author: STREIT, Justice.

text:
    Rita THAYER, Appellant, v. STATE of Iowa, Appellees.
    No. 01-1744.
    Supreme Court of Iowa.
    Nov. 14, 2002.

      David L. Baker of Riccolo & Baker, P.C., Cedar Rapids, for appellant.
    Thomas J. Miller, Attorney General and Greg Knoploh, Assistant Attorney General, for appellees.
   STREIT, Justice.

While driving to work in a van owned and operated by her employer, Rita Thayer was paralyzed when the driver of the van lost control causing the van to roll several times. Thayer received workers’ compensation benefits for her injuries. She sued her employer, the University of Iowa, for negligence. The district court granted the University’s motion for summary judgment. Because we find workers’ compensation is Thayer’s exclusive remedy, we affirm.

I. Background and Facts

Rita Thayer was paralyzed when the van she was riding in got into an accident. Thayer was riding in a University of Iowa vanpool from her hometown of Cedar Rapids to her job at the University of Iowa in Iowa City. The University supplied vans to certain employees as part of the University of Iowa Employee Vanpool Program. Each participant in the program had to sign an agreement and pay a monthly fee by payroll deduction. The University subsidized a portion of the costs of the program.

Thayer was not a regular vanpool participant and it is not clear whether she had ridden in the vanpool before. Thayer was riding in the vanpool as a substitute passenger on the day of the accident. She had not signed the agreement with the University for the transportation services. The record is not clear whether she paid a fee for that day.

Thayer sued the University and the driver of the van for negligence. The court granted the University’s and the driver’s motion for summary judgment. Thayer appealed only the court’s dismissal of her claim against the University.

II. Scope of Review

We review the district court’s grant of the University’s motion for summary judgment for correction of errors at law. McNally & Nimergood v. Neumann-Kiewit Contsructors, Inc., 648 N.W.2d 564, 570 (Iowa 2002). We consider the evidence presented in the light most favorable to the non-moving party. Id. A district court properly grants summary judgment when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 1.981(3) (2001).

III. The Merits

Thayer argues the district court erred in granting the University’s motion for summary judgment. In particular, she asserts workers’ compensation is not her exclusive remedy. The University contends Thayer failed to timely appeal the court’s ruling on her negligence claim.

A. Failure to Timely File Notice of Appeal

The University argues Thayer did not perfect her appeal because she failed to file notice of appeal in a timely manner with the district court clerk. Iowa Rule of Appellate Procedure 6.5 (2001) provides, “appeals to the supreme court must be taken within, and not after, thirty days from the entry of the order, judgment, or decree.... ” Therefore, a party must file its notice of appeal within thirty days from the entry of an adverse judgment.

Filing is timely if all necessary documents are filed with the court either

before service or within a reasonable time thereafter.... Whenever these rules or the rules of appellate procedure require a filing with the district court or its clerk within a certain time, the time requirement shall be tolled when service is made, provided the actual filing is done within a reasonable time thereafter.

Iowa R. Civ. P. 1.442(4) (2001) (emphasis added). The time for filing an appeal is tolled upon service if the party files within a reasonable time after service.

On October 3, 2001, the court granted the University’s motion for summary judgment. Under our rule, the thirty-day period expired on November 2, 2001. Thayer served notice of appeal on opposing counsel on October 30, 2001. Thayer also sent notice of appeal to the district court clerk and the Supreme Court clerk on that date. All but the district court clerk received the notices. On November 29, 2001, the district court informed Thayer it did not have a notice of appeal on record. Thayer filed her notice of appeal with the district court on December 5, 2001.

Thayer served timely notice of appeal on all concerned parties but she did not file with the district court clerk until thirty-five days after Thayer served notice of appeal on opposing counsel. Thirty-two days lapsed in between when notice was due to be filed and when Thayer filed her notice with the district court. Because Thayer filed notice of appeal with the district court thirty-two days after it was due, she did not comply with the rules of filing. If, however, Thayer filed the notice “within a reasonable time” after it was served, the time for filing was tolled and she complied with Iowa Rule of Civil Procedure 1.442(4). The question is whether the delay in this case was reasonable.

In Cook v. City of Council Bluffs, 264 N.W.2d 784 (Iowa 1978), we stated that where a party filed a notice of appeal with the district court clerk twenty-six days after service was due, the service was reasonable because the notice was initially mailed in a timely fashion, but the mail service went awry. We have defined a “reasonable time” as

such time as is necessary, under the circumstances, for a reasonably prudent and diligent man to do conveniently what the contract or duty requires should be done, having regard for the rights, and possibly the loss if any to the other party affected....

Cook, 264 N.W.2d at 787 (quoting Williamson Heater Co. v. Whitmer, 191 Iowa 1115, 1119, 183 N.W. 404, 405 (1921)). The facts before us are strikingly similar to those in Cook. Thayer sent notice of appeal in a timely manner to the district court clerk, but, for some reason, the notice did not arrive. Thayer missed the thirty-day filing deadline imposed by our rules of appellate procedure. Her delay was reasonable however — Thayer’s filing was only thirty-two days after the deadline was tolled. Because both the University and the Supreme Court clerk received notice of the appeal in a timely fashion, we find no unfairness to the University. In Cook we found twenty-six days was a reasonable time to file after service. Similarly, under the circumstances of the case before us, thirty-two days was a reasonable time to file the notice of appeal after service on the parties.

B. Workers’ Compensation as an Exclusive Remedy

Iowa Code section 85.20 does not bar a negligence suit against an employer unless the action arose while the employee was acting within the scope of her employment and the injury arose out of and in the course of her employment. See Iowa Code § 85.20 (1997). The University contends Thayer’s injuries arose out of and in the course of her employment such that workers’ compensation benefits are her exclusive remedy. Thayer contends she was merely going to work and is not covered by workers’ compensation.

Chapter 85 provides a “zone of protection” in workers’ compensation making an employer responsible for workers’ compensation benefits only for “any and all personal injuries sustained by an employee arising out of and in the course of employment ....” Id. § 85.3(1); Waterhouse Water Conditioning, Inc. v. Waterhouse, 561 N.W.2d 55, 57 (Iowa 1997); Frost v. S.S. Kresge Co., 299 N.W.2d 646, 648 (Iowa 1980). In general, an injured employee’s right to workers’ compensation is the employee’s exclusive remedy against the employer. Nelson v. Winnebago Indus., Inc., 619 N.W.2d 385, 388 (Iowa 2000); Bailey v. Batchelder, 576 N.W.2d 334, 337 (Iowa 1998); Iowa Code §§ 85.3(1), 85.20.

The question we must answer is whether Thayer’s injuries arose out of and in the course of her employment with the University. The words “personal injury arising out of and in the course of employment” includes

[ijnjuries to employees whose services are being performed on, in, or about the premises which are occupied, used, or controlled by the employer, and also injuries to those who are engaged elsewhere in places where their employer’s business requires their presence and subjects them to dangers incident to the business.

Iowa Code § 85.61(7). An injury “arises out of’ employment if there is a causal connection between the employment and the injury. Waterhouse, 561 N.W.2d at 57. This inquiry focuses on the character and source of the risk giving rise to the injury and on the relationship of the risk to the nature of employment. Meade v. Ries, 642 N.W.2d 237, 243-44 (Iowa 2002) (citing Bailey, 576 N.W.2d at 338). The injury arises in the “course of employment” when the injury and the employment coincide as to time, place, and circumstances. Id

The facts before us show Thayer was riding in the vanpool on her way to work at 7:15 a.m. Generally, an accident that occurs while an employee is going to work or coming from work does not arise out of and in the course of employment. Quaker Oats Co. v. Ciha, 552 N.W.2d 143, 150-51 (Iowa 1996); Frost, 299 N.W.2d at 648, This is known as the “going-and-coming” rule and it has certain recognized exceptions. Frost, 299 N.W.2d at 648-49.

One such exception to the going-and-coming rule provides that where the employer has furnished transportation as an incident to employment, the injury is said to have arisen out of and in the course of employment. This is because the zone of protection may extend to include injuries occurring even beyond the physical parameters of the employer’s premises. Bailey, 576 N.W.2d at 339; Frost, 299 N.W.2d at 648-49.

[W]hen an injury occurs while a worker is .being transported to an intended place of employment in a vehicle owned by the employer, the latter’s control over that situation makes the vehicle an extension of the work place.

Johnson v. Farmer, 537 N.W.2d 770, 772 (Iowa 1995) (citing 1 Arthur Larson, Larson’s Workmens’ Compensation Law § 17.00, at 4-209 (1995)). “It is particularly true where ... a supervisory employee of the injured person’s employer is, on the employer’s behalf, directing the route and operation of the vehicle.” Id. One relevant fact to consider is whether the employer has made a “prevailing practice” of transporting employees back and forth. Tucker v. Northeast Louisiana Tree Serv., 665 So.2d 672, 678 (La.Ct.App.1995). If such trips, are made irregularly, that suggests the employer is providing the service gratuitously. Id.

Here, the University owned the van and operated it as part of the vanpool program. One of Thayer’s co-employees drove the van pursuant to a contract and policies made by the University. The University maintained the van, selected and trained the driver, set the driving schedule, approved the route, and set policies for use of the van. The operation of the van was at all times under the University’s control.

Thayer asserts the going-and-coming rule does not apply to her because she paid for the ride. Thayer argues because the University offered the service for a fee, she is entitled to the same right of recovery as any other paying customer of public transportation would be entitled to recover. The record does not show whether Thayer actually paid anything at all for her ride.

