source: Caselaw Access Project

author: PAGE, Justice. MEYER, Justice ANDERSON, PAUL H., Justice

license: Public Domain

text:
    Richard WEINBERGER, petitioner, Appellant, and Independent School District No. 622, et. al., Defendants, v. MAPLEWOOD REVIEW, et. al., Respondents.
    No. C7-01-2021.
    Supreme Court of Minnesota.
    Sept. 11, 2003.

      Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, Minneapolis, MN, for Appellant.

      Mark A. Anfinson, Minneapolis, MN, for Respondent.
    John Borger, Eric E. Jorstad, Patricia R. Stembridge, Faegre & Benson, LLP, Minneapolis, MN, for Amicus Curiae on Behalf of Minnesota Society of Professional Journalists.
    Lucy A. Dalglish, Arlington, VA, for Amicus Curiae for Reporters Committee for Freedom of the Press; Society of Professional Journalists; The Newspaper Guild-CWA; and The Minnesota Newspaper Guild Typographical Union in Support of Respondents.
   OPINION

PAGE, Justice.

This appeal arises from appellant Richard Weinberger’s motion to compel the Maplewood Review and two of its reporters, Jason Tarasek and Wally Wakefield, to disclose the identity of certain sources quoted in an article published by the Ma-plewood Review in January of 1997. Weinberger sought the identity of the sources in connection with a lawsuit he brought against Independent School District No. 622, Barbara Hallbrehder, Tim Hickey, Cletus Lipetzky, and Mark Klings-porn (collectively, “the Tartan Defendants”) for defamation. In July 2000, Weinberger served Wakefield with a subpoena requesting a deposition and the identities of the sources quoted in the January 1997 article, but Wakefield refused to comply. Weinberger then filed a motion to compel disclosure, which the trial court granted. Wakefield appealed and the court of appeals reversed and remanded for additional findings.

On remand, the district court granted Weinberger’s motion to compel. Wake-field appealed and again the court of appeals reversed, this time concluding that a nonparty newspaper reporter could not be required to disclose the source of allegedly defamatory information published about a public official when “the primary purpose of disclosure is not relevant to obtaining evidence of actual malice but rather to make the reporter a witness against defendants, and there is no prima facie showing that the statements are false or were made with actual malice.” Weinberger v. Maplewood Review, 648 N.W.2d 249, 260 (Minn.App.2002). We granted Weinberger’s petition for further review and now reverse.

Weinberger sued the Tartan Defendants for defamation, alleging that they collaborated to remove him from his position as head football coach at Tartan High School by destroying his reputation through spreading false rumors and publishing false information in the Maplewood Review. The January 1997 article at the heart of this appeal discussed Wein-berger’s unexpected termination as head football coach and contained a number of quotes from alleged “sources” in the school district discussing why Weinberger was terminated. Although there were several quotes directly attributed to Lipetzky, Tartan’s principal, the majority of the information in the article was attributed to unnamed sources. Of these statements, Weinberger identified at least 11 statements from the January 27, 1997, article that he contends are untrue and defamatory. Although he maintains that Lipetzky, Klingsporn, and Hickey made these allegedly defamatory statements, he does not know which of these individuals, if any, actually made any of the statements in question.

In July 2000, Weinberger served Wake-field with a subpoena requiring that he submit to a deposition and provide all documents concerning or related to Wein-berger. When Wakefield refused to comply, Weinberger filed a motion to compel. The district court denied Weinberger’s motion because Weinberger had not exhausted all alternative sources for the information sought. After completing depositions of Lipetzky, Klingsporn, Hickey, and Hallbrehder, each of whom failed to identify who made the alleged defamatory statements noted above, Weinberger renewed his motion to compel. The district court granted this motion, requiring that Wakefield provide by interrogatory answer the name of the original source of each statement identified by Weinberger as defamatory.

On appeal, the court of appeals reversed and remanded for further fact-finding consistent with Bauer v. Gannett Co. (KARE 11), 557 N.W.2d 608 (Minn.App.1997). On remand, the district court applied Bauer and concluded that on the facts of this case disclosure was appropriate and granted Weinberger’s motion. In its order, the district court limited the required disclosure to the identification by written interrogatory as to “which defendant, if any, is the original source for each of the following statements.”

Again, on appeal, the court of appeals reversed, concluding that Weinberger had: (a) failed to establish a prima facie case that the statements at issue are false or made with actual malice; (b) failed to demonstrate that the disclosure ordered will clearly lead to relevant evidence of actual malice; and (c) failed to demonstrate how his interest in disclosure is more significant than the chilling effect that will result from making a reporter a witness against sources to whom he promised confidentiality.

Resolution of this case requires us to interpret the defamation exception found in the Minnesota Free Flow of Information Act, Minn.Stat. §§ 525.021 through 525.025. We review the construction of statutes de novo. See Ryan Contracting, Inc. v. JAG Invs., Inc., 634 N.W.2d 176, 181 (Minn.2001) (“Statutory construction is * * * a question of law which we review de novo.”). When interpreting a statutory provision, we first look at whether the words of the statute are clear or ambiguous. Am. Family Ins. Group v. Schroedl, 616 N.W.2d 278, 277 (Minn.2000). If the words of the statute are clear and free from all ambiguity, we will not ignore the clear meaning “under the pretext of pursuing the spirit.” Minn. Stat. § 645.16 (2002). In doing so, we construe the words and phrases of the statute according to their plain and ordinary meaning and only find the language ambiguous when it is subject to more than one reasonable interpretation. Id.

The act was designed to “protect the public interest and the free flow of information” by giving the news media “a substantial privilege not to reveal sources of information or to disclose unpublished information.” Minn.Stat. § 595.022. This privilege protects any person “who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public.” Minn.Stat. § 595.023. While recognizing and designing a substantial privilege for the news media, the legislature created two exceptions to that privilege that require disclosure of unnamed sources under certain limited circumstances. The first exception, one not relevant here, is applicable in criminal cases; the second is applicable in “any defamation actions.” MinmStat. §§ 595.024 (criminal), 595.025 (defamation). The exception found in section 595.025 requires disclosure when “the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.” MinmStat. § 595.025, subd. 1. The person seeking disclosure must also show that “there is probable cause to believe that the source has information clearly relevant to the issue of defamation” and that “the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights” before disclosure will be required. Minn. Stat. § 595.025, subd. 2(a) and (b).

In Minnesota, a plaintiff pursuing a defamation claim must prove that the defendant made: (a) a false and defamatory statement about the plaintiff; (b) in unprivileged publication to a third party; (c) that harmed the plaintiffs reputation in the community. Britton v. Koep, 470 N.W.2d 518, 520 (Minn.1991). When the plaintiff is a public official and the statement relates to the individual’s official conduct, the plaintiff must prove not only that the statement was false, but also that the statement was made with actual malice. Id. A statement is made with actual malice when it is made with the “knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); see also Britton, 470 N.W.2d at 520. The district court determined that for the purposes of this action Weinberger is a public official and therefore must prove defamation with actual malice to successfully pursue his claim against the Tartan Defendants.

We begin our analysis by addressing whether Weinberger “can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.” Minn.Stat. § 595.025, subd. 1. Under the Minnesota Rules of Evidence, relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401 (emphasis added); see, e.g., Boland v. Morrill, 270 Minn. 86, 98-99, 132 N.W.2d 711, 719 (1965) (stating that “any evidence is relevant which logically tends to prove or disprove a material fact in issue”). To prove actual malice, the plaintiff has to show that the declarants spoke with the knowledge that their statements were false or with reckless disregard as to whether the statements were false or not. See Sullivan, 376 U.S. at 279-80, 84 S.Ct. 710; Britton, 470 N.W.2d at 520. Therefore, under the language of section 595.025, the defamation exception applies when a plaintiff can demonstrate that the identity of the source will lead to evidence having any tendency to prove or disprove that the defendants spoke with the knowledge that the statements were false or with reckless disregard as to whether the statements were false or not. This does not mean, as the court of appeals required, that the plaintiff has to prove that the declarant indeed spoke with actual malice before the exception can be applied. Rather, under the plain language of the statute, we conclude that the statute requires only that the plaintiff establish that the identity of the source will lead to relevant evidence on the issue of actual malice.

In cases such as the one before us today, in which the plaintiff has alleged that the defendant is the source of the allegedly defamatory statements, relevant evidence constitutes not only evidence on the source’s knowledge, but also the source’s identity. As noted above, in order to prove that a defendant acted with actual malice, the plaintiff must establish that the defendant made statements that he or she knew were false or acted with reckless disregard as to whether the statements were true or false. When the identity of the speaker is known and clearly identified, all that the plaintiff needs to establish to prove actual malice is what the defendant knew at the time the statements were made. However, when the identity of the speaker is hidden under the cloak of anonymity because the speaker has published his or her allegedly defamatory statements through a newspaper that has not attributed the statements directly to the speaker, it is self-evident that the identity of the speaker will lead to relevant evidence on the issue of actual malice.

