author: STONEBURNER, Judge.

text:
    Lisa OLSON, et al., Respondents, v. FIRST CHURCH OF NAZARENE, et al., Defendants, Mervin Leroy Kelley, Defendant, The Minnesota District Church of the Nazarene, Appellant.
    No. C8-02-1941.
    Court of Appeals of Minnesota.
    May 20, 2003.

      Mark A. Wendorf, Cindy Waldt, Reinhardt and Anderson, St. Paul, for respondents Olsons.
    Thomas E. McEllistrem, Patrick T. Ti-erney, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, for appellant.
    Considered and decided by STONEBURNER, Presiding Judge, LANSING, Judge, and KLAPHAKE, Judge.
   OPINION

STONEBURNER, Judge.

The Minnesota District Church of the Nazarene (the District) appeals the district court’s denial of its motion for summary judgment. The District argues that because the claims of respondents Lisa and Jay Olson arise from the context of pastoral counseling, the First Amendment to the United States Constitution and art. I, § 16 of the Minnesota Constitution prohibit the court from exercising jurisdiction over Olsons’ claims. We affirm the district court’s denial of summary judgment for the claims of negligent supervision, negligent retention, and vicarious liability, and we reverse the district court’s denial of summary judgment for the claim of intentional infliction of emotional distress.

FACTS

Respondents Lisa and Jay Olson were members of the First Church of the Nazarene in Fergus Falls and were Mends of the former pastor, defendant Mervin Kelley. The District is the regional head of the Church of the Nazarene. In 1992, Lisa Olson began an ongoing, private spiritual-counseling relationship with Pastor Kelley. From 1996 to 1999, Lisa Olson and Kelley were involved in a sexual relationship. When church officials became aware of the relationship, the District confronted Kelley, who resigned after voluntarily forfeiting the credentials previously bestowed on him by the District that had allowed him to be hired as First Church’s pastor. Church officials revealed Lisa Olson’s name and relationship with Kelley to the congregation during the explanation of Kelley’s resignation.

Kelley was subsequently convicted of criminal sexual conduct in the third degree in violation of Minn.Stat. § 609.344, subd. l(Z)(n) (2000), which provides, in relevant part that:

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if * * * the actor is * * * a member of the clergy, the complainant is not married to the actor, and * * * the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid or comfort in private. Consent by the complainant is not a defense.

Lisa Olson and Jay Olson, in separate complaints that have been consolidated, sued Kelley, First Church, the District, and the church’s national organization, the Board of General Superintendents. Kelley never answered the complaints. The Ol-sons settled with the local church and the national organization. Only the claims against the District remain.

The Olsons claim that the District, as Kelley’s employer, is vicariously liable for Kelley’s battery of sexual penetration, and is liable for negligent retention and negligent supervision of Kelley. Lisa and Jay Olson also claim intentional infliction of emotional distress stemming from the disclosure of Lisa’s name to the congregation. The District moved for summary judgment, arguing that the Establishment Clause of the First Amendment to the United States Constitution and art. 1, § 16 of the Minnesota Constitution preclude the exercise of subject-matter jurisdiction by the district court over the Olsons’ claims. The district court denied summary judgment, concluding that the claims can be resolved by applying neutral principles of law without regard to religion and that examination of church documents to determine the relationship between the District and Kelley does not pose a risk of excessive state entanglement in religion. This appeal followed.

ISSUES

1. Does the district court have subject-matter jurisdiction to determine whether an employment relationship existed between the District and Kelley?

2. If the District is determined to have been Kelley’s employer at the relevant time, does the district court have jurisdiction over the Olsons’ claims against the District for negligent supervision, negligent retention, and vicarious liability?

3. Does the district court have subject-matter jurisdiction over Olson’s claims against the District for intentional infliction of emotional distress based on the announcement of Lisa Olson’s name to the congregation in connection with the explanation of Kelley’s resignation?

ANALYSIS

The scope of this appeal is limited to the issue of jurisdiction and does not reach the merits of the claims made by Lisa and Jay Olson. Generally, an interlocutory appeal may not be taken from a denial of summary judgment, but an issue relating to subject-matter jurisdiction can be appealed immediately. McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 832-33 (Minn.1995). Subject-matter jurisdiction is a question of law reviewed de novo. Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426, 434 (Minn.2002) (Odenthal I). The state and federal constitutions limit a secular court’s exercise of jurisdiction over disputes involving religious institutions. Id.

A. Federal Constitutional Considerations

The First Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. The First Amendment applies to judicial power. Odenthal I, 649 N.W.2d at 435.

The District asserts that resolving the Olsons’ claims would require the court to become impermissibly entangled with religion. But the Establishment Clause is not an automatic barrier to government action. Black v. Snyder, 471 N.W.2d 715, 721 (Minn.App.1991) (stating that excessive entanglement is ultimately a question of degree), review denied (Minn. Aug. 29, 1991). Government action is not prohibited by the Establishment Clause if the action (1) has a secular purpose; (2) neither inhibits nor advances religion as its primary effect; and (3) does not create excessive entanglement between church and state. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). The Establishment Clause is not implicated where neutral principles of law, developed and applied without particular regard to religious doctrines, establish the applicable standard of care. Odenthal I, 649 N.W.2d at 436.

B. State Constitutional Considerations

The Freedom of Conscience Clause of the Minnesota Constitution provides:

The right of every man to worship God according to the dictates of his own conscience shall never be infringed; * * * nor shall any control of or interference with the rights of conscience be permitted or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state * * *.

Minn. Const. art. I, § 16.

The language of the Minnesota Constitution regarding religion “is of a distinctively stronger character than the federal counterpart” and precludes “even an infringement on or an interference with religious freedom.” State v. Hershberger, 462 N.W.2d 393, 397 (Minn.1990) (stating that the Minnesota Constitution expressly grants affirmative rights in the area of religious worship while the federal constitution simply attempts to restrain government action). The state constitution protects the right to free exercise of religion and prohibits the establishment of religion or giving of a preference to any religion. Odenthal I, 649 N.W.2d at 442.

The test for determining whether government action violates the Freedom of Conscience Clause of the Minnesota Constitution has four prongs: (1) whether the belief is sincerely held; (2) whether the state action burdens the exercise of religious beliefs; (3) whether the state interest is overriding or compelling; and (4) whether the state uses the least restrictive means. Hershberger, 462 N.W.2d at 398. Whether a belief is sincerely held is not an issue in this case. And because the legislature has criminalized the conduct of the cleric complained of in this case, we conclude that, as a matter of law, the state has a compelling interest. The inquiry in this case is whether the exercise of jurisdiction burdens the exercise of religious beliefs and if so, whether the state has used the least restrictive means to vindicate its interests.

C. Application of constitutional law to claims

1. Determining the existence of an employment relationship

Lisa Olson’s claims against the District for vicarious liability, negligent supervision, and negligent retention all depend on a determination that the District was Kelley’s employer. The District argues that an inquiry by the court into its relationship with Kelley would excessively entangle the state with religion. We disagree,

Whether an employment relationship exists is an issue of fact when the evidence is disputed. Stenvik v. Constant, 502 N.W.2d 416, 420 (Minn.App.1993), review denied (Minn. Aug. 24,1993).

[F]actors traditionally used to determine the nature of a work relationship are: (1) the right to control the means and manner of performance; (2) the mode of payment; (3) furnishing of materials and tools; (4) control of premises where work is performed; and (5) right of employer to hire and discharge.

Id. (citation omitted). The right to control is the most significant factor. Id. These factors are neutral principles of law that can be applied without regard to religious doctrines because the court need not develop a legal standard based on religious practices and need not interpret religious doctrine to discover whether the traditional employment factors apply to the relationship between the District and Kelley. See Odenthal I, 649 N.W.2d at 436. The inquiry is limited to how the factors apply to the relationship, and does not involve an examination of the entity’s doctrines.

At oral argument, the District conceded that the court is not constitutionally precluded from applying neutral principles of employment laws to the structure of the church as set out in the church’s governance documents to determine whether an employment relationship exists between a church entity and a pastor. We agree. A court is not precluded from examining church documents in purely secular terms that do not require reliance on “religious precepts” to determine their meaning. Jones v. Wolf, 443 U.S. 595, 604, 99 S.Ct. 3020, 3026, 61 L.Ed.2d 775 (1979). The court must accept, and cannot chai-lenge, the governance established in the documents. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 720, 96 S.Ct. 2372, 2385-6, 49 L.Ed.2d 151 (1976); Piletich v. Deretich, 328 N.W.2d 696, 700 (Minn.1982) (holding that a matter of property ownership can be constitutionally examined by court applying neutral principles of law to terms of church documents). The Establishment Clause does not preclude the district court’s exercise of subject-matter jurisdiction to determine whether the District was Kelley’s employer and does not preclude examination of church documents to facilitate that inquiry.

