author: KALITOWSKI, Judge.

text:
    In the Matter of the SPEED LIMIT FOR the UNION PACIFIC RAILROAD THROUGH the CITY OF SHAKOPEE, State of Minnesota.
    No. C1-99-1722.
    Court of Appeals of Minnesota.
    May 16, 2000.
    Review Dismissed July 7, 2000.

      David A. Donna, Kurtis A. Greenley, Robert C. Friday, Lindquist & Vennum P.L.L.P., Minneapolis, for relator Union Pacific Railroad Company.
    James J. Thomson, Karen R. Cole, Kennedy & Graven, Chartered, Minneapolis, for respondent City of Shakopee.
    Considered and decided by WILLIS, Presiding Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.
   OPINION

KALITOWSKI, Judge.

Relator Union Pacific Railroad challenges the authority of the Commissioner of the Minnesota Department of Transportation to impose a ten-miles-per-hour speed limit along a one-mile segment of its track in downtown Shakopee. Union Pacific argues that: (1) because the state’s ability to regulate train speed is preempted by federal regulations promulgated under the Federal Railroad Safety Act (FRSA), 49 U.S.C. §§ 20101-21311 (1994), the FRSA’s savings clause under 49 U.S.C. § 20106 does not apply; and (2) even if the savings clause applies to the regulation of train speed, the' commissioner erred in finding the requirements of the savings clause were met. After filing its appeal, Union Pacific made a motion requesting a determination that this court lacks subject-matter jurisdiction to hear this matter as a certiorari appeal.

FACTS

In 1858, respondent City of Shakopee passed an ordinance granting Southern Minnesota Railroad Company, a predecessor of relator Union Pacific Railroad, permission to run its main track down any east-west street within the city limits. The railroad laid its track down the center of Second Avenue, which runs through Shakopee’s - present-day central business district.. This track, which remains in regular use, is now owned and operated by Union Pacific. The one-mile segment of the track between mileposts 27.3 and 28.3 is unique in Minnesota because it runs down the middle of a city street and has a large number of grade crossings and pedestrian and vehicular traffic.

Shakopee’s central business district is approximately 13 square blocks. Its buildings are not subject to setback requirements. All of the streets in the business district are two-way streets, but the eastbound and westbound lanes of Second Avenue are divided by the railroad track. The distance from the center of the track to the edge of the closest curb of either traffic lane varies between eight arid one-half to nine feet.

All of the north-south streets that intersect with Second Avenue have stop signs. Motorists making left turns onto Second Avenue from any north-south street must cross the railroad tracks and check for trains and traffic approaching from the east and west as well as for oncoming north or south traffic. Similarly, a motorist turning left from Second Avenue onto a north-south street must be aware of both approaching trains and oncoming traffic.

There are ten grade crossings along the one-mile stretch of track on Second Avenue between mileposts 27.3 and 28.3, six of which are within the central business district. The grade crossings have various combinations of warning devices: some have only crossbucks and/or stop signs, and others have crossbucks with flashing signals or overhead mast flashers. Cross-bucks and stop signs are the least effective traffic warning devices for grade crossings. None of the crossings in Shakopee use the two most effective warning devices, automatic gates with time circuitry and automatic flashers with constant-warning time circuitry.

The grade crossings along the one-mile segment of track met Minnesota Department of Transportation’s (MnDOT) safety standards at one time, but MnDOT has not reviewed the crossings in recent years. In the past; MnDOT has recommended that Shakopee close some grade crossings in order to improve safety along the track segment. Shakopee’s director of public works agrees that the city does not need ten crossings in the one-mile segment and that track safety would improve if more crossings were closed. ■

Six reported accidents have occurred at grade crossings in the one-mile segment in the five years prior to the hearing in this matter. All six took place at grade crossings that have crossbucks but no mechanical warning devices or flashing lights. The most frequent type of grade-crossing accident in Shakopee results from motorists violating traffic laws.

Shakopee has experienced a substantial population growth in recent years. A traffic-data calculation conducted in February 1999 reflects that more than 2,000 vehicles travel every day on most of the north-south streets between mileposts 27.3 and 28.3, and the busiest street averages more than 4,000 vehicles per day. A high volume of pedestrians also cross over the track, and many cross outside the pedestrian-crossing areas. Union Pacific considers the pedestrians who cross outside the designated areas to be trespassers.

The one-mile length of track along Second Avenue is a small segment of a 335-mile line running from St. Paul to LeMars, Iowa. A variety of trains travel along the track, including two daily scheduled through freights of 100 to 110 cars, two local trains, and unscheduled through freights and light engines. For many years, Union Pacific and its predecessor observed a self-imposed “head end” speed restriction of 10 miles per hour while passing through downtown Shakopee and 30 miles per hour elsewhere in the city.

In the summer of 1998, Union Pacific upgraded its track in downtown Shakopee to a class-four track, which has a maximum speed limit of 60 miles per hour under federal regulations. See 49 C.F.R. § 213.9 (1999). Union Pacific notified Shakopee that by February 15, 1999, it intended to increase the speed of all of its trains within the city to 30 miles per hour. Union Pacific set the 30-miles-per-hour speed limit based on its assessment of the local conditions in downtown Shakopee, including the proximity of parking, the visual clutter, the number of crossings in the city, and its experience with trespassing pedestrians.

In February 1999, Shakopee petitioned the commissioner of MnDOT to impose a speed limit of ten miles per hour for trains operating on the Union Pacific line on Second Avenue, pursuant to the commissioner’s authority to regulate train speed on grade crossings over public highways and city streets under Minn.Stat. § 219.383, subd. 1 (1998). Union Pacific filed its opposition to the petition and a contested case hearing was held before an Administrative Law Judge (ALJ) in April 1999. Consistent with the ALJ’s written recommendation, the commissioner issued an order setting a ten-miles-per-hour speed limit along the one-mile track segment between mileposts 27.3 and 28.3 until Union Pacific and Shakopee can improve the safety and warning mechanisms at the crossings and reduce visual clutter in the area.

. Union Pacific filed this certiorari appeal, arguing that the commissioner’s authority to impose railroad speed limits is completely preempted by the Federal Railroad Safety Act, 49 U.S.C. §§ 20101-21311 (1994), and the regulations promulgated thereunder. This court granted Shako-pee’s motion to appear as a respondent in the appeal. Union Pacific subsequently filed a rule 127 motion seeking a determination that this court lacks jurisdiction to hear the matter as a certiorari appeal because the commissioner’s decision was quasi-legislative rather than quasi-judicial.

ISSUES

1. Is the commissioner’s imposition of a ten-miles-per-hour train speed limit in downtown Shakopee a quasi-legislative act and therefore not reviewable by writ of certiorari?

2. Is the commissioner’s attempt to regulate train speed under Minn.Stat. § 219.383 (1998) completely preempted by the Federal Railway Safety Act and the maximum train speed limitations promulgated thereunder?

3. Does the commissioner’s imposition of a ten-miles-per-hour train speed limit in downtown Shakopee meet the requirements of the “savings clause” of 49 U.S.C. § 20106 (1994)?

ANALYSIS

I.

We initially address Union Pacific’s motion for a determination that this court lacks jurisdiction to hear the appeal. Union Pacific argues that because the commissioner’s imposition of a speed limit was a quasi-legislative action, an appeal cannot properly proceed by writ of certiorari under Minn.Stat. §§ 14.63 to 14.68 (1998). We disagree.

As a general matter, “certiorari is an ‘extraordinary remedy’ only available to review judicial or quasi-judicial proceedings and actions.” Minnesota Ctr. for Envtl. Advocacy v. Metropolitan Council, 587 N.W.2d 838, 842 (Minn.1999) (quoting Honn v. City of Coon Rapids, 313 N.W.2d 409, 414 (Minn.1981)). Certiorari is not available to review an agency’s legislative or purely ministerial acts. Mahnerd v. Canfield, 297 Minn. 148, 152, 211 N.W.2d 177, 179 (1973). A quasi-judicial proceeding involves investigation into a disputed claim that weighs evidentiary facts, applies those facts to a prescribed standard, and reaches a binding decision. Minnesota Ctr. for Envtl. Advocacy, 587 N.W.2d at 841-44.

Union Pacific contends that the commissioner’s decision concerning Shakopee’s petition was not “quasi-judicial.” But because the Administrative Procedure Act (APA) explicitly provides for certiorari appeal in this case, we conclude it is not necessary to address this issue.

