author: LAVORATO, Chief Justice.

text:
    Dwayne ALONS, Carmine Boal, Nancy Boettger, Danny Carroll, Betty De-Boef, Steve King, Neal Schuerer, Matthew Wentz and Church of Christ of Le Mars, Plaintiffs, v. IOWA DISTRICT COURT FOR WOODBURY COUNTY, Defendant.
    No. 03-1982.
    Supreme Court of Iowa.
    June 17, 2005.

      Kevin H. Theriot and Elizabeth Murray, Olathe, KS, for Alliance Defense Fund, and Timm W. Reid, Pleasant Hill, for Iowa Liberty and Justice Center, for plaintiffs.
    Camilla B. Taylor, Chicago, IL, for ami-cus curiae Lambda Legal Defense and Education Fund, Sharon K. Malheiro of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for amicus curiae Lesbian, Gay, Bisexual and Transgendered Community Center of Central Iowa, Catherine Levine and Randall C. Wilson, Des Moines, for amicus curiae Iowa Civil Liberties Union, and John A. Knight, Chicago, IL, for amicus curiae American Civil Liberties Union Foundation.
   LAVORATO, Chief Justice.

In this case, the district court entered a decree dissolving a Vermont civil union. The plaintiffs, who were not parties in the proceedings before the district court, have challenged that decree by filing an original certiorari proceeding in this court. The issue before us is not whether the district court was correct or incorrect in dissolving the Vermont civil union. Rather, the issue is whether these plaintiffs, as nonparties in the action before the district court, have a right to challenge the decree. We conclude they do not have such a right and for that reason we annul the writ of certiorari that we previously granted. Writ annulled^

I. Background Facts and Proceedings.

On August 1, 2003, Kimberly Jean Brown filed a petition for dissolution of marriage in which Jennifer Sue Perez was named as the respondent. The petition alleged that the parties were married on March 25, 2002 in Bolton, Vermont and requested that the court enter a decree dissolving their marriage.

On November 14 the parties filed a stipulation regarding their assets and debts. On the same day, the district court entered a decree purporting to dissolve the parties’ marriage and incorporating the stipulation as part of the decree.

On December 15 the plaintiffs filed with this court a petition for writ of certiorari naming as defendant, “Judge of the Iowa District Court for Woodbury County.” See generally Iowa R.App. P. 6.301 (allowing the filing of a petition for writ of certiorari with the supreme court). The plaintiffs include state senators (Nancy Boettger and Neal Schuerer), state representatives (Dwayne Alons, Carmine Boal, Danny Carroll, and Betty DeBoef), a congressman (Steve King), a pastor (Matthew Wentz), and a church (Church of Christ of Le Mars).

The plaintiffs alleged that the district court did not have authority to enter a dissolution of marriage decree in the matter earlier mentioned. In support of this allegation, the plaintiffs alleged the following. Under Iowa law only a marriage between a male and female is valid and therefore Iowa law does not recognize a marriage between same-sex couples. The petitioner and respondent in the dissolution action were not married as alleged in the petition, but rather they entered into a civil union. Vermont law defines marriage as the legally recognized union of one man and one woman. The petitioner and respondent entered into a civil union. Under Vermont law a civil union requires that the parties be of the same sex and therefore excluded from the marriage laws of Vermont. There exists no statutory authority for the district court to dissolve a civil union.

On December 24 the district court entered an amended decree. The court noted that the parties entered into a civil union under Vermont law. The court also noted that it did not have subject matter jurisdiction to grant a dissolution of marriage from a Vermont civil union under Iowa Code chapter 598. Invoking general equitable subject matter jurisdiction to declare the status and rights of the parties, the court vacated in part the decree of dissolution of marriage. The court then granted the following equitable relief: terminating the Vermont civil union, freeing the parties of any obligations incident to that union, declaring that the parties are single individuals with all rights of unmarried persons, and approving and incorporating into the amended decree those portions of the parties’ stipulation regarding the division of property and debts.

On the same day, an order of this court asked the parties in this certiorari action to address what effect, if any, the amended decree had on the certiorari action. On January 9, 2004, the plaintiffs responded that the amended decree did not “repair the original jurisdictional infirmity” because equity jurisdiction did not grant the district court authority to recognize a civil union. The plaintiffs further maintained that the record contained no testimony, evidence, or allegation in the dissolution petition that a Vermont civil union actually existed. Finally, the plaintiffs stated that they were also relying on the Defense of Marriage Act found in 1 U.S.C. § 7 and 28 U.S.C. § 1738C (2003).

On February 3 we granted the petition for writ of certiorari and ordered the parties to brief the issue of the plaintiffs’ standing to bring the certiorari action. On April 19 a number of entities filed a motion for permission to file an amicus brief on the issue of the plaintiffs’ lack of standing. Those entities include the following: Lambda Legal Defense and Education Fund; Lesbian, Gay, Bisexual and Transgendered Community Center of Central Iowa; Iowa Civil Liberties Union; and American Civil Liberties Union Foundation [hereinafter amicus]. On May 19 we granted that motion.

II. Issue.

The decisive issue is whether the plaintiffs have standing to seek a writ of certio-rari challenging the district court’s amended decree.

III. Scope of Review.

“In an original certiorari proceeding, our review is for errors at law.” Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 488 (Iowa 2003). The principles for reviewing a certiorari action have been recently stated as follows:

“A writ of certiorari lies where a lower board, tribunal, or court has exceeded its jurisdiction or otherwise has acted illegally. For this reason, this court ‘may examine only the jurisdiction of the district court and the legality of its actions.’ ‘Illegality exists when the court’s findings lack substantial evidentiary support, or when the court has not properly applied the law.’ ”

Pfister v. Iowa Dist. Ct., 688 N.W.2d 790, 794 (Iowa 2004) (citations omitted).

IV. Standing.

A. Applicable Iowa law. In Citizens for Responsible Choices v. City of Shenandoah, we said that standing to sue means “ ‘a party must have “sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.” ’ ” 686 N.W.2d 470, 475 (Iowa 2004) (citations omitted); accord Sanchez v. State, 692 N.W.2d 812, 821 (Iowa 2005). As far as Iowa law is concerned, this means “that a complaining party must (1) have a specific personal or legal interest in the litigation and (2) be injuriously affected.” Id. Having a legal interest in the litigation and being injuriously affected are separate requirements for standing. Id.

Standing is a doctrine courts employ to

refuse to determine the merits of a legal controversy irrespective of its correctness, where the party advancing it is not properly situated to prosecute the action. When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant’s action has invaded.

59 Am. Jur. 2d Parties § 36, at 442 (2002) (footnotes omitted); see also Hawkeye Bancorporation v. Iowa Coll. Aid Comm’n, 360 N.W.2d 798, 802 (Iowa 1985) (“standing is a self-imposed rule of restraint”).

In short, the focus is on the party, not on the claim. 13 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531, at 339 (1984) [hereinafter Wright]. Even if the claim could be meritorious, the court will not hear the claim if the party bringing it lacks standing. See Citizens, 686 N.W.2d at 475 (“Whether litigants have standing does not depend on the legal merit of their claims, but rather whether, if the wrong alleged produces a legally cognizable injury, they are among those who have sustained it.”).

It has been said that “[sjtanding is related to the doctrine that prohibits advisory opinions because the latter requires the court to dispose of only those issues that affect the rights of the parties present.” 59 Am. Jur. 2d Parties § 35, at 441 (2002).

This court has required standing in certiorari actions. In State v. West, the court stated the requirement this way:

Certiorari, which is an extraordinary remedy, is available to all persons who show a substantial interest in the activity challenged. Generally, only a party to an action may obtain the writ. An exception exists, however, when the public is concerned with the subject matter of the action, in which case anyone interested may petition. In order for persons who are not parties to assert a claim, they must prove that they have been injured in a special manner, different from that of the public generally.

320 N.W.2d 570, 573 (Iowa 1982) (citations omitted); accord Williamson v. Kelley, 271 N.W.2d 727, 729 (Iowa 1978); Hohl v. Bd. of Educ., 250 Iowa 502, 509, 94 N.W.2d 787, 791 (1959); Keely v. Bd. of Supervisors, 158 Iowa 205, 207-08, 139 N.W. 473, 474 (1913); 59 Am. Jur. 2d Parties § 40, at 446-47 (2002).

According to the general rule for standing, the plaintiffs here — being non-parties — lack standing to bring this certio-rari action. The question remains whether they satisfy the public interest exception as stated in West. Therefore, to fall within this exception, the plaintiffs must first prove that they are “concerned with the subject matter of the action.” West, 320 N.W.2d at 573. That means the plaintiffs must have a “specific personal or legal interest in the litigation,” which relates to the first requirement of standing generally. Citizens, 686 N.W.2d at 475. In addition, as mentioned, the plaintiffs must also prove that “they have been injured in a special manner, different from that of the public generally,” which relates to the second requirement of standing generally. West, 320 N.W.2d at 573.

Several of our cases illustrate the type of interest and injury required in a certio-rari action, which, as mentioned, are not dissimilar from the type of interest and injury required for standing generally. In Polk County v. District Court, a case addressing many of the issues in the present case, Polk County and several residents brought a certiorari action to determine the legality of a district court order declaring jury lists of Polk County illegal. 133 Iowa 710, 110 N.W. 1054 (1907). The issues of concern in Polk County were (1) whether the plaintiffs had such a legal interest in the controversy to entitle them to maintain the action and (2) whether the plaintiffs showed that they had a specific right that was violated. Id. at 711, 110 N.W. at 1054.

