author: GILBERT, Justice.

text:
    Katherine NAVARRE, Respondent, v. SOUTH WASHINGTON COUNTY SCHOOLS, Petitioner, Appellant, Northwest Publications d/b/a/ Pioneer Press, et al., Defendants.
    No. C4-00-2242.
    Supreme Court of Minnesota.
    Oct. 10, 2002.

      Knutson, Flynn, & Deans, Lawrence J. Hayes, Jr., # 42821, Jennifer K. Anderson, # 253789, Mendota Heights, MN, Attorney for Appellant.
    Stephen W. Cooper, # 18788, Kathryn J. Cima, #228059, Minneapolis, MN, Attorney for Respondent.
    Mark A. Anfinson, # 2744, Minneapolis, MN, Attorney for amicus curiae, Minnesota Newspaper Association.
   OPINION

GILBERT, Justice.

Respondent Katherine Navarre brought suit against appellant South Washington County Schools seeking damages for several claims, including multiple violations of the Minnesota Government Data Practices Act (MGDPA). Ultimately, a jury trial was held and respondent received a verdict in her favor in the amount of $520,000. The court of appeals reversed and remanded for a new trial. We are now asked to resolve multiple issues related to the MGDPA claims.

Respondent began her employment with appellant in January 1988 and began working at Hillside Elementary School, one of appellant’s schools, in the fall of 1996 as the sixth-grade communications teacher. During the 1996-1997 school year, appellant received several complaints from teachers, students, and parents regarding respondent’s teaching, her treatment of students, and her ability to control her classroom. Hillside Principal Timothy Bess informed respondent of the concerns expressed by parents and students in a letter dated April 18,1997, specifically telling respondent that parents were concerned about respondent being inconsistent in her communications with them and their children and about one parent’s concern that respondent was not teaching the curriculum. Appellant also commenced an investigation in April 1997 and placed respondent on a paid leave of absence beginning May 15, 1997. On May 19, 1997, Bess sent a letter to all sixth-grade parents advising them that respondent had been placed “on a medical leave for the remainder of this school year.”

On May 28, 1997, Assistant Superintendent Stanley Hooper sent the sixth-grade parents a second letter, indicating that appellant would administer the communications portion of the Iowa Test of Basic Skills to evaluate what their children had learned. This letter also stated:

[P]arents have a * * * concern about knowing whether their children have been successful in the Communications curriculum, and that the stories from children are numerous and sometimes alarming regarding the characteristics of the instructional program they received.

One of the parents faxed this letter to Pioneer Press reporter Theresa Monsour, who then interviewed Hooper on May 29, 1997. In this interview, Hooper provided Monsour with details about the complaints and appellant’s response to these complaints. According to Monsour’s notes, Hooper told her the following:

parents have called hillside, teachers have sat kids down and talked in detail, some said did do some things, we aren’t comfortable that some of what they are talking about isn’t valid, so doing standardized to see what learned.
said parents were calling principal and said getting strong stories about what was going on. one day principal did sub. he asked children more information based on what parents were talking about, he had been aware of some of those issues for while, frequency of calls, some parents were concerned about their children but weren’t attributing it to lack of instruction, others said towards spring of year, problems.
some children described it as social hour, teacher had difficulty in classroom management, from kids point of [view], out of hand, principal, he indicated that may have been the case, he was not seeing that in other classrooms, kids move from room to room, were not having difficulty in other rooms.
⅜ ⅜ ⅜ ⅜
had not had other problems that i know of. nothing where anything formal had been done.
it’s unusual in terms of number of parents calling dr. bess and myself.
i’ve had four calls and others pending, playing [telephone] tag. bess has had more than that.
said district had been working with the teacher, the teacher had been responding to what teacher was, helping her learn better classroom management, earliest calls from parents there were concerns about not learning in classroom. principal worked with teacher to get documentation that teacher had been working with the students, examples of student work, she was providing some information in response to that.
said he didn’t get calls until this spring, first was two weeks ago. doesn’t know how long bess has.
said year started out okay, [classroom] management okay, [fell] -apart with spring.
⅛ $ ‡ ⅝
she was asked for grades, she gave [out] grades, she did give some homework out during the year.

On May 30, 1997, the Pioneer Press published an article with the headline ‘TOO kids who learn ‘nothing’ face summer school.” This article identified respondent by name and discussed the concerns about respondent’s teaching that parents and students had reported to appellant, at times directly quoting Hooper and at other times attributing the source of the information to Hooper. That same day, Superintendent Dan Hoke issued a press release, stating:

I am here today to respond to allegations that 6th graders at Hillside Elementary School did not learn anything this year and that their communications teacher is incompetent.
These allegations are extremely serious and we are continuing our investigation. The allegations are serious enough and substantiated enough that we took the action of suspending the teacher and testing the students.
We first heard concerns about the situation last fall, when parents called to report that their children were having difficulty learning the communications curriculum.
This spring the concerns shifted from concern about student performance to concern about the teacher’s teaching methods. These concerns were investigated by the principal at the time and the investigation continues.

RARE 11 news also played a portion of a videotaped interview with Hoke on May 30,1997, in which he stated:

Hoke: The allegations I’ve heard were that kids weren’t learning.
Question: Which means she wasn’t teaching?
Hoke: Correct. ⅜ * * [The principal] would visit with the teacher. He would observe the teacher and then eventually he started into the classroom to teach for himself. So as he got more and more evidence, he was also concerned. By us admitting there was something wrong by suspending the teacher.

On June 5,1997, Hoke sent a letter to staff stating that appellant had “placed a teacher on paid leave until the end of the school year arising out of student and parent complaints.”

On July 3, 1997, appellant’s human resources manager, Perry Palin, responded by letter to a written request from Mons-our for information about respondent. Pa-lin’s letter included respondent’s name, salary, education, work experience, and the following statement: “[Appellant] received complaints from parents and students alleging concerns involving Ms. Navarre’s classroom management and instructional methods.”

Respondent brought this action in July, 1997, alleging that appellant published untrue and damaging allegations about respondent and seeking damages for: (1) defamation, (2) multiple MGDPA violations, (3) negligent infliction of emotional distress, and (4) intentional infliction of emotional distress. Ultimately, respondent ended her employment with appellant at the beginning of the 1997-1998 school year. Although respondent never amended her complaint to allege constructive discharge or seek wage loss damages for her MGDPA claim, she did argue these claims to the jury.

In April 1999, appellant brought a motion for summary judgment as to respondent’s entire lawsuit. Respondent also filed a motion for summary judgment on her MGDPA claim, alleging that appellant’s statements to the press and parents regarding the substance of the complaints violated the MGDPA. In July 1999, the district court granted appellant’s motion on all counts except the MGDPA claim and partially granted respondent’s motion for summary judgment. Specifically, the court recognized that respondent alleged six violations of the MGDPA: (1) Bess’s May 19, 1997 letter to parents, (2) Hooper’s May 28, 1997 letter to parents, (3) the quotes attributed to Hooper appearing in the May 30, 1997 Pioneer Press article, (4) the other information in the May 30, 1997 Pioneer Press article attributed to Hooper, (5) Hoke’s June 5, 1997 letter to staff, and (6) Palin’s July 3, 1997 letter to Monsour. The court held that Hooper’s May 28 letter, Hooper’s direct quotes in the May 30 article, and Hoke’s June 5 letter did not violate the MGDPA. However, the court held that Bess’s May 19 letter and Palin’s July 3 letter were both MGDPA violations and that there was a factual dispute as to a third alleged violation, which involved the extent of information Hooper in fact supplied to the Pioneer Press. Finally, the court found that there was no evidence that any of the violations were willful.

On June 2, 2000, respondent served a motion in limine requesting the court to exclude as irrelevant all testimony that either stated or implied that respondent’s teaching performance during the 1996-1997 school year was unsatisfactory and also requesting that the court not allow respondent’s medical records to be introduced at trial. In response, appellant argued that evidence of respondent’s performance during the 1996-1997 school year was relevant to counter respondent’s claim for reputation damages by showing that the complaints about respondent were public knowledge prior to any dissemination of data by appellant. In addition, appellant argued that respondent’s medical records were relevant to respondent’s emotional damage claim because her medical records revealed that she was dealing with emotional problems unrelated to appellant’s actions. Appellant also filed its own motion in limine, requesting that various writings and statements that the court had already determined were not violations of the MGDPA be excluded from trial as irrelevant. The court granted both of respondent’s motions and denied appellant’s motion.

The case was tried before a jury. Before opening statements, respondent’s counsel requested the court to instruct the jury at the beginning of the case that the court had ruled on two of the data privacy issues and it would be up to the jury to decide whether a third violation had occurred and to decide damages. The court agreed to give such an instruction but never did so.

Respondent and her father were the only witnesses that testified about respondent’s alleged emotional and loss of reputation damages. Respondent’s father testified that respondent was distraught and upset about the Pioneer Press article and the RARE 11 news coverage. He testified that respondent had never before in her adult life had an emotional reaction like the one she had following the newspaper article and television story about her teaching. He further testified that he encouraged respondent not to go back to teaching elementary school in the area because “her job * * * attractiveness as a candidate would effectively have been destroyed anywhere in the Midwest.” Appellant attempted to cross-examine respondent’s father about whether he was aware of respondent being treated for various emotional problems prior to May 1997 but the court sustained respondent’s objection to this line of questioning.

Respondent testified that her classroom management was never mentioned to her prior to her being told she was being placed on medical leave. She further testified that she heard from over 50 people indicating that they were aware of the Pioneer Press article and television coverage. She testified that the impact of the news media coverage was devastating to both her career and personal life and that the media coverage left her “very sad, very depressed, lonely, [and] isolated.” Respondent did not present any expert testimony pertaining to a medical diagnosis of her condition.