The District has not explained, and we cannot discern, how such an examination of the relationship between the District and the pastor to determine if the District was Kelley’s employer would burden the exercise of religion in violation of art. I, § 16 of the Minnesota Constitution. We therefore conclude that the state constitution does not preclude this inquiry. The district court correctly concluded that it has subject-matter jurisdiction to determine whether an employment relationship existed between the District and Kelley.

Only if the District is determined to have been Kelley’s employer at the relevant time will the court be required to examine the employment-related claims of Lisa and Jay Olson, but we must explore whether such further inquiry is constitutionally permitted.

2. Employment-related claims

a. vicarious liability for battery

The Olsons claim that, as Kelley’s employer, the District is vicariously liable for Kelley’s specific battery of sexual penetration committed against Lisa Olson. It is only the narrow conduct (sexual penetration,) proscribed by the Minn.Stat. § 609.344, subd. 1(1 )(ii), that is the focus of the claim, not the broader common-law concept of unconsented-to touching. The District concedes that Kelley committed sexual penetration. The District argues that because the Olsons rely only on Kelley’s position as a cleric and the ongoing, private spiritual-counseling relationship to argue that Lisa Olson did not consent to the sexual penetration, the court would become impermissibly entangled with religion in order to determine the issue of consent.

The district court rejected the Olsons’ argument that Kelley’s criminal conviction is dispositive of the consent issue, and held that consent is a question of fact to be addressed at trial. We recognize a potential for impermissible entanglement of the court with religion if the Olsons were to argue that the content of the spiritual advice affected her capacity to consent. But the Olsons acknowledge that such an inquiry is constitutionally prohibited and argue that inquiry into the religious content of the relationship is not required. The Ol-sons assert that it is the existence of the private counseling relationship with the pastor, not the content of the counseling, that affected her ability to consent, as was recognized by the legislature when it crafted Minn.Stat. § 609.344, subd. l(Z)(ii), criminalizing Kelley’s conduct.

The District argues that the state cannot constitutionally place clerics in a class that makes sexual penetration during ongoing, private spiritual-counseling illegal without excessive entanglement with religious doctrine or burdening religious practice. But the District does not explain how entanglement occurs or how religious practice is burdened by an inquiry into whether sexual penetration occurred during ongoing, private counseling when an inquiry into the content of such counseling is precluded. Because the court cannot constitutionally inquire into church doctrine, the jurisdiction of the court to inquire into the consent issue is limited by the federal and state constitutions to a determination of whether the existence of an ongoing, private counseling relationship with a cleric precludes the counselee’s ability to consent to sexual penetration by the cleric. We trust the district court’s ability to prohibit any examination of, or inference about, the content of such counseling. We conclude that there is not a risk of entangling the court with religious doctrine or a burdening of religious practice by an exercise of jurisdiction over the limited issue of whether the existence of the relationship precludes the counselee’s consent to sexual battery.

Under the ‘well-established principle’ of respondeat superior, ‘an employer is vicariously liable for the torts of an employee committed within the course and scope of employment.’

Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 910 (Minn.1999) (citing Schneider v. Buckman, 433 N.W.2d 98,101 (Minn.1988)). As the supreme court has interpreted the doctrine in Minnesota:

an employer may be held liable for even the intentional misconduct of its employees when (1) ‘the source of the attack is related to the duties of the employee,’ and (2) ‘the assault occurs within work-related limits of time and place.’

Id. (citing Lange v. National Biscuit Co., 297 Minn. 399, 404, 211 N.W.2d 783, 786 (1973)). And an employee’s act need not be committed in furtherance of his employer’s business to fall within the scope of his employment. Id.

The master is hable for any such act of the servant which, if isolated, would not be imputable to the master, but which is so connected with and immediately grows out of another act of the servant imputable to the master, that both acts are treated as one indivisible tort.

Id. (citations omitted). In determining that a clinic-employer of a psychologist could be held hable for damages caused by the psychologist engaging in sexual misconduct with patients at the clinic during and immediately after therapy, the supreme court noted that:

[T]he sexual misconduct would not have occurred but for the psychiatrist’s employment, occurred during or after regular therapy sessions, and was preceded by normal therapeutic massage * * * [and] there was “testimony that sexual relations between a psychologist and a patient is a well-known hazard, and thus, to a degree, foreseeable and a risk of employment.”

Id. '(citations omitted).

The factors for determining whether the conduct occurred within the scope of employment are neutral principles of law that can be applied to the facts of a case involving a religious employer without any regard to the particular religious doctrines of the employer. See Odenthal v. Minn. Conference of Seventh-Day Adventists (Odenthal II), 657 N.W.2d 569, 577 (Minn.App.2003) (holding that a district court has subject-matter jurisdiction over a claim of vicarious liability for negligent secular counseling against a religious institution) review denied, (Minn. Mar. 18, 2003). An examination of the Olsons’ claims does not involve an inquiry into what the cleric’s role is within the church or his duties generally. The district court, in this case, need only determine whether Kelley, when he sexually penetrated Lisa Olson, was providing ongoing, private spiritual advice, aid, or comfort to Lisa Olson in his capacity as a cleric and the district court does not need to examine the content of the advice, aid, or comfort given. We conclude, therefore, that the Establishment Clause does not preclude jurisdiction over the claim of vicarious liability. The District has faded to articulate how an examination by the court of whether sexual penetration occurred within the scope of employment involves any inquiry into church doctrine or procedure, and we conclude that the inquiry does not limit or burden the exercise of religion in violation of the state constitution. The district court correctly concluded that it has subject-matter jurisdiction over the claim against the District for vicarious liability.

b. Negligent retention

In Minnesota, generally, an employer has the duty “to refrain from retaining employees with known dangerous proclivities.” Yunker v. Honeywell, Inc., 496 N.W.2d 419, 423 (Minn.App.1993), review denied (Minn. Apr. 20, 1993). An employer may be liable for negligent retention when

during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge or reassignment.

Id. at 423 (citation omitted). Liability for this cause of action is not dependent on whether the employee’s act was within the scope of employment. Id. at 422.

The standards used to evaluate a claim of negligent retention are based on neutral principles of law. The unfitness alleged in this case is commission of the act of sexual penetration and does not require any examination of church doctrine or practice. The district court need evaluate only what the District knew or should have known about Kelley’s propensity to engage in sexual penetration with persons who sought spiritual or religious advice from him, and, if there was such knowledge, whether the District acted reasonably to prevent such conduct toward Lisa Olson. See Odenthal II, 657 N.W.2d at 575 (holding that claims against church employer for negligent retention of pastor who allegedly engaged in negligent secular counseling can be resolved through application of neutral principles of law without violating federal or state constitutions). The issue is not negligent retention as it relates to Kelley’s provision of spiritual advice. The issue for the district court is whether the District acted reasonably after it became aware or should have become aware of any problems with Kelley sexually penetrating persons being privately given spiritual advice, aid, or comfort. This inquiry does not pose any risk of entanglement with religious doctrine or procedure and no burdening of religious practice. The district court correctly concluded that it has jurisdiction over the claims against the district for negligent retention.

c. Negligent supervision

Unlike a claim of negligent retention, negligent supervision derives from the doctrine of respondeat superior, so that a plaintiff must prove that the employee’s action occurred within the scope of employment. M.L. v. Magnuson, 531 N.W.2d 849, 858 (Minn.App.1995), review denied (Minn. Jul. 20, 1995). Negligent supervision is the failure of an employer to exercise ordinary care in supervising the employment relationship so as to prevent foreseeable misconduct of an employee from causing harm to others. Id.

As with the claim of vicarious liability, the claim of negligent supervision in this case does not involve an examination by the court of the religious duties of a cleric or the content of spiritual advice, aid, or comfort given that would require an impermissible inquiry into church doctrine. The inquiry is only into the reasonableness of the employer’s supervision to prevent a cleric’s sexual penetration of persons who are receiving ongoing, private spiritual advice, aid, or comfort from a cleric. The supreme court has previously determined that sexual relations are a well-known hazard of a secular counseling relationship. Marston v. Minneapolis Clinic of Psychiatry & Neurology, 329 N.W.2d 306, 311 (Minn.1982). Whether sexual penetration of a person by a cleric while providing ongoing, private spiritual advice, aid, or comfort to that person is foreseeable has not been determined. But the District has not established that there is any need to inquire into or interpret church doctrine to make such a determination. As discussed above, it is only the existence of the relationship, not the content of advice, aid, or comfort given, that can be constitutionally examined, but with this limitation, there is no risk of entanglement of the court with religious doctrine or burden on the exercise of religion. The district court correctly concluded that it has subject-matter jurisdiction over the claim of negligent supervision.

