author: ANDERSON, G. BARRY, Justice. HANSON, J.

text:
    Marcus Robert URBAN, et al., Appellants, v. The AMERICAN LEGION DEPARTMENT OF MINNESOTA, Respondent, The American Legion and its Subdivisions, Respondent.
    No. A04-1409.
    Supreme Court of Minnesota.
    Oct. 19, 2006.

      Leo F. Feeney, Richard L. Gill, Randall Matthew Tietjen, Robins, Kaplin, Miller & Ciresi, L.L.P., Minneapolis, for appellant.
    Daniel A. Haws, Thomas A. Gilligan, Murnane, Conlin, White & Brandt, St. Paul, William M. Hart, Jenneane, L. Jansen, Melissa Dosick Riethof, Meagher & Geer, P.L.L.P., Minneapolis, Donald H. Walser, Judge Advocate, Dept, of MN, Kraft, Walser, Hettig, & Honsey, Hutchinson, for respondent.
    Mike hatch, Atty. Gen., St. Paul, for amicus.
   OPINION

ANDERSON, G. BARRY, Justice.

The tragedy that gives rise to this litigation occurred on August 10, 2000, when a drunk driver struck the Urban family car, leaving wife and mother Barbara Urban dead and children Marcus and Brett Urban with serious and lifelong injuries. The Urbans sued American Legion Post 184 under the Civil Damages Act, Minn.Stat. §§ 340A.801-.802 (2004) (“CDA”), alleging that Post 184 illegally served the drunk driver alcohol on the night he struck the Urbans. Later, the Urbans additionally sued the American Legion Department of Minnesota (the Department) and the American Legion National (National) under several theories, including alter ego, joint venture, and respondeat superior. The district court granted summary judgment for the Department and National on all grounds, and the court of appeals affirmed. We granted the Urbans’ petition for review on only the question of whether the Department and National can be held liable under the CDA via respondeat superior. We now affirm the court of appeals, but on other grounds.

On August 10, 2000, appellant Todd Urban, his wife, Barbara Urban, and their three sons, appellants Marcus, Michael, and Brett Urban, were driving south on Highway 52 in Goodhue County. Orvin Rolland was driving north in the southbound lane and hit the Urban vehicle head-on. As a result of the collision, Barbara Urban died, Marcus Urban was rendered a paraplegic, and Brett Urban suffered serious brain damage.

The Urbans brought an action against Post 184 and the Pine Island Municipal Liquor Store under the CDA for the illegal sale of alcohol to Rolland. The Urbans additionally brought suit under the CDA against National and the Department, alleging vicarious liability under several theories, including respondeat superior. Both National and the Department moved for summary judgment, the district court granted both motions for summary judgment, and the Urbans appealed. The court of appeals affirmed the summary judgment. Urban v. American Legion Post 184, 695 N.W.2d 153 (Minn.App.2005). We granted review on the issue of whether the Department and National could be held vicariously liable on a respondeat superior theory for Post 184’s allegedly torti-us liquor sale.

In order to understand the arguments of the parties, it is first necessary to understand the organizational structure of the American Legion. The American Legion is a mutual aid and community service organization for veterans, and was created by the federal government in 1919. 36 U.S.C. §§ 21701-21708 (2002) (initially enacted as Act of Sept. 16, 1919, ch. 59, 41 Stat. 284). Membership eligibility is defined by the statute. 36 U.S.C. § 21703 (2002). Additionally, the statute grants certain powers to National, including the authority to:

(1) adopt a constitution, bylaws, and regulations to carry out the purposes of the corporation;
(2) adopt and alter a corporate seal;
(3) establish and maintain offices to conduct its activities;
(4) establish state and territorial organizations and local chapter or post organizations;
(5) acquire, own, lease, encumber, and transfer property as necessary to carry out the purposes of the corporation;
(6) publish a magazine and other publications;
(7) sue and be sued; and
(8) do any other act necessary and proper to carry out the purposes of the corporation.

36 U.S.C. § 21704 (2002). Pursuant to this grant of power, National has adopted its own constitution and bylaws and has created state chapters (the departments) in each state and in various other locations (55 departments altogether). Within each state, groups of Legion members may create “posts,” which are local chapters of the American Legion. Currently, there are approximately 15,000 Legion posts, and about 2.8 million Legion members.

Posts are volunteer-created and usually volunteer-run. Groups wishing to create a post apply to the department that controls their state or territory for approval of a temporary charter. If the local department approves the prospective post’s application for a temporary charter, National issues the temporary charter. After a probation period lasting a minimum of 90 days, the post organizers may apply to the local department for a permanent charter. The local department makes the final decision as to whether the permanent charter shall be granted.

Posts and departments are separately incorporated, as is National. National, each department, and each post all have their own leaders (commanders). National and each department have their own executive committees, and posts are encouraged (although not required) to also form such committees to help in running the post. Additionally, National, the local departments, and the posts all have their own constitutions and by-laws. Post officers are generally elected from among the members of the post.

The “Officer’s Guide and Manual of Ceremonies,” a guidebook distributed to Legion officials by National, states that “[t]he post is a separate and distinct unit which can, and often does, function independently.” The posts elect a “District Commander” who serves as a link between the posts in his or her district and the local department. The Officer’s Guide describes the role of the department vis-a-vis the post:

The department headquarters constitutes the link between the community post of the American legion and the National organization. * * * Routine business should be transacted through department headquarters. Department headquarters is familiar with the issues and conditions of state affairs. Questions of policy and organization should be referred by the post to department headquarters. Through department headquarters any information may be secured that is desired by the post, or the ways of securing it may be found.

The Officer’s Guide also sets out the very limited relationship between the posts and national headquarters: “Practically all of your contacts with National Headquarters are rightfully carried through your department headquarters.” Post commanders are also urged to attend National and department conventions.

Neither National nor the departments finance the local posts. Each post is expected to collect dues from all its members and deliver a portion thereof to the appropriate department, which in turn transmits a portion to National. The post owes the requisite portion of each member’s dues to the department and National regardless of whether the member pays the dues. The post makes up any missing dues with money raised through post activities including, at some posts, operation of a bar or restaurant. Neither National nor the departments directly receive revenue from post bars or other post fundraising activities.

The issue presented by this appeal concerns the application of responde-at superior, a common law doctrine under which an employer may be vicariously liable for the torts of an employee committed within the course and scope of employment. Fahrendorff v. N. Homes, Inc., 597 N.W.2d 905, 910 (Minn.1999). “Such liability stems not from- any fault of the employer, but from a public policy determination that liability for acts committed within the scope of employment should be allocated to the employer as a cost of engaging in that business.” Id. Urban urges that this doctrine be extended to allow a claim against either or both the Department or National on the grounds that the departments or National exercise sufficient control over the local posts to justify imposition of liability on the Department or National or both.

We turn first to the language of the statute. The Department and National argue that the CDA was only intended to apply to direct vendors of alcoholic beverages, which they are not. They claim that by specifying licensees, and by narrowing the previous scope of the law to “licensees” from “employers,” the legislature specifically limited vicarious liability under the CDA. Compare Minn.Stat. § 340.941 (1984) with Minn.Stat. § 340A.501 (2004). We agree.

The CDA reads as follows:

A sponse, 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. All damages recovered by a minor under this section must be paid either to the minor or to the minor’s parent, guardian, or next friend as the court directs.

Minn.Stat. § 340A.801, subd. 1 (2004) (footnote added). Additionally, the legislature has specifically extended liability to licensees for the sales made by their employees:

Every licensee is responsible for the conduct in the licensed establishment and any sale of alcoholic beverage by any employee authorized to sell alcoholic beverages in the establishment is the act of the licensee for the purposes of all provisions of this chapter except sections 340A.701, 340A.702, and 340A.703.

Minn.Stat. § 340A.501 (2004).

The CDA created a cause of action that did not exist at common law. Beck v. Groe, 245 Minn. 28, 34, 70 N.W.2d 886, 891 (1955). Litigation under the CDA is entirely a creation of the legislature. Id. We presume, as the dissent notes, that statutes creating new causes of action do not abrogate the common law unless they do so “by express wording or necessary implication.” Shaw Acquisition Co. v. Bank of Elk River, 639 N.W.2d 873, 877 (Minn.2002). The Urbans correctly point out that Minn.Stat. § 340A.801 does not expressly prohibit the application of re-spondeat superior common law. But Minn.Stat. § 340A.501, which makes licensees responsible for the sale of alcohol by their employees, necessarily implies that the legislature did not expect respondeat superior to apply to CDA liability.

We must presume that every statute has a purpose and that no statutory language should be deemed superfluous or insignificant. Mayo Collaborative Servs., Inc. v. Commissioner, 698 N.W.2d 408, 423 (Minn.2005); Vlahos v. R & I Const. of Bloomington, Inc., 676 N.W.2d 672, 679 (Minn.2004). Respondeat superior would clearly impose liability on a licensee for the sale of alcohol by its employees. So if respondeat superior applies to actions under the CDA, section 340A.501 does nothing. That section can only have meaning and effect if the legislature did not intend respondeat superior to impose CDA liability on masters, including licensees, not directly at fault. Because we must assume that the legislature intended section 340A.501 to have a purpose, we must conclude that licensee liability, and thus re-spondeat superior, does not automatically attach to the CDA.