The individuals maintained they were citizens and taxpayers of the county and therefore entitled to maintain the action. Id. The court rejected the citizenship claim, stating that “mere citizenship confers no right to maintain the action.” Id.; accord 13 Wright, Federal Practice and Procedure § 3531.3, at 411 (“General citizen standing to vindicate the interest in lawful government is rejected, even though there be important issues and able — even fervent — litigants.”).

The court also rejected the taxpayer claim, holding that “certiorari will not lie to review the action of a court when such action involves only the expense necessary to the maintenance of the courts and the due administration of the law.” Polk County, 133 Iowa at 712, 110 N.W. at 1055. The court cited the well-established rule that “a taxpayer may maintain an action in his own name to prevent unlawful acts by public officers which would ‘increase the amount of taxes he is required to pay, or diminish a fund to which he has contributed.’ ” Id. (citation omitted).

Although the individual plaintiffs in Polk County had suits pending that were triable to a jury, the court suggested that the only way the plaintiffs could challenge the order was if their case were called for trial and they were not able to have their case tried. Id. at 713, 110 N.W. at 1055. Under the circumstances, the court said,

the plaintiffs had suffered no injury at the time they filed their pleadings and asked to have the order set aside. They were simply anticipating some wrong or injury, and a writ of certiorari will never issue in such cases.

Id. at 713-14, 110 N.W. at 1055.

Finally, the court noted that the plaintiffs were attempting to represent the general public rather than their individual interest and demonstrated no authority for doing so. Id. at 714, 110 N.W. at 1055.

One year later, this court decided Hemmer v. Bonson, 139 Iowa 210, 117 N.W. 257 (1908), a case upon which the plaintiffs heavily rely. However, for reasons that follow, we think this reliance is misplaced.

In Hemmer, the court made the following broad statement:

If the petitioner for the writ is a party in substance, though not in form, he may have the writ. So, also, if the matter to be reviewed is one which affects the public generally, an individual citizen may ordinarily invoke the remedy of certiorari.

139 Iowa at 215, 117 N.W. at 259. The facts of the case and the actual holding belie the statement’s broadness. In Hemmer, a statute expressly gave any citizen in the county the right to enjoin a liquor nuisance existing in the county. Id. A citizen brought such an action, and the district court entered a decree enjoining a tavern from maintaining the nuisance upon certain conditions. Id. at 212-13, 117 N.W. at 257-58. Another citizen of the county, whose residence was next to the saloon, brought a certiorari action challenging the decree as not going far enough under the statute. Id. at 214, 117 N.W. at 258. The court noted that while the injunction proceeding was brought in the name of an individual citizen, the plaintiff acted in a representative capacity only and any decree rendered was primarily for the protection of the public interest. Id. at 215, 117 N.W. at 259. Because the plaintiff bringing the certiorari action could have sued under the statute to enjoin the nuisance and because the plaintiff had a special interest in the matter due to the proximity of her residence to the tavern, this court held that the plaintiff had standing. Id. at 215-17, 117 N.W. at 259.

In Keely, the plaintiff, a citizen of Iowa, resident of Dubuque County, and an honorably discharged Union soldier, sought certiorari review of a board of supervisors’ decision appointing commission members to a commission in charge of dispensing funds to families of indigent, honorably discharged Union soldiers to cover the soldiers’ funeral expenses. 158 Iowa at 206, 139 N.W. at 474. Although the statute required the commission members to be Union soldiers, one of the appointees did not meet this qualification. Id. The certio-rari action was filed to challenge this appointment. Id.

Holding that certiorari did not lie to challenge the board’s decision, this court in Keely noted that although the board did not follow the statute, the plaintiff neither alleged that he was directly interested in the board’s action nor that he was prejudiced by it. Id. at 207, 139 N.W. at 474. In support of its conclusion, the court stated that

[t]he writ of certiorari is not available to an individual who has no direct or particular interest in the proceedings sought to be reviewed, and who does not show that he will suffer a special injury beyond that which will affect him in common with the public....

Id.

In Hohl, this court recognized the general rule that only a person who is a party to the action involved may secure the writ of certiorari. 250 Iowa at 509, 94 N.W.2d at 791. The court then stated the exception: ‘Where the public is concerned in the subject matter, anyone interested may apply.” Id. (citing Hemmer, 139 Iowa 210, 117 N.W. 257). Applying the exception, the court held that residents in and landowners of an area of land subject to a school district reorganization had standing to challenge the reorganization decision by a state agency. 250 Iowa at 503-04, 94 N.W.2d at 788. The plaintiffs in Hohl were directly affected by the reorganization decision because their land was subject to that decision. Id. at 504, 94 N.W.2d at 788. So they had a specific personal interest in the litigation.

Later, in Board of Directors v. Board of Education, this court expressly referred to Hohl. 251 Iowa 929, 936, 103 N.W.2d 696, 701 (1960). In doing so, the court recognized that whether a party appeals or brings a certiorari action, such party “must have an interest legally recognizable” in the underlying case. Id. This court then held that a school district that had no territory included within a proposed reorganization of two other school districts had no right to participate in an appeal challenging the proposed reorganization. Id. at 931-32, 936-37, 103 N.W.2d at 698, 701.

The public interest exception was again before this court in Williamson v. Kelley, 271 N.W.2d at 729-30. In that case, two practicing attorneys brought a certiorari action challenging district court orders that provided trials would no longer be held in the courthouse because of a fire hazard but would be held in the post office basement. Id. at 728-29. The question was whether the plaintiffs’ status as attorneys who practiced in the affected court gave them any special interest that would meet the standing requirement. Id. at 729. The attorneys argued that (1) there was inadequate notice and lack of hearings prior to the orders being entered, (2) the fire marshal’s conclusion that the courthouse was unsafe was incorrect, and (3) the post office basement was not a suitable place to hear criminal cases. Id. This court held that the attorneys had no special interest to challenge the orders on those grounds. Id. at 730. As to the first two grounds, the court held the attorneys were raising rights of the public generally, while as to the third ground they were raising arguments on behalf of a general class in which they did not enjoy membership — criminal defendants tried in the county. Id.

In State v. West, the issue again involved the public interest exception, and the issue narrowed to whether the nonparty appellants had been injured in a special way, different from that of the public generally. 320 N.W.2d at 573. The appellants claimed to have been victims of the criminal defendant, West, and that they had suffered pecuniary damages because of his action. Id. They sought review of a district court decision excluding them from receiving distributions from the defendant’s restitution fund. Id. Even though the appellants were not identified as victims in the restitution plan that became part of the sentencing order, they did have a substantial personal interest in the outcome and would suffer pecuniary injury without their involvement in the restitution plan. Id. at 572, 573. The court therefore found the appellants had standing to challenge the district court decision. Id. at 573.

B. Relevant federal law. Article III of the Federal Constitution defines and limits the jurisdiction of the federal courts. Flast v. Cohen, 392 U.S. 83, 94, 88 S.Ct. 1942, 1949, 20 L.Ed.2d 947, 958 (1968). The federal courts’ judicial power is constitutionally restricted under this provision to “cases” and “controversies.” Id. The words “cases” and “controversies”

limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-eontroversy doctrine.

Id. at 95, 88 S.Ct. at 1950, 20 L.Ed.2d at 958-59.

Justiciability is a concept that covers a number of areas in which questions sought to be adjudicated have been held not to be justiciable. Id. at 95, 88 S.Ct. at 1950, 20 L.Ed.2d at 959. Examples include political questions, advisory opinions, issues that are moot, and lack of standing. Id.

In Lujan v. Defenders of Wildlife, the United States Supreme Court noted its cases over the years “have established that the irreducible constitutional minimum of standing contains” the following three elements:

First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”

504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351, 364 (1992) (alterations in original) (citations omitted) (footnote omitted). Recently, we cited this test with approval regarding a standing issue in Sanchez v. State, 692 N.W.2d at 821.

As is peculiar to the doctrine of standing, the Supreme Court recognizes that the “fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” Flast, 392 U.S. at 99, 88 S.Ct. at 1952, 20 L.Ed.2d at 961. So “in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” Id. at 101, 88 S.Ct. at 1953, 20 L.Ed.2d at 962. For that reason, the “emphasis in standing problems is on whether the party invoking federal court jurisdiction has ‘a personal stake in the outcome of the controversy’ and whether the dispute touches upon ‘the legal relations of parties having adverse legal interests.’ ” Id. (citations omitted).

By “particularized” in the three-part constitutional test for standing articulated in Lujan, the Court means that the “injury must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. at 2136 n. 1, 119 L.Ed.2d at 364 n. 1. In defining the nature of the injury, the Court has made it plain that “[ajbstract injury is not enough.” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674, 682 (1974). And allowing a plaintiff who has suffered no injury in fact to require a court to rule on issues in the abstract “would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing ‘government by injunction.’ ” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 222, 94 S.Ct. 2925, 2932-33, 41 L.Ed.2d 706, 719 (1974).

The injury-in-fact limitation

reflects a due regard for the autonomy of those persons likely to be most directly affected by a judicial order. The federal courts have abjured appeals to their authority which would convert the judicial process into “no more than a vehicle for the vindication of the value interests of concerned bystanders.”

Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 473, 102 S.Ct. 752, 759, 70 L.Ed.2d 700, 709 (1982) (citation omitted).

