author: G. BARRY ANDERSON, Judge.

text:
    Joyce MEIER, Respondent, v. CITY OF COLUMBIA HEIGHTS, Appellant, Mel Colova, et al., Defendants.
    No. A04-58.
    Court of Appeals of Minnesota.
    Sept. 22, 2004.

      Jon P. Parrington, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, MN, for appellant and defendants.
    Karen E. Marty, Marty Law Firm, LLC, Bloomington, MN, for respondent.
    Considered and decided by ANDERSON, Presiding Judge; TOUSSAINT, Chief Judge; and PETERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Respondent filed a complaint alleging illegal seizure, violation of procedural due process, violation of 42 U.S.C. § 1983, and vandalism against' appellant, City of Columbia Heights, and numerous individuals. Appellant and the individually-named defendants moved for summary judgment based on qualified and official immunity. The district court found the individual defendants were entitled to qualified immunity from respondent’s 42 U.S.C. § 1983 claims, as well as official immunity in relation to respondent’s state-law claims. But the district court denied appellant’s summary judgment motion and thus declined to extend any immunity to appellant. Appellant then moved to dismiss the action based specifically on vicarious official immunity, but the district court denied this motion as well and appellant challenges the denial. Respondent, pursuant to a notice of review, seeks review of the district court’s determination regarding the individual defendants’ rights to qualified and official immunity.

FACTS

Respondent owns a duplex located in Columbia Heights. Respondent lived in half of the building, and used the other half to store various items she identifies as collectibles and antiques. According to respondent, these items “were in good condition, except for some furniture which could be repaired.”

On October 15, ■ 1995, appellant received a complaint regarding the condition of respondent’s property. Appellant inspected the home in 1996, documenting via photographs various housing and fire code violations, including garbage and debris inside the building. Two years latér, appellant issued a compliance order directing respondent to clean up the exterior of the property, and on June 22, 1998, appellant cited respondent for a violation of appellant’s housing maintenance code. In the fall of 1999, appellant received further complaints regarding the condition of respondent’s property. Thereafter, on November 29, 1999, Columbia Heights Fire Department (CHFD) employees visited respondent’s residence. The CHFD employees “saw furniture and other items stacked four to five feet high in the interior, which did not appear to be habitable.” On December 1, 1999, CHFD employees spoke with respondent at her property, at which time they noted the entry door could only be opened a third of the way because of various items stacked inside the unit. Respondent admitted to the CHFD employees that her home was more than she could deal with.

Appellant determined respondent’s home was a garbage house due to the extraordinary clutter. On February 8, 2000, Mel Collova, a Columbia Heights building official, sent respondent a letter referencing a complaint related to sections 102 and 3402 of the “Minnesota State Building Code, 1997 Uniform Building Code.” The letter directed respondent to contact appellant within fifteen days to schedule a code compliance inspection of the property. Furthermore, the letter stated, “Be advised, failure to comply with this request will lead to the City Attorney being instructed to obtain an Administrative Search warrant to conduct the inspection. Legal fees for this process will be assessed to you as the property owner of record.” (Bolded emphasis in original.)

On July 26, 2000, appellant submitted a supporting affidavit and application for an administrative search warrant. The application and affidavit outlined the basis for inspecting the home, including a complaint from 1996, as well as personal observations by the affiant, Charlie Thompson, chief of the CHFD. The district court signed an administrative search warrant on July 27, 2000. The warrant was “for the purpose of examination and investigation to enforce the Minnesota Uniform Fire Code/Columbia Heights Fire and Housing Codes, the State Uniform Building Code” and to ensure “the health, safety, and welfare of its occupant(s)”. Thompson and others under his direction were permitted to (1) enter, examine, and investigate the property in order to enforce the cited codes; (2) take photographs and measurements, conduct tests, and perform other such duties to ensure proper enforcement of the codes; and (3) hold any evidence in accordance with the law.

The administrative search warrant was executed on August 23, 2000, and the abatement was conducted on August 23-25, and 28. Respondent was not present on August 23, when the defendants entered the home and began the clean-up. Respondent alleges that many items were taken during abatement of the nuisance, including hundreds of antiques, heirlooms, and collectibles. Additionally, respondent claims that many items left behind during the abatement were damaged, and the house was damaged and dirty when the defendants left. Appellant then billed respondent for costs related to the abatement, levying a special assessment,on the property for $16,602.91.

Appellant challenges the denial of its motion for summary judgment based on vicarious official immunity. Through a notice of review, respondent challenges the dismissal of her claims against the individually-named defendants, contending they are not entitled to immunity.

ISSUES

I. Are the individual defendants entitled to official immunity based on state law?
II. Did the district court err in determining appellant was not entitled to vicarious official immunity, even though appellant’s public officials were granted official immunity?
III. Are the individual defendants entitled to qualified immunity based on 42 U.S.C. § 1988?

ANALYSIS

Standard of Review

A district court’s decision regarding governmental immunity is immediately reviewable by this court. Anderson v. City of Hopkins, 393 N.W.2d 363, 364 (Minn.1986). On appeal from summary judgment, this court must determine whether there are any genuine issues of fact and whether the district court erred in its application of the law. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn.1998). An order for summary judgment denying an immunity defense is ap-pealable because immunity from suit is lost if a case is erroneously allowed to go to trial. McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 832 (Minn.1995) (citing Anderson, 393 N.W.2d at 364). The applicability of immunity is a question of law, which this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn.1996).

The party asserting immunity has the burden of showing particular facts demonstrating an entitlement to immunity. Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 209 (Minn.App.2001), review denied (Minn. Dec. 11, 2001). When reviewing a denial of summary judgment based on a claim of immunity, we presume “the truth of the facts alleged by the nonmoving party.” Id.

I.

The primary issue before this court is the denial of vicarious official immunity. But because official immunity must be extended before granting vicarious official immunity, it is necessary to determine if official immunity was appropriate here. While this court declines review of additional issues in immunity appeals, a discussion regarding appellants right to vicarious official immunity is inextricably intertwined with the individually-named defendants right to official immunity. Smnt v. Chambers County Commn., 514 U.S. 35, 50-51,115 S.Ct. 1203,1212,131 L.Ed.2d 60 (1995) (declining review of additional issues in immunity appeals, unless those issues are inextricably intertwined with immunity issues); see Minn. R. Civ.App. P. 103.03 (outlining appealable judgments and orders).

Traditionally, the application of official immunity in Minnesota “protects public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties.” Terwilliger v. Hennepin County, 561 N.W.2d 909, 913 (Minn.1997). But the Minnesota Supreme Court has significantly altered the analysis of official immunity under Minnesota law. Anderson v. Anoka Hennepin Ind. Sch. Dist. 11, 678 N.W.2d 651 (Minn.2004). Until Anderson, official immunity was primarily governed by, among other decisions, Larson v. Indep. Sch. Dist. No. 311, Braham, 289 N.W.2d 112 (Minn.1979); Elwood v. County of Rice, 423 N.W.2d 671 (Minn.1988); Terwilliger, 561 N.W.2d at 909; Wiederholt v. City of Minneapolis, 581 N.W.2d 312 (Minn.1998); and Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216 (Minn.1998). Anderson, 678 N.W.2d at 655-56, 660-61. Most significantly, the advent of Anderson alters the applicability of official immunity to ministerial duties. Id. at 661 (stating the supreme court “mistakenly applied statutory immunity standards in [its Larson ] analysis”).

At issue in Anderson was the official immunity of a teacher, as well as the vicarious official immunity of the school district. Id. at 654-55. The supreme court stated:

We see no reason for a different result when common law official immunity is at issue [instead of statutory immunity], Accordingly, we hold that a teacher, like Peterson, does not forfeit official immunity because his or her conduct was ministerial if that ministerial conduct was required by a protocol established through the exercise of discretionary judgment that would itself be protected by official immunity.

Id. at 660. Stemming from this change in approach, the supreme court explained that official immunity also applies to ministerial conduct because the absence of immunity could have a chilling effect on employee actions. Id. Thus, the supreme court expanded the application of official immunity to include ministerial duties, unless an employee fails to perform, or negligently performs, such a duty. Id. at 660. When applying this “ministerial-conduct bar,” three concerns must be addressed to determine the applicability of official immunity: (1) a ministerial duty is not established unless the policy actually controls the conduct of the employee; (2) employees are not protected by official immunity unless discretion was exercised in adopting the policy; and (3) official immunity does not apply when an employee fails to perform, or negligently performs, a ministerial duty. Id. at 662.

Consequently, instead of holding lower-level employees responsible for the flaws in the judgment and discretion of their supervisors, Anderson shifts the focus to the policy itself, not its application. Id. at 660; see also Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 723 (Minn.1988) (holding a challenge to employees’ application of a policy is a challenge to the policy itself, not the conduct of the employees). Under the Larson standard, individuals are entitled to official immunity only if they exercised judgment during the adoption of the policy but not if they were carrying out mere ministerial duties. Larson, 289 N.W.2d at 121. This court interprets Anderson to continue the application of official immunity to those previously entitled to such immunity under Larson and similar cases, but employees not involved in the adoption of policies may also be entitled to official immunity. Anderson, 678 N.W.2d at 660-61.

In the present case, there is little doubt that appellant exercised discretion in adopting a policy in the form of a local ordinance to deal with nuisance properties, and there is little doubt that the individually-named defendants were acting in a ministerial capacity by simply carrying out instructions designed to fulfill the requirements of that local ordinance.

To comply with this policy, the administrative search warrant permitted the individually-named defendants to enter, examine, and investigate the property. Additionally, the individually-named defendants were permitted to take photographs, conduct tests, take measurements, and perform other actions to ensure proper enforcement of the codes, including holding any evidence in accordance with the law.

Because the abatement of the nuisance was required by Columbia Heights Ordinance No. 1378, the question becomes whether the individually-named defendants negligently performed, or failed to perform, a ministerial duty. ■ Because the record lacks any allegation that a ministerial duty was not performed, we consider only if this ministerial duty was negligently performed. During the abatement, the individually-named defendants removed those items that threatened the health, safety, and welfare of respondent and other citizens. Not only were the individually-named defendants required to remove items constituting the nuisance, but they were also permitted to “institute any other appropriate action to prevent, restrain, correct or abate the violation.” Uniform Building Code § 102 (1997); see swpra note 2. Therefore, because the ministerial duty at issue is the abatement of a nuisance property in accordance with a municipality’s ordinance, and because the ordinance grants significant latitude to those carrying out the duty, we cannot conclude based on the record before us that the ministerial duty was negligently performed.