The principle expressio unius est exclusion alterius (the expression of one thing indicates the exclusion of another) further suggests that, in specifying that licensees are liable for the alcohol distribution of their own employees, the legislature meant that only licensees are vicariously liable for the alcohol distribution. The legislature has had ample opportunity in the nearly 100 years since enacting the CDA to recognize vicarious liability as it has in other statutes. See, e.g., Minn.Stat. § 169.09, subd. 5(a) (Supp. 2005). In the unique context of dram shop litigation the failure of the legislature to act is significant; we decline to act where the legislature has chosen not to.

Our case law supports this outcome. The CDA may be “liberally construed” where its “provisions are clear as to intent and purpose,” but must be “strictly construed in the sense that it cannot be enlarged beyond its definite scope.” Beck, 245 Minn. at 34, 70 N.W.2d at 891; see Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 857 (Minn.1998); Herrly v. Muzik, 374 N.W.2d 275, 278 (Minn.1985). The dissent argues that this dichotomy is confusing. The dissent’s argument is not without merit, but the dichotomy is nonetheless a longstanding part of our CDA jurisprudence. The class of persons subject to CDA liability defines the Act’s scope, and we must construe it strictly in this regard.

Furthermore, the legislature has dealt with issues arising out of the CDA and has not hesitated to amend the CDA when it has perceived a need to do so. In 1972, we concluded that the CDA as then worded permitted social-host liability because liability could be incurred by “giving” alcohol to tortfeasors. Koehnen v. Dufuor, 590 N.W.2d 107, 109 (Minn.1999) (citing Ross v. Ross, 294 Minn. 115, 117, 200 N.W.2d 149, 150 (1972)). But soon thereafter the legislature amended the CDA to remove the word “giving,” and we held that the amendment makes clear that the legislature was specifically closing off social host liability. Cole v. City of Spring Lake Park, 314 N.W.2d 836, 840 (Minn.1982).

The legislature’s elimination of social-host liability led us to conclude that the policy underlying the CDA is to apply liability for alcohol-related harms to commercial vendors who profit from the sale of alcohol. Cady v. Coleman, 315 N.W.2d 593, 595-96 (Minn.1982). But even were we to apply the CDA to the owners of licensees where owners receive alcohol sales profits, the Department and National do not receive revenue, let alone profits, from post alcohol sales except in the most attenuated circumstances (where a post needs to make up a delinquent member’s dues). While the Department and National do receive some indirect benefit from alcohol sales in that those sales help support Legion posts, social hosts also receive some indirect benefits that do not properly qualify as “profits” and the legislature, in its 1977 revision of Minn.Stat. § 340.95, eliminated social-host liability under the CDA.

The Urbans argue that our decision in Hahn v. City of OHonville supports an extension of respondeat superior because, among other reasons, Hahn states that masters may be held liable for the actions of their servants under the CDA. 238 Minn. 428, 57 N.W.2d 254 (1953). In Hahn, the City of Ortonville, which owned and operated a municipal liquor store, was a defendant in an action for damages allegedly caused by illegal sales of liquor conducted by its servant, the bartender. Id. The municipality argued that it was not hable under the CDA because it was protected by governmental immunity. Id. at 433, 57 N.W.2d at 259. We concluded that the municipality was subject to liability for illegal alcohol sales because those sales were not “governmental” functions and because the legislature could — and did- — impose liability on a municipality in derogation of traditional immunity. Id. at 433-34, 57 N.W.2d at 259-60. We noted that the CDA stated that:

[Persons injured by the intoxication of another person have] a right of action * * * against any person who, by illegally selling, bartering or giving intoxicating liquors, caused the intoxication of such person, for all damages, sustained;

Id. at 436, 57 N.W.2d at 260-61. We concluded, based on other statutory sources, that “person” in this context included “municipal corporations engaged in selling liquor.” Id. at 437, 57 N.W.2d at 261. In Hahn, we specifically noted that the municipality in question owned the liquor store, operated it, and in doing so was involved in a “profit-making business.” We noted that “a municipal liquor dispensary is normally a source of financial profit for the municipality.” Id. at 435, 57 N.W.2d at 260.

Hahn is not at odds with our conclusion here. In Hahn, the municipality was liable for the illegal sales of alcohol made by its bartenders. Similarly, here, Post 184 is hable for any illegal alcohol sales made by its employees. While Hahn did use a master-servant argument in holding the municipality liable for its bartenders’ actions, Hahn was decided before the legislature adopted Minn.Stat. § 340A.501, amending the CDA. See Hahn, 238 Minn. at 428, 57 N.W.2d at 254; Act of June 5, 1985, ch. 305, Art. 7, § 1, 1985 Minn. Laws 1454, 1491 (codified at Minn.Stat. § 340A.501 (1986)). Section 340A.501, as noted earlier, makes it clear that licensees are automatically liable for the illegal alcohol sales of their employees. In altering the law, the legislature also necessarily altered our analysis. Given that the legislature in section 340A.501 specified that licensees are vicariously liable — implying, along with our case law, that others are not — we decline to apply a master-servant or respondeat superior analysis here, and we affirm the court of appeals

Because we conclude that the CDA did not intend nonlicensees to be held vicariously liable for violations of the CDA, an in-depth examination of respondeat superi- or law is unnecessary.

Affirmed.

ANDERSON, RUSSELL A., C.J., and PAGE, J., took no part in the consideration or decision of this case.

HANSON, J.

(dissenting).

I respectfully dissent. On the question of the scope of the Civil Damages Act (CDA), I conclude that the CDA does not abrogate, but instead incorporates, common law principles of vicarious liability. Accordingly, I would hold that the Urbans’ CDA claims may be brought against the Department and National, who are not the named licensee but who are alleged to be vicariously liable for the acts of the named licensee. On the question of whether the Department and National are vicariously liable for the acts of Post 184, I conclude that there are genuine issues of material fact sufficient to preclude the grant of summary judgment dismissing the Urbans’ complaint. Accordingly, I would reverse the grant of summary judgment and remand for trial.

1. The Scope of the CDA.

Vicarious liability, as recognized in the common law, does not describe an independent cause of action, but describes a relationship that makes one party liable for the acts of another where an underlying cause of action exists against the other. In Lange v. National Biscuit Co., we said:

Respondeat superior or vicarious liability is a principle whereby responsibility is imposed on the master who is not directly at fault. Its derivation lies in the public policy to satisfy an instinctive sense of justice.

297 Minn. 399, 403, 211 N.W.2d 783, 785 (1973). Accordingly, ■ it is necessary to view the underlying cause of action and vicarious liability separately because these are two separate theories of liability and the analysis is different for each. Here, for example, the underlying cause of action alleged against Post 184 is for direct liability under the CDA, but the claim alleged against the Department and National is for vicarious liability under common law principles of respondeat superior.

The majority opinion commingles these two separate theories of liability, often applying the elements of one to the analysis of the other. It is largely for this reason that the conclusion of the majority — that only licensees are to be held vicariously liable for the illegal alcohol distribution — is incorrect.

a. The CDA does not make the licensee “vicariously” liable.

The direct statutory liability of a licensee was added to the CDA in 1985. Act of June 5, 1985, ch. 305, art. 7, sec. 1, 1985 Minn. Laws 1454, 1491 (codified as Minn. Stat. § 340A.501 (1986)). Prior to that time a licensee who was an employer already faced common law vicarious liability for the acts of its employees. We made this clear in Hahn v. City of Ortonville when we held that a municipality that operates a municipal liquor store may be vicariously liable as a principal for the direct statutory liability of its employees who made illegal sales while acting within the scope of their employment. 238 Minn. 428, 438-39, 57 N.W.2d 254, 262 (1953). We based that holding both on the common law of respondeat superior and on the then current version of the CDA, which provided that any sale by an employee “is the act of the employer as well as the person actually making the sale.” Id. (quoting Minn.Stat. § 340.941 (1946)). The point to be remembered from Hahn is that common law vicarious liability applies to the CDA, and a principal may be held liable under the common law of respondeat superior where its agent is statutorily liable under the CDA.

With this context in mind, it can be seen that section 340A.501 both enlarges on the common law vicarious liability of a licensee who is an employer or principal and creates a new liability for a licensee who is not an employer or principal. That section provides that “any sale of alcoholic beverage by any employee authorized to sell alcoholic beverages in the establishment is the act of the licensee for the purposes of [the CDA].” (Emphasis added.) I read this language to add to a licensee’s common law vicarious liability as an employer by creating a direct statutory liability.

b. The CDA incorporates the common law of respondeat superior.

The majority uses the wrong rule of statutory construction because it focuses on the wrong question. If the critical question was, as the majority assumes, whether section 340A.501 imposes direct statutory liability on the Department and National, a rule of strict construction might be appropriate because that section creates a statutory cause of action and is, in one sense, penal in nature. But that is not the critical question before us. The Department and National do not have direct statutory liability, only Post 184, as licensee, and its employee who made the sale, have direct statutory liability. The critical question before us is whether, under Hahn, the Department and National have common law vicarious liability, as principals of Post 184, for the direct statutory liability of Post 184. In other words, the legal issue is whether section 340A.501 abrogated the common law vicarious liability that Hahn recognized for principals whose agents were directly liable under the CDA.

