author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Harry N. RAY, an Attorney at Law of the State of Minnesota.
    No. CX-81-1120.
    Supreme Court of Minnesota.
    May 25, 2000.

      Harry N. Ray, Bloomington, pro se.
    Edward J. Cleary, Director, Martin A. Cole, Senior Asst. Director, St. Paul, for Office of Lawyers Prof. Resp.
   OPINION

PER CURIAM.

Respondent-Harry N. Ray is currently suspended from the practice of law after being twice disciplined by this court. See In re Ray, 452 N.W.2d 689 (Minn.1990) {In re Ray II); In re Ray, 368 N.W.2d 924 (Minn.1985) {In re Ray I). The Director of the Office of Lawyers Professional Responsibility has filed a new petition for disciplinary action against Ray and a supplemental petition, alleging that Ray. has continued to engage in the practice of law while under suspension. A referee appointed by this court recommends disbarment. We agree with that recommendation and order disbarment.

Harry N. Ray was admitted to the practice of law in 1953. In 1981, following an investigation by the Director, a referee found that Ray had mismanaged his client trust account. See In re Ray I, 368 N.W.2d at 926. While the referee recommended a 5-year suspension and the Director recommended disbarment, we ordered a 3-year suspension. See id. at 926-27. When imposing this sanction, we considered numerous mitigating factors including Ray’s history of charitable work, evidence of his good character, and the fact that no client had suffered any direct loss. See id. at 927.

The Director subsequently filed a second petition for disciplinary action against Ray, alleging that Ray had engaged in the practice of law- while under suspension. See In re Ray II, 452 N.W.2d at 692. At the culmination of the ensuing disciplinary proceeding, we held that Ray had engaged in the unauthorized practice of law when he negotiated a settlement on behalf of a client and made two attempts to negotiate a settlement with another client’s automobile insurer. See id. at 693. The referee appointed by our court in that matter recommended that Ray be allowed to resign as an attorney and agree to never apply for readmission or to work for another attorney or law firm. See id. at 694. In the alternative, the referee recommended disbarment. See id. The Director asked the court to adopt the referee’s findings and conclusions and disbar Ray. In determining the appropriate sanction, we again considered mitigating factors and ordered that Ray’s suspension be extended until January 1, 1991. See id. Ray could have petitioned for reinstatement after January 1, 1991, but he has never done so and continues to be suspended from the practice of law.

In the disciplinary action presently before us, the Director filed a petition for disciplinary action alleging that Ray continued to engage' in the practice of law while under suspension. The Director also filed a supplementary petition alleging additional conduct that involved the unauthorized practice of law and other rule violations. We referred those charges to a referee, who held a disciplinary hearing. The referee’s relevant findings of fact are summarized as follows.

Chickett Matter

In 1991, Ray drafted a family trust agreement for Lucy Chickett and her late husband. Then, in 1995, Ray assisted Chickett in bringing an automobile accident claim by writing a letter to a doctor that stated: “We are assisting and representing Lucy Chickett in her claim for injuries she sustained in [an] automobile accident * * Ray sought a report from the doctor for use in reaching a settlement with the insurance company. In his response, the doctor addressed Ray as “Harry N. Ray, Attorney at Law,” and Ray did not correct the doctor’s misunderstanding of his status. Ray then referred Chickett’s case to an attorney who negotiated with the insurer while Ray continued to work with Chickett. That attorney eventually settled the case and charged Chickett one-third of the settlement proceeds, one-third of which he, in turn, paid to Ray.

In November 1998, Chickett requested her file from Ray. Ray did not respond to that request. In April 1999, Chickett’s nieces, acting on her behalf under a power of attorney that Ray drafted while under suspension, again requested Chickett’s file by writing Ray a letter and asking that he send Chickett’s file to her attorney. Ray did not immediately respond. At the disciplinary hearing in this matter, Ray stated that he did not respond to Chickett’s written request because she subsequently told him that she did not want the file. In his answer to the Director’s supplementary petition, Ray further stated that he did not immediately respond to Chickett’s nieces following the second request because he repeatedly attempted to call Chickett’s attorney to tell him that he only had tax returns for Chickett, but could not reach him. When Ray finally reached the attorney, Ray delivered Chickett’s file.

In June 1999, the Director sent a Notice of Investigation to Ray regarding the Chickett matter and requested a response. Ray did not respond to that letter or to a subsequent identical request.

Baize and Bartelmy Matters

In 1998, Ray assisted Robinson Baize and Thomas Bartelmy with paternity action hearings in Hennepin County District Court. Although Ray did not expressly identify himself as an attorney at the hearings, the court’s orders reflect that Baize appeared with his counsel, Harry Ray, and that Harry Ray appeared for Bartelmy. Ray did nothing to correct this error in the record. Further, while the paternity actions were pending, the Hennepin County Attorney’s Office corresponded with Ray as Baize’s attorney and served Baize’s motion papers with a letter addressed to “Mr. Harry Ray, Attorney at Law.” Ray acknowledged receipt of the motion papers, but did not communicate that he was suspended from the practice of law. Further, Ray met with an assistant county attorney to discuss the Baize and Bartelmy matters and negotiated for a stipulation. Ray told Baize that he was retired from the practice of law, but not that he was suspended.

Referee’s Findings

Following the disciplinary hearing, the referee concluded that Ray engaged in the unauthorized practice of law in violation of Minnesota Rules of Professional Conduct (MRPC) 5.5(a) and 8.4(d) (prohibiting an attorney from practicing law in violation of a jurisdiction’s professional regulations and engaging in conduct that is prejudicial to the administration of justice). The referee based this conclusion on his findings that Ray indirectly assisted in Chickett’s representation in a personal injury matter, drafted a power of attorney agreement for Chickett, appeared in court for Baize and Bartelmy, and directly negotiated with the county attorney on their behalf. Further, the referee concluded that Ray’s failure to surrender documents to Chickett or her nieces within a reasonable time after their requests violated Rule 1.16(d), MRPC (requiring an attorney to take steps to the extent reasonably practicable to protect a client’s interests after termination of representation). The referee also concluded that Ray’s failure to comply with the Director’s request for information constituted noncooperation in violation of Rule 8.1(a)(3), MRPC (prohibiting an attorney from knowingly failing -to respond to a discipline authority’s legally authorized request for information), and Rule 25, Minnesota Rules on Lawyers Professional Responsibility (RLPR) (requiring cooperation with the Director’s reasonable investigative requests). Finally, the referee found that Ray did not admit that his conduct was wrong and would likely engage in similar conduct in the future. Based on these findings and conclusions, the referee recommended disbarment. The Director agrees with this recommendation.

At the disciplinary hearing before the referee, Ray disputed all allegations that he had acted improperly. We note that while Ray ordered a transcript of the hearing, he did not file a brief with this court. Having failed to do so, he appeared for oral arguments and again argued that his conduct had not been improper.

The Director has the burden of proof in disciplinary proceedings and must meet a clear and convincing evidence standard. See In re Miera, 426 N.W.2d 850, 853 (Minn.1988); In re Witherow, 226 Minn. 58, 60, 32 N.W.2d 176, 177 (1948). We generally afford great weight to a referee’s findings of fact and conclusions of law. See In re Schmidt, 402 N.W.2d 544, 545 (Minn.1987). Because Ray has ordered a transcript, the referee’s findings, conclusions and recommendation are at issue pursuant to Rule 14(e), RLPR. Additionally, while we generally afford great weight to the referee’s recommendation for discipline of an attorney, we alone bear the final responsibility to determine what discipline is appropriate. See In re Klein, 442 N.W.2d 317, 321 (Minn.1989).

The Director asserts, and Ray denies, that Ray engaged in the unauthorized practice of law. We discussed the issue of a suspended attorney engaging in the unauthorized practice of law in In re Jorissen, 391 N.W.2d 822, 825 (Minn.1986). There we stated that a nonattomey engages in the unauthorized practice of law when he “acts in a representative capacity in protecting, enforcing, or defending the legal rights of another, and advises and counsels that person in connection with those rights * ⅜ Id. In comparison, we stated that a suspended attorney

. may engage in some [legal-related] activities if he is otherwise qualified to do so, but not if his qualifications come from having been a lawyer. * * * When professional expertise enters into the activity, and when the activity is one which is customarily performed by lawyers, then such activity is forbidden to a suspended attorney, even though under some conditions members of other professions ■ may sometimes be allowed to perform the same acts.

Id. (quoting In re Christianson, 215 N.W.2d 920, 925-26 (N.D.1974)).

In Jorissen, we held that the attorney engaged in the unauthorized practice of law while suspended when he' appeared on behalf of a client in' a criminal proceeding, appeared at a pretrial hearing, appeared on behalf of a client at an administrative tribunal, stipulated to a restraining order, and negotiated and counseled a client in working out a-marital stipulation. See id. We further held that such conduct warranted disbarment. See id. at 826.

Ray does not dispute the relevant facts discussed above with regard to his conduct in the Chickett, Baize, and Bartelmy matters. At both the disciplinary proceeding and at oral argument before this court, Ray argued that his conduct did not constitute the practice of law. Instead, he asserted that he acted like a father to Baize and like a friend to Chickett and Bartelmy. However, at the disciplinary hearing, Ray specifically acknowledged that he accompanied Baize to court because of his legal expertise and that, relying on that expertise, he advised Baize on his legal rights and negotiated with the county attorney. Ray also acknowledged that he did not correct the county attorney’s impression that he was acting as an attorney. Instead, at the disciplinary hearing, he testified, “I am an attorney at law. I am to this day, as I understand it, an attorney of [sic] law under , suspension by the Board of Professional Responsibility. I cannot deny I am an attorney at law.” Further, Ray specifically admitted that he prepared a trust agreement and a power of attorney for Chickett and that he advocated on her behalf. Thus, we conclude that the record supports the referee’s conclusion that Ray engaged in the practice of law while suspended in violation of Rules 5.5(a) and 8.4(d), MRPC.

