author: Kathleen A. Blatz Chief Justice

text:
    In re the CONSERVATORSHIP OF Joanne Marie RIEBEL.
    No. CX-01-53.
    Supreme Court of Minnesota.
    May 1, 2001.
   ORDER

A petition has been filed seeking review of the February 20, 2001, order of the court of appeals dismissing the appeal in the above-referenced case. Also filed with the petition was a document entitled Notice of Appeal to Supreme Court. Both the petition and the notice of appeal purport to be brought by Joanne Marie Rie-bel, but are signed only by Darlene C. Sammarco, who is not a lawyer. The notice of appeal states that “Sammarco has valid Durable Power of Attorney and Health Care Proxy dated October 31, 1996, which allows Sammarco to act on behalf of her daughter [Riebel] in legal matters.”

The appeal papers filed with the court of appeals were similarly signed only by Sammarco, and as a result, by order dated January 19, 2001, the court of appeals determined that it would treat the appeal as one on behalf of Sammarco, rather than Riebel. Sammarco then filed papers insisting that the appeal was filed on behalf of Riebel. By order dated February 20, 2001, the court dismissed the appeal as untimely and for failure to pay the required filing fee. The petition for review to this court followed.

By order dated March 7, 2001, we required petitioner to file an informal legal memorandum (1) stating whether the petition was filed on behalf of Joanne Marie Riebel or Darlene C. Sammarco, and (2) if the petition was filed on behalf of Riebel and assuming the asserted power of attorney to be valid, addressing whether a power of attorney authorizes a nonlawyer attorney-in-fact to represent the principal in eourt proceedings in light of this court’s ruling in Prior Lake State Bank v. Mahoney, 298 Minn. 567, 216 N.W.2d 681 (1974), and the provisions of Minn.Stat. §§ 481.02 and 523.24 (2000).

Darlene Sammarco filed a memorandum asserting that the petition was filed on behalf of Riebel and that the October 31, 1996 power of attorney authorizes her to litigate claims on behalf of her daughter. She also argues that she is authorized by Minn.Stat. § 501B.81, subd. 25 as a trustee of Riebel’s estate and an irrevocable “special needs trust” to prosecute or defend actions, claims, or proceedings for the protection of the trust and other assets. The court-appointed conservator for Riebel filed a responsive memorandum asserting that the power of attorney is invalid and that in any event, it does not authorize Sammarco to represent Riebel in court proceedings.

For the protection of the public, this court limits the practice of law to licensed attorneys. E.g., Gardner v. Conway, 234 Minn. 468, 477, 48 N.W.2d 788, 794 (1951). The legislature has also prohibited the unauthorized practice of law. Minn.Stat. § 481.02. Although a person who is not a licensed attorney may represent themselves in court, they may not represent others. Minn.Stat. § 481.02, subd. 1 (2000).

The question presented here is whether the power of attorney granted to Sam-marco by Riebel authorizes Sammarco, a nonlawyer, to sign pleadings on behalf of Riebel and appear for her in court proceedings. In Prior Lake State Bank v. Mahoney, we rejected a defendant’s claim that the execution of a power of attorney was sufficient to authorize a disbarred attorney to represent the defendant at trial. 298 Minn, at 568, 216 N.W.2d at 682. Albeit without any discussion, we characterized that claim as frivolous. Id. We find no more merit in Sammarco’s similar argument and discern no basis on which to distinguish Prior Lake State Bank. It matters not that the attorney-in-fact in Prior Lake State Bank was a disbarred attorney. In terms of authority to practice law, a disbarred attorney stands in the same shoes as someone who was never licensed to practice law.

The scope of authority conferred on an attorney-in-fact by the execution of a power of attorney is defined by statute. See Minn.Stat. § 523.24. Regarding claims and litigation, the statute provides that a power of attorney authorizes the attorney-in-fact “to assert and prosecute before any court * * * any cause of action, claim, counterclaim, offset, or defense, which the principal has.” Id., subd. 10(1). With respect to various types of other transactions, the statute provides that the principal authorizes the attorney-in-fact “to prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to, any claim existing in favor of, or against, the principal.” E.g., id., subds. 2(8), 6(11). The language of these provisions of the power of attorney statute is similar to that used in the trust statute on which Sammarco relies, Minn.Stat. § 501B.81, subd. 28.

We do not construe the authorizations in section 523.24 for an attorney-in-fact to assert and prosecute claims to empower the attorney-in-fact to appear as the attorney-at-law in asserting and prosecuting those claims. So construed, the power of attorney statute would allow anyone to authorize another person, regardless of their qualifications, to practice law on their behalf, providing a very easy means of circumventing the prohibition against the unauthorized practice of law in Minn.Stat. § 481.02. We will not construe a statute in a way that creates such an absurd result. See Minn.Stat. § 645.17(1) (2000). More importantly, even if intended by the legislature, such a construction of the statute would undermine this court’s exclusive authority to regulate the practice of law and would violate the doctrine of separation of powers. We are constrained to interpret statutes to preserve their constitutionality. See Minn.Stat. § 645.17(3) (2000). Therefore, we do not interpret the relevant provisions of section 523.24 to mean that a power of attorney authorizes an attorney-in-fact to practice law. For the same reasons, Minn.Stat. § 501B.81, subd. 28 does not authorize a nonattorney trustee to practice law.

The more reasonable interpretation of the statutory language is that a power of attorney authorizes the attorney-in-fact to act on behalf of the principal as the client in an attorney-client relationship. Accord Christiansen v. Melinda, 857 P.2d 345, 349 (Alaska 1993). That is, the attorney-in-fact may make decisions concerning litigation-for the principal, but a nonlawyer attorney-in-fact is not authorized to act as an attorney to implement those decisions. Consistent with this reading, Minn.Stat. § 523.24, subd. 10(8) (2000) authorizes an attorney-in-fact to hire an attorney-at-law to act on behalf of the principal.

Our conclusion that a power of attorney does not authorize a nonlawyer to practice law is consistent with the statutory language, our ruling in Prior Lake State Bank, and our inherent power to regulate the practice of law for the protection of the public. It is also consistent with the rulings of numerous other states that have addressed the issue, each of which has held that a power of attorney does not authorize a nonlawyer to practice law on behalf of the principal. Christiansen, 857 P.2d at 349; Drake v. Superior Court, 21 Cal.App.4th 1826, 26 Cal.Rptr.2d 829 (1994); Haynes v. Jackson, 744 A.2d 1050 (Me.2000); Risbeck v. Bond, 885 S.W.2d 749 (Mo.Ct.App.1994); Estate of Friedman, 126 Misc.2d 344, 482 N.Y.S.2d 686 (N.Y. Sur. Ct.1984); Office of Disciplinary Counsel v. Coleman, 88 Ohio St.3d 155, 724 N.E.2d 402 (2000); Kohlman v. W. Pa. Hosp., 438 Pa.Super. 352, 652 A.2d 849 (1994).

Accordingly, we hold that Darlene Sam-marco, a nonlawyer, is not authorized to litigate this matter on behalf of Joanne Marie Reibel. The petition will therefore be dismissed.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition for further review of Joanne Marie Reibel be, and the same is, dismissed.

BY THE COURT

Kathleen A. Blatz Chief Justice

      . Presumably Sammarco means Minn.Stat. § 501B.81, subd. 28 (2000), which authorizes the trustee of a trust to "prosecute or defend actions, claims, or proceedings for the protection of trust assets and of the trustee in the performance of duties."

      . For the purposes of this order, we assume, without deciding, that the power of attorney is valid.

      . While the regulation of the practice of law “is peculiarly within the control of the judicial branch of the government," we have recognized legislative enactments concerning the practice of law as a matter of comity as long as they are reasonable and in harmony with this court's exercise of its authority to regulate the bar. Cowern v. Nelson, 207 Minn. 642, 646, 647, 290 N.W. 795, 797 (1940); see Sharood v. Hatfield, 296 Minn. 416, 424, 210 N.W.2d 275, 279 (1973).

      .Minnesota Statutes § 481.02, subd. 1 states, in relevant part:
      It shall be unlawful for any person * * * except members of the bar of Minnesota admitted and licensed to practice as attorneys at law, to appear as an attorney or counselor at law in any action or proceeding in any court in this state to maintain, conduct, or defend the same, except personally as a party thereto in other than a representative capacity * * *.