Appellant requested that it be allowed to question respondent about her preexisting mental state but the court denied this request. Appellant also sought to question respondent about the various counts and parties that had been dismissed and have the court instruct the jury about dismissing respondent’s other causes of action and the other defendants from the case. The court denied these requests as well. Later in the trial, appellant sought to call three sixth-grade teachers to testify that respondent did in fact know, about the parent and student complaints prior to her being placed on medical leave, thereby impeaching respondent. The court also denied this request.

At the conclusion of the presentation of evidence, respondent brought a motion requesting that the court revisit whether Hooper’s May 28 letter and Hoke’s June 5 letter violated the MGDPA and to rule on whether the comments in the May 30 Pioneer Press article attributed to Hooper violated the MGDPA. Respondent also asked the court to rule on two other alleged MGDPA violations that respondent had not previously asked the court to rule on: Hoke’s May 30 statement to RARE 11 and Hoke’s May 30 press release. In response, appellant argued that the court should not change its prior rulings as to Hooper’s May 28 letter and Hoke’s June 5 letter and that none of the disclosures violated the MGDPA. The court again found that Hoke’s June 5 letter did not violate the MGDPA but that all of the remaining disclosures, including Hoke’s statement to RARE 11 and his press release, violated the MGDPA.

Appellant moved for dismissal, arguing that respondent could not recover reputation damages under the MGDPA and could not recover emotional damages where respondent’s separate claims of negligent and intentional infliction of emotional distress were dismissed by the court. Appellant also argued that a jury instruction should be given indicating that certain counts and parties had been dismissed from the case. The court implicitly denied all of appellant’s requests, stating that it “noted” the arguments and then moved forward.

At the conclusion of closing arguments, appellant moved for a mistrial, arguing that several arguments made by respondent’s attorney during his closing argument and objected to by appellant were improper. The court denied this motion and instructed the jury that there were a number of statements from 6 different disclosures that the court had found were violations of the MGDPA, specifically identifying each of these statements. These violations included Bess’s May 19, 1997 letter, Hooper’s May 28, 1997 letter, statements made by Hooper to Monsour on May 29, 1997, statements made by Hoke in his press release on May 30, 1997, statements made by Hoke in his interview with RARE 11 on May 30, 1997, and Palin’s July 3, 1997 letter. The jury returned a verdict in favor of respondent for $520,000, awarding $200,000 for loss of reputation, $250,000 for emotional distress, and $70,000 for loss of income or earning capacity. Appellant moved for judgment notwithstanding the verdict or, alternatively, for a new trial or remittitur. The court denied this motion in its entirety and appellant appealed.

The court of appeals reversed and remanded for a new trial. Navarre v. South Washington County Schools, 633 N.W.2d 40, 58 (Minn.App.2001). In doing so, the court of appeals held that some of Hooper’s statements to Monsour were not government data and, therefore, the district court erred by submitting these statements to the jury. Id. at 51-52. The court of appeals also held that only a portion of Hoke’s May 30 statements to RARE 11 violated the MGDPA and that the only other violations were a portion of Hoke’s May 30 press release and Palin’s July 3 letter. Id. at 52-53. The court of appeals further held that the district court abused its discretion by prohibiting appellant from presenting evidence of respondent’s preexisting emotional problems and prior reputation and erred by submitting respondent’s loss of reputation and wage-loss claims to the jury. Id. at 58. For all of these reasons, the court of appeals reversed and remanded for a new trial. Despite the favorable holding, appellant petitioned for further review, arguing that the court of appeals’ decision left several issues still unresolved. Respondent cross-petitioned and we granted both parties’ petitions.

We are asked to consider four issues. First, did the district court err in determining that appellant violated the MGDPA? Second, did the court abuse its discretion by precluding appellant from presenting evidence either of respondent’s preexisting emotional problems or preexisting reputation and/or did the court err by denying appellant’s motion for a directed verdict on respondent’s claims for emotional and loss of reputation damages? Third, did the court err by denying appellant’s motion for JNOV on respondent’s constructive discharge and wage loss claims? Finally, did the court err by denying appellant’s motion for JNOV based on respondent’s counsel’s alleged misconduct, the jury’s alleged misconduct, or the court’s instructions to the jury?

I.

When a district court considers a motion for JNOV it must view the evidence in the light most favorable to the nonmoving party and determine whether the verdict is manifestly against the entire evidence or whether despite the jury’s findings of fact the moving party is entitled to judgment as a matter of law. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.1998). The denial of a motion for JNOV is subject to de novo review. Id. The district court must be affirmed, if, in considering the evidence in the record in the light most favorable to the prevailing party, “there is any competent evidence reasonably tending to sustain the verdict.” Id. (quoting Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn.1984)). In regards to a motion for a new trial, we will not set aside a jury verdict on an appeal from a district court’s denial of a motion for a new trial “unless it is ‘manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict.’ ” Raze v. Mueller, 587 N.W.2d 645, 648 (Minn.1999) (quoting Roemer v. Martin, 440 N.W.2d 122, 124 (Minn.1989)). We must reconcile the special verdict answers in “a reasonable manner consistent with the evidence and its fair inferences.” Id. (quoting Reese v. Henke, 277 Minn. 151, 155, 152 N.W.2d 63, 66 (1967)).

Appellant first argues that, based on the evidence submitted at trial, it was entitled to JNOV because it did not release any private personnel data in violation of the MGDPA. Alternatively, appellant argues that even if any of the statements released did include private personnel data, such release was justified under the MGDPA. The court of appeals held that not all of the statements submitted to the jury constituted MGDPA violations but that some violations were properly found to exist and that appellant was not justified in releasing the data included in these violations. Navarre, 633 N.W.2d at 50.

The Minnesota Government Data Practices Act “regulates the collection, creation, storage, maintenance, dissemination, and access to government data” and “establishes a presumption that government data are public and are accessible by the public for both inspection and copying.” Minn.Stat. § 13.01, subd. 3 (2000). Whether appellant disseminated personnel data in violation of the MGDPA involves our construction of the MGDPA, which is a question of law subject to de novo review. Doe v. Minnesota State Bd. of Med. Exam’rs, 435 N.W.2d 45, 48 (Minn.1989). “[Pjersonnel data are data that identify the employee who is the subject of the data.” Demers v. City of Minneapolis, 468 N.W.2d 71, 73 (Minn.1991). All personnel data not delineated by Minn.Stat. § 13.43, subds. 2 (Supp.2001), 3 (2000), as public data are private data. Id; Minn. Stat. § 13.43, subd. 4 (2000). Public data includes, in part, “the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action.” Minn.Stat. § 13.43, subd. 2(a)(4). “[T]he final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action” are also public data, with a final disposition occurring once there is a final decision about the disciplinary action. Id., subd. 2(a)(5), 2(b).

Respondent argues that these provisions of the MGDPA mean that when someone lodges a complaint against a public employee, the employer cannot disclose the specific allegations and reasons for the allegations until final disposition of a disciplinary action because such information is private data. The MGDPA establishes a presumption that government data are public. Minn.Stat. § 13.01, subd. 3. However, the legislature has also carved out exceptions to public data for certain personnel data. Section 13.43, subdivision 4 provides that all other personnel data not specified as public data in section 13.43, subdivisions 2 to 3, is private data on individuals. Minn.Stat. § 13.43, subd. 4. Based on subdivision 2, 3, and 4’s explicit language and pending final disposition of any disciplinary action as provided in subdivision 5, we hold that section 13.43, subdivision 2(a)(4), only authorizes the disclosure of the existence and status of complaints and nothing more. The type of complaint is separate and distinct from its existence and status. Had the legislature desired the type of complaint to be disclosed before final disposition of any disciplinary action, it could have easily so provided, • but it did not.

Thus, a government entity’s public comments before final disposition of any disciplinary action are limited to the possible existence of a complaint or complaints or charges against a government employee. Any disclosure by the government entity during the investigation that describes any quality or characteristic of the complaint, whether general or specific, goes beyond the mere existence of the complaint, and therefore violates section 13.43, subdivision 2(a)(4). Here, there is no dispute that the alleged violations of the MGDPA occurred prior to a final disposition of a disciplinary action. Therefore, we must decide whether the data disclosed by appellant was public data even though it was disclosed prior to a final disciplinary action.

A. Bess’s May 19, 1997 letter to all sixth-grade parents

The district court granted summary judgment for respondent as to this letter, holding that while use of the term “paid leave” would not violate the MGDPA, Bess’s letter violated the MGDPA because the word medical was used in conjunction with the word leave. The court of appeals held that this was err. Navarre, 633 N.W.2d at 51.

The MGDPA classifies as public:

[D]ata that are only used to account for employee’s work time for payroll purposes, except to the extent that the release of time sheet data would reveal the employee’s reasons for the use of sick or other medical leave * * *.

MinmStat. § 13.43, subd. 2(a)(8). Respondent argues that this section did not permit appellant to reveal that respondent was on “medical” leave because Bess was not responding to questions relating to respondent’s payroll status. However, the statute classifies as public “data * * * used to account for employee’s work time for payroll purposes” and only prohibits revealing “the employee’s reasons for the use of sick or other medical leave.” Id. (emphasis added). There is no need to except the reasons for a medical leave from that which is public unless the fact that the employee is on a medical leave is public in the first place.

