author: STRINGER, Justice.

text:
    Jean E. SCOTT, Respondent, v. MINNEAPOLIS POLICE RELIEF ASSOCIATION, INC., petitioner, Appellant.
    No. C7-99-1191.
    Supreme Court of Minnesota.
    Aug. 3, 2000.

      Rischmiller, Knippel & Aronson, C.J. Knippel, Minneapolis, for appellant.
    Michael C. Black. Law Office Ltd., Michael C. Black, St. Paul, for respondent.
   OPINION

STRINGER, Justice.

Respondent Jean E. Scott and her husband Paul W. Scott, a Minneapolis police officer, were married in 1947. In 1979, the Scotts sold their house and separated. Both of the Scotts moved in with other people after separating, however they never divorced and continued to file joint tax returns until Paul Scott’s death in August of 1995. After his death Jean Scott applied for pension benefits from the appellant, the Minneapolis Police Relief Association (MPRA), as a surviving spouse. The MPRA denied her request, claiming that MmmStat. § 423B.10, subd. 1(a) (1998), which provides that a surviving spouse must be “residing with” an MPRA member to receive benefits, requires the surviving spouse to reside with the member at the time of the member’s death. The district court agreed and ruled that since Jean Scott did not reside with Paul Scott at the time of his death she was ineligible for pension benefits. The court of appeals reversed, holding that Jean Scott was entitled to surviving spouse benefits because she had resided with Paul Scott for many years and met the other requirements of the statute. See Scott v. Minneapolis Police Relief Ass’n, Inc., No. C7-99-1191, 1999 WL 1216301, at *2 (MinmApp. Dec. 21,1999). We reverse.

A year after Paul and Jean Scott were married Paul joined the Minneapolis police force where he was employed until he retired on April 14, 1983. Jean Scott worked as a seasonal employee at Brown & Bigelow in the shipping department from approximately 1950 to 1956 and full time from 1956 until she retired in January, 1993.

The Scotts raised three children together but their marriage was volatile, according to Jean Scott, with many instances of abuse. She claimed that she was frequently physically abused by Paul Scott but never sought medical care as a result of these confrontations nor did she report the abuse to the police because she was afraid her husband would lose his job. She testified that in 1978 Paul Scott told her that he wanted a divorce because he was in love with another woman. Around this time Jean also began a relationship with another man.

Jean Scott testified that in 1978 she and Paul prepared divorce papers but Paul changed his mind about the divorce,'saying “[if] * * ⅜ I divorce you, then"you don’t' get my police pension and you deserve my pension.” She also testified that he promised her that he would make sure she was taken care of. Lance Scott, the Scotts’ son, testified that his father did not want a divorce because he realized that Jean would not receive his pension benefits.

In 1979 the Scotts sold their house and Paul moved into the house of another woman. Although Paul periodically traveled to California and Wisconsin, he lived in the house until he died and never indicated that he planned to resume living with Jean.

Randy Scott, another Scott child, testified that when the house sold Jean received $40,000, approximately 60% of the profits from the sale. Jean then moved to Florida, where she lived until she returned to Minnesota some time between 1988 and 1984. Upon returning to Minnesota she moved into the house of her friend where she was living when Paul died. -Her friend testified that he intended to live with Jean until one of them died. Jean used part of the proceeds from the sale of the Scott house to build a garage at her friend’s house and to decorate the house, and she resumed employment at Brown & Bigelow where she worked full-time until 1993 when she retired. Jean had no ownership interest in the house, garage, or the property where she lived and her friend provided her no financial support.

Although the Scotts separated they continued to file joint tax returns. On various special occasions between the time Jean retired in 1993 and August of 1995 Paul gave her money which Jean estimated to total approximately $1,500. The only other money Jean received from Paul after 1979 was $1,000 he gave to Jean to create an IRA in her name which designated him as the beneficiary. Jean also testified that since their separation in 1979 Paul mentioned living together once in 1985 but never brought it up again. The two saw each other only on special family occasions.

After Paul’s death Jean applied for surviving spouse benefits under Paul’s pension with the MPRA. She received a letter mailed on December 2, 1996 from the MPRA denying her benefits stating:

[The MPRA] declines to pay any surviving spouse benefits to Jean E. Scott, surviving spouse of Paul W. Scott. The reason for the denial is the acknowledgment by the surviving spouse that she was not ‘residing with’ Paul W. Scott on the date of his death. Statute requires that she be ‘residing with’ the police officer on the date of his death, otherwise she is not entitled to pension benefits.

The executive director of the MPRA stated in an affidavit that Paul knew Jean could receive benefits only if she was residing with him when he died because police officers "'periodically receive a booklet summarizing retirement benefits and requirements for surviving spouses. Lance Scott, as the executor of his father’s estate, also testified that when he was going through his father’s personal belongings he ran across a 1991 issue of a magazine published for the Minnesota Police Pension Counsel containing a highlighted article entitled “Minneapolis Police Relief Association, surviving spouse defined.” The article explained that a “surviving spouse” under the statute was a person legally married to and residing with a member and excluded a spouse who deserts a member or who is not dependent upon a member for support.

The executive director was aware of only three other cases where benefits were denied to a surviving spouse, all on the basis that the wife was not residing with her husband at the time of his death. He further testified that there were three bases for denial of benefits to Jean: she was not living with Paul at the time of his death; she deserted him because they were living in separate residences and she had lived in Florida after their separation; and she was not dependent on him for support at the time of his death.

In April, 1997, Jean filed suit alleging that as a “surviving spouse” as defined in Minn.Stat. § 423B.01, subd. 12 (1998), she is entitled to benefits under Minn.Stat. § 428B.10, subd. 1(a), and if she is not entitled to benefits, then the statutes violate the Equal Protection Clauses of the United States and Minnesota Constitutions. The district court granted MPRA’s motion for summary judgment in May of 1998 ruling that the plain meaning of Minn.Stat. § 423B.10, subd. 1(a), clearly defines a “surviving spouse” as a spouse who was residing with the deceased member, and because the legislature used the present tense of “reside,” it meant residing at the time of the member’s death. Therefore the court held that Jean did not qualify as a surviving spouse for pension benefit purposes. The court observed that if the legislature had intended otherwise it would have used “resided,” and that the denial of benefits was fair and just because although the Scott marriage was not a sham, the parties separated and had no intent to resume living together. The court also found that Jean was not dependent upon Paul when he died but declined to rule on this basis under section 423B.01, subdivision 12, because Jean was already precluded from receiving benefits under the “residing with” language in section 423B.10, subdivision 1(a).

In December 1998 the district court issued an additional ruling denying Jean Scott’s motion for summary judgment based upon her claim that the statute violated her right to equal protection under the Minnesota and United States constitutions. The court concluded that under Minnesota’s rational basis test, the purposes of the statute to support marriage, prevent sham marriages and reward spouses who remain in cohabitation were legitimate. The court further concluded that it was reasonable for legislators to believe that imposing a requirement of “residing with” the member at the time of the member’s death reasonably promotes these purposes and that it was permissible for the legislature to limit those who qualify for pension benefits as a surviving spouse by distinguishing between spouses residing with a member and those residing elsewhere. To Jean’s argument that the Public Employees Retirement Association (PERA) dobs not require cohabitation at the time of the member’s death, the court noted that PERA is a different pension plan and therefore its terms are irrelevant.

The court of appeals reversed the district court. See Scott, 1999 WL 1216301, at *2. The court held that the “residing with the decedent” language in Minn.Stat. § 423B.10, subd. 1(a), modifies the preceding phrase “was the legally married spouse of the decedent” and since Jean was married to Paul for 31 years, they had raised three children before separating and had filed joint tax returns until Paul’s death, their marriage was not a sham and Jean did reside with Paul. See Scott, 1999 WL 1216301, at *1. The court also cited other pension statutes explicitly providing that residency at death is required, and observed that chapter 423B has been revised three times since its adoption in 1992 with no change to the definition of surviving spouse except for a 1997 amendment extending benefits to surviving spouses who were married after retirement from active service. See Scott, 1999 WL 1216301, at *2. The court noted that Minn.Stat. § 423B.10, subd. 1(d) (1998), which requires that the surviving spouse be “residing with the decedent at the time of death,” indicates a legislative intent to expand rather than limit pension benefits because it provides benefits to surviving spouses not otherwise qualified under the statute. See Scott, 1999 WL 1216301, at *2.

The court held that because section 423B.01, subdivision 12, provides that a “surviving spouse member” does not include a person who has deserted or who is not dependent upon the member for support, it imposes on section 423B.10, subdivision 1(a), an unreasonable requirement the legislature presumably did not intend, since many families today rely on two working spouses. See Scott, 1999 WL 1216301, at *2. The court further noted that there is no reference to either desertion or dependency in section 423B.10, subr division 1(a), and suggested that when a definitional section intended to clarify a statutory provision actually blurs an otherwise bright line standard, severance is an appropriate remedy. See Scott, 1999 WL 1216301, at *2. .

