author: RANDALL, Judge.

text:
    STATE of Minnesota, Appellant, v. Earl Harold MILLER, Respondent.
    No. C6-02-1582.
    Court of Appeals of Minnesota.
    April 15, 2003.

      Mike Hatch, Attorney General, St. Paul, Thomas J. Harbinson, Scott County Attorney, Jason W. Eldridge, Assistant County Attorney, Shakopee, for appellant.
    Mark D. Nyvold, St. Paul, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge, and RANDALL, Judge, and WRIGHT, Judge.
   OPINION

RANDALL, Judge.

Appellant State of Minnesota seeks review of the district court’s suppression of drugs found in a car where respondent was a passenger and also respondent’s custodial statements made to police officers. Because appellant has failed to show that the district court clearly and unequivocally erred, we affirm.

FACTS

In the past, an informant alerted the Jordan Police Department (JPD) to drug activity at a residence. Based on this informant’s tip, JPD obtained and executed a search warrant on the home. No drugs were found. Some months later, this informant called and again reported that the homeowner had a large brick of “crank” (slang for methamphetamine) that he was planning to distribute to several drug dealers. JPD generally, and Chief Malz specifically, initiated surveillance on the home and saw several people approach the homeowner, speak with him a short time, and then leave. Malz saw two men leave the home in a pickup truck.

Malz called Officer Brian Stolt and told him to stop the pickup if he could find any legal reason to do so. Stolt pulled the pickup over, believing that he saw a windshield severely cracked and, thus, obstructing the driver’s view. Once Stolt had pulled the pickup over, Malz pulled up behind Stolt’s patrol car.

Christopher Klug was driving the pickup truck, and respondent was his passenger. According to the officers, respondent was incoherent, did not pay attention when spoken to, did not respond when asked questions, and had glassy eyes. Malz ordered Stolt to use his drug-detection dog, Radar, to search for the presence of drugs. Stolt did so, moving Radar along the exterior of the vehicle. When he was near the passenger’s door, Radar indicated drugs were present. The officers then removed Klug and respondent from the vehicle and searched it, eventually finding a pouch containing methamphetamine under the lining of the front passenger seat. Klug was questioned and released. Respondent was handcuffed and placed in the back of a police car. While in the police car, Malz started a conversation with respondent. Malz again spoke with respondent at the jail before he gave respondent his Miranda warning and then, after reading respondent his Miranda rights, took respondent’s taped confession.

The district court concluded that the decision to use Radar to look for drugs was made before Stolt stopped the vehicle. The court stated “[t]his Court does not find it probable that [Stolt’s observations] [were] the real motivating reason for conducting the dog sniff procedures.” The court based this on Malz directing Stolt to find a reason to pull the pickup over and concluded that the dog sniff was nothing more than a “fishing expedition.” The court also determined that respondent’s statements while in the back of the police car should be suppressed because no Miranda warning was given.

ISSUES

1. Did the police have a reasonable, articulable suspicion of drug-related activity prior to conducting the search of the vehicle using the drug-detection dog?

2. Were respondent’s statements before being advised of his Miranda rights properly suppressed?

3. Does a passenger in an automobile have standing to challenge the constitutionality of his detention and the search of that automobile?

ANALYSIS

I. Canine Detection

On appeal from a pretrial order, the district court’s decision will not be reversed unless it has a critical impact on the prosecution and it is “dearly and unequivocally ” erroneous. State v. Webber, 262 N.W.2d 157, 159 (Minn.1977) (emphasis added). “Critical impact is met when the suppression of the evidence significantly reduces the likelihood of a successful prosecution.” In re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn.1999) (citation omitted). Appellant has met the first prong; it is clear that the likelihood of conviction of possession of drugs is significantly reduced without the drugs. The more significant question is whether the district court’s suppression of the drugs was clearly and unequivocally erroneous.

Stolt observed that Klug’s truck had a cracked windshield. Because it was based on an equipment violation, the stop itself was proper. State v. Battleson, 567 N.W.2d 69, 71 (Minn.App.1997) (stating “if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle”) (quotation omitted). However, the fact that the stop was lawful does not automatically legitimize a search by a canine. As the district court noted, “the reasonableness requirement of the Fourth amendment is not only concerned with the duration of a detention, but also with its scope.” A canine sniff has absolutely nothing to do with an equipment violation. Radar was not sniffing the windshield to determine if it was cracked; instead, he was searching for drugs. Radar’s use cannot be justified by the equipment violation.

The Minnesota Supreme Court recently determined it is necessary to have

a reasonable, articulable suspicion of drug-related criminal activity before law enforcement may conduct a dog sniff around a motor vehicle stopped for a routine equipment violation in an attempt to detect the presence of narcotics.

State v. Wiegand, 645 N.W.2d 125, 135 (Minn.2002). Thus, we must decide whether a reasonable, articulable suspicion existed that there was drug-related activity here.

The district court specifically stated that it did not believe Stolt’s testimony that his observations led him to believe respondent was under the influence of drugs, stating “this Court does not find it probable that this information was the real motivating reason for conducting the dog sniff procedures.” The court based this on Malz’s instruction to find “any reason” to pull the car over. Additionally, the court noted that Stolt did not even speak with respondent, but rather, observed him by looking at him through the driver’s window while speaking with Klug. The court noted other possibilities for respondent’s behavior and appearance, such as fatigue, alcohol use, or prescription-drug use. Because the officers did not investigate any of these possibilities, but immediately “called in the dog,” the court concluded that the canine sniff was not based on a reasonable, articu-lable suspicion of drug-related activity.

Appellant cites six factors that it claims show a reasonable, articulable suspicion existed: (1) respondent had just left a known drug house; (2) respondent did not respond when spoken to; (3) respondent’s eyes were glassy; (4) respondent’s actions were “lethargic”; (5) both officers had experience with people under the influence of drugs and not just under the influence of alcohol; and (6) Malz had experience and specific training in dealing with people under the influence of drugs and not just alcohol.

Because the weight and believability of witness testimony is an issue for the district court, we defer to that court’s credibility determinations. State v. Bias, 419 N.W.2d 480, 484 (Minn.1988); State v. Dickerson, 481 N.W.2d 840, 843 (Minn.1992), aff'd, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). Given this, the factors cited by appellant are insufficient to show the district court unequivocally erred. This “known drug house” contained no drugs last time JPD, acting on the same informant’s tip, searched the home. In addition, “merely speaking with and being in close proximity with others suspected of criminal activity, without more, may be insufficient ⅜ * * to reach the threshold of reasonable articulable suspicion.” State v. Ingram, 570 N.W.2d 173, 177 (Minn.App.1997), review denied (Minn. Dec. 22, 1997). Malz testified that he had not witnessed either Klug or respondent go into the house or receive anything from the homeowner. Malz testified that he saw something “shiny” in respondent’s and Slug’s hands as they left, but he admitted he did not know what it was. Whatever he saw, he did not even note this observation in his police report. After an exhaustive search of the vehicle, the police determined these suspicious objects were Burger King hamburgers! We can only speculate as to cheese and/or onions.

The second, third, and fourth factors cited all could be used to show prescription drug abuse, alcohol use (permissible by a passenger in a vehicle), or merely fatigue. Another explanation was that respondent simply did not want to talk with the police, which is his right. The fifth factor is not convincing because it is merely the conclusion drawn from the previous three. Stolt testified that after he obtained Klug’s license, he went back to his squad car to talk with Malz. He testified that Malz instructed him to take Radar to sniff the vehicle. Malz testimony of the events was different. He testified that both officers approached the vehicle and questioned the occupants, and only then did Malz decide that respondent was impaired, and Radar’s use was justified.

The inconsistent accounts of how the decision to search the car was made support the district court’s conclusion that the dog-sniff was not based on the observations of the officers, but rather, was predetermined when Malz told Stolt to find any reason to pull the vehicle over.

In sum, we conclude, as did the district court, that the JPD did not have a reasonable, articulable suspicion that either Klug or respondent was involved in drug-related or, for that matter, any criminal activity. All that Malz knew was that both men were at the house, which, despite appellant’s characterization as a “known drug house,” did not contain any drugs last time JPD searched it. The district court heard all the testimony and made credibility determinations, choosing to disregard the officers’ claimed reasons for the search.

Because the canine sniff was not based on a reasonable, articulable suspicion of criminal activity, or, at its very best was questionable, appellant has not met the high burden of showing the district court’s suppression order was unequivocally erroneous.

II. Custodial Interrogation

The district court suppressed statements made by respondent after he was handcuffed and placed in the squad car on the night of the stop. The district court concluded that respondent was in custody because he was deprived of freedom of action in a significant way.