The referee also concluded that Ray failed to timely surrender a client file and failed to fully cooperate with the Director’s investigation. At the disciplinary hearing, Ray acknowledged that he did not respond to Chickett’s request for her file, although he stated that this was because Chickett had subsequently requested that he not do so. Further, while Ray stated that he complied with the later request by Chickett’s nieces to deliver her file, the record indicates that he did not do so within a reasonable time. Ray also acknowledged that he did not respond to either of the Director’s two requests for information regarding the Chickett matter. Therefore, we conclude that the record supports the referee’s conclusion that Ray failed to surrender client documents within a reasonable time and that Ray failed to cooperate fully with the Director’s investigation in violation of Rules 1.16(d) and 8.1(a)(3), MRPC, and Rule 25, RLPR.

Having determined that Ray engaged in the unauthorized practice of law while under suspension, failed to timely surrender client documents upon request, and failed to cooperate fully with the Director’s investigation, we next address what discipline is warranted by this misconduct. As previously noted, both the referee and the Director recommend disbarment.

The purpose of attorney discipline is not to punish the attorney; rather, it is to protect the courts, the public, and the legal profession, and to guard the administration of justice. See In re Bishop, 582 N.W.2d 261, 263 (Minn.1998) (quoting In re Madsen, 426 N.W.2d 434, 435 (Minn.1988)). In determining what discipline is appropriate, this court considers: (1) the nature of the misconduct, (2) the cumulative weight of the rule violations, (3) the harm to the public, and (4) the harm to the legal profession. See In re Madsen, 426 N.W.2d at 436. Any mitigating or aggravating circumstances also will be taken into consideration. See In re Haugen, 543 N.W.2d 372, 375 (Minn.1996). For guidance in determining the appropriate discipline, we may turn to cases involving similar misconduct. See In re Madsen, 426 N.W.2d at 436.

We have previously applied severe discipline for the unauthorized practice of law after suspension when suspension was for disciplinary violations rather than for failing to pay attorney registration fees. See In re Jorissen, 391 N.W.2d at 826; see also In re Hunter, 473 N.W.2d 866, 869 (Minn.1991) (disbarring an attorney who continued to practice law during a 6-month suspension for neglect of client matters, noncommunication, failure to return documents, wrongful withdrawal of funds, and noncooperation with the Director’s investigation). In Ray II, we declined to disbar Ray for the unauthorized practice of law despite the referee’s ahd Director’s recommendations that we do so. 452 N.W.2d at 694. Instead, we concluded that Ray’s misconduct was distinguishable from that in Jorissen because there the attorney had committed “more blatant unauthorized conduct.” In re Ray II, 452 N.W.2d at 694. While we noted that Ray’s previous misconduct was an aggravating factor, we considered the following mitigating factors: “no harm to clients, respondent’s civic and pro bono activities, and his commitment to future good ethics.” Id. We also noted that Ray had apparently cooperated fully with the Director’s investigation. See id.

The mitigating factors present in Ray II are not present here. Specifically, we note that Ray did not cooperate fully with the Director’s requests for information. Additionally, Ray’s current misconduct is aggravated by his prior discipline. We have previously disciplined him for unauthorized practice of law while suspended, yet rather than reforming his conduct, he has repeated it. Further, Ray does not acknowledge that he has committed any misconduct, and it appears that unless appropriately sanctioned, he is likely to engage in similar conduct in the future. Therefore, in order to protect the courts, the public, and the legal profession and to guard the administration of justice, we order that respondent Harry N. Ray be disbarred.

Disbarment ordered.

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


source: Caselaw Access Project

author: SHUMAKER, Judge.

license: Public Domain

text:
    Riley WASHINGTON, Respondent, v. INDEPENDENT SCHOOL DISTRICT NO. 625, Appellant.
    No. C3-99-1768.
    Court of Appeals of Minnesota.
    May 16, 2000.

      Marshall H. Tanick, Teresa J. Ayling, Mansfield & Tanick, P.A., Minneapolis, MN (for respondent).
    Timothy J. Pawlenty, Karen A. Janisch, Rider, Bennett, Egan <& Arundel, LLP, Minneapolis, MN (for appellant).
    Considered and decided by KLAPHAKE, Presiding Judge, CRIPPEN, Judge, and SHUMAKER, Judge.
   OPINION

SHUMAKER, Judge.

After an investigation appellant school district fired respondent from his job as an assistant principal. In a civil action for wrongful discharge, respondent sought information collected in the investigation. Appellant withheld some of the information on the ground that it was protected nonpublic data. The district court granted respondent’s motion for disclosure of most of the data, and awarded respondent attorney fees and costs as the prevailing party. Appellant contends that respondent was not entitled to an award of fees and costs. Respondent contends that he was entitled to a higher award of attorney fees.

FACTS

Respondent Riley Washington worked for appellant Independent School District No. 625 as an assistant high school principal during the 1997-98 school year. When a student accused Washington of inappropriate sexual overtures, the school district investigated. The investigator made notes and transcribed tape-recorded interviews of various people. Quoting from the interviews, the investigator provided a report to the board of education. The board terminated Washington’s employment.

Washington sued the school district for wrongful discharge and lodged an administrative complaint with the local human rights department. He then asked the school district for his personnel records. The school district withheld some records pertaining to the investigation on the ground that they were private data. Washington sued the school district to obtain those records, claiming that they were public.

After various motions by both parties, the district court conducted an in camera review of the disputed documents and ordered the school district to disclose all requested items except the complainant’s grade sheets. Treating Washington as the prevailing party, the court awarded to him $7,000 in attorney fees. The court limited the attorney fee award to the amount Washington had incurred up to the time the school district offered to release the documents for an in camera review if Washington would agree to dismiss the lawsuit and waive costs and attorney fees. Washington did not accept the offer.

The school district appealed on the ground that the law does not allow an award of attorney fees under the circumstances of this case. Washington filed a notice of review, contending that the district court erred by not awarding the full amount of attorney fees he incurred in obtaining the disputed documents.

ISSUE

Statutes classify data collected by a political subdivision in anticipation of civil litigation as protected nonpublic data that is not accessible to the subject of the data without a court order. When the subject of the data obtains a court order for disclosure, is he an aggrieved party who is entitled to an award of attorney fees?

ANALYSIS

This court will not reverse a trial court’s award or denial of attorney fees absent an abuse of discretion. Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn.1987). Generally, attorney fees are not recoverable in litigation unless authorized by contract or statute. Barr/Nelson, Inc. v. Tonto’s, Inc., 336 N.W.2d 46, 53 (Minn.1983). When the determination of the appropriateness of attorney fees involves the construction of Minnesota’s Data Practices Act, we review such construction de novo. Deli v. Hasselmo, 542 N.W.2d 649, 655 (Minn.App.1996), review denied (Minn.Apr.16,1996).

Minn.Stat. § 13.39, subd. 2 (1998), provides that data collected by a political subdivision in anticipation of or to defend a civil action are “protected nonpublic data.” Data in this category are “not accessible to the subject of the data.” Minn.Stat. § 13.02, subd. 13 (1998). The district court ruled that the data Washington sought “was collected in anticipation of pending civil actions and is nonpublic.” Washington does not challenge this ruling on appeal.

Minn.Stat. § 13.39, subd. 2a (1998), permits a court to order disclosure of protected nonpublic data after conducting an in camera review and applying a balancing test to determine the propriety of disclosure. The district court’s review and order are not challenged on appeal.

In awarding attorney fees to Washington, the court relied on MinmStat. § 13.08, subd. 4 (1998):

[A]ny aggrieved person may bring an action in district court to compel compliance with this chapter and may recover costs and disbursements, including reasonable attorney’s fees, as determined by the court.

The court reasoned that, because Washington succeeded in obtaining most of the documents he requested, he was “a prevailing party” under section 13.08, subd. 4, and was, therefore, entitled to an award of fees. But the statute permits an award of attorney fees only to an “aggrieved person.” That term is not defined. Unless words in statutes have been given or have acquired special or technical meaning, they are to be construed “according to their common and approved usage.” MinmStat. § 645.08(1) (1998). The common usage of “aggrieved” is “[t]reated wrongfully,” or “offended,” “as by denial of or infringement upon one’s legal rights.” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 34 (3d ed.1992).

The school district contends that, although Washington was entitled to seek disclosure of protected nonpublic data by invoking the procedures provided in Minn. Stat. § 13.39, subd. 2a, he was not an aggrieved person within the intent of section 13.08, subd. 4. We agree. The school district did not wrongfully withhold data that Washington was entitled to have. Rather, the school district withheld data that by statute are “not accessible” to Washington without a court order for disclosure. Minn.Stat. § 13.02, subd. 13. Thus, Washington does not fit the common usage of the term “aggrieved person.”

Additionally, a holding that Washington qualifies as an aggrieved person would involve an unreasonable construction of the applicable statutes. Under that construction, a political subdivision would be required by law to withhold protected nonpublic data from the subject of the data. If the political subdivision complied, it would nevertheless be subject to an award of attorney fees if a court later permitted the disclosure of the protected nonpublic data. Thus, the political subdivision would be penalized for complying with a legislative mandate. We cannot conclude that the legislature intended such a construction of the data practices laws. See Minn. Stat. § 645.17(1) (1998) (in ascertaining intent of the legislature, courts may presume legislature did not intend a result that is “absurd, impossible of execution, or unreasonable”).

The district court erred in construing Minn. Stat. § 13.08, subd. 4, to allow Washington to receive an award of attorney fees. Because of this holding, we need not reach the issue of the adequacy of the attorney fees award.

DECISION

The district court erred when it awarded respondent attorney fees and costs as the prevailing party. Fees and costs are available only to an aggrieved party. An aggrieved party is one whose rights have been infringed. Because respondent had no right to the disclosure of protected nonpublic data, appellant committed no wrong against him by withholding the data until the district court ordered disclosure.