3. Intentional infliction of emotional distress

To establish a claim of intentional infliction of emotional distress, a plaintiff must show that (1) the conduct of the defendant was so extreme and outrageous that it passed the - boundaries of decency and is utterly intolerable to the civilized community; (2) the conduct was intentional or reckless; (3) the conduct caused emotional distress to plaintiff; and (4) the distress was so severe that no reasonable person could be expected to endure it. Hubbard v. United Press Int’l, 330 N.W.2d 428, 438-39 (Minn.1983). Lisa and Jay Olson have asserted this claim directly against the District for announcing Lisa Olson’s name to the congregation when the congregation was told the reason for Kelley’s resignation.

We have previously affirmed dismissal of a pastor’s claim against his employer-church for intentional infliction of emotional distress as involving excessive entanglement and precluded by the Establishment Clause. Singleton v. Christ The Servant Evangelical Lutheran Church, 541 N.W.2d 606, 613 (Minn.App.1996) (stating that to determine whether church intended to cause pastor emotional distress, court would need to review motivations for church’s actions, fundamentally connected to issues of church doctrine and governance), review denied (Minn. Mar. 19, 1996). We note that some aspects of the Singleton decision have been effectively overruled by Odenthal I, which expanded the neutral-principles-of-law analysis. beyond church property and membership. And the Olsons argue that neutral principles of law can be applied to this claim as well as to the other claims asserted. But

[w]hen claims involve “core” questions of church discipline and internal governance, the [United States] Supreme Court has acknowledged that the inevitable danger of governmental entanglement precludes judicial review.

Black, 471 N.W.2d at 720 (citing Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976)). We conclude that inquiry into a religious entity’s determination of what information about church members its congregation is entitled to know and how that information is provided to the congregation risks excessive entanglement of the court with church doctrine and procedure. The Olsons’ claims of intentional infliction of emotional distress are therefore barred by the Establishment Clause of the First Amendment to the United States Constitution. Because we hold that the First Amendment precludes an exercise of jurisdiction over this claim, we do not reach arguments based on the Minnesota Constitution. The district court erred by determining that it has jurisdiction over the Olsons’ claims for intentional infliction of emotional distress.

DECISION

The district court has subject-matter jurisdiction to determine whether an employer-employee relationship exists between a religious entity and a cleric and can constitutionally examine the governance documents of a religious entity in secular terms for the purpose of applying neutral principles of law to determine whether an employment relationship existed. And the district court has subject-matter jurisdiction over claims that a religious employer is vicariously liable, liable for negligent retention, or liable for negligent supervision for a cleric’s sexual penetration of a person while the cleric was providing ongoing, private spiritual advice, aid, or comfort to that person. The district court’s denial of summary judgment for lack of subject-matter jurisdiction over the Olsons’ claims against the District for negligent supervision, negligent retention, and vicarious liability is affirmed.

The Establishment Clause of the First Amendment to the United States Constitution precludes the district court’s jurisdiction over the Olsons’ claims of intentional infliction of emotional distress based on the release of Lisa Olson’s name to the congregation in connection with the reason for the pastor’s resignation. The district court’s denial of summary judgment based on lack of subject-matter jurisdiction for the claim of intentional infliction of emotional distress is reversed.

Affirmed in part and reversed in part.

      . The Olsons’ claim against the District for negligence based on breach of an alleged duty to provide her with a safe environment for spiritual growth and Jay Olson’s claim for loss of consortium were not addressed in the summary-judgment motions and are not before us.

      . The District asserts but does not argue or present any authority to support an argument that the Free Exercise Clause of the U.S. Constitution precludes Olsons’ claims; therefore we decline to address the Free Exercise claim. Issues not briefed on appeal are waived. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982).

      . The District asserts that the claims against Kelley constitute claims for clergy malpractice, a cause of action that has never been recognized in Minnesota or any other jurisdiction. See Odenthal I, 649 N.W.2d at 441 (indicating that clergy malpractice claims are barred by the First Amendment). This argument was not made to the district court, which was informed only that Olsons have carefully framed their complaint to avoid a claim of clergy malpractice. We agree that the Olsons have carefully framed their claims so that they are not claims for clergy malpractice, so that issue is not before us.


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    In Re the Marriage of Patricia Louise YOUKER, Petitioner, Respondent, v. Nick Allen YOUKER, Appellant.
    No. C5-02-1878.
    Court of Appeals of Minnesota.
    May 20, 2003.

      Elizabeth Ann Schading, Barna, Guzy & Steffen, Ltd., Minneapolis, MN, for respondent.
    Timothy D. Lees, Hennek Klaenhammer & Lees, P.A., Roseville, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, KLAPHAKE, Judge, and SHUMAKER, Judge.
   OPINION

TOUSSAINT, Chief Judge.

In this maintenance-modification dispute, appellant argues that the district court abused its discretion by converting his temporary obligation to a permanent obligation, contending that (a) respondent failed to show a substantial change in circumstances rendering the existing maintenance award unreasonable and unfair and (b) neither the record nor the findings support the district court’s award of permanent spousal maintenance. Because the record does not contain facts sufficient to show a substantial change in circumstances, we reverse.

FACTS

Appellant Nick Youker and respondent Patricia Youker were married in 1981, and a petition to dissolve the marriage was filed in Anoka County District Court in 1997. In 1998, the amount and duration of spousal maintenance was litigated in a two-day trial. The district court found that although respondent had skills and education that would be useful in a job search, she needed three more years of education and training to obtain better employment and to earn a higher income. On April 1, 1999, the court entered the dissolution decree and awarded spousal maintenance of $1,000 per month for three years. Neither party appealed the initial award of spousal maintenance.

During the marriage, respondent was a homemaker, cared for the parties’ son, earned a two-year degree in fashion merchandising and marketing, and worked in lower-paying positions than that of appellant. During the dissolution proceedings, respondent was employed as a visual specialist, arranging mannequins and merchandise displays, at Kohl’s department store.

After the dissolution, respondent continued her employment with Kohl’s and received periodic raises. She considered enrolling in an interior-design program at one college, but she ultimately chose not to do so. She determined that the programs at that and other institutions were inconvenient in either distance or scheduling since they did not offer a sufficient number of evening or weekend classes. Respondent chose not to attend classes full-time because the cost of tuition, coupled with the reduction of earnings, made attending a full-time program infeasible. She also discovered that interior-design programs require an additional four-year apprenticeship after completion, and her salary during that apprenticeship would be less than her current earnings. Consequently, respondent did not enroll in any degree-granting program during the temporary maintenance period, though she did enroll in a correspondence course to enhance her employment as a visual specialist. She had completed half of that course by the March 2002 hearing.

Similarly, respondent did not search for any other employment “other than looking in the newspaper.” Instead, she continued in the Kohl’s position because she was “not interested in anything else.” Although she investigated higher-paying positions at Kohl’s and HOM Furniture, she did not apply for those positions because they required travel at least one week per month. Because she had no one else to care for the parties’ minor son, she viewed as unacceptable any job that required overnight travel.

On March 4, 2002, respondent moved to modify the duration of the maintenance award from temporary to permanent. Respondent conceded that her reasons for requesting the modification were the same as those given during the court’s initial dissolution hearings. Those reasons included the fact that she is not currently self-supporting and that she spent the majority of a long-term marriage as homemaker and primary caretaker of their child.

On June 28, 2002, the district court issued its order finding that a change in circumstances warranted modification of the temporary maintenance award. In explaining its decision, the district court cited respondent’s investigation into educational opportunities and her consideration of employment opportunities. In particular, the court noted that if respondent had (1) stayed at her current position and attended one night class per semester, her program would have taken more than three years to complete; (2) left her employment to attend classes full-time, she would have been in a worse financial position than at present; and (3) pursued other available positions, they would have required her to travel. The district court concluded that respondent’s “reasoned decision” not to pursue further education or employment constituted “reasonable efforts toward rehabilitation.” It then made a permanent maintenance award of $500 per month, to continue until respondent’s remarriage or death or until further order of the court. This appeal follows.

ISSUE

Did the district court abuse its discretion in finding that a significant change of circumstances warranted modifying the award from temporary to permanent spousal maintenance?

ANALYSIS

Maintenance awards are not altered on appeal unless the district court abused its wide discretion. Prange v. Frange, 437 N.W.2d 69, 70 (Minn.App.1989), review denied (Minn. May 12, 1989). A district court may initially grant a maintenance order for either spouse if it finds that the spouse seeking maintenance lacks the attributes found in Minn.Stat. § 518.552, subd. 1 (2002). A district court shall consider all relevant factors before ordering maintenance. Minn.Stat. § 518.552, subd. 2 (2002); Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn.App.1997). A district court’s findings of fact will not be set aside unless those findings are clearly erroneous. Minn. R. Civ. P. 52.01.

