author: STRINGER, J.

text:
    STATE of Minnesota, Respondent, v. Mark John CARNEY, Appellant.
    No. C5-01-977.
    Supreme Court of Minnesota.
    Aug. 22, 2002.

      Roy George Spurbeck, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Natalie E. Hudson, Assistant Attorney General, St. Paul, MN, Lisa Nelson Bor-gen, Clay County Attorney, Moorhead, MN, for Respondent.
   OPINION

STRINGER, J.

Mark John Carney (appellant) was convicted of premeditated first-degree murder for killing John Voeller (Voeller) after confirming that Voeller was having an affair with appellant’s wife Sheila Carney. At trial appellant requested a jury instruction on the lesser-included offense of first-degree heat-of-passion manslaughter under Minn.Stat. § 609.20(1) (2000). The district court denied the request and the jury found appellant guilty of first-degree premeditated murder. On direct appeal appellant seeks a new trial based on claimed error in denying his request for a heat-of-passion manslaughter jury instruction as well as two evidentiary rulings. We affirm.

Appellant and his wife Sheila were married in 1983 and over the next few years they had two sons. In 1999, appellant became depressed over his career and matters relating to home renovations and repairs, and, although he changed jobs, his depression persisted. He took antidepressants for a short time but stopped due to negative side effects. In January of 2000, through Sheila’s job with Stop-n-Go stores, a close working relationship developed between Sheila and Voeller as they worked together to open Tobacco City stores. Over the next several months Sheila and Voeller became confidants spending at least 800 minutes a month talking to one another on their cell phones in May and June. A mutual attraction developed, although when appellant asked Sheila about her relationship with Voeller, she told him it was work-related and that “nothing was going on.”

In May, two days after Sheila met friends at a bar and did not return home that night, appellant called her and threatened suicide. He began taking antidepressants again and he and Sheila attended family counseling sessions. Sheila continued to insist that her relationship with Voeller was work-related and not an issue. She and appellant decided to live separately but they stayed together three or four times a week and were frequently intimate.

One night in late June appellant and Sheila met at a bar and had several drinks. They agreed that appellant would follow Sheila as she drove home in her car because of her alcohol consumption. While driving Sheila called Voeller on her cell phone. When they arrived home, appellant pressed redial on Sheila’s cell phone and saw that she had called Voeller. An argument ensued, Sheila reiterated that her relationship with Voeller was not an issue, and she then left for her mother’s house with their younger son. Appellant was distraught and again threatened suicide. After talking with his family he checked himself into a clinic for psychiatric evaluation but stayed only until the next day. Shortly thereafter, at a mental health professional’s suggestion, appellant moved his firearms to his aunt and uncle’s home, forgetting two at home. Appellant’s aunt described his behavior in July as erratic. She said that he had trouble sleeping and concentrating, he was not eating, and he was sluggish. Meanwhile Sheila continued to tell appellant’s family that her relationship with Voeller was not an issue.

Appellant arrived at Sheila’s office after lunch one day in July and saw Sheila getting out of Voeller’s car. Appellant told Voeller to stay out of his marriage and poked Voeller in the chest. Voeller laughed off the comment. In August, another confrontation occurred when Sheila had not invited appellant to her company picnic, an event he had attended for the prior 20 years. He became upset and appeared anyway, and after the picnic had ended, he found Sheila and Voeller alone in the parking lot, talking near their cars. When Sheila saw appellant she drove away immediately. Voeller got in his car and when approached by appellant, Voeller asked him “[W]hat are you doing now fat boy?” Appellant punched Voeller in the face through the open window, Voeller got out of his car and the two scuffled.

Although Sheila continued to deny she was having an affair with Voeller, appellant often followed her, showed up unannounced at her office, and called her numerous times during the day demanding to know where she was, whom she was with and where she was going. On several occasions appellant took Sheila’s cell phone and waited for Voeller to call. Sheila considered this behavior, as well as appellant’s suicide threats, as controlling and manipulative.

Appellant telephoned Voeller’s wife in August and was told that she did not know what their spouses were doing and that if Sheila and Voeller wanted to be together, appellant should move on. Later appellant told a friend that appellant could not be happy with Voeller around, told his boss something like he wanted to “beat the hell out of” Voeller, and wrote his wife a note instructing her to not come back “until there is no such thing as [Voeller].”

On August 13 appellant and Sheila had dinner with appellant’s aunt and uncle to talk about the future of appellant and Sheila’s marriage. Appellant’s aunt was concerned that Sheila was giving appellant a false hope that their marriage could succeed. Three days later appellant’s spirits were lifted because he and Sheila were intimate that morning, they later had lunch, he sent her flowers and appellant scheduled a job interview. Despite these positive signs however, later that day appellant purchased equipment at an electronics store to enable him to record telephone conversations and he installed the machine that day at the family home where Sheila was staying. Appellant testified that he bought the equipment to confirm what Sheila and his family told him: that the affair was “in his head.”

That night the machine recorded a conversation between Sheila and Voeller in which Voeller referred to appellant as “shit for brains,” and they discussed a variety of subjects, including a bet between them as to whether appellant would come home that night. Most important however, they discussed Sheila and Voel-ler’s plans to go away for the coming weekend. Voeller described how he had bought liquor for the trip that made Sheila “crazy” and joked that appellant had probably tapped the phones. The machine also recorded a call from appellant to Sheila while she and Voeller were talking and recorded Sheila’s click over to call waiting to speak with appellant. He told her he had called to say goodnight and to tell her about the group therapy he had attended that night. Sheila quickly ended the conversation:

Sheila: All right. I’ll talk to you later.
Appellant: I love you.
Sheila: Bye.
Appellant: I’d like to hear it back from you.
Sheila: Goodbye, I said.
Appellant: Goodbye.

Sheila resumed her conversation with Voeller on the other line and ended it affectionately:

Sheila: All right. Love you.
Voeller: Love you too.
Sheila: Bye.

Appellant drove to their home and retrieved the tape the next morning after Sheila left for work. He listened to it in his truck as he drove to work, but when he arrived at work at about 8 a.m. he couldn’t stay because he was “crushed.” He testified that the tape had confirmed his worst fear and that his “world was gone.” He called his aunt and uncle and drove to his uncle’s place of work at about 8:30. Appellant’s uncle described his driving as erratic, and he was crying when he arrived. His uncle described him as “devastated,” an “emotional nightmare,” an “emotional train wreck,” and “emotionally uncontrollable.” Appellant told his uncle that the tape confirmed that Sheila was having an affair. He made several statements about harming himself and thought that since Sheila and Voeller joked about the phone being tapped they were trying to make him kill himself or drive him crazy. He played parts of the tape for his uncle, including the part where Sheila and Voel-ler exchanged “love” messages. Appellant agreed he would stop listening to the tape but refused to give it to his uncle. His uncle told him to take the tape to an attorney.

After leaving his uncle, appellant drove to Moorhead continuing to listen to the tape. He called his mother about the tape and said he wanted to kill himself. He then drove to his parents’ home to try to work on his resume for the job interview but could not focus and soon left. Appellant testified that he picked up one of his shotguns from his uncle’s home, planning to drive to Sheila’s office, play the tape for her, and then kill himself with the gun. He drove home, sawed off the barrel of the gun and its stock and butt so he could conceal it when entering Sheila’s office, and wrote a note to his sons: “Justin & Logan, No matter what happens today, always remember I love you very much. Love Dad.” He armed himself with five shotgun shells and picked up a tape player so he could play the tape for Sheila,

Appellant testified that upon arriving at Sheila’s place of work in south Fargo he did not have the courage to go inside. He called a Tobacco City store asking to talk with Voeller to learn of his weekend plans but was informed that Voeller was not at that location. Soon after he called Sheila to ask her the same question and she told him that she was going to Minneapolis with her friend Karen. Appellant described driving to his office while crying, shaking and a “wreck,” changing direction and heading toward his parents’ lake home in Minnesota. He testified that he drove to Moorhead and stopped for gas at the Stop-n-Go store that was connected to a Tobacco City store that appellant knew Voeller managed. Appellant testified that he saw Voeller’s car and without stopping to buy gas, as originally planned, he parked in a gravel lot along the side of the store — a location out of the sight of those in the store. Appellant then walked in to confront Voeller with the gun and ammunition in his jacket.

Voeller’s back was turned when appellant walked in. Appellant said “I’m sorry” and turned around. Appellant testified that when Voeller responded “Yeah, you should be,” appellant “snapped,” shooting Voeller once in the back of the head. With Voeller slumped to the floor, facing upward, appellant moved a few steps closer, said “that’s for sleeping with my wife,” reloaded the shotgun and shot Voeller in the face. He then left the store. Appellant testified that his memory of the events was hazy and he did not remember ejecting a shell or cocking the gun’s hammer.