On appeal from a pretrial order, the district court’s decision may not be reversed unless it has a critical impact on the prosecution and it is clearly and unequivocally erroneous. Webber, 262 N.W.2d at 159.

Appellant asserts that suppression of the drugs has a critical impact on its case. “Critical impact is met when the suppression of the evidence significantly reduces the likelihood of a successful prosecution.” L.E.P., 594 N.W.2d at 168 (citation omitted). Essentially, respondent’s statements were a confession. If suppressed, a confession “normally will significantly reduce the likelihood of a successful prosecution.” State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn.1990). Assuming critical impact is met, we move to the merits of the district court’s decision.

Appellant argues that even though respondent was in custody, no interrogation occurred. In its brief, appellant characterizes respondent’s statement as “spontaneous.” The court’s analysis focuses on custody. While custody is an essential element of the Miranda analysis, custody, by itself, does not require a Miranda warning; instead, it is only when custodial interrogation occurs that a Miranda warning is required. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). The United States Supreme Court discussed the scope of the interrogation requirement in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). There, the Court said:

The Court in Miranda also included in its survey of interrogation practices the use of psychological ploys, such as to ‘posi[t]’ ‘the guilt of the subject,’ to ‘minimize the moral seriousness of the offense,’ and ‘to cast blame on the victim or on society.’ It is clear that these techniques of persuasion, no less than express questioning, were thought, in a custodial setting, to amount to interrogation. [FN 3]
[FN 3] To limit the ambit of Miranda to express questioning would ‘place a premium on the ingenuity of the police to devise methods of indirect interrogation, rather than to implement the plain mandate of Miranda.’

Innis, 446 U.S. at 299, 100 S.Ct. at 1689 (quotations omitted). The Court then stated:

We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response [FN 5] from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.
[FN 5] By ‘incriminating response’ we refer to any response — whether inculpa-tory or exculpatory — that the prosecution may seek to introduce at trial.

Id. at 300-301, 100 S.Ct. at 1689-90 (emphasis added).

Given this definition, it is clear that the district court concluded that respondent’s statements were made in respond to interrogation by Malz. Malz’s testimony regarding the conversation is as follows:

Q: And who spoke first?
A: I believe I did.
Q: And what did you say?
A: I don’t know how the conversation went. * * * I at one point I just stopped and I said, “Did Lara bring the drugs out to you or did you go into his house and get them?” And then he told me that Lara had gone into the house and had gotten the drugs for him but that he felt it was just a diversionary thing.
Q: Was he under Miranda at that time?
A: No he was not.

Respondent’s testimony of the conversation was as follows:

Q: While you were in the back of the squad did anybody come up to talk to you?
A: Officer Malz, Chief Malz.
Q: Tell us what happened?
A: He asked me, said we had metham-phetamines in the truck and he told me that it was mentioned about Gerónimo Lara, he wanted Lara. And he asked if I sign a warrant on Lara, that he’d let me go, if I sign the warrant he said he had to take me down to the police station for me to sign this warrant.

For purposes of analysis, we accept Malz’s version of the conversation. “Did Lara bring the drugs out to you or did you go into his house and get them? ” can, without offending anybody, be interpreted as direct interrogation of respondent with a question likely to elicit an incriminating response. Malz’s interrogation worked. This question did elicit an incriminating response. Respondent was being arrested for possession of drugs. Malz got him to state that Lara had gone into the house to get the drugs. This incriminates respondent because it is solid evidence as to how he obtained illegal drugs. The district court’s analysis under Miranda is sound. Appellant has failed to show clear and unequivocal error.

Coupled with the Miranda analysis, respondent’s statements are suppressed as the fruit of the poisonous tree based on the illegal search under Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). In that case, the court held because there is a causal connection between an illegal arrest and confession, custodial statements that stemmed from an illegal arrest are not rendered admissible merely because defendant had been given Miranda warnings prior to making statements. Id. at 605, 95 S.Ct. at 2262-63. Discussing the factors to consider in determining when an illegal arrest and in-custody statements are connected, the Court stated:

The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. The voluntariness of the statement is a threshold requirement. And the burden of showing admissibility rests, of course, on the prosecution.

Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62 (citations omitted). In this case, the arrest and interrogation were temporally close and the only purpose Malz had in speaking with respondent was to elicit incriminating statements. Having determined that the search itself was unlawful, respondent’s statements are suppressed on this ground as well.

III. Standing

Appellant argues that, regardless of the merits, respondent does not have standing to object to the search of the vehicle because he was only a temporary passenger and that to have standing to object to a search, a passenger must have (1) an expectation of privacy; and (2) dominion, control, and the right to exclude others relative to the area searched.

We have held that a passenger in the car had standing to contest the constitutionality of the stop. State v. Ritchie, 379 N.W.2d 550, 553 (Minn.App.1985), review denied, (Minn. Feb. 14, 1986). Further we stated, “[the passenger] had a protectible Fourth Amendment interest in not being stopped unless the police officers were able to justify the stop based on the standards.” Id. at 552. In Ritchie, we concluded that the search was lawful because it was based on a reasonable, articulable suspicion of criminal activity. Id. at 553.

As the Ritchie court noted, “[A] brief stop is considered a seizure and an individual who is stopped is entitled to Fourth Amendment protection, even though the standards justifying a stop are lower than for arrest.” Id. at 553 (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)). Respondent does not challenge the constitutionality of the stop of the vehicle; instead, he challenges the search with the drug-detection dog and his continued detention as unrelated to the initial stop. On these facts, because respondent was stopped and detained, he has standing to question the constitutionality of the search.

DECISION

Appellant failed to show that the district court unequivocally erred by suppressing evidence of the drugs and respondent’s custodial statements.

Affirmed.


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    In re the Arbitration of Lisa OLSON, Respondent, v. AUTO-OWNERS INSURANCE COMPANY, Appellant.
    No. CX-02-1634.
    Court of Appeals of Minnesota.
    April 15, 2003.

      Joseph J. Osterbauer, Michelle B. Oster-bauer, Osterbauer Law Firm, Minneapolis, MN, for respondent.
    Daniel A. Beckman, Kathleen M. Loucks, Gislason & Hunter, LLP, Minne-tonka, MN, for appellant.
    Considered and decided by PETERSON, Presiding Judge, HARTEN, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant insurer challenges the district court’s order confirming a no-fault arbitration award arguing that the arbitrator exceeded her powers by considering issues barred by collateral estoppel and res judi-cata. Because collateral estoppel and res judicata were inapplicable to the issues on remand, we affirm.

FACTS

In February 1998, respondent Lisa Olson injured her back and knee in an automobile accident. Appellant Auto-Owners Insurance Company paid Olson medical and wage loss benefits for approximately one year. After Auto-Owners terminated Olson’s no-fault insurance benefits, Olson petitioned for mandatory arbitration under Minn.Stat. § 65B.525 (2000).

At the hearing, the arbitrator focused, in part, on a November 2000 chart note and the operative report from Olson’s March 2001 arthroscopic knee surgery. In the chart note, Olson’s physician opined that an MRI scan of Olson’s knee suggested a medial meniseal tear and that her car accident was “a significant contributing factor to this condition.” The operative report following arthroscopic surgery indicated that there was no obvious meniseal tear and that the only unusual finding present was the amount of synovial overgrowth. The physician stated that the synovial overgrowth could be the cause of Olson’s pain, but he did not offer an opinion as to whether or not the car accident caused the synovial overgrowth.

Following the hearing, the arbitrator issued a decision on August 9, 2001 that awarded Olson benefits related to her back injury. With respect to Olson’s knee injury, the arbitrator stated that

the evidence suggests that the cause of Olson’s continuing pain, disability, and ongoing need for treatment [of her knee] was synovial overgrowth. This arbitrator could find nothing in the records from either side to indicate whether the synovial overgrowth was or was not caused by the car accident of February 13,1998.

As a result, the arbitrator indicated that she was “not denying the medical bills related to the knee injury as unrelated to the car collision.” Because there was insufficient evidence to determine whether

the synovial overgrowth was causally related to the accident, the arbitrator stated that Olson “should be permitted to refile for arbitration if she obtains an opinion that the synovial overgrowth was caused by the * * * car collision.”

Olson filed a second petition for arbitration of benefits related to her knee injury on August 18, 2001. Auto-Owners filed a motion to dismiss the claim in the district court, arguing that it was barred by the doctrines of collateral estoppel and res ju-dicata. Olson countered with a motion to vacate the first arbitration award on the ground that the arbitrator had exceeded her powers by issuing an unresponsive award. The district court agreed with Olson, concluding that “the arbitrator * * * exceeded her authority by failing to resolve some of the issues submitted for arbitration.” Accordingly, the district court vacated the award and ordered that the matter be remanded to the same arbitrator for resolution of Olson’s claim for benefits related to her knee injury.