After the district court issues a spousal-maintenance award, it has broad discretion to determine whether to later modify that award. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984). A party moving to modify an award of maintenance bears the burden of showing a substantial change of circumstances since the last time maintenance was modified, or if maintenance has not been modified, since it was originally set. Minn.Stat. § 518.64, subd. 2 (2002); Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn.App.1996). The moving party must then demonstrate that these changed circumstances render the original award unreasonable and unfair. Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn.1997). The amount and duration of a modified maintenance award that extends the duration of an existing award must be supported by the district court’s findings. Santillan v. Martine, 560 N.W.2d 749, 752 (Minn.App.1997). A district court abuses its discretion when it resolves a matter in a manner that is “against logic and the facts on record.” Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn.App.2001) (quoting Rutten, 347 N.W.2d at 50).

After temporary maintenance has been awarded, an obligee generally has the duty to rehabilitate. Carrick, 560 N.W.2d at 411 n. 1. From that duty, it follows that the obligee must make reasonable efforts to become self-supporting. Hecker, 568 N.W.2d at 710 n. 4; Nardini v. Nardini, 414 N.W.2d 184, 198 (Minn.1987). If, despite the obligee’s reasonable efforts, the spouse fails to become fully rehabilitated, that failure may constitute a change in circumstances. Santillan, 560 N.W.2d at 752 (citing Katter v. Katter, 457 N.W.2d 750, 753 (Minn.App.1990)).

The district court clearly erred in finding that respondent’s failure to rehabilitate constituted a sufficient change in circumstances. On this record, respondent’s mere research into rehabilitation, without further acts, is insufficient to show reasonable efforts to rehabilitate.

Appellant argues that respondent did not “fail” to rehabilitate because she did not sufficiently “attempt” to do so. Considering facts similar to those here, the supreme court reviewed a motion to modify spousal maintenance when a spouse failed to rehabilitate after the durational maintenance period had expired. Hecker, 568 N.W.2d at 707-08. The spouse there “chose not to make any serious effort at obtaining vocational training or work experience.” Id. at 708. The court noted that it is implied that a spouse receiving temporary maintenance must make a good-faith effort to rehabilitate. Id. at 710.

Here, respondent failed to make a sufficient attempt to rehabilitate, disregarding the decree’s implied duty to pursue (1) further education and (2) better employment. She limited her exploration of educational opportunities to merely “checking” on one institution’s interior-design program. Although several institutions offered evening classes, the district court found that respondent could have attended only one evening course per semester. Accordingly, the district court found that if respondent had taken one course per semester, “at this time she would have years left before earning another two-year degree, and would need an extension of spousal maintenance.” The court also found that respondent’s decision not to attend classes full-time was reasonable, noting that a full-time class load would have resulted in increased debt without any employment income to cover living expenses.

We agree with appellant’s argument that these findings are speculative and without basis in the record. The court did not rely upon what actually happened, but instead focused on what could have occurred if respondent had made further attempts to rehabilitate. Despite the duty implied in the dissolution decree, respondent did not take any affirmative steps to enroll in any full-time or evening courses to further her education. Respondent’s inaction beyond mere inquiry into potential programs is insufficient to demonstrate the substantial change in circumstances necessary for spousal-maintenance modification. The law prefers that an obligee spouse make reasonable attempts to rehabilitate and fail, rather than do little or nothing and “rely upon the possibility that [the spouse] would continue to receive spousal maintenance.” Hecker, 568 N.W.2d at 710. Under the terms of the decree, respondent is obligated to make reasonable attempts to rehabilitate, and she may seek a remedy if that attempt fails.

Appellant next argues that respondent’s minimal employment search was not sufficient to fulfill her duty to attempt to rehabilitate. In particular, we address respondent’s limited search for other employment beyond “looking in the newspaper” and noting management vacancies for which she did not apply. We agree that respondent’s attempts to obtain higher-paying employment were inadequate to demonstrate her inability to become self-sufficient. Over the three-year temporary-maintenance period, respondent’s mere inquiry into two positions, without her subsequent application for those or any other positions, does not constitute a reasonable effort to rehabilitate. Although the district court found that no evidence exists to show that respondent was qualified for a management position, she had the affirmative duty to pursue better employment. The best way to determine respondent’s qualification is for respondent to apply for a position.

The district court mistakenly relied upon Carrick, 560 N.W.2d at 410-11 (Minn.App.1997), and Maurer v. Maurer, 607 N.W.2d 176, 180-81 (Minn.App.2000), rev’d on other grounds, 623 N.W.2d 604 (Minn.2001), in holding that respondent’s continued employment at the same full-time position that she held during the marriage did not constitute bad-faith underemployment. Carrick and Maurer addressed the initial establishment of spousal maintenance, while the instant case addresses the modification of a maintenance decree. Both of those decisions focused on whether the spouse was “underemployed in bad faith” before the district court had entered the decree of dissolution. Maurer, 607 N.W.2d at 180; Carrick, 560 N.W.2d at 410. A spouse is not required to search for new employment in the relatively short time between the petition and the dissolution decree. In contrast, this case involves the duty to attempt rehabilitation during the three-year temporary-maintenance period awarded by the decree of dissolution.

DECISION

Because the district court clearly erred in finding that respondent made a reasonable attempt to rehabilitate, its determination that this case involved a substantial change in circumstances is defective. Therefore, we reverse the award of permanent spousal maintenance.

Reversed.

      . The Hecker court’s concurring opinion makes a similar conclusion that the recipient spouse’s "failure to achieve self-sufficiency appears from the record to be more a failure to make an effort to become self-sufficient than an actual failure to become self-sufficient.” Hecker, 568 N.W.2d at 710 n. 1.


author: PETERSON, Judge.

text:
    In the Matter of the APPOINTMENT OF A TRUSTEE FOR THE HEIRS OF Eugene Ernest BODEKER, Decedent.
    No. C5-02-1816.
    Court of Appeals of Minnesota.
    May 20, 2003.

      Michael M. Fluegel, Amy J. Doll, Flue-gel, Helseth, McLaughlin, Anderson & Brutlag, Morris, MN, for appellant co-trustee Jill Tuttle.
    Richard H. Breen, Breen & Person, Brainerd, MN, for respondent co-trustee Angeline Bodeker.
    Considered and decided by HARTEN, Presiding Judge, PETERSON, Judge, and HALBROOKS, Judge.
   OPINION

PETERSON, Judge.

In this appeal from an order in a wrongful-death action affirming the settlement of respondent co-trustee’s claims against the tortfeasor and his insurer, appellant co-trustee argues that under Minn.Stat. § 573.02, subd. 1 (2002), the district court may not approve a settlement that addresses the claims of a surviving spouse but does not address the claims of all of the next of kin. Appellant also argues that the district court abused its discretion when it denied her motion to remove respondent as a co-trustee. We reverse and remand.

FACTS

Eugene Bodeker (Bodeker) was killed in November 2001 when the vehicle he was driving was struck by a vehicle driven by Donald A. Bjelland. At the time of his death, Bodeker was married to respondent Angeline Bodeker. Bodeker also had three adult children from a previous marriage. Appellant Jill Tuttle is one of Bo-deker’s adult children.

On April 18, 2002, respondent was appointed as trustee to maintain a cause of action under Minn.Stat. § 573.02 (2002), the wrongful-death statute. Shortly after respondent was appointed trustee, appellant and her siblings received an April 22, 2002, letter from respondent’s attorney, which stated:

You recently received an Order Appointing [Respondent] as trustee for the heirs. Our office has been retained and is handling the damage claim. If and when settlement is obtained, it will be a lump sum and then the Court will determine distribution of that lump sum according to the relationship and losses by the individuals. Usually that is settled and agreed upon between the parties, but when we get to that point, if there is no agreement, the Court will have a hearing at which time evidence of relationship can be given to the Judge so he can make that determination. You will be contacted in plenty of time prior to any such hearing date.
We are just entering the initial process of gathering information about the accident, loss of income and other damages to submit to the insurance company.

After several weeks passed without respondent’s attorney communicating further with appellant or her siblings, appellant contacted an attorney with questions about the handling of a wrongful-death action. The attorney wrote to respondent’s attorney and asked for a report on the status of any negotiations or pleadings that had been filed. Respondent’s attorney replied with a letter that described the status of negotiations with Bjelland’s insurer. The letter also stated:

I have sent quite a bit of material to the insurance company through the last several months. Enclosed is a copy of a settlement brochure that was submitted to them. It is my understanding that contact with [Bodeker’s] own children through the last several years has been rather limited. Any information your clients could supply as to their contact with their father over the last several years which would go to monies provided or advice, comfort, assistance and protection would be something that we would include in a supplemental to the insurance company. We are advised that there is $750,000 in coverage and, as you see, our initial demand is for that amount.

Respondent’s attorney also enclosed a copy of a demand letter that had been sent to the claims adjuster for Bjelland’s insurer demanding the $750,000 policy limit. The letter stated that Bodeker had three children from a first marriage, but it did not identify the children by name or include any information about them. Appellant’s attorney became concerned because the demand letter did not mention pecuniary damages suffered by the surviving children, and he began gathering information related to their claim for damages. He also informed respondent’s attorney that he would be providing the information.