Reversed.


author: HARTEN, Judge.

text:
    David FOSTER, et al., Appellants, v. SUMMIT MEDICAL SYSTEMS, INC., et al., Respondents.
    No. C5-99-1724.
    Court of Appeals of Minnesota.
    May 16, 2000.

      Timothy R. Schupp, Heidi A. Schneider, Gartner Bennett & Schupp, PC, Minneapolis, for plaintiffs-appellants.
    Peter S. Hendrixson, Brian E. Palmer, Peter W. Carter, Dorsey & Whitney LLP, Minneapolis, for defendants-respondents.
    Considered and decided by HALBROOKS, Presiding Judge, RANDALL, Judge, and HARTEN, Judge.
   OPINION

HARTEN, Judge.

Appellants, insurers, challenge the summary judgment holding that respondents’ directors’ and officers’ liability insurance policies provided coverage for losses from securities lawsuits against respondents and from a Securities Exchange Commission (SEC) investigation involving respondents. Because we hold that the insurance policies’ retroactive date exclusions bar coverage for the losses from the underlying lawsuits and that the SEC investigation is not a covered claim under the policies, we reverse and remand with directions that the district court enter summary judgment for appellants.

FACTS

1. The Underlying Actions

On June 21, 1995, respondent Summit Medical Systems, Inc. (Summit) filed a registration statement and' draft prospectus with the SEC, which resulted in its stock being first publicly traded in August 1995. In March 1997, Summit publicly announced that, due to accounting errors, its year-end revenue statements for 1994-1996 would be corrected downward by a total of $4,000,000 to $6,000,000. Thereafter, ten securities lawsuits were filed against Summit and the other respondents. The SEC also commenced an investigation of Summit.

The lawsuits were consolidated so that only two lawsuits, a class action suit and a suit by the Teachers’ Retirement System, went forward against respondents. The plaintiffs in these suits alleged that, respondents had plotted to inflate revenue and had artificially inflated Summit’s stock prices by disseminating false and misleading financial statements. The class-action plaintiffs specifically alleged that:

To make the Company attractive to its targeted investors, [respondents] sought ' to create the appearance of a Company with active, market appeal, strong growth potential and a consistent and steady revenue stream. In order to achieve this, [respondents] implemented a scheme and common course of conduct to inflate sales and revenue figures. Pursuant to the scheme, [respondents] instituted aggressive quarterly sales and revenue goals for the quarters preceding the June 1995 Initial Offering and for each quarter thereafter during the Class Period, and then consistently “met” those goals by recognizing revenue on transactions which did not qualify as sales under [generally accepted accounting principles] and were contrary to Summit Medical’s own revenue recognition policy.

Respondents had allegedly inflated revenue by recognizing letters of intent rather than completed sales contracts, even though the letters of intent did not always result in signed contracts, and by initiating sham transactions with other companies. These acts began before Summit filed its registration statement on June 21, 1995, and continued into 1996.

Respondents had disseminated the inflated revenue figures to the public in the June 21, 1995, registration statement, draft prospectus; and subsequent public statements. The plaintiffs alleged that, in these public statements, respondents made false and'material misstatements regarding their revenue and sales figures and their financial practices.

2. The Policies

Respondents sought insurance coverage for losses from these lawsuits under directors’ and officers’ liability insurance they had purchased from appellants. The policies covered the directors and officers for “Loss” resulting from any “Claim” made during the certificate period for a “Wrongful Act.” The policies also covered Summit for “Loss” resulting from a “Securities Action Claim” for a “Wrongful Act.”

Coverage for wrongful acts prior to the effective date of the insurance was limited by a retroactive date exclusion clause. At respondents’ request, the parties chose as the retroactive date, June 21, 1995, the date that the registration statement and draft prospectus were filed. The exclusion clause bars coverage for any claim arising out of “any Wrongful Act actually or allegedly committed prior to June 21, 1995,” or interrelated wrongful acts committed thereafter.

Appellants brought an action for a declaration of no coverage for the lawsuits because of the retroactive date exclusion clause and for the SEC investigation because of the policy definition of “Securities Action Claim.” Following cross-motions for summary judgment, the district court granted summary judgment to respondents, holding that the wrongful act was the public dissemination of improper revenue figures, which occurred after the retroactive date and that the SEC investigation constituted a claim under the policies. This appeal followed.

ISSUES

1. Does the retroactive date exclusion bar coverage for the lawsuits against respondents?

2., Does the SEC investigation constitute a covered “Securities Action Claim” under the policies?

ANALYSIS

“Insurance coverage issues and the interpretation of insurance contract language are questions of law, reviewed de novo.” Jenoff, Inc. v. New Hampshire Ins. Co., 558 N.W.2d 260, 262 (Minn.1997). In interpreting insurance contracts, the court must ascertain and give effect to the intentions of the parties as reflected in the terms of the insurance contract. Id. If policy language is unambiguous, there is no reason for construction, and the court must “attribute the usual and accepted meaning” to the language. American Commerce Ins. Brokers, Inc. v. Minnesota Mut. Fire & Cas. Co., 551 N.W.2d 224, 227-28 (Minn.1996).

1. Retroactive Date Exclusion

The policies here exclude coverage for claims

based upon, arising out of, directly or indirectly resulting from or in consequence of, or in any way involving:
(1) any Wrongful Act actually or allegedly committed prior to June 21, 1995, or
(2) any Wrongful Act occurring on or subsequent to June 21, 1995 which, together with a Wrongful Act occurring prior to such date would constitute Interrelated Wrongful Acts.

The “Interrelated Wrongful Acts” policy language is broad and encompasses the acts in question. See Faber v. Roelofs, 311 Minn. 428, 436, 250 N.W.2d 817, 822 (1977) (the phrase “arising out of’ is broad). The policies defined “Wrongful Act” in relevant part as

any actual or alleged error, omission, misstatement, misleading statement, neglect, breach of duty or negligent act by any.of the Directors and Officers, while acting solely in their capacity as a director or officer of the Company.

The allegations that respondents improperly recognized revenue from letters of intent and sham transactions are alleged errors, breaches of duty, or negligent acts. Thus, the acts of improperly recognizing revenue are “Wrongful Acts.”

The policies define “Interrelated Wrongful Acts” as ‘Wrongful Acts which have as a common nexus any fact, circumstance, situation, event, transaction or series of facts, circumstances, situations, events or transactions.” Recognizing revenue from letters of intent or sham transactions involved repetition of the same transactions. See American Commerce Ins. Brokers, 551 N.W.2d at 231 (holding that there were two sets of interrelated acts of embezzlement from employer, embezzlement by issuing unauthorized payroll checks and embezzlement by taking funds from the employer received as insurance premiums). Each series of transactions was comprised of interrelated acts that occurred both before and after the retroactive date. Thus, each element of the retroactive date exclusion clause is satisfied and coverage for the underlying actions is barred.

Respondents argue that the retroactive date exclusion does not apply because liability does not arise from the improper revenue recognition; it arises only from the dissemination of false and misleading statements to the public. But the policies do not require that the “Wrongful Acts” or “Interrelated Wrongful Acts” be key to finding liability. Under the policies, coverage is excluded if the claim even “indirectly result[s] from or [is] in consequence of, or in any way involve[s]” the wrongful acts, i.e., respondents’ improper revenue recognition.

Moreover, even if the relevant wrongful act was the dissemination of inaccurate financial information, the dissemination was “interrelated” with the improper revenue recognition. The policies define “Interrelated Wrongful Acts” broadly and respondents could not articulate any basis for a determination that the improper revenue recognition was not interrelated with the dissemination of inaccurate financial information. The improper revenue recognition was the very reason that the statements about revenue and sales were false and misleading. In both complaints, the allegations regarding improper revenue recognition and dissemination of inaccurate financial information were interrelated.

Respondents also argue that appellants’ interpretation renders the insurance worthless. But respondents specifically negotiated June 21, 1995, as the retroactive date. Had respondents wanted to purchase a policy with greater coverage or a different retroactive date, - they could have done so.

2. Securities Action Claim

Appellants denied coverage for loss from the SEC investigation on the basis that the investigation was not a “Securities. Action Claim.” The policies define “Securities Action Claim” as

any judicial or administrative proceeding initiated against any of the Directors and Officers or the Company based upon, arising out of, or in any way involving the Securities Act of 1933, the Securities Exchange Act of 1934, rules .or regulations of the Securities Exchange Commission under either or both Acts, similar securities laws or regulations of any state, or any common law .relating to any transaction arising out of, involving, or relating to the, sale of securities in which they may be subjected to a binding adjudication■ of liability .for damages or other relief including any appeal therefrom.

(Emphasis added.) The parties agree that the SEC investigation is an administrative proceeding but dispute whether it is a proceeding in which respondents “may be subjected to a binding adjudication for * * * reiief_”

Respondents argue that the investigation satisfies this requirement because the SEC issued a subpoena duces tecum. But the ordinary understanding of the term “relief’ is assistance or something that lessens pain or discomfort. See American Heritage Dictionary 1044 (2d ed.1976). In a legal context, the term “relief’ refers to redress or benefit, especially equitable redress such as an injunction or specific performance. See Black’s Law Dictionary 1293 (7th ed.1999). Issuing a subpoena does not fit within, either meaning of the term “relief.” See City of Thief River Falls v. United Fire & Cas. Co., 336 N.W.2d 274, 276 (Minn.1983) (holding that petition for, mandamus to compel eity; to initiate condemnation proceedings was not a “suit * * * seeking damages” within the plain meaning of the insurance policy because its essence was to secure performance of a legally required act rather than provide damages).

To support their broad reading of “relief,” respondents rely on PepsiCo, Inc. v. Continental Cas. Co., 640 F.Supp. 656, 666 (S.D.N.Y.1986) (holding that costs incurred in an SEC investigation met the definition of “loss” in the policy). But in PepsiCo the policy defined “loss” broadly as amounts incurred in the defense of legal actions, claims or proceedings. Id. at 659. Here, “relief’ is not similarly defined.