Beyond the constitutional requirements for standing, the United States Supreme Court has also considered several “prudential considerations,” further limiting the doctrine of standing. Id. at 471, 102 S.Ct. at 758, 70 L.Ed.2d at 708-09. One such consideration requires that “when the asserted harm is a ‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343, 355 (1975). Thus,

a plaintiff raising only a generally available grievance about government— claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not [provide a basis for standing],

Lujan, 504 U.S. at 573-74, 112 S.Ct. at 2143, 119 L.Ed.2d at 372. The claimed nonobservance of the law, “standing alone,” affects only the generalized interest of all citizens, and such an injury is abstract in nature, which is not sufficient for standing. Schlesinger, 418 U.S. at 217, 94 S.Ct. at 2930, 41 L.Ed.2d at 716; see also Valley Forge, 454 U.S. at 482-83, 102 S.Ct. at 764, 70 L.Ed.2d at 716 (“This Court repeatedly has rejected claims of standing predicated on ‘the right, possessed by every citizen, to require that the Government be administered according to law....”’ (Citations omitted.)); Schlesinger, 418 U.S. at 227, 94 S.Ct. at 2935, 41 L.Ed.2d at 722 (“The proposition that all constitutional provisions are enforceable by any citizen simply because citizens are the ultimate beneficiaries of those provisions has no boundaries.”).

It is true that the federal test for standing is based in part upon constitutional strictures and prudential considerations while our rule on standing is self-imposed. Hawkeye Bancorporation, 360 N.W.2d at 802; see also 59 Am. Jur. 2d Parties § 36, at 441 (2002). Nevertheless, the federal test for standing is not dissimilar from our own test as we have distilled from the decisions we have discussed. We therefore consider the federal authority persuasive on the standing issue.

C. Analysis. With the foregoing principles in mind, we address the various grounds the plaintiffs urge in support of their contention that they have standing.

1. Standing as members of the public. The plaintiffs first contend that they have standing because the public, as represented by the plaintiffs, has an interest in promoting traditional marriage. They argue that the district court’s recognition of a civil union is detrimental to the furtherance and promotion of marriage as defined in Iowa.

The plaintiffs next contend that the public has an interest in avoiding the erosion of marriage. In support of this contention, the plaintiffs argue that treating same-sex relationships the same as marriage denigrates and undermines traditional, opposite-sex marriage. Further, they say,

[t]he Iowa public has an interest in preserving the integrity of the marital union by making opposite-sex marriage the exclusive form of family relationship endorsed by the government. Loss of this exclusive endorsement will de-em-phasize the importance of traditional opposite-sex marriage to society, weakening this vital institution, and placing our entire democratic system in jeopardy by eroding its foundation.

The plaintiffs also contend that the public has an interest in safeguarding the rule of law and an interest in seeing that judges act within the jurisdictional boundaries established by Iowa law. They maintain that the district court was outside its jurisdiction when it dissolved the civil union in this case.

Finally, the plaintiffs contend the public has an interest in preserving the judicial process. That process, they argue, has been circumvented because Brown and Perez have no interest in challenging the district court’s jurisdiction to dissolve their civil union. Therefore, they conclude, injustice will result unless the public can petition for a writ of certiorari to challenge the district court’s actions.

We must keep in mind that our task is not to judge the merits of the plaintiffs’ contentions. Rather, our task is to determine whether these plaintiffs are the proper parties to bring the action. Reduced to their simplest form, the plaintiffs’ contentions and arguments do no more than to assert a right; to represent the general public rather than to identify their individual interests. They therefore have not shown that they have a specific personal or legal interest in the underlying action. Nor have the plaintiffs shown that they have been injured in a special manner, different from that of the public generally. See West, 320 N.W.2d at 573. Rather, what the plaintiffs allege is an injury in the abstract, not in fact, which is not enough. See Schlesinger, 418 U.S. at 220-21, 94 S.Ct. at 2932, 41 L.Ed.2d at 718-19; see also Korioth v. Briscoe, 523 F.2d 1271, 1276 (5th Cir.1975) (“It is tautologically clear that a citizen who asserts only his citizen status as a basis for standing to pursue constitutional or statutory claims has not specified any injury which sets him apart from the mass of citizens who desire that the state adhere to the legal amenities of governance.”). Moreover, the injury the plaintiffs claim is anticipatory, which, as we have said, is not sufficient for standing. See Polk County, 133 Iowa at 713-14, 110 N.W. at 1055.

The plaintiffs’ contention and argument regarding preserving the judicial process seem to imply that the issue regarding dissolution of civil unions will never be before this court because the parties will never appeal. The faulty premise in this assumption is that district court judges when confronted with this issue in the future will always dissolve the union. In those cases in which a district court judge denies such relief, the more probable scenario is that one of the litigants will appeal. Answering a similar argument, the court in Schlesinger appropriately noted:

Closely linked to the [plaintiffs’] idea that generalized citizen interest is a sufficient basis for standing was the District Court’s observation that it was not irrelevant that if respondents could not obtain judicial review of petitioners’ action, “then as a practical matter no one can.” Our system of government leaves many crucial decisions to the political processes. The assumption that if respondents have no standing to sue, no one would have standing, is not a reason •to find standing.

418 U.S. at 227, 94 S.Ct. at 2935, 41 L.Ed.2d at 722 (holding that plaintiffs lacked standing as citizens to sue because claim implicated only generalized interest of all citizens).

2. Plaintiffs’ standing in their individual capacities as married persons. Several of the plaintiffs contend that they have standing in their capacity as married persons. To support this contention, these plaintiffs argue that as individuals they have a substantial interest in the promotion of traditional marriage in this state. They point out that under Iowa law married individuals receive certain rights and privileges not granted to others. Further, they argue, by recognizing a civil union, the district court has injured them because such recognition would dilute the value of traditional marriage long recognized by this state.

We fail to see how the district court’s action in dissolving a civil union of another couple harmed in any specific way these plaintiffs’ marriages, and for this reason they have shown no legally recognized interest or personal stake in the underlying action. The district court’s action in terminating another couple’s civil union did not injure these plaintiffs in a special manner, different from the public generally. Nor was such action an injury in fact as distinguished from an abstract injury. In addition, any injury to the interest these plaintiffs claim is anticipatory and therefore not sufficient for standing.

3. Plaintiffs’ standing in their individual capacities as taxpayers. Several of the plaintiffs also contend that they have standing as taxpayers in this state. Their argument is that by granting the decree

the district court opened up the judicial system to a new class of petitioners and respondents outside those individuals provided for under state law, which will require the provision and expenditure of additional state judicial resources beyond those approved by the state legislature. Dissolution/termination of a Civil Union will likely result in additional litigation, requiring state judicial resources, concerning property distribution, child custody and support, and spousal benefits.

These allegations are akin to the complaint of the increased cost of the administration of justice generally in Polk County v. District Court. Rejecting that as a ground for standing, this court said:

Conceding, for the purposes of this case, that the plaintiffs, as taxpayers, may be affected financially because of the conditions pleaded, we are of the opinion that they cannot maintain this action on account thereof. The courts are not ordinarily the dispensers of public funds, and have no control over such funds save as an incident to the expeditious and proper conduct of the business before them, and then only by direction to the proper authorities charged with the disbursing of such funds. In the case before us, no order has been made that will either increa.se or diminish any fund to which any of the plaintiffs have already or to which they may in the future contribute, except as such fund may be affected incidentally by the future administration of the law, and it is manifest that a taxpayer may not control judicial action because such action involves indirectly and incidentally the expenditure of public funds to which he has contributed, or to which he may in the future contribute. If such a rule were to be established, every taxpayer in the State might by certiorari or other proceedings question the jurisdiction of the courts whenever judicial proceedings involved an expenditure of public funds, as such proceedings always do. It is clear that certiorari will not lie to review the action of a court when such action involves only the expense necessary to the maintenance of the courts and the due administration of the law.

Polk County, 133 Iowa at 712, 110 N.W. at 1054-55. We think this reasoning is applicable here. In this case, we have no order increasing or diminishing any fund to which these plaintiffs have contributed or will contribute in the future. Rather, what we have are allegations that more judicial resources will be needed to administer the court system. Such allegations are not sufficient to constitute standing.

4. Plaintiff Wentz’s standing in his individual capacity as a pastor. The contention here is that the plaintiff Matthew Wentz, pastor of the Church of Christ of Le Mars, has standing in his individual capacity as a pastor, who has solemnized marriages and counseled married people. This plaintiff claims that he faces possible criminal charges pursuant to Iowa Code section 595.9 (2003) if he solemnizes a marriage of a heterosexual couple when one of the parties has entered into a civil union that has not been terminated.

Iowa Code section 595.3 provides that “[p]revious to the solemnization of any marriage, a license for that purpose must be obtained from the county registrar.” Section 595.3 prohibits the county registrar from issuing a marriage license when (1) either party is under the age necessary to render the marriage valid, (2) either party is less than eighteen years of age unless the marriage is approved by the district court, (3) either party is disqualified from making any civil contract, (4) the parties are within the degrees of consanguinity or affinity in which marriages are prohibited by law, and (5) either party is a ward under a guardianship and the court has made a finding that the ward lacks the capacity to contract a valid marriage. Iowa Code section 595.9 provides that “[i]f a marriage is solemnized without procuring a license, the parties married, and all persons aiding them, are guilty of a simple misdemeanor.” Therefore, once a couple presents a marriage license to a minister, it seems clear to us that the minister may solemnize the marriage without fear of criminal sanctions provided in Iowa Code section 595.9.

Moreover, this plaintiff is under no duty to solemnize any marriage. If this plaintiff is in doubt about the validity of such a proposed marital union, he can simply refuse to solemnize the marriage.

