author: RUSSELL A. ANDERSON, Chief Justice.

text:
    STATE of Minnesota, Respondent, v. Keith Hapana CROW, Appellant.
    No. A06-229.
    Supreme Court of Minnesota.
    April 19, 2007.

      Mary M. McMahon, Roseville, MN, for Appellant.
    Lori Swanson, Attorney General, Kimberly Ross Parker, Assistant Attorney General, St. Paul, MN, Michelle Ann Dietrich, Redwood County Attorney, Redwood Falls, MN, for Respondent.
   OPINION

RUSSELL A. ANDERSON, Chief Justice.

Appellant Keith Hapana Crow was convicted and sentenced in Redwood County District Court for the crime of aiding and abetting first-degree murder in the course of a kidnapping, in violation of Minn.Stat. §§ 609.185(a)(3), 609.05, subd. 1 (2006), for the death of Robert Berry, Jr. On appeal, through counsel, Crow argues that his conviction was barred by double jeopardy, that the admission of expert testimony was reversible error, that the evidence was insufficient to support the conviction, and that his sentence is unconstitutional. By pro se brief, Crow makes additional claims. We affirm.

On September 23, 2004, Crow, then age 22, arranged to have a party at Shelly Williams’ residence in Morton, Minnesota. At that time Crow and his 18-year-old girlfriend, Alicia Connor, were staying at his mother’s home on the Lower Sioux reservation. Crow made arrangements with Tony Winkelman for transportation, first to the local casino and later to the Morton residence for the party. Winkel-man, who had a Ford Expedition, regularly provided transportation for the residents of the Lower Sioux community. The party started around 10:30 p.m. and, because it was his party, Crow welcomed the guests as they arrived. The gathering grew to around 15 people and included 24-year-old Morris Pendleton, Jr., 19-year-old Vernon Jones, 17-year-old W.S., and 15-year-old J.P. Guests were drinking alcohol and smoking marijuana.

Berry, age 50, arrived at the party around midnight and soon confronted J.P. who was seated at the dining room table. Berry and J.P., the nephew of Berry’s common-law wife, did not get along. When the confrontation between Berry and J.P. started, Winkelman, who was also in the dining room, left with his wife. The confrontation escalated into a fist-fight and Berry threw J.P. to the floor. J.P. then called to Pendleton for help. Pendleton grabbed J.P., Crow grabbed Berry, there was punching and kicking, and Crow lost his glasses. When the fight ended, there was blood everywhere and Berry lay unconscious on the dining room floor. Pen-dleton went through Berry’s wallet, J.P. ended up with some of Berry’s jewelry, and Jones took the keys to Berry’s Chevrolet Tahoe.

At that point, besides Berry, there were only eight people left at the Morton residence: Crow, Connor, Pendleton, Jones, J.P., W.S., Williams and 15-year-old L.B. They got into Berry’s Tahoe and went for a ride, with Pendleton driving and Crow in the front passenger seat. Connor was in the back seat with Jones, J.P. and W.S., and Williams and L.B. were in the cargo area. During the ride, there was talk about what to do with Berry, starting with taking him home and leaving him passed out in his Tahoe. But then there was talk of killing Berry and throwing him in the river. Pendleton was concerned that Con-nor, Williams, or L.B. would say something about what had happened back at the Morton residence and told them not to tell anyone.

Pendleton drove the group to the west end of the reservation and then returned to the Morton residence where Berry remained unconscious on the dining room floor. Crow told Williams to unplug the phones and asked for a blanket, some rope, and a knife. Williams did not have any rope but showed him some blankets on a mattress downstairs and pointed to the kitchen. Crow instructed the men to wrap Berry in the blanket, which they did. All five men carried Berry out of the house, Crow opened the tailgate of Berry’s Tahoe and they placed him in the cargo area of the Tahoe. Crow told Williams and L.B. to clean up the blood, and Pendleton threatened harm to Williams’ son if she told anyone. The five men and Connor got back into the Tahoe and left. Williams tried to clean up the blood but it was too messy and she was too upset. Afterwards, the Winkelmans returned to the Morton residence, found a distraught L.B., and took her home.

Pendleton drove the Tahoe to an area by the Minnesota River where there was a steep embankment leading down to the river. During the ride, Connor heard Berry moaning. Pendleton backed the Tahoe up to the edge of the embankment and stopped. All five men jumped out and dragged Berry down to the river. Connor waited near the vehicle. A short time later, the five men started to return, with Pendleton in the lead, followed by Crow who complained that his shoes were muddy. J.P. returned last, shirtless, and Pen-dleton said, “[W.S.] got him good.”

Apparently having decided that they should burn the Tahoe, they drove around trying to find someone to follow them. They encountered two teenage girls who were at the party earlier in the evening. Crow, again in the front passenger seat, asked the girls to follow them, but the girls declined to do so. Pendleton drove to Winkelman’s house, dropped off Jones and W.S., and Crow yelled for Winkelman to come out and follow them. Pendleton then drove to his father’s home where he retrieved a gasoline can from the garage and returned to Winkelman’s house. As Wink-elman was outside explaining to Jones and W.S. that he was done driving for the night, Pendleton pulled the Tahoe into the driveway and Crow said, “Come on, give him a ride.” Winkelman eventually agreed to drive Jones and W.S., who told him they were going to meet Crow. Jones and W.S. told Winkelman to turn onto the dirt road leading to the river. But concerned there was something not “completely right,” Winkelman did not make the turn, and instead continued on the county road leading to the highway. Pen-dleton, however, proceeded down the dirt road toward the river, dropped Crow and Connor off, and drove a bit further with J.P. to the location where they set the Tahoe on fire.

The Tahoe had already caught the attention of a tribal police officer, and when the vehicle turned down the dirt road, the officer pulled into the entrance of the road and called for assistance. After a second officer arrived, the two officers drove their marked SUVs down the road where they saw a vehicle on fire. Believing the first officer’s SUV was Winkelman’s vehicle, Connor waved the vehicle down with her cell phone light. Within a minute or two, Crow came up beside Connor. The others fled. Connor and Crow told the officer that they had just been in a fight with some men who they met at the casino and paid for a ride home. The officer had Crow complete a written statement form and drove Connor and Crow to Crow’s mother’s house, at which time the officer noticed that Crow was not wearing shoes or socks.

During the investigation of the burned-out Tahoe, law enforcement officers learned of the fight at the house in Morton, found items at that house belonging to Berry, including his wallet containing identification, and received a call from a local resident who had seen blood and a blanket down by the river. After dragging the river, law enforcement officers recovered Berry’s body. The officers also found Crow’s boots and sweatshirt near the area of the burned-out Tahoe and his sweatpants in a wooded area near his mother’s house. Forensic testing of blood on the boots and clothing yielded profiles matching Berry’s DNA.

Meanwhile, Crow, Connor, and J.P. left the area in the early morning hours of September 24 and traveled to Glencoe where they stayed in a motel for several hours. From there they traveled to Minneapolis and then to Bemidji, where Crow dyed his hair blonde. After a few days, Crow and Connor “ditched” J.P. and traveled to Seattle. When Connor learned the police were looking for them, Crow and Connor boarded a bus bound for Minneapolis and were apprehended in Billings, Montana.

Crow was indicted by grand jury in Redwood County for first-degree premeditated murder, Minn.Stat. § 609.185(a)(1) (2006); first-degree felony murder in the course of a kidnapping, Minn.Stat. § 609.185(a)(3); first-degree felony murder in the course of an aggravated robbery, Minn.Stat. § 609.185(a)(3); and aiding and abetting the above offenses, Minn. Stat. § 609.05 (2006). Connor was also charged in connection with Berry’s death, but eventually pleaded guilty to aiding after the fact the offense of first-degree murder in the course of a kidnapping, as part of a plea agreement that conditioned her sentence upon truthful trial testimony. At Crow’s trial, Connor testified about what she saw and heard at the party in the early morning hours of September 24, during the two trips in the Tahoe, and at the river. Other party guests testified that they saw Crow push and punch Berry and kick him in the face or chest. The state also presented the physical evidence and forensic analysis of the evidence collected during the investigation of the homicide, including Crow’s boots and clothing with blood matching the victim’s DNA profile. The medical examiner testified that Berry’s body had 15 stab wounds to the chest and that death was caused by exsanguination due to the multiple stab wounds.

Witnesses for the defense included a forensic scientist who testified about the effects of methamphetamine for purposes of discrediting the testimony of one of the state’s witnesses and another witness who testified as to Crow’s character for generosity. Crow testified on his own behalf and denied taking part in the assault and murder of Berry. He said that when the fight broke out, he ran over to try to break it up. As he was trying to separate Berry and J.P., Pendleton got involved, catching Crow in a backswing and knocking off his glasses. Crow then got down on his hands and knees to look for his glasses, not knowing at that point that his glasses were broken. When the fight ended, he called for Connor and tried to find a ride to his mother’s house. He jumped into the front passenger seat of the only vehicle left at the house, thinking that he might be able to get a ride to his mother’s house. But Pendleton, who was in the driver’s seat, refused to take Connor and Crow to his mother’s house. At the river, Crow said that he and Connor jumped out of the SUV and stayed near the vehicle while the other men went down by the river. He explained that he lost his boots, which were too big and not laced very well, in a “real rough” area near the burning vehicle, and his sweatshirt got caught on some branches so he took it off when the tribal officer was rushing them to get into the back of her vehicle. He left town with Connor so that he could “lay low” until everything cooled down and then return to clear his name. But on learning that the police were looking for them, they decided to return anyway.