After the matter was remanded, Olson sent the arbitrator a report from her treating physician dated August 3, 2001. In this report, the physician opined that Olson’s automobile accident was “a significant contributing factor to her ongoing knee pain ⅜ * *, her diagnosis of anteri- or synovial impingement and her subsequent need for arthroscopic surgical intervention.” Auto-Owners was given an opportunity to respond to the additional evidence received. Then, without an additional hearing, the arbitrator issued a second award that included benefits related to Olson’s knee injury.

Olson moved to confirm the second award in the district court. Auto-Owners moved to vacate the- award, arguing that the arbitrator exceeded her powers by considering an issue barred by collateral estoppel and res judicata. The district court confirmed the award, concluding that

[t]he lack of a final decision by the arbitrator on the issue of Olson’s knee injury [in the first award] renders the doctrines of collateral estoppel and res judi-cata inapplicable to that issue.
This appeal follows.
ISSUES
I. Did the district court err in determining that the arbitrator exceeded her powers by failing to decide Olson’s claim for benefits related to her knee injury in the first award?
II. Did the district court err in determining that collateral estoppel and res judicata were inapplicable to Olson’s arbitration claim on remand?
ANALYSIS

Under the Minnesota No-Fault Act, “arbitrators are limited to deciding questions of fact, leaving the interpretation of law to the courts.” Weaver v. State Farm Ins. Cos., 609 N.W.2d 878, 882 (Minn.2000) (citation omitted). An arbitration award must be vacated if an arbitrator has exceeded his or her powers. Minn. Stat. § 572.19, subd. 1(3) (2002).

I.

As a preliminary matter, we consider whether the district court erred in determining that the arbitrator exceeded her powers by issuing the first award without resolving the claims related to Olson’s knee injury. Generally, “the arbitrator has jurisdiction to award, suspend or deny benefits.” Weaver, 609 N.W.2d at 882. Arbitrators may exceed their powers, however, by issuing awards that are unresponsive to the issues submitted. See Metro. Waste Control Comm’n v. City of Minnetonka, 308 Minn. 385, 389, 242 N.W.2d 830, 832 (1976) (holding that arbitrators, acting under restricted submission, exceeded their powers by making a compromise award unresponsive to issue submitted).

The no-fault rules provide an arbitrator with broad authority in evidentiary and procedural matters. Although the rules require that an arbitrator declare a hearing closed after the parties have submitted all of their evidence, an arbitrator has the authority to leave the record open temporarily. Minn. R. No-Fault Arb. 25 states:

The arbitrator shall specifically inquire of all parties as to whether they have any further evidence. If they do not, the arbitrator shall declare the hearing closed. If briefs or documents are to be filed, the hearing shall be declared closed as of the final date set by the arbitrator for the receipt of said briefs or documents. The time limit within which the arbitrator is required to make his award shall commence to run upon the close of the hearing.

See also Minn. R. No-Fault Arb. 30 (stating that an arbitrator must issue award within 30 days of the close of a hearing). Moreover, the no-fault arbitration rules provide that

[t]he parties may offer such evidence as they desire and shall produce such additional evidence as the arbitrator may deem necessary to an understanding and determination of the issues.

Minn. R. No-Fault Arb. 24. Allowing the arbitrator broad authority in such matters is consistent with the overall purposes of the no-fault act. See Minn.Stat. § 65B.42(1), (4) (2002) (stating that purposes include speeding administration of justice, easing burden of litigation on courts, and simplifying and decreasing expense of litigation).

Under the no-fault rules, the arbitrator had the authority to leave the hearing open and to request that the parties submit additional evidence, if available, regarding the cause of Olson’s knee condition. Instead, the arbitrator issued a decision that failed to determine one element of Olson’s claim and concluded that Olson should be permitted to refile for arbitration after obtaining evidence of causation. The arbitrator’s first decision did not award, suspend, or deny all benefits in dispute. Therefore, we conclude that the district court did not err in determining that the arbitrator exceeded her authority by issuing a decision that did not determine all the issues presented.

II.

Auto-Owners argues that the district court erred in confirming the second arbitration award because the arbitrator exceeded her authority on remand by deciding issues that were barred by the doctrines of res judicata and collateral es-toppel. We disagree.

Issues concerning the availability of collateral estoppel and application of res judicata are reviewed de novo. Care Inst., Inc.-Roseville v. County of Ramsey, 612 N.W.2d 443, 446 (Minn.2000). Collateral estoppel “preventfs] parties to an action from relitigating in subsequent actions issues that were determined in the prior action.” Nelson v. Am. Family Ins. Group, 651 N.W.2d 499, 511 (Minn.2002) (quotation omitted). Collateral estoppel does not apply unless there has been a final judgment on the merits. Id.

Res judicata, or claim preclusion, bars a second suit for the same claim by parties or their privies. Res judicata applies when (1) there has been a final judgment on the merits, (2) the same cause of action is involved, and (3) the parties are identical or in privity.

Sunrise Elec., Inc. v. Zachman Homes, Inc., 425 N.W.2d 848, 851 (Minn.App.1988) (citations omitted).

Auto-Owners argues that collateral estoppel and res judicata bar Olson’s claim in the “second arbitration.” But there was no second arbitration. Although Olson filed a second petition for arbitration, she did not proceed with the petition after the district court vacated the first award and ordered that the claim be remanded to the same arbitrator for further proceedings. Because there was no final judgment on the merits, collateral estoppel and res judicata are inapplicable to Olson’s claims on remand. Accordingly, we conclude that the arbitrator did not exceed her powers by considering on remand Olson’s claim for benefits related to her knee injury.

DECISION

Because the arbitrator exceeded her powers by declining to decide in the first arbitration award the issue of what, if any, benefits related to Olson’s knee injury, the district court properly vacated the award. Because collateral estoppel and res judica-ta were inapplicable to Olson’s claim on remand, the district court did not err in confirming the second award.

Affirmed.

      . Appellant challenged the district court's order vacating and remanding the first award, and this court dismissed the appeal as taken from a nonappealable order. Olson v. Auto-

        Owners Ins. Co., No. C2-02-171 (Minn.App. Mar. 5, 2002) (order). Judgment has been entered, and we now review the determination that the arbitrator exceeded her powers. See Minn. R. Civ.App. P. 103.04 (on appeal from judgment, appellate court's “may review any order involving the merits or affecting the judgment”).


text:
    STAR TRIBUNE, et al., Appellants, Metropolitan Sports Facilities Commission, Respondent, v. MINNESOTA TWINS PARTNERSHIP, a Minnesota General Partnership, d/b/a Minnesota Twins Baseball Club and the Minnesota Twins, Respondent, Major League Baseball, an unincorporated association doing business in Minnesota and headquartered in New York, Respondent.
    No. C7-02-1204.
    Court of Appeals of Minnesota.
    April 15, 2003.

      John P. Borger, Eric E. Jorstad, Patricia R. Stembridge, Faegre & Benson, L.L.P. and Christine Jo Caspers, Star Tribune, Minneapolis, for appellants.
    Corey J. Ayling, Andrew J. Shea, Kathleen M. Brennan, McGrann Shea Anderson Carnival, Straughn & Lamb, Minneapolis, for respondent Metropolitan Sports Facilities Commission.
    Roger J. Magnuson, Peter W. Carter, Andrew Hanson, Dorsey & Whitney, L.L.P., Minneapolis, for respondent Minnesota Twins Partnership.
    Joseph W. Anthony, Mark D. Wisser, Anthony Ostlund & Baer, P.A., Minneapolis, for respondent Major League Baseball.
    Considered and decided by PETERSON, Presiding Judge, HARTEN, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellants challenge the district court’s order denying their motions to intervene, to modify the court’s protective order, and to have access to unfiled discovery and sealed pleadings. Appellants, all members of print and electronic media, argue that the district court (1) abused its discretion in entering the protective order and (2) erred by refusing to provide the media with access to the unfiled discovery and sealed pleadings and by denying the media’s motion to intervene. Because we conclude that the district court acted within its discretion and correctly applied the law, we affirm.

FACTS

On July 31, 1998, the Metropolitan Sports Facilities Commission and the Minnesota Twins entered into an agreement, known as the 1998 Baseball Use Agreement. The agreement governs the Twins’ use of the Hubert H. Humphrey Metrodome to play their home baseball games. At the conclusion of the 2001 baseball season, the Twins exercised their option under the 1998 agreement to play the 2002 baseball season in the Metro-dome.

In the fall of 2001, local and national media reported that Major League Baseball (MLB) was considering eliminating two franchises: the Montreal Expos and the Twins. Based on these reports, the commission sued the Twins and MLB, alleging breach of contract and other tort claims.