Here, Weinberger has alleged that Lipetzky, Klingsporn, and Hickey are the unnamed sources quoted in the January 27 article. The district court has determined that the statements, if false, are defamatory and that, based on the depositions and affidavits submitted by the plaintiff, material issues of fact exist' as to whether these statements were made with actual malice. By requiring that Wakefield only disclose the identity of the unnamed sources who are Tartan Defendants, the trial court has ensured that disclosing the unnamed sources’ identity will lead to evidence having a tendency to prove or disprove that the declarant spoke with knowledge that the statements were false or with reckless disregard to their truth or falsity. If none of the Tartan Defendants are the source for the allegedly defamatory statements, then Weinberger’s claim with respect to these statements ends. Because actual malice is a fact of consequence and because knowing whether any of the named Tartan Defendant’s made any of the allegedly defamatory statements will allow Weinberger, through discovery, to obtain evidence that will have a tendency to either prove or disprove actual malice, we conclude that Weinberger has satisfied the requirement for disclosure under section 595.025, subdivision 1.

Next, we must determine whether “there is probable cause to believe that [Wakefield’s unnamed] source[s] have information clearly relevant to the issue of defamation.” Minn.Stat. § 595.025, subd. 2(a). As explained by the Connecticut Supreme Court, in civil cases probable cause constitutes “ ‘a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.’ ” New England Land Co. v. DeMarkey, 213 Conn. 612, 569 A.2d 1098, 1103 (1990) (quoting Wall v. Toomey, 52 Conn. 35, 36 (1884)); see also Black’s Law Dictionary 1219 (7th ed.1999) (defining “probable cause” as “[a] reasonable ground to suspect that a person has committed or is committing a crime”). Here, the probable cause requirement of section 595.025, subdivision 2(a), is satisfied because the narrowness of the district court’s disclosure order insures that the unnamed sources will have information relevant to the defamation claim. As noted above, the order only requires disclosure of the identity of sources who are named Tartan Defendants and then only with respect to any of the 13 allegedly defamatory statements they made. Because the source of a statement will have information clearly relevant to whether the statement is defamatory, if any of the Tartan Defendants are the source of any of the allegedly defamatory statements, there is probable cause to believe that they have information clearly relevant to defamation. Therefore, we conclude that Weinberger has met the requirements for disclosure under section 595.025, subdivision 2(a).

Finally, we must determine whether “the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights.” Minn.Stat. § 595.025, subd. 2(b). The district court determined:

The parties, including the newspaper, do not dispute that plaintiff has been unable to secure the information sought by alternative means. Plaintiff has deposed each of the defendants, all of whom are or were representatives of the school district. Not one of the defendants has owned up to any of the statements in question or provided information as to the source. Nor has plaintiff been able to secure this information through investigation or other discovery. It is obvious that the only persons who know the source of each of the statements are the declarants and the reporters. It follows that if plaintiff can[]not determine the source of the statements from the declarants, the only other available means to secure that information is from the reporters.

The court of appeals agreed with the district court that this factor weighed in Weinberger’s favor. Weinberger, 648 N.W.2d at 260. Moreover, before this court, the parties do not dispute that the requirements of section 595.025, subdivision 2(b), have been satisfied. Therefore, we conclude that Weinberger has met the requirements for disclosure under section 595.025, subdivision 2(b).

Because we conclude that Weinberger has satisfied each of the statutory requirements for disclosure under Minn.Stat. § 595.025, we conclude that the district court properly found that the statutory requirements for compelled disclosure were satisfied and hold that Wakefield must comply with the district court’s order.

Reversed and remanded.

Dissenting, MEYER and ANDERSON, PAUL, H., JJ.

MEYER, Justice

(dissenting).

I dissent. Under a straightforward application of First Amendment principles to the facts of this case, I would conclude that the Maplewood Review reporter has the right to keep his sources anonymous. The majority applies Minnesota’s Free Plow of Information Act to deny the reporter the First Amendment’s protection, even though the purpose of the Free Flow Act is to provide a shield against disclosure of confidential sources — a shield that was intended to give more protection to reporters than is available under the First Amendment. The majority reaches a paradoxical result, finding the reporter unprotected by the shelter of the Act, despite the presence of constitutional protection against compelled disclosure.

I begin with some observations about the essential role of a free press in a democratic society. Reporters’ use of anonymous sources strengthens our system of democracy, allowing knowledgeable individuals to critique public officials or policies without fear of reprisal. See Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 585, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983) (“An untrammeled press is a vital source of public information, and an informed public is the essence of working democracy”) (internal alterations and citation omitted); Laurence B. Alexander, Looking Out for the Watchdogs: A Legislative Proposal Limiting the Newsgathering Privilege to Journalists in the Greatest Need of Protection for Sources and Information, 20 Yale L. & Pol’y Rev. 97, 104-07 (2002). Courts protect the anonymity of reporters’ sources in part so that whistleblowers’ speech is not chilled. As a federal circuit court stated:

A journalist’s inability to protect the confidentiality of sources s/he must use will jeopardize the journalist’s ability to obtain information on a confidential basis. This in turn will seriously erode the essential role played by the press in the dissemination of information and matters of interest and concern to the public.

Riley v. City of Chester, 612 F.2d 708, 714 (3d Cir.1979) (citations omitted); accord The Reporters Committee for Freedom of the Press, Agents of Discovery: A Report on the Incidence of Subpoenas Served on the News Media in 1999 15 (2001) (noting that the burden that subpoenas place “on newsgathering strikes at the very notion of the press as an independent, impartial watchdog that has provided an essential service in this country for centuries”). The concern is not merely hypothetical, but has been borne out in practice. Newspapers in states that protect journalists from subpoenas of their anonymous sources conduct more investigative reports than do their counterparts in states without such laws. Alexander, supra, at 102.

The majority fails to give any First Amendment context to its decision, which is where I would begin my analysis. I would analyze this case first under traditional constitutional principles, and then apply the factors set forth in Minnesota’s Free Flow of Information Act. The foundational United States Supreme Court case regarding a reporter’s First Amendment privilege to maintain the confidentiality of his or her sources is Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). In that case, the Court considered four consolidated cases. In two of them a Kentucky reporter wrote about local drug use by utilizing confidential subjects, and refused to identify the subjects when subpoenaed by state grand juries. Id. at 667-70. In the other two cases, journalists who had covered the Black Panthers refused to answer questions from grand juries regarding the group’s activities. Id. at 672-79. The Court phrased the legal issue narrowly, as “the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime.” Id. at 682. The Court held that requiring reporters to testify before state or federal grand juries when they are subpoenaed in criminal cases does not violate the First Amendment. Id. at 690. In reaching that conclusion, the Court considered the absence of a reporter’s privilege to refuse queries of a grand jury, the pivotal role of grand juries in our criminal system, the public interest in law enforcement, and the small quantity of confidential news sources that would be implicated in criminal cases. Id. at 685-700.

The Bmnzburg opinion does not determine the issue before us, however. Bmnz-burg limited itself to the question of reporters’ refusals to produce information to a grand jury called by the government to investigate suspected criminal activity. The Supreme Court has not considered whether reporters can be forced to turn over names of confidential sources outside the context of a legitimate criminal investigation. However, the underlying rationale in Bmnzburg and federal circuit courts’ interpretations of Bmnzburg offer guidance on the constitutional treatment of this issue in the context of a civil case.

Bmnzburg implicitly accepts that in order to determine the constitutionality of a court’s compelled disclosure from a journalist, the government’s interest in obtaining the information must be balanced against the newspaper’s interest in keeping it confidential. See id. at 690, 92 S.Ct. 2646. The Court stated: “[W]e perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result.” Id. The Court then stated that “we cannot accept the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants.” Id. at 695 (emphasis added).

A balancing test was more explicitly adopted by Justice Powell in his Bmnz-burg concurrence, which offered this test:

The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony * * *. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.

Id. at 710.

Since Bmnzburg, the majority of federal circuit courts have fashioned balancing tests to determine whether reporters may maintain the confidentiality of their sources in actions where the news gatherer or publisher is not a party. See Ashcraft v. Conoco, Inc., 218 F.3d 282, 287 (4th Cir.2000); Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir.1995); In re Petroleum Prods. Antitrust Litig., 680 F.2d 5, 7-9 (2d Cir. 1982); Zerilli v. Smith, 656 F.2d 705, 712-14 (D.C.Cir.1981); Riley v. City of Chester, 612 F.2d 708, 716-17 (3d Cir.1979). Although courts have articulated different factors to weigh in the balancing, three common factors are: whether, the information sought is material, whether it is obtainable from another source, and whether it is necessary or critical to the maintenance of the claim. See, e.g., Ashcraft, 218 F.3d at 287; Barouche v. Nat’l Broad. Co., 780 F.2d 1134, 1139 (4th Cir.1986); United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1988); In re Petroleum Prods. Antitrust Litig., 680 F.2d at 7-9.

Several circuit courts have applied the factors above and found that the reporter could maintain the confidential nature of his or her source. See Shoen, 48 F.3d at 416 (involving a nonparty author who refused to identify a source in a libel action); In re Petroleum Prods. Antitrust Litig., 680 F.2d at 9 (involving a nonparty publisher who refused to turn over documents naming confidential sources in an antitrust suit); Zerilli, 656 F.2d at 714-15 (involving a nonparty reporter who refused to identify his sources in a civil action); Riley, 612 F.2d at 716-18 (involving a nonparty reporter who refused to identify a confidential source in a civil action). I would reach the same result when balancing the three common factors in Weinberger’s case— whether the information sought is material, whether it is obtainable from another source, and whether it is necessary or critical to the maintenance of the claim.