The jury found Crow guilty of aiding and abetting first-degree felony murder while committing a kidnapping and aiding and abetting second-degree intentional murder, and not guilty of the remaining offenses. The court entered judgment on the first-degree murder conviction and imposed the mandatory life sentence without the possibility of release. This appeal from the judgment followed.

I.

Crow argues that his first-degree murder conviction was barred by double jeopardy principles. At the close of the evidence and final arguments of counsel, the court instructed the jury that Crow had been charged with multiple offenses, that each offense was to be considered separately, and that the fact that the jury might find Crow guilty or not guilty as to one of the offenses “should not control your verdict as to any other offense.” See 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.23 (5th ed.2006). The court instructed the jury on the . three offenses charged in the indictment and, as agreed, on the lesser-included offense of second-degree intentional murder, and referred to the separate “guilty” and “not guilty” verdict forms that the jury would receive for each offense.

After several hours of deliberation, the jury informed the district court that it had reached a verdict. The clerk retrieved the verdict forms from the foreperson and read the verdict finding Crow guilty of the lesser offense, second-degree murder. As the court was about to poll the jury, the prosecutor asked the court if counsel could approach and, at a bench conference out of the hearing of the jury, pointed out that the jury had not returned signed verdict forms for each offense. The court asked the foreperson if the jury had reached verdicts on the other offenses, and the foreperson responded that it had done so. When asked if the jury had reduced those verdicts to writing, the foreperson responded that it had not. Following another bench conference, the court sent the jury back to the jury room with instructions to sign and return the remaining verdict forms.

The jury returned shortly with a question about what effect a finding of not guilty on one offense would have on the other offenses. In response, the district court, with consent of both counsel, reread certain instructions, including CRIM-JIG 3.23. The jury thereafter returned with signed verdicts finding Crow guilty of first-degree felony murder in the course of a kidnapping, not guilty of first-degree premeditated murder, and not guilty of first-degree felony murder in the course of aggravated robbery. The jury was polled and confirmed that their verdicts were unanimous. In reliance on Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), Crow argues that when the jury returned a verdict on a lesser-included offense and was silent on the greater offenses, there was an implied acquittal on the greater charges.

The Double Jeopardy Clause of the United States Constitution provides, “No person shall * * * be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. Jeopardy attaches when the jury is empan-elled and sworn in a jury trial. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (stating that in a jury trial, “jeopardy attaches when a jury is empanelled and sworn. In a nonju-ry trial, jeopardy attaches when the court begins to hear evidence.” (citations omitted)). An acquittal of an offense bars retrial for that offense, but double jeopardy does not bar retrial when a conviction is later set aside for trial error. See United States v. Ball, 163 U.S. 662, 671-72, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). In Green, the Supreme Court held that a conviction of a lesser offense constituted an implied acquittal of the greater offense, barring retrial of the greater offenses following a successful appeal of the lesser-offense conviction. Green, 355 U.S. at 190, 78 S.Ct. 221. In Green, the jury had returned a guilty verdict on the lesser offense but no verdict on the greater offense. The district court accepted the verdicts, entered judgment, and dismissed the jury. Id. at 186, 78 S.Ct. 221.

Unlike Green, Crow was not twice put in jeopardy for an offense following a jury trial and successful appeal. Further, “a verdict is not final for purposes of double jeopardy simply because it is announced by the jury foreman in open court.” United States v. Hiland, 909 F.2d 1114, 1138 (8th Cir.1990). Under Minnesota law, a verdict is not complete unless deliberations are over, the verdict is read in open court, and no dissent is expressed by the jury. Minn.Stat. § 631.17 (2006) (providing that if, after filing and reading the verdict, no disagreement is expressed by the jury, the verdict is complete). On return of a guilty verdict, the accused has the right to have the jury polled. Minn. R.Crim. P. 26.03, subd. 19(5). If the poll “does not conform to the verdict, the jury may be directed to retire for further deliberation or may be discharged.” Id. The record here establishes that the district court sent the jury back to the jury room before polling ever took place. The verdicts were not final until the jury completed and returned all verdict forms, the verdicts were read in open court, and the jury polled. There was no implied acquittal, and Crow’s conviction was not barred by double jeopardy.

II.

Crow asserts reversible error in the admission of opinion testimony of Dr. Paul Nora, the medical examiner who conducted the autopsy, as to the number of assailants. In a foundational hearing outside the presence of the jury, Dr. Nora testified that in his opinion, it was “more likely that there were multiple stabbers than one stabber.” He based this opinion on his evaluation of the wounds on the body as well as on “[cjommon sense and also the circumstances provided me by the investigators.” Using a mannequin and ruler as a knife, Dr. Nora demonstrated his theory, noting that “as you see, I’m sweating quite vigorously, this is quite an exercise, this is a workout. Most people are going to do this in the easiest fashion that they can, and in my opinion that represents to me more than one stabber.”

When the court asked if other forensic pathologists employed this analysis, Dr. Nora stated: “we use it all the time in our own office in terms of discussing a scenario. Whether or not other members of my — my collegial affiliation are willing to go ahead and get on the stand and say that, I can’t answer that.” Following the hearing, Dr. Nora was permitted to repeat the demonstration for the jury and provide his opinion on multiple assailants. Dr. Nora also said that it was “[ajbsolutely” possible that there was just one assailant. On cross-examination, he stated that he “never said that it had to be multiple stabbers” and acknowledged that the prosecution had arranged his transportation from Michigan to Minnesota for this trial.

In response to Dr. Nora’s testimony, defense counsel presented the testimony of Dr. Lindsey Thomas who testified that a determination of the number of assailants involved in a homicide by stabbing is beyond the expertise of a medical examiner: “[TJhere isn’t really any way we can tell based on the wounds how many people were involved in a stabbing. I mean, sometimes we can get an idea about if different knives were used, but still that wouldn’t tell anything about whether it was one person with multiple knives or not.”

Expert testimony is admissible if it will assist the trier of fact in evaluating evidence or resolving factual issues. See State v. Blanche, 696 N.W.2d 351, 372 (Minn.2005). A qualified expert may testify in the form of an opinion if the expert’s “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Minn. R. Evid. 702. The opinion, however, “must have foundational reliability. In addition, if the opinion or evidence involves novel scientific theory, the proponent must establish that the underlying scientific evidence is generally accepted in the relevant scientific community.” Id. The district court, which has broad discretion to admit expert testimony, State v. Lopez-Rios, 669 N.W.2d 603, 612 (Minn.2003), must also determine whether the testimony is relevant, and whether its prejudicial effect substantially outweighs its probative value. State v. Grecinger, 569 N.W.2d 189, 193 (Minn.1997).

Generally, a forensic pathologist may testify “to things such as the number and extent of the wounds, the amount of bleeding, * * * whether the wounds could or could not have been the result of accident, the cause of death, and so forth.” State v. Chambers, 507 N.W.2d 237, 239 (Minn.1993); see generally Andre A. Moenssens, Ray Edward Moses & Fred E. Inbau, Scientific Evidence in Criminal Cases 186-87 (1973) (discussing typical determinations made by the pathologist in cases of cutting and stabbing). However, a pathologist may not testify to matters beyond his expertise. See, e.g., State v. Bauer, 598 N.W.2d 352, 369 (Minn.1999) (affirming district court’s confinement of pathologist’s testimony to limits of his expertise).

Crow argues that the admission of Dr. Nora’s multiple-assailant testimony failed the foundational reliability and helpfulness criteria of Rule 702, and this appears to be a legitimate complaint. We need not determine, however, whether admission of this testimony was an abuse of discretion because error, if any, was harmless. Cf. Lopez-Rios, 669 N.W.2d at 613 (holding that error in the admission of gang expert testimony was harmless). The testimony was equivocal at best; the pathologist was effectively cross-examined; Crow called his own expert in rebuttal; he was charged with accomplice liability; and there was no reasonable possibility that the expert’s testimony substantially influenced the guilty verdict.

III.

Crow argues that the evidence was insufficient to support the jury’s verdict. Our review of the sufficiency of the evidence is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We will not disturb the verdict if the jury, while acting with due regard for the presumption of innocence and requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense, given the facts in evidence and the legitimate inferences that could be drawn therefrom. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn.2004); State v. Robinson, 604 N.W.2d 355, 365-66 (Minn.2000).

Crow asserts that the state failed to establish accomplice liability. A person is criminally liable for a crime committed by another if he intentionally aids, advises, hires, counsels, or conspires with another person, or otherwise procures another person to commit the crime. Minn. Stat. § 609.05, subd. 1 (2006). To impose liability under the aiding and abetting statute, the state must show that the defendant played a knowing role in the commission of the crime. State v. Gates, 615 N.W.2d 331, 337 (Minn.2000). Mere presence at the crime scene does not alone prove that a person aided or abetted, because inaction, knowledge, or passive acquiescence do not rise to the level of criminal culpability. See id.; State v. Russell, 503 N.W.2d 110, 114 (Minn.1993). “However, active participation in the overt act that constitutes the substantive offense is not required, and a defendant’s presence, companionship, and conduct before and after an offense is committed are relevant circumstances from which the jury may infer criminal intent.” Gates, 615 N.W.2d at 337.