The district court granted the commission’s motion for a temporary restraining order preventing the sale or elimination of the Twins pending a hearing on the commission’s motion for a preliminary injunction. Shortly thereafter, the district court granted the commission’s motion for a preliminary injunction, requiring the Twins to stay in business and play their entire 2002 schedule. The Twins and MLB appealed the district court’s order, and we affirmed. Metro. Sports Facilities Com’n v. Minn. Twins P’ship, 638 N.W.2d 214 (Minn.App.2002), review denied (Minn. Feb. 4, 2002).

While the injunction appeal was pending, the commission served discovery requests on the Twins and MLB in connection with the underlying suit. One of the commission’s requests sought information on financial relationships between the Twins, or the owner of the Twins, and any other owners of MLB franchises. The Twins and MLB objected to most of the discovery requests and initially produced no documents or substantive information, which resulted in the commission bringing a motion to compel discovery. The district court granted the commission’s motion and ordered the Twins and MLB to provide the information and documents requested.

After the district court’s order compelling discovery and before any information or documents had been produced, the parties stipulated to a protective order, which the court approved. The Twins then provided the commission with access to approximately 20,000 pages of documents, and, later, provided the commission with a CD-ROM containing images of approximately 9,000 pages of documents. MLB did not produce any documents or information to the commission. Additionally, unidentified parties Jane Roe and John Does 1-5 filed a redacted affidavit and memorandum of law with the district court, with an unredacted version filed under seal, objecting to the commission’s discovery requests. They objected to the court’s order compelling the Twins to disclose their personal financial information, which was not held by the Twins, but was held by other entities owned by the Pohlad family.

After the Twins provided the commission with the CD-ROM, appellants Star Tribune, Associated Press, and KARE-11 (media) moved to intervene and to modify the court’s protective order. The stated purpose of the media’s motion was to assert and protect their right and the public’s right to have access to court documents and documents produced in the course of litigation. The media also sent letters to the commission requesting access under Minn.Stat. §§ 13.01-90 (2002), the Minnesota Government Data Practices Act (MGDPA), to all data received by the commission in connection with the lawsuit against the Twins and MLB. When the commission did not provide access to the data as requested by the media, the media sued the commission for violating the MGDPA.

On June 7, 2002, the district court approved a stipulation between the parties to dismiss the commission’s lawsuit. Under the settlement agreement, the Twins and MLB agreed not to eliminate or relocate the Twins for the 2002 or 2003 season. Shortly after the case was settled, pursuant to the district court’s protective order, the Twins demanded the return of all confidential documents provided to the commission. Because the commission felt that the terms of the protective order, mandating return of the Twins’ documents, and the provisions of the MGDPA were in conflict, the commission brought a motion seeking guidance from the court as to how to dispose of the confidential data. On July 10, 2002, the district court issued an order denying the media’s motion to intervene and to modify the parties’ protective order and denying the media’s motion for access to confidential data, including the sealed unredacted affidavit and memorandum filed by Jane Roe and John Does 1-5. The court also ordered the commission to return or destroy all confidential data of the Twins in its possession pursuant to the court’s protective order. On July 26, 2002, the district court granted the media’s motion for a stay of the court’s July 10, 2002 order pending this appeal and ordered the commission to retain the confidential documents. This appeal follows.

ISSUES

I. Did the district court abuse its discretion by entering the protective order?

II. Did the district court err in denying the media access to the CD-ROM that was in the possession of the commission and the unredact-ed affidavit and memorandum of law of Jane Roe and John Does 1-5 that were filed under seal with the district court?

III.Did the district court err by denying the media’s motion to intervene to modify the court’s protective order?

ANALYSIS

I.

The media argue that the district court abused its discretion in entering the protective order. The Minnesota Rules of Civil Procedure give the district court broad discretion to fashion protective orders. Erickson v. MacArthur, 414 N.W.2d 406, 409 (Minn.1987). “Absent a clear abuse of discretion, a trial court’s decision regarding discovery will not be disturbed.” Id. at 407 (citation omitted). Minn. R. Civ. P. 26.03 states:

Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
⅜ ⅜ * ⅜
(g) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way[.]

Generally, the burden of demonstrating good cause rests with the party seeking a protective order. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786-87 (3d Cir.1994) (applying Fed.R.Civ.P. 26(c)). But in complex litigation where a document-by-document review of each document produced would be unfeasible, umbrella protective orders are not uncommon. In re Alexander Grant & Co. Litig., 820 F.2d 352, 356-57 (11th Cir.1987) (explaining that umbrella protective orders are designed to encourage and simplify the exchange of large numbers of documents). In cases involving large numbers of documents, the court may put into place an umbrella protective order upon a general showing of good cause by the producing party. Pansy, 23 F.3d at 787 n. 17. After the documents are produced, an opposing party may indicate which documents, if any, it believes are not entitled to protection, and the burden of demonstrating good cause for each challenged document lies with the party seeking protection. Id.; Alexander, 820 F.2d at 356; see also State ex rel. Humphrey v. Philip Morris, Inc., 606 N.W.2d 676, 686 (Minn.App.2000) (stating that “in complex litigation, it is not uncommon to find a blanket or umbrella order protecting documents based on the producing party’s good-faith assertion that they are confidential.”), review denied (Minn. Apr. 25, 2000).

The media do not argue that umbrella protective orders are, in and of themselves, improper, but they assert that the district court abused its discretion by not addressing the impact of the protective order on the public and the media’s right to obtain information under Minn.Stat. §§ 13.01-.90 (2002), the Minnesota Government Data Practices Act (MGDPA). While district courts have broad discretion in entering protective orders, in exercising that broad discretion in litigation involving government entities, courts must consider the order’s effect on the public’s right to information under the MGDPA. See Ford v. City of Huntsville, 242 F.3d 235, 242 (5th Cir.2001) (holding that the district court abused its discretion by entering a protective order without considering the order’s effect on the public’s right to information under Texas law); Pansy, 23 F.3d at.791 (holding that when a government entity is a party to litigation, no protective order should be entered without consideration of its effect on the disclosure of government records to the public).

In its April 23, 2002 protective order approving the parties’ stipulated confidentiality agreement, the district court found that “[t]he Stipulation and Order follows the provisions of the Data Practices Act (the ‘Act’) as applied to the facts of this case.” The court stated that

[t]o the extent this Stipulation and Protective Order is inconsistent with the provisions of the Act, this Court relies on its broad authority under Minn. R. Civ. P. 26.03 in issuing a protective order appropriate for the specific facts of this case.

The court also stated that the parties would not face liability under the MGDPA for failing to disclose data pursuant to the terms of the protective order.

Here, the district court considered the possibility that its protective order might affect the disclosure of government doeu-ments to the public under the MGDPA. But relying on its broad discretion to fashion protective orders, the district court held that, even though the protective order may be inconsistent with the MGDPA, the protective order was appropriate based on the specific facts of this case. The court determined that the need to assure confidentiality outweighed the public’s right to obtain documents under the MGDPA. Because the district court properly considered the protective order’s effect on the disclosure of documents under the MGDPA and because of the district court’s broad discretion in fashioning protective orders, we conclude that the district court was within its discretion in entering the protective order in this matter.

II.

The media contend that they are entitled to access to the discovery documents that the Twins provided to the commission. The media also argue that they are entitled to have access to the unredacted affidavit and memorandum of law that were filed under seal with the district court by Jane Roe and John Does 1-5.

The district court denied the media’s request for access to these documents. The district court held that the media had no right to have access to the documents that were in the possession of the commission because discovery is generally a private process, and the media had no common-law or First Amendment right to have access to private discovery. The district court also held that the media had no right to have access to the documents that were filed under seal with the court because the documents were protected by a protective order, and the media did not present extraordinary circumstances or a compelling need to modify the protective order.

The media argue that they are entitled to access to- the discovery documents and the unredacted affidavit and memorandum under common law, the First Amendment, and the MGDPA. When determining whether there is a right to access, we focus on the type of documents at issue, and the nature of the parties involved. See generally Minn.Stat. § 13.03, subd. 1 (allowing access to certain types of data in the possession of government agencies, but not providing for access to data in the possession of private parties); Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 202-03 (Minn.1986) (stating that there is a common-law and First Amendment right to have access to civil court records); State ex rel. Mitsubishi Heavy Indus. of Am., Inc. v. Circuit Court, 233 Wis.2d 1, 605 N.W.2d 868, 877-78 (Wis.2000) (holding that there is no common-law or First Amendment right for the public or press to have access to un-filed pretrial discovery).