Under the APA, with certain exceptions not applicable here, a party aggrieved by an agency’s final decision in a contested case hearing may seek judicial review by certiorari under sections'14.63 to 14.68. M.S.A. § 14.63 (1998). The statute authorizing the commissioner to set train speed limits states: Minn.Stat. § 219.383, subd. 1 (1998). The commissioner’s notice and order for hearing on Shakopee’s petition plainly stated that the proceeding would be governed by the rules for contested case hearings under Minn.Stat. §§ 14.48 through 14.69 (1998) and Minn. R. 1400.5100 through 1400.8400. The final decision of the commissioner indicated that any aggrieved party could seek review in accordance with Minn.Stat. §§ 14.63 through 14.68.

The commissioner of transportation, on petition of a city council or a "railway corporation, may fix and determine after a hearing a reasonable speed for the operation of an engine or train on and over a railroad crossing of a public highway or street in that city.

Because this matter proceeded as a contested case hearing, we conclude certiorari review is appropriate under the plain language of- Minn.Stat.. § 14.63. Union Pacific’s motion is denied.

II.

The preemptive effect of a statute involves a- question of law, which this court reviews de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990). In considering questions of law, “reviewing courts are not bound by the decision of the agency and need not defer to agency .expertise.” St. Otto’s Home v. State, Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989) (citations omitted). Union Pacific argues that federal regulations promulgated under the Federal Railroad Safety Act (FRSA) have entirely preempted the field of train speed limits and that the commissioner of MnDOT therefore retained no authority under state law to. impose the ten-miles-per-hour speed limit in downtown Shako-pee. We disagree.

Minnesota law has long provided that the commissioner of MnDOT may, upon petition of a railway or city council, fix and determine a reasonable train speed .on and over a railroad crossing over a public highway or city street. Minn.Stat. ■§ 219.383, subd. 1. With its enactment of the FRSA in 1970, however, Congress largely preempted state authority to regulate railroad safety. By enacting the FRSA, Congress intended to provide for the creation of uniform national safety standards in the railroad industry. See, e.g., 49 U.S.C. § 20106 (1994) (“Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable.”); H.R.Rep. No. 91-1194, reprinted in 1970 U.S.C.C.A.N. 4104, 4110 (stating that the railroad industry “has a truly interstate character calling for a uniform body of regulation and enforcement”).

When a state law conflicts with or frustrates federal law, the state law must give way. U.S. Const., Art. VI, cl. 2; CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387 (1993). Preemption generally will not lie, however, in the absence of clear congressional intent. Easterwood, 507 U.S. at 664, 113 S.Ct. at 1737. When a statute contains an express preemption clause, the plain wording of the clause is necessarily the best evidence of Congress’s preemptive intent. Id.

Despite the broad, sweeping nature of the FRSA, Congress provided a “savings clause” that permits a state to continue to regulate railroad safety under two specific circumstances. 49 U.S.C. § 20106. Under the first exception, a state may adopt or continue to enforce

a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement.

Id. In 1971, the Federal Railroad Administration (FRA) adopted regulations that set safety standards for railroad tracks, including the maximum speed limits for all trains based on the classification of the track on which they run. 42 C.F.R. § 213.9 (1999). The Supreme Court has determined that by enacting these regulations, the FRA elected to cover the subject matter of train speed regulation with respect to track conditions, including the conditions posed by grade crossings. Easterwood, 507 U.S. at 675, 113 S.Ct. at 1743. The commissioner’s regulation of train speed in downtown Shakopee therefore cannot fall within this first exception.

The second exception provides that even if the secretary has chosen to regulate the subject matter, a state may still adopt or continue in force an additional or more stringent law, regulation, or order, provided that it (1) is necessary to eliminate or reduce an essentially local safety hazard; (2) is not incompatible with a law, regulation, or order of the United States government; and (3) does- not unreasonably burden interstate commerce. Id. at 662, 113 S.Ct. at 1737. Under the plain language of the preemption clause, if these three requirements are met, state regulation of any essentially local safety hazard is permissible.

Union Pacific argues that the commissioner is “negatively preempted” from imposing a train speed limit in Shak-opee. We disagree. Negative preemption occurs when a federal agency affirmatively declines to impose additional regulations in some field over which it has chosen to exercise its authority. See, e.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 178, 98 S.Ct. 988, 1005, 55 L.Ed.2d 179 (1978). Union Pacific argues that the FRA has negatively preempted all regulation of train speed because it has chosen to set only maximum train speeds and because the agency elsewhere has expressed its general position that “[fjederal regulations preempt any local- speed restrictions on trains.” 63 Fed.Reg. 33999 (1998).

Accepting Union Pacific’s argument would require that we ignore the express terms of the second provision of the savings clause, which permits state regulation if the three-part test is met, even if the FRA has chosen to regulate that area of railroad safety. See 49 U.S.C. § 20106. Moreover, the FRA itself does not consider its maximum train speed limits to be appropriate in every situation. To the contrary, the regulation indicates that the maximum speed limits represent minimal safety standards, “applicable to' specific track conditions existing in isolation,” and that a combination of. conditions may require railroads to take additional remedial action to ensure safe operations over a particular track. 49 C.F.R. § 213.1 (1999). The regulation also indicates that, its preemptive effect notwithstanding, states may regulate track safety standards where necessary to address an “essentially local safety hazard.” 49 C.F.R. 213.2 (1999).

We also reject Union Pacific’s argument that the Supreme Court’s decision in East-erwood effectively precludes any local regulation of train speed. In Easterwood, the Supreme Court addressed the preemptive effect of the FRA’s maximum train speed limits in the context of a personal injury claim. Easterwood, 507 U.S. at 673, 113 S.Ct. at 1742. The plaintiff, who,had been injured in a collision with a train, alleged that even though the train’s speed was within the federally mandated máximums, the railroad had breached its common-law duty to operate the train at a moderate and safe rate of speed. Id. The Court rejected the argument that this common-law rule fell within the savings clause simply because the standard of care includes a duty to respond appropriately to an “essentially local safety hazard.” Id. at 675, 113 S.Ct. at 1743. The Court stated:

The state law on which respondent relies is concerned with local hazards only in the sense that its application turns on the facts of the case. The common law of negligence provides a general rule to address all hazards caused by lack of due care, not just those owing to unique local conditions.

Id. Contrary to Union Pacific’s argument, the Court did not find that the FRSA broadly proscribed all state regulation of train speed, even for essentially local safety hazards. Rather, it concluded that the common-law negligence rule did not meet the requirements of the savings clause because it was not tailored to address a specific essentially local safety hazard.

We conclude that the express language of the savings clause permits state regulation to eliminate or reduce an essentially local safety hazard, including state regulations regarding train speed.

III.

We next address the issue of whether the commissioner’s imposition of a speed limit on the one-mile segment of track in downtown Shakopee meets the requirements of the savings clause. The commissioner’s decision involved a determination of whether the essentially undisputed facts met the three requirements of the 49 U.S.C. § 20106. The application of a statute to the undisputed facts of a case involves a question of law, which we review de novo. Boubelik v. Liberty State Bank, 553 N.W.2d 393, 402 (Minn.1996). An agency’s legal determination may be due judicial deference, however, “if the underlying decision-making process is designed to effectively produce a correct or just result or if the decision is informed by considerable expertise.” Buettner v. City of St. Cloud, 277 N.W.2d 199, 204 (Minn.1979).

Union Pacific first disputes whether the track constitutes an essentially local safety hazard. Because this is an issue of first impression in Minnesota, we look to other jurisdictions for guidance. Other courts have struggled to interpret the essentially local safety hazard requirement. In rejecting a municipality’s attempt to restrict all train speeds within city limits, one court noted that a permissible restriction

would have to apply to specific crossings and not to all crossings within a town. In other words, the governing body would have to take into consideration specific hazards at a given crossing and use that as the basis for a more stringent ordinance or statute.

Landrum v. Norfolk So. Corp., 836 F.Supp. 373, 375 (S.D.Miss.1993). Consistent with this' approach, a crossing with extremely limited sight lines and a regularly malfunctioning warning signal might constitute an essentially local safety hazard, especially if the road provides motorists with the only means of access to some location. Stone v. CSX Transp., Inc., 37 F.Supp.2d 789, 796 (S.D.W.Va.1999) (reversing summary judgment for railroad and remanding for consideration of whether conditions constitute a local safety hazard).

In contrast, a hazardous railroad crossing was not “essentially local” simply because it lacked active warning devices, had a steep grade and angle, and was in close proximity to a highway crossing. O’Bannon v. Union Pacific R.R. Co., 960 F.Supp. 1411 (W.D.Mo.1997). The O’Ban-non court noted that the FRA’s maximum speed regulations already factored in track conditions, including grade crossing conditions. Id. at 1421 n. 11. Under this rationale, only conditions that the FRA has not contemplated in promulgating maximum train speed limits can qualify as essentially local safety hazards. Other courts have agreed that a condition present at many intersections, such as multiple tracks with rail cars that obstruct view, is not unique and so does not constitute an essentially local safety hazard. See, e.g., Earwood v. Norfolk S. Ry. Co., 845 F.Supp. 880, 888 (N.D.Ga.1998).