The MPRA now challenges the court of appeals ruling arguing that the “residing with” language in section 423B.10, subdivision 1(a), requires that the surviving spouse be residing with the member at the time of the member’s death. Jean Scott does not dispute that she and Paul were not residing together when he died but maintains that the statutory language expresses no such requirement.

Summary judgment is appropriate where there are no genuine issues of material fact and our review is limited to determining whether the lower court erred in its application of the law. See Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn.1979). We apply a de novo standard of review to questions of statutory interpretation. See State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996). The primary objective of statutory interpretation is to ascertain and effectuate the legislature’s intent, see Boutin v. LaFleur, 591 N.W.2d 711, 715 (Minn.1999), and we liberally construe and'apply pen-, sion statutes to carry out their purpose, see Donaldson v. Mankato Policemen’s Benefit Ass’n, 278 N.W.2d 533, 537 (Minn.1979).

Minnesota Statutes § 423B.10, subd. 1(a), was enacted in 1992 and provides:

The surviving spouse of a deceased service pensioner * * * who was the legally married spouse of the decedent, residing with the decedent, and who was married while or before the time the decedent was on the payroll of the police department * * * ⅛ entitled to a surviving spouse benefit.

Minn.Stat. § 423B.10, subd. 1(a).

We have interpreted similar clauses in pension statutes with some frequency over the years. In State ex rel. Livingston v. Minneapolis Fire Department Relief Association, appellant and her husband, a firefighter, lived together until a few months after his retirement in 1913. 205 Minn. 204, 204, 285 N.W. 479, 479 (1939). Mr. Livingston died in 1936 after being separated from his wife for 23 years, almost the same length of time they lived together. See id. at 205, 285 N.W. at 479. We denied the award of pension benefits because the Livingstons were not residing together at the time of Mr. Livingston’s death on the basis of a statute providing that a widow was entitled to benefits “when a service pensioner * * * dies, leaving * * * [a] widow who was his legally married wife, residing with him * * Id. at 206-07, 285 N.W. at 480. We observed that the qualification for entitlement, adopted by the legislature in 1933, was a matter of legislative policy and held: “[t]he statute should be construed as it reads, and effect given to the clear meaning of its language. It is clear that relator cannot qualify as a wife who resided with the pensioner at the time of his death.” Id. at 206-207, 285 N.W. at 480.

Similarly, in Butler v. Minneapolis Police Relief Association, the Butlers were married in 1928 and lived together intermittently until 1949 when Mr. Butler, a police officer, permanently left their home to live with his mother until his death in 1957. 283 Minn. 70, 72-73, 166 N.W.2d 705, 707 (1969). The relevant statute provided that pension benefits were payable to widows, defined as “[the officer’s] legally married wife, residing with him * * *” but the MPRA’s bylaws excluded a “surviving wife who has deserted a police officer or pensioner, or who has not been dependent upon him for support.” Id. at 71-72, 166 N.W.2d at 706. Mrs. Butler contended that the language excluding a wife who deserted or was not dependent on her husband implied that those wives who did not desert and were dependent should receive a pension. We rejected her argument, concluding she was entitled to benefits only if she did not desert her husband, was dependent on him and resided with him at the time of his death. See id. at 73-74,166 N.W.2d at 707.

In Donaldson the parties were married from 1932 until Mr. Donaldson, a Mankato police officer, died in 1967, but they permanently separated three years before his death when Mrs. Donaldson initiated a divorce action. 278 N.W.2d at 535. The Mankato Policemen’s Benefit Association denied Mrs. Donaldson’s application for pension benefits under a statute providing that pension benefits were limited to “a widow * * * [who never] applied for any divorce or legal separation, and who * * * in any case, was residing with [the pensioner] at the time of his death. No temporary absence for purposes of business, health, or pleasure shall constitute a change of residence * *' ⅜.” Id. (citation omitted). We held that although the Don-aldsons were separated at the time his death, it was “a temporary absence * * * precipitated by reasons of the respective health conditions of the parties and by circumstances neither had the ability to cope with or control,” thus under the statute Mrs. Donaldson was eligible for the pension benefits. Id. at 537.

The MPRA argues that Jean Scott is not entitled to pension benefits because we held in Butler that an earlier version of the MPRA required a surviving spouse to reside with an MPRA member at the time of death. The MPRA also argues the present tense use of “reside” indicates that the legislature intended the surviving spouse to reside with the member at the time of death. The MPRA distinguishes Donaldson on the ground that the statute there specifically stated that a spouse would not be precluded from receiving pension benefits where the separation was temporary and for health reasons. Here, the MPRA argues, there is no such statutory provision, the Scotts were not separated temporarily and were not separated because of health. Finally, the MPRA argues that séction 423B.01, subd. 12, disqualifies spouses where they desert or are not dependent on a MPRA member indicating a legislative intent to reward spouses who reside together until the member’s death.

Jean Scott argues that she should receive pension benefits because she meets the criteria of section 423B.10, subdivision 1(a): she was the-legally married spouse of Paul, she resided with him and she was legally married to him up to the time of his death. She further asserts that the MPRA’s construction of the statute is absurd because it would deny a surviving spouse pension benefits if the spouse were hospitalized or on an extended vacation at the time of the member’s death, and that in its 110 year history the statute has never required that a surviving spouse reside with the MPRA member at the time of death. She also contends that PERA, which covers Minneapolis police officers enrolled after 1980, includes no such limitation and that since the surviving spouse of a PERA member would not be denied surviving spouse benefits under the same circumstances it would be unfair and inconsistent to deny her pension benefits. See Minn.Stat. § 353.01, subd. 20 (1998) (surviving spouse must be “legally married to the member at the time of death”). She distinguishes Butler and Livingston on the ground that Butler addressed the 1953 version of the MPRA statute • which was amended in 1992, and Livingston involved a fire department relief statute.

Jean Scott finally argues that the language in section 423B.01, subdivision 12, excluding spouses who desert or are not dependent on their spouse does not exclude her because! the trial court did not address whether she deserted or was dependent upon Paul for support at the time of his death. Even if it had, she contends, section 423B.10, subdivision 1(a), does not refer to section 423B.01, subdivision 12, or to its dependency and desertion requirements, thus the legislature did not intend the “surviving spouse member” definition to control the surviving spouse eligibility determination under section 423B.10, subdivision 1(a).

We disagree with Jean Scott’s understanding of the statutes and hold that the language in section 423B.01, subdivision 1(a), that the surviving spouse is the person “who was the legally married spouse of the decedent, residing with the decedent,” means residing with the member at the time of the member’s death. The court of appeals reversed reasoning that the use of “was” in “who was the legally married spouse of the decedent” indicates that “residing with” should be read in the past tense-that is, that the surviving spouse lived with the deceased member at some time during their marriage. Scott, 1999 WL 1216301, at *2. But this proves too much, because “was” also precedes “married to the spouse,” and parallel reasoning would lead to the conclusion that a surviving spouse who was married to the member at any time, but not necessarily at the time of death, would qualify for surviving spouse benefits-clearly not the legislature’s intent. That the surviving spouse must have resided with the deceased member at the time of death is further supported by section 423B.01, subdivision 12, because it specifically excludes spouses who are not dependent on or who have deserted the member and the trial court found that Jean Scott was not dependent on Paul at the time of his death.

Our previous rulings support this conclusion. Butler, where we reviewed an older version of the MPRA statute with facts virtually identical to those here, is key to our analysis. In Butler we concluded that because the Butlers had not lived together in nearly eight years, “it is clear that plaintiff cannot qualify under any meaning of the statute requiring her to be ‘residing with’ Mr. Butler at the time of his death.” 283 Minn, at 73, 166 N.W.2d at 707. We find it equally clear that under an updated version of the MPRA statute, Jean Scott, who had not resided with Paul for fifteen years, is similarly precluded from receiving surviving spouse benefits.

While there is some evidence that Jean Scott was abused by Paul, Donaldson does not influence our decision because the separation here was permanent. We conclude that section 423B.10, subdivision 1(a), precludes Jean Scott from receiving surviving spouse benefits because she was not residing with Paul at the time of his death.

We now turn to whether section 423B.10, subdivision 1(a), violates the Equal Protection Clauses of the United States and Minnesota Constitutions given our conclusion that it requires a surviving spouse to be residing with a pensioner at the time of death. Minnesota law is clear that Minn.Stat. § 423B.01, subd. 1(a), like all statutes, is presumed constitutional and should be declared unconstitutional only if beyond a reasonable doubt it violates a constitutional provision. See Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979).