Proof that an employee paid for the ride to work does not take the injury out of the realm of “arising out of and in the course of employment.” The mere fact that an employee pays a fare for the transportation does not convert the employee into a passenger for hire with all the legal rights attendant such a person. See Neyland v. Maryland Cas. Co., 28 So.2d 351, 353 (La.Ct.App.1946). The essential character of the employee’s status survives even after paying a fare. Id. The employer’s provision of transportation does not depend on the payment of a fee for the ride, but solely on a person’s status as an employee. Id. at 354-55; Mark A. Rothstein, Employment Law § 6.7, at—(2d ed.1999) (citing Peski v. Todd & Brown, Inc. 158 F.2d 59 (7th Cir.1946); Neyland, 28 So.2d at 351). Consideration for the transportation was not simply the payment of money, but the performance of work for the employer. Neyland, 28 So.2d at 355. It is reasonable to infer that because the ride depended upon the fact of employment, it was also incidental to it. See Iowa Code § 85.61(7) (employer responsible for injuries to an employee caused by dangers incident to employment).

The employer-provided-conveyance exception is based on the awareness that, in certain situations, both the employer and the employee derive mutual benefit from the provision of travel incident to employment. Lassabe v. Simmons Drilling, Inc., 228 Mont. 94, 743 P.2d 568, 570 (1987). The only purpose of Thayer’s trip was to go to the University of Iowa — the site of her employment—in the van furnished by her employer, all to the benefit of her employer. See, e.g., Receveur Const. Co./Realm, Inc. v. Rogers, 958 S.W.2d 18, 21 (Ky.1997) (though employer-provided conveyance was for employee’s convenience, it was primarily of benefit to employer and workers’ compensation benefits applied).

The fact that an employee paid a fare or did not pay a fare is not determinative, in part, because the employer is not providing transportation for employees out of a desire to make a profit from the operation of the conveyance. See Neyland, 28 So.2d at 354. Rather, the employer operates such a program for other reasons not motivated by the desire to see a return from the transportation program. For instance, an employer may provide transportation for employees to and from work through the necessity of obtaining and retaining employees. Id. An employer may also do so in the interests of energy conservation or simply to assist employees in their commute. Croteau-Robinson v. Merrill Trust/Fleet Bank, 669 A.2d 763, 766 (Me. 1996). Here, the vanpool benefited the University by improving employee recruitment and retention and by reducing parking congestion on campus.

Whether the ride was merely gratuitous or contractual incident to employment, while relevant, is not determinative. The rationale behind the going-and-coming rule is that “the risks of employment continue throughout the journey” and because “the employer is in control of those risks by providing transportation, the employee is considered to be within the course of employment.” Hansen v. Estate of Harvey, 119 Idaho 333, 806 P.2d 426, 431 (1991) (emphasis added). Payment of a fee is not determinative- — control is the key.

Thayer was riding in a van provided by the University, her employer, and driven by a co-employee. The University had sole control of the vanpool program. Thayer and the other riders were on their way to work when the accident happened. As such we find Thayer’s injuries arose out of and in the course of her employment pursuant to Iowa Code section 85.31. See, e.g., Schauder v. Pfeifer, 173 A.D.2d 598, 570 N.Y.S.2d 179 (N.Y.App.Div.1991) (where employer provided vanpool program for employees, furnished the van, formed and maintained the program, and rendered assistance necessary, plaintiffs injuries arose out of her employment making her exclusive remedy workers’ compensation).

IV. Conclusion

The University organized the vanpool program for its employees. The University regularly provided the van and controlled all aspects of the transportation program. The employer’s provision of the vanpool was not a gratuitous gesture, but was directly related to the work of the University and primarily benefited the University. Because Thayer was riding in the employer-provided van on her way to work when she was injured, her injuries arose out of and in the course of her employment making her entitled to workers’ compensation benefits as her exclusive remedy. The district court properly granted the University’s motion for summary judgment.

AFFIRMED.

      . The agreement also made clear that no one other than University employees could ride in the vanpool. By signing the agreement, each employee agreed that the vanpool is for his or her privilege in connection with each person’s duties at the University. Vanpool participants could make arrangements for a substitute employee passenger. The agreement contained no provisions concerning the situation where an employee was injured while riding as a vanpool passenger.

      . This tolling provision is analogous to our rule regarding service of process after a party files a petition. Iowa Rule of Civil Procedure 1.302(6) provides a party must serve original notice upon the defendant within ninety days after the petition was filed with the court. A delay of service of the original notice upon defendant of more than ninety days after filing the petition is presumptively abusive. Meier v. Senecaut, 641 N.W.2d 532, 542 (Iowa 2002). If abusive delay is established, the court applies a good cause standard to determine whether the delay was justified. Id.

      . It is not clear whether Thayer mailed or delivered the notice of appeal to opposing counsel on this date. If she mailed it, service was complete upon mailing. See Iowa R.App. P. 6.6(1) (appellant shall serve notice of appeal on each other party or the other party’s counsel in accordance with Iowa R. Civ. P. 1.442(2)); Iowa R. Civ. P. 1.442(2) ("Service by mail is complete upon mailing.”). If Thayer delivered the notice, service was complete upon "handing it to the attorney or to the other party; or leaving it at the attorney’s or other party’s office; or, if the office is closed or the person to be served has no office, leaving it at the attorney's or party’s dwelling house or usual place of abode with some person of suitable age and discretion residing therein.” Iowa R. Civ. P. 1.442(2).

      . Cases holding an injury arose out of and within the course of employment where an employee was injured in an accident while going to or coming from work in an employer-provided conveyance include: Peski v. Todd & Brown, Inc. 158 F.2d 59 (7th Cir. 1946); Smithey v. Hansberger, 189 Ariz. 103, 938 P.2d 498 (1996); Daniels v. Commercial Union Ins. Co., 5 Ark.App. 142, 633 S.W.2d 396 (1982); Securex, Inc. v. Couto, 627 So.2d 595 (Fla.Dist.Ct.App.1993); Adams v. United States Fidelity & Guar. Co., 125 Ga.App. 232, 186 S.E.2d 784 (1971); Hansen v. Estate of Harvey, 119 Idaho 333, 806 P.2d 426 (1991); Kindel v. Ferco Rental, Inc., 258 Kan. 272, 899 P.2d 1058 (1995); Receveur Constr. Co./ Realm, Inc. v. Rogers, 958 S.W.2d 18 (Ky. 1997); McBride v. R.F. Kazimour Transp., Inc., 583 So.2d 1146 (La.Ct.App.1991); Watson v. Grimm, 200 Md. 461, 90 A.2d 180 (1952); Lassabe v. Simmons Drilling, Inc., 228 Mont. 94, 743 P.2d 568 (1987); Schauder v. Pfeifer, 173 A.D.2d 598, 570 N.Y.S.2d 179 (N.Y.App.Div.1991); William F. Rittner Co. v. W.C.A.B. (Rittner), 76 Pa.Cmwlth. 596, 464 A.2d 675 (1983); Medlin v. Upstate Plaster Serv., 329 S.C. 92, 495 S.E.2d 447 (1998); Pickrel v. Martin Beach, Inc., 80 S.D. 376, 124 N.W.2d 182 (1963); Vaughan’s Landscaping & Maint. v. Dodson, 262 Va. 270, 546 S.E.2d 437 (2001); Doering v. Wisconsin Labor & Indus. Review Comm’n, 187 Wis.2d 472, 523 N.W.2d 142 (Wis.Ct.App.1994).

      . Thayer cites one case to support her assertion that payment of a fee is determinative of whether an employee is entitled to and limited by workers’ compensation benefits. See Hanis v. Jack O. Farrell, Inc., 31 N.C.App. 204, 229 S.E.2d 45 (1976). The facts oí Harris are easily distinguishable from those before us.
      In Harris the deceased employee was riding in a vehicle owned and controlled not by the employer but by another employee. Id. at 47. The employer subsidized in part the driver-employee’s vehicle, but did not give the driver money for his provision of transportation to any other employees. Id. at 46. The deceased employee paid the driver — not the employer — for the ride. Id. There was no understanding between the deceased employee and the employer regarding the provision of transportation. Id. at 46. Though the driver and the deceased employee had an agreement, it was not made within the scope of the driver’s employment. Id. The employer did not regularly furnish transportation to its employees. Id. Because the injury did not arise out of and in the course of employment, the court affirmed the denial of workers’ compensation benefits. Id. at 47.
      In contrast, in the case before us the University not only furnished the van to its employees as transportation, but also controlled all aspects of the vanpool program. The employer had an explicit agreement with its employees for the transportation. The employer, in part, subsidized the vanpool program for the benefit of all of its employees. Finally, the University provided transportation to people only because of their status as University employees, not because the passengers paid money for the ride. Because the facts of Harris are dissimilar from the case before us, the holding of Harris is not helpful to this case.


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    In the Interest of K.M., a Minor Child, R.M., Mother and R.M., Father, Appellants.
    No. 02-0319.
    Supreme Court of Iowa.
    Nov. 14, 2002.

      Kevin E. Schoeberl of Story, Schoeberl & Kowalke Law Firm, Cresco, for appellants.
    Thomas J. Miller, Attorney General and M. Elise Pippin, Assistant Attorney General, for appellee.
    Mark B. Anderson of Cresco, guardian ad litem for minor child.
   TERNUS, Justice.

The juvenile court terminated the parental rights of the biological parents of K.M. pursuant to Iowa Code section 232.116(1)</) and (i) (Supp.2001). The Iowa Court of Appeals affirmed the termination order, finding clear and convincing evidence that the requirements of section 232.116(l)(i) were met. The court of appeals also rejected the parents’ constitutional challenge to Iowa Code section 232.116(2). This court granted further review. Upon our examination and consideration of the record, we affirm. See generally In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (“We review termination proceedings de novo.”).