Here, the commissioner determined that the track segment in downtown Shakopee qualifies as an essentially local safety hazard because (1) it runs down the middle of a city street with parallel lanes of traffic on both sides; (2) it has ten grade crossings within one mile; (3) it has a high volume of pedestrian and vehicular traffic; (4) the trains run in close proximity to traffic and buildings; and (5) the segment of track is the only place in Minnesota exhibiting this unique combination of factors. Union Pacific argues that under O’Bannon, the numerous crossings and volume of pedestrians and traffic in downtown Shakopee cannot create an essentially local safety hazard because these factors are not unique. We disagree. It is these multiple, common, hazardous factors coupled with the truly distinguishing characteristic of a track that runs between opposing lanes of traffic down the middle of a downtown street that renders the one-mile segment of track in Shakopee an essentially local safety hazard.

. [16,17] The . sayings clause also requires that a regulation be “necessary to eliminate or reduce” the hazard. 49 U.S.C. § 20106. Union Pacific contends that the train speed regulation is not “necessary”. because Shakopee has a host of other options available to address the problem. We disagree. The savings clause does not offer an internal definition of “necessary,” and the legislative history is not illuminating. But we decline to interpret “necessary” to mean “absolutely necessary” so that the existence of alternative remedial measures would prohibit the commissioner from acting. Rather, we are persuaded by other courts’ less stringent interpretations of the term “necessary” in other statutory contexts, where “necessary” means “reasonably necessary for the accomplishment of the end in view Under the particular circumstances.” Latchis v. State Highway Bd., 120 Vt. 120, 134 A.2d 191, 194 (1957) (citing condemnation statute), superseded by statute as stated in State Highway Bd. v. Hazen, 126 Vt. 46, 221 A.2d 579, 582 (1966) (noting that legislature subsequently defined “necessary” giving the term a broader meaning).

Evidence in the record suggests that other measures may reduce the hazard, but the record also supports a conclusion that train speed Ts a relevant factor with respect to safety at railroad crossings and that pedestrians regularly jaywalk across the tracks ,in downtown Shakopee. Indeed, the commissioner’s decision recognizes that implementing more effective warning devices may sufficiently ameliorate the safety hazard in downtown Shako-pee to permit a higher speed limit. The order indicates that the speed limit will remain in effect until Union Pacific and Shakopee “can develop and implement a plan to improve the grade crossings between mileposts 27.3 and 28.3,” whereupon the commissioner will consider raising the speed limit upon appropriate petition.

The commissioner’s even-handed resolution of the dispute reflects Congress’s wisdom in delegating the responsibility to regulate local safety hazards to the neutral expertise of the appropriate state authority. See, e.g., CSX Transp., Inc. v. City of Tullahoma, 705 F.Supp. 385, 388 (E.D.Tenn.1988) (concluding that Congress intended state regulatory agencies to determine whether conditions constitute an essentially local safety hazard). Although we review questions of statutory interpretation de novo, we are reluctant to disregard the commissioner’s conclusion that the ten-miles-per-hour speed limit is a reasonably necessary means of reducing a local traffic hazard when the safety of the traveling public is at issue.

The last two requirements of the savings clause are also met here. The train-speed limitation is not incompatible with federal laws or regulations. The only train speeds that the FRA imposes are maximum limits based on track size and condition under 49 C.F.R. § 213.9, and this regulation does not prohibit the reduction of train speeds under limited circumstances. The regulation specifically acknowledges the savings clause, belying Union Pacific’s argument that the FRA has precluded any additional regulation of local train speeds by virtue of its policy declarations.

Union Pacific concedes that the 11- to 13-minute delay in its schedule does not, standing alone, constitute an undue burden on interstate commerce, but argues that significant delays could result throughout the interstate rail system as a result of excessive local speed regulations. We concur with other jurisdictions that have rejected similar arguments as unduly speculative. See, e.g., Monongahela Connecting R.R. Co. v. Pennsylvania Pub. Util. Comm’n, 45 Pa.Cmwlth. 164, 404 A.2d 1376, 1380 (1979) (rejecting railroad’s argument that cumulative cost of installing many safer signal systems would prove unduly burdensome, where order required installation of a single system on a particular dangerous curve). The potential cumulative effect of relatively insignificant burdens on interstate commerce may be enough to invalidate a state regulation. See, e.g., Katzenbach v. McClung, 379 U.S. 294, 300, 85 S.Ct. 377, 382, 13 L.Ed.2d 290 (1964). But a strict application of that rule to every essentially local safety hazard that otherwise meets the requirements of the savings clause would entirely rob the exception of its potency. We conclude the commissioner’s order does not unduly burden interstate commerce.

DECISION

Pursuant to Minn.Stat. § 14.63 (1998) we have jurisdiction to review this matter as a certiorari appeal from a decision in a contested case hearing. The decision of the Commissioner of the Minnesota Department of Transportation to impose a ten-miles-per-hour speed limit on the one-mile segment of railroad track in downtown Shakopee is not preempted by federal law and meets the requirements of the savings clause under 49 U.S.C. § 20106 (1994).

Affirmed; motion denied.

      . The FRSA was originally enacted at 45 U.S.C. §§ 421 et seq., and was recodified at 49 U.S.C. §§ 20101-21311 in 1994.


source: Caselaw Access Project

author: AMUNDSON, Judge.

license: Public Domain

text:
    Patsy L. GOPLEN, William W. Morse, Respondents, v. OLMSTED COUNTY SUPPORT AND RECOVERY UNIT, Appellant.
    No. C4-99-1679.
    Court of Appeals of Minnesota.
    May 23, 2000.

      Patsy L. Goplen, -Kasson (pro se respondent).
    William W. Morse, Rochester (pro se respondent).
    Raymond F. Schmitz, Olmsted County Attorney, Julie S. Voigt, Assistant County Attorney, Rochester (for appellant).
    .Considered and decided by HALBROOKS, Presiding Judge, AMUNDSON, Judge, and WILLIS, Judge.
   OPINION

AMUNDSON, Judge.

Appellant Olmsted County Support and Recovery Unit (Olmsted County) challenges an order requiring that it institute income withholding against respondent Patsy Goplen, the former custodial parent of an emancipated child, in order to recover child support overpayments made to Goplen by respondent William Morse. We reverse and vacate the order.

FACTS

Patsy Goplen and William Morse are the parents of S.G., who was born on June 25, 1979. Morse’s paternity was established by an order dated March 12, 1981. The 1981 order awarded custody to Goplen and required Morse to make monthly child support payments through the Olmsted County Support and Recovery Unit. Under the order, child support payments were to continue until S.G. reached the age of 18 or until further order of the court. Over the years, the court issued subsequent orders adjusting the amount of Morse’s child support obligation, judging him in arrears for past-due support, and ordering income withholding.

S.G. turned 18 on June 25, 1997, but Morse continued to make child support payments until January 1, 1999, when Olmsted County notified the parties that it had discontinued income withholding against him. Morse then filed a petition seeking reimbursement from Goplen for child support overpayments made after June 25, 1997. Following a hearing on his motion, a child support magistrate determined that under the terms of the original 1981 order, Morse’s child support obligation ceased when S.G. reached age 18. After offsetting for arrearages Morse still owed as of June 25, 1997, the magistrate found that Goplen had received $4,268.28 in overpayments. The magistrate ordered that Olmsted County institute income withholding against Goplen’s wages in the amount of $35.20 per month until the overpayment amount was reduced to zero.

Olmsted County moved to amend the findings, conclusions, and order, arguing that the child support enforcement statutes did not authorize the recovery of overpayments through income withholding against an obligee parent’s wages. The magistrate denied the motion on August 20,1999, and this appeal followed.

ISSUE

Did the magistrate err by ordering a public authority to institute income withholding against an obligee parent in order to recover child support overpayments following termination of the underlying child support obligation?

ANALYSIS

Olmsted County argues that the magistrate based its order on an erroneous interpretation of the governing statutory authority. Statutory construction is a question of law and thus fully reviewable by this court. Hibbing Educ. Ass’n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).

Olmsted County does not dispute that Morse is entitled to recover his excess child support payments from Goplen. The sole question on appeal is whether the magistrate can require Olmsted County to institute income-withholding procedures against Goplen to recover the overpayment.

The magistrate based its authority to order withholding of Goplen’s income on the provisions of Minn.Stat. §§ 518.642 (1998) and 518.6195(a) (1998). Olmsted County argues that neither statute empowers a public authority to institute income withholding in order to recover child support overpayments. We agree.

