author: GORDON W. SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Douglas A. DETTMAN, Appellant.
    No. A04-975.
    Court of Appeals of Minnesota.
    May 24, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Raymond F. Schmitz, Olmsted County Attorney, Daniel P.H. Reiff, Assistant County Attorney, Rochester, MN, for respondent.
    John M. Stuart, State Public Defender, Richard Schmitz, Assistant State Public Defender, Minneapolis, MN,- for appellant.
    Considered and decided by SHUMAKER, Presiding Judge; TOUSSAINT, Chief Judge; and CRIPPEN, Judge.

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

   OPINION

GORDON W. SHUMAKER, Judge.

On posteonvietion appeal, appellant contends that the district courts imposition of an upward durational departure from the presumptive sentence for first-degree criminal sexual conduct violated his Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Because the sentence was based on judicial findings of fact that appellant did not knowingly and voluntarily admit, we reverse and remand for resentencing.

FACTS

At approximately midnight on May 13, 2003, appellant Douglas A. Dettman called his friend’s girlfriend and told her that her boyfriend was in trouble and that she should come to ' Dettman’s apartment. This was a ruse to lure her. to Dettman’s apartment so that he could have sexual relations with her. While he waited for her to arrive, Dettman “set things up” for her arrival, arranging pillows on his bed and cutting a piece of duct tape to fit around her mouth in case she were to scream. When the girlfriend arrived, Dettman told her that her boyfriend had run out to buy some cigarettes and that she should wait in Dettman’s apartment for him to return.

Once she entered Dettman’s apartment, he tried to tape her mouth to prevent her from screaming. When she resisted, Dett-man “put the fear of God in her,” threatening to cut her throat if she did not cooperate and demanding that she undress and lie down on his bed. Dettman made a throat-cutting gesture with his hand, but the victim never saw a knife.

Dettman then penetrated the victim’s vagina with his fingers and his mouth. He also ordered her to sit on his face and urinate in his mouth, but was interrupted by Rochester police, who arrived at Dett-man’s apartment because of a report they had received of a woman screaming. Dett-man let the officers in, and they noticed that the victim was nude on his bed and had blood around her mouth. The officers later recovered a knife from Dettman’s clothing.

The following day, Dettman was charged with three counts of first-degree criminal sexual conduct and one count of kidnapping. In January 2004, he pleaded guilty to one count of first-degree criminal sexual conduct, and the state dismissed the other charges. In March 2004, the district court sentenced Dettman to 216 months in prison, which was an upward durational departure of 72 months from the presumptive sentence of 144 months. Minn.Stat. § 609.342, subd. 2(b) (2002); Minn. Sent. Guidelines II.D.2.b.

ISSUE

Under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), a defendant has a Sixth Amendment right to a jury determination of any fact not admitted by the defendant, except the fact of a prior conviction, that increases the prescribed statutory maximum sentence for which the defendant was convicted. Did the district court violate appellant’s Sixth Amendment right to a jury trial when it imposed an upward durational departure from the presumptive sentence for first-degree criminal sexual conduct?

ANALYSIS

We review a constitutional challenge de novo. State v. Wright, 588 N.W.2d 166, 168 (Minn.App.1998), review denied (Minn. Feb. 24, 1999).

Dettman argues under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), that the district court violated his Sixth Amendment right to a jury trial when it imposed an upward dura-tional departure based solely on its own findings of fact.

The district court sentenced Dettman to an upward durational departure of 216 months in prison based on aggravated factors relating to the psychological impact on the victim and the particular cruelty with which he treated her. As to the ground of particular cruelty, the court found that Dettman exploited his knowledge of the victim’s relationship with her boyfriend to lure her to his apartment; that he engaged in multiple forms of penetration; that he planned and prepared for the assault; and that he ordered the victim to engage in especially repulsive acts.

Generally, if the United States Supreme Court announces a new rule of federal constitutional procedure while a defendant’s case is pending, the defendant is entitled to benefit from that rule. O’Meara v. State, 679 N.W.2d 334, 339 (Minn.2004). A defendant’s case is pending if all rights to appeal and certiorari have not yet been exhausted. Id.

The Court’s holding in Blakely is a new procedural rule. State v. Petschl, 692 N.W.2d 463, 471 (Minn.App.2004), review denied (Minn. Jan. 20, 2005). Dettman filed a notice of appeal on May 27, 2004, approximately one month before Blakely was decided on June 24, 2004.

Because Dettman’s appeal was pending on direct review when Blakely was decided, and because Blakely creates a new procedural rule, Dettman is entitled to consideration of his sentence under that new rule.

In Blakely, the Court expounded upon its holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” 124 S Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63). After Blakely, the maximum sentence that a district court can impose must be based solely on “the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 124 S.Ct. at 2537. According to Blakely, a defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above this maximum. Id. at 2543. This court has applied Blakely to Minnesota’s sentencing guidelines scheme, holding that “when a [district court] imposes an upward durational departure from the presumptive, fixed sentence established by the Sentencing Guidelines Commission, the [district court’s] reasons for departing must be supported by facts that were found by a jury or admitted by the defendant.” State v. Conger, 687 N.W.2d 639, 644 (Minn.App.2004), review granted (Minn. Dec. 22, 2004) (appeal stayed pending decision in State v. Shattuck, C6-03-362).

Because Dettman pleaded guilty to first-degree criminal sexual conduct and waived his right to a jury trial on the charge, the findings supporting the upward durational departure were made solely by the district court. But we conclude under Blakely that Dettman is entitled to a jury determination of any fact that increases the presumptive sentence.

We now turn to the question of whether Dettman admitted the facts supporting the district court’s sentence. Recently, in State v. Hagen, 690 N.W.2d 155, 158-60 (Minn.App.2004), we addressed the “admission exception” to the general rule in Blakely. In that case, we stated that, in the context of waiving the constitutional right to a jury trial, there is “no basis to distinguish a stipulation to an aggravating sentencing factor from a stipulation to an element of the offense.” Id. at 159. In other words, before it may be said that a defendant has made admissions for purposes of the exception to the rule in Blakely, the defendant must be “informed that he had a right to a jury determination on any fact used to support an upward sentencing departure” and his corresponding waiver regarding that right must be “full-scale, on-the-record oral or written.” Id. We also noted that such admissions should be made at the plea hearing rather than the sentencing hearing. Id. at 160.

At his plea hearing, Dettman admitted to luring the victim to his apartment by deceit; to penetrating her vagina in multiple forms; and to causing her fear of great bodily harm by telling her and gesturing that he would cut her throat if she did not cooperate. But while the district court informed Dettman of his general right to a jury trial on the elements of his crime, it did not inform him of right to a jury determination on any fact used to support an upward durational departure.

Because Dettman did not expressly waive his right to a jury determination of any fact supporting an upward durational departure, his “admissions” at the plea hearing should not be considered as such for purposes of the exception to the rule in Blakely.

Dettman also argues that the district court’s findings do not justify the upward durational departure, but because we are remanding for further proceedings, we do not address the sufficiency of the facts found by the district court to support a departure.

DECISION

Because the district court imposed an upward durational departure based on facts not found by a jury or knowingly admitted by appellant, we reverse and remand for resentencing consistent with the mandates of Blakely.

Reversed and remanded.

      . The supreme court granted review in Conger, but stayed further processing of that matter pending a final decision in State v. Shat-tuck, 689 N.W.2d 785 (Minn.2004). By order filed earlier, on December 16, the supreme court held that the imposition of an upward durational departure based on aggravating factors not considered by the jury violated the defendant's right to a jury trial under Blakely. State v. Shattuck, 689 N.W.2d 785 (Minn. 2004) (per curiam). The court indicated that a full opinion would follow and directed supplemental briefing addressing the appropriate remedy. Id.


source: Caselaw Access Project

author: WILLIS, Judge. CRIPPEN, Judge

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Edward Richard KRASKY, Respondent.
    No. A04-2011.
    Court of Appeals of Minnesota.
    May 24, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Boyd Beccue, Kandiyohi County Attorney, C.J. Crowell, Assistant County Attorney, Willmar, MN, for appellant.
    Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Roseville, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge; STONEBURNER, Judge; and CRIPPEN, Judge.

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

   OPINION

WILLIS, Judge.

In this pretrial appeal from an order suppressing evidence, the state argues that a victim’s statements to a nurse practitioner concerning alleged sexual abuse are admissible over appellant’s Crawford objection because the statements were not testimonial. The state also argues that the district court erred by suppressing its Spreigl evidence. We affirm in part, reverse in part, and remand.

FACTS

Seven-year-old T.L.K. and her five-year-old sister, M.R.K., live with their foster parents, Tom and Sandy Houston. In April 2004, Sandy Houston suspected T.L.K. of inappropriately touching M.R.K. and asked T.L.K. if anyone had ever touched her that way. T.L.K. responded by describing acts suggesting that her father, respondent Edward Krasky, had inappropriately touched both her and M.R.K. A few days later, Houston walked in on T.L.K. intimately kissing M.R.K., apparently against M.R.K.’s will. These incidents, as well as a previous comment by T.L.K. that Krasky had licked her “all over,” prompted Houston to contact the authorities.

On May 12, 2004, the Willmar Police Department received a child-protection report regarding T.L.K. and Krasky. Detective Timothy Manuel and the child-protection worker assigned to the case decided to have T.L.K. interviewed at Midwest Children’s Resource Center (MCRC). On May 20, 2004, a nurse practitioner at MCRC interviewed and examined T.L.K. Detective Manuel observed the interview and examination-from another room.

During the interview, T.L.K. had difficulty focusing and gave disjointed answers that were difficult to understand. But she was able to provide more direct answers in the subsequent physical examination. In both the interview and the examination, she described several occasions when Kra-sky touched her with his fingers, tongue, and penis.