      . We also note the distinction between the general language used in most of the subdivisions of section 523.24 to include the authority to prosecute and defend claims and the more specific language used in relation to bankruptcy and insolvency proceedings where the legislature empowers an attorney-in-fact to "appear for, represent, and act for the principal.” Id., subd. 10(7) (emphasis added). While we reach no conclusion about the scope of the authority granted in subdivision 10(7), it seems unlikely the legislature meant to convey authority to appear and represent the principal in other types of proceedings for which it did not use such express language.


source: Caselaw Access Project

author: STONEBURNER, Judge

license: Public Domain

text:
    Aaron BOATWRIGHT, Respondent, v. Samuel A. BUDAK, Defendant, ALAMO RENT-A-CAR, INC., Appellant.
    No. C3-00-1843.
    Court of Appeals of Minnesota.
    April 24, 2001.

      Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, MN; and Joel A. Montpetit, William J. Kranz, Montpetit, Freiling, Kranz & Marlow, St. Paul, MN, (for respondent).
    William M. Hart, Melissa Dosick Rei-thof, Meagher & Geer, P.L.L.P., Minneapolis, MN, (for appellant).
    Considered and decided by STONEBURNER, Presiding Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.
   OPINION

STONEBURNER, Judge

Respondent passenger sued appellant Alamo Rent-A-Car, Inc. and the driver of a rented car for injuries resulting from an accident caused by the driver in Iowa. Alamo moved to limit its liability to $100,000, pursuant to Minn.Stat. § 170.54 (2000). The district court denied the motion, concluding that Iowa law, which has no limit on a rental-car company’s vicarious liability, applies. Alamo appeals.

FACTS

The facts underlying this litigation are undisputed. Samuel Budak rented a car from appellant Alamo Rent-A-Car at the Minneapolis International Airport on August 13, 1998. Budak and his passenger, Minnesota-resident-respondent Aaron Boatwright, drove from Minnesota to Iowa on August 14, 1998. In Iowa, Budak crossed the centerline and collided head-on with a vehicle carrying three Iowa residents. Two of the Iowa residents were killed. Boatwright and the third Iowa resident were seriously injured.

Iowa, like Minnesota, provides for the vicarious liability of automobile owners whose cars are operated within the state with the owner’s permission, but unlike Minnesota, Iowa does not provide a cap on the vicarious liability of a rental-car owner.

Boatwright brought a lawsuit in Minnesota against Budak for negligence and against Alamo for vicarious liability for Budak’s' negligence. Alamo moved to limit its liability to $100,000, pursuant to Minn. Stat. § 65B.49 (1998). Alamo argued before the district court that Minnesota’s liability cap on rental-car owners’ vicarious liability created a conflict between the laws of Iowa and Minnesota, triggering a choice-of-laws analysis, pursuant to which Minnesota law should apply to this accident. Boatwright argued that Minn.Stat. § 170.54 did not apply to accidents outside of the state of Minnesota. Boatwright asserted to the district court, and Alamo did not dispute, that absent application of the Minnesota statute, there is no conflict of law and Iowa’s vicarious-liability statute applies. The district court held that Minn. Stat. § 170.54 does not apply to accidents occurring outside the state of Minnesota, that there was no actual conflict of law requiring a choice-of-law analysis, and that Boatwright was entitled to bring a vicarious-liability claim against Alamo under Iowa Code § 321.493 (2001). The parties entered into a stipulated settlement preserving Alamo’s right to appeal the issue of the application of Minn.Stat. § 170.54. This appeal followed.

ISSUES

1. Does Minn.Stat. § 170.54 (2000) apply to accidents that occur outside of Minnesota?
2. Under a choice-of-law analysis, should Minnesota or Iowa law apply in this case?

ANALYSIS

1. Application of Minn.Stat. § 170.54

a. Standard of Review

Statutory construction is a question of law that this court reviews de novo. American Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000); see Norton v. Tri-State Ins. Go., 590 N.W.2d 649, 651-52 (Minn.App.1999) (indicating application of statute to undisputed facts involves a question of law), review denied (Minn. May 26, 1999). “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (2000). If a statute, construed according to ordinary-rules of grammar, is unambiguous, a court may engage in no further statutory construction and must apply its plain meaning. State by Beaulieu v. RSJ, Inc. 552 N.W.2d 695, 701 (Minn.1996); see Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986) (recognizing where statute is unambiguous, effect must be given to its plain meaning). Whether language is ambiguous is a question of law; language is ambiguous if it is reasonably subject to more than one interpretation. State by Beaulieu, 552 N.W.2d at 701.

b. Construction of Minn.Stat. § 170.54

According to the legislature, an owner of an automobile is vicariously liable for the acts of a permissive user:

Whenever any motor vehicle shall be operated within this state, by any person other than the owner, with the consent of the owner, express or implied, the operator thereof shall in case of accident, be deemed the agent of the owner of such motor vehicle in the operation thereof.

Minn.Stat. § 170.54 (2000). The purpose of Minn.Stat. § 170.54 is to make the owner liable to those injured where no liability would otherwise exist, giving an injured person more certainty of recovery by encouraging owners to obtain appropriate liability coverage. Milbank Mut. Ins. Co. v. United States Fid. & Guar. Co., 332 N.W.2d 160, 165 (Minn.1983); Shuck v. Means, 302 Minn. 93, 96, 226 N.W.2d 285, 287 (1974). The supreme court has consistently stated that courts must construe the statute liberally to achieve its purpose. Milbank Mut., 332 N.W.2d at 165-66.

Alamo argues that Minn.Stat. § 170.54 applies to accidents that occur outside of Minnesota, so long as the vehicle was operated in this state at some time prior to the accident. Alamo relies on Ewers v. Thunderbird Aviation, Inc., 289 N.W.2d 94 (Minn.1979). Ewers involved consolidated actions against the owners of aircraft rented in Minnesota that crashed outside of Minnesota. Id. at 95. The issue in Ewers was whether Minn.Stat. § 360.0216 imposes vicarious liability on an aircraft owner when the pilot’s negligent acts and the impact of the aircraft occurred in another state. Id. at 96. All parties in Ewers agreed that Minnesota law applied and the only issue was the meaning of the Minnesota law. Id. at 97. The majority in Ewers’ five-to-four decision found that the statute imposing vicarious liability on aircraft owners is ambiguous because it does not contain a geographical limitation on the phrase “in case of accident”:

When an aircraft is operated within the airspace above this state or upon the ground surface or waters of this state by a person other than the owner, with the consent of the owner, expressed or implied, the operator shall in case of accident be deemed the agent of the owner of the aircraft in its operation.

Minn.Stat. § 360.0216 (2000). Having found an ambiguity, the supreme court searched for legislative intent and reasoned that in addition to giving effect to the legislative purpose of providing greater certainty of recovery to those injured by the negligent operation of an airplane, the legislature did not contemplate that vicarious liability would dissolve every time an aircraft left Minnesota air space, given the interstate nature of air travel. Id. at 98. The supreme court noted that even flights to destinations within the state frequently involve traveling over the airspace of other states or use of facilities in other states. Id. The Ewers court construed Minn.Stat. § 360.0216 as requiring only that an aircraft be operated in Minnesota at some point during its flight for the statute to apply. Id. at 99. The supreme court clarified, however, that their interpretation of the statute would not operate to automatically impose liability on an aircraft owner for an accident in another state just because the plane happened to fly over Minnesota, as the applicable conflict-of-laws principles must first establish that Minnesota law controls the cause of action in question. Id. at 98 n. 5.

The appellate courts have not yet addressed the issue of whether the statute imposing vicarious liability on owners of automobiles permissively operated in Minnesota applies to accidents occurring outside the state. Alamo urges this court to apply the reasoning in Ewers to the construction of Minn.Stat. § 170.54. Recently, however, the federal district court in Minnesota addressed the applicability of Minn.Stat. § 170.54 under facts virtually identical to this case. See Avis Rent-A-Car Sys. v. Vang, 123 F.Supp.2d 504 (D.Minn.2000). In Avis, Vang rented a vehicle from Avis Rent-A-Car in Minneapolis for a trip to Michigan. 123 F.Supp.2d at 505. While in Michigan, the vehicle was involved in an accident, which killed three of Vang’s passengers (one of whom was a family member), and seriously injured another. Id. at 506. Avis sought a declaratory judgment that it could not be held vicariously liable under Minn.Stat. § 170.54 because the accident occurred in Michigan, not Minnesota. Id. The defendants, relying on Ewers, took the same position that Alamo asserts here: that the Minnesota statute applies whenever the vehicle is operated in Minnesota at some point during the journey. Id. at 506-07.