Subsequent to the application of the ministerial-conduct bar, the Anderson court noted a second stage in the analysis of official immunity may be necessary. Anderson, 678 N.W.2d at 660. A claim that a defendant “is liable because he followed the departmental protocol, [ ] is in reality a challenge to the protocol itself. The question then is whether the adoption of the protocol was discretionary in the sense necessary to give rise to common law official immunity.” Id. at 661. Upon determining the policy was adopted through a discretionary process, immunity is conferred unless the acts in question were a willful or malicious wrong. Id. at 661-62.

The abatement at issue here was executed in accordance with a three-tiered discretionary policy adoption process: (1) Uniform Building Code; (2) Columbia Heights Ordinance No. 1378; and (3) Minn.Stat. § 16B.61 (1998). The discretionary nature of adopting or creating each of these levels is more than sufficient to satisfy-the application of official immunity. Thus, because adoption of the abatement process was a discretionary decision entitled to official immunity, and because the individually-named defendants’ liability is claimed to arise from their compliance with the policy, official immunity will continue to apply absent a willful or malicious wrong. Id. at 662. “[M]alice means nothing more than the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.” Id. (quotation omitted). Therefore,

[t]he defendant must have reason to know that the challenged conduct is prohibited. The exception does not impose liability merely because an official intentionally commits an act that a court or a jury subsequently determines is a wrong. Instead, the exception anticipates liability only when an official intentionally commits an act that he or she then has reason to believe is prohibited.

Rico v. State, 472 N.W.2d 100, 107 (Minn.1991).

In the present case, the record is devoid of even a scintilla of evidence the individually-named defendants committed a willful or malicious wrong. The nuisance was abated by removing items that threatened the health, safety, and welfare of respondent and other citizens, and there is no evidence to suggest the removal or destruction of items from respondent’s property was premised on an intentional action which any of the individually-named defendants had reason to know was prohibited. To the contrary, the actions here were required by Ordinance No. 1378. Because an independent review of the record fails to establish any willful or malicious wrongs committed by the individually-named defendants, the district court properly granted the individually-named defendants official immunity regarding respondent’s state-law claims.

II.

The district court, while granting qualified and official immunity to the individually-named defendants, denied appellant’s motion to dismiss based on vicarious official immunity. Appellant maintains it is entitled to vicarious official immunity . based on the district court’s grant of official immunity to appellant’s officials.

“Generally, if a public official is found to be immune from suit on a particular issue, his or her government employer will be vicariously immune from a suit arising from the employee’s conduct and claims against the employer are dismissed without explanation.” Anderson, 678 N.W.2d at 663-64. But the transition from official immunity to vicarious official immunity is not automatic. “[V]icarious official immunity [applies] in situations where officials’ performance would be hindered as a result of the officials second-guessing themselves when making decisions, in anticipation that their government employer would also sustain liability as a result of their actions.” Id. at 664. When applying this rule in Anderson, the supreme court noted S.W. v. Spring Lake Park Sch. Dist. No. 16, 592 N.W.2d 870 (Minn.App.1999) ajfd without opinion, 606 N.W.2d 61 (Minn.2000). Anderson, 678 N.W.2d at 664. In N.W., this court ruled that a school district that had not adopted a security policy was not entitled to vicarious official immunity because “[t]o hold otherwise would be to reward the school district for its failure to develop and implement a basic security policy that would have applied in these circumstances.” N.W., 592 N.W.2d at 877.

While appellant bases its actions on sections 102 and 3402 of the Minnesota State Building Code, 1997 Uniform Building Code, these sections do not provide detailed abatement procedures. Similarly, a comprehensive and independent review of the current record fails to reveal appellant adopted any detailed abatement procedures. And, in lieu of abatement procedures specifically adopted by appellant, appellant could have, but did not, conduct abatement proceedings pursuant to Minn. Stat. §§ 463.15-463.261 (1998). These sections outline, in very specific terms, procedures to address hazardous and substandard buildings, as well as other nuisance issues relating to the condition of real property. Id.

It is not the function of this court to require that appellant adopt or use any specific set of procedures. We recognize that abatement of nuisance conditions can involve significant public health issues, and the record here more than substantiates the public health concern with respondent’s property. And, although not an issue in the present dispute, speed and promptness in abating a nuisance may also be required. But “abating a nuisance,” at least in the context of this case, means the discarding of respondent’s personal property. Appellant, on the record before us, has cited no procedures or policies designed to ensure that both the public health and respondent’s property rights are appropriately protected.

Based on the current record, the absence of abatement procedures is the functional equivalent to the school district’s failure to adopt an adequate security plan in S.W. 592 N.W.2d at 877. Although the application of vicarious official immunity is automatic when there is a finding of official immunity in high-speed police pursuit cases, determining whether to grant vicarious official immunity with other circumstances hinges on a policy analysis. Id. (citing Pletan v. Gaines, 494 N.W.2d 38, 43 (Minn.1992)). In S.W., this court declined to grant vicarious official immunity because to do so would reward the school district’s failure to adopt a basic security plan. Id. In Pletan, “the need to protect the public [was] balanced against the concern that the public not be put unduly at risk” during high-speed police pursuits. 494 N.W.2d at 42. Here, our policy analysis turns on property rights and the health, safety, and welfare of the property owner and other citizens. The absence of abatement, assessment, and other related procedures, detailed or otherwise, leaves unclear whether individual property rights are adequately protected.

We note specifically that we take no position on whether liability attaches to appellant or whether a trial or further proceedings might demonstrate that appellant is entitled to vicarious official immunity. Based on the summary judgment posture and record of this case, we decline to extend vicarious official immunity shielding appellant from liability, if any, arising from respondent’s claims against appellant and we affirm the district court on this issue.

III.

Respondent filed a notice of review with this court seeking review of the district courts grant of qualified and official immunity to the individually-named defendants. This court will only review appeals taken “from a final judgment, or from a partial judgment entered pursuant to Minn. R. Civ. P. 54.02”. Minn. R. Civ.App. P. 103.03(a); see also Swint v. Chambers County Commn., 514 U.S. 35, 50-51, 115 S.Ct. 1203, 1212, 131 L.Ed.2d 60 (1995) (declining review of additional issues in immunity appeals, unless those issues are inextricably intertwined with immunity issues). In the present case, there is no final judgment or appropriate partial judgment from the district court in relation to respondents 42 U.S.C. § 1983 claims. Additionally, while this court addressed the applicability of official immunity, such analysis was only necessary in order to reach the issue of vicarious official immunity. Because there is no final judgment or appropriate partial judgment from the district court on the grant of qualified and official immunity, we decline to reach the issues raised by respondent in her notice for review.

DECISION

Because we conclude the district court properly granted the individually-named defendants official immunity on respondent’s state-law claims, and because appellant failed to demonstrate that vicarious official immunity should be applied under these circumstances, we affirm the district court and remand for further proceedings not inconsistent with this opinion.

Affirmed.

      . Collova was named in the original action but was dismissed on summary judgment as a result of the immunity finding by the district court.

      . The 1997 Uniform Building Code was adopted by City of Columbia Heights, Minn., Ordinance No. 1378, § 4 (1998) in accordance with Minn.Stat. § 471.62 (1998) (permitting municipalities to adopt codes by reference).

      . Thompson was also named in the original lawsuit but was found to be immune and was dismissed from the litigation.

      . "Abatement” is defined as the act of eliminating or nullifying a nuisance. Blacks Law Dictionary 3 (8th ed.2004).

      . "Ministerial” means a duty that is "absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.” Wiederhoit, 581 N.W.2d at 315 (quotation omitted).

      . A property deemed to be a nuisance

        shall be abated by repair, rehabilitation, demolition or removal in accordance with the procedures set forth in the Dangerous Buildings Code or such alternate procedures as may have been or as may be adopted by this jurisdiction. As an alternative, the building official, or other employee or official of this jurisdiction as designated by the governing body, may institute any other appropriate action to prevent, restrain, correct or abate the violation.

      Uniform Building Code § 102 (1997); see supra note 2. Appellant also based its abatement of the nuisance on section 3402 of the Uniform Building Code:

        All buildings and structures, both existing and new, and all parts thereof, shall be maintained in a safe and sanitary condition. All devices or safeguards required by this code shall be maintained in conformance with the code edition under which installed. The owner or the owner’s designated agent shall be responsible for the maintenance of buildings and structures. To determine compliance with this subsection, the building official may cause a structure to be reinspected.
      Uniform Building Code § 3402 (1997); see supra note 2.


source: Caselaw Access Project

author: KALITOWSKI, Judge. KLAPHAKE, Judge

license: Public Domain

text:
    Charles Lee SPANN, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-278.
    Court of Appeals of Minnesota.
    Sept. 28, 2004.

      Bradford Colbert, Legal Assistance to Minnesota Prisoners, St. Paul, MN, for appellant.
    Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Jeanne L: Schleh, Assistant County Attorney, St. Paul, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge; KALITOWSKI, Judge; and ANDERSON, Judge.
   OPINION

KALITOWSKI, Judge.

As a stipulated settlement of his criminal appeal, appellant Charles Lee Spann agreed to waive his right to further appeals.- Appellant contends the district court abused its discretion in dismissing his petition for postconviction relief based on this waiver.

FACTS

In October 2000, appellant was convicted- of two counts of first-degree criminal sexual conduct. The district court subsequently sentenced appellant to two consecutive 118-month sentences, an upward departure from the presumptive sentence of 86 months. Consecutive sentencing was permissive because appellant’s convictions resulted from his crimes against two separate victims. Represented by counsel, appellant filed an appeal to this court, challenging his convictions and sentence. Specifically, appellant argued that his convictions should be reversed because of possible juror bias, improper admission of a taped interview, and prosecutorial misconduct. .Appellant also claimed that the district court erred in imposing an upward sentencing departure.