Krasky was charged with six counts of first-degree criminal sexual conduct, in violation of Minn.Stat. § 609.342 (2002), and six counts of second-degree criminal sexual conduct, in violation of Minn.Stat. § 609.343 (2002). After a pretrial hearing on Krasky’s motions to suppress the state’s evidence, the district court ruled that T.L.K.’s statements in the interview and examination were testimonial and, therefore, inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The district court also ruled that the state’s Spreigl evidence was inadmissible. The state appeals from the district court’s order suppressing both T.L.K’s statements at MCRC and the Spreigl evidence.

ISSUES

1. Did the district court err by ordering the suppression of T.L.K’s statements in her interview and examination at MCRC?

2. Did the district court err by ordering the suppression of the state’s Spreigl evidence?

ANALYSIS

I.

On appeal from a pretrial order suppressing evidence, the state “must clearly and unequivocally show both that the trial court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (quotation omitted). “[W]hen a young child is found incompetent to testify and is thus unavailable the suppression of the child’s statements describing the alleged sexual abuse reduces the likelihood of a successful prosecution and meets the critical impact test.” In re Welfare ofL.E.P., 594 N.W.2d 163, 168 (Minn.1999). Because T.L.K.’s statements during the MCRC examination offer “an account of the events of the offense charged for which the testimony of others who were not the victim can be no substitute,” we conclude that the state has met its critical-impact burden. See id. at 169.

Whether the district court erred by suppressing T.L.K’s statements at MCRC is a question of law, which we review de novo. See State v. Harris, 590 N.W.2d 90, 98 (Minn.1999) (“When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence.”).

In Crawford v. Washington, the United States Supreme Court ruled that the Confrontation Clause of the Sixth Amendment bars the admission of testimonial out-of-court statements unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. 541 U.S. 36, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). Both parties agree that T.L.K. is not competent to testify and that Krasky has not had an opportunity to cross-examine her. The district court found that T.L.K.’s statements at MCRC were testimonial and concluded that those statements are inadmissible under Crawford.

The Supreme Court did not define “testimonial” for Confrontation Clause purposes, but it did describe three types of statements that “share a common nucleus and ... define the Clause’s coverage at various levels of abstraction.” Id. at 1364. These formulations of “testimonial” statements are:

ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, pri- or testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecuto-rially, ... extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, ... [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Id. (second ellipsis in original) (citations and quotation marks omitted).

The statements at issue here are neither “ex parte in-court testimony or its functional equivalent” nor are they “extrajudicial statements ... contained in formalized testimonial materials.” See id. But they may fall into the third and broadest formulation if they “were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” See id.

We considered this third formulation of “testimonial” in State v. Scaechetti 690 N.W.2d 393 (Minn.App.2005), review granted (Minn. Mar. 29, 2005). In Scac-chetti we reviewed the admission of a videotaped interview and examination of a child-abuse victim. Id. at 395-97. The victim’s mother took her to the emergency room after noticing blood on items of her clothing and numerous bruises on her face. Id. at 394. The victim was transferred to MCRC to determine if any abuse had taken place. Id. At trial, the MCRC director testified that the center’s process for diagnosing child abuse includes an interview with the person who brought the child to the clinic, an interview in which the child is asked “historical” questions about potential abuse, and a physical examination of the child. Id. She testified that “the process is based on ‘medical protocol’ ” and that although a nurse practitioner conducts the examination and interview, all examinations and interviews at MCRC are videotaped for the director’s review. Id.

In Scaechetti we observed that under the third formulation of testimonial statements described in Crawford, the defendant must show that “the circumstances surrounding the contested statements led the [child victim] to reasonably believe her disclosures would be available for use at a later trial, or that the circumstances would lead a reasonable child of her age to have that expectation.” Id. at 396. We held that the statements in that case were not testimonial because the examination and interview were performed for the purpose of a medical diagnosis and the nurse conducting the examination and interview “was not working on behalf of, or in conjunction with, investigating police officers or other government officials for the purpose of developing the case against [the defendant].” Id. (alteration in original) (quotation omitted).

Here, T.L.K. was examined and interviewed at MCRC by a nurse practitioner using what appears to be the same procedure described in Scaechetti. The nurse practitioner conducted a thorough medical examination, including an STD test, and recommended that T.L.K. see a psychotherapist to help her cope with the abuse that she has suffered. The examination was also videotaped, presumably for review by the MCRC director.

In Scacchetti, the circumstances under which the contested statements were given were crucial to our determination of whether the statements were testimonial. Scacchetti, 690 N.W.2d at 396. Here, although the MCRC examination may have been arranged by Detective Manuel and a child-protection worker, there is no indication that T.L.K. thought that her statements might be used in a later trial. T.L.K. was driven to MCRC by her foster mother, and she was shielded from the police presence throughout the MCRC examination. The record is clear that Detective Manuel did not interrupt or direct any portion of the interview or examination. The length of time between the alleged abuse and the examination also suggests that T.L.K. was not aware of any prosecu-torial purpose of the examination and did not “reasonably believe that her disclosures would be available for use at a later trial.” Scacchetti, 690 N.W.2d at 396. Although T.L.K. was not in need of immediate medical attention when the examination took place, the record shows that a nurse practitioner performed tests and asked questions so that she could provide a medical diagnosis.

Detective Manual may have anticipated that T.L.K’s statements at MCRC might ultimately be used in Krasky’s prosecution, but the circumstances under which her statements were made do not fall into any of the formulations of “testimonial” described by the United States Supreme Court in Crawford. See Crawford, 541 U.S. at 52, 124 S.Ct. at 1364. We find that Krasky has not shown that “the circumstances surrounding the contested statements led [T.L.K] to reasonably believe her disclosures would be available for use at a later trial, or that the circumstances would lead a reasonable child of her age to have that expectation.” See Scacchetti, 690 N.W.2d at 396. Although the examination was arranged by Detective Manuel, we further find that the examination was conducted, at least in part, for the purpose of medical diagnosis and that the administering nurse practitioner followed her medical protocol without interference or assistance from Detective Manuel. We conclude that T.L.K’s statements at MCRC were not testimonial, and we reverse the district court’s order suppressing those statements.

II.

The state also argues that the district court erred by suppressing the state’s Spreigl evidence. Again, we will not reverse a pretrial order suppressing evidence unless “the order constituted error.” Scott, 584 N.W.2d at 416.

The state seeks to introduce evidence that in 1989, Krasky sexually assaulted his stepsister, who was then eight years old. Evidence of other crimes is inadmissible to prove bad character, but it may be allowed for the limited purpose of showing “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid. 404(b). Spreigl evidence is admissible if the evidence of the defendant’s participation in the offense is clear and convincing, the evidence is relevant and material to the state’s case, and the probative value of the evidence outweighs its potential for unfair prejudice. State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000).

Krasky’s participation in the 1989 offense is clear and convincing. But evidence of that offense has limited relevance because the circumstances of the 1989 offense are considerably different from those of the alleged assaults here. See State v. Kennedy, 585 N.W.2d 385, 391 (Minn.1998) (noting that to be relevant, Spreigl-evi-dence events must “be sufficiently or substantially similar to the charged offense”). In light of our decision to reverse the district court’s order suppressing T.L.K.’s statements at MCRC, the state’s need for the Spreigl evidence is significantly reduced, and the potential for unfair prejudice outweighs the limited probative value of the evidence. See State v. Berry, 484 N.W.2d 14, 17 (Minn.1992) (“[W]hen balancing the probative value of Spreigl evidence against the potential for unfair prejudice, the trial court must consider how necessary the Spreigl evidence is to the state’s case.”).

The district court suppressed the state’s Spreigl evidence because it determined that the state failed to show that the evidence is material, relevant, or probative. It also noted that the evidence is not relevant because the Spreigl offense occurred more than 15 years ago. We agree and conclude that the district court did not err by suppressing the state’s Spreigl evidence.

DECISION

Because T.L.K.’s statements were given to a nurse practitioner in circumstances that did not lead her, and would not lead a reasonable child of her age, to believe that the statements would be available for use at a later trial, her statements are not testimonial and are, therefore, admissible. But the state’s Spreigl evidence is inadmissible because the evidence lacks relevance and because the state has not shown that the evidence is necessary to its case.

Affirmed in part, reversed in part, and remanded.

CRIPPEN, Judge dissenting.

CRIPPEN, Judge

(dissenting).

I respectfully dissent. The state’s challenge to the district court’s suppression of out-of-court statements suggests a judicial assumption that medical personnel will conduct pretrial investigative interviews with impartiality, with concern only for health care — that this promise trumps another’s fundamental constitutional right to cross-examine those who testify against him. This plea contradicts a skepticism about crime investigators that is deeply embedded in the Constitution. See infra, n. 4. Although the state nominally premises its challenge on a reading of Crawford v. Washington, 541 U.S. 36,124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), it adds critical elements to the Crawford holding and omits others. The appeal is without merit.

The central premise of Crawford is not disputed. Reviewing the events that prompted the Confrontation Clause, a history of patterned misuse of out-of-court “testimonial” statements, the Court criticizes and dismisses any notion that these statements can be admitted under the law of evidence based on their reliability. Id. at 1364, 1369-74; see State v. Courtney, 682 N.W.2d 185, 195 (Minn.App.2004) (sy-nopsizing Crawford when reversing admission of child’s statement; quoting Supreme Court observation on vital importance of right to cross-examine witnesses), rev’d on other grounds, 696 N.W.2d 73 (Minn. 2005). Without warrant, the state proposes to excise from the scope of Craioford the critical topic of pretrial interrogations that public investigators delegate to medical personnel.

