valuation” is "the market value of real and personal property within a municipality.” Id., subd. 11.

      . For a detailed explanation of how the MFDA and the RFDA operate, see Minnesota House of Representatives Research Department, Minnesota's Fiscal Disparities Programs (2000).

      .The district court found that the distinctions between the two regions include their geographic areas, populations, population densities, planning authorities, transportation systems, authority to regulate wastewater treatment, authority to regulate airports, and commuting patterns.

      . Before the 1906 amendment, the constitution stated: "All Taxes to be raised in this State shall be as nearly equal as may be, and all property on which Taxes are to be levied shall have a cash valuation, and be equalized and uniform throughout the State.” Minn. Const, of 1857, art. IX, § 1.


author: KLAPHAKE, Judge.

text:
    STATE of Minnesota, Respondent, v. Corey Lowell ZIMMER, Appellant.
    No. C2-01-998.
    Court of Appeals of Minnesota.
    April 16, 2002.

      Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St Paul, Thomas G. Kramer, Yellow Medicine County Attorney, Keith Helgeson, Assistant County Attorney, Granite Falls, for respondent.
    John M. Stuart, State Public Defender, Minneapolis, Michael C. Davis, Special Assistant State Public Defender, St. Paul, for respondent
    Considered and decided by RANDALL, Presiding Judge, LANSING, Judge, and KLAPHAKE, Judge.
   OPINION

KLAPHAKE, Judge.

Appellant Corey Lowell Zimmer appeals from a conviction for third-degree controlled substance crime, contending that the deputy sheriff who stopped him for speeding and obtained his consent to search his vehicle for open containers, did not have consent to search a small transparent pill vial that the sheriff found under the driver’s seat. Because we conclude that the search was authorized by consent and that the plain view exception applied, and because the incriminating nature of the vial was immediately apparent, we affirm.

FACTS

On the evening of December 19, 2000, Deputy Sheriff Wayne DeBlieck was on patrol near Granite Falls when he observed appellant Corey Lowell Zimmer’s red Chevrolet traveling ahead of him on Highway 212. Noting that appellant’s vehicle was traveling at a very high rate of speed, DeBlieck stopped his own vehicle and, using stationary radar, recorded appellant driving 79-80 miles per hour. De-Blieck then stopped appellant’s vehicle.

As he discussed the speeding offense with appellant and obtained identification from him, DeBlieck noticed that there were two unopened 12-packs of beer in the back seat of appellant’s vehicle. In addition, during their discussion, appellant revealed that the newly purchased vehicle was uninsured and that his license had been revoked. When asked, appellant denied consuming alcohol, and he gave De-Blieck permission to look for “open containers” in the vehicle.

As he conducted the search, DeBlieck discovered under the driver’s seat a transparent pill vial with tape wrapped around it and a locked blue bank bag. He illuminated the untaped bottom side of the vial with a flashlight and observed that it contained a powdery substance and a pebble-sized rock. Based on his training and experience, DeBlieck believed that the vial contained methamphetamine or another controlled substance. Appellant stated that the vial did not belong to him.

DeBlieck impounded the vehicle, but allowed appellant to leave the scene with a friend, pending further testing of the substance in the vial. At the Yellow Medicine County Sheriffs Department, DeBlieck conducted a preliminary drug screen test of the vial’s contents, which tested positive for methamphetamine. Based on this and other evidence, DeBlieck sought and obtained a warrant to search the vehicle. The search revealed that the blue bank bag contained 6.3 grams of methamphetamine.

The state filed a complaint that charged appellant with possession of over six grams of methamphetamine, a second-degree controlled substance crime. Minn. Stat. § 152.022, subds. 2(1), 3(a) (2000). At his omnibus hearing, appellant moved to suppress the evidence found in the vehicle, arguing that DeBlieck did not have probable cause to believe that the vial contained contraband because the incriminating nature of the vial was not immediately apparent, and that the methamphetamine found in the blue bank bag was the fruit of an illegal search and should be suppressed. The district court denied appellant’s suppression motion, concluding that the search that led to the discovery of the vial was consensual and that the incriminating nature of the vial was immediately apparent.

Appellant entered a Lothenbach plea to a reduced charge of third-degree controlled substance offense. Minn.Stat. § 152.023, subds. 2(1), 3(a) (2000). The district court found appellant guilty on stipulated facts, stayed imposition of sentence, and placed appellant on probation for five years, subject to certain conditions.

ISSUE

Did the district court err in declining to suppress evidence found in the vial because the deputy sheriff did not have probable cause to believe that the vial contained contraband?'

ANALYSIS

“Under the fourth amendment, warrantless searches and seizures are per se unreasonable unless they fall under an established exception.” State v. Vang, 636 N.W.2d 329, 333 (Minn.App.2001) (quotation omitted). Consent is an exception to the warrant requirement. Id. Police can also seize an item in plain view or plain touch if

1) police were lawfully in a position from which they viewed the object, 2) the object’s incriminating character was immediately apparent, and 3) the officers had a lawful right of access to the object.

