author: TOUSSAINT, Chief Judge. ROSS, Judge

text:
    Erin J. OSBORNE, individually and as parent and natural guardian of Alexia Ray Osborne Riley, et al., Appellants, v. TWIN TOWN BOWL, INC., d/b/a Jerry Dutler Bowl, Respondent.
    No. A06-1007.
    Court of Appeals of Minnesota.
    April 24, 2007.

      Kenneth R. White, MacKenzie Gustaf-son, Ltd., St. Peter, MN, for appellants.
    Steven E. Tomsche, Daniel P.H. Reiff, Bryan B. Carroll, Tomsche, Sonnesyn Tomsche, P.A., Minneapolis, MN, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge; TOUSSAINT, Chief Judge; and ROSS, Judge.
   OPINION

TOUSSAINT, Chief Judge.

In this civil-damage action, appellants Erin J. Osborne, individually and as parent and natural guardian of Alexia Ray Osborne Riley, Michael R. Riley Sr., Marie A. Riley, and Kelly M. Riley challenge the summary judgment entered in favor of respondent Twin Town Bowl, Inc. d/b/a Jerry Dutler Bowl on the issue of proximate cause. Because the undisputed facts do not support a proximate-causal relationship between the decedent’s intoxication and his drowning, we affirm.

FACTS

After drinking with friends, Michael Riley Jr. left Jerry Dutler Bowl. Shortly thereafter, about 1:30 a.m., on April 20, 2001, a state trooper clocked Riley driving 74 miles per hour in a 50-mile-per-hour zone. Based on the radar reading, the trooper turned around, speeded up, and activated his squad car’s emergency lights and siren. He followed as Riley took an exit ramp, maneuvered as if to avoid the trooper, took a right turn, drove on the shoulder, and pulled over on a bridge across the Minnesota River.

When the trooper approached the vehicle and Riley opened the window, the trooper smelled alcohol. Riley failed a variety of field sobriety tests; a preliminary breath test indicated his alcohol concentration was .18.

The trooper informed Riley that he was going to place him under arrest for driving while intoxicated. When he turned his back on Riley to put the breath-test equipment back into his patrol ear, the trooper heard Riley say, “I’m out of here.” The trooper turned around and saw Riley on the bridge barrier. The trooper yelled, “No,” but Riley jumped. The parties agree that Riley jumped to escape arrest. The river was swollen and far above flood levels; Riley’s body was recovered several months later.

Appellants are Riley’s daughter, girlfriend, parents, and sister. Their civil-damage complaint alleges that respondent caused Riley’s death. Appellants obtained a postmortem report by psychologist George V. Komaridis, Ph.D., that concluded that Riley’s inebriation played “a substantial part in bringing about his decision to jump.” Respondent’s motion to dismiss the complaint for lack of causation was denied, but, after additional discovery, its motion for summary judgment on the causation issue was granted.

ISSUE

Did the district court err in ruling as a matter of law that the decedent’s intoxication was not a proximate cause of his drowning?

ANALYSIS

“On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact, and (2) whether the [district] court[ ] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal con-elusion, reviewed de novo by the appellate court. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

The statute at issue here is the Minnesota Civil Damage Act, which provides:

A spouse, child, parent, guardian, employer, or other person injured in person, property, or means of support, or who incurs other pecuniary loss by an intoxicated person or by the intoxication of another person, has a right of action in the person’s own name for all damages sustained against a person who caused the intoxication of that person by illegally selling alcoholic beverages.

Minn.Stat. § 340A.801, subd. 1 (2006). To state a claim under the Act, a plaintiff must prove that the intoxication was a proximate cause of the plaintiffs injuries. Hartwig v. Loyal Order of Moose, Brainerd Lodge No. 1246, 253 Minn. 347, 363, 91 N.W.2d 794, 806 (1958). A “direct causal relationship between the intoxication and the injury” is required. Kryzer v. Champlin Am. Legion No. 600, 494 N.W.2d 35, 36 (Minn.1992).

The sole issue before the district court and this court on appeal is whether there is sufficient evidence of proximate cause for the action to survive summary judgment. Although proximate cause generally is a question of fact for the jury, “where reasonable minds can arrive at only one conclusion,” proximate cause becomes a question of law and may be disposed of by summary judgment. Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn.1995).

Kryzer is the controlling easelaw on the issue of proximate cause in a civil-damage action. In Kryzer, an intoxicated person injured her wrist while she was being removed from a bar by the bar’s employee. 494 N.W.2d at 35. The supreme court reinstated the district court’s judgment of dismissal of the action based on the lack of a causal connection between the person’s intoxication and her broken wrist. The Kryzer court stated that the person’s “intoxication may have been the occasion for her ejection from the legion club, but it did not cause either her injury or that sustained by the plaintiff [her husband].” Id. at 37. The Kryzer court reiterated its rejection of a “but for” test to show proximate cause between the intoxication and the injury. Id.

In civil-damage cases, courts must distinguish “between the occasion and the cause of an injury.” Id. For its holding, the Kryzer court relied on Nelson v. Chicago, M. & St. P. Ry. Co., 30 Minn. 74, 14 N.W. 360 (1882), cited with approval in Kryzer, 494 N.W.2d at 37. There, a railroad’s failure to erect a fence may have been the “occasion” for a chain of events leading to an escaped mule running along an unfenced track and eventually breaking its leg. But the mule’s act of stepping into a hole, not the railroad’s failure to fence, was the direct and natural cause of the mule’s broken leg. Nelson, 30 Minn. at 76, 14 N.W. at 361. Similarly, in civil-damage actions, a patron’s intoxication must be more than the occasion for the injury, it must be the direct cause of the injury. Kryzer, 494 N.W.2d at 35. Accordingly, intoxication was not the cause of injuries when an overserved, intoxicated patron encouraged a third party to fight another, who was injured in the fight, Crea v. Bly, 298 N.W.2d 66 (Minn.1980), cited with approval in Kryzer, 494 N.W.2d at 38, or when an overserved, intoxicated person assaulted the passenger in his car, who then was injured while exiting the vehicle to avoid the assault. Kunza v. Pantze, 531 N.W.2d 839 (Minn.1995) (summarily reinstating summary judgment entered in favor of bar on issue of proximate cause and citing Kryzer), rev’g 527 N.W.2d 846 (Minn.App.1995).

Appellants argue that Riley’s intoxication directly caused his death. The district court concluded, as a matter of law, it did not. We agree with the district court.

Events occurring between Riley’s intoxication at Jerry Dutler Bowl and his drowning preclude the conclusion that the intoxication caused the drowning. First, Riley drove 24 miles over the speed limit and was stopped for speeding. No evidence indicates that Riley’s speed-limit violation or that the trooper’s decision to stop Riley for speeding was directly caused by the intoxication. In fact, the trooper stated that Riley’s speed was the only reason he stopped him. Only after these events, did the trooper smell alcohol, test Riley, and then advise him he was under arrest. The parties do not dispute that Riley jumped off the bridge to “escape arrest.” Absent evidence that Riley’s intoxication was the reason for his speeding, the trooper’s stop, or Riley’s fleeing arrest, these actions constitute breaks in the chain of causation between Riley’s intoxication and his drowning.

No genuine issue for trial exists “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). “[T]he party resisting summary judgment must do more than rest on mere averments.” Id. at 71. “[W]hen the nonmoving party bears the burden of proof on an element essential to the nonmoving party’s case, the nonmoving party must make a showing sufficient to establish that essential element.” Id.; see also Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn.2006) (clarifying that “summary judgment is inappropriate if the nonmov-ing party has the burden of proof on an issue and presents sufficient evidence to permit reasonable persons to draw different conclusions” (emphasis in original)); Nicollet Restoration v. St. Paul, 533 N.W.2d 845, 848 (Minn.1995) (stating that nonmoving party obligated to present “specific admissible facts” on summary judgment). “[Wjhen determining whether a genuine issue of material fact for trial exists, the court is not required to ignore its conclusion that a particular piece of evidence may have no probative value, such that reasonable persons could not draw different conclusions from the evidence presented.” DLH, Inc., 566 N.W.2d at 70.

In response to respondent’s motion for summary judgment, appellants submitted a psychologist’s report for the proposition that Riley’s intoxication was the cause of his drowning. Without ruling on the report’s admissibility, the court stated in a footnote that the report was of “minimal evidentiary value.” The court noted that the report was “dated three and a half years after Riley’s death, and was based on a review of medical and legal records and statements of Riley’s family and friends.” None of the report’s supporting records or statements are part of the record, and the report did not state that the psychologist had ever seen or treated Riley.

Generally, “unless otherwise agreed by the parties, expert opinions are to be presented through expert testimony.” Kelly v. Ellefson, 712 N.W.2d 759, 771 (Minn.2006) (affirming trial court’s exclusion of toxicologist’s affidavit at trial); see Minn. R. Evid. 702 (allowing testimony, not affidavit, of expert’s “specialized knowledge”). This requirement avoids the laundering of inadmissible hearsay evidence through an expert’s report. Kelly, 712 N.W.2d at 771 (citing State v. DeShay, 669 N.W.2d 878, 886 (Minn.2003)). Furthermore, expert psychiatric opinion on the effects of mental illness and intoxication is generally inadmissible because it is within the common knowledge of laypeople. State v. Griese, 565 N.W.2d 419, 425 (Minn.1997) (reviewing district-court decision to limit scope of expert-witness testimony about mental condition of defendant charged with first-degree murder). The facts of intoxication and alcohol concentration may be admissible, but not expert testimony on how intoxication may have impaired a party’s capacity to form specific intent. Id.