The SEC’s ability to compel production of documents does not fit any reasonable reading of the term “relief.” We conclude that the SEC investigation is not a “Securities Action Claim” under the policies.

DECISION

The insurance coverage claim is barred by the policies’ retroactive date exclusion and the SEC investigation is not a covered “Securities Action Claim.” We reverse and remand with directions that the district court order summary judgment for appellants.

Reversed and remanded.

      . "Policies” are a primary insurance policy and an excess insurance policy, both with identical terms.


author: PETERSON, Judge.

text:
    LINO LAKES ECONOMIC DEVELOPMENT AUTHORITY, Respondent, v. George J. REILING, Appellant.
    No. C6-99-1473.
    Court of Appeals of Minnesota.
    May 16, 2000.

      Barry A. Sullivan, William G. Hawkins & Associates, Anoka, MN (for respondent).
    Larry B. Stevens, Larry B. Stevens & Associates, Roseville, MN (for appellant).
    Considered and decided by PETERSON, Presiding. Judge, ANDERSON, Judge, and HUSPENI, Judge.

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

   OPINION

PETERSON, Judge.

Respondent Lino Lakes Economic Development Authority (EDA) filed a petition to acquire by condemnation four parcels of property, one of which is owned by appellant George Reiling. Reiling moved to dismiss the petition on grounds that EDA failed to (1) comply with Minn.Stat. §§ 469.101, subd. 1, 469.174, subd. 12 (1998), before bringing the petition and (2) establish a public use and necessity for the taking. Based on its conclusions that EDA was not required to comply with Minn.Stat. § 469.101, subd. 1, or Minn. Stat. § 469.174, subd. 12, before acquiring property for an economic development district and that EDA had established a public purpose and necessity for taking Reil-ing’s property, the district court granted EDA’s petition and appointed three commissioners to determine the amount of damages to award Reiling for the taking. This appeal is from the order granting EDA’s condemnation petition. We affirm.

FACTS

EDA filed a petition to acquire by condemnation four undeveloped parcels of property. Reiling owns one of the parcels, which is located at the southeast corner of the intersection of Hodgson Road and Lake Drive, within a district in Lino Lakes that is zoned for commercial use. The Hodgson/Lake intersection has undergone changes and realignments over the years that have altered the physical and legal status of adjoining properties and, as a result, many parcels adjoining the intersection are small, oddly shaped, and encumbered by rights-of-way and access restrictions. The condemnation petition states that EDA deemed it necessary to acquire the property to create an economic development district.

Before fifing the condemnation petition, EDA gave the required notice for a condemnation hearing, held a condemnation hearing, and then issued a resolution authorizing the acquisition of Reifing’s land by eminent domain. The resolution states that changes to the Hodgson/Lake intersection had caused excess rights-of-way in the southeast quadrant of the intersection, that the southeast quadrant was suitable and desirable for economic development, and that the City of Lino Lakes deemed it necessary to acquire Reiling’s property and combine it with the excess rights-of-way to make development economically feasible. EDA did not hold a hearing pursuant to Minn.Stat. § 469.101, subd. 1 (1998), or issue a resolution containing the findings fisted in Minn.Stat. § 469.174, subd. 12 (1998).

ISSUES

I. Did the district court err by concluding that EDA is not required to hold a hearing pursuant to Minn.Stat. § 469.101, subd. 1, or make the findings required by MinmStat. § 469.174, subd. 12, before acquiring property by condemnation to create an economic development district?

II. Did the district court err by concluding that EDA established a public use and necessity for acquiring Reifing’s property?

ANALYSIS

I.

Statutory construction is a question of law subject to de novo review. Wynkoop v. Carpenter, 574 N.W.2d 422, 425 (Minn.1998).

The court’s role is to discover and effectuate the legislature’s intent. “If the legislature’s intent is clearly manifested by [the] plain and unambiguous language of the statute, statutory construction is neither necessary nor permitted.”

In re Petition of Fairview-University Medical Center, 590 N.W.2d 150, 153 (Minn.App.1999) (quoting State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996)) (alteration in original). When a statute is unambiguous, the court must give effect to the statute’s plain meaning. Tuma v. Commissioner of Economic Sec., 386 N.W.2d 702, 706 (Minn.1986).

Minn.Stat. § 469.101 (1998) provides:
Subdivision 1. Establishment. An economic development authority may create and define the boundaries of economic development districts at any place or places within the city if the district satisfies the requirements of section 469.174, subdivision 10, except that the district boundaries must be' contiguous, and may use the powers granted in sections 469.090 to 469.108 [authorizing cities to establish EDAs and setting forth their powers] to carry out its purposes. First the authority must hold a public hearing on the matter. At least ten days before the hearing, the authority shall publish notice of the hearing in a daily newspaper of general circulation in the city. Also, the authority shall find that an economic development district is proper and desirable to establish and develop within the city.
Subd. 2. Acquire property. The economic development authority may acquire by lease, purchase, gift, devise, or condemnation proceedings the needed right, title, and interest in property to create economic development districts.

Minn.Stat. § 469.174, subd. 12 (1998), provides:

“Economic development district” means a type of tax increment financing district which consists of any project, or portions of a project, not meeting the requirements found in the definition of redevelopment district, renewal and renovation district, soils condition district, mined underground space development district, or housing district, but which the authority finds to be in the public interest because:
(1)it will discourage dommerce, industry, or manufacturing from moving their operations to another state or municipality; or
(2) it will result in increased employment in. the state; or
(3) it will result in preservation and enhancement of the tax base of the state.

Relying on Reilly Tar & Chemical Corp. v. City of St. Louis Park, 265 Minn. 295, 121 N.W.2d 393 (1963), Reiling argues that EDA was required to hold a hearing pursuant to Minn.Stat. § 469.101, subd. 1, and make the findings required by Minn.Stat. § 469.174, subd. 12, before bringing a petition to condemn his property. The Reilly court construed Minn.Stat. § 462.425, subd. 1 (1962), which created a housing and redevelopment authority (HRA) in each municipality in the state. Minn.Stat. § 462.425, subd. 1, expressly required a municipality to find the conditions specified in the statute before an HRA could transact any business or exercise any powers.

Minn.Stat. § 469.101, subds. 1-2, do not contain such limiting language. To the contrary, MinmStát. § 469.101, subd. 2, provides that an EDA “may acquire by * ⅜ * condemnation proceedings the needed right, title, and interest in property to create economic development districts.” (Emphasis added.) The emphasized language unambiguously authorizes an EDA to acquire property by condemnation before creating an economic development district, and the statutory language does not require an EDA to hold a hearing pursuant to Minn.Stat. § 469.101, subd. 1, or make the findings required by Minn. Stat. § 469.174, subd. 12, before acquiring property by condemnation. We, therefore, construe Minn.Stat. § 469.101, subd. 2, as authorizing an EDA to acquire property by condemnation before holding a hearing pursuant to Minn.Stat. § 469.101, subd. 1, or making the findings required by Minn. Stat. § 469.174, subd. 12.

We note that our construction is consistent with the supreme court’s construction of other statutes authorizing municipalities to acquire property by eminent domain for designated public purposes. See City of Duluth v. State, 390 N.W.2d 757 (Minn.1986) (construing statutes governing acquisition of property and creation of industrial development districts by port authorities; court concluded that public hearing and findings that industrial development district was proper and desirable were not prerequisites to exercising power of eminent domain under chapter 117 and that taking needed only to satisfy chapter 117’s necessity and public purpose requirements); City of Shakopee v. Minnesota Valley Elec. Coop., 803 N.W.2d 58, 61-62 (Minn.1981) (construing statutes governing acquisition of property and purchase of public utilities by municipalities; holding that a referendum and public hearings were not preconditions to acquiring property by eminent domain), Like the statutes at issue in City of Duluth and City of Shakopee, Minn.Stat. § 469.101, subd. 4 (1998), expressly authorizes an EDA to “exercise the right of eminent domain under chapter 117, or under its city’s charter to acquire property it is authorized to acquire by condemnation.”

We also note that our construction is consistent with the • broad discretion accorded municipal development authorities by the legislature. See R.E. Short Co. v. City of Minneapolis, 269 N.W.2d 331, 337-38 (Minn.1978) (explaining public purpose doctrine underlying judicial review of municipal development authority decisions). Finally, as the district court found, this interpretation is logical “since the EDA needs to assemble various parcels to form a contiguous tract before it can establish an economic development district” under Minn.Stat. § 469.101, subd. 1.

Reiling argues that the public purpose and necessity requirements of chapter 117 cannot be met without the findings required by Minn.Stat. § 469.174, subd. 12. We disagree. The legislature has set forth the public purpose for takings for economic development projects in Minn.Stat. § 469.124 (1998); see also Minn.Stat. § 469.091, subd. 1 (1998) (applying Minn.Stat. § 469.123 to EDAs). This court grants “great deference to the initial legislative determination that a particular project serves a public purpose.” R.E. Short Co., 269 N.W.2d at 337. Regarding the necessity requirement, the requisite necessity is not absolute necessity, but rather it is sufficient to find that “the proposed taking is reasonably necessary or convenient for the furtherance of a proper purpose.” City of Duluth, 390 N.W.2d at 764-65.

Reiling raises a legitimate concern that chapter 469 creates a risk that an EDA could acquire property for speculative purposes. An EDA could acquire property to create an economic development district and then not actually create it, yet retain the benefit of owning the property. . However, it is the legislature’s role, not this court’s, to correct that problem. See Vadnais v. State Farm Mut. Auto. Ins. Co., 354 N.W.2d 607, 609 (Minn.App.1984) (“While the * * * argument in favor of coverage is sound and based on public policy, we are bound by the rule that courts cannot amend statutes under the guise of construction.”).

II.