Here, evidence of Crow’s knowing role in the commission of first-degree murder (kidnapping) and circumstances from which criminal intent may be inferred included testimony that Crow sought and obtained a blanket; that he directed the other men to wrap the victim in the blanket; that all five men carried the victim out of the house; that Crow opened the tailgate of the victim’s SUV so they could place the victim in the cargo area; that Crow directed Williams and L.B. to clean up the blood in the residence; that all five men traveled in the SUV to the location in Redwood County where the victim was dragged down an embankment to the river; that all five men went down to the river bank where the victim was stabbed; that after the group returned to the reservation, Crow aided in attempts to get someone to follow them to where the Tahoe was set on fire; that he abandoned his boots and sweatshirt near the burning vehicle; and that both items had blood matching the victim’s DNA profile. There was also evidence of flight and an attempt by Crow to persuade Connor to withdraw her plea so that she would not have to testify against him. Viewed in a light most favorable to the verdict, there was ample evidence to support the jury’s finding of guilt.

IV.

Crow argues that his sentence violates the Cruel or Unusual Punishment Clause of the Minnesota Constitution. Minn. Const. art. I, § 5. The district court sentenced Crow under Minn.Stat. § 609.106, subd. 2(2) (2006), which mandates a life prison term without the possibility of release for a person convicted of committing first-degree murder during the course of a kidnapping, in violation of Minn.Stat. § 609.185(3). “Statutes are presumed constitutional, and a person challenging a sentence as cruel or unusual ‘bears the “heavy burden” * * * of showing that our culture and laws emphatically and well nigh universally reject’ the sentence.” State v. Heden, 719 N.W.2d 689, 698 (Minn.2006) (citations omitted).

Crow argues that the statute is unconstitutional as applied to him, relying on cases related to whether the removal or confinement of the victim for purposes of committing a rape or murder was sufficient, or criminally significant, to constitute a kidnapping. See, e.g., State v. Earl, 702 N.W.2d 711, 722-23 (Minn.2006); State v. Welch, 675 N.W.2d 615, 620-21 (Minn.2004); State v. Smith, 669 N.W.2d 19, 32-33 (2003). Because the removal in this case was criminally significant, this line of cases is inapposite.

Crow further asserts that the sentence unfairly exaggerates the criminality of his conduct where he was acquitted of premeditated murder and was not a participant in the homicide. But the punishment for both first-degree premeditated murder and first-degree murder committed during a kidnapping is now commensurate and we have already determined that the evidence was sufficient to support the conviction for which he was sentenced. Crow has not established his claim of cruel or unusual punishment. Cf. Heden, 719 N.W.2d at 698 (holding that life imprisonment without the possibility of release for first-degree murder while committing first-degree criminal sexual conduct did not violate the Cruel or Unusual Punishment Clause).

V.

By pro se supplemental brief, Crow asserts constitutional error in the admission of out-of-court statements, pros-ecutorial misconduct, and judicial bias. The out-of-court statements to which Crow refers were not testimonial and therefore not subject to exclusion under Crawford v. Washington, 541 U.S. 36, 61, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crow asserts the prosecutor “made a point to say prison” in cross-examination about a prior conviction, but we found no such reference in our review of the record. Crow’s remaining claims of improprieties were properly ruled upon by the district court. Criminal defendants have a constitutional right to be tried before a fair and impartial judge. Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). The Due Process Clause requires that a defendant receive a “fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of his particular case.” Id. (quotation and citation omitted). We have independently reviewed the record and are satisfied that Crow had a fair trial before an impartial judge.

Affirmed.

      . In a separate trial, Morris Pendleton, Jr., was also convicted for the first-degree murder of Berry. We affirmed that conviction in State v. Pendleton, 725 N.W.2d 717 (Minn.2007).

      . Dr. Nora, a family practitioner for 12 years, returned to school in 1999, did a pathology residency and then a 1-year fellowship in forensics in Detroit. He was employed by the Ramsey County Medical Examiner’s Office for 23 months, after which he returned to Michigan where, at the time of this trial, he was employed as a medical examiner in Oakland County, Michigan.

      . Dr. Thomas has been a coroner since 1987 and is also a pathologist with the Regina Medical Center.

      . In challenging the evidentiary basis for his conviction, Crow asserts undue prejudice in the exclusion of testimony of his cultural witness to explain how the value and belief systems within the Native American community operate. As the district court concluded, the proposed testimony would not have been helpful to the jury in the resolution of Crow’s guilt. See United States v. Sayakhom, 186 F.3d 928, 936 (9th Cir.1999) (affirming the exclusion of testimony of cultural expert from Laos where proffered testimony would not have helped the jury).

      . In 2005, the legislature expanded the list of first-degree murder convictions subject to mandatory life without release. Act of June 2, 2005, ch. 136, art. 17, § 9, 2005 Minn. Laws 903, 1127.


source: Caselaw Access Project

author: KLAPHAKE, Judge.

license: Public Domain

text:
    AUTO OWNERS INSURANCE COMPANY, Respondent, v. Chong Suk PERRY, Appellant.
    No. A06-1235.
    Court of Appeals of Minnesota.
    April 17, 2007.

      Judith Mlinar Seeberger, Reding & Pit-ney, PLLP, Lake Elmo, MN, for respondent.
    Michael A. Bryant, Bradshaw & Bryant, P.A., Waite Park, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge, KLAPHAKE, Judge, and SHUMAKER, Judge.
   OPINION

KLAPHAKE, Judge.

Following the death of Daniel Savage in early 2005, appellant Chong Suk Perry sought survivor’s economic loss benefits from Savage’s insurer, respondent Auto Owners Insurance Company. Respondent denied appellant’s request on the basis that she was not a survivor within the meaning of the insurance policy because she was not Savage’s “dependent.” Appellant sought arbitration, which the district court stayed after respondent filed a complaint in district court seeking a declaratory judgment to determine whether appellant qualified as a dependent. The district court granted respondent’s motion for summary judgment, concluding that appellant did not qualify as a dependent under the insurance policy and that the policy met the minimal coverage provisions required by the Minnesota No-Fault Act. We affirm.

FACTS

On December 23, 2004, Daniel Savage was fatally injured in an automobile accident while driving a vehicle owned and insured by his employer, Kincaids Cars, Inc. Respondent provided personal injury insurance coverage to Savage’s survivors. As a result of the accident, respondent paid out $20,000 in medical benefits and $2,000 in non-medical funeral benefits.

At the time of Savage’s death, appellant and Savage had lived together for seven years. According to appellant, she and Savage shared some expenses and a joint bank account, but she was financially dependent on him due to her inadequate income. Appellant made a claim to respondent for survivor’s economic loss benefits, which respondent denied on the basis that she did not meet the definition of a “dependent” within the meaning of the policy.

Respondent’s policy provides for “survivors economic loss benefits” that includes “loss ... of money or tangible things of economic value, not including services, that surviving dependents would have received from the eligible injured person for their support during their dependency.” The policy defines “dependent” as follows:

1. Dependent means:
a. the deceased person’s surviving spouse who resided with the deceased person at the time of his or her death;
b. a child of the deceased person while under the age of 18 years or while over that age but physically or mentally incapacitated from earning provided:
(1) the child resided with the deceased person; or
(2) received support regularly from the deceased person;
at the time of his or her death.
Dependency of the surviving spouse ends at remarriage or death. The dependency of a child who is physically and mentally able to earn ends when the child attains majority, marries or otherwise becomes emancipated or dies.

After respondent denied appellant’s claim for economic loss benefits, appellant petitioned for no-fault arbitration, but the arbitration was stayed pending district court determination of the coverage issue. Respondent initiated a declaratory judgment action and later moved for summary judgment; the district court granted the motion, ruling that appellant did not meet the definition of “dependent” under the terms of the insurance policy and that the policy did not impermissibly restrict coverage in violation of the no-fault act.

ISSUE

Did the district court err in granting summary judgment to respondent because appellant did not meet the definition of a “dependent” for the purpose of receiving survivor’s benefits under respondent’s policy and the policy did not impermissibly restrict coverage under the Minnesota No-Fault Act?

ANALYSIS

The district court shall grant summary judgment if the pleadings, discovery, and affidavits show that there are no genuine issues of material fact and that either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. “Generally, construction of a written contract is a question of law for the district court and therefore summary judgment is particularly appropriate.” Knudsen v. Transp. Leasing/Contract, Inc., 672 N.W.2d 221, 223 (Minn.App.2003), review denied (Minn. Feb. 25, 2004). If the contract is unambiguous when the language of the contract is given its plain and ordinary meaning, construction of the contract is a matter for the court and summary judgment is proper. Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346-47 (Minn.2003). We will enforce an unambiguous insurance policy exclusion unless it omits coverage required by law or violates an applicable statute. Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn.1998).

In interpreting respondent’s insurance policy, the district court concluded that appellant was ineligible for survivor’s economic loss benefits because she was neither a spouse nor a child of Daniel Savage and therefore did not meet the definition of “dependent” under the terms of the policy. We observe no error in this interpretation. The policy clearly and simply defines “dependent” as either a “surviving spouse” or “child of the deceased person.” See Colangelo v. Norwest Mortgage, Inc., 598 N.W.2d 14, 18 (Minn.App.1999) (“[wjhere terms of a contract are clear and unambiguous, there is no room for construction or interpretation”), review denied (Minn. Oct. 21, 1999). As a significant other or live-in girlfriend, appellant does not meet this definition of “dependent.” Further, even if the insurance policy could be construed to be ambiguous, she does not qualify as a “dependent” under the maxims of contract construction because the policy sets forth a class of persons who meet the definition of “dependent” and appellant is not enumerated in that class. See id. at 17 (“the expression of specific things in a contract implies the exclusion of all not expressed”).