Section 518.642 specifically addresses overpayments of child support. The statute directs a public authority such as Olmsted County to recover overpayments by first reducing an obligor’s outstanding ar-rearages by the amount of the overpayment. Minn.Stat. § 518.642(1). If any overpayment remains, the public authority must then reduce the amount of child support paid to the obligee by no more than twenty percent and remit the excess to the obligor until the overpayment is reduced to zero. MinmStat. § 518.642(2). The statute does not address the situation presented in this case, where no arrearages or future monthly child support obligations remain against which overpayments may be offset.

Minn.Stat. § 518.6195, which is subtitled “Collection; arrears only,” similarly does not address the collection of overpayments from obligees under the circumstances presented here. Rather, it provides.

Remedies available for the collection and enforcement of support * * * apply to cases in which the child or children for whom support is owed are emancipated and the obligor owes past support or has an accumulated arrearages as of the date of the youngest child’s emancipation.

Minn.Stat. § 518.6195(a). By its terms, 'the statute only applies to the survival of remedies for the collection of arrearages owed by an obligor. The statute does not apply to the recovery of child support overpayments from an obligee parent under Minn.Stat. § 518.642. Under the doctrine of ejusdem generis, the general wording of a statute must be interpreted to include only matters of the same kind or class as those specifically enumerated, State v. End, 232 Minn. 266, 272, 45 N.W.2d 378, 381 (1950), in this case, the collection of arrears. Here, the doctrine forbids use of the statutory method of recovering overpayments.

Moreover, even if Minn.Stat. § 518.6195(a) did apply to collection remedies available against an obligee parent, it could not justify the magistrate’s order, which essentially provides a remedy to Morse that does not exist under the statute. This result is inconsistent with the well-established rule that “[wjhere a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others.” Maytag Co. v. Commissioner of Taxation, 218 Minn. 460, 463, 17 N.W.2d 37, 40 (1944). In interpreting statutes, a court “cannot supply that which the legislature purposely omits or inadvertently overlooks.” Wallace v. Commissioner of Taxation, 289 Minn. 220, 230,184 N.W.2d 588, 594 (1971).

The magistrate reasoned that because a public authority may recover overpay-ments by reducing current child support payments to an obligee by up to 20 percent under section 518.642(2), it may institute income withholding against an obligee in an equivalent amount if the support obligation has terminated. But no authority exists for Olmsted County to institute income withholding against an obligee’s wages, either before or after a child’s emancipation. The support statutes only provide for income withholding against an obligor, and section 518.642 only permits recovery of overpayments from an obligee by offsetting arrearages or reducing child support payments.

The provisions relied on by the magistrate do not empower Olmsted County to recover child support overpayments by withholding income from an obligee parent, and our review of the relevant statutes reveals no alternative ground on which the order can be affirmed.

DECISION

The magistrate erred by ordering Olmsted County to institute income withholding against respondent Patty Goplen in order to recover child support overpay-ments.

Reversed; order vacated.

      . Although respondents Goplen and Morse are named parties in the underlying action, Olmsted County is the only party appearing on appeal.

      . Under 1999 legislation, references to an "administrative law judge" changed to a "child support magistrate” throughout the dissolution and support statutes. See 1999 Minn. Laws ch. 196, art. 2.


author: DANIEL F. FOLEY, Judge

text:
    Henry CANFIELD, et al., Appellants, v. GRINNELL MUTUAL REINSURANCE COMPANY, an insurance company licensed to do business in the State of Minnesota, et al., Defendants, Donald Starzinski, M.D., Respondent, Value Medical Resources, Inc., Respondent.
    No. C1-99-1753.
    Court of Appeals of Minnesota.
    May 23, 2000.

      Michael Alen Bryant, Bradshaw & Bryant Law Offices, Waite Park, for appellants.
    William M. Hart, Rodger A. Hagen, Melissa Dosick Riethof, Meagher & Geer, P.L.L.P., Minneapolis, for respondent Starzinski.
    Sonya Rae Braunschweig, Larkin, Hoffman, Daly & Lindgren, Bloomington, for respondent Value Medical Resources, Inc.
    Considered and decided by RANDALL, Presiding Judge, AMUNDSON, Judge, and DANIEL F. FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge

Appellant Henry Canfield sued respondent Dr. Donald Starzinski for negligence, battery, medical malpractice, and negligent nondisclosure, claiming that he was injured while respondent was performing an independent medical examination. The district court granted statutory dismissal to Star-zinski on the ground that Canfield’s claims were not supported by a sufficient expert affidavit as required by Minn.Stat. § 145.682 (1996). Canfield contends that section 145.682 applies only to malpractice claims, and not to his negligence and battery claims for injuries that occurred during an independent medical evaluation, that no disclosure was needed here in any event, and that the affidavit he submitted was sufficient.

FACTS

Henry Canfield was in an automobile accident, which eventually required him to undergo spinal surgery on September 3, 1996. His automobile insurance carrier, Grinnell Mutual Reinsurance Company, exercised its statutory right to require Canfield to submit to an independent medical examination (IME). Grinnell used a referral agency, respondent Value Medical Resources, Inc. (Value Medical), to set up the examination. Dr. Donald Starzinski examined Canfield on September 14, 1996, 11 days after his spinal surgery.

During the examination, Starzinski had Canfield remove his protective collar so that he could examine the neck and shoulder area. Canfield alleges that Starzinski forcibly pushed on the area that had been recently subjected to surgery, causing pain in his neck and a tingling sensation in both hands. Canfield also claims that after the surgery he was doing well, but following the examination by Starzinski he experienced pain and was told by his personal doctor that a bone graft had been forced out of place.

Canfield brought this lawsuit against Dr. Starzinski, Grinnell, Value Medical, and others, alleging negligence, battery, negligent nondisclosure, and medical malpractice. He submitted, an expert affidavit by Dr. D.M. VanNostrand. Dr. Starzinski moved for summary judgement or statutory dismissal, arguing that the expert affidavit was insufficient under Minn. Stat § 145.682 (1996). The trial court dismissed all of Canfield’s claims against Starzinski for failure to submit- sufficient expert affidavits. The parties stipulated to dismissal of all claims against Grinnell (pursuant to Pierringer Release) and Value Medical (without prejudice under Minn. R. Civ. P. 41.01(a)), and the trial court dismissed all remaining parties. Canfield appeals the trial court’s dismissal of all claims against Starzinski.

ISSUES

I. Does Minn.Stat. § 145.682 (1996) apply to, a claim against an independent medical examiner who was not engaged in the treatment of the plaintiff?

II. Was Value Medical a proper respondent for purposes of this appeal?

ANALYSIS

I.

.Generally, “a trial court’s dismissal of an action for procedural irregularities will be reversed on appeal only if it is shown that the trial court abused its discretion.” Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990) (citation omitted). . We review a dismissal for violating Minn.Stat. § 145.682 (1996) under an abuse of discretion standard. Haile v. Sutherland, 598 N.W.2d 424, 426-27 (Minn.App.1999). But statutory construction is a question of law that this court reviews de novo on appeal. Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn.1996).

The Minnesota legislature enacted Minn.Stat. § 145.682, entitled “Malpractice Actions; Expert Review,” to prevent frivolous medical malpractice lawsuits by requiring plaintiffs to file expert affidavits supporting their allegations of malpractice. Oslund v. United States, 701 F.Supp. 710, 712-14 (D.Minn.1988); Stroud, 556 N.W.2d at 555; Haile, 598 N.W.2d at 427; see also F. Patrick Hubbard, The Physicians’ Point of View Concerning Medical Malpractice: A Sociological Perspective on the Symbolic Importance of “Tort Reform, ” 23 Ga. L.Rev. 295, 326 n. 126 (1989) (including Minn.Stat. § 145.682 as an example of heath care tort reform).

A physician is usually liable for malpractice only where a physician-patient relationship exists. Henkemeyer v. Boxall, 465 N.W.2d 437, 439 (Minn.App.1991), review denied (Minn. Mar. 27, 1991). See generally, Holly Piehler Rockwell, Annotation, What Nonpatient Claims Against Doctors, Hospitals, or Similar Health Care Providers Are Not Subject to Statutes Specifically Governing Actions and Damages for Medical Malpractice, 88 A.L.R.4th 358 (1991). And we have previously held that

[a]n insured who is examined by a physician at the direction of the insured’s insurance company does not stand in a “patient-physician” relationship with the examining physician. Therefore, a malpractice claim against the physician for that examination will not lie.