In balancing Weinberger’s interest in protecting his reputation against the public interest in robust and uninhibited public debate, I find two factors weigh heavily against compelling the reporter to disclose his sources. Weinberger has made no showing that the information is material, nor that the information is necessary or critical to his case. On the first point, it is not clear that identifying the sources of the statements in the article would be material to Weinberger’s case because he has presented scant evidence of the statements’ falsity, which is the first element in a prima facie case of defamation. Reading through the depositions and affidavits submitted by Weinberger, only one of the statements from the article that the district court identified as potentially libelous was contradicted. While one of the statements says Weinberger “gave a severe tongue-lashing to several .of his players at halftime during” a football game between Tartan and Park High School, a number of people signed affidavits swearing that Weinberger did not berate, ridicule, or verbally abuse his players during halftime at that game. The majority of the affidavits support the article’s general thrust— that school officials allegedly received numerous complaints about Weinberger’s behavior both as a coach and teacher, and had decided to discipline him.

Even more importantly in the context of the First Amendment, Weinberger has not established that identifying the source of the quotes is necessary to maintaining his case. The majority assumes that Wein-berger must possess the identities of the sources quoted in the article in order to pursue his claim; however, Weinberger does not need that information to prove any element of his case because his defamation suit is not based solely on the statements made in the newspaper. While the quotes in the article may have further harmed his reputation in the teaching community, the affidavits he has presented offer ample evidence that similar statements of his alleged behavior were communicated to third parties on multiple occasions. Many affiants refer to the defendants’ oral statements regarding allegations of Weinberger abusing students and deserving disciplinary action. Indeed, Weinberger’s complaint focuses more on the defendants’ allegedly defamatory statements to coaches, administrators, students, and parents than on the defendants’ alleged statements to the Ma-plewood Review. Because evidence is available that allegedly defamatory statements were published via means other than the newspaper articles, the information Weinberger seeks is neither necessary nor critical to his ability to maintain the defamation action against defendants.

In contrast to the marginal benefit to Weinberger’s defamation claim of forcing the Maplewood Review reporter to divulge his confidential sources, the harm to the public would be significant. By publishing the story, a local newspaper was attempting to air serious allegations against a popular local teacher and coach, serving an important role in keeping the community informed about the education of its children. The reporter received information from both confidential and attributed sources about the reasons for Wein-berger’s impending departure, and verified those sources sufficiently to avoid being sued for defamation. The public has a legitimate interest in issues surrounding public education and the conduct of public officials in the exercise of their duties. Requiring the disclosure of a reporter’s sources in this context will have the effect of chilling other stories of public interest. Courts should not discourage confidential sources from adding to the public debate by compelling reporters to disclose the sources’ identities, but instead should assist reporters’ efforts to maintain confidential sources, especially in a case like the instant one where there has been little showing that the sources are material or necessary to the plaintiffs case. I would hold that the Federal Constitution protects the reporter’s claim of privilege in this case.

I turn to the application of the Free Flow of Information Act to the facts of this case. Minnesota was one of many states that passed legislation in direct response to the Branzburg ruling, to insure that news gatherers were afforded definite protection from subpoenas and lawsuits. Alexander, supra, at 110,112-13. Minnesota enacted the Minnesota Free Flow of Information Act in order to “insure and perpetuate, consistent with the public interest, the confidential relationship between the news media and its sources.” Minn.Stat. § 595.022 (2002); see also State v. Turner, 550 N.W.2d 622, 631 (Minn.1996) (noting the statute “was a reaction to the Branz-burg decision, and was intended to provide additional protection to reporters and their employers against subpoenas from litigating parties”). As a general rule, our statute says:

[N]o person who is or has been directly engaged in the [newsgathering process] * * * shall be required by any court, grand jury [or other political agency or subdivision] * * * to disclose in any proceeding the person or means from or through which information was obtained * * * whether or not it would tend to identify the person or means through which the information was obtained.

Minn.Stat. § 595.023 (2002). Because the straightforward application of this general rule clearly protects the reporter’s ability to maintain the confidentiality of his sources in this case, the majority attempts to fit this case into an exception to the general rule. The majority uses the exception for defamation actions in Minn. Stat. § 595.025 (2002), and concludes that Weinberger has met all three conditions of disclosure listed: that the source’s identity mil lead to relevant evidence on the issue of actual malice; that there is reason to believe the source has relevant information about the issue of defamation; and “that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights.”

I turn to the majority’s application of the Free Flow of Information Act to the facts of this case. Although clearly intended to expand the reporter’s constitutional privilege after Brcmzburg, the majority applies the Free Flow of Information Act to give Weinberger less protection than he deserves under the Constitution. I would apply the statute differently, and conclude he has not satisfied the three conditions of the statute. See Minn.Stat. § 595.025. The first prong of the statute asks a plaintiff to “demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.” Minn.Stat. § 595.025, subd. 1. Applying this prong, the majority accepts Weinberger’s assertion of relevance and writes “it is self-evident that the identity of the speaker will lead to relevant evidence on the issue of actual malice.” Even if we accept that Weinberger meets the first prong because knowledge of the sources’ identities, when combined with other information, may provide evidence relevant to the question of actual malice, he cannot meet the second prong of the statute. The second prong requires that the plaintiff provide “probable cause to believe that the source has information clearly relevant to the issue of defamation.” Minn.Stat. § 595.025, subd. 2(b). There is no defamation without falsity, so to satisfy the second prong a plaintiff must make an initial demonstration that there is a material dispute as to the truth or falsity of the statements at issue. As discussed above, Weinberger has not made a sufficient showing that the quotes in the article were false. Nor has he met the third prong by showing that there is no remedy less destructive of First

Amendment principles. See Minn.Stat. § 595.025, subd. 2(b). A less destructive remedy is available: Weinberger is free to proceed with known evidence of publication of similar statements to those printed in the Maplewood, Review. I would conclude that Weinberger fails to meet the second and third prongs of the statute and, therefore, cannot compel disclosure under the Free Flow of Information Act.

I dissent because I believe that Wein-berger’s interest in determining whether these four defendants made any of the allegedly defamatory statements in the newspaper articles is slight compared with the damage that compelling disclosure in such a case could do to the free flow of public information. A defamation plaintiff cannot transform a reporter from a neutral observer into an informant for the plaintiff when the information sought is not necessary to maintain the plaintiffs case. The confidentiality of the sources is protected both by the First Amendment of the United States Constitution and Minnesota’s Free Flow of Information Act. I would affirm the court of appeals.

ANDERSON, PAUL H., Justice

(dissenting).

I join in the dissent of Justice Meyer.

      . Although the Maplewood Review was named as a respondent during the beginning stages of this case, it did not join Wakefield’s petition for review of the court of appeals' decision. Similarly, Jason Tarasek has been dismissed as a respondent because he was never properly served. For this reason, only Wake-field is referred to as "respondent."

      .Weinberger identified the following statements taken from the January 27 article as untrue and defamatory:
      1. Tartan High School officials have indicated that they do not intend to renew Wein-berger's coaching contract this April.
      2. But now school officials say they've had enough of Weinberger and his behavior. According to sources, the coach is known for his temper, inappropriate comments and foul language, which people claim he uses to intimidate players.
      3. One source, however, pointed to an incident at Park High School in Cottage Grove as "the straw that broke the camel’s back.”
      4. Weinberger reportedly gave a severe tongue-lashing to several of his players at halftime during Tartan's loss, which knocked the team out of the playoffs.
      5. "His language has been awful,” one person said on the condition of anonymity.
      6. "People have talked to him numerous times. Both his superiors and peers.”
      7. Weinberger’s cursing and his habit of berating players is allegedly not anything new. For a while, after he was reprimanded, he improved his behavior, according to observers. However, several people said Wein-berger eventually sunk back into his old habits. The problem continued to linger because players, parents and even coaches were afraid to speak up — fearing that Wein-berger would retaliate.
      8. "First * * * when there is an intimidating situation, kids have a tendency to not say nothing,” a source said, "Second, some parents are apprehensive about saying things because it will be held against their son or daughter.”
      9. In the past few weeks several assistant coaches reportedly gave notice to Tartan officials that they would not return to coach under Weinberger.
      10. After Tartan officials repeatedly warned Weinberger to change his behavior, their patience apparently has run out.
      11. "We all have to make changes and get better as a person,” a source said. "He (Weinberger) can’t admit that there is anything wrong.”
      12. A few weeks ago, after officials told Weinberger they did not intend to renew his coaching contract, he was placed on a five-day suspension from his position as an earth sciences teacher at Tartan. The suspension apparently was intended to allow Weinberger time to cool off after receiving the news.
      13. "They didn’t think he'd handle being there (at school) very well,” a source said. "It wasn’t any other thing he did wrong.”
      The trial court concluded that, with the exception of the first and twelfth statements, the quoted statements were clearly defamatory if untrue and that, as such, if the declarant knew that they were false at the time they were made, a jury would be justified in finding that they were made with actual malice.

      .It is important to note that just before Wein-berger renewed his motion to compel the Tartan Defendants moved for summary judgment on Weinberger's defamation claim. The district court denied the Tartan Defendant's motion and specifically found that Wein-berger had provided sufficient evidence through affidavits and deposition testimony to create a material fact issue as to whether the allegedly defamatory statements constituted defamation of a public official, i.e., were defamatory statements made with actual malice.
      In Minnesota, "public official” has been defined as any plaintiff who performs "governmental duties, directly related to the public interest,” who holds "a position to influence significantly the resolution of a public issue;” or a "government employee [who has or appears] to the public to have, substantial responsibility for or control over the conduct of government affairs.” Britton v. Koep, 470 N.W.2d 518, 522 (Minn.1991). The district court determined that Weinberger was a public official for the purposes of this case and the parties have not subsequently contested this determination.

