author: ANDERSON, RUSSELL A., Justice.

text:
    David ABRAHAM, et al., Petitioners, Appellants, v. COUNTY OF HENNEPIN, Respondent.
    Nos. CX-00-835, C7-00-1652.
    Supreme Court of Minnesota.
    Feb. 7, 2002.

      Leslie L. Lienemann, Burnsville, Attorney for Appellants.

      Amy Klobuchar, Hennepin County Attorney, Martin D. Munie, Assistant Henne-pin County Attorney, Minneapolis, Attorneys for Respondent.
    Douglas A. Hedin, Hedin & Goldberg, P.A., Minneapolis, Attorney for Amicus Curiae National Employment Lawyers Association.
   OPINION

ANDERSON, RUSSELL A., Justice.

In separate but consolidated actions appellants David Abraham and Scott Len-nander brought claims seeking only money damages against their former employer, respondent Hennepin County, for retaliatory discharge in violation of the Whistle-blower Act, Minn.Stat. § 181.932, subd. 1(a) (2000), and the Minnesota Occupational Safety and Health Act (MOSHA), Minn. Stat. § 182.654, subd. 9 (2000).

The district court initially granted the county’s motion for summary judgment, dismissing all claims, and appellants appealed dismissal of the whistleblower and MOSHA claims. The court of appeals remanded, directing the district court to determine whether retaliation more likely than not motivated the county’s discharges, even if the county also had a legitimate reason for the discharges.

On remand, the district court granted the county’s motion for partial summary judgment dismissing the whistleblower claims, concluding that the whistleblower claims and MOSHA claims arose out of the same facts, involved the same proof and the same damages, and thus, could not be concurrently pursued. The court denied appellants’ request for trial by jury. Following trial to the court, the district court concluded that the county had not violated MOSHA by discharging appellants in retaliation for complaining to their supervisors and to the Occupational Safety and Health Division of the Minnesota Department of Labor and Industry (Safety and Health Division), instead finding that the county discharged appellants for intentionally introducing chemicals into their work area on the day of an inspection by the Safety and Health Division, and entered judgment dismissing appellants’ MOSHA claims.

On the second appeal, the court of appeals affirmed the district court’s decision denying appellants the right to trial by jury but reversed the district court’s decision dismissing appellants’ whistleblower claims and remanded. Abraham v. County of Hennepin, 622 N.W.2d 121, 129-30 (Minn.App.2001). The court of appeals concluded that the Minnesota Constitution generally guarantees a right to jury trial for actions that were recognized as common law actions when the constitution was adopted. 622 N.W.2d at 126. The court also concluded that when the legislature creates a new action that was not recognized as a common law action when the constitution was adopted, it is for the legislature to determine whether the right to a jury trial should be granted or withheld. 622 N.W.2d at 125. The court concluded that because retaliatory discharge actions under the Whistleblower Act and MOSHA did not exist at common law when the constitution was adopted, appellants have no constitutional right'to jury trial. 622 N.W.2d at 126.

We conclude that there is a constitutional guarantee to trial by jury for appellants’ actions. We affirm in part and reverse in part the decision of the court of appeals, vacate the judgment of the district court, and remand for jury trial.

I.

In April 1995 appellants were discharged from employment as offset equipment operators in Hennepin County’s print shop. According to the county, appellant Lennander was discharged for intentionally pouring chemicals on carpeting in the work area during an inspection on March 22, 1995, by the Safety and Health Division; appellant Abraham was discharged for intentionally spraying chemicals into the air during the same inspection. Appellants allege that the county discharged them in retaliation for their complaints to their supervisors in February 1995 that fumes in the workplace were making them ill and in retaliation for appellant Abraham’s written complaint on March 2, 1995, to the Safety and Health Division, which resulted in the inspection. Abraham complained to the Safety and Health Division that the employees of the county’s print shop believed they were faced with an immediate health threat due to chemicals in the air. Appellants were subsequently discharged, and their claims for retaliatory discharge followed.

II.

We first address the issue of whether an employee may pursue concurrently in the same action a whistleblower and a MOSHA retaliatory discharge claim when both claims seek only money damages and arise out of the same facts. Whether statutory claims arising out of the same facts may be pursued concurrently is a legal issue, and we review legal issues de novo. See Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).

Ordinarily, unless a statute provides that its remedy is exclusive, a party should not be prevented from bringing concurrent claims. See, e.g., Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 377-79 (Minn.1990) (holding that both statutory-cause of action for sexual harassment and common law cause of action for battery can be maintained even though both claims arise from same set of operative facts); Cox v. Crown CoCo, Inc., 544 N.W.2d 490, 496-97 (Minn.App.1996) (allowing claim for retaliatory discharge under both the Whis-tleblower Act and MOSHA); State by Humphrey v. Baillon Co., 503 N.W.2d 799, 802 (Minn.App.1993) (rejecting argument that attorney fee provisions of Minn.Stat. ch. 117 are exclusive method of recovering attorney fees in eminent domain proceedings because those provisions do not expressly provide that they are exclusive method of recovering attorney fees in eminent domain proceedings). It is not for this court to deny a plaintiff the right to pursue a claim that the legislature has provided. Of course, a plaintiff may not recover duplicative money damages. Wirig, 461 N.W.2d at 379.

In Williams v. St. Paul Ramsey Medical Center, 551 N.W.2d 483 (Minn.1996), we held that an employee may not seek redress for the same allegedly discriminatory practices on the same facts under both the MHRA and the Whistle-blower Act, because the MHRA expressly provides that its procedure, while pending, shall be exclusive. 551 N.W.2d at 486. Williams is clearly distinguishable from the instant case in that neither the Whis-tleblower Act nor MOSHA includes an exclusive remedy provision. See Minn.Stat. §§ 181.935 & 182.669, subd. 1. In fact, the Whistleblower Act expressly provides that its remedies will be “[i]n addition to any remedies otherwise provided by law.” Minn.Stat. § 181.935(a).

The district court concluded that appellants could pursue claims only under MO-SHA because the specific provisions of MOSHA prevail over the more general provisions of the Whistleblower Act. The district court relied on the rule of statutory construction that provides that if an irreconcilable conflict exists between a general provision of law and a specific provision of law, then the specific provision of law prevails, unless the general provision was enacted later in time and the legislature made it clear that the general provision was to prevail, Minn.Stat. § 645.26, subd. 1 (2000). Section 645.26, subdivision 1, however, is applicable only when laws are irreconcilable. The provisions of the Whistleblower Act and MO-SHA are not irreconcilable. We noted in Williams that the MHRA and the Whistle-blower Act are irreconcilable because of the MHRA’s exclusive remedy provision. 551 N.W.2d at 485. Here, neither the Whistleblower Act nor MOSHA has an exclusive remedy provision; in fact, the Whistleblower Act expressly provides that its remedies are not exclusive. Minn.Stat. § 181.935(a).

We hold that claims for retaliatory discharge, seeking only money damages, brought under the remedy provisions of both the Whistleblower Act, Minn.Stat. § 181.935(a), and MOSHA, Minn.Stat. § 182.669, subd. 1, may be pursued concurrently in one action.

III.

We turn next to the issue of whether Article I, Section 4 of the Minnesota Constitution guarantees the right to trial by jury in an action, such as this, in which an employee seeks only money damages for retaliatory discharge from employment in violation of the Whistleblower Act and MOSHA. This court reviews de novo a lower court’s interpretation and application of the Minnesota Constitution. Olson v. Synergistic Techs. Bus. Sys., Inc., 628 N.W.2d 142, 148 (Minn.2001).

Neither the Whistleblower Act nor MOSHA specifically provides for the right to jury trial in its remedy provision, see Minn.Stat. §§ 181.935, 182.669, subd. 1, so that right, if it exists, must arise under the constitution, Ewert v. City of Winthrop, 278 N.W.2d 545, 550 (Minn.1979). Article I, Section 4 of the Minnesota Constitution guarantees that, “[t]he right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy?’ Minn. Const. art. I, § 4. This provision is intended to continue, unimpaired and inviolate, the right to trial by jury as it existed in the Territory of Minnesota when our constitution was adopted in 1857. See Olson, 628 N.W.2d at 148 (holding that promissory estoppel is equitable action in Minnesota and therefore does not carry attendant right to jury trial); Whallon v. Bancroft, 4 Minn. 109, 111 (Gil.70, 74) (1860).

Appellants argue that they are entitled to have their actions tried to a jury because their actions are legal in nature and seek the recovery of money only. The county argues that neither the Whistle-blower Act nor MOSHA provides for trial by jury, and that there is no constitutional right to trial by jury since these actions, created by statute, did not exist when the constitution was adopted. The county argues that when the constitution was adopted, the common law did not permit actions for wrongful discharge against employers, and the doctrine of sovereign immunity forbade actions against a municipality. According to the county, since these actions were nonexistent, in fact not allowed, when the constitution was adopted, there can be no right to trial by jury.

In Bond v. Welcome, 61 Minn. 43, 63 N.W. 3 (1895), we identified those cases at law that are guaranteed the right to jury trial under our constitution as actions at law for the recovery of money only, and we concluded that actions that are equitable in nature are not entitled to jury trials:

If [the action] is an action at law for the recovery of money only, the plaintiff is entitled absolutely to a trial by jury, although it involves the examination of a long account on either side, for the constitution guaranties to him this right. But if the action is equitable in its nature * * ⅝ the plaintiff is not entitled to a jury trial * * * for in such cases, at the time of the adoption of the constitution, there was no absolute right of trial by jury.

Id. at 43-44, 63 N.W. at 3-4 (citations omitted). A thread runs through our line of decisions following Bond and culminating with Olson that has consistently acknowledged the distinction between actions at law, for which the constitution guarantees a right to jury trial, and actions in equity, for which there is no constitutional right to jury trial. See Rognrud v. Zubert, 282 Minn. 430, 434, 165 N.W.2d 244, 247 (1969) (concluding that causes of action that are legal, as opposed to equitable, are entitled to jury trial); Landgraf v. Ellsworth, 267 Minn. 323, 327, 126 N.W.2d 766, 768 (1964) (concluding that suit on contract to recover money is legal action, and as such, triable to jury); Westerlund v. Peterson, 157 Minn. 379, 384, 197 N.W. 110, 112 (1923); Hawley v. Wallace, 137 Minn. 183, 187, 163 N.W. 127, 129 (1917) (“The term ‘cases at law’ as used in the Constitution has been construed as referring to ordinary common-law actions as distinguished from equity or admiralty causes and special proceedings such as quo warranto, mandamus and the like”); Morton Brick & Tile Co. v. Sodergren, 130 Minn. 252, 254-55, 153 N.W. 527, 528 (1915) (holding that in actions originally actions at law either party may demand jury trial, but in equitable actions there is no right to jury trial); see also Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 57 (Minn.1993).