The district court also examined whether the policy coverage was within the requirements of the Minnesota No-Fault Act, which requires insurers to offer insurance coverage that satisfies the compensation purpose of the act, including offering survivor’s economic loss benefits. See Iverson v. State Farm Mut. Auto. Ins. Co., 295 N.W.2d 573, 575 (Minn.1980); School Sisters of Notre Dame v. State Farm Mut. Auto. Ins. Co., 476 N.W.2d 523, 525 (Minn.App.1991); see also Minn.Stat. § 65B.41-.71 (2004). The act defines a “dependent” for the purposes of survivor’s economic loss benefits, as a “wife” or “husband” of the deceased, or “any child” of a deceased parent. Minn. Stat § 65B.44, subd. 6. This definition is nearly identical to the definition of “dependent” included in respondent’s policy.

Appellant claims that the last sentence of the act’s definition of “dependent” creates a broader class of dependents. This sentence states that “Questions of the existence and the extent of dependency shall be questions of fact, considering the support regularly received from the deceased.” Id. No Minnesota court has interpreted this language, although in Peevy v. Mutual Servs. Cas. Ins. Co., 346 N.W.2d 120, 122-23 (Minn.1984), the supreme court examined the language in holding that an ex-wife of an insured was entitled to survivor’s economic loss benefits when the insurer’s policy permitted the coverage. But see School Sisters of Notre Dame, 476 N.W.2d at 525 (holding that non-profit corporation could not be construed as a dependent for purposes of the act). After giving various readings to the statute based on its language, legislative history, legal expert commentary, and comparison of the statute to the language of other statutes, the supreme court concluded that “[t]he preceding discussion makes clear that the survivor’s economic loss benefits statute is far from clear.” Peevy, 346 N.W.2d at 123. But absent a clear mandate in the language of respondent’s insurance policy, as in Peevy, or clear language in the no-fault act itself, we conclude that the district court properly ruled that the act does not offer a broader classification of “dependent” that would raise a question of fact regarding whether respondent’s policy should be read to include appellant as a “dependent” to satisfy the compensation purpose of the act. We therefore affirm the district court’s grant of summary judgment to respondent.

DECISION

Because appellant does not meet the definition of “dependent” under either respondent’s insurance policy or the Minnesota No-Fault Act, the district court properly ruled that she is not entitled to survivor’s economic loss benefits and granted summary judgment to respondent.

Affirmed.


author: TOUSSAINT, Chief Judge.

text:
    Daniel J. SCHEELER, Relator, v. SARTELL WATER CONTROLS, INC., Respondent, Department of Employment and Economic Development, Respondent.
    No. A06-715.
    Court of Appeals of Minnesota.
    April 24, 2007.

      Daniel J. Seheeler, Lewistown, MT, pro se, relator.
    Sartell Water Controls, Inc., Sartell, MN, for respondent.
    Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, St. Paul, MN, for respondent Department.
    Considered and decided by TOUSSAINT, Chief Judge; WRIGHT, Judge; and CRIPPEN, Judge.

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

   OPINION

TOUSSAINT, Chief Judge.

An unemployment law judge (ULJ) determined that relator Daniel J. Seheeler was not eligible for unemployment benefits. Relator seeks certiorari review of that determination; relator also moved this court for leave to offer proof of evidence not submitted before the ULJ’s determination. Because we see no error in the ULJ’s determination, we affirm; we deny the motion for leave to offer proof.

FACTS

Relator began work for respondent Sar-tell Water Controls, Inc. a/k/a DeZURIK Water Controls, in February 1979. In the summer of 2005, respondent wanted to reduce its workforce temporarily. It therefore offered employees the option of quitting for 90 days, after which they would be recalled, and told them respondent would not protest their .eligibility for unemployment benefits during this time. Relator chose this option and stopped work after July 2005. In September 2005, relator moved to Montana. Respondent recalled him to work in October 2005. Relator refused the recall and applied for unemployment benefits. An adjudicator for respondent Department of Employment and Economic Development determined that relator had good cause for refusing the recall and was entitled to unemployment benefits.

Respondent appealed and, following a January 2006 telephone hearing, a ULJ determined that relator was on voluntary leave of absence from July 31, 2005, to October 13, 2005, and was not eligible for benefits during that period, and that he quit his employment on October 14, 2005, and was not qualified for benefits thereafter.

Relator filed a request for reconsideration; the ULJ issued an order of affirmation of his previous decision. Relator challenges that decision.

ISSUES

1. Does Minn.Stat. § 268.085, subd. 13a(a) (2004), preclude eligibility for unemployment benefits for an employee who chooses not to perform work available with the employer for a period of time?

2. Does Minn.Stat. § 268.069, subd. 2 (2004), void an employer’s agreement that an employee who chooses not to perform work available with the employer for a period of time may apply for unemployment benefits without opposition from the employer?

ANALYSIS

Standard of Review

In reviewing decisions of a ULJ, this court exercises its independent judgment with respect to questions of law. See Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn.1989). Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). If a statute is unambiguous, a reviewing court applies the words according to their plain meaning and engages in no further construction. Reiter v. Kiffmeyer, 721 N.W.2d 908, 910 (Minn.2006).

1. Minn.Stat. § 268.085, subd. 13a(a) (2004)

“An applicant on a voluntary leave of absence shall be ineligible for unemployment benefits for the duration of the leave of absence.” Minn.Stat. § 268.085, subd. 13a(a) (2004). “A leave of absence is voluntary when work that the applicant can then perform is available with the applicant’s employer but the applicant chooses not to work.” Id. We see no ambiguity in this statute and therefore apply its words according to their plain meaning, eschewing further construction. See Reiter, 721 N.W.2d at 910. Like the ULJ, we conclude that relator was on a voluntary leave of absence from July 31, 2005, through October 13, 2005.

Respondent did not refer to the option it offered its employees of not working for a period of time as a voluntary leave of absence; it referred to the program as a “voluntary layoff.” Relator testified that respondent told him, “[Y]ou’re being placed on a 90 day voluntary layoff’ and that he “took the layoff.” Respondent’s human resources representative corroborated this: she testified that respondent “proposed with the union to have a 90 day voluntary layoff ... which [relator] signed up for.” But respondent’s “voluntary layoff’ was actually a “voluntary leave of absence” within the meaning of Minn.Stat. § 268.085, subd. 13a(a) (employee chooses not to perform work available with employer). The human resources representative answered, “Correct” when asked, “[A]s of July 29, [relator] could have continued work if he wanted to but he signed up for a lay off[?]” She again answered, “Correct,” when asked, “[I]f [relator] had not signed up he would have stayed working[?]” Because work was available with respondent and relator chose not to work, he was on a voluntary leave of absence within the meaning of Minn.Stat. § 268.085, subd. 13a(a), and is not eligible for benefits for that period.

2. Minn.Stat. § 268.069, subd. 2 (2004)

Relator argues that he is eligible for benefits because respondent told employees who chose the voluntary leave of absence that they could receive unemployment benefits without protest from respondent. But, because “Unemployment benefits are paid from state funds and shall not be considered paid ... by an employ-erf,] ... any agreement between an applicant [for benefits] and an employer shall not be binding on [the ULJ] in determining an applicant’s entitlement” to benefits. Minn.Stat. § 268.069, subd. 2 (2004). Again, we see no ambiguity in the statute and apply its words according to their plain meaning. See Reiter, 121 N.W.2d at 910; see also Rasidescu v. Comm’r of Econ. Sec., 644 N.W.2d 504 (Minn.App. 2002) (construing Minn.Stat. § 268.069, subd. 2, to hold that “Minnesota law makes clear that whether the employer pays for unemployment insurance, or whether the employer challenges the employee’s petition, has no bearing on whether or not the benefits are paid.”), review denied (Minn. July 16, 2002). No agreement between relator and respondent could have established relator’s eligibility for benefits.

Moreover, a “contract violating law or public policy is void.” Barna, Guzy & Steffen, Ltd. v. Beens, 541 N.W.2d 354, 356 (Minn.App.1995) (citation omitted), review denied (Minn. Feb. 27, 1996). Because the agreement between relator and respondent abrogated the ULJ’s legal right to decide eligibility for unemployment benefits, it is void.

Relator moves this court for leave to offer proof of evidence to be submitted on remand. In light of our affirmance of the UL J, the motion is denied.

DECISION

Relator chose not to perform work available with respondent. Under Minn.Stat. § 268.085, subd. 13a(a) (2004), this was a voluntary leave of absence, and relator was ineligible for benefits for that period. Under Minn.Stat. § 268.069, subd. 2 (2004), respondent’s agreement that relator could apply for benefits during the voluntary leave of absence- without opposition from respondent is void. We affirm the ULJ’s decision and, in light of that affirmation, deny relator’s motion for leave to offer proof of evidence to be submitted on remand.

Affirmed; motion denied.