        .Bauer involved a defamation action brought by a public official against a reporter and a media organization. 557 N.W.2d at 609. The appeal arose from a discovery order requiring the reporter to disclose the identities of the confidential sources interviewed by the reporter. Id. In interpreting the media's “qualified constitutional privilege codified at Minn.Stat. § 595.021-.025,” the court of appeals combined the statutory requirements expressed in Minn.Stat. § 595.025 with the requirements used by other courts in jurisdictions without a similar statute codifying the protections authorized for reporters in civil actions. Id. at 609-13. Under Bauer, whether disclosure was required depends on the scope of the reporter’s privilege as defined by the following factors: (a) "the nature of the litigation and whether the reporter or news organization from whom disclosure is sought is a party to the litigation;" (b) "the party seeking disclosure of a confidential source must demonstrate that the source's identity is clearly relevant to the action;” (c) "that 'the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights;’ ” (d) "whether there is a compelling interest in the information or source;” and (e) whether the plaintiff has made a "prima facie showing that the allegedly defamatory statements are false.” Id. at 611-12 (citations and emphasis omitted). Bauer was never appealed to this court.

      . The dissent focuses on the issue of the reporter's privilege against compelled disclosure under the First Amendment. It does so while acknowledging that the United States Supreme Court has not definitively found such a privilege to exist. We do not address that issue because neither party has properly put that issue before the court, and it was not considered by the district court. See Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 673 (Minn.2001).

      . The Act reads in relevant part as follows:
      In order to protect the public interest and the free flow of information, the news media should have the benefit of a substantial privilege not to reveal sources of information or to disclose unpublished information. To this end, the freedom of press requires protection of the confidential relationship between the news gatherer and the source of information. The purpose of sections 595.021 to 595.025 is to insure and perpetuate, consistent with the public interest, the confidential relationship between the news media and its sources.
      Minn.Stat. § 595.022 (2002).
      Except as provided in section 595.024, no person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public shall be required by any court, grand jury, agency, department or branch of the state, or any of its political subdivisions or other public body, or by either house of the legislature or any committee, officer, member, or employee thereof, to disclose in any proceeding the person or means from or through which information was obtained, or to disclose any unpublished information procured by the person in the course of work or any of the person’s notes, memoranda, recording tapes, film or other reportorial data whether or not it would tend to identify the person or means through which the information was obtained.
      Minn.Stat. § 595.023 (2002).
      Subdivision 1. Disclosure prohibition; applicability. The prohibition of disclosure provided in section 595.023 shall not apply in any defamation action where the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.
      Subd. 2. Disclosure conditions. Notwithstanding the provisions of subdivision 1, the identity of the source of information shall not be ordered disclosed unless the following conditions are met:
      (a) that there is probable cause to believe that the source has information clearly relevant to the issue of defamation;
      (b) that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights.
      Subd. 3. Determination; appeal. The court shall make its order on the issue of disclosure after making findings of fact, which order may be appealed to the court of appeals according to the rules of appellate procedure. During the appeal the order is stayed and nondisclosure shall remain in full force and effect.
      Minn.Stat. § 595.025 (2002).

      . The dissent suggests that section 595.025 should apply only when a reporter is a party to the defamation action. However, the statutory language clearly and unambiguously states that section 595.025 applies in “any defamation action,” not merely actions in which a reporter is a defendant. Minn.Stat. § 595.025, subd. 1 (emphasis added).

      . The dissent suggests that Weinberger can prove defamation by evidence of similar statements made by the Tartan Defendants to third parties and thus does not need to rely on statements from the Maplewood Review article. But these similar statements do not provide Weinberger with a "remedy less destructive of First Amendment rights” because the statements to third parties and the statements in the Maplewood Review article constitute separate publications, each of which results in a separate injury, gives rise to separate damages, and supports a separate cause of action for defamation. See, e.g., Restatement (Second) of Torts § 577A cmt. a (1977) (stating that "each communication of the same defamatory matter by the same defamer, whether to a new person or to the same person, is a separate and distinct publication, for which a separate cause of action arises”). Obviously, damage to one's reputation from statements made in a newspaper article can be significantly greater than the damage resulting from a statement made to a single person or a small group of people. Thus, allowing Wein-berger to proceed with his defamation claims based upon statements made to third parties does not provide a remedy for his separate cause of action based upon the statements in the Maplewood Review article.

      . To the extent the analysis in Bauer is inconsistent with this opinion, it is overruled.

      . We have applied Branzburg in criminal cases. See State v. Turner, 550 N.W.2d 622, 628 (Minn.1996). However, some courts have provided reporters more protection and have applied a constitutional balancing test even in criminal cases. See United. States v. Burke, 700 F.2d 70, 77 (2d Cir.1983); United States v. Cuthbertson, 630 F.2d 139, 148 (3d Cir.1980).

      . In Herbert v. Lando, 441 U.S. 153, 169, 99 S.Ct 1635, 60 L.Ed.2d 115 (1979), the Supreme Court noted that there are special concerns in a defamation suit where the media is the defendant. When a reporter or newspaper is being sued, they must make available information that is key to the outcome of the plaintiffs case. See id. at 170, 99 S.Ct. 1635.

      . See Herbert v. Lando, 441 U.S. 153, 169, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (noting that individuals have a protected interest in their reputation); New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (remarking on the public interest in a robust debate on public issues).

      . Even those statements do not directly contradict the article’s summary, however. A tongue-lashing does not necessarily imply berating or ridiculing. And, at least one affiant suggested that Weinberger's language at halftime was strong, saying Weinberger's "initial comments were emotional [at halftime] and served to get the playersf] attention and impart the urgency of the situation.”

      .Weinberger must prove four things to win his defamation case against defendants: the statements about the plaintiff are false; the statements were "published” without privilege; such publication harmed the plaintiff's reputation; and the statements were made with actual malice, meaning knowledge that the statements were false or reckless disregard of their truthfulness. See Britton v. Koep, 470 N.W.2d 518, 520 (Minn.1991).

      . The majority does not fully analyze the third prong of the statute's test, whether the information can be obtained by a means less destructive of First Amendment rights, but rather relies on the district court’s determination and the parties’ agreement on the question. The parties' agreement on that question has no bearing on our application of the statute. I would not relinquish our duty to determine the Constitutional impact of the grant of a particular remedy. In this case, there is an alternative remedy that is “less destructive of First Amendment rights”: sending Wein-berger to trial without the identities of the anonymous sources in the newspaper. Wein-berger can rely on the defendants' statements to third parties and the attributed statements in the newspaper.

      . The majority's broad interpretation of this prong dilutes it to the point where it is meaningless, because any defamation plaintiff could satisfy it. If we accept the level of nominal relevance defined by the majority, all defamation plaintiffs seeking to compel disclosure from reporters will meet this prong, because if the plaintiffs invoke this statute, they must seek the identity of the reporters’ anonymous source. Such an interpretation of the statute violates our mandate to consider the purpose of the statute and assume that the legislature does not intend an absurd result. See Minn.Stat. §§ 645.16-.17 (2002). The legislature's purpose in enacting this statute was to "insure and perpetuate * * * the confidential relationship between the news media and its sources.” Minn.Stat. § 595.022. With that in mind, I think it is likely that the legislature intended this statute to apply only when the reporter is being sued for defamation. In such a case, relevant evidence would include the identity of a reporter's source, because the source would have information about the reporter’s knowledge at the time of publication. See Herbert, 441 U.S. at 169-70, 99 S.Ct. 1635.


author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Respondent, v. Robin John RAZMYSLOWSKI, Appellant.
    No. A03-38.
    Court of Appeals of Minnesota.
    Sept. 16, 2003.

      Mike Hatch, State Attorney General, St. Paul, and Larry Dean Orvik, Polk County Attorney, and Gregory Alan Widseth, Crookston, for respondent.
    John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, Minneapolis, for appellant.
    Considered and decided by LANSING, Judge, TOUSSAINT, Chief Judge, and SCHUMACHER, Judge.
   OPINION

TOUSSAINT, Chief Judge.

In this postconviction appeal, appellant seeks an award of jail credit for the time he spent at the state correctional hospital in a court-ordered intensive sex-offender treatment program. Appellant argues that the denial of credit for the more than four years he spent at the secure facility violates equal protection. He further argues that there is no rational basis to distinguish the program at the correctional hospital from treatment programs at state correctional facilities.

FACTS

In early 1991, appellant' Robin John Razmyslowski pleaded guilty to two counts of first-degree criminal sexual conduct and three counts of second-degree criminal sexual conduct. He was sentenced to an aggregate term of 122 months, stayed for 25 years, conditioned on his completion of all phases of the Intensive Treatment Program for Sexual Aggressives (ITPSA) at the Minnesota Security Hospital in St. Peter.

On December 18, 1991, Razmyslowski was admitted to ITPSA. On June 30, 1996, the ITPSA program was discontinued and Razmyslowski was returned to Polk County. The district court found that Razmyslowski was in violation of probation for failure to complete ITPSA. The court reinstated probation, conditioned on Razmyslowski being confined to the local correctional facility for one year with privileges to attend the Sexual Offender Treatment Program at Northwest Mental Health Center. In January 1997, after several months at the correctional facility, the district court ordered Razmyslowski to spend the balance of his incarceration under house arrest.