I. Statutory requirements for termination. Stated simply, the primary events leading to this proceeding were repeated incidents of sexual abuse over the past nine years committed against KM. by her brother, half-brother, and a non-relative. The juvenile court and the court of appeals, in its de novo review, found that the requirements for termination under section 232.116(1)(¿) were met. This statute allows termination upon the following findings:

(1) The child meets the definition of child in need of assistance based on a finding of physical or sexual abuse or neglect as a result of the acts or omissions of one or both parents.
(2) There is clear and convincing evidence that the abuse or neglect posed a significant risk to the life of the child or constituted imminent danger to the child.
(3) There is clear and convincing evidence that the offer or receipt of services would not correct the conditions which led to the abuse or neglect of the child within a reasonable period of time.

Iowa Code § 232.116(l)(i). The parents do not contest that the second element is met, but rather claim the first and third requirements were not established.

In support of their claim that termination under this statute is inappropriate, the parents point out there was no adjudication in the child-in-need-of-assistance (CINA) proceeding that K.M. had been sexually abused as a result of the acts or omissions of her parents. Although this contention is factually correct, it ignores the specific language of section 232.116(l)(-i )(1). Subparagraph (1) does not require an adjudication; it merely requires a finding that “the child meets the definition of a child in need of assistance based upon a finding of ... sexual abuse or neglect as a result of the acts or omissions of the ... parent[s].” Id. § 232.116(l)(i )(1) (emphasis added); cf. id. § 232.116(l)(d) (requiring previous “adjudication”). Without lengthening this opinion with a recitation of the details, we merely observe that the record is replete with evidence supporting the conclusion that K.M. meets this definition.

The parents also assert that the third element of paragraph (i) was not met. They rely on the testimony of a therapist that the parents have corrected the conditions leading to the sexual abuse of K.M. and are now capable of protecting her from sexual predators. Notwithstanding this testimony, there is abundant evidence that suggests the services given to the parents have not remedied the conditions leading to KM.’s sexual abuse. Although the parents have made some progress toward understanding and recognizing the nature of sexual abuse and sexual abusers, there are still serious concerns about the parents’ capacity for change and continuing motivation to change. In addition, the record shows they continue to allow other children in their custody to be in risky and unsafe situations. We have no confidence that the parents have progressed to the point that they are capable of protecting K.M. from further sexual assaults. Therefore, we find that the prerequisites for termination of parental rights under section 232.116(l)(i) have been satisfied.

II. Best interests of the child. The parents contend that even if the requirements of section 232.116(l)(i) are met, termination is not in K.M.’s best interests. See In re M.S., 519 N.W.2d 398, 400 (Iowa 1994) (“Even if the statutory requirements for termination are met, the decision to terminate must still be in the best interest of the children.”). In considering whether to terminate the rights of a parent under section 232.116, the court must “give primary consideration to the child’s safety, to the best placement for furthering the long-term nurturing and growth of the child, and to the physical, mental, and emotional condition and needs of the child.” Iowa Code § 232.116(2). In assessing these factors, we may look at the parents’ ability to provide for the child, the child’s integration into a foster family and the permanency of that situation, the length of time the child has lived in a stable and satisfactory environment and the desirability of maintaining that environment, the child’s reasonable preference, and the foster parents’ relevant testimony. Id. The court need not terminate parental rights if “[t]he child is over ten years of age and objects to the termination.” Id. § 232.116(3)(6 ). Termination may also be rejected upon “clear and convincing evidence that the termination would be detrimental to the child at the time due to the closeness of the parent-child relationship.” Id. § 232.116(3)(c).

While K.M. is bonded to her parents, we are convinced her best interests require termination of her parents’ parental rights. K.M. has been returned to her parents in the past only to be subjected to additional sexual abuse. Even though she has become more assertive, she continues to remain at risk of being revictimized if returned to her parents’ care. As the juvenile court found, K.M. sees herself as caught in a “revolving door.” She has now been in the same supportive foster home for a total of twenty-seven months, and during this time her hygiene, trustfulness, and academic performance have improved. The stability provided by this environment, as compared to her parents’ nomadic lifestyle, is particularly important given her need for special education services. Importantly, her foster parents are able and willing to provide her with a permanent home and the support she needs. Although there was testimony that K.M. had at times expressed a desire to be reunited with her parents, there was also testimony that she had conflicting feelings about returning to their care. Noting that K.M. had never been directly asked her preference, the juvenile court wisely observed that she should not “be required to make a decision to choose between her biological parents and her potential adoptive parents.”

We think it is in K.M.’s best interest to stop the “revolving door” that has characterized her life thus far; she deserves a safe and permanent home, one that can be achieved with any degree of certainty only if her parents’ rights are terminated. Therefore, we conclude that any detriment K.M. will suffer as a result of the severance of the parental bonds is more than outweighed by the benefits that will accrue from her placement in a safe, stable, and supportive environment.

III. Constitutionality of section 232.116(2). The parents maintain that a recent amendment to section 232.116(2) violates their substantive and procedural due process rights. See generally 1998 Iowa Acts ch. 1190, § 23 (amending section 232.116(2)). That provision, with the new language emphasized, now states in pertinent part:

In considering whether to terminate the rights of a parent under this section, the court shall give primary consideration to the child’s safety, to the best 'placement for furthering the long-term nurturing and growth of the child, and to the physical, mental, and emotional condition and needs of the child ....

Iowa Code § 232.116(2) (emphasis added). The parents argue that the amendment “shiftfe] the balance to the best interest of the child and recognizes that the child’s right to appropriate custodial care is superior to any constitutionally protected bond of the biological parent,” thereby violating the Due Process Clause of the Fourteenth Amendment. See U.S. Const, amend. XIV (stating that no State shall “deprive any person of life, liberty, or property without due process of law”).

A. Procedural dm process. “A person is entitled to procedural due process when state action threatens to deprive the person of a protected liberty or property interest.” Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 690 (Iowa 2002). A termination-of-parental-rights proceeding such as the one before us affects a parent’s fundamental “liberty interest in the care, custody and control of her child.” In re C.M., 652 N.W.2d 204, 211 (Iowa 2002). Thus, the parents in this case are clearly entitled to procedural due process: notice and a meaningful opportunity to be heard. See In re 516 N.W.2d 867, 870 (Iowa 1994) (recognizing parents’ procedural due process rights in termination and CINA proceedings).

We think the parents’ claim of a procedural due process violation based on the amendment to section 232.116(2) must fail, as there is no showing that this amendment infringes upon their notice of the proceedings or their opportunity to be heard. . The allegation that the statute places the child’s interests above the fundamental rights of the parents simply does not implicate procedural due process.

B. Substantive due process. “Substantive due process ‘forbids the government [from infringing] certain “fundamental” liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’ ” Bowers, 638 N.W.2d at 694 (citation omitted). .As we have already stated, the parents’ fundamental liberty interest in the care, custody and control of their children is affected in termination cases. See In re C.M., 652 N.W.2d at 211.

Notwithstanding the admitted infringement of a fundamental right, a conclusion that there is a substantive due process violation is not automatic. That is because the Due Process Clause does not protect individuals from all governmental actions that infringe their liberty interests. Blumenthal Inv. Trusts v. City of West Des Moines, 636 N.W.2d 255, 265 (Iowa 2001). “ ‘Rather, substantive due process is reserved for the most egregious governmental ... abuses that “shock the conscience or otherwise offend ... judicial notions of fairness ... [and that are] offensive to human dignity.” ’ ” Id. (citation omitted). Thus, the question in the present case is whether the infringement of the parents’ fundamental rights is narrowly tailored to serve a compelling state interest or whether the infringement shocks the conscience or otherwise offends judicial concepts of fairness and human dignity.

Normally, there is no justification for the State’s interference in the private relations of a family or for the State’s examination of the judgment of parents in making decisions concerning the well being of their children. Troxel v. Granville, 530 U.S. 57, 68-69, 120 S.Ct. 2054, 2061, 147 L.Ed.2d 49, 58 (2000). That is because “a parent’s desire for and right to ‘the companionship, care, custody and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’ ” Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 2159-60, 68 L.Ed.2d 640, 649-50 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558 (1972)). Thus, “the Due Process Clause would be offended ‘[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.’ ” Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 555, 54 L.Ed.2d 511, 520 (1978) (citation omitted).

It follows then that although “there exists a parental interest in the integrity of the family unit[,] ... this interest is not absolute, but rather may be forfeited by certain parental conduct.” In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). Accordingly, when parents abdicate their responsibility to properly care for their children, the State has an obligation to intercede and provide the necessary care. In re A.C., 415 N.W.2d 609, 613 (Iowa 1987); In re Dameron, 306 N.W.2d at 745. This court has held that the State’s interest in providing a permanent home to children in these situations and protecting them from harm are compelling governmental interests. In re C.M., 652 N.W.2d at 211 (providing permanent home); In re D.J.R., 454 N.W.2d 838, 845 (Iowa 1990) (protecting from harm). Thus, so long as one of the “statutory grounds for termination ... [is] established by clear and convincing evidence, substantive due process is not offended by termination of the parent’s parental rights.” In re D.J.R., 454 N.W.2d at 845.

We now turn to a consideration of the challenged amendment. In recent years the focus in termination cases has shifted somewhat from reunification of the family to the child’s best interests. As this court has recently noted,

the family preservation concept which guided our general national policy for the last two decades was found to be detrimental to children in some cases. Consequently, the Adoption and Safe Families Act of 1997, Public Law 105-89, 111 Statutes 2115 (codified as amended in scattered sections of 42 U.S.C.), now broadens the focus of reunification to place greater emphasis on the health and safety of the child, and mandates a permanent home for a child as early as possible.