While respondent argues that she was not on a “real” medical leave, the propriety of the decision to place respondent on a medical leave is not before us and is irrelevant as to whether appellant violated the MGDPA by disclosing that it had in fact placed respondent on a paid medical leave. In fact, respondent requested the medical leave be extended through September 29, 1997. We hold that this information is encompassed within the statutory “comparable data * * * used to account for employee’s work time for payroll purposes,” which here was a paid leave — that is an absence from work coupled with an expenditure of public funds for payroll purposes. Minn.Stat. § 13.43, subd. 2(a)(8). Accordingly, we affirm the court of appeals and hold that the district court erred by instructing the jury that Bess’s May 19,1997 letter violated the MGDPA.

B. Hooper’s May 28, 1997 letter to all sixth-grade parents

The district court initially held this letter did not violate the MGDPA in its summary judgment order. However, after all of the evidence had been submitted, which included the introduction of evidence related to Hooper’s May 28, 1997 letter over appellant’s objections, the court reversed its previous ruling and held that the letter violated the MGDPA by stating “the stories from children are numerous and sometimes alarming regarding the characteristics of the instructional program they received.” The court of appeals held that this was err, reasoning that the letter did not identify respondent by name and any implicit reference to her was incidental. Navarre, 633 N.W.2d at 51.

Under the MGDPA, “the existence and status of any complaints or charges against the employee” is public personnel data. Minn.Stat. § 13.43, subd. 2(a)(4) (emphasis added). The fact that “any complaints or charges” is plural indicates that the number of complaints or charges is public data. Therefore, disclosing the fact that the stories were “numerous” did not violate the MGDPA.

We must next consider whether the letter’s indication that these stories were “sometimes alarming” discloses more than “the existence and status of any complaints.” “Personnel data” within the meaning of the MGDPA is defined as “data on individuals * * *,” which in turn means:

[A]ll government data in which any individual is or can be identified as the subject of that data, unless the appearance of the name or other identifying data can be clearly demonstrated to be only incidental to the data * * *.

Minn.Stat. §§ 13.43, subd. 1 (2000), 13.02, subd. 5 (2000). See also Demers, 468 N.W.2d 71, 73 (Minn.1991) (stating that “personnel data are data that identify the employee who is the subject of the data”).

The court of appeals concluded that respondent was not the subject of and was not identified in Hooper’s letter and any implicit reference to her was incidental to the subject of the letter. Therefore, the court held that information in the letter was not personnel data. Navarre, 633 N.W.2d at 51. However, the court failed to recognize that in the beginning of Hooper’s May 28, 1997 letter, immediately after indicating that Hillside’s sixth-grade staff and principal had met with others to discuss the sixth-grade communications program, Hooper wrote: “We recognize that parents have a * * * concern about * * * the Communications curriculum,” and then wrote the sentence at issue. This letter clearly indicated that it pertained to the sixth-grade communications curriculum. Respondent was the sixth-grade communications teacher. Therefore, respondent was readily identifiable as the subject of the “sometimes alarming” stories regarding the instructional program the children received. The use of the phrase “sometimes alarming” in describing the stories goes beyond disclosing the existence and status of complaints by commenting on the nature of the complaints still under investigation and was disseminated prior to any final disposition of disciplinary action. Accordingly, we reverse the court of appeals’ holding in part and hold that the district court did not err by instructing the jury that the public characterization of the complaints as “sometimes alarming” violated the MGDPA.

C. Hooper’s May 29, 1997 statements to Monsour

At summary judgment, the district court held that there was a factual question as to which statements attributed to Hooper in Monsour’s notes and in the Pioneer Press article were actually made by Hooper. At trial, Hooper admitted that he told Mons-our all of the information contained in her notes and, based on this admission, the court held that the majority of these statements violated the MGDPA. The court of appeals held that four of Hooper’s statements were erroneously submitted to the jury because they were not recorded in physical form or derived from recorded information and were therefore not government data. Navarre, 633 N.W.2d at 52.

The definition of “personnel data” includes “data on individuals,” as defined by Minn.Stat. § 13.02, subd. 5. Certain personnel data is public. See Minn.Stat. § 13.43, subd. 2. The definition of “data on individuals” includes “government data,” which is defined as “all data collected, created, received, maintained, or disseminated * * * regardless of its physical form, storage media or conditions of use.” Minn.Stat. § 13.02, subds. 5, 7 (2000) (emphasis added). The legislature also provides that some personnel data that is private may become public for a number of reasons, including the final disposition of disciplinary action and data documenting that action. See Minn.Stat. § 13.43, subd. 2(a)(5).

While we have not yet interpreted the statutory definition of “government data,” the court of appeals has held that to constitute “government data,” the data must be recorded in some physical form. Deli v. Hasselmo, 542 N.W.2d 649, 653-54 (Minn.App.), review denied (Minn. Apr. 16, 1996). The court of appeals has also held that unrecorded mental impressions are not “government data.” Keezer v. Spickard, 493 N.W.2d 614, 617-18 (Minn.App.), review denied (Minn. Feb. 12, 1993). These cases are in line with the section of the MGDPA explaining its scope, which states that the MGDPA “establishes a presumption that government data are public and are accessible by the public for both inspection and copying * * ⅜.” Minn.Stat. § 13.01, subd. 3. Because an individual’s mental impressions cannot be inspected or copied, it follows that they do not constitute government data and therefore are not personnel data. Accordingly, disclosing such mental impressions to the public does not violate the MGDPA. However, pending final disposition of any disciplinary action, the disclosure of mental impressions derived directly from personnel data recorded in some physical form or storage media, or derived directly from complaints or charges against the employee, is private data on individuals.

The court of appeals concluded that the majority of Hooper’s statements were either recorded in or derived from Bess’s April 18, 1997 letter to respondent and Hooper’s May 28, 1997 letter to sixth-grade parents. Navarre, 633 N.W.2d at 52. As discussed above, Hooper’s letter disclosed private personnel data insofar as it indicated the stories from children were “sometimes alarming.” Bess’s letter also included private personnel data in that it included information about the specific facts surrounding the complaints. A close reading of Hooper’s statements to Mons-our reveals that the court of appeals correctly concluded that a majority of his statements related to the data included in these two letters. Most of Hooper’s statements based on the data in Bess’s April 18, 1997 letter and Hooper’s May 28, 1997 letter disclosed more than the mere existence or status of the .complaints against respondent by describing the specific facts surrounding the complaints from parents and students rather than merely disclosing the type of complaints in a general manner. At the same time, one of the statements the district court found to violate the MGDPA, a finding affirmed by the court of appeals, only disclosed that appellant had received multiple calls about respondent. Hooper told Monsour, “I’ve had four calls and others pending. Playing telephone tag. Bess has had more than that.” As discussed above, the number of complaints is public data under Minn.Stat. § 13.43, subd. 2(a)(4). Therefore, we reverse the court of appeals as to this statement about the number of calls and hold that it did not violate the MGDPA.

We now turn to Hooper’s four statements that the court of appeals held were not government data because they were not derived directly from any data collected, created, received, maintained or disseminated in a physical form. These statements were: (1) “[respondent] had not had other problems that I know of. Nothing where anything formal had been done.” (2) “[Bess] was not seeing that in other classrooms. Kids move from room to room. We’re not having difficulty in other rooms.” and (3) “district had been working with the teacher. The teacher had been responding to what teacher was, helping her learn better classroom management.” While it is true, as the court of appeals held that there is no evidence in the record indicating that these three statements were derived directly from data maintained in physical form or storage media and were Hooper’s personal commentary, the statements do describe the nature and character of the complaints or charges during the investigation and review and before final disposition of any disciplinary action. The discussion of other problems, lack of formal action, comparative data and working with the teacher are investigatory and dispositional in nature and stem directly from the complaints or charges. Accordingly, we reverse the court of appeals and hold that this was private personnel data, prematurely released and in violation of the MGDPA.

The fourth statement that the court of appeals held did not violate the MGDPA was Hooper’s statement that, “it’s unusual in terms of number of parents calling Dr. Bess and myself.” This statement was derived directly from the personnel data contained in Bess’s April 18, 1997 letter (stating “This letter is to inform you of concerns expressed by parents”) and Hooper’s May 28, 1997 letter (stating ‘We recognize that parents have a legitimate concern about * * * the Communications curriculum”). This statement went beyond “the existence and status of any complaints” by commenting that the number of complaints was “unusual.” Therefore, we reverse the court of appeals as to this statement and hold that it violated the MGDPA.

D. Hoke’s May SO, 1997 press release comments

Hoke’s statements in his press release were not presented by respondent in her response to appellant’s summary judgment motion or as part of respondent’s own summary judgment motion. Instead, these statements were introduced during the trial, where appellant did not object to a copy of the press release being received as evidence. After the evidence portion of the trial was complete, the district court concluded that three different comments in Hoke’s press release violated the MGDPA. These comments were: (1) “The allegations are serious enough and substantiated enough that we took the action of suspending the teacher and testing the students;” (2) “We first heard concerns about the situation last fall, when parents called to report that their children were having difficulty learning the communications curriculum. We immediately followed up by investigating these concerns;” and (3) “This spring the concerns shifted from concern about student performance to concern about the teacher’s teaching methods. These concerns were investigated by the principal at the time and the investigation continues.” The court of appeals held that the district court correctly concluded that Hoke’s first statement and the first sentence of his third statement violated the MGDPA, implicitly holding that Hoke’s second statement and the second sentence of his third statement did not violate the MGDPA. Navarre, 633 N.W.2d at 52.

Appellant offers no argument as to why Hoke’s statement did not violate the MGDPA. Instead, appellant argues that the district court should not have ruled on these statements because they were not brought at summary judgment. Respondent argues that it did not seek summary judgment on Hoke’s press release because appellant disputed that it had made releases to the media, making alleged violations arising out of press releases not appropriate for summary judgment because of disputed factual issues. As respondent points out, in appellant’s answers to respondent’s interrogatories, appellant claimed that it was unaware of any discussions between its employees and members of the media other than “requests that members of the media leave the school premises and statements declining to engage in interviews.” This factual dispute adequately explains why Hoke’s May 30, 1997 press release was appropriately not a part of respondent’s summary judgment motion.