On September 22, 1998, Razmyslowski was found in violation of his probation for having sex with a 13-year-old girl. He pleaded guilty to two counts of third-degree criminal sexual conduct. The district court then executed the stayed 122-month aggregated sentence and sentenced Raz-myslowski to 51 months for the 1998 offenses, to run consecutively with the executed sentence. The district court denied jail credit for the time Razmyslowski had spent in ITPSA.

Razmyslowski filed motions to correct the sentence he received for the 1998 offenses and for jail credit for time spent at ITPSA. The district court denied both motions and Razmyslowski appealed.

On appeal, this court corrected the sentence to 39 months, but affirmed the denial of jail credit for the ITPSA program. State v. Razmyslowski, Nos. C7-99-1322 & C5-99-1559, 2000 WL 343211 (Minn. App. Apr. 4, 2000), review denied (Minn. June 13, 2000). In denying Razmyslow-ski’s request for jail credit, this court determined that Razmyslowski failed to provide a record to show that his confinement in the ITPSA program was the equivalent of incarceration in a correctional facility. Id. at *2. The Minnesota Supreme Court denied Razmyslowski’s petition for review, but preserved his constitutional claims for reasserting in a petition for postconviction relief. State v. Razmyslowski, No. C7-99-1322 (Minn. June 13, 2000).

On December 23, 2002, Razmyslowski filed this petition for postconviction relief seeking credit for time spent at ITPSA. The postconviction court granted Razmys-lowski’s request for jail credit for the 37 days spent at The Security Hospital for evaluation, but denied credit for the four years and 163 days he had resided at ITPSA. This appeal followed.

ISSUE

Did the postconviction court err by denying appellant’s motion for jail credit for time spent at a residential-treatment facility as a condition qf probation?

ANALYSIS

“The granting of jail credit is not discretionary with the trial court.” State v. Cameron, 603 N.W.2d 847, 848 (Minn.App.1999) (quotation omitted). Awards of jail credit are governed by principles of fairness and equity, and a reviewing court can only “address this issue on a case-by-case basis.” State v. Dulski, 363 N.W.2d 307, 310 (Minn.1985). A defendant has the burden of establishing that he is entitled to jail credit for a specific period of time. State v. Willis, 376 N.W.2d 427, 428 n. 1 (Minn.1985).

A sentencing court must “assure that the record accurately reflects all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed.” Minn. R.Crim. P. 27.03, subd. 4(B). Comments to the sentencing guidelines caution that an offender is not entitled to jail credit for time spent in a residential-treatment facility as a condition of. probation. Minn. Sent. Guidelines cmt. III.C.04. Credit for confinement as a condition of a stayed sentence “is limited to time spent in jails, workhouses, and regional correctional facilities.” Minn. Sent. Guidelines III.C.3.

After Razmyslowski filed this postcon-viction appeal, the Minnesota Supreme Court held that fairness and equity require that jail credit be granted where a residential-treatment . facility is the functional equivalent of a jail, workhouse, or regional correctional facility. Asfaha v. State, 665 N.W.2d 523, 527-28 (Minn.2003). The court clarified that the label given a facility is not determinative and that district courts must look closely at the facts to determine the level of confinement and limitations imposed on a defendant. Id. at 528.

Both parties agree that Asfaha is controlling here. Both parties also agree that they would not submit additional evidence if this case were remanded to the district court. Therefore, we examine the record on this case under Asfaha.

The record shows that, upon admission to ITPSA, all patients were assigned to the lowest security level requiring the most restrictive security measures. Over time, patients could request changes in their security level and receive review of the request. ITPSA typically housed from 32 to 48 patients. It occupied part of the first floor of a satellite building of the Minnesota Security Hospital in St. Peter. A security fence surrounded the facility and a central control center managed all access electronically. Entry to the facility was through an electronically controlled gate and sally port door. The control center had links to a closed circuit television system allowing the staff to monitor the entire perimeter and elements of the building interior.

In addition to professional treatment staff, ITPSA was staffed during the day with a minimum of three to four security staff and one registered nurse. The staff made regular counts and rounds and recorded attendance at sessions. Patients followed a strict daily schedule. Patient rooms had bars on the windows. They were not locked at night, but were monitored. Most patients were not free to roam the building or grounds, but were escorted by staff or a “buddy.” Razmys-lowski was restricted to the unit except for work duty. If he went outside, he was accompanied by a security officer.

In order to control contraband, clothed pat-down searches and room searches were conducted often. A pat search was required upon return from a workstation. Physical restraints and force were permitted, but not used often. During transportation, however, patients were regularly cuffed, attached to security waist belts, and accompanied by an armed guard. Escape procedures provided for immediate response and enlisting local law enforcement.

These restrictions and the confinement imposed on ITPSA patients appear substantially similar to those at the Lakeview unit of the intensive treatment center program at the Bar-None facility examined in Asfaha. Id. at 527. The Asfaha court concluded that the Lakeview unit was indistinguishable from incarceration at the Minnesota Correctional Facility — Red Wing which qualified for jail credit. Id. at 528. Accordingly, based on the facts before the district court and in the record on appeal, we conclude that ITPSA was the functional equivalent of a jail, workhouse, or correctional facility.

DECISION

Because the record reflects that the restrictions imposed by ITPSA were the functional equivalent to those imposed by a jail, workhouse, or correctional facility, we reverse the district court’s decision denying jail credit and remand for the postcon-viction court to calculate and award jail credit to appellant.

Reversed and remanded.


author: STONEBURNER, Judge. HARTEN, Judge

text:
    Dorthy JACKEL, et al., Respondents, v. Jon W. BROWER, Appellant, County of Steele, et al, Defendants.
    No. C2-03-231.
    Court of Appeals of Minnesota.
    Sept. 16, 2003.
    James P. Peters, Kama M. Peters, Peters & Peters, P.L.C., Alexandria, for respondents.

      Gary W. Koch, Dustan J. Cross, Sara N. Wilson, Gislason & Hunter, L.L.P., New Ulm, for appellant.
    Considered and decided by HARTEN, Presiding Judge, and STONEBURNER, Judge, and PARKER, Judge.

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

   OPINION

STONEBURNER, Judge.

Respondents Dorthy and David Jackel sued appellant Jon W. Brower, Steele County, and Steele County’s planning director asserting numerous claims arising out of Brower’s construction of hog-confinement barns, including a claim that the facility built in 1996 violates the county’s setback requirements. Brower filed this interlocutory appeal from the district court’s issuance of an injunction compelling the county to enforce the setback requirement and compelling Brower to “permanently abate the violation” of the setback requirement. Because the district court abused its discretion by granting an injunction without determining that there is no adequate legal remedy and that an injunction is necessary to prevent great harm and irreparable injury, we reverse and remand.

FACTS

In 1996, appellant Jon W. Brower applied to Steele County for a building permit to construct an 800-animal-unit confinement facility. Steele County’s zoning ordinance provides that “no new animal feedlots or manure storage facilities shall be located closer than 1,000 feet from a neighboring residence.” Brower “stepped-off ’ what he considered to be the distance between his proposed facility and respondents Dorthy and David Jackel’s residence and submitted a handwritten drawing to the county showing that the facility would be located 1,065 feet from the Jackels’ residence. The county issued the building permit.

By affidavit, Brower asserts that before construction of the facility in 1996, he spoke to David Jackel, who did not oppose the facility or its location. David Jackel’s affidavit denies that such a conversation occurred. Dorthy Jackel’s affidavit states that she knew nothing about Brower’s plans until she noticed “digging” on his property in 1996, whereupon she called a person in the county planning and zoning department and asked “what’s up?” Dorthy Jackel states that she was told that Brower had a permit to build the facility and that “there is nothing you can do; it’s a done-deal.”

In 1998, Brower obtained a conditional-use permit allowing him to construct a second 800-animal-unit facility on his property. The record does not contain any evidence that the Jackels objected to this facility. But in July 2001, the Jackels complained to Steele County Planning Director Dale Oolman about odors from Brower’s property and indicated their concern that the 1996 facility is too close to their residence. Oolman concluded that the 1996 facility is 52 feet inside the setback, but he also concluded that requiring Brower to move the facility to comply with the 1,000-foot-setback requirement will not address the Jackels’ concerns about odor. Oolman recommended that Brower agree to additional odor-control measures, and the Steele County Board of Adjustment supported additional odor mitigation rather than strict enforcement of the 1,000-foot-setback requirement.

In June 2002, the Jackels sued Brower, the county, and Oolman, requesting, among other relief, that a writ of mandamus be issued by the district court compelling the county to enforce the setback requirement. The district court granted summary judgment to the Jackels on the setback claim and issued an injunction compelling the county to enforce the setback requirement and compelling Brower to abate the violation. All claims except the Jackels’ claim of nuisance have been disposed of in pretrial motions. Brower filed this interlocutory appeal from the injunction, arguing that the district court abused its discretion by summarily issuing an injunction because the county acted reasonably by attempting to address the purposes underlying the ordinance without strictly enforcing the setback requirement and because injunctive relief is not necessary. Brower also argues that the district court abused its discretion by concluding that the doctrine of laches does not bar the Jackels’ claims.

ISSUES

I. Did the district court abuse its discretion by ordering injunctive relief to address a zoning-ordinance violation without determining that there is no appropriate legal remedy and that an injunction is necessary to prevent great and irreparable harm?