On that question, the rule of construction is clear, and it is the opposite of the one applied by the majority. Our well-settled case law on the rule of construction for statutes that create new causes of action is to presume that such statutes are consistent with the common law and to construe them not to have abrogated the common law unless they do so “by express wording or necessary implication.” Shaw Acquisition Co. v. Bank of Elk River, 639 N.W.2d 873, 877 (Minn.2002) (quoting Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn.2000)). See also Rosenberg v. Heritage Renovations, LLC, 685 N.W.2d 320, 327-28 (2004); Bloom v. Am. Express Co., 222 Minn. 249, 253, 23 N.W.2d 570, 573 (1946). Although we have said that we construe such statutes “strictly,” we have meant that we construe them strictly against the notion that they abrogate the common law. Shaw Acquisition Co., 639 N.W.2d at 877; Bloom, 222 Minn. at 253, 23 N.W.2d at 573. Or, to state it positively, we construe such statutes liberally in favor of the continued existence of the common law.

The majority acknowledges that section 340A.801 “does not expressly prohibit the application of respondeat superior common law.” And the majority does not set forth any rationale as to why such a prohibition must be necessarily implied. Instead, the majority appears to employ the reverse presumption, that the failure to expressly mention common law principles of vicarious liability means that the legislature intended to abrogate them.

c. The CDA should be construed liberally.

The premise for the majority’s use of this reverse presumption is that the CDA is to be strictly construed for one purpose, but liberally construed for another. The majority suggests that we construe the CDA narrowly as to its “scope,” but liberally apart from its scope. That suggestion is confusing because each construction that we are asked to give to a statute that creates a cause of action involves, in some sense, the statute’s “scope.” And if, as the majority perhaps would acknowledge, we are to construe the CDA liberally to give effect to its remedial purposes, we cannot do so and still construe the act narrowly as to its scope because the scope of the CDA is central to its remedial purpose.

For example, in deciding who are proper plaintiffs to bring a CDA claim, we have construed the CDA “liberally.” See, e.g., Hannah v. Chmielewski, Inc., 323 N.W.2d 781, 784 (Minn.1982); Hempstead v. Minneapolis Sheraton Corp., 283 Minn. 1, 4, 166 N.W.2d 95, 97 (1969). We should use the same liberal rule of construction in deciding who are proper defendants to a CDA claim. And even if we were to construe section 340A.501 strictly in determining who is subject to direct statutory liability as a licensee, this would not require us to construe the section strictly in determining whether it abrogates common law vicarious liability for those who are principals of a licensee. As noted above, the latter question requires that the section be liberally construed in favor of the survival of common law because we presume that the legislature does not abrogate the common law unless it does so expressly or by necessary implication.

In this context, the Latin phrase expres-sio unius est exclusio alterius (the expression of one thing indicates the exclusion of another) is not useful as a standard of construction. This Latin phrase may describe a logical conclusion where the “one thing” is inconsistent with “another.” But it makes no logical sense where the two things are consistent. Here, the two things, direct statutory liability of a licensee under the CDA and vicarious liability of the licensee’s principal under common law, are not only consistent, they are complementary. In different ways, each serves the same purpose of strengthening the regulation of the sale of alcohol.

As noted earlier, section 340A.501 actually expanded common law vicarious liability of a licensee by converting it to direct statutory liability. There is no principle of statutory construction that would support the suggestion that a statute that expands liability in one fashion implies an intent to simultaneously restrict liability in another fashion. The expression of the intent to make the liability of licensees no longer dependent on common law vicarious liability does not indicate any intent to restrict common law vicarious liability for those who are not affected by the statute, such as principals of a licensee.

Further, I agree with the commentators who have questioned the usefulness of this Latin phrase as a rule of statutory construction. As stated by Professor Dickerson:

Several Latin maxims masquerade as rules of interpretation while doing nothing more than describing results reached by other means. The best example is probably expressio unius est exclusio alterius, which is a rather elaborate, mysterious sounding, and anachronistic way of describing the negative implication. Far from being a rule, it is not even lexicographically accurate, because it is simply not true, generally, that the mere express conferral of a right or privilege in one kind of situation implies the denial of the equivalent right or privilege in other kinds. Sometimes it does and sometimes it does not, and whether it does or does not depends on the particular circumstances of context. Without contextual support, therefore, there is not even a mild presumption here. Accordingly, this maxim is at best a description, after the fact, of what the court has discovered from context.

Reed Dickerson, The Interpretation and Application of Statutes 234-35 (1975) (citations omitted).

The majority suggests that section 340A.501 replaced rather than enlarged the common law respondeat superior liability of a licensee. The majority states that the application of respondeat superior would have held licensees liable for the actions of their employees without need for the statute to specify such liability. Although the premise is true (that responde-at superior may have held licensees liable for the actions of their “employees”), that liability would only exist for licensees who were also “employers” or principals of the person making the illegal sale of alcohol. The common law liability was based not on one’s status as a licensee but as an employer or principal. Section 340A.501 did enlarge the common law respondeat superior liability of a licensee because it eliminated at least two defenses that might have been available to a licensee under the common law: (1) the defense that the licensee was not the principal or employer of the person making the sale, and (2) the defense that the person making the sale was not acting within the scope of his or her employment or agency with the licensee.

d. The issue of “profit” and the analogy to social hosts are irrelevant.

The majority points out that only Post 184 receives the “profits” from the sale of alcohol. The majority further points out that even if the Department and National receive indirect benefits, this would not be enough for direct statutory liability because “social hosts” have no statutory liability even if they receive indirect benefits. But these facts are only relevant to direct liability under the CDA. And the critical issue to be decided here is not whether the Department and National are directly liable under the CDA, but whether they are vicariously liable under Hahn as principals of Post 184, which is directly liable under the CDA. That vicarious liability is determined by applying the common law elements of the principal-agent relationship, not by applying the statutory elements for direct liability under the CDA.

e. The failure of the legislature to specifically address vicarious liability does not evidence an intent to eliminate it.

The majority suggests that if the legislature had intended to permit vicarious liability under the CDA, it would have amended the CDA to provide it and, in the nearly 100-year history of the CDA, it has not done so. This suggestion fails for at least two reasons.

First, in 1953 we declared that common law vicarious liability applies under the CDA for the employer of the person making the illegal sale. Hahn, 238 Minn. at 438-39, 57 N.W.2d at 262. If the legislature intended to eliminate the common law of vicarious liability of employers under the CDA, it could easily have said so. But, in the over 40 years since Hahn, the legislature took no action to eliminate common law vicarious liability under the CDA. To the contrary, it extended direct statutory liability to licensees who otherwise would only have been subject to common law vicarious liability.

Second, the portion of the CDA that the majority relies on as having abrogated common law vicarious liability, section 340A.501, was enacted in 1985, only slightly over 20 years ago. And, until the court of appeals’ decision in this case, in April of 2005, the legislature had no reason to consider that a court might interpret section 340A.501 as abrogating common law vicarious liability. Thus, there is no basis to give any meaning to the legislature’s failure to further amend the CDA.

For all of these reasons, I would hold that section 340A.501 did not abrogate common law vicarious liability under the CDA and such liability exists for one who can be shown to be an employer or principal of the licensee.

2. The Sufficiency of the Vicarious Liability Claim.

The more difficult question is the one that was dispositive for the court of appeals — whether the Urbans have raised genuine issues of material fact on the elements necessary to establish vicarious liability. The court of appeals rightly focused that question on whether the Department and National were in a principal-agent relationship with Post 184, as defined by the Restatement (Second) of Agency § 2 (2004): “A master in a master-servant relationship is one who “employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.” ” Urban v. Am. Legion Post 184, 695 N.W.2d 153, 160 (Minn.App.2005). But I disagree with the court of appeals’ answer to that question: “The record does not show that National has a right to control the physical undertakings of Post 184’s daily activities. At most, the record shows that National has some power over what Post 184 does, but not over how it does it.” Id. at 161. Although I acknowledge that the application of respondeat superior law to the relationship between the Department and National and Post 184 is unusual, I conclude that it is not unprecedented. I further conclude that the Urbans have presented enough evidence of actual control and the right of control to create genuine issues of material fact.

Even though the Department and National, on the one hand, and Post 184, on the other, are separately incorporated, this does not preclude proof of the control that is necessary to create a principal-agent relationship. Unlike an alter ego theory of liability, where a parent corporation is held liable for the acts of its subsidiary because the two are viewed as the same legal person, Victoria Elevator Co. v. Meriden Grain Co., 283 N.W.2d 509 (Minn.1979), the existence of a principal-agent relationship assumes that each party to the relationship is a separate legal person. Restatement (Second) of Agency § 1(1) (“Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act,”), § 14M cmt. a (“However a corporation may become an agent of an individual or of another corporation, as it does when it makes a contract on the other’s account. Thus a subsidiary may become an agent for the corporation which controls it, or the corporation may become the agent of the subsidiary.”). See also A. Gay Jenson Farms Co. v. Cargill, Inc., 309 N.W.2d 285, 291-92 (Minn.1981) (holding that a corporate creditor who assumes significant control over the internal affairs of its corporate debtor created a principal-agent relationship that supported the jury verdict imposing liability on the creditor for debts of the corporate debtor).