Turning to the content of the press release, it is readily apparent that portions of Hoke’s press release violated the MGDPA. Hoke’s first statement describes the severity of the complaints, whether they had been substantiated, the action taken against respondent during the investigation, and the basis for such action. The first sentence of Hoke’s second statement discloses the nature of the parents’ complaints, concerns regarding their children’s difficulty in learning the communications curriculum. The first sentence of Hoke’s third statement goes on to describe the specific nature of appellant’s concerns by expression of its opinion about the shift in concerns rather than merely identifying the existence and status of either the parents’ or students’ concerns. All of these statements went beyond identifying the existence and status of the complaints and were made before there was a final disposition of any disciplinary action. Therefore, these statements disclosed personnel data on respondent that does not fit any of the public data exceptions under Minn. Stat. § 13.43, subd. 2.

As for the second sentence in Hoke’s second statement, it is public personnel data because it goes to the status of the complaints; the complaints were investigated. See id., subd. 2(a)(4). Similarly, the second sentence of Hoke’s third statement also disclosed the status of the complaints; the complaints were investigated at the time and the investigation continues. Accordingly, these two statements are public personnel data and do not violate the MGDPA.

E. Hoke’s May 30, 1997 statements to RARE 11 television

Hoke’s statements to RARE 11 also were not presented as part of respondent’s summary judgment motion but were introduced during the trial. Appellant objected to the introduction of the news video transcripts as well as the actual video of the news reports both before trial and during the trial, arguing that they were irrelevant because they had nothing to do with the specific data practices issues before the court. The district court noted these objections but ruled that the news video would be allowed to “paint a picture” for the jury of what happened so that the jury could sort out what damages were attributable to appellant’s actions. At the close of evidence, the district court concluded that two statements made during Hoke’s interview violated the MGDPA. The court of appeals held that the first statement about respondent not teaching and her kids not learning violated the MGDPA but that only a portion of the second statement about Bess observing respondent, suspending respondent, and eventually teaching respondent’s class himself violated the MGDPA. Navarre, 633 N.W.2d at 52-53.

As with Hoke’s May 30, 1997 press release, appellant offers no argument as to why the statements made to RARE 11 did not violate the MGDPA. Rather, appellant’s only argument is that this issue was irrelevant because it was not part of the summary judgment motion. Respondent again points out that it did not seek summary judgment for the statements Hoke made to RARE 11 because appellant had disputed it made any disclosures to the media.

Hoke’s first statement was “the allegations I’ve heard were that kids weren’t learning.” He then answered a question indicating that he believed respondent was not teaching. The court of appeals held that these statements were derived from Bess’s April 18 letter or Hoke’s May 30 press release and constituted government data. Navarre, 633 N.W.2d at 52. We agree and hold that this statement violated the MGDPA by disclosing more than the existence and status of any complaints against respondent by commenting on the specific facts surrounding the complaints and disclosing Hoke’s own conclusion about the validity of the complaints before a final disposition of a disciplinary action.

Hoke’s second statement was “[Bess] would visit with the teacher. He would observe the teacher, and then eventually he started into the classroom to teach for himself. So as he got more and more evidence he was also concerned. By us admitting there was something wrong by suspending the teacher.” The court of appeals held that the third sentence of this statement again violated the MGDPA by disclosing that a determination had been made that there was something wrong and that the teacher had been suspended before there had been a final disposition of a disciplinary action. We agree and affirm the court of appeals that the making of this statement violated the MGDPA. However, the court of appeals found that the first two sentences of Hoke’s second statement about visits to respondent’s classroom and the resulting increased concerns about respondent’s teaching were not based on a physically recorded document or data created or maintained in any physical form. As such, the court of appeals held that these statements did not constitute government data and its release did not violate the MGDPA. Navarre, 633 N.W.2d at 52-53. While there appears to be no evidence in the record indicating that these two sentences were derived from recorded data, they do appear to arise directly from the investigation of the complaint or charges. Accordingly, we reverse the court of appeals and hold that these two statements are private personnel data prematurely released before final disposition and are in violation of the MGDPA.

F. Palin’s July 3, 1997 letter to Monsour

This letter sent to Pioneer Press reporter Teresa Monsour by appellant’s human resources manager was the second violation the district court found to exist on respondent’s summary judgment motion. Specifically, the district court found that Palin’s statement that appellant had “received complaints from parents and students alleging concerns involving Ms. Navarre’s classroom management and instructional methods” was a violation of the MGDPA. Respondent argues that this statement disclosed more than the existence and status of complaints. The court of appeals agreed. Navarre, 633 N.W.2d at 53.

The first portion of Palin’s statement disclosed that appellant had received complaints from parents and students. This information was public data as defined under Minn.Stat. § 13.43, subd. 2(a)(4), because it simply disclosed the existence of complaints and the identity of the complainants in a general manner. See Dem-ers, 468 N.W.2d 71, 73 (Minn.1991) (stating “personnel data are data that identify the employee who is the subject of the data”). However, Palin’s statement that the complaints involved “Ms. Navarre’s classroom management and instructional methods” goes beyond the scope of the public data exception for existence and status, by describing the type of complaint. Therefore, we affirm the court of appeals.

II.

We next consider appellant’s argument that it was justified in releasing all of the personnel data at issue to dispel widespread rumor and unrest. Under the plain meaning of the MGDPA, data collected by political subdivisions “as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action ” are generally classified as “protected nonpublic” or “confidential.” Minn.Stat. § 13.39, subd. 2(a) (2000) (emphasis added). As defined by the MGDPA, the term ‘pending civil legal action’ includes but is not limited to judicial, administrative or arbitration proceedings.” Id., subd. 1 (2000). The chief attorney acting for the political subdivision is charged with determining whether a civil legal action is pending. Id. Section 13.39 contains an exception authorizing political subdivisions to make such protected nonpublic or confidential data accessible if it determines that “the access will * * * dispel widespread rumor or unrest.” Id., subd. 2(a).

Here, there is no evidence that the chief attorney for appellant was ever consulted about a civil legal action or that the data disclosed by appellant was collected as part of an active investigation undertaken for the purpose of commencing or defending a pending civil legal action. Therefore, the. exception found in section 13.39, subdivision 2(a), does not apply and appellant’s argument that it was justified in releasing any personnel data because of this exception is without merit.

III.

We next consider whether the district court abused its discretion by precluding appellant from presenting evidence of respondent’s alleged preexisting emotional problems and reputation and/or erred by denying appellant’s motion for a directed verdict on respondent’s claim for damages for emotional distress and loss of reputation.

A. Emotional harm

Citing Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1272 (8th Cir. 1981), the court of appeals concluded: “In cases involving violation of a statutory right, emotional-distress damages are recoverable absent evidence of verifiable physical injury or severe emotional distress.” Navarre, 633 N.W.2d at 54. Williams involved a racial discrimination claim under Title VII and the Eighth Circuit held that damages are to be presumed where there is an infringement of a substantive constitutional right, thereby not requiring medical testimony. Williams, 660 F.2d at 1272. Therefore, the reason for not requiring medical testimony in Williams was not because the damages being sought were for a statutory violation but because the damages were for the violation of a substantive constitutional right, codified by the Civil Rights Act of 1964. No such constitutional right is at issue in this case. Accordingly, we find Williams to be neither controlling nor helpful in this case.

The court of appeals also cited to Gill-son v. State Dept, of Natural Res., 492 N.W.2d 885, 842 (Minn.App.), review denied (Minn. Jan. 28, 1993), and concluded that emotional damages may be awarded based solely on subjective testimony and that a plaintiff need not show that the pain and suffering was severe. Gillson is also distinguishable from this case because the damages sought in Gillson were for mental anguish under the Minnesota Human Rights Act, which, like Title VII, relates to discriminatory conduct similar to that discussed in Williams. Gillson, 492 N.W.2d at 841.

Nevertheless, we recognize that an entity that violates any provision of the MGDPA “is liable to a person * * * who suffers any damage as a result of the violation.” Minn.Stat. § 13.08, subd. 1 (2000) (emphasis added). We believe this broad language indicates that a plaintiff can recover damages for emotional harm under the MGDPA. However, a plaintiff must still satisfy the standard of proof necessary to recover such damages for emotional harm. Generally,

[w]e have not been anxious to expand the availability of damages for emotional distress. This reluctance has arisen from the concern that claims of mental anguish may be speculative and so likely to lead to fictitious allegations that there is a potential for abuse of the judicial process. * * ⅜ Thus, we have been careful to limit the availability of such damages to “those plaintiffs who prove that emotional injury occurred under circumstances tending to guarantee its genuineness.”

Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557, 560 (Minn. 1996) (quoting Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 437-38 (Minn. 1983)).

Here, respondent failed to produce any verifiable medical or psychological evidence to support her claim but did introduce evidence indicating that appellant’s disclosure of information made her extremely upset and caused her to be afraid to go out in public. While this evidence was conclusory and not substantiated by any medical testimony, we affirm the court of appeals and hold that the evidence was sufficient to allow respondent’s emotional damage claim to be submitted to the jury. However, the district court did not allow any impeachment of this testimony by cross-examination or the introduction of the respondent’s prior medical and psychological history. The district court committed error in this regard. We hold that where a plaintiff seeks emotional damages under the MGDPA and puts her emotional state at issue, the defendant should be allowed to introduce probative evidence of the plaintiffs preexisting condition, treatment and prognosis, including expert testimony and/or medical records, that is relevant to the plaintiffs claim for emotional damages. We agree with the court of appeals that it may have been within the district court’s discretion to deny an independent medical examination but that the denial appears to have been based in part on respondent’s assertion that her existing medical records adequately documented her emotional condition. Navarre, 633 N.W.2d at 55. However, these records were not received into evidence, although offered. Accordingly, we affirm the court of appeals and hold that the district court abused its discretion by not allowing appellant to introduce evidence related to respondent’s preexisting emotional problems.