After appellant’s brief was filed but before the state’s brief was due, the parties reached a stipulated resolution of appellant’s appeal. The state agreed to recommend to the district court a modification of appellant’s sentence to the guideline sentence of two consecutive 86-month terms. In exchange, appellant agreed to dismiss the pending appeal and waive all future appellate and postconviction review. The parties filed with this court the written stipulation of this agreement, signed by both counsel and appellant personally, and this court dismissed appellant’s appeal on August 14, 2001. Subsequently, appellant appeared in person and with counsel before the district court, and pursuant to the parties’ stipulation, the district court re-sentenced appellant to two consecutive 86-month terms.

In May 2003, appellant filed a pro se petition for postconviction relief. Appellant subsequently retained the assistance of counsel and filed an amended petition for postconviction relief challenging the validity of his waiver of his right to appeal. The district court denied appellant’s petition for postconviction relief, on the ground that following his conviction, sentencing, and submission of an appellate brief, appellant made a knowing, intelligent, and voluntary waiver of his right to appeal in order to obtain a known benefit.

ISSUE

Did the postconviction court abuse its discretion in denying postconviction relief after finding appellant knowingly, intelligently, and voluntarily waived his right of appeal in exchange for a reduction in his previously imposed sentence?

ANALYSIS

Appellate courts review a post-conviction court’s findings to determine whether there is sufficient evidentiary support in the record. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). Appellate courts give broad deference to a postcon-viction court’s findings of fact and will not reverse the findings unless they are clearly erroneous. Id. And appellate courts will not disturb a postconviction court’s decision unless the court abused its discretion. Id. “A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.” Pederson v. State, 649 N.W.2d 161, 163 (Minn.2002).

Appellant argues that as a matter of public policy a criminal defendant cannot waive his right to appeal. Whether a defendant can waive the right to appeal is a question of law, which this court reviews de novo. State v. Williams, 664 N.W.2d 432, 434 (Minn.App.2003). There is no federal constitutional right to an appeal. Id. “But in Minnesota, ‘a convicted defendant is entitled to at least one right of review by an appellate or postconviction court.’ ” Id. (quoting Hoagland v. State, 518 N.W.2d 531, 534 (Minn.1994)). A defendant may intentionally waive a known right or privilege if the waiver is knowing, intelligent, and voluntary. Ballweber v. State, 457 N.W.2d 215, 217 (Minn.App.1990). But this court has held that a criminal defendant cannot waive the right to appeal the legality of a sentence. Id. at 218.

The postconviction court noted, and the parties concede, that the issue of whether a defendant can enter negotiations and waive his right to appeal after he has been convicted, sentenced, and filed an appellate brief is one of first impression in Minnesota. No other jurisdictions have addressed this specific issue. But as generally noted in a 1995 law review article “[a] substantial majority of state and federal courts which have considered appeal waivers have upheld them against broad per se challenges.” Robert K. Calhoun, Waiver of the Right to Appeal, 23 Hastings Const. L.Q. 127,135 (1995).

We conclude that based on the recognized right of a criminal defendant to waive a known right or privilege, and the reasoning of the only two Minnesota cases that have addressed the issue of a criminal defendant’s ability to waive the right to appeal, Balkueber and Williams, appellant has failed to show that the district court abused its discretion.

In Ballweber, the appellant' pleaded guilty to escape and the district court imposed a stayed 15-month sentence. 457 N.W.2d at 216. At the sentencing hearing, the district court asked the parties if they understood that if it turned out that 15 months was not the correct sentence, they would not be able to appeal the sentence, and both parties stated that they understood. Id. at 217. But on appeal, this court concluded that a criminal defendant cannot waive his or her right to appeal from a sentence. Id. at 218. The Ballwe-ber court reasoned that Minnesota law gives a criminal defendant an unconditional right to appeal from any sentence imposed or stayed, and, under the Minnesota Sentencing Guidelines, it is the role of the court, not the prosecutor, to determine the appropriate sentence. Id. at 217. Importantly, appellant here makes no claim that his modified sentence is not legal, or that it violates the Minnesota Sentencing Guidelines.

In Williams, this court upheld the appellant’s waiver of his right to raise certain issues on appeal. 664 N.W.2d at 434. Williams was charged with third-degree driving while impaired, fleeing a police officer in a motor vehicle, and carrying a weapon without a valid permit. Id. at 433. At trial, the parties agreed that the state would drop the weapons charge and appellant would not raise on appeal any issues concerning the admission of the pistol’s magazines. Id. The jury found the appellant guilty of the other two offenses, and the appellant filed an appeal contending that the waiver violated public policy and that the district court abused its discretion in admitting the magazines. Id.

In upholding the appellant’s waiver, the Williams court noted that Williams did “not dispute that his waiver of the right to appeal, was knowing, intelligent, and voluntary. He argues instead that we should not honor the waiver on the ground that such waivers insulate convictions from appellate review and thereby weaken the integrity of the judicial system.” Id. at 434 (quotation marks omitted). Importantly, the Williams court did not strike down the waiver of a right to appeal on public policy grounds. In addition, the Williams 'court specifically stated that it was not faced with a waiver of the right to appeal a sentence, noting that this court has held such a waiver invalid, in Ballweber. Id. And finally, the court stated that it was not faced with a waiver of the right to appeal made as- part of a plea bargain, noting that commentators had criticized such waivers on due-process grounds. Id.

After reviewing Minnesota law, including Ballweber and Williams, we conclude that under the facts here, we cannot say the district court abused its discretion in giving effect to appellant’s waiver of his right to appeal. First,'we note that this case does not involve a criminal defendant who waives his right to appeal as part of a guilty plea negotiation. Thus, this case does not involve a waiver that may be the product of prosecutorial overreaching. Rather, appellant waived his right to appeal only (1) after exercising his right to stand trial; (2) after being found guilty of two counts of first-degree criminal sexual conduct; (3) after the district court imposed an upward sentencing departure; and finally, (4) after filing a notice of appeal and brief with this court. And importantly, in return for the waiver, appellant received a known benefit, namely the presumptive sentence, which was 64 months less than the sentence initially imposed by the district court.

As noted in the Hastings law review article “[a] common line of reasoning in cases upholding appeal waivers begins with the observation that nearly every right, constitutional or statutory, may be waived.” 23 Hastings Const. L.Q. at 136 (quotation marks omitted). Likewise, the Williams court observed that “[a] defendant may intentionally waive a known right or privilege if the waiver is knowing, intelligent and voluntary.” Williams, 664 N.W.2d at 434. Here, appellant does not dispute that his waiver was knowing, intelligent, and voluntary. And although he contends his waiver violates public policy, appellant does not cite controlling authority disallowing a waiver on these facts. We therefore conclude that absent any Minnesota authority prohibiting such a waiver, we cannot say the district court abused its discretion in dismissing appellant’s post-conviction petition.

DECISION

Under current Minnesota law, it was not an abuse of discretion for the district court to deny appellant’s request for posteonviction relief and give effect to appellant’s waiver of his right to appeal, where the waiver was entered into (1) knowingly, intelligently, and voluntarily; (2) following appellant’s conviction, sentence, and filing of an appellate brief; and (3) in exchange for the known benefit of a sentence pursuant to the Minnesota Sentencing Guidelines.

Affirmed.

KLAPHAKE, Judge

(dissenting).

I respectfully dissent. Although there is no federal constitutional right to an appeal, “a convicted defendant is entitled to at least one right of review by an appellate or postconviction court.” Hoagland v. State, 518 N.W.2d 531, 534 (Minn.1994) (quotation omitted). In particular, post-conviction statutory remedies exist so that fundamental issues of constitutional or statutory violations can be reviewed, even where a direct appeal has not been had. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).

This court has unequivocally stated that a defendant may not waive the right to appeal from a sentencing decision. Ballweber v. State, 457 N.W.2d 215, 218 (Minn.App.1990). We are now facing the issue we avoided in State v. Williams, 664 N.W.2d 432 (Minn.App.2003), review denied (Minn. Sept. 24, 2003). In Williams, we upheld defendant’s waiver of his right to raise a specific evidentiary issue related to a charge that was dismissed during his jury trial. Id. at 434. We noted, however, that we were not faced “with a waiver of the right to appeal made as part of a plea bargain, which commentators have criticized on due-process grounds.” Id. Issues of fairness and voluntariness of waiver are raised when a defendant seeks to bargain with a prosecutor who controls the charges brought against the defendant or, as here, dangles sentencing incentives to entice a defendant to forego his or her right to appeal. Appellant here raised issues beyond sentencing; although the stipulation may have satisfied any sentencing irregularity, it did not address what may be legitimate issues.

This court has also stated that certain issues, such as ineffective assistance of counsel, should properly be raised in a postconviction proceeding, because “[o]n direct appeal, the record may not be adequately developed to permit proper review of the ineffective assistance of counsel claim.” Harris v. State, 470 N.W.2d 167, 169 (Minn.App.1991). When we permit a waiver of a defendant’s right to appeal and to a postconviction review, we risk foreclosing appellate review of issues that may not be fully developed at the time of waiver. I would therefore reverse the district court’s dismissal of appellant’s petition for postconvietion relief.


author: RANDALL, Judge.

text:
    Howard Thomas LEDDEN, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-445.
    Court of Appeals of Minnesota.
    Sept. 28, 2004.

      Howard Thomas Ledden, OID # 189896, Bayport, MN, appellant pro se.
    Mike Hatch, Minnesota Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Lystig, Assistant Ramsey County Attorney, St. Paul, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge, WILLIS, Judge, and MINGE, Judge.
   OPINION

RANDALL, Judge.

On appeal from the order denying his postconviction petition challenging his 1996 conviction of first — and second-degree criminal sexual conduct, appellant argues that (1) the district court that tried him lacked subject-matter jurisdiction and that the statute under which he was convicted is void because it does not contain an enacting clause, and (2) the district court’s failure to respond to his notice and demand should be deemed an admission to its allegations, and that the judge violated her oath of office. Because we find no constitutional deficiency in appellant’s convictions, we affirm.

FACTS

In 1996, a jury found appellant Howard Ledden guilty of first — and second-degree criminal sexual conduct for the sexual abuse of his 13-year-old daughter and four-year-old stepdaughter. Appellant appealed his conviction and sentence, and this court affirmed in State v. Ledden, No. C8-97-515, 1998 WL 74264 (Minn.App. Feb.24, 1998), review denied (Minn. April 30,1998).