In re Welfare of G.M., 560 N.W.2d 687, 693 (Minn.1997) (citing Minn. v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 2136-37, 124 L.Ed.2d 334 (1993)). The legal basis for allowing the plain view and plain feel exceptions is that the evidence is discovered without further violation of a suspect’s privacy than has been previously authorized by law. G.M., 560 N.W.2d at 692-93.

Here, DeBlieck had appellant’s consent to search the vehicle for open containers, and the vial was found within the scope of that search. See id. at 693 (police can seize item in plain view if in lawful position to view item). Appellant contends that when DeBlieck discovered the pill vial by feeling it under the driver’s seat, its incriminating character was not immediately apparent. Where

police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object * * * the plain-view doctrine cannot justify its seizure.

Dickerson, 508 U.S. at 375, 113 S.Ct. at 2137 (citations omitted); see, e.g., Ariz. v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987) (police illegally seized stereo equipment in plain view where they had no probable cause to believe it was stolen); G.M., 560 N.W.2d at 694 (police could not apply plain view exception to obtain search of opaque bag taken from suspect where they could not see contraband inside bag).

Ordinarily, closed opaque containers are fully protected from plain view searches because the incriminating nature of their contents is not immediately ascertainable. See United States v. Ross, 456 U.S. 798, 814 n. 19, 102 S.Ct. 2157, 2167 n. 19, 72 L.Ed.2d 572 (1982). Here, however, the pill vial was transparent, and DeBlieck could see the methamphetamine through the bottom of the vial. In G.M., the supreme court cited with approval the following abbreviated quote from Lafave on this point:

[I]f the contents [of a container] themselves are in plain view within an accessible container, then there exists no reasonable expectation of privacy as to those contents and thus no need for a warrant to open the container.

G.M., 560 N.W.2d at 694 (quoting 1 Wayne R. Lafave, Search and Seizure § 2.2(a), at 401-02 (3d ed.1996)). According to the court in G.M., the distinction between whether the contraband is visible in the container or not is

critical in that plain view is based upon the fact that the defendant left the contraband in a place where he or she had no expectation of privacy.

G.M., 560 N.W.2d at 694 (citation omitted) (emphasis omitted). Thus, DeBlieck’s viewing the methamphetamine through its container was equivalent to viewing the methamphetamine itself, and his observation of the vial revealed the incriminating character of its contents necessary to satisfy the probable cause requirements of Dickerson. We therefore conclude that the district court did not err in declining to suppress the evidence for lack of probable cause.

DECISION

Because the deputy sheriff had consent to search appellant’s vehicle, and because the incriminating nature of the methamphetamine in the vial was apparent under the plain view exception to the warrant requirement, we affirm the district court’s denial of appellant’s motion to suppress the evidence.

Affirmed.


author: GORDON W. SHUMAKER, Judge.

text:
    Gina M. ZAFFKE, et al., Respondents, Minnesota Workers’ Compensation Assigned Risk Plan, Appellant, v. Jon E. WALLESTAD, M.D., et al., Respondents.
    No. C7-01-1578.
    Court of Appeals of Minnesota.
    April 16, 2002.

      Michael W. Unger, John R. Neve, Rider, Bennett, Egan & Arundel, PLLP, Minneapolis, for respondents.
    Douglas J. McIntyre, Brown & Carlson, P.A., Minneapolis, for appellant.
    Daniel L. Scott, Shawn M. Ratter, Charles A. Gross, Larson King, LLP, St. Paul, for respondents.
    Considered and decided by TOUSSAINT, Chief Judge, SHUMAKER, Judge, and FOLEY, Judge.

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

   OPINION

GORDON W. SHUMAKER, Judge.

Appellant challenges the district court’s decision to vacate the judgment against plaintiff-respondent Gina Zaffke, claiming that by doing so the district court destroyed appellant’s right to contribution against Zaffke as provided in Minn.Stat. § 548.19 (2000). Because the judgment was not entered in error and because' it entitled appellant to a right of contribution under Minn.Stat. § 548.19, we reverse.

FACTS

Respondent Gina Zaffke (Zaffke) sued respondents Jon E. Wallestad, M.D. and Orthopaedic Partners, P.A. (Wallestad) for malpractice. Before trial, appellant, Minnesota Workers’ Compensation Assigned Risk Plan (Assigned Risk Plan) intervened in the action, asserting its right to subrogation, reimbursement, or recovery of the workers’ compensation benefits paid to Zaffke.

After a jury trial, on December 4, 2000, the district court ordered judgment in favor of Wallestad. Wallestad later agreed not to tax Zaffke for costs and disbursements in exchange for Zaffke’s promise not to appeal. However, neither Walles-tad nor Zaffke notified the district court or Assigned Risk Plan of this agreement. On January 4, 2001, judgment was entered in Wallestad’s favor and against both Zaffke and Assigned Risk Plan.