A. Common Law

Decisions by a district court regarding access to court documents under common law are governed by an abuse-of-discretion standard. Minneapolis Star & Tribune Co., 392 N.W.2d at 206. In Minnesota, there is a common-law right to inspect and copy civil court records. Id. at 202. The common-law right creates a presumption in favor of access. Id. But the common-law right of access is not absolute, and access may be denied where the interests favoring the right of access are outweighed by countervailing interests supporting the denial of access. Id. at 202-03 (stating that courts have a general supervisory power over their files and records). Only if the interests favoring the denial of access are strong enough to overcome the presumption in favor of access may access be denied. Id.

Generally, private documents generated during discovery that are not filed with the court are not considered “judicial records.” United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir.1986) (stating that “documents collected during discovery are not ‘judicial records.’ ”); State ex rel. Mitsubishi, 605 N.W.2d at 873 (stating that “[n]either the press nor the public have a common law right to examine discovery materials as they are being generated in the course of pretrial discovery”). The common-law presumption of access generally only extends to documents that have been filed with the court. State ex rel. Mitsubishi, 605 N.W.2d at 874. Furthermore, documents that are filed with discovery motions are not subject to the common-law right of access, whereas discovery documents “filed in connection with pretrial motions that require judicial resolution of the merits” of the case are subject to the common-law right. Chicago Tribune Co. v. Bridgestone/Firestone, 263 F.3d 1304, 1312 (11th Cir.2001).

1. CD-ROM

The CD-ROM containing 9,000 imaged documents was obtained by the commission from the Twins through the discovery process and was not filed with the court. Because the CD-ROM is pretrial discovery that has not been filed with the court, the media have no common-law right to access. The commission is prevented from providing public access under the MGDPA by the court’s protective order, which is discussed above.

2. Affidavit and Memorandum

The unredacted affidavit and memorandum were submitted to the district court under partial seal by nonparties Jane Roe and John Does 1-5. The non-parties submitted these documents to challenge the commission’s ability to obtain their personal banking records from the Twins through the discovery process. Because the suit was settled and dismissed, the district court never addressed the non-parties’ challenge, finding the nonparties’ motion to be moot. Thus, the district court never relied on the information in the affidavit or memorandum to make a decision regarding the merits of the case. We conclude that the district court was within its broad discretion in allowing the documents to be filed with the court under seal to protect the identities and privacy of the nonparties and providing the nonparties with an opportunity to challenge the commission’s discovery request. Because the documents were submitted with a discovery motion and filed under seal with the court’s specific approval, we conclude that the district court was within its discretion in holding that the nonparties’ documents were not subject to the common-law right to access.

B. First Amendment

Generally, questions of constitutional access to court documents are subject to de novo review. In re Providence Journal Co., 293 F.3d 1, 10 (1st Cir.2002). Similar to the common-law standard, a presumption of access to judicial records exists under the First Amendment. Minneapolis Star & Tribune, 392 N.W.2d at 203. The Minnesota Supreme Court has held that

[i]n order to overcome the presumption in favor of access, a party must demonstrate that a compelling governmental interest exists and that the restriction on access is narrowly tailored to meet this governmental interest.

Id. (citation omitted). To determine whether the constitutional standard applies, a court first looks at the documents in question to determine whether they have historically been open to the public. Id. at 204. If so, the court then examines the constitutional right asserted .to determine whether it warrants protection of the documents. Id.

In the seminal case of Seattle Times Co. v. Rhinehart, the United States Supreme Court stated:

We therefore hold that where, as in this case, a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37, 104 S.Ct. 2199, 2209-10, 81 L.Ed.2d 17 (1984). Relying on the United States Supreme Court’s decision in Rhinehart, the Wisconsin Supreme Court has held that unfiled pretrial discovery documents generated in a civil action are not public records and that no First Amendment right of access extends to such materials. State ex rel. Mitsubishi, 605 N.W.2d at 877-78. Furthermore, it has been held that materials that have been submitted to a court in connection with a discovery motion are not subject to the First Amendment right of access. Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir.1986) (stating that “there is no presumptive first amendment public right of access to documents submitted to a court in connection with discovery motions”).

1. CD-ROM

The CD-ROM at issue is unfiled pretrial discovery. The protective order entered by the court only protected the documents from disclosure as pretrial discovery and did not restrict the dissemination of the information if it was gained from other sources. Because the CD-ROM is pretrial discovery that has not been filed with the court, the media do not have a First Amendment right to have access to the CD-ROM.

2. Affidavit and Memorandum

The district court granted the motion of Jane Roe and John Does 1-5 to have their affidavit and memorandum filed under partial seal. The court was within its broad discretion in sealing the documents to protect the privacy of the nonparties pending the outcome of their motion. Because there is generally no First Amendment. right to access documents that have been submitted to the court in connection with a discovery motion, the affidavit and memorandum are not subject to the First Amendment right of access.

C. Data Practices Act

The media argue that they are entitled to access to the CD-ROM under the MGDPA because it is in the possession of a government agency, the commission. The MGDPA provides that

[a]ll government data collected, created, received, maintained or disseminated by a state agency, * * * shall be public unless classified by statute, * * *, or federal law, as nonpublic or protected nonpublic, or with respect to data on individuals, as private or confidential.

Minn.Stat. •§ 13.03, subd. 1. Under the MGDPA, people generally have the right to request access to public data in the possession of government agencies, and the government agency has the obligation to provide access to the data. Id., subd. 3.

The media assert that they are entitled to access to the CD-ROM because the CD-ROM became “inactive civil investigative data” when the commission decided not to pursue the case further. The MGDPA states that

data collected by state agencies * * * 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 classified as protected nonpublic data * * * in the case of data not on individuals and confidential data * * * in the case of data on individuals.

MinmStat. § 13.39, subd. 2(a). In addition, the MGDPA states:

Inactive civil investigative data are public, unless the release of the data would jeopardize another pending civil legal action, and except for those portions of a civil investigative file that are classified as not public data by this chapter or other law. * * * Civil investigative data become inactive upon the occurrence of any of the following events:
(1) a decision by the state agency * * ⅜ not to pursue the civil action[.]

Id., subd. 3.

The legislature’s principal purpose in adopting MinmStat. § 13.39 was to prevent government agencies from being at a continual disadvantage in litigation by having to prematurely disclose their investigative work product to opposing parties or the public. Op Att’y Gen. 852 (Aug. 4, 2000); Margaret Westin, The Minnesota Government Data Practices Act: A Practitioner’s Guide and Observations on Access to Government Information, 22 Wm. Mitchell L.Rev. 839, 864 n. 156 (1996). In fine with the principal legislative purpose of MinmStat. § 13.39, Minnesota courts have held that civil investigative data do not include:

• a teacher’s personnel data, Navarre v. S. Washington County Sch., 652 N.W.2d 9, 29 (Minn.2002) (holding that personnel data collected by a school district were not civil investigative data because “there was no evidence that * * * the data * * * [were] part of an active investigation undertaken for the purpose of commencing or defending a pending civil legal action.”);

• a notice-of-claim letter, St. Peter Herald v. City of St. Peter, 496 N.W.2d 812, 814 (Minn.1993) (holding that a notice of claim received by city was not civil investigative data because the data were not collected as part of an active investigation); or

• settlement documents, Everest Dev., Ltd. v. City of Roseville, 566 N.W.2d 341, 344 (Minn.App.1997) (holding that settlement documents were not civil investigative data because “they were not created for the commencement or defense of a ‘pending civil legal action,’ but rather for the settlement of a lawsuit.”).

1. CD-ROM

Our first inquiry is whether the CD-ROM constituted civil investigative data. The commission did not obtain the CD-ROM as part of an active investigation for the purpose of the commencement of a pending civil legal action, nor did it retain the CD-ROM in anticipation of a pending civil action. The commission obtained the CD-ROM through discovery after it commenced this civil action against the Twins and MLB. Thus, the CD-ROM was not collected for the purpose of the commencement or in anticipation of a pending civil action because the civil action had already commenced. Additionally, treating documents received through discovery as civil investigative data would not serve the principal statutory purpose of MinmStat. § 13.39, which is to prevent government agencies from being disadvantaged in litigation by having to prematurely disclose their investigative work product to opposing parties and the public. We, therefore, conclude that the CD-ROM never became civil investigative data. Because the CD-ROM was never civil investigative data, it never became inactive civil investigative data. As a result, the media are not entitled to access to the CD-ROM under the MGDPA.

Even if the CD-ROM was public inactive civil investigative data under Minn.Stat. § 13.39, the media would not be entitled to access to the CD-ROM pursuant to Minn.Stat. § 13.393. Under Minn.Stat. § 13.393, government agencies are subject to court rules regarding discovery. The statute states:

Notwithstanding the provisions of this chapter and section 15.17, the use, collection, storage, and dissemination of data by an attorney acting in a professional capacity for the state, a state agency or a political subdivision shall be governed by statutes, rules, and professional standards concerning discovery

Minn.Stat. § 13.393. Under this statute, a protective order that prevents a government agency from providing access to data in its possession governs the public’s right to have access to the data under the MGDPA.