Although we have not addressed the precise situation, courts in other jurisdictions have considered whether a parent corporation or a national organization can be vicariously liable as principal for the acts of a subsidiary corporation or local branch organization. Thus, in Golden Spread Council, Inc. # 562 of the Boy Scouts of America v. Akins, the Texas Supreme Court considered whether the National Boy Scouts of America (BSA) could be held vicariously liable for the tortious acts of an employee of the local, BSA chartered, troop organization. 926 S.W.2d 287 (Tex.1996). The court applied the standard master-servant relationship test, but ultimately concluded that BSA had insufficient control to warrant vicarious liability. Id. at 290.

In an analogous situation, the Wisconsin Supreme Court addressed the question whether a corporate franchisor could be vicariously liable for the tortious acts of an employee of a corporate franchisee. Kerl v. Dennis Rasmussen, Inc., 273 Wis.2d 106, 682 N.W.2d 328 (2004). The court stated that a “franchisor may be held vicariously liable for the tortious conduct of its franchisee only if the franchisor has control or a right of control over the daily operations of the specific aspect of the franchisee’s business that is alleged to have caused the harm.” Id. at 341. Although the court found that the franchisor had a “plethora of general controls on [the franchisee’s] restaurant,” the court rejected vicarious liability because the franchisor did not control or have the right to control the specific aspect of the business that was alleged to have caused the harm — the supervision of employees. Id. at 341-42. Kerl is valuable because it surfaces the notion that vicarious liability can be based either on the quantity of control or the quality of control.

Applying the reasoning of these cases to the present facts, the quantity of control by the Department and National over the daily operations of Post 184 may not be sufficient to create a principal-agent relationship for all purposes. But I am persuaded by the reasoning in Kerl that the Urbans have presented sufficient evidence that the Department and National have the right to control “the specific aspect of [Post 184’s] business that is alleged to have caused the plaintiffs’ harm.” Kerl, 682 N.W.2d at 341.

The specific aspect of Post 184’s business that is alleged to have caused the harm is the sale of alcohol to one who was not a member of the American Legion. The drunk driver who was served alcohol at Post 184, allegedly in violation of Minn. Stat. § 340A.502 (2004) because he was obviously intoxicated, was not a member of the American Legion. The Department and National have a specific rule that prohibits posts from serving alcohol to nonmembers, and have mandated specific procedures that a post must follow to assure compliance with this rule — “police the doors,” “check the [membership] cards” and “get rid of’ nonmembers who get in the post bar. This rule is important to the Department and National because they have obtained from the Internal Revenue Service a group tax exemption that is based on the tax exempt purposes of the Department and National. The exemption requires bar operations of qualified posts to provide service only to members of National and not to the general public. To maintain that exemption, the Department and National must annually represent to the Internal Revenue Service that the qualified posts are under their supervision and control. According to evidence presented by the Urbans, National acknowledges that the group exemption is placed in jeopardy if any post violates this rule and serves alcohol to persons who are not members of National.

I conclude that the Urbans have presented sufficient evidence to raise genuine issues of material fact on the claim that the Department and National are vicariously liable at common law for the statutory liability of Post 184 under the CDA. Accordingly, I would reverse the summary judgment and remand for trial.

      . The District Commander and his committee are also supposed to monitor and help their district's posts, work to attain membership goals, encourage the development of new posts and revitalization of defunct or dormant posts, and encourage the posts to create new and innovative programs and activities.

      . Post 184 conceded that the sale of alcohol to Rolland was illegal because he was not a post member; however, they did not concede causation or that he was intoxicated when they sold him the liquor.

      . The dissent acknowledges that the application of respondeat superior here is unusual, but argues that it is not unprecedented. But the majority cites no Minnesota authority sanctioning the use of respondeat superior under anything remotely resembling these facts, and we have found none. The authority relied on by the dissent includes fact patterns with acknowledged control of the subsidiary by the parent corporation. See, e.g., A. Gay Jenson Farms Co. v. Cargill, Inc., 309 N.W.2d 285, 291-92 (Minn.1981) (holding that a corporate creditor assuming significant control over the internal affairs of a corporate debtor was properly held liable under a jury verdict for that debtor’s obligations). Indeed, on these facts it is improbable that the Department and National could be held liable on a respondeat superior theory even if we were to apply it. Both are incorporated separately from the post and have separate constitutions and executive committees, and there are 15,-000 posts in the country and 584 in Minnesota, rendering day-to-day oversight or meaningful control by National or the Department impossible.

      . Hahn, 238 Minn. at 436, 57 N.W.2d at 261 (stating that the CDA "although penal in nature, [is] also remedial in character and, according to the prevailing view, [is] to be liberally construed so as to suppress the mischief and advance the remedy").

      . See, e.g., Frankie v. Twedt, 234 Minn. 42, 47-48, 47 N.W.2d 482, 487 (1951) (emphasizing “the right of control, and not necessarily the exercise of that right" as the “test of the relationship of master and servant”); Boily v. Comm'r of Econ, Sec., 544 N.W.2d 295, 296 (Minn.1996) (“The right to control the means and manner of performance generally carries the greatest weight in a determination of the worker's status.”).


source: Caselaw Access Project

author: /s/Helen M. Meyer, Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Richard H. MARTIN, a Minnesota Attorney, Registration No. 68135.
    No. A05-1650.
    Supreme Court of Minnesota.
    Oct. 25, 2006.
   ORDER

By order filed on September 14, 2005, this court suspended respondent Richard H. Martin for 30 days, with reinstatement conditioned, among other things, upon respondent’s successful completion of the professional responsibility portion of the state bar examination within one year from the date of filing of the order. Although respondent was reinstated to active practice by order filed on December 29, 2005, respondent has not yet provided evidence of his successful completion of the professional responsibility portion of the state bar examination, as required by the September 14, 2005, order.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Richard H. Martin is suspended from the practice of law until such time as respondent provides evidence of successful completion of the professional responsibility portion of the state bar examination. Respondent’s suspension shall be effective 14 days from the date of this order. Respondent shall comply with Rule 26, Rules on Lawyers Professional Responsibility (RLPR) and shall provide written notice of his suspension to clients, opposing counsel, and tribunals.

BY THE COURT:

/s/Helen M. Meyer, Associate Justice


author: HANSON, Justice.

text:
    Otha Eric TOWNSEND, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A06-45.
    Supreme Court of Minnesota.
    Oct. 26, 2006.

      Mike Hatch, Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, St. Paul, MN, For Respondent.
    Otha Eric Townsend, Bayport, MN, pro se.
   OPINION

HANSON, Justice.

Appellant Otha Eric Townsend appeals from the district court’s denial of his third petition for postconviction relief without an evidentiary hearing. Townsend was convicted of first-degree murder in 1994, and we affirmed his conviction on direct appeal. We subsequently affirmed the denial of his two earlier petitions for postconviction relief. The district court denied Townsend’s third petition without an evi-dentiary hearing because claims raised were known or should have been known at the time of an earlier appeal and are therefore barred. We affirm.

On September 29, 1994, a jury found Townsend guilty of first-degree murder, and he was sentenced to life in prison. Townsend subsequently pleaded guilty to an attempted second-degree murder charge stemming from an assault that took place on the same night as the murder, and Townsend was sentenced to an additional 72 months in prison, to be served consecutively to his life sentence. Our decisions addressing Townsend’s earlier appeals relate the details of these crimes. See Townsend v. State, 646 N.W.2d 218, 220 (Minn.2002) (“Townsend III ”); Townsend v. State, 582 N.W.2d 225, 229 (Minn.1998) (“Townsend //”); State v. Townsend, 546 N.W.2d 292, 294-95 (Minn.1996) (“Townsend I ”).

In ruling on the direct appeal of the murder conviction, this court addressed only the issue of whether “evidence related to the [attempted murder] * * * was erroneously admitted and that it so prejudiced the jury that [Townsend] was denied a fair trial.” Townsend I, 546 N.W.2d at 295. We affirmed the conviction, holding “that although there was error in the admission of some of the evidence of [the] attempted murder, that error was harmless beyond a reasonable doubt.” Id. at 297. We denied Townsend’s petition for rehearing.

Townsend petitioned for postconviction relief. His claims included ineffective assistance of trial counsel and counsel on his direct appeal, violation of his right to counsel, “tainted grand juror(s),” and prosecu-torial misconduct. In addition, Townsend alleged that his right to due process was violated when the trial court failed to rule on pending motions, rushed the case to resolution, denied Townsend a continuance to test certain physical evidence, and committed a large assortment of additional errors. The postconviction court denied Townsend’s petition without an evidentiary hearing, and Townsend appealed. Regarding the ineffective assistance of appellate counsel claim, we affirmed on the grounds that Townsend failed to allege facts that, if proven, would entitle him to relief. Townsend II, 582 N.W.2d at 229. Moreover, after independently reviewing the record, we found “no indication that appellate counsel’s assistance fell below an objective level of reasonableness.” Id. We affirmed the dismissal of Townsend’s other claims, holding that they were barred by Townsend’s failure to raise those issues on direct appeal, that this failure was inexcusable, and that justice did not require additional review. Id. at 228-29.