A witness outside the store saw appellant turn his back to Voeller the first time, turn back toward Voeller, raise the gun and fire. The witness called 911 and when the police arrived they pursued appellant in his truck. A high-speed chase wound through town terminating at appellant’s house where he drove across the lawn and came to a stop in a wooded area. Appellant refused to get out of the truck when police approached. As they talked with him he vacillated between turning himself over to authorities and “not wanting to go to prison” — comments the police interpreted as suicide threats. To appellant’s question whether anyone was hurt, police responded they did not know for sure. Appellant said he believed Voeller was dead based on his hunting experience and knowledge of guns. Appellant finally agreed to turn himself in about two hours later; police found the shotgun in the cab of appellant’s truck, loaded and cocked. Appellant never expressed remorse.

At the close of testimony, appellant requested that the jury be instructed on the lesser-included offense of first-degree heat-of-passion manslaughter. The district court denied the motion, ruling that the jury did not have a rational basis to convict on manslaughter and acquit on premeditated murder because the evidence did not support appellant’s claim that the killing occurred in the' heat of passion. The court cited appellant’s suspicion of the relationship between Voeller and Sheila as evidenced by the roses Voeller sent Sheila, extended cell phone conversations between them, appellant’s habit of checking Sheila’s cell phone to see if Voeller called, the two physical confrontations between appellant and Voeller, appellant’s expressions of jealousy and rage about Voeller to others, and the' note appellant wrote to Sheila that concluded “don’t come back unless there is no such thing as [Voeller].”

The district court also noted that on the morning of the killing appellant listened to the tape, drove around extensively, talked to his uncle, went to his parents’ house to work on his resume, drove to his uncle’s house to pick up the shotgun, drove home and modified the shotgun, picked up shotgun shells, wrote a note to his sons, called a Tobacco City store looking for Voeller, drove to the Tobacco City store, parked not by the gas pumps but out of sight of the windows, walked in and told the victim he was sorry — all before shooting the victim in the back of the head, reloading and shooting again. The .court observed that the events of the day took place over two hours, and that Voeller’s reply “Yeah, you should be sorry” did not, in light of appellant’s actions that day, support his. claim that the crime took place in the heat of passion.

The district court also ruled that Voel-ler’s response to appellant’s apology did not rise to the level of something that would provoke a person of ordinary self-control in similar circumstances. The court instructed the jury only on premeditated first-degree murder and intentional second-degree murder.

During deliberations, the jury sent the following question to the court:

If [appellant] walked into the tobacco store with intentions to kill John Voeller and while in the store he changed his mind and turned to walk out of the store, whereas John Voeller made a comment that would make [appellant] snap and turn to shoot John Voeller, would that premeditation be gone from this equation?

The court’s response was to. tell the jury to refer to the instructions already given. The jury then found appellant guilty of first-degree premeditated murder.

Appellant asserts that the district court erred in refusing to give the heat-of-passion manslaughter instruction, and that combined with two evidentiary rulings, he was deprived of his right to a fair trial.

I.

We address first appellant’s claim that the district court erred in denying his request for a jury instruction on a lesser-included. offense of heat-of-passion manslaughter. The lesser-included offense instruction must be given if a reasonable basis exists for the jury to convict the defendant of the lesser-included offense and to acquit on the greater offense. State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125-26 (1975).

Heat-of-passion manslaughter in the first degree is defined in Section 609.20(1): whoever “intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances” is guilty of manslaughter in the first degree. The court was required to give the instruction if the evidence provided a rational basis for the jury to find that (1) appellant actually killed Voeller in the heat of passion; and (2) appellant’s passion was provoked by words or acts that would provoke a person of ordinary self-control under similar circumstances. See State v. Brocks, 587 N.W.2d 37, 41 (Minn.1998).

The first element of the heat-of-passion defense is subjective: whether the killing was actually committed in the heat of passion. State v. Buchanan, 431 N.W.2d 542, 549 (Minn.1988). The defendant’s emotional state at the time of the killing is of primary importance in making this determination. State v. Boyce, 284 Minn. 242, 254-55, 170 N.W.2d 104, 112 (1969). In determining whether the district court erred in denying the instruction we look for a heat of passion that clouds a defendant’s reason and weakens his willpower. Id. at 254, 170 N.W.2d at 112. Anger alone is not enough. Brocks, 587 N.W.2d at 41. A defendant’s behavior before, during and after the crime is relevant to whether the crime was committed in the heat of passion. See State v. Stewart, 624 N.W.2d 585, 591 (Minn.2001).

In State v. Stewart, the defendant admitted that he put his hand over the child victim’s mouth while he stabbed him because he was worried that the child’s crying would attract attention. Id. He also admitted that after the killing he hid the knife in his clothing, drove away, put the knife in a bag, and threw the bag in a garbage can. Id. We concluded that Stewart’s admissions as to why and how he killed the victim and his conduct after the killings had “none of the characteristics of the outrage and loss of self-control that we associate with the heat of passion — they do not demonstrate the clouded reason or weakened ■ willpower we referenced in Boyce.” Stewart, 624 N.W.2d at 591. We held that the defendant’s actions demonstrated a rational, calculating and controlled emotional state of mind rather than the characteristics associated with heat of passion. Id.

Here appellant contends that the preceding months of emotional strain and the intense emotional stress from the confirmation of Sheila’s affair with Voeller clouded his reason and hobbled his will power, and it was in this state of mind that he shot Voeller. He argues that he was provoked by the discovery of the affair, had not cooled off when he approached Voeller, and “snapped” when Voeller told him he “should be sorry.” He cites testimony that he was an emotional “train wreck,” was crying and shaking all morning as he listened to the taped conversation, and that his hazy recollection of the shooting is consistent with the heat of passion in State v. Shannon, 514 N.W.2d 790, 793 (Minn.1994). In Shannon, we held that the defendant’s hazy memory of the killing supported the submission of a heat-of-passion manslaughter instruction to the jury. In Shannon however, the passion arose when the defendant and the victim began arguing just prior to the killing and the dispute escalated to a physical altercation between the victim and the defendant, as evinced by scratch marks on the defendant’s body. Id. The progression of events leading to the crime were measured in moments father than hours, as here.

The state responds that while the facts show that appellant may have been very upset once he heard the tape, he was still making choices and acting upon them when he committed the crime. It argues that appellant’s claim that he did not know of the affair until August 17 is “hairsplitting” because appellant’s actions in the months and weeks preceding the shooting — for example, appellant’s controlling behavior toward Sheila and his physical confrontations with Voeller — demonstrate appellant’s strong suspicion of Sheila and Voeller’s affair and the tape merely confirmed this.

After a careful and thorough review of the record we conclude that the district court did not err in ruling that the evidence did not provide a rational basis for the jury to conclude that appellant killed Voeller in the heat of passion and acquit on the first-degree murder charge. The evidence was clear that appellant was aware and suspicious of Sheila’s close relationship with Voeller for months, he expressed feelings of jealousy and anger to friends and coworkers about Voeller, and physically confronted Voeller on two occasions. Appellant was suspicious enough to install recording equipment on their family phone the day before the shooting — even on the same day his spirits were lifted by their intimacy.

During the approximately two hours that passed between the time appellant first listened to the recording and the shooting, appellant listened to the tape repeatedly, had conversations with his mother and uncle, and drove around the Fargo-Moorhead area stopping at his and Sheila’s workplace, his uncle’s workplace, and the homes of his parents and uncle. He attempted to work on his resume; he retrieved and altered a shotgun to enable him to hide it in his jacket and armed himself with five shotgun shells. He wrote a note to his sons and telephoned Sheila and asked her about her weekend without revealing what he learned on the tape. He called a Tobacco City store and asked for Voeller, then drove to another Tobacco City store and parked out of view of the people in the store. Finally, appellant walked in to the store and shot Voeller in the head, reloaded and shot him again.

While appellant’s conduct over the two hours leading up to the shooting does demonstrate some characteristics of desperation — -for instance his crying and driving erratically from place to place — there is also a pervading characteristic of anger, vengeful planning, and preparation. Appellant sawed off a shotgun in order to hide it in his jacket and armed himself with five shotgun shells- — belying his claim that his intended use of the sawed-off shotgun was to commit suicide in Sheila’s presence. He wrote a note to his sons, he telephoned Tobacco City stores looking for Voeller, after he shot Voeller he told him “that’s for sleeping with my wife,” and he then reloaded and shot Voeller again. Appellant refused to turn himself into police, said he “didn’t want to go to prison” and expressed no remorse for the killing. The district court thoroughly reviewed the evidence leading to its conclusion that there was no rational basis for the jury to find that appellant killed Voeller in the heat of passion. We agree.

Because we determine that the district court did not err in ruling that the evidence did not provide a rational basis for the jury to find that appellant killed Voel-ler in the heat of passion, the first element, we need not address the second element— whether Voeller’s words or acts would have provoked a person of ordinary self-control under like circumstances. Minn. Stat. 609.20(1). We note however, that we agree with the district court’s ruling that Voeller’s response to appellant’s apology— “Yeah, you should be sorry” — could not rationally provoke a person of ordinary self-control to kill. It was not threatening, nor was it disparaging, and while it may have had a cynical tone, that is hardly sufficient to justify appellant’s violent and deadly response.

II.