The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution provides in relevant part “[no state shall] deny to any person within its jurisdiction the equal protection of laws.” U.S. Const, amend. XIV, § 1. Article I, section 2 of the Minnesota Constitution provides “[n]o member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” Minn. Const, art. I, § 2. Both clauses have been analyzed under the same principles and’ begin with the mandate that all similarly situated individuals shall be treated alike, but only “invidious discrimination” is deemed constitutionally offensive. In re Estate of Turner, 391 N.W.2d 767, 769 (Minn.1986) (quoting Ferguson v. Skrupa, 872 U.S. 726, 732, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963)) (reviewing statute under both state and federal constitutions). Additionally, unless a constitutional challenge to the statute involves a suspect classification or a fundamental right, we review the challenge under a rational basis standard under both the state and federal constitutions. See id. Minnesota Statutes § 423B.10, subd. 1(a), is thus “presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Id. (quoting City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)).

In our determination whether a challenged classification is rationally related to a legitimate governmental purpose, we have over the years developed' two formulations. One formulation is the standard articulated by federal courts for the Equal Protection Clause of the United States Constitution, where it first must be determined whether the challenged legislation has a legitimate purpose, and second, whether it was reasonable for legislators to believe that the use of the challenged classification would promote that purpose. See, e.g., id. at 769-770; see also Western & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 668, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981). The second formulation of the test, often characterized as the Minnesota rational basis test, requires that:

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

State v. Russell,. 477 N.W.2d 886, 888 (Minn.1991).

Against this backdrop we assess the parties’ arguments. Jean Scott contends that section 423B.01, subdivision 1(a), violates her right to equal protection under both the Minnesota and United States Constitutions because the statute does not have a legitimate purpose if it is intended to ensure that MPRA members live in a traditional family setting, as it would intrude on the “private realm of family life which the state cannot enter.” Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (quotation omitted). She additionally argues that even if the statutory goal is to create an incentive for spouses to remain married to and to care for members, the denial of benefits is not relevant or genuine to this purpose because the statute has the opposite effect-the non-residing spouse is encouraged to divorce the member because divorce provides her an equitable share of the accrued benefit the challenged statute would otherwise prevent. Further, Jean Scott points out that if Paul joined the police department after 1980, she would be covered under the PERA and there is no rational basis for treating her differently than the spouse of a member joining after an arbitrary date. Finally, she notes that the statute has denied benefits to women only and thus raises equal protection concerns on this basis as well.

The MPRA argues that the statutory classification is genuine and relevant to the purpose of the pension statute because the benefits are intended for those surviving spouses contributing to the welfare of the member, and the statute creates a financial incentive for a spouse to provide society and companionship to a member. It also argues that since the state and city contribute to police pensions it is rational and not arbitrary for the legislature to limit the benefits it confers to secondary beneficiaries providing care and comfort to primary beneficiaries. The MPRA points out that the excluded spouses are not similarly situated to those spouses receiving pensions because they do not reside with pensioners, are not dependent on them and have abandoned them. It finally asserts that the pension statute does not discriminate on the basis of gender, noting that Jean Scott concedes it is neutral on its face, and as applied, the MPRA pays several million dollars per year in surviving spouse benefits to 249 women.

We agree with the MPRA and hold that MinmStat. § 423B.01, subdivision 1(a), does not violate the Equal Protection Clause of the United States Constitution or the Minnesota Constitution under either formulation of the rational basis test. We conclude that the purpose of section 423B.01, subdivision 1(a), to provide an incentive for spouses to stay with and care for the pensioner and to prevent sham marriages is legitimate. We similarly conclude that because of the physical, emotional and financial dependency that generally results from cohabitation, it is “natural and reasonable” for the legislature to distinguish between a spouse residing with a member at the time of the member’s death and a spouse not so residing. Additionally, as we have previously held, the legislature has the authority to. limit public benefits to secondary beneficiaries, to whom it will ultimately pay a sizable benefit, so long as the limitations are based on reasonable distinctions supported by facts. See, e.g., Fabio, 267 Minn, at 277, 126 N.W.2d at 262-63; Gibbs v. Minneapolis Fire Dept. Relief Ass’n, 125 Minn. 174, 177, 145 N.W. 1075, 1076 (1914) (“the government may withdraw the benefits conferred at any time it may deem advisable” (citation omitted)). We view this distinction as supported by facts insofar as the requirement that a couple reside together at the time of the member’s death is relevant to the statutory- purpose of encouraging secondary beneficiaries to provide care and companionship- to primary beneficiaries. Minnesota Statutes § 423B.10, subd. 1(a), is thus rationally related to the legitimate governmental purposes of preventing sham marriages and encouraging secondary beneficiaries to care for MPRA members.

Jean Scott’s contention that an arbitrary distinction is created when surviving spouses of members joining the police department after 1980 would receive benefits because PERA does not contain the “residing with” language is unpersuasive because PERA is a different pension plan with different provisions and members of PERA and of the MPRA cannot reasonably be viewed as similarly situated — thus equal protection concerns do not arise.

Finally, as to Jean Scott’s contention that she was denied equal protection on the basis of sex because only wives have been denied benefits by reason of not residing with the member at the time of the member’s death, we point out that the MPRA pays millions of dollars per year to wives and will pay benefits to husbands who are surviving spouses so long as in both cases all statutory requirements are met. Therefore we conclude there was no equal protection violation.

Reversed.

      . Jean Scott did not work at Brown & Bige-low from 1979 to 1984, when she lived in Florida.

      . Jean Scott’s annual wages from Brown and Bigelow totaled $20,363. From about 1990 to 1993 Jean estimated that she netted about $200 a week from her job. Since her retirement Jean receives social security and two small pensions from Brown & Bigelow totaling almost a thousand dollars a month.

      .There are currently 12 female members of the MPRA. Eleven of the 12 are retired and receive a monthly service pension and if the married officers die before their spouses their husbands will receive the surviving spouse pension assuming all statutory requirements are satisfied. The executive director of the MPRA also stated in an affidavit that there are 249 female surviving spouses receiving spouse pensions of approximately $17,000 per year and the MPRA currently pays annual surviving spouse benefits of approximately $4.23 million.

      . Jean Scott also alleged that the denial of benefits unjustly enriched defendant. The district court did not address this claim.

      . The court noted that Minnesota does not have an equal protection clause per se but referred to Minn. Const, art. I, § 2, providing equivalent rights: "[n]o member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” Minn. Const, art I, § 2.

      . The Public Employees Retirement Association (PERA) chapter does not contain a "residing with” requirement in its definition of "surviving spouse." See Minn.Stat. § 353.01, subd. 20 (1998).

      . Jean Scott filed an appeal from the district court’s order for judgment on January 6, 1999, but the appeal was dismissed by the court of appeals on April 13, 1999, because the district court's order for judgment did not adequately resolve all issues before the district court. The district court entered a revised order for judgment on May 5, 1999, and judgment was entered on that order on May 24, 1999. A second appeal was taken from that judgment on July 12, 1999.

        .See Minn.Stat. § 423.58, subd. 2 (1998) (statute in Police Pensions chapter defining surviving spouse as "residing with the member at the time of the member’s death”); Minn.Stat. § 424.24, subd. 2(a) (1998) (statute in Firefighters’ Relief and Retirement chapter defining surviving spouse as "residing with the member at the time of the member’s death”).

      . See Act of April 15, 1992, ch. 471, art. 1, § 9, 1992 Minn. Laws 313, 322.

      . In 1997 the statute was amended to include a provision that a surviving spouse not otherwise qualifying may receive a benefit if the spouse was married to the decedent for five years and was residing with the decedent at the time of death. See Act of June 2, 1997, ch. 233, art. 4, § 7, subd. 1, (d), 1997 Minn. Laws 2643, 2709. Minnesota Statutes § 423B.01, subd. 12, also enacted in 1992, defines "surviving spouse member” as:
      the person who was the legally married spouse of the member, who was residing with the decedent, * * ⅜ and who, in case the deceased member was a pensioner or deferred pensioner, was legally married to . the member at least one year before the decedent’s termination of active service with the police department. The term does not include the surviving spouse who has deserted a member or who has not been dependent upon the member for support ⅜ * *
      Minn.Stat. § 423B.01, subd. 12.

      .The statute was L.1953, c. 126, § 6, a prior version of the MPRA statute.

      . We also held that Mrs. Donaldson had not "applied for a divorce” under the statute because she abandoned the action soon after a court required Mr. Donaldson to pay an amount in alimony every month. Donaldson, 278 N.W.2d. at 536.

      . Appellants base this argument on Wynkoop v. Carpenter, where we stated:
      Once this court has. construed a statute, that interpretation is as much a part of the statutory text as if it had been written into the statute originally.

      * * ⅝ when a judicial interpretation of a statute has remained undisturbed, it becomes part of the terms of the statute itself.
      574 N.W.2d 422, 425-26 (Minn.1998) (citations omitted). Appellants claim that under Wynkoop, the Butler holding is “as much a part of the statutory text as if it had been written into the statute originally.” Wynkoop, 574 N.W.2d at 425.