In re C.B., 611 N.W.2d at 493. This broadened focus resulted in the challenged amendment that gives “primary consideration” not only to the “physical, mental, and emotional condition and needs of the child,” but also to “the child’s safety” and “to the best placement for furthering the long-term nurturing and growth of the child.” Iowa Code § 232.116(2).

We do not think these added considerations shock the conscience or offend judicial notions of fairness or human dignity. First of all, the amendment did not alter the underlying requirement that there must be clear and convincing evidence of unfitness under one of the enumerated statutory provisions before parental rights can be terminated. In addition, the amendment did not change the role of a child’s best interests in the termination decision. They are now and have long been of paramount importance in such matters. See In re C.B., 611 N.W.2d at 492; In re Morrison Children, 259 Iowa 301, 311, 144 N.W.2d 97, 103 (1966) (“It is well established in matters of this kind that the primary consideration is the welfare and best interest of the child.”). Rather, the amendment simply articulated the concerns that clearly impact a child’s best interests: the child’s safety and need for a permanent home. See, e.g., In re L.L., 459 N.W.2d 489, 493 (Iowa 1990) (stating that in deciding child’s best interests, court looks “to the child’s long-range as well as immediate interests”).

Focusing on the best interests of the child once the statutory prerequisites for termination are met is not conscience shocking, nor is it an affront to the personal dignity of the parents. Moreover, the amendment is narrowly tailored to achieve the State’s compelling interests in identifying parents who pose a risk to the safety and well being of their children and providing such children with the nurturing care and treatment they have a right to expect. We find no substantive due process violation.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.


author: CARTER, Justice. LARSON, Justice

text:
    Estate of Ryan R. BALLARD by Colleen A. Dorrian, Administrator, and Colleen A. Dorrian, Individually, Appellants, v. HAZEL’S BLUE SKY and Hazel Jones, Individually, Appellees.
    No. 01-1516.
    Supreme Court of Iowa.
    Nov. 14, 2002.
    Bruce H. Stoltze of Brick, Gentry, Bowers, Swartz, Stoltze, Schuling & Levis, P.C., Des Moines, and Ward A. Rouse of Berg, Rouse, Spaulding & Schmidt, L.L.C., Des Moines, for appellants.
    Thomas Henderson, John F. Fatino, and Drew Gentsch of Whitfield & Eddy, P.L.C., Des Moines, for appellees.
   CARTER, Justice.

Colleen Dorrian, as parent and personal representative of decedent Ryan Ballard, appeals from an adverse summary judgment in an action seeking wrongful-death and loss-of-consortium damages from a liquor licensee doing business as Hazel’s Blue Sky Diner (Hazel’s). Ballard was killed when, after having been served alcoholic beverages at Hazel’s, he drove the truck he was operating into a utility pole. As his personal representative, Dorrian asserts on appeal that Ballard had a common-law claim that survives his death based on Hazel’s sale of an alcoholic beverage to an underage consumer. As a parent she asserts that she has a loss-of-consortium claim against Hazel’s under Iowa Rule of Civil Procedure 1.206 (formerly Iowa v Rule of Civil Procedure 8). We disagree with both contentions and affirm the district court.

Prior to May 7, 1998, Dorrian, who was Ballard’s mother, became aware that Hazel’s was regularly serving him alcoholic beverages, often to the point of intoxication. As a result of this knowledge, she demanded of Hazel Jones that this practice cease. On May 7, 1998, Ballard, then nineteen years of age, went to Hazel’s after getting off work. He was served and consumed a sufficient number of alcoholic drinks to become intoxicated. He left the premises and got into his truck to drive home. While driving home he lost control of the truck, went off the roadway, and collided with a utility pole. He died from massive head injuries sustained in the collision.

Hazel’s filed a motion for summary judgment, contending that Iowa law does not provide a cause of action for wrongful death under the facts presented in the present controversy. It also asserted that Dorrian was not entitled to a loss-of-consortium claim under rule 1.206. The district court granted the motion and dismissed the action as to both of the named defendants.

I. Scope of Review.

The scope of review on an appeal from the granting of summary judgment is for correction of errors at law. Garofalo v. Lambda Chi Alpha Fraternity, 616 N.W.2d 647, 650 (Iowa 2000); Sankey v. Richenberger, 456 N.W.2d 206, 207 (Iowa 1990). Summary judgment is only proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3). The court views the undisputed facts in the light most favorable to the resisting party. Garofalo, 616 N.W.2d at 649; Hildenbrand v. Cox, 369 N.W.2d 411, 413 (Iowa 1985).

II. Whether Ballard had a Common Law Cause of Action Against Hazel’s Which Survived His Death.

Plaintiff urges that the district court erred in concluding that Iowa Code section 123.92, which is part of this state’s dramshop legislation, preempts common-law claims against a liquor licensee that has sold and served alcoholic beverages to a person not of the legal age to purchase same. That claim is directly contrary to this court’s holding in Nutting v. Zieser, 482 N.W.2d 424 (Iowa 1992).

The Nutting case also involved the sale to and consumption by a nineteen-year-old consumer on the premises of a liquor licensee. Like the decedent in the present case, the underage consumer of alcohol in Nutting caused serious injuries to himself. Based on our prior decisions in Fuhrman v. Total Petroleum, Inc., 398 N.W.2d 807 (Iowa 1987), and Connolly v. Conlan, 371 N.W.2d 832 (Iowa 1985), we held that Iowa Code section 123.92 preempted the field of liquor licensee liability. Nutting, 482 N.W.2d at 425.

The personal representative argues that our decision in Garofalo has broken new ground with respect to the recognition of common-law causes of action against persons who furnish alcoholic beverages to individuals below the legal age for their consumption. Actually, Garofalo breaks no new ground in that respect. It only recognized that, in actions against social hosts or other persons who are not liquor licensees, section 123.92 does not preempt common-law claims. Garofalo, 616 N.W.2d at 653. That proposition was first recognized in Blesz v. Weisbrod, 424 N.W.2d 451, 452 (Iowa 1988), decided prior to the Nutting case. It was reaffirmed in Sage v. Johnson, 437 N.W.2d 582, 584-85 (Iowa 1989), also decided prior to Nutting. The plaintiff in Nutting sought to draw the same comfort from Blesz that Dorrian now seeks to draw from Garofalo. Nutting held, however, that, notwithstanding the recognition of common-law claims against social hosts and other nonlicensees, such claims are not cognizable against liquor licensees because the area of licensee liability is preempted by section 123.92. Nutting, 482 N.W.2d at 426. That holding controls the result in the present case.

Dorrian urges that under the interpretation of section 123.92 applied in Nutting, the statute denies her equal protection of the law in violation of both state and federal constitutions. A similar contention was made and rejected in Fuhrman, 398 N.W.2d at 810. We continue to adhere to the view expressed in that case that the legislature can limit recovery for alcohol-related claims against liquor licensees to a specified list of claimants. The district court did not err in granting summary judgment with respect to Dorrian’s wrongful-death action.

III. The Rule 1.206 Claim.

Our cases have consistently held that the age of majority for purposes of determining a right to recover for loss of services, companionship, and society under rule 1.206 is eighteen. Counts v. Hospitality Employees, Inc., 518 N.W.2d 358, 361 (Iowa 1994); Miller v. Wellman Dynamics Corp., 419 N.W.2d 380, 383 (Iowa 1988) (citing Iowa Code § 599.1). Dorrian’s son, Ballard, was nineteen years of age at the time of the tragedy that took his life. Consequently, no claim is available to her under rule 1.206. She suggests that the age of majority should be otherwise in the present case because Ballard was disabled. We can discern no principled reason for allowing a parent to recover for loss of services, companionship, and society from a disabled adult child when they are not entitled to recover for such loss from a able-bodied adult child. The district court properly granted summary judgment on Dorrian’s rule 1.206 claim.

We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

All justices concur except LARSON, J., and LAVORATO, C J., and STREIT, J., who dissent.

LARSON, Justice

(dissenting).

I dissent from the majority’s conclusion that Iowa’s dramshop law preempts all common-law claims, even those that arise outside the narrow scope of the act. Unfortunately, the scope of the statute has been dramatically restricted in recent years, thus expanding the cases in which there is no liability for a provider of alcohol. Those sellers whose acts fall outside the dramshop statute may provide alcohol with absolute impunity. This case is a good example of the socially unacceptable fallout from a legal system that ignores the dual reality of what is happening: (1) victims are denied any compensation, and (2) there is no effective deterrent under the facts of this case to persons providing alcohol illegally or negligently.

It should come as no surprise that potential civil liability is an effective deterrent to the negligent furnishing of alcohol. The New Hope of Solution, Presidential Comm’n on Drunk Driving, at 1-2 (Final Report 1984) [hereinafter Presidential Commission Final Report]. Alcohol-impaired driving is the number one killer of young people in this country. Presidential Comm’n Final Report at 1-2.

As I have observed before,

[t]he wisdom of legislation, or the lack of it, is not for us to decide. The parameters of the common law, however, are very much the responsibility of the court, and we have a constitutional mandate to “issue all writs and process necessary to secure justice” for Iowa’s litigants. Iowa Const, art. V, § 4. The majority opinion abdicates our common-law responsibilities to the legislature and sacrifices justice in the name of judicial consistency.

Eddy v. Casey’s Gen. Store, Inc., 485 N.W.2d 633, 638 (Iowa 1992) (Larson, J., dissenting). There is nothing in the dram-shop statute that expressly preempts the field. Moreover, it is ludicrous to hold that the dramshop statute preempts the field even though the statute does not apply-

The “preemption” argument is a specious argument. [The dramshop statute] is purely a strict liability statute; it has nothing to do with actions based on negligence. It makes no more sense to say, as the majority does, that a strict liability statute “preempts” a suit based on negligent furnishing of alcohol than it does to say that adoption of strict liability under section 496A of the Restatement (Second) of Torts preempts a products liability claim based on negligence. This, of course, has never been our rule. Dramshop statutes such as Iowa Code section 123.92 and common-law suits are entirely separate concepts. The former imposes strict liability without proof of negligence or proximate case, while the latter requires proof of both.