The second issue raised by appellant is whether two evidentiary rulings combined to deny him a fair trial. Rulings on evidence will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989). Appellant bears the burden of showing both the error and resulting prejudice. See State v. Steinbuch, 514 N.W.2d 793, 799 (Minn.1994). Appellant alleges the district court erred in (1) admitting a photograph of the victim with his family over a defense objection; and (2) sustaining the state’s objection to witness testimony that would have described the contents of a videotape showing Voeller and Sheila hugging.

As to the photograph, appellant argues that its admission into evidence was an improper appeal to the sympathy, passion and prejudice of the jury. The state responds that it may properly introduce evidence concerning the life of a homicide victim and the photograph is relevant and admissible to show the “spark of life” and to present the victim as a human being (citing State v. Graham, 371 N.W.2d 204, 207 (Minn.1985) (holding that even though victim’s personal life was not strictly relevant to issue of who murdered him, the prosecution had some leeway to show the victim was imbued with spark of life and to present the victim as a human being)). The photograph fell within the prosecutor’s latitude in showing Voeller as a human being and was not unduly prejudicial, as Voeller’s wife testified that he was married with three children. That Voeller had a surviving wife and children was therefore already before the jury. Accordingly we hold that the district court’s ruling to admit the photograph was not an abuse of discretion.

Evidence of the videotape, appellant argues, should have been admitted to “round out” Voeller’s character, just as the family photo was admitted, and that the testimony was relevant to show that Sheila had lied to appellant about the affair. The state argues that the testimony was inadmissible hearsay, a violation of the best evidence rule, irrelevant, and cumulative.

It was uncontroverted at trial that Sheila and Voeller were having an affair and that she lied to appellant about it— therefore the evidence was cumulative. Further its admission would have violated the “best evidence” rule, as the videotape itself is the best evidence of its contents. See Minnesota Rule of Evidence 1002. We hold that the district court did not abuse its discretion in excluding the testimony and appellant’s right to a fair trial was not violated by the court’s evidentiary rulings.

Affirmed.

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

      . Appellant’s motion to strike an inference drawn in the state's brief that appellant turned his back “probably to load his gun” is denied as it was only an inference and was not unreasonable. Also denied is appellant’s motion to strike an allegation in the state’s brief that appellant called Voeller’s wife tw.o weeks prior to the shooting to ascertain Voel-ler’s work schedule. Voeller’s wife testified that-she did not recall an inquiry about her husband’s schedule.

      . The question posed by the jury to the court during deliberation does not support appel-lanl’s claim that the heat-of-passion instruction should have been given. The question related to whether appellant would have premeditated Voeller's killing if Voeller's comment "Yeah, you should be sorry,” at a time when appellant had abandoned his plan to kill Voeller, caused appellant to “snap” and shoot him. The jury's guilty verdict for premeditated first-degree murder suggests it did not believe appellant’s assertion that he did not premeditate Voeller's murder when he pulled the trigger.


source: Caselaw Access Project

author: WILLIS, Judge.

license: Public Domain

text:
    Hubbard ALEXANDER, et al., Appellants, v. MINNESOTA VIKINGS FOOTBALL CLUB LLC, Respondent, National Football League, et al., Respondents.
    No. C0-02-136.
    Court of Appeals of Minnesota.
    Aug. 6, 2002.

      Edward M. Glennon, Christopher H. Yetka, Christopher Lynch, Lindquist & Vennum, PLLP, Minneapolis, for appellants.
    Michael F. Kelly, Jr., Eden Prairie, for respondent Minnesota Vikings Football Club, LLC.
    Daniel J. Connolly, Faegre & Benson, LLP, Minneapolis, and Michael X. Imbros-cio (pro hac vice), Covington & Burling, NW, Washington, DC, for respondents National Football League, et al.
    Considered and decided by RANDALL, Presiding Judge, WILLIS, Judge, and FORSBERG, Judge.

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

   OPINION

WILLIS, Judge.

Appellants challenge the district court’s dismissal of their complaint for failure to state a claim on which relief can be granted, arguing that circumstances exist to support the pre-award removal for bias of the designated arbitrator of their dispute with respondents. Because we conclude that the Federal Arbitration Act does not provide for the pre-award removal of an arbitrator, we affirm.

FACTS

Appellants Hubbard Alexander, Serafino Fazio, Tom Olivadotti, David Atkins, Ray Sherman, Frederick VonAppen, and John Fontes are former assistant coaches of respondent Minnesota Vikings Football Club, LLC (Vikings). Each entered into an employment contract with the Vikings that provided for annual base compensation and for annual incentive compensation, which depended on team performance each year. The employment contracts included an arbitration clause that required the parties to refer any disputes between them to the commissioner of respondent National Football League (NFL), respondent Paul Tagliabue, for binding arbitration.

In January and February 2000, the employment of Alexander, Fazio, Olivadotti, Atkins, and Sherman with the Vikings terminated. In March 2000, the Vikings paid incentive compensation to the then-employed assistant coaches who had been with the team during 1998-99 season; it paid no incentive compensation to Alexander, Fazio, Olivadotti, Atkins, and Sherman for that season. VonAppen’s and Fontes’s employment with the Vikings terminated in January 2001. In February 2001, the Vikings paid incentive compensation to the then-employed assistant coaches who had been with the team during the 1999-2000 season. The Vikings paid no incentive compensation to appellants for the 1999-2000 season.

Appellants claim that, under the terms of their contracts, they are entitled to incentive compensation for the seasons in which the Vikings employed them as assistant coaches. As their contracts provided, they referred their disputes to Tagliabue for binding arbitration. But in June 2001, before their claims were arbitrated, appellants brought a declaratory-judgment action against Tagliabue, the NFL, and the Vikings to remove Tagliabue as arbitrator of their disputes and to replace him with a neutral arbitrator. They based that action on the grounds that (1) Tagliabue is biased because he is obligated to act in the best interests of NFL teams and their owners and because he previously represented the NFL and its members as chief outside counsel and (2) the employment agreements that they entered into were not voluntary agreements because Tagliabue would not approve the employment contracts without the arbitration clause.

Tagliabue and the NFL moved to dismiss the complaint under Minn. R. Civ. P. 12.02(e) for failure to state a claim on which relief can be granted on the grounds that the Federal Arbitration Act prohibits challenges based on alleged arbitrator bias before the issuance of an arbitration award and that the parties had entered into a valid, enforceable agreement to arbitrate their disputes. The district court granted respondents’ motion to dismiss, and this appeal follows.

ISSUE

Does appellants’ complaint set forth a legally sufficient claim for relief?

ANALYSIS

When reviewing the dismissal of a complaint under Minn. R. Civ. P. 12.02(e), this court takes the facts alleged in the complaint as true. Jacobson v. Bd. of Trs. of the Teachers Ret. Ass’n, 627 N.W.2d 106, 109 (Minn.App.2001), review denied (Minn. Aug. 15, 2001). Whether the alleged facts can be proved is immaterial. Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739 (Minn.2000). A reviewing court will not uphold a rule 12.02(e) dismissal if it is possible to grant the requested relief on any evidence that might be produced consistent with the complainants’ theory. Id. at 739-40.

The Federal Arbitration Act (FAA) governs the enforcement of arbitration provisions in all contracts involving interstate commerce. Perry v. Thomas, 482 U.S. 483, 490, 107 S.Ct. 2520, 2526, 96 L.Ed.2d 426 (1987) (stating that FAA “embodies Congress’ intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause”). The parties do not challenge the district court’s determination that the FAA applies here. See Radovich v. Nat’l Football League, 352 U.S. 445, 445, 77 S.Ct. 390, 390, 1 L.Ed.2d 456 (1957) (stating that interstate nature of business of football places it within provisions of federal antitrust laws).

The FAA provides that a written provision in a contract to settle by arbitration a controversy that arises out of that contract “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (2000). The FAA also provides that a court may vacate an arbitration award for “evident partiality * * * in the arbitrators.” 9 U.S.C. § 10(a)(2) (2000). But the FAA does not expressly provide for the pre-award removal of an arbitrator.

Appellants argue that caselaw establishes that the bias of an arbitrator “can so subvert the integrity of the arbitration process” that, under 9 U.S.C. § 2, such an arbitration agreement is unenforceable. They cite Morris v. New York Football Giants, Inc. for the proposition that because Tagliabue is biased, a neutral arbitrator must be appointed. Morris v. New York Football Giants, Inc., 150 Misc.2d 271, 575 N.Y.S.2d 1013 (N.Y.Sup.Ct.1991).

In Morris, before the issuance of an arbitration award, a New York County trial court judge disqualified Tagliabue for bias as the arbitrator of salary disputes between football players and two New York football clubs. Id. at 1017. Finding that Tagliabue’s position as commissioner and the fact that he had previously represented NFL owners in disputes against players deprived him of the necessary neutrality to arbitrate the players’ claims, the court used its “inherent” authority to replace him with a neutral arbitrator. Id. at 1016-17. But Morris is not precedential legal authority here, and we do not find it to be persuasive.