The federal district court found the analogy unconvincing, however, and interpreted Minn.Stat. § 170.54 according to its plain language. Id. at 507; see Minn.Stat. § 645.16 (expressing purpose of statutory interpretation is to effectuate legislative intent, and when words of a statute are unambiguous, “the letter of the law shall not be disregarded under the pretext of pursuing the spirit”); see, e.g., United States v. McAllister, 225 F.3d 982, 986 (8th Cir.2000) (stating statutory interpretation always begins with language of statute itself and, if plain language of statute is unambiguous, that language is conclusive). According to Avis, the statute’s plain language “[wjhenever any motor vehicle shall be operated within this state, * * * the operator thereof shall in case of accident,” means that the location of the accident must be read together with where the vehicle is currently being operated. 123 F.Supp.2d at 507. Avis determined that the case before it was not “Ewers on land,” as the defendants had suggested, and held that “§ 170.54 does not apply to accidents occurring outside Minnesota, even when the vehicle was operated within Minnesota at some point in the trip.” Id.

This court is not bound by the Avis holding. See Northpointe Plaza v. City of Rochester, 457 N.W.2d 398, 403 (MinnApp.1990) (noting state courts not bound by federal court decisions even as to construction of federal statutes), ajfd 465 N.W.2d 686 (Minn.1991); Jendro v. Honeywell, Inc., 392 N.W.2d 688, 691 n. 1 (Minn.App.1986) (noting although statutory construction of federal law by federal courts is entitled to due respect, this court is bound only by statutory interpretations of Minnesota Supreme Court and United States Supreme Court), review denied (Minn. Nov. 19, 1986); see also Rasheed v. Chrysler Corp., 445 Mich. 109, 517 N.W.2d 19, 27 n. 20 (1994) (“Although federal" precedent is persuasive, it is not binding on state courts.”). Nevertheless, we find the reasoning in Avis sound and persuasive.

The Avis court reasoned that § 170.54’s use of the word “thereof’ linked the statute’s accident clause to its operation clause. 123 F.Supp.2d at 507. The Avis court found that the absence of “thereof’ from the aviation statute distinguishes it from § 170.54. Id. The term “thereof’ is defined as: “1. Of or concerning this, that, or it. 2. From that cause or origin; therefrom.” American Heritage Dictionary of the English Language 1795 (4th ed.2000). Looking at the key phrases of the motor vehicle statute, “[w]henever any motor vehicle shall be operated within this state, * * * the operator thereof shall in case of accident,” “thereof’ concerns “any motor vehicle * * * operated within this state.” (Emphasis added.) Employing a plain-meaning approach, we hold that Minn.Stat. § 170.54 applies only to accidents that occur within Minnesota.

2. Choice-of-law

a. Posture of case in district court

The parties told the district court that if MinmStat. § 170.54 was found not to apply to out-of-state accidents, the district court would not need to engage in a choice-of-law analysis. This posture may be explained by the fact that although the parties argued about the applicability of the vicarious-liability statute to out-of-state accidents, the focus was on the liability cap:

Notwithstanding section 170.54, an owner of a rented motor vehicle is not vicariously liable for legal damages resulting from the operation of the rented motor vehicle in an amount greater than $100,000. '

Minn.Stat. § 65B.49, subd. 5a(i)(2) (2000).

Iowa imposes no limit on the amount of damages recoverable from the owner of a rental vehicle. See Iowa Code § 321.493 (2001). Without Minn.Stat. § 65B.49, there is no conflict between the Minnesota and Iowa vicarious-liability statutes. Unlike Avis in the federal case discussed previously, here neither party advanced the argument below that if MinmStat. § 170.54 does not apply to out-of-state accidents, Alamo has no liability at all. Both parties told the district court that a choice-of-law analysis was necessary only if the statute applies. Boatwright argued to the district court, as he does on appeal, that “appellant’s ‘choice of law” analysis is a straw man in search of a red herring. It is irrelevant because * * * Minnesota’s statute has geographic limitations, leaving only the Iowa law as applicable to the Iowa accident. * * * Minnesota’s law does not apply, so no conflict analysis is necessary.” Alamo, although correctly noting to the district court that without the statute there would be no basis for imposing owner liability in Minnesota, never disputed Boatwright’s contention that if the Minnesota statute did not apply there would be no conflict and Iowa law would govern. At oral argument on appeal, however, Alamo advanced what appears to be the correct legal analysis: that a choice-of-law analysis is necessary even if Minn.Stat. § 170.54 does not apply to out-of-state accidents because the conflict in law is that there would be no vicarious liability for the rental-car owner under Minnesota law in this circumstance and there would be unlimited vicarious liability under Iowa law.

“To argue a different theory on appeal typically precludes review.” Genung v. Commissioner of Pub. Safety, 589 N.W.2d 311, 313 (Minn.App.1999), review denied (Minn. May 18, 1999); Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (holding that issue raised below but argued under new theory on appeal is generally not renewable). “We may, however, review any matter ‘as the interest of justice may require.’ ” Genung, 589 N.W.2d at 313 (citing Minn. R. Civ.App. P. 103.04). Because the choice-of-law factors were thoroughly discussed below, albeit in the context of the conflict created by the liability cap, we find it in the interest of justice to address the issue rather than decline review.

Under the. unique facts of this case, application of choice-of-law factors leads to the conclusion that Iowa law should be applied in this case. There is a conflict of law, as described above. See Nodak Mut. Ins. Co. v. American Family Mut. Ins. Co., 604 N.W.2d 91, 93-94 (Minn.2000) (noting before choice-of-law analysis can be applied, court must determine a conflict exists between laws of two forums); Jepson v. General Cas. Co., 513 N.W.2d 467, 469 (Minn.1994) (indicating first step in analyzing choice-of-law question is whether choice of one state’s law over another’s creates actual conflict). The parties agree there is no constitutional barrier to application of either state’s law to this accident. See Jepson, 513 N.W.2d at 469 (indicating second step in analysis is whether the law of both states can be constitutionally applied).

The five choice-influencing factors are:

(1) predictability of result; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum’s governmental interest; and (5) application of the better rule of law.

Jepson, 513 N.W.2d at 470; Milkovich v. Saari, 295 Minn. 155,161, 203 N.W.2d 408, 412 (1973). The parties agree that factors (1), (2), and (3) are not significant in this case. See Milkovich, 295 Minn, at 161, 203 N.W.2d at 412 (pointing out that only the last two elements of the five-point methodology for resolving conflict questions are relevant to tort cases).

The fourth factor, interest of the forum state, is concerned with which law most advances a significant interest of the forum. Jepson, 513 N.W.2d at 472. Under the facts of this case, application of Minnesota law would result in no vicarious liability on the vehicle’s owner, despite Minnesota’s express interest in there being such liability. The supreme court has stated:

Minnesota places great value in compensating tort victims. We have even refused to apply our law when the law of another state would better serve to compensate a tort victim.

Id. (citing Bigelow v. Halloran, 313 N.W.2d 10, 12-13 (Minn.1981) (noting that Minnesota and Iowa both had significant contacts with the subject of litigation, but choosing Iowa law because it was the “better rule of law”)). Therefore, application of Iowa law to this case will most advance Minnesota’s significant interest in giving injured persons more certainty of recovery and imposing responsibility for the operation of vehicles on the owners of those vehicles.

In this case, Iowa law best serves Minnesota’s interest in compensating tort victims. This interest outweighs the state’s interest in providing a cap on the liability of rental-car owners, as illustrated by the relatively high limit of liability imposed on such owners (almost three times the mandatory minimum coverage in Minnesota of $30,000).

The fifth factor, better rule of law, has not been given any emphasis for many years and was therefore not addressed by the parties below. See Nodak, 604 N.W.2d at 96. Application of the better rule of law, however, was the significant factor in finding that Iowa’s survival statute better advanced Minnesota’s interest in seeing that tort victims are fully compensated. See Bigelow 313 N.W.2d at 13 (quoting R. Leñar, Conflicts Law: More on Choice-Influencing Considerations, 54 Cal. L.Rev. 1584, 1588 (1966) (“[T]he inclination of any reasonable court will be to prefer rules of law which make good socio-economic sense for the time when the court speaks, whether they be its own or another state’s rules.”)). As in Bigelow, the better-rule-of-law analysis results in the application of Iowa law to this case.

We hold that a choice-of-law analysis results in the application of Iowa’s vicarious-liability law to this accident.

DECISION

Minn.Stat. § 170.54, which imposes vicarious liability on automobile owners for the negligence of permissive drivers, does not apply to accidents that occur outside of Minnesota. Applying a choice-of-law analysis results in application of Iowa’s vicarious-liability law to this case because Iowa law most advances the interests of Minnesota in seeing that tort victims are compensated.

Affirmed.

      . This language has remained unchanged since 1976.