In Tyroll, we held that the third-party defendant tortfeasor was entitled to a jury trial in a subrogation claim brought against the third-party defendant by an employer after settlement of the employee’s negligence suit left only the employer’s subrogation claim for trial. 505 N.W.2d at 56. We concluded that the controversy was a routine negligence personal injury action, in which one party sought damages resulting from another party’s failure to exercise reasonable care. Id. at 57. We concluded that the claims were common law issues triable to a jury because of the essential nature and character of the controversy, even though the Workers’ Compensation Act statutorily created the right of the employer-insurer to intervene and maintain the action as a subrogee long after our constitution was adopted. See id.

This court has not held that only those causes of action that were identified in 1857 as causes of action at law carry today an attendant right to jury trial. Rather, the constitutional right exists for the same type of action for which a jury trial existed when the constitution was adopted, any cause of action at law. See Olson, 628 N.W.2d at 149; Tyroll, 505 N.W.2d at 57; Bond, 61 Minn, at 43-44, 63 N.W. at 3-4. The constitution is not fro-, zen in time in 1857, incapable of application to the law as it evolves. The nature and character of the controversy, as determined from all the pleadings and by the relief sought, determines whether the cause of action is one at law today, and thus carries an attendant constitutional right to jury trial. Olson, 628 N.W.2d at 152; Tyroll, 505 N.W.2d at 57; Morton, 130 Minn, at 255, 153 N.W. at 528; see also Westerlund, 157 Minn, at 383, 197 N.W. at 111.

While it has been suggested that wrongful discharge is contrary to the common law tradition of employment at will and therefore cannot be a cause of action known at the common law, we disagree. The nature of the employment relationship at the time the constitution was adopted is immaterial to a determination of whether a claim for retaliatory discharge today is a cause of action at law, and thus carries an attendant constitutional right to jury trial.

In Olson we considered whether a claim for promissory estoppel carries a constitutional right to jury trial, and we held that there is no such right to trial by jury, because the action is equitable in nature as distinguished from legal in nature. 628 N.W.2d at 153. We traced the historical progression of promissory estoppel not to determine whether promissory estoppel was a cause of action at law in 1857, but only to determine whether promissory es-toppel evolved in Minnesota as an equitable or legal cause of action, and therefore whether promissory estoppel is a cause of action at law or a cause of action in equity in Minnesota today, for in different jurisdictions the cause of action for promissory estoppel evolved differently. See Olson, 628 N.W.2d at 150-52. After tracing the development of promissory estoppel, we concluded that in Minnesota promissory estoppel evolved as an equitable action, for which there is no right to trial by jury. Id. at 152.

We examine the nature and character of the controversy in this case, as determined from the pleadings and by the relief sought. Appellants claim they were discharged in retaliation for their complaints concerning the air quality in their workplace. Appellants’ retaliatory discharge claims are similar to the employee’s claim in Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569 (Minn.1987), aff'g 396 N.W.2d 588 (Minn.App.1986), which we identified as a wrongful discharge claim. See 408 N.W.2d at 571.

Like the claim in Phipps, the claims for retaliatory discharge in this case are a species of the common law action of wrongful discharge. See id.; see also Phipps, 396 N.W.2d at 590-91 and citations therein. Our examination of wrongful discharge, like the examination of promissory estoppel in Olson, need not look to 1857 to determine whether wrongful discharge existed then as a cause of action at law. Instead, we need only determine whether a claim for wrongful discharge seeking only money damages is an action at law or an equitable action. Tracing the historical development of wrongful discharge from our earliest decisions to our decision in Phipps is helpful in determining whether wrongful discharge seeking only money damages is an action at law or an equitable action.

In Minnesota, wrongful discharge existed at common law as early as 1861. Mackubin v. Clarkson, 5 Minn. 247 (Gil.193) (1861). In early decisions by this court we recognized that an employee, under a breach-of-contract theory, could bring an action for money damages in a district court for wrongful termination of employment. Smith v. Herz Mfg. Co., 92 Minn. 254, 254-55, 99 N.W. 1134, 1134 (1904) (concluding that question whether employee was discharged or voluntarily left employment in wrongful discharge action was “a question for the jury”); Horn v. W. Land Ass’n, 22 Minn. 233, 236-37 (1875) (“[A]s to the alleged abandonment of the contract by both parties, or by the defendant with the acquiescence or consent of plaintiff, this was a matter for the jury to determine upon the evidence.”); see also Healy v. Mannheimer, 74 Minn. 240, 240, 76 N.W. 1126, 1126 (1898); McCormick v. Louden, 64 Minn. 509, 509-10, 67 N.W. 366, 366-67 (1896); Metzdorf v. W. Supply Co., 60 Minn. 365, 365-66, 62 N.W. 397, 397-98 (1895); Smith v. St. Paul & Duluth R.R. Co., 60 Minn. 330, 332, 62 N.W. 392, 393 (1895); Bolles v. Sachs, 37 Minn. 315, 317-18, 33 N.W. 862, 862-64 (1887); Williams v. Anderson, 9 Minn. 50 (Gil.39) (1864). In those actions, plaintiffs sought legal remedies in the form of money damages in courts of law. As contract actions brought in a court of law for money damages, claims for wrongful discharge were causes of action at law, and they were consequently tried to juries.

In 1936 this court recognized that, absent an employment contract for a specified term, employment is “at will,” meaning either the employee or the employer may end the employment relationship at any time for any reason. See Skagerberg v. Blandin Paper Co., 197 Minn. 291, 294-95, 266 N.W. 872, 873-74 (1936). However, the common law doctrine of employment at will has been narrowed in the 66 years since Skagerberg. In many jurisdictions, courts have recognized an exception to the doctrine of employment at will, allowing a cause of action when the employee is wrongfully discharged.

In Phipps, 396 N.W.2d at 590-94, the court of appeals recognized an exception to the doctrine of employment at will when an employee is terminated for refusing to engage in unlawful conduct. After we granted review in Phipps, but before release of our decision, the legislature enacted the Whistleblower Act, and we no longer had before us the policy question of whether Minnesota should join the majority of states that recognized a common law cause of action for wrongful discharge. Phipps, 408 N.W.2d at 571. Because the employee in Phipps was injured before enactment of the Whistleblower Act, the Whistleblower Act could not be the basis for his claim, and thus, we had to determine whether he could proceed under the common law. See 408 N.W.2d at 571. We allowed the employee to pursue his common law cause of action for wrongful discharge, and we agreed that the common law protects those fired for their refusal to violate the law. Id.

Because of the enactment of the Whistleblower Act, we acknowledged in Phipps that we did not have to resolve the policy question whether Minnesota should recognize a common law cause of action for wrongful discharge. 408 N.W.2d at 571. While the causes of action before us are statutory claims for wrongful discharge, our analysis of the right to jury trial remains the same: are these claims for retaliatory discharge seeking only money damages causes of action at law? We conclude that they are.

A wrongful discharge claim sounds in tort. We recognized in Lewis v. Equitable Life Assurance Society of the United States, 389 N.W.2d 876, 887-88 (Minn.1986), that a suit for wrongful discharge could sound in tort, and we referred to wrongful discharge as a tort action in Graham v. Special School District No. 1, 472 N.W.2d 114, 115, 120 (Minn.1991). In fact, many states have characterized an action for wrongful discharge under the public policy exception to the doctrine of employment at will as a tort. As noted earlier, retaliatory discharge is one type of wrongful discharge. See Phipps, 396 N.W.2d at 590-91 and citations therein. A whistleblower claim that arises from alleged retaliatory conduct by the employer intended to injure the employee for engaging in lawful conduct or for reporting unlawful conduct, therefore, is a tort.

A retaliatory discharge claim is also a claim for which the law recognizes a right to consequential money damages in an action in district court. See Minn.Stat. §§ 181.935(a) & 182.669, subd. 1. As a tort action seeking only money damages in a district court, it is a cause of action at law.

In the case before us, the claims are tort claims, brought in the district court, seeking only consequential money damages. Thus, the nature and character of the controversy support the conclusion that a whistleblower claim seeking only money damages is an action at law.

We also consider the theory for relief. Olson, 628 N.W.2d at 149. We have held that seeking monetary relief is not enough by itself to guarantee a jury trial. Id. Accordingly, in Indianhead Truck Line, Inc. v. Hvidsten Transportation, Inc., 268 Minn. 176, 128 N.W.2d 834 (1964), we held that in an action for specific performance of an agreement, in which the plaintiff sought monetary damages as part of the equitable relief, rather than as an award of damages for breach of contract, there was no constitutional right to jury trial. Id. at 192-93, 128 N.W.2d at 346. While claims for money damages are typically legal claims, see Minn. R. Civ. P. 38.01, a party should not be permitted to cloak or disguise an equitable action simply by its prayer for relief.

However, because we look to the nature and character of the controversy as determined from all the pleadings, including the relief sought, the nature of the relief sought is important in determining whether a claim is legal or equitable, and as noted, claims for consequential money damages are typically legal claims. We note again that appellants do not seek the equitable relief provided by the Whistle-blower Act, Minn.Stat. § 181.935(a), and MOSHA, Minn.Stat. § 182.669, subd. 1, but seek only money damages. Examination of the relief sought further supports the conclusion that a whistleblower claim seeking only money damages is an action at law.