Judicial review in condemnation proceedings is limited to determining whether the taking serves a public purpose and is necessary. In re Condemnation by Minneapolis Community Dev. Agency, 582 N.W.2d 596, 598 (Minn.App.1998), review denied (Minn. Oct. 29, 1998). Public purpose and necessity are questions of fact, and this court will affirm the district court’s findings unless they are clearly erroneous. Id. at 599.

The court’s review of a condemning authority’s public purpose determination is very narrow:

If it appears that the record contains some evidence, however informal, that the taking serves a public purpose, there is nothing left for the courts to pass upon. Courts may interfere only when the Authority’s actions are manifestly arbitrary or unreasonable. The acts of an authority vested with legislative determination in a particular area are manifestly arbitrary or unreasonable where they are taken capriciously, irrationally, and without basis in law or under conditions which do not authorize or permit the exercise of the asserted power. The court is precluded from substituting its own judgment for that of the Authority as to what may be necessary and proper to carry out the purpose of the plan.

City of Duluth, 390 N.W.2d at 763.

As a result of changes and realignments to the Hodgson/Lake intersection, many parcels adjoining' the intersection are small, oddly shaped, and encumbered' by rights-of-way and access restrictions. The condemnation petition states that EDA deemed it necessary to acquire Reilirig’s parcel and three other properties to create an economic development district. The resolution authorizing acquisition of Reil-ing’s property by eminent domain states that changes to the Hodgson/Lake intersection caused excess rights-of-way in the southeast quadrant of the intersection, that the southeast quadrant was suitable and desirable for economic development, and that the City of Lino Lakes deemed it necessary to acquire Reiling’s property ■and combine it with the- excess rights-of-way to make development economically feasible.

This evidence was sufficient to show that condemnation is necessary to make feasible economic development of Reiling’s property and other parcels adjoining the Hodgson/Lake intersection. The district court’s finding that the proposed taking of Reiling’s property serves a public purpose is not clearly erroneous. See Minn.Stat. § 469.124 (actions required to assist in implementing economic development programs are a public purpose)

The existence of necessity is a judicial question. City of Duluth, 390 N.W.2d at 764. The requisite necessity is not absolute necessity; rather it is sufficient to find that “the proposed taking is reasonably necessary or convenient for the furtherance of a proper purpose.” Id. at 764-65. A resolution by a municipal authority that a taking is necessary to accomplish a proper purpose is prima facie evidence of that necessity when no higher judicial finding of necessity is statutorily mandated. Id. at 765.

The district court explained its finding of necessity as follows:

The property at issue is in a commercial zoning district and is not yet developed. The relocation and realignment of Hodgson Road and Lake Drive has •left behind various rights-of-way, easements, and access restrictions. According to the EDA’s resolution, the parcels need, to be assembled into one parcel to make development “economically feasible.” This resolution is prima facie evidence that condemnation is necessary, and Reiling has produced no evidence to the contrary.

Relying on Regents of University of Minnesota v. Chicago & North Western Transp. Co., 552 N.W.2d 578 (Minn.App.1996), review denied (Minn. Nov. 20, 1996), Reiling argues that the evidence was insufficient to prove necessity. The Regents court explained its conclusion that the district court did not clearly err in finding that the University had failed to demonstrate the required level of necessity for condemnation as follows:

First, the record indicates that the University has not included this property on its master plan for its anticipated development of the Twin Cities campus. Second, although the University claims to have at least three potential uses for the land, the uses are mutually exclusive, and the Board of Regents has not yet approved a single project for the property. Finally, because of soil contamination problems, it is undisputed that the University could not currently use the property for any of its proposed uses. The parties have not yet agreed on a remediation plan; decontamination of the property will require from approximately two to seven years to complete. At least one University official has described the time period before the University would use the property as “potentially indefinite.” * * *
The University may well have the right to purchase this property, but it cannot acquire it for speculative future use (stockpiling) by condemnation.

Id. at 580.

In this case, EDA has a specific plan for the property it seeks to condemn, creating an economic development district, and there is no evidence.of any problems that will interfere with that plan. The district court’s finding of necessity is not clearly erroneous. See Itasca County v. Carpenter, 602 N.W.2d 887, 890 (Minn.App.1999) (Nov. 30, 1999) (noting that rule established in Regents prohibiting stockpiling of property for speculative use “is limited by the extreme facts present in that controversy” and discussing meaning of speculative in context of condemnation proceeding).

DECISION

The district court did not err by granting EDA’s petition to condemn Reiling’s property.

Affirmed.

      . The reference to Minn.Stat. § 469.174, subd. 10, appears to be an error. Minn.Stat. § 469.174, subd. 10 (1998), defines the term "redevelopment district.” Minn.Stat. § 469.174, subd. 12 (1998), defines the term “economic development district.”


text:
    STATE of Minnesota, Respondent, v. Douglas Wayne YOUNG, Appellant.
    No. C5-99-1416.
    Court of Appeals of Minnesota.
    May 16, 2000.
    Review Denied April 25, 2000.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, for respondent.
    John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, Minneapolis, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, CRIPPEN, Judge, and KLAPHAKE, Judge.
   OPINION

SHUMAKER, Judge.

Appellant Douglas Wayne Young was tried on three counts of criminal sexual conduct. The jury informed the court that it could reach unanimous verdicts on two counts but not on the third and asked if that could be “a final outcome?”- When the court instructed the jury that it could not, the jury returned verdicts of guilty on all counts.

At the sentencing, the court did not offer to Young an opportunity for allocution.

Young assigns as errors on appeal the trial court’s refusal to permit a deadlock as to one count and the failure to offer an opportunity for allocution.' We reversé.

FACTS

After deliberating about six hours in Douglas Young’s trial on three counts of criminal sexual conduct, the jury asked the court if it could return a split verdict: If we (the jury) can agree unanimously on 2 counts, but cannot agree on one count [i.e., hung jury on one count, all 12 jurors agree on the other two counts] ■ can this be a final outcome?

The court conferred with the prosecutor and defense counsel. Without objection frbm either attorney, the court sent a written reply to the jury, saying “No, please continue deliberating.” Later, the jury returned verdicts of guilty on all counts.

At. the sentencing,-defense counsel told the court that he and his client were prepared to proceed:

Your Honor, I have had an opportunity to review the presentence investigation, as well as the confidential portion, and , we are prepared for sentencing.

The court did not ask Young if he wanted to say anything. Neither Young nor his attorney requested an opportunity for allo-cution.

ISSUES

1. Did the trial court commit reversible error when it instructed the jury that it could not conclude with a deadlock?

2. Did the trial court err by failing to give appellant an opportunity to exercise his right of allocution before sentencing?

ANALYSIS ’

Jury Instruction

In a criminal case, it is permissible for the trial court to instruct the jury to “consult and deliberate with a view to reaching an agreement consistent with their individual judgments.” State v. Martin, 297 Minn. 359, 373, 211 N.W.2d 765, 773 (1973). But it is not permissible for the court to tell the jury that it may not deadlock:

[I]t is reversible error in Minnesota to coerce a jury towards a unanimous verdict. A court, therefore, can neither inform a jury that a case must be decided, nor allow the jury to believe that a “deadlock” is not an available option.

State v. Jones, 556 N.W.2d 903, 912 (Minn.1996) (citation omitted). See also State v. Peterson, 530 N.W.2d 843, 846 (Minn.App.1995) (instruction that jury would be sequestered until it reached a verdict is coercive and reversible error); State v. Petrich, 494 N.W.2d 298, 300 (Minn.App.1992) (instruction that jury must reach a unanimous verdict is reversible error), review denied (Minn. Feb. 23,1993).

Contending that the trial court’s instruction here was not erroneous, the state relies on Jones, 556 N.W.2d 903, and State v. Buggs, 581 N.W.2d 329, 338 (Minn.1998). In Jones, when the jury indicated that it had reached an impasse after deliberating for one day, the trial court instructed it to continue deliberating. Jones, 556 N.W.2d at 907. The next day, when the jury said that it was still at an impasse, the court read CRIMJIG 3.04. Id. at 908. This instruction adequately described the jury’s role and duty and, as such, was not coercive. Id. at 912.

In Buggs, 581 N.W.2d 329, the trial court read CRIMJIG 3.04 in its final charge. During deliberations, the jury twice requested information about testimony and police reports. Id. at 337. The court denied the requests and told the jury to try to resolve its concerns without the requested information. Id. When the jury later said that it could not reach a unanimous verdict without certain information, the court instructed, “[cjontinue to try to work through your impasse.” Id. The instruction was not coercive because it “would not lead the jury to conclude they were required to deliberate until a unanimous verdict was reached * * Id. at 338.

If a trial court believes a jury is unable to agree, it “may require the jury to continue their deliberations and may give or repeat an instruction * ⅜

Id. at 337-38 (quoting State v. Kelley, 517 N.W.2d 905, 909 (Minn.1994) (quoting A.B.A. Standards for Criminal Justice § 15-4.4(b)(1986)).

The trial courts in Jones and Buggs gave proper, noncoercive instructions when the juries indicated that they were deadlocked. In contrast, the trial court here clearly informed the jury that a deadlock was not a permissible outcome. This was reversible error.

Right of Allocution

Before the court pronounces sentence, it must allow the prosecutor and defense attorney an opportunity to make statements relevant to the sentence. Minn. R.Crim. P. 27.03, subd. 3. The court must separately offer the defendant an opportunity for allocution:

The court shall also address the defendant personally and ask if the defendant wishes to make a statement in the defendant’s own behalf and to present any information before sentence ⅜ * *.

Id. Here, the trial court did not separately address Young and did not offer to him an opportunity to comment on sentencing issues. The state argues that the court had the benefit of a presentence investigation report that contained Young’s view of the case. Nevertheless, the rule is clear. A defendant has a right to allocution before the court imposes sentence. The court erred in not extending that right to Young. See State ex rel Thunstrom v. Tahash, 283 Minn. 239, 244,167 N.W.2d 139, 144 (1969), citing State ex rel. Searles v. Tahash, 271 Minn. 304, 136 N.W.2d 70 (1965) (a defendant who interposes a plea of guilty must be provided with an opportunity to present mitigating facts, circumstances, and arguments to the sentencing court).