After Townsend II, this court, in State v. Juarez, acknowledged that it had occasionally “misstated the significance of the strength of the evidence of guilt in harmless error analysis” and singled out the opinion in Townsend I as containing an example of such a misstatement. 572 N.W.2d 286, 291 n. 6 (Minn.1997); see also Townsend III, 646 N.W.2d at 219. In response, Townsend filed a petition for a writ of habeas corpus, which was ultimately treated as a second petition for postcon-viction relief. Id. Townsend requested application of the proper harmless error standard to evidentiary errors at trial and asserted that a new trial was necessary. Id. The postconviction court denied the petition, determining that the decision on direct appeal included all the elements of the proper harmless error impact test. Id. On appeal, we applied the proper harmless error standard and affirmed, holding that “the verdict was surely unattributable to the erroneously admitted evidence” and that it was not an abuse of discretion for the district court to refuse to order a new trial. Id. at 224.

On July 26, 2005, Townsend filed the current petition for postconviction relief. As an initial matter, Townsend makes two arguments as to why his claims should not be barred by his failure to raise them in earlier appeals. First, Townsend contends that this court may take notice of plain error affecting substantial rights even when those errors were not previously raised. Second, Townsend asserts that he has not had an adequate opportunity to seek a remedy for the claimed violations of his constitutional and statutory rights. Specifically, Townsend argues that his appellate counsel on direct appeal intentionally failed to file a motion to withdraw and that, although Townsend signed a waiver that he wished to proceed pro se, this failure to file a motion to withdraw rendered the proceedings on direct appeal inadequate. As additional support, Townsend cites to a dissenting opinion in the Eighth Circuit decision in Murray v. Hvass, 269 F.3d 896, 903 (8th Cir.2001) (Bright, J., dissenting), that suggests that our procedural approach to ineffective assistance of trial counsel claims has been inconsistent. The dissenting opinion intimates that Townsend’s ineffective assistance of trial counsel claims — not raised in the current appeal — were improperly denied without a hearing in Townsend II. See Murray, 269 F.3d at 903. Townsend argues that barring his claims under these circumstances denies him access to the corrective process to which he is entitled.

Townsend’s current petition for postcon-viction relief makes five substantive claims: (1) that the trial court improperly failed to rule on a motion to dismiss the indictment; (2) that the indictment did not adequately inform him of the charges against him or, alternatively, that the doctrine of merger should apply to the murder and attempted murder charges; (3) that the evidence of the attempted murder was not admissible in the trial on the murder charge, claiming that this constitutes an improper amendment of the indictment to include additional charges; (4) that the trial court’s failure to instruct the jury that it must return verdicts on both the first- and second-degree murder charges relieved the state of the burden of proving every element of its case beyond a reasonable doubt; and (5) that the state failed to provide Townsend with access to certain physical evidence for examination and testing.

Townsend argues that all of these claimed mistakes constitute plain error affecting substantial rights. Townsend requests relief in the form of reversal of his conviction, remand for a full evidentiary hearing, a new trial, independent review of his claims by this court, amendment of his conviction from first-degree murder to second-degree murder, disclosure of evidence, or other appropriate relief.

I.

This court reviews determinations of legal issues by a postconviction court under a de novo standard. Schleicher v. State, 718 N.W.2d 440, 445 (Minn.2006). “[Wlhere direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconvietion relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Similarly, a postconviction court will not consider claims that were raised or were known and could have been raised in an earlier petition for postconviction relief. See Jones v. State, 671 N.W.2d 743, 746 (Minn.2003). But, there are two exceptions to this “Knaffla rule.” First, if a claim is known to a defendant at the time of an appeal but is not raised, it will not be barred by the Knaffla rule if its novelty was so great that its legal basis was not reasonably available when direct appeal was taken. Roby v. State, 531 N.W.2d 482, 484 (Minn.1995). Second, even if the claim’s legal basis was sufficiently available, substantive review may be allowed “when fairness so requires and when the petitioner did not ‘deliberately and inexcusably’ fail to raise the issue on direct appeal.” Russell v. State, 562 N.W.2d 670, 672 (Minn.1997) (quoting Roby, 531 N.W.2d at 484).

All of Townsend’s claims in his current petition for postconviction relief are barred by the Knaffla rule. Problems with the indictment, the grand jury process, the jury instructions, and discovery and evidentiary matters were known or available after trial and should have been raised in Townsend’s direct appeal. See, e.g., Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995) (noting that “[a]ll of appellant’s claims concerning withheld discovery were known at the time of trial and at the time of direct appeal, but were not raised.”). Townsend fails to even claim that these matters were unavailable to him at the time of his earlier appeals.

No established exception to the Knaffla rule applies. Townsend’s claims were not so novel that their legal bases were unavailable at the time of his earlier appeals, and he makes no assertion that this is the case. Except for the plain error and ineffective assistance of appellate counsel arguments discussed below, Townsend does not appear to claim the fairness exception to Knaffla applies. See Hodgson, 540 N.W.2d at 517 (declining to consider fairness exception where appellant neglected to present facts implicating that exception). We reiterate our position, adopted in Townsend II, that “Townsend’s failure to raise issues known to him at the time of his direct appeal was inexcusable, and fairness does not require substantive review of the issues.” Townsend II, 582 N.W.2d at 228-29.

II.

Townsend’s other arguments seek to establish additional exceptions to the Knaffla rule. Townsend first seeks a “plain error exception” to the Knaffla rule, arguing that we should hear his claims because they constitute plain error. The plain error rule is directed at trial errors. Thus, although a failure to object to an error at trial ordinarily prevents review of that error on appeal, Rairdon v. State, 557 N.W.2d 318, 323 (Minn.1996), appellate courts have discretion to consider plain errors affecting substantial rights even if those errors were not objected to at trial. See Minn. R.Crim. P. 31.02. (“Plain errors or defects affecting substantial rights may be considered by the court upon motions for new trial, post-trial motions, and on appeal although they were not brought to the attention of the trial court.”). Plain errors may be raised in the first appeal, but the rule does not contemplate that those errors may be raised in any subsequent appeal. To the contrary, this court’s past decisions indicate that the Knaffla rule applies to claims of plain error. See Rairdon, 557 N.W.2d at 322 (considering arguments of plain error only after deciding that the Knaffla rule did not apply). Permitting an exception to the Knaffla rule for assertions of plain error would swallow the rule, destroying the finality and efficiency that the Knaffla rule was intended to foster. See Torres v. State, 688 N.W.2d 569, 572 (Minn.2004) (discussing finality and efficiency as reasons for the Knaffla rule).

Townsend also argues for a new exception to the Knaffla rule — separate from the fairness exception — for claims of ineffective assistance of counsel. But our case law in this area does not support such an exception. In Torres, 688 N.W.2d at 572-73, we clarified the procedure for raising claims of ineffective assistance of trial counsel. We said that such claims must be raised on direct appeal if they can be reviewed on the basis of the trial record, but otherwise should be raised by the first postconviction petition. Further, we have recognized that a defendant who wishes to raise an ineffective assistance of appellate counsel claim need not do so in the very appeal where counsel is representing the defendant, but instead may raise that claim in the next postconviction petition. See Robinson v. State, 567 N.W.2d 491, 496 (Minn.1997). But, if that claim is not raised in the next postconviction petition, it is thereafter barred because it was known and available at the time of that petition. Jihad v. State, 714 N.W.2d 445, 447 (Minn.2006).

Townsend’s current arguments about ineffective assistance of appellate counsel are focused on counsel in the direct appeal, Townsend I, and are barred because they were known and available at the time of the first post-conviction proceeding, Townsend II. Moreover, this same argument was considered and rejected in Townsend’s first petition for postcon-viction relief. See Townsend II, 582 N.W.2d at 228 (“Townsend contends that his failure to raise these issues in his direct appeal was excusable because when he fired his appointed appellate attorney and requested that the brief filed by that attorney be dismissed, he did not have sufficient time to prepare his appellate brief.”). In Townsend II we also rejected the notion that Townsend’s claims regarding ineffective assistance of appellate counsel satisfied the fairness exception to the Knaffla rule, stating:

Townsend’s appellate attorney explicitly informed him that she raised the issues that she believed merited the court’s attention and that he may present additional issues in a pro se supplemental brief. Dissatisfied, Townsend waived appellate counsel, requested that the brief written by counsel be dismissed, and continued pro se. In doing so, Townsend recognized that he would be held to the same standard as a licensed attorney, including complying with strict time requirements, and that any issues not raised in his direct appeal would be deemed waived. Townsend then missed the extended filing deadline by almost 2 months. We conclude that under these circumstances, Townsend’s failure to raise issues known to him at the time of his direct appeal was inexcusable, and fairness does not require substantive review of the issues.

Id. at 228-29. Accordingly, Townsend’s ineffective assistance of counsel claim does not permit him to avoid the bar of the Knaffla rule, under either the existing fairness exception or some new exception.

Affirmed.

      . Subsequent to Townsend II and Murray, this court clarified when an ineffective assistance of counsel claim may be presented by post-conviction petition. See Torres v. State, 688 N.W.2d 569, 572 (Minn.2004).


author: HANSON, Justice. PAGE, Justice

text:
    STATE of Minnesota, Respondent, v. Richard Raymond CHAUVIN, Appellant.
    No. A05-726.
    Supreme Court of Minnesota.
    Oct. 26, 2006.