The district court properly assessed the value of the expert report submitted to defeat respondent’s summary-judgment motion. As evidence offered to show the effects of Riley’s intoxication on his decision to jump, the report had minimal evi-dentiary value. Absent evidence permitting reasonable persons to conclude that Riley’s intoxication caused his drowning, the court properly granted summary judgment for respondent.

DECISION

The district court did not err in granting summary judgment in appellants’ civil-damage action on the essential element of proximate cause when the record contained insufficient probative evidence of a direct causal relationship between the decedent’s intoxication and his drowning.

Affirmed.

ROSS, Judge

(dissenting).

I am persuaded that the majority construes the caselaw on proximate cause too broadly in its decision to affirm summary judgment, and I respectfully dissent. I do not believe that the recent precedent precludes a jury from determining that proximate cause existed on the presently accepted facts. A factfinder could decide that Riley’s intoxication so reduced his inhibitions, impaired his judgment, and deluded Ms perception that he chose imprudently to step from a bridge into a rushing river based on the misperception that he could swim safely to its bank. I therefore would reverse and remand for a trial.

The purposes of the Civil Damage Act are to protect public health, safety, and welfare by carefully regulating liquor distribution, to penalize dram shops for illegal liquor sales, and to provide a remedy for innocent third persons injured “as a result of another’s intoxication.” Englund v. MN CA Partners/MN Joint Ventures, 555 N.W.2d 328, 332 (Minn.App.1996), affd 565 N.W.2d 433 (Minn.1997). Liability under the act depends only on whether an illegal sale of alcohol intoxicated a person and whether that intoxication caused injury. Rambaum v. Swisher, 435 N.W.2d 19, 21 (Minn.1989) (stating elements for establishing dram-shop liability). In other words, the focus is on whether the intoxication impaired the patron’s physical or mental faculties so that his injurious actions can be said to result from the over-service and excessive consumption of alcoholic beverages. The caselaw that defines proximate cause does not invite courts to decide as a matter of law that proximate cause is lacking when, as here, the facts suggest a direct link between the intoxication and the overserved patron’s injurious act. The majority’s proximate-cause holding looks to factors that contributed to the traffic stop (which caused no injury) rather than to the single factor that allegedly contributed to the decision to jump— arguably, intoxication.

These essential facts are accepted for our summary-judgment analysis: A Jerry Dutler Bowl employee unlawfully served Michael Riley alcoholic beverages. The illegal sale intoxicated Riley at nearly twice the legal threshold at the time. A trooper stopped Riley’s vehicle for speeding soon after he left Jerry Dutler Bowl. The trooper told Riley that he would be arrested for driving while intoxicated, and Riley calmly mounted and jumped from the highway-bridge railing into the fast-flowing river to escape arrest, announcing, “I’m out of here.” Someone found his body months later.

The majority rests its decision on three cases. A uniform plot precipitated dismissal as a matter of law in each of these cases: some third person, uninfluenced by the dram shop’s service of alcohol, decided to engage in the act that directly caused injury. But this uniform plot is entirely absent from the case before the court today. This case therefore calls for a different result.

In Kryzer, a bouncer tossed a disruptive, intoxicated patron from a bar, causing the patron injuries. Kryzer v. Champlin Am. Legion No. 600, 494 N.W.2d 35, 36 (Minn.1992). In Kunza, a passenger in a moving van decided to leap from the vehicle to evade abuse by her intoxicated husband, causing her injuries. Kunza v. Pantze, 527 N.W.2d 846, 847-48 (Minn.App.1995), rev’d 531 N.W.2d 839 (Minn.1995). And in Crea, a man attacked the plaintiff after an instigating, intoxicated woman encouraged him to do so. Crea v. Bly, 298 N.W.2d 66, 66 (Minn.1980). A fourth case also contains this plot. In Weber, a police officer decided to chase and apprehend a belligerent, intoxicated minor, causing the officer injuries. Weber v. Au, 512 N.W.2d 348, 349 (Minn.App.1994). In each case the injured person sued under a dram-shop theory of liability. And in each case, the claimant lost, as a matter of law, for lack of proximate cause.

The reasons the Minnesota appellate courts rejected these claims as a matter of law highlight that dram-shop liability must rest on intoxication-induced action that causes injury, not on a third-party’s reaction to the intoxicated person, which in turn causes the injury. These cases stand for the unremarkable proposition that the merely responsive injurious action by a third person, as a matter of law, is too attenuated to constitute proximate cause because the action is not a direct product of the patron’s intoxication. In Kryzer, the supreme court emphasized that “[t]he complaint alleges only that it was an act of a club employee in ejecting her which caused the injury.” Kryzer, 494 N.W.2d at 37. In Kunza, the supreme court summarily reinstated summary judgment after this court reversed the district court, relying expressly on Kryzer. Kunza, 531 N.W.2d at 839. In Crea, the court explained that “[wjhile the duties of dram shops to the public are and should be onerous, they do not extend to anticipating and protecting the public from the excesses of third parties beguiled into committing assaults on innocent victims by the importuning of intoxicated ... patrons.” Crea, 298 N.W.2d at 66. And in Weber, this court explained that “Weber has made no allegation that the [minor’s] intoxication had any role in the injury Weber sustained when he apprehended the minor after chasing him on foot.” Weber, 512 N.W.2d at 350.

In sharp contrast to the clear pattern of merely responsive actions by third parties addressed in these dismissed cases, the appellants here rely on a traditional dram-shop theory, focusing directly on action taken by Riley that caused injury. That is, rather than resting their claim on injuries that resulted from a third-party’s reaction to an intoxicated patron’s conduct, the appellants contend that Jerry Dutler Bowl served alcohol unlawfully, causing Riley’s intoxication, and that this intoxication itself caused Riley to engage in the injurious conduct for which the bar is liable. Whether Riley’s reckless decision to plunge into the river resulted from his intoxication or from some other motivation is precisely the type of factual consideration that juries have made in time-honored dram-shop cases. See, e.g., Kvanli v. Village of Watson, 272 Minn. 481, 485, 139 N.W.2d 275, 278 (1965) (holding that “[t]he jury could infer that lack of judgment or perception resulting from intoxication produced by the consumption of the liquor was a proximate cause of the events which brought about the injury”); Murphy v. Hennen, 264 Minn. 457, 461, 119 N.W.2d 489, 492 (1963) (holding that sufficient evidence supported jury verdict holding bar liable when intoxicated patron’s vehicle sideswiped one vehicle and later collided with vehicle plaintiffs daughter was driving); Fette v. Peterson, 404 N.W.2d 862, 864 (Minn.App.1987) (affirming jury verdict finding bar liable when intoxicated person mistook stop sign for green light and struck another vehicle), review denied (Minn. June 26, 1987); Danielson v. Johnson, 366 N.W.2d 309, 313 (Minn.App.1985) (holding that district court did not err by submitting to jury question of liquor stores’ liability in negligence action against other parties after settlement with stores because “there is evidence for the jury’s findings that the liquor stores made illegal sales to minors, that such sales proximately contributed to [the defendant’s] intoxication, and that [his] intoxication was the proximate cause of the [car] collision”), review denied (Minn. June 24,1985).

This ease does not at all fit into the Kryzer line of dismissible cases. It would if, for example, Riley’s intoxication contributed to violent conduct by Riley during the traffic stop and the trooper, in response, had attempted to seize Riley and unintentionally (or even intentionally) pushed him into the river. In that situation it would be accurate to hold that, as a matter of law, Riley’s intoxication is the occasion for but not the cause of the injury.

But the majority instead places undue emphasis on the traffic stop and Riley’s attempt to avoid arrest. It emphasizes that “[n]o evidence indicates that Riley’s speed-limit violation or that the trooper’s decision to stop Riley for speeding was directly caused by the intoxication.” The majority therefore concludes that the speeding, stop, and attempted escape “constitute breaks in the chain of causation between Riley’s intoxication and his drowning.” In doing so, the majority misses that Riley’s allegedly clouded mis-perception that he could safely enter into and swim out of the river is the real focus of the proximate-cause analysis. In my opinion, it is this distraction concerning the circumstantial trigger to Riley’s decision to act on his misperception that takes the majority astray and leads it to see distance in the “chain of causation between Riley’s intoxication and his drowning.” But the only causal link between Riley’s intoxication and his drowning is his plunge, which his survivors insist was based on a misperception caused by the alcohol that Jerry Dutler Bowl overserved Riley. The attendant circumstances within these material facts should be of little consequence. What if Riley had stopped on the bridge to fix a flat tire, or to pick up a hitchhiker, or to avoid colliding with a hallucination? The reason for his presence on the bridge does not bear on whether his intoxication caused his injuries. And what if, in any of these circumstances, a passing stranger had dared him to jump into the river, or had paid him to do so? Or what if he had merely imagined that a police officer was attempting to arrest him?

I view these hypothetical scenarios as I view the actual traffic stop and arrest: they are incidental stimulants that might spark an intoxicated person to consider acting on a dangerous alcohol-induced mis-perception. Whether the trooper’s lawful actions would have led a sober Riley to jump should doubtless be of significant concern to the jury. But I do not believe that these incidental triggering circumstances provide a basis to determine proximate cause as a matter of law when it is alleged, and the facts arguably support, that intoxication directly caused the injurious action. I therefore would not determine proximate cause as a matter of law based on the stop, on the trooper’s attempt to arrest Riley, or on Riley’s attempt to avoid arrest.