There are three flaws in the state’s challenge to the district court’s decision. First, the holding of Crawford and the rationale stated to support it do not permit a constrained construction of out-of-court testimony that excludes interrogations delegated to others by public officials charged with the responsibility to investigate criminal conduct. Second, the state’s appeal is premised on a serious misreading of Crawford as it bears on the understanding of a declarant that her statements will later be used at trial. Finally, the state’s approach strips from Crawford its central vitality in announcing the need for judicial protection of a “bedrock procedural guarantee.” 124 S.Ct. at 1359.

I. Pretrial Questioning

The Confrontation Clause, the Crawford Court states, applies to witnesses against the accused — “in other words, those who ‘bear testimony.’ ” Id. at 1364. As the state observes, the Court leaves “for another day” a “comprehensive” definition of testimonial statements. Id. at 1374. This is the Court’s prefatory remark to its final statement of the law of the case, but the remainder of this statement is equally striking.

In its ultimate holding, wrapping up its opinion and its review of the meaning of testimonial statements, the Court declares: “Whatever else the term covers,” it applies “at a minimum” to prior testimony at a preliminary hearing and to police interrogations. Id. at 1374. And the Court states its rationale for reciting these two forms of testimony. “These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” Id. The first, ex parte testimony at a preliminary hearing, qualifies as testimonial “under any definition” of the concept. Id. at 1364. The other, police interrogations, also qualifies “under even a narrow standard,” which the Court does not call for. Id.

The judicial challenge created by Crawford is to identify what is not “minimum,” what is not “narrow[ly]” stated, what might not be considered “under any definition” of the concept. The Court makes it evident that the two stated occasions of testimony, examinations by magistrates and police, are not the “comprehensive” form of testimonial events that will be stated on another day. It may exaggerate to suggest that these two occasions are a mere foretaste of the full picture of testimonial events, but it is no less extreme to imagine that only the two incidents recited by the Crawford Court are within the category.

To begin the discussion of out-of-court testimony, the Court observes that “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. at 1364. It does not follow, of course, that all accusations other than a casual remark to an acquaintance are testimonial. But, here again, the Court’s rationale makes it equally evident that testimonial statements are not confined to a formal statement “to government officers.”

The accusatory statements of suspected child abuse victims, taken in settings selected by public officials and elicited by persons trained for these interviews, cannot be reasonably excepted from the scope of Crawford. This conclusion on the more complete picture of testimonial statements is deducted from the ultimate holding of Crawford, just stated and discussed, and from the following added suggestions of the Crawford Court.

A. Investigative Function

When reasoning that dangers first perceived in statements to magistrates were later evident in police interviews, the Crawford Court speaks of police as the officials now performing “the investigative functions” once associated with magistrates. Id. at 1365. “The involvement of government officers in the production of testimonial evidence presents the same risk, whether the officers are police or justices of the peace.” Id. And again, the Court declares: “Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse — a fact borne out time and again throughout a history with which the Framers were keenly familiar.” Id. at 1867 n. 7.

Reasonably, even inescapably, this express concern of the Crawford Court extends to the modern widespread use of pretrial statements in child abuse prosecutions. In this instance, the public has created another cadre of personnel to complete “the investigative functions” once associated with magistrates and police. The risks are no different in this case than in a case of careful interviewing by police.

Initially at least, and by law in Minnesota and elsewhere, the investigating function in child abuse matters rested with police and social service personnel, who were to coordinate their efforts when either received a report of abuse. See Minn. Stat. § 626.556, subd. 3(a) (2004) (setting out persons mandated to report and to investigate). When abuse reporting laws were first enacted, it was anticipated that medical agencies would be among those reporting discovery of abuse. Id., subd. 2. We are now confronted by the reality that police and social service investigators turn to medical agencies as primary agents to conduct their investigations.

As medical professionals conduct interviews on behalf of police and social service agents, it requires a high preference for form over substance to overlook the fact that they approach the task mindful that the state agents who arranged for their efforts also depend on them to produce evidence, monitor their efforts, and no doubt evaluate their services. It becomes unquestionably evident that the interviewers share with the officials the desire that evidence of criminal conduct be uncovered for later proceedings. In this case, as correctly recited by respondent,

[t]he case was turned over to Detective Timothy Manuel for investigation. Det. Manuel spoke to the Child Protection Worker who was assigned to the case and the two of them decided that the best way to proceed with the investigation was to have Midwest Children’s Resource Center do an interview with TLK. The examination was set up for May 20, 2004_A copy of the [interview] report ... was sent to Det. Manuel’s attention. The interview was video-recorded and Det. Manuel received a copy of that videotape.!]

As in Courtney, where interviewers were monitored by police, 682 N.W.2d at 190-91, the interviewers in this case were monitored by two Kandiyohi County social service employees watching from an observation room. The circumstances in both cases prompt what we deduced there, that the interviews were conducted “for the purpose of developing” and in “preparation” of the state’s criminal case. Id. at 196.

The special training of “medical” interrogators, however beneficial to the ultimate welfare of the child, makes them no less interested in the prosecution of suspected crimes. Nor are they less able than other interviewers to use the pretrial setting in a fashion that differs from what would occur if the witness were cross-examined as provided by law. The interviews we review demonstrate the “[i]n-volvement of government officers in the production of testimony with an eye toward trial,” and they present “unique potential for prosecutorial abuse — a fact borne out time and again throughout a history with which the Framers were keenly familiar.” Crawford, 124 S.Ct. at 1367 n. 7.

No doubt there may be cases where medical personnel do not act for the state, creating circumstances that are substantially different from conduct of persons anticipating a prosecution. See State v. Jorgensen, 660 N.W.2d 127, 131 (Minn. 2003) (recognizing that constitutional protections do not extend to independent conduct of private persons). But those cases do not turn on the employment of the actor; rather, they are based on an assessment of the degree of government involvement in the action. In proposing admissibility of pretrial interviews that skirt the right of an accused person to cross-examine the witness, like attention is required to the extent of governmental involvement. See Heather L. McKimmie, Repercussions of Crawford v. Washington: A Child’s Statement to a Washington State Child Protective Services Worker May be Inadmissible, 80 Wash. L.Rev. 219, 240-43 (2005) (student-authored analysis).

Accordingly, the case we review may be distinguished from hospital examinations of children receiving emergency care. See State v. Scacchetti, 690 N.W.2d 393, 394 (Minn.App.2005) (reviewing interviews, like those in this case, by staff of Midwest Children’s Resource Center, which is department in hospital), review granted (Minn. Mar. 29, 2005). Medical-services situations of that kind are unlike those where interviewers patently act at the behest of police or social service investigators.

B. Neutrality, Reliability

Adding to the statement that an improper testimonial event arises upon “[involvement of government officers production of testimony,” the court declares that this would be no less so if “neutral” government officers were involved, which the trial court in Crawford had found to be the case for questioning by law enforcement officers in the circumstances of that case. Crawford, 124 S.Ct. at 1373. “The Framers would be astounded to learn that ex parte testimony could be admitted against a criminal defendant because it was elicited by ‘neutral’ government officers.” Id.

These statements rebut the notion that the interviewers in this case are different because they are in the medical community or are specialists. Moreover, the suggestion of neutrality from these agents is little more than a claim that statements they produce are more reliable than others, the standard emphatically rejected by the Crawford, Court.

C. Historic Comparisons

When the Court speaks of police interrogations, it notes that they have the “closest kinship” to the abusive use of out-of-court-statements in English and colonial history, which began with pretrial questioning by magistrates and was later expanded to include pretrial interrogation by police. Id. at 1374.

We cannot be unaware that prosecutions for the interests of children are a major element of modern criminal justice and are the occasion for a form of pretrial interrogation that has close kinship with the pretrial statements more evident in prior stages of the anglo-American history of the criminal law.

D. Questioning Witnesses

The Court clarifies in a footnote that its use of the term “interrogation” is in its “colloquial” sense and not its “technical legal” sense. Id. at 1365 n. 4. Although “structured police questioning,” which occurred in Crawford, is included “under any conceivable definition,” the Court has no occasion to further define the ordinary, colloquial (conversational?) concept of interrogation. Id. at 1364. The reasonable scope of interrogation, in a colloquial sense, includes the questioning by medical personnel which is aimed at determining whether a criminal accusation will be stated.

E.Oral Testimony

When discussing its proposition that pri- or cross-examination is the only basis for admitting a testimonial statement, the Crawford Court notes a possible misunderstanding. Most of the hearsay exceptions that were cited in the past to permit admitting a statement without prior cross-examination, the Court declared, “were not testimonial — for example, business records or statements in furtherance of a conspiracy.” Id. at 1367. (The Court notes that dying declarations may be an exception to the commonly defined right of confrontation.) The Court’s observation casts doubt on permitting evidence on a pretrial oral declaration, even in pre-Crawford cases.

II. Expectations of Declarant

Crawford declares that two, not three, forms of interviewing represent the minimum scope of what is testimonial. As set forth earlier, the Court’s ultimate holding is confined to the principle that testimonial statements at least include those taken in preliminary examinations and in police interrogations. Imagining that the Court-stated a third standard, the state would disregard what has been said here, the declared “minimum” ingredients of “testimonial,” the “comprehensive” picture yet to be spelled out, and the several parts of the Crawford Court rationale that considerably assist us in understanding the characteristics of testimonial statements.

The state contends that the Crawford Court “did give various examples” of testimonial evidence, “including” not only preliminary hearings and police interrogations, but also “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Going further,

[i]t is the State’s position that when attempting to assess whether the declar-ant’s out of court statement is “testimonial,” the Crawford Court directs us to stand in the shoes of that person at the time he or she makes the statement.
It is through her eyes, as the declarant, that this court must view her statements.
[And, t]his little girl, T.L.K. could not reasonably expect that her statements would be used proseeutorially.