Eddy, 485 N.W.2d at 639 (Larson, J., dissenting).

There are many other reasons for recognizing a common-law cause of action, and I have discussed them at length in Eddy. I incorporate them here as well.

I would reverse.

LAVORATO, C.J., and STREIT, J., join this dissent.

      . The action was brought against both Hazel’s Blue Sky and Hazel Jones. The petition alleges that Hazel Jones is the owner of Hazel's Blue Sky and a director, officer, and employee thereof. The district court granted summary judgment as to both defendants based on a liquor licensee status. The allegations of the petition might suggest that Hazel’s Blue Sky was a licensee and Hazel Jones was an employee of the licensee. However, we do not consider any claim against Hazel Jones, individually, as a nonlicensee because that theory has not been asserted on appeal. Throughout our opinion, we will refer to the licensee entity or entities as Hazel's.

      . See Eddy v. Casey's Gen. Store, Inc., 485 N.W.2d 633, 638 (Iowa 1992) (Larson, J., dissenting).


author: MAHAN, J.

text:
    In re the DETENTION OF Daniel HOLTZ. STATE of Iowa, Petitioner-Appellee, v. Daniel HOLTZ, Respondent-Appellant.
    No. 01-0243.
    Court of Appeals of Iowa.
    Sept. 25, 2002.

      Robert L. Rausch of Rausch Law Firm, Waterloo, and James M. Metcalf, Waterloo, for appellant.
    Thomas J. Miller, Attorney General, Scott D. Brown, Andrew B. Prosser, and Roxann M. Ryan, Assistant Attorneys General, for appellee.
   MAHAN, J.

Daniel Holtz appeals from the judgment of commitment entered upon a jury’s finding that he is a sexually violent predator under the Sexually Violent Predators Act, Iowa Code chapter 229A (1999). The unique issues raised by Holtz on this appeal concern the admissibility of actuarial risk assessment instruments in predicting a sex offender’s risk of re-offense. Specifically, he argues the district court erred (1) by admitting the expert testimony relating to the actuarial risk assessment instruments and (2) by denying his motion for judgment notwithstanding the verdict given the unreliability of such expert testimony. We affirm.

Background Facts and Proceedings.

On December 30, 1998, the State filed a petition to commit Holtz as a sexually violent predator. At the time of the petition, Holtz was in the custody of the department of corrections, with a scheduled release date of January 23, 1999. The petition alleged that Holtz had prior convictions of qualifying sexually violent offenses as defined by Iowa Code section 229A.2(7)(a). The petition also alleged Holtz suffered from mental abnormalities, which made him more likely to commit sexually violent offenses in the future. The district court held a probable cause hearing on January 26, 1999, and concluded there was probable cause to believe Holtz was likely to engage in sexually violent predatory criminal behavior upon his release. The district court ordered Holtz to be evaluated to determine whether he was a sexually violent predator.

Prior to trial, Holtz filed a -motion in limine requesting the results from the actuarial risk assessment instruments, to be relied upon by the State’s expert, be excluded given the instruments are unreliable, their predictive accuracy has not been tested, and they are untrustworthy. The district court denied the motion. At trial, the critical issue was whether Holtz was more likely than not to engage in acts of sexual violence in the future. On December 4, 2000, the jury returned a verdict finding Holtz a sexually violent predator as defined by section 229A.2(8). On the same day, the district court ordered Holtz to be committed to the custody of the department of human services “for control, care and treatment until such time as his mental abnormality has so changed that he is safe to be at large.” On December 8, 2000, Holtz filed a motion for new trial, motion for judgment notwithstanding the verdict, and application for alternative treatment. Following a hearing, the district court denied these motions. Holtz appeals.

Admissibility of Actuarial Risk Assessment Instruments.

Iowa Rule of Evidence 5.702 provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Iowa R. Evid. 5.702.

We review for abuse of discretion. State v. Rodriquez, 686 N.W.2d 234, 245 (Iowa 2001). The decision of a trial court concerning the admissibility of evidence will only be overturned upon a showing that discretion was exercised “on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” Id.

In addition, we ordinarily will not reverse a district court’s decision concerning the admission of evidence absent an abuse of discretion to the prejudice of the complaining party. Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 531 (Iowa 1999). “Only in a clear case of abuse will the admission of such evidence be found to be prejudicial.” State v. Atwood, 602 N.W.2d 775, 783 (Iowa 1999), cert. denied, 529 U.S. 1091, 120 S.Ct. 1729, 146 L.Ed.2d 649 (2000). Rule 5.702 and our case law make it clear that “we are committed to a liberal view on the admissibility of expert testimony, and we have been quite deferential to the district court in the exercise of its discretion in that area.” Mensink v. Am. Grain, 564 N.W.2d 376, 380 (Iowa 1997).

Our supreme court has set forth several rules governing the admissibility of expert testimony. The court has stated:

We have laid down several principles governing the admissibility of expert testimony. First, the testimony must aid the jury in resolving a disputed issue. Second, the testimony must be reliable. This requirement necessarily follows from the first because unreliable testimony cannot assist a trier of fact. Third, the amount of foundation necessary to establish reliability depends on the complexity of the testimony and the likely impact of the testimony on the fact-finding process.... Last, there is no requirement that the expert be able to express an opinion with absolute certainty.

Johnson v. Knoxville Cmty. Sch. Dist., 570 N.W.2d 633, 637 (Iowa 1997) (citations omitted).

Thus, a threshold requirement for the admissibility of expert testimony is that the testimony must aid the trier of fact to resolve a disputed issue. Williams v. Hedican, 561 N.W.2d 817, 823 (Iowa 1997). If such testimony is to aid the trier of fact, it must be reliable. Id. The proponent of the expert testimony bears the burden of showing that it will aid the trier of fact. State v. Rains, 574 N.W.2d 904, 916 (Iowa 1998). In certain cases evidence might be so novel or complex that the court will require proof of acceptance of the theory or technique in the scientific community before the evidence is admissible. Mercer v. Pittway Corp., 616 N.W.2d 602, 628 (Iowa 2000).

The supreme court has further concluded that trial courts are not required to apply the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), in considering the admission of expert testimony. Leaf, 590 N.W.2d at 533. However, the court stated “trial courts may find it helpful in complex cases to use one or more of the relevant Daubert ‘considerations’ in assessing the reliability of expert testimony.” Id. Therefore, trial courts may, in their discretion, consider the following factors if deemed helpful in a particular case:

(1)whether the theory or technique is scientific knowledge that can and has been tested, (2) whether the theory or technique has been subjected to peer review or publication, (3) the known or potential rate of error, or (4) whether it is generally accepted within the relevant scientific community.

Id. However, if “a trial court considers these factors, the court should focus solely on the principles and methodology, not on the conclusions that they generate.” Id.

In making an admissibility analysis, the court has indicated that the determination should be on a case-by-case basis:

Determinations of admissibility of such evidence must necessarily be made on an ad hoc basis, ... and it would be impossible to establish rules binding in every case. Obviously the complexity of the subject matter will influence the foundational showing of reliability. For example, the foundation for neutron activation analysis ... or polygraph evidence ... would require greater input from the scientific community than, for example, blow-ups of handwriting exemplars, ballistic comparisons, or tire tracks.

State v. Hall, 297 N.W.2d 80, 85 (Iowa 1980) (citations omitted). In addition:

In the present age of exploding technical and scientific developments and claims of “junk science,” other “expertise” might be proffered that will, like polygraph evidence, have the potential to achieve an exaggerated impact on the fact-finding process.

Leaf, 590 N.W.2d at 534 (citations omitted).

The supreme court has stated the proper test for admission of expert testimony pursuant to Iowa Rule of Evidence 5.702 is as follows:

To be admissible in an Iowa court the evidence, of course, must be relevant. Second, it must be evidence in the form of “scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue.” Third, the witness must be “qualified as an expert by knowledge, skill, experience, training, or education.” In addition, any potential for an exaggerated effect of the proffered evidence should be considered.

Id. at 533 (citations omitted). With these principles in mind, we turn to the contentions before us.

Appellate counsel agree that the critical issue before the jury was Holtz’s likelihood to engage in future predatory acts constituting sexually violent offenses, if not confined in a secure facility. Iowa Code § 229A.2(8) (1999). The State’s only witness on this issue was Dr. Catón Roberts, who utilized the following actuarial risk assessment instruments in evaluating Holtz:

(1) Rapid Risk Assessment for Sex Offender Recidivism (RRASOR),
(2) Static-99,
(3) Minnesota Sex Offender Screening Tools (MnSOST), and
(4) Minnesota Sex Offender Screening Tools — Revised (MnSOST-R).

Holtz objected to the admissibility of the results from these measurement ■ instru-merits, which the court overruled. Relying in part on these four measurement instruments, Dr. Roberts concluded, to a reasonable degree of medical certainty, that Holtz was more likely than not to engage in such acts if not confined in a secure facility.