II. Did the district court abuse its discretion by determining that “unclean hands” prevents appellant from asserting the doctrine of lach-es?

ANALYSIS

On appeal from summary judgment, an appellate court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). A court shall grant a motion for summary judgment

when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.

Fabio v. Bellomo, 604 N.W.2d 758, 761 (Minn.1993) (citation omitted). An appellate court “must view the evidence in the light most favorable to the party against who judgment was granted.” Id. No genuine issue of material fact exists where “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc., v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quotation omitted).

On review of a district court’s determination regarding the validity of a zoning decision, the appellate court makes an independent examination of the county’s decision without according any special deference to the same review conducted by the district court. See Hay v. City of Andover, 436 N.W.2d 800, 803 (Minn.App.1989).

An appellate court examines the action of the [county] to determine whether it was arbitrary or capricious, or whether the reasons articulated by the [county] do not have the “slightest validity or bearing on the general welfare,” or whether the reasons were “legally sufficient and had a factual basis.”

Mohler v. City of St. Louis Park, 643 N.W.2d 623, 630 (Minn.App.2002) (citing VanLandschoot v. City of Mendota Heights, 336 N.W.2d 603, 508 (Minn.1983)).

I.

This court reviews orders granting permanent injunctions under an abuse-of-discretion standard. Cherne Indus., Inc., v. Grounds & Assocs., Inc., 278 N.W.2d 81, 91 (Minn.1979). A party seeking an injunction must establish that there is no adequate legal remedy and that an “injunction is necessary to prevent great and irreparable injury.” Id. at 92.

Brower does not dispute that the 1996 facility violates the setback requirement. A survey in the record shows that the building is only 948 feet from the Jackels’ residence rather than the 1,000 feet required by Steele County’s zoning ordinance. Nevertheless, Brower argues that the district court abused its discretion by granting injunctive relief compelling enforcement of the setback requirement without finding that there is no adequate legal remedy for the violation or that an injunction is necessary to prevent great and irreparable injury. Brower also argues that the Jackels have failed to prove, as a matter of law, that the injuries they complain of are caused by the setback violation.

The district court summarily concluded that the Jackels are “directly injured” by the violation of the 1,000-foot-setback requirement and rejected the county’s argument that it has discretion in enforcement of a setback requirement. The district court concluded that a property owner injured by the violation of a zoning ordinance is entitled to injunctive relief, citing Mohler, 643 N.W.2d at 634, and Lowry v. City of Mankato, 231 Minn. 108, 117, 42 N.W.2d 553, 560 (1950). Although both of those cases resulted in injunctive relief to enforce a zoning ordinance, neither case stands for the proposition that injunctive relief is mandatory or automatic.

Mohler involved an action against the city and a property owner by a neighbor who overturned a variance that the city had granted for the construction of a two-story garage. 643 N.W.2d at 627. The opinion focuses primarily on whether the property owners met the requirements under Minn.Stat. § 462.357, subd. 6(2) (2000), for granting a variance under the undue-hardship standard. Id. at 631. The opinion notes the difference between a “use” variance (permitting a use prohibited under the zoning ordinance) and a “nonuse” variance (controlling area, height, setback, density, and parking for permitted uses). Statutes prohibit most use variances, but nonuse variances may be granted where the character of the zoned district is not changed. Id. at 631-32. The garage in Mohler constituted both a use and a non-use violation of the city’s ordinance. In Mohler, we determined that because the nonuse violation at issue made the structure inconsistent with the surrounding neighborhood, the spirit and intent of the ordinance could not be met by granting the variance. Id. at 632.

Mohler cites Lowry, 231 Minn, at 117, 42 N.W.2d at 560, and McCavic v. De Luca, 233 Minn. 372, 379, 46 N.W.2d 873, 877 (1951), for the proposition that a property owner injured by a zoning violation is entitled to injunctive relief. Mohler, 643 N.W.2d at 634. But implicit in the decision is the converse: if the violations had not been inconsistent with the spirit and intent of the ordinance, the neighboring property owners would not have been injured, a variance could have been granted, and the plaintiff would not have been entitled to injunctive relief.

Lowry involved a use violation. The action was against the city to compel revocation of an illegally issued building permit. The court followed the rule that a

building permit issued in violation of a zoning ordinance by an official lacking power to alter or vary the ordinance is void, and the zoning regulation may be enforced notwithstanding the fact that the permittee may have commenced building operations.

Lowry, 231 Minn, at 117, 42 N.W.2d at 559 (citations omitted). The supreme court concluded that the permit issued for the nonconforming use “was absolutely void and that plaintiff is entitled to an injunction for enforcement of the zoning ordinance restrictions.” Id. at 117, 42 N.W.2d at 560. In Lowry, the focus was on the legality of the permit issued and no argument was made that the use, despite a technical violation, conformed to the spirit and intent of the ordinance in question.

In McCavic, however, the offending property owner specifically asserted that his 7-foot violation of a 15-foot-setback requirement was so trivial that injunctive relief should not be granted, and that plaintiffs should be left to their legal remedy in an action for money damages. McCavic, 233 Minn. at 379, 46 N.W.2d at 877. The supreme court disagreed, stating:

The houses of plaintiffs are close to the building of defendant. It is not trivial to have a concrete-block building setting some seven feet out in front of a residence in such close proximity to it. Under these circumstances, plaintiffs are not required to accept money damages, nor should they be denied equitable relief to compel compliance with an ordinance operating so clearly in their favor if enforced.

Id.

The supreme court addressed the exercise of a government entity’s power to regulate nonuse zoning requirements, such as signs and setbacks, in Arcadia Dev. Carp. v. City of Bloomington, 267 Minn. 221, 125 N.W.2d 846 (1964). In that case, a property owner sued the city to compel it to issue a permit to build a freestanding sign notwithstanding that the sign would violate the terms of a city ordinance. Arcadia argued that denial of the permit was arbitrary, capricious, and a manifest abuse of discretion because the sign it sought to build was inoffensive and preferable to the type of sign permitted by the ordinance. Affirming the district court’s order directing the city to issue the permit, the supreme court stated:

As a useful rule it has long been stated that a city must act “reasonably,” otherwise, its ordinances could not have the effect of overcoming the property rights of others. Its acts must be calculated to effect its legitimate purposes and goals without going beyond the demands of the occasion.... Further, ordinances and actions taken thereunder must be reasonable when applied to individual cases.... [Tjhere is a strong presumption, although a rebuttable one, favoring action taken by a city. Nor does a court inspect the motives which impel a city council to act.... If the reasonableness of the action of the city council is at least doubtful, or fairly debatable, a court will not interject its own conclusions as to more preferable actions....
... Unreasonableness is a legal conclusion, made upon examination of the circumstances. If the unreasonableness of an action is plain, clear, manifest, and undoubted, it is a proper subject for restraint by the court providing it violates substantial rights of others.

Id. at 225-26, 125 N.W.2d at 850-51. The court noted that regulations, as applied, must bear a reasonable relation to the purposes they are meant to attain. Id. at 226, 125 N.W.2d at 851. “To apply them without proper regard for individual circumstances would clearly risk imposing a useless, and therefore unreasonable and unnecessary, substantial hardship upon individual landowners.” Id.

Brower argues that his facility is distinguishable from Mohler and Lowry, because (1) Brower’s facility does not constitute a use violation, (2) the facility is not out of character with the surrounding uses, (3) the county did not illegally issue the building permit, and (4) Brower’s building does not constitute the kind of harm to the neighbors caused by the building in McCavic. We agree that these factors distinguish this case from Mohler and Lowry. In this case it was error for the district court to have presumed on a motion for summary judgment that the Jack-els have suffered great and irreparable injury that requires the issuance of injunc-tive relief. There is nothing in the record to support such a presumption, aside from the Jackels’ mere assertion that they are injured by the setback violation. There is no evidence that the setback violation is the cause of any of their specific complaints, which have mostly to do with odor. In addition, we agree that the district court abused its discretion by summarily issuing injunctive relief without any analysis of whether Brower’s violation can first be addressed by a legal remedy.

We conclude that the district court must engage in an analysis of the harm caused by the violation, whether there is an adequate legal remedy, and whether an injunction is necessary, giving consideration to the reasonableness of the county’s proposals to address the violation. Because there are insufficient facts in the record to support summary issuance of injunctive relief, we reverse the order for injunctive relief and remand for consideration of this issue on the record that will be fully developed at trial. By this decision, we do not mean to indicate whether or not injunctive relief is the appropriate remedy in this case.

II.

Brower also argues that the district court abused its discretion by concluding that the doctrine of laches does not bar the Jackels’ claim for injunctive relief. Brow-er points to the six-year delay after construction of the offending facility before the Jackels’ complained and correctly notes that removing the building will constitute a hardship for him, although there appears to be a question of fact about the extent of the hardship.

A district court’s decision to apply the doctrine of laches is not a decision on the merits. See Melendez v. O’Connor, 654 N.W.2d 114, 117 (Minn.2002) (reaching merits only after deciding as a preliminary matter whether suit should be dismissed for laches). Therefore, even at summary judgment, the decision whether to apply laches lies within the district court’s discretion and will be reversed only for an abuse of that discretion. See Opp v. La-Bine, 516 N.W.2d 193, 196 (Minn.App.1994), review denied (Minn. Aug. 24, 1994). The question in applying the doctrine of laches 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 requested relief. Harr v. City of Edina, 541 N.W.2d 603, 606 (Minn.App.1996) (quotation omitted). “Mere delay does not constitute laches, unless the circumstances were such as to make the delay blamable.” Elsen v. State Farmers Mut. Ins. Co., 219 Minn. 315, 321, 17 N.W.2d 652, 656 (1945) (quotation omitted). A person has knowledge of the right to make a claim when he or she has actual notice of the claim or, in the exercise of proper diligence, ought to have discovered it. Steenberg v. Kaysen, 229 Minn. 300, 309, 39 N.W.2d 18, 23 (1949).