I add a concern that the majority’s analysis and conclusion seem to suggest that a dram shop is not liable when the intoxicated patron becomes a driver who violates the law, and the violation then leads to the injury. This suggestion inadvertently invites the defense of superseding causation, which precedent has barred in dram-shop cases. The Fette court rejected the defense, explaining that “[i]f ... the driving conduct of [the intoxicated patron] after he left the bar was a superseding cause of the accident, then every bar would have superseding cause as a defense, and the Dram Shop Act would be rendered ineffective.” Fette, 404 N.W.2d at 865 (quotation omitted). If Riley’s illegal driving conduct and illegal flight can prevent liability for the injury that resulted from his alleged drunken misperception, the concern expressed in Fette has not been accounted for here. And the law of dram-shop liability becomes much less clear.

Riley’s leap unquestionably caused the injury, and the appellants maintain that its proximate cause was Riley’s allegedly inebriated misunderstanding that he could launch himself into the river safely. The jury should decide whether, as a matter of fact, intoxication actually contributed to Riley’s decision to take his tragic leap. It could decide this with or without expert testimony because, as the majority points out, the effect of intoxication is generally within the common knowledge of laypeople. I would therefore reverse the district court’s entry of summary judgment for Jerry Dutler Bowl.

      . Appellants apply language from Ponticas v. K.M.S. Investments, Inc., 331 N.W.2d 907, 915 (Minn. 1983) (concluding that owner and operator of apartment building were negligent in failing to investigate apartment manager and failure to investigate was proximate cause of tenant’s sexual assault). Ponticas is not a civil-damage action and, although decided a decade before Kryzer, was not cited in Kryzer.

        . Appellants argue that the district court failed to consider whether Riley’s decision to jump "was infected by the level of intoxication he achieved at Twin Town Bowl." Caselaw under the Civil Damage Act does not require such an inquiry. The sole issue is whether the intoxication proximately caused the injury-

      . Appellants contend that it was irrelevant that Riley "jumped to escape, not to commit suicide.” The district court's acceptance of this undisputed fact is supported by the record. The reason for the jump is also relevant to the proximate cause inquiry.

      . Although, in their primary brief, appellants question the propriety of the district court's statement, they claim in their reply brief that respondent cannot address the statement without a notice of review. The district court's statement did not constitute a ruling on the admissibility of the report. As part of its reasoning in its decision to grant summary judgment, the statement by the district court is properly considered by this court without a notice of review.

      . Appellants’ counsel argued at the summary-judgment hearing that Dr. Komaridis once saw Riley professionally, but this fact does not appear in the record. The report itself states only that Riley was seen at the same clinic 11 years earlier.


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    In the Matter of the WELFARE OF the CHILD OF: L.M.L. and S.B.L., Parents.
    No. A06-1867.
    Court of Appeals of Minnesota.
    April 24, 2007.

      Kristine A. Anderson, Loftness & Anderson, Shakopee, MN, for appellant child.
    Michael A. Fahey, Carver County Attorney, Kevin G. Cedergren, Assistant County Attorney, Chaska, MN, for respondent Carver County.
    Mark D. Fiddler, Fiddler Law Office, Minneapolis, MN, for respondent guardian ad litem.
    L.M.L., S.B.L., Norwood/Young America, MN, pro se respondents.

      Considered and decided by WRIGHT, Presiding Judge; STONEBURNER, Judge; and MINGE, Judge.
   OPINION

WRIGHT, Judge.

In this appeal presenting a certified question, we consider whether the district court retains jurisdiction to adjudicate an 18-year-old individual as a child in need of protection or services (CHIPS) when the CHIPS petition was filed before the subject’s 18th birthday. Appellant, the subject of the CHIPS petition, argues that the district court lost jurisdiction over the petition when it failed to adjudicate him in need of protection or services before his 18th birthday. Although the district court also certified as important and doubtful the question of whether a child is entitled to admit or deny the grounds alleged in a CHIPS petition if the child’s behavior is the basis for the petition, neither party has appealed this certified question. We answer the certified question on appeal in the affirmative, decline to answer the second question, which is not properly before us, and remand to the district court.

FACTS

Appellant C.S.L., the son of respondents L.M.L. and S.B.L., was born on July 28, 1988. Because of C.S.L.’s behavioral problems, L.M.L. and S.B.L. voluntarily agreed to an out-of-home placement for C.S.L. in June 2005. He has remained in mental-health and juvenile facilities since that date. On July 14, 2006, respondent guardian ad litem filed a Child in Need of Protection or Services (CHIPS) petition, alleging the following statutory grounds for the petition: C.S.L. is without food, clothing, shelter, education, or other care because his parents are unable or unwilling to provide it, Minn.Stat. § 260C.007, subd. 6(3) (2004); C.S.L.’s parents desire to be relieved of his care and custody, Minn.Stat. § 260C.007, subd. 6(6) (2004); and C.S.L.’s behavior, condition, or environment is dangerous to him or others, Minn.Stat. § 260C.007, subd. 6(9) (2004). At the hearing to admit or deny the allegations that was held on July 25, 2006, three days before C.S.L.’s 18th birthday, the district court accepted the parents’ admissions and C.S.L.’s denial of these statutory grounds. The matter was set for a pretrial conference on August 18, 2006.

After his 18th birthday, C.S.L. moved to dismiss the CHIPS petition, arguing that the district court no longer has jurisdiction over him because he is no longer a child. The district court determined that it retained jurisdiction and denied the motion. The district court also issued an order certifying the following questions as important and doubtful:

[1] Whether the [district court] has jurisdiction to adjudicate an 18-year-old adult as a child in need of protection or services where the CHIPS petition was filed shortly before his 18th birthday; and,
[2] Whether an individual that is the child subject of a CHIPS proceeding has standing to deny the allegations of the petition and have a trial, when the child’s parents admitted their inability to meet the child’s mental health needs shortly before the child’s [18th] birthday while the child was in an on-going voluntary placement at a residential treatment center as a result of his behavior.

The district court granted C.S.L.’s motion to intervene as a party for purposes of appeal. This appeal followed.

ISSUES

I. Did the district court properly certify the question of whether a district court has jurisdiction to adjudicate an 18-year-old individual to be a child in need of protection or services when the CHIPS petition was filed before the individual’s 18th birthday? If so, should that question be answered in the affirmative or the negative?

II. Did the district court properly certify the question of whether a child that is the subject of a CHIPS petition is entitled to an opportunity to deny the statutory grounds in the petition and have a trial when the child’s parents have admitted those grounds? If so, should that question be answered in the affirmative or the negative?

ANALYSIS

C.S.L. appeals from the district court’s order certifying two questions as important and doubtful. Minn. R. Civ. App. P. 103.03(i). On review, we make an independent determination of whether the question certified is important and doubtful. Nat’l City Bank of Minneapolis v. Lundgren, 435 N.W.2d 588, 590 (Minn.App.1989), review denied (Minn. Mar. 29, 1989). If we conclude that the question is not important and doubtful, we may decline to reach its merits. Proprietors Ins. Co. v. Cohen, 451 N.W.2d 904, 906 (Minn.App.1990).

A question’s importance depends on whether “(1) it will have statewide impact, (2) it is likely to be reversed, (3) it will terminate lengthy proceedings, and (4) the harm inflicted on the parties by a wrong ruling by the district court is substantial.” Jostens, Inc. v. Federated Mut. Ins. Co., 612 N.W.2d 878, 884 (Minn.2000). “A question is ‘doubtful’ only if there is no controlling precedent. That the question is one of first impression is not, however, of itself sufficient to justify certification as doubtful; the question should be one on which there is substantial ground for a difference of opinion.” Emme v. C.O.M.B., Inc., 418 N.W.2d 176, 179-80 (Minn.1988) (citation omitted). When assessing whether a certified question is important and doubtful, we are mindful that parties may not use the certification process as a substitute for the normal appellate process or as a method for securing an advisory opinion. Jacha v. Coca-Cola Bottling Co., 580 N.W.2d 27, 30 (Minn.1998).

I.

The first certified question asks us to determine whether a district court has jurisdiction to adjudicate an 18-year-old individual to be a child in need of protection or services when the CHIPS petition was filed before the individual’s 18th birthday. This question is important. Its resolution will have statewide impact on the adjudication of CHIPS petitions and the process used by counties and other authorized individuals to file CHIPS petitions. The harm inflicted on C.S.L. by an erroneous ruling will be great, in that an incorrect determination could either deprive C.S.L. of the necessary services and protection to which he is entitled or impose restrictions on C.S.L. that are not permitted by law.

This question also is doubtful. There is no controlling precedent that advises the district court whether it has jurisdiction to adjudicate an 18-year-old individual as a child in need of protection or services when the CHIPS proceeding was initiated before the individual’s 18th birthday. And there is a substantial basis for a difference of opinion as to the proper resolution of this question because of an apparent conflict between the statutory-definition of “child,” Minn.Stat. § 260C.007, subd. 4 (2006), and the statutory provision that permits a district court to extend its jurisdiction beyond a child’s 18th birthday, Minn.Stat. § 260C.193, subd. 6 (2006).

Because this certified question is both important and doubtful, we will address it on the merits. In doing so, we apply a de novo standard of review. B.M.B. v. State Farm, Fire & Cas. Co., 664 N.W.2d 817, 821 (Minn.2003) (stating that certified questions are questions of law, which appellate courts review de novo).