Before appellant’s attorney provided respondent’s attorney with any information about the surviving children’s damages, respondent twice reduced the demand to Bjelland’s insurer. Because he was concerned that the interests of the surviving children were being ignored, appellant’s attorney petitioned to have appellant appointed as a co-trustee. Respondent consented to the appointment, and appellant was appointed as co-trustee.

Appellant’s counsel sent a demand letter to Bjelland’s insurer withdrawing respondent’s unapproved demand and asserting a new demand for the claims of all of decedent’s next of kin. The insurer did not respond to appellant’s demand. On September 5, 2002, without prior notice or consultation, appellant’s attorney received a fax correspondence from respondent’s attorney stating:

We have decided to settle separately on [respondent’s] claim. It was settled for $287,500.
[Bodeker’s] children’s claim remains open.

Respondent then petitioned the district court for distribution of the settlement proceeds. Appellant filed a motion in opposition to the petition for distribution of the settlement proceeds and to remove respondent as a co-trustee. The district court ordered:

1. That the Trustee accept the sum of $237,500 in full settlement of all claims of liability of [respondent] as against the driver, Donald A. Bjelland, and his insurer * * *.
2. That the Trustee shall execute any and all releases, receipts and any other documents necessary to accomplish acceptance of these funds and the release of said claim.

The district court also ordered the trustee to distribute the $237,500 in specific amounts to respondent and her attorney, and the ordered distributions were made and releases were provided. The district court’s order did not explicitly deny appellant’s motion to remove respondent as a co-trustee, but in the memorandum that accompanied the order, the district court stated,

This Court is unconvinced that removal of [respondent] and her attorney would allow for a more equitable outcome to the ongoing negotiations of the three adult children.

ISSUES

1. Are the issues in this appeal moot?

2. Did the district court err when it approved the settlement that respondent negotiated for her exclusive benefit and ordered the distribution of the settlement proceeds?

3. Did the district court abuse its discretion by failing to remove respondent as a co-trustee?

ANALYSIS

1. Respondent argues that because appellant failed to file a supersedeas bond to stay the district court’s order during this appeal, the distributions ordered by the district court were made, and releases were signed. Therefore, respondent contends, because she is now willing to resign as trustee, the issues in this appeal are moot.

The posting of a supersedeas bond or a request for stay on other grounds is not required for an appeal to be perfected or proceed. However, because the order or judgment that is the subject of the appeal is not generally stayed automatically, a matter may, in some circumstances, become moot while the appeal is pending.

Minn. R. Civ.App. P. 108.01, 1998 advisory comm. cmt.

It is well settled that if, pending an appeal, an event occurs which makes a decision unnecessary, the appeal will be dismissed as presenting a moot question.

Sprenger v. Jacobs, 305 N.W.2d 747, 748 (Minn.1981) (citations omitted). “If the court is unable to grant effectual relief, the issue raised is deemed to be moot resulting in dismissal of the appeal.” In re Schmidt, 443 N.W.2d 824, 826 (Minn.1989) (citation omitted).

The fact that the distributions ordered by the district court have been made and releases have been provided does not make a decision in this appeal unnecessary. Appellant contends that under Minn.Stat. § 573.02, subd. 1 (2002), a district court may not order the distribution of settlement proceeds in a wrongful-death action when the settlement addresses only the claims of the surviving spouse and leaves the remaining next of kin to pursue their claims separately. The claims of the remaining next of kin have not been resolved, which makes it necessary to decide whether the claims of the surviving spouse and the claims of the remaining next of kin can be pursued separately. It is also necessary to decide whether the district court erred when it declined to remove respondent as a co-trustee because, although respondent has stated that she is willing to resign her appointment as a trustee, she has not resigned.

Also, the fact that the distributions have been made and releases have been provided does not mean that this court is unable to grant appellant effectual relief. Appellant wants to pursue the claims of the surviving spouse and all of the next of kin in a single action. If the order approving the settlement of the surviving spouse’s claims is reversed, the settlement would not be approved, and a trustee could then pursue the claims of the surviving spouse and all of the next of kin. The distributions that have occurred might make the ultimate resolution of the claims more complicated, but at this time, there is no basis to conclude that this court could not grant appellant the relief that she seeks.

2. Appellant argues that as a trustee appointed to maintain a wrongful-death action under Minn.Stat. § 573.02, subd. 1, respondent had no right to negotiate a settlement for her exclusive benefit, and therefore, the district court’s approval of respondent’s settlement and the distribution of the settlement proceeds were not permitted by the statute.

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.

Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (citation and quotation omitted).

Minn.Stat. § 573.02, subd. 1, provides:
When death is caused by the wrongful act or omission of any person or corporation, the trustee appointed as provided in subdivision 3 may maintain an action therefor if the decedent might have maintained an action, had the decedent lived, for an injury caused by the wrongful act or omission. * * * The recovery in the action is the amount the jury deems fair and just in reference to the pecuniary loss resulting from the death, and shall be for the exclusive benefit of the surviving spouse and next of kin, proportionate to the pecuniary loss severally suffered by the death. The court then determines the proportionate pecuniary loss of the persons entitled to the recovery and orders distribution accordingly.

This statute is clear on its face. It permits a trustee to bring a cause of action to recover the entire pecuniary loss suffered by the surviving spouse and next of kin as a result of a decedent’s death. Then, the court determines the pecuniary losses suffered by the surviving spouse and each of the next of kin as a result of the death and determines the proportionate share of the total recovery that each of the survivors is entitled to recover. Finally, the court orders the distribution of each survivor’s proportionate share.

This court concluded in Kolles v. Ross, 418 N.W.2d 733, 738 (Minn.App.1988), review denied (Minn. Mar. 30, 1998), that a trustee in a wrongful-death action has no right to negotiate a settlement for her exclusive benefit. In Kolles, as in the present case, the decedent was survived by his widow and by three children from a previous marriage. Id. at 734. The surviving widow was appointed a co-trustee under the wrongful-death statute and negotiated a partial settlement for her exclusive benefit. Id. at 734. She petitioned the court for distribution of the proceeds of the partial settlement, and the other co-trustee moved to remove the surviving widow as co-trustee. Id. The district court denied both motions. Id. In reviewing the district court’s denial of the motion to remove the surviving widow as a co-trustee, this court explained:

The statute is clear. While the surviving spouse or the next of kin may petition the court for the appointment of a trustee, once the trustee is appointed it is the trustee who has the exclusive right to maintain the action or to negotiate a settlement for the benefit of the next of kin.

Id. at 738. This court explained further:

In this case, [the surviving spouse] had only one right as a surviving spouse: the right to petition the court for the appointment of a trustee. Once [the surviving spouse] was appointed a co-trustee, she had no separate individual right to bring an action or to negotiate a settlement for her exclusive benefit. Her right and duty was that of a trustee, to act as a fiduciary for all the next of kin.

Id.

Here, the district court concluded that because Bjelland’s insurance policy limit is $750,000, distributing the $237,500 partial settlement would not prevent appellant and her siblings from negotiating their claims with Bjelland’s insurer, and therefore, they were not prejudiced by the distribution. But it is irrelevant whether the distribution was prejudicial to the next of kin because “the right to bring a wrongful death action or to negotiate a settlement is purely statutory.” Id. at 737. And under the statute, respondent had no separate individual right to negotiate a settlement for her exclusive benefit. Her right and duty as a trustee was to act as a fiduciary for all the next of kin.

3. Appellant argues that respondent should be removed as a co-trustee because she did not act in the best interests of the next of kin. The district court declined to remove respondent because it was “unconvinced that removal of [respondent] and her attorney would allow for a more equitable outcome to the ongoing negotiations of the three adult children.”

The appointment of a trustee is within the discretion of the district court. In re Wrongful Death of Carlson, 427 N.W.2d 752, 754 (Minn.App.1988).

The trustee should not have interests conflicting with those entitled to a recovery, and should be removed if not acting in the best interests of the heirs and next of Mn. The appointment of a trustee under Minn.Stat. § 573.02 is an exercise of the fundamental legal principle that those entitled to recovery * * * shall be represented by the trustee without compromise.

Ortiz v. Gavenda, 590 N.W.2d 119, 123-24 (Minn.1999) (citations omitted).

Respondent argues that she and her counsel represented all claimants until they were told that the adult children wanted appellant as a trustee and their own counsel presenting their case. Respondent contends that she agreed to all of the adult children’s requests and that the settlement of her case did not cause prejudice. She also contends that appellant did not provide her with information about the adult children’s claims, which limited her ability to represent the children.

The record supports the district court’s finding that both appellant and respondent contributed to the lack of information during the negotiations. But mutual responsibility for the lack of information does not alter the fact that even though respondent knew about the adult children’s claims, she settled her personal claim and left the adult children to pursue their claims separately.