Saari v. Litman, 486 N.W.2d 813, 815 (Minn.App.1992); see Peterson v. St. Cloud Hosp., 460 N.W.2d 635, 638 (Minn.App. 1990) (holding physician-patient relationship depends on whether care was contracted for with express or implied consent of patient for patient’s benefit); see also Smith v. Katzman, 81 Ohio App.3d 682, 611 N.E.2d 1013, 1016 (1992) (negligent examination of employee by employer’s physician not malpractice).

Generally Minn.Stat. § 145.682 has been applied to malpractice cases between health care providers and their patients. See, e.g., Lindberg v. Health Partners, Inc., 599 N.W.2d 572 (Minn.1999) (malpractice case where clinic failed to advise expectant mother to come to hospital and baby was stillborn); Stroud, 556 N.W.2d 552 (action by trustee against hospital for failure to diagnose and treat); Thorson v. Rice County Dist. One Hosp., 437 N.W.2d 410 (Minn.1989) (patient who became paraplegic sued hospital alleging doctor’s negligent emergency treatment); Haile, 598 N.W.2d 424 (malpractice claim by patient against doctor who performed her surgery); Parker v. O’Phelan, 414 N.W.2d 534 (Minn.App.1987) (claim against doctor and hospital for negligent medical care and treatment), affd mem. 428 N.W.2d 361 (Minn.1988). Minnesota appellate courts have applied Minn.Stat. § 145.682 only to negligence claims against a health care provider who diagnosed or treated a patient.

The issue in this case is whether the expert affidavit requirement applies to a claim against a doctor who was not providing care and treatment, but was conducting an IME required and paid for by an insurer. We hold that because this is not a claim for medical malpractice, Minn. Stat. § 145.682 does not apply.

The “Malpractice Actions; Expert Review” statute requires that:

[i]n an action alleging malpractice, error, mistake, or failure to cure, whether based on contract or tort, against a health care provider which includes a cause of action as to which expert testimony is necessary to establish a prima facie case, the plaintiff must: (1) unless otherwise provided in subdivision 3, paragraph (b), serve upon defendant with the summons and complaint an affidavit as provided in subdivision 3; and (2) serve upon defendant within 180 days after commencement of the suit an affidavit as provided by subdivision 4.

Minn.Stat. § 145.682, subd. 2.

Subdivision one of the statute defines “health care provider” as

a physician, surgeon, dentist, or other health care professional or hospital, including all persons or entities providing health care as defined in section 145.61, subdivisions 2 and 4, or a certified health care professional employed by or providing services as an independent contractor in a hospital.

Minn.Stat. § 145.682, subd. 1.

Minn. Stat. § 145.61 (1996) provides definitions for “professional” and “health care.” Under this statute, “professional” means a person licensed or registered to practice a healing art. Minn.Stat. § 145.61, subd. 2. Licenses for practicing medicine are required for prescribing drugs, performing surgery, or attempting to

prevent or to diagnose, correct, or treat * * ⅜ any disease, illness, pain, wound, fracture, infirmity, deformity or defect of any person!.]

Minn.Stat. § 147.081, subd. 3 (1996). And “health care” refers to

professional services rendered by a professional or an employee of a professional and services furnished by a hospital, sanitarium, nursing home or other institution for the hospitalization or care of human beings.

Minn.Stat. § 145.61, subd. 4. Although independent medical examiners may be licensed health care providers, because they are not providing care or treatment at the time of their examination, this statute does not cover them.

Other states have defined “health care provider” for the purposes of tort reform statutes and statutes of limitations, and most of the definitions include providing health care and treatment to patients. See, e.g., Arenz v. Bronston, 224 Wis.2d 507, 592 N.W.2d 295, 298 (Wis.Ct.App.1999) (defining “health care provider” as individual involved in diagnosis, treatment or care of patient who is licensed by state to do so); Troyer v. Dept. of Health & Soc. Servs., 722 P.2d 158,161 (1986) (summarizing “health care provider” as “one who cures or prevents impairments of the normal state of the body”). See generally George L. Blum, Annotation, Medical Malpractice: Who Are “Health Care Providers,” or the Like, Whose Actions Fall within Statutes Specifically Governing Actions and Damages for Medical Malpractice, 12 A.L.R.5th 1 (1993) (reporting application of various states’ definitions of “health care provider,” none of which directly address IMEs).

Judges and attorneys alike are mindful that in Minnesota courtrooms and courtrooms across the country, independent medical examiners testify daily in injury actions. When asked if, as an independent medical examiner, they are responsible for the care and treatment of the injured claimant, the response is always “no.” We conclude there is no credible showing that, in such situations, the statute in question applies.

After reviewing the statutes and cases and taking into consideration the legislative purpose of the law, this court understands that expert affidavits are required when a -health care provider is accused of “malpractice, error, mistake, or failure to cure” as a result of giving care or treatment. Because Starzinski did not provide any diagnosis, care, or treatment to Can-field during the IME, Starzinski was not acting as a health care provider under Minn.Stat. § 145.682. Under these circumstances, the expert affidavit requirement does not apply, and we reverse the dismissal and remand for trial.

II.

The trial court dismissed Value Medical by agreement of the parties. Because no party has raised any issue involving Value Medical, it is dismissed from this appeal.

DECISION

Because the expert affidavit requirement of MinmStat. § 145.682 does not apply to Canfield’s battery and negligence claims against independent medical examiner Dr. Starzinski, the district court erred in dismissing these claims and we remand for trial. Value Medical is not a respondent for purposes of this appeal.

Reversed and remanded.

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

      . Independent medical examinations are sometimes referred to as adverse medical examinations.

      . This is a separate and distinct claim from the car accident injury and resulting surgery.

      . A Westlaw search in the "Minnesota Cases” database yielded 63 opinions (30 published and 33 unpublished) citing Minn.Stat. § 145.682. All of these cases involved diagnosis, care, or treatment given by a health care provider to a patient/plaintiff who later alleged malpractice. The only case not involving allegedly negligent conduct by a treating health care provider is Porter v. Children's Health-Care, No. C5-98-1342, 1999 WL 71470 (Minn.App. Feb.16, 1999), review denied (Minn. Apr. 28, 1999), where we held the expert affidavit requirement applied to a plaintiff alleging hospitals were negligent for violating standards requiring unfettered access to emergency medical treatment. But even in that case, the allegations related to the "hospital's conduct in facilitating and delivering emergency medical care to patients.” Id. at *3 (emphasis added).


author: SHUMAKER, Judge.

text:
    Michael ROQUEMORE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. C8-99-1930.
    Court of Appeals of Minnesota.
    May 23, 2000.

      Joseph T. Herbulock, William L.H. Lu-bov, Golden Valley, MN (for appellant),
    Bradley T. Cosgriff, Hopkins, MN (for respondent).
    Considered and decided by SHUMAKER, Presiding Judge, CRIPPEN, Judge, and KLAPHAKE, Judge.
   OPINION

SHUMAKER, Judge.

Appellant Michael Roquemore appeals the district court’s grant of summary judgment in favor of respondent State Farm, arguing that the loss of an athletic scholarship constitutes a loss of income under the Minnesota No-Fault Insurance Act. We affirm.

FACTS

Roquemore suffered injuries to his back, hip, and knee when he was hit by a car as he walked on a street. At the time of the accident, he was attending a university on a football scholarship that paid his tuition, room, and board. Because of his injuries, Roquemore could not play football and the university did not renew his scholarship.

Since Roquemore did not own a car, he sought no-fault income-loss benefits from State Farm, the insurer of the driver who struck him. He petitioned for arbitration and State Farm moved in district court to stay the arbitration. Both parties moved for summary judgment on the question of whether the loss of a scholarship qualifies as a loss of income under the no-fault insurance act. Ruling that a lost scholarship is not a loss of income, the district court granted State Farm’s motion. Ro-quemore appealed.-

ISSUE

Does the loss of a college athletic scholarship that paid for tuition, room, and board constitute a loss of income under the Minnesota No-Fault Insurance Act?

ANALYSIS

“On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of matérial fact and (2) whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). A reviewing court is not bound by and need not give deference to a trial court’s decision on a purely legal issue. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

The facts here are not in dispute. The parties agree that Roquemore’s injuries prevent him from playing football for the university. The only issue is the interpretation of the no-fault act. Interpretation of the no-fault act is a- question of law, which this court reviews de novo. Rotation Eng’g & Mfg. Co. v. Secura Ins. Co., 497 N.W.2d 292, 294 (Minn.App.1993). The object of statutory interpretation is to determine and give effect to the legislature’s intent. Lenz v. Depositors Ins. Co., 561 N.W.2d 559, 561 (Minn.App.1997), review denied (Minn. June 11,1997).

Roquemore claimed benefits under Minn.Stat. § 65B.44, subd. 3 (1998), the no-fault income-loss provision:

Disability and income loss benefits shall provide compensation for 85 percent of the injured person’s loss of present and future gross income from inability to work.proximately caused by the nonfatal injury subject to a maximum of $250 per week.