Our analysis is not altered by our decisions in Breimhorst v. Beckman, 227 Minn. 409, 35 N.W.2d 719 (1949), or Ewert v. City of Winthrop, 278 N.W.2d 545 (Minn.1979). In Breimhorst, we recognized that the legislature abolished a common law cause of action for an employee injured on the job, replacing it with a remedy under the Workers’ Compensation Act, a statutory remedy that was new, adequate, and fundamentally different from the common law cause of action. See 22R Minn, at 433-34, 35 N.W.2d at 734. The legislature took the cause of action out of the district court and placed it in a quashjudicial forum. See id. at 432, 35 N.W.2d at 733. We concluded that when the legislature abolished a common law cause of action and substituted a remedy that was new, adequate, and fundamentally different from that which was provided at common law, there was no constitutional right to a jury. Id. at 434, 35 N.W.2d at 734. We did not hold in Breimhorst that the legislature could deny the constitutional right to jury trial when it codifies, creates, or modifies a cause of action at law.

In Ewert, we held that the Minnesota Constitution does not provide the right to trial by jury to one who appeals a special assessment. 278 N.W.2d at- 550. We stated that the right to appeal a special assessment arises exclusively from statute and does not exist at common law, and as such, there is no attendant right to jury trial in appeals from special assessments. Id. We did not hold in Ewert that all statutory causes of action are equitable actions with no right to jury trial. See id. When a statutory cause of action is legal in nature, it falls within the parameters of those “cases at law” for which there is a constitutional right to jury trial.

We acknowledge our conclusion in Whallon, 4 Minn, at 115 (Gil. at 76), and Westerlund, 157 Minn, at 383, 197 N.W. at 111, that the legislature may expand the right to a jury, but it may not withdraw the constitutional right to jury trial merely by codifying a common law cause of action. To the extent that we suggested in Breim-horst that the legislature may limit the constitutional right to a jury by simply codifying or modifying a common law cause of action, and to the extent that we suggested in Ewert that a statutory cause of action may never carry a constitutional right to jury trial, we clarify today that the right to a jury trial applies to all causes of action at law, regardless of whether the legislature has codified the cause of action.

We hold that an action brought in district court under the Whistleblower Act, Minn.Stat. § 181.935(a), and MOSHA, Minn.Stat. § 182.669, subd. 1, alleging the tort of retaliatory discharge and seeking only money damages, is a cause of action at law with a constitutional right to jury trial.

IV.

We now turn to the issue of whether an employee’s whistleblower claim fails if he reports the violation of a law or rule that does not implicate clearly mandated public policy. The county argues that appellants’ claims reflect only appellants’ self-interest and do not implicate clearly mandated public policy. In our recent decision in Anderson-Johanningmeier v. Mid-Minnesota Women’s Center, Inc., 637 N.W.2d 270, 277 (Minn.2002), we held that the protections of Minn.Stat. § 181.932, subd. 1(a), are not limited to reports that implicate public policy. Accordingly, we hold that the provision of the Whistleblower Act that prohibits employer retaliation for an employee’s report of a violation or suspected violation of federal or state law or rule adopted pursuant to law, Minn.Stat. § 181.932, subd. 1(a), does not require that an employee’s report of a violation or suspected violation of law or rule adopted pursuant to law implicate public policy.

V.

We are also asked whether an employee’s whistleblower claim fails if the employee does not specifically identify the law or rule he alleges that the employer violated. Appellants did not identify in their pleadings a specific federal or state law or rule adopted pursuant to law that they suspected the county of violating. Appellants’ complaints to their supervisors and to the Safety and Health Division, however, implicated suspected violations of MOSHA, and their pleadings consequently implicated suspected violations of state law. A whistleblower claim need not identify the specific law or rule that the employee suspects has been violated, so long as there is a federal or state law or rule adopted pursuant to law that is implicated by the employee’s complaint, the employee reported the violation or suspected violation in good faith, and the employee alleges facts that, if proven, would constitute a violation of law or rule adopted pursuant to law. See Obst v. Microtron, Inc., 614 N.W.2d 196, 204 (Minn.2000); Minn.Stat. § 181.932, subd. 1(a). We hold that the Whistleblower Act, Minn.Stat. § 181.932, subd. 1(a), does not require that an employee specifically identify in the pleadings the law or rule adopted pursuant to law that the employee suspects has been violated, when the employee brings a claim under Minn.Stat. § 181.936(a) for retaliatory discharge resulting from a report made in good faith that a violation or suspected violation of law or rule adopted pursuant to law has occurred, and so long as the alleged facts, if proven, would constitute a violation of the law or rule adopted pursuant to law.

VI.

The final issue is whether appellants are collaterally estopped from pursuing their whistleblower claims. The county argues that remand for jury trial is improper because, after trial to the court alone, the district court directed that judgment be entered for the county, dismissing appellants’ complaints with prejudice. Thus, the county argues that appellants are collaterally estopped from trying their claims again to a jury. A right to a jury trial ordinarily may not be abridged by the doctrine of collateral estoppel. Lytle v. Household Mfg., Inc., 494 U.S. 545, 550-51, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990) and citations therein. We hold that, when an employee has improperly been denied the right to a jury trial in the district court, the employee is not estopped from pursuing claims previously tried, over the employee’s objection, to the court alone. Because we conclude that appellants were improperly denied their constitutional right to try to a jury their whistleblower and MOSHA claims, we vacate the judgment of the district court and remand for trial by jury.

Affirmed in part, reversed in part, and remanded.

      . Abraham also brought a claim under the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363.14, subd. 1 (2000), and both appellants alleged defamation. Those claims were dismissed by the district court, and appellants did not challenge the dismissal.

      . The inspector cited the county for two violations, both unrelated to air quality.

      . The Whistleblower Act, Minn.Stat. §§ 181.931~.935 (2000), provides a cause of action for an employee against the employer when the employee is discharged from employment for blowing the whistle. The Whis-tleblower Act prohibits an employer from discharging, disciplining, threatening, otherwise discriminating against, or penalizing an employee who in good faith reports a violation or suspected violation of law or rule adopted pursuant to law. Minn.Stat. § 181.932, subd. 1. The act provides an employee who has been injured by a violation of section 181.932 with the remedy of bringing a civil action to recover any and all damages recoverable at law, together with- costs and disbursements, including reasonable attorney fees, and such injunctive and other equitable relief as determined by the court, in addition to any remedies otherwise provided by law. Minn.Stat. § 181.935(a).

      . MOSHA, Minn.Stat. ch. 182 (2000), also provides a remedy for a whistleblower-type claim when the reported violation of law implicates MOSHA. The act provides that no employee shall be discharged or in any way discriminated against because the employee has filed a complaint, or instituted or caused to be instituted an inspection under or related to the act, or because of the exercise by the employee of any rights afforded by the act. Minn.Stat. § 182.654, subd. 9. Any employee believed to have been discharged or otherwise discriminated against for exercising any of the rights afforded by the act may file a complaint with the commissioner of labor and industry, who shall cause an investigation to be made as the commissioner deems appropriate, which could result in a hearing before an administrative law judge and injunctive relief. Minn.Stat. § 182.669, subd. 1 (2000). MOSHA also provides that "[a]n employee may bring a private action in the district court for relief under [section 182.669].” Id.

      .We are not presented with the issue of concurrent claims that seek different equitable relief under two different statutes, which may present a different issue.

      . "[A]s to acts declared unfair by section 363.03, the procedure herein provided shall, while pending, be exclusive.” Minn.Stat. § 363.11 (2000).

      . While the county correctly points out that this provision failed to allow concurrent claims in Williams, we disagree that the provision therefore has no effect here. In Williams, the provision for other remedies in the Whistleblower Act was trumped by the exclusive remedy provision of the MHRA. See 551 N.W.2d at 485. There is no exclusive remedy provision here, so we give full effect to the provision in the Whistleblower Act that provides for other remedies. Moreover, the amendment by the legislature in 1987 to remove language from MOSHA that expressly provided for other remedies did not render MOSHA exclusive. See Act of Apr. 30, 1987, ch. 46, § 9, 1987 Minn. Laws 69, 70-71. Had the legislature intended the remedy under MOSHA to be exclusive, it could have included an express exclusive remedy provision at the time of the amendment, as it has done in other statutes, such as the MHRA.

      . Both the Whistleblower Act and MOSHA also provide for equitable relief, Minn.Stat. §§ 181.935(a) & 182.669, subd. 1, but appellants did not seek equitable relief.

      . As a threshold matter, the county argues that appellants conceded at the district court that they have no right to jury trial on their MOSHA claims. The record below suggests that appellants did not concede that they have no right to jury trial on their MOSHA claims, but instead argued before the district court that if the county's argument for no right to jury trial under MOSHA were applied to appellants' whistleblower claims, then the county’s own argument would suggest a right to jury trial under the Whistleblower Act. Moreover, in their memorandum opposing partial summary judgment appellants did argue that they were entitled to a jury trial.

      . In Phipps, the employee alleged that he had been discharged in retaliation for his refusal to engage in unlawful activity. 408 N.W.2d at 570. We allowed the employee to pursue his claim for retaliatory discharge, acknowledging that the common law protects those fired for their refusal to violate the law. Id. at 571.