Young also challenges the sufficiency of the evidence to support the verdicts. Because we have held that the coercive jury instruction was-reversible -error, we need not address this issue:

DECISION

The trial court committed reversible error when it instructed the. jury that a deadlock was not a permissible outcome in the case.

The trial court erred by failing to allow appellant an opportunity to -exercise his right of allocution.

Reversed and remanded.

      . In order for you to return a verdict, whether guilty or not guilty, each juror must agree with the verdict. Your verdict must be unanimous.
      You should discuss the case with one another, and deliberate with a view to reaching agreement, if you can do so without violence to your individual judgment. You should decide the case for yourself, but only after you have discussed the case with your fellow jurors and have carefully considered their views. You should not hesitate to reexamine your views and change your opinion if you become convinced they are erroneous, but you should not surrender your honest opinion simply because other jurors disagree or merely in order to reach a verdict.

        10 Minnesota Practice, CRIMJIG 3.04 (1990).


author: SHUMAKER, Judge. ■

text:
    In the Matter of the WELFARE OF J.S.S., Child.
    No. CX-99-1590.
    Court of Appeals of Minnesota.
    May 16, 2000.

      Mike Hatch, Attorney General, St. Paul, MN, and Paul Malone, Murray County Attorney, Eugene D. Mailandér, Assistant County Attorney, Slayton, MN (for respondent).'
    John M. Stuart, State Public Defender, Charlann Winking, Assistant Public Defender, Minneapolis, MN (for child).
    Considered and decided by KLAPHAKE, Presiding Judge, CRIPPEN, Judge, and SHUMAKER, Judge.
   OPINION

SHUMAKER, Judge. ■

Fourteen-year-old appellant' J.S.S. was adjudicated delinquent on charges of criminal damage to property and disorderly conduct. The trial court ordered J.S.S. to complete an out-of-home, long-term residential treatment program at Sheriffs Youth Ranch in Austin, Minnesota.' Because the court failed to make sufficient written findings of fact to support this placement .under Minn.Stat. § 260.185, subd. 1 (1998), and Minn. R. Juv. P. 15.05, subd. 2(A), we reverse.

FACTS ■

Appellant J.S.S. removed and damaged several plaques, worth approximately $70, from benches in Shetek State Park in Murray County, Minnesota. In another incident, J.S.S. also slapped a vulnerable adult on the back. ■

J.S.S. was charged by separate petitions in Murray County Juvenile Court with one count of criminal damage to property and one count of disorderly conduct, which had been amended from fifth-degree assault. The court adjudged J.S.S. delinquent on both charges and ordered his placement in a long-term residential treatment program at Sheriffs Youth Ranch in Austin, Minnesota.

At the dispositional hearing, the court stated:

[T]he child has been before the Court on a number of occasions, including offenses of Theft in ’96, offenses of Theft in ’98, Truancy in ’98, Disorderly Conduct in ’98. The Court would note that the child was placed at short term placement at Lafayette House and Prairie Lakes Detention Center. * * ⅜ That the child has been before the Court in regard to violations of probation. That in view of the fact that the Court has placed the child out of the home before and the child has continued to re-offend upon return to his home, the Court feels it is now in the best interest of the child and society that he be placed out of home.

In its written findings of fact, the court noted J.S.S.’s previous offenses of theft, truancy, and disorderly conduct; J.S.S.’s prior appearances before the court for probation violations; the failure of prior short-term, out-of-home placements; ' his propensity to re-offend upon his return home; his poor school record; and the need for additional out-of-home placement. The court also stated that “the best interests of the Child and society shall be served by an out-of-home placement at this time.”

ISSUE

Did the court make adequate findings to support its dispositional out-of-home placement for child?

ANALYSIS

“Trial courts have broad discretion to order dispositions authorized by statute in delinquency cases.” In re Welfare of M.AC., 455 N.W.2d 494, 498 (Minn. App.1990). The trial court’s broad discretion in delinquency dispositions will be affirmed “so long as the trial court determination is not arbitrary.” In re Welfare of L.K.W., 372 N.W.2d 392, 397 (Minn.App.1985).

A disposition must be “necessary to the rehabilitation of the child.” Minn.Stat. § 260.185, subd. 1 (1998).

Under the combined provisions of the juvenile code and Minn. R. Juv. P. 15.05, subd. 2(A), a juvenile court disposition that removes a child from [his] home must be supported by findings that address five subjects:
Why public safety is served by the disposition. Minn. R. Juv. P. 15.05, subd. 2(A)(1).
Why the best interests of the child are served by the disposition. Id.; Minn.Stat. § 260.185, subd. 1(f)(5)(a) (Supp.1997)
What alternative dispositions were proposed to the court and why such recommendations were not ordered. Minn. R. Juv. P. 15.05, subd. 2(A)(2); Minn.Stat. § 260.185, subd. l(i)(5)(b) (Supp.1997):
Why the child’s present custody is unacceptable. Minn. R. Juv. P. 15.05, subd. 2(A)(3)(a) (“the reasons why public safety and the best interest of the child are not served by preserving the child’s present custody”); see In re Welfare of L.K.W., 372 N.W.2d 392, 399-400 (Minn.App.1985) (reviewing preference under Minnesota law against removal of child from present custody).
How the correctional placement meets the child’s needs. Minn. R. Juv. P. 15.05, subd. 2(A)(3)(b) (“suitability of the placement, taking into account the program of the placement facility and assessment of the child’s actual needs”).
In re Welfare of C.A.W. and L.R.M.B., 579 N.W.2d 494, 497-98 (Minn.App.1998).

1. Public Safety

In determining an out-of-home disposition for a child, the court must take into account the effect the disposition will have on public- safety. Minn.. R. Juv. P. 15.05, subd. 2(B)(1)(a). Here, the court considered J.S.S.’s prior offenses of truancy and disorderly conduct, and his tendency to re-offend after completing out-of-home placement, before ordering out-of-home placement. The trial court made sufficient findings as to why public safety would be served by the disposition.

2. Best Interests of the Child

The best interests of a child are usually served by parental custody. In re Welfare of J.A.J., 545 N.W.2d 412, 426 (Minn.App.1996) (quotation and citation omitted). When out-of-home placement is considered, the placement should be suitable to the child’s needs. Minn. R. Juv. P. 15.05, subd. 2(B)(3). A bare conclusion that the best interests of a child require a particular disposition is insufficient. Id. at 415. Here, the court stated that the “best interests of the Child * * * shall be served by an out-of-home placement at this time,” and that the child “has continued to re-offend upon returning to his home [from previous out-of-home placement].” A finding. of “best interests” with minimal elaboration is inadequate. In re Welfare of M.R.S., 400 N.W.2d 147, 151 (Minn.App.1987). The court did not explain how JN.S.’s best interests would be served by an. out-of-home placement, nor did it identify any interests of the child that would be' served by placement at Sheriffs Youth Ranch in particular. Accordingly, the record is insufficient to support the finding that out-of-home placement was in J.S.S.’s best interests.

3. Alternative Dispositions

Each trial court disposition rests in part on a finding that [an out-of-home] placement will serve better than a “regular daytime community service program” in impressing upon the children the ■ seriousness of their conduct, giving the child insight into the causes and nature of [his] behavior, and identifying needs for further intervention.

C.A.W., 579 N.W.2d at 498. At the dispo-sitional hearing, J.S.S.’s counsel suggested that the trial court consider the options of local community service or probation. At both the hearing and in its written order, the trial court indicated that short-term, out-of-home placement had twice been attempted, but J.S.S. continued to re-offend upon his return home. The trial court did not expressly or directly respond to J.S.S.’s counsel’s suggestion for local community service or probation. Rather, the court stated that because J.S.S. had continued to re-offend upon his return home, it was now appropriate to try a different disposition. This was a sufficient finding regarding alternative dispositions.

4. Present Custody

On its face, this aspect of the . mandates for findings adds little to the rule that the trial court address disposi-tional alternatives. But the rule is a reminder of the preference for placing children in their own homes, and it calls for attention to the families of the children.

C.A.W., 579 N.W.2d at 499. The trial court made no findings either at the dispo-sitional hearing or in the written order that addressed J.S.S.’s familial relationships. “Correctional placements cannot occur without evidence and findings reflecting consideration of the child’s familial relationships.” Id. The record is insufficient to support J.S.S.’s out-of-home placement because the trial court made no finding that his current custodial arrangement was unacceptable.

5. Suitability of Placement

A dispositional order that places a child out of his home must contain written findings stating the reasons the placement facility will be suitable to the needs of the child. Minn. R. Juv. P. 15.05 subd. 2(A)(3)(b) (stating that suitability takes “into account the program of the placement facility and assessment of the child’s actual needs”). Other than the finding that previous out-of-home placements had failed to deter J.S.S. from re-offending, the court made no findings either at the dispo-sitional hearing or in the written order as to why Sheriffs Youth Ranch in Austin, Minnesota, was particularly suitable to J.S.S.’s rehabilitation needs. Accordingly, the record is insufficient to support J.S.S.’s out-of-home placement.

DECISION

The trial court’s findings are insufficient as to why J.S.S.’s best interests will be served by an out-of-home placement; why the particular placement at the Sheriffs Youth Ranch is appropriate and beneficial; and why J.S.S.’s current custodial arrangement is unacceptable. Therefore, the trial court’s order for long-term residential placement is reversed.

Reversed.