In Aviall, Inc. v. Ryder Sys., Inc., the Second Circuit Court of Appeals held that because the FAA does not provide for the pre-award removal of an arbitrator, an agreement to arbitrate before a particular arbitrator must be upheld “unless the agreement is subject to attack under general contract principles as ‘exist at law or in equity,’ ” that is, unless “the arbitrator’s relationship to one party was undisclosed, or unanticipated and unintended, thereby invalidating the contract.” Aviall, Inc. v. Ryder Sys., Inc., 110 F.3d 892, 895-96 (2nd Cir.1997) (quoting 9 U.S.C. § 2). In that case, the court reasoned that, absent such circumstances, a party can “hardly object” to the enforcement of a valid arbitration agreement according to its terms. Id. at 896.

We find the reasoning of the Aviall court to be persuasive. Here, appellants concede that, when they entered into their employment contracts, they knew Taglia-bue was the designated arbitrator of any disputes under the contacts and that they knew about Tagliabue’s relationship to the Vikings. In fact, the contracts were subject to Tagliabue’s approval.

Appellants argue that they have asserted facts in their complaint that show that the arbitration clauses in their employment contracts are contracts of adhesion. Although the FAA governs the enforcement of arbitration provisions in all contracts involving interstate commerce, a state may regulate contracts, including arbitration clauses, under general contract principles and may invalidate an arbitration clause on grounds such as fraud, duress, or unconscionability. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 686-87, 116 S.Ct. 1652, 1655-56, 134 L.Ed.2d 902 (1996).

Under Minnesota law, when determining whether an arbitration agreement constitutes an invalid contract of adhesion, courts examine “the sophistication of the parties, the circumstances surrounding the execution of the agreement, and the burden arbitration places on the complaining party.” Ottman v. Fadden, 575 N.W.2d 593, 597 (Minn.App.1998) (citation omitted). Under Ottman, an arbitration agreement that is a contract of adhesion is invalid. Id.

But appellants did not ask the district court to invalidate the arbitration clauses; they asked the district court to reform those clauses, that is, to remove Tagliabue as the arbitrator and to appoint another arbitrator. Even if the arbitration clauses are contracts of adhesion, appellants cite no legal authority supporting their proposition that the district court may reform the clauses to replace Taglia-bue. See Minn. R. Civ.App. P. 128.02, subd. 1(d) (providing that briefs must include citations to legal authorities). Appellants’ contract-of-adhesion theory, therefore, does not provide a basis for the relief that they request.

DECISION

Because the Federal Arbitration Act does not provide for pre-award challenges to an arbitrator for bias, the district court did not err by granting respondents’ motion to dismiss on the ground that appellants failed to state a claim on which relief can be granted.

Affirmed.


author: MINGE, Judge.

text:
    In re ESTATE OF Dennis GLOEGE, a/k/a Harvey Dennis Gloege, Decedent.
    No. C8-01-1802.
    Court of Appeals of Minnesota.
    Aug. 13, 2002.

      Peter A. Donohue, Michael E. Novak, Donohue Novak at Law, St. Cloud, for appellant Meade.
    John C. Lervick, Swenson, Lervick, Sy-verson, Anderson, Trosvig, Jacobson, P.A., Alexandria, for respondents John and Michael Gloege.
    Considered and decided by PETERSON, Presiding Judge, SCHUMACHER, Judge, and MINGE, Judge.
   OPINION

MINGE, Judge.

In this probate dispute, appellant personal representative argues that certain security accounts are part of the probate estate and thus should not have been paid to respondents. Appellant claims that (a) decedent did not satisfy the registration requirements for a transfer-on-death account under Minn.Stat. §§ 524.6-301 to 524.6-311 (2000); and (b) even if decedent properly registered the accounts in beneficiary form, provisions in decedent’s will revoked the beneficiary registration. The trial court rejected these claims. We affirm.

FACTS

Decedent Dennis Gloege died testate on May 25, 1998. He was survived by appellant Rose Meade, his widow and personal representative, their minor son, Nicholas Gloege, and his two adult sons from a previous marriage, respondents John and Michael Gloege.

In December 1988, decedent opened an American Century Simplified Employee Pension Individual Retirement Account. This was done by completing a document entitled “Account Registration Form.” No readable copy of this form was provided to the trial court. The microfilm copy accepted into evidence contains a fourth paragraph entitled “Designation of Beneficiary,” with the following language: “In the event of my death, pay the balance of my IRA to.” The blank space that follows contains the handwritten name “John Gloege” with his address. The decedent signed the document. Decedent never changed this beneficiary designation, and the periodic account statements never listed any beneficiary or any words indicating that this account was held subject to a transfer-on-death arrangement.

In May 1996, decedent executed a document entitled “IDS Transfer on Death Account Agreement” with IDS/American Express, covering five mutual fund accounts and designating John H. Gloege, Michael D. Gloege, and Nicholas Gloege as the beneficiaries of all five accounts upon decedent’s death. Decedent never changed these beneficiary designations. The periodic account reports came with a coversheet, which was addressed to the decedent, Dennis Harvey Gloege. This coversheet listed the five mutual fund accounts with only his name. On the separate mutual fund account statements, the mutual fund was designated and the owner’s name was listed as “Dennis Harvey Gloege Tod.”

On May 18, 1998, just one week before his death, decedent revised his will, devising $80,000 in cash to John Gloege and $60,000 in cash to Michael Gloege. In each case, the devise was to be adjusted if the son received more or less than $20,000 in nonprobate assets. The will made no reference to the American Century Account or the IDS/American Express mutual fund accounts or any transfer-on-death arrangements.

When decedent died, the American Century Account had a balance of $15,397.36, and the five IDS/American Express accounts totaled $113,596.48. According to appellant, if the transfer-on-death accounts were paid to the sons, the mechanics of the adjusting clause of the will would be compromised, and respondents would receive more than was contemplated under the will.

In October 2000, appellant filed a schedule of nonprobate assets with the court, describing the American Century Account as a nonprobate asset “payable upon death to John Gloege his son pursuant to a beneficiary designation.” In December 2000, appellant petitioned for an order approving an accounting and a distribution of the property in decedent’s estate. In that document, appellant considered the American Century Account and the IDS/American Express accounts to be probate assets. Respondents objected to the proposed distribution because it reduced their inheritance by the amount that each had already withdrawn from the IDS/American Express accounts.

During the March 2001 hearing, the parties agreed that their dispute turned on whether the American Century and IDS/American Express accounts were probate assets, and the parties agreed to submit affidavits and memoranda in support of their positions. In August, the trial court ruled that the American Century and IDS/American Express accounts were non-probate assets that were properly transferred to respondents. The court reasoned that all of these securities accounts were properly registered securities under Minnesota’s Uniform TOD (Transfer on Death) Security Registration Act, Minn. Stat. §§ 524.6-301 to 524.6-311 (2000), that respondent John Gloege was the beneficiary of the American Century account while all three sons, including both respondents, were beneficiaries of the IDS/American Express accounts.

ISSUES
I. Does the execution -of a seeurities-account agreement and application form, designating beneficiaries, constitute registration in beneficiary form under the Uniform TOD Security Registration Act?
II. If so, did decedent’s will revoke the beneficiary designations?

ANALYSIS

I.

The application of a statute to undisputed facts is a legal question, which an appellate court reviews de novo. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996). Such is the situation in this case.

Various methods of owning assets have been developed' that do not require the formalities of probate to transfer ownership after death. With respect to real estate, joint tenancy and life estate arrangements are the best known and most widely used. In the 20th century, these and other forms of personal property ownership became commonplace. See Unif. TOD Sec. Registration Act, Prefatory •Note, 8B U.L.A. 386-87 (2001). A will does not dispose of nonprobate assets such as property “payable , on death” (POD) or “transferred on death” (TOD) to a beneficiary. 6A Steven J. Kirsch, Minnesota Practice § 59.4 (2002).

Several terms are important in the POD and TOD setting. A “beneficiary form” is a security-registration arrangement in which the owner of a security provides that such security is to go to a designated person when the owner dies. Minn.Stat. § 524.6-301 (2000). “Register,” in the case of uncertificated securities, means “to initiate or transfer an account showing ownership of securities.” Id. The owner registers a. security in beneficiary form by designating a beneficiary who will take ownership when the owner dies. Minn.Stat. § 524.6-304 (2000). The owner may use the words “transfer on death,” “TOD,” “pay on death,” or “POD” after his name and before the beneficiary’s name. Minn.Stat. § 524.6-305 (2000). When the owner dies, the security passes to the beneficiary,. and only if no beneficiary survives the owner does the security pass to the owner’s estate. Minn.Stat. § 524.6-307, subd. 1 (2000).

Appellant claims that section 524.6-305 requires that the registering entity list, on both the account certificate and on every statement, (1) the owner’s name; (2) words of intent, such as “transfer on death” or “TOD”; and (3) the beneficiary’s name. Appellant argues that, because the periodic statements issued by American Century and IDS/American Express list no beneficiary, the statute’s requirements were not met.

Appellant’s position finds no support in the law. The language in Minn.Stat. § 524.6-305 is as follows:

Registration in beneficiary form may be shown by the words “transfer on death” or the abbreviation “TOD,” or by the words “pay on death” or the abbreviation “POD,” after the name of the registered owner and before the name of a beneficiary.

(Emphasis added.) Minn.Stat. § 524.6-308(b) (2000) provides:

By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented on death of the deceased owner as provided in sections 524.6-301 to 524.6-311.