C.S.L. argues that he cannot be adjudicated as a child in need of protection or services because the term “child” is statutorily defined as “an individual under 18 years of age.” Minn.Stat. § 260C.007, subd. 4. Relying on MinmStat. § 260C.193, subd. 6, respondent guardian ad litem counters that the pendency of a CHIPS petition authorizes the district court to retain jurisdiction over C.S.L. until he reaches age 19. Section 260C.193, subdivision 6, provides that, “[ujnless terminated by the [district] court, ... the jurisdiction of the [district] court shall continue until the individual becomes 19 years of age if the [district] court determines it is in the best interest of the individual to do so.”

C.S.L. raises two arguments against retaining jurisdiction under section 260C.193, subdivision 6. First, C.S.L. argues that extension of jurisdiction beyond an individual’s 18th birthday is permitted only if the subject of the CHIPS petition was adjudicated as a child in need of protection or services before the individual’s 18th birthday. Section 260C.193, subdivision 6, requires an adjudication, C.S.L. argues, because that section’s title is “DISPOSITIONS; GENERAL PROVISIONS” and a disposition may not occur until after the CHIPS adjudication.

But contrary to C.S.L.’s argument, an adjudication is not required. The plain language of section 260C.193, subdivision 6, establishes that a district court’s jurisdiction in a child-protection matter may continue until the individual’s 19th birthday so long as the district court assumes jurisdiction over that matter before the individual’s 18th birthday. Under Minnesota law, a district court has “original and exclusive jurisdiction in proceedings concerning any child who is alleged, to be in need of protection or services.” Minn. Stat. § 260C.101, subd. 1 (2006) (emphasis added). Jurisdiction does not depend on an adjudication that a child is in need of protection or services; rather, it attaches as soon as a sufficient allegation that a child is in need of protection or services is made. See In re Welfare of Child of T.T.B. & G.W., 710 N.W.2d 799, 803-04 (Minn.App.2006) (citing section 260C.101, subdivision 1, and holding that, to establish subject-matter jurisdiction, petitioner need not prove prima facie case but must only set forth sufficient allegations that child is in need of protection or services), rev’d on other grounds, 724 N.W.2d 300 (Minn.2006). That section 260C.193 is entitled “DISPOSITIONS; GENERAL PROVISIONS” does not give us the authority to add to subdivision 6 a requirement for adjudication before the child’s 18th birthday as a condition precedent for the district court’s jurisdiction to continue. See Minn.Stat. § 645.49 (2006) (“The head-notes printed in boldface type before sections and subdivisions in editions of Minnesota Statutes are mere catchwords to indicate the contents of the section or subdivision and are not part of the statute.”); see also Roer v. Dunham, 682 N.W.2d 179, 181 (Minn.App.2004) (stating that courts cannot add language that is not present in statute or supply what legislature purposely omits or inadvertently overlooks); Hyland v. Metro. Airports Comm’n, 538 N.W.2d 717, 720 (Minn.App.1995) (stating that statute’s title may be considered when attempting to ascertain legislature’s intent, but that “it is not of decisive significance and cannot be used to alter the plain import of a statute’s explicit language within the scope of the title” (quotation omitted)).

Here, it is undisputed that the CHIPS petition’s allegations that C.S.L. is in need of protection or services under three statutory criteria were sufficient to establish the district court’s jurisdiction over the CHIPS proceeding. Under Minn.Stat. § 260C.101, subd. 1, the district court’s jurisdiction attached when those allegations were made, which was before C.S.L.’s 18th birthday. Because the district court assumed jurisdiction over this matter before C.S.L.’s 18th birthday, the district court’s jurisdiction “shall continue until [C.S.L.] becomes 19 years of age” if the district court determines that continuation of its jurisdiction is in C.S.L.’s best interests. Minn.Stat. § 260C.193, subd. 6.

C.S.L. next argues that, under section 260C.193, subdivision 6, the district court does not retain jurisdiction to adjudicate an 18 year old as a child in need of protection or services because the subject of the petition is no longer a “child,” which is defined under section 260C.007, subdivision 4, as “an individual under 18 years of age.” This argument, however, is inconsistent with the exception contained in section 260C.193, subdivision 6, which bars a district court’s jurisdiction over an habitual truant’s CHIPS case under Minn.Stat. § 260C.007, subd. 6(14) (2006), from continuing beyond the child’s 18th birthday. If, as C.S.L. argues, a district court’s jurisdiction to adjudicate a child to be in need of protection or services can never continue after the child’s 18th birthday, then it would not have been necessary for the legislature to include the habitual-truant exception to the general rule that jurisdiction may continue. In re Welfare of R.W., 575 N.W.2d 857, 860 (Minn.App.1998) (“Because habitual truancy is one of [the] enumerated bases for finding a child in need of protection or services, and is the only one singled out for a limitation on jurisdiction after the language providing for extension, the CHIPS cases arising under any of the other ... bases would be subject to the jurisdiction extension language .... ”). Thus, we may glean from the legislature’s inclusion of this exception an intent to permit a continuation of the district court’s jurisdiction beyond the child’s 18th birthday when the district court’s jurisdiction arises under the statutory grounds alleged here, namely, Minn. Stat. § 260C.007, subd. 6(3), (6), (9) (2006). See Minn.Stat. § 645.19 (2006) (“Exceptions expressed in a law shall be construed to exclude all others.”); R.W., 575 N.W.2d at 860 (“If the legislature intended to exclude all CHIPS cases generally from the provision allowing for juvenile court jurisdiction to extend until a child reaches age 19, it would logically have done so ... at the same time it included the exception for CHIPS cases arising on the basis of habitual truancy.”).

For the foregoing reasons, we answer in the affirmative, subject to the habitual-truant exception, the district court’s certified question of whether a district court retains jurisdiction to adjudicate an 18-year-old individual as a child in need of protection or services when the CHIPS petition was filed before the child’s 18th birthday.

II.

The second question that the district court certified asks whether a child who is the subject of a CHIPS petition is entitled to deny the allegations in the CHIPS petition and proceed to trial when the child’s parents have admitted their inability to meet the child’s mental-health needs. None of the parties has appealed from the district court’s certification of this question: Nor has any party addressed this question in its appellate brief. We, therefore, decline to answer this question, as it is not properly before us. See Minn. R. Civ.App. P. 103.03(i) (stating that “[ajn appeal may be taken to the Court of Appeals ... if the [district] court certifies that the question presented is important and doubtful”); Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982) (holding that issues not briefed on appeal are waived).

DECISION

Because Minn.Stat. § 260C.193, subd. 6 (2006), permits a district court’s jurisdiction over a Child in Need of Protection or Services (CHIPS) petition to continue until the subject of that petition turns 19 years old when the district court determines that it is in the individual’s best interests, except when the basis of the CHIPS petition is habitual truancy, Minn.Stat. § 260C.007, subd. 6(14) (2006), we answer in the affirmative the district court’s certified question of whether a district court has jurisdiction to adjudicate C.S.L., an 18 year old, as a child in need of protection or services when the CHIPS petition was filed before his 18th birthday. However, because the certified question of whether a child who is the subject of a CHIPS petition is entitled to deny the allegations in the CHIPS petition and have a trial when the child’s parents have admitted their inability to meet the child’s mental-health needs was neither appealed nor briefed by the parties, we decline to answer it. Accordingly, we remand to the district court for further proceedings.

Certified question answered in the affirmative and remanded.

      . In In re Welfare of C.M.K., we were asked to determine whether a district court lacks jurisdiction to adjudicate a juvenile alien to be a child in need of protection or services. 552 N.W.2d 768, 769 (Minn.App.1996). The government respondents sought dismissal of the appeal, arguing that it was moot because C.M.K. was no longer a "child,” as he had turned 18. Id. at 769 n. 1. We declined to decide whether the appeal was moot on that ground because the question was not properly before us. Id. at 770 n. 1.

      . A brief explanation of the statutory dates used throughout our analysis is warranted. Based on the date of its decision, the district court applied the 2004 version of the applicable statutes. Because the 2006 version of the applicable statutes does not change or alter the rights of the parties, the 2006 version of these statutes will be referred to throughout this analysis. See McClelland v. McClelland, 393 N.W.2d 224, 226-27 (Minn.App.1986) (indicating that current version of statute will be used unless it changes or alters matured or unconditional right of parties or creates other injustice), review denied (Minn. Nov. 17, 1986).

      . As stated in section 260C.193, subdivision 6, the district court’s jurisdiction does not continue past the child’s 18th birthday when the district court’s jurisdiction is derived from an allegation that the child is a habitual truant. See Minn.Stat. §§ 260C.007, subd. 6(14) (stating that child is in need of protection or services if child is habitual truant), 260C.101, subd. 1 (stating that district court has jurisdiction in proceedings concerning child alleged to be in need of protection or services).


author: RANDALL, Judge.

text:
    John GRUNDTNER, Appellant, v. UNIVERSITY OF MINNESOTA, et al., Respondents.
    No. A06-1137.
    Court of Appeals of Minnesota.
    April 24, 2007.

      Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, CTD, Minneapolis, MN, for appellant.
    Brian J. Slovut, University of Minnesota, Minneapolis, MN, for respondents.
    Considered and decided by DIETZEN, Presiding Judge; RANDALL, Judge; and HUDSON, Judge.
   OPINION

RANDALL, Judge.

Appellant appeals from the district court’s grant of summary judgment for respondent-employer. Appellant argues that the district court erred in (a) granting summary judgment on his whistleblower claim; (b) holding that it lacked jurisdiction over his common-law tort claims; and (c) requiring appellant to return documents based on attorney-client privilege.

FACTS

Appellant John Gundtner, beginning in May 2000, was the University Architect at respondent University of Minnesota (university). Appellant entered a one-year contract subject to annual renewal at the university’s discretion. As university architect, all design and construction staff members reported to appellant, and appellant managed all project issues and operations.