On July 14, 1998, appellant petitioned for postconviction relief. His petition was denied, and appellant chose not to appeal the denial. After an unsuccessful petition for habeas corpus relief in federal court, appellant filed a motion for correction of sentence on March 21, 2001. The district court denied the motion, and this court affirmed the denial of relief in Ledden v. State, No. C4-01-1196, 2002 WL 171899 (Minn.App. Feb.5, 2002), review denied (Minn. April 16, 2002).

On December 24, 2003, appellant filed another motion for postconviction relief, alleging that the district court lacked jurisdiction because the laws as printed in the Minnesota statutes do not contain an enacting clause. The district court denied appellant’s motion. This appeal followed.

ISSUES

I. Do the statutes under which appellant was convicted contain enacting clauses that provide the Minnesota Courts with subject-matter jurisdiction?
II. Is the district court judge’s failure to respond to appellant’s notice and demand an admission to its allegations that the district court judge violated her oath of office?

ANALYSIS

Appellate courts “review a postcon-viction court’s findings to determine whether there is sufficient evidentiary support in the record.” Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.” Id. “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Id. The petitioner in a postconviction proceeding bears the burden of proving the claim by a preponderance of the evidence, and the allegations in the petition must be more than mere argumentative assertions that lack factual support. Hummel v. State, 617 N.W.2d 561, 564 (Minn.2000).

I.

Appellant argues that the statutes under which he was convicted do not contain enacting clauses that provide the Minnesota Courts with subject-matter jurisdiction, and therefore his convictions violate the state constitution and are void. A person convicted of a crime is entitled to relief if he or she can prove that the conviction was obtained in violation of the state or federal constitutions. Minn.Stat. 590.01, subd. 1(1) (2002). This court must presume that Minnesota statutes are constitutional and exercise its power to declare a statute unconstitutional only with extreme caution. See generally State v. Merrill, 450 N.W.2d 318, 321 (Minn.1990). One who challenges the constitutional validity of a statute “must meet the very heavy burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional.” Associated Builders Contractors v. Ventura, 610 N.W.2d 293, 299 (Minn.2000).

This exact issue was recently before the Colorado Court of Appeals in People v. Washington, 969 P.2d 788 (Colo.Ct.App.1998). In Washington, the petitioner filed a motion for postconviction relief seeking to overturn his conviction on the basis that the statute under which he was convicted was unconstitutional. 969 P.2d at 789. The petitioner argued that the statute, as it was published in the Colorado Revised Statutes, lacked the “enacting clause” required by Colo. Const, art. V, 18. Id. The court began by stating that the Colorado Revised Statutes are the official compilation of the Session Laws of Colorado, with the Session Laws containing the official publication of the enactments of the General Assembly. Id. The court then noted that the Colorado Revised Statute proscribing the petitioners offense was compiled from portions of nine legislative enactments, each of which included references to the Session Laws. Id. The court held that because “[e]ach of the acts creating and amending the statute, as published in the Colorado Session Laws, begins with the precise enacting clause as set forth in Colo. Const, art. V, 18,” the petitioner was convicted under a constitutional statute. Id.

Similar to the Colorado Constitution, the' Minnesota Constitution provides that: “The style of all laws of this state shall be:. Be it enacted by the legislature of the state of Minnesota.” Minn. Const, art. IV, 22. The laws of Minnesota are bills that have been enacted by the legislature and then "signed by the governor, enacted after three days of gubernatorial inaction, or passed by a legislative override of the governors veto. See Minn. Const, art. IV, 23. “As soon as possible after a session of the legislature has adjourned each year, the revisor shall publish the laws of the session in a publication called ‘Laws of Minnesota.’ ” Minn.Stat. 3C.06, subd. 1 (2002). The laws of Minnesota are then codified in accordance with Minn.Stat. 3C.07 (2002), and must contain the requirements set forth in Minn.Stat. 3C.08 (2002).

In compiling the Minnesota Statutes, the revisor of statutes is required to “assign appropriate chapter and section, numbers to [the new laws and amendments] and shall arrange them in proper order. After each section the office shall place a source note indicating the chapter and section of the session law from which the section was derived.” Minn.Stat. 3C.08, subd. 4 (2002). “Any volume of Minnesota Statutes, supplement to Minnesota Statutes, and Laws of Minnesota certified by the revisor according to section 3C.11, subdivision 1, is prima facie evidence of the statutes contained in it in all courts and proceedings.” Minn.Stat. 3C.13 (2002).

Appellant argues that his conviction is void because the statutes under which he was convicted do not contain enacting clauses as required by Minn. Const, art. IV, 22. In support of his claim, appellant cites Sjoberg v. Security Savings Loan Assn, a 1898 case involving an act in which the enacting clause was omitted, contrary to the Minnesota Constitution. 73 Minn. 203, 75 N.W. 1116 (1898). In holding the constitutional requirement mandatory and that a statute without an enacting clause is void, the court stated:

It is ... claimed by appellant that the law in question contained an enacting clause at the time it passed the legislature, and that the trial court erred in excluding evidence of such fact. The ruling was correct, for the fact itself was immaterial, for the reason that a bill, although it passes the legislature, never becomes a law, unless it be presented to the governor, pursuant to article 4, s 11, of the constitution. If the bill in question contained an enacting clause when it passed the legislature, it was never presented to the governor, but in place of it a bill was presented to and approved by him containing no enacting clause. It follows that chapter 250, Laws 1897, is void....

Id. at 214, 75 N.W. at 1118-19.

Here, appellant was convicted of first— and second-degree criminal sexual conduct in violation of Minn.Stat. 609.342, subd. 1(a), 609.343, subd. 1(g) (1994). At the time of appellants conviction, both Minn. Stat. 609.342 and Minn.Stat. 609.343 were compiled from portions of ten legislative enactments. Each of the acts creating and amending the statutes, as published in the Laws of Minnesota, begins with the precise phrase, “[B]e it enacted by the legislature of the state of Minnesota.” Therefore, appellants conviction is not void because the statutes under which he was convicted comply with the constitutional mandates of article IV, section 22.

Appellant next contends that the statutes under which he was convicted are unconstitutional because the printed copies of the Minnesota Statutes do not contain the enacting clauses. In support of this proposition, appellant refers to the Sjoberg courts holding that “a statute without an enacting clause is void.” Sjoberg, 73 Minn, at 212, 75 N.W. at 1118. But appellant misinterprets the context in which the word “statute” is used. In Sjoberg, the constitutionality of chapter 250, Laws 1897 was being challenged. Because- chapter 250, Laws 1897 was not codified at the time the court addressed the issue, the court used the word “statute” in reference to the session laws. Thus, appellants reliance on Sjoberg is misplaced.

Appellants argument also confuses the laws of Minnesota with the codified statutes. Although the Minnesota Statutes are prima facie evidence of the laws of Minnesota, they are not the laws themselves. See Minn.Stat. 3C.13. The actual laws of Minnesota as passed by the legislature, signed by the governor, or enacted without signature or over veto, and filed with the secretary of state, are contained in the session laws, which do contain the required enacting clauses. See Minn.Stat. 3C.06 (2002). In contrast, the Minnesota Statutes are enacted laws that are codified, organized, and assembled by the revisor of statutes. See generally Minn.Stat. 3C.10 (2002). The laws are codified to provide the public with a usable collection of the laws of Minnesota. Minn.Stat. 3C.08, which sets forth the required contents of the Minnesota Statutes, does not require that the enacting clauses be républished in the Minnesota Statutes. To require that the enacting clause be republished in the Minnesota Statutes every time a law is passed or amended would lead to an absurd result because so many laws have been amended time and time again. See Minn.Stat. 645.17(1) (2002). Accordingly, we conclude that the omission of the enacting clauses from the Minnesota Statutes does not render the statutes unconstitutional, and there is no constitutional deficiency in appellants convictions.

II.

Appellant argues that the district court judge’s claimed “failure” to respond to appellant’s notice and demand is an admission to appellants allegations. Appellant asserts that by failing to respond to his notice and demand, the district court judge agreed, by tacit admission, that the district court lacked subject-matter jurisdiction. Appellant therefore contends that by denying his motion for postconviction relief, while “admitting” the district court lacked subject-matter jurisdiction, the district court judge committed treason and violated her oath of office.

In support of his contention, appellant cites the Latin phrase “Qui non negat fatetur,” meaning “[h]e who does not deny, admits.” Blacks Law Dictionary 1125 (5th ed.1979). That simplistic analysis based on a slogan is not even close to the law the way appellant uses it.. In civil cases, a party may serve requests for admission that the other party must timely respond to or be deemed to have admitted. Minn. R. Civ. P. 36.01. The district court judge in a case, criminal or civil, is not “a party” to the case, and there is no legal requirement that any district court judge personally respond to a party’s demand for identification and credentials. The district court’s failure to respond to appellant’s nonissue is not any proof that the judge violated her oath of office.

Finally, appellant argues that the prosecutor lied by stating that appellant is proceeding pro se. We disagree. Appellant asserts that he is proceeding “in pro-pria persona” rather than “pro se” We can only note that these two Latin phrases mean essentially the same thing. In pro-pria persona is defined as “[i]n ones own proper person.” Blacks Law Dictionary 712 (5th ed.1979) (referencing pro se). Pro se is defined as “[f]or himself; in his own behalf; in person; appearing for oneself, as in the case of one who does not retain a lawyer and appears for himself in court.” Blacks Law Dictionary 1099 (5th ed.1979). The official legal lexicon uses the term pro se to identify a party who does not retain a lawyer. Appellant may be “in propria persona” to himself, but he is “pro se” to us.

DECISION

The statutes under which appellant was convicted contain enacting clauses as required by Minn. Const, art. IV, § 22. The district court judge was legally qualified to hold office and rule on the merits of appellant’s case. There is no constitutional deficiency in the district court’s jurisdiction. There is no constitutional deficiency in appellant’s convictions.

Affirmed.

      . The court also rejected the petitioner’s argument that the constitutionally mandated enacting clause must appear in the Colorado Revised Statutes. In rejecting the claim, the court stated that:
      It would not be correct simply to add the phrase "Be it enacted by the General Assembly of the State of Colorado” at the beginning of each statutory section because, in many cases, the statute as published there is not in the same form as originally enacted by the General Assembly but is, as intended, a compilation of multiple legislative acts that also includes editing for clarity and consistency.

