author: GILBERT, Justice. MEYER, Justice

text:
    STATE of Minnesota, Respondent, v. Joel Robert HENNING, Appellant.
    No. C9-01-1985.
    Supreme Court of Minnesota.
    July 31, 2003.

      Gary A. Gittus (# 175547), George F. Restovich & Associates, Rochester, MN, for Appellant.
    Mike Hatch, Minnesota Attorney General, Terry L. Adkins (# 0215259), Rochester City Attorney, Peter D. Magnuson, Rochester Assistant City Attorney, Rochester, MN, for Respondent.
    Teresa J. Nelson (# 269736), Minnesota Civil Liberties Union, St. Paul, MN, Sara L. Martin (# 287064), Volunteer Attorney for the Minnesota Civil Liberties Union, Minneapolis, MN, for Amicus Curiae.
   OPINION

GILBERT, Justice.

This case involves a challenge to an investigative stop made pursuant to Minn. Stat. § 168.0422 (2002); Appellant Joel Robert. Henning was charged in Olmsted County with driving after revocation, Minn.Stat. § 171.24, subd. 2 (2002), no driver’s license in possession, Minn.Stat. § 171.08 (2002), and no current proof of insurance, Minn.Stat. § 169.791(2) (2002). Appellant moved to dismiss the charges for the following reasons: 1) there was no reasonable articulable suspicion to justify the stop of the vehicle, and 2) Minn.Stat. § 168.0422 is unconstitutional. An omnibus hearing was held in Olmsted County District Court; the arresting officer was the only witness to testify. The court issued an omnibus order concluding: 1) Minn.Stat. § 168.0422 is unconstitutional; 2) the fact that the vehicle carried a WZ series plate provided reasonable and artic-ulable suspicion of criminal activity justifying the stop.

Appellant, pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980), agreed to stipulate to the facts contained within the police reports and his certified driving record. A bench trial was held on May 11, 2001, in Olmsted County District Court. In an order and memorandum, the court incorporated the ruling from the earlier omnibus hearing concluding that Minn. Stat. § 168.0422 is unconstitutional and the fact that defendant’s vehicle carried special WZ series plates provided a reasonable and articulable suspicion of criminal activity justifying a stop. The court found appellant guilty of driving after revocation, Minn.Stat. § 171.24, subd. 2, and no driver’s license in possession, Minn. Stat. § 171.08. Appellant appealed to the Minnesota Court of Appeals. The court of appeals held that by applying for and displaying special series plates issued pursuant to MinmStat. § 168.041, subd. 6, a party implicitly consents to a vehicle stop based solely on the display of those plates and concluded Minn.Stat. § 168.0422 is constitutional under both the federal and state constitutions. State v. Henning, 644 N.W.2d 500 (Minn.App.2002). We reverse.

On July 12, 2000, at 7:30 p.m., an Olmsted County deputy sheriff, while on patrol in Rochester, Minnesota, noticed a vehicle with special series registration plates with the first two letters WZ. The deputy followed the vehicle, but did not observe any inappropriate driving, recognize the driver, discern any other traffic or other violations, nor did he run a vehicle registration check. The deputy stopped the vehicle being driven by appellant without reasonable suspicion that appellant was involved in any criminal activity. The vehicle was registered to appellant’s father. The regularly issued registration plates on that vehicle had been impounded April 2, 2000, on account of appellant’s prior DUI conviction. The deputy testified that the only reason appellant was stopped was because his vehicle had special series registration plates issued when the previous plates were impounded because the operator of the vehicle was driving under the influence.

According to the deputy, appellant initially told the deputy that he knew he could be stopped based on the registration plates he had on the vehicle. However, appellant went on to tell the deputy that he had no reason to pull him over. Appellant expressed his belief that to pull him over the deputy needed a reason in addition to the registration plates. There were no indicators that appellant had been consuming alcohol. Appellant did not have a valid driver’s license in his possession at the time of the stop because his driver’s license had been revoked. Appellant was cited for driving after revocation, Minn. Stat. § 171.24, subd. 2, no driver’s license in possession, Minn.Stat. § 171.08 and no current proof of insurance, Minn.Stat. • § 169.791(2).