Here, the district court entered a protective order pursuant to Minn. R. Civ. P. 26.03. Under Minn.Stat. § 13.393, the court’s protective order governs the media’s right to access under the MGDPA. Thus, because we determined that the district court was within its discretion in entering the protective order, we conclude that the media do not have a right to have access to the CD-ROM under the MGDPA.

III.

The media argue that the district court erred by denying their motion to intervene as a matter of right to seek modification of the court’s protective order. This court independently assesses the appropriateness of orders denying intervention as a matter of right. Norman v. Refsland, 383 N.W.2d 673, 676 (Minn.1986). Intervention as of right shall be allowed under Minn. R. Civ. P. 24.01 when an applicant for intervention meets the following four criteria:

(1) [A] timely application for intervention; (2) an interest relating to the property or transaction which is the subject of the action; (3) circumstances demonstrating that the disposition of the action may as a practical matter impair or impede the party’s ability to protect that interest; and (4) a showing that the party is not adequately represented by the existing parties.

Minneapolis Star & Tribune, 392 N.W.2d at 207 (citations omitted); see also Minn. R. Civ. P. 24.01. The Minnesota Supreme Court has stated that it is appropriate for a media representative or other interested nonparty to make a motion to intervene as a matter of right under Minn. R. Civ. P. 24.01 when challenging a trial court’s order sealing a file. Minneapolis Star & Tribune, 392 N.W.2d at 207.

The media assert a legally protected interest in the disputed documents in this case based on the common law, the First Amendment, and the MGDPA. As discussed above, the media do not have a right to have access to the CD-ROM or the sealed documents. Therefore, the media do not have an interest relating to the property involved in this action, and the district court properly denied their motion to intervene. Because we conclude that the media do not have an interest relating to the property in this action, we need not reach the issues of timeliness, appellants’ ability to protect their interest, or the adequacy of representation by the existing parties.

DECISION

The district court was within its discretion in entering the protective order and did not err by denying the media’s motion to have access to discovery documents and sealed pleadings and by denying the media’s motion to intervene.

Affirmed.

      . The Metropolitan Sports Facilities Commission owns and operates the Hubert H. Humphrey Metrodome.

      . On February 5, 2002, Major League Baseball (MLB) announced that no baseball teams would be contracted during the 2002 season. Subsequently, MLB and the MLB players' union agreed that no baseball teams would be contracted before the conclusion of the 2006 baseball season.

      . The commission brought a second motion to compel discovery, alleging that the Twins had failed to produce all relevant information and documents and that MLB had not produced any information or documents, in violation of the district court's order. But the court never ruled on the commission’s motion because the parties settled and the discovery disputes became moot.

      . Jane Roe and John Does 1-5 alleged that a discovery request to the Twins was the improper method of obtaining their financial information, which was held by other entities owned by the Pohlad family. Roe and Does 1-5 claimed that the commission was required to follow the procedures set forth in Minn.Stat. §§ 13A.01-.04 (2002) and that the information should have been requested by subpoena, which would have given Roe and Does 1-5 the opportunity to object and be heard.

      .The Star Tribune, Associated Press, and KARE-11 were later joined by Northwest Publications, Inc., the owner of the St. Paul Pioneer Press.

      . The Annotated Manual Fpr Complex Litigation explains that
      [w]hen the volume of potentially protected materials is large, an umbrella .[discovery] order will expedite production, reduce costs, and avoid the burden on the court of document-by-document adjudication. Umbrella orders provide that all ass'ertedly confidential material disclosed (and appropriately identified, usually by stamp) is presumptively protected unless challenged. The orders are made without a particularized showing to support the claim for protection, but such a showing must be made whenever a claim under an order is challenged.
      David Herr, Annotated Manual For Complex Litigation, Third § 21.432, at 79 (2003).


author: HUSPENI, Judge.

text:
    The UNIVERSITY OF MINNESOTA, Respondent, v. Robert J. WOOLLEY, M.D., Relator.
    No. C6-02-1534.
    Court of Appeals of Minnesota.
    April 22, 2003.

      Mark B. Rotenberg, General Counsel, Tracy M. Smith, Associate General Counsel, University of Minnesota, Minneapolis, MN, for respondent.
    Susan M. Robiner, Leonard, Street and Deinard, P.A., Minneapolis, MN, for relator.
    Considered and decided by SHUMAKER, Presiding Judge, WRIGHT, Judge, and HUSPENI, Judge.
   OPINION

HUSPENI, Judge.

By writ of certiorari, relator seeks review of an arbitration decision affirming the termination of his employment pursuant to the University of Minnesotas grievance procedure. We discharge the writ of certiorari on the ground that although relator could have obtained certiorari review of the Phase III administrative decision, judicial review of a Phase IV arbitration decision is available only from the district court pursuant to the Uniform Arbitration Act, Minn.Stat. §§ 572.08-.30 (2000).

FACTS

Relator Robert J. Woolley, M.D., was employed as a physician at Boynton Health Service, a unit of respondent University of Minnesota (university). On September 28, 2001, the director of Boynton Health Service terminated relators employment for just cause on the ground that relator sexually harassed one of the health service employees, violating the university’s sexual harassment policy.

Relator challenged his termination by filing a grievance under the University of Minnesota Grievance Policy. Under “Phase I” of this policy, a grievance officer arranges an informal meeting between the grievant and the administrator responsible for the challenged decision. This meeting did not resolve the issue, so the proceeding then moved to “Phase II,” in which the grievance officer sets a meeting between relator and the supervisor of the administrator imposing discipline. The Phase II meeting also failed to resolve the issue. Relator then sought further review through a “Phase III” hearing before a three-person panel. After the hearing, the Phase III panel sustained the termination.

After signing a written agreement to arbitrate, relator then entered into a “Phase IV” arbitration proceeding. A neutral arbitrator issued an award denying relator’s grievance on July 15, 2002, and the other two members of the panel concurred with the arbitrator’s award on July 16, 2002.

Relator challenges the merits of the arbitrator’s decision through certiorari. The university, in its statement of the case, challenged this court’s jurisdiction to review the arbitration award. This court then issued an order questioning jurisdiction, requesting memoranda from both parties. We then issued a preliminary ruling that the university had not established that this court lacked certiorari jurisdiction, but deferred a final ruling until the appeal was decided on the merits, in view of the limited record before the court. The parties were ordered to address the jurisdictional issue further in their briefs.

ISSUE

Does the court of appeals have subject-matter jurisdiction to consider a certiorari challenge to an arbitration decision upholding relator’s discharge from his employment at the university pursuant to the university’s grievance procedure?

ANALYSIS

Whether the court of appeals has subject-matter jurisdiction over a certiora-ri appeal is a question of law reviewed de novo. Shaw v. Bd. of Regents of Univ. of Minn., 594 N.W.2d 187, 190 (Minn.App.1999), review denied (Minn. July 28, 1999).

[I]n the absence of an adequate method of review or legal remedy, judicial review of the quasi-judicial decisions of administrative bodies, if available, must be invoked by writ of certiorari.

Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992). Because no statute specifically permits an appeal from an administrative decision to terminate the employment of a university employee, “certiorari pursuant to Minn.Stat. § 606.01 (1998) is the only method available for review of a university decision.” Shaw, 594 N.W.2d at 191 (citing Dietz, 487 N.W.2d at 239).

At issue here is whether the Phase III decision or the Phase IV decision is the quasi-judicial decision subject to certiorari review. There are three indicia of quasi-judicial actions:

(1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim.

Minn. Ctr. for Envtl. Advocacy v. Metro. Council, 587 N.W.2d 838, 842 (Minn.1999) (.MCEA). Failure to meet any of the three indicia is “fatal” to a claim that the proceedings were quasi-judicial. Id. at 844.

We note initially that there is a considerable lack of clarity in the university’s grievance policy — a lack that adds an additional challenge to those already presented by the jurisdictional questions raised in this case. Nonetheless, we begin our attempt to answer those questions by examining the Phase III decision. Under the university’s grievance policy, “[t]he purpose of Phase III is to provide an internal evidentiary hearing by a three person panel.” After the hearing, the panel is to “prepare a decision consisting of a statement of the issues, contentions of the parties, findings of fact, opinion and award, if any.” Thus, the first two indicia of a quasi-judicial action are met.

The more complicated question is whether the Phase III decision is a final one. The scope of certiorari review and a determination of whether a decision is a quasi-judicial one are legal questions that should be decided by this court. Shaw, 594 N.W.2d at 190. Quasi-judicial decisions determine the rights of the contending parties and are binding upon them. Meath v. Harmful Substance Compensation Bd., 550 N.W.2d 275, 280 (Minn.1996). “[C]ertiorari will not ordinarily lie unless there is a final determination of rights.” State ex rel. Mosloski v. County of Martin, 248 Minn. 503, 506, 80 N.W.2d 637, 639 (1957).