In September 2002, Kathleen O’Brien became Vice President of University Services and was in charge of the operations side of the university. Upon arrival, one of O’Brien’s main goals was improving the university’s design and construction functions. O’Brien hired respondent Michael Perkins, an outside consultant, to effectuate improvements by reviewing the organizational structure and providing recommendations.

In June 2003 the university hired Perkins as Associate Vice President of Capital Planning and Project Management (CPPM), the group responsible for the planning, design, and construction of capital improvement projects. Shortly thereafter, Perkins observed that the architecture group (led by appellant) and the planning group (led by Director of Planning Harvey Turner) were operating inefficiently. This, and an upcoming budget reduction, caused Perkins to consider combining the two groups. A final solution was needed by January 2004.

The university was beginning a student center project on its Crookston campus. The university solicited construction bids but received only a single bid and that was significantly over budget. The .bid was rejected. Appellant believed the consults ing architect on the project was to blame and reported to Perkins in late October 2003 that the university should change architects. Perkins informed appellant that he would meet with the consulting architect to address the concerns. Appellant was unable to attend the meeting and, instead, received a follow-up report from Michael Denny, Director of Development. Denny informed appellant that Perkins decided to negotiate with the new low bidder once a new set of bids was solicited and submitted. Appellant immediately objected because negotiating with a low bidder constituted an illegal procurement method.

On November 5, 2003, another meeting was held regarding the Crookston project. Appellant reiterated the illegality of Perkins’s plan to negotiate with a low bidder. Appellant testified that Perkins and Denny were upset at this meeting with his persistence of the illegality of the proposed negotiation.

On the following day, November 6, 2003, Perkins informed appellant that he was relieving appellant of project management responsibilities. Appellant identified Perkins’s move as a “sudden change”; however, the record shows that Perkins had previously contemplated the change and asked another employee in early — to mid-October 2003 about assuming project management and delivery responsibilities. During December 2003, Perkins removed appellant’s sign-off authority to proceed. In January 2004, Perkins decided to combine the architecture and planning groups, thereby eliminating the director positions in both groups and creating a single director position. On March 1, 2004, Perkins informed appellant that his position was being eliminated as a result of the reorganization and that his contract would not be renewed. Perkins announced his reorganization plan, which involved, including appellant, terminating seven employees.

Meanwhile, on February 23, 2004, appellant met with Martell and informed her of the hostile and retaliatory work environment created by Perkins. Appellant reiterated his concerns with the procurement method planned for the Crookston project as well as additional concerns regarding Perkins’s actions. Martell instructed appellant to raise his concerns with Gail Klatt, Vice President of Internal Audit, which appellant did that same day.

On March 17, 2004, the university and appellant entered a telecommuting agreement at the suggestion of Perkins, whereby appellant would work from home to complete three tasks by April 5, 2004. As a result of the agreement, Perkins banned appellant from the university offices even though appellant was teaching a class. Under the agreement, Perkins required appellant to provide daily e-mail updates, but Perkins terminated appellant’s e-mail access. After appellant complained, his access was restored.

During March and April 2004, appellant met with several individuals, including Martell, O’Brien, and human resources, to discuss Perkins’s proposed procurement method, the alleged retaliation appellant suffered, and the health repercussions that appellant experienced.

During his job search, appellant asked O’Brien to serve as a reference. O’Brien agreed and provided a recommendation to the University of Northern Florida. Following her discussion with the University of Northern Florida, O’Brien left appellant a voice mail summarizing the conversation:

Hi, Jack, this is Kathy O’Brien calling. Um, I’m just calling cause I wanted you to know that I had a call from Lance Taylor at the University of North Florida on Friday, ah, July 2, and I had a lengthy conversation with him, and I believe a couple other members of the search committee tried to give you a good grades and a sound recommendation for the position there. And also, I wanted you to know that when they asked why, ah, you left the University, I told them that there was a major change in the organization and that you and others had, um, a conflict with our new director and that that’s why you moved on. And they asked if others had been unappointed or left at the same time you did, and I said yes. So it sounded from the question and the way I answered it like I had responded to their concerns. And did just want you to know that I touched that base immediately when they called me on Friday. And so good luck in that search, and if you have other places you’re applying and you expect me to get a call, please let Gayle know and I’ll try to respond to them promptly. Hope you had a good Fourth of July and that your knees are doing good. Ah, bye now.

O’Brien testified that she informed the University of Northern Florida that appellant left due to a difference of professional opinion. O’Brien told Florida not to be concerned because the differences were “honest and professional differences.” In response to Florida’s question of whether O’Brien would hire appellant, O’Brien testified that she responded favorably by saying she would. Florida did not hire appellant but appellant does not know why. Appellant ceased using O’Brien as a reference.

Appellant sued the university and Perkins, claiming protection under Minnesota’s whistleblower statute, and alleging tortious conduct. On April 20, 2006, the district court granted respondents’ motion for summary judgment. The order granted summary judgment to respondents on appellant’s common law-claims on the ground of lack of subject matter jurisdiction. The order granted summary judgment to respondents on appellant’s whistleblower claims on the ground that appellant could not establish a prima facie case. Judgment was then entered and this appeal followed.

ISSUES

I. Did the district court err by granting summary judgment with respect to appellant’s whistleblower claims?

II. Did the district court err by granting summary judgment with respect to appellant’s tort claims?

III. Did the district court err by requiring appellant to return certain documents to respondents?

ANALYSIS

On appeal from summary judgment, this court must decide if there are any genuine issues of material fact and if the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The evidence in the record must be reviewed in the light most favorable to the party against whom summary judgment was granted. Hedglin v. City of Willmar, 582 N.W.2d 897, 901 (Minn.1998). Summary judgment must be granted against a party who fails to establish an essential element of a claim, if the burden of proof rests with that party, because a failure to establish an essential element renders all other facts immaterial. Bersch v. Rgnonti & Assocs., Inc., 584 N.W.2d 783, 786 (Minn.App.1998), review denied (Minn. Dec. 15, 1998). When deciding a purely legal issue, the reviewing court need not defer to the district court’s decision. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

I. Whistleblower Claims

Under Minnesota’s whistleblower statute, “[a]n employer shall not discharge ... an employee ... because: (a) the employee ... in good faith, reports a violation or suspected violation of any federal or state law or rule ... to an employer or ... governmental body or law enforcement official. ...” Minn.Stat. § 181.932, subd. 1(a) (2006). Additionally, an employer is prohibited from discharging an employee because “(c) the employee refuses an employer’s order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law or rule ... and the employee informs the employer that the order is being refused for that reason.... ” Minn.Stat. § 181.932, subd. 1(c) (2006).

In Minnesota, whistleblower claims are analyzed by applying the McDonnell Douglas burden-shifting test. Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn.App.2001), review denied (Minn. May 15, 2001). First, a plaintiff must establish a prima facie case of retaliatory action. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)). Then the burden of production shifts to the employer to articulate a legitimate, non-retaliatory reason for its action. Id. Finally, the employee may demonstrate that the employer’s articulated reason is pretextual. Id. The employee bears the overall burden of persuasion. Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 445-46 (Minn.1983).

The district court found, in response to appellant’s claims under both subdivisions 1(a) and 1(c) of section 181.932, that appellant failed to “show that he engaged in any statutorily-protected conduct” and therefore, failed to establish a prima facie case. Appellant disagrees and argues that the district court erred in concluding that appellant failed to make a prima facie showing of retaliatory discharge. “A prima facie case of retaliatory discharge ... requires the employee to demonstrate statutorily protected conduct by the employee, an adverse employment action by the employer, and a casual connection between the two.” Gee v. Minn. State Coll. and Univ., 700 N.W.2d 548, 555 (Minn.App.2005). Appellant appears to argue that sufficient evidence exists to permit a trier of fact to find that he engaged in a protected activity. We disagree.

To engage in a protected activity an employee must make a good-faith report that implicates a violation or suspected violation of federal or state law or rule adopted pursuant to law. Obst v. Microtron, Inc., 614 N.W.2d 196, 200 (Minn.2000). An actual violation of law is not necessary, but “the reported conduct must at least implicate a violation of law.” Id. A specific rule or law need not be named if the alleged facts, if proven, would constitute a violation of a law or rule adopted pursuant to law. Abraham v. County of Hennepin, 639 N.W.2d 342, 354-55 (Minn.2002).

Subdivision 1(a)

Under subdivision 1(a), appellant alleges that he made two reports of illegal activity, that of: (1) Perkins’s proposed illegal procurement method; and (2) fiscal irregularities to the audit department. The district court found that “[appellant] cannot establish a prima facie case under subdivision 1(a) because he cannot show that he engaged in any statutorily protected conduct.” Further, the court stated that “even if [appellant’s] allegations are true, there is no violation of law as required by subdivision 1(a).” We agree.

It is undisputed that the university did not proceed with the procurement method suggested by Perkins. In fact, no low bidder existed at the time with whom respondents could have negotiated because the one bid received had already been rejected. The mere suggestion of improper conduct, which the university refrained from following, did not amount to statutorily protected conduct. See Borgersen v. Cardiovascular Systems, Inc., 729 N.W.2d 619, 624, 2007 WL 968867, at *4 (Minn.App. Apr.3, 2007) (holding that appellant made a report to his employer, but it was not a report suspecting his employer of a violation or an attempted violation of federal or state law; he merely expressed safety concerns). The facts asserted by appellant, that Perkins “proposed” using an improper procurement method but did not, if proven, do not constitute a violation of law. See Abraham, 639 N.W.2d at 355 (stating that an employee must “allege[ ] facts that, if proven, would constitute a violation of law or rule”).