      . Effective August 1, 1999, Minn.Stat. § 260.185 was recodified as Minn.Stat. § 260B.198. "The legislature intends this act to be a clarification and reorganization of laws relating to juvenile delinquency and child protection in Minnesota Statutes, chapters 257 and 260. The changes that have been made are not intended to alter those laws and shall not be construed by a court or other authority to alter them.” Minn. Laws ch. 139, art. 4, § 1.


author: RANDALL, Judge.

text:
    David MICHELS, Appellant, v. Lucy KOZITZA, et al., Respondents, James Kollmann, as Nicollet County Sheriff, Respondent.
    No. C6-99-14I1.
    Court of Appeals of Minnesota.
    May 16, 2000.

      Lawrence H. Crosby, Jay ,D. Olson, Crosby & Associates, St. Paul, MN (for appellant).
    ' Karl O. Friedrichs, Friedrichs Law Office, Mankato, MN (for respondents Lucy Kozitza, et al.).
    Michael K. Riley, Sr., Nicollet County Attorney, Daniel D. Derner, Assistant County Attorney, St. Peter, MN (for respondent James Kollmann).

      Considered and decided by RANDALL, Presiding Judge, AMUNDSON, Judge, and FOLEY, Judge.

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

   OPINION

RANDALL, Judge.

Appellant challenges a district court order denying his motion for an injunction barring a sheriffs execution sale of appellant’s real property. Appellant asserts that the district court erroneously interpreted the homestead exemption when it concluded that a parcel of his land that is noncontiguous with the parcel on which his home is situated is not covered by the exemption. He also alleges that res judi-cata and collateral estoppel barred respondent creditors from asserting that the exemption does not apply in this case. We affirm.

FACTS

Appellant David Michels and his brother previously co-owned a 40-acre parcel of land, which they stipulated to partitioning in 1998. Michels received the southern 20 acres of the property, and his brother received the northern 20 acres. On April 30, 1999, respondent James Kollman, the Ni-collet County Sheriff, levied and attached the 20 acres owned by Michels in satisfaction of a judgment owed to respondents Lucy Kozitza and the Kozitza Family Partnership (the Kozitzas). The execution sale was scheduled for July 15,1999.

Michels moved for an injunction to stop the sale, contending that his 20 acres was subject to the homestead exemption. The district court denied Michels’s motion. In rejecting the motion, the district court examined precedent indicating that Michels was not entitled to the homestead exemption for his 20 acres because his residence is not situated on land that is contiguous with this acreage. The district court determined that Michels was unlikely to succeed on the merits of his argument.

ISSUES

1. Does the homestead exemption protect noncontiguous parcels of property that are homesteaded for property tax purposes?

2. Does collateral estoppel preclude respondents from asserting that appellant’s property is not subject to the homestead exemption?

ANALYSIS

The district court has discretion in deciding whether to grant a temporary injunction and will not be reversed on appeal absent a clear abuse of its discretion. Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 209 (Minn.1993). To determine whether injunctive relief should be granted, the court must consider the following factors:

(1) the nature of the relationship between the parties before the dispute; (2) the likelihood that the moving party will prevail on the merits; (3) the moving party’s harm if the injunction is denied compared to harm to the nonmoving party if injunction is granted; (4) public policy considerations triggered by the fact situation; and (5) administrative burdens to supervise or enforce the injunction.

Eason v. Independent Sch. Dist. No. 11, 598 N.W.2d 414, 417 (Minn.App.1999) (citing Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965)).

The district court concluded that while the public-policy considerations weigh in favor of protecting a debtor’s homestead, Michels was unlikely to succeed on the merits. The district court further determined that the other factors were “relatively neutral.” Michels’s arguments on appeal relate only to the merits of his argument. Thus, we will consider only whether the district court erroneously determined that Michels is unlikely to succeed on the merits of his argument and thereby abused its discretion by refusing to grant an injunction. See Sanborn Mfg. Co. v. Currie, 500 N.W.2d 161, 165 (Minn.App.1993) (stating prospect for balancing considerations does not exist where plaintiff has shown no likelihood that it will win its case); State by Drabik v. Martz, 451 N.W.2d 893, 895 (Minn.App.1990) (stating where appellant argues merits of case, appellate court limited “to determining whether the preliminary injunction and bond were proper”), review denied (Minn. Apr. 25, 1990); see also Sa-Ag, Inc. v. Minnesota Dep’t of Transp., 447 N.W.2d 1, 4 (Minn.App.1989) (“Although the granting of a temporary injunction requires consideration of five factors, the parties agree that the deciding factor is the likelihood of prevailing on the merits, i.e., whether or not the addendum constitutes a rule, which is a purely legal question.”).

I. Statutory Construction

Michels asserts that the district court erred in its interpretation of the statute granting the homestead exemption.

Statutory construction is a legal question reviewed de novo on appeal. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990). If a statute is unambiguous, its plain meaning is applied. State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996); see also Minn.Stat. § 645.16 (1998) (“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.”).

The statute at issue is the homestead exemption, which states:

The house owned and occupied by a debtor as the debtor’s dwelling place, together with the land upon which it is situated to the amount of area and value hereinafter limited and defined, shall constitute the homestead of such debtor and the debtor’s family, and be exempt from seizure or sale under legal process on account of any debt not lawfully charged thereon in writing * * *.

Minri.Stat. §-510.01 (1998); see also Minn. Const, art. I, § 12 (providing “reasonable amount of property shall be exempt from seizure or sale for the payment of any debt or liability”). The homestead may include up to 160 acres outside of any city. Minn. Stat. § 510.02 (1998).

Michels asserts that the homestead exemption should be construed to apply to noncontiguous land that is homesteaded for property tax purposes. See Minn.Stat. § 273.124, subd. 14 (Supp.1999) (permitting owner of certain noncontiguous parcels located within four townships and/or cities of owner’s home to classify such property as agricultural homestead for property tax purposes). He contends that the district court’s determination that the homestead exemption does not apply to 20 acres of his property that is noncontiguous with the land on which his home is situated “is outdated and does not square with the present realities of the modern farmer.”

There have been no Minnesota appellate décisions considering this issue for over 90 years. In 1907, the Minnésota Supreme Court held that two parcels of land that touched, although only at a corner, and were occupied and cultivated as one homestead, qualified for the homestead exemption, despite the fact that the residence and other buildings stood on only one of the parcels. Brixius v. Reimringer, 101 Minn. 347, 348, 112 N.W. 273, 273-74 (1907). The fact that the two parcels were contiguous, meaning joined at some point, was the essential fact. The court observed that the parcels “should be so connected that they can be used as one tract” and stated:

The essential thing to constitute a quantity of land within the homestead law is that it shall be occupied and cultivated as one piece or parcel of land, on some part of which is located the residence.

Id. at 348, 112 N.W. at 273 (citation omitted); cf. Hommerding v. Travelers Ins. Co., 393 N.W.2d 389, 391 (Minn.App.1986) (recognizing in dicta that agricultural property does not qualify for homestead exemption if parties’ home is not situated on property). No Minnesota appellate decision has held that the homestead exemption applies to noncontiguous parcels of land.

A federal bankruptcy court recently addressed an issue similar to the issue in this case. In In re Priebe, 69 B.R. 100, 101 (1987), farmers who lived in a home on 80 acres attempted to claim an additional, noncontiguous 80-acre parcel as part of their homestead exemption. The bankruptcy court recognized that the nature of farming has changed such that farmers can economically farm tracts of land non-contiguous to the homestead. Id. at 102. The court additionally noted that because only contiguous land qualifies for the exemption, “a large group of the class that the statute is intended to protect are arbitrarily excluded from that protection.” Id. at 103. After recognizing this fact, however, the court went on to state that “the statute is clear, and the matter is the proper subject for the legislature, not the Courts.” Id. The court further observed:

It is not for the Courts to define the rural homestead and thereby fashion the Minnesota rural homestead exemption entitlement. To allow the Debtors’ claim of exemption entitlement to stand for the noncontiguous 80 acres in this case would be to engage in legislation by judicial decree.

Id.

Like the bankruptcy court’s observations in Priebe, we conclude that Michels has a valid point when he asserts that by precluding the application of the homestead exemption to noncontiguous parcels, certain farmers are at a disadvantage. However, the language of the statute is unambiguous. See State ex rel. Coduti v. Hauser, 219 Minn. 297, 303, 17 N.W.2d 504, 507-08 (1945) (observing legislature may ignore logic and perpetrate injustice as long as it does not violate constitution; absent ambiguity, remedy must be by amendment and not construction). The exemption specifically states that the home is exempt “together with the land upon which it is situated.” Minn.Stat. § 510.01 (emphasis added).

Michels concedes that the 20 acres in dispute is noncontiguous with the land on which his home is situated. Thus, we are compelled to conclude that although he may be able to “homestead” the property for property tax purposes under Minn. Stat. § 273.124, subd. 14, the homestead exemption from judgments and foreclosures does not apply to noncontiguous property. The plain language of the statute precludes the application of the homestead exemption to Michels’s 20 acres. The district court properly interpreted the statute. Michels’s commonsense argument is suited for presentation to the legislature, but we cannot change the statute by judicial fiat.

II. Res Judicata/Collateral Estoppel

Michels also contends that because the Kozitzas asserted in the 1998 partition action that the homestead exemption did not apply to the 20 acres at issue, they should have been precluded by res judicata and collateral estoppel from making that same argument in response to Michels’s motion for an injunction.

Whether res judicata applies is a question of law reviewed de novo on appeal. Hennepin County v. Hanneman, 472 N.W.2d 149, 152 (Minn.App.1991), review denied (Minn. Aug. 29,1991). Collateral estoppel, or issue preclusion, is one of two forms of res judicata. Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn.1978). Collateral estoppel applies when: \

“(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the es-topped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.”

Willems v. Commissioner of Pub. Safety, 333 N.W.2d 619, 621 (Minn.1983) (quoting Victory Highway Village, Inc. v. Weaver, 480 F.Supp. 71, 74 (D.Minn.1979)). Collateral estoppel “operates only as to matters actually litigated, determined by, and essential to a previous judgment.” Roseberg v. Steen, 363 N.W.2d 102, 105 (Minn.App.1985).