B. Loss of reputation

Appellant argues that respondent should not have been permitted to submit her loss of reputation claim to the jury because her defamation claim had already been dismissed, making it improper to submit the same claim to the jury for an award of damages disguised as a different cause of action. Alternatively, appellant argues that it should have been allowed to present evidence of respondent’s reputation prior to the MGDPA violations. The court of appeals held that the evidence was insufficient to allow respondent’s loss of reputation claim to go to the jury and that appellant should have been allowed to present evidence of respondent’s reputation prior to the MGDPA violations. Navarre, 633 N.W.2d at 55. In doing so, the court implicitly recognized that respondent could ask for loss of reputation damages under the MGDPA even though her defamation action had been dismissed. We have never considered whether loss of reputation damages are recoverable under the MGDPA. The MGDPA does allow recovery for any damages sustained and the fact that defamation actions also permit a plaintiff to recover for loss of reputation does not preclude such a claim under the MGDPA so long as there is not a double recovery. See Kohn v. City of Minneapolis Fire Dep’t, 583 N.W.2d 7, 15 (Minn.App.), review denied (Minn. Oct. 20, 1998) (reversing damages award but allowing loss of reputation claim in MHRA action).

While respondent could seek loss of reputation damages, the record contains very little evidence to support such a claim. Respondent testified over hearsay objections that she heard from over 50 people who indicated they were “aware” of the media coverage. She did not testify as to what these people told her and none of these people were called to testify. Respondent’s father testified that virtually everyone respondent knew mentioned the Pioneer Press article and that he told respondent her attractiveness as a teacher had been destroyed by the media coverage. These conclusory and unsubstantiated statements by respondent and her father are speculative at best and insufficient to support a claim for loss of reputation. See Kohn, 583 N.W.2d at 15. Therefore, while respondent could have recovered loss of reputation damages even though her defamation action had been dismissed, the evidence presented was wholly insufficient and speculative. We affirm the court of appeals and hold that the district court abused its discretion in submitting respondent’s loss of reputation claim to the jury.

IV.

Appellant next argues that respondent’s claim for lost wages was barred by her failure to pursue arbitration and/or her failure to proceed by writ of certiorari. The court of appeals disagreed, holding that respondent’s claim for lost wages was not barred by her failure to pursue arbitration because she was not seeking to recover lost wages under her employment contract. Nonetheless, the court of appeals held that the district court erred as a matter of law by submitting respondent’s wage loss claim to the jury. Navarre, 633 N.W.2d at 57.

Appellant argues that all matters related to a teacher’s employment (including termination issues) are strictly reviewed only by writ of certiorari. However, neither of the cases cited by appellant involved a constructive discharge claim related to MGDPA violations. See Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 673-74 (Minn.1990) (involving the appeal of a school board decision not to reinstate a teacher); Dietz v. Dodge Co., 487 N.W.2d 237, 239 (Minn.1992) (involving the appeal of the county’s decision to terminate nursing home employee). Respondent’s claim differs from those in Dokmo and Dietz because her complaints were not related to the employment contract she had with appellant. Rather, she was seeking to recover lost wages for her alleged constructive discharge that resulted from alleged violations of the MGDPA. Accordingly, we affirm the court of appeals and hold that respondent’s lost wages claim was not automatically barred by her failure to pursue arbitration.

Respondent further sought damages for lost wages based on a theory of constructive discharge. “A constructive discharge occurs when an employee resigns in order to escape intolerable working conditions caused by illegal discrimination.” Cont’l Can Co., Inc. v. State, 231 N.W.2d 241, 251 (Minn.1980). “The intolerable working conditions must have been created by the employer ‘with the intention of forcing the employee to quit.’ ” Pribil v. Archdiocese of St. Paul and Minneapolis, 533 N.W.2d 410, 412 (quoting Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981)); see also Neid v. Tassie’s Bakery, 219 Minn. 272, 274, 17 N.W.2d 357, 358 (1945) (holding that “[a] discharge presumptively means that the employer no longer needs or desires the employee’s services”).

Here, respondent did not plead constructive discharge or allege that appellant created intolerable working conditions in her complaint. The court of appeals held that even if respondent had properly pleaded constructive discharge, appellant’s violations of the MGDPA are inadequate as a matter of law to establish constructive discharge. Navarre, 633 N.W.2d at 57. The record supports this holding. There is no evidence that appellant intentionally tried to force respondent to resign, or that it acted with the intention of creating an intolerable working environment for respondent. Instead, the record indicates that appellant offered respondent a teaching position at a school with a principal respondent was familiar with and that appellant was attempting to work with, rather than against, respondent in assuring the next school year was successful. Based on these facts, we affirm the court of appeals and hold that there is no competent evidence tending to support the jury’s verdict as to constructive discharge and JNOV for appellant should have been granted.

V.

Finally, appellant argues that it was entitled to JNOV either because of multiple incidences of misconduct by respondent’s attorney during closing argument, jury misconduct, or erroneous jury instructions. We have recognized that “judicial restraint bids us to refrain from deciding any issue not essential to the disposition of the particular controversy before us.” Lipka v. Minnesota Sch. Employees Ass’n, Local 1980, 550 N.W.2d 618, 622 (Minn.1996). Therefore, we need not decide these issues if they are not disposi-tive to our decision.

Even though there may be some competent evidence reasonably tending to sustain portions of the verdict in this case, the numerous errors committed by the district court mandate a new trial in the interest of justice. Therefore, we need not consider appellant’s claims of attorney and jury misconduct.

Affirmed in part, reversed in part, and remanded for a new trial.

MEYER, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

HANSON, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . The letter sent to respondent stated, "you are hereby placed on a temporary suspension and leave of absence pursuant to [Minn.Stat. § 125.12, subd. 7]." This section has since been renumbered but the language remains the same:
      Suspension and leave of absence for health reasons. Affliction with active tuberculosis or other communicable disease, mental illness, drug or alcoholic addiction, or other serious incapacity shall be grounds for temporary suspension and leave of absence while the teacher is suffering from such disability. Unless the teacher consents, such action [shall] be taken only upon evidence that suspension is required from a physician who has examined the teacher.
      Minn.Stat. § 122A.40, subd. 12 (2000). Appellant concedes that respondent was not in fact afflicted with any of these illnesses or disabilities when she was placed on medical leave but that determination was not challenged.

      . The complaint also named Northwest Publications d/b/a/ Pioneer Press, Timothy Bess, Dan Hoke, Jim Gelbmann, and Stan Hooper as defendants. By order dated July 29, 1999, the district court ordered summary judgment for the Pioneer Press on all counts and dismissed all of the other individual defendants from the lawsuit. Respondent never appealed the district court’s summary judgment order as to any of these defendants.

      . On August 21, 1997, appellant sent respondent a letter assigning her to a teaching position at Woodbury Elementary School, where respondent had worked before and had a good relationship with the principal. Appellant also sent respondent a "plan of assistance” designed to correct problems appellant believed to exist based on its investigation of the complaints during the 1996-1997 school year. Respondent did not return to work and instead requested a medical leave through September 29, 1997. Respondent also filed a grievance around that time. Appellant denied the grievance. Respondent did not pursue arbitration but did proceed with her lawsuit.

      . According to the American Heritage Dictionary, the word "type” means "kind” or "category.” American Heritage Dictionary College Edition, 1309 (2d ed.1982). The word "status” means "[a] stage of progress or development.” Id. at 1191. The word "existence” means "occurrence” or "specific presence.” Id. at 475. Clearly, the word "type” is not synonymous with either the word "existence” or the word "status.”

      . The Minnesota Commissioner of Administration, who is statutorily authorized under Minn.Stat. § 13.072 to issue advisory opinions regarding the MGDPA, has concluded that "the fact that an employee is on administrative leave for medical reasons” is public data. Op. Minn. Dept. Admin. No. 99-019 (July 7, 1999). While not binding authority, this persuasive authority supports our holding.


source: Caselaw Access Project

author: . PER CURIAM.

license: Public Domain

text:
    Russ LUNDQUIST, Petitioner, v. CaroL LEONARD, as County Auditor of Dakota County, Minnesota, Respondent, Mary Kiffmeyer, Minnesota Secretary of State, Respondent, Margaret J. Tilley, Intervenor.
    No. C9-02-1351.
    Supreme Court of Minnesota.
    Oct. 17, 2002.

      Matthew W. Haapoja, Trimble & Associates, Ltd., Minneapolis, MN, for Petitioner.
    James C. Backstrom, Dakota County Attorney, Karen A. Schaffer, Assistant County Attorney, Hastings, MN, for Respondents.
   OPINION

. PER CURIAM.

Petitioner Russ Lundquist filed a petition under Minn.Stat. § 204B.44 (2000) alleging a wrongful act or omission by the respondent county auditor in her placement of candidate Margaret Tilley’s name on the ballot for the 2002 election. The petition was referred to a referee to take and receive evidence and make findings of fact relative to petitioner’s claim that the candidate will not have resided in Legislative District 38A for six months immediately preceding the general election as required by Minn. Const, art. IV, § 6. The referee found that Tilley established residency in District 38A. This opinion confirms the order filed on August 28, 2002, denying the petition.