      . In Ewers, the supreme court briefly addressed Minn.Stat. § 170.54, but only to clarify that in an earlier case, Darian v. McGrath, 215 Minn. 389, 10 N.W.2d 403 (1943), the court stopped short of determining whether the motor-vehicle statute applied to out-of-state accidents. Ewers, 289 N.W.2d at 98-99.

      . This court held in an unpublished opinion that Minn.Stat. § 170.54 “explicitly limits its application to motor vehicles operated 'within this state;' " but in that case the involved vehicle was never driven within the state of Minnesota. See Lord v. Kronick, No. C5-941946, 1995 WL 34830 (Minn.App. Jan. 31, 1995).

      . Nodak holds that "when all other relevant choice-of-law factors favor neither state’s law, the state where the accident occurred has the strongest governmental interest,” and that state’s law should be applied. 604 N.W.2d at 96.


author: SHUMAKER, Judge.

text:
    In re the Marriage of Barbara A. RICHTER, Petitioner, Respondent, v. Kevin J. RICHTER, Appellant.
    No. C4-00-1656.
    Court of Appeals of Minnesota.
    May 1, 2001.

      Michael L. Gjesdahl, Gjesdahl & Deitz, PLLP, Fargo, ND, (for respondent).
    John Remington Graham, Quebec Canada, (for appellant).
    Considered and decided by PETERSON, Presiding Judge, SHUMAKER, Judge, and PORITSKY, Judge.

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

   OPINION

SHUMAKER, Judge.

The district court set a May 8, 2000 “final hearing” to dissolve the marriage of appellant-husband Kevin Richter and respondent-wife Barbara Richter. Husband moved to dismiss the proceeding, alleging, among other things, that marriage was a contract and that the dissolution statutes violated the provisions in the United States and Minnesota Constitutions prohibiting statutes that interfere with the right to contract. Husband’s motion stated it would be heard on May 8. The district court dismissed husband’s motion, stating the hearing set for May 8 was cancelled. On May 8, after denying husband’s request for a continuance, husband withdrew from the courtroom, and the district court took testimony from wife. The district court later dissolved the marriage and denied husband’s posttrial motion. Husband appeals. Because the district court correctly rejected husband’s challenge to the dissolution and did not abuse its discretion in denying a continuance, we affirm.

FACTS

The parties married in 1983 and wife petitioned to dissolve the marriage in September 1999. Husband opposed wife’s attempts to dissolve the marriage. In early April 2000, the district court set a “final hearing” for May 8 and granted the motion of husband’s attorney to withdraw. On April 25, husband, pro se, moved to dismiss the proceeding, alleging, among other things, that (a) there was no irretrievable breakdown of the marriage; (b) marriage is a contract; and (c) the statutes allowing dissolution of a marriage infringed on the constitutional right to contract. Husband’s motion stated it would be heard on May 8.

On April 26, the district court, sua sponte, dismissed husband’s motion in an order stating that the hearing set for May 8 was cancelled. Two days later, wife’s attorney sent husband a letter stating that the May 8 hearing that had been canceled was the hearing on husband’s motion, not the hearing for the dissolution. Husband disagreed. On May 3, husband sent a letter to the district court administrator asking for notice of when the case would be rescheduled and asking for a continuance. On Friday May 5, the district court, trying to remove any confusion, stated the dissolution hearing would occur on May 8. Also on May 5, the district court administrator received a fax and a phone call from an attorney stating he was negotiating terms for representing husband but had not yet been retained and that he would need a 60-day continuance of the proceeding.

At the May 8 hearing, husband (still pro se) asked for a continuance, the district court denied the request, husband withdrew from the courtroom, and the district court took testimony from wife. An amended judgment dissolving the parties’ marriage was entered on May 26 and husband, after the denial of his posttrial motion, appeals.

ISSUES

1. Does Minnesota’s dissolution statute allow “divorce on demand”?

2. Is marriage a contract for purposes of the Contract Clauses of the United States and Minnesota Constitutions?

3. Did the district court abuse its discretion by denying husband’s request for continuance?

ANALYSIS

Minnesota allows marriages to be dissolved if there has been an “irretrievable breakdown of the marriage relationship.” Minn.Stat. § 518.06, subd. 1 (2000); see Minn.Stat. § 518.10(g) (2000) (requiring dissolution petition to allege “irretrievable breakdown of the marriage relationship”). While husband denies challenging the constitutionality of the Minnesota’s dissolution statute, he argues that to be constitutional, the statute cannot be construed to allow “divorce on demand” because that would interfere with his right to contract. See U.S. Const, art. I, § 10 (prohibiting laws “impairing the obligation of contracts”); Minn. Const, art. I, § 11 (same). To challenge the dissolution of his marriage on these grounds is to functionally argue that the dissolution statute was applied to grant wife a “divorce on demand,” thereby unconstitutionally depriving husband of his right to contract. Such an argument assumes that the Minnesota dissolution statutes allow “divorce on demand” and that marriage is a contract. Both assumptions are incorrect.

I.

In Minnesota, if there is a dispute about whether a marriage is irretrievably broken, “the court shall consider all relevant factors” and find whether the marriage is irretrievably broken. Minn. Stat. § 518.13, subd. 2 (2000). “Irretrievable breakdown” occurs when “there is no reasonable prospect of reconciliation.” Id. To find irretrievable breakdown of a marriage in a case where the existence of such a breakdown is contested,

[t]he finding [of irretrievable breakdown] must be supported by evidence that (i) the parties have lived separate and apart for a period of not less than 180 days immediately preceding the commencement of the proceeding, or (ii) there is serious marital discord adversely affecting the attitude of one or both of the parties.

Id. Here, the parties had been separated, but not for 180 days, before wife petitioned to dissolve the marriage. The district court, however, believed wife’s testimony about the state of the parties’ marriage and found an irretrievable breakdown of the marriage. A party’s testimony is a sufficient basis for a finding of irretrievable breakdown of a marriage. See Hagerty v. Hagerty, 281 N.W.2d 386, 388 (Minn.1979) (stating irretrievable breakdown “can also be shown by evidence of only one party’s belief that it is the existing state, particularly where the parties have been living apart”); Hollander v. Hollander, 359 N.W.2d 55, 56-57 (Minn.App.1984) (affirming finding of irretrievable breakdown noting that, among other things, it was supported by wife’s testimony). A statute that requires proof of “no reasonable prospect of reconciliation” and “serious marital discord adversely affecting the attitude of one or both of the parties” before a marriage can be dissolved does not allow “divorce on demand.” Moreover, husband’s withdrawal from the courtroom means he neither entered evidence contrary to wife’s assertions on this point nor cross-examined her regarding the state of the marriage. Thus, the only evidence regarding the state of the parties’ marriage was wife’s uncontradicted testimony.

II.

Marriage, “so far as its validity in law is concerned,” is a contract. Minn. Stat. § 517.01 (2000). That marriage is a contract for determining its validity does not mean marriage is a contract in the usual sense of that term. The basis for husband’s argument that marriage is a contract is Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 4 L.Ed. 629 (1819). There, the parties litigated whether a charter granted to certain college trustees was a contract and, if so, whether it could be altered by laws passed by the state legislature. 17 U.S. (4 Wheat.) at 625-27. The Court held that the charter was a contract. 17 U.S. (4 Wheat.) at 627. It then addressed whether that contract was protected by the Contract Clause of the U.S. Constitution. In doing so, the breadth to be given the term “contract” was disputed. One of several arguments against a broad construction of “contract” was:

That even marriage is a contract, and its obligations are affected by the laws respecting divorces. That the clause in the constitution, if construed in its greatest latitude would prohibit these laws.

17 U.S. (4 Wheat.) at 627-28. The Court ruled that “the term ‘contract’ must be understood in a more limited sense.” 17 U.S. (4 Wheat.) at 628. In addressing the argument regarding divorce, the Court noted:

[The contract clause] never has been understood to restrict the general right of the legislature to legislate on the subject of divorces. Those acts enable some tribunal, not to impair a marriage contract, but to liberate one of the parties because it has been broken by the other. When any state legislature shall pass an act annulling all marriage contracts, or allowing either party to annul it without the consent of the other, it will be time enough to inquire whether such an act be constitutional.