The district court determined that the doctrine of laches does not apply because the Jackels did not know about the violation when the facility was built and exercised due diligence to discover the violation. The district court found that the Jackels immediately called the county when they saw the beginning of construction and were told that there was nothing they could do. Brower claims that there is a material fact question about the Jackels’ diligence because the county has no record of them expressing any concern about the facility until six years after its construction. In addition, there is an admitted fact dispute about whether Brower and David Jackel discussed the location of the barn before construction. Because there is a question of material fact regarding whether the Jackels acted with due diligence in prosecuting their claims, the district court abused its discretion by rejecting application of laches based on due diligence.

But the district court also relied on the fact that Brower had unclean hands and is therefore barred from asserting the equitable defense of laches. Brower assured the county that the setback requirement would be complied with when he submitted a drawing, with his application for the building permit, that showed the facility as being 1,065 feet from the Jack-els’ residence. Brower, however, used a highly inaccurate method to measure the setback, purporting to have “stepped off’ the distance on property the Jackels assert is wholly unsuited to this type of measurement. Brower was 117 feet off of his promise to place the building 1,065 feet from the Jackels’ property and violated the setback requirement by 52 feet. A party seeking laches must come with clean hands in order to obtain the benefit of the balancing of the equities. See Gully v. Gully, 599 N.W.2d 814, 825 (Minn.1999). Given the cavalier method by which Brower located this facility, which, the record demonstrates he knew could be objectionable to neighbors, we conclude that the district court did not abuse its discretion by disqualifying Brower from asserting the defense of laches.

DECISION

The district court did not abuse its discretion by precluding appellant from asserting laches to bar respondents’ claim for injunctive relief. But the court erred by viewing evidence in the light most favorable to respondents and abused its discretion by summarily granting injunctive relief absent a finding that there is no adequate legal remedy and that an injunction is necessary to prevent great and irreparable injury.

Reversed and remanded.

HARTEN, Judge

(concurring specially).

Given the court’s indication that, “[b]y this decision, we do not mean to indicate whether or not injunctive relief is the appropriate remedy in this case[,]” I concur in the result.

      . An animal unit is defined in the county’s zoning ordinance as "[a] unit of measure used to compare differences in the production of animal manure that employs as a standard the amount of manure produced on a regular basis by a slaughter steer or heifer.” The ordinance provides that one swine over 55 pounds equals 0.4 animal units.

      . Under the county’s zoning ordinance, a conditional-use permit was not required for the first facility, and is only required for feedlots with more than 1,000 animal units in an "A-1" Agricultural District.


author: HUDSON, Judge.

text:
    Rochelle Lynn PEMBERTON, Respondent, v. Lori Ann THEIS, Appellant.
    No. C4-03-313.
    Court of Appeals of Minnesota.
    Sept. 16, 2003.
    John S. Raboin, Raboin & Aakhus Olson Law Offices, P.A., Baxter, MN, for respondent.
    Steven F. Lamb, Fargo, ND, for appellant.

      Paul D. Peterson, Harper & Peterson, P.L.L.C., Woodbury, MN, for amicus curiae Minnesota Trial Lawyers Association.
    Considered and decided by HUDSON, Presiding Judge; WILLIS, Judge; and ANDERSON, Judge.
   OPINION

HUDSON, Judge.

In this negligence action arising out of an automobile accident, the jury awarded damages for future medical expenses. The trial court, after a posttrial collateral sources motion, reduced the award for future medical expenses by the amount of basic economic loss benefits the plaintiff had received in settlement with her no-fault insurer, and further reduced the award in proportion to plaintiffs attributable fault. On appeal, appellant Lori Ann Theis contends that respondent Rochelle Pemberton is not entitled to the future medical expense award because (a) she entered into a release of all no-fault benefits, including future medical expenses, before trial; (b) she failed to meet the required no-fault tort threshold under Minn. Stat. § 65B.51, subd. 3 (2002), which applies to future medical expenses; and (c) the trial court should have deducted the full amount of future medical expenses awarded from the jury’s verdict. Pember-ton filed a notice of review, claiming that the trial court improperly deducted the amount received in a no-fault settlement from the future medical-expense award. Because we conclude that (a) the release signed by the plaintiff with her no-fault insurance company does not preclude her from suing the defendant for negligence; (b) an- award of future medical expenses constitutes economic loss and thus is not subject to the tort threshold under Minn. Stat. § 65B.51, subd. 3 (2002); and (c) the district court did not err in deducting the amount received as a no-fault settlement from the future medical-expenses verdict, we affirm.

FACTS

This case arises out of a low-speed motor vehicle accident that occurred on August 22, 1998, when a vehicle driven by appellant Lori Ann Theis rear-ended a vehicle driven by respondent Rochelle Lynn Pemberton. Theis, who had stopped at a stoplight, proceeded immediately after the light turned green, hitting Pemberton’s car, which was still stopped in front of Theis. As a result of the accident, Pem-berton suffered neck pain with a cervical strain.

In February 2001 Pemberton signed a release with her no-fault automobile insurer, State Farm Mutual Automobile Insurance Company (State Farm), stating that for consideration paid of $2,331, she released State Farm from

any further claims, known or unknown, now existing or arising in the future, for medical expense, disability and income loss, or replacement service benefits

under her no-fault policy. The release also contained a provision stating that Pemberton reserved the right to pursue “any liability and underinsured benefits [she] may have.”

Six months later, Pemberton sued Theis for negligence as a result of the injuries she sustained in the accident. After a jury trial, the jury issued a special verdict apportioning negligence 80% to Theis and 20% to Pemberton. The jury found that Pemberton sustained no permanent injury as a result of the collision and awarded the following sums for past damages incurred:

Past pain, disability, and emotional distress $2,000
Past health care expenses $3,100
Diagnostic testing $2,366.

For future damages, the jury awarded the following:

Future pain, disability, and emotional distress $2,500
Future health care expenses $5,000.

Theis timely requested determination of collateral source benefits pursuant to Minn.Stat. § 548.36 (2002) and Minn.Stat. § 65B.51, subd. 2 (2002). The trial court concluded that the plaintiff did not meet the required tort thresholds for past pain, disability, and emotional distress; for past health care expenses; or for future pain, disability, and emotional distress.

In addition, the district court found that (a) in accordance with the special jury verdict, $5,000 would fairly compensate the plaintiff for future health care expenses; (b) plaintiff signed a full and fair release of all no-fault benefits in consideration of the sum of $2,381; and (c) the award for future health care expenses was subject to the deduction for basic economic benefits paid or payable in accordance with Minn. Stat. § 65B.51.

The district court then deducted the $2,331 given as consideration for the release as economic benefits previously paid, reducing the jury’s award of future health care expenses from $5,000 to $2,669. The court also ordered that this award be further reduced by 20% for the plaintiffs comparative fault, so that the plaintiff was entitled to judgment in the amount of $2,135.20, together with costs and disbursements.

ISSUES

I. Does a plaintiffs settlement and release of claims as to her no-fault insurance company preclude her from maintaining an action in negligence as permitted by the Minnesota No-Fault Insurance Act?

II. Do future medical expenses constitute economic loss not subject to a tort threshold under MinmStat. § 65B.51, subd. 3 (2002)?

III.Did the district court err in deducting the amount of a plaintiffs settlement with her no-fault insurer from a jury verdict for future medical expenses?

ANALYSIS

I

Analysis of the issues in this case requires interpretation of the Minnesota No-Fault Insurance Act, MinmStat. §§ 65B.41-.71 (2002). Statutory interpretation is a legal question, which this court reviews de novo. Brookfield Trade Ctr. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). The trial court’s application of a statute to undisputed facts presents a conclusion of law that is fully reviewable by this court. A.J. Chromy Constr. Co. v. Commercial Mech. Servs., Inc., 260 N.W.2d 579, 582 (Minn.1977); Johnson v. State Farm Mut. Auto. Ins. Co., 574 N.W.2d 468, 470 (Minn.App.1998).

Appellant Theis contends that the release signed by respondent Pemberton with her no-fault insurance company, State Farm, discharges the jury verdict for future medical expenses, since Pemberton explicitly released State Farm from liability for any further claim for medical expenses. “A release has been defined as a relinquishment, concession, or giving up of a right, claim, or privilege by the person in whom it exists to the person against whom it might have been enforced.” Danelski v. King, 314 N.W.2d 818, 820 (Minn.1981) (emphasis added). In this case, neither Theis nor her insurer, American Family Insurance Company, was a party to the release, nor paid consideration for the terms. Therefore, neither Theis nor American Family were parties against whom the release could be enforced. Nor did Pemberton express any intent in the release to give up any liability claim against Theis or American Family. In fact, the release states that Pemberton expressly reserved the right “to pursue any liability and underinsured benefits [she] may have.” See, e.g., Couillard v. Charles T. Miller Hosp., 253 Minn. 418, 427, 92 N.W.2d 96, 102 (1958) (noting that “considerations of practical justice” require that plaintiff not be compelled to give up a claim for relief unless he has intentionally done so, or has received full compensation for the claim). We conclude that Pemberton did not intend to give up her claims against Theis, nor had she received full compensation for her claim of future medical expenses.