In addition, this plaintiff has failed to show he has a legally recognized interest or personal stake in the underlying case. And he has failed to show the required injury sufficient to confer standing. As mentioned, “simply anticipating some wrong or injury” is not enough for standing. Polk County, 133 Iowa at 713-14, 110 N.W. at 1055; accord Lujan, 504 U.S. at 560, 112 S.Ct. at 2136, 119 L.Ed.2d at 364; Keely, 158 Iowa at 208, 139 N.W. at 475.

5. Plaintiff Church of Christ of Le Mars’s standing in its individual capacity as a church. The Church of Christ of Le Mars claims it has standing for several reasons. First, this plaintiff has a substantial interest in upholding and preserving traditional marriage, as defined by Iowa law, within the community that it serves. Second, many Iowa citizens look to this plaintiff for guidance as to marriage, family, and divorce. The decree in this case impacts these relationships. Last, this plaintiff has an interest in preserving the traditional marital relationships in its community. The decree, which is contrary to well-established law, public policy, and ecclesiastical principles of the plaintiffs denomination, would undermine the denomination’s teachings concerning marriage.

All of these arguments fail to demonstrate that this plaintiff has any legally recognized or personal stake in the underlying case. Moreover, this plaintiff has failed to show that it has been injured in a special manner, different from that of the public generally. These arguments also fail to show how this plaintiff has been injured in fact as distinguished from being injured in an abstract manner. Finally, any injury to the interest alleged by this plaintiff is anticipatory and therefore not sufficient for standing.

6. Plaintiffs’ standing in their individual capacities as state and federal legislators. The plaintiffs who are state legislators claim they have standing in their individual capacity as such legislators. Some of them are or have been active in the Iowa Legislature since or prior to April 1998, when Iowa Code section 595.2(1) was amended to define marriage as valid “[o]nly ... between a male and a female.” One of the plaintiffs is a congressman, who claims he has standing in his individual capacity as a congressman.

The plaintiff state legislators contend they have standing because they have an interest, as legislators, in seeing that the “law passed to preserve traditional marriage” is properly enforced. The plaintiff congressman contends he has standing because he has an interest in seeing that federal laws governing marriage are likewise enforced.

The plaintiff state legislators argue that they “have suffered a peculiar injury in that the court usurped the power ‘properly belonging’ to the legislature” by improperly taking jurisdiction of the underlying case and recognizing a civil union that is not recognized under Iowa law.

The plaintiff congressman argues he has suffered a peculiar injury by the district court’s recognition of the civil union because that action was not required under federal law and not permitted by state law.

All of these contentions and arguments have no bearing on what the district court actually did. The court dissolved a civil union; it did not dissolve a marriage. We therefore agree with the amicus that these plaintiffs have claimed an interest in Iowa and federal marriage laws that has nothing to do with the district court’s decision.

Moreover, judges determine what the existing law is in relation to some existing thing already done; whereas legislators make “ ‘a predetermination of what the law shall be for the regulation of future cases falling under its provisions.’ ” In re D.C.V., 569 N.W.2d 489, 496-97 (Iowa 1997) (citations omitted). Here the district court was doing what judges do: interpreting the law concerning a case over which it had jurisdiction. Its decision may have been correct or it may have been incorrect. We make no judgment on the merits. But we disagree with the plaintiff state legislators’ contention that the district court was usurping their power.

It would be strange indeed and contrary to our notions of separation of powers if we were to recognize that legislators have standing to intervene in lawsuits just because they disagree with a court’s interpretation of a statute. Generally, “in the absence of statutory directive, a legislator may sue only to challenge misconduct or illegality in the legislative process itself.” Nania v. Borges, 41 Conn. Supp. 90, 551 A.2d 781, 785 (1988); see also Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) (legislators who, by virtue of tie-breaking vote cast by lieutenant governor, were on losing side, were allowed to challenge legality of vote); Korioth, 523 F.2d at 1277-78 (state legislator challenging the constitutionality of a state statute establishing a regional planning scheme did not have standing, by virtue of the legislator’s capacity as legislator, to bring the action, when neither the statute itself nor its implementation impeded the legislator’s legislative power); cf. Raines v. Byrd, 521 U.S. 811, 816, 829-30, 117 S.Ct. 2312, 2316, 2322-23, 138 L.Ed.2d 849, 856, 864 (1997) (congressmen who voted against the Line Item Veto Act brought suit alleging the newly enacted Act was an unconstitutional expansion of presidential power that infringed upon the legislative branch’s power; the Court held the congressmen lacked standing because they “alleged no injury to themselves as individuals, the institutional injury they allege is wholly abstract and widely dispersed, and their attempt to litigate this dispute at this time and in this form is contrary to historical experience” (citations omitted)). If the legislature disagrees with a court’s interpretation, its prerogative is to pass legislation making it clear that the court’s interpretation of their intention was incorrect. In the past, the legislature has shown no hesitancy in doing just that.

Moreover, these plaintiffs have not shown that they have a legally recognized or personal stake in the underlying case. Nor have they shown that they have been injured in fact as distinguished from having been injured in an abstract manner. As mentioned, when the only claim is nonobservance of the law, such claim affects only the generalized interest of all citizens. Any injury resulting from such nonobservance is abstract in nature and not sufficient for standing. See Raines, 521 U.S. at 816, 829-30, 117 S.Ct. at 2316, 2322-23, 138 L.Ed.2d at 856, 864; Valley Forge, 454 U.S. at 482-83, 102 S.Ct. at 764, 70 L.Ed.2d at 716; Schlesinger, 418 U.S. at 217, 226-27, 94 S.Ct. at 2930, 2935, 41 L.Ed.2d at 716, 722.

Finally, we agree with the amicus’s observation that

[m]any people have strong opinions about marriage, as they do about divorce, child custody, zoning, and many other issues, but if everyone were allowed to petition for certiorari simply because of ideological objections or strongly held philosophical beliefs that an order should not have been entered, then there would be no limits to the petitions brought. Iowa law has never permitted such unwarranted interference in other peoples’ cases. Simply having an opinion does not suffice for standing.

Y. Disposition.

Because the plaintiffs have shown no standing to challenge the district court’s amended decree, we annul the writ. We have carefully considered all of the contentions and arguments of the parties. Those we have not addressed either lack merit or were not properly raised for our review.

WRIT ANNULLED.


source: Caselaw Access Project

author: /s/ Alan C. Page Associate Justice

license: Public Domain

text:
    Catherine A. ENGELS, Relator, v. CITY OF DELANO and LMC/Berkley Risk Admin., Respondents, and Ingenix Subrogation Services, Allina Hospitals & Clinics, Center for Diagnostic Imaging, Excel Physical Therapy, Noran Neurological Clinic, Twin Cities Spine Center, Park Nicollet Clinic, Methodist Hospital, Consulting Radiologists, LTD, Intervenors.
    No. A05-711.
    Supreme Court of Minnesota.
    June 29, 2005.
    Workers’ Compensation Court of Appeals; William R. Pederson, Judge.
    Jerry J. Lindberg, Sauk Rapids, MN, for Relator.
    Thomas M. Peterson, St. Paul, MN, for Respondents.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed March 9, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/ Alan C. Page Associate Justice


author: KAPSNER, Justice.

text:
    2005 ND 113
    In the Matter of the ESTATE OF Earl R. LITTLEJOHN, Deceased. Barbara Tanke, Lowen Littlejohn, and Russell Littlejohn, heirs of Earl R. Littlejohn, Deceased, Appellants v. Becky J. Domier, Personal Representative of the Estate of Earl R. Littlejohn, Deceased, Appellee.
    No. 20040326.
    Supreme Court of North Dakota.
    June 22, 2005.

      Lawrence D. DuBois (argued) and Neil W. Fleming (on brief), Fleming, DuBois & Fleming, PLLP, Cavalier, N.D., for appellants.
    Steven C. Ekman, Welch and Ekman, Grafton, N.D., for appellee.
   KAPSNER, Justice.

[¶ 1] Barbara Tanke, Lowen Little-john, and Russell Littlejohn (“Appellants”) appealed from orders in the supervised administration of the estate of their father, Earl Littlejohn. We conclude a power of attorney executed by Earl Little-john’s father, Raymond Littlejohn, authorized Raymond Littlejohn’s attorneys in fact to convey a life estate in his land to Earl Littlejohn, and we affirm.

I

[¶ 2] In 1988, Raymond Littlejohn executed a power of attorney that appointed his sons, Keith, Earl, and Duane Little-john, as his attorneys in fact. On July 16, 1990, and on February 4, 1991, the attorneys in fact executed deeds transferring a life estate in two separate quarters of land to Earl Littlejohn, with the remainder to Earl Littlejohn’s six children as joint tenants. Those deeds were recorded on July 30, 1990, and on February 5, 1991, respectively. Raymond Littlejohn died on February 5, 1991. The Internal Revenue Service disregarded those conveyances as gifts and included the value of the land in Raymond Littlejohn’s estate for tax purposes. In 1995, Raymond Littlejohn’s personal representative prepared deeds of distribution for all of Raymond Littlejohn’s “right, title and interest” in the two quarters of land to Earl Littlejohn as grantee, and the deeds were delivered to Earl Litt-lejohn, but were not recorded.

[¶ 3] Earl Littlejohn died on August 3, 2000. His will appointed his daughter, Becky Domier, as personal representative, and devised his property to his six children. In the subsequent supervised administration of his estate, the Appellants, three of Earl Littlejohn’s children, objected in November 2001, to the personal representative’s inventory, which did not include the two quarters of land in Earl Littlejohn’s estate. The three children claimed Earl Littlejohn owned the two quarters of land when he died and that land should be included in his estate and distributed under a residuary clause in his will.