And Minn.Stat. § 524.6-310(a) (2000) provides:

A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests (i) for registrations in beneficiary form, and (ii) for implementation of registrations in beneficiary form * * *.

The comment to section 8 of the Uniform TOD Security Registration Act makes clear the discretion of the mutual fund:

It is to be noted that the “request” for a registration in beneficiary form may be in any form chosen by a registering entity. The Act does not prescribe a particular form and does not impose record-keeping requirements. Registering entities’ business practices, including any industry standards or rules of transfer agent associations, will control.

8B U.L.A. 410 (2001).

The plain language of section 524.6-305 requires merely that the security owner name a beneficiary who will own the account when the owner dies. The statute does not mandate that the periodic statements list the beneficiary’s name after words indicating transfer on death; the statute only suggests that the owner “may” use words such as “transfer on death” in the application. As the comment indicates, the uniform act gives the mutual fund company substantial latitude in drafting and structuring forms and documents.

In this ease, decedent designated John Gloege as the beneficiary when decedent opened the American Century account in December 1988. This was sufficient to register that account in beneficiary form under the statute. Similarly, decedent designated respondents as beneficiaries and used a special “transfer on death” account agreement form when he opened the IDS/American Express accounts in May 1996. The fact that the periodic statements issued by both companies did not include respondents’ names does not affect the validity of the registration. The registration documents are abundantly clear. These companies obviously felt that they had an adequate process for establishing effective, enforceable TOD accounts.

To let periodic statements for securities or street accounts override the initial agreement between the investor and a registering entity would open up possibilities for inconsistency and mischief. A minor error by an obscure clerk in the bowels of a large fund could override a carefully planned and clear agreement. Of course, it may be desirable and a good practice to have the transfer-on-death arrangement clearly shown on the periodic statement, at least in some abbreviated form. This would serve as a reminder to the owner that he or she has established such an account, and it would avoid confusion among beneficiaries and heirs.

Appellant points to the formal requirements of creating joint tenancies and mechanic’s liens and suggests that the registration requirements of the Minnesota TOD statute are similarly strict. Those situations involve interests in real estate, which historically are separate and distinct from formalities governing the transfer and devise of intangibles like investment securities. There is a national interest in a simple, uniform process with respect to mutual funds and other investments that is distinguishable from fixed assets like real estate. Here, decedent properly followed the statutory requirements for registering his securities accounts in beneficiary form: he named a beneficiary on both security applications. And in completing the IDS/American Express application, he even executed a special agreement entitled “transfer on death.” We conclude that decedent adequately registered the securities in beneficiary form under .Minn.Stat. § 524.6-304 (2000).

II.

Appellant has also challenged the TOD designations, claiming that they were revoked by decedent’s will. Several established principles govern this court’s review of the effect of a will on such arrangements. Whether the language of a will is ambiguous is a legal question. In re Estate of Kerr, 520 N.W.2d 512, 514 (Minn.App.1994), review denied (Minn. Oct. 14, 1994). When interpreting a will, we must (1) avoid doing any violence to the language of the instrument; and (2) effectuate the testator’s intent. Estate of Cole, 621 N.W.2d 816, 818 (Minn.App.2001). Extrinsic evidence of the testators intent should be considered only if, after viewing the surrounding circumstances, an ambiguity or contradiction persists. Id. at 819.

Appellant argues that déeedent’s will clearly intends to limit respondents’ inheritance to a maximum amount. Appellant contends that her affidavit, submitted to the trial court, explains what decedent intended to leave to respondents in his will. Appellant asserts that (1) ■ decedent changed his will to give respondents an immediate inheritance; (2) decedent wanted to avoid estate taxes; (3) decedent wanted to provide for appellant and their minor son; (4) the periodic account statements, which do not list respondents as beneficiaries, reflect decedent’s intent; and (5) the TOD arrangement frustrates the effect of the will by giving respondents more money than decedent intended.

“By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented [when the owner dies] * * Minn.Stat. § 524.6-308(b) (2000).

A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and sections 524.6-301 to 524.6-311 and is not testamentary.

Minn.Stat. § 524.6-309, subd. 1(a) (2000). “A registration in beneficiary form may be canceled by a specific reference to the * * * securities account in the will of the * * * owner * * ⅜.” Id., subd. 2 (2000).

The initial security registrations with American Century and IDS/American Express designating beneficiaries created a contract that decedent could have revoked by notice or by a specific provision in his will. Based on a plain reading of decedent’s will, decedent never revoked the beneficiary designations. Moreover, no evidence exists that decedent changed those designations before his death. The provision of the will that attempts to coordinate probate and nonprobate cash assets makes no reference to securities, let alone mutual fund accounts that are payable on death or transferable on death. At most, the existence of TOD accounts silently marginalized this provision of the will. Moreover, claims based on estate-tax liability and other considerations are too speculative and too far removed from the mutual fund ownership determinations. Greater specificity is needed to override clear beneficiary designations in securities account agreements. Thus, the account agreements constitute a binding contract requiring that American Century and IDS/American Express transfer the securities to decedent’s designated beneficiaries at decedent’s death.

DECISION

Because decedent designated respondent John Gloege as the beneficiary on the American Century application, and because decedent designated both respondents as beneficiaries on the IDS/American Express application, the Uniform TOD Security Registration Act was satisfied. Moreover, because nothing in decedent’s will revoked the beneficiary designations, and because no other clear evidence shows such a revocation, the securities accounts transferred to respondents when decedent died.

Affirmed.


author: G. BARRY ANDERSON, Judge. LANSING, Judge

text:
    EDUCATION MINNESOTA-CHISHOLM, Chisholm, Minnesota, Relator, v. INDEPENDENT SCHOOL DISTRICT NO. 695, Chisholm, Minnesota, Respondent, STATE of Minnesota, Bureau of Mediation Services, Respondent.
    No. C1-02-291.
    Court of Appeals of Minnesota.
    Aug. 13, 2002.

      Christina L. Clark, Education Minnesota, St. Paul, for relator.
    Scott C. Neff, The Trenti Law Firm, Virginia, for respondent ISD No. 695.
    Joseph E. Flynn, Jennifer K. Anderson, Knutson, Flynn & Deans, P.A., Mendota Heights, for amicus curiae Minnesota School Boards Association.

      Considered and decided by ANDERSON, Presiding Judge, LANSING, Judge, and KALITOWSKI, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Relator petitioned for clarification of a collective-bargaining unit, requesting that certain part-time early childhood family education teachers be included within that local bargaining unit. A hearing officer denied relator’s petition for clarification. Relator argues that part-time early childhood family education teachers are “public employees” under Minn.Stat. § 179A.03, subd. 14 (2000) and therefore should be included in the bargaining unit. Because early childhood family education programs and courses are community education instruction offered on a noncredit basis, we affirm.

FACTS

The parties have stipulated to the facts. Respondent Independent School District No. 695, Chisholm, Minnesota (school district), is a public employer subject to the Public Employment Labor Relations Act (PELRA). Minn.Stat. § 179A.01-.25 (2000 & Supp.2001). The school district offers early childhood family education (ECFE) programs and courses for the district’s parents and their pre-school children. ECFE programs and courses are optional and are not included in the compulsory instruction mandated by Minn. Stat. § 120A.22 (2000). ECFE programs and courses are held during the school year; however, the ECFE teaching year is generally shorter than the 180-day academic year. The school district employs six licensed, part-time ECFE teachers in the program, which is operated at two district elementary schools. Historically, the school district has paid ECFE teachers an hourly wage and the teachers have not received benefits as part of their employment.

On February 23, 2001, relator Education Minnesota-Chisholm filed a petition for unit clarification with respondent Minnesota Bureau of Mediation Services (Bureau) requesting that the part-time ECFE teachers be included in the local bargaining unit. The parties agreed to forego a contested evidentiary hearing and submitted the dispute to a hearing officer on stipulated facts.

The hearing officer determined that, based on Bureau precedent and the plain language of Minn.Stat. § 179A.03, subd. 14, “ECFE instructors are hired by the school district for the purpose of community education offered on a non-credit basis.” In re Petition for Clarification by Educ. Minn.-Chisholm, BMS No. 01-PCL-961 (Feb. 5, 2002). The hearing officer therefore concluded that the ECFE teachers were subject to the minimum hour requirements of Minn.Stat. § 179A.03, subd. 14(e) and, consequently, the part-time ECFE teachers were not “public employees” under PELRA. The hearing officer thus excluded the part-time ECFE teachers from the bargaining unit. Relator filed a petition for writ of certiorari with this court on February 21, 2002.

ISSUE

Are early childhood family education programs and courses community education instruction offered on a noncredit basis?