17 U.S. (4 Wheat.) at 629 (emphasis added). The emphasized text is the crux of husband’s argument. In a case involving whether a charter for a college is a contract protected by the U.S. Constitution, it is at best dictum. See State ex rel. Foster v. Naftalin, 246 Minn. 181, 208, 74 N.W.2d 249, 266 (1956) (stating dicta “generally is considered to be expressions in a court’s opinion which go beyond the facts before the court and therefore are the individual views of the author of the opinion and not binding in subsequent cases.”). Additionally, to read the dictum stating that “there will be time enough to inquire” whether a divorce statue is constitutional, as saying that such statutes are un constitutional is both to misread the dictum and to read the dictum as containing an advisory opinion. See Princeton Univ. v. Schmid, 455 U.S. 100, 102, 102 S.Ct. 867, 869, 70 L.Ed.2d 855 (1982) (stating courts do not sit “to give advisory opinions about issues as to which there are not adverse parties before [it]”). Thus, Dartmouth cannot be read to support the idea that marriage is a contract within the meaning of the U.S. Constitution.

Any doubt about the meaning of Dartmouth was eliminated in Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888). There, a husband moved away from his wife and to the Oregon Territory. Once there, he, without the knowledge or consent of his wife, procured a divorce. Later, he died. In the resulting litigation involving his estate, the validity of the divorce was questioned. The Supreme Court stated:

The organic act [of the Territory] extends the legislative power of the territory to all rightful subjects of legislation “not inconsistent with the constitution and laws of the United States.” The only inconsistency suggested is that it impairs the obligation of the contract of marriage. Assuming that the prohibition of the federal constitution against the impairment of contracts by state legislation applies equally, as would seem to be the opinion of the supreme court of the territory, to legislation by territorial legislatures, we are clear that marriage is not a contract within the meaning of the prohibition. As was said by Chief Justice Marshall in the Dartmouth College Case, not by way of judgment but in answer to objections urged to positions taken: “The provision of the constitution never has been understood to embrace other contracts than those which respect property or some object of value, and confer rights which may be asserted in a court of justice. It never has been understood to restrict the general right of the legislature to legislate on the subject of divorces.”

Maynard, 125 U.S. at 210, 8 S.Ct. at 729 (emphasis added).

Husband argues that Maynard is not binding because it misconstrues Dartmouth and was wrongly decided. Husband, however, cites no authority allowing this court to ignore, correct, or overrule the United States Supreme Court regarding the meaning of the United States Constitution.

Because husband incorrectly reads the Minnesota dissolution statute to allow “divorce on demand” and because he misreads the Supreme Court’s statements on the subject of whether marriage is a contract, we need not address whether Minnesota’s dissolution statutes must be construed in a manner different from the way they were applied here.

III.

Husband challenges the denial of his request for a continuance. Whether to grant a continuance is discretionary with the district court. Kate v. Kate, 234 Minn. 402, 410, 48 N.W.2d 551, 557 (1951). The critical question in evaluating a continuance “is whether a denial prejudices the outcome of the trial.” Jones v. Jones, 402 N.W.2d 146, 150 (Minn.App.1987). In denying the continuance, the district court stated (a) the request was not timely; (b) husband had adequate time to hire counsel; (c) the April 26 order cancelled the hearing on husband’s motion to dismiss, not the “trial”; (d) it was “very obvious” husband believed the dissolution hearing was set for May 8 because he sought a continuance; and (e) husband requested the continuance for delay. On this record, these findings are supported and husband has not shown that the district court abused its discretion in denying his request for a continuance. Indeed, that husband’s request was made for the purpose of delay is a determination that husband did not act in good faith, and one to which we must defer. See Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723, 728 (Minn.1985) (whether party acts in good faith is, essentially, credibility question); Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988) (appellate courts defer to district court credibility determinations).

DECISION

The Minnesota dissolution statues do not allow “divorce on demand,” marriage is not a contract for purposes of the Contract Clauses of the United States and Minnesota Constitutions, and husband has not shown that the district court abused its discretion in denying his request for a continuance. Therefore, we affirm the district court.

Affirmed.

      . Husband’s argument focuses on the U.S. Constitution. Therefore, this opinion does as well.

      . That Maynard refers to the relevant portion of Dartmouth as having been stated “not by way of judgment,” shows that Maynard recognized Dartmouth’s discussion of divorce was dictum.

      . Even if marriage is a contract, appellant failed to introduce any evidence of the terms of his “contract.” Therefore, the terms of his “contract” would be those provided by statute. And, the statute provides that a marriage can be dissolved if it is irretrievably broken. Thus, to prevail in this appeal, husband would have to show that the district court's finding of an irretrievable breakdown of the marriage is clearly erroneous. See Minn. R. Civ. P. 52.01 (stating findings of fact not set aside unless clearly erroneous). When reviewing findings of fact, we view the record in the light most favorable to the district court’s findings. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn.App.2000). Here, because husband withdrew from the courtroom, wife entered the only evidence on the state of the marriage. Viewing that evidence in the light most favorable to the district court's finding that the parties' marriage was irretrievably broken, the finding is not clearly erroneous.


author: STONEBURNER, Judge SCHUMACHER, Judge

text:
    Kirk N. GOMON, et al., etc., Appellants, v. NORTHLAND FAMILY PHYSICIANS, LTD. and Harvey D. Smith, M.D., Respondents.
    No. C8-00-1465.
    Court of Appeals of Minnesota.
    May 1, 2001.

      Reed K Mackenzie, Mark Hallberg, Mackenzie & Hallberg, P.A., Minneapolis, MN, (for appellants).
    William M. Hart, Rodger A. Hagen, Meagher & Geer, P.L.L.P., Minneapolis, MN, (for respondents).
    Considered and decided by SCHUMACHER, Presiding Judge, KALITOWSKI, Judge, and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge

Appellants Kirk N. Gomon and Carol Gomon challenge the district court’s grant of summary judgment on their medical-malpractice claim in favor of respondents Northland Family Physicians, Ltd., and Harvey D. Smith, M.D., based on the two-year statute of limitations established in MinmStat. § 541.07 (1996). Appellants assert that because their action was commenced after August 1, 1999, the four-year statute of limitations established in Minn. Stat. § 541.076 (Supp.1999) applies. Because we hold that Minn.Stat. § 541.076 does not apply retroactively to revive an action that was time-barred before the effective date of the new statute, we affirm.

FACTS

During a routine physical examination of Kirk Gomon on July 23, 1996, Dr. Smith, a family-practice doctor employed by North-land Family Physicians, Ltd., observed that Gomon’s left nipple was inverted and that there was a palpable mass surrounding the area of the nipple. Dr. Smith concluded that the mass was merely the nipple and did not recommend further testing or follow-up examinations or treatment.

In July and August 1998, Gomon was seen at a different clinic where he was diagnosed with and treated for breast cancer. On December 3, 1999, the Gomons brought a medical-malpractice action against respondents alleging that Dr. Smith was negligent in failing to require further evaluation in 1996 to rule out the presence of breast cancer. Respondents asserted a statute-of-limitations defense and successfully moved for summary judgment. This appeal followed.

ISSUE

Does Minn.Stat. § 541.076 (Supp.1999), which establishes a four-year statute of limitations for medical-malpractice actions commenced on or after August 1, 1999, apply retroactively to revive a claim that was time-barred prior to August 1, 1999?

ANALYSIS

This court asks two questions when reviewing an appeal from summary judgment: (1) whether any genuine issues of material fact exist and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Because the parties do not dispute the facts, the sole question is one of statutory interpretation, which is a question of law that this court reviews de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990).

The parties agree that the Gomons’ cause of action against respondents accrued on July 23, 1996. At the time the cause of action accrued, the statute of limitations for medical-malpractice claims was two years from the date the claim accrued, and therefore the Gomons’ claim was time-barred On July 23, 1998. Minn.Stat. § 541.07(1) (1996); see Kannellos v. Great N. Ry., 151 Minn. 157, 161, 186 N.W. 389, 391 (1922) (recognizing where cause of action accrued in 1917, but plaintiff failed to commence action until 1921 — a year after the two-year statute of limitations expired — the action was barred).

In 1999, the legislature repealed Minn. Stat. § 541.07 (1996) as applied to healthcare providers and enacted Minn.Stat. § 541.076 (Supp.1999). Under the new law, which took effect August 1, 1999, the statute of limitations for claims against a health-care provider alleging malpractice, error, mistake, or failure to cure, whether based on a contract or tort, is four years from the date the claim accrues. Minn. Stat. § 541.076. The new statute of limitations applies “to actions commenced on or after [August 1, 1999].” 1999 Minn. Laws ch. 23, § 3 (codified at Minn.Stat. § 541.076(b) (2000)). The Gomons commenced their action on December 3, 1999, which is after August 1, 1999 and within four years after the date the cause of action accrued. The narrow issue in this case is whether the four-year statute of limitations applies retroactively to revive a claim that was time-barred prior to August 1,1999.