        Washington, 969 P.2d at 789 (citing § 2-5-103, C.R.S.1998). Thus the court held that the policy underlying Colo. Const, art. V, § 18 was satisfied because the statutory compilation enables the public to efficiently locate the legislative acts from which it derives, and because the introduction of those acts into evidence is not barred when the enactment of a statute is challenged. Id. at 790.

      . Minn. Const, art. IV, § 22 was § 13 prior to the 1974 revisions.

      . The ten legislative enactments for Minn. Stat. § 609.342 can be found at: 1975 Minn. Laws ch. 374, § 3; 1981 Minn. Laws ch. 51, § 2; 1983 Minn. Laws ch. 204, § 1; 1984 Minn. Laws ch. 628, art. 3, § 11; 1985 Minn. Laws ch. 24, § 5; 1985 Minn. Laws ch. 286, § 15; 1986 Minn. Laws ch. 444; 1989 Minn. Laws ch. 290, art. 4, § 12; 1992 Minn. Laws ch. 571, art. 1, § 14; 1994 Minn. Laws ch. 636, art. 2, § 34. The ten legislative enactments for Minn.Stat. § 609.343 can be found out: 1975 Minn. Laws ch. 374, § 4; 1979 Minn. Laws ch. 258, § 12; 1981 Minn. Laws ch. 51, § 3; 1983 Minn. Laws ch. 204, § 2; 1984 Minn. Laws ch. 628,’ art. 3, § 11; 1985 Minn. Laws ch. 24, § 6; 1985 Minn. Laws ch. 286, § 16; 1986 Minn. Laws ch. 444; 1989 Minn. Laws ch. 290, art. 4, § 13; 1992 Minn. Laws ch. 571, art. 1, § 15.

      . At the time the Sjoberg case was litigated, the most recent codification of the Minnesota laws was 1894. The Minnesota laws were not recodified until 1905.


author: TOUSSAINT, Chief Judge.

text:
    Raymond D. IRWIN, Appellant, v. Kevin GOODNO, Commissioner of Human Services, Respondent.
    No. A04-751.
    Court of Appeals of Minnesota.
    Sept. 28, 2004.

      Lisbeth J. Nudell, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, Barbara E. Berg, Assistant Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Theresa F. Couri, Assistant County Attorney, Minneapolis, MN; and Robert M.A. Johnson, Anoka County Attorney, Paul C. Clabo, Assistant County Attorney, Anoka, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; HALBROOKS, Judge; and ANDERSON, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Appellant Raymond D. Irwin, who is indeterminately committed as mentally ill and dangerous and as a psychopathic personality, appeals from a decision by the judicial appeal panel. The appeal panel dismissed for lack of subject-matter jurisdiction his petition for rehearing and reconsideration of the order of the Commissioner of Human Services denying his petition for discharge from his commitment as mentally ill and dangerous. Because the appeal panel had subject-matter jurisdiction to address Irwin’s petition, we reverse and remand for a hearing and decision on the merits.

FACTS

Raymond Irwin has a long and extensive history of sexual misconduct, other criminal behavior, and mental illness. In his most recent convictions, he was sentenced to 30 months for burglary and 152 months for criminal sexual conduct that occurred in 1984. State v. Irwin, 379 N.W.2d 110, 112-13 (Minn.App.1985), review denied (Minn. Jan. 23, 1986). In 1993, shortly before his scheduled release date, the county filed a petition for his commitment as a psychopathic personality (PP), and then filed an amended petition also seeking his commitment as mentally ill and dangerous (MI&D). After an initial and a review hearing, he was committed as PP and MI&D for an indeterminate period, and this court affirmed. In re Irwin, 529 N.W.2d 366, 376 (Minn.App.1995), review denied (Minn. May 16,1995)..

In 2002, Irwin petitioned the Commissioner of ■ Human Services for discharge from his MI&D commitment, but did not seek relief from his PP commitment. After a hearing, the special review board issued findings and recommended denying the petition, and the commissioner did so. When Irwin petitioned the judicial appeal panel for rehearing and reconsideration of the commissioner’s decision, the commissioner moved to dismiss the petition for lack of subject-matter jurisdiction. The appeal panel granted the motion, and this appeal followed.

ISSUE

Did the judicial appeal panel err in dismissing appellant’s petition for lack of subject-matter jurisdiction?

ANALYSIS

Whether a court has subject-matter jurisdiction is a question of law reviewed de novo. In re Thulin, 660 N.W.2d 140, 143 (Minn.App.2003). Questions of statutory interpretation are also reviewed de novo. In re Senty-Haugen, 583 N.W.2d 266, 268 (Minn.1998).

Subject-matter jurisdiction is defined as “not only authority to hear and determine a particular class of actions, but authority to hear and determine the particular questions the court assumes to decide.” Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn.App.1995) (quotations omitted), review denied (Minn. May 31, 1995). “Minnesota courts have consistently recognized that statutory requirements limiting a court’s jurisdiction are threshold requirements that must be complied with before a court can exercise jurisdiction.” State v. Rojas, 569 N.W.2d 418, 420 (Minn.App.1997) (holding that district court may not accept guilty plea without resolving disputed jurisdictional facts as to juvenile’s age). “Because subject-matter jurisdiction goes to the authority of the court to hear a particular class of actions, lack of subject-matter jurisdiction may be raised at any time.” Cochrane, 529 N.W.2d at 432 (citing Minn. R. Civ. P. 12.08(c)). Subject-matter jurisdiction may not be conferred by consent of the parties. No Power Line, Inc. v. Minn. Envtl. Quality Council, 262 N.W.2d 312, 321 (Minn.1977). If the court lacks jurisdiction of the subject matter, the court shall dismiss the action. Minn. R. Civ. P. 12.08(c).

District courts are courts of general jurisdiction and have the power to hear all types of civil cases, with a few exceptions, and appellate jurisdiction as prescribed by law. Minn. Const, art. VI, § 3; see 1 Douglas D. McFarland & William J. Keppel, Minnesota Civil Practice § 711 (3d ed.1990). Other courts are courts of limited jurisdiction. 1 McFarland, supra, § 711. For example, conciliation courts may only hear cases involving controversies that do not exceed a set amount. Id.; Minn.Stat. ch. 491A (2002).

Minnesota law provides the statutory framework setting out the subject matter jurisdiction of the judicial appeal panel. A patient committed as mentally ill and dangerous (MI&D) for an indeterminate period “shall be transferred, provisionally discharged or discharged, only as provided in [Minn.Stat. § 253B.18].” Minn.Stat. § 253B.18, subd. 3 (2002). To obtain a discharge from the commitment, the patient must first petition the Commissioner of Human Services. Id., subd. 5(a) (2002). A hearing is held before a special review board, which then makes a recommendation to the commissioner. Id., subd. 5(c) (2002). The commissioner may not discharge the patient unless, after a favorable recommendation by the special review board, there is a determination “that the patient is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.” Id., subd. 15 (2002).

In determining whether a discharge shall be recommended, the special review board and commissioner shall consider whether specific conditions exist to provide a reasonable degree of protection to the public and to assist the patient in adjusting to the community. If the desired conditions do not exist, the discharge shall not be granted.

Id. If the commissioner denies the petition, the patient may then petition the judicial appeal panel for rehearing and reconsideration of the decision. Minn.Stat. § 253B.19, subds. 1, 2 (2002).

When the commissioner denied Irwin’s petition for discharge of his MI&D commitment, he petitioned the judicial appeal panel for rehearing and reconsideration. The appeal panel then had subject-matter jurisdiction to consider this general class of action.

The next question, then, is whether the appeal panel had “authority to hear and determine the particular questions the court assumes to decide.” Cochrane, 529 N.W.2d at 432 (quotations omitted). The appeal panel ruled that because Irwin was seeking alteration of his commitment status from MI&D and PP to only PP, it lacked jurisdiction to grant him the relief he sought.

Irwin argues that the appeal panel erred because he is seeking a determination on his petition for discharge from his MI&D commitment, which he contends the appeal panel had authority to hear. On the face of his petition, Irwin is seeking discharge and he took the statutorily mandated steps to do so under Minn.Stat. §§ 253B.18, 253B.19. He asserts that he is prepared to come forward with evidence of the factors in MinmStat. § 253B.18, subd. 15, necessary to support his argument that his MI&D commitment should be discharged.

The commissioner, however, argues that Irwin’s petition does not represent the factors for discharge and that he is really seeking “alteration” of his commitment status, and that the appeal panel does not have jurisdiction over such a question. He analogizes the issue to cases in which persons committed as MI&D sought to have their status “altered” to MI. See In re K.B.C., 308 N.W.2d 495, 498 (Minn.1981) (addressing earlier version of commitment statute); see also Lidberg v. Steffen, 514 N.W.2d 779, 782-83 (Minn.1994) (addressing current version of statute). The commissioner also cites the fact that when first enacted, Minn.Stat. § 253B.18, subd. 3, authorized the alteration of the commitment status of one committed as MI&D, but the next year the legislature deleted the alteration provision. 1983 Minn. Laws ch. 251, § 20.

In Lidberg, the patient was committed as MI&D. 514 N.W.2d at 781. Later, the commissioner changed the patient’s commitment status to MI, with the proviso that if he sought discharge, he would have to meet the MI&D procedures for discharge. Id. When the patient later sought discharge, he challenged the application of the MI&D procedures. The supreme court rejected his arguments, ruling, in relevant part, that because he was initially committed as MI&D, requiring him to utilize the MI&D procedures did “not offend his right to equal protection because the procedures are rationally related to the state’s legitimate public safety interest.” Id. at 784. The commissioner contends that just as those who are committed as MI&D cannot alter their commitment status to only “MI,” so, too, Irwin’s status cannot be altered from MI&D and PP to PP only.

In addressing the commissioner’s argument, we first look at the relationship between an MI and MI&D commitment. One who is committed as only MI is one who has a substantial psychiatric disorder and “poses a substantial likelihood of physical harm to self or others as demonstrated by” a failure to obtain necessities or a recent attempt or threat to physically harm self or others. Minn.Stat. § 253B.02, subd. 13(a) (2002). One committed as MI&D is one who is not only mentally ill, but who as a result “presents a clear danger to the safety of others” as shown by the fact that the person “has engaged in an overt act causing or attempting to cause serious physical harm to another” and there is a substantial likelihood the person will do so in the future. Minn.Stat. § 253B.02, subd. 17 (2002). Thus, both commitments require mental illness, but MI&D requires a showing of a higher degree of dangerousness than MI. In re Kottke, 433 N.W.2d 881, 884 (Minn.1988).