      . See, e.g., Cummins v. EG & G Sealol, Inc., 690 F.Supp. 134, 136 (D.R.I.1988) (citing Volino v. General Dynamics, 539 A.2d 531 (R.I. 1988)); Knight v. Am. Guard & Alert, Inc., 714 P.2d 788, 792 (Alaska 1986); Petermann v. Int'l Bhd. of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25, 27-28 (1959) (refusing to commit perjury); Jackson v. Minidoka Irrigation Dist., 98 Idaho 330, 563 P.2d 54, 57 (1977); Palmateer v. Int’l Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876, 877-79 (1981) (supplying information to police in criminal investigation of co-employee); Frampton v. Cent. Ind. Gas Co., 260 Ind. 249, 297 N.E.2d 425, 428 (1973) (filing workers' compensation claim); Adler v. Am. Standard Corp., 291 Md. 31, 432 A.2d 464, 471 (1981); Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 429 N.E.2d 21, 28-29 (1981); Trombetta v. Detroit, Toledo & Ironton R.R. Co., 81 Mich.App. 489, 265 N.W.2d 385, 388 (1978) (refusal to alter pollution control reports illegally); Keneally v. Orgain, 186 Mont. 1, 606 P.2d 127, 129 (1980); Ambroz v. Cornhusker Square Ltd., 226 Neb. 899, 416 N.W.2d 510, 513 (1987); Hansen v. Hurrah's, 100 Nev. 60, 675 P.2d 394, 396-97 (1984); Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 417 A.2d 505, 512 (1980) (adopting both tort and contract causes of action for wrongful discharge); Boudar v. E.G. & G., Inc., 106 N.M. 279, 742 P.2d 491, 495 (1987); Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445, 447 (1989) (refusal to drive truck in excess of hours allowed by Department of Transportation and to falsify log to show compliance); Ressler v. Humane Soc’y of Grand Forks, 480 N.W.2d 429, 431-32 (N.D.1992) (testifying truthfully); Nees v. Hocks, 272 Or. 210, 536 P.2d 512, 515 (1975) (absence due to jury duty); Reuther v. Fowler & Williams Inc., 255 Pa.Super. 28, 386 A.2d 119, 120 (1978) (performing jury duty); Ludwick v. This Minute of Carolina, Inc., 287 S.C. 219, 337 S.E.2d 213, 216 (1985) (honoring subpoena request to appear before grand jury investigating employer); Johnson v. Kreiser’s, Inc., 433 N.W.2d 225, 227 (S.D.1988); Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 445 (Tenn.1984) (filing workers' compensation claim); Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex.1985); Berube v. Fashion Ctr., Ltd., 771 P.2d 1033, 1042 (Utah 1989) (recognizing public policy exception to employment at will, but no action on facts of case); Payne v. Rozendaal, 147 Vt. 488, 520 A.2d 586, 589 (1986).

      . The court of appeals stated that, "[t]he exception began as a narrow rule permitting employees to sue their employers when a statute expressly prohibited their discharge. The rule later expanded to include any discharge in violation of a statutory expression of public policy. The broadest formulation of the rule permits recovery even in the absence of a specific statutory prohibition.” Phipps, 396 N.W.2d at 591 (citing Wagenselier v. Scottsdale Mem’l Hosp., 147 Ariz. 370, 710 P.2d 1025, 1031 (1985); Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 871 (Mo.Ct.App.1985); Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834, 840 (1983)).

        . See, e.g., Tameny v. Atl. Richfield Co., 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330, 1335 (1980); Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, 356-58 (1978) (holding an employer liable in tort for retaliatory discharge of an at-will employee who filed legitimate workers' compensation claim); Firestone Textile Co. Div., Firestone Tire and Rubber Co. v. Meadows, 666 S.W.2d 730, 733 (Ky.1983); see also Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Harv. L.Rev. 1816, 1817 n. 7, 1822-24 (1980) "The tort of abusive or retaliatory discharge holds employers liable for dismissals in response to employee activity that is protected by public policy.”

      . The court of appeals in Phipps also characterized a claim for wrongful discharge as a tort claim. 396 N.W.2d at 590.

      . See supra note 12; see also Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 102 (Colo.1992); Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385, 388-89 (1980); Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625, 631 (1982); Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 281 (Iowa 2000); Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645, 650 (1988); Cloutier v. Great Atl. & Pac. Tea Co., 121 N.H. 915, 436 A.2d 1140, 1146 (1981); Collins v. Rizkana, 73 Ohio St.3d 65, 652 N.E.2d 653, 657-58 (1995); Burk v. K-Mart Corp., 770 P.2d 24, 28 (Okl.1989); Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797, 801 (1985); Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081, 1089 (1984); Griess v. Consol. Freightways Corp. of Del., 776 P.2d 752, 754 (Wyo.1989).

      . Rule 38.01 provides, in relevant part, that “[i]n actions for the recovery of money only * * * the issues of fact shall be tried to a jury.” Minn. R. Civ. P. 38.01.

      . Much the same as Minnesota’s approach of examining the nature and character of the controversy, the U.S. Supreme Court, when determining whether a claim is a legal claim with an attendant right to jury trial under the Seventh Amendment, looks at the nature of the claim and at the nature of the relief sought, and places greater emphasis on the latter. See, e.g., Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 565, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990); Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989); Tull v. United States, 481 U.S. 412, 417, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987); Curtis v. Loether, 415 U.S. 189, 195-96, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974).

      . Cf. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 335, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (concluding that equitable determination can have collateral-estoppel effect in subsequent legal action without violating Seventh Amendment); Graham, 472 N.W.2d at 118-19 (holding that when non-jury, statutory termination proceeding produces findings entitled to judicial recognition and finality, then constitutional right to jury trial is not violated).


source: Caselaw Access Project

author: PAUL H. ANDERSON, Justice. Paul H. Anderson Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Tracy R. EICHHORN-HICKS, an Attorney at Law of the State of Minnesota.
    No. C9-00-373.
    Supreme Court of Minnesota.
    Feb. 8, 2002.
   ORDER

PAUL H. ANDERSON, Justice.

On August 21, 2000, this court suspended respondent Tracy R. Eichhorn-Hicks from the practice of law for a period of one year. In re Eichhorn-Hicks, 615 N.W.2d 356 (Minn.2000). Respondent has filed with this court a petition for reinstatement. A panel of the Board of Lawyers Professional Responsibility conducted a hearing on the petition for reinstatement. The panel found that respondent has completed all conditions for reinstatement and that respondent has established his fitness to resume the practice of law. The panel recommends that respondent be reinstated to the practice of law and placed on supervised probation for three years subject to the following conditions:

(a) Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(b) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(c) Respondent shall be supervised by a licensed Minnesota attorney appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor no later than two weeks from the date of the court’s reinstatement order. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Respondent shall make active client files available to the Director upon request.
(d) Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar month during the first year of this probation and then a minimum of one in-person meeting per calendar quarter during the remaining two years of this probation. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. In addition, the inventory shall contain information about any retainers accepted and any trust account transactions affecting each such client. Finally, in a general way, respondent shall keep the supervisor aware of the financial success or difficulties being faced by the practice and the plans to address those matters. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
(e) Respondent shall maintain total abstinence from alcohol and other mood-altering chemicals, except that respondent may use prescription drugs in accordance with the directions of a prescribing physician who is fully advised of respondent’s chemical dependency before issuing a prescription.
(f) Respondent shall maintain a law office and trust account books and records in compliance with Rule 1.15, MRPC, and LRPB Opinion No. 9. These books and records include the following: client subsidiary ledger, checkbook register, monthly trial balances, monthly trust account reconciliation, bank statements, cancelled checks, duplicate deposit slips and bank reports of interest, service charges, and interest payments to the Lawyers Trust Account Board. Such books and records shall be made available to the Director within 30 days of approval of this stipulation and thereafter shall be made available to the Director at such intervals as he deems necessary to determine compliance.

The Director of the Office of Lawyers Professional Responsibility agrees with the panel’s recommendation.

IT IS HEREBY ORDERED that respondent Tracy R. Eichhorn-Hicks is reinstated to the practice of law in the State of Minnesota effective immediately and is placed on supervised probation for three years subject to the conditions set forth above.

BY THE COURT:

Paul H. Anderson Justice

GILBERT, J., took no part in the consideration or decision of this case.


author: Paul H. Anderson Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Brian Andrew LETT, an Attorney at Law of the State of Minnesota.
    No. C1-02-78.
    Supreme Court of Minnesota.
    Feb. 12, 2002.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed an amended and supplementary petition for disciplinary action alleging that respondent Brian Andrew Lett has committed professional misconduct warranting public discipline. More particularly, beginning in October 2000 respondent engaged in a pattern of neglect of legal matters, failed to communicate with clients, failed to cooperate with the investigation of complaints against him or participate in this disciplinary proceeding, misrepresented to a client about the status of a matter, threatened to sue a complainant over statements made in a complaint to the Director, and failed to return a client file in violation of Minn. R. Prof. Conduct 1.3, 1.4, 1.16(d), 3.2, 4.1, 4.4, 8.1(a)(3), and 8.4(c) and (d), and Rules 21(a) and 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits his conduct violated the Rules of Professional Conduct and Rules on Lawyers Professional Responsibility, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a suspension of not less than six months pursuant to Rule 15, RLPR, that the reinstatement hearing provided for in Rule 18, RLPR, not be waived, and that reinstatement be conditioned upon (1) payment of costs in the amount of $900 plus interest under Rule 24, RLPR, (2) compliance with Rule 26, RLPR, (3) successful completion of the professional responsibility examination under Rule 18(e), RLPR, and (4) satisfaction of the continuing legal education requirements under Rule 18(e), RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Brian Andrew Lett is indefinitely suspended from the practice of law for not less than six months, that the reinstatement hearing provided for in Rule 18, RLPR, is not waived, and that reinstatement is conditioned upon the agreed-upon terms set forth above. Respondent shall pay $900 in costs plus interest under Rule 24, RLPR.

BY THE COURT:

Paul H. Anderson Justice


text:
    In re Petition of Wendy L. ARCAND, for Transfer to Disability Inactive Status.
    No. C0-02-55.
    Supreme Court of Minnesota.
    Feb. 19, 2002.
   ORDER

Attorney Wendy L. Arcand has filed a petition for transfer to disability inactive status under Rule 28, Rules on Lawyers Professional Responsibility (RLPR), alleging that her severe depression makes her unable to practice law. The Director states that there are no disciplinary complaints or proceedings pending against petitioner. Petitioner and the Director of the Office of Lawyers Professional Responsibility have entered into a stipulation jointly recommending transfer to disability inactive status. The parties agree that upon a showing that she is fit to resume the practice of law, petitioner may petition for reinstatement under Rule 18(a)-(e).

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that petitioner Wendy L. Arcand immediately is transferred to disability inactive status. Petitioner shall take immediate steps to wind up her law practice and comply with Rule 26, RLPR. Upon a showing that she is fit to resume the practice of law, petitioner may petition for reinstatement in accordance with Rule 18(a)-(e), RLPR.

BY THE COURT:

Paul H. Anderson Justice


author: PER CURIAM.

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Ragnhild A. WESTBY, an Attorney at Law of the State of Minnesota.
    No. CX-96-1459.
    Supreme Court of Minnesota.
    Feb. 21, 2002.