      . Relator does not challenge the denial of benefits after October 14, 2005.


author: COLLINS, Judge.

text:
    In re APPEAL OF Jonnie Sue STALEY.
    No. A06-894.
    Court of Appeals of Minnesota.
    April 24, 2007.

      James T. Hanvik, Bassford & Hanvik Law Firm, P.A., Minneapolis, MN, for appellant Staley.
    Lori Swanson, Attorney General, Kristen M. Olsen, Assistant Attorney General, St. Paul, MN, for respondent Minnesota Department of Health.
    Considered and decided by KLAPHAKE, Presiding Judge; SHUMAKER, Judge; and COLLINS, Judge.
   OPINION

COLLINS, Judge.

This is an appeal from a district-court judgment affirming the final order of the Minnesota Commissioner of Health, which concluded that appellant abused a vulnerable adult, in violation of Minn.Stat. § 626.5572, subd. 2(b) (2006). We agree with the district court that the commissioner’s decision was supported by substantial evidence, was not arbitrary and capricious, and was not reached in violation of appellant’s right to procedural due process. But because we conclude that the commissioner’s decision is based on an error of law, we reverse.

FACTS

Appellant Jonnie Sue Staley started working for Trevilla of New Brighton, a nursing facility, as a nursing assistant in 1997. This dispute involves appellant’s interaction with a Trevilla resident, R.J., who qualified as a vulnerable adult under Minn.Stat. § 626.5572, subd. 21 (2000). R.J. was diagnosed with Korsakoffs Psychosis, dementia, depression, and adjustment disorder in 2001. These conditions affected R.J.’s short-term and long-term memory. R.J. required assistance using the toilet and often became agitated and anxious when nursing assistants performed personal-care services for him.

On April 11, 2002, appellant allegedly orally abused R.J. At midmorning that day, while her co-workers were on breaks, appellant was left alone to staff one of the units of Trevilla. When R.J. needed assistance in the bathroom, appellant was upset that she was the only nursing assistant on the floor. While assisting R.J., appellant reportedly yelled, “I forgot to put my ticking] gloves on and it’s your fault, now you’re going to [sh-t] all over my hands, you dumb [f-eker].” Within a few minutes, R.J.’s roommate, R.L., reported the incident to a nurse. R.L. was lying on his bed reading when the incident occurred. A curtain dividing the room prevented R.L. from seeing the bathroom, but the door to the bathroom was partially open, and R.L. could clearly hear what was said. R.L. also claimed that he heard a slapping sound and reported to the nurse that appellant slapped R.J. No one else is known to have overheard the incident.

R.J. was interviewed on the same day and replied that “no one was mean to him and no one slapped him.” There were no signs of injury to R.J. But according to the nurse who interviewed R.J., he was very confused and did not remember bowel movements during the day even though he had had two. The nurse and Department of Health investigator attributed R.J.’s conflicting memory of the incident to his dementia. Appellant was terminated for oral abuse the following day.

The Minnesota Department of Health conducted an investigation of the reported abuse as required by federal regulations and Minnesota’s Vulnerable Adults Act, Minn.Stat. § 626.557 (2006). A special investigator, who is also a registered nurse, examined relevant medical records and Trevilla’s documentation of the incident. The investigator also personally interviewed R.J. and R.L., as well as appellant and others of Tevilla’s staff. The investigator concluded: “The preponderance of [the] evidence indicates verbal and mental abuse did occur in connection with the [appellant] using a loud voice to call resident [R.J.] a ‘dumb [f-er]’ at approximately 10:45 a.m., on 4/11/02.” But the investigator also reported that the evidence “did not conclusively establish that [appellant] slapped [R.J.] The department submitted its finding of abuse to the Nursing Assistant Registry and the Minnesota Department of Human Services. Under federal law, this finding renders appellant ineligible for employment in a nursing facility.

Appellant’s request for reconsideration of the department’s finding of abuse was denied. Appellant then requested a fair hearing to appeal the department’s decision, and on December 10, 2004, a hearing was held before an agency referee. Both R.J. and R.L. died prior to the date of the hearing. Following the hearing, the referee concluded: “[T]here is not a preponderance of the evidence that the appellant verbally abused the vulnerable adult.” The referee recommended reversal of the department’s determination of vulnerable-adult abuse.

But the Minnesota Commissioner of Health did not adopt the referee’s recommendation. Instead, the commissioner credited R.L.’s statement, determined that vulnerable-adult abuse was proved by a preponderance of the evidence, and concluded that the department’s initial determination should be affirmed. Appellant then appealed the decision to the Ramsey County District Court, which affirmed the commissioner’s determination. This appeal follows.

ISSUES

I. Is the commissioner’s decision supported by substantial evidence?

II. Was the commissioner’s decision arbitrary and capricious?

III. Was appellant deprived of procedural due process?

IV. Does the commissioner’s determination violate public policy?

V. Is the commissioner’s decision affected by an error of law?

ANALYSIS

Minn.Stat. § 256.045 (2006) authorizes judicial review for a party aggrieved by an order of the Commissioner of Health. After review by the district court, we review the commissioner’s decision independently, giving no deference to the district court’s decision and being governed by the standards prescribed in the Minnesota Administrative Procedure Act (APA). Zahler v. Minn. Dep’t of Human Servs., 624 N.W.2d 297, 300-01 (Minn.App. 2001), review denied (Minn. June 19, 2001). The APA provides:

In a judicial review under sections 14.63 to 14.68, the court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the entire record as submitted; or
(f) arbitrary and capricious.

Minn.Stat. § 14.69 (2006). Agency decisions “enjoy a presumption of correctness.” Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977). Upon review, a court must exercise judicial restraint, lest it substitute its judgment for that of the agency. In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn.2001).

Ordinarily, our construction of a statute that resolves an issue on appeal does not necessitate addressing other issues presented. However, before reaching the dis-positive issue in this case, we choose to address appellant’s other arguments.

I.

The first issue is whether the commissioner’s decision is supported by substantial evidence in view of the entire record. The definition of “substantial evidence” is elusive; Minnesota courts have employed several formulations. In its oft-cited formulation, our supreme court defined “substantial evidence” as: “(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 464 (Minn.2002). “If an administrative agency engages in reasoned decision-making, the court will affirm, even though it may have reached a different conclusion had it been the factfinder.” Cable Commc’ns Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 669 (Minn.1984).

The question here is whether there is substantial evidence to support the commissioner’s finding that appellant actually said to R.J.: “I forgot to put my [f-cking] gloves on and it’s your fault, now you’re going to [sh-t] all over my hands, you dumb [f-cker].” Appellant contends that more than R.L.’s uncorroborated statement is needed to find substantial evidence to support the commissioner’s decision. We disagree.

R.J.’s roommate, R.L., reported appellant’s outburst within minutes after appellant assisted R.J. in the bathroom. What R.L. heard appellant say was documented the day of the incident, while the statement was fresh in R.L.’s memory. Medical records and interviews with a number of Trevilla employees who had personal and regular experience interacting with R.L. indicated that he was “oriented, reliable, and [did] not have a history of making false allegations.” R.L. was in close enough proximity to overhear appellant’s speech. Because R.J. was not competent to recall the event due to his memory impairment, R.L. was the only person to relate the incident. The commissioner found that R.L. had no reason to fabricate an allegation of abuse and did not credit appellant’s evidence offered to establish such a motive. “We defer to an agency’s conclusions regarding conflicts in testimony....” Blue Cross & Blue Shield, 624 N.W.2d at 278.

Furthermore, the record contains evidence of appellant’s propensity for swearing, including a Trevilla disciplinary measure signed by appellant and documented interviews with Trevilla employees. At the evidentiary hearing, appellant conceded her regular use of swear words while on the job. The record shows that appellant was previously warned for directing offensive language toward a resident (not R.J.). Appellant was also disciplined numerous times for disrespecting her supervisor. Although not conclusive, appellant’s documented history of swearing, insubordination, and offensive language enhances the likelihood that appellant made the statement to R.J. as reported.

Finally, a comparison of R.L.’s two interviews, conducted one month apart, supports the commissioner’s finding. R.L.’s depictions of the incident were substantially similar. In the first interview, R.L. reported the statement as quoted above and relied on by the commissioner. In the second interview, R.L. said that appellant swore because she forgot to put her gloves on and stated something like “If I get [sh-t] on my bare hands, I’ll wipe my hands back on you.” R.L. added that appellant called R.J. a “dumb [f-cker].” As in the first interview, R.L. said that he heard a slap but that R.J. did not yell or scream out in response.

The record indicates that R.L. was reliable: He was physically and mentally competent to hear the statement and without motive to fabricate; his observation was reported and recorded promptly after appellant assisted R.J. in the bathroom; and the report he gave to investigators one month later was substantially similar to his initial report. Based on the record as a whole, we conclude that the commissioner’s decision regarding the facts of the incident is supported by substantial evidence.

II.

Appellant contends that the commissioner’s decision was arbitrary and capricious. An administrative decision is arbitrary and capricious if:

the agency relied on factors which the legislature had not intended it to consider, if it entirely failed to consider an important aspect of the problem, if it offered an explanation for the decision that runs counter to the evidence, or if the decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Trout Unlimited, Inc. v. Minn. Dep’t of Agric., 528 N.W.2d 903, 907 (Minn.App.1995), review denied (Minn. Apr. 27, 1995). A decision-is considered arbitrary and capricious if the decision “represents the agency’s will, rather than its judgment.” Id. (quotation omitted).