In contrast, commitment as a psychopathic personality is not a variation of an MI&D commitment, but instead requires a showing of distinct factors. Irwin was committed as a PP, upon a showing of (a) a habitual course of misconduct in sexual matters; (b) with an utter lack of power to control sexual impulses; and (c) as a result, inflicting injury on the objects of “uncontrolled and uncontrollable desire.” See Irwin, 529 N.W.2d at 374 (citation omitted). Minn.Stat. § 526.09 (1992). Consequently, this is not a situation in which Irwin is attempting to “alter” an MI&D commitment. Because the question here is not whether Irwin can “alter” his commitment, but whether he can meet the standards for discharge under Minn.Stat. § 253B.18, subd. 15, he is entitled to an evidentiary hearing and decision on his petition for discharge.

DECISION

The appeal panel decision is reversed and the matter is remanded for an eviden-tiary hearing and decision on Irwin’s petition for discharge.

Reversed and remanded.

      . Since Irwin's commitment, the legislature has recodified the PP law and renamed the commitment "sexual psychopathic personalily." 1994 Minn. Laws 1st Spec. Sess. ch. 1, art. 1, §§ 2, 4, 6.


author: HALBROOKS, Judge.

text:
    In the Matter of the APPEAL OF Robert and Julie ROCHELEAU of a Decision of the Carver County Environmental Services.
    No. A03-2046.
    Court of Appeals of Minnesota.
    Sept. 28, 2004.

      Jon Erik Kingstad, Oakdale, MN, for relators Robert and Julie Rocheleau.
    Paul D. Reuvers, Susan M. Tindal, Iver-son Reuvers, LLC, Bloomington, MN, for respondent Carver County.
    Mike Hatch, Attorney General, Paul Merwin, Assistant Attorney General, St. Paul, MN, amicus for MN Pollution Control Agency.
    Considered and decided by SCHUMACHER, Presiding Judge, HALBROOKS, Judge, and PARKER, Judge.

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

   OPINION

HALBROOKS, Judge.

Relators challenge a decision by the Carver County Board of Commissioners affirming Carver County Environmental Services’ decision that relators’ septic system had the potential to immediately threaten public health or safety and requiring them to submit a new design for a replacement septic system. Relators argue that (1) the county ordinance is preempted by state law; (2) the board’s decision is unreasonable, oppressive, arbitrary, without evidentiary support, and based on an erroneous theory of law; (3) the relevant statute violates the separation-of-powers clause by vesting quasi-judicial authority in executive-branch employees without a mechanism for judicial review; (4) the statute violates the due-process clauses of the state and federal constitutions by creating an irrebuttable presumption; and (5) the relevant rules, which have been incorporated into the ordinance, are void for vagueness and for creating an irrebuttable presumption. We affirm.

FACTS

Carver County1 adopted an individual-sewage-treatment system (ISTS) ' ordinance pursuant to Minn.Stat. §§ 115.55, 115.56 (2002) and Minn.Stat. ch. 145A (2002). See Carver County, Minn., Code of Ordinances § 52.002 (2001). The ordinance regulates the design, location, installation, inspection, use, monitoring, and maintenance of all ISTSs located in Carver County, and it incorporates by reference all of Minn. R. 7080 (2003), the Minnesota Pollution Control Agency’s (MPCA) ISTS program rules, except as amended in the ordinance. Carver County, Minn., Code of Ordinances § 52.001 (2001). The goal of the ordinance is to prevent adverse health and safety effects to the public and- the environment from the discharge of inadequately treated sewage. Id. Carver County’s ISTS program is administered by Carver County Environmental Services (CCES).

Under the applicable statute, rules, and ordinance, several requirements apply to ISTSs. Relevant here is the “vertical separation” requirement. “Vertical separation” is the vertical measurement of unsaturated soil or sand between the bottom of an ISTS’s distribution median and saturated soil or bedrock. Minn. R. 7080.0020, subp. 49b. To measure vertical separation, one must determine the depth of the seasonally high water table or “saturated soil” and compare it to the depth of the bottom of the existing ISTS or the system being designed. This measurement is significant because if there is an insufficient amount of unsaturated soil or sand below the system, inadequately treated sewage can reach the saturated soil and move into nearby bodies of water.

“Saturated soil” is defined as “the highest elevation in the soil that is in a reduced chemical state because of soil voids being filled with water.” Id. at subp. 29a. Saturated soil is evinced by the “presence of redoximorphic features or other information.” Id. “Redoximorphic features” are defined as “features formed in saturated soil by the process of reduction, translocation, and oxidation of iron and manganese compounds, or other soil, landscape or vegetative indicators.” Id. at subp. 28e; see also Minn. R. 7080.0110, subp. 4(D)(5). This is commonly known as “mottling.” Id. Generally, mottling occurs when water has remained in soil for a significant period of time, depleting the soil’s oxygen and causing the microbes living there to search for oxygen in nitrates, iroii, and manganese compounds. When the water ultimately drains, varying concentrations of the compounds are distributed throughout the soil, and the reoccurrence of oxygen creates variances in color. Thus, color variances are a common visual indicator of redoximorphic features, with light spots indicating soil in a reduced state and dark spots tending to show oxidized soil. Although “false mottling” can occur where color variances in the soil are due to the presence of calcium carbonates, as opposed to a reduced environment caused by water in the soil, a “weak acid” test can be used to determine whether calcium carbonates have caused mottling. According to the expert testimony presented in this case, the “other information” evincing saturated soil can include the nature, content, permeability, classification, and slope of the soil, as determined by observation, examination, testing, or reference materials. It can also include hydrology information from reference materials, water-level measurements, and other observations and testing.

Any ISTS built before April 1, 1996, must have at least two feet of vertical separation between the bottom of the system’s distribution medium and saturated soil or bedrock. Minn. R. 7080.0060,- subp. 3(B). Any ISTS built after March 31, 1996, must have three feet of vertical separation. Id. An existing ISTS is classified as “failing” if it lacks the requisite vertical separation. Minn. R. 7080.0020, subp. 16b. Furthermore, an existing ISTS is classified as an imminent threat to public health or safety (IPHT) if it creates a situation “with the potential to immediately and adversely affect or threaten public health or safety.” Id. at subp. 19a. Such situations include discharging sewage to the ground surface or surface water and sewage backing up into a dwelling or other establishment. Id. Discharging to a draintile is also considered an IPHT according to the MPCA’s compliance inspection form.

In May 2001, Carver County received an anonymous complaint that the ISTS on relators Robert and Julie Rocheleau’s property was discharging sewage into nearby Smith Lake. Shortly thereafter, CCES employees Mary West and Scott Weinzierl visited relators’ property to investigate the complaint, where they located the discharge point near the lake and observed effluent coming out of it. The next day, CCES sent a letter to relators requesting that they provide them with information about their ISTS.

Relators subsequently hired Jim Wiek-enhauser, a licensed ISTS inspector, to perform a compliance inspection. In his December 2001 report, Wickenhauser made no mention of the draintile that ran toward Smith Lake or the PVC pipe connecting the septic tank to it. He did note, however, that the septic-tank depth was such that any drainfield would be down 48 inches and that he had found mottling at 42 inches. Based on these findings, Wick-enhauser classified relators’ ISTS as an IPHT, pursuant to Minn. R. 7080.0020, subp. 19a, and Carver County, Minn., Code of Ordinances § 52.003 (2001). Wicken-hauser also classified the ISTS as “failing” because it had less than three feet of vertical separation between the system bottom and saturated soil, as indicated by mottling at 42 inches. Based on Wickenhauser’s report, CCES notified relators that their ISTS constituted an IPHT and ordered them to bring it into compliance within ten months. See Carver County, Minn., Code of Ordinances § 52.075(B) (2001) (requiring that “[a] system determined to be failing or non-complying and an IPHT must be brought into compliance within ten months of the date of discovery”).

In August 2002, relators hired Bob Koch, a licensed ISTS contractor, to design a new ISTS. Koch visited the site and found mottling at 48 inches, a slope of seven percent, and a percolation rate of 33.6 minutes per inch. Based on these findings, Koch recommended construction of a shallow trench system with an estimated cost of $5,000 to $6,000, and relators submitted the proposed design to CCES.

West subsequently returned to relators’ property on CCES’s behalf, where she made a slope determination of four to five percent and observed mottling at 40 to 42 inches. Based on the differing mottling-depth results and West’s conclusion that Koch’s proposed design would not work due to the lack of adequate separation from the seasonally high water table, CCES refused to approve Koch’s design. Instead, CCES told relators to install an at-grade or above-ground system, with an estimated cost of $10,000 to $12,000.

Due to this substantial difference in price, relators contacted the Headwaters Rural Utilities Association (HRUA) for a more definitive answer on the mottling depth, and 'John Nieber, Ph.D.; Ronnie Daanen; and Dan Wheeler inspected the site on HRUA’s behalf. Nieber and Daanen hypothesized that the seasonally saturated layer was no longer at the 42- to 48-inch level indicated by the redoximorphic features but was at a lower level. Wheeler, on the other hand, opined that there was “strong evidence” of redoximorphic features at the site and that.the depth of the seasonal water table was between 42 and 48 inches.

Relators then attempted to mitigate the IPHT by excavating a trench on their property and by plugging the draintile that transported the sewage to Smith Lake. This action was taken without CCES’s permission and without a permit as required by Carver County, Minn., Code of Ordinances § 52.030 (2001). Shortly thereafter, at HRUA’s suggestion, relators retained engineer Brian Van Beusekom to re-determine their system’s classifications and evaluate the location of the water table near the tile line.

In October 2002, Van Beusekom visited the site, where he observed that the trench was dry and that there was mottling at 42 to 48 inches. In his compliance inspection report, Van Beusekom stated , that there was no discharge of sewage to the ground surface, draintile, or surface waters; no sewage backup into the dwelling; and np situation with the potential to immediately and adversely impact or threaten public health or safety. Consequently, Van Beu-sekom concluded that relators’ ISTS did not pose an IPHT. But acknowledging the different opinions as to the depth of saturated soil,- Van Beusekom adopted the “shallow” view of 42 inches and concluded that the system was “failing” because of the lack of three feet of vertical separation between the system bottom and saturated soil.