[¶ 4] The trial court granted the personal representative’s motion for summary judgment, concluding the Appellants’ claim was barred by a ten-year statute of limitations and the transfers by Raymond Little-john’s attorneys in fact under the power of attorney were authorized. The court noted a transfer disregarded under the federal estate tax for purposes of determining the gross estate is not an invalid transfer under state law. The court concluded the two quarters of land were not part of Earl Littlejohn’s estate subject to distribution under his will. The court ultimately ordered settlement and distribution of Earl Littlejohn’s estate.

II

[¶ 5] On appeal, the dispositive issue is whether Raymond Littlejohn’s power of attorney authorized his attorneys in fact to convey his real property. The trial court decided that issue by summary judgment, which is a procedure for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Grinnell Mut. Reinsurance Co. v. Lynne, 2004 ND 166, ¶ 9, 686 N.W.2d 118. If the issues in a case are such that resolution of factual disputes will not alter the result, summary judgment is appropriate under the law. Id. We review appeals from summary judgment de novo. Id.

[¶ 6] The Appellants argue, absent specific language in the power of attorney allowing Raymond Littlejohn’s attorneys in fact to convey his real property, they lacked that power. The appellants argue the deeds executed under the power of attorney failed to transfer any of Raymond Littlejohn’s interest in the two quarters of land to Earl Littlejohn, and the deed executed by Raymond Littlejohn’s personal representative in 1995 transferred Raymond Littlejohn’s entire interest in the property to Earl Littlejohn. The appellants thus claim the two quarters of land should have been distributed under Earl Littlejohn’s will. The personal representative responds Raymond Littlejohn’s power of attorney authorized his attorneys in fact to convey his real property.

[¶ 7] A power of attorney is an instrument in writing authorizing another to act as one’s agent, and the agent holding the power of attorney is the attorney in fact. Matter of Estate of Mehus, 278 N.W.2d 625, 629 (N.D.1979). Because a power of attorney creates an agency relationship, agency principles are applicable in determining the authority and duties of the attorney in fact. Id. An agency relationship involves both a contractual and a fiduciary relationship, and the interpretation of an agent’s authority is governed by the rules for construing contracts, except to the extent the fiduciary relationship requires a different rule. Burlington N. and Sante Fe Ry. Co. v. Burlington Res. Oil and Gas Co., 1999 ND 39, ¶ 15, 590 N.W.2d 433. We construe contractual agreements to give effect to the parties’ intent, which, if possible, must be ascertained from the writing as a whole. Id. at ¶ 22. The clear and explicit language of a contract governs its interpretation and words are construed in their ordinary sense. Id. The interpretation of a written contract is a question of law. Meide v. Stenehjem ex rel. State, 2002 ND 128, ¶ 7, 649 N.W.2d 532. If the parties’ intent can be ascertained from the agreement alone, the interpretation of the contract is a question of law. Id.

[¶ 8] Raymond Littlejohn’s power of attorney designated his sons as his attorneys in fact and authorized them:

To handle all my affairs, including, but not limited to, the leasing and management of all my property, real and personal wherever located; to collect all my income; to pay all my just debts and expenses; to cash all my checks and make deposits on my behalf; and to sign and file income tax returns; and do whatever else may be necessary and proper in the management of my affairs.
That I grant and give unto my said Attorneys full authority to do and perform all and every act or thing which may be requisite or necessary to be done in the premises, as fully, to all intents and purposes as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said Attorneys shall lawfully do or cause to be done by virture [sic] of this instrument.

[¶ 9] The plain language of Raymond Littlejohn’s power of attorney is broad and provides no limitations on the authority of the attorneys in fact to handle all of his affairs. The power of attorney authorized Raymond Littlejohn’s attorneys in fact to “handle all my affairs, including, but not limited to, the leasing and management of all my property, real and personal wherever located ... [and] do whatever else may be necessary and proper in the management of my affairs.” The words “includes, but are not limited to” ordinarily includes a partial and non-exclusive list. See Hilton v. North Dakota Educ. Ass’n, 2002 ND 209, ¶ 12, 655 N.W.2d 60; Americana Healthcare v. North Dakota Dep’t of Human Servs., 510 N.W.2d 592, 594 (N.D.1994). Moreover, Raymond Littlejohn’s power of attorney granted his attorneys in fact “full authority to do and perform all and every act or thing which may be requisite or necessary to be done in the premises, as fully, to all intents and purposes as I might or could do if personally present.” Although federal law determines federal estate tax liability, state law determines the extent of a decedent’s interest in property. See Estate of Bowgren v. C.I.R., 105 F.3d 1156, 1161 (7th Cir.1997). We conclude the broad language in Raymond Litt-lejohn’s power of attorney authorized his attorneys in fact to convey his real estate.

[¶ 10] The Appellants’ reliance on language in North Dakota Title Standards (2003), Standard 2-11 that a “power of attorney must include in its grant of authority the power to sell or convey if a deed is being executed” is misplaced. The title standards are intended to guide title examiners to eliminate technical objections which do not constitute actual defects in title. See North Dakota Title Standards, Introductory Materials. The title standards do not limit a principal’s ability to create an agency. Moreover, the title standards also provide that a “general authority to convey shall grant to the attorney in fact named in the power of attorney authority to convey any interest the principal has in any property.” North Dakota Title Standards (2003), Standard 2-14. Raymond Littlejohn’s power of attorney granted his attorneys in fact broad and general authority to handle all of his affairs, which includes the power to convey his real property.

[¶ 11] The Appellant’s reliance on N.D.C.C. ch. 59-05 to prohibit Raymond Littlejohn’s attorneys in fact from conveying his real property is also misplaced. Section 59-05-03, N.D.C.C., specifically provides “[t]he provisions of this chapter shall not extend to a simple power of attorney to convey real property in the name of the owner and for the owner’s benefit.” That statute specially excludes a “power of attorney to convey real property” from the provisions of N.D.C.C. ch. 59-05.

[¶ 12] Because the attorneys in fact had transferred only a life estate in the two quarters to Earl Littlejohn, and his six children held the remainder interest, the two quarters were not part of Earl Littlejohn’s probate estate, or subject to the residuary clause in his will.

[¶ 13] Because we conclude Raymond Littlejohn’s attorneys in fact were authorized to convey his interest in the two quarters of land, we need not address the Appellants’ arguments about the statute of limitations.

Ill

[¶ 14] We affirm the orders.

[¶ 15] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ., concur.


author: WRIGHT, Judge.

text:
    THOMAS A. FOSTER & ASSOCIATES, LTD, petitioner, Respondent, v. Scott PAULSON, et al., Appellants.
    No. A04-2132.
    Court of Appeals of Minnesota.
    June 28, 2005.

      Thomas A. Foster, Thomas A. Foster & Associates, LTD, Minneapolis, MN, for respondent.
    Phillip Gainsley, Minneapolis, MN, for appellants.
    Considered and decided by WRIGHT, Presiding Judge; KALITOWSKI, Judge; and PORITSKY, Judge. .

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

   OPINION

WRIGHT, Judge.

To collect outstanding legal fees, respondent law firm moved to establish and determine the amount' of an attorney lien under Minn.Stat. § 481.13 (2004). Appellants, former clients of respondent, argued that, because respondent forfeited the attorney fees by committing legal malpractice, a. lien cannot be established. The district court declined to consider appellants’ allegations of legal malpractice and breach of fiduciary duty in a summary proceeding and determined the amount of attorney fees incurred pursuant to the retainer agreement. .Appellants now contend that the district court erred in failing to consider their claims. . Appellants also move to supplement the record with a letter from respondent’s insurance carrier and to recover attorney fees for expenses incurred in drafting the motion. We affirm and .deny the motions.

FACTS

.In February 2003, appellants Scott and Bernadette Paulson •. (the Paulsons) retained respondent Thomas A. Foster & Associates,. LTD (Foster) to represent them in a construction-arbitration action against the builder of their residence. The parties entered into a retainer agreement, whereby the Paulsons agreed to pay Foster a $10,000 non-refundable retainer fee and 25 percent of any dollar amount recovered in the litigation.

In May 2004, the Paulsons recovered $118,952 in settlement of their claims. Shortly thereafter, the Paulsons refused to pay Foster the attorney fees and costs contemplated in the retainer agreement, alleging that Foster committed legal malpractice and breached its fiduciary duty to them. On May 20, 2004, Foster served the Paulsons with notice of an attorney lien.

In June 2004, the construction company issued a check for the settlement amount payable to the Paulsons and Foster. Foster endorsed the check but requested that the Paulsons’ new counsel hold in trust the disputed attorney fees and costs.

Foster then brought a motion under Minn.Stat. § 481.13, subd. 1(c) (2004), to determine the amount of the attorney lien and enter judgment on the lien. At the hearing on the motion, the Paulsons argued that Foster forfeited its right to attorney fees and costs when, acting in bad faith, it failed to inform the Paulsons of an expert witness’s impeachable background and failed to convey settlement offers. In support of their claims, the Paulsons proffered two expert affidavits. The Paulsons requested that the district court either stay entry of judgment on the lien until the malpractice and fiduciary-duty claims were litigated or “declare that there has been a lawsuit, complete forfeiture [of] fees and [turn the money] over to Mr. and Mrs. Paulson.” Immediately following the hearing, the Paulsons served Foster with a complaint alleging malpractice, breach of fiduciary duty, breach of contract, and deceit and collusion.