Here, appellant does not show that the agency considered factors that it should not have considered, that the agency entirely failed to consider an important part of the dispute, that the agency’s decision is inconsistent with the evidence, or that the decision is implausible and unattributable to the agency’s discretion. Appellant’s assertion that the commissioner’s decision is arbitrary and capricious is without merit. Contrary to appellant’s assertion, the commissioner’s decision is clearly attributable to her reasonable evaluation of the evidence, albeit negated by an error of law.

Appellant’s principal assertion is that “respondent expects a rubber stamp of its initial findings when it finds that maltreatment occurs, and in turn will rubber stamp the referee’s findings if they concur with its initial determinations.” But appellant fails to support her sweeping claim. In fact, the record demonstrates that the commissioner independently reviewed the referee’s recommendation and issued a reasoned memorandum. The commissioner’s memorandum thoroughly explained her disagreement with the referee’s determination. Appellant’s claim that the commissioner simply rubber stamps findings of abuse is unfounded.

Finally, appellant contends that the commissioner’s decision was arbitrary and capricious because the order “adopted verbatim the suggested modification of the referee’s order put forth by [respondent] .... ” Adopting “a party’s proposed findings and conclusions of law is not reversible error per se.” Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn.App.1992), review denied (Minn. Feb. 12, 1993). While a commissioner’s verbatim adoption of a party’s proposed findings or conclusions raises questions regarding whether the commissioner independently evaluated the evidence, there is no error if the commissioner’s findings and conclusions are “specific and sufficient enough to enable meaningful review.” See id.

Here, a comparison of the commissioner’s final order with respondent’s submitted exceptions to the referee’s recommended order indicates that the commissioner adopted significant portions of respondent’s proposed findings and conclusions. But the commissioner’s final order does not incorporate respondent’s submitted findings in every respect. Moreover, the commissioner’s accompanying memorandum meticulously analyzed the referee’s recommendation and explained the commissioner’s reasons for departing from the referee’s recommendation. The detail of the commissioner’s accompanying memorandum provides assurance that her decision was made after meaningful review and that the decision is the product of her independent judgment. We conclude that the commissioner’s decision was not arbitrary and capricious.

III.

We next address appellant’s argument that the commissioner’s decision violates her right to procedural due process. According to appellant, “respondent’s power to dismiss out of hand an impartial and informed referee’s well-reasoned and thorough findings and conclusions of law effectively denies appellant a ‘meaningful opportunity to present [her] case.’ ”

But appellant cites no law to the effect that the commissioner is obligated to adopt, or defer to, the referee’s findings and conclusions. In Blue Cross & Blue Shield, the Minnesota Supreme Court rejected a similar argument. There, the court concluded that “the agency decision-maker owes no deference to any party in an administrative proceeding, nor to the findings, conclusions, or recommendations of the ALJ.” Blue Cross & Blue Shield, 624 N.W.2d at 278. The supreme court reversed the “court of appeals’ ruling that deference should be accorded the recommendations of the ALJ.” Id. As the court observed, “[Hearing examiners’] functions are subordinate to a reviewing agency’s ... power.... [T]he agency is not bound by the findings and recommendations of the hearing examiner.” City of Moorhead v. Minn. Pub. Utils. Comm’n, 343 N.W.2d 843, 847 (Minn.1984) (quotation and citation omitted). Accordingly, appellant’s argument regarding the commissioner’s rejection of the referee’s recommendation is without merit.

More generally, appellant does not show that she was denied a meaningful opportunity to present her case, the hallmark of an individual’s right to due process of law. Appellant does not explain what process she was allegedly denied. Contrary to her assertion, the record establishes that appellant received notice and a meaningful opportunity to be heard at every level of the investigation and subsequent decision-making process. Appellant requested reconsideration of the department’s initial decision and was represented by counsel at an administrative hearing, where she was given the opportunity to present evidence. The record was then reviewed by the district court following appeal of the commissioner’s final order. We conclude that appellant’s right to procedural due process was not violated.

IV.

Appellant also argues that the commissioner’s decision “violates public policy.” Appellant cites an appended Newsweek article documenting the national shortage of nurses. Appellant cites no caselaw suggesting that this court should consider such policy arguments in this context. In fact, in other areas of the law in which policy considerations are relevant to our decision-making, we regularly require a well-defined and explicit public policy codified by the legislature before we will consider its relevance. Generalized policy interests are not sufficient. See, e.g., City of Brooklyn Ctr. v. Law Enforcement Labor Servs., Inc., 635 N.W.2d 236, 241 (Minn.App.2001), review denied (Minn. Dec. 11, 2001) (“To be applicable, the public policy exception must involve a policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” (quotation omitted)). Without more, appellant’s broad, conclusory, and unsubstantiated public-policy argument is without merit.

V.

We now reach the issue of whether the commissioner’s decision is affected by an error of law. When an agency bases its decision on statutory interpretation, we are presented with a question of law, which we review de novo. In re Denial of Eller Media Co.'s Applications for Outdoor Adver. Device Permits, 664 N.W.2d 1, 7 (Minn.2003).

The goal of statutory interpretation is to effectuate the intent of the legislature. Educ. Minn.-Chisholm v. Indep. Sch. Dist. No. 695, 662 N.W.2d 139, 143 (Minn.2003). If the meaning of a statute is unambiguous, then we interpret the statute’s text according to its plain language. Molloy v. Meier, 679 N.W.2d 711, 723 (Minn.2004). But if a statute is ambiguous, we apply other canons of construction to discern the legislature’s intent. See Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn.2002).

The Minnesota Vulnerable Adults Act mandates the reporting of “maltreatment” of vulnerable adults. Minn.Stat. § 626.557, subd. 1 (2006). “Maltreatment” includes abuse as defined under the Act. Minn.Stat. § 626.5572, subd. 15 (2006). The act defines “abuse” as

(b) [c]onduct which is not an accident or therapeutic conduct as defined in this section, which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to, the following:
(1) hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult;
(2) use of repeated or malicious oral, written, or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening;
(3) use of any aversive or deprivation procedure, unreasonable confinement, or involuntary seclusion, including the forced separation of the vulnerable adult from other persons against the will of the vulnerable adult ...; and
(4) use of any aversive or deprivation procedures for persons with developmental disabilities or related conditions not authorized under section 245.825.

Id., subd. 2(b) (2006).

Resolution of this issue turns on the meaning of “[c]onduct ... which ... could reasonably be expected to produce ... emotional distress” in subdivision 2(b). Id. Respondent argues, and the commissioner concluded, that appellant’s oral statement: “I forgot to put my [f-cking] gloves on and it’s your fault, now you’re going to [sh-t] all over my hands, you dumb [f-cker]” is such conduct within the meaning of the statute. We disagree.

Appellant seizes on the general standard identified in 2(b) and urges us to apply the text essentially without reference to subsections (1) through (4). But it is a cardinal rule of statutory interpretation that we read each statutory provision in reference to the whole statute. State v. Johnson, 713 N.W.2d 64, 66 (Minn.App.2006). As such, we do not interpret “[c]onduct ... which ... could reasonably be expected to produce ... emotional distress” in a vacuum or based on our subjective senses of the sorts of conduct that would likely produce emotional distress in another. Minn.Stat. § 626.5572, subd. 2(b). Here, the legislature has enumerated several examples of such conduct to direct our application of the statute. We must start with those examples to interpret the meaning of the operative language. If appellant’s statement satisfies an enumerated provision therein, the statement undoubtedly qualifies as abuse under the statute.

Subsection (2) is the only provision of the statute that arguably encompasses the conduct respondent alleges to be abuse here. Id., subd. 2(b)(2). Subsection (2) makes the “use of repeated or malicious oral, written, or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening” conduct which could reasonably be expected to produce emotional distress. Id. (emphasis added).

But appellant’s oral statement at issue is not afoul of the text of subsection (2). First, it is undisputed that there are no repeated statements at issue; neither was the sole statement malicious. To be malicious, conduct must be carried out with evil intent. See The American Heritage College Dictionary 837 (4th ed.2002) (defining “malicious” as “[hjaving the nature of or resulting from malice” and defining “malice” as “[a] desire to harm others or see others suffer”). Here, respondent made no such showing, the commissioner made no such finding, and respondent has not asserted that the statement was made with malicious intent. Moreover, other than the statement itself, there is no evidence in the record suggesting that the statement was malicious. Appellant’s statement alone does not necessarily evince an evil intent; the statement, albeit humiliating and disparaging to the recipient, may have stemmed from transitory frustration and been made without any intent to harm or discomfort R. J.

Because appellant’s statement was neither repeated nor malicious, for the statement to fall within the text' of subsection (2) it must constitute “treatment ... which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening.” Minn. Stat. § 626.5572, subd. 2(b)(2). At oral argument, respondent maintained that appellant’s statement was “treatment” within the meaning of subsection (2). We disagree. We do not doubt that a reasonable person would find appellant’s statement “disparaging, derogatory, humiliating [or] harassing,” but the oral statement alone cannot be construed as “treatment” within the meaning of subsection (2) consistent with accepted principles of statutory interpretation.