Petitioner is an eligible voter and elector in Legislative District 38A. He claimed in his petition that Tilley was required to live in District 38A from and after May 5, 2002, to establish residence as required by the Minnesota Constitution. Petitioner claimed Tilley did not reside within District 38A at 1470 Englert Road in Eagan, Minnesota, as she represented in her affidavit of candidacy filed with the county auditor, but at 1055 Wescott Road in Ea-gan, which is not in the district. In support of the petition, petitioner attached a property tax record indicating that Tilley claimed the residential homestead classification for 1055 Wescott Road, outside the district. Petitioner also submitted a copy of a videotape of a June 17, 2002, local cable access television show, in which Til-ley stated, “If I win, I will move.”

We issued an order requiring the respondent county auditor, the secretary of state, and Tilley to respond to the petition. Tilley denied the allegations in the petition, moved to dismiss the petition on jurisdictional grounds, and moved to dismiss the order to show cause on several other bases. We deferred ruling on the motions and appointed the Honorable Edward Toussaint, Jr., to serve as referee in the matter to take and receive all evidence and make findings of fact. See Parsons v. Hickey, 294 Minn. 543, 544, 201 N.W.2d 739, 740 (1972); Moe v. Alsop, 288 Minn. 323, 325, 180 N.W.2d 255, 257 (1970).

The referee found that Tilley owns property at 1055 Wescott Road in Eagan, outside District 38A, and had lived at this address for 29 years prior to May 5, 2002. Tilley’s college-aged daughter lived there in the summer of 2002. Tilley runs her campaign out of this address, which contained some of her furnishings during the relevant time period. However, Tilley began paying monthly rent of $350 on May 5, 2002, for two bedrooms at 3830 Alder Lane, Eagan, located in District 38A, to establish residency there. Tilley purchased renter’s insurance to cover the property, and she and her 17-year-old daughter stayed there about six nights per week in May.

Tilley notified the Campaign Finance and Public Disclosure Board of her new address and submitted a change-of-address form to the post office. On May 9 or 12, 2002, Tilley applied for a new driver’s license with the Alder Lane address.

The referee also found that, on July 1, 2002, Tilley entered into a rental agreement for a different residence, at 1470 Englert Road in Eagan, which is located in District 38A. Her rental agreement requires her to pay $200 monthly rent and all Utilities, maintain the lawn, plow the snow, and repaint a kitchen wall. Tilley again submitted a change-of-address form to the post office. Tilley used the Englert Road address when she filed for office with the county auditor. She acknowledges that, since May 1, 2002, she has spent a few nights at the Wescott property outside the district.

Based on all the evidence, the referee found that Tilley had done all that was reasonably possible to establish residency in District 38A and in fact established such residency.

I.

We first address Tilley’s motion to dismiss the petition on the basis that this court lacks jurisdiction over the matter. Tilley argues that the petition challenging her residency should have been filed in the district court rather than this court because District 38A is entirely within Dakota County. The jurisdiction of this court is set forth in Minn.Stat. § 204B.44 (2000), which provides that a petition seeking the correction of an “error or omission” in a ballot

shall be filed with any judge of the supreme court in the case of an election for state or federal office or any judge of the district court in that county in the case of an election for county, municipal, or school district office.

On its face, this provision indicates that jurisdiction is proper in this court for any state office. However, Tilley asserts that we have interpreted the previous version of this statute, which Tilley claims is not materially different, to indicate that a petition challenging a ballot for a legislative seat in a district situated entirely in one county must be filed in district court. She gleans this argument from Parsons, 294 Minn, at 545, 201 N.W.2d at 741.

We noted in Parsons that section 203.38, subdivision 1 (1971), the predecessor of section 204B.44, provided that a challenge to the ballot in a “county election” was to be commenced in district court, whereas a “state election” ballot challenge was to be brought in this court. Parsons, 294 Minn, at 545, 201 N.W.2d at 741. We held that in section 203.38 proceedings “involving districts extending into more than one county but less than the whole state and in all proceedings involving * * * district court [elections], whether the boundaries of the district are coterminous with the county or not, the proceeding is properly brought in this court.” Parsons, 294 Minn, at 546, 201 N.W.2d at 741.

Tilley’s reliance on this passage is misplaced because section 204B.44 differs substantially from section 203.38. While section 203.38 distinguished between a “state election” and a “county election,” section 204B.44 confers jurisdiction in this court for cases involving election for “state office” as opposed to “county office.” Although an election for a legislative office in a district situated entirely within a single county may be characterized as a “county election,” a legislative office is undoubtedly a “state office.” Because the statute no longer triggers jurisdiction based on the geographic unit relevant to the election, but instead triggers jurisdiction based on the nature of the office at issue, section 203.38 and our holding in Parsons is not dispositive. Because the election for a seat in the state legislature is “an election for state * * * office,” the petition was properly filed in this court.

II.

We turn to Tilley’s motion to dismiss on the grounds of untimeliness. As set forth more fully in the companion case Piepho v. Bruns, 652 N.W.2d 40 (Minn. 2002), in the election context we ask whether the petitioner has so unreasonably delayed asserting a known right as to prejudice others. See Fetsch v. Holm, 236 Minn. 158, 163, 52 N.W.2d 113, 115 (1952). The petition in this case was filed one day before the petition was filed in Piepho. As in Piepho, it is not clear when petitioner first became aware of a question with respect to Tilley’s residency. In the absence of this information, we cannot conclude that petitioner failed to assert a known right within a reasonable period and deny the motion to dismiss on this basis.

III.

We turn to the substantive issue of whether petitioner has sustained his burden of establishing that Tilley has not resided in District 38A for six months prior to the November 5, 2002, general election. We incorporate herein the analysis set forth in Piepho, and focus on evidence of physical presence and intent. Piepho, 652 N.W.2d at 44. In this case, the referee found that Tilley began paying monthly rent of $350 on May 5, 2002, for two bedrooms at the Alder Lane address located in District 38A, with the specific intent to establish residency there. The referee found that Tilley purchased renter’s insurance to cover the property, and she testified that she stayed there about six nights per week in May 2002. Tilley later rented residential property on Englert Road within the district. In each case, Tilley submitted a change-of-address form to the post office. She also applied for a new driver’s license with the Alder Lane address and notified the Campaign Finance and Public Disclosure Board of her new address.

Petitioner appears to rely exclusively on Tilley’s statement that, “If I win, I will move,” and claims the court must consider the converse of this statement, that if Tilley lost she would not move from her Wescott Avenue property. However, Tilley had already moved from the Wes-cott property into District 38A at the time she made the statement and she testified at the hearing that she did not intend to move back to the Wescott property regardless of the outcome of the election. Furthermore, Tilley explained at the hearing that by her statement she meant that if she won she intended to purchase a home in the district. It is the role of the referee, and not this court, to evaluate the credibility of witnesses, see Nelson v. O’Neil Amusements, 274 Minn. 555, 555-56, 142 N.W.2d 647, 648 (1966), and because the record supports the referee’s conclusions that Tilley intended to and established residency in District 38A, we do not disturb the findings.

The record supports the conclusion that Tilley had sufficient presence in District 38A and intent to reside there to meet the residency requirement of Minn. Const, art. IV, § 6.

Petition denied.

HANSON, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.

      . In his findings, the referee indicated that Tilley and her daughter stayed at the Alder Lane property "about six nights in May.” The testimony indicates Tilley spent six days each week at the Alder Lane property during May 2002.

      . In her motion to dismiss, Tilley also claims (a) the petition was brought in bad faith, solely for political purposes, and not based upon facts; (b) the petition is insufficient because the allegations are based solely on information and belief; and (c) the petition fails to provide a basis to grant the relief requested. Because we opt to address the petition on the merits, we decline to rule on these issues.


author: PER CURIAM.

text:
    Ralph OLSON, Petitioner, v. Robert ZUEHLKE, as County Auditor of Itasca County, Minnesota, Respondent, Kirk Peysar, as County Auditor of Aitkin County, Minnesota, Respondent, Mary Kiffmeyer, Minnesota Secretary of State, Respondent, Loren Solberg, Intervenor.
    No. C2-02-1353.
    Supreme Court of Minnesota.
    Oct. 17, 2002.

      Matthew W. Haapoja, Trimble & Associates, Ltd., Minneapolis, MN, for Petitioner.
    John J. Muhar, Itasca County Attorney, Grand Rapids, MN, Bradley C. Rhodes, Aitkin County Attorney, Aitkin, MN, for Respondents.
   OPINION

PER CURIAM.

Petitioner Ralph Olson filed a petition under Minn.Stat. § 204B.44 (2000) alleging a wrongful act or omission by the respondent county auditors in their placement of candidate Loren Solberg’s name on the ballot for the 2002 election. The petition was referred to a referee to take and receive evidence and make findings of fact relative to petitioner’s claim that the candidate will not have resided in Legislative District 3B for six months immediately preceding the general election as required by Minn. Const, art. IV, § 6. The referee found that Solberg established residency in District 3B. This opinion confirms the order filed on August 28, 2002, denying the petition.

Petitioner is an eligible voter and elector in Legislative District 3B. He claimed in his petition that Solberg was required to live in District 3B from and after May 5, 2002, to establish residency as required by the Minnesota Constitution. Petitioner claimed Solberg did not reside within District 3B at 2214 Southwest Third Avenue in Grand Rapids, Minnesota, as he represented in his affidavit of candidacy filed with the secretary of state, but at 115 Fifth Avenue in Bovey, Minnesota, which is not in District 3B as a result of a redistricting plan that went into effect on March 19, 2002. In support of the petition, petitioner attached an affidavit from Gordon Newstrom, who attests that he owned the property at 2114 Third Avenue in Grand Rapids and sold it to Solberg on June 17, 2002. Newstrom claims in the affidavit that he resided on the property until July 1, 2002. Petitioner also attached to his petition a copy of Solberg’s resident combination fishing license processed on May 8, 2002, which listed the Bovey address.