The district court declined to order forfeiture of the fees or “declare that there ha[d] been a lawsuit” without a decision on the merits of the legal-malpractice claims. Instead, based on the terms of the retainer agreement, the district court entered judgment in favor of Foster for $30,204.56.

ISSUES

I. Did the district court err in establishing and determining the amount of an attorney lien without considering appellants’ professional-malpractice claims?

II. May appellants supplement the record with a letter from respondent’s insurer regarding coverage for appellants’ professional-malpractice claims?

III. May appellants recover attorney fees incurred in bringing the motion to supplement the record?

ANALYSIS

I.

Application of the attorney-lien statute is a question of law, which we review de novo. Boline v. Doty, 345 N.W.2d 285, 288-90 (Minn.App.1984). Although the reasonable value of attorney fees is a question of fact, Ashford v. Interstate Trucking Corp., 524 N.W.2d 500, 502 (Minn.App.1994), when considering whether the district court employed the proper method to calculate the amount of an attorney lien, we undertake a de novo review, In re L-tryptophan Cases, 518 N.W.2d 616, 619 (Minn.App.1994).

The Paulsons challenge the district court’s calculation of the amount of the attorney lien, arguing that Foster is not entitled to any attorney fees because it committed professional misconduct. Foster maintains that the district court properly awarded attorney fees based on the terms of the retainer agreement. The arguments here present a novel question, namely whether the district court is required to entertain a legal-malpractice defense in a summary proceeding to establish and determine the amount of an attorney lien.

A.

We first examine the nature of the attorney-lien proceeding under Minn. Stat. § 481.13 (2004). Derived from common law and later codified in statute, an attorney lien attaches to any recovery by the attorney in the course of representation. Minn.Stat. § 481.13, subd. 1(a), (b); Boline, 345 N.W.2d at 289. Thus, if a client recovers money as a result of an attorney’s services, the attorney has a lien on the recovery as security for fees owed by the client. St. Cloud Nat’l Bank & Trust Co. v. Brutger, 488 N.W.2d 852, 855 (Minn.App.1992), review denied (Minn. Nov. 17, 1992).

As an equitable lien, the attorney lien protects against a successful party receiving a judgment secured by an attorney’s services without paying for those services. Johnson v. Blue Cross & Blue Shield of Minn., 329 N.W.2d 49, 53 (Minn.1983); Schroeder, Siegfried, Ryan & Vidas v. Modern Elec. Prods., Inc., 295 N.W.2d 514, 516 (Minn.1980). Because this form of lien is based on principles of equity, the nature of the attorney lien and the procedure for enforcing it differ from most other liens. Blazek v. N. Am. Life & Cas. Co., 265 Minn. 236, 240, 121 N.W.2d 339, 342 (1963).

Minn.Stat; § 481.13 governs attorney liens and provides in relevant part:

(a) An attorney has a lien for compensation ... (1) upon the cause of action ... and (2) upon the interest of the attorney’s client in any money or property involved in or affected by any action or proceeding in which the attorney may have been employed....
(b) An attorney has a lien for compensation upon a judgment, whether there is a special express or implied agreement as to compensation, or whether a lien is claimed for the reasonable value of the services....
(c) A lien provided by paragraphs (a) and (b) may be established, and the amount of the lien may be determined, summarily by the court under this paragraph on the application of the lien claimant or of any person or party interested in the property subject to the lien.
Judgment shall be entered under the direction of the court, adjudging the amount due.

Minn.Stat. § 481.13, subd. 1. Subdivision 1 grants an attorney an inchoate lien on a recovery obtained through his or her efforts on behalf of a client. 7A C.J.S. Attorney & Client § 450 (2004). The attorney may petition a district court to establish the lien, determine the proper amount of the lien, and enter judgment accordingly. N. States Power Co. v. Gas Servs. Inc., 690 N.W.2d 362, 365-66 (Minn.App.2004); Empro Corp. v. Scotland Hotels, Inc., 449 N.W.2d 734, 737 (Minn.App.1990). The value of the lien ordinarily is determined based on the terms of the fee provisions of a retainer agreement. Blazek, 265 Minn. at 240, 121 N.W.2d at 342-43. When such an agreement does not exist, the amount of the lien is determined by the reasonable value of the services rendered. Roehrdanz v. Schlink, 368 N.W.2d 409, 412 (Minn.App.1985).

Minnesota caselaw has long characterized attorney-lien actions as summary proceedings. See, e.g., Vill. of New Brighton v. Jamison, 278 N.W.2d 321, 323-24 (1979); Akers v. Akers, 233 Minn. 133, 138, 46 N.W.2d 87, 91 (1951); Westerlund v. Peterson, 157 Minn. 379, 381-82, 197 N.W. 110, 111 (1923). Section 481.13 specifies that the proceeding to establish and determine the amount of the lien will be conducted “summarily” upon application of the lien claimant. Minn.Stat. § 481.13, subd. 1(c); In re L-tryptophan Cases, 518 N.W.2d at 622 (holding that district court may establish and enforce lien in one summary action); Gaughan v. Gaughan, 450 N.W.2d 338, 343 (Minn.App.1990) (noting that “proceedings under Minn.Stat. § 481.13 retain their summary nature”), review denied (Minn. Mar. 16,1990).

The 2002 amendment to section 481.13 further clarified that an attorney-lien action will be conducted summarily regardless of the location and timing of the proceeding. 2002 Minn. Laws ch. 403, § 2; N. States Power Co., 690 N.W.2d at 365-66. Prior to this amendment, section 481.13 distinguished between a hearing in the original action to establish and determine the amount of an attorney lien and a separate action to enforce an attorney lien. Minn.Stat. § 481.13, subd. 1 (2000). Interpreting the predecessor statute, we concluded that a proceeding to establish the attorney lien was summary, but the separate proceeding to enforce the lien was not. Boline, 345 N.W.2d at 289. The amended version of section 481.13 eradicated the distinction between establishment and enforcement, stating only that a lien may be established and its amount determined summarily “by the court.” MinmStat. § 481.13, subd. 1(c) (2004). From the plain language of the statute, considered in light of its amendment by the legislature, we conclude that the legislature intended the proceeding to establish and enforce an attorney lien to be summary. After the value of the lien has been determined, the district court enters judgment for the amount due. Id.; see Fischer-Hansen v. Brooklyn Heights R.R. Co., 173 N.Y. 492, 66 N.E. 395, 398 (1903) (stating that money judgment follows “enforcement” of attorney lien because foreclosure is unnecessary when subject of lien has been converted into money).

B.

Having concluded that the establishment and enforcement of an attorney lien under Minn.Stat. § 481.13 are to be conducted summarily, we next consider whether a district court must entertain a legal-malpractice defense when calculating the amount of the lien. The term “summarily” means in a “summary proceeding.” Vill. of New Brighton, 278 N.W.2d at 325; Boline, 345 N.W.2d at 289. A summary proceeding is “any proceeding by which a controversy is settled ... in a prompt ... manner, without the aid of a jury.” Boline, 345 N.W.2d at 289 (quoting Black’s Law Dictionary 1084 (rev. 5th ed. 1979)); see also Roehrdanz, 368 N.W.2d at 412 (holding that there is no right to jury trial in summary proceeding to establish or enforce attorney lien). Summary proceedings characteristically are immediate and tend to abridge formal procedures. Bo-line, 345 N.W.2d at 289.

We have considered the appropriate balance between fairness and the summary nature of an attorney-lien proceeding. Although section 481.18 is silent as to permissible defenses in an action to establish and determine the amount of an attorney lien, we have held that due process requires that the procedure employed afford the parties a meaningful opportunity to be heard. Id.; Gaughan, 450 N.W.2d at 343.

Here, the district court declined to consider evidence that Foster breached its fiduciary duty and committed legal malpractice, reserving these issues for the pending malpractice suit. We agree with the Paulsons’ contention that Foster’s alleged misconduct may be relevant to calculating attorney fees. Rice v. Perl, 320 N.W.2d 407, 411 (Minn.1982) (“[A]n attorney at law who is unfaithful in the performance of his duties forfeits his right to compensation.”). Nevertheless, the practicalities of a summary proceeding do not support the notion that a district court must transform an attorney-lien proceeding into a legal-malpractice trial.

To state a prima facie case for legal malpractice, a client must demonstrate (1) the existence of an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts were the proximate cause of the plaintiffs damages; and (4) that but for the malpractice defendant’s conduct, the malpractice plaintiff would have been successful in the prosecution or defense of the action. Noske v. Friedberg, 670 N.W.2d 740, 742-43 (Minn.2003). Establishing causation is particularly onerous here because the Paulsons must demonstrate that they would have received a much larger award or settlement in the construction-arbitration action but for Foster’s negligence. Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 409 (Minn.1994). To-do so, the parties must try a case (the construction lawsuit) within a case (the malpractice lawsuit). Id. Reconstructing and assessing the merits of one lawsuit within an action to establish and determine the amount of an attorney lien is patently inconsistent with the statutory language prescribing that an attorney-lien action be conducted “summarily by the court.” Minn.Stat. § 481.13, subd. 1(c). We note that in those jurisdictions that permit legal malpractice to be raised as a defense to establishment of an attorney lien, the governing statutes do not expressly provide for a summary proceeding. See, e.g., Idaho Code § 3-205 (Michie 2004); Iowa Code §§ 602.10116 — .10118 (2001); N.J. Stat. Ann. § 2A:13~5 (West 2000); N.Y. Jud. Law § 475 (McKinney 2005); Tenn. Code Ann. § 23-2-102, -103 (1994).