      Edward J. Cleary, Director, Office of Lawyers Professional Responsibility, Kenneth L. Jorgensen, First Assistant Director, Attorney for Appellant.
    Ragnhild A. Westby, Pro Se, Attorney for Respondent.
   OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against Ragnhild A. Westby, an attorney licensed to practice law in the state of Minnesota, alleging professional misconduct warranting public discipline. The alleged misconduct relates to Westby’s interactions with four individuals and the Director. The Director claims that Westby (1) failed to act with reasonable diligence and promptness in representing a client, (2) failed to communicate with a client, (3) failed to place client funds in a trust account, (4) knowingly disobeyed an obligation under the rules of a tribunal, (5) failed to be truthful in statements to others, (6) engaged in the unauthorized practice of law, (7) failed to respond to requests for information from the Director of the Office of Lawyers Professional Responsibility, (8) engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and (9) engaged in conduct prejudicial to the administration of justice. At the time these alleged acts of misconduct occurred, Westby was suspended from the practice of law for prior professional misconduct.

A referee held a hearing, found that Westby had violated several of the Minnesota Rules of Professional Conduct, and recommended that Westby be disbarred. Westby appealed, claiming that the referee violated the Minnesota Rules of Evidence in admitting certain testimony from her ex-husband and erred in finding that she violated the Rules of Professional Conduct. We conclude that Westby violated the Rules of Professional Conduct and that disbarment is the appropriate sanction.

Ragnhild A. Westby was admitted to the practice of law in Minnesota in 1976. She practiced primarily in the field of family law. In 1993, Westby received a private admonition for neglect and failing to communicate adequately with a client in violation of Minn. R. Prof. Conduct 1.3 and 1.4. On December 4, 1997, this court issued an order suspending Westby from the practice of law for 60 days for failing to (1) deposit retainers in her trust account, (2) maintain proper trust account books and records, (3) communicate with clients, (4) respond to notices of investigation, (5) pay a debt secured by property, and (6) timely file and pay federal and state individual income tax returns and employer’s withholding tax returns. In re Westby, 572 N.W.2d 278, 279-81 (Minn.1997). The suspension order contained certain conditions of reinstatement. Id. Approximately 1 year and 9 months later, on August 31, 1999, Westby asked this court to reinstate her to the practice of law. The Office of Lawyers Professional Responsibility (OLPR) opposed reinstatement on the grounds that Westby had not provided proof of compliance with the reinstatement conditions. This court denied Westby’s request for reinstatement.

Westby’s current disciplinary action arises out of conduct with respect to four individuals and the Director. The alleged misconduct was committed while Westby was suspended from the practice of law.

A. The Wyttenback Matter

The first matter involves Westby’s representation of Shirley Rose Wyttenback. In 1997, before Westby was suspended from the practice of law, Wyttenback contacted Westby about a marriage dissolution. Wyttenback filled out a client inventory form and mailed it to Westby. Based on the information in the questionnaire, Westby drafted a marriage dissolution petition, but heard nothing further from Wyttenback. Wyttenback testified, and the referee found, that Wyttenback did not enter into a written fee agreement with Westby.

In the spring of 1998, Wyttenback’s brother telephoned Westby to determine why his sister’s marriage dissolution had not commenced. Westby told the brother that the dissolution could not get started until she received a retainer. At Westby’s direction, the brother then wired $1,900 to Westby’s personal bank account. The brother testified, and the referee found, that Westby never informed him that she was suspended from the practice of law.

After receiving the funds, Westby asked Thomas Rowe, an attorney and Westby’s ex-husband, to sign the dissolution petition. The referee found that Westby, in order to get Rowe to sign the petition, falsely told Rowe that she was about to be reinstated to the practice of law. The referee also found that Westby caused the petition to be filed with the court. After using $210.80 of the $1,900 to pay expenses for Wyttenback, Westby withdrew the remaining funds from her personal bank account to pay for personal expenses. At the referee’s hearing, Westby testified that she used the money to reimburse herself for insurance premiums she paid on Rowe’s behalf. However, the referee found that none of the specific funds received from Wyttenbaek’s brother were used to pay the premiums. The referee found that Westby has not refunded the balance of the funds to Wyttenback or her brother. The referee concluded that Westby’s conduct with respect to Wytten-back violated Minn. R. Prof. Conduct 1.4, 1.15(a), 3.4(c), 5.5(a), 8.4(c), and 8.4(d) and Lawyers Professional Responsibility Board Opinion 15.

B. The Heyen Matter

In 1998, while Westby was suspended from the practice of law, Sheila Heyen contacted Westby by telephone regarding a child custody matter. At the referee’s hearing, Heyen testified that Westby told her there was nothing she could do for Heyen because Heyen had not been served with a change of custody motion. Heyen was subsequently served and she and her second husband then met with Westby several times. Heyen and her second husband testified, and the referee found, that Westby did not tell them that she was suspended from the practice of law and could not represent Heyen. Heyen testified, and the referee found, that Westby obtained a continuance of the child custody hearing, discussed with Heyen evidence for the hearing, and drafted an affidavit for her signature. Heyen also issued a check for $500 to Westby to retain her as an attorney for the upcoming hearing. The referee found that Heyen did not sign a retainer agreement with Westby and that Westby deposited the $500 into her personal bank account.

Heyen tried to contact Westby a few days before the custody hearing, but was not able to reach her until the evening before the hearing. That evening, Westby informed Heyen that she had been in the emergency room with a broken ankle and that she was going to have the hearing postponed. Heyen testified that at this point she no longer trusted Westby and went to Westby’s home the next morning to collect her file. At that time, Westby offered to have Rowe represent Heyen at the hearing, but Heyen declined. Heyen then went to the hearing without counsel and the court rescheduled the hearing. Heyen later asked Westby for a refund of her $500 retainer and Westby issued a check for that amount. Heyen attempted to cash the check several times before it was honored. The referee concluded that Westby’s conduct with respect to Heyen violated Minn. R. Prof. Conduct 1.4, 1.15(a), 5.5(a), 8.4(c), and 8.4(d) and Opinion 15.

C. The Tourville/Jenness Matter

Before Westby was suspended from the practice of law, she represented Linda Jenness, n/k/a Tourville, in a post-decree support matter. After Westby was suspended, the court issued an order on a pending motion and set the matter for a hearing on March 5, 1998. The referee found that Westby did not notify Tourville or the court of her suspension. Tourville testified, and the referee found, that West-by assisted Tourville in preparing an affidavit for the hearing. The affidavit was filed with the court. Shortly before the hearing, Westby informed Tourville that she was suspended and that she expected to receive a reinstatement order within the next several days. Westby told Tourville that she would have the hearing continued. Westby then telephoned a court administrator and told the administrator that she was suspended and that she expected to be reinstated within the next several days. At Westby’s request, the court continued the hearing to March 19.

During the week before the March 19 hearing, Tourville made repeated efforts to contact Westby, but was unable to do so until the morning of the hearing. At that time, Westby told Tourville that she had not been reinstated and that the hearing again would be continued. Westby telephoned the court administrator to get the hearing continued. The court administrator testified, and the referee found, that the court administrator told Westby that the hearing would not be continued. The referee also found that Westby did not inform Tourville that the hearing was going to proceed as scheduled. Neither Westby nor Tourville appeared at the hearing and the court entered a default judgment against Tourville. Tourville later learned that the hearing had in fact taken place and attempted to contact Westby. Westby failed to return Tour-ville’s calls. Tourville subsequently obtained other counsel and was successful in vacating the default order. The referee found that Tourville incurred significant attorney fees in vacating the order. The referee concluded that Westby’s conduct with respect to Tourville violated Minn. R. Prof. Conduct 1.3, 1.4, 3.4(c), 4.1, 5.5(a), 8.4(c), and 8.4(d).

D. The Yang Matter

The fourth matter concerns Westby’s interactions with Linda Miller, an attorney acting on behalf of Sa Yee Yang. The referee found that before Westby was suspended from the practice of law, an attorney in Westby’s law office assisted Yang in changing the legal name of his adopted daughter. This work was completed in June 1998. Yang later sought an amended birth certificate and consulted Miller on this matter in 1999. Miller believed that Westby had the original birth certificate because Yang told Miller that Westby had done the adoption and name change. Miller therefore called Westby in October 1999 and requested the original certificate. Westby testified that she told Miller that the Juvenile Court might have the certificate and that Westby would check. West-by also testified that she learned from the court clerk that the Yang file was not at the Juvenile Court. Westby did not deliver the certificate and Miller testified that Westby did not return her telephone calls. Miller subsequently filed an ethics complaint with the OLPR in January 2000. The referee found that because neither Yang nor anyone else provided Westby with the original birth certificate, Westby’s failure to respond to Miller’s request for the certificate did not violate the Minnesota Rules of Professional Conduct. The Director does not contest the referee’s findings and the Yang matter is not before us.

E. Failure to Cooperate in the Disciplinary Investigation

The fifth matter concerns Westby’s interactions with the Director and the OLPR. In October 1999, the OLPR informed Westby that Wyttenback had filed a complaint and requested that Westby provide a written explanation for the disposition of the $1,900 retainer and her failure to return the funds. The referee found that Westby’s written response did not address these issues. The referee also found that the OLPR sent Westby two additional letters requesting the same information and that Westby did not respond to either letter. During its investigation of the Yang matter, the OLPR wrote two letters to Westby requesting that she respond to the complaint. The referee found that Westby did not respond in writing to either letter. The referee concluded that Westby’s conduct with respect to the Director’s inquiries violated Minn. R. Prof. Conduct 8.1(a)(3) and 8.4(d).

I.

Westby contends that the referee violated the Rules of Evidence in admitting testimony from Westby’s ex-husband, Thomas Rowe. More specifically, Westby asserts that counsel for the OLPR had conversations with Rowe, deposed Rowe, and received privileged documents from Rowe regarding the disciplinary action against her. Westby argues that because neither she nor Rowe had waived the marital privilege, these communications violated the Rules of Evidence. However, Westby does not assert that the referee admitted ány of this evidence at Westby’s disciplinary hearing.