A considered reading of Crawford supports its announcement of two “minimum” forms of pretrial testimony, preliminary-hearing testimony, “under any definition,” and police interrogations, “under even a narrow standard.” Id. at 1364, 1374. The court did not adopt a third minimum form of pretrial testimony or make any statement to contradict its ultimate announcement that it left “for another day” its own formulation of a definition beyond the two examples cited. Id. at 1374. Although the state’s notion of a third standard is not uncommon in opinions premised on a reading of Crawford, the proposition has no basis in the relevant language employed by the Court.

And the state’s argument goes further, making it even more problematic. The declarant’s understanding is asserted as a complete substitute for the “comprehensive” view of testimonial statements expressly envisioned in Crawford. The state treats the purported third variety of testimony as the maximum variety of testimonial settings. The proposition creates a limitation, a ceiling that unreasonably contradicts what the Crawford Court said about testimonial statements. See Scac-chetti, 690 N.W.2d at 396 (similarly reciting that appellant “must show, under Crawford,” that declarant “reasonably believe[d] her disclosures would be available for use at a later trial, or that the circumstances would lead a reasonable child of her age to have that expectation”).

Mistakes in this prosecution argument unfold in layers.

A A Third Standard?

First, commenting on a useful definition of pretrial testimony, the Court contrasts “a formal statement to government officers” and “a casual remark to an acquaintance.” Crawford, 124 S.Ct. at 1364. And the Court, based principally on suggestions of counsel in the case, makes these initial comments on possible composition of a definition:

Various formulations of this core class of “testimonial” statements exist: [a] ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecuto-rially; [b] extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; [c] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]

Id. (citations omitted). These formulations, the Court notes, “all share a common nucleus and then define the Clause’s coverage at various levels of abstraction.” Id.

Although these comments make it evident that discussions of the topic may include references to the declarant’s beliefs or expectations, at least one formulation (the second) does not contain the reference, and the remainder of the opinion makes evident that this understanding is not a concept endorsed by the Court. First, this recitation follows a lengthy Court discussion of historic abuses in the form of questioning by magistrates and police. Id. at 1359-64. Second, the recitation is immediately followed by further discussion of police interrogations. Id. at 1364-65. And finally, after denouncing prior permissive admission of pretrial statements under rules of evidence, the Court holds that the “minimum” forms of pretrial testimony, statements taken by magistrates and police, rests on identifying “the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” Id. at 1374. In my opinion, Crawford does not judge that the declarant’s understanding determines what is testimonial, singularly or as one of three standards.

B. Exclusive Standard?

As already stated, there is no cause to attribute to Crawford a three-pronged or even a two-pronged test to determine whether a statement is testimonial. The Court’s holding is expressly in terms of what are minimum standards. And the Court’s opinion makes it evident that the more comprehensive picture of testimonial statements should include the major category of pretrial statements in child abuse cases.

This view is confirmed by examining the source of the briefing in Crawford and, more particularly, the amicus brief that accounts for the Court’s mention of a “formulation” of “testimonial” that considers the expectations of the declarant. When briefing this statement, amicus cites as a source an article by Professors Richard Friedman and Bridget McCormack. Richard D. Friedman & Bridget McCormack, Dial-in Testimony, 150 U. Pa. L.Rev. 1171 (2002). The authors introduce the notion that the declarant’s known use of the statement makes it testimonial of what the declarant anticipates, id. at 1240, but they make evident the same thought the Crawford Court expresses — that this is a minimum measure of what is testimonial. In their words, statements made knowingly to authorities that describe criminal activity are “almost always” testimonial, but other descriptions of criminal wrongdoing by a claimed victim are “usually” testimonial, “whether made to the authorities or not.” Id. at 1241 n. 276.

C. Declarant’s Beliefs?

And there is still more mischief in what the state argues. What meaning is to be attributed to the concept advanced by counsel at some stage of briefing in Crawford, that courts examine what a declarant “expects” or “believes”? Erroneously, in my opinion, the state contends that this calls for determining the level of a declar-ant’s insight into the practices of interrogators, prosecutors, and courts. Few small children, even if questioned by a uniformed officer or a robed judge, would understand that a prosecution and a trial lie ahead; if this is true, the state’s misconstruction of Crawford wipes from application that which we know today is a major category of testimony taken before trial. See Scacchetti, 690 N.W.2d at 396 (reporting appellant’s failure to show that circumstances of interrogation “led the three-year-old to reasonably believe her disclosures would be available for use at a later trial”).

Initially, the notion of an inquiry on the sophistication of the declarant might reasonably be abandoned due its inevitable absurdity. The supposed standard leads to questions whether pretrial questioning is problematic if a police officer wears no uniform, or wears a costume to hide his or her identity. What if the investigating official merely asks the assistance of a private person who is trained in interrogation? If the official and the victim are in a medical facility, is the occurrence of testimony avoided by asking that a doctor or nurse conduct the questioning?

And again, Crawford gives us some help. When reporting what counsel has suggested as a formulation of what is testimonial, Crawford does not endorse these suggestions as determinative; it does not “direct us,” as the state suggests, to consider whether a declarant makes a statement she doesn’t “reasonably [expect] to be used prosecutorially.” 124 S.Ct. at 1364. But, when discussing the facts of the case reviewed in Crawford, the Court notes the error in admitting statements because they were taken by a neutral government officer; and the Court declares that only cross-examination could show the witnesses “perception of her situation.” Id. at 1373.

Professors Friedman and McCormack offer a pre-Crawford discussion of what constitutes “the giving of testimony.” Friedman, supra at 1240-41. The topic is generally considered one of determining when a person is “acting as a witness.” Id. at 1240. And the authors stop once to observe what might not be testimonial, given that any description of a crime “is usually testimonial, whether made to the authorities or not.” Id. at 1241 n. 276. The category of non-testimonial statements, in their opinion, most prominently includes “a statement made in the course of going about one’s ordinary business.” Id.

D. Worthy Purpose?

To still further enlarge this issue, the state adds another layer of argument, the suggestion that statements are not given in a testimonial fashion when they are taken for some other purpose. The state asserts that there was evidence of a valid medical purpose for the interview that is at issue in this case. But this argument also fails to carry weight.

Even if a worthy purpose is shown, this does not show the absence of other purposes. Quite evidently, in child abuse interviews, however important for medical aims, there is a second purpose to prepare for prosecution of criminal charges, a purpose that calls for scrutiny regarding the defendant’s right of confrontation. It is not reasonable to expect that a police interrogation is less problematic when the officer has a proven motive to stop a pattern of crimes, even to save lives. Nor does a magistrate’s questioning become non-testimonial upon demonstration of this official’s impartiality or specific pursuit of truth. Nor is it reasonable to suggest that there is no trial preparation because an officer arranges for questioning by clergy, or a teacher, or another who might serve the intended purpose of gathering evidence while acting with strong motives, among others, to help the child or the child’s family.

And a primary concept of constitutional law underlies the state’s error when it endeavors to capitalize on the worthy purposes of a professional interviewer: The identification of motives of any interviewer who knows the prospect of a prosecution should not be undertaken. As observed in the introduction of this opinion, liberties under the Constitution are not safely suspended on the promise that those who serve the public interest will do so impartially. The Crawford Court expressly reasserts this view, explaining that the Constitution’s framers were even dissatisfied with the promise of judicial impartiality.

III. Upholding Crawford

Crawford does not put before us a mere technicality stated in a modern interpretation of constitutional liberties. The Confrontation Clause, as the Supreme Court restates in Crawford, is a “bedrock procedural guarantee.” 124 S.Ct. at 1359. The singular root of the clause, the Court observed, was the right of cross-examination, id. at 1360-61, a practice rule which has been and remains one of “vital importance” as a result of abusive use of pretrial statements. Id. at 1361. The Court’s holding is stated as an “absolute bar” to admission of testimonial statements without prior cross-examination. Id. at 1370. This declaration on the import of cross-examination sheds special light on efforts to narrow application of the Confrontation Clause to accommodate varieties of out-of-court interviews conducted in anticipation of criminal proceedings.

The historic practices that the Court reviews, first evident in England and then in the American colonies, consisted of reading pretrial statements as evidence in trial, id. at 1359-63, practices which had become routine in criminal prosecutions. Id. at 1360. In a later time, the widespread practice of pretrial interviews of children in child abuse prosecutions is a matter of “routine” that now sits prominently on the table when discussing pretrial interrogations of any kind. The implications of this case are not confined to the single interview we are reviewing in this case. The decision to broadly treat medical interviews of young children as non-testimonial wipes from the scope of the Confrontation Clause a substantial category of pretrial interrogations that are a regular part of current law enforcement practice.

As often as not, the interviewers, acting prior to criminal proceedings, declare and no doubt sincerely believe that they are engaged in a fair and just pursuit of the facts. That is the case here. But this posture is little more than a claim that the process is reliable, so rehable that it rivals the value of cross-examination. This is the claim explicitly denounced in Crawford. Reliance on reliability involves, the Court says, the “unpardonable vice” of admitting “core testimonial statements that the Confrontation Clause plainly meant to exclude.” Id. at 1371. To permit these statements as “obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.” Id.; see Courtney, 682 N.W.2d at 195 (highlighting this Crawford Court observation).

The district court’s application of the Constitution, as often is the case, taxes an important public interest. As has been said in this opinion, it is evident that out-of-court interviews of young victims have become a routine part of a widespread and laudable vigilance in prosecuting those who abuse children. It remains our responsibility to declare what is well established, that the pursuit of this vital public interest must be within the confínes of compelling constitutional guarantees for the accused. This leaves to the prerogatives of others, as we must, the task of advancing the protection of children within constitutional limits.