The Paulsons rely on Boline and Gaughan to support their claim that the district court was required to consider the legal-malpractice defense. But this case differs significantly from the facts in Bo-line and Gaughan. In neither Boline nor Gaughan did the client raise a defense or counterclaim of professional misconduct, breach of fiduciary duty, or legal malpractice. Rather, the client contested the factual basis for calculating the amount of the fees. The Boline court reversed the amount of the attorney lien and remanded to permit the clients to litigate “their good-faith claim that the attorney’s fees were excessive.” 345 N.W.2d at 290. In Gau-ghan, we remanded to permit cross-examination on the amount of time devoted to the case and the value of the services rendered. 450 N.W.2d at 343. Litigating the number of hours worked, the reasonableness of an hourly fee, or the existence of a contract in the first instance is not unduly burdensome in a summary proceeding before a district court.- Here, the Paulsons do not contest the services rendered or the amount of time Foster worked on their case. Rather, the Paul-sons, who are dissatisfied with the quality of the services that Foster provided, sought to litigate complex questions, of professional misconduct and legal malpractice.

To litigate the Paulsons’ claims fully, the parties would need to offer expert witness testimony on complicated issues of causation and damage. Entertaining such claims in a proceeding under Minn.Stat. § 481.13 would impermissibly transform a summary-lien proceeding into a lengthy malpractice trial. Indeed, some questions fall beyond the scope of a summary proceeding. See Fidelity & Deposit Co. v. Riopelle, 298 Minn. 417, 421, 216 N.W.2d 674, 677 (1974) (concluding that not all controversies arising out of claims of different parties to registered land are to be settled in summary proceeding); McCabe Bros. Co. v. Farmers’ Grain & Supply Co., 172 Minn. 33, 34-35, 214 N.W. 764, 764 (1927) (holding that, in action to assess amount of corporate stock, it was beyond scope of summary proceeding to consider evidence regarding identity of stockholders). Further, when another process to litigate defenses or counterclaims is available, it is preferable to litigate those matters outside a summary proceeding. See Fraser v. Fraser, 642 N.W.2d 34, 40-41 (Minn.App.2002) (holding that, if possible, equitable claims and defenses should be litigated in alternate civil action, rather than in summary eviction action); Amresco Residential Mortgage Corp. v. Stange, 631 N.W.2d 444, 445-46 (Minn.App.2001) (same). Here, when - the attorney-lien hearing commenced, the- Paulsons had already prepared a complaint sounding in malpractice, which was served immediately thereafter. The proceeding available in the civil malpractice action is preferable to that of a summary lien proceeding. Moreover, Foster’s exercise of its attorney-lien rights will not preclude the Paulsons from prevailing on a malpractice claim, should the facts support the claim. James T. Flaherty, Attorney Liens and the Code of Professional Responsibility, 14 J. Legal Prof. 137, 148 (1989).

The plain language of the Minnesota attorney-lien statute, MinmStat. § 481.13, provides for a summary proceeding to establish and enforce a lien. Consideration of complex questions of professional negligence in the lien action is contrary to the legislative intent expressed in the language of the statute. Because neither section 481.13 nor Minnesota caselaw compels the district court to consider a breach-of-fiduciary-duty or legal-malpractice defense in an attorney-lien action, the district court did not err when it declined to entertain the legal-malpractice and breach-of-fiduciary-duty claims and instead determined the amount of the attorney lien based on the uncontested retainer agreement. See Akers, 233 Minn, at 136, 46 N.W.2d at 89 (stating that district court has discretion to determine attorney lien summarily or to require client to pursue legal remedy). Since the district court" did not address the Paulsons’ legal-malpractice and breach-of-fiduciary-duty "claims in the attorney-lien action, the Paulsons are not barred from litigating these claims in the separate civil suit they have commenced.

II.

The Paulsons move to supplement the record with a letter from Foster’s malpractice insurer addressing the extent of Foster’s insurance coverage. The papers filed in the district court, the exhibits received in evidence, and the transcript of the proceedings, if any, shall constitute the record on appeal. Minn. R. Civ.App. P. 110.01. An appellate court ordinarily may not consider matters outside the record. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn.1988). Although we may consider extra-record documentary evidence that has conclusive value and that supports the result obtained at the district court, In re Livingood, 594 N.W.2d 889, 895-96 (Minn.1999), such evidence may not serve as the basis for reversing the district court’s decision, Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 584 (Minn.1977). The letter is not pertinent to the issue presented on appeal, namely whether Minn.Stat. § 481.13 compels a district court to consider legal-malpractice and breach-of-fiduciary-duty claims in a summary proceeding to establish and determine the amount of an attorney lien. We, therefore, deny the motion.

III.

The Paulsons also move pursuant to Minn. R. Civ.App. P. 139.06 for attorney fees incurred in filing their motion to supplement the record on the basis that Foster intentionally concealed the letter regarding insurance coverage. An appellate court may award attorney fees when the appeal is frivolous or in bad faith. Brett v. Watts, 601 N.W.2d 199, 202 (Minn.App.1999), review denied (Minn. Nov. 17, 1999). But when there is no evidence of a party’s intent to delay proceedings or increase costs, an award of attorney fees is not appropriate. Glass Serv. Co. v. Progressive Specialty Ins. Co., 603 N.W.2d 849, 853 (Minn.App.2000).

The record does not. demonstrate bad faith or intent to delay the proceedings. Moreover, the Paulsons are not entitled to attorney fees for preparing a motion to supplement the record with a document that is not pertinent to the issue on appeal.

DECISION

In a summary proceeding to establish and determine the amount of an attorney lien under Minn.Stat. § 481.13 (2004), the district court was not required to entertain defenses of legal malpractice and breach of fiduciary duty. The district court did not err in declining to entertain these claims in a summary attorney-lien proceeding.

Affirmed; motions denied.

      . An. attorney lien may be classified in one of two categories: the retaining lien and the charging lien. Barbara C.S. Shea, Attorney Liens: A Practical Overview, 6 U. Bridgeport L. Rev. 77, 80 (1985). Although Minnesota recognized both types of attorney liens at common law, Akers v. Akers, 233 Minn. 133, 138, 46 N.W.2d 87, 91 (1951), the legislature abolished the retaining lien in 1976, 1976 Minn. Laws ch. 304, § 2. But the charging lien remains. Minn.Stat. § 481.13; St. Cloud Nat’l Bank & Trust Co. v. Brutger, 488 N.W.2d 852, 855 (Minn.App.1992), review denied (Minn. Nov. 17, 1992).


author: ROBERT H. SCHUMACHER, Judge.

text:
    Gail LEWIS-MILLER, petitioner, Appellant, v. Christopher ROSS, Respondent.
    No. A04-2224.
    Court of Appeals of Minnesota.
    July 12, 2005.

      Christine M. Middleton, Meghan M. Elliott, Paul A. Banker, Lindquist Venum P.L.L.P., Minneapolis, MN, for appellant.
    Melissa D. Froehle, Minneapolis, MN, for respondent.
    Considered and decided by SCHUMACHER^ Presiding Judge; PETERSON, Judge; and WRIGHT, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Gail Lewis-Miller argues the district court misinterpreted Minn.Stat. § 257C.03 (2004) in dismissing her petition for custody of her nephews without an evidentiary hearing. We reverse and remand.

FACTS

Respondent Christopher Ross and his domestic partner Debra Lewis had a son, C.R., in 1994, and another son, M.R., in January 2003. Ross and Lewis were never married. In October 2003, Lewis died four days after being diagnosed with breast cancer. From her deathbed, she dictated and signed a note stating, “I want my sister Gayle Lewis-Miller and Christopher Ross to have joint physical and legal custody of my children [C.R.] and [M.R.].”

In December 2003, Lewis-Miller filed a petition for sole legal and physical custody of the boys, arguing, “Despite the children’s mother’s wishes, [Ross] should not be granted custody of the children, as the children are in physical and emotional danger in his care.” Lewis-Miller alleged that Ross was using drugs in the children’s presence, he and the children had recently been evicted from their apartment due to Ross’s drug use and were living at a homeless shelter, and Ross intended to relocate with the children out of state. Ross filed an answer and counter-petition requesting that he be granted sole legal and physical custody of the boys. -

In February 2004, the district court ordered Hennepin County Family Court Services to perform an Early Neutral Evaluation, an evaluative process intended to resolve parenting-time disputes. The court granted father temporary sole legal custody of the children subject to visitation by Lewis-Miller. The court also appointed a guardian ad litem. At some point in February or March, Hennepin County Child Protection Services opened a file on Ross based upon a referral from a social worker, who reported that Ross was not meeting the children’s basic needs and was using drugs. In March, after the parties were unable to resolve their differences through the Early Neutral Evaluation process, the district court ordered the Department of Court Services to perform a formal custody evaluation.

In July, the custody evaluator learned that Ross’s child protection worker had closed Ross’s case file after Ross refused to complete urinalysis testing and twice failed to appear for child-protection court hearings. Because the custody evaluator determined a parenting-fitness evaluation would be necessary to complete the custody evaluation and because only Child Protection Services is authorized to perform a fitness evaluation, the custody evaluator closed Ross’s file and asked the court to order a fitness evaluation.