Rulings on evidentiary matters are left to the discretion of the district court and will not be reversed absent an abuse of discretion. Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn.1983). Under Minnesota law, there are two distinct marital privileges — a testimonial privilege and a communications privilege. The testimonial privilege prevents one spouse from testifying against the other during the marriage. Minn.Stat. § 595.02, subd. 1(a) (2000). The communications privilege prohibits compelled testimony during or after the marriage about communications that took place between spouses during the marriage. Id. Westby and Rowe were married in 1985 and divorced on May 24, 1999. The disciplinary hearing was held in January 2001. Therefore, the testimonial privilege is inapplicable.

The communications privilege applies to all interspousal communications. State v. Lee, 480 N.W.2d 668, 671 (Minn.App.1992), rev’d on other grounds, 494 N.W.2d 475 (Minn.1992). The term communication as used in section 595.02, subd. 1(a), applies only to assertive conduct, including “written or spoken words, acts, and gestures which were intended by one spouse to convey a meaning or message to the other.” State v. Hannuksela, 452 N.W.2d 668, 676-77 (Minn.1990). Thus, it is permissible for one spouse to testify as to the other spouse’s nonassertive conduct that is not directed to the first spouse. Id. at 677.

During the disciplinary hearing, the referee gave Westby what he called a “kind of a standing marital privilege objection” that would be ruled on whenever Rowe testified based on what Westby had told Rowe. The Director asked Rowe if he knew whether Wyttenback had authorized Rowe to represent her. Westby objected on the grounds that Rowe was not competent to testify based on the marital privilege. The objection was overruled and Rowe answered that he did not know if Wyttenback had authorized Rowe to represent her. The Director later asked Rowe who he understood would be representing Wyttenback and Westby objected on the same grounds. The Director withdrew the question after Rowe stated that his answer would be based on what West-by had told him.

Westby objected when the Director asked Rowe whether, when he signed the petition, he was aware that Wyttenback’s brother had paid Westby $1,900 and the objection was overruled. Rowe then answered that he did not know that Wytten-back’s brother had paid Westby $1,900. Westby again objected when Rowe was asked whether Westby had ever transferred the $1,900 to Rowe. The objection was overruled and Rowe responded “no.” The referee also overruled Westby’s objection to a question posed to Rowe regarding the validity of Westby’s claim that she paid insurance premiums on behalf of Rowe. Rowe then testified about his discussions with Westby regarding payment of insurance premiums. Finally, Westby objected to the Director’s question to Rowe as to whether Rowe ever signed a Substitution of Attorney agreeing to represent Tour-ville in the support matter. The objection was overruled and Rowe responded that he had not “seen” a Substitution of Attorney.

Westby has not identified any testimony by Rowe at the disciplinary hearing that offends the marital privilege. Further, our review of the record indicates that Rowe’s testimony does not offend the marital privilege. For these reasons, we conclude that Westby’s claim that the referee violated the Rules of Evidence in admitting Rowe’s testimony lacks merit.

II.

Westby’s primary argument is that her conduct with respect to Wytten-back, Heyen, Tourville, and the Director did not violate the Rules of Professional Conduct. The Director has the burden of proof in disciplinary matters and must meet a clear and convincing evidence standard. In re Brehmer, 620 N.W.2d 554, 561 (Minn.2001). Because Westby ordered a transcript of the hearing, the referee’s findings of fact and conclusions of law are not conclusive. Rule 14(e), RLPR; In re Fuller, 621 N.W.2d 460, 465-66 (Minn. 2001). However, we give great deference to a referee’s findings on disputed facts and will not reverse the referee’s findings and conclusions unless they are clearly erroneous. In re Reiter, 567 N.W.2d 699, 701 (Minn.1997).

A. Rule 1.3

The Director alleges that Westby’s conduct with respect to Tourville violates Minn. R. Prof. Conduct 1.8 which mandates that a lawyer “act with reasonable diligence and promptness in representing a client.” A lawyer neglects client matters when she fails to return client telephone calls and fails to appear on behalf of clients. In re Muenchrath, 588 N.W.2d 497, 501 (Minn.1999) (discussing In re Bishop, 582 N.W.2d 261, 261-62 (Minn.1998)). Although Tourville repeatedly tried to contact Westby during the week before the March 19 hearing, she was unable to do so until the morning of the hearing. At that time, Westby told Tourville that the hearing would be continued. However, Westby was unable to obtain a continuance and failed to inform Tourville that the hearing would proceed. In addition, Westby did not appear at the March 19 hearing. Tourville, after learning the hearing took place, telephoned Westby several times, but Westby did not return her calls. We conclude that this conduct by Westby with respect to Tourville violated Minn. R. Prof. Conduct 1.3.

B. Rule 1.4

The Director next contends that Westby’s conduct with respect to Wyttenback, Heyen, and Tourville violates Minn. R. Prof. Conduct 1.4. Rule 1.4(a) provides that “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” Minn. R. Prof. Conduct 1 .4(a). A lawyer must also “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Minn. R. Prof. Conduct 1.4(b). A lawyer violates Rule 1.4 by failing to communicate with her client, failing to advise a client of the status of his or her case, and failing to return client telephone calls. In re Milloy, 571 N.W.2d 39, 43-44 (Minn.1997) (regarding failure to communicate); In re Szymialis, 557 N.W.2d 554, 556 (Minn.1997) (regarding failure to advise client of case status); In re Madsen, 426 N.W.2d 434, 435 (Minn.1988) (regarding failure to return calls). Westby did not advise Wyttenback or Heyen that she was suspended from the practice of law and could not represent them. Similarly, Westby did not advise Tourville that she was suspended from the practice of law and could not represent her and only shortly before the March 5 hearing did she inform Tourville that she was suspended. With respect to the Tourville matter, Westby falsely told Tourville that she was about to be reinstated and, as discussed above, did not return Tourville’s calls or keep her properly informed about the March 19 hearing. We conclude that Westby’s conduct with respect to Wytten-back, Heyen, and Tourville violated Minn. R. Prof. Conduct 1.4.

C. Rule 1.15(a)

The Director also contends that Westby’s conduct with respect to Wyttenback and Heyen violates Minn. R. Prof. Conduct 1.15(a) and Opinion 15. Rule 1.15(a) mandates that “[a]ll funds of clients or third persons held by a lawyer or law firm in connection with a representation shall be deposited in one or more identifiable interest bearing trust accounts.” Minn. R. Prof. Conduct 1.15(a). Opinion 15 also provides that all advance fee payments must be deposited in an interest bearing trust account. A licensed attorney is charged with the knowledge that client funds must be maintained in a separate trust account and that those funds are. not for the personal use of the attorney. In re Copeland, 505 N.W.2d 606, 608 (Minn.1993). It is undisputed that Westby directed Wyttenback’s brother to transfer a retainer to Westby’s personal bank account and that Westby deposited a retainer from Heyen into her personal bank account. We therefore conclude that Westby’s conduct with respect to Wyttenback and Heyen violated Minn. R. Prof. Conduct 1.15(a). However, an attorney cannot be disciplined solely on a violation of an Opinion of the Lawyers Professional Responsibility Board. In re Panel File No. 99-42, 621 N.W.2d 240, 242 (Minn.2001). Therefore, we conclude that the referee erred to the extent, if any, that he imposed any discipline solely on the basis of a violation of Opinion 15.

D. Rule 3.4(c)

The Director alleges that West-by’s conduct with respect to Wyttenback and Tourville violates Minn. R. Prof. Conduct 3.4(c) which provides that a lawyer shall not “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” Rule 3.4(c) is violated when a lawyer who is suspended from the practice of law fails to comply with a court’s order to comply with Rule 26, RLPR, which requires a suspended lawyer to send notice of the lawyer’s suspension to each client, opposing counsel, and tribunals before which the lawyer had matters pending. In re Grzybek, 567 N.W.2d 259, 264-65 (Minn.1997). As part of our December 4, 1997 suspension order, Westby was ordered to comply with Rule 26. However, Westby failed to inform Wyttenback and Wyttenback’s brother that she was suspended from the practice of law and could not represent Wytten-back. Similarly, Westby did not inform Tourville until just before the March 5 hearing that she was suspended from the practice of law. We conclude that this conduct by Westby with respect to Wyt-tenback and Tourville violated Minn. R. Prof. Conduct 3.4(c).

E. Rule 4.1

The Director alleges that West-by’s conduct with respect to Tourville violates Minn. R. Prof. Conduct 4.1 which provides that “[i]n the course of representing a client a lawyer shall not knowingly make a false statement of fact or law.” Shortly before the March 6 hearing, West-by falsely told Tourville and a court administrator that she was about to be reinstated. We conclude that this conduct violated Minn. R. Prof. Conduct 4.1.

F. Rule 5.5(a) and Rule 8.4(d)

The Director further contends that Westby’s conduct with respect to Wyttenback, Heyen, and Tourville violates Minn. R. Prof. Conduct 5.5(a) and 8.4(d). Rule 5.5(a) provides that a lawyer shall not “practice law in a jurisdiction where to do so violates the regulation of the legal profession in that jurisdiction.” Rule 8.4(d) provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Practicing law while suspended violates Rule 5.5(a) and Rule 8.4(d). In re Ray, 610 N.W.2d 342, 346 (Minn.2000). While Westby was suspended, she drafted and filed a dissolution petition on behalf of Wyttenback and provided legal advice to Heyen and Tourville. We conclude that this conduct with respect to Wyttenback, Heyen, and Tourville violated Minn. R. Prof. Conduct 5.5(a) and 8.4(d).

G. Rule 8.1(a)(3) and Rule 8.4(d)

The Director contends that Westby failed to cooperate with the investigation of the Wyttenback and Yang complaints in violation of Minn. R. Prof. Conduct 8.1(a)(3) and 8.4(d). Rule 8.1(a)(3) provides that a lawyer, in connection with a disciplinary matter, shall not “knowingly fail to respond to an admissions or discipline authority’s lawfully authorized demand for information by either providing the information sought or making a good faith challenge to the demand.” Failing to respond to a notice of investigation constitutes failure to cooperate with disciplinary authorities. See Minn. R. Prof. Conduct 8.1(a)(3). In addition, conduct which interferes with the disciplinary process is prejudicial to the administration of justice in violation of Rule 8.4(d). In re A.M.E., 533 N.W.2d 849, 851 (Minn.1995). The referee found that Westby did not respond to the Director’s request for an explanation concerning the disposition of the Wyttenback retainer and did not respond at all to the Yang complaint. The record supports the referee’s findings and conclusions and we therefore conclude that Westby failed to cooperate with the Director’s investigation in violation of Minn. R. Prof. Conduct 8.1(a)(3) and 8.4(d).