During his testimony, Dr. Roberts acknowledged that these actuarial instruments have only been in existence for two to three years and that there are limitations to these instruments. However, it is clear Dr. Roberts’s conclusion was also based on a full clinical evaluation and not just the result of the actuarial risk assessment testing. He testified his initial step in evaluating Holtz was a thorough review of a comprehensive file of materials and documents relating to his past criminal history. This review allowed him to reach a preliminary opinion on the relevant issues. However, this process was then followed by a clinical interview with Holtz. As a result of this interview and personality testing, he came to the conclusion, based upon a reasonable degree of medical certainty, that Holtz suffered from a mental abnormality. Dr. Roberts then conducted the actuarial risk assessment tests and, based upon a complete clinical evaluation, concluded Holtz was more likely than not to engage in such acts if not confined in a secure facility. When specifically questioned concerning the reliability of the actuarial risk assessment instruments, he testified:

But I know that [Dr. Gratzer] was concerned about the — the juries and judges and courts being led to think that these things are the be-all and the end-all of prediction, quote/unquote, and that — and that the information about some of their limitations might not come out fully. He was arguing that — that competent examiners ought to inform people that there are limitations to these instruments. I certainly feel that there are limitations to these instruments, and yet they are better than their alternative, which is nothing.

In response to Dr. Roberts’s testimony, Holtz called two expert witnesses, Dr. Thomas G. Gratzer and Dr. Stephen D. Hart. On the issue of the actuarial risk assessment instruments utilized by Dr. Roberts, Dr. Gratzer testified to several limitations of these instruments. However, he did testify that he approved of the use of these instruments as long as they were not the sole basis for the expert assessment. In addition, Dr. Gratzer has himself relied upon the results of these tests and has concluded the tests could be used as part of an overall clinical evaluation. He did add a provision that one should be mindful that the tests have “not been scientifically established to be reliable.”

Dr. Hart also reviewed the actuarial risk assessment instruments used by Dr. Roberts and concluded the measurement instruments have many significant limitations. The following colloquy occurred during direct examination:

Q. Is it acceptable to perform the tests that he used?
A. Certainly. When we develop novel procedures, and this happens all the time when we’re engaging in professional practice, people develop new procedures, and then they want to see, how could I use this thing effectively? Well, you could certainly use an actuarial scale as a way of trying to determine the presence of various kinds of risk factors. Risk factors, just something that we think is a bad sign for the future. And so if you wanted to use an actuarial instrument to say, well, this fellow has several bad risk factors, then several bad signs, that’s a legitimate use, and that would be supported in the scientific literature because we know that the content of most of these actuarial scales is very consistent with the general scientific literature on sex offenders going back a hundred years.
What’s not accepted at this point in time is adding up those numbers to get some kind of a — a score that you can then change into a prediction of the future. That’s where the science doesn’t support things. So having a list of bad signs, that’s perfectly acceptable. Changing them into a number to predict the future, there’s no basis for that. And if one wants to use the tests, one has to acknowledge that there is no foundation for that.
Q. If the tests are used to make predictions, is it acceptable to use them to look at them in combination with some other clinical observations?
A. Yes. This is, in fact, standard practice in various health care professions including psychology and general medicine. This is sometimes called structured professional judgment or guided or empirically based risk assessments where what we say is we have a list of factors that we always want to consider when we make a decision, so we always want to consider these factors. And then we want to consider any other relevant factor. Relevant, we mean specific to this case but not included in the general list.

Dr. Hart did, therefore, acknowledge it is acceptable to use the actuarial instruments as a way of trying to determine the presence of various kinds of risk factors.

In addition, in ruling upon respondent’s renewed motion for directed verdict, the district court stated as follows:

We’ve made previous record on the admissibility of those tests, and I respond the way I’ve responded previously and emphasize again that it is- — it is clear that those measurement tools or tests are relatively new. However, it was clear to me, after hearing Dr. Roberts testify previously about them at probable cause hearings and other hearings that we’ve had in this case and other cases, that he does not represent them to be an end-all as to his conclusions and that he relies on them to corroborate as a check and balance, a starting point, all of those things apply. And, really, all of the expert witnesses in that field who testify, testify similarly. They all indicate that those tests can be used, that they are used and they all indicate that they’re — they’re not the end-all to your evaluation.
I agree that it’s very important that once those measuring tools are discussed and introduced into a case that full and complete cross-examination and disclosure about limitations of those tests be disclosed to the jury. That happened here. It was very clearly explained to the jury that the inquiry needs to go farther than simply a reliance on those measuring tools. Dr. Roberts acknowledged that. Dr. Grat-zer talked about that, and Dr. Hart also talked about that. This jury, I’m very confident, is not going to be left with a mistaken assumption that that’s what they need to look at and that’s all they need to look at. The tests do contain many factors that experts in that field rely on in order to make risk assessments as to recidivism. Respondent’s experts testified about that as well as petitioner’s expert, Dr. Roberts, testified about that.
I understand that there has been a dispute throughout regarding their admissibility. It’s been my impression, knowing how they are used and knowing how the -experts used them in the course of their evaluation in this type of case, that it went to the weight to be given to the measuring devices and not the admissibility of those. I was quite confident that the measuring tools would not be misrepresented to the jury because I was familiar with those and their treatment of those with the experts. And at the conclusion of the evidence I feel the same way. I know that they were not misrepresented. I know that this jury does not have some distorted view as to the accuracy and reliability of those. And perhaps largely as a result of — of very keen cross-examination and a thorough defense put forth by the respondent, it is clear that they — the jury knows the limitations of their use and reliance on those measuring devices. It goes to weight rather than admissibility.

The instant case presents the first appellate challenge in Iowa to the admissibility of expert testimony regarding actuarial risk assessment instruments. There have been, however, judicial pronouncements on this issue in other jurisdictions. Our review of those decisions leads us to agree with the recent conclusion of the New Jersey Superior Court that “[o]ur research has revealed no state appellate court decision which has found actuarial instruments inadmissible at SVP proceedings.” In re Commitment of R.S., 339 N.J.Super. 507, 773 A.2d 72, 96 (App.Div.2001).

Following a careful review of the record, we conclude the district court ably summed up the issues and was correct in determining the evidence concerning actuarial risk assessment instruments went to the weight the evidence should receive as opposed to the issue of admissibility. The district court did not abuse its discretion in admitting this evidence. By this ruling, we are not concluding that actuarial risk assessment instruments are reliable per se or have our approval when used alone and not in conjunction with a full clinical evaluation. We note this was not the situation or issue presented in the instant case. The instruments were used in conjunction with a full clinical evaluation and their limitations were clearly made known to the jury.

Judgment Notwithstanding the Verdict.

A district court’s denial of a motion for judgment notwithstanding the verdict is reviewed for correction of errors at law. Iowa R.App. P. 6.4; Gibson v. ITT Hartford, 621 N.W.2d 388, 391 (Iowa 2001); Balmer v. Hawkeye Steel, 604 N.W.2d 639, 640 (Iowa 2000). The motion should be denied if the evidence is substantial. Revere Transducers, Inc. v. Deere & Co., 595 N.W.2d 751, 759 (Iowa 1999). “Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion.” Johnson v. Dodgen, 451 N.W.2d 168, 171 (Iowa 1990). In addition, we view the evidence in the light most favorable to the party against whom the motion was directed. Faught v. Budlong, 540 N.W.2d 33, 35 (Iowa 1995).

We conclude that the district court acted properly in denying Holtz’s motion for judgment notwithstanding the verdict.

AFFIRMED.

      . In 1995 Holtz was convicted of four counts of indecent exposure. Previously, Holtz was convicted of indecent exposure in 1976 and 1978 and third-degree sexual abuse in 1988.

        . Formerly Iowa Rule of Evidence 702.

      . Specifically, Dr. Roberts came to the conclusion that Holtz met the DSM-IV criteria for six diagnostic categories. There was little disagreement among the experts concerning this diagnosis.

      . Gratner summed up his testimony as follows:
      I believe that when you have tests that have not been scientifically established, you can look at them, you can consider them, but to blindly rely upon them would — would do an injustice.

      . See, e.g., People v. Ward, 71 Cal.App.4th 368, 83 Cal.Rptr.2d 828, 832 (1999) ("In civil commitment cases where the trier of fact is required by statute to determine whether a person is dangerous or likely to' be dangerous, expert prediction may be the only evidence available."); People v. Poe, 74 Cal.App.4th 826, 88 Cal.Rptr.2d 437, 440 (1999) (use of RRASOR upheld); Garcetti v. Superior Court, 102 Cal.Rptr.2d 214, 241 (2000) (use of PCL-R, RRASOR and Static 99 upheld); In re Detention of Walker, 314 Ill.App.3d 282, 247 Ill.Dec. 221, 731 N.E.2d 994, 998 (2000) (use of RRASOR upheld); In re Detention of Strauss, 106 Wash.App. 1, 20 P.3d 1022, 1024 (2001) (use of MnSOST, RRASOR and VRAG upheld); In re Detention of Campbell, 139 Wash.2d 341, 986 P.2d 771, 779 (1999) (reliance on actuarial and clinical assessment proper and weight to be given evidence is question for the jury). See also State, ex rel. Romley v. Fields, 201 Ariz. 321, 35 P.3d 82, 89 (2001) ("use of actuarial models by mental health experts to help predict person's likelihood of recidivism is not the kind of novel scientific evidence or process to which Frye applies”); Commonwealth v. Reese, 2001 WL 359954 at *9 (Mass.Super. April 5, 2001) (“statistics, in general, are better predictors of future sexual dangerousness than clinical judgments”).


author: Sam Hanson Sam Hanson Associate Justice

text:
    Michael T. HEIDTKE, Relator, v. ZIMMERMAN SEED, Uninsured, Respondent, and Special Compensation Fund, and MN Department of Labor & Industry/VRU, Dr. Howard Abens, MN Department of Human Services, Intervenors.
    No. C5-02-1380.
    Supreme Court of Minnesota.
    Nov. 19, 2002.
    David R. Vail,-Soderberg & Vail, LLC, Minneapolis, for Michael Heidtke.
    Janine Andreasen, Charles H. Thomas, Mankato, for Zimmerman Seed, Uninsured.
    Mike Hatch, Atty! Gen., for Special Compensation Fund.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed July 15, 2002, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

BY THE COURT

Sam Hanson Sam Hanson Associate Justice


author: G. BARRY ANDERSON, Judge.

text:
    BILLY GRAHAM EVANGELISTIC ASSOCIATION, Relator, v. CITY OF MINNEAPOLIS, Respondent.
    No. C1-01-2127.
    Court of Appeals of Minnesota.
    Oct. 8, 2002.