To be eligible for income-loss benefits, a person must show that at the time of the injury he (1) was employed, (2) had a definite offer of employment, or (3) had consistently been employed such that a specific future period of employment could reasonably be predicted. Keim v. Farm Bureau Ins. Co., 482 N.W.2d 823, 825 (Minn.App.1992), review denied (Minn. May 21, 1992). Roquemore argues that playing football for the university was work, for which he was paid by scholarship, and the work was no different from a traditional job at the university in exchange for tuition, room, and board. State Farm argues that playing football for a university was not work because Roque-more did not receive a “wage or profit.”

To determine whether playing football is “employment” or “work,” we must ascertain whether Roquemore was earning any income from playing football before the accident. See Rindahl v. National Farmers Union Ins. Cos., 373 N.W.2d 294, 298 (Minn.1985) (to determine whether claimant was entitled to loss-of-income benefits under no-fault act, court looked at whether prior farmwork was gainful employment in sense that it generated income).

The definition of “income” is critical to the question of recoverable benefits. Mike Steenson, Disability and Income Loss Benefits Under the Minnesota No-Fault Act, 24 Wm. Mitchell L.Rev. 1055, 1068 (1998). Income is defined in the no-fault act as

salary, wages, tips, commissions, professional fees, and other earnings from work or tangible things of economic value produced through work in individually owned businesses, farms, ranches or other work.

Minn.Stat. § 65B.43, subd. 6 (1998).

Under the doctrine of ejusdem generis, when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed.

Black’s Law Dictionary 535 (7th ed.1999); see also Minn.Stat. § 645.08(3) (1998) (“[gjeneral words are construed to be restricted in their meaning by preceding particular words”). Appellant argues that his scholarship constituted income from playing football because, under the statute, it is a “tangible economic asset that can be calculated.” However, interpretation of “tangible thing of economic value” must be construed as applying only to things of the same general class as “salary, wages, tips, commissions, [and] professional fees.” Minn.Stat. § 65B.43, subd. 6. Those items constitute money that the earner may spend as he chooses. Roquemore does not receive money for playing football for the university; he receives a scholarship entitling him to free tuition, room, and board at the university. Thus, a scholarship does not fall within the same general class as salary, wages, tips, commissions, or professional fees. We believe the legislature did not intend, by using the phrase “tangible things of economic value,” to include scholarships given by a university in exchange for playing sports.

Because this court is limited to correcting errors, it cannot create public policy. Thus, in the face of clear statutory language, Roquemore’s policy arguments must fail. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988) (reversing court of appeals, noting “[t]he function of the court of appeals is limited to identifying errors and then correcting them”); see also Blanche v.1995 Pontiac Grand Prix, 599 N.W.2d 161,169 (Minn.1999) (Stringer, dissenting) (“[W]e have long recognized that ‘[c]ourts have nothing to do with the wisdom or expediency of statutes. The remedy for unwise or inexpedient legislation is political and not judicial.’ ”) (quoting Hickok v. Margolis, 221 Minn. 480, 485, 22 N.W.2d 850, 852 (1946)).

DECISION

Loss of an athletic scholarship does not constitute a loss of income under the Minnesota No-Fault Insurance Act.

Affirmed.


author: G. BARRY ANDERSON, Judge

text:
    Stuart NOLAN, et al., Appellants, Tom Hansen, et al., Plaintiffs, v. CITY OF EDEN PRAIRIE, James Perkins, et al., Respondents.
    No. C9-99-1967.
    Court of Appeals of Minnesota.
    May 23, 2000.

      Robert J. Tansey, Jr., Mark D. Wisser, Douglas R. Boettge, Robins, Kaplan, Miller <& Ciresi L.L.P., Minneapolis, for appellants.
    George C. Hoff, Kimberly B. Kozar, Hoff, Barry & Kuderer, P.A., Eden Prairie, for respondent Eden Prairie.
    Jeffrey H. Olson, Leonard, O’Brien, Wilford, Spencer & Gale, Ltd., St. Paul, for respondents James and Raynelle Perkins, Pearl Freeburg, and Bank of Maple Plain.
    Considered and decided by PETERSON, Presiding Judge, KALITOWSKI, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge

Appellants Stuart Nolan, et al., challenge the respondent City of Eden Prairie’s approval of variances related to a preliminary plat, contending that the approval was in violation of statute and ordinance, and was arbitrary and capricious. Appellants also challenge approval of the preliminary plat, contending that a council member who had an unlawful conflict of interest cast the deciding vote. We affirm.

FACTS

Respondents James Perkins, et al., own lakefront property located on Willow Creek Road. In 1989, the city approved a subdivision of the property into three lots along with nine variances. In 1998, Perkins filed an application with the city for revised preliminary platting. In connection with the application, Perkins attended several meetings of the city’s staff development review committee and the planning commission, and met with the Minnesota Pollution Control Agency (MPCA) to assure that the proposed shared septic system complied with state standards. In January 1999, the planning commission reviewed the request and approved the revised preliminary plat by a 7-0 vote.

On March 2, 1999, the city council approved the preliminary plat by a vote of 3-2. The council was provided with a staff summary of the requested council action, which described the joint septic system as acceptable and summarized and attached three Department of Natural Resources (DNR) letters. The DNR letters detailed the standard minimum lot size and lake-shore setback, and commented on the heavy burden of showing hardship required for variances. The council members voting for the revised plat all expressed the opinion that the new plan was “more acceptable” or “better” than the previously approved 1989 plan.

On March 23, 1999, Nolan’s attorney wrote the city attorney requesting that the city “formally acknowledge” that the preliminary plat vote failed on a 2-2 vote of disinterested council members because council member Ross Thorfinnson, Jr. had a disqualifying conflict of interest. The letter asserted that the law requires that council member Thorfínnson’s vote be set aside because he shares office space with attorneys Thomas Thorfinnson and Ross Thorfinnson, Sr., and the Thomas Thor-finnson and Ross Thorfinnson, Sr. law firm represents the Perkins in related litigation. On April 9, 1999, the city attorney sent a responsive letter disagreeing with the legal conclusion that Ross Thorfinnson, Jr. had a disqualifying conflict of interest.

On May 13, 1999, the city’s board of adjustments and appeals denied the requested variances related to the preliminary plat. On July 6, 1999, the city council reviewed the variance request and reversed the board by a 3-2 vote. The city attorney spoke at length about the legal standard for variances, explaining that:

The standard to which the Council is held is not that there cannot be any other reasonable use of the property, but a determination of whether this is a reasonable use of the property under the circumstances, and one that would not otherwise be allowed because of the requirement of the code.

The council memorialized its July 6 decision with findings that included the following:

8. The Preliminary Plat contains an improvement in the setback for Lot 1, which under the Preliminary Plat is 100 feet from the shoreland, whereas under the 1989 plat, it was 80 feet.
9. The Preliminary Plat contains an improvement in the setback for Lot 2, which under the Preliminary Plat is 75 feet from the shoreland, whereas under the 1989 plat, it was 40 feet.
10. Under the Preliminary Plat, the house pad on Lot 1 is moved 20 feet to the south to save vegetation next to the adjacent property.
11. The new drain fields provided for in the Preliminary Plat are further from the lake than under the 1989 plan. All three lots in the Preliminary Plat meet the 100 foot setback to the drain fields, whereas, only one of the lots met the requirement under the 1989 plan.
12. Under the Preliminary Plat, two of the three lots meet the requirement of frontage on a public street, whereas, under the 1989 plan, only one of the lots met that requirement.
13. Under the Preliminary Plat, two of the three lots meet the 150 foot lot width at the ordinary high water mark and the third lot is 145 feet at the ordinary high water mark requiring a variance of five feet. Under the 1989 plat, two of the three lots also met the requirement, but the third lot was only 80 feet at the ordinary high water mark.
14. The proposed use of the property is residential, in keeping with the character of the area. The three lots in the Preliminary Plat will have as much or greater shoreland than homes 'in the surrounding area.
15. The property presents unique circumstances in that there is difficulty in creating house pads and lot lines because the property is located at the terminus of a cul-de-sac.
16. The property further presents unique circumstances in that it is characterized by a stand of trees and a grade change from 896 feet to 856 feet, representing a grade change of 44 feet.

Meanwhile, on May 20, 1999, appellants had filed a complaint against the city seeking declaratory judgment that the revised preliminary plat approval vote failed because of a disqualifying conflict of interest. On August 11, 1999, appellants filed an amended complaint seeking further declaratory judgment that variances granted by the city were invalid because there was no showing of undue hardship as required by ordinance and statute, and because the council acted arbitrarily and capriciously. The amended complaint also named the Perkins as defendants and sought injunc-tive relief barring development of the property. After a hearing, the district court granted summary judgment, finding there were no material fact issues and concluding that the city’s determination that variance criteria were met was not arbitrary and capricious and that there was no disqualifying conflict of interest. Judgment was entered and this appeal followed.