Because, in my opinion, the decision to reverse the district court constitutes a far-reaching and unwarranted rejection of the fundamental implications of the Confrontation Clause, I respectfully dissent. And, because our disposition of the state’s claims on Spreigl evidence rests on admitting out-of-court statements, my contrary position on those statements would also require a different analysis of the Spreigl issue.

      . When reviewing Courtney, the supreme court declined to consider the question whether the child’s statement was erroneously admitted in the aftermath of Crawford. State v. Courtney, 696 N.W.2d 73, 77 n. 2, 79 (Minn.2005). Because the statement dealt with an offense against the child's mother, to which the child was not an eyewitness and which was proven by better evidence, any error in admitting the statement was held harmless. Id. at 79-80. Unlike Courtney, the district court in this case decided against admitting the statement; the state's case rests on the proposition that the issue critically affects the state's ability to prosecute the case.

      . Inexplicably, these facts are omitted from the state’s recitation of facts and its argument.

      . Although police involvement in the case at bar is not mentioned, the state deems it important to report that a medical interviewer in this case stated to the declarant "several times that the answers were needed so that [the interviewer] would know what to do to keep T.L.K.’s body healthy.” This observation is significant to show the medical relevance of the declarant’s answers, but it also demonstrates the medical interviewer’s sensitivity to legal standards governing the admissibility of evidence at trial. See United States v. Beaulieu, 194 F.3d 918, 921 (8th Cir.1999) (stating pre-Craw/hrd rule of admissibility requiring that medical interviewer "makes clear to the victim that the inquiry into the identity of the abuser is important to diagnosis and treatment”).

      . The authors add a category of non-testimonial statements that begs for interpretation, a statement made "with no recognition that it relates to criminal activity.” Friedman, supra at 1241 n. 276. It profits us little to get deeply into an interpretation of this more remote authority, but given the difference the authors enunciate between statements made with or without expectation the statement will be used at trial (the former "always” being testimonial), it is most plausible to see this non-"recognition” category as one where the witness does not understand that the statement deals with wrongful conduct.

      . "We have no doubt that the courts below were acting in utmost good faith when they found reliability. The Framers, however, would not have been content to indulge in this assumption. They knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people .... They were loath to leave too much discretion in judicial hands.” Crawford, 124 S.Ct. at 1373.

      . Concern about admitting statements in this case is still further enlarged by exploring, as has not been appropriate under Crawford, whether the challenged statements were reliable under pre-Crawford standards. See United States v. Sumner, 204 F.3d 1182, 1185 (8th Cir.2000) (determining medical interview unreliable without interviewer’s discussion of why questions were important to diagnosis and treatment "and why it was important for the child to tell the truth regarding the identity of the abuser”); State v. Salazar, 504 N.W.2d 774, 777 (Minn. 1993) (hinging admissibility on showing that child knew she was speaking to medical personnel "and that it was important she tell the truth”) (citing Ring v. Erickson, 983 F.2d 818, 820 (8th Cir.1992)). The record shows that interviewers repeated to the child that her answers were needed so that the interviewer would know what to do to keep the child’s body healthy. The record otherwise does not show a discussion of the need for the child’s truthfulness. Viewing the question more broadly, the record leaves room for concern about the child’s prospective motive to fabricate. See Sumner, 204 F.3d at 1186 (discussing "trustworthiness” in terms of child’s lack of motive to fabricate).


author: KALITOWSKI, Judge.

text:
    David D. SAMUELSON, Relator, v. PRUDENTIAL REAL ESTATE, Respondent, Commissioner of Employment and Economic Development, Respondent.
    No. A04-1416.
    Court of Appeals of Minnesota.
    May 31, 2005.

      David D. Samuelson, Virginia, MN, pro se relator.
    Prudential Real Estate, St. Louis Park, MN, respondent.
    Lee B. Nelson, Linda A. Holmes, St. Paul, MN, for respondent Commissioner of Employment and Economic Development.
    Considered and decided by TOUSSAINT, Chief Judge; KALITOWSKI, Judge; and KLAPHAKE, Judge.
   OPINION

KALITOWSKI, Judge.

Relator David Samuelson challenges the decision by the commissioner’s representative that he was a noncovered employee and therefore not entitled to estabhsh an unemployment benefits account.

FACTS

Relator, an insurance salesperson, was employed by respondent Prudential Real Estate from March 1984 through August 20, 2003, when he was terminated. Relator applied for unemployment benefits and the department determined he was disqualified because he had been discharged for employment misconduct. He appealed to the unemployment law judge (ULJ), who affirmed. Relator appealed to the commissioner’s representative, who remanded to the ULJ for a new evidentiary hearing on the issue of whether the employment relator performed constituted “noncovered employment” under Minn. Stat. § 268.035, subd. 20(26) (2002).

At the hearing before the ULJ, relator testified that his pay rate was based primarily on commission, but that: (1) his employer provided health, short-term disability, and dental insurance, as well as workers’ compensation insurance, for a benefits package worth approximately $8,000; and (2) his employer considered relator to be a common-law employee and paid unemployment taxes. The ULJ determined that relator’s employment as an insurance salesperson was noncovered employment because he was paid solely by commission. Relator appealed to the commissioner’s representative, who affirmed. This certiorari appeal followed. Respondent commissioner did not file a brief, but instead advised this court by letter that respondent’s position on the issue had changed and respondent did not object to a reversal.

ISSUE

Was relator’s employment noncovered employment under Minn.Stat. § 268.035, subd. 20(26) (2002)?

ANALYSIS

Statutory interpretation is a question of law reviewed de novo. Harms v. Oak Meadows, 619 N.W.2d 201, 202 (Minn. 2000). The object of statutory interpretation “is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2004); Central Specialties, Inc. v. Comm’r of Econ. Sec., 622 N.W.2d 833, 835 (Minn.App.2001), review denied (Minn. May 15, 2001). “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under pretext of pursuing the spirit.” Minn.Stat. § 645.16. Words are to be construed according to their common and approved usage, but technical words are construed according to their special meaning or definition. Minn.Stat. § 645.08(1) (2004).

To establish an unemployment benefits account, an applicant must earn a certain minimum amount of wage credits. “Wage credits” are defined as “the amount of wages paid within an applicant’s base period for covered employment.” Minn. Stat. § 268.035, subd. 27 (2002). Generally, covered employment includes employment performed in Minnesota, unless it is excluded as noncovered employment. Minn.Stat. § 268.035, subd. 12 (2002) (covered employment); see Minn.Stat. § 268.035, subd. 20 (2002) (noncovered employment). Thus, one who works in non-covered employment may not establish an unemployment benefits account.

The statute includes a long list of employment that is noncovered. See Minn. Stat. § 268.035, subd. 20. In the provision at issue here, the statute provides that noncovered employment includes “employment as an insurance salesperson, by other than a corporate officer, if all the compensation for the employment is solely by way of commission.” Id., subd. 20(26); see also id., subd. 20(28) (similar provision for real estate salesperson).

The issue here is whether “compensation” refers only to money the salesperson received from commissions, or whether it includes remuneration from the employer’s payment for benefits such as health, disability, and dental insurance. Relator asserts that he was not compensated solely by commission because his employer provided health, short-term disability, and dental insurance, as well as workers’ compensation insurance, for a benefits package worth approximately $8,000.

We must first examine the statutory language at issue. While the unemployment statute does not define the word “compensation,” the law dictionary defines compensation as: “Remuneration and other benefits received in return for services rendered; esp., salary or wages.” Black’s Law Dictionary 277 (7th ed.1999). In contrast, wages are defined by statute as follows:

[A]ll compensation for services, including commissions; bonuses; severance payments; vacation and holiday pay; back pay as of the date of payment; tips and gratuities paid to an employee by a customer of an employer and accounted for by the employee to the employer; sickness and accident disability payments, except as otherwise provided in this subdivision; and the cash value of all compensation in any medium other than cash....

Minn.Stat. § 268.035, subd. 29 (Supp. 2003). In addition, there are a number of specific exclusions from the definition of wages, including payments made on behalf of the employee under a plan established by an employer providing for employees generally, “including any amount paid by an employer for insurance or annuities, or into a plan, to provide for a payment, on account of (i) retirement or (ii) medical and hospitalization expenses in connection with sickness or accident disability, or (iii) death.” Id., subd. 29(1).

While this is a case of first impression in Minnesota, we find persuasive the reasoning of a Delaware court that addressed the same issue as presented in this appeal. See State v. Reynolds, 669 A.2d 90 (Del. 1995). In Reynolds the applicants were paid commissions based on their sale of insurance policies, and they also received various benefits, including life insurance, health insurance, disability insurance, pension plan benefits, paid vacations, and educational allowances. Id. at 91. Under Delaware law, employment did not include “[s]ervice performed by an individual for an employer as an insurance agent or real estate agent ... if such service performed by such individual for such employer is performed for remuneration solely by way of commissions.” Id. at 92 (quoting Del. Code Ann. tit. 19, § 3302).

The Reynolds court held that the exclusion clearly applied only to “the services of those individuals who ordinarily receive nothing of value from their employer in addition to commissions” and that the “General Assembly’s use of the word ‘solely’ manifests the legislative intent to exclude only those agents who are compensated entirely by commission.” Id. at 93. The court further noted that the legislature could have completely barred insurance agents who receive commissions from receiving unemployment benefits either by using the word “wages” instead of “remuneration” or by omitting the word “solely.” Id. The court determined that the decision to use the broader term “remuneration” and to insert “solely” must be given effect. Id.