      Richard D. Snyder, Fredrikson & Byron, P.A., Minneapolis, MN, for relator.
    Jay M. Heffern, Minneapolis City Attorney, Carol Lansing, Assistant City Attorney, Timothy S. Skarda, Assistant City Attorney, Minneapolis, MN, for respondent.
    Considered and decided by G. BARRY ANDERSON, Presiding Judge, HALBROOKS, Judge, and PARKER, Judge.

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

   OPINION

G. BARRY ANDERSON, Judge.

Relator Billy Graham Evangelistic Association owns several properties in the Harmon Place area of Minneapolis. The Minneapolis Heritage Preservation Commission recommended, and the Minneapolis City Council approved, a historic district that includes a number of realtor’s properties. By writ of certiorari, relator challenges the city’s designation. Because we conclude the city’s designation of the Harmon Place Historic District was arbitrary and capricious, we reverse.

FACTS

In November 2001, the Heritage Preservation Commission (commission) of the City of Minneapolis (city) directed the city’s planning department to begin a study to determine whether the Harmon Place area of the city should be designated as a historic district. The planning department hired Carol Zellie of Landscape Research to prepare a designation study. (Zellie Report).

The Zellie Report found that the Harmon Place area met the designation criteria in the Minneapolis code of ordinances and proposed a Harmon Place Historic District (HPHD). The Zellie Report concluded that the HPHD would meet two separate criteria for designation as a historic district. First, the report stated that HPHD would qualify for designation as a historic district because, [t]he property is associated with significant events or with periods that exemplify broad patterns of cultural, political, economic or social history. The report concluded that,

Harmon Place and the adjacent blocks of Hennepin Avenue were the heart of the Minneapolis automotive district for over fifty years, and twenty-two of the twenty-six contributing properties are auto-related. The buildings along Harmon Place and Hennepin Avenue include many of the city’s best remaining examples of a vital industry that engaged thousands of entrepreneurs, workers and customers. The twenty-two contributing buildings, most with good exterior integrity, reflect the roller-coaster progress of the early automotive industry and the twentieth-century economy as both evolved at the edge of downtown Minneapolis.

Second, the Zellie Report found that the HPHD would also qualify as a historic district because [t]he property embodies the distinctive characteristics of an architectural or engineering type or style, or method of construction. The report found this criteria had been met because: (1) there was a specific building type addressed in the HPHD; (2) certain apartment buildings reflected early twentieth-century design long associated with Harmon Place; and (3) the historic district boundaries reflect the general edges and sense of place long associated with the core of the city’s automotive district.

But the Zellie Report also recognized that, within the district, there were sixteen (out of the proposed forty-two) non-contributing properties. In other words, some properties had little connection to the historical significance of the HPHD “due to their construction before or after the district’s period of significance or the extent of exterior alterations.”

After Zellie completed her report, the city planning department sent a letter to Harmon-area property owners explaining that a consultant’s report had been completed and that anyone could receive a copy of the report. The letter also emphasized that a historic district had been proposed and that a public hearing would be held in August 2001. On May 15, 2001, Zellie presented her report to the commission. The commission appears to have directed the city planning commission to continue with the designation process.

The city-planning director then sent the Zellie Report to the State Historic Preservation Officer (SHPO) for comment. On July 11, 2001, the SHPO concluded that the HPHD “is eligible for local designation under Designation Criteria 1 and 4.”

The city planning commission then began to review the proposed designation. City planning staff recommended the city planning commission adopt the staffs findings, which included the finding that the HPHD was'qualified for designation as a historic district. On August 6, 2001, the city planning commission adopted the staffs findings and sent its recommendation to the commission.

But before the commission held a meeting, the planning department staff submitted a second report. It appears that this second report responded to criticism regarding the originally proposed district. The second report recommended markedly different boundaries for the HPHD, including the exclusion of certain properties facing Hennepin Avenue and the exclusion of a larger block, which includes the Minneapolis Community College. The second staff report documents the city council’s approval of the University of St. Thomas’s appeal, which allowed the university to demolish several buildings in the originally proposed HPHD.

On September 25, 2001, the commission held a special meeting and public hearing. The hearing, in large part, addressed the designation of the HPHD. In response to the Zellie Report, Charlene Roise, a consultant hired by relator, offered the commission a reassessment of the proposed HPHD. Roise recommended that the commission reconsider the boundaries of the HPHD, arguing that several factors seriously undermined the integrity of the proposed district, including: (1) the inclusion of the larger block that included the Minneapolis Community College was an error because those buildings lack “the functional connection of Harmon Place or any visual connection”; (2) the northeast section of the HPHD was problematic because of non-contributing properties and vacant lots; and (3) the inclusion of certain apartment buildings was not appropriate because those buildings had nothing to do with the development of the automotive industry. Roise suggested new boundaries that were smaller than those suggested by the planning department’s second staff report.

After Roise’s presentation, several community members spoke against the proposed designation. Residents and building owners complained about the restrictions created by historic designation and about lack of notice regarding the designation process. The commission moved to designate the district but the motion failed due to a tie vote among the commissioners. The commission continued the proposed designation to October 16, 2001, its next scheduled business meeting.

At the next meeting, the commission accepted the planning department staffs recommended boundaries in its second report, but one commissioner sought to include two buildings facing Hennepin Avenue designated as buildings 23 and 25. A planning department staff member present explained that the buildings could not be designated individually. The commission then adopted its own version of the proposed HPHD and included buildings 21 through 25 in the HPHD. The commission then recommended that the zoning and planning committee of the city council approve the designation of the HPHD with its proposed boundaries.

On October 30, 2001, yet another Minneapolis planning committee, the zoning and planning committee (ZPC) met and adopted the commission’s findings. The ZPC also directed the planning department staff to develop findings to justify inclusion of buildings 21 through 25. The ZPC then passed the recommendation on to the city council for final approval; this recommendation included findings supporting inclusion of buildings 21 through 25. On November 9, 2001, the city council passed resolutions 2001R-482 and 2001R-483, which were the HPHD designations, and the mayor approved the resolutions on November 15, 2001.

On December 10, 2001, relator filed a writ of certiorari with this court challenging the city council’s designation of the HPHD.

ISSUE

Was the city’s designation of the Harmon Place Historic District arbitrary and capricious?

ANALYSIS

Relator argues that respondent’s decision to designate the HPHD as a historic district was arbitrary and capricious because respondent: (1) treated similarly situated contributing property inconsistently by not including some contributing property and allowed the University of St. Thomas to demolish other contributing property; (2) treated similarly situated non-contributing property differently by including some properties although they could have easily been left out of the district; (3) included certain properties facing Henne-pin Avenue, although those properties had undergone substantial renovations and should have been described as non-contributing; (4) included non-contributing apartment buildings in the district; (5) included parking lots in the district; and (6) allowed procedural irregularities in the designation process, including the failure to make findings concerning why certain properties where included or excluded and by failing to allow more public participation in the designation process.

Realtor’s arguments fall into two categories: (1) respondent’s choices to include or exclude properties from the historic district are arbitrary and capricious; and (2) the process was flawed because of lack of public participation and the lack of findings.

A. Background of Historical-Designation Ordinances

The state legislature has enabled a municipality to establish commissions “to preserve and promote its historic resources.” Minn.Stat. § 471.193, subd. 2 (2000). The commission’s powers are limited to “those delegated or assigned by the ordinance establishing the commission.”' Id., subd. 3. Minneapolis, Minn., Code of Ordinances title 23, chapter 599, establishes the commission and outlines its duties. The commission itself cannot designate buildings as historic landmarks. Instead, Minneapolis, Minn., Code of Ordinances § 599.120(b)(4) states that the commission shall “hear and make recommendations to the city council on the proposed designation of landmarks and historic districts.”

The commission recommended that the HPHD be designated as a historic district, which is defined as

[a]ll property within a defined area designated as an historic district by the city council because of the historical, cultural, architectural, archaeological or engineering significance of the district, or designated as an historic district by state law.

Minneapolis, Minn., Code of Ordinances § 599.110. “Property” is defined as “[a]ny land, budding, structure or object, surface or subsurface area, natural or landscape feature.” Id. Finally, the heritage-preservation ordinance states that the commission must use certain criteria in evaluating a proposed designation:

The following criteria shall be considered in determining whether a property is worthy of designation as a landmark or historic district because of its historical, cultural, architectural, archaeological or engineering significance:
(1) The property is associated with significant events or with periods that exemplify broad patterns of cultural, political, economic or social history.
(4) The property embodies the distinctive characteristics of an architee-tural or engineering type or style, or method of construction.

Minneapolis, Minn., Code of Ordinances § 599.210(1), (4).

B. Standard of Review of Designation Decision

A city’s historical-preservation-designation proceedings are quasi-judicial in nature and reviewable by this court by writ of certiorari. Handicraft Block Ltd. P’ship v. City of Minneapolis, 611 N.W.2d 16, 24 (Minn.2000). The standard for review of a governmental zoning decision is whether it was unreasonable, arbitrary, or capricious. See Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 207 (Minn.1993); Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn.1988) (“The standard of review is whether the [council’s] decision was unreasonable, arbitrary or capricious, with review focused on the legal sufficiency of and factual basis for the reasons given.”); Van-Landschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn.1988) (holding that the general standard of review for quasi-judicial zoning decisions is whether the action was arbitrary and capricious); In re Quantification of Envtl. Costs, 578 N.W.2d 794, 799 (Minn.App.1998) (“On writ of certiorari, we determine whether [the city] * ⅜ * erred as a matter of law, issued a decision unsupported by substantial evidence, or acted arbitrarily or eapri-ciously.” (quotation omitted)), review denied (Minn. Aug. 18,1998).