In determining whether a decision is a final one appropriate for certiora-ri review, courts will examine the relevant statutes or rules or assess whether the parties treated the matter as final. Mowry v. Young, 565 N.W.2d 717, 720 (Minn.App.1997), review denied (Minn. Sept. 18, 1997). If the challenged order is interlocutory or intermediate, it is not a final order subject to certiorari review. Overseas Commodities Corp. v. Dockman, 389 N.W.2d 254, 256 (Minn.App.1986).

We also examine caselaw for assistance in resolving this issue. In Overseas Commodities, this court held that under the governing ordinances, a decision by a civil rights department reversing and remanding a determination of no probable cause was not a final order appropriate for certiorari review. 389 N.W.2d at 256. In Mosloski, the supreme court held that an order issued following a preliminary hearing in a ditch proceeding was not a final determination subject to judicial review, where the statute provided for a final hearing at which the location of the ditch could be determined. 248 Minn, at 508, 80 N.W.2d at 640. In contrast, in Mowry, the termination decision was deemed final where employee was notified it was final and the record did not indicate that the parties treated it as other than final; the fact that the termination may not have been valid because it had not been approved by the requisite committee did not preclude its finality but rather was an issue to be addressed upon certiorari review. 565 N.W.2d at 720.

Consistent with the rationale of Mowry, we focus initially on whether the university treats a Phase III decision as final. We cannot ignore, however, that “[w]e review de novo the issue of jurisdiction without deference to the lower” body. MCEA, 587 N.W.2d at 842 (citation omitted).

We therefore examine the language of the grievance policy to determine whether the Phase III decision is a final, appealable one. The policy provides as to Phase III:

If the Phase III panel decision is favorable to the grievant, the University will implement it, unless the Senior Vice President for Academic Affairs delivers a written notice to the UGO and the grievant within ten (10) work days of the receipt of the Phase III panel’s decision stating that the decision is not acceptable and the reasons why it is not acceptable. In this event, the grievant may request Phase IV arbitration.
If the decision of the Phase III panel is not favorable to the grievant, the grievant may choose to proceed to Phase IV arbitration. If the Phase III decision is not acceptable to the University, or if it is not favorable to the grievant, the grievant must deliver a written notice of intent to proceed to Phase IV to the UGO and the Phase III University representative within ten (10) work days after the grievant received the Phase III hearing panel decision or the Senior Vice President’s notice, whichever occurred last, unless there are compelling reasons for delay.
If the grievant chooses to proceed to arbitration, the grievant shall sign an acknowledgement of his/her voluntary-choice to proceed to binding arbitration to resolve the grievance and/or discovery dispute, and shall waive and release all rights to pursue substantially the same claim in any other forum.

Thus, under the language of the grievance policy, when a Phase III decision is favorable to the university, that decision is the final decision of the university. When a Phase III decision is unfavorable to the university, that decision, we suppose, might be accepted by the university nonetheless, the grievant ordinarily then would be satisfied, and, if so, no more would be heard of the matter. But a far more likely action in the case of a Phase III decision unfavorable to the university would be the one allowed by the grievance policy: the university’s vice-president for academic affairs would issue notice rejecting the decision, which then becomes the final decision of the university. The inevitable conclusion, it seems to us, is that a Phase III procedure would always be final from the viewpoint of the university, either because the panel decision was favorable to the university initially or because the senior vice president rejected the panel’s decision and indicated why.

What if the Phase III decision is unfavorable to the grievant? Is that decision final as to him or her? It is in seeking to answer this question that the lack of clarity in the grievance policy becomes most evident and troublesome. Despite the linguistic thicket through which a grievant must struggle, however, he or she must be held to understand that a voluntary choice is being made to proceed further. The grievant may request Phase IV arbitration, and upon doing so must provide timely written notice to certain individuals and entities. The grievance policy does not, however, contain language specifically informing a grievant that by electing to proceed to Phase IV he or she will be abandoning the right to seek review by certiorari of a Phase III decision. This court must answer the question of whether a Phase III decision is “final” in the sense that it is a “binding decision regarding the disputed claim” under MCEA, or merely one more step that must be completed to exhaust all administrative remedies.

We recognize that a university employee challenging an adverse employment decision by the university “must exhaust the grievance process applicable to [the] position” before seeking review by writ of certiorari. Stephens v. Bd. of Regents of Univ. of Minn., 614 N.W.2d 764, 774 (Minn.App.2000), review denied (Minn. Sept. 26, 2000). In Stephens, however, the relator withdrew her grievance and failed to proceed through any of the Phases of the university’s grievance process. Id. at 776. This court explicitly recognized but did not reach the issue of whether a party would be precluded from seeking judicial review before exhausting Phase IV arbitration in which a grievant agrees to binding arbitration. Id. at 776 n. 8.

We must answer here the question left unanswered in Stephens. In seeking that answer we review not only the language of Phase III, but that of Phase IV and the purpose section also. Complicating our search for an answer to this is the fact that there are several references throughout the policy to Phase IV as being the “final and binding” decision.

The purpose section provides:

An employee who chooses to proceed to Phase IV arbitration shall be required to sign a waiver which, at that point, shall create contractual obligations between the University and the employee. The Phase IV arbitration award is the only feature of this policy which is legally final and binding on both the University and the employee.

(Emphasis added.) Addressing Phase III procedures, the grievance policy states:

The purpose of Phase III is to provide an internal evidentiary hearing * * *. * * * If the Phase III decision is * * * not favorable to the grievant, the griev-ant must deliver a written notice of intent to proceed to Phase IV to [the university]. * * * If the grievant chooses to proceed to arbitration, the grievant shall sign an acknowledgement of his/her voluntary choice to proceed to binding arbitration to resolve the grievance * * * and shall waive and release all rights to pursue substantially the same claim in any other forum.

(Emphasis added.) Addressing Phase IV — Arbitration, the policy states:

The purpose of Phase TV is to provide an opportunity for the parties to voluntarily engage in final and binding arbitration * * * of the grievance. * * * The decision is legally binding.

(Emphasis added.) While this language refers to the final and binding arbitration decision, we conclude that this language does not preclude a determination that a Phase III decision is a quasi-judicial decision-subject to certiorari review. Instead, it underscores the final and binding nature of an arbitration decision.

It may be argued that discussion of Phase III in the grievance policy could have or should have included some language indicating that the internal, administrative procedures of the university were concluded when a Phase III decision (either by the panel or by the vice-president of academic affairs) was made, and review of a final administration decision was possible at that point. But our construction of what language is in the policy causes us to conclude that grievant was sufficiently put on notice that at the conclusion of Phase III his involvement with an internal process was at an end, and that review of a final administrative proceeding was available to him. He must be held to have known from policy language that if he chose to proceed to Phase IV he would be entering into a process which would result in an arbitration panel decision binding upon both parties (substantially different from the Phase III panel decision which could be overturned by the vice-president for academic affairs); that in proceeding to Phase IV he was required to take actions not required of him as he moved through earlier Phases' of the grievance procedure; that while he was free to choose to proceed to Phase IV, he would also be choosing to waive any opportunity he had for review of the Phase III decision in favor of submitting to the Phase IV procedure and any review available to him at the conclusion of that procedure.

We conclude that a party not only may seek judicial review through certiorari before exhausting Phase IV arbitration, but must seek such review after Phase III if that review is to be through a writ of certiorari. In reaching this decision, we, of necessity, conclude that Phase III is a final administrative decision.

Finally, our conclusion that review by writ of certiorari was available to relator upon the conclusion of Phase III is consistent with the substantial body of caselaw which requires that review of quasi-judicial decisions of administrative bodies, if available, must be invoked by writ of certiorari. See Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992); Shaw, 594 N.W.2d at 191. We note again that courts, not parties, must answer questions of subject-matter jurisdiction, and that courts cannot confer subject-matter jurisdiction where -none exists. Hemmesch v. Molitor, 328 N.W.2d 445, 447 (Minn.1983). To reach a conclusion in this ease that a Phase III decision does not provide an opportunity for grievant to seek review by certiorari would be to severely undermine that substantial body of caselaw which has evolved during the last decade.

Our conclusion that relator could have sought review by writ of certiorari at the conclusion of the Phase III proceeding does not end our inquiry in this case. Notwithstanding how a Phase III decision may be categorized, relator contends that the Phase IV arbitration proceeding is a university decision reviewable by certiorari and is not arbitration governed by the Uniform Arbitration Act (UAA). We therefore examine the nature of the Phase IV proceeding within the context of the UAA, which provides in relevant part:

A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.