The district court relied on Petroskey v. Lommen, Nelson, Cole & Stageberg, P.A. in its summary judgment decision. 847 F.Supp. 1437 (D.Minn.1994). Petroskey, a 1994 United States District Court case applying Minnesota’s whistleblower statute, found that subdivision 1(a) does not apply where an employee alleges that the employer contemplated but refrained from unlawful conduct. 847 F.Supp. at 1447-48 (“The mere fact that, theoretically, an employer may contemplate action which, if consummated, could be contrary to public policy is insufficient, under the governing law, to invoke the protections of the Whis-tleblower Statute.”). Petroskey further noted that “the statutory language [of section 181.932] speaks to conduct which has already transpired, and the fact that an avenue of action has been contemplated by the employer and rejected insulates that conduct from the whistleblower proscriptions.” 847 F.Supp. at 1448 citing Michaelson v. Minnesota Mining & Mfg. Co., 474 N.W.2d 174, 180 (Minn.App.1991), aff'd mem., 479 N.W.2d 58 (Minn.1992). In Mi-chaelson, an employee’s claim failed, in part, because he did not report conduct, but instead, provided legal analysis to his supervisor on proposed business decisions. Michaelson, 474 N.W.2d at 180.

This ease is analogous to Petroskey and Michaelson. Appellant alleges that Perkins engaged in illegal conduct, which he reported. Appellant’s allegations, however, do not amount to a violation of law by Perkins or the university. Perkins contemplated a course of action, which would have been illegal if pursued, but he refrained from following through with his proposed actions.

Appellant was his advisor, and his advice was taken by respondents. It was appellant’s job, based on his position and his responsibility as the individual authorized with first-level of sign-off to proceed with projects to ensure that the university did not engage in improper procurement methods. See Gee, 700 N.W.2d at 556 (holding that the plaintiff did not have a whistleblower claim when her stated purpose in reporting was to fulfill her responsibilities as a faculty advisor). There were individuals specifically in charge of procurement methods at the university, but appellant testified that as the party responsible for first-level authorization, he received and reviewed all documents, including documents pertaining to procurement methods, before granting approval to proceed with projects.

Subdivision 1(c)

Appellant argues that under subdivision 1(c), he refused to take an illegal action. The district court stated that “there is no evidence to support a finding that Denny or the University ever ordered [appellant] to perform an action that he believed to be unlawful,” and therefore, appellant failed to establish a prima facie case because he could not show that he engaged in statutorily protected conduct. We agree.

Appellant was the director of design and construction and was the first level of sign-off on all orders to proceed on projects. Appellant testified that his sign-off was the “culmination of the procurement process ... and authorizes appropriate representatives ... to execute a contract to proceed with the project.” Appellant had authorization up to $250,000 for orders to proceed, while higher management approval was required for projects of greater amounts.

The statute does not require that an employer explicitly or blatantly order the employee to violate the law. See Minn. Stat. § 181.932, subd. 1(c). Indirect or implied directions could constitute an adequate order. Cf. Piekarski v. Home Owners Sav. Bank, F.S.B., 956 F.2d 1484, 1491-92 (8th Cir.1992) (holding that a “stern look” is not a demand to break the law, but not precluding the possibility that an implied request to break the law could constitute a violation of an earlier version of Minn.Stat. § 181.932, subd. 1(c)). Because illegal conduct is often shielded, implied directives conveying to an employee a request to violate the law warrant protection under subdivision 1(c).

Appellant believed the university, through Denny, directed him to engage in illegal conduct with respect to the Crook-ston project. Appellant believed that Denny directed him to engage in illegal conduct based on a meeting that appellant had with Denny where Denny informed appellant about the plan to negotiate with the low bidder to get the project within budget. It is undisputed that Denny never asked appellant to sign off on the potential procurement method and never presented documents to appellant for his signature. Instead, appellant testified that because of his position and responsibilities as director of design and construction, including first level of sign-off, that he was requested to engage in an illegal activity as a result of his conversation with Denny.

No one at the university ordered appellant to violate the law. There is no evidence of pressure or directives requiring appellant to violate the law. Appellant’s belief results only from a conversation with Denny early on in the university’s process of starting a project. The university received an over-budget bid and at that point was merely discussing subsequent courses of action to effectuate the project. No negotiations with the low bidder had yet occurred and no documents requiring appellant’s signature had yet been prepared.

We agree with the district court that appellant failed to establish a prima facie case because appellant did not engage in statutorily protected conduct. Appellant goes on to argue the remaining elements needed to establish a prima facie case of retaliatory discharge. We need not address these arguments because the first requirement, that of statutorily protected conduct, is not satisfied.

Even if we were to address these arguments, appellant’s claim still fails. The record indicates that well before appellant’s illegal procurement allegation, the university was considering and taking steps towards a reorganization of its design and construction functions. The record is replete with documentation and discussions of eliminating appellant’s position as well as other positions. Although the timing of appellant’s termination and his allegation of improper conduct are unfortunate, and led to appellant’s lawsuit, the record indicates his termination had been discussed beforehand and was a foregone conclusion.

II. Tort claims

Whether a court has subject matter jurisdiction is a question of law and is reviewed de novo. Burkstrand v. Burkstrand, 632 N.W.2d 206, 209 (Minn.2001). Absent an adequate method of review or legal remedy, judicial review of a quasi-judicial decision of an administrative body is available only by writ of certiorari. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992). Characterization óf a claim in a complaint does not change the jurisdictional analysis:

Regardless that the claim is cloaked in the mantle of breach of contract, when the alleged breach of the employment contract of a governmental employee results in termination of the claimant’s employment by an executive body which does not have statewide jurisdiction ... the claimant may contest the employer’s action by certiorari alone, absent statutory authority for a different process.

Willis v. County of Sherburne, 555 N.W.2d 277, 282 (Minn.1996). Absent statutory pronouncement of an alternative process, “the dispositive question is whether the claim implicates an executive body’s decision to terminate an employee.” Lueth v. City of Glencoe, 639 N.W.2d 613, 617 (Minn.App.2002), review denied (Minn. Apr. 16, 2002).

The pertinent question becomes whether the claim is “separate and distinct from the termination of [ ] employment” or whether the claim arises out of a common nucleus of operative facts. Willis, 555 N.W.2d at 282. Of equal importance is whether the court’s necessary inquiry into the facts surrounding a party’s tort claims involves inquiring into the discretionary decision to terminate the individual. Id.

Appellant argues that the district court erred in granting summary judgment due to lack of subject matter jurisdiction on his tort claims of defamation and intentional interference with a business advantage. The district court refused to exercise jurisdiction because the claims “necessarily entail[ ] inquiry into the University’s decision to terminate [appellant].”

First, appellant argues that the district court had jurisdiction over his defamation claim. Appellant contends that the defamation was a post-termination event and not connected to any “quasi-judicial” process or his termination. He claims that respondents’ agent, “in an effort to discredit [appellant] and cover up their own mistakes,” made false statements about him.

In Willis, the court held that the terminated employee’s defamation claim did not involve any inquiry into the county board’s discretionary termination decision. 555 N.W.2d at 282. The defamation alleged began more than a year before the employee’s discharge, continued for a period of time, and was separate and distinct from the termination. Id.

Here, the alleged defamation occurred immediately following appellant’s termination. The alleged defamatory comments were made by O’Brien and pertained to the reasons for the non-renewal of appellant’s contract. O’Brien stated that appellant left because “there was a major change in the organization and that [appellant] and others had, um, a conflict with our new director and [ ] that’s why [he] moved on.”

The district court stated that “[l]itigation of this claim necessarily entails inquiry into the University’s decision to terminate [appellant] because it would require an examination of whether there was conflict between [appellant] and Perkins and whether such conflict was the reason for [appellant’s] termination.” We agree. To determine if O’Brien’s statement was false, the reasons for appellant’s termination must be determined. Because the statements at issue here directly pertain to the reason for appellant’s termination, an inquiry into the facts surrounding appellant’s claim would require reviewing the university’s discretionary decision to terminate appellant.

Second, appellant argues that the district court had jurisdiction over his claim of intentional interference with a prospective economic advantage. Specifically, appellant claims that Perkins “fired [appellant] for his own reasons in an effort to hide or facilitate his illegal practices or to punish [appellant] for opposing them.” In his short discussion of this issue, appellant recognizes that the reasons for his termination are directly applicable. As appellant acknowledges, although not explicitly, addressing the facts surrounding this claim necessitate inquiring into the university’s discretionary decision to terminate appellant.

Appellant asserted this tort claim solely against Perkins. “A quasi-judicial decision need not be made by a commission or a board; one ‘public officer’ can make it. So, the fact that only one person at the University was ultimately responsible for making the promotion decisions does not disqualify the decisions as quasi-judicial acts.” Maye v. Univ. of Minn., 615 N.W.2d 383, 386 (Minn.App.2000) (citations omitted).

Respondents assert that Perkins was the university’s decision-maker with respect to the renewal of appellant’s contract. Perkins acted within his authority and capacity as a university employee. Appellant’s claim does not affect anything that Perkins did as a private individual or in a private capacity.

Because both of appellant’s tort claims require scrutinizing the university’s decision to terminate appellant, the district court was correct in refusing to exercise subject matter jurisdiction.