ISSUES

1. Did a city council member have a disqualifying conflict of interest in the city’s preliminary plat approval?

2. Was the city’s variance approval in violation of governing statute and ordinance, or otherwise arbitrary and capricious?

ANALYSIS

The district court shall grant summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). On appeal, this court must view the evidence in the light most favorable to the party against whom judgment was granted. Id.

I.

Appellants argue that council member Thorfinnson had a disqualifying conflict of interest because he shared office space with his brother’s law firm, which was representing Perkins in appellants’ challenge to the earlier 1989 plat. In Lenz, our supreme court addressed the issue of a disqualifying conflict of interest:

The purpose behind the creation of a rule which would disqualify public officials from participating in proceedings in a decision-making capacity when they have a direct interest in its outcome is to insure that their decision will not be an arbitrary reflection of their own selfish interests. There is no settled general rule as to whether such an interest will disqualify an official. Each case must be decided on the basis of the particular facts present. Among the relevant factors that should be considered in making this determination are: (1) The nature of the decision being made; (2) the nature of the pecuniary interest; (3) the number of officials making the decision who are interested; (4) the need, if any, to have interested persons make the decision; and (5) the other means available, if any, such as the opportunity for review, that serve to insure that the officials will not act arbitrarily to further their selfish interests.

Lenz v. Coon Creek Watershed Dist., 278 Minn. 1, 15, 153 N.W.2d 209, 219 (1967).

In this case, there is no evidence that council member Thorfinnson had a direct interest in the preliminary plat application. According to his deposition testimony, he did not know that his brother’s firm was representing the Perkins in the 1989 plat litigation until he was so informed on the day of the March 2 vote. Even if he did have a direct interest in the preliminary plat approval, application of the Lenz factors does not lead to the conclusion that he should be disqualified. He has no obvious pecuniary interest and he is not involved in any contractual way. We conclude that there is no evidence supporting any reasonable argument that a conflict occurred here.

II.

In considering zoning cases, this court reviews the decision of the city council independent of the findings and conclusions of the district court. VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn.1983). Regardless of whether the zoning matter was legislative or quasi-judicial, we determine whether the municipality’s action in the particular case was reasonable. Id. We examine the action to determine whether it was arbitrary or capricious, or whether the reasons articulated by the municipality do not have the slightest validity or bearing on the general welfare, or whether the reasons were legally sufficient and had a factual basis. Id.

A municipality has broad discretionary power when considering an application for variances. Id. at 507-08. The fact that a reviewing court may have arrived at a different conclusion does not invalidate the judgment of the city officials if they acted in good faith and within the broad discretion accorded them by statutes and the relevant ordinances. Id. at 508.

a. Statutory Standard

Appellants argue that the city granted the variances in violation of governing state statute and municipal ordinance. Minnesota law provides that a zoning authority may:

hear requests for variances from the literal provisions of the ordinance in instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration, and to grant such variances only when it is demonstrated that such actions will be in keeping with the spirit and intent of the ordinance. “Undue hardship” as used in connection with the granting of a variance means the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls, the plight of the landowner is due to circumstances unique to the property not created by the landowner, and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone shall not constitute an undue hardship if reasonable use for the property exists under the terms of the ordinance.

Minn.Stat. § 462.357, subd. 6(2) (1998). The Eden Prairie City Code, § 11.76, subd. 1, (1984) also authorizes the granting of variances and tracks the language of Minn.Stat. § 462.357, subd. 6(2).

Appellants argue that the city council did not grant the variances for a hardship but merely because they found the new plan reasonable. Appellants urge that the city may grant a variance for undue hardship only if the landowner can put the property to no other reasonable use. See VanLandschoot, 336 N.W.2d at 509 (upholding denial of variances because even with denial there was a reasonable use for property); Tuckner v. Township of May, 419 N.W.2d 836, 839 (Minn.App.1988) (upholding denial of variances for failure to establish undue hardship because landowner can continue to use the property for its present reasonable use). The city responds that the correct standard is whether the proposal was reasonable under the circumstances, and would not be allowed except by granting the variances.

In Rowell, this court squarely addressed the question and explained that the statutory undue hardship requirement “does not mean that a property owner must show the land cannot be put to any reasonable use without the variance.” Rowell v. Board of Adjustment of the City of Moorhead, 446 N.W.2d 917, 922 (Minn.App.1989), review denied (Minn. Dec. 15, 1989). Rather, the undue hardship standard requires a showing that the property owner would like to use their property in a reasonable manner that is prohibited by ordinance. Id; see also Sagstetter v. City of Saint Paul, 529 N.W.2d 488, 492 (Minn.App.1995) (applying reasonable use standard). Rowell makes clear that the three statutory requirements for granting a variance under the undue hardship standard are (1) reasonableness, (2) unique circumstances and (3) essential character of the locality. Rowell, 446 N.W.2d at 922.

First, we must evaluate the reasonableness of the requested variances against the fact that the city previously granted the Perkins a number of variances in 1989. The newer variances granted in 1999 bring the property closer to compliance with the conditions allowed by the official controls. The city’s findings number eight through thirteen listed the. ways in .which the 1999 variances vary less from code provisions than the 1989 variances. The reasonableness analysis might differ if the city had approved a request that was further from the original ordinance rather than more compliant. But here the variance request is reasonable because it is in keeping with the spirit and intent of the ordinance. See Merriam Park Community Council, Inc. v. McDonough, 297 Minn. 285, 291, 210 N.W.2d 416, 420 (1973) overruled on other grounds, Northwestern College v. City of Adren Hills, 281 N.W.2d 865, 868 n. 4 (Minn.1979).

Second, there is no dispute that the land has unique circumstances. The unique circumstances of the Perkins property weré detailed in the city’s finding number 15' and 16 — -the property is located at the end of a cul-de-sac, and has a stand of trees and a significant grade change of 44 feet. This finding reasonably supports the city’s conclusion that unique circumstances justify granting the variances. Appellants-.argue, however, that the Perkins plight is of their own making and that their purpose in requesting variances is purely to increase resale value. Appellants seemingly ignore that the Perkins already had the 1989 variances and platting, and that the requested 1999 variances were arrived at after working with city staff over a period of months.

The third statutory requirement is that the variances not alter the essential character of the locality. The city’s finding number fourteen was that the proposed use is in keeping with the character of the locality. Appellants, however, contend that the average lot size in the neighborhood is 1.556 acres and protest that one lot under the 1999 configuration is only .62 acres. How the one undersized lot significantly alters the éssential character of the neighborhood is not entirely clear. Appellants also protest -the loss of open space, but the 1999 plan preserves as much, if not more, open space than the prior 1989 plan.

In sum, because the city’s findings adequately addressed the three statutory requirements as described in Rowell, the statutory standard was satisfied.

b. Arbitrary and Capricious

Appellants further argue that the variances were granted arbitrarily and capriciously in disregard of MPCA rules and DNR requirements. But appellants can point to no governing rule or ordinance requiring MPCA or DNR approval for the issuance of variances by a municipality. The MPCA does have sewage treatment standards that have been adopted by the city, but no MPCA approval is required. Both the city and the Perkins contend that the' proposed septic system is in compliance with those standards, and appellants do not detail their assertion that the proposed septic system does not meet those standards.

As to DNR approval, the DNR letters articulate the DNR’s standards, including the 100-foot shoreland setback. Minnesota Rules explain that:

These minimum standards and criteria apply to those shorelands of public waters of the state which are subject to local government land use controls. They are intended to be incorporated into local government shoreland management controls'. Each local government is responsible for administration and enforcement of its shoreland management controls adopted in compliance with these standards and criteria.

Minn. R. .6120.2800, subp. 1 (1997). Variances are granted in accordance with statute. Minn. R. 6120.3900, subp. 3 (1997). It is precisely because one of the lots does not meet the DNR 100-foot setback as required by city ordinance that a variance is required. We conclude that the city did not grant the variances arbitrarily or capriciously.

DECISION

There is no evidence of a disqualifying conflict of interest so as to invalidate the city’s preliminary plat approval. The city’s approval of related variances satisfied the statutory requirements for undue hardship and was not arbitrary or capricious.

Affirmed.


author: DORIS OHLSEN HUSPENI, Judge.

text:
    Mark Allan BORTNEM, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. C4-99-1598.
    Court of Appeals of Minnesota.
    May 23, 2000.