H. Rule 8.4(c)

Finally, the Director alleges that Westby’s conduct with respect to Wyttenback, Heyen, and Tourville violates Minn. R. Prof. Conduct 8.4(c) which provides that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” The misappropriation of client funds violates Rule 8.4(c). Grzybek, 567 N.W.2d at 264 (citation omitted). Misappropriation occurs whenever funds belonging to a client are not deposited in a trust account and are used for any purpose other than that specified by the client. In re Isaacs, 451 N.W.2d 209, 211 (Minn.1990). A lawyer also violates Rule 8.4(c) by making false representations with an intent to deceive. In re Peterson, 456 N.W.2d 89, 92 (Minn.1990). Westby falsely told Tour-ville and a court administrator that she was about to be reinstated to the practice of law. While Westby was suspended, she accepted a retainer from Heyen and procured a retainer from Wyttenback’s brother by telling him that the dissolution could not proceed unless she had funds. Westby used most of the Wyttenbaek retainer for her personal use and has failed to return the funds. We conclude that Westby’s conduct with respect to Wyttenbaek, Hey-en, and Tourville violated Minn. R. Prof. Conduct 8.4(c).

In sum, we conclude that Westby committed multiple acts of professional misconduct and that the referee did not err in his findings of fact and conclusions of law. More particularly, we hold that Westby violated Minn. R. Prof. Conduct 1.3, 1.4, 1.15(a), 3.4(c), 4.1, 5.5(a), 8.1(a)(3), 8.4(c), and 8.4(d).

III.

Having concluded that Westby violated several rules of professional conduct, we must now determine the appropriate sanction. The final responsibility for determining the appropriate discipline rests solely with this court. Brehmer, 620 N.W.2d at 561. The purpose of discipline is not to punish the lawyer but, rather, “to protect the courts, the public, and the profession and to guard the administration of justice.” In re Flanery, 431 N.W.2d 115, 118 (Minn.1988). In evaluating the appropriateness of the disciplinary sanction, we examine the nature of the misconduct, the cumulative weight of the disciplinary rule violations, the potential harm to the public, and the harm to the legal profession. Brehmer, 620 N.W.2d at 561. The disciplinary sanction imposed is a function of the specific facts of the misconduct as well as the presence or absence of mitigating and aggravating circumstances. Isaacs, 451 N.W.2d at 211.

Westby, while she was suspended from the practice of law, failed to exercise diligence with respect to client matters, neglected to communicate with clients, failed to place client funds into a trust account, knowingly disobeyed an obligation under the rules of a tribunal, knowingly made false statements to others, engaged in the unauthorized practice of law, failed to cooperate with the disciplinary investigations, engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and engaged in conduct prejudicial to the administration of justice. Moreover, the referee found numerous aggravating circumstances. First, Westby failed to make any restitution to Wyttenbaek or Wytten-back’s brother for the misappropriated retainer. Second, Westby’s dishonesty forced Wyttenbaek to accept the legal services of Rowe, who neglected the case and failed to communicate with Wyttenbaek. Third, Westby’s lack of candor and dishonesty caused Heyen unnecessary anxiety by forcing her to appear at a hearing pro se and requiring Heyen to search for substitute counsel without any notice. Fourth, Westby’s lack of candor and dishonesty caused Tourville unnecessary anxiety and forced her to incur additional attorney fees to vacate a default order. Fifth, Westby’s failure to deposit the Wytten-back and Heyen retainers into a trust account and her failure to cooperate with the Wyttenbaek and Yang investigations are aggravated by the fact that Westby was disciplined for similar violations in 1997. Finally, Westby’s lack of candor and cooperation throughout the disciplinary proceedings is also an aggravating factor.

In determining the appropriate disciplinary sanction, prior cases are helpful by way of analogy. In re Kaszynski 620 N.W.2d 708, 713 (Minn.2001); Isaacs, 451 N.W.2d at 211. We have previously imposed the sanction of disbarment for misconduct similar to that of Westby. For example, in Ray, we held that an attorney who repeatedly engaged in the practice of law while under suspension, failed to timely surrender client documents upon request, failed to cooperate fully with the disciplinary investigation, and presented no mitigating factors should be disbarred. 610 N.W.2d at 346-47. We noted that Ray’s misconduct was aggravated by his prior discipline for the unauthorized practice of law while suspended. Id. at 347. Furthermore, we observed that “Ray does not acknowledge that he has committed any misconduct, and it appears that unless appropriately sanctioned, he is likely to engage in similar conduct in the future.” Id.

The gravity of Westby’s professional misconduct exceeds that of Ray. For example, Westby misappropriated client funds and “[disbarment is the usual discipline for attorney misappropriation of client funds except in instances when the attorney presents clear and convincing evidence of substantial mitigating circumstances which show that the attorney did not intentionally convert the funds.” In re Graham, 609 N.W.2d 894, 896 (Minn.2000) (citation omitted). In Graham, we held that disbarment is the appropriate sanction for an attorney with a lengthy disciplinary history who, while on probation for previous misconduct, misappropriated client funds, charged an unreasonable fee, neglected client matters, and violated other terms of probation. Id. In addition, disbarment or indefinite suspension is the typical sanction for repeated instances of client neglect and failure to communicate, as well as for making misrepresentations to clients, the public, and the courts. In re Schmidt, 586 N.W.2d 774, 776 (Minn.1998) (citation omitted). Moreover, we have disbarred attorneys who have engaged in the practice of law while suspended or who have practiced without a valid license. In re Hunter, 473 N.W.2d 866, 868-69 (Minn.1991) (practicing while suspended); In re Feldman, 391 N.W.2d 826, 828 (Minn.1986) (practicing without valid license). Further, we have emphasized that an attorney’s lack of cooperation with disciplinary authorities constitutes serious professional misconduct. Grzybek, 552 N.W.2d at 217. Finally, disbarment is an appropriate sanction for repeated serious misconduct. Graham, 609 N.W.2d at 896 (citing In re Weems, 540 N.W.2d 305, 309 (Minn.1995), and In re Goldstein, 581 N.W.2d 36, 36 (Minn.1998)).

We have previously applied severe discipline for conduct similar to that of Westby. In addition, numerous aggravating circumstances are present here, including the fact that Westby committed the current misconduct while suspended from the practice of law for similar prior misconduct. Moreover, because Westby does not acknowledge that she has committed any misconduct, she might engage in similar conduct in the future unless she is appropriately sanctioned. In order to protect the courts, the public, and the legal profession and to guard the administration of justice, we hold that Westby’s professional misconduct warrants disbarment.

Disbarment ordered.


author: BLATZ, Chief Justice.

text:
    STATE of Minnesota, Petitioner, Appellant, v. Michael Allen HATFIELD, Respondent.
    No. C9-00-1183.
    Supreme Court of Minnesota.
    Feb. 21, 2002.

      Mike Hatch, Minnesota Attorney General, Natalie E. Hudson, Assistant Attorney General, St. Paul, Terry W. Viesselman, Martin County Attorney, Fairmont, Appellant’s Attorney(s).
    John M. Stuart, Minnesota State Public Defender, Mary R. Yasaly, Special Assistant State Public Defender, Minneapolis, Respondent’s Attorney(s).
   OPINION

BLATZ, Chief Justice.

Respondent Michael Allen Hatfield was convicted of one count of conspiracy to manufacture methamphetamine, Minn. Stat. §§ 152.096, subd. 1, and 152.021, subd. 2a & 3a (2000), one count of possession of methamphetamine, Minn.Stat. § 152.025, subd. 2(1) (2000), one count of possession of drug paraphernalia, Minn. Stat. § 152.092 (2000), and one count of child endangerment, Minn.Stat. § 609.378, subd. 1(b)(1) (2000). He appealed to the court of appeals from his convictions for child endangerment and conspiracy to manufacture methamphetamine. The court of appeals affirmed the child-endangerment conviction, but reversed the conspiracy conviction, holding that there was no evidence presented to the jury establishing that Hatfield had entered into an agreement with his alleged co-conspirator. State v. Hatfield, 627 N.W.2d 715, 719-20 (Minn.App.2001). We granted the state’s petition for further review and now affirm.

On December 3, 1999, at around 11 p.m., Bobbie Nowak drove Anthony Theobald, her boyfriend, to a house in Fairmont, Minnesota, where Michael Hatfield and his family were temporarily staying. The house was owned by Hatfield’s cousin, David Stedman, who had been working out of town for most of the week that the Hatfields stayed in his home. Hatfield had called Theobald earlier that evening and asked him to pick up and bring to him a cooler and propane tank that were in Nowak’s neighbor’s garage. Theobald did as asked, putting the items in the trunk of Nowak’s car before he and Nowak drove to Stedman’s house to meet Hatfield.

That same evening, Fairmont police officers had been contacted by the Thomas County, Kansas sheriffs department. At about 11:00 p.m., a Fairmont officer spoke with a Thomas County deputy who requested that Hatfield be arrested under a warrant issued in Thomas County. The Thomas County deputy informed the Fair-mont officer that Hatfield was probably staying with Stedman. Based on this information, several Fairmont police officers went to Stedman’s house. When the officers arrived, Hatfield was carrying a red cooler from Nowak’s car to the garage. A second group of Fairmont police officers, arriving from the rear, saw Hatfield entering the garage through the service entrance. Hatfield soon emerged from the front door of the house and identified himself to officers located at the front of the house who were questioning Theobald and Nowak. He was informed of the warrant for his arrest and taken into custody. Officers searched Hatfield incident to arrest and seized drug paraphernalia, approximately $447 in cash, and razor blades coated with white, powdery residue. Hatfield later told an officer that he received the paraphernalia from “a kid that just got busted for this stuff [and] * * * threw it [my] way.”