We issued an order requiring the respondent county auditors, the secretary of state, and Solberg to respond to the petition. Solberg denied the allegations in the petition and moved to dismiss the order to show cause on several grounds. We deferred ruling on the motions and appointed the Honorable Edward Toussaint, Jr., to serve as referee in the matter to take and receive all evidence and make findings of fact. See Parsons v. Hickey, 294 Minn. 543, 544, 201 N.W.2d 739, 740 (1972); Moe v. Alsop, 288 Minn. 323, 325, 180 N.W.2d 255, 257 (1970).

The referee found that Solberg is and has been since 1983 a member of the Minnesota House of Representatives. After the redistricting plan was announced on March 19, 2002, Solberg decided to move within the new boundaries of District 3B, which he believed encompassed 70-75% of his former district. On April 16, 2002, Solberg and his wife entered into a purchase agreement with Newstrom to purchase Newstrom’s townhouse at 2114 Southwest Third Avenue in Grand Rapids, which is in District 3B. The Solbergs asked for earlier possession or a leaseback arrangement, but Newstrom, who was 89 years old at the time, was unwilling to give up possession before July 2002. In his affidavit in response to the petition, Sol-berg stated, “Because Mr. Newstrom had no other place to move, I agreed to allow him to stay in the house until a delayed closing.” Newstrom acknowledged in writing receipt of $1.00 for what Solberg characterized as rental of the “facility,” and what Newstrom characterized as use of the mailbox. On April 23, 2002, Solberg and his wife arranged financing of the townhouse purchase.

On April 16, 2002, Solberg applied for a new voter registration card with the Grand Rapids address. Solberg’s wife’s pay stub for the pay period ending April 30, 2002, reflects the change to the Grand Rapids address. On April 22, 2002, Solberg emailed his colleagues with his new address.

From May 5 to July 1, 2002, Solberg collected his mail and visited the townhouse numerous times. He did not have a key to the unit, but stayed overnight there on April 30, 2002. Because the legislature was in session, Solberg spent some nights during this period at his St. Paul apartment, but primarily stayed at the Bovey house. He also testified that during this time he spent time at his cabin, at Lake Vermillion, and visiting family in South Dakota. Solberg and his wife listed the Bovey property for sale with a realtor on May 30, 2002.

Solberg moved into the Grand Rapids townhouse on July 1, 2002, and from that date to August 19, 2002, he has stayed there approximately 10 to 15 nights. The remaining time has been spent on vacation and in Bovey.

Based on all the evidence, the referee found that Solberg had done all that is reasonably possible to establish residency in District 3B and in fact established such residency.

I.

We first address Solberg’s motion to dismiss on the grounds of untimeliness. As set forth more fully in the companion case Piepho v. Bruns, 652 N.W.2d 40 (Minn.2002), in the election context we ask whether the petitioner has so unreasonably delayed asserting a known right as to prejudice others. See Fetsch v. Holm, 236 Minn. 158, 163, 52 N.W.2d 113, 115 (1952). The same filing dates apply in this case as in Piepho, and, as in that case, it is not clear when petitioner first became aware of a question with respect to Sol-berg’s residency. In the absence of this information, we cannot conclude that petitioner failed to assert a known right within a reasonable period, and deny the motion to dismiss on this basis.

II.

We turn to the substantive issue of whether petitioner has sustained his burden of establishing that Solberg has not resided in District 3B for six months prior to the November 5, 2002, general election. We incorporate herein the analysis set forth in Piepho and focus on evidence of physical presence and intent in the context of a sitting legislator whose change in residence results from redistricting. Piepho, 652 N.W.2d at 45. In this case, the referee found that on April 16, 2002, well before the May 5 deadline, Solberg and his wife signed a purchase agreement for a townhouse within District 3B. While they attempted to negotiate for earlier possession, Newstrom was unwilling to agree to give up possession before July 1, 2002.

The evidence from which it can be inferred that Solberg intended to reside in District 3B is strong. Signing a purchase agreement, as opposed to simply renting an apartment, demonstrates the Solbergs intended to make Grand Rapids their home as soon as practicable under the circumstances. While evidence of physical presence is admittedly thin, neither physical presence nor intent is determinative. Piepho, 652 N.W.2d 40. As in Piepho, 652 N.W.2d at 42, we consider physical presence here in the context of the ongoing legislative session that necessitated Sol-berg’s presence in St. Paul, and the short time between announcement of the redistricting plan on March 19 and the residency deadline of May 5. Solberg had a short period in which to find a new home, and Newstrom’s desire not to vacate until July 1 the property they settled upon should not, standing alone, negate a finding of residency. See Parsons, 294 Minn, at 547, 201 N.W.2d at 741 (considering residency in light of move made necessary by redistricting). On slightly different facts, we may conclude otherwise, but based on the record as a whole, and in particular the strong evidence of intent to reside in the district as evidenced by the purchase agreement for a townhouse in the district, the evidence is sufficient to support the conclusion that Solberg established residency for purposes of Minn. Const, art. IV, § 6.

Petition denied.

HANSON, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.

      . The referee stated in his findings that Sol-berg stayed overnight at the townhouse once during the period from May 5 to July 1, 2002. At the hearing, Solberg testified he spent just one night at the townhouse and identified that date, using credit card records, as April 30, 2002. Because the record does not support the referee's findings in this regard, we disregard the referee’s findings as to the date on which Solberg spent the night at the Grand Rapids address.

      . In his motion to dismiss, Solberg also claims (a) the petition was brought in bad faith, solely for political purposes, and not based upon facts; (b) the petition is insufficient because the allegations are based solely on information and belief; and (c) the petition fails to provide a basis to grant the relief requested. Because we opt to address the petition on the merits, we decline to rule on these issues.


text:
    Mark PIEPHO, Petitioner, v. Robert BRUNS, as County Auditor of Nicollet County, Minnesota, Respondent, Sandra King, as County Auditor of Blue Earth County, Minnesota, Respondent, Lisa Pfarr, as County Auditor of Sibley County, Minnesota, Respondent, Mary Kiffmeyer, Minnesota Secretary of State, Respondent, John C. Hottinger, Intervener.
    No. C4-02-1354.
    Supreme Court of Minnesota.
    Oct. 17, 2002.

      Matthew W. Haapoja, Trimble & Associates, Ltd., Minneapolis, MN, for Petitioner.
    Michael K. Riley, Sr., Nicollet County Attorney, St. Peter, MN, Ross E. Arneson, Blue Earth County Attorney, Mankato, MN, David E. Schauer, Sibley County Attorney, Gaylord, MN, for Respondents.
   OPINION

PER CURIAM.

Petitioner Mark Piepho filed a petition under Minn.Stat. § 204B.44 (2000) alleging a wrongful act or omission by the respondent county auditors in their placement of candidate John Hottinger’s name on the ballot for the 2002 election. The petition was referred to a referee to take and receive evidence and make findings of fact ■ relative to petitioner’s claim that the candidate will not have resided in Legislative District 23 for six months immediately preceding the general election as required by Minn. Const, art. IV, § 6. The referee found that Hottinger established residency in District 23. This opinion confirms the order filed on August 28, 2002, denying the petition.

Petitioner is an eligible voter and elector in Legislative District 23. He claimed in his petition that Hottinger was required to live in District 23 from and after May 5, 2002, to establish residence as required by the Minnesota Constitution. Petitioner claimed Hottinger did not reside within District 23 at 304 West Grace Street in St. Peter, Minnesota, as the candidate represented in his affidavit of candidacy filed with the secretary of state. Petitioner also attached to his petition a property tax record indicating that Hottinger claimed the residential homestead classification for 20100 Horseshoe Lane in Mankato, outside the district. In addition, petitioner asserted that Hottinger failed to change his address on his driver’s license to 304 West Grace Street until May 17, 2002, 12 days after the May 5, 2002, deadline. In support of the petition, petitioner later submitted an affidavit from two people who claimed to have lived at 304 West Grace Street, the residence Hottinger claimed as his, until May 24, 2002.

We issued an order requiring the respondent county auditors, the secretary of state, and Hottinger to respond to the petition. Hottinger denied the allegations in the petition and moved to quash the order to show cause. We deferred ruling on the motion to quash and appointed the Honorable Edward Toussaint, Jr., to serve as referee in the matter to take and receive all evidence and make findings of fact. See Parsons v. Hickey, 294 Minn. 543, 544, 201 N.W.2d 739, 740 (1972); Moe v. Alsop, 288 Minn. 323, 325, 180 N.W.2d 255, 257 (1970).

The referee found that Hottinger and his wife own property at 20100 Horseshoe Lane, Mankato, Minnesota, which is not in District 23 as recently reconfigured through redistricting. Sometime after the Minnesota Special Redistricting Panel’s March 19, 2002, order mandating use of the panel’s redistricting plan, Hottinger and his wife decided to move so that Hot-tinger would be eligible to run for office in 2002 in District 23. On April 17, 2002, Hottinger entered into a 12-month lease for 304 West Grace Street, St. Peter, in District 23, with an effective date of May 1, 2002. A colleague from Hottinger’s law firm paid the rent for the first month and was reimbursed by Hottinger.