Finally, the Reynolds court rejected the argument that the definition of “wages,” which excluded some fringe benefits from calculable wages, should be applied to likewise exclude some fringe benefits from the definition of remuneration. Id. at 94. The court found the section defining “wages” did not address the issue of “remuneration.” Id.

Applying the same reasoning, we conclude that because the Minnesota legislature chose to use the word “compensation” in Minn.Stat. § 268.035, subd. 29, rather than the term “wages,” the statutory definition of wages does not control the meaning of “compensation.” Rather, compensation is defined by its common meaning: “[rjemuneration and other benefits.” Black’s at 277 (emphasis added). Further, as in Delaware, the legislature here provided that noncovered employment was established when compensation was “solely” from commissions. Thus, as in Reynolds, relator’s benefits package here included compensation in addition to commissions.

Following Reynolds we conclude that where an insurance salesperson receives additional employer-paid compensation by way of benefits, the employment is not noncovered employment under Minn.Stat. § 268.035, subd. 20(26), and that relator is not prohibited from establishing an unemployment benefits account.

DECISION

An insurance salesperson who is compensated by commission and an employer-provided benefits package is engaged in covered employment for purposes of establishing an unemployment benefits account. Therefore, the decision by the commissioner’s representative that relator engaged in noncovered employment is reversed and the matter is remanded for further proceedings.

Reversed and remanded.


author: DIETZEN, Judge.

text:
    In re the Marriage of Pamela Marie MASCHOFF, f/k/a Pamela Marie Pettit, petitioner, Appellant, v. Thad Richard LEIDING, Respondent.
    No. A04-1757.
    Court of Appeals of Minnesota.
    May 31, 2005.

      Terence J. Swihart, Lawrence Downing & Associates, Rochester, MN, for appellant.

      Michael P. Kircher, Sunde, Olson, Kircher & Zender, St. James, MN, for respondent.
    Considered and decided by DIETZEN, Presiding Judge; SHUMAKER, Judge; and HUSPENI, Judge.

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

   OPINION

DIETZEN, Judge.

The district court denied appellant Pamela Maschoffs motion to modify a child support order, ruling that the relevant issues had been previously litigated. Because the record does not show that the relevant issues had been previously litigated, and the district court was not precluded from considering appellant’s motion, we reverse and remand.

FACTS

In September 1991, appellant had a son. An April 2002 order adjudicated respondent Thad Leiding the father of the child, but reserved questions relating to child support. Later, the parties agreed to share legal and physical custody of the child, to divide the child’s expenses equally, and to establish a parenting schedule. In May 2002, a child support magistrate (CSM) entered an order adopting the parties’ stipulation. The order stated that “[t]he parties have agreed that based on the relatively even income of the parents, and the relatively equal parenting access, neither party shall pay child support to the other. Each parent shall be responsible for fifty percent of education and child care expenses.” But the CSM’s order did not identify whether the shared custody arrangement agreed to by the parties created sole or joint physical custody.

In November 2003, appellant, acting pro se, moved to modify the child support order, requesting that respondent pay child support and that the court modify the provisions relating to medical and childcare support. Appellant argued there had been a substantial change of circumstances that necessitated a modification because respondent was not paying his share of the child’s expenses. A hearing on appellant’s motion occurred on November 25, at which the CSM concluded that the crux of appellant’s motion was to enforce respondent’s existing child support obligation. Respondent then moved to have appellant held in contempt for interfering with his access to the child. A hearing on respondent’s motion was set for March 1, 2004.

By order filed January 20, 2004, the CSM denied appellant’s motion to modify the child support order, stating that there had been no substantial change of circumstances. The order did not specifically address enforcement of respondent’s obligations to pay for medical and child-care support. In a January 26, 2004 stipulation, the parties agreed that “each party has expended an equivalent amount for the care and support of their child up to and including November 25, 2003[,]” and that to equalize their expense payments for the period between November 25, 2003 and December 31, 2003, respondent would pay appellant $72.08. The stipulation also referred to the custody arrangement as “joint legal and joint physical custody,” and stated that starting January 1, 2004, the parties would provide each other with receipts and a list of all child-related expenses so that they could compare and equalize their respective expenses on a quarterly basis. The CSM incorporated the January 26 stipulation into a February 2004 order.

In April 2004, appellant filed a motion responding to respondent’s motion to hold her in contempt and moved the district court to modify custody and require respondent to pay guideline child support to appellant. In a July 2004 order, the district court denied respondent’s motion to hold appellant in contempt. The district court ruled that appellant failed to make a prima facie showing that the existing custody arrangement endangered the child and, without an evidentiary hearing, denied appellant’s motion to modify custody. Regarding appellant’s motion to modify child support, the July 2004 order observed that in January 2004, the CSM had found no substantial change in circumstances, and in the February 2004 order, the parties had stipulated that they had incurred an equal amount of child-related expenses. Therefore, the district court concluded that the issue of modifying child support “has been litigated. There has not been a change of circumstances. On the basis of Res Judicata, [appellant] is not entitled to further review.” This appeal follows the district court’s denial of appellant’s motion for a rehearing.

ISSUES

1. Did the parties’ stipulated support arrangement reserve the issue of child support?

2. Did the district court correctly preclude appellant from relitigating whether there had been a substantial change in circumstances rendering respondent’s monetary support obligation unreasonable and unfair?

3. Did the district court err in failing to order child support and denying appellant’s motion to modify the May 2002 order?

ANALYSIS

When reviewing a denial of a motion to modify a child support order, our review is limited to examining whether the district court abused its discretion by acting in a manner that is arbitrary, unreasonable, or without evidentiary support. Compart v. Compart, 417 N.W.2d 658, 661 (Minn.App.1988).

I.

An agreement to waive child support is not enforceable because it is contrary to public policy. Aumock v. Aumock, 410 N.W.2d 420, 421 (Minn.App. 1987). Attempted waivers of a child’s right to support are construed as a reservation of the support issue. Id. at 421-22. Appellant argues that the parties’ stipulation that neither would pay support to the other was an unenforceable waiver of the child’s right to support and, therefore, the district court should have treated it as a reservation of support. But we conclude that the parties did not waive the right to child support.

The presumptively appropriate guideline support obligation in joint physical custody cases is the obligation calculated under the Hortis/Valento formula. Schlichting v. Paulus, 632 N.W.2d 790, 792-93 (Minn.App.2001); see Minn.Stat. § 518.551, subd. 5(i) (2004) (stating child support amount calculated under child support guidelines is rebuttably presumed to be appropriate in all cases). Under the Hortis/Valento formula, “separate support obligations are set for each parent, but only for the periods of time that the other parent has physical custody of the children, and a single net payment is determined by offsetting the two obligations against each other.” Bender v. Bender, 671 N.W.2d 602, 608 (Minn.App.2003) (citing Schlichting, 632 N.W.2d at 792). Here, the parties’ May 2002 support order provided that “[t]he parties have agreed that based on the relatively even income of the parents, and the relatively equal parenting access, neither party shall pay child support to the other.” This description of the support arrangement shows that the parties did not stipulate to a waiver of the child’s right to receive support, but rather that the net support payment between the parties would be $0 because they had approximately equal incomes and amounts of custodial time with the child. Thus, without explicitly naming it, the parties stipulated to an application of the presumptively appropriate Hortis/Valento formula. Therefore, we conclude that the May 2002 order did not reserve the issue of child support.

II.

Appellant asserts that the district court erred by denying appellant’s 2004 motion to modify the May 2002 child support order because the issue of whether a substantial change in circumstances had occurred had already been litigated. We review de novo whether res judicata precludes an issue from being relitigated. See G.A.W., III v. D.M.W., 596 N.W.2d 284, 287 (Minn.App.1999), review denied (Minn. Sept. 28,1999).

We first note that support rulings “are not the traditional ‘final judgments’ that [res judicata and collateral es-toppel] were intended to protect.” State ex rel. Jarvela v. Burke, 678 N.W.2d 68, 73 (Minn.App.2004), review denied (July 20, 2004). Further, the availability and application of res judicata and collateral estop-pel in family matters is limited, but “the underlying principle that an adjudication on the merits of an issue is conclusive, and should not be relitigated, clearly applies.” Loo v. Loo, 520 N.W.2d 740, 744 (Minn. 1994); see id. at 743^44 & n. 1 (discussing applicability of law of the case, res judica-ta, and collateral estoppel); Phillips v. Phillips, 472 N.W.2d 677, 680 (Minn.App. 1991) (stating “[a] question of changed circumstances, once litigated, may not be retried,” but also noting that when modification is sought after denial of a motion to modify, “the first question is whether the change since the denied motion has been significant enough that it might, because of its incremental effect, require the trial court to examine the cumulative changes since the order setting the support level”). For purposes of this appeal, we review the applicability of res judicata to these facts.

The issue, then, is whether appellant’s two motions presented the same legal issue. While “child support” may be used narrowly to refer only to the monetary amount an obligor pays under the guidelines, “child support” can also be used more broadly to refer to other childcare costs. Compare Minn.Stat. § 518.551, subd. 5(b) (2004) (child-support guidelines) with Minn.Stat. § 518.54, subd. 4a (2004) (“[s]upport order” includes rulings requiring a party to provide “monetary support, child care, [or] medical support”). Because the substantially changed circumstances required by Minn.Stat. § 518.64, subd. 2, to modify child support must render the existing support obligation unreasonable and unfair, the changed circumstances must pertain to the portion of the obligation sought to be modified. Thus, if multiple types of child support are involved in multiple motions to modify, the mere statement in a prior order that there was no substantial change in circumstances rendering the existing obligation unreasonable and unfair does not necessarily justify invoking res judicata in a subsequent proceeding. See Loo, 520 N.W.2d at 744 (holding untimeliness of motion to modify medical insurance payment did not preclude motion to modify maintenance).