“No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.” Minn. Stat. § 645.21 (2000). Consequently, statutes are presumptively viewed as having only a prospective effect. The parties agree that the legislature can, by clear legislative intent, alter a statute of limitations to bar or revive claims retroactively and that there is no general constitutional impediment to legislation that operates to revive a cause of action that has already become time-barred. Donaldson v. Chase Sec. Carp., 216 Minn. 269, 276, 13 N.W.2d 1, 4 (1943), aff'd, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945).

The legislature provided that the four-year statute of limitations “is effective August 1,1999, and applies to actions commenced on or after that date.” 1999 Minn. Laws ch. 23, § 3. The Gomons argue that this language demonstrates a clear and manifest intent to apply the four-year statute of limitations retroactively to revive claims that were time-barred but not commenced before August 1, 1999, so long as the action was commenced within four years after the date the claim accrued. In support of their position, the Gomons rely heavily on LaVan v. Community Clinic, 425 N.W.2d 842 (Minn.App.1988), review denied (Minn. Aug. 24, 1988). LaVan addressed whether the 1986 Tort Reform Act provision that shortened the period of time within which a minor could bring a medical-malpractice action was retroactive, thereby barring LaVan’s claim. As in this case, the amendment applied to “ ‘all actions commenced on or after the effective date,’ ” however other provisions in the Act were designated to “ ‘apply to claims arising from incidents that occur on or after’ ” the effective date. Id. at 844-45. This court noted:

As it did with other portions of the statute, the legislature could have provided that [the amendment] applied to claims arising from incidents which occurred on or after the effective date. However, the legislature specifically provided the amendment was applicable to all actions commenced on or after the effective date. This language indicates a clear legislative intent to apply the amendment retroactively.

Id. at 845. In the instant case there is no contrasting language from which we can draw a similar conclusion about the legislature’s intent. Also, and more importantly, LaVan did not involve revival of a claim that was time-barred prior to the effective date of an amendment extending a statute of limitations. The narrow issue decided here is whether the new statute applies retroactively to revive an otherwise time-barred action before the application date of the new statute. We do not address in this opinion whether the two- or four-year statute of limitations applies to causes of action that accrued but were not yet time-barred before August 1,1999.

Respondents argue that reviving an already time-barred claim is a much more serious matter than merely extending the period of limitations for a claim that is not yet time-barred on the effective date of the new statute, although both applications could be labeled “retroactive.” We agree. Even if a statute is intended to apply retroactively to claims that are not time-barred on the effective date of the statute, it is not necessarily intended to apply retroactively to revive a previously time-barred claim. See Whittier v. Village of Farmington, 115 Minn. 182, 187, 131 N.W. 1079, 1081 (1911) (ruling amendment of statute to extend the time to file notice of appeal in proceedings to contest an election from six years to eight years “would not revive” a claim time-barred a few days prior to the change in the law, even though it would operate to extend the time as to all causes of action not then barred by the old statute). In Whittier, the supreme court stated:

But we have found no case where it has been held that a right, once existing, but lost because of a failure to comply with a statute, a compliance with the provisions of which was essential to its preservation, has been revived by an amendment to the statute changing the steps necessary to protect the right. This is illustrated by changes in statutes of limitation. A particular statute limits the right to commence an action to six years from the time the cause of action accrued. An amendment of that statute extending the time to eight years would not revive a cause of action which became barred a few days prior to the change in the law, though it would operate to extend the time as to all causes of action not then barred by the old statute. * * * [I]t would be a strain upon the rules of statutory construction to hold that [a time-barred claim] might be resurrected under the amended law.
[I]f the power [of the legislature to revive a right of action] be conceded, the intention to revive should be made clearly to appear by the terms of the statute, and not left to inference.

115 Minn, at 187-88,131 N.W. at 1081.

Eleven years later, in Kannellos, the supreme court discussed the intent of Congress regarding the Transportation Act, stating:

[I]t is clear that the language of the Transportation Act, though confessedly retroactive in operation, is not such as to justify the conclusion that by it Congress intended to revive rights of action barred, and not in fact existing at the time of the passage of that act. It properly may be construed as including all rights of action then existing, and not barred by failure to bring suit within the time limit. But no rule of statutory construction with which we are familiar will justify the conclusion of an intent to restore the dead and down right to life and vitality; an intent to that effect should be specific in language and free from doubt.

151 Minn, at 161, 186 N.W. at 391. These cases illustrate that revival of time-barred actions has been viewed as a separate issue from retroactive application of statutes. The general rule concerning the extension or repeal of a limitations period was announced by the supreme court in 1921:

[T]he statute [of limitations] in force at the time the action is brought controls, unless the time limited by the old statute for commencing an action has elapsed, while the old statute was [still] in force, and before suit is brought, in which case the suit is barred * * *.

State ex rel. Donovan v. Duluth St. Ry., 150 Minn. 364, 366, 185 N.W. 388, 389 (1921) (quotation omitted). The Gomons argue that Minn.Stat. § 645.21 overrules the distinction between “retroactive” and “revival.” We find no support for this assertion and disagree. In 1980, the supreme court drew a distinction between a right to bring a claim that was not time-barred on the effective date of a statutory amendment to the Workers’ Compensation Act and a claim that was time-barred. Klimmek v. Independent Sch. Disk No. 4.87, 299 N.W.2d 501, 503 (Minn.1980) (holding that a statutory amendment, which deleted a provision requiring an employee who had received workers’ compensation to bring an action for further compensation within eight years from the date he last received compensation, applied to a claim that had not been barred by the eight-year limitation period on the amendment’s effective date). This court has recognized a continuing distinction between claims not time-barred on the effective date of a statute expanding a limitations period and those that are time-barred. See Wschola v. Snyder, 478 N.W.2d 225, 226 (Minn.App.1991) (holding that an amendment to the Minnesota Human Rights Act increasing the limitations period from 300 days to one year applied “retroactively” to causes of action not yet time-barred under the old statute of limitations on the effective date of the new statute), revieio denied (Minn. Feb. 10, 1992). In Wschola, this court noted that although Klimmek suggests that the application of a new statute of limitations to an existing cause of action is not a retroactive application, other cases have analyzed such application as within Minn.Stat. § 645.21. Id. at 227. The distinction between applying an expanded statute of limitations “retroactively” to claims not yet barred under the old statute on the effective date of the new statute and application to claims time-barred prior to the effective date of the new statute, has clearly survived after passage of Minn.Stat. § 645.21.

The Gomons argue that the “commenced on or after” language is superfluous unless the statute was intended to revive actions that accrued prior to, but were time-barred before August 1, 1999. It is a “maxim of statutory construction that a statute is to be construed, if possible, so that no word, phrase, or sentence is superfluous, void, or insignificant.” Duluth Firemen’s Relief Ass’n v. City of Duluth, 361 N.W.2d 381, 385 (Minn.1985) (citation omitted). The language will only be superfluous if the statute is determined not to retroactively apply to claims not time-barred before the effective date, an issue that is not before this court.

As an alternative to their position that the statutory language unambiguously provides for retroactive application to revive their claim, the Gomons argue that the legislative history of Minn.Stat. § 541.076 shows a clear and manifest legislative intent to retroactively revive their time-barred claim. This court will employ legislative history as a tool for construing statutory language only when the legislative language is ambiguous. State v. Seba-sky, 547 N.W.2d 93, 99 (Minn.App.1996), review denied (Minn. June 19, 1996). “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (2000). Considering the effective-date language in light of existing case-law on claim revival, we hold that Minn. Stat. § 541.076 is not ambiguous and does not express a clear’ and manifest intent by the legislature to apply the statute retroactively to revive actions that were time-barred prior to its effective date.

Even if we had found the statute’s language ambiguous, we disagree with Go-mons’ assertion that the existing legislative history demonstrates an intent to revive time-barred actions. There was some discussion on February 4, 1999, of an intent to revive time-barred actions. Hearing on H.F. No. 56 Before the House Comm, on Health & Human Servs. (Feb. 4, 1999). But, the following discussion occurred on March 8, 1999, just before the senate passed the bill:

Kiseaden: * * * I just want to make sure that the effectiveness date accomplishes what we had agreed to in committee in terms of not being able to initiate any causes of action, not renewing old claims and so on. Betzold: * * * This was an issue that was discussed quite a bit in the Judiciary Committee. Section 3 of the bill says that Section 2 is effective August 1, 1999. That is a new statute of limitations of four years, commences on October 1, 1999[sic] so and applies to actions commenced on or after that date. So if there is treatment that were to end on July 31 of 1999, that is a two-year statute of limitations. If the treatment ends on August 1,1999, it is four years.

Oliver: * * * Senator Betzold, do you have any idea if this is going to have an adverse effect on malpractice insurance rates?