MinmStat. § 572.08 (2000). The UAA specifically applies “to arbitration agreements between employers and employees or between their respective representatives unless otherwise provided in the agreement.” Id. “In the absence of a contrary agreement between the parties, written agreements to arbitrate are interpreted with reference to the Uniform Arbitration Act.” Wacker v. Allstate Ins. Co., 312 Minn. 242, 248, 251 N.W.2d 346, 349 (1977) (citation omitted).

The policy behind arbitration is to ensure a “speedy, informal and inexpensive procedure for resolving controversies.” Franke v. Farm Bureau Mut. Ins. Co., 421 N.W.2d 406, 408 (Minn.App.1988), review denied (Minn. May 25, 1988). Caselaw also makes it clear that the UAA applies to agreements between public employers and their employees. State v. Berthiaume, 259 N.W.2d 904, 909 (Minn.1977) (addressing arbitration provisions in public collective bargaining agreement); see Lueth v. City of Glencoe, 639 N.W.2d 613, 618 (Minn.App.2002) (holding district court has subject-matter jurisdiction to decide arbitration issue raised by public employee), review denied (Minn. Apr. 16, 2002).

We first consider whether the arbitration agreement in this case “otherwise provide[s]” that the UAA does not apply. Minn.Stat. § 572.08. The arbitration agreement is entitled “Robert J. Woolley, M.D. Grievance Agreement for Binding Arbitration Waiver and Release.” It states that the university and relator agree to submit the issues to “final and binding” arbitration pursuant to the university grievance procedure and that “both parties agree to be bound by the arbitration decision.” It also provides that by agreeing to submit to arbitration, the relator waives any right to pursue the issues elsewhere. Relator acknowledged in the agreement that he was advised to consult with an attorney; he had 21 days to consider the agreement and, after signing it, had 15 days to cancel it. The agreement does not explicitly refer to the Uniform Arbitration Act or specifically provide that the arbitrator’s decision will be subject to judicial review under Minn.Stat. ch. 572 (2000); in hindsight, a reference to ch. 572 would have been informative. But, we are convinced that the mere absence of a reference to the UAA is not sufficient to take an agreement to arbitrate out of the UAA statute, where the statute provides that it applies to arbitration agreements “unless otherwise provided in the agreement.” Minn.Stat. § 572.08. Most assuredly there is no language in the parties’ arbitration agreement “providing otherwise.”

In continuing to contend that Phase TV arbitration is merely a continuance of the university’s procedure in addressing his grievance, relator relies upon Cross v. County of Beltrami, 606 N.W.2d 732 (Minn.App.2000). We find Cross distinguishable. There, the county employee challenged the decision to discharge him, and the parties submitted the matter to the Bureau of Mediation Services, which determined the issue should be decided by an independent arbitrator. Id. at 734. The arbitrator held the employee should have been disciplined, not discharged, but the county nonetheless sustained the discharge. This court ruled that under the applicable rules, the bureau had final authority on the resolution of grievances, even if it delegated that authority to an arbitrator. Id. at 735.

For the UAA to apply, there must be a written agreement by the parties. Minn.Stat. § 572.08. In Cross, the parties did not have a written agreement to arbitrate; instead, the arbitration came about as a result of the decision by the bureau to refer the matter to arbitration under its own rules. In contrast, here it was relator’s choice to proceed to arbitration. Far more relevant than Cross to relator’s situation is caselaw indicating that an aggrieved public school employee to whom arbitration is available may elect to obtain review through arbitration, under which limited judicial review is available under chapter 572, or from the school board, whose decision would be reviewable through certiorari. Falgren v. State Bd. of Teaching, 545 N.W.2d 901, 906 (Minn.1996) (holding that findings from arbitration decision on termination of teacher could be used as collateral estoppel in later teacher license revocation hearing). “[B]y choosing to have his discharge reviewed before an arbitrator, [the employee] waived his rights to broader judicial review.” Id.

Finally, relator contends that the UAA does not apply because the university grievance policy includes at least four provisions contrary to the UAA, including provisions relating to interest, to representation by an attorney, to the timeline, for an award, to the failure to explicitly refer to two out of the three participants in the arbitration decision as “arbitrators,” and because of references to internal review.

We recognize that “the right to arbitrate is governed by contract and the parties may fashion whatever agreement they wish to limit the scope of the proceedings.” Grover-Dimond Assocs. v. Am. Arbitration Ass’n, 297 Minn. 324, 326, 211 N.W.2d 787, 788 (1973). Certain rights, however, may not be waivable. Grudem Bros. Co. v. Great W. Piping Corp., 297 Minn. 313, 316, 213 N.W.2d 920, 922 (1973) (noting that attempts to waive right to attorney provided in UAA “prior to the proceeding or hearing [are] ineffective”). An arbitration agreement whose terms are not fully consistent with the UAA is not necessarily an arbitration agreement not governed by the UAA.

The arbitration proceeding in this case was, we conclude, governed by the UAA. Under the UAA, a party who agrees to arbitration has certain limited rights of judicial review under the act, which “does not involve the direct, judicial review of an administrative body’s decision” under cer-tiorari. Lueth, 639 N.W.2d at 618. The party may bring an action to compel or stay arbitration. Minn.Stat. § 572.09 (2000). A party may move for confirmation of an award, id. § 572.18, to vacate an award, id. § 572.19, or to modify or correct an award. Id. § 572.20. Further, these decisions may be appealed to this court. Id. § 572.26. But certiorari review of an arbitration decision — even one relating to discharge of a public employee — is not available. Lueth, 639 N.W.2d at 618.

There is no provision in the [UAA] that permits a public employer to bypass the district court and seek initial review of an arbitration award in [the court of appeals] by writ of certiorari ⅜ * *.

Id. (citation omitted). Consequently, we must reject relator’s argument that the Phase IV arbitration decision is reviewable by this court by writ of certiorari. That decision is reviewable by the district court pursuant to Minn.Stat. § 572.08. This court lacks subject-matter jurisdiction of the issues relator wishes to bring before us.

Having determined that subject-matter jurisdiction is lacking in this case, we do not address the question of whether there was just cause to discharge relator from employment with the university.

A final observation: The decision we have reached here has not been an easy one. Arguments could be made that the language of the grievance policy creates a “trap for the unwary.” We have expressed our concern with that language at several points in this opinion. We urge the university to revisit, review, reconsider, and revise the language of the policy to whatever extent is needed to enhance clarity. We are unable, however, to equate lack of clarity in grievance policy language with a desire or intention on the part of the university to mislead. Applying both the language of the grievance policy and the substantial caselaw that has, developed in recent years, we reach the inevitable conclusion that grievants may obtain direct certiorari review from the final decision of the university after Phase III or may proceed to binding arbitration, from which decision the grievant may obtain only limited judicial review under the UAA.

DECISION

Because this court doés not have jurisdiction to review an arbitration decision pursuant to the UAA in a certiorari appeal, we discharge the writ.

Writ of certiorari discharged.

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

      . In Falgren, 545 N.W.2d at 906, the employee's choice of review by the school board or by the arbitrator was set out by statute, Minn. Stat. § 125.12, subds. 9, 9a (1990 & Supp. 1991); the former was subject to certiorari review while the latter received more limited judicial review. While no such specific statutory guidance existed here, as we discussed extensively in the body of this opinion and as supported by substantial caselaw, relator nonetheless had the choice of review of the university's decision by certiorari or arbitration, the latter of which had more limited judicial review.

      . We do not suggest specific clarifying language, and we again recognize that it is the court, rather than an agency, that must ultimately determine where jurisdiction lies. But we note that several administrative agencies, including the Departments of Health, Human Services, and Economic Security, do offer guidance to parties regarding steps to be taken to obtain judicial review of quasi-judicial agency decisions.

      . The position taken by the university in this case is consistent with its position in Stephens. In a unique case, this court held that a county was equitably estopped from challenging the district court's subject-matter jurisdiction where a county ordinance specifically directed a landowner to appeal the county board's decision to district court. Shetka v. Aitkin County, 541 N.W.2d 349, 353 (Minn.App.1995), review denied (Minn. Feb. 27, 1996). Although the grievance policy in this case is not a model of clarity, the university did not affirmatively misrepresent that the Phase IV arbitration decision could be reviewed by certiorari. Instead, arbitration did not occur until relator signed an agreement waiving any right to pursue the issues elsewhere. See Naegele Outdoor Adver., Inc. v. Minneapolis Cmty. Dev. Agency, 551 N.W.2d 235, 237 (Minn.App.1996) (distinguishing Shetka because there was no evidence that hearing officer affirmatively misrepresented the proper method of appealing his decision).