In Kolles, this court concluded that the district court did not abuse its discretion by failing to remove the surviving widow as a co-trustee and to remove and disqualify her counsel after she negotiated a partial settlement for her exclusive benefit. 418 N.W.2d at 738. But this court’s conclusion in Kolles was based on a determination by the district court that the position taken by the surviving widow

was not taken willfully, but rather as the result of a misunderstanding of the powers, duties, and obligations of the trustee(s) when a wrongful death action is commenced.

Id.

Unlike Kolles, the record in this case demonstrates that respondent’s separate settlement of her personal claim was not the result of a misunderstanding of the obligations of a trustee in a wrongful-death action. Respondent’s attorney’s April 22, 2002, letter to the adult children stated:

If and when settlement is obtained, it will be a lump sum and then the Court will determine distribution of that lump sum according to the relationship and losses by the individuals. Usually that is settled and agreed upon between the parties, but when we get to that point, if there is no agreement, the Court will have a hearing at which time evidence of relationship can be given to the Judge so he can make that determination. You will be contacted in plenty of time prior to any such hearing date.

This letter demonstrates that respondent’s attorney correctly understood the procedure to be followed in a wrongful-death action. But despite this apparent understanding that any settlement would be for a lump sum that would be distributed among all the claimants and respondent’s awareness that the adult children were asserting claims, respondent agreed to a partial settlement that resolved only her claims. In doing so, respondent breached her fiduciary duty to act in the best interests of the next of kin. Because respondent breached her fiduciary duties as a trustee, the district court abused its discretion when it declined to remove her as a trustee. See In re Carlson, 472 N.W.2d at 755 (affirming removal of trustee where he attempted to settle wrongful-death action without agreement or input of all the heirs).

DECISION

As a trustee in a wrongful-death action, respondent had no right to negotiate a separate settlement for her exclusive benefit, and the district court erred when it approved the settlement and ordered the distribution of the settlement proceeds. The district court abused its discretion by failing to remove respondent as a co-trustee after she breached her duty to act as a fiduciary for all the next of kin by negotiating a settlement for her exclusive benefit.

Reversed and remanded.

      . All of the siblings stated in affidavits that the first notice they received that a trustee was being appointed was the April 22, 2002, letter from respondent's attorney and that respondent’s attorney later mailed them copies of the order of appointment.


author: ROBERT H. SCHUMACHER, Judge.

text:
    STATE of Minnesota, Respondent, v. Lon SYHAVONG, Appellant.
    No. C0-02-1996.
    Court of Appeals of Minnesota.
    May 20, 2003.

      Duane A. Kennedy, Attorney at Law, Rochester, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN, and Terry S. Vajgrt, Assistant Rock County Attorney, Rock County Courthouse, Luverne, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge, SCHUMACHER, Judge, and FORSBERG, Judge

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

   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Lon Syhavong challenges the district court’s pretrial order admitting evidence found during a traffic stop, arguing the police impermissibly expanded the scope of the stop to initiate an investigation unrelated to the stop’s original purpose and unsupported by reasonable suspicion of other illegal activity. We reverse.

FACTS

Police officer Jeffrey Stearns stopped a car driven by Syhavong because the car had a broken right rear tail fight. Stearns approached the car and saw a woman sitting in the front passenger seat; there was a large black bag on the seat between the woman and the center console. When Stearns explained the reason for the stop, Syhavong said he knew about the broken fight. Stearns asked Syhavong where he and the passenger were going and where they had come from, and Syhavong answered they had come from Sioux Falls and were going to Worthington. In his field report of the incident, admitted into evidence at the omnibus hearing in lieu of testimony, Stearns stated that as he spoke with Syhavong, he

noticed [Syhavong] and his passenger appeared excessively nervous compared to what I normally encounter on an equipment violation traffic stop. The driver was unable to sit still and frequently was looking at the floorboards.

Stearns asked Syhavong if there was anything illegal in the car, and Syhavong said there was not.

Stearns asked the passenger if she was Syhavong’s wife or girlfriend and why the two were going to Worthington; the passenger replied they were going to visit a friend. Stearns noticed the passenger “appeared nervous” as he questioned her. Stearns then asked Syhavong if he would consent to a search of the car, and Syha-vong consented. Stearns discovered methamphetamine in the car. Syhavong was charged with felony possession of a controlled substance in violation of MinmStat. § 152.023, subd. 2(1) (2000).

The district court denied Syhavong’s motion to suppress the evidence, finding Stearns had reasonable suspicion to detain Syhavong for further investigative questioning after the completion of the traffic stop. Syhavong waived his right to a jury trial and submitted the case to the district court on stipulated facts pursuant to the procedure set out in State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). The district court found Syhavong guilty as charged. Syhavong appeals.

ISSUE

Did the officer have reasonable, articula-ble suspicion to detain Syhavong once the purpose of the initial traffic stop had been effectuated?

ANALYSIS

The Fourth Amendment of the United States Constitution and Article I, Section 10 of the Minnesota Constitution prohibit unreasonable searches and seizures. We review the legality of a limited investigatory stop and questions of reasonable suspicion de novo. State v. Munson, 594 N.W.2d 128, 135 (Minn.1999).

Stearns initially stopped Syha-vong’s car because the rear tail light was broken. See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996) (stating vehicle stop is reasonable where officer has probable cause to believe driver committed traffic violation); State v. Wiegand, 645 N.W.2d 125, 135 (Minn.2002) (stating “[a] limited investigative stop is lawful if there is a particularized and objective basis for suspecting the person stopped of criminal activity” (citation omitted)). To be reasonable under the Minnesota and federal constitutions, an investigatory stop must be limited in both duration and scope. Id. at 136. “[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). “Moreover, the scope of a stop must be strictly tied to and justified by the circumstances that rendered the initiation of the investigation permissible.” Wiegand, 645 N.W.2d at 135 (citation omitted).

Expansion of the scope of the stop to include investigation of other suspected illegal activity is permissible under the Fourth Amendment only if the officer has reasonable, articulable suspicion of such other illegal activity.

Id. (citing Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968)). Reasonable suspicion is determined from the totality of the circumstances. State v. Lande, 350 N.W.2d 355, 357-58 (Minn.1984).

Syhavong does not dispute that the initial stop was justified by the broken tail light. He argues, however, that Stearns lacked reasonable, articulable suspicion to expand the scope of the initial investigatory detention by asking Syhavong whether he had anything illegal in the car.

We first conclude that the state has not demonstrated a reasonable relationship between the purpose of the stop— the broken tail light — and Stearns’s question concerning contraband in the car. During a traffic stop, an officer’s questions must be limited to the purpose of the stop. See Royer, 460 U.S. at 498-500, 103 S.Ct. at 1324-25. This purpose may include a protective search for weapons. Wiegand, 645 N.W.2d at 136. An officer may reasonably ask for the driver’s license and registration and ask the driver about his destination and the reason for the trip. United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir.1994) (en banc). Because Stearns’s question about contraband was not related in scope to the circumstances that justified the stop, the resulting detention and inquiry were unreasonable.

We further conclude Stearns lacked a reasonable, articulable suspicion that Syhavong was engaged in criminal activity so as to justify expanding the scope of the traffic stop.

[I]f the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions.

United States v. Barahona, 990 F.2d 412, 416 (8th Cir.1993). Here, Syhavong’s nervousness in the course of the initial questioning was the sole circumstance cited by Stearns to justify expanding the scope of the inquiry.

In arriving at a reasonable suspicion of criminal activity, an officer may make inferences and deductions that might elude an untrained person. Appelgate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn.1987). But the officer must demonstrate objective facts to justify that suspicion and may not base it upon a mere hunch. State v. Cripps, 533 N.W.2d 388, 391-92 (Minn.1995). Nervousness alone is not an objective fact, but a subjective assessment derived from the officer’s perceptions. State v. Tomaino, 627 N.W.2d 338, 341 (Minn.App.2001).

While an officer’s perception of an individual’s nervousness may contribute to an officer’s reasonable suspicion, nervousness is not sufficient by itself and must be coupled with other particularized and objective facts. See id. (holding defendant’s nervousness and marijuana symbol on defendant’s key chain were insufficient to justify continued investigatory stop of defendant’s vehicle). No such facts were alleged here.

The state argues because Stearns’s questions were not overly intrusive, and because the stop was relatively brief, no suspicion of criminal activity was necessary to justify the questioning. We disagree. Detention of an individual during the routine stop of an automobile, even for a brief period, constitutes a “seizure” protected by the Fourth Amendment. Whren, 517 U.S. at 809-10, 116 S.Ct. at 1772 (citation omitted). Activities that exceed the scope of a stop are not made reasonable because they are short in duration. See Wiegand, 645 N.W.2d at 136-37 (holding use of drug-sniffing dog following routine traffic stop unconstitutionally expanded scope, but not duration, of stop because police had no reasonable, articula-ble suspicion of criminal activity beyond burned-out headlight).