      Mike Hatch, Attorney General, Thomas R Ragatz, Assistant Attorney General, Saint Paul, MN, Jan Kolb, Mille Lacs County Attorney, Milaca, MN, For Respondent.
    Benjamin J. Butler, Assistant State Public Defender, Office of the Minnesota State Public Defender, Minneapolis, MN, For Appellant.
   OPINION

HANSON, Justice.

On appeal from his conviction for felony theft by swindle, appellant Richard Raymond Chauvin challenges the district court’s double upward durational departure from the presumptive guideline sentence. Specifically, Chauvin argues that the district court did not have the authority to impanel a jury to make findings on aggravating sentencing factors. Chauvin also challenges the upward departure because it was based on an aggravating factor that did not appear in the complaint. We affirm.

On March 19, 2004, Chauvin waved down a car and asked the driver, 80-year-old D.E., for $200 to help Chauvin get his truck out of a ditch. D.E. was uneasy about the request but agreed because Chauvin knew D.E.’s full name and said that Chauvin sang at a church D.E. occasionally attended. D.E. gave Chauvin the money and a ride after Chauvin promised to pay him back. At one point before the two parted company Chauvin showed D.E. his driver’s license, told him his real name, and signed an agreement to return the money. D.E. gave Chauvin another $450 when he returned to D.E.’s home a few hours later and asked for more money to get his truck fixed. The next day someone purporting to be a police officer phoned D.E.’s home and told D.E.’s daughter that Chauvin needed more help and asked that D.E. bring an additional $600. D.E.’s daughter became suspicious and called the police, who identified and arrested Chau-vin.

On April 28, 2004, Chauvin was charged by complaint with felony theft by swindle, MinmStat. § 609.52, subds. 2(4), 3(3)(a) (2004), and driving after revocation, Minn. Stat. § 171.24, subd. 2 (2004). The complaint was silent about aggravating factors. The presumptive guideline sentence based on the theft charge and Chauvin’s criminal history was 24 months commitment to prison.

On June 24, 2004, the United States Supreme Court decided Blakely v. Washington, holding that for Apprendi purposes, the “statutory maximum” is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In October 2004, about three weeks before trial, the state filed and served on Chauvin a written notice that it would seek an enhanced sentence under Minn.Stat. § 609.1095, subd. 4 (2004) (amended June 2, 2005, eff. Aug. 1, 2005) (five or more prior felonies (“career offender”)), and Minn. Sent. Guidelines II. D.2b.(l) (particularly vulnerable victim). The state sought to enhance Chauvin’s sentence from 24 months to 60 months, the maximum sentence allowed by MinmStat. § 609.1095, subd. 4. The state did not amend its complaint to reflect these aggravating factors.

On the first day of trial the district court told Chauvin and the attorneys that, because the career offender statute requires proof of prior crimes and Blakely requires that the aggravating sentencing factors be found by a jury, it was the court’s intention to bifurcate the proceedings by first asking the jury to determine guilt, and then reconvening the jury to hear evidence on and make findings about the existence of the sentencing factors. Outside the presence of the jury the court explained how the bifurcated process would work and told Chauvin that he could waive his right to a jury determination on the sentencing factors if he wished. Chauvin said he did not wish to waive his right to a jury determination on the sentencing factors but objected to any proceeding that would result in a departure from the presumptive sentence of 24 months because there were no rules or statutes authorizing the procedure that the court was contemplating.

After a two-day trial the jury returned a verdict of guilty. The district court then told the jury they could go home, but that they were bound by the same rules as during trial because they would have to return the next day for a “second stage to this trial.” After extensive arguments on the state’s ability to prove the dates of Chauvin’s prior convictions, the state withdrew its motion for an upward departure based on the career offender statute, Minn.Stat. § 609.1095, subd. 4. The court then reconvened the jury for a finding on the other aggravating factor (victim vulnerability), and instructed them as follows:

A separate jury determination is required when a defendant has been found guilty of a crime and the state seeks an increase in the defendant’s sentence above the presumptive sentence provided by law. In making that determination the trial jury shall consider those factors relevant to the question of the increased sentence. If you unanimously find beyond a reasonable doubt that one of the following relevant factors exists then the judge may increase the defendant’s sentence above the presumptive sentence provided by law. Final determination whether to increase the defendant’s sentence remains with the judge.

The court instructed the jury on the state’s burden of proof, beyond a reasonable doubt, and on the two elements of a vulnerable victim. The court then said:

If you find that both these elements have been proved beyond a reasonable doubt, then the [victims] were vulnerable adults and you should * * * answer the special interrogatory yes. If you find that either [element] has not been proved beyond a reasonable doubt, the [victims] were not vulnerable adults then you should answer the special interrogatory no.

The attorneys argued to the jury about the sentencing factor based on the evidence presented in the first phase of trial. No new evidence was presented at this sentencing stage. After deliberations the jury returned the interrogatory, finding that “the evidence establishes beyond a reasonable doubt that the defendant’s victims * * * were vulnerable adults.” Based on this jury finding the court sentenced Chau-vin to 48 months in prison, double the presumptive sentence. The court of appeals affirmed. State v. Chauvin, No. A05-726, 2005 WL 2979382, at *1 (Minn.App. Nov.8, 2005).

I.

We first address the issue of whether in November of 2004 the district court had the inherent judicial authority to impanel a sentencing jury. This is an issue of law that we review de novo. See State v. Pflepsen, 590 N.W.2d 759, 768 (Minn.1999). At the time of Chauvin’s trial and sentencing hearing, the legislature had not yet enacted legislation to specifically authorize the use of juries on sentencing and we had not spoken on the issue of the inherent power of the district court to do so.

A court’s inherent judicial authority “grows out of express and implied constitutional provisions mandating a separation of powers and a viable judicial branch of government.” In re Clerk of Lyon County Courts’ Compensation, 308 Minn. 172, 180, 241 N.W.2d 781, 786 (1976). This authority only extends to a court’s “unique judicial functions.” State v. C.A., 304 N.W.2d 353, 358-59 (Minn.1981). In Lyon County we identified several guiding principles for analyzing the scope of a district court’s inherent judicial authority and concluded:

The test to be applied in these cases is whether the relief requested by the court or aggrieved party is necessary to the performance of the judicial function as contemplated in our state constitution. The test is not relative needs or judicial wants, but practical necessity in performing the judicial function. The test must be applied with due consideration for equally important executive and legislative functions.

Lyon County, 308 Minn. at 181-82, 241 N.W.2d at 786. In other words, a court has inherent judicial authority to engage in activities that are (1) necessary (2) to achieve a unique judicial function (3) without infringing on equally important legislative or executive functions. Applying this test to the facts of this case leads us to conclude that the district court had the inherent judicial authority to impanel a sentencing jury.

First, use of a sentencing jury was necessary because, as the district court correctly determined, the judicial fact finding portion of the Minnesota Sentencing Guidelines was unconstitutional under Blakely. We later confirmed that determination. See State v. Shattuck (Shattuck II), 704 N.W.2d 131, 143 (Minn.2005). In Shattuck II we held that because “Minn. Sent. Guidelines II.D authorized the district court to make * * * an unconstitutional upward durational departure upon finding an aggravating factor without the aid of a jury, we hold that * * * section II.D of the guidelines is unconstitutional as applied.” 704 N.W.2d at 142. Without a constitutional mechanism for imposing an upward sentencing departure and without legislative guidance on how to proceed, impaneling a sentencing jury was necessary (1) to carry out the legislative sentencing scheme to the extent that it contemplated that the district court would impose upward departures where such departures were “more appropriate, reasonable, or equitable than the presumptive sentence,” see Minn. Sent. Guidelines II.D, 14 Minn.Stat. 347-48 (2004), and (2) to vindicate Chauvin’s Sixth Amendment right to a jury determination of aggravating sentencing factors, see Blakely, 542 U.S. at 303-04,124 S.Ct. 2531.

Chauvin argues that the court’s sentencing jury procedure was not necessary because the district court had a constitutional mechanism to sentence him, by imposition of the presumptive sentence. But this argument requires a conclusion that necessity, in the context of inherent judicial authority, is the equivalent of impossibility. We have never given necessity such a limited interpretation.

In In re Office of District Public Defender for the First Judicial District, 373 N.W.2d 772, 775, 775 n. 1 (Minn.1985), we rejected the argument that the First Judicial District had the inherent authority to withdraw itself from the public defender system because the proffered reason for withdrawal — disapproval of the appointed public defender- — -was based on “relative needs or judicial wants,” not “practical necessity.” In State by Archabal v. County of Hennepin, 505 N.W.2d 294, 298 (Minn.1993), we held that ordering a closed settlement conference between two public entities was within the court’s inherent judicial power and thus could be exercised notwithstanding the Open Meeting Law. These cases recognized that necessity, for purposes of inherent judicial authority, involves a reasonableness inquiry.

Without a constitutional statutory mechanism to impose an aggravated sentence the district court was left with two choices. It could completely ignore the legislative scheme for departing from the presumptive guideline sentence. Or, as the court ultimately chose, it could do the least amount of damage to the statutory scheme by retaining the departure mechanism while at the same time complying with Blakely by using a sentencing jury. Faced with this conflict, we agree that it was practically necessary for the district court to improvise a jury fact finding mechanism to comply with the Sixth Amendment.