We construe a statute, whenever possible, “to give effect to all its provisions.” Minn.Stat. § 645.16 (2006). “[N]o word, phrase, or sentence should be deemed superfluous, void, or insignificant.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (quotation omitted). Respondent’s broad application of “treatment” strips the words “repeated” and “malicious” of their meanings and negates the first portion of the subsection, which makes “oral, written, or gestured language” conduct reasonably expected to produce emotional distress only if it is repeated or malicious. If respondent’s interpretation had been intended, the drafters would have omitted the first 16 words of subsection (2) and begun the subsection with the word “treatment.” We will not presume such inefficient draftsmanship on the part of the legislature. Appellant’s isolated non-malicious statement is not “treatment” within the meaning of subsection (2).

Respondent’s final argument is that the failure of the statement to fall under one of the enumerated subsections is not fatal because subdivision (b) does not limit the definition of conduct reasonably expected to produce emotional distress to subsections (1) through (4). Instead, the statute provides that the definition of abuse “in-clud[es], but [is] not limited to, the following [examples.]” Minn.Stat. § 626.5572, subd. 2(b). Based on the text of the statute, we agree with respondent that, theoretically, conduct need not satisfy one of the subsections to constitute abuse under the statute. And deciding what non-enumerated conduct falls within this general ambit necessarily involves the exercise of discretion. But that notwithstanding, subsections (1) through (4) are highly relevant to our interpretation of the more general statutory language, i.e., “[c]onduct ... which ... could reasonably be expected to produce ... emotional distress.” Id. Contrary to respondent’s argument, the legislature’s direction that the enumerated examples of abuse are illustrative is no license to disregard those provisions. Statutory construction is a “holistic endeavor.” United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371, 108 S.Ct. 626, 630, 98 L.Ed.2d 740 (1988). Our regard for the whole statute works to ensure that an isolated portion of a statute is not interpreted inconsistently with other portions of the same statute.

Here, we interpret the meaning of the more general statutory language in reliance on the type and character of the specific language in subsections (1) through (4). Subsections (1) through (4) describe the sorts of conduct that can reasonably be expected to produce emotional distress. Minn.Stat. § 626.5572, subd. 2(b)(1)-(4). Each of the subsections requires egregious conduct. Subsection (1) encompasses a physical attack on a vulnerable adult; subsection (2) describes the limited circumstances in which language, and treatment more generally, constitute abuse; while subsections (3) and (4) encompass deprivation procedures, unreasonable confinement, or the forced separation of a -vulnerable adult. Id. Moreover, part (a) of subdivision (2) identifies circumstances in which criminal acts constitute abuse. Id., subd. 2(a)(1)-(4). We do not think that appellant’s single and non-malicious statement can be construed as conduct likely to produce emotional distress without diminishing the high standards that subsections (I) through (4) set for a finding of abuse. The consequences of a finding of abuse are weighty. The entire statute clearly reflects a purpose to protect vulnerable adults, but while also ensuring that health-care workers are not subject to disqualification unless they have engaged in serious and egregious conduct.

We neither condone appellant’s behavior nor rule out other forms of employment discipline, including termination as occurred here, as available means to protect vulnerable adults and deter such offensive conduct. But we conclude that appellant’s isolated non-malicious statement is not, of itself, “[c]onduct ... which ... could reasonably be expected to produce ... emotional distress,” under Minn.Stat. § 626.5572, subd. 2(b).

DECISION

We agree with the district court that the commissioner’s decision was supported by substantial evidence, was not arbitrary and capricious, and did not violate appellant’s right to procedural due process. But because we conclude that the commissioner’s decision is affected by an error of law, we reverse.

Reversed.

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


author: HUDSON, Judge.

text:
    In the Matter of a PETITION FOR DECERTIFICATION OF AN EXCLUSIVE REPRESENTATIVE CERTAIN EMPLOYEES OF the UNIVERSITY OF MINNESOTA, UNIT 9, CROOKSTON, Minnesota, Respondent, University Education Association, Education Minnesota, Duluth, Minnesota, Respondent, v. UNIVERSITY OF MINNESOTA, Minneapolis, Minnesota, Relator.
    No. A06-892.
    Court of Appeals of Minnesota.
    April 24, 2007.

      Christina L. Clark, Harley M. Ogata, General Counsel, Education Minnesota, St. Paul, MN, for respondent University Education Association.
    Mark B. Rotenberg, General Counsel, Shelley Carthen Watson, Associate General Counsel, Minneapolis, MN, for relator University of Minnesota.
    Considered and decided by RANDALL, Presiding Judge; TOUSSAINT, Chief Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

This certiorari appeal by the University of Minnesota from the dismissal of a de-certification petition filed by a group of instructional employees at the university’s Crookston campus requires us to consider whether for decertification purposes the Outstate Instructional Unit, also known as Unit 9, is a single unit comprising instructional employees at the Duluth and Crook-ston campuses, or two units, one comprising Duluth instructional employees and another comprising Crookston instructional employees. The Bureau of Mediation Services concluded that Unit 9 is a single unit and it dismissed the petition reasoning that it lacked the required showing of support by 30% of instructional employees at both the Duluth and Crookston campuses. The university challenges the bureau’s determination, arguing that the appropriate unit for decertification purposes includes only Crookston instructional employees. By notice of review, respondent University Education Association challenges BMS’s determination that the university is a party to the proceedings. Based on the plain language of the decer-tification provision in Minnesota’s Public Employment Labor Relations Act, Minn. Stat. § 179A.12, subd. 3 (2004), we affirm.

FACTS

Minnesota’s Public Employment Labor Relations Act (PELRA) identifies 13 bargaining units for University of Minnesota employees. Minn.Stat. § 179A.11, subd. 1 (2004). The Outstate Instructional Unit, known as Unit 9, consists of all instructional employees located at the university’s Duluth campus (UMD). Id., subd. 1(9). Instructional employees at the university’s Morris, Waseca, and Crookston campuses may independently elect to join Unit 9 if a majority of eligible employees at a particular campus votes to be included and the election is conducted after UMD instructional employees have voted in favor of representation. Id. The commissioner of the Bureau of Mediation Services (the commissioner) must hold an election if an employee organization or group of employees at a particular campus files a certification petition supported by 30% of eligible employees at that campus. Id.

The instructional employees at the Duluth campus voted in favor of representation by respondent University Education Association, Education Minnesota (UEA) in 1980. UEA and the university are parties to a collective bargaining agreement governing the UMD faculty that is effective by its terms from July 1, 2008 through June 30, 2006. In October 2004, UEA filed a petition to represent instructional employees at the university’s Crookston campus (UMC). In January 2005, the UMC faculty voted to be included within Unit 9, which meant that they would be represented by UEA. In February 2005, the commissioner issued a certification of exclusive representative for Unit 9.

A year later, a group of UMC instructional employees filed a petition to decertify UEA as the exclusive representative, of UMC instructional employees. UEA moved to dismiss the petition, arguing that the university was not a party to the proceeding and that because Unit 9 is one unit for decertification purposes, the decertifi-cation petition — which was supported by 30% of UMC instructional employees only — was not supported by the required showing of interest (30% of all eligible employees within the Unit, including both the Duluth and Crookston campuses).

The Bureau of Mediation Services (BMS) ruled that the university was a party to the decertification proceeding, but it dismissed the petition, reasoning that Unit 9 was one bargaining unit that included UMC and UMD instructional employees and that the decertification petition was therefore unsupported by the required showing of interest. This certiorari appeal by the university follows.

ISSUES

I. Is the University of Minnesota a proper party to the decertification proceedings?

II. For purposes of decertification of an exclusive representative, is the Outstate Instructional Unit a single unit comprising Duluth and Crookston instructional employees or two units, one comprising Duluth instructional employees and another comprising Crookston employees?

ANALYSIS

An appellate court may reverse an agency decision if the decision reflects an error of law, if it is arbitrary, or if its findings are unsupported by the record. County of Scott v. Pub. Employment Relations Bd., 461 N.W.2d 503, 504 (Minn.App.1990), review denied (Minn. Dec. 20, 1990). Questions of statutory interpretation are subject to de novo review. See Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985) (stating that the construction of PELRA raises a question of law). Although an agency’s interpretation of a statute is “entitled to great respect,” appellate courts are not bound by an agency’s interpretation of a statute. Indep. Sch. Dist. No. 621 v. Pub. Employment Relations Bd., 268 N.W.2d 410, 412 n. 5 (Minn.1978).

I

UEA argues that the appeal must be dismissed because the university is not a proper party to the proceedings and lacks standing. We disagree.

The rules adopted by the commissioner in connection with the administration of PELRA define a party as “any exclusive representative, employee organization, or public employer recognized by the commissioner[,] whose legal rights, duties, and privileges will be directly determined in the proceedings.” Minn. R. 5510.0310, subp. 16 (2005) (emphasis added). The university is a “party” to the decertification proceedings within the meaning of PELRA because it is a public employer whose legal rights and obligations will be directly determined by the decertification proceedings. Depending on the outcome of the proceedings, the university will either regain the right to negotiate directly with UMC instructional employees and be required to comply with university policies regarding unrepresented instructional employees, or it will continue to be required to bargain in good faith with UEA with respect to UMC instructional employees and to comply with existing obligations under PELRA regarding represented employees. Because the university’s rights and obligations will be directly determined by the decertification proceedings, the BMS correctly concluded that the university is a proper party to the proceedings.

UEA also argues that the university lacks standing to pursue this appeal because it has suffered no injury in fact. UEA specifically claims that because the university will be required to deal with UEA as the exclusive representative of Unit 9 and to comply with existing obligations under PELRA and university policies regardless of the outcome of the de-certification proceedings, the university has suffered no injury in fact. We do not agree.