In August, Lewis-Miller filed a motion for immediate temporary sole legal and physical custody of the children pursuant to MinmStat. § 257C.03 (2004), which authorizes interested (non-parent) third parties to petition for custody. In the accompanying affidavit, Lewis-Miller alleged that the children were endangered in father’s care for the same reasons she alleged in the December 2003 custody petition. Father filed a motion to dismiss Lewis-Miller’s motion and repeated his request for sole permanent legal custody of the boys.

Also in August, the guardian ad litem submitted her report, in which she found that the children have emotional bonds with both parties. The guardian ad litem also found that father admitted he had not complied with any of the several urinalyses ordered by child protection or court services. The guardian ad litem stated she had “grave concerns about the welfare of the children in [father’s] care” and reported that she “cannot support [father] as the sole physical and legal custodian of the children at this time.” The guardian ad litem recommended that father’s motion for permanent sole custody be denied, that he be required to submit to regular drug testing, and that he be required to ensure that the older child attend school regularly-

At a preliminary hearing on Lewis-Miller’s motion in early August, father admitted to the court under oath that he was at that time using marijuana and crack cocaine. In September, court services submitted a chemical-dependency evaluation diagnosing father as chemically dependent and recommending that he abstain from illicit drug use and complete outpatient drug treatment. The evaluation also stated that father had refused to submit to urinalysis testing on each of the four occasions the evaluator asked him to do so. The custody evaluation was not completed by the time of the September hearing at which counsel for both parties argued the pending motions.

Following the hearing, the district court dismissed Lewis-Miller’s motion, reasoning that Lewis-Miller lacked standing because she failed to meet the definition of an “interested third party” set forth in MinmStat. § 257C.01 and had failed to meet her burden to prove the allegations of endangerment by clear and convincing evidence, as required by Minn.Stat. § 257C.03, subd. 7. The court vacated the previous award of temporary visitation rights to Lewis-Miller and ordered that the children remain in father’s sole and permanent care and custody.

ISSUE

Did the district court err in interpreting Chapter 257C as requiring Lewis-Miller to prove her interested-third-party status by clear ánd convincing evidence at the petition stage of the proceedings?

ANALYSIS

The district court’s dismissal of Lewis-Miller’s custody petition was based upon its interpretation of Minn.Stat. ch. 257C (2004), which sets forth the procedure and evidentiary burdens for third-party non-parent child custody . proceedings. Issues of statutory interpretation are reviewed de novo. Hince v. O’Keefe, 632 N.W.2d 577, 582 (Minn.2001).

Minn.Stat. § 257C.03, subd. 1(a) (2004), provides that a “third-party child custody proceeding may be brought by an individual other than a parent by filing a petition seeking custody-.” The statute establishes the procedure and evidentiary burdens for such a proceeding. First, a “petition for custody filed under this section must state and allege” a “basis for jurisdiction” by asserting that the petitioner is an “interested third party” or other person entitled to seek custody under the statute. Id., subd. 2(a)(5) (2004); see Minn.Stat. § 257C.01, subd. 3(a) (defining “interested third party”).- The petition must also “state and allege’’ other information, including the “relationship of the petitioner to each child for whom custody is sought” and “the length of time each child has resided with the petitioner.” Id., subd. 2(a)(4), (8). “The-... allegations [must be] established by competent evidence.” Id., subd. 2(b) (2004).

The petitioner must then establish that he or she is an “interested third party.” Minn.Stat. § 257C.03, subd. 7 (2004), entitled “Interested third party; burden of proof; factors,” provides:

(a) To' establish that an individual is an interested third party, the individual must:
(1) show by clear and convincing evidence that one of the following factors exists:
(1) the parent has abandoned, neglected, or otherwise exhibited disregard for the child’s well-being to the extent that the child will be harmed by living with the parent;
(ii) placement of the child with the individual takes priority over preserving the day-to-day parent-child relationship because of the presence of physical or emotional danger to the child, or both; or
(iii) other extraordinary circumstances; and
(2) prove by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the interested third party.

In determining whether Lewis-Miller has met her burden to show she is an interested third party and granting her custody would be in the child’s best interests, the district court must consider eight separate statutory factors, including the amount of involvement the interested third party and the parent had with the child during the parent’s absence or during the child’s lifetime and the facts and circumstances of the parent’s absence. Id. subd. 7(b). ' “The court must dismiss a petition for custody if the court finds that ... the petitioner does not establish at least one of the [three interested third-party] factors in subdivision 7 [or that] placement of the child with the petitioner is not in the best interests of the child.” Id., subd. 8(a) (2004).

By its terms, the statute establishes the following procedure. First, an individual seeking custody must file a petition stating or alleging a jurisdictional basis — in this case, as an interested third party — and supporting that allegation with “competent evidence.” Next, the petitioner must show by clear and convincing evidence that he or she is an interested third party and prove by a preponderance of the evidence that granting him or her custody would be in the child’s best interests. Finally, the district court must consider eight enumerated factors to determine whether the petitioner has met the burden and dismiss the petition if he or she has not.

Here, the district court dismissed Lewis-Miller’s petition after concluding that she had failed to show by clear and convincing evidence that she is an interested third party. The court did not reach the issue of whether Lewis-Miller had proved that it would be in the children’s best interests to grant her custody. Lewis-Miller argues the court fundamentally misconstrued the statute by disregarding the distinction between a petitioner’s eviden-tiary burden at the petition stage — to allege various facts supported by competent evidence — and her ultimate burden to show third-party status by clear and convincing evidence and prove by a preponderance of the evidence that granting her custody would be in the child’s best interests. She contends that the statute contemplates two separate stages, each with a different evidentiary standard: a preliminary prima facie showing, which, if sufficient, is followed by an evidentiary hearing to determine the ultimate merit of the allegations in the petition. The district court, she concludes, erred by holding her petition to the heightened standard of her ultimate burden, thereby circumventing the statutory procedure and denying her the right to a full evidentiary hearing.

The statute contains separate subdivisions addressing first the “[rjequisites of petition and motion” and its burden in subdivision 2, then the burden of proof to prove interested-third-party status, in subdivision 7. Subdivision 7 also enumerates the factors the district court must weigh in considering the petition’s merits. Lewis-Miller correctly contends that the statute implicitly contemplates an evidentiary hearing upon a prima facie showing at the petition stage.

In re Kayachith, 683 N.W.2d 325 (Minn. App.2004), review denied (Minn. Sept. 29, 2004), the only Minnesota case interpreting Chapter 257C, supports the proposition that the statute establishes one standard for the allegations in the petition and another heightened standard for the ultimate burden. Kayachith involved a custody dispute between the paternal grandparents and maternal cousins of a child whose parents had died in a car accident. Id. at 825-36. This court held the cousins lacked standing to petition for custody because they did “not allege[] that they had a substantial relationship with the child when they petitioned for custody, and because they actually lack such a relationship with the child.” Id. at 327. The court stated that the “portions of Chapter 257C applicable to cases involving 'interested third parties’ require a petition for custody to detail the existing relationship between the petitioner and the child, and contemplate ... that the petitioner-child relationship may have existed for the entirety of the child’s life.” Id. The court ordered the petition dismissed for the petitioners’ failure to meet the burden established in subdivision 2 of the statute: to allege in detail their existing relationship with the child.

Here, Lewis-Miller’s petition for custody was accompanied by an affidavit including five paragraphs detailing her allegations concerning her relationship with the children. These allegations, as verified by her and supported by competent evidence, are sufficient as a matter of law to meet the evidentiary standard applicable to petitions.

Ross argues the district court properly dismissed the petition because Lewis-Miller failed to prove, as required by Minn. Stat. § 257C.03, subd. 7(b)(1), that she was an “interested third party” who had been sufficiently involved with the children during their mother’s lifetime. Ross imprecisely confuses the burden of proof applicable to a viable petition with the burden a petitioner must ultimately meet to prevail on the merits. To be viable under the statute, it is sufficient that a petition alleging a person to be an “interested third party” assert certain facts which, if true, would show that the petitioner meets the definition of such a party as set forth in MinmStat. § 257C.03, subd. 7(a)(1). Whether those assertions are actually true is to be resolved at the subsequent hearing, where the district court must consider the factors set forth in Minn.Stat. § 257C.03, subd. 7(b). Thus, although the factors are germane to the content of the petition, the “clear and convincing evidence” burden of proof, by which the assertions must be proved, is not. Ross is therefore incorrect to argue that Lewis-Miller was required to prove the actual truth of the petition’s assertions in the petition itself, rather than at a subsequent evidentiary hearing.

Ross also argues the petition was properly dismissed because Lewis-Miller failed to provide clear and convincing evidence that the children were in harm or endangered in Ross’s care. Again, the statute does not require a petitioner to meet this standard at this stage of the proceeding. And as Lewis-Miller observes, the statute does not require that she make even a prima facie showing of endangerment at the time she submits her petition.

We further observe that typically custody-modification proceedings initiated by a parent follow the procedure that Lewis-Miller argues is required by Chapter 257C. Upon a petitioner’s prima facie showing that the statutory standard for modification could be satisfied, the district court has the discretion to order an evi-dentiary hearing. Geibe v. Geibe, 571 N.W.2d 774, 777-78 (Minn.App.1997). This showing is made when the accompanying affidavits set forth sufficient facts which, if true, justify modification. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981). The procedure advocated by Ross would appear to disregard that procedural model by requiring a petitioner to present ultimate proof when first presenting the petition.

DECISION

Lewis-Miller filed a viable petition to commence third-party custody proceedings under Chapter 257C. She is therefore entitled to an evidentiary hearing to prove her interested-third-party status by the statutory burden.

Reversed and remanded.