Where, as here, the validity of a search rests on consent, the state has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given. Royer, 460 U.S. at 497, 103 S.Ct. at 1324. Where, as here, a consent to search is given after the original purpose of the stop has been accomplished, the consent is a product of an illegal detention, and evidence subsequently discovered must be suppressed. See State v. Fort, 660 N.W.2d 415, 419 (Minn.2003) (holding evidence must be suppressed where “investigative questioning, consent inquiry, and subsequent search went beyond the scope of the traffic stop and was unsupported by any reasonable articulable suspicion”). The methamphetamine discovered in Syhavong’s car was not admissible evidence, and the district court should have granted the motion to suppress.

DECISION

Although the stop and initial detention of Syhavong was permissible, Stearns lacked the requisite reasonable suspicion of criminal activity to expand the scope of the stop. The continued detention of Sy-havong was an illegal seizure, Syhavong’s consent to search the car was invalid, and evidence discovered as a result of the search must be suppressed.

Reversed.


author: HUDSON, Judge.

text:
    Hilary ZIOLS, Petitioner, Respondent, v. RICE COUNTY BOARD OF COMMISSIONERS, Appellant.
    No. C3-02-1667.
    Court of Appeals of Minnesota.
    May 20, 2003.

      Philip M. Zrimsek, Northfield, for respondent.
    G. Paul Beaumaster, Rice County Attorney, Rice County Courthouse, Faribault, for appellant.
    Considered and decided by MINGE, Presiding Judge, HUDSON, Judge, and FORSBERG, Judge.

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

   OPINION

HUDSON, Judge.

This is an appeal from a writ of mandamus and denial of a motion for a new trial in which the district court ordered the county board of commissioners to reconsider its redistricting plan and to adopt a plan that complies with statutory and constitutional mandates. Appellant board contends (a) the district court erred as a matter of law in its redistricting decision and (b) because the district court had already ordered the county board to proceed using the challenged plan for the 2002 elections, it no longer had jurisdiction over the mandamus petition. We affirm, holding that (a) the district court acted properly because there was a showing that the board failed to consider the statutorily required equal population principle in choosing a redistricting plan; and (b) the district court retained jurisdiction to consider the redistricting challenge as applied to future elections after ordering the 2002 election to take place pursuant to the challenged plan.

FACTS

After the 2000 census, the Rice County Board of Commissioners addressed whether it should redistrict its commissioner districts. It asserted that it was not compelled to do so because its districts were in compliance with the statutory requirements for maximum population deviation. But it determined redistricting was nonetheless necessary because one of its cities had changed its precinct boundaries, requiring an adjustment in the district boundaries.

The board gave the required public notice and held hearings. It was presented with 18 proposed plans, all of which divided Rice County, which has a population of 56,665, into five districts. If the five districts had equal populations they would each contain 11,333 people, but all of the plans deviated more or less from this ideal.

The board initially set out the various factors it would consider in making the redistricting decision, including contiguity, compactness, equal population, community of interest, and socio-economic concerns. In later discussions, several commissioners expressed their belief that because all of the proposed plans fell within the statutory requirement that “[n]o district shall vary in population more than ten percent from the average for all districts in the county,” Minn.Stat. § 375.025, subd. 1 (2002), the equality of population factor had been met and did not need to be considered further. Another commissioner asserted that equality of population must nonetheless be considered.

The board focused primarily on two plans: the “Plaisance” plan, which was ultimately adopted, and the “Robins I” plan.

The Plaisance plan was as follows:

The Robins I plan provided:

On May 28, 2002, the board adopted the Plaisance redistricting plan, by a three-to-two vote. While the resolution listed the various factors considered, it did not include the equal population factor.

Respondent Hillary Ziols, a registered voter in Rice County, Sled a petition for an alternative writ of mandamus in district court under Minn.Stat. § 375.025, subd. 2 (2000), challenging the redistricting plan. The district court issued the alternative writ, and a hearing was held. Because the date for candidates to file for office for the 2002 elections was less than a month away, the district court ordered the board to execute the Plaisance plan for the 2002 election year, but retained jurisdiction to consider the merits of the petition later.

On August 1, 2002, the district court concluded that the board had not been sufficiently diligent in performing its redistricting duties and did not focus on the population equality principle as required by both statutory and constitutional law. The court ordered the county board to convene to reconsider the redistricting plan it adopted and, by October 1, 2002, adopt a redistricting plan that complies with statutory and constitutional mandates. Appellant moved for a new trial, which the district court denied, noting that Ziols had met her burden of showing that the board failed to exercise proper discretion in applying the statute and had failed to justify its choice. Similarly, the district court rejected the board’s jurisdictional challenge, stating that it had specifically reserved the issue for consideration at a later date because of time constraints. This appeal followed.

ISSUES

I. Did the county board, in choosing a redistricting plan, abuse its discretion by failing to consider the equality of population standard under Minn.Stat. § 375.025, subd. 1 (2002), even though the plan met the statutory requirement that none of the districts deviate from the average population of the districts by more than 10%?

II. Did the district court retain jurisdiction over the mandamus petition after it ordered the board to use the challenged redistricting plan for the 2002 elections?

ANALYSIS

I

An appellate court will conduct a de novo review of a writ of mandamus. McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn.1989).

We first review the standards for mandamus. “[Mjandamus is an extraordinary legal remedy granted on equitable principles” that may be granted only in the absence of any other adequate remedy at law. Id. (citations omitted). It may issue to compel any inferior tribunal, including a board, to perform “an act which the law specifically enjoins as a duty.” Minn.Stat. § 586.01 (2002). It may also issue to require the inferior tribunal “to exercise its judgment or proceed to the discharge of any of its functions.” Id. But it cannot direct the manner in which such discretion may be exercised. Id.

In a redistricting case, mandamus cannot “control or interfere with the manner in which county commissioners exercise their discretion.” State ex rel S. St. Paul v. Hetherington, 240 Minn. 298, 301, 61 N.W.2d 737, 740 (1953) (citation omitted).

[I]t does lie to set the exercise of that discretion into motion where the board fails to act, or to' obtain a new and bona fide exercise of discretion when it appears that the board has acted without discretion or in a clearly arbitrary and capricious manner.

Id. at 301, 61 N.W.2d at 740 (citation omitted). Whether a decision on mandamus was unreasonable or arbitrary “is determined by reference to the [relevant] standards.” Rockville Township v. Lang, 387 N.W.2d 200, 203 (Minn.App.1986) (reviewing denial of issuance of a conditional use permit under the local zoning ordinance).

We next examine the law governing redistricting. Rice County has five commissioners on its county board and five commissioner districts. Minn.Stat. §§ 375.01, 375.025, subd. 1 (2002). After the federal census, a county board may choose to redistrict the county, but it must do so if it appears that the commissioner boundaries are no longer in accord with the statutory standards. Minn.Stat. § 375.025, subd. 1. Before redistricting, the board must first give public notice and then consider the matter at a hearing. Id. After the board chooses a redistricting plan, “[a]ny qualified voter may apply to the district court of the county for a writ of mandamus * * * to revise the redistricting plan.” Minn.Stat. § 375.025, subd. 2 (2002). After a hearing, the court may give the county board additional time to redistrict or to correct errors in the plan. Id. If the court determines that the board has not been sufficiently diligent in performing its redistricting duties, the court may appoint a redistricting board. Id.

Both constitutional and statutory standards govern redistricting. As an underlying principle, “all qualified voters have a constitutionally protected right to vote.” Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964) (citation omitted). “[T]he right to vote in an election is protected by the United States Constitution against dilution or debasement.” Hadley v. Junior Coll. Dist. of Metro. Kansas City, Mo., 397 U.S. 50, 54, 90 S.Ct. 791, 794, 25 L.Ed.2d 45 (1970). Under the Equal Protection Clause of the Fourteenth Amendment, when there are state or local elections, “each qualified voter must be given an equal opportunity to participate in that election.” Id. at 56, 90 S.Ct. at 795; Hanlon v. Towey, 274 Minn. 187, 196, 142 N.W.2d 741, 746 (1966) (holding equal population principle in equal protection clause applies to county government). Further,

when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionately equal numbers of officials.

Hadley, 397 U.S. at 56, 90 S.Ct. at 795.

We next examine the statutory standards for redistricting. Minn.Stat. § 375.025, subd. 1. The statute provides:

[1] Commissioner districts shall be bounded by town, municipal, ward, or precinct lines.
[2] Each district shall be composed of contiguous territory as regular and compact in form as practicable, depending upon the geography of the county involved and shall be as nearly equal in population as possible.
[3] No district shall vary in population more than ten percent from the average for all districts in the county, unless the result forces a voting precinct to be split.
[4] A majority of the least populous districts shall contain not less than a majority of the population of the county.