Although CCES agreed with Van Beuse-kom’s conclusion that relators’ system was “failing,” they disagreed with his finding that the system did not pose an IPHT. Instead, CCES concluded that an IPHT existed because there was still discharge of sewage to the drain tile. On November 1, 2002, CCES notified relators of its conclusion and directed them to submit a new ISTS design by November 15, 2002. CCES also informed relators that they could appeal this decision'by requesting an administrative hearing or a formal hearing pursuant to Carver County, Minn., Code of Ordinances §§ 52.136’ and 52.137 (2001).

On November 14, 2002, Dr. Nieber submitted a report to provide a basis for appealing CCES’s decision. He determined that because the drain line had been cut and capped, an alarm system had been installed, and the tank manhole had been raised to facilitate pumping, the system was no longer an IPHT. Dr. Nieber also stated that the system should be replaced with a modern ISTS, to be designed after further testing determined whether the re-doximorphic features indicated the current saturated soil level or were archaic.

On November 15, 2002, relators requested an administrative hearing pursuant to Carver County Ordinance § 52.136. The hearing was held on December 10, 2002, before Administrative Hearing Officer Joseph Enfield, the Assistant Director of CCES. On February 14, 2003, Enfield issued his decision, finding that relators’ attempt to mitigate the IPHT by excavating a trench “did not abate the failure of the ISTS” and that because “[tjhere remain[ed] no soil treatment area and the truncation of the tile line has increased the possibility of sewage backup into the dwelling,” the ISTS was “still an IPHT.” Enfield also denied relators’ request for a variance, stating that “[a] standard ISTS can be installed on the property” and that state law required the ISTS to be “upgraded, replaced, or its use discontinued within 10 months.” See Minn.Stat. § 115.55, subp. 5a(b).

Relators appealed Enfield’s decision pursuant to Carver County Ordinance § 52.137. Accordingly, Carver County requested appointment of an administrative law judge (ALJ) pursuant to Minn.Stat. § 14.55 (2002), and a hearing was held on April 7, 8, and 21, 2003. Four experts testified at the hearing, presenting their opinions based on the results of their investigations. According to West and Wheeler, the redoximorphie features, soils, slopes, vegetation, history, and other information, including the lack of water in the soil in recent months, indicated that the redoximorphie features were at the level of the seasonally saturated soil. On the other hand, according to Dr. Nieber and Daanen, the lack of water in the soil in recent months indicated a much lower level of the seasonally saturated soil.

After weighing the conflicting expert testimony, the ALJ made the following conclusions:

4. The redoximorphie features 42 inches below the surface of the ground at the site of the Rocheleaus’ septic system, along with the other information presented, demonstrate the presence of seasonally saturated soil at that level at the site.
5. The Rocheleaus’ septic system is “failing” under the ISTS Ordinance ... and Minn. R. 7080.0060, subp. 3.B.2 because the bottom of the system is less than two feet above the level of seasonally saturated soil at the site.
6.The depth of the seasonally saturated soil at the site [is not] sufficient to allow a shallow trench system (bottom at 12 inches or less) to be installed at the site.

The ALJ also stated that “[ultimately, the statutes, rules, and ordinances make CCES responsible for determining whether an ISTS meets requirements. CCES has demonstrated that it made the correct determinations in this case.” Consequently, the ALJ recommended affirming En-field’s decision.

On December 1, 2003, the Carver County Board of Commissioners adopted the ALJ’s recommendation and extended rela-tors’ date of compliance to June 15, 2004. This appeal follows.

ISSUES

1. Do Minn.Stat. § 115.55, subds. 5, 5a (2002), preempt Carver County, Minn., Code of Ordinances ch. 52 (2001)?
2. Is the Carver County Board of Commissioners’ decision unreasonable, oppressive, fraudulent, without evi-dentiary support, or based on an erroneous theory of law?
3. Do Minn.Stat. § 115.55, subds. 5, 5a, violate the separation-of-powers clause by vesting quasi-judicial authority on executive-branch employees without a mechanism for judicial review?
4. Does Minn.Stat. § 115.55, subd. 5a, violate the due-process clauses of the state and federal constitutions by creating an irrebuttable presumption?
5. Is Minn. R. 7080.0060, subp. 3 (2003), void for vagueness and for creating an irrebuttable presumption?

ANALYSIS

I.

Relators argue that the Carver County Board of Commissioners (the board) lacked jurisdiction over the inspection of their ISTS. Relators base this argument on their contention that the Carver County, Minn., Code of Ordinances ch. 52 (2001), is preempted by Minn.Stat. § 115.55, subds. 5, 5a (2002). On appeal, when there are no disputed facts, the issue of whether a state statute renders a local law unenforceable is a question of law, which we review de novo. Nordmarken v. City of Richfield, 641 N.W.2d 343, 346 (Minn.App.2002).

Preemption is defined as “occupying the field” in Minnesota. Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 356, 143 N.W.2d 813, 819 (1966). “The doctrine of preemption is premised on the right of the state to so extensively and intensively occupy a particular field or subject with state laws that there is no reason for municipal regulation.” Nordmarken, 641 N.W.2d at 348. Thus, “[i]f preemption has occurred, a local law purporting to govern, regulate, or control an aspect of the preempted field will be void, even if the local law is not in conflict with the state law.” Id.

In determining whether preemption has occurred, Minnesota courts consider four factors: (1) the subject matter regulated; (2) whether the subject matter is so fully covered by state law that it has become solely a matter of state concern; (3)whether any partial legislation on the subject matter evinces an intent to treat the subject matter as being solely a state concern; and (4) whether the nature of the subject matter is such that local regulation will have an adverse effect on the general state population. Mangold, 274 Minn, at 358, 143 N.W.2d at 820. “The question of whether state law has preempted a field depends on the facts and circumstances of each case.” Nordmarken, 641 N.W.2d at 348.

Here, the subject matter at issue is the regulation of existing ISTSs. Citing Minn.Stat. § 115.55, subd. 5a(c), relators argue that the statute reflects a legislative intent to “occupy the field” of ISTS regulation. We disagree. To the contrary, the statute explicitly provides for regulation of ISTSs by local governments. Minn.Stat. § 115.55, subd. 2(a) (2002), states that “[a]ll counties ... must adopt ordinances that comply with individual sewage treatment system rules by January 1, 1999, unless all towns and cities in the county have adopted such ordinances.” Furthermore, Minn.Stat. § 115.55, subd. 4 (2002), requires every “person who ... inspects all or part of an individual sewage treatment system [to] comply with the applicable requirements.” “Applicable requirements” are defined as “(1) local ordinances that comply with the individual sewage treatment system rules, as required in subdivision 2; or (2) in areas not subject to the ordinances described in clause (1), the individual sewage treatment system rules.” Minn.Stat. § 115.55, subd. 1(c) (2002). Minn.Stat. § 115.55, subd. 3 (2002), also directs the MPCA to “adopt rules containing minimum standards and criteria” for ISTSs, and those rules must include, among other things, “how the agency will ensure compliance under subdivision 2” and “how local units of government shall enforce ordinances under subdivision 2, including requirements for permits and inspection programs.” In accordance with this subdivision, the MPCA adopted Minn. R. 7080.0305-0315 (2003), which detail what local ordinances must include in order to meet the requirements of the statute. Specifically, Minn. R. 7080.0310 and Minn. R. 7080.0315 require counties to adopt ordinances that include permit programs and inspection programs for ISTSs. These rules also explicitly provide that local ordinances may be more restrictive than the statute and rules. Minn. R. 7080.0305.

Because the statute expressly provides for local regulation by permitting local governments to enact more restrictive ordinances, the legislature has made it clear that the doctrine of preemption does not preclude all local ordinances that cover the same subject matter as the statute controls. See Altenburg v. Bd. of Supervisors of Pleasant Mound Township, 615 N.W.2d 874, 880-81 (Minn.App.2000). Therefore, we conclude that Minn.Stat. § 115.55 (2002) does not “occupy the field” of ISTS regulation, and consequently, Carver County has jurisdiction to regulate rela-tors’ ISTS.

II.

Next, relators challenge the board’s decision, which adopted the ALJ’s findings and recommendation. On certio-rari review of a quasi-judicial agency’s decision, this court is limited to considering whether “(a) the agency had jurisdiction; (b) the proceedings were fair and regular; and (c) the agency’s decision was unreasonable, oppressive, arbitrary, fraudulent, without evidentiary support, or based on an incorrect theory of law.” Hannan v. City of Minneapolis, 623 N.W.2d 281, 283-84 (Minn.App.2001) (quotations omitted). “The reviewing court is not to retry the facts or make credibility determinations.” Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn.App.1996) (citing Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 674-75 (Minn.1990)). We will uphold the board’s decision so long as the board “furnished any legal and substantial basis for the action taken.” Id. (quoting Beck v. Council of St. Paul, 235 Minn. 56, 58, 50 N.W.2d 81, 82 (1951)).

Relators seem to argue that the board’s decision was unreasonable and without evidentiary support because CCES failed to carry its burden of proving that their existing ISTS, or their proposed ISTS, was “noncomplying” or that it “failed to provide sufficient groundwater protection.” Under Carver County Ordinance § 52.004, in order for an ISTS to be in compliance, effluent must not “be discharged to the ground surface, abandoned well, or bodies of surface water, or into any rock or soil formation ... or into any well, agricultural tile, or other excavations in the ground.”

After making extensive factual findings based on the testimony at the hearing, the ALJ made the following conclusions, which were adopted by the board:

4. The redoximorphic features 42 inches below the surface of the ground at the site of the [relators’] septic system, along with the other information presented, demonstrate the presence of seasonally saturated soil at that level at the site.
5. The [relators’] septic system is “failing” under the ISTS Ordinance ... and Minn. R. 7080.0060, subp. 3.B.2 because the bottom of the system is less than two feet above the level of seasonally saturated soil at the site.
6. The depth of the seasonally saturated soil at the site [is not] sufficient to allow a shallow trench system (bottom at 12 inches or less) to be installed at the site.