ANALYSIS

Relator advances several'reasons why it believes the Bureau erred in its interpretation of the statute: (1) the concept of credit/noncredit simply does not apply to ECFE; (2) ’the legislature did not intend to exclude part-time ECFE teachers from the definition of “public employee”; and (3) PELRA has consistently included teachers as “public employees” no matter how few hours they work per week;

An agency’s construction of a statute may be entitled some weight when the statutory language is technical and the agency’s interpretation is longstanding. See Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn.1996). As relator notes, however, the Bureau has never specifically addressed the issue presented in this case and the statutory language is not technical. Therefore, we are not bound by the Bureau’s interpretation of the statute. See Am. Fed’n of State, County & Mun. Employees, Council No. 14, Saint Paul v. City of Plymouth, 563 N.W.2d 79, 80 (Minn.App.1997). (“This court is not bound by an administrative agency’s interpretation of a statute.” (citation omitted)); Am. Fed’n of State, County & Mun. Employees, Council No. 65, Nashwauk v. City of Buhl, 541 N.W.2d 12, 13 (Minn.App.1995), review denied (Minn. Jan. 25, 1996); Rochester Educ. Ass’n v. Indep. Sch. Dist. No. 535, 415 N.W.2d 743, 745 (Minn.App.1987) (stating that an agency’s determination that certain individuals were not “teachers” under the statute “while entitled to respect, is fully renewable” (citations omitted)); Indep. Sch. Dist. No. 721, New Prague v. Sch. Servs. Employees, Local 284, Richfield, 379 N.W.2d 673, 674 (Minn.App.1986) (reviewing the Bureau’s interpretation of “normal work week” de novo), review denied (Minn. Mar. 14, 1986).

Minn.Stat. § 179A.06, subd. 2 (2000) grants public employees “the right to form and join labor or employee organizations.” “Public employees in an appropriate unit have the right to designate an exclusive representative to negotiate with the employer.” City of Buhl, 541 N.W.2d at 13 (quotation omitted). Under Minn. Stat. § 179A.04, subd. 2 (2000), the Bureau is authorized to determine whether an employee is a “public employee” and which public employees constitute an appropriate bargaining unit for purposes of collective bargaining. See generally Minn.Stat. § 179A.09 (2000) (criteria for unit determination).

“Public employee,” however, is defined by statute. Minn.Stat. § 179A.03, subd. 14. In general, a “public employee” is a “person appointed or employed by a public employer.” Id. This broad definition, however, is subject to several specific exceptions. For example, a part-time employee whose work “does not exceed the lesser of 14 hours per week or 35 percent of the normal work week in the employee’s appropriate unit” is not a “public employee.” Id., subd. (e). Therefore, in general, part-time employees who fail to satisfy this minimum hour requirement are not public employees and must not be included in the particular bargaining unit.

The statute, however, provides a “teacher” exception to the part-time employee exception. A part-time employee who does not satisfy the minimum hour requirement is still a “public employee” if the employee is hired by a school district to (1) replace an absent teacher who is a public employee; or (2) take a new teaching position. Id, subd. 14, cl. (i)(A)-(B). Therefore, the teacher exception to the part-time employee exception essentially exempts most part-time K-12 teachers from the minimum hour requirement and consequently most part-time K-12 teachers are public employees under PELRA.

But there is also an exception to the teacher exception. Although most part-time K-12 teachers are “public employees,” a teacher hired by a school district “for community services or community education instruction offered on a noncredit basis” is still subject to the minimum hour requirement. Id, subd. 14, cl. (i). Thus, part-time community education teachers who do not satisfy the minimum hour requirement are not public employees if they teach community education programs and courses which are “offered on a noncredit basis.” Id.

The parties agree that ECFE is community education. The parties have also stipulated that the ECFE teachers relevant to this appeal are not public employees if we conclude that ECFE programs and courses are “offered on a noncredit basis.” Therefore, the outcome of this case neees-sarily depends on the meaning of “noncredit.”

Because early childhood family education programs and courses are not offered for some type of “credit,” they are offered on a noncredit basis; consequently, we conclude that part-time ECFE teachers who fail to satisfy the statute’s minimum hour requirement are not “public employees” under PELRA.

A. Plain Meaning of Noncredit

The goal of statutory interpretation is to ascertain the intent of the legislature; but “[w]ords and phrases [must be] construed according to rules of grammar and according to their common and approved usage.” Minn.Stat. § 645.08(1) (2000); see also Arlandson v. Humphrey, 224 Minn. 49, 55, 27 N.W.2d 819, 823 (1947) (“Unless obviously used in a different sense, words in a statute are to be construed in their ordinary, popular sense, — according to the common and approved usage of the language.” (quotation omitted)). When the words of a statute are clear and unambiguous, the statutory language must not be disregarded. See Minn.Stat. § 645.16 (2000); Olson v. Am. Family Mut. Ins. Co., 636 N.W.2d 598, 604 (Minn.App.2001) (“The legislature * * * has made it clear that legislative intent and the spirit of the law, if any such intent or spirit can be ascertained,.cannot override the plain language of a statute.” (citation omitted)). Therefore, contemporaneous legislative history should only be examined when the words of a statute are not explicit. Minn.Stat. § 645.16.

“Noncredit” is not defined by PELRA or other Minnesota law. “Noncredit,” in the context of educational instruction, is generally defined as “[o]f, relating to, or constituting an educational course that does not offer credit toward an academic degree.” The American Heritage Dictionary 1230 (3rd ed.1992). “Credit,” on the other hand, is defined as “[official certification or recognition that a student has successfully completed a course of study: * * * A unit of study so certified.” Id. at 439. Other authorities define “credit” as “educational recognition that a course of studies has been successfully completed.” WordNet 1.6 (Princeton Univ.1997), at http://www.dictionary. com/search?q=credit (last visited July 25, 2002). “Credit” has also been defined -as “[t]he honour or commendation bestowed on account of a particular action, personal quality, etc.; acknowledgement of merit.” Oxford English Dictionary 1155 (Oxford Univ. Press 1987).

Relator argues, and the dissent agrees, that concepts of credit and noncredit' simply do not apply to ECFE instruction. Until this case, the Bureau has never had occasion to interpret the definition of “noncredit.” But, as respondent notes, the definition of “noncredit” is clear, unambiguous, and relatively simple: it means “not for credit.” ECFE courses, like other community education courses, are not offered as part of any academic program with a graduation .or like event as the ultimate outcome. Unlike elementary school, high school, college, or university curricula where satisfaction of certain academic requirements results in uniform advancement (usually in one-year increments) and graduation, ECFE programs and courses have no such uniform curricula or potential for academic advancement.

Moreover, ECFE programs and courses are optional and not mandated by state law. See Minn.Stat. § 120A.22; Early Childhood Family Education (ECFE), at http://children.state.mn.us/ecfi/eefe.htm (“Participation is voluntary and services are offered free, or for a nominal fee.”) (last modified April 25, 2001). Affording the word “noncredit”- its common and approved meaning leads inexorably to the conclusion that ECFE programs and courses are “offered on a noncredit basis.”

B. Legislative History & Purpose of PELRA

Relator also argues that the legislature intended to include part-time ECFE teachers as “public employees” under PELRA and that the statute has always included teachers no matter how may hours they work per week. Because we have already concluded the word “noncredit” is clear and unambiguous, we need not examine contemporaneous legislative history. What remains of the contemporaneous legislative history, however, does not detract from our conclusion that ECFE programs and courses are community education instruction offered on a noncredit basis.

Relator correctly points out that the legislature amended the statute in 1983 to include as “public employees” most K-12 teachers regardless of how many hours they work per week. 1983 Minn. Laws ch. 322, § 1. But the legislature, in the same amendment, also carved out the explicit exception for part-time employees teaching noncredit community education programs and courses. Id. (amending MinmStat. § 179A.63, subd. 7 (1982)).

Moreover, the legislative history of the 1983 amendment is plainly equivocal. As relator concedes, the legislative history does not indicate whether the legislature discussed or considered the amendment’s effect on part-time ECFE teachers. Relator’s contention that the exception for noncredit community education instruction was targeted at adult “value-added” or secondary education courses is, therefore, pure speculation and conjecture.

Relator also posits that there is no reason why part-time ECFE teachers should be treated differently than their part-time K-12 and full-time ECFE colleagues. Indeed, under our construction of the statute, full-time ECFE teachers are public employees, whereas part-time ECFE teachers will not be public employees. The scope of a statute, however, is the province of the legislature, not the courts. In re Welfare of J.R.Z., 648 N.W.2d 241, 248 (Minn.App.2002) (stating that “the decision concerning the reach of the statute rests with the legislature”); Ullom v. Indep. sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn.App.1994) (suggesting that courts cannot add to a statute “what the legislature purposely omits or inadvertently overlooks” (quotations omitted)). The legislature had the opportunity in 1983 to specifically include all teachers, including all community education teachers, within the definition of “public employee.” It did not.

DECISION

The Bureau did not err when it concluded that early childhood family education programs and courses are community education instruction offered on a noncredit basis. Consequently, the Bureau did not err when it concluded that early childhood family education teachers who do not satisfy the minimum hour requirement of Minn. Stat. § 179A.03, subd. 14(e), are not “public employees” under PELRA.

Affirmed.

LANSING, Judge

(dissenting).

I respectfully dissent. I agree with the majority’s analysis that the statutory language at issue, Minn.Stat. § 179A.03, subd. 14 (2000), is neither technical nor subject to an agency’s longstanding interpretation. But I disagree that subdivision 14, clause (i) of section 179A.03 unambiguously excludes parttime licensed teachers in the Early Childhood Family Education (ECFE) program from the definition of public employee.