The officers who saw Hatfield enter the garage detected a smell emanating from the open service entrance. One officer, Sergeant Dale Ellis, noticed a much stronger smell inside the garage. He testified that the odor caused a “metallic taste,” a stinging sensation in his eyes, and took his breath away. Sergeant Ellis then entered the house, where he could smell the same odor as that coming from the garage, and found five children, four of whom were Hatfield’s. Because Sergeant Ellis believed the odor was caused by anhydrous ammonia, an ingredient used to manufacture methamphetamine, he radioed for Agent James Kotewa, a Fairmont police officer assigned to the Minnesota River Valley Drug Task Force, for additional assistance. Sergeant Ellis also telephoned the Martin County Human Services Department for assistance in removing the children from the house.

Stedman, the owner of the house, returned around midnight and consented to a search of the property. During the search, Officer Ellis and Agent Kotewa found what they believed were the requisite components of an anhydrous-ammonia methamphetamine laboratory.

Hatfield was charged with conspiracy to manufacture methamphetamine, possession of methamphetamine, possession of drug paraphernalia, and child endangerment. At trial, there was conflicting testimony about the presence of the smell of anhydrous ammonia. Officer Ellis, Agent Kotewa, Officer Kevin Walser, and Officer Michael Hunter testified that they smelled ammonia coming from the garage. Additionally, several officers testified that they smelled an odor, similar to the one in the garage, upon entering the house. In contrast, both Hatfield’s wife and Stedman testified that they did not notice an odor in the house.

Agent Kotewa testified that the propane tank had alterations to the handle and a blue-green discoloration around the nozzle, which were typical signs of a propane tank used to transport anhydrous ammonia. He also testified that the red cooler held five mason jars that contained precipitation. Based on the strong smell, Agent Kotewa believed the precipitation to be anhydrous ammonia. Because Agent Ko-tewa was concerned about the risks posed by the suspected anhydrous ammonia, he directed that the jars and the propane tank be destroyed without being tested.

The state compelled Nowak and Theo-bald to testify. Nowak testified that she did not bring anything to Hatfield’s temporary residence, but stated that Theobald brought a small tank she thought was used for a gas grill. Theobald testified that Hatfield asked him to bring over a cooler and a “propane tank for the grill.” He also testified that he did not know the contents of the propane tank and denied discussing any other topic with Hatfield aside from “running out to the Legion and having a drink.” When asked who carried the propane tank and red cooler to the garage, Theobald responded that he may have carried one but he was not sure because “at that point, I didn’t — you know, I didn’t know if there was a significance.” Both Nowak and Theobald testified that they did not smell any odor emanating from the propane tank or the trunk of Nowak’s car.

While the state did not present direct evidence showing a criminal agreement between Hatfield and Theobald, Agent Kote-wa was allowed to testify, over Hatfield’s objection, that there was an “on-going criminal investigation” and that he believed Theobald was involved with Hatfield and would soon be arrested. Agent Kote-wa did not explicitly state the basis for such an arrest, but he implied that it involved the same circumstances giving rise to the charges against Hatfield.

Hatfield was convicted of one count each of conspiracy to manufacture methamphetamine, possession of methamphetamine, possession of drug paraphernalia, and child endangerment. He appealed to the court of appeals from the conspiracy and child endangerment convictions, challenging the sufficiency of the evidence supporting each verdict. The court of appeals affirmed the child endangerment conviction but concluded that there was “insufficient evidence in the record from which the jury could reasonably infer that Hatfield entered into an actual agreement with anyone for the purpose of manufacturing methamphetamine.” State v. Hatfield, 627 N.W.2d 715, 719 (Minn.App.2001).

In reviewing a sufficiency of the evidence claim, we are limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). When weighing the sufficiency of circumstantial evidence, we give it as much weight as any other kind of evidence, as long as the circumstances are both consistent with the hypothesis that the defendant is guilty and inconsistent with any rational hypothesis except that of guilt. State v. Walen, 563 N.W.2d 742, 750 (Minn.1997). Thus, the circumstantial evidence must “ ‘form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.’ ” Webb, 440 N.W.2d at 430 (quoting State v. Wahlberg, 296 N.W.2d 408, 411 (Minn.1980)).

A conspiracy exists when someone “conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy * * Minn.Stat. § 609.175 (2000). In this case the jury found that Hatfield conspired with another to manufacture methamphetamine. On appeal, Hatfield argued that there was insufficient evidence of an agreement.

Proof of a formal agreement to commit a crime is not required for a conspiracy conviction. State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 521 (1943). In addition, the agreement required for a conspiracy need not be proved through evidence of a subjective meeting of the minds, but must be shown by evidence that objectively indicates an agreement. See State v. St. Christopher, 305 Minn. 226, 230-35, 232 N.W.2d 798, 801-03 (1975).

The state acknowledges that proof of the agreement in this case was circumstantial. To successfully challenge a conviction based solely on circumstantial evidence, the defendant must establish that the evidence in the record and the reasonable inferences that could be drawn therefrom are consistent with a rational hypothesis other than just the defendant’s guilt. State v. Steinbuch, 514 N.W.2d 793, 798-99 (Minn.1994); see also Walen, 563 N.W.2d at 749-50. Hatfield’s theory is that Theo-bald, as he testified, did not know that anhydrous ammonia was in either the propane tank or the red cooler, and therefore his act of bringing the tank and cooler to Hatfield does not indicate an agreement to manufacture methamphetamine.

In contrast, the state points to three pieces of evidence that could allow the jury to reasonably conclude that Hatfield and Theobald entered into a criminal agreement: evidence that Theobald delivered the propane tank and red cooler to Hatfield at Hatfield’s request; testimony that Theobald was under investigation for “drug-related activities”; and testimony that Hatfield associated with known drug users. This evidence, taken in the light most favorable to the verdict, is consistent with a rational hypothesis other than guilt, and not only consistent with Hatfield’s guilt.

The state claims that the evidence shows that Theobald knew of the contents of the tank and cooler and argues that a reasonable inference from that knowledge is that Hatfield and Theobald agreed to manufacture methamphetamine. The state must overcome the principle that consorting with an innocent courier does not constitute an agreement necessary for a conspiracy. See Burns, 215 Minn, at 188-89, 9 N.W.2d at 521 (quoting United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940): “Those having no knowledge of the conspiracy are not conspirators * * * and one who without more furnishes supplies * * * is not guilty of conspiracy even though his sale may have furthered the object of a conspiracy * * *.”) (first omission in Bums).

We note first that there is no direct evidence that Theobald knew that the tank and cooler contained anhydrous ammonia. Moreover, Theobald’s knowledge of what was in the tank and cooler is simply not particularly probative of an agreement to manufacture drugs. That is, Theobald’s knowledge of what was in the tank does not make it significantly more likely that Hatfield agreed with him to manufacture methamphetamine. In other cases, an inference of agreement from knowledge may be reasonable. However in this case— where there was no evidence of a common plan, concerted conduct, or prior involvement with the alleged co-conspirator — any inference of an agreement from knowledge, standing alone, is simply not reasonable. We emphasize that the focus of the inquiry is properly on whether there was objective evidence that Hatfield agreed with another to produce methamphetamine. See Minn.Stat. § 609.175. For purposes of assessing the sufficiency of this circumstantial evidence, Theobald’s knowledge of what was in the tank and red cooler does not “form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.” Wahlberg, 296 N.W.2d at 411.

The state also argues that Agent Kotewa’s statement that Theobald was under investigation for criminal activities is evidence of an agreement between Hatfield and Theobald to manufacture methamphetamine. Over Hatfield’s objection Kotewa testified that he believed Theobald would be arrested as a result of an ongoing criminal investigation. The officer also testified that he believed Theobald was “involved” with Hatfield. While the admissibility of such evidence is questionable in the first instance, that issue is not before us. The evidence indicates only that Theobald might be arrested for criminal activities' — -the very “activities” that give rise to this appeal. As such, the evidence says nothing about an agreement with Hatfield. In addition, the officer was not asked the basis for his belief that Theobald and Hatfield were “involved,” and mere involvement again does not establish an agreement to manufacture methamphetamine. Thus, taking the evidence in the light most favorable to the verdict, the evidence was insufficient to permit the jury to reach a guilty verdict on the conspiracy charge.

Finally, the state argues that the agreement was supported by the presence of drug paraphernalia and methamphetamine on Hatfield’s person and in Nowak’s trunk, and by Hatfield’s statement that he received the drugs from another methamphetamine user. With respect to the conspiracy charge, this evidence goes to Hatfield’s knowledge and perhaps an overt act, but says nothing about an agreement with another to manufacture methamphetamine. Thus, the evidence may have supported Hatfield’s convictions for possession, but does not lead to the conclusion that there was an agreement with another to manufacture methamphetamine.

To support a conspiracy conviction, the evidence must objectively indicate that at least one person conspired with another to commit a crime and that one or more of those persons performed an overt act in furtherance of the agreement. Minn.Stat. § 609.175. The conduct proved by the state established at most only that Theobald brought a propane tank and cooler to Hatfield at Hatfield’s request, and that Hatfield possessed drugs and drug paraphernalia. The evidence does not “ ‘form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.’ ” Webb, 440 N.W.2d at 430 (quoting Wahlberg, 296 N.W.2d at 411). Specifically, there was simply insufficient evidence, circumstantial or direct, of an agreement between Hatfield and another to manufacture methamphetamine. Therefore, the conspiracy conviction was properly reversed.

Affirmed.

      . During the state's case in chief, Agent Kote-wa was asked about Theobald:
      Q. * ⅜ * [W]as Anthony Theobald present at the scene?
      A. I remember seeing — yes. I remember seeing Tony.
      Q. Okay. And was Anthony Theobald arrested that evening?
      A. No, he was not.
      Q. Why wasn't he arrested that night.
      A. At that point, there was an on-going inves — Well, at that point, I did not see the probable cause to arrest him. I did not have all the facts at that point.
      Q. And why hasn't he been arrested since that time?
      A. I anticipate him getting arrested — ongoing criminal investigation.
      Q. You believe Anthony Theobald was involved with Michael Hatfield?
      A. Yes.

      . The state claims Theobald must have known of the contents based on the apparent odor of anhydrous ammonia. However, there was no evidence to indicate that Theobald actually recognized anything suspect about the items, nor was there evidence that an ordinary person would have inferred from the smell of anhydrous ammonia that methamphetamine was being made.