We also note, the fundamental distinction, in the no-fault insurance structure, between Pemberton’s claim for recovery of benefits from her own no-fault insurer and her right to sue Theis for negligence for her personal injuries. In Nelson v. Am. Family Ins. Group, 651 N.W.2d 499 (Minn.2002), the Minnesota Supreme Court declined to apply the doctrines of res judicata, collateral estoppel, or accord and satisfaction in an action by an insured to recover no-fault benefits from her insurance company when the insurance company had previously satisfied a tort judgment of liability as the liability carrier for the tortfeasor. See also Balderrama v. Milbank Mut. Ins. Co., 824 N.W.2d 355 (Minn.1982) (holding that accident victim’s prior settlement of his common-law liability claim did not bar his claim for no-fault insurance benefits). Therefore, we conclude that Pemberton’s release of State Farm, her no-fault insurer, for benefits attributable to future medical expenses, did not operate to release any claim in tort asserted against Theis. Accordingly, the release has no effect on the jury’s verdict for future medical expenses.

II

Theis challenges the jury’s award of future medical expenses on the basis that these expenses constitute noneconomic detriment, which are subject to the tort threshold under the no-fault act, so that Pemberton is precluded from bringing an action for negligence because her claim did not meet the applicable tort threshold. Under Minn.Stat. § 65B.51, subd. 2 (2002), uncompensated economic loss is recoverable in negligence as follows:

A person may bring a negligence action for economic loss not paid or payable by a reparation obligor or through the assigned claims plan because of any lack of insurance coverage for the economic- loss described in section 65B.44, daily or weekly dollar limitations of section 65B.44, the seven-day services exclusion of 65B.44, the limitations of benefits contained in section 65B.44, subdivision 1, or an exclusion from coverage by sections 65B.58 to 65B.60.

Claims for noneconomic detriment, however, must meet a tort threshold before a negligence action is permitted. Minn.Stat. § 65B.51, subd. 3 (2002), further provides, in part, that “no person shall recover damages for noneconomic detriment” unless a $4,000 tort threshold is met. The no-fault act contains no provision for a tort threshold for economic loss. See Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 670 (Minn.1983) (noting that “only noneconomic loss is subject to a tort threshold under the no-fault act”).

Theis argues that the list of economic losses in Minn.Stat. § 65B.51, subd. 2, is exclusive — in other words, that because future medical expenses are not expressly listed in subdivision 2, they do not constitute economic loss under the act for which an injured party may bring a negligence action. Therefore, she claims that once the district court found that a tort threshold was not met, the action in negligence could not be maintained, and the future medical expenses awarded by the jury could not be recovered under the act.

In order to determine whether future medical expenses are properly considered economic losses within the framework of the Minnesota No-Fault Act, we look directly to the language of the act to interpret its provisions. See Occhino v. Grover, 640 N.W.2d 357, 359 (Minn.App.2002) (citing to Minn.Stat. § 645.16, plain-meaning rule), review denied (Minn. May 28, 2002). In so doing, we examine “the context of the statutory provision, or the plain meaning within the whole act.” Id. at 361. Minn.Stat. § 65B.43, subd. 7 (2002), states that, in the context of the no-fault act,

[l]oss means economic detriment resulting from the accident causing the injury, consisting only of medical expense, income loss, replacement services loss, and, if the injury causes death, funeral expense, survivor’s economic loss and survivor’s replacement services loss. Noneconomic detriment is not loss; however, economic detriment is loss although caused by pain and suffering or physical or mental impairment.

(Emphasis added.) We conclude that medical expenses are clearly economic losses. On the other hand, “noneconomic detriment” is defined as “all dignitary losses ... including pain and suffering, loss of consortium, and inconvenience.” Minn. Stat. § 65B.43, subd. 8 (2002). Future medical expenses, although they may relate to dignitary losses, are not themselves losses for pain and suffering, but instead future expenses projected to be incurred for any kind of medical condition. Therefore, reading subdivisions 7 and 8 together within the context of the act, we conclude that under the plain language of the no-fault statute, future medical expenses constitute economic loss rather than noneco-nomic detriment. On that basis, we conclude that Pemberton’s claim for future medical expenses was not subject to a tort threshold.

Our holding today is supported by prior decisions of this court that have effectively treated future medical expenses as economic loss under the no-fault act. See Johnson, 574 N.W.2d at 472 (holding that jury award for past medical expenses, past wage loss, and future medical expenses included award “only for economic damages”) (emphasis in original); Ward v. Ward, 453 N.W.2d 729, 732 (Minn.App.1990) (stating that compensation for future medical expenses and loss of future earning capacity, through settlement of personal injury suit, are economic damages, as opposed to noneconomic damages for pain and suffering), review denied (Minn. June 6, 1990); see also Marose v. Hennameyer, 347 N.W.2d 509, 511 (1984) (noting that the plaintiff “claimed future economic loss in the form of future medical expenses”). Theis points out that this court in Marose affirmed summary judgment for the defendant on the issue of future medical expenses, discussing the issue of whether the plaintiff had sustained permanent injury. Id. at 511. But the Marose court discussed the plaintiffs claim in the context of economic loss benefits and based its holding on the determination that she had not provided sufficient evidentiary support for her future-medical-expense claim. Id.

Theis further claims that future medical expenses are not properly considered in computing a tort threshold pursuant to Coughlin v. LaBounty, 354 N.W.2d 48, 52 (Minn.App.1984), review denied (Minn. Jan. 9, 1985). But in Coughlin, this court held only that future medical expenses may not be included for the purpose of meeting the tort threshold for noneconomic detriment under Minn.Stat. § 65B.51, subd. 3. Id. at 53. The court did not address the issue of future medical expenses as economic loss or noneconomic detriment.

The Minnesota Supreme Court has also discussed future medical expenses in the context of economic loss benefits in Ferguson v. Illinois Farmers Ins. Group Co., 348 N.W.2d 730, 733 (Minn.1984). In Ferguson, the supreme court concluded that, consistent with the purpose of preventing double recovery, a no-fault insurer receives credit for the future medical expenses awarded by a jury, and the plaintiff may recover from a no-fault insurer only after she has accumulated future medical expenses exceeding the net award of future medical damages from the tort-feasor. See also Simpson v. Am. Family Ins. Co., 603 N.W.2d 860 (Minn.App.2000) (applying rationale in Ferguson to no-fault wage-loss benefits). Therefore, although Theis contends that Minn.Stat. § 66B.51, subd. 2, contains an exclusive list of economic losses, Minnesota appellate courts have considered both claims for future medical expenses and for loss of future earning capacity without discussing the applicability of a tort threshold. See Ferguson, 348 N.W.2d at 733; Simpson, 603 N.W.2d at 863. We recognize that allowing claims for future medical expenses without requiring satisfaction of one of the tort-threshold requirements may well lead to increased litigation, but the legislature has not acted to bar these types of claims, and it is not this court’s province to do so.

We therefore conclude that, pursuant to the plain language of the Minnesota No-Fault Act, future medical expenses are economic losses and therefore, are not subject to the tort-threshold requirements of Minn.Stat. § 65B.51, subd. 3. Accordingly, Pemberton was not required to demonstrate a tort threshold before suing in negligence to recover her uncompensated future medical expenses.

Ill

Theis claims that the district court erred in not deducting the full amount of the $5,000 future medical-expense award from the jury’s verdict because the expenses were “otherwise available” to the plaintiff as a collateral source under Minn. Stat. § 548.36, subd. 1(2) (2002), when Pemberton settled with her no-fault insurer. Minn.Stat. § 65B.51, subd. 1 (2002), provides that, in a negligence action: “The court shall deduct from any recovery the value of basic or optional economic loss benefits paid or payable, or which would be payable but for any applicable deductible.” In this case, because of the settlement, recovery of the full amount of the $5,000 in future medical expenses is not “otherwise available” to the plaintiff. Therefore, the district court did not err in failing to deduct the full amount of the $5,000 from the recovery.

Pemberton also filed a notice of review, claiming that the district court improperly deducted the full $2,331 settlement with the no-fault insurer from the future medical-expense verdict, rather than a pro-rated amount. Pemberton argues that, absent evidence that the entire settlement amount was to be attributable to the category of medical expenses, the trial court should not have used the entire amount of the settlement to offset the future medical expense verdict. But the record was not fully developed on this issue, and it is difficult to determine how the trial court apportioned the settlement amount within the different categories of no-fault benefits. Based on the limited record before us, therefore, we cannot conclude that the district court erred in deducting the $2,331 settlement from the verdict for future medical expenses.

DECISION

A plaintiff releasing a no-fault insurance company for claims arising out of a motor vehicle accident does not give up the right to a negligence action against the tortfea-sor when neither the tortfeasor nor the tortfeasor’s insurance company were named in the release. Because future medical expenses constitute economic loss within the purview of Minn.Stat. § 65B.51, subd. 2 (2002), the plaintiffs future medical expenses were not subject to the tort threshold of Minn.Stat. § 65B.51, subd. 3 (2002). Finally, the trial court did not err by deducting the amount of the no-fault settlement received by the plaintiff from the future medical-expense verdict.

Affirmed.