It is undisputed that the Chisholm School District is a public employer, that ECFE is funded through community education, and that only licensed teachers may be employed for ECFE programs. Under Minn.Stat. § 179A.03, subd. 14, subject to specific exceptions, any person employed by a public employer is a public employee. One of the exceptions is parttime employees whose service does not exceed a minimum number of hours. Id., subd. 14(e). But this exception does not apply to

(i) [a]n employee hired by a school district or the board of trustees of the Minnesota state colleges and universities except at the university established in section 136F.13 or for community services or community education instruction offered on a noncredit basis: (A) .to replace an absent teacher or faculty member who is a public employee, where the replacement employee is employed more than 30 working days as a replacement for that teacher or faculty member; or (B) to take a teaching position created due to increased enrollment, curriculum expansion, courses which are a part of the curriculum whether offered annually or not, or other appropriate reasons[.]

Id., subd. 14, cl. (i).

The term “community education instruction offered on a noncredit basis” is ambig: uous both in text and context because elementary and early childhood education do not have a credit certification system. The word “noncredit” presupposes a credit-noncredit distinction that does not exist in elementary and early childhood education but does apply to secondary and postsec-ondary education.

When a statute speaks with clarity in limiting its application to specifically enumerated subjects, its application should not extend to other subjects. Martinco v. Hastings, 265 Minn. 490, 495, 122 N.W.2d 631, 637 (1963). But when the language of a statute is ambiguous, the appellate court must “determine the probable legislative intent and give the statute a construction that is consistent with that intent.” Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986) (citations omitted).

Education-Minnesota Chisholm and the Chisholm School District do not disagree on the legislature’s purpose for adding “community education instruction offered on a noncredit basis” to subdivision 14. The phrase was part of an act with the stated purpose of expanding the definition of public employee to add certain postsec-ondary teachers to the other parttime teachers already included in the definition. 1983 Minn. Laws ch. 322, § 1. The accompanying restriction for “community education instruction offered on a noncredit basis” essentially excluded adult education courses that did not provide formal or institutional credit.

Consistent with the stated purpose for the amendment, the act inserted “faculty member” in two places, inserted references to the community college board and state university board in several places, and excluded “individuaos] hired to teach one course for up to four credits for one quarter in a year.” Id. The restriction for instruction offered oh a noncredit basis was not aimed at teachers in the preschool ECFE program and should not be applied to exclude those teachers from the teachers’ bargaining unit.

Finally, including the parttime ECFE teachers in the teachers’ bargaining unit is consistent with the statutory structure that permits teachers who teach parttime in the kindergarten and elementary school system to participate in the teachers’ bargaining unit without requiring a minimum number of service hours. It also achieves the logical result of allowing the parttime ECFE teachers to participate in the same bargaining unit with their fulltime ECFE counterparts. ' For all of these reasons, I dissent.

      .ECFE is based on the idea that the family provides a child’s first and most important learning environment, and parents are a child’s first and most significant teachers. ECFE works to strengthen families and enhance the ability of all parents to provide the best possible environment for the healthy growth and development of their children. Early Childhood Family Education (ECFE), at http://children.state.mn.us/ecfi/ecfe.htm (last modified Apr. 25, 2001). See generally Minn. Stat. § 124D.13 (2000).

      . Minnesota law requires ECFE teachers to hold teacher’s licenses. Minn.Stat. § 122A.26, subd. 2 (2000) ("A person who teaches in an early childhood and family education program which is offered through a community education program * * * shall continue to meet licensure requirements as a teacher.”).

      . Education Minnesota-Chisholm is the exclusive bargaining representative for teachers in Independent School District No. 695.

      . See, e.g., In re Petition for Clarification by Stewartville Educ. Ass'n, BMS No. 87-PR-5 (Oct. 7, 1986) (concluding that full-time ECFE teachers are “public employees” because they satisfy the statute's minimum hour requirement and whether they teach noncredit courses is irrelevant).

      . A replacement teacher, however, must work more than 30 days as a replacement to qualify as a public employee. Minn.Stat. § 179A.03, subd. 14, cl. (i)(A).

      . The Bureau relied on three prior Bureau orders as precedent, but, as relator argues, none of these cases directly addressed the definition of "noncredit." Only two cases are specifically relevant to this appeal. In the first case, the Bureau concluded "community education instructors of non-degree credit classes are public employees within the meaning of ⅜ * * PELRA.” In re Petition for Clarification by Robbinsdale Fed'n of Teachers, BMS No. 84-PR-591-A (Mar. 2, 1984) (emphasis added). The Bureau also recognized in dictum, however, "that the part-time (e) and temporary (f) exclusionary clauses apply to units of community education instructors teaching noncredit courses.” Id. In the second case, the Bureau apparently assumed that ECFE teachers provided "non-credit instruction,” and were therefore subject to the minimum hour requirement of Minn.Stat. § 179A.03, subd. 14(e). In re Petition for Clarification by Elk River Educ. Ass'n, BMS No. 93-PCL-973 (May 27, 1993).


author: HARTEN, Judge.

text:
    STATE of Minnesota, Appellant, v. Arthur Jab JONES, Jr., Respondent.
    No. C4-02-561.
    Court of Appeals of Minnesota.
    Aug. 13, 2002.

      Mike Hatch, Attorney General, St. Paul, and Jay M. Heffern, Minneapolis City Attorney, Julie L. Delgado O’Neil, Assistant City Attorney, Minneapolis, for appellant.
    Leonardo Castro, Chief, 4th District Public Defender, Barbara S. Isaacman, Assistant Public Defender, Minneapolis, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, RANDALL, Judge, and HARTEN, Judge.
   OPINION

HARTEN, Judge.

The state challenges a pretrial order suppressing evidence of driving after revocation and failure to provide proof of insurance. The state argues that the district court erred in ruling that the applicable traffic code provision prohibits lane changes without signaling only on highways, not on city streets, and therefore the police did not have a lawful basis to stop respondent’s vehicle. Because we find that the applicable statute requires a motorist to signal lane changes on city streets, we reverse.

FACTS

Under Minnesota law,

[n]o person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in this section, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a highway unless and until the movement can made with reasonable safety after giving an appropriate signal in the manner hereinafter provided.

Minn.Stat. § 169.19, subd. 4 (2000).

On 18 December 2001, Minneapolis police officers observed respondent Arthur Jones, Jr. change lanes without signaling while driving on a city street. The officers stopped respondent’s vehicle. Because respondent was unable to provide the officers with a driver’s license or proof of insurance, respondent was issued citations for failing to provide proof of insurance, Minn.Stat. § 169.791, subd. 2 (2000), and driving after revocation, Minn.Stat. § 171.24, subd. 2 (2000).

At a subsequent district court hearing, the parties submitted the case on stipulated facts. The district court found that Minn.Stat. § 169.19, subd. 4, was ambiguous as to whether it applies to highways only or highways and city streets and construed the statute against the state. Concluding that respondent was driving on a city street and not a highway, the district court held that the stop of respondent’s vehicle was invalid. The state appeals.

ISSUE

Does Minn.Stat. § 169.19, subd. 4, require motorists driving on city streets to signal lane changes?

ANALYSIS

Generally, this court does

not overturn a pretrial order of the district court unless the state demonstrates clearly and unequivocally that the trial court erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.

State v. Robb, 605 N.W.2d 96, 99 (Minn.2000) (quotation omitted). But in cases where, as here, the district court’s finding is based on an interpretation of law, we review de novo. Id. at 99.

Police officers stopped respondent motorist after they observed him change lanes without signaling on Hennepin Avenue. Respondent argues that this was an invalid stop because Minn.Stat. § 169.19, subd. 4, requires motorists to signal lane changes on “highways,” not streets. The traffic regulations define a “[sjtreet or highway” as

the entire width between boundary lines of any way or place when any part thereof is open to the use of the public, as a matter of right, for the purposes of vehicular traffic.

Minn.Stat. § 169.01, subd. 29 (2000). Thus, the statute gives a single definition to “street or highway.” The state asserts that this single definition indicates that the legislature intended that “street” and “highway” be applied interchangeably throughout the traffic code to any area open to public vehicular traffic, which would include a city street.

Respondent argues that the district court correctly interpreted Minn.Stat. § 169.19, subd. 4, because the statute requires the driver to signal a turn on all roadways but only to signal lane changes on highways. The traffic regulations define “roadway” as part of a “highway,” specifically “that portion of a highway improved, designed, or ordinarily used for vehicular traffic.” Minn.Stat. § 169.01, subd. 31 (2000). Accordingly, any use of the word “roadway” in Minn.Stat. § 169.19, subd. 4, encompasses the definition of “highway.” Following respondent’s definition of “highway” as excluding a city streets, a motorist would not be required to signal a turn at an intersection or when making a lane change on a city street.

In interpreting statutes, this court may assume that the legislature did not intend an absurd result. See Minn.Stat. § 645.17 (2000). Requiring a motorist to signal a turn or a lane change only on highways and not busy city streets would be an absurd result.