      Jeffrey Stephen Sheridan, Inver Grove Heights, for appellant.
    Mike Hatch, Attorney General, Peter Reed Marker, Assistant Attorney General, St. Paul, for respondent.
    Considered and decided by AMUNDSON, Presiding Judge, RANDALL, Judge, and DORIS OHLSEN HUSPENI, Judge.
   OPINION

DORIS OHLSEN HUSPENI, Judge.

Appellant Mark Allan Bortnem challenges the district court’s order concluding that: (1) Bortnem’s blood was drawn by a qualified person pursuant to Minn.Stat. § 169.123, subd. 3 (1998), and (2) Minn. Stat. § 634.15 (1998), which provides that certain certificates of analysis and blood sample reports shall be admissible at an implied consent hearing, is constitutional. Because the officer who drew Bortnem’s blood was not one of the qualified individuals listed under Minn.Stat. § 169.123, subd. 3, we reverse; we do not address the issue of constitutionality of the statute.

FACTS

Officer Mike Vandervort of the Cottage Grove Police Department stopped appellant’s vehicle and eventually arrested appellant for driving while intoxicated. At the police station, appellant agreed to submit to a blood alcohol concentration test. Officer Vandervort obtained a Bureau of Criminal Apprehensions (BCA) blood-testing kit, withdrew appellant’s blood, and sent it to the BCA for analysis. The blood-testing kit was sealed and intact.

Officer Vandervort is an emergency medical technician paramedic. He is nationally registered, has an intensive care medic’s degree, and is certified by the State of Minnesota EMS Regulatory Board. He testified that he received several hundred hours of training in order to obtain state certification, including 100-200 draws of blood, approximately 50 for the purpose of determining alcohol concentration.

The blood sample was analyzed by a BCA forensic scientist, revealing that appellant had an alcohol concentration of .14. Subsequently, the Commissioner of Public Safety revoked appellant’s driver’s license.

At the implied consent hearing, appellant challenged Officer Vandervort’s qualifications to withdraw blood under Minn. Stat. § 169.123, subd. 3 (1998), and also challenged the constitutionality of Minn. Stat. § 634.15 (1998) on the ground that it violates the separation of powers doctrine. In sustaining the commissioner’s revocation of appellant’s driving privileges, the district court concluded:

Officer Vandervort, as a certified paramedic with experience in drawing blood, qualifies as an individual permitted to draw blood [under] Minn.Stat. § 169.123, subd. 3.

The district court further concluded that Minn.Stat. § 634.15 did not violate the separation of powers doctrine.

ISSUES

1. Was Officer Vandervort qualified under Minn.Stat. § 169.123, subd. 3 (1998), to withdraw appellant’s blood for purposes of determining his alcohol concentration?

2. Does Minn.Stat. § 634.15 (1998) violate the separation of powers doctrine?

ANALYSIS

I.

As the proponent of the alcohol concentration test, the state has the initial burden to “establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability.” State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977). A reviewing court is not bound by and need not give deference to a district court’s determination of law. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

Minn.Stat. § 169.123, subd. 3(a) (1998), provides:

Only a physician, medical technician, physician’s trained mobile intensive care paramedic, registered nurse, medical technologist or laboratory assistant acting at the request of a peace officer may withdraw blood for the purpose of determining the presence of alcohol, controlled substances, or hazardous substances.

Bortnem argues that because Officer Van-dervort was not “a physician, medical technician, physician’s trained mobile intensive care paramedic, registered nurse, medical technologist, or laboratory assistant acting at the request of a peace officer,” he was not qualified to withdraw Bortnem’s blood for the purposes of determining blood alcohol level under Minn.Stat. § 169.123, subd. 3 (1998). Respondent Commissioner of Public Safety, in alleging that Vandervort was qualified under the statute and that the list set forth in subdivision 3(a) is not exclusive, cites Olson v. Commissioner of Pub. Safety, 513 N.W.2d 491 (Minn.App.1994).

In Olson, a phlebotomist drew the blood. This court observed in dicta:

Minnesota case law has consistently recognized the remedial nature of DWI statutes. Accordingly, these laws are liberally interpreted in favor of the public interest and against the private interests of the drivers involved.
A liberal construction of the statute does not exclude a phlebotomist with seven and one-half years of experience, whose only duty was to draw blood, and who works in a hospital setting under the supervision of a medical technologist. Rather, these facts comply with the legislative intent to ensure the competency of the person withdrawing the blood and to protect the defendant’s health.

Id. at 493 (citation and quotation omitted).

The state urges that the liberal construction of the statute applied by the Olson court should guide our decision in this case. We conclude, however, that the state’s reliance on Olson is misplaced. The actual decision in Olson provided that

[b]ecause Schill testified, without objection, that she was hired as a “lab assistant with phlebotomy being [her] duty,” we conclude that Schill was qualified under the statute.

Id. (second alteration in original). Rather than holding that the categories listed in the statute were not exclusive, the Olson court was able to bring the phlebotomist within the definition of “laboratory assistant,” a category specifically listed in the statute. Further, we note the word “only” in subdivision 3(a), immediately prior to the list of those qualified to draw blood. We find it difficult to comprehend why the legislature would preface such a list -with “only” if the list was intended to be nonexclusive.

We must determine whether in this case, as in Olson, the individual who drew blood can be brought within one of the categories listed in the statute. We conclude that Officer Vandervort cannot. Indeed, he is a paramedic, and appears to be a well-trained and an experienced one. But qualifying him under the statutory definition- of, “paramedic” would compel-us to read out of the statute the words “physician’s,” “trained,” “mobile,” “intensive,” and “care.” That we cannot do. We must assume that. these qualifying adjectives were included in the statute for a reason and that the legislature must have intended that these words add something meaningful to -the statute. See Minn.Stat. § 645.17(2) (1998) (listing presumptions to guide courts in ascertaining legislative intent). “When interpreting a statute, our role is to give effect to the intent of the legislature.” Correll v. Distinctive Dental Services, 607 N.W.2d 440, 445 (Minn.2000) (citations omitted). “If the statutory language is clear, we rely on its plain meaning.” Id. (citations omitted).

Finally, we look to Minn.Stat. § 645.17 (1998) for guidance in construing Minn. Stat. § 169.123, subd. 3. Unfortunately, that guidance is less than certain. Section 645.17(2) provides that “[t]he legislature intends the entire statute to be effective and certain.” That language supports our conclusion that each word of the statute must be given meaning. But Minn.Stat. § 645.17(1) cautions that “[t]he legislature does not intend a result that is absurd, impossible of execution, or unreasonable.” By complying with section 645.17(2), do we create the result forbidden -by section 645.17(1)? The state argues that we do.

The state claims that because the intent of the legislature is to make certain that those withdrawing blood are competent, it would be absurd to exclude an otherwise qualified paramedic from doing so. While the position of the state is a reasonable one, we conclude that this argument is one more appropriately made to the legislature than to the courts.

Ultimately, the language of Minn. Stat. § 645.16 (1998) convinces us that we cannot adopt the state’s position on absurdity.

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.

Id. The implied consent statute' clearly states that “[o]nly a physician, medical technician, physician’s trained mobile intensive care paramedic, registered nurse, medical technologist or laboratory assistant” is qualified to withdraw blood for purposes of determining a blood alcohol concentration level. Minn.Stat. § 169.123, subd. 3(a) .(emphasis added). While the Olson court was able to qualify the phlebo-tomist as a “laboratory assistant,” we are unable to qualify Officer Vandervort as a paramedic under the statute. Therefore, appellant’s blood sample was impermissi-bly obtained, and the revocation of appellant’s driver’s license must be rescinded.

II

Appellant challenges the constitutionality of Minn.Stat. § 634.15 (1998), alleging that it violates the separation of powers -doctrine. We are mindful that “Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989) (citation omitted). In view of our decision that revocation of appellant’s driver’s license must be rescinded, we need not reach the issue of the constitutionality of the challenged statute.

DECISION

Because Minn.Stat. § 169.123, subd. 3 (1998), provides an exclusive list of people qualified to withdraw blood for the purpose of determining blood alcohol level, and while adequately qualified to withdraw blood, Officer Vandervort was not one of the listed people, we reverse.

Reversed.

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

      . At the implied consent hearing, Officer Van-dervort admitted he was not a "medical technician,” and no attempt was made to qualify him under that title. He also testified at the implied consent hearing that he was not a "physician's trained mobile intensive care paramedic.”

      . In 1973 and 1980, the legislature took the opportunity to amend the provision of Minn. Stat. § 169.123, subd. 3, which identifies those qualified to withdraw blood under the statute. 1973 Minn. Laws ch. 555, § 1; 1980 Minn. Laws ch. 395, § 1.