III. Return of documents

Appellant argues that the district court erred when it ordered the return of documents to respondents on the basis of attorney-client privilege. Neither party specifically identifies or discusses with any amount of detail the documents ordered to be returned by the district court. Appellant claims that the documents were normal business documents, including the university’s bidding process rules and an architect’s reports regarding technical issues of construction error. Appellant claims that the university distributed these documents to appellant and others during the normal course of business. Alternatively, respondents claim that appellant, without authorization, took confidential documents when he left the university. Respondents claim that three of the documents were from university counsel to CPPM administrators, analyzing the application of law to specific facts and providing legal advice. The fourth document, respondents claim, contained breach of contract claims and damage amounts to be asserted by the university against an architect.

The district court found that the documents were protected by the attorney-client privilege and the work-product doctrine and issued a ruling from the bench requiring appellant to return the documents to respondents. Appellant did not order a transcript for review in this case. Therefore, there are no findings to review and the only conclusion of law from the district court is that which is stated by the parties in their briefs.

As a general rule, appellant bears the burden of providing an adequate record. Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn.App.1995). The record must be “sufficient to show the alleged errors and all matters necessary for consideration of the questions presented.” Truesdale v. Friedman, 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964). If the record is not sufficient to support review, the appeal may be dismissed. Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968). Since the record lacks a transcript, which contains both the court’s findings and its conclusion, this issue cannot be properly reviewed, and appellant’s claim on this issue is dismissed.

DECISION

Appellant did not engage in any statutorily-protected conduct. He gave his advice to respondents, the advice was eventually accepted, and no illegal activity ever started. Appellant was never ordered or pressured to do anything illegal.

The district court did not err in granting the university’s summary judgment motion.

The district court properly ordered the return of certain documents to respondents.

Affirmed.

      . The design and construction functions were plagued with cost overruns, deteriorating relationships with various professional industries, and negative media attention.

      . Perkins submitted his executive summary, dated January 2003, recommending a reorganization of the university's design and construction functions. Included amongst the recommendations were the elimination of various director positions and the combining of groups within the design and construction functions.

      .Respondents conceded that if the university had followed through with the plan to negotiate with a low bidder such action would constitute a violation of state law.

      . Prior to the Crookston project conflict, Perkins had never expressed dissatisfaction with appellant’s work. The university never questioned or criticized appellant’s work performance. Saundra Martell, Associate General Counsel, testified that appellant’s project management and delivery responsibilities were removed by Perkins because appellant “was not considered to be a team player.” Martell further testified that she believed appellant's contract was later not renewed by Perkins for the same reason. Appellant alleges that Perkins’s statements regarding appellant’s failure to cooperate with the team revolves solely around his report of illegal behavior concerning the Crookston project.

      . Prior to appellant's February 23, 2004 meeting with Martell, he had already expressed these concerns to her.

      . Klatt initiated an investigation within her department and a report was drafted. Some of appellant’s concerns were validated, while others remained unconfirmed.

      . Conflicting stories exist on whether or not appellant completed the assigned tasks by the April 5, 2004 deadline. Appellant testified that one task required information from Perkins which he did not provide until the deadline had passed. Appellant testified that the second task was completed while he was recovering from surgery and the third by the deadline. Conversely, respondents claim that appellant failed to complete the tasks on time and to provide any e-mail updates.

      . Respondents conceded in their summary judgment brief to the district court that ”[t]he University, for purposes of this summary judgment motion, does not dispute that it would be a violation of law for it to solicit bids and then negotiate with the low bidder.”

      . For unknown reasons, in his brief appellant argues that the district court had jurisdiction over his whistleblower claim. He correctly states that a whistleblower claim is statutory and that the exclusive remedy by certiorari appeal is not applicable to his whistleblower claim. Subsequently, appellant acknowledges that “[i]n fact, the trial court did not grant [respondents’] motion on this basis for the whistleblower count.” Respondents concede the court's jurisdiction over appellant's whis-tleblower claim, acknowledging that they have "never argued otherwise.”


author: ZINTER, Justice

text:
    2007 SD 28
    Jace JENSEN, Petitioner and Appellant, v. TURNER COUNTY BOARD OF ADJUSTMENT, Jerry Graber, Ken Plucker, Jr., Ralph Duxbury, Richard Lounsbery, and Ryan Wieman, Respondents and Appellees, and ET Farms, Ltd., Intervenor.
    No. 24134.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 8, 2007.
    Decided March 14, 2007.
    Rehearing Denied April 17, 2007.

      Jack Der Hagopian, James G. Abourezk of Abourezk Law Offices, Sioux Falls, SD, Attorneys for petitioner and appellant.
    Tiffani Landeen-Hoeke, Turner County State’s Attorney, Parker, SD, Attorney for appellee.
    Brian Donahoe, Meredith Moore of Cutler & Donahoe, L.L.P., Sioux Falls, SD, Attorneys for intervenor ET Farms, Ltd.
   ZINTER, Justice

[¶ 1.] Jace Jensen appeals a decision of the Turner County Board of Adjustment (Board) granting a conditional use permit for a hog confinement facility. Jensen contends that the Board vote was illegal because less than two-thirds of the members of the Board voted to approve the permit. We agree and reverse.

Facts and Procedural History

[¶ 2.] The Board consisted of five members plus one alternate. See SDCL 11-2-50. Two members did not cast affirmative or negative votes on the permit. The record is inadequate to determine precisely why they did not vote. The briefs indicate that the acting chairman (a regular member) abstained due to a Board custom that the chair only voted in case of a tie. The Board ultimately granted ET Farms, Ltd. a conditional use permit by a vote of three to zero.

[¶ 3.] Jensen challenged the Board’s decision by seeking a writ of certiorari in circuit court. The circuit court dismissed, ruling that although SDCL 11-2-59 required a two-thirds vote, the statute did not apply to votes on conditional use permits; that if the statute did apply, the required two-thirds vote only applied to the Board members who were present and voting; or alternatively, that a Turner County ordinance, which only required a majority vote, controlled. Jensen appeals raising two issues:

1. Whether SDCL 11-2-59 applies to the approval of conditional use permits by a board of adjustment.
2. If SDCL 11-2-59 applies, whether it requires the affirmative vote of two-thirds of the total membership of a board of adjustment to grant a conditional use permit.

Standard of Review

[¶ 4.] Appeals from boards of adjustment are considered by circuit courts under writs of certiorari, and therefore, judicial review is limited. Elliott v. Board of County Commissioners of Lake County, 2005 SD 92, ¶¶ 13-14, 703 N.W.2d 361, 367 (quoting SDCL 11-2-61 and SDCL 21-31-8; citing SDCL 11-2-62). Our review is also limited:

Our consideration of a matter presented on certiorari is limited to whether the board of adjustment had jurisdiction over the matter and whether it pursued in a regular manner the authority conferred upon it. A board’s actions will be sustained unless it did some act forbidden by law or neglected to do some act required by law.

Id. at ¶ 14 (quoting Hines v. Board of Adjustment of City of Miller, 2004 SD 13, ¶ 10, 675 N.W.2d 231, 234).

Decision

[¶ 5.] Jensen argues that although conditional use permits are not specifically mentioned in SDCL 11-2-59, the statute requires a board of adjustment to approve applications for permits by a two-thirds vote. On the other hand, the Board points to legislative history reflecting that at one time the statute specifically referred to the approval of “conditional use permits,” but that reference was repealed. While repeal of such specific language would normally tend to suggest that conditional permits were no longer governed by the statute, we do not resort to statutory construction through legislative history. “[Rjesorting to legislative history is justified only when legislation is ambiguous, or its literal meaning is absurd or unreasonable. Absent these circumstances, we must give legislation its plain meaning.” Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984) (citations omitted).

[¶ 6.] In this case, the literal language of the statute is not absurd, unreasonable, or ambiguous. It plainly required a two-thirds vote for any applicant on any matter upon which the Board was required to pass.

The concurring vote of two-thirds of the members of the board of adjustment is necessary to reverse any order, requirement, decision, or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in the ordinance.

SDCL 11-2-59 (emphasis added). In this case, Turner County Ordinance 3.01.11 required the Board to approve or deny applications for conditional use permits. Because ET Farms, LtcL’s application was a matter upon which the Board was required to pass, SDCL 11-2-59 applied, and it required a two-thirds concurring vote for approval.

[¶7.] Having decided that the statute is applicable, we must next determine the meaning of the phrase the concurring vote of two-thirds “of the members of the board.” Jensen contends that this language required a two-thirds vote of all members of the Board. The Board argues that the language only required a two-thirds vote of the members of the Board who were present and voting.

[¶ 8.] We believe the language “the members of the board” required a two-thirds vote of all members of the Board. The Legislature, in other contexts, has clearly revealed its ability to allow a specified vote of the “members present” when it so intended. Therefore, had the Legislature intended in SDCL 11-2-59 to only require a two-thirds concurrence of the members present and voting, it would have said so. Furthermore, the Board’s contrary interpretation would require us to read the additional language “members present” into the statute, something we cannot do;

While it is fundamental that we must strive to ascertain the real intention of the lawmakers, it is equally fundamental that we must confine ourselves to the intention as expressed in the language used. Ex parte Brown, 21 S.D. 515, 519, 114 N.W. 303, 305 (1907). To violate the rule against supplying omitted language would be to add voluntarily unlimited hazard to the already inexact and uncertain business of searching for legislative intent. Boehrs v. Dewey County, 74 S.D. 75, 79, 48 N.W.2d 831, 834 (1951).

Petition of Famous Brands, 347 N.W.2d at 885. We therefore conclude that SDCL 11-2-59 required a two-thirds vote of the entire membership of the Board.