Here, the CSM’s statements from the bench in the prior proceeding indicate that he determined that appellant’s prior motion was one to enforce, rather than to modify, respondent’s child support obligation. The CSM and the parties also focused on whether respondent was paying 50% of education and child-care expenses, not on the parties’ monetary obligations under the guidelines. As a result, the CSM’s findings address enforcement of respondent’s existing child support obligation, and do not address or resolve disputes regarding the parties’ incomes and alleged changes since the initial order in their financial or custodial circumstances. On this record, the existence of a substantial change in circumstances rendering respondent’s monetary support obligation unreasonable and unfair was not adjudicated by the CSM in the January 2004 order, and the district court should not have applied res judicata to preclude appellant from litigating that question.

III.

Because of its ruling on the res judicata issue, the district court did not address the merits of appellant’s motion to modify respondent’s monetary support obligation. Therefore, we remand for the district court to address the merits of that motion. See, e.g., In re Application of Hofstad, 376 N.W.2d 698, 701 (Minn.App.1985) (remanding to district court because res judicata and collateral estoppel did not apply and disputed issue had not yet been litigated); cf. In re Welfare of M.F., 473 N.W.2d 367, 370 (Minn.App.1991) (remanding for district court to exercise discretion on discretionary issue which district court had previously failed to address).

We note that the 2002 order was avoidably defective in two respects. First, it failed to clearly address whether the physical custody arrangement is sole or joint. See Nolte v. Mehrens, 648 N.W.2d 727, 731 (Minn.App.2002) (stating “when a district court awards physical custody, whether based on a stipulation of the parties or not, it must also identify whether the physical-custody award is sole or joint physical custody”). The lack of a clear identification of whether physical custody is sole or joint renders a custody award defective because the district court’s labeling of physical custody as sole or joint will dis-positively determine whether the physical custody arrangement is sole or joint. Also, that conclusion will determine whether the presumptively appropriate child support obligation is calculated by a straightforward application of the child support guidelines for sole physical custody, or by applying the Hortis/Valento formula for joint physical custody. See Minn. Stat. § 518.551, subd. 5(i) (stating child-support guidelines are rebuttably presumed to be applicable in all cases, and addressing setting of support in amount deviating from guideline amount); Nolte, 648 N.W.2d at 780 (noting custody label dispositively determines whether custody is sole or joint, which in turn dispositively determines method of calculating presumptively correct support obligation). Thus, absent a clear identification of whether physical custody is sole or joint, the presumptively appropriate method of calculating child support cannot be identified, and the propriety of deviating from the amount calculated cannot be evaluated. See Minn.Stat. § 518.551, subd. 5(i) (stating if support is set at amount deviating from guideline amount, findings are required on, among other things, guideline amount and reason for deviating from that amount). Here, the identification of the physical custody arrangement missing from the 2002 order was remedied by the CSM’s February 2004 order which identified the physical custody arrangement as joint physical custody.

But a second problem with the May 2002 order is that it lacked findings addressing the parties’ then-existing circumstances. Whether there is a substantial change in circumstances rendering an existing support obligation unreasonable and unfair generally requires comparing the parties’ circumstances at the time support was last set or modified to their circumstances at the time of the motion to modify. Wiese v. Wiese, 295 N.W.2d 371, 372 (Minn.1980); Blomgren v. Blomgren, 386 N.W.2d 378, 380 (Minn.App.1986). Unless a support order provides a baseline for future modification motions by reciting the parties’ then-existing circumstances, the litigation of a later motion to modify that order becomes unnecessarily complicated because it requires the parties to litigate not only their circumstances at the time of the motion, but also their circumstances at the time of the order sought to be modified. See Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn.1997) (noting, in context of motion to modify stipulated maintenance award, that stipulation identifies “baseline circumstances” against which claims of changed circumstances are evaluated).

For example, the May 2002 order explained that the child support award of $0 to both parties was based on the parties’ approximately equal incomes and time with the child, but the order also created a parenting schedule under which the child spent significantly more time living with appellant than respondent. The May 2002 order did not make any written findings explaining this discrepancy or set forth the parties’ then-existing financial circumstances as would be necessary to apply or deviate from the guideline support amount. See Minn.Stat. § 518.551, subd. 5(b), (c), (i) (2004) (addressing factors to be considered in determining both guideline support obligation and whether to deviate from that amount). Because the CSM’s 2002 order lacks findings of fact regarding the parties’ incomes and other factors used to determine a support award and appears to be based on a parenting-time schedule that is not equal, the baseline circumstances for evaluating whether there has been a substantial change in circumstances are unclear. As a result, we cannot review whether the record supports the district court’s decision.

On remand, the decision to reopen the record for an evidentiary hearing or some other method of receiving additional evidence shall be discretionary for the district court.

DECISION

The May 2002 support order did not reserve the parties’ support obligations. Also, because the CSM’s January 2004 order addressed aspects of respondent’s child support obligation that are different than those appellant raised in her current motion to modify respondent’s monetary support obligation, res judicata does not preclude litigation of appellant’s current motion to modify child support. In the future, courts setting child support, even if doing so by adopting a stipulation by the parties, should include findings of fact addressing the parties’ circumstances as they exist at the time the obligation is set.

Reversed and remanded.

      . Our conclusion is supported by the February 2004 order adopting the parties' January 2004 stipulation which explicitly clarifies that the parties, in 2002, were awarded joint physical custody. See discussion infra Part III.

      . Appellant's argument that the May 2002 order was unenforceable assumes that the parties' agreement that “neither party shall pay support” constitutes an improper waiver of the child's right to receive support. This argument fails to recognize that the Hortis/Va-lento formula involves three support-related dollar amounts: one for each physical custodian, and a third figure which is the net payment derived by offsetting those two obligations against each other. Bender, 671 N.W.2d at 608. Appellant's argument also confuses the net payment, which here was $0, with the parties' support obligations which, according to the portion of May 2002 order addressing their incomes and time with the children, ended up being roughly equal.

      .We have reservations about whether the district court's refusal to let appellant "reliti-gate” the existence of substantially changed circumstances is more similar to res judicata or to collateral estoppel. See Loo, 520 N.W.2d at 744 n. 1 (noting "res judicata, or claim preclusion, prevents parties from splitting claims into more than one lawsuit and precludes further litigation of the same claim. Collateral estoppel, or issue preclusion, prevents a party from relitigating issues actually litigated and necessarily determined in a prior lawsuit.”) (citations omitted). As Loo notes however, the principle underlying both doctrines is that a determination on the merits of an issue "is conclusive, and should not be relitigated[.]” 520 N.W.2d at 744. Thus, because both doctrines essentially require an attempt to relitigate something that has already been decided, and because we conclude that this record shows that the question of changed circumstances regarding respondent’s duty of monetary support has not been previously litigated, neither doctrine is satisfied here, and we need not delineate the differences between res judicata and collateral estoppel to resolve this appeal.

      . We note that Nolte was issued approximately two months after the 2002 order was filed.


author: LANSING, Judge.

text:
    Chris NELSON, Appellant, v. PRODUCTIVE ALTERNATIVES, INC., Respondent.
    No. A04-1691.
    Court of Appeals of Minnesota.
    May 31, 2005.

      Robert L. Russell, III, Fergus Falls, MN, for appellant.
    H. Morrison Kershner, Pemberton, Sor-lie, Rufer & Kershner, P.L.L.P., Fergus Falls, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge; LANSING, Judge; and WILLIS, Judge.
   OPINION

LANSING, Judge.

A discharged employee appeals from the dismissal of his complaint for failure to state a claim upon which relief can be granted, arguing that the district court erred in its legal conclusion that the Whis-tleblower Act displaced the common-law action for wrongful discharge for refusal to participate in an unlawful activity that was recognized in Phipps v. Clark Oil & Ref. Corp., 396 N.W.2d 588, 592 (Minn.App.1986) (.Phipps I), and affirmed and modified in Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 571 (Minn.1987) (Phipps II). We agree that the Whistleblower Act does not displace the common-law action recognized in Phipps I as refined and restated in Phipps II, but because the discharged employee’s complaint fails to state a claim that is within the ambit of the common-law action, we affirm.

FACTS

Beginning in 1989, Chris Nelson was employed as Director of Rehabilitation with Productive Alternatives, Inc., a nonprofit corporation. Productive Alternatives terminated Nelson’s at-will employment on November 8, 2003. At that time, Nelson was both an employee and a “member” of the corporation. Nelson sued for wrongful discharge, alleging that he was “wrongfully discharged from employment ... because of his actual and/or perceived actions as a member of the corporation.”

Nelson did not bring a claim under Minnesota’s Whistleblower Act but asserted, instead, that his claim arose under common law. Productive Alternatives moved to dismiss for failure to state a legally sufficient claim for relief. The district court granted the motion, determining that the Whistleblower Act had displaced common-law actions for retaliatory discharge. Nelson appeals from the dismissal of his claim.

ISSUES

I. Does the Whistleblower Act displace common-law actions for wrongful discharge for refusal to participate in an unlawful activity?