Moreover, assuming, without deciding, that section 169.19, subd. 4, is ambiguous, the ambiguity is not resolved against the state. Admittedly, ambiguity in criminal statutes should be resolved in favor of lenity towards a defendant. State v. Orsello, 554 N.W.2d 70, 74 (Minn.1996). However, traffic regulations in Minnesota are petty misdemeanors unless otherwise specified Minn.Stat. § 169.89, subd. 1 (2000). Petty misdemeanors are not considered crimes. Minn. R.Crim. P. 23.06. We have specifically held that Minn.Stat. § 169.19, subd. 4, is not a penal statute and is not subject to the rule of strict construction. See State v. Bissonette, 445 N.W.2d 843, 845 (Minn.App.1989). Rather, we interpret a petty misdemeanor traffic regulation as we would interpret a public health and safety statute, that is, liberally to “effect [its] purpose.” Id. Respondent’s interpretation of the statute would endanger vehicles and pedestrians on streets, contrary to the purpose of the traffic regulations. See id. (petty misdemeanor traffic regulations are to be construed in favor of public safety). Accordingly, we conclude that section 169.19, subd. 4, prohibits changing lanes without signaling on city streets.

DECISION

Because respondent violated Minn. Stat. § 169.19, subd. 4, when he changed lanes without signaling on a city street, the police stop of his vehicle was lawful.

Reversed and remanded.


author: ROBERT H. SCHUMACHER, Judge.

text:
    STATE of Minnesota, Appellant, v. Travis Wade KOENIG, Respondent.
    No. C4-02-303.
    Court of Appeals of Minnesota.
    Aug. 20, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for appellant.
    Joseph S. Friedberg, Minneapolis, MN; and Lisa Lodin Peralta, Minneapolis, MN, for respondent.
    Considered and decided by PETERSON, Presiding Judge, SCHUMACHER, Judge, and MINGE, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

This appeal is from a pretrial order dismissing two counts of a three-count complaint against respondent Travis Koenig. The state argues that the trial court clearly erred in dismissing for lack of probable cause Count II, charging solicitation of a child to engage in sexual conduct. We affirm.

FACTS

The state filed a complaint alleging that respondent Travis Koenig used a telephone chat line service on the evening of June 9, 2001, where he listened to a message posted by two juvenile girls, R.P. and J.L. The girls represented their ages to be 18 and 19. Koenig left a responsive message and later talked “live” with R.P. Koenig eventually met with the girls and rented a hotel room, where he engaged in sexual intercourse with R.P. The state charged him with third-degree criminal sexual conduct for engaging in sexual penetration with R.P., soliciting a child (R.P.) to engage in sexual conduct under Minn. Stat. § 609.352, subd. 1, and engaging in lewd conduct in the presence of a minor (J.L.).

Koenig filed a motion to dismiss all three counts, citing different grounds as to each charge. At the omnibus hearing, Koenig testified that he placed a call to the Minnesota Casual Sex Dateline, an “electronic posting board” he had seen advertised. There he heard a message from “two hot chicks” from St. Louis Park who said they were into “sex parties.” Koenig testified that he left a message responding to this message and stating he “would like to take them up on the offer” and describing himself, including his age and appearance. Koenig testified that shortly after he received a voice mail message from “Shelly” asking what type of “sex stuff’ he would like to do.

Koenig testified that he responded with a voice mail message, and they began trading more explicit messages. They then agreed to speak “live” with each other. These conversations resulted in an agreement to meet at an arranged place. When Koenig met R.P. (“Shelly) and J.L., they drove to a hotel, where Koenig engaged in sexual intercourse with R.P. while J.L. stayed in the bathroom. Koenig allegedly later resumed sexual activity with R.P. in the presence of J.L.

The district court issued an order granting in part Koenig’s motion to dismiss. The court concluded that Koenig’s mistake-of-age defense presented a factual issue for the jury, and it denied his motion to dismiss Count I, which charged third-degree criminal sexual conduct. The court, however, granted Koenig’s motion to dismiss Count II, charging solicitation of a child to engage in sexual conduct, concluding that Koenig’s conduct did not meet the statutory definition of “solicit.” The court also dismissed count III, but the state does not challenge that ruling.

ISSUES

1. Has the state shown clearly and unequivocally that the ruling will have a critical impact on the outcome of the prosecution?

2. Did the district court clearly err in ruling that respondent did not “solicit” a child within the statutory definition of that term?

I.

In order to prevail in a pretrial appeal, the state must show clearly and unequivocally that the district court has erred in its judgment and that the ruling, unless reversed, will have a critical impact on the outcome of the prosecution. State v. Martin, 591 N.W.2d 481, 484 (Minn.1999). Koenig argues that the state has not shown that dismissal of the child solicitation count will have a critical impact.

[2,31 The state can show critical impact from the dismissal of a charge even though the defendant can be prosecuted under another statute. State v. Kiminski, 474 N.W.2d 385, 389 (Minn.App.1991), review denied (Minn. Oct. 11, 1991). Although the district court’s order allows the prosecution of Koenig for third-degree criminal sexual conduct to proceed, the proof of that charge presents different issues than the proof of solicitation. Koenig has a mistake-of-age defense to third-degree criminal sexual conduct that does not apply to the solicitation charge. Thus, the solicitation count could well turn out to be the only charge on which the state can obtain a conviction. This court has considered a pretrial appeal from an order that only partially dismissed a multi-count complaint. State v. Niska, 499 N.W.2d 820, 823 (Minn.App.1993), aff'd in part, rev’d in part on other grounds, 514 N.W.2d 260 (Minn.1994). Although Niska does not discuss critical impact, it reflects the view that even an order dismissing only one count of a multi-count complaint may have critical impact. We conclude that the or- ' der dismissing the solicitation count has critical impact.

II.

The state argues that the district court erred in dismissing Count II, charging Koenig with solicitation of a child to engage in sexual conduct. In order to prevail on this claim, the state must show clearly and unequivocally that the district court erred. Martin, 591 N.W.2d at 484. This court, however, reviews issues of statutory construction de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

The district court dismissed Count II, charging Koenig with solicitation of a child to engage in sexual conduct, in violation of Minn.Stat. § 609.352, subds. 1 and 2. That statute defines “solicit” as

commanding, entreating, or attempting to persuade a specific person in person, by telephone, by letter, or by computerized or other electronic means.

Minn.Stat. § 609.352, subd. 1(c). The district court concluded that Koenig’s conduct in participating with R.P. in a “mutual decision to converse and ultimately meet to engage in sexual intercourse” did not constitute “commanding, entreating, or attempting to persuade.”

The object of statutory construction is to give effect to the intent of the legislature. State v. Sebasky, 547 N.W.2d 93, 99 (Minn.App.1996), review denied (Minn. June 19, 1996). The general rule is that if the statutory language is plain and unambiguous the court must give effect to its plain meaning. State v. Furman, 609 N.W.2d 5, 6 (Minn.App.2000). This court has held that under a “plain reading” of the solicitation statute, two elements are required: 1) intent to engage in sexual conduct; and 2) the act of solicitation. State v. McGrath, 574 N.W.2d 99, 101 (Minn.App.1998), review denied (Minn. Apr. 14, 1998). Because Minn.Stat. § 609.352 is a .penal statute, it must be strictly construed. State v. Zacher, 504 N.W.2d 468, 473 (Minn.1993).

We conclude that Koenig did not “solicit” R.P. under the statutory definition of that term when he responded to the message she had posted. Furthermore, what occurred later, in the trading of voice-mail messages and then in telephone conversations, was a process of negotiation, not of solicitation by Koenig.

The statute defines “solicitfation]” of a child as “commanding, entreating, or attempting to persuade.” Minn.Stat. § 609.352, subd. 1(c). These terms imply a reluctant or resistive listener. See American Heritage Dictionary of the English Language 379, 615 (3rd ed.1992) (defining “command” as “[t]o direct with authority: give orders to” and “entreat” as “[t]o make an earnest request of’). Even “attempting to persuade” implies a listener in need of argument or reason. See id. at 1352 (defining “persuade” as “[t]o induce to undertake a course of action or embrace • a point of view by means of argument, reasoning, or entreaty”). Here, as the district court found, R.P. herself “initiated contact” by being the first to post a message, and that message unmistakably suggested a willingness to engage in sexual activity. R.P. did not exhibit any reluctance to discuss engaging in sexual activity, and her receptive attitude left no room for the “commanding, entreating, or attempting to persuade” that the statute prohibits.

The primary object of all statutory construction is to ascertain and give effect to the intention of the legislature. State v. Dendy, 598 N.W.2d 4, 6 (Minn.App.1999), review denied (Minn. Sept. 28, 1999). The legislative intent in enacting Minn.Stat. § 609.352, subd. 1(c) was plainly to prohibit any persuasive conduct by adults that might entice children to engage in sexual activity. Where the child’s own words or conduct lead so directly to the sexual activity that the adult does not engage in any form of persuasion, then the crime of solicitation has not occurred. The district court did not clearly err in dismissing Count II of the complaint.

DECISION

The district court did not clearly err in concluding as a matter of law that Koe-nig’s conduct did not constitute solicitation of a child to engage in sexual conduct.

Affirmed.