Hottinger took several steps to notify others of his new address. On May 1, 2002, Hottinger signed a voter registration card reflecting the Grace Street address. In early May, he took steps to change the address on his driver’s license to the Grace Street address. His requests for mileage reimbursement from the state reflected transit from the Grace Street address. In May 2002 he received mail, including insurance forms, at the new address.

The previous tenant, Mary Gartner, had signed a one-year lease for 304 West Grace Street, beginning May 1, 2001. Through a special arrangement with the landlord, to which Hottinger apparently did not object, Gartner and her fiancé held over her tenancy and occupied the premises until May 24, 2002. There was another space in the building, which included a bathroom but no kitchen,' into which Hottinger moved clothing and books on May 1, 2002. During this period, the legislature was in session with Hottinger serving as Assistant Senate Majority Leader. Hottinger was at his office at the Capitol most days and had an apartment in St. Paul that he leased for use during the legislative session. He slept at the Grace Street address once before May 7. The session ended on May 20, 2002. On May 27, 2002, after the holdover tenants moved out, Hottinger moved into the established apartment at 304 West Grace Street, which included kitchen, bath, and sleeping facilities.

Based on this evidence, the referee found that Hottinger had done all that was reasonably possible to establish residence in District 23 and that Hottinger in fact established such residence.

I.

We first address Hottinger’s motion to quash the order to show cause on the basis that it was insufficient on its face and untimely. While most of the allegations in the petition are of questionable relevance, an affidavit submitted in support of the petition alleged that other people and not Hottinger were living at the address Hot-tinger claimed as his during May 2002. Thus, the petition met the threshold requirement of raising a material issue of fact regarding the candidate’s residence.

With respect to the timeliness of the petition, in the election context we especially consider the application of lach-es, an equitable doctrine applied to “prevent one who has not been diligent in asserting a known right from recovering at the expense of one who has been prejudiced by the delay.” Aronovitch v. Levy, 238 Minn. 237, 242, 56 N.W.2d 570, 574 (1953). The doctrine has particular application in challenges to ballot preparation and election proceedings. Peterson v. Stafford, 490 N.W.2d 418, 419 (Minn.1992). “In considering laches, we have held that the practical question in each case is whether there has been such an unreasonable delay in asserting a known right, resulting in prejudice to others, as would make it inequitable to grant the relief prayed for.” Fetsch v. Holm, 236 Minn. 158, 163, 52 N.W.2d 113, 115 (1952).

Here, the close of the candidate filing period occurred on July 16, 2002. The petition in this case was filed on August 9, 2002, two days before respondents county auditors were required to have absentee ballots for the September 10, 2002, primary available. See Minn.Stat. § 204B.35, subd. 4 (2000). Thus, any challenger had a limited period of time to prepare a petition before the absentee ballots were to be distributed. In this case, the record does not disclose when petitioner first became aware of a question with respect to Hot-tinger’s residency. Given the state of the record, we cannot conclude that petitioner failed to assert a known right within a reasonable period, and therefore deny the motion to quash.

II.

We turn to the substantive issue of whether petitioner has sustained his burden of establishing that Hottinger will not have resided in District 23 for at least six months immediately preceding the November 5, 2002, general election. Article IV, section 6, of the Minnesota Constitution requires:

Senators and representatives shall be qualified voters of the state, and shall have resided one year in the state and six months immediately preceding the election in the district from which elected.

The legislature has codified this constitutional provision in the election laws, Minn. Stat. § 204B.06, subd. 4(f) (2000), but the legislature has not adopted a definition of “residency” for evaluating candidate qualifications. The legislature has, however, set forth residency principles with respect to voters. See Minn.Stat. § 200.031 (2000). While it is logical to apply the same residency principles applicable to voters to candidates, we are reluctant to do so because the legislature appears to have specifically not incorporated the voter residency principles into chapter 204B where its codification of the residency requirement for candidates lies. While chapter 204B contains a provision stating that the definitions in chapter 200 apply to chapter 204B, see Minn.Stat. § 204B.01 (2000), the “definitions” in chapter 200 are contained in Minn.Stat. § 200.02 (2000), and the residency principles set forth in Minn.Stat. § 200.031 are not labeled as a “definition” of residency.

Nonetheless, in deciding what factors best implement the constitutional directive in Minn. Const, art. IV, § 6, that elected representatives reside in the district from which elected, we naturally focus on physical presence and intent, as we have done in the voter residency context. See Bell v. Gannaway, 303 Minn. 346, 350, 227 N.W.2d 797, 801 (1975) (interpreting factors in precursor to MinmStat. § 200.031 for voter residency to focus on physical presence and intent). We believe the concept of residency is captured and perhaps best summarized by Minn.Stat. § 200.031© (2000): “The mere intention to acquire a new residence, is not sufficient to acquire a new residence, unless the individual moves to that location; moving to a new location is not sufficient to acquire a new residence unless the individual intends to remain there.” Accordingly, we conclude that the foremost considerations with respect to residency in the election context are physical presence and intent. As the provision quoted above demonstrates, neither factor is determinative — each informs the other. That is, intent can be demonstrated in many ways, including but not limited to physical presence, and we consider physical presence to the extent that it manifests intent to reside in the district.

As we noted in Bell, these considerations are largely questions of fact, and we therefore defer to the findings of the referee who heard the witnesses testify. Bell, 303 Minn, at 350, 227 N.W.2d at 801. In this case, the referee found that Hottinger demonstrated his intent to reside in the district by entering the space adjacent to 304 West Grace Street, located in District 23 on May 1, 2002, and thereafter by moving into 304 West Grace Street after the holdover tenants moved out. These findings support the conclusion that Hottinger had sufficient presence in District 23 and intent to reside there to meet the residency requirement of Minn. Const, art. IV, § 6. ■

Petitioner claims that Hottinger did not have a physical presence in the district until at least May 27, 2002. In his written objections to the referee’s findings of fact, petitioner claims that Hottinger did not establish residence in the district because he did not maintain a “physical, bodily presence in a readily ascertainable habitual manner” during the time period in question. Petitioner does not cite any authority for his “physical, bodily presence” standard, and fails to establish how it implements the constitutional requirement of residence.

Physical presence is undoubtedly significant to establishing residency; however, we consider here physical presence in the context of a sitting legislator attempting to complete the legislative session. We note that petitioner does not question Hotting-er’s physical presence in the district after May 27, 2002. Thus, it is only roughly the period while the legislature was still in session that is at issue herein. In this context, application of petitioner’s “physical, bodily presence” standard may well result in the disqualification of every sitting legislator when the legislative session, which arguably requires legislators to have a “physical, bodily presence” at the Capitol, runs beyond the first week in May and into the six-month residency period. To impose the physical presence standard that petitioner demands could conceivably prevent legislators from fulfilling their duties as legislators in the final days and weeks of the session, and we decline to impose such an unreasonable standard. It is sufficient for a physical presence that Hottinger leased an apartment in the new district, moved his personal belongings into adjacent living space pending 'the departure of holdover tenants, and spent some time there while the legislative session continued.

Redistricting provides further context for the referee’s findings. In this case, Hottinger and other legislators learned on March 19, 2002, that they no longer lived in the districts with a majority of people they had previously represented, requiring them to make a decision regarding whether to run in a new district or move to the reconfigured district where the candidate’s constituency resides. Almost immediately upon the release of the redistricting plan, Hottinger consulted with his wife and announced that he would move. There were just 47 days between March 19 and May 5, 2002, and it is reasonable to expect that the candidate’s accommodations may appear temporary in light of the difficulty of finding housing on short notice. Hotting-er’s intent to establish residency in District 23, as evidenced by his announcement to that effect, execution of the lease, voter registration, request for mileáge reimbursement, and driver’s license application, is clear. In Parsons, we dealt with a similar situation — redistricting changing the boundaries of legislative districts — -and held there that the petitioner had failed to overcome the findings made by the referee that the candidate “did all that was reasonably possible to establish a residence in Legislative District 42A.” 294 Minn, at 547, 201 N.W.2d at 742. The same conclusion is warranted here.

Petition denied.

HANSON, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.

      . Minnesota Statutes § 200.031 provides in relevant part:
      Residence shall be determined in accordance with the following principles, so far as they may be applicable to the facts of the case:
      (a) The residence of an individual is in the precinct where the individual's home is located, from which the individual has no present intention of moving, and to which, whenever the individual is absent, the individual intends to return;
      (b) An individual does not lose residence if the individual leaves home to live temporarily in another state or precinct;
      (c) An individual does not acquire a residence in any precinct of this state if the individual is living there only temporarily, without the intention of making that precinct home;
      (d) If an individual goes into another state or precinct with the intention of making it home or files an affidavit of residence there for election purposes, the individual loses residence in the former precinct;
      ⅝ ⅝ ⅛: ⅜
      (f) Except as otherwise provided in this section, an individual’s residence is located in the precinct where the individual’s family lives, unless the individual’s family is living in that precinct only temporarily;
      (g) If an individual’s family lives in one precinct and the individual lives or does business in another, the individual’s residence is located in the precinct where the individual's family lives, unless the individual establishes a home in the other precinct and intends to remain there, with or without the individual’s family;
      (h) The residence of a single individual is in the precinct where the individual lives and usually sleeps;
      (i) The mere intention to acquire a new residence, is not sufficient to acquire a new residence, unless the individual moves to that location; moving to a new location is not sufficient to acquire a new residence unless the individual intends to remain there;
      (j) The residence of an individual who is working temporarily in any precinct of this state is in the precinct where the individual’s permanent home is located!.]

      . The evidence that the Horseshoe Lane property was classified as homestead does not undermine these facts. The homestead property classification was established before the redistricting plan and there is no evidence in the record that Hottinger applied for a homestead classification on his homestead property after the plan came out.