II. Did Nelson set forth a legally sufficient claim for relief?

ANALYSIS

I

The district court granted Productive Alternatives’ motion to dismiss on the legal determination that the “Whistleblower Act has displaced common law actions for retaliatory discharge.” We review a district court’s decision on a legal issue de novo. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

Minnesota adheres to the general rule that an employer-employee relationship is terminable at the will of either the employer or employee. Skagerberg v. Blandin Paper Co., 197 Minn. 291, 294-95, 266 N.W. 872, 873-74 (1936). In 1986 we recognized an exception to the at-will-employment doctrine when an employee proves that a discharge “violates a clear mandate of public policy, either legislatively or judicially recognized.” Phipps v. Clark Oil & Ref. Corp., 396 N.W.2d 588, 592 (Minn.App.1986) (Phipps I). Consistent with this exception, we held that the plaintiff properly stated a cause of action by alleging that he was terminated for refusing to violate the federal Clean Mr Act. Id. at 594. The employer petitioned for review to the Minnesota Supreme Court.

In 1987, while the petition for review was pending, the Minnesota legislature enacted the Whistleblower Act, which prohibits an employer from discharging employees for enumerated public-policy reasons, including refusal to perform an unlawful act. 1987 Minn. Laws ch. 76, § 2; see also Minn.Stat. § 181.932, subd. 1(c) (2004) (providing cause of action when employee is discharged for refusing employer’s order to perform unlawful act). After the legislative enactment of the Whistleblower Act, the supreme court affirmed this court’s holding in Phipps I that the common law protects at-will employees discharged for their refusal to violate a law or regulation. Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 571 (Minn.1987) (Phipps II).

The supreme court held that “an employee may bring an action for -wrongful discharge if that employee is discharged for refusing to participate in an activity that the employee, in good faith, believes violates any state or federal law or rule or regulation adopted pursuant to law.” Id. In preliminary language, before stating its holding, the court observed that, because of the intervening enactment of the Whis-tleblower Act, “we no longer have before us the policy question of whether or not Minnesota should join the three-fifths of the states that now recognize, to some extent, a cause of action for wrongful discharge.” Id. Quoting this statement by the supreme court, some decisions from this court have indicated that the Whistle-blower Act “displaced” common-law claims for wrongful discharge for refusal to violate a law or regulation. See Bolton v. Dep’t of Human Servs., 527 N.W.2d 149, 154 (Minn.App.1995) (“Generally, common law claims for retaliatory discharge have been displaced by the Whistleblower Act.”), rev’d on other grounds, 540 N.W.2d 528 (Minn.1995). A careful reading of the Whistleblower Act, in conjunction with applicable case law, demonstrates that it did not displace the common-law action for wrongful discharge recognized in Phipps I as modified by the supreme court in Phipps II.

Statutes in derogation of the common law are strictly construed, and the legislation will not “supplant, impair or restrict equity’s normal function as an aid to complete justice.” Rosenberg v. Heritage Renovations, LLC, 685 N.W.2d 320, 327-28 (Minn.2004). Under this principle, common-law remedies remain viable following statutory enactments if the statute does not expressly abrogate the common-law remedy or if the statute expressly disclaims any intent to do so. Compare id. at 328-29 (holding that creation of “override” remedy for terminated real-estate broker, under Minn.Stat. § 82.195 (2002), was intended to be an alternative rather than an abrogation of broker’s equitable “procuring cause” remedy), with Hedged Inv. Partners, L.P. v. Norwest Bank Minn., N.A., 578 N.W.2d 765, 770 (Minn.App.1998) (noting U.C.C.’s commercial exclusivity when foundational assumptions of U.C.C. require displacement of common-law theory), Milbrandt v. Am. Legion Post of Mora, 354 N.W.2d 499, 502 (Minn.App.1984) (recognizing no-fault automobile insurance is intended to displace common-law fault system), and Minn.Stat. § 176.031 (2004) (providing that “liability of an employer prescribed by this chapter is exclusive”).

The Whistleblower Act does not expressly abrogate the common-law action in tort for wrongful discharge for refusal to perform an unlawful act. We must assume that the legislature acted with full knowledge of Phipps I when it enacted the Whistleblower Act. See Minneapolis E. Ry. v. City of Minneapolis, 247 Minn. 413, 418, 77 N.W.2d 425, 428 (1956) (stating that courts presume that legislature acts with full knowledge of existing caselaw). The legislature could have expressly displaced the common-law claim recognized in Phipps I, but it did not. Because the legislature did not prescribe the Whistle-blower Act as providing an exclusive remedy, or otherwise clearly indicate an abrogation of common law, it did not displace the existing common-law action in tort for retaliatory discharge created by Phipps I and refined by Phipps II.

This conclusion conforms to recent opinions of the supreme court, particularly Abraham v. County of Hennepin, 639 N.W.2d 342 (Minn.2002). In Abraham, the supreme court held that an action brought under the Whistleblower Act seeking only money damages is a cause of action at law with an accompanying constitutional right to jury trial. Id. at 354. In reaching this conclusion, the supreme court reasoned that wrongful-discharge claims “sound in tort” and “existed at common law as early as 1861.” Id. at 350, 352. Citing Phipps I, the supreme court explained that retaliatory discharge is a species of wrongful discharge and similarly sounds in tort, thus giving rise to the constitutional right to jury trial. Id. at 352-54. The supreme court’s conclusion that actions brought under the Whistle-blower Act sound in tort and therefore give rise to the right to jury trial is consistent with our wrongful-discharge jurisprudence.

Abraham implicitly recognizes that the supreme court’s preliminary language in Phipps II defers to the primacy of legislative determinations on public policy because the legislature had already made the policy decision to create a statutory cause of action for wrongful discharge for refusal to perform an unlawful act, but this recognition is not a rejection of the common-law cause of action. Id. at 351-52. The court explained its resolution of the question of a common-law action:

Because the employee in Phipps was injured before enactment of the Whistle-blower Act, the Whistleblower Act could not be the basis for his claim, and thus, we had to determine whether he could proceed under the common law. We allowed the employee to pursue his common law cause of action for wrongful discharge, and we agreed that the common law protects those fired for their refusal to violate the law.

Id. at 352 (citing Phipps II, 408 N.W.2d at 571) (citation omitted).

In permitting Mark Phipps to proceed with his common-law action, however, the supreme court, in Phipps II, restated the scope of the action and restricted the definition in Phipps I, which had included violations of both legislative and judicially recognized public policy, to include only refusal to participate in an activity that violates a law or promulgated rule or regulation. Compare Phipps I, 396 N.W.2d at 592 (recognizing common-law claim when employee proves discharge “violates a clear mandate of public policy, either legislatively or judicially recognized”), with Phipps II, 408 N.W.2d at 571 (holding common law protects at-will employees discharged for their refusal to violate a law or regulation).

When the supreme court in Phipps II defined the scope of the common-law action, it adopted the definition used by the legislature in the Whistleblower Act. Compare 1987 Minn. Laws ch. 76, § 2 (providing cause of action when employee “refuses to participate in any activity that the employee, in good faith, believes violates any state or federal law or rule or regulation adopted pursuant to law”), with Phipps II, 408 N.W.2d at 571 (providing common-law cause of action for discharge prior to enactment of Whistleblower Act when discharged for “refusing to participate in an activity that the employee, in good faith, believes violates any state or federal law or rule or regulation adopted pursuant to law”). The supreme court’s adoption of the definition used by the legislature in the Whistleblower Act restated the scope of the common-law action, but it did not eliminate the common-law action.

II

Because we have concluded that the Whistleblower Act did not displace the common-law action for wrongful discharge for refusal to perform an unlawful act, we now address the sufficiency of Nelson’s common-law claim. In reviewing cases involving dismissal for failure to state a claim upon which relief can be granted under Minn. R. Civ. P. 12.02(e), we consider whether the complaint sets forth a le-gaily sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997). Our review accepts the facts alleged in the complaint as true and construes all reasonable inferences in favor of the nonmoving party. Marquette Nat’l Bank v. Norris, 270 N.W.2d 290, 292 (Minn.1978).

Nelson contends that he was discharged in violation of a clear public-policy mandate expressed in two portions of the Minnesota Nonprofit Corporation Act, Minn.Stat. §§ 317A.401, subd. 4, and 317A.411, subd. 1 (2004). This allegation is insufficient to establish a claim for relief under the Phipps II definition of the common-law action, which permits an employee to bring an action for wrongful discharge if that employee is discharged for “refusing to participate in an activity that the employee, in good faith, believes violates any state or federal law or rule or regulation adopted pursuant to law.” Phipps II, 408 N.W.2d at 571. Nelson has not alleged that he was discharged for refusing to participate in an act that he believed violated a state or federal law, rule, or regulation. We therefore affirm the district court’s dismissal of Nelson’s complaint for failure to state a common-law claim upon which relief can be granted.

We recognize that our analysis of the interplay among the Whistleblower Act and Phipps I and Phipps II brings us to the same result that the district court reached in its analysis — dismissal of the complaint. We also recognize that the complexity of the district court’s analytical task was increased by a lack of precision in cases raising similar issues in this court. But it is essential for proper application of the law to analyze accurately the controlling precedent and to state correctly the reasons for our decision. To dismiss for failure to state a cause of action because the common law was “displaced” by the Whistleblower Act would ignore the essential basis for the supreme court’s holding in Phipps II that allowed the claim to go forward even though the injury occurred before the enactment of the Whistleblower Act.

DECISION

Because the legislature did not prescribe the Whistleblower Act as an exclusive remedy, the act did not displace the common-law tort that permits an employee to bring an action for wrongful discharge for refusing to participate in an activity that the employee, in good faith, believes violates any state or federal law or rule or regulation adopted pursuant to law. This common-law action, as defined in Phipps II, is limited to a refusal to participate in an activity that violates a law or promulgated regulation or rule. Nelson has not alleged that he was discharged for failure to participate in an activity that violated a state or federal law or promulgated regulation or rule. Therefore, we affirm the district court’s dismissal of his complaint for failure to state a claim upon which relief can be granted.

Affirmed.