Id. (emphasis added).

In Hetherington, the Minnesota Supreme Court addressed a redistricting question similar to the one raised here. 240 Minn. at 300, 61 N.W.2d at 739. Under the statute in effect at that time, no commissioner district could be greater than 30% of the county population. Id. Although redistricting brought the districts within this percentage, the districts still had a gross disparity in population, with two districts having nearly twice the population of other districts. Id. at 301, 61 N.W.2d at 740. In addressing the redistricting challenge, the court held under the statute that

in redistricting a county pursuant to the statutory requirement that the commissioner districts shall “contain as nearly as practicable an equal population,” § 375.02, a proper exercise by the county commissioners of their discretion requires a close approximation to equality and that unnecessary inequalities be avoided insofar as may be practicable under the existing circumstances.

Id. at 305, 61 N.W.2d at 742. The court found that there was such a gross disparity in population that it ordered the district court to take additional evidence to determine whether the gross inequalities in population were avoidable. Id.

Similarly, the district court here held that the county board did not exceed the statutory maximum in adopting the Plaisance plan. Nonetheless, the court ruled that where the board did not indicate what importance, if any, the board placed on the equal population principle and did not cite any statutory provisions preventing it from choosing one of the other plans, it did not necessarily meet the statutory and constitutional requirement that each district be as nearly equal in population as possible.

We now address the maximum statutory deviation allowed under the statute, Minn. Stat. § 375.025, subd. 1. As the district court found, the Plaisance plan, as well as all of the other 12 proposed plans, met the requirement that the population of the districts may vary no more than 10% from the average of all districts. See id. The most that a district in the Plaisance plan deviated from the average was by 1,037 people or 9.2%. The question raised here is whether a plan whose district population varies no more than 10% from the average also meets the requirement that each district “shall be as nearly equal in population as possible,” or whether equal population is a separate factor that must also be explicitly considered by the board. See, e.g., id.

The county board asserts that the 10% deviation from the average is valid under the statute and that it otherwise exercised its discretion properly in considering the various factors. It contends that the population deviation in the plan was a minor one that does not require justification, contrary to the district court’s ruling. Further, it argues that the district court improperly applied a strict scrutiny standard. It asserts that the standard instead is whether the county board abused its discretion. It contends that where there was neither a finding that it abused its discretion, nor any evidence that would support such a finding, the district court’s decision must be vacated and the mandamus action dismissed.

We cannot agree. The statute declares that no district shall vary more than 10% from the average population of all of the districts, unless this would result in a precinct being split. Minn.Stat. § 375.025, subd. 1. This does not, however, mean that all population variations less than this 10% are acceptable. See Hetherington, 240 Minn. at 305, 61 N.W.2d at 742 (holding that, although statutory maximum population deviation was met, case remanded for consideration of whether gross disparity in population was unavoidable in light of the equal population principle). Indeed, the 10% statutory limit and the equal population provision are separate factors in the statute. Minn.Stat. § 375.025, subd. 1. Further, the statute provides that the board “shall” consider equal population. Id.; see Minn.Stat. § 645.44, subd. 16 (2002) (stating that “ ‘shall’ is mandatory”). Even though the approved Plaisance plan did not exceed the 10% maximum deviation, it still had to meet the equal population factor.

The equal population requirement in the statute has a powerful legal basis; it is ultimately based on the right to vote, which is protected under the constitution “against dilution or debasement.” Hadley, 397 U.S. at 54, 90 S.Ct. at 794. If one district is overrepresented while another is underrepresented, the votes of the citizens are not given the same weight. While some variation is permissible to take into account other factors important in the state, there is no doubt that the county must show that it at least considered the equal population factor. Minn.Stat. § 375.025, subd. 1. We acknowledge that respondent does not argue that the dilution claim is based on a suspect class. Cf. Gaffney v. Cummings, 412 U.S. 735, 751, 93 S.Ct. 2321, 2330, 37 L.Ed.2d 298 (1973) (noting that, even if a plan is acceptable under equal population standards, it may be invidiously discriminatory if used “to minimize or cancel out the voting strength of racial or political elements” (citations omitted)). But failure to consider equal population could nevertheless implicate the constitutional protection against dilution of votes. Hadley, 397 U.S. at 54, 90 S.Ct. at 794.

While we do not reach the constitutional limits of redistricting, we note that, under federal constitutional law, a deviation under 10%, as measured by the absolute difference between the most underrepresented and the most overrepresented districts in county government, is considered minor and does not raise constitutional concerns. Voinovich v. Quilter, 507 U.S. 146, 161, 113 S.Ct. 1149, 1159, 122 L.Ed.2d 500 (1993) (citing Brown v. Thomson, 462 U.S. 835, 842-43, 103 S.Ct. 2690, 2696, 77 L.Ed.2d 214 (1983)). A plan with a maximum population deviation greater than 10%, however, may run afoul of constitutional protections and requires justification by the state. Brown, 462 U.S. at 843, 103 S.Ct. at 2696. Applying this calculation to the Plaisance plan, the most underrepresented district deviates 7.2% and the most overrepresented district deviates 9.2%, for a total population deviation of 16.4%. While this deviation in the Plaisance plan would raise constitutional concerns, under our disposition of this case, which relies on the equal population principle in Minn.Stat. § 375.025, subd. 1, we need not reach the constitutional question.

The board here explicitly specified factors that it addressed, including that the districts be as contiguous as possible; that they be as regular and compact as practical, considering the geography of the county; that the board attempted to balance the social economic status of the districts; and that the board attempted to take into account communities of interest. But as the district court pointed out, it did not explicitly mention the most important factor, population equality. Further, the board did not provide any specifics that would explain why the Plaisance plan, rather than one of the other 12 that had much lower deviations, was justified in light of this imbalance.

We next address the board’s contention that the district court failed to find that it acted arbitrarily or capriciously or that it showed a clear abuse of discretion. Under the statute, the court may order the county to redistrict or correct errors in the plan; if it determines that the board was not “sufficiently diligent,” it may appoint a redistricting board to redistrict in the board’s stead. Minn.Stat. § 375.025, subd. 2. While the district court here did not find it necessary to go so far as to appoint another body to perform the board’s redistricting duties, it found that the board failed to exercise sufficient diligence and was authorized by statute to order the board to reconsider its redistricting. Id. Further, the board’s apparent failure to consider equality of population — a factor that the statute mandates the board to consider — constitutes an abuse of discretion. Hetherington, 240 Minn, at 301-02, 61 N.W.2d at 740.

While the district court could have been more explicit as to the abuse of discretion in its original order, in its order denying the motion for a new trial it specifically referred to the board’s abuse of discretion. In any event, the court made it clear that based on the board’s failure to issue findings as to its reason for selecting the Plai-sance plan over the other plans, failure to cite any statutory deficiencies in the other plans submitted, and failure to state why its selection of the Plaisance plan — which had higher population variances — was unavoidable, the board abused its discretion. See, e.g., Peterson v. Johnston, 254 N.W.2d 360, 362 (Minn.1977) (stating reviewing court will not reverse for district court’s failure to explain its findings).

In conclusion, while the board was not required to pick the plan with the lowest population deviation from the ideal, it must explicitly address all of the statutory factors, particularly equal population. The district court’s decision and its ultimate remedy are affirmed.

II

Next, the board contends that the district court was divested of jurisdiction to consider the validity of the plan after it ordered the 2002 elections to proceed pursuant to the Plaisance plan. It argues that Ziols had a legal remedy to assert her claim of vote dilution by the plan — an action for violation of civil rights or the voting rights act of 1965. See, e.g., Reynolds, 377 U.S. at 537, 84 S.Ct. at 1369 (bringing civil rights action for violation of civil rights in reapportionment case). When a party has an adequate remedy at law, mandamus may not be invoked. Minn.Stat. § 586.02 (providing that writ of mandamus will issue only in absence of “adequate remedy in the ordinary course of law”); McIntosh, 441 N.W.2d at 118.

We find no merit in the board’s claim. First, the court explicitly reserved the issue for reconsideration later. In any event, Ziols’s petition challenging the redistricting under Minn.Stat. § 375.025, subd. 2, as to the proper commissioner districts for the elections remaining before the next federal census were still at issue and the district court clearly had jurisdiction to address the issue.

DECISION

The district court retained jurisdiction over the redistricting challenge in the mandamus action, and the writ of mandamus by the district court ordering the county board to reconsider its redistricting decision in accordance with statutory and constitutional requisites is affirmed.

Affirmed.

      . We note that this allowable constitutional deviation is calculated differently than the allowable statutory variation; the latter permits a maximum statutory variation in population no “more than ten percent from the average for all districts.” Minn.Stat. § 375.025, subd. 1. Under the Plaisance plan, the greatest statutory variation is 9.2%.