PELRA provides that an administrative decision regarding the appropriateness of a bargaining unit is appealable. See MinmStat. § 179A.051 (2004) (providing that “[djecisions of the commissioner relating to ... appropriateness of a unit ... may be reviewed on certiorari”). A party has standing to seek judicial review of an administrative decision if it has suffered an injury in fact or if the legislature has conferred standing. In re Pappas Senate Comm., 488 N.W.2d 795, 797 (Minn.1992). To establish standing, a party to an agency proceeding must show a “legally cognizable interest of his which has sustained injury in fact by the agency action.” Id. The goal of this requirement “is to ensure that issues before the courts will be ‘vigorously and adequately presented.’ ” State by Humphrey v. Philip Morris, Inc., 551 N.W.2d 490, 493 (Minn.1996) (citation omitted).

As previously noted, the university is a party to the decertification proceedings under PELRA. We recognize that participation in an agency proceeding does not guarantee standing to seek review of the agency’s decision. In re Pappas, 488 N.W.2d at 798. Instead, the party seeking standing must establish a legally cognizable interest in the outcome of the proceeding. Id. at 797. The decertification proceedings will determine the university’s rights and obligations under PELRA with respect to UMC instructional employees. See Minn.Stat. § 179A.07, subds. 2-4 (2004) (providing that public employer has obligation to meet and negotiate in good faith with exclusive representative and to confer with professional employees and a duty not to meet with represented employees except through the exclusive representative). This legally cognizable interest is sufficient to ensure that the issues on appeal have been vigorously and adequately presented and to confer standing on the university. Additionally, the university is essentially making the argument of the UMC faculty, who clearly has a real interest in the outcome of the proceedings.

II

The university next argues that the bureau’s determination that Unit 9 is a single unit for decertification purposes is contrary to law. We disagree.

The plain language of PELRA’s decerti-fication provision authorizes a group of employees within an established unit to petition for decertification only of an established unit:

An individual employee or group of employees in a unit may obtain a decertifi-cation election upon petition to the commissioner stating the certified representative no longer represents the majority of the employees in an established unit and that at least 30% of the employees wish to be unrepresented.

Minn.Stat. § 179A.12, subd. 3 (2004) (emphasis added). PELRA recognizes only 13 bargaining units as “the appropriate units of University of Minnesota employees.” Minn.Stat. § 179A.11, subd. 1 (2004). The Outstate Instructional Employees unit, or Unit 9, is one of the statutorily recognized bargaining units. After the instructional employees at UMC elected to join Unit 9, the commissioner certified the unit as including instructional employees at both the Duluth and Crookston campuses. PELRA does not recognize a bargaining unit comprising instructional employees at a single outstate campus other than UMD. Id. For purposes of subdivision 3, therefore, the established unit in this case is Unit 9 as certified by the commissioner. A decertifi-cation petition must thus be supported by at least 30% of eligible instructional employees at both the Duluth and Crookston campuses.

The university argues that because PELRA does not expressly prohibit UMC instructional employees from being considered the appropriate unit for decertification purposes, this court should recognize the UMC faculty as the appropriate unit. But recognizing the UMC faculty as the appropriate unit for decertification purposes would require us to ignore the plain language of the decertification statute, which refers to the employees in an “established unit.” Minn.Stat. § 179A.12, subd. 3. PELRA does not recognize an established unit that comprises only UMC instructional employees.

The university next argues that because the administrative rules refer to “an appropriate unit” and a “proposed appropriate unit” in the context of decertification proceedings, the appropriate unit for de-certification purposes may differ from the established units recognized in Minn.Stat. § 179A.11, subd. 1. See Minn. R. 5510.0310, subp. 9 (2005) (defining “decertification petition” by reference to “the majority of the employees in an appropriate unit ” (emphasis added)); .0710, subp. 2 (2005) (requiring authorization signatures from “30 percent or more of the estimated number of employees in the established or proposed appropriate unit ” (emphasis added)). But unlike the administrative rules, Minn.Stat. § 179A.12, subd. 3, does not refer to anything other than an established unit in the context of decertifi-cation elections. By contrast, in the context of certification elections, subdivision 3 requires the support of at least 30% of employees of a “proposed appropriate unit.” Minn.Stat. § 179A.12, subd. 3. It is thus apparent that when the legislature’s intent to allow groups other than an established unit to petition for certification is clear, the statutory language is also clear. Therefore, the absence of language authorizing instructional employees at individual campuses to petition for decertification once they have elected to join an established unit reflects the legislature’s intent not to authorize those employees to petition for decertification independently of the established unit. Why the administrative rules use different terms than the statute is not clear. But we need not consider the language of the rules when the statute is unambiguous on its face.

The university also argues that the bureau’s determination that UMC instructional employees may not petition for decertification independently of the UMD faculty is inconsistent with PEL-RA’s announced purpose of helping public employees to “freely choose their representatives.” According to the university, because of the disparity in the numbers of instructional employees on the Crookston (48) and Duluth campuses (400) it would be impossible for the UMC faculty to meaningfully exercise the right to decertify an exclusive representative, and the representational wishes of UMC instructional employees would be dictated by the UMD faculty. To combine both campuses for decertifi-cation purposes would thus undermine PELRA’s announced purpose.

But “the legislature has determined that the overall [statutory] policy is best accomplished by ... granting public employees certain rights to organize and choose freely their representatives,” not unlimited rights. Minn.Stat. § 179A.01(1) (2004) (emphasis added). PELRA granted instructional employees in each of the out-state campuses the right to decide whether to join an existing bargaining unit. But it did not grant them the right to petition for decertification of the exclusive representative independently of the established unit once they elect to join the unit. We recognize that because of the disparity in the number of instructional employees at the Duluth and Crookston campuses, it would be mathematically impossible for the UMC faculty alone to decertify the unit’s exclusive representative. But to allow them to do so without obtaining the support of 30% of all eligible employees in the unit would be inconsistent with the plain language of the statute.

The university claims that “[t]here is no reason to conclude that the legislature did not intend each campus to determine its own status both for purposes of certification and decertification.” But the plain language of Minn.Stat. § 179A.12, subd. 3, suggests that the legislature did not intend to treat certification and decertification proceedings alike. Instead, it intended to give instructional employees at each out-state campus the right to independently petition for certification but not the right to petition for decertification independently of the established unit once they elect to join the unit.

PELRA’s severance provision is also inconsistent with the university’s claim that Unit 9 is two units for certification and decertification purposes. The severance provision gives certain instructional employees, not including the UMC faculty, the right to sever from their bargaining units. Minn.Stat. § 179A.11, subd. 2 (2004) (giving law-school and health-sciences instructional employees the right to sever from Units 8 and 9). The university does not explain what status the UMC faculty would have if allowed to decertify UEA as the exclusive representative of UMC instructional employees without at the same time allowing the UMC faculty to sever from the unit. Presumably, the UMC faculty wishes not to be required to negotiate through UEA while at the same time maintaining the right to confer with the appropriate officials on matters of concern to the group. But such status is acquired only through severance, and PELRA does not give UMC instructional employees the right to sever. See id. (providing that a group that separates from its unit pursuant to this section has no right to meet and negotiate but retains right to confer with officials on matters of concern to the group). Alternatively, the UMC faculty wishes to return to its pre-certification status. But before it can return to its pre-certification status, the faculty must sever itself from the unit, a right it does not have. The commissioner correctly concluded that the university’s position requires one to read a severance provision into the statute where none exists.

The university next argues that UEA is estopped from arguing that Unit 9 must be defined as including UMC and UMD employees because it induced the faculty to vote for representation by representing that UMC faculty alone would be able to vote in a decertification election. The commissioner rejected the university’s position. This court likewise cannot rely on campaign representations made by UEA as a guide to construing the statute in this case.

Finally, the university argues that the BMS erred by failing to consider the factors in Minn.Stat. § 179A.09 (2004) in determining that the UMC faculty was not an appropriate unit for decertification purposes. But section 179A.09 sets forth the factors the commissioner must consider when determining bargaining units that are not predetermined by statute. Because the university units are predetermined by Minn.Stat. § 179A.11, subd. 1, they are not subject to the section 179A.09 factors.

DECISION

Based on the plain language of Minn. Stat. § 179.12, subd. 3 (2004), we conclude that the commissioner correctly determined that for decertification purposes the established unit in this case is a single unit comprising instructional employees at the University of Minnesota’s Duluth and Crookston campuses. The commissioner thus properly dismissed the certification petition filed by a group of UMC instructional employees for lack of the statutorily required support of at least 30% of employees in the established unit.

Affirmed.

      . Minn.Stat. § 179.11, subd. 1(9) provides as follows:
      The Outstate Instructional Unit consists of the positions of all instructional employees ... located at the Duluth campus, provided that ... instructional employees of the same rank at the Morris, Crookston, or Waseca campuses shall be included within this unit if a majority of the eligible employees voting at a campus so vote during an election conducted by the commissioner, provided that the election shall not be held until the Duluth campus has voted in favor of representation. The election shall be held when an employee organization or group of employees petitions the commissioner stating that a majority of the eligible employees at one of these campuses wishes to join the unit and this petition is supported by a showing of at least 30 percent support from eligible employees at that campus.