      . Jean Scott also questions the relevance of Wynkoop on the ground that in Wynkoop we observed that once a statute has been amended previous judicial interpretations are no longer controlling, see Wynkoop, 574 N.W.2d at 427, and that this statute was extensively amended in 1992 and subsequently.

      . These formulations have raised questions concerning their applicability in different contexts, see, e.g., Ann L. lijima, Minnesota Equal Protection in the Third Millennium: “Old Formulations’’ or “New Articulations”?, 20 Wm. Mitchell L.Rev. 337, 359 (1994), and have been the topic of some discussion by the court, see, e.g., Turner, 391 N.W.2d at 770 n. 2, 771-72 (Wahl, 1., concurring specially) (majority stating that the two formulations "merely represent different ways of stating the same analysis” but concurring opinion by Justice Wahl concluding that the difference between the federal and Minnesota rational basis test is that Minnesota’s test requires “a reasonable connection [to] be shown between the actual, and not just theoretical, affect of the challenged classification and the statutory goals”); Russell, 477 N.W.2d at 889 (stating that the three-prong Minnesota rational basis test is "our stricter standard of rational basis of review” and holding that the stricter version is "particularly appropriate” where there is a disproportionate burden "on the very class of persons whose history inspired the principles of equal protection”); Mitchell v. Steffen, 504 N.W.2d 198, 210 (Minn.1993) (Tomljanovich, J., dissenting) (dissent characterizing the Russell three-part test as a mid-level of scrutiny and proposing that this level should apply for "semi-suspect classes and for legislation which is neutral on its face but which has a disparate impact upon a suspect class” and that the minimal level of scrutiny articulated in the two-prong federal test should remain as the traditional rational basis analysis). We have also held that the justification for a valid classification does not depend on “ironclad uniformity,” and the grounds for treating similarly situated people differently may be slight, provided the discrimination is supported by a reasonable distinction based on facts. Fabio v. City of Saint Paul, 267 Minn. 273, 277, 126 N.W.2d 259, 262-63 (1964) (citation omitted).

      . The purposes of pension statutes are to "enable the employer to attract better employees, to reduce turnover, to facilitate orderly retirement of older employees, to retain valuable employees * * * and, most importantly from the employee viewpoint, to assure a measure of income upon retirement adequate to allow the annuitant to live in reasonable security.” Christensen v. Minneapolis Mun. Employees Retirement Bd., 331 N.W.2d 740, 747 (Minn.1983).


source: Caselaw Access Project

author: STRINGER, Justice. ■ BLATZ, Chief Justice PAGE, J. PAUL H. ANDERSON, J.

license: Public Domain

text:
    DEALERS MANUFACTURING, CO., Respondent, v. COUNTY OF ANOKA, Relator.
    No. C9-99-1869.
    Supreme Court of Minnesota.
    Aug. 10, 2000.

      Thomas G. Haluska, Assistant Anoka County Attorney, Anoka, for appellant.
    Daniel J. Biersdorf, Biersdorf & Associates, P.A., Minneapolis, for respondent.
    Thomas R. Wilhelmy, Steven Z. Kaplan, Fredrickson & Bryon, Minneapolis, for amicus curiae.
   OPINION

STRINGER, Justice.

We consider whether a taxpayer challenging a property tax assessment is entitled to a reduction in the assessed value of contaminated property based on stigma. Taxpayer, Dealers Manufacturing, Co. (Dealers), petitioned the tax court for a reduction in the assessment of its contaminated property in Anoka County (the county) on the basis that, because the county failed to take into account the stigma ef-feet on the market value of the property, the assessed value exceeded the market value of the property. The parties filed cross-motions for partial summary judgment as to the interpretation of Minn.Stat. § 273.11, subd. 17 (1998), specifically, whether it limits reduction in market value for stigma relating to contamination. The tax court granted Dealers’ motion concluding that Minn.Stat. § 273.11, subd. 17 does not apply to reductions in market value due to stigma. See Dealers Mfg. Co. v. County of Anoka, No. C4-98-2963, 1999 WL 717228, at * 5-6 (Minn. Tax Ct. Sept. 8,1999). We affirm.

The subject of this property tax dispute is a manufacturing plant site in Anoka County owned by Dealers. In 1988 Dealers discovered groundwater and soil contamination related to the use of solvents and the Minnesota Pollution Control Agency (MPCA) placed the property on the State Superfund list. Dealers implemented a MPCA-approved response action plan in 1995. As of 1998, Dealers had spent $350,000 to clean up the property against a total clean-up cost projection of $560,000. Contaminants were still present on the property at the time of the tax court’s partial summary judgment ruling.

In the course of its remediation efforts, in 1997 Dealers obtained an appraisal by Alan Leirness, MAI, which concluded that the property value was subject to a stigma devaluation factor due to the risk of liability for clean-up costs, fear of liability to the public arising from the contamination, and possible lack of mortgageability. In Leirness’ opinion the impact of the stigma could exceed $500,000.

The county assessed the market value of the property at $1,336,600 in 1997 and Dealers filed a petition in the tax court in 1998 pursuant to Minn.Stat. § 278.01 ■ (1998) challenging the assessment on the basis that it exceeded the property’s actual market value in violation of Minn.Stat. § 273.11, subd. 1 (1998), and that the-property was not assessed equally when compared with other property in violation of Dealers’ constitutional rights to equal protection and uniform taxation. The county responded that Minn.Stat. § 273.11, subd. 17 limits reductions in market value resulting from contamination, including the stigma factor, to the reasonable cost of a response action plan.

In granting Dealers’ motion for partial summary judgment, the tax court noted that Minn.Stat.. § 273.11, subd. 17 makes no reference to “stigma” — it addresses only reduction in market value resulting from the “presence of contaminants” — and that because stigma can remain after all contaminants have been removed from the property, it is incongruous to construe it to be included in “contamination value.” The court further noted that assessors are required to consider all relevant factors when valuing property and to assess property at market value, see Minn. Stat. § 273.12 (1998); Minn.Stat. § 273.11, subd. 1, and to exclude or limit the stigma factor in the valuation of the property would be inconsistent with this statutory mandate. Finally, the tax court reasoned that as the legislature was well aware of the impact of stigma on property tax revenues, if it had intended to include stigma among the factors determining contamination value, it would have referenced “stigma” in Minn.Stat. § 273.11, subd. 17. The tax court ordered a trial to determine the value of the property as of January 2, 1997, consistent with its ruling that the market value impact of stigma was not to be included in the contamination value for purposes of section 273.11, subd. 17.

Our review of an order of the tax court is limited to whether the court lacked jurisdiction or it was contrary to the evidence or based on an error of law. See Minn.Stat. § 271.10 (1998). The tax court appropriately grants summary judgment where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Minn. R. Civ. P. 56.03; see also Brookfield Trade Ctr., Inc., -609 N.W.2d at 873-74; Rule 81.01(a) (noting Minnesota Rules of Civil Procedure apply to tax court proceedings where not inconsistent with tax court procedures). The tax court’s partial summary judgment ruling is based on the resolution of a question of law which we review de novo. See F-D Oil Co., Inc. v. Commissioner of Revenue, 560 N.W.2d 701, 704 (Minn.1997).

We begin our analysis with the observation that we have recognized the practice of considering the market value impact of both the present value of cleanup costs and the stigma devaluative factor as appropriate considerations in determining the market value of contaminated properties. See Westling v. County of Mille Lacs, 543 N.W.2d 91, 93 (Minn.1996) (Westling II). In Westling II, we affirmed a market valuation of zero based on the estimated cost of clean-up and the stigma discount. Id.

The county argues however, that Minn. Stat. § 273.11, subd. 17 places a cap on deductions from market value relating to contamination, including the stigma factor, at the cost of a reasonable remediation plan. The county contends that even though the statute does not refer to “stigma,” the “presence of contaminants” is defined as “the release or threatened release * * * of contaminants on the property,” Minn.Stat. § 270.92, subd. 5 (1998)-thus because property affected by stigma is subject to the “release or threatened release” of contaminants, Minn.Stat. § 273.11, subd. 17 applies to stigma. The county attempts to provide a coherent application of Minn.Stat. § 273.11, subd. 17 consistent with its argument, contending that the statute should be applied in the following situations: where a taxpayer has not yet begun to implement a response action plan for property affected by stigma, the contamination value should equal the cost of such a plan; after the taxpayer has begun to implement the plan, the contamination value should equal the amount of the remaining clean-up costs plus any market value reduction resulting from stigma up to the total cost of the response action plan; as the plan nears completion, the portion of the deduction attributable to clean-up costs should decrease and the portion attributable to stigma should increase, with the deduction never exceeding the total cost of the response action plan.