Michels’s brother brought the partition action in 1998, and Michels and the Kozitzas, as lienholders of Michels, were joined as defendants. The Kozitzas objected to the partition and asserted, in part, that the entire 40-acre parcel should be sold and the proceeds used to pay the lienholders. The Kozitzas argued that although Michels raised a homestead-exemption claim, the exemption applies only to land contiguous to a homestead. The district court partitioned the property subject to a stipulation between Michels and his brother, denied the Kozitzas’ request that all 40 acres be sold, and stated that any liens against Michels would be limited to the southern 20 acres of the property. The district court did not address the homestead-exemption issue.

Respondents do not dispute that the Kozitzas raised the homestead-exemption issue in the partition action, but assert that the district court did not resolve the issue in that action. In denying Michels’s motion for an injunction, the district court in this case agreed with respondents and stated that the partition judgment entered in 1998 did not address the homestead-exemption issue.

Because the district court (a) did not address the homestead-exemption issue in the partition action and (b) recognized in this action that the court did not address the homestead-exemption issue in the partition action, there was not a final judgment on the merits of this issue. Thus, collateral estoppel did not bar respondents from asserting the inapplicability of the homestead exemption in' response to Mi-chels’s motion for an injunction.

DECISION

The statute defining the homestead exemption is unambiguous. It does not include land that is noncontiguous to the land on which the home is situated, even if that land is classified as homestead for property tax purposes. Because the district court did not resolve the merits of this issue in the partition-action' proceedings, collateral' estoppel did not bar respondents from asserting the inapplicability of the homestead exemption in this action. The district court’s finding that Michels is unlikely to succeed on the merits of his argument was proper.. The district court did not -abuse its discretion by -refusing to grant Michels’s motion for an injunction barring the sheriffs sale of his property.

Affirmed.

      . The supreme court was interpreting a predecessor to the current homestead exemption, which exempted "any quantity of land not exceeding eighty acres, and the dwelling house thereon, and its appurtenances.” Brixius, 101 Minn, at 348, 112 N.W. at 273.

      . Michels does not assert that the statute is unconstitutional.

      . Michels is seemingly not asserting claim preclusion, which is the other form of res judicata. See In re the Matter of Trusts by Hormel, 543 N.W.2d 668, 671 (Minn.App.1996) (describing claim preclusion).


author: CRIPPEN, Judge.

text:
    Evelyn BELTON-KOCHER, Appellant, v. ST. PAUL SCHOOL DISTRICT, Respondent.
    No. C5-99-1402.
    Court of Appeals of Minnesota.
    May 16, 2000.

      Stephen W. Cooper, Kathryn J. Cima, The Cooper Law Firm, Chartered, Minneapolis, MN (for appellant).
    James R. Andreen, Erstad & Riemer, P.A., Minneapolis, MN (for respondent).
    ' Considered and decided by KLAPHAKE, Presiding Judge, CRIPPEN, Judge, and SHUMAKER, •' Judge.
   OPINION

CRIPPEN, Judge.

This appeal presents the conflict of two critical public interests: first, that employees be hired on the basis of their qualifications and without discrimination against protected classes; and second, that public-service, educational agencies be permitted to select the employee with the greatest job-performance potential. In this case, we affirm the trial court’s judgment that respondent St. Paul school district rejected candidates who would be supervised by their spouses under a bona fide, essential-management standard.

FACTS

Appellant applied for the position of Assistant Director of Student Placement with the St. Paul public school district. Appellant’s husband was the direct supervisor of this position at the time, and the St. Paul school district has an anti-nepotism policy that prohibits any employee of the school district from being directly supervised by a spouse or a- member of the prospective employee’s immediate family. Appellant was invited to interview for the position, but the district then canceled the interview because it determined that the hiring of appellant would violate its anti-nepotism policy. Appellant filed suit, claiming that the district’s refusal of her application for employment constituted discrimination on the basis of her marital status in. violation of the Minnesota Human Rights Act. The trial court ruled in respondent’s favor and denied appellant’s motion for a new trial.

ISSUE

Did respondent St. Paul school district show that it’s anti-nepotism policy constitutes a bona fide occupational qualification?

ANALYSIS

The Minnesota Human Rights Act provides in part that it is an unfair employment practice for an employer to refuse to hire a person based upon marital status, except when marital status is a bona fide occupational qualification. ■ MinmStat. § 363.03, subd. l(2)(a), (c) (1998). Respondent St. Paul school district has an anti-nepotism policy that states, in part:

No employee of the School District shall be assigned to a position in which that employee is directly supervised by another employee who is (1) a member of his or her immediate family (parent, spouse, child, or sibling); (2) an in-law; or (3) a member of the employee’s household.

The trial court made numerous findings of fact that are not questioned by appellant. On the court’s ultimate conclusion as to the necessity for respondent’s anti-nepotism policy, we must determine whether the trial court misapplied the law. Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn.1990). Where the trial court’s treatment of mixed questions of law and fact and its treatment of the ultimate issues is examined for a misapplication of the law, this court should “carefully review” the trial court’s ultimate conclusions. See id. at 221 (citation omitted).

To resolve the conflict in this case, the parties offer various characterizations of the governing rule of law but do not suggest that the trial court erred in its observation of law that respondent’s policy is acceptable if it is “reasonably necessary” for the hiring and performance of staff who conduct operations of the school district. The governing standard is deliberately narrow and is read strictly. See Huisenga v. Opus Corp., 494 N.W.2d 469, 472-73 (Minn.1992) (applying U.S. Supreme Court Title VII occupational qualification analysis from International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 201, 111 S.Ct. 1196, 1204, 113 L.Ed.2d 158 (1991), noting that qualification defense is written narrowly and read narrowly). As the trial court observed, the required necessity for an otherwise-unlawful job qualification has been variously characterized as compelling, overriding, or related to the essence of a job. See Kraft, Inc. v. State, 284 N.W.2d 386, 388 (Minn.1979); see also Elbers v. Growe, 502 N.W.2d 810, 815 (Minn.App.1993) (job requirement must relate to “essence” of job or “central mission of the employer’s business”), review denied (Minn. Sept. 30, 1993). The Minnesota Supreme Court has held that a business necessity must be “compelling and overriding” in order to justify a requirement based on marital status. Kraft, 284 N.W.2d at 388.

The dispute of the parties dwells on the sufficiency of the evidence in this case to show the business necessity of hiring persons who will be supervised by someone other than their spouses. The trial court reached its conclusion on necessity because of evidence demonstrating that the marriage relationship between a supervisor and an employee who reports to the supervisor will interfere with job performance in numerous ways, by affecting: (a) impartial job-performance appraisals; (b) the making of impartial job assignments; (c) the impartial allocation of job-training opportunities for employees; (d) the impartial administration of discipline; (e) the impartial administration of employee benefits such as leave requests; (f) the occurrence of judgment on the job that is unaffected by an intimate relationship with the supervisor; (g) the hiring of candidates without preference for relatives; and (h) the hiring and supervision of staff and the performance of work without damage done to the morale of other employees. These factors were demonstrated to the satisfaction of the trial court through the testimony of two witnesses. Finding no basis on which we might correct this trial court analysis of the business-necessity issue, we must affirm its conclusion that respondent’s policy states a bona fide occupational qualification.

Just as appellant refrains from an argument on the exact nature of the narrow standard of law that applies to the case, she does not question that job-performance factors considered by the trial court might show the necessity for respondent’s policy. Rather, appellant asserts that the evidence presented was not sufficient to establish the legitimacy of these factors. Appellant challenges the adequacy of the testimony of the school district’s witnesses, principally because it is based on their expert appraisal of the school district’s employment requirements — characterized by one witness as “common sense” — and because the evidence does not include useable data, either empirical evidence or recitations of anecdotal evidence known by the witnesses. To be convincing, appellant contends, the proof must be more than a witness’s mere subjective belief. But as the trial court found, the evidence in this case is sufficiently convincing and is representative of expert opinion rather than mere belief.

Appellant also contends that the witnesses inadequately addressed the issue of a need for the policy, contending they did not squarely address the ultimate question of necessity. But the trial court did not err in making no demand for testimony in the nature of an ultimate declaration of law. Testifying as to the factors that demonstrated necessity for respondent’s rule, the expert witnesses provided sufficient evidence for the trial court’s ultimate conclusion on business necessity.

Finally, appellant suggests that the considerations identified in this case are legally inadequate because of the broad impact of the trial court’s holding, which is premised on evidence that is not narrowly confined to the hiring and job performance in the operation of schools. The witnesses who established respondent’s case were experts in the administration of schools, and the sufficiency of their evidence is judged only for the case in which they testified, involving job performance in an educational environment.

DECISION

The trial court properly found .respondent St. Paul school district’s anti-nepotism policy constituted a bona fide occupational qualification, and respondent St. Paul school district’s refusal to hire appellant on the basis of her marital status did not violate the Minnesota Human Rights Act.

Affirmed.

      . Appellant also offers no legal authority holding that a policy like that employed by respondent is inappropriate for a school organization, and we find no such authority. Undisputed trial court testimony states that policies of this type are common in the industry.

      . The evaluation of occupational qualifications for discrimination purposes commonly relates to business needs' considered in terms of job performance. Thus, precedents speak, for example, of the need that qualifications relate to the “essence” of á job. Huisenga, 494 N.W.2d at 473 (quoting International Union, 499 U.S. at 203, 111 S.Ct at 1205). Alternatively, the need for qualifications may be studied with regard for overriding needs in the employer’s business (the "central mission of the employer's business"). Id. Appellant asserts the significance of testimony by a witness. for the school that its nepotism policy might not affect the central mission of the school. This testimony does not diminish the legal importance of considerations demonstrating ■ that impartial decision-making, on the job and in hiring for the. task, is a necessary element in job performance of school personnel.