Betzold: * * * [T]he issue was discussed in the Judiciary Committee. The estimates that we had received was this would probably not have an appreciable effect. In any event, because the effective date comes after August 1st, it should not affect any existing premium so that we are now [sic] retroactively trying to pick up any cases out there. I, we did ask for a fiscal note on this which actually came after the bill had already passed through committees, and the Department of Human Services estimated that it would not have any impact on their budget.

Senate Floor Debate on H.F. No. 56 (Mar. 8, 1999) (statements of Sens. Kiseaden, Oliver, and Betzold). There was no further discussion about retroactive application before the senate passed the bill. The final discussion, therefore, appears to have represented to the senators that this bill would not even retroactively extend the four-year limitation to actions that accrued prior to August 1, 1999, let alone revive time-barred actions.

DECISION

Minn.Stat. § 541.076 (Supp.1999), which establishes a four-year statute of limitations for medical-malpractice actions commenced on or after August 1, 1999, does not revive a cause of action that was time-barred under Minn.Stat. § 541.07 (1996) prior to August 1, 1999. The district court correctly granted summary judgment to respondents.

Affirmed.

SCHUMACHER, Judge

(dissenting).

I respectfully dissent. The plain language of Minn.Stat. § 541.076 (2000) indicates a clear legislative intent to apply the four-year statute of limitations to all actions commenced on or after August 1, 1999. 1999 Minn. Laws ch. 23, § 3. Here, because the action was commenced after that effective date, the four-year statute of limitations should apply. The effective-date language at issue here is precisely the language that this court has previously deemed an expression of clear legislative intent to apply an amended statute of limitations retroactively. See LaVan v. Cmty. Clinic of Wabasha, 425 N.W.2d 842, 845 (Minn.App.1988).

Regarding revival, our caselaw has carved out exceptions for workers’ compensation and Minnesota Human Rights Act claims where effecting the clear legislative intent of retroactive application is not a violation of the public policy supporting statutes of limitations. See Wschola v. Snyder, 478 N.W.2d 225, 227-28 (Minn.App.1991) (reversing application of 300 day statute of limitations to MHRA claim filed 308 days after termination where legislature 'amended statute of limitations to one year), review denied (Minn. Feb. 10, 1992). In the medical malpractice context, where individuals may not know of the harm suffered until well after the date a cause may accrue, such an exception is well-founded and effects the clear legislative intent of retroactive application. I would reverse.

      . In Klimmek, the supreme court said that if application of an amendatory statute does not revive a claim that had been barred, the application is not retroactive. 299 N.W.2d at 503. Nonetheless, the opinion denotes the court's continuing distinction between cases that are not time-barred and those that are time-barred prior the effective date of an amendment.

      . Whether language is ambiguous is a question of law. Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn.App. 1986). Where a statute is ambiguous, this court may consider legislative history as a factor in determining intent. First Nat’l Bank v. Gregg, 556 N.W.2d 214, 217 (Minn. 1996).

      . The district court had before it transcriptions of the legislative hearings. These transcripts are in the district court file.


author: DANIEL F. FOLEY, Judge

text:
    Rodney LeVAKE, Appellant, v. INDEPENDENT SCHOOL DISTRICT #656; Keith Dixon, Superintendent; Dave Johnson, Principal; and Cheryl Freund, Curriculum Director, Respondents.
    No. C8-00-1613.
    Court of Appeals of Minnesota.
    May 8, 2001.

      Wayne B. Holstad, St. Paul, MN, for appellant.
    Kay Nord Hunt, Ehrich L. Koch, Sheila Bjorklund, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, for respondents.
    Considered and decided by PETERSON, Presiding Judge, SHUMAKER, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge

Appellant, a high school science teacher, challenges the district court’s summary judgment in favor of respondents school district, superintendent, principal, and curriculum director. Appellant argues that he presented a genuine issue of material fact precluding summary judgment on the issue of whether respondents violated his rights of free exercise of religion, free speech, and due process by reassigning him to teach a different class after discovering that appellant wanted to teach criticisms of evolution. Appellant also argues that the district court erred by excluding a portion of his deposition testimony as hearsay and considering a videotaped interview of appellant. Because appellant refused to teach his assigned class in the manner prescribed by the established curriculum, we conclude that he did not present any genuine issue of material fact, and we affirm.

FACTS

In 1984, appellant Rodney LeVake was hired by respondent Independent School District # 656 as a high school science and math teacher. According to LeVake’s contract, he could be assigned to teach any topic for which he has licensure. During the summer of 1997, LeVake was offered a position to teach tenth-grade biology for the 1997-98 academic year. Before accepting the position, LeVake met with Ken Hubert, co-chairman of the high school science department, and Dave Johnson, the high school principal, to discuss the course and its curriculum requirements. As part of the tenth-grade biology course, LeVake was required to teach evolution. The curriculum for the course is governed by the “Biology Program Curriculum Proposal” (the proposal) and the “Course Syllabus” (the syllabus). The proposal states that upon completion of the class, students will be able to understand that evolution involves natural selection and mutations, which constantly cause changes in living things. In the required course book for the biology class, three chapters dealt with evolution but only one was required as part of the curriculum. None of the chapters addressed alternative theories to or criticisms of evolution. The syllabus provided examples of topics that should be covered in class, which included evolution. Minnesota’s high school graduation standards do not specifically refer to evolution; rather, the standards provide that a student must demonstrate an understanding of biological change over time. Minn. R. 3501.0446, subp. 2 (1999).

LeVake accepted the position and began teaching the class with full knowledge of the curriculum requirements. In spring 1998, when LeVake arrived at the evolution component of the course, he spent only one day covering the topic, which included a correlating lab. The school year was cut short that year, so none of the other biology teachers spent a significant amount of time teaching the evolution chapters' either. Hubert expressed concern to Johnson that LeVake did not adequately cover evolution and also discussed the situation with LeVake. LeVake essentially told Hubert that he could not teach evolution according to the prescribed curriculum. On April 1, 1998, LeVake met with Hubert, Johnson, and Cheryl Freund, the curriculum director, to discuss the issue. LeVake indicated that he did not regard evolution as a viable scientific concept. At that time, Freund asked if Le-Vake mentioned God or the Bible in class because she wanted to be sure that Le-Vake was not discussing religion in a manner that would give the impression that the school was not religiously neutral.

On April 7,1998, LeVake, Hubert, Johnson, Freund, and the rest of the high school’s science department met to discuss LeVake’s teaching methods. At that meeting Johnson asked LeVake to write a position paper on how he proposed to teach evolution in his biology class. Le-Vake completed this paper on April 15. In his paper, LeVake articulated that he believes evolution is impossible from a “biological, anatomical, and physiological standpoint” and that there is “no evidence to show that it actually occurred.” Le-Vake’s paper also contends that the “complexity of life that we see around us is a testimony that evolution, as it is currently being handled in our text, is impossible.” LeVake concludes by writing:

I don’t believe an unquestioning faith in the theory of evolution is foundational to the goals I have stated in teaching my students about themselves, their responsibilities, and gaining a sense of awe for what they see around them. I will teach, should the department decide that it is appropriate, the theory of evolution. I will also accompany that treatment of evolution with an honest look at the difficulties and inconsistencies of the theory without turning my class into a religious one.

(Emphasis added.)

On April 28,1998, after meeting with the school district’s lawyers and consulting with Freund and others, Johnson decided that LeVake should be reassigned to teach ninth-grade natural science for the following academic year. LeVake was informed of this decision the following day. As the basis for the school’s decision, Johnson expressed concern that a basic concept of biology, meaning the theory of evolution, would be diluted and that students would “lose the gist” of the theory.

LeVake appealed his reassignment to Superintendent Keith Dixon. On May 14, 1998, Dixon wrote LeVake a letter, affirming his reassignment. Dixon believed that LeVake differed fundamentally with the “commonly held principles of the curriculum as outlined.” Dixon further articulated that LeVake’s insistence on teaching the inconsistencies of evolution was not an appropriate method for teaching the approved curriculum.

On May 24, 1999, LeVake filed a lawsuit against respondents Independent School District # 656, Keith Dixon, Dave Johnson, and Cheryl Freund (respondents). Based on 42 U.S.C. § 1983, LeVake alleged that respondents violated his right to free exercise of religion, free speech, due process, freedom of conscience, and academic freedom. Respondents moved for summary judgment, which the district court granted. The district court dismissed all of Le-Vake’s claims with prejudice on the merits. LeVake now appeals from the district court’s grant of summary judgment.

ISSUES

1. Did appellant raise a genuine issue of material fact as to whether respondents’ decision to assign appellant to teach a different class violated his right to free exercise of religion?