The county’s argument fails for several reasons. First, a stigma factor can attach to property whether contaminants are present, are threatened, or are totally absent. Where, for example, a property has been successfully remediated leaving no contamination, or is in proximity to property that is contaminated, stigma may nonetheless be present as a heavy burden on the value of the property due to the perception of risk of liability, or government imposed restrictions on the use or transferability of the property, among other concerns. See Patchin, supra. Second, as the dissent concedes, the plain language of Minn.Stat. § 273.11, subd. 17 is that it applies only to property that is actually contaminated: “In determining the market value of property containing contaminants ⅜ ⅜ ⅜.» Because the term “contamination value” is defined as the reduction in market value resulting from the presence of contaminants, it does not include a stigma factor because stigma may attach to property that is not itself contaminated but nevertheless can have a substantial impact in determining the value.of uncontaminated property. Third, the county’s attempt to rationalize application of the statute under various scenarios is creative but has no basis in the language of Minn.Stat. § 273.11, subd. ,17 whatsoever. Fourth, in Westling II we recognized the separate bases for reduction in market value based on clean-up costs, on the one hand, and the stigma discount for environmental damage, on the other. 543 N.W.2d at 93. .To assume the legislature intended to include stigma in contamination value, which by definition is measured by the cost of cleanup, would inappropriately blur these distinct factors impacting market value.

Although we resolve Dealers’ claim based on the plain language of the statute, we also note that the legislative history fails to support the county’s position. The statute under review here was enacted in 1993 as part of an article of chapter 375 creating a contamination tax, a tax on the contamination value of taxable real property. See Act of May 24, 1993, ch. 375, art. 12, § 1-9, 1993 Minn. Laws 2728, 2941-45, now codified at Minn.Stat. §§ 270.91-98; Minn.Stat. § 273.11, subd. 17. In explaining' the tax revenue issues that precipitated the legislation, the committee chair referred to Westling v. County of Mille Lacs, Nos. C5-92-341, C7-92-342, 1993 WL 35155; at *3 (Minn.Tax Feb.10, 1993), rev’d 512 N.W.2d 863 (Minn.1994), where the tax court concluded that two properties that had been assessed at $974,200 had a market value of $100 due to contamination and stigma. Hearing on H.F. 427, H. Comm, on Taxes, 78th Minn. Leg., Mar. 26, 1993 (audio tape) (comments of Chair Rep. Rest). But. despite the committee chair’s specific reference to Westling, there was no suggestion that stigma was to be included in contamination value. We decline to read into the statute a construction that-contradicts the plain language of Minn.Stat. § 273.11,'subd. 17 and is unsupported by the legislative history.

The argument of the dissent relies heavily on the point that Dealer’s property was in fact contaminated and therefore the court should not be concerned with the devaluation effect of stigma on property that is not contaminated. We cannot avoid the issue before the court so simply however, as the sequence of this argument leads to the anomaly that stigma would be capped at the cost of the remediation plan for property that is contaminated, but for property that is not contaminated the stigma factor would be fully taken into account in determining the assessed value. The lack of any rational justification for this disparate treatment further underscores the logic of the court’s reasoning in concluding that stigma is not included in the contamination value.

Finally, the county’s interpretation of Minn.Stat. § 273.11, subd. 17 is inconsistent with Minnesota’s property tax scheme that provides that with limited exceptions, all property is to be valued at market value. The county argues that Minn.Stat. § 273.11, subd. 17 is one of those exceptions. We disagree. While it is true that Minn.Stat. § 273.11, subd. 17 creating the concept of contamination value is an exception to the general statutory rule of section 273.11, subd. 1 that “all property shall be valued at its market value,” the exception in subdivision 17 permits the reduction of market value - nowhere does it authorize a valuation greater than the market value which would be the result of failing to account for stigma. Further, consistent with the statutory admonition that the assessor must “consider and give due weight to every element and factor affecting the market value” of the property, section 273.11, subdivision 1 appears to specifically reject the argument of the county in its provision “the assessor shall take into account the effect on the market value of property of environmental factors in the vicinity of the property -a brief but clear recognition that environmental (e.g.contamination) factors affecting market value, although not present on the subject property, are to be taken into account. Stigma would appear to be one of those factors.

We hold that contamination value as defined by Minn.Stat. § 273.11, subd. 17 does not include stigma and therefore Dealers is entitled to partial summary judgment as a matter of law.

Affirmed.

■ BLATZ, Chief Justice

(dissenting).

I respectfully dissent. The majority holds that Minn.Stat. § 273.11, subd. 17 (1998), does not limit market value reductions for stigma associated with contaminated property. Because the plain language of subdivision 17 contemplates reductions resulting from the presence of contaminants, and stigma is such a reduction, I would reverse the tax court and hold that subdivision 17 limits all such reductions — including stigma — to the cost of cleaning up contaminated property.

Before discussing the merits of the majority decision, however, I must express my concern with the court’s consideration of this case at this time. In addition to the inappropriate procedural posture as noted by the majority in footnote 7, there have been no findings of fact as to the amount of stigma associated with the subject property in the contested tax year, or to any of the other value 'considerations necessary to deciding this case. Amazingly, the record does not even include an estimate of market value for the contaminated property at issue. All we know is that' the parties have apparently stipulated that the unimpaired market value of the property is $1,336,600, the clean-up costs have been projected to be $560,000, and the stigma impact “could possibly exceed $500,000.” Therefore, we do not know if the stigma value will even exceed the cost of clean-up, a key assumption of fact integral to the majority’s reasoning.

If on remand the tax court finds there to be little or no stigma associated with this contaminated property, that finding alone could render the issue before us moot. Thus, what we have before us is, in essence, an advisory opinion, something the “judicial function does not comprehend.” Izaak Walton League of Am. Endowment, Inc. v. State, Dep’t of Natural Resources, 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977). Nonetheless, the court might be well advised to decide the issue presented under the judicial economy exception of Tarutis v. Commissioner of Revenue, 393 N.W.2d 667, 669 (Minn.1986), and Brookfield Trade Ctr., Inc. v. County of Ramsey, 609 N.W.2d 868, 873-74 n. 6 (Minn.2000), if only to prevent the tax court from proceeding along its present course.

Turning to the issue before us, the majority writes that the plain language of Minn.Stat. § 273.11, subd. 17, is determinative in this controversy. I agree that the language of subdivision 17 is clear. It states:

In determining the market value of property containing contaminants, the assessor shall reduce the market value of the property by the contamination value of the property. The contamination value is the amount of the market value reduction that results from the presence of the contaminants, but it may not exceed the cost of a reasonable response action plan or asbestos abatement plan or management program for the property.

Minn.Stat. § 273.11, subd. 17(a) (emphasis added); see also Minn.Stat. § 270.93 (1998). Market value loss due to contamination is caused by several factors such as stigma, liability to the public, and clean-up costs. See Peter J. Patchin, Valuation of Contaminated Properties, Appraisal J., Jan. 1988, at 11. In other words, stigma is one contributor to market value reduction. Thus while the majority concludes that because stigma is not specifically mentioned in subdivision 17 it must be excluded from that statute, I reach the opposite conclusion. Because the statute does not specifically exclude stigma, it limits the market value reduction — whether it results from stigma or clean-up costs or something else — to the response action plan costs.

The majority’s reasoning in support of its interpretation of the plain meaning does not withstand scrutiny. First, the majority assumes that “contamination value” equates to “clean-up costs” just because the legislature chose to limit contamination value to the costs of the response action plan. Subdivision 17 provides that the contamination value “may not exceed the cost of a reasonable response action plan.” This language would be rendered superfluous if the contamination value was simply the cost to clean-up the contamination. See Minn.Stat. § 645.17(2) (1998) (providing that it must be presumed that the legislature intended the “entire statute to be effective and certain”). Rather, this language demonstrates that the legislature contemplated that while clean-up costs might contribute to a reduction in the market value of the property, clean-up costs and contamination value are not synonymous.

The companion contamination tax provisions at Minn.Stat. §§ 270.91-98 (1998) also contradict the majority’s equating of contamination value with clean-up costs. For instance, Minn.Stat. § 270.93 states:

The contamination value of a parcel of property is the amount of the market value reduction, if any, that is granted for general ad valorem property tax purposes for the assessment year because of the presence of contaminants. The contamination value for a property may be no greater than the estimated cost of implementing a reasonable response action plan * * *.

In other words, the legislature recognized that a property may not have any contamination value due to the presence of contaminants.

In addition, the legislative history leads to the conclusion that stigma is included in the contamination value. The first court decision in Minnesota to apply the concept of stigma was Westling v. County of Mille Lacs, Nos. C5-92-341 & C7-92-342, 1993 WL 35155, at *1-3 (Minn. Tax Ct. Peb. 10, 1993), where the value of a property was reduced from nearly $1,000,000 to $100 for tax assessment purposes due to stigma and costs to cure contamination on the property, even though the property generated $144,000 in annual rent for the owners and served as security, in part, for a $1,000,000 mortgage on the property. See Westling II, 543 N.W.2d at 92-93. Immediately following the filing of that decision, a bill proposing a contamination tax was introduced in the Minnesota legislature. See 1 Journal of the House of Representatives 183, 191 (78th Minn.Leg. Feb. 18, 1993). At the hearings on the bill, the Westling case result was noted as the impetus for a contamination tax to-recover lost property taxes from productive and valuable, although contaminated, properties. See Hearing on H.F. 427, H. Comm, on Taxes, 78th Minn. Leg., Mar. 26, 1993 (audio tape).