[¶ 9.] We must finally determine whether there was a concurring vote of “two-thirds” of the membership. Because the Board was composed of five members, a two-thirds concurrence required four votes. Although this vote was unanimous, only three affirmative votes were cast. This leaves the question of the legal effect of the abstention.

[¶ 10.] The Board argues that we should adopt the common-law rule that abstentions are counted as an acquiescence to the majority of votes actually cast. Many cases describe the origin of this rule:

The common-law rule regarding abstentions evolved from a rule pertaining to elections announced by Lord Mansfield in Rex v. Foxcroft, 2 Burr 1017, 1021, 97 Eng.Rep. 683 (1760): “Whenever electors are present, and don’t vote at all, (as they have done here,) ‘They virtually acquiesce in the election made by those who do.’ ” Rex v. Foxcroft concerned the appointment of the town clerk of Nottingham by the mayor, alderman, and common council. Of the 25 electors, 21 were present, nine voted in favor of the appointment, and 12 refused to vote. Numerous subsequent cases interpreted this language to mean that those who refuse to vote, or abstainers, are to be counted as voting with the majority. See Annot., 211 N.W.2d 399, 63 A.L.R.3d 1064, and cases cited therein. See generally 4 McQuillin on Municipal Corporations § 13.32 (3d ed. rev. 1985).

City of Haven v. Gregg, 244 Kan. 117, 120, 766 P.2d 143, 145 (1988). See also Prosser v. Village of Fox Lake, 91 Ill.2d 389, 392-398, 63 Ill.Dec. 396, 438 N.E.2d 134, 134-136 (1982) (holding that when law requires “the concurrence of a majority of all members then holding office,” a failure to vote counts with the majority); City of Springfield v. Haydon, 216 Ky. 483, 288 S.W. 337, 341 (Ky.App.1926) (noting that “[i]t is immaterial that two members did not vote. They were present, and are counted as acquiescing in what was done when they did not vote in the negative.”); Pierson-Trapp Co. v. Knippenberg, 387 S.W.2d 587, 588 (Ky.1965) (stating rule that “when a quorum ... is present those members who are present and do not vote will be considered as acquiescing with the majority.”); Murdoch v. Strange, 99 Md. 89, 57 A. 628 (Md.App.1904) (holding that abstentions are counted with the majority even if only a minority actually vote); Northwestern Bell Telephone Co. v. Board of Commissioners of the City of Fargo, 211 N.W.2d 399, 401, 404 (N.D.1973) (concluding that “a passed vote is to be considered as a vote with the majority” when statute requires that “a majority of all of the members of the governing body must concur in the passage”); A & H Services, Inc. v. City of Wahpeton, 514 N.W.2d 855, 859 (N.D.1994) (same).

[¶ 11.] However, we decline to follow these cases because SDCL 11-2-59 abrogated the common-law rule. “In this state the rules of the common law ... are in force, except where they conflict with the will of the sovereign power, expressed in the manner stated in § 1-1-23.” SDCL 1-1-24. And, under SDCL 1-1-23, “[t]he will of the sovereign power is expressed ... (5) By statutes enacted by the Legislature[.]”

[¶ 12.] Unlike most of the statutes under which the common-law rule has been applied, SDCL 11-2-59 required a “concurring vote of two-thirds of the members of the board.” The use of the word “vote” must have meaning. “When we interpret a statute, ‘[n]o wordage should be found to be surplus. No provision can be left without meaning. If possible, effect should be given to every part and every word.’ ” Peterson, ex rel. Peterson v. Bums, 2001 SD 126, ¶ 32, 635 N.W.2d 556, 568 (quoting Maynard v. Heeren, 1997 SD 60, ¶ 14, 563 N.W.2d 830, 835). To give effect to the word “vote,” we believe that merely being present and abstaining cannot be deemed to be a concurring vote.

[¶ 13.] In Olson v. City of Deadwood, this Court considered virtually identical statutory language. Although we did not consider the effect of an abstention in determining whether that board of adjustment’s decision was valid, we did rely upon the number of valid votes actually cast. 480 N.W.2d 770, 778 (S.D.1992) (discussing SDCL 11-4-24, which required a “concurring vote of at least two-thirds of the members of [the] board” of adjustment). Other courts, directly considering abstentions, conclude that notwithstanding the common-law rule, an abstention is not a vote that may be counted as a concurrence when a statute requires concurring votes. The Kansas Supreme Court explained that in those situations, the common-law rule is modified:

In Kansas, the common law remains in force, unless modified by constitutional amendment, statutory law, or judicial decision. We recognize the validity of the common-law rule that council members have a duty to vote and should not be allowed to prevent government action by inaction; however, here the governing statute unambiguously requires an affirmative vote of a majority of the entire council.

City of Haven, 244 Kan. at 122, 766 P.2d at 147 (construing statute providing “[n]o ordinance shall be valid unless a majority of all the members-elect of the council of council cities ... vote in favor thereof’). See also Mann v. Key, 345 So.2d 293, 295 (Ala.1977) (requiring affirmative vote under enactment that required “a vote ... by a majority of the total membership of the governing body”); State ex rel Stewart v. King, 562 S.W.2d 704, 706-707 (Mo.App. 1978) (concluding that statute, which required “a ‘favorable vote of three-fourths of all the members of the legislative body’” controlled; not the common-law rule). See generally State ex rel. Roberts on Information of McMullen v. Gruber, 231 Or. 494, 499-501, 373 P.2d 657, 660 (1962) (concluding that an enactment requiring “a majority of the entire membership of the council” abrogated common-law rule and required affirmative vote of the entire membership); In re Reynolds, 170 Vt. 352, 353-357, 749 A.2d 1133, 1134-1136 (2000) (concluding that the statutory language “the concurrence of a majority ...,” modified any common-law rule); Forbis v. Fremont County School District No. 38, 842 P.2d 1063, 1064-1065 (Wy.1992) (concluding that under school board policy that required “three affirmative votes,” an abstention did not count as a vote with the majority).

[¶ 14.] Considering that our statute expressly requires the concurring votes of two-thirds of the members, we hold that the statute required at least four members of the Board to have affirmatively voted in order to approve the permit. Because that requirement was not met, the Board exceeded its jurisdiction in issuing the permit.

[¶ 15.] Reversed and remanded for entry of an order reversing the decision of the Board.

[¶ 16.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . SDCL 11-2-50 provides in part: "A board of adjustment ... consists of five members ... The appointing authority may also appoint a first alternate and a second alternate. ...”

      . The briefs are contradictory with respect to who was absent, who was present but did not vote, and the precise reason for not voting. Jensen's brief indicates that Ralph Duxbuiy was the Board chairman and he did not vote because of a conflict of interest. Jensen’s brief further indicates that Ryan Wieman was the acting chair and he abstained due to custom. Jensen does not mention the alternate. The Board’s brief indicates that the presiding officer (presumably referring to Wieman, the acting chair) did not vote. The Board's brief further indicates that Duxbuiy was at the meeting but did not ’’participate.” The Board's brief finally indicates that the alternate was absent from the meeting due to a personal conflict.
      In some cases, the presence or absence of members and the reasons for not voting are relevant to determining the validity of the vote. In light of this record, we decide this case with the understanding that only three affirmative votes were cast in favor of the application, with one additional member abstaining.

      . We have not been pointed to any statute or ordinance under which the Board chair may only vote in case of a tie.

      . Because we ultimately conclude that SDCL 11-2-59 controls, we do not examine the county ordinance.

      . In 2000, SDCL 11-2-59 provided:
      The concurring vote of two-thirds of the members of the board of adjustment is necessary to reverse any order, requirement, decision, or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in the ordinance.
      In 2003, the statute was amended to read:
      The concurring vote of two-thirds of the members of the board of adjustment is necessary to reverse any order, requirement, decision, or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation or conditional use in the ordinance.
      2003 SL, ch. 78, § 4 (emphasis in original). In 2004, the language “or conditional use” was repealed, making the statute the same as it was in 2000. See 2004 SL, ch. 101, § 4.

      . Although the County argues that SDCL 11-2-59 only required a two-thirds vote when a board was exercising its appellate jurisdiction, the emphasized language clearly reflects that the two-thirds vote was also required when a board was exercising its original jurisdiction to hear initial applications for conditional use permits.

        .See SDCL 1-25-2 (providing: "An executive or closed meeting shall be held only upon a majority vote of the members of such body present and voting”); SDCL 1-40-17(provid-ing: “A majority of the appointed members of the Water Management Board shall constitute a quorum. A majority of those present and voting shall be sufficient to perform official functions of the board.”); SDCL 2-15-14 (providing: "When the convention shall have agreed by a vote of a majority of the total number of delegates present and voting ... ”); Rules of the South Dakota Legislature, Joint Rule, 4-1 (Eighty-First session, 2006)(provid-ing: "To revert to an old order of business or to pass to a new order of business requires a majority vote of the members present”); Rules of the South Dakota Legislature, Joint Rule, 5-2.2 (2006)(providing: "a motion ... may not be withdrawn without unanimous consent of the members present.”).

      . See 4 Eugene McQuillin, The Law of Municipal Corporations, § 13.31.10 (3rd ed. rev. 2002):
      If the required percentage of the members of a legislative body consists of a certain number of whole votes and a fraction, it is necessary to count the fraction as a whole vote even though the result is a greater percentage of the body than would be the case if the legislative body were equally divisible by such percentage into whole numbers.

      . We only consider the effect of the abstention due to custom. We do not consider the legal effect of a failure to vote because of conflicts of interest.