Second, using a sentencing jury to make factual findings is a unique judicial function. The state relies on our decision in State v. Johnson, 514 N.W.2d 551 (Minn.1994), to argue that impaneling a sentencing jury is a unique judicial function because it is a procedural matter. In Johnson we were asked to enforce a court rule, Minn. R.Crim. P. 23.04, which required the defendant’s consent before a misdemeanor could be certified as a petty misdemeanor, over a contrary statute, Minn.Stat. § 609.131, subd. 1 (2004), which did not. Johnson, 514 N.W.2d at 554. Enforcing the court rule would have given the defendant the option of electing a jury trial, whereas the statute would have left this determination to the discretion of the prosecutor. Id. at 553.

We said that the “[determination of [court] procedural matters is a judicial function” that “arises from the court’s inherent judicial powers.” Id. at 553-54; see also In re Welfare of J.R., Jr., 655 N.W.2d 1, 3 (Minn.2003) (“We have consistently held that the supreme court has the primary responsibility under the separation of powers doctrine to regulate matters of trial and appellate procedure.”). We then defined a procedural rule as one that “ ‘regulate[s] the steps by which the guilt or innocence of one who is accused of a criminal statute is determined’ ”, Johnson, 514 N.W.2d at 554 (quoting State v. Wingo, 266 N.W.2d 508, 513 (Minn.1978)), or that “ ‘neither creates a new cause of action nor deprives defendant of any defense on the merits,’ ” id. at 555 (quoting Strauch v. Superior Court, 107 Cal.App.3d 45, 165 Cal.Rptr. 552, 554 (1980)), or that “ ‘prescribes [the] method of enforcing * * * rights or obtaining redress for their invasion,’ ” id. at 554 (first alteration in original) (quoting Stern v. Dill, 442 N.W.2d 322, 324 (Minn.1989)). Conversely, we defined a substantive rule as one that “ ‘de-clárete] what acts are crimes and prescribe[s] punishment for their violation,’ ” id. at 554 (quoting Wingo, 266 N.W.2d at 513), or that “ ‘creates, defines and regulates rights,’ ” id. (quoting Stern, 442 N.W.2d at 324). We concluded that the certification process is a procedural rule because it did not change any elements of a substantive offense or create a new class of offenses, but instead described the steps to take in determining whether an existing offense will be treated as a different existing offense. Id. at 555.

Similarly, impaneling a sentencing jury did not change the punishment available for the underlying substantive offense. It merely changed the steps that the court took in arriving at a sentence already authorized by the legislature. Blakely did not remove the ability of a judge to impose an aggravated sentence, it only changed the process by which aggravated sentences may be imposed.

Furthermore, safeguarding the rights of criminal defendants is a historical and constitutional function of the judicial branch. Cf. State v. Scales, 518 N.W.2d 587, 592 (Minn.1994) (exercising our supervisory-powers to require the recording of custodial interrogations in order to afford ‘adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial,”) (quoting Stephan v. State, 711 P.2d 1156, 1159-60 (Alaska 1985)); State v. Paulick, 277 Minn. 140, 150, 151 N.W.2d 591, 598 (1967) (holding that the authority to grant or refuse the request of law-enforcement officers to initiate criminal procedures is a function that the judiciary cannot delegate). We have recognized this function as applied to the Sixth Amendment right to a trial by jury in two cases involving factual findings that had an impact on sentencing issues, but where there was no legislation specifying the identity of the fact finder. See State v. Robinson, 480 N.W.2d 644 (Minn.1992); State v. Olson, 379 N.W.2d 524 (Minn.1986).

The defendant in State v. Olson was convicted of receiving stolen property valued at $1,000 or more, the highest category of offenses listed in the relevant statute. 379 N.W.2d 524, 525 (Minn.1986). For purposes of determining the offense severity level, the sentencing guidelines further distinguished between receiving stolen property valued at more than $2,500 and receiving stolen property valued between $1,000 and $2,500. Id. at 526. The district court made a factual finding that the property involved was worth more than $2,500, and thus sentenced the defendant according to the higher offense severity level. Id. We held that judicial fact finding of sentencing factors did not violate double jeopardy and that, in any case, the defendant waived the argument by failing to request a special interrogatory verdict. Id. at 526, 528. But we stated that “[i]t may be that in an appropriate case involving an offense under section 609.53 the trial court should, on the request of either the defendant or the state, submit a special interrogatory inquiring whether or not the value of the stolen property exceeded $2,500.” Id. at 527.

In State v. Robinson the district court submitted a special interrogatory to the jury to make a finding, in addition to guilt, on the question of whether some of the defendant’s acts of sexual abuse occurred after a certain date. 480 N.W.2d 644, 645 (Minn.1992). We reversed the resulting enhanced sentence because the district court improperly instructed the jury on the burden of proof in finding this fact. Id. at 646. But we also commented on the second issue presented in the case: whether the judge would have been bound by the jury’s finding in the special interrogatory or whether the finding was merely advisory. Id. We said, “[i]n our view defendant had a right to let the jury authoritatively decide the issue of whether the abuse occurred before or after the effective date of the repeat offender statute.” Id.

These cases demonstrate our recognition of the historical and constitutional function of the judiciary to safeguard the rights of criminal defendants by providing for a jury trial where the statutory scheme is silent on the issue. Impaneling a sentencing jury is thus a unique judicial function.

Third, the district court did not infringe on the legislative function of creating a sentencing guideline system. At the time the district court impaneled the sentencing jury, Blakely had established that the judicial fact finding on sentencing factors contemplated by the guidelines was unconstitutional, and there was no new legislation providing for the same or a different procedure. Far from infringing on a legislative function, the district court was effectuating the legislative policy of allowing the opportunity to depart from the presumptive sentence where “substantial and compelling circumstances exist.” Minn. Sent. Guidelines 1.4, II.D. Accordingly, we hold that the district court had inherent power to impanel a sentencing jury under these facts. This result comports with results reached in other jurisdictions. See, e.g., State v. Schofield, 895 A.2d 927, 937-38 (Me.2005) (noting that permitting jury sentencing pursuant to the court’s power to “ ‘safeguard and protect * * * the fundamental principles of government vouchsafed to us by the State and Federal Constitutions’ ” “best preserves the Legislature’s intent to provide greater punishment for those who commit the most heinous offenses” (quoting Morris v. Goss, 147 Me. 89, 83 A.2d 556, 565 (1951)); Aragon v. Wilkinson ex rel. County of Maricopa, 209 Ariz. 61, 97 P.3d 886, 891 (2004); Lopez v. People, 113 P.3d 713, 716 (Colo.2005), cert, denied, — U.S. -, 126 S.Ct. 654, 163 L.Ed.2d 529 (2005).

II.

Chauvin argues that the recognition of the inherent power of the district court to impanel a sentencing jury is inconsistent with and contrary to our recent decisions in Shattuck II, 704 N.W.2d 131, and State v. Barker, 705 N.W.2d 768 (Minn.2005).

In State v. Shattuck (Shattuck I), 689 N.W.2d 785, 786 (Minn.2004), we first addressed the effect of the Blakely decision on the Minnesota Sentencing Guidelines and held that “because imposition of the presumptive sentence is mandatory absent judicial findings * * * the presumptive sentence is the maximum penalty authorized solely by the jury’s verdict for purposes of Apprendi.” In Shattuck II we addressed the appropriate remedy on remand, first holding that although “Minnesota Sentencing Guidelines II.D is unconstitutional insofar as it permits an upward durational departure based on judicial findings,” this portion can be excised and severed from the remaining constitutional provisions of the guidelines. 704 N.W.2d. at 143-44. After declining to adopt the Booker remedy by modifying the guidelines to make them advisory, we addressed the question of “whether this court has the inherent authority to authorize the use of sentencing juries and a bifurcated trial process.” Shattuck II, 704 N.W.2d at 147. Chauvin relies heavily on the last paragraph of this portion of the decision, where we said:

While this court has the authority to establish procedures to apply the requirements of Apprendi and Blakely to sentencing in Minnesota, we leave to the legislature the task of deciding how the Sentencing Guidelines system should be altered to comport with those cases. It is the legislature that created the Sentencing Guidelines system and retains authority over its development. For us to engraft sentencing-jury or bifurcated-trial requirements onto the Sentencing Guidelines and sentencing statutes would require rewriting them, something our severance jurisprudence does not permit.

Id. at 148. We then remanded for resen-tencing, but noted that we were not foreclosing the district court from using the remedy that the state requested — impaneling a sentencing jury on remand — because the legislature had recently authorized it. Id. at 148 & n. 17 (citing Act of June 2, 2005, ch. 136, art. 16, §§ 3-6, 2005 Minn. Laws 901,1115-16).

After reversing the defendant’s Blakely-infirm sentence in Barker, we rejected the state’s argument that we should direct the district court to impanel a sentencing jury on remand. Barker, 705 N.W.2d at 776. We first noted that “[i]n Shattuck, we rejected the suggestion that the district court should use its inherent power to impanel a resentencing jury.” Barker, 705 N.W.2d at 775. We then recognized that numerous mandatory minimum statutes were amended by the 2005 legislative response to Blakely, but that the statute Barker was sentenced under, Minn.Stat. § 609.11, subds. 5(a), 7 (2004) (amended June 1, 2006, eff. Aug. 1, 2006), was not similarly amended. Barker, 705 N.W.2d at 776. We concluded that this indicated a legislative intent that sentencing juries not be available to implement this mandatory minimum sentence in a resentencing hearing on remand, and we directed the district court to impose a sentence within the presumptive guideline range. Id.