The assessors who spoke at the hearings on the bill explained the complications in valuing contaminated property. See id. Bob Hanscom, from the Hennepin County Assessor’s Office, stated: “It’s often difficult to identify the loss in value due to contamination. It isn’t necessarily just the cost to clean it up. It’s this stigma issue out there * * * .” Id. These comments comport with Patchin’s description of the loss in value for contaminated properties as caused by various factors, such as stigma and clean-up requirements. See Patchin, supra, at 11. Accordingly, the legislature’s use of the broad language “market value reduction that results from the presence of contaminants” clearly was meant to include stigma.

Finally, while I agree with some of the majority’s conclusions, I do not agree that they support the holding that stigma is separate from and independent of contamination value. Like the majority, I con-cludé that the contamination tax, and thus the contamination value described in Minn. Stat. § 273.11, subd. 17, applies only to property that is actually contaminated. I also agree that it may be possible for stigma to attach to a property whether or not contaminants are present. I do not agree, however, that these must be mutually exclusive conclusions. Simply because stigma may attach to uncontaminated or formerly contaminated properties does not mean that stigma was not included in this legislative response to the valuation of contaminated properties. In fact, to read stigma out of the statute is to unnecessarily limit the definition of contamination value and to ignore the context within which the statute was adopted.

Critically, the issue before us is the application of subdivision 17 to a contaminated property which is subject to a response action plan and which may be affected by stigma — not the applicability of that statute or of stigma to uncontaminated or formerly contaminated properties. Given that this is the central issue, it is critical to focus on the fact that in the case before us we have a contaminated property on the Superfund list. It is a property for which we do not know the market value, the stigma value, or the actual clean-up costs. Nonetheless, the majority has decided that a reduction in its value caused by an unknown stigma is not capped by the cost of the estimates of the response plan costs. Although that holding is advisory in and of itself, the majority then goes on to decide that for uncontaminated property, value may be reduced for stigma. These facts are not before us.

In addition to holding that contamination value includes stigma, I would hold that Minn.Stat. § 273.11, subd. 17, does not violate the Uniformity Clause of the Minnesota Constitution nor the Equal Protection Clause of the United States Constitution. These issues, as well as a claim that the tax was a governmental taking, were decided by Westling v. County of Mille Lacs, 581 N.W.2d 815 (1998) (Westling III). In Westling III, we held that the contamination tax provisions at Minn. Stat. §§ 270.91-98, which accompanied Minn.Stat. § 273.11, subd. 17, in the 1993 bill, are constitutional. See Westling III, 581 N.W.2d at 823-24. Although we did not expressly refer to Minn.Stat. § 273.11, subd. 17, that provision is clearly encompassed by the decision. First, the contamination tax is applied to the “ ‘market value reduction, if any, that is granted for general ad valorem property tax purposes * * * because of the presence of contaminants.’ ” Westling III, 581 N.W.2d at 818 (quoting Minn.Stat. § 270.93). Second, we recognized that the contamination tax “applies only to property that has been reduced in assessed value due to the presence of environmental contamination.” Westling III, 581 N.W.2d at 821. Finally, after concluding that the contamination tax violated neither the Uniformity Clause of the Minnesota Constitution nor the Equal Protection Clause of the U.S. Constitution, we held that Westling’s argument that “the imposition of a contamination tax in excess of the value of their property constitutes a governmental taking without compensation, is * * * without merit.” Id. at 822. Thus, because these constitutional arguments were made and decided by us in Westling, there is no need to revisit them here.

Given the record before us and our clear precedent, I would spurn the respondent’s invitation to unravel the statutes and our precedent interpreting it. Accordingly, I would reverse the tax court’s grant of partial summary judgment and remand for further proceedings.

PAGE, J.

I join in the dissent of Chief Justice Blatz.

PAUL H. ANDERSON, J.

I join in the dissent of Chief Justice Blatz.

      . The concept of "stigma” is based on the theory that the value of contaminated property is reduced due to the risk to a purchaser of liability for clean-up costs, fear of liability to members of the public who are harmed by contaminants on the property, and possible lack of mortgageability. See Peter J. Patchin, MAI, Valuation of Contaminated Properties, Appraisal J., Jan. 1988, at 7.

      . Minnesota Statutes § 278.01, subd. 1 provides a statutory remedy for a taxpayer whose property has been assessed in excess of market value:
      Any person having personal property, or any estate, right, title, or interest in' or lien upon any parcel of land, who claims that such property ⅜. * * has been assessed at a valuation greater than its real or actual value * * * may have the validity of the claim, defense, or objection determined by the district court * * * or the tax court

      Minn.Stat. § 278.01, subd. 1.

      . Minn.Stat. § 273.11, subd. 1 states: "Except as provided in this section * * * all property shall be valued at its market value."

      . See U.S. Const.amend. XIV, § 1; Minn. Const, art. X, § ■ 1. The partial summary judgment ruling by the tax court was based on a statutory analysis and therefore the court did not reach the issues related to the Equal Protection Clause of the United States Constitution or the Uniformity Clause of the Minnesota Constitution.

      . Minnesota Statutes § 273.11, subdivision 17 provides:
      In determining the market value of property containing contaminants, the assessor shall reduce the market value of the property by the contamination value of the property. The contamination value is the amount of the market value reduction that results from the presence of contaminants, but it may not exceed the cost of a reasonable response action plan or asbestos abatement plan or management program for the property.
      Minn.Stat. § 273.11, subd. 17.
      Section 273.11, subdivision 17 references Minn.Stat. § 270.92, subd. 6 (1998) for the definition of a response action plan which describes a plan to remove contamination approved by the commissioner of the MPCA or the commissioner of agriculture pursuant to Minn.Stat. § 469.174, subd. 17 (1998); Minn. Stat. chapter 115B (1998); Minn.Stat. chapter 18D (1998); or Minn.Stat. § 115C.03 (1998).

      . The tax court noted that representatives from county assessors' offices had testified regarding assessing properties impacted by stigma at a hearing of the House of Representatives Committee on Taxes. See Dealers Mfg. Co., 1999 WL 717228, at *4; see also Hearing on H.F. 427, H. Comm, on Taxes, 78th Minn. Leg., Mar. 26, 1993 (audio tape).

      . While we do not condone the advisory nature of the matter before us, we review this appeal in the interests of judicial economy. See Tarutis v. Commissioner of Revenue, 393 N.W.2d 667, 669 (Minn.1986). We repeat our warning in Brookfield Trade Center, Inc. v. County of Ramsey however, that with respect to appellate review not specifically authorized, our grant of discretionary review will be cautiously exercised. 609 N.W.2d 868, 873 n. 6 (Minn.2000).

      . Release is defined as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment which occurred at a point in time or which continues to occur.” Minn.Stat. § 115B.02, subd. 15 (1998).

      . In Dealers’ affidavit of Alan Leirness, MAI, he explained: "Stigma can exist even if contamination is not present on a property, e.g. a property adjacent to the subject site is known to be contaminated or the subject site is one where the contamination has been remediat-ed.”

      . The dissent errs in its assertion that our interpretation of the statute renders superfluous language that the contamination value "may not exceed the cost of a reasonable response action plan.” Minn.Stat. § 273.11, subd. 17. It is clear that this language effectively limits contamination value to clean-up costs for purposes of computing the contamination tax, see Minn.Stat. ' §§ 270.91-98 (1998), but in no way suggests that properties need not be assessed at a market value that takes into account the effects of stigma.

      .A representative from the Hennepin County Assessor’s Office commented as to the difficulties of valuing contaminated property, in- . eluding property affected by stigma, and the impact of such factors on county tax revenues. See Hearing on H.F. 427, H. Comm, on Taxes, 78th Minn. Leg., Mar. 26, 1993 (audio tape). The dissent argues that based on these statements the legislature intended to include stigma in contamination value, but the comments by the representative of the assessor’s office in fact support the opposite conclusion. Although clearly aware of the- effect of stigma on property tax valuations, the legislature failed to include stigrha in enacting the contamination tax provisions.

      . Minn.Stat. § 273.12.

      . Minn.Stat. § 273.11, subd. 1 (emphasis added).

      . In concluding that contamination value includes stigma, the dissent simply ignores these statutory mandates.