Addressing the varying expert testimony, the ALJ also stated:

To West and Wheeler, the redoxi-morphic features, soils, slopes, vegetation, history, and other information including the lack of water in the soil in recent months, indicate that the redoxi-morphic features are at the level of the seasonally saturated soil. To Dr. Nie-ber and Daanen, the lack of water in the soil in recent monthfs] indicates a much lower level of the seasonally saturated soil and they have postulated some theories as to why the redoximorphic features exist at 42 inches.
The greater weight of the evidence is that the seasonally saturated layer is at the 42 inch level of the redoximorphic features. Minn. R. 7080.0020, subp. 29a, makes redoximorphic features the primary indicator of saturated soil because that is what the current research indicates. There are certainly unanswered questions about redoximorphic features, such as little research demonstrating how long they take to form or how long they last, but the research is continuing. The lack of water recently at the Roche-leau site down at least 15 feet raises questions, but is too short term to overcome the presumption created by the redoximorphic features. The possible explanations offered by Nieber and Daanen are only possibilities and have some weaknesses.
Ultimately, the statutes, rules, and ordinances make CCES responsible for determining whether an ISTS meets requirements. CCES has demonstrated that it made the correct determinations in this case.

This language makes clear that the ALJ carefully weighed the conflicting evidence presented at the hearing and ultimately was more persuaded by the CCES experts than relators’ experts. By voting to adopt the ALJ’s findings, the board agreed with the ALJ’s reasoning. Appellate courts routinely recognize that “[t]he functions of factfinding, resolving conflicts in the testimony, and determining the weight to be given to it and the inferences to be drawn therefrom rest with the administrative board.” Quinn Distrib. Co. v. Quast Transfer, Inc., 288 Minn. 442, 181 N.W.2d 696, 700 (1970) (quotation omitted); see also In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn.2001). Furthermore, we give “substantial judicial deference” to an administrative board’s fact-finding process. Info Tel Communications, L.L.C. v. Minn. Pub. Utils. Comm’n, 592 N.W.2d 880, 884 (Minn.App.1999). Although relators ask this court to re-weigh the evidence and to conclude that their experts were more credible, that is not our function. Therefore, because West and Wheeler’s testimony provided adequate support for the board’s conclusion that re-lators’ system was non-compliant, we conclude that the board’s decision was not unreasonable, oppressive, arbitrary, fraudulent, without evidentiary support, or based on an incorrect theory of law. See Hannan, 623 N.W.2d at 283-84.

III.

Relators argue that MinmStat. § 115.55, subds. 5, 5a, violate the Minnesota separation-of-powers doctrine by vesting quasi-judicial authority on licensed ISTS inspectors without a mechanism for judicial review. “Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). The party challenging a statute has the burden of demonstrating beyond a reasonable doubt that it violates some constitutional provision. Id. Because the evalúation of a statute’s constitutionality is a question of law, we review this issue de novo. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999).

In its amicus brief, the attorney general argues that relators have failed to present a justiciable controversy on this issue because they have suffered no injury from a decision of a licensed ISTS inspector. This argument has merit because, as the attorney general aptly points out, the board, not the ISTS inspector, made the only binding decision regarding relators’ ISTS. But even if we address the merits of relators’ argument, their constitutional challenge fails. The board’s decision was made following an investigation and decision by CCES staff, an appeal from the staff decision, an appeal from a CCES management decision, and an evi-dentiary hearing before an ALJ. Moreover, relators gained further judicial review of the board’s decision through a writ of certiorari to this court. Thus, there is ■no merit to relators’ argument that the statute allows ISTS inspectors to make quasi-judicial decisions without any mechanism for judicial review.

IV.

' Relators argue that Minn.Stat. § 115.55, subd. 5a, violates the due-process clauses of the state and federal constitutions. Minn.Stat. § 115.55, subd. 5a, provides, in part:

(a) An inspection of an existing system must evaluate the criteria in paragraphs (b) to (j).
(b) If the inspector finds one or more of the following conditions:
(1) sewage discharge to surface water;
(2) sewage discharge to ground surface;
(B) sewage backup; or
(4) any other situation with the potential to immediately and adversely affect or threaten public health or safety, then the system constitutes an imminent threat to public health or safety and, if not repaired, must be upgraded, replaced, or its use discontinued within ten months of receipt of the notice described in subdivision 5b, or within a shorter period of time if required by local ordinance.

Relators argue that the statute violates due process because it creates an irrebuttable presumption of an IPHT from the mere “potential to immediately and adversely threaten public health or safety.” Relators also argue that the statute authorizes an ISTS inspector to “declare a public nuisance that which in fact is not a public nuisance,” and upon such a declaration, “even the County Board cannot undo such a finding.” Relators contend that because the legislature does not have the power to declare what shall be conclusive evidence, this irrebuttable presumption “violates a person’s due process rights to a hearing.” We disagree.

“[Statutes creating conclusive presumptions of law or fact have been almost uniformly declared unconstitutional as denying due process of law.” State v. Clausen, 493 N.W.2d 113, 115 (Minn.1992) (quotation omitted). But here, the statute does not contain any such presumptions; it merely sets forth criteria for inspectors to evaluate in determining whether an existing' ISTS constitutes an IPHT. While an inspector can make an initial determination as to whether an IPHT exists without a hearing, the county has adopted the ISTS ordinance pursuant to the statute, which provides that “[a]n applicant or per-mittee wishing to appeal a Departmental decision may request an Administrative hearing” and that he or she may further appeal that decision in a formal hearing. Carver County, Minn., Code of Ordinances, §§ 52.136, 52.137. During this appeal process, both the county and the property owners are able to present evidence concerning whether these criteria have been satisfied, as the parties did here. Because the statute allows for a meaningful opportunity to be heard and to dispute an inspector’s finding of an IPHT, we conclude that Minn.Stat. § 115.55, subd. 5a, does not violate due process.

V.

Relators argue that the “compliance criteria” in Minn. R. 7080.0060, subp. 3, which rely on the definitions of redoximorphic features, saturated soil, and vertical separation in Minn. R. 7080.0020, subps. 28e, 29a, 49b, and on the field-evaluation criteria outlined in Minn. R. 7080.0110, subp. 4, are void for vagueness and for creating an irrebuttable presumption based on the subjective evaluations of ISTS inspectors.

Like statutes, the MPCA’s rules must meet due-process standards of definiteness under both the state and federal constitutions. Minn. Chamber of Commerce v. Minn. Pollution Control Agency, 469 N.W.2d 100, 107 (Minn.App.1991), review denied (Minn. July 24, 1991). “In attacking a rule on due process grounds, including a vagueness challenge, the challenger bears a heavy burden.” Id. A rule is void for vagueness “if it fails to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited or fails to provide sufficient standards for enforcement.” Id. (quoting In re N.P., 361 N.W.2d 386, 394 (Minn.1985)). Rules “should be upheld unless the terms are so uncertain and indefinite that after exhausting all rules of construction it is impossible to ascertain legislative intent.” Id. (quotation omitted).

Relators argue that “[d]espite their scientific veneer, the definitions of ‘saturated soil,’ ‘vertical separation’ and ‘redoximorphic features,’ the soils tests for whether these features exist in a particular soil sample is inherently subjective, based upon the interpretation of ‘soil mottling’ or splotches of colors” by ISTS inspectors. Relators contend that because enforcement of the ordinance hinges on the inspector’s subjective state of mind, the rules and ordinance “invite arbitrary enforcement.”

But these conclusory statements are insufficient to satisfy relators’ heavy burden of demonstrating that the rules fail to provide adequate standards for enforcement, and the rules are not rendered unconstitutionally vague simply because one expert testified that the interpretation of whether soil mottling constitutes redoximorphic features is “inexact and subjective.” Nor do relators adequately show that the rules are so indefinite that persons of ordinary intelligence must guess at their meaning. See, e.g., State v. Normándole Props., Inc., 420 N.W.2d 259, 262 (Minn.App.1988) (holding that the statute defining hazardous waste was not unconstitutional merely because the legislature “could have defined hazardous waste more precisely”), review denied (Minn. May 4, 1988). Therefore, we conclude that relators have not established that the rules are void for vagueness.

Furthermore, we reject relators’ argument that the rules and ordinance create an irrebuttable presumption by making redoximorphic features the primary indicator of saturated soil. The regulations themselves provide for the introduction of evidence other than redoximorphic features, see Minn. R. 7080.0020, subp. 29a (stating that “[s]aturated soil is evidenced by the presence of redoximorphic features or other information ” (emphasis added)), and relators had ample opportunity to present, and did present, such evidence. Therefore, relators’ argument that the rules create an unconstitutional irrebutta-ble presumption also fails.

DECISION

Because Minn.Stat. § 115.55, subds. 5, 5a (2002), expressly provide for local regulation, we conclude that the doctrine of preemption does not preclude Carver County from regulating relators’ ISTS through its own ordinance. Furthermore, because there is adequate support in the record for the board’s conclusion that rela-tors’ system was non-compliant, we conclude that the decision is not unreasonable, oppressive, fraudulent, without evidentiary support, or based on an erroneous theory of law.

Although we conclude that relators have failed to present a justiciable controversy on whether Minn.Stat. § 115.55, subds. 5, 5a, violate the separation-of-powers clause by vesting quasi-judicial authority in licensed ISTS inspectors without a mechanism for judicial review, we nonetheless conclude that relators’ argument fails because the statute explicitly allows for judicial review. Moreover, because the statute allows for a meaningful opportunity to be heard and to dispute an inspector’s finding of an IPHT, we conclude that subdivision 5a does not violate the due-process clauses of the state and federal constitutions by creating an irrebuttable presumption.

Because relators have failed to demonstrate that Minn. R. 7080.0060, subp. 3 (2003), which relies on the definitions set forth in Minn. R. 7080.0020, subps. 28e, 29a, 49b (2003), and the criteria outlined in Minn. R. 7080.0110, subp. 4 (2003), is indefinite or fails To provide adequate standards for enforcement, we conclude that these rules are not void for vagueness. Additionally, because the rules specifically provide for the introduction of evidence other than redoximorphic features to establish saturated soil, we also conclude that the rules do not create an unconstitutional ir-rebuttable presumption.

Affirmed.

      . This ordinance was adopted as Individual Sewage Treatment System Ordinance No. 21F on April 17, 2001, and is codified in Title V, Chapter 52 of the Carver County Code of ■ Ordinances at http://www.co.car-ver.mn.us/ps/code.asp.

      . Van Beusekom later changed his opinion and concluded there was at least two feet, and possibly three feet, of separation between the system bottom and saturated soil. In March 2003, Van Beusekom amended his report and concluded that the system was not failing.