The policy decision underlying Shattuck II and Barker, to decline on comity grounds to exercise our inherent judicial authority to impanel sentencing juries, could be extended to cases such as Chau-vin’s, where the district court exercised its inherent authority to impanel a sentencing jury before Shattuck II was decided and before the 2005 legislation was enacted. But, ultimately, we conclude that Shattuck II and Barker do not control the resolution of this case because the issue we faced in those cases was different from the precise issue we face here in ways that alter the comity analysis that is reflected in those cases.

The defendants in Shattuck II and Barker were sentenced before Blakely was decided and were not afforded a jury determination on aggravating factors. Chauvin was sentenced after Blakely was decided and was given a jury trial on the aggravating factor. More important, the state in Shattuck II and Barker was asking us to recognize the district court’s inherent judicial authority to impanel a sentencing jury on remand of an unconstitutional sentence, and we made the policy decision to not recognize that authority after the legislature had already authorized the use of juries on resentencing. In Shattuck II the legislature had already provided for the remedy the state was requesting. In Barker the legislature had already omitted the specific mandatory minimum statute at issue from the authorization to use sentencing juries on resen-tencing. In both cases we acknowledged the existence of the inherent judicial authority to impanel a sentencing jury, but made a policy decision out of deference to the legislature to not exercise that power.

Chauvin essentially asks us to give retroactive effect to the policy decision we made in Shattuck II and to expand it to situations where the legislature was yet silent about its intent. At the time Chau-vin was sentenced there was no lawful legislative fact finding procedure to which the court could have given deference. Thus, the policy decision on inherent authority faced by the district court in this case was significantly different than the decision we faced in Shattuck II and Barker.

Moreover, we concluded in Hankerson v. State, 723 N.W.2d 232 at 240-241, 243, 2006 WL 3026144 (Minn.2006), filed simultaneously with this opinion, that the retro-activity aspects of the 2005 amendments to Minn.Stat. § 244.10 (2004 & Supp.2005), authorizing the use of juries on resentenc-ing in cases where the original sentence was imposed before enactment of that legislation, was constitutional. That decision has practical ramifications on the comity analysis that must be made to determine whether we should reverse the district court’s exercise of its inherent judicial authority in this case. If we were to extend the policy choices made in Shattuck II and Barker to Chauvin — to invalidate the district court’s use of a sentencing jury in original sentencing — we would necessarily remand the case to the district court for resentencing, which would trigger the authorization to impanel a jury under section 244.10. We do not agree with the state that the availability of a sentencing jury on remand for resentencing would make any error in the previous use of a sentencing jury harmless, because there is no assurance that the two juries would necessarily reach the same result. But, the availability of a sentencing jury for resentencing on remand does alter the policy factors that influenced our decisions in Shattuck II and Barker. We now know that the retroactivity aspects of the amendments to section 244.10 are constitutional, a matter we left open in Shattuck II. We also conclude that the procedures utilized by the district court here are in material compliance with the procedures later authorized by section 244.10 for resentencing. Thus, unlike in Shattuck II and Barker, we are faced with the prospect of requiring the district court to repeat the very procedures it has already followed. Because this would offend notions of judicial economy, and because the procedures used by the district court were consistent with those later specified by the legislature, principles of comity no longer discourage the use of inherent judicial authority.

Therefore, we hold that the district court’s exercise of its inherent authority to impanel a jury on sentencing factors was not precluded by Shattuck II or Barker or by reasons of comity to the legislature.

III.

We now turn to Chauvin’s argument that because the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 494 & n. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), compared an aggravating factor to an element of a greater offense, all aggravating factors must appear in the complaint. Chauvin argues that the state’s failure to include victim vulnerability in the complaint violates his Sixth Amendment right to notice of the nature and cause of the accusation against him and his Fourteenth Amendment right to due process.

A.

The Sixth and Fourteenth Amendments require that the state inform a defendant “of the nature and cause of the accusation.” U.S. Const, amends. VI, XIV; Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This “nature and cause” requirement is satisfied if the charging instrument “ ‘contains such descriptions of the offense charged as will enable him to make his defense and to plead the judgment in bar of any further prosecution for the same crime.’ ” State v. Becker, 351 N.W.2d 923, 926 (Minn.1984) (quoting Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 40 L.Ed. 606 (1896)).

For the proposition that all elements must appear in the complaint Chauvin relies on our decision in State v. Gisege, 561 N.W.2d 152, 156-59 (Minn.1997). In Gi-sege the defendant was on trial for murder, and the district court granted his motion to instruct the jury on what the defendant characterized as the lesser-included offense of first-degree assault. Id. at 155. After concluding that assault is not a lesser-included offense of murder, we held that the district court erred in giving the instruction because assault was not listed on the complaint. Id. at 156-57. But Gisege is distinguishable because it only requires that separate offenses appear in the charging instrument. See id. at 157. We discussed the use of elements only to identify separate offenses, not to require the presence of aggravating sentencing factors in the complaint. See id. at 156-57.

In McCollum v. State, we rejected the argument that due process requires a reference to the sentencing statute in the charging instrument. 640 N.W.2d 610, 617-19 (Minn.2002). We explained that the purpose of the notice requirement is to allow the defendant to properly prepare his defense and to protect him from subsequent prosecution for the same offense. Id. at 618. We held that due process was not violated because the defendant was on notice of the statutory maximum sentence that accompanied the crime charged and because there was no argument on how the lack of citation to the sentencing statute may have affected the defense. Id. at 618-19.

Similarly, Chauvin was on notice that if convicted of theft he faced a statutory maximum sentence of 60 months. See Minn.Stat. § 609.52, subd. 3(3)(a); see also McCollum, 640 N.W.2d at 618 (noting that the statutory maximum sentence, ascertainable from the indictment, gave defendant notice of the potential sentence associated with the offense). Chauvin was also on specific notice of the state’s intent to depart from the presumptive guideline sentence. Approximately three weeks before trial the state informed him that it intended to seek an upward departure based on victim vulnerability and the career offender statute.

Chauvin’s reliance on Apprendi’s “elements” language is misplaced. The Supreme Court in Apprendi made the comparison of aggravating sentencing factors to elements in the context of the adequacy of proof to satisfy the Sixth Amendment’s jury trial requirement, not in the context of giving adequate notice of the charges presented to satisfy the Sixth and Fourteenth Amendments’ more relaxed due process and notice requirements. See Apprendi, 530 U.S. at 494 & n. 19, 120 S.Ct. 2348. We hold that the aggravating factor of victim vulnerability need not be alleged in the complaint.

B.

We also recognize that, under the facts of this case, even if the omission of victim vulnerability from the charging instrument was erroneous, the error would be harmless beyond a reasonable doubt. The Supreme Court recently determined that Blakely errors are not structural and thus are subject to a harmless error analysis. Washington v. Recuenco, — U.S. -, -, 126 S.Ct. 2546, 2553, 165 L.Ed.2d 466 (2006). Furthermore, we have determined that the inadequacy of a complaint is subject to a harmless error analysis. See Becker, 351 N.W.2d at 927. An error is harmless beyond a reasonable doubt if “the verdict was surely unattributable to the error.” Townsend v. State, 646 N.W.2d 218, 223 (Minn.2002).

In Becker we concluded that “the complaint was defective because it failed to state the specific time period in which the multiple acts of sexual abuse allegedly occurred.” 351 N.W.2d at 927. But we held that the error was harmless because “prior to trial [the defendant] availed herself of the discovery opportunities under the procedures authorized by our criminal rules.” Id. Because the defendant had adequate notice we held that the deficient complaint did not prejudice her defense. Id.

Chauvin fails to argue how the lack of a citation to the sentencing statute in the complaint prejudiced his defense; nor are we able to identify a way in which it could have. For several weeks before trial Chauvin knew the state would seek to enhance his sentence by presenting evidence that (1) he had at least five prior felony convictions and (2) that the victims were particularly vulnerable. After the guilty verdict, the district court held a lengthy hearing during which Chauvin successfully defended himself against one of these aggravating factors when the state withdrew its motion for an upward sentencing departure based on the career offender statute. This demonstrates' Chauvin’s ability to adequately prepare his defense on sentencing issues. Thus, even if the failure to include the second sentencing factor in the complaint was error, it would be harmless.

Affirmed.

PAGE, Justice

(concurring).

I concur in the result.

      . We did not explain what an appropriate case may be, blit hinted that the defendant would have to request the interrogatory and that there must be some degree of uncertainty as to the value of the property. Olson, 379 N.W.2d at 527-28.

      . This date was important because it was the effective date of a mandatory minimum statute, which would have applied to the defendant if the offense was committed after the effective date, but not before. Robinson, 480 N.W.2d at 644-45.

      . United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

      . This is not the first time that the legislature has taken a position on a matter within the inherent power of the judiciary that this court nonetheless decided to enforce as a matter of comity. See, e.g., State v. Willis, 332 N.W.2d 180, 184 (Minn.1983) (enforcing a statute that allowed the admission of certain evidence where there was no court evidentiary rule to the contrary).