      . This incomplete record and procedural posture contrasts sharply with the record and procedural posture of the Westling line of cases. See Westling v. County of Mille Lacs, 581 N.W.2d 815 (Minn.1998) (Westling III); Westling v. County of Mille Lacs, 543 N.W.2d 91 (Minn.1996) (Westling II); Westling v. County of Mille Lacs, 512 N.W.2d 863 (Minn.1994) (Westling I). There a full trial on the valuation issue was conducted prior,to our review of the valuation of the contaminated property. See Westling I, 512 N.W.2d at 865-66. Accordingly, the tax court had heard testimony from experts as to the nature and extent of contamination and the present value of the future costs of clean-up; testimony by Peter J. Patchin, an appraiser for the tax petitioners, that the property had a negative market value based on his opinions as to the unimpaired market value, the loss of value due to stigma, and the clean-up costs; and testimony by the county's appraiser whose opinions of value, unsurprisingly, differed from Patchin’s. See Westling II, 543 N.W.2d at 93; Westling I, 512 N.W.2d at 865-66. Most importantly, the tax court rendered a decision in that matter, including its findings of fact as to the value of the property, based on its findings of fact as to the valuation components. See Westling II, 543 N.W.2d at 93.

      . The majority notes that in our 1996 Westling II, we affirmed a reduction in the value of a contaminated property to zero based on clean-up costs and a stigma discount. In so noting, the majority implies that this court has previously not applied Minn.Stat. § 273.11, subd. 17, to limit a reduction in market value to the costs of a response plan where a stigma reduction was also found. While true, subdivision 17 was not in effect for the tax years in question in Westling II. As we stated in our 1998 Westling III decision, Minn.Stat. § 273.11, subd. 17, which was enacted in 1993, was effective beginning with 1994 taxes, payable in 1995. The 1996 Wes-tling II case involved a tax petitioner's challenge to 1992 and 1993 assessed taxes, payable in 1993 and 1994.

      . This fact makes the majority’s opinion very puzzling. In its effort to bring in uncontaminated property as a justification for reading stigma out of the statute, it ignores the fact that uncontaminated property will not have to be cleaned up and is not subject to the contamination tax.

      . The majority’s statement that there is no "rational justification” for permitting uncontaminated properties, but not contaminated properties, to deduct for stigma is not supported by the law. First, subdivision 17 does not preclude all deductions for stigma; it just limits reductions in value for this difficult to define factor to the costs of a response action plan. More importantly, this assertion ignores our recent precedent in Westling III. In upholding the contamination tax scheme in Westling III, we held that there is a rational basis for treating contaminated and uncontaminated properties differently. See Westling III, 581 N.W.2d at 821. Among the reasons identified were that contaminated property may result in increased health risks and contributes to community blight and economic distress. See id. at 821. "Contaminated property thereby poses a greater burden on society than uncontaminated property.” Id. As we said in Westling III, "the presence of environmental contamination, along with the extent of responsibility for clean up, are genuine and rational bases” for treating contaminated and uncontaminated properties differently. Id.

      . The majority also points to Minn.Stat. § 273.11, subd. 1 (1998), in support of its holding. Subdivision 1 provides that the "assessor shall take into account the effect on the market value of the property of environmental factors in the vicinity of the property.” Minn. Stat. § 273.11, subd. 1. The majority cites this statutory provision as support for its conclusion that "environmental (e.g.contamination) factors affecting market value, although not present on the subject property, are to be taken into account.” Again the majority's reach is beyond the scope of the issues before us. This case is about a contaminated property — not an uncontaminated property in proximity to other contaminated properties. Further, the statutes at issue are expressly concerned with environmental factors in that they recognize the effects of contamination on property values and set forth a framework to assess and tax the properties accordingly. Finally, even if subdivisions 1 and 17 of Minn. Stat. § 273.11 are in conflict, and I do not believe they are, subdivision 17 is the more specific and most recently enacted and would be applied to the subject property. See Minn. Stat. § 645. 26, subds. 1, 4 (1998).


author: WILLIS, Judge.

text:
    STATE of Minnesota, Respondent, v. Jason DeWayne SCHWARTZ, Appellant.
    No. C1-99-1946.
    Court of Appeals of Minnesota.
    June 26, 2000.

      Mike Hatch, Attorney General, Gary R. Cunningham, Assistant Attorney General, St. Paul, and Boyd Beccue, Kandiyohi County Attorney, Willmar, for respondent.
    John E. Mack, Mack & Daby, New London, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge, HARTEN, Judge, and WILLIS, Judge.
   OPINION

WILLIS, Judge.

Jason DeWayne Schwartz appeals from the district court’s order denying his petition for postconviction relief and dismissing his petition for a writ of habeas corpus. We affirm.

FACTS

In August 1996, Schwartz was convicted of two counts of second-degree criminal sexual conduct for fondling a four-year-old child. The district court sentenced him to concurrent prison ternas of 21 months on the first count and 26 months on the second count. The district court stayed execution of the sentences subject to certain terms and conditions and placed Schwartz on probation for five years.

The stay required Schwartz to serve 365 days in the Kandiyohi County jail and to participate in a sex-offender treatment program. Schwartz participated in 31 sessions but was discharged from the treatment program short of completion because he refused to admit that he touched the victim inappropriately.

At a July 1998 hearing to revoke Schwartz’s probation, Schwartz argued that it was improper to require him to admit to sexual misconduct because it violated his Fifth Amendment and due-process rights. The state offered Schwartz immunity for any admissions that he might make in the course of treatment, and the district court allowed him to continue on probation, again on the condition that he successfully complete a sex-offender treatment program.

In December 1998, the district court revoked Schwartz’s probation and executed his sentence because of Schwartz’s refusal to admit to sexual misconduct. The district court also imposed a five-year conditional-release term. This court affirmed the district court’s revocation of probation. State v. Schwartz, 598 N.W.2d 7, 10, (Minn.App.1999), review denied (Minn. Sept. 28, 1999). Schwartz served his commitment with the Commissioner of Corrections and was released in May 1999, subject to a conditional-release agreement, providing, in part, that he have no contact with minors without the prior approval of his supervising agent.

On or about October 2, 1999, Schwartz drove to a Pamida store with his adult male friend, C.B., who was carrying his two-year-old child. Allison Deal, Schwartz’s supervising agent, saw Schwartz in the presence of the child. Deal claimed that Schwartz violated the conditions of his release and on October 12, 1999, an executive officer with the Department of Corrections conducted a revocation-of-release hearing. Schwartz admitted to Deal’s allegation but denied that it was a violation of the conditions of his release.

The hearing officer revoked Schwartz’s conditional release and directed his return to a state correctional facility to serve the remainder of his conditional-release term. Schwartz sought review of the hearing officer’s decision by filing a petition for post-conviction relief and a petition for a writ of habeas corpus in district court. Schwartz alleged that the administrative hearing denied his constitutional rights to judicial review and due process. Schwartz further alleged that the procedure was defective because it was an unlawful and unconstitutional violation of the separation-of-powers doctrine. The district court denied the petitions, and Schwartz appeals.

ISSUES

I. Does the Commissioner of Correction’s authority under Minn.Stat. § 243.05 (1998) to grant parole releases, to rescind parole releases, and to reincarcerate violate the Separation of Powers provision of the Minnesota Constitution?

II. Did the hearing officer clearly abuse his discretion by concluding that Schwartz violated the terms of his conditional release by riding in a vehicle with a two-year-old child?

III. Does the Commissioner of Correction’s authority under Minn.Stat. § 609.109, subd. 7(b) (1998), to revoke a sex offender’s conditional release and order that the offender serve in prison the remaining portion of the conditional-release term violate the Separation of Powers provision of the Minnesota Constitution?

ANALYSIS

I. Separation of Powers

Schwartz argues that Minn.Stat. § 243.05, subds. 1(a), 1(b) (1998), which gives the Commissioner of Corrections the authority to grant parole releases, to rescind parole releases, and to reincarcerate violates the Separation of Powers clause of the Minnesota Constitution, which provides that

[t]he powers of government shall be divided into three distinct departments: legislative, executive, and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.

Minn. Const, art. Ill, § 1. A challenge to the constitutionality of a statute is a question of law, which this court reviews de novo. In re Blilie, 494 N.W.2d 877, 881 (Minn.1993).

Since 1887, an administrative body has made parole determinations in Minnesota. 1887 Minn. Laws ch. 208, § 14. Parole involves releasing prisoners before the end of their sentences, allowing them to “reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed.” Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 2598, 33 L.Ed.2d 484 (1972). There are several types of authorized release in Minnesota, including supervised release under Minn. Stat. § 244.05 (Supp.1999); conditional medical release under Minn.Stat. § 244.05, subd. 8 (1998); and conditional release for sex offenders under Minn.Stat. § 609.108, subd. 6 (1998), and Minn.Stat. § 609.109, subd. 7 (1998). Conditional release for sex offenders under section 609.109, subdivision 7, is at issue here.