2. Did appellant raise a genuine issue of material fact as to whether respondents’ decision to assign appellant to teach a different class violated his right to free speech?

3. Did appellant raise a genuine issue of material fact as to whether respondents’ decision to assign appellant to teach a different class violated his due process rights by failing to provide him with notice that his method of teaching a high school biology course was inconsistent with the school board’s established curriculum?

ANALYSIS

On appeal from summary judgment, a reviewing court asks (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). “[T]he party resisting summary judgment must do more than rest on mere averments.” Id. at 71. A genuine issue for trial must be established by substantial evidence. Id. at 70. A reviewing court “must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted).

I. Free Exercise of Religion

The First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const, amend. I. The First Amendment applies to the states by virtue of the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

The right to believe as one wishes and to practice that belief according to the dictates of conscience, without violating the personal rights of others, is fundamental to our system.

Murphy v. Murphy, 574 N.W.2d 77, 80 (Minn.App.1998) (citation omitted). If a law of general application “incidentally infringes on religious practices,” it does not contravene the free exercise clause. Id. (citation omitted). The party asserting a free exercise violation has the initial burden of proving that the state’s requirement imposes a burden on the party’s religious belief or practice. Abington Sch. Dist. v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572,10 L.Ed.2d 844 (1963).

It is unclear on what basis LeVake argues that his right to free exercise of religion was violated. LeVake does not contend that respondents prohibited him from practicing the religion of his choice. He does not assert that respondents demanded that he refrain from practicing his religion outside of the scope of his duties as a public school teacher in order to retain his teaching position, and he does not assert that the curriculum requirements incidentally infringed on his religious practice. Cf. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273, 108 S.Ct. 562, 571, 98 L.Ed.2d 592 (1988) (stating educators do not offend First Amendment so long as their actions are reasonably related to pedagogical concerns).

By analogy, LeVake focuses on employment discrimination cases to argue that circumstantial evidence of discrimination based on his religious belief exists, and he concludes that this alleged discrimination equates to respondents’ violation of his right to free exercise of religion. See Sigurdson v. Isanti Co., 386 N.W.2d 715, 720 (Minn.1986) (setting out standard for showing circumstantial evidence of employment discrimination). But LeVake did not bring an employment discrimination action, and he has not provided authority demonstrating how use of this standard raises a genuine issue of material fact regarding his free exercise claim. Consequently, he has not articulated how an argument based on religious discrimination equates to a violation of his right to free exercise of religion.

Finally, we address LeVake’s complaints regarding the evidence that the district court considered in deciding the summary judgment motion. LeVake first argues that the district court erred in failing to consider his deposition testimony as to statements made by Freund, the curriculum director, regarding the reason for LeVake’s reassignment. But, LeVake has not shown that these statements create a genuine issue of material fact as to his free exercise claim. Freund’s position as the curriculum director did not give her authority to hire, fire, or reassign LeVake, so her opinion on the matter is irrelevant. Principal Johnson had sole authority to reassign LeVake, and Superintendent Dixon had authority to overrule Johnson’s decision. Thus, it was Johnson’s reason for reassigning LeVake and Dixon’s reason for supporting the decision that were germane.

LeVake also disputes the district court’s consideration of a CNN video segment, which featured LeVake and others discussing the debate about evolution and creationism. But, he presents no issue for us to decide because the district court found that the tape had “little evidentiary value because it was created and aired almost two years after [LeVake’s] reassignment and thus [did] not address the main issue” of the case.

Given respondents’ important pedagogical interest in establishing the curriculum and its legitimate concern with ensuring that the school remained religiously neutral, we conclude that LeVake has not presented a genuine issue of material fact as to whether respondents’ decision to assign him to teach a different class violated his right to free exercise of religion.

II. Free Speech

Determining a public employee’s free speech rights is a difficult task. A reviewing court must analyze the

balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

Finch v. Wemlinger, 361 N.W.2d 865, 870 (Minn.1985) (quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)). Further, critical to determining if a public employee’s speech is entitled to protection, is whether the speech is “made primarily in the [employee’s] role as a citizen or primarily in his role as an employee.” Terrell v. University of Tex. Sys. Police, 792 F.2d 1360, 1362 (5th Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). LeVake has the burden of showing that “his conduct was constitutionally protected, and that this conduct was a substantial factor or * * * motivating factor” in respondents’ decision to reassign him. Mount Healthy City Sch. Dist. Bd. of Edue. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977) (citation omitted).

LeVake argues that respondents reassigned him to silence his criticism of evolution, which infringed upon his rights of free speech and academic freedom. He asserts that the material he wants to teach his students is lawful and does not impinge on any important state interests.

The classroom is a “marketplace of ideas,” and academic freedom should be safeguarded. Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967). But Levake, in his role as a public school teacher rather than as a private citizen, wanted to discuss the criticisms of evolution. LeVake’s position paper established that he does not believe the theory of evolution is credible. Further, LeVake’s proposed method of teaching evolution is in direct conflict with respondents’ curriculum requirements. See Clark v. Holmes, 474 F.2d 928, 931 (7th Cir.1972) (recognizing teacher had no First Amendment right to override judgment of superiors regarding proper course content). Accordingly, the established curriculum and LeVake’s responsibility as a public school teacher to teach evolution in the manner prescribed by the curriculum overrides his First Amendment rights as a private citizen. See Webster v. New Lenox Sch. Dist. No. 122, 917 F.2d 1004, 1007 (7th Cir.1990) (recognizing compelling state interest in choice and adherence to suitable curriculum for benefit of young students overrides individual teachers’ desire to teach what they please).

Based on LeVake’s belief that evolution is not a viable theory, respondents’ concern about his inability to teach the prescribed curriculum was well-founded. Thus, the district court did not err in granting respondents’ motion for summary judgment because LeVake did not demonstrate a genuine issue of material fact regarding his claim that respondents violated his right to free speech.

III. Due Process

For a procedural due process claim, a teacher must establish that the school administration’s action to which the teacher is objecting deprived the teacher of a constitutionally protected liberty interest. See Board of Regents v. Roth, 408 U.S. 564, 568-75, 92 S.Ct. 2701, 2704-08, 33 L.Ed.2d 548 (1972) (concluding university did not violate nontenured teacher’s protected liberty interest by deciding not to re-employ him without stating its reasons or providing hearing). Rights to free speech and free exercise of religion are protected liberty interests. City ofBoeme v. Flores, 521 U.S. 507, 519, 117 S.Ct. 2157, 2163, 138 L.Ed.2d 624 (1997). The school board may regulate a teacher’s speech in the classroom if it has provided the teacher with specific notice of what conduct is prohibited. See Keyishian, 385 U.S. at 604, 87 S.Ct. at 684 (stating government must clearly inform teachers of types of prohibited classroom speech).

LeVake’s due process claim is premised on his belief that respondents deprived him of his liberty interest to teach his class free “from state action which impinges upon and violated his constitutional rights to free speech and free exercise” by failing to provide him with adequate notice of what types of expression were prohibited before reassigning him.

The cases LeVake relies on in making this argument involve the termination of teachers, but LeVake was not terminated. In fact, he was not even demoted. Further, before accepting the position to teach tenth-grade biology, LeVake understood that respondents’ prescribed curriculum included teaching students about evolution.

LeVake was given sufficient notice about what he could and could not teach through the established curriculum and the syllabus. In addition, LeVake’s contract specifically required him to “faithfully perform the teaching * * * prescribed by the School Board,” but LeVake articulated that he could not teach the class according to the existing curriculum requirements. (Emphasis added.) In fact, LeVake admitted in his deposition testimony that “in essence [he] said to [Hubert] that [he could not ] teach evolution.” (Emphasis added.) Also, LeVake’s position paper demonstrates that he does not believe that evolution is a credible theory. More importantly, LeVake’s proposal of how he wanted to teach evolution conflicted with respondents’ curriculum goals, which dictated that evolution should be taught as the accepted theory for how life has changed over time.

Thus, the district court did not err in granting respondents’ summary judgment motion because LeVake did not demonstrate a genuine issue of material fact regarding his claim that his due process rights had been violated.

DECISION

Because LeVake’s position paper and his statement to Hubert make it clear that LeVake would not teach the required course curriculum in the manner established by the school board, LeVake has not presented any genuine issue of material fact regarding his free exercise, free speech, and due process claims. Thus, the district court did not err in granting respondents’ motion for summary judgment.

Affirmed.

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

      . If there is to be any change in the required standards, the suggested change should be addressed to the school board and, if necessary, to the state legislature and tested by constitutional limitation.