C. Arbitrary and Capricious Decision

We are sympathetic to the difficult challenge facing the Minneapolis City Council as it attempts to protect historic properties in the city. Those efforts, however, are subject to constraints imposed by both the Minnesota and the United States constitutions, which protect private property rights. U.S. Const, amend. V; Minn. Const, art. 1, § 13. But we will overturn a municipality’s historic-district designation only when that decision is unreasonable, arbitrary, or capricious. Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn.1981).

A city’s zoning decision is arbitrary and capricious when it is “based on whim or is devoid of articulated reasons.” In re Proposal by Lakedale Tel. Co., 561 N.W.2d 550, 553 (Minn.App.1997) (quotation omitted). Although we will intervene where the absence of findings or reasoning in the record indicates the city’s failure to address an issue, we will affirm the decision if the record shows the agency or city engaged in reasoned decision making. Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 669 (Minn.1984).

The supreme court has recognized the differences

between zoning matters which are legislative in nature (rezoning) and those which are quasi-judicial (variances and special use permits). Even so, the standard of review is the same for all zoning matters, namely, whether the zoning authority’s action was reasonable. Our cases express this standard in various ways: Is there a “reasonable basis” for the decision? or is the decision “unreasonable, arbitrary or capricious?” or is the decision “reasonably debatable?”

Honn, 313 N.W.2d at 416-17.

We examine the controlling ordinance to determine whether the governmental entity’s decision was unreasonable or arbitrary and capricious. White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 176 (Minn.1982). The controlling ordinance is Minneapolis, Minn., Code of Ordinances § 599.210, which provides the historic-designation criteria. The commission agreed with the staffs recommendation and found that the HPHD met the required designation criteria.

But the commission redrew the boundaries recommended by the city planning department’s staff so that buildings 21 through 25 were included in the district. And those buildings were included even though the string of buildings facing Hennepin Avenue included a building that was constructed before the beginning of the auto district’s period of significance. Additionally, one other “contributing” building facing Hennepin Avenue had undergone substantial alterations. When making its decision, a municipality “may not reject expert testimony without adequate supporting reasons.” SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 267 (Minn.App.1995), review denied (Minn. Jan. 5, 1996). Non-experts “may offer adequate reasons to counter or reject expert opinions, but those reasons must be concrete and based on observations, not merely on fear or speculation. Trisko v. City of Waite Park, 566 N.W.2d 349, 356 (Minn.App.1997), review denied (Minn. Sept. 25,1997).

Here, no reason was offered to reject the staff member’s recommendation that the buddings facing Hennepin Avenue be excluded from the HPHD; at the commission’s October 16, 2001 meeting, some council members expressed concern about the inclusion of buildings 21 through 25. There was no indication on behalf of the commission as to why the buildings facing Hennepin Avenue should be included other than the fact that the commission wanted to “stop the bleeding” and retain as much area for the district, even if buildings in the retained area facing Hennepin Avenue were non-contributing properties.

Other facts in the record also demonstrate the arbitrary and capricious nature of the city’s district designation. The HPHD, as it currently stands, includes only a portion of relator’s non-contributing property located at 1308-12 Harmon Place (building 13), which was constructed around 1980. Relator’s property at 1301 Hennepin Avenue (building 27) abuts building 13, yet it is entirely outside the historic district. The record indicates that an old brick alley used to run from 11th Street South to Spruce Place, dissecting the blocks between Hennepin Avenue and Harmon Place. It appears that the planning staff attempted to use this alley as a line of demarcation, marking the northern boundary of the proposed HPHD. But when the commission chose to include buildings 21 through 25, the alley’s importance necessarily diminished.

Furthermore, the portion of the old brick alley that formerly ran between 13th Street South and Spruce Place has been paved over; it presently has no significance to the district. The partial inclusion of building 13 reflects the commission’s unexplained use of the alley as a boundary for some purposes, such as inclusion of the southern half of building 13, but not for other purposes, such as the inclusion of buildings 21 through 25 that lie north of the alley. The record is devoid of articulated reasons explaining why certain noncontributing properties were included based on the use of the alley as a boundary, yet other similarly situated properties were excluded. See In re Proposal by Lakedale Tel. Co., 561 N.W.2d at 553. The unexplained use of the alley as a boundary in the overall designation of the district was nothing more than an arbitrary act on the behalf of the commission because it is not supported by legally sufficient reasons. See, e.g., Amcon Corp. v. City of Eagan, 348 N.W.2d 66, 75 (Minn.1984) (failure to advance rationale for zoning decision indicates arbitrary action); Arcadia Dev. Corp. v. City of Bloomington, 267 Minn. 221, 227-28, 125 N.W.2d 846, 851 (1964) (holding that city’s denial of variance from sign-standards ordinance was arbitrary and capricious); Rostamkhani v. City of St. Paul, 645 N.W.2d 479, 485-86 (Minn.App.2002) (city council’s failure to consider property owner’s letter, which expressed owner’s intent to take remedial action, amounted to arbitrary and capricious act, requiring reversal and remand); Picha v. County of McLeod, 634 N.W.2d 739, 743 (Minn.App.2001) (reversing county’s denial of conditional-use permit for private cemetery because county had no legally sufficient reason to deny permit); Trisko, 566 N.W.2d at 357 (city council’s denial of CUP to operate a rock quarry on property zoned for that purpose was unreasonable, arbitrary, and capricious because decision was legally insufficient and lacked a factual basis in record).

Relator also argues that the procedure the city used was flawed and therefore led to an arbitrary and capricious district designation. But because we have concluded that the designation itself was arbitrary and capricious, we need not address relator’s procedural-irregularities argument.

Therefore, we conclude that the commission’s proposed designation, and therefore the city’s acceptance of that designation, was arbitrary and capricious. Furthermore, we are not required to remand where a zoning authority’s decision is arbitrary because it is unsupported by legally sufficient reasons. Interstate Power Co., Inc. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 577-79 (Minn.2000); N. States Power Co. v. Blue Earth County, 473 N.W.2d 920, 923 (Minn.App.1991), review denied (Minn. Oct. 11, 1991).

DECISION

Because the Minneapolis city council’s designation of the Harmon Place Historic District was arbitrary and capricious, we reverse the designation and decline to remand the matter.

Reversed.

      . Once the commission decided to commence a designation study of the proposed district, all of the property within the proposed district could not be altered. See Minneapolis, Minn., Code of Ordinances § 599.240(a)-(c) (2001) (establishing interim protections for properties during a designation process). This prohibition remains (1) until the city council makes a decision regarding the proposed district or (2) for twelve months, whichever comes first. Id. Furthermore, the scope of the prohibition is expansive, requiring a certificate of appropriateness for even minor alterations. Id. Therefore, the owner’s property rights in the Harmon Place area were substantially affected long before the area was designated as a historic district by the city council.

      .The Harmon Place area was protected by the Harmon Area Overlay District pursuant to Minneapolis, Minn., Code of Ordinances § 551.970 (2001), which provided restrictions on the height and size of new property development. All other references to the Minneapolis, Minn., Code of Ordinances are to the 2001 version of the ordinances.

      . Minneapolis, Minn., Code of Ordinances § 599.210(1).

      . Minneapolis, Minn., Code of Ordinances § 599.210(4).

      . See Minneapolis, Minn., Code of Ordinances § 599.250 (requiring review by the State Historic Preservation Officer).

      . According to Minneapolis, Minn., Code of Ordinances § 599.260, the city planning commission must consider three factors, including the relationship of the designation to the city's comprehensive plan, and the effect of the designation on the surrounding area.

      . See Minneapolis, Minn., Code of Ordinances § 599.270 (requiring a public designation hearing).

      . There are two designations, one for each portion (southwest portion or Fawkes block and northeast portion, which includes relator's properties) of the HPHD.

      . Relator does not challenge the propriety of the Fawkes block as a portion or subdivision of the district. This block is bordered by Hennepin Avenue, Harmon Place, and Maple Street. Therefore, we do not address the appropriateness of that portion of the district.

      . The complex designation procedure used by respondent is as follows: First, a designated person nominates a piece of property or historic district for designation. Minneapolis, Minn., Code of Ordinances § 599.220. Second, the commission makes an initial determination whether the property meets the criteria for designation. Minneapolis, Minn., Code of Ordinances § 599.230. Third, the planning director submits the proposed designation to the State Historical Preservation Office (SHPO) for review. Minneapolis, Minn., Code of Ordinances § 599.250. Fourth, the planning director submits the proposed designation to the city planning commission for review and comment. Minneapolis, Minn., Code of Ordinances § 599.260. Fifth, the commission holds a public designation hearing. Minneapolis, Minn., Code of Ordinances § 599.270. Sixth, the commission makes a recommendation to the zoning and planning committee of the city council. Minneapolis, Minn., Code of Ordinances § 599.280. Finally, the city council receives a recommendation from the zoning and planning committee and makes a final decision on designation. Minneapolis, Minn., Code of Ordinances § 599.290.

      . It is easy to lose sight of the importance of these constitutional protections. Private property is a constitutional bulwark and at least one commentator has noted the relationship between private property and freedom. "What our generation has forgotten is that the system of private property is the most important guaranty of freedom, not only for those who own property, but scarcely less for those who do not.” F.A. Hayek, The Road to Serfdom 115 (University of Chicago Press 1994) (1944).