The Commissioner of Corrections has been responsible for oversight of Minnesota’s parole system since 1983. 1983 Minn. Laws ch. 274, § 4. In 1921, the Minnesota Supreme Court determined that administration of Minnesota’s parole system by the Board of Probation and Parole did not violate any constitutional provision. See State ex rel. Jaffa v. Crepeau, 150 Minn. 80, 82, 184 N.W. 567, 568 (1921). This case presents the first challenge to the constitutionality of the parole system, on the ground of separation of powers, since the Commissioner of Corrections has assumed oversight.

In support of his argument that Minnesota’s parole system constitutes executive interference with the judiciary, Schwartz cites two recent Minnesota Supreme Court cases, Holmberg v. Holmberg, 588 N.W.2d 720 (Minn.1999), and Irwin v. Surdyk’s Liquor, 599 N.W.2d 132 (Minn.1999). Although neither case involves Minnesota’s parole system, both involve administrative schemes that were found to violate the separation-of-powers doctrine. In Holm-berg, the supreme court held that the statutory administrative child-support process violated the state constitution’s Separation of Powers provision by unconstitutionally impinging on the powers of the judiciary. 588 N.W.2d at 726. The supreme court looked to several factors to determine whether the administrative process impinged on the judicial branch, including (1) whether the original jurisdiction of the court was usurped; (2) whether the decision-maker made inherently legal decisions; (3) whether there was adequate judicial oversight of • the administrative scheme; and (4) whether the administrative scheme impinged on the judiciary’s power to oversee the practice of law. Id. at 724-26.

First, we consider whether the Commissioner of Correction’s authority to revoke parole and reincarcerate usurps the original jurisdiction of the district court. In analyzing this factor, we look to “the origins of the rights and relief, equitable or statutory, [that] an agency oversees.” Id at 724. Corrections officials, who are administrative rather than judicial officers, have historically administered parole in Minnesota. See Bailey v. Gardebring, 940 F.2d 1150, 1156 (8th Cir.1991). Therefore, parole revocation is not within the district court’s original jurisdiction.

Second, décisions concerning parole are not inherently legal decisions. Parole is possible only after criminal prosecution and imposition of a sentence. See Morrissey, 408 U.S. at 480, 92 S.Ct. at 2600. And an administrative agency, rather than the court, supervises releasees. Id.

Third, adequate judicial oversight exists. Habeas corpus relief is available in the district court for review of a decision revoking an inmate’s parole. See State ex. rel. Fox v. Young, 293 Minn. 527, 528, 199 N.W.2d 156, 156 (1972) (reviewing propriety of parole revocation in appeal from district court’s denial of habeas corpus relief). And direct appeal may be made from a district court’s decision on a petition for a writ of habeas corpus, as was done in this case.

Finally, Minnesota’s parole system does not impinge on the judiciary’s power to oversee the practice of law. In Irwin, the supreme court struck down a statutorily imposed limitation on attorney fees in worker’s compensation cases because it impinged on the judiciary’s power to oversee attorneys and attorney fees. 599 N.W.2d at 142. In Holmberg, the supreme court struck down an administrative scheme that enabled non-attorney child-support officers (CSOs) to draft pleadings and appear at hearings to represent the public without attorney supervision. 588 N.W.2d at 726.

Schwartz compares the functions of a supervising agent with those of a CSO. Under Minn. Rule 2940.4200 (1997), the supervising agent sháll (1) give the releas-ee a copy of the violation report; (2) advise the releasee of the purpose of the hearing and of his or her rights with respect to the hearing; and (3) prepare a notice-of-hearing form and make and distribute copies of relevant documents in preparation for the hearing. And under Minn. Rule 2940.3900 (1997), a supervising agent shall investigate alleged violations of release and consult with his or her supervisor to determine whether grounds exist to initiate revocation proceedings. But all of these tasks are either administrative or akin to the duties of a police officer, and none involves the unauthorized practice of law.

Schwartz also argues that a non-lawyer hearing officer should not have the authority to reincarcerate a releasee. But the Supreme Court has held that a parole-revocation hearing need not be held before a judge or a legally trained officer. Morrissey, 408 U.S. at 488-89, 92 S.Ct. at 2603-04 (stating that the “granting and revocation of parole are matters traditionally handled by administrative officers”).

In view of the Holmberg factors, Minnesota’s parole system does not violate the separation-of-powers doctrine.

II. No-Contact Provision

Schwartz argues that the hearing officer erroneously concluded that riding in a vehicle with a two-year-old child violated the conditions of his release. When reviewing a decision to revoke an offender’s release, this court must determine whether there has been a clear abuse of discretion. See State v. Austin, 295 N.W.2d 246, 249-50 (Minn.1980). Although this court “might reach a contrary conclusion to that arrived at by an administrative body, the court cannot substitute its judgment for that of the administrative body when the finding is properly supported by the evidence.” Vicker v. Starkey, 265 Minn. 464, 470, 122 N.W.2d 169, 173 (1963) (citation omitted).

As a condition to his release from prison, Schwartz was to have “no direct or indirect contact with minors without [the] express prior approval of [his] supervising agent.” On October 2, 1999, Schwartz’s supervising agent saw him driving his car with two passengers. Schwartz’s friend, C.B., was in the passenger seat holding his two-year-old child.

A hearing was held before the commissioner’s representative to determine whether Schwartz violated the conditions of his release. At the hearing, Schwartz’s supervising agent testified to what she witnessed. Schwartz admitted that he was in the car with the child, but argued that traveling in a car with a two-year-old child held in his father’s arms was not a violation of his probation. Schwartz testified that he understood contact to mean a more significant interaction. But both Schwartz and C.B. testified that they were aware that Schwartz could have contact with children only if their parents met with the supervising agent to authorize such contact. No authorization was sought here.

Schwartz argues that the no-contact provision in his conditional-release agreement is unconstitutionally vague. Authorities charged with making parole decisions have broad discretion in determining whether to grant parole and in setting the conditions of parole. Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 9-11, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668 (1979). Moreover, the Supreme Court has recognized that vague terms are appropriate in the parole context. Morrissey, 408 U.S. at 479, 92 S.Ct. at 2599. In Morrissey, the Court stated that “[t]he broad discretion accorded the parole officer is * * * inherent in some of the quite vague conditions [of release], such as the typical requirement that the parolee avoid ‘undesirable’ associations or correspondence.” Id.

Under the facts of this case, where Schwartz understood there was a procedure for authorizing contact with children but failed to follow that procedure, the record supports the hearing officer’s decision to revoke Schwartz’s conditional release.

III. Habeas Corpus

The district court denied Schwartz’s petition for a writ of habeas corpus, finding that the Department of Corrections legally detained Schwartz pursuant to its administrative authority. This court gives great weight to the district court’s findings in considering a petition for a writ of habeas corpus and will uphold the findings if the evidence reasonably supports them. Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn.App.1998), review denied (Minn. Nov. 17,1998).

Schwartz argues that he is being unlawfully detained beyond the terms of his imprisonment. Schwartz contends that the Commissioner of Corrections cannot increase the length of a defendant’s sentence beyond the sentence imposed by the district court. But Minn.Stat. § 609.109, subd. 7(a) (1998), provides that

[notwithstanding the statutory maximum sentence otherwise applicable to the offense or any provision of the sentencing guidelines, when a court sentences a person to prison for a violation of section * * * 609.343 [second-degree criminal sexual conduct], the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release. If the person was convicted for a violation of section ⅜ * * 609.343, ⅜ * * the person shall be placed on conditional release for five years, minus the time the person served on supervised release.

Also, Minn.Stat. § 609.109,- subd. .7(b) (1998), provides that

[i]f the offender fails to meet any condition of release, the commissioner may revoke the offender’s conditional release and order that the offender serve the remaining portion of the conditional release term in prison.

Here, in December 1998, when the district court revoked Schwartz’s probation, it imposed the five-year conditional-release term required by MinmStat. § 609.109 (1998).

Schwartz challenges the hearing officer’s authority to “sentence” defendants to up to five years in prison. Schwartz contends that this practice violates the Separation of Powers provision of the Minnesota Constitution by allowing a non-lawyer hearing officer to act as a judge and impose a greater sentence, in some cases, than that imposed by the district court. But it is the court that imposes the term of conditional release at sentencing. See Minn.Stat. § 609.109, subd. 7(a). And once a defendant is committed to the Department of Corrections, decisions concerning revocation of a conditional release are within the department’s discretion. See Minn.Stat. § 609.109, subd. 7(b).

DECISION

The district court did not err in denying Schwartz’s petition for postconviction relief and petition for a writ of habeas corpus.

Affirmed.

      . In this opinion, we use the term "parole” generically to include other forms of conditional release as used by the legislature in Minn.Stat. § 243.05. We recognize that for most offenders "supervised release” has replaced parole. See Minn.Stat. 244.05 (1998).