On January 29, 2001, Wallestad petitioned the court for costs and disbursements against Assigned Risk Plan only. However, because the judgment was against both Zaffke and Assigned Risk Plan and because the court administrator had no notice of the Wallestad-Zaffke agreement, the court administrator docketed the judgment for costs and disbursements against both parties, even though the petition named only Assigned Risk Plan.

Zaffke brought a rule 60.02 motion to vacate the judgment against her, alleging mistake and satisfaction of the judgment. The district court granted the motion, and vacated the judgment as to Zaffke. Assigned Risk Plan brought this appeal.

ISSUES

1. Did the district court err by determining Assigned Risk Plan, an intervenor, had no right of contribution against Zaffke, the plaintiff, when judgment was properly entered for the defendant?

2. Did the district court err by vacating the judgment against Zaffke under Minn. R. Civ. P. 60.02(a) and (e)?

ANALYSIS

1. Right of Contribution

Assigned Risk Plan contends on appeal that because a judgment was entered against both Assigned Risk Plan and Zaffke, entitling the prevailing defendant to costs and disbursements, it is entitled to a right to contribution against the original plaintiff, Zaffke. Whether Assigned Risk Plan is entitled to a right to contribution is a legal issue which this court reviews de novo. Nuessmeier Elec., Inc. v. Weiss Mfg. Co., 632 N.W.2d 248, 251 (Minn.App.2001), review denied (Minn. Oct. 16, 2001). One may bring a contribution action when the parties share a common liability or burden and the plaintiff to the contribution action has paid more than its fair share of the common liability or burden. County of Dodge v. Martin, 271 Minn. 489, 492-94, 136 N.W.2d 652, 654-56 (1965). Minn.Stat. § 548.19 (2000) provides a summary method for joint debtors to enforce the right of contribution. Gustafson v. Johnson, 235 Minn. 358, 371-72, 51 N.W.2d 108, 115-16 (1952). Minn.Stat. § 548.19 (2000) states:

When a judgment against two or more persons shall be enforced against or paid by one of them, or one of them shall pay more than a proper share as between that debtor and the other judgment debtors, the debtor may continue the judgment in force for the purpose of compelling contribution * * *.

Assigned Risk Plan argues that by jointly pursuing litigation against Wallestad, Zaffke and Assigned Risk Plan shared a common liability for the resulting costs and disbursements owed to Wallestad as a result of the judgment entered in Walles-tad’s favor. We agree with Assigned Risk Plan. Zaffke contends, and the district court found, that because of the Zaffke-Wallestad agreement, the judgment was entered against Zaffke in error and therefore no right of contribution arose. The judgment resulted from a jury verdict in Wallestad’s favor. Because the court administrator received no written notice regarding the Zaffke-Wallestad agreement before the judgment was set to be entered, it was properly entered against both parties, creating a common liability. Rights of contribution existed between Assigned Risk Plan and Zaffke.

2. Motion to Vacate

Assigned Risk Plan argues that, by vacating the judgment against Zaffke, the district court frustrated Assigned Risk Plan’s ability to enforce its right to contribution, causing it substantial prejudice. The district court may relieve a party from a final judgment because of “[mjistake, inadvertence, surprise, or excusable neglect” or because “[t]he judgment has been satisfied, released, or discharged * * Minn. R. Civ. P. 60.02(a), (e). The district court’s decision to vacate a judgment under this rule is reviewed under an abuse of discretion standard. Charson v. Temple Israel, 419 N.W.2d 488, 490 (Minn.1988).

The district court found that it was fair and equitable to vacate the judgment against Zaffke because it believed the judgment had been entered in error after Wallestad released Zaffke from liability and because it did not have the discretion to deny Wallestad the opportunity to recoup its costs. The Zaffke-Wallestad agreement, however, should have no impact on the liability that Zaffke shares with Assigned Risk Plan. Cf. City of Willmar v. Short-Elliott-Hendrickson, Inc., 512 N.W.2d 872, 873 (Minn.1994) (explaining that where the plaintiffs case failed as to one defendant, the cross-claim by a co-defendant survived).

“The doctrine of contribution is an equitable doctrine which requires that persons under a common burden share that burden equitably.” Spitzack v. Schumacher, 308 Minn. 143, 145, 241 N.W.2d 641, 643 (1976). Because the judgment was properly entered against Zaffke, the district court’s decision to vacate the judgment against Zaffke frustrated contribution. It would not be equitable under these facts to require Assigned Risk Plan to pay the entirety of Wallestad’s litigation expenses when the case was initially brought and also fully litigated by -Zaffke. Therefore we reverse the district court’s decision to vacate judgment against Zaffke.

Finally, appellant argues that the district court’s decision to vacate the judgment against Zaffke was in error because the Zaffke-Wallestad agreement was essentially an improper stipulation to dismiss Zaffke’s case under Minn. R. Civ. P. 41.01(a). Because we hold that the ground reflected above requires reversal, we need not reach this issue.

DECISION

The district court abused its discretion by vacating the judgment against the original plaintiff, thereby removing the intervening party’s statutory means of enforcing its right to contribution for the common liability of costs and disbursements due the prevailing defendant.

Reversed.