An omnibus hearing was held and the court issued an order concluding that Minn.Stat. § 168.0422 is unconstitutional, but that the presence of the special series plates provided the deputy with reasonable articulable suspicion to justify the stop of appellant’s vehicle. The parties stipulated to the police reports and appellant’s prior record for the purposes of a bench trial. The court convicted appellant of driving after revocation, Minn.Stat. § 171.24, subd. 2 (2002) and no driver’s license in possession, Minn.Stat. § 171.08 (2002). It adopted the conclusions from the earlier omnibus hearing that Minn.Stat. § 168.0422 is unconstitutional, but the special series plates provided reasonable artic-ulable suspicion of criminal activity to justify the stop. Appellant was ordered to pay a fine of $300 plus a $35 surcharge and a $5 library fee, with sentence stayed pending appeal. On appeal, the court of appeals held that by applying for and receiving special series plates, a party implicitly consents to police stops for the purpose of determining whether the driver has a valid license, based solely on those registration plates, and that Minn.Stat. § 168.0422 did not violate the state or federal constitutions. Henning, 644 N.W.2d at 502-04.

I.

Appellant argues that MinmStat. § 168.0422 is an unconstitutional attempt to override the Minnesota Court of Appeals ruling in State v. Greyeagle, 541 N.W.2d 326 (Minn.App.1995); violates the Fourth Amendment of the United States Constitution and its counterpart, Article I, Section 10 of the Minnesota Constitution; unconstitutionally interferes with and chills protected activities; and cannot form the sole basis for the stop of a motor vehicle.

We review the constitutionality of a statute de novo. State v. Grossman, 636 N.W.2d 545, 548 (Minn.2001). “Statutes are presumed constitutional.” Id. The party challenging the statute must show, beyond a reasonable doubt, that the statute violates the constitution. Id.

Minnesota Statutes § 168.0422 provides:

A peace officer who observes the operation of a motor vehicle within this state bearing special series registration plates issued under section 168.041, subdivision 6, or 169A.60, subdivision 13, may stop the vehicle for the purpose of determining whether the driver is operating the vehicle lawfully under a valid driver’s license.

Special plates may be issued under Minn.Stat. § 168.041, subd. 6, in the following circumstances:

if a member of the violator’s household has a valid driver’s license, the violator or owner has a limited license issued under section 171.30, or the owner is not the violator and the owner has a valid or limited license or a member of the owner’s household has'a valid driver’s license.
Similar conditions are provided by Minn. Stat. § 169A.60, subd. 13:
(1) the violator has a qualified licensed driver whom the violator must identify;
(2) the violator or registered owner has a limited license issued under section 171.30;
(3) the registered owner is not the violator and the registered owner has a valid or limited driver’s license;
(4) a member of the registered owner’s household has a valid driver’s license.

The statute at issue here, Minn.Stat. § 168.0422, appears to have been passed in response to the court of appeals’ decision in Greyeagle. In Greyeagle, the court of appeals held that police may not make suspicionless stops of drivers based solely on special series registration plates, where the statute creating the special plates does not provide that the plates are issued under that condition. Greyeagle, 541 N.W.2d at 328, 330. The court of appeals also held that where the state produces no evidence that the policy of making suspicionless stops is more effective than the traditional system of stops based on particular suspicion, the routine stops of special series registered vehicles is unconstitutional. Id. at 329. Minnesota Statutes § 168.0422 was subsequently passed by the legislature in order to authorize the stops prohibited by the court of appeals ruling in Greyea-gle. The primary issue is whether the statute is prohibited by the Fourth Amendment or its counterpart, Article I, Section 10 of the Minnesota Constitution. If the statute violates the Fourth Amendment or Article I, Section 10 of the Minnesota Constitution, it cannot stand.

In Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the United States Supreme Court held that absent reasonable articulable suspicion, stopping an automobile driver to check whether he is properly licensed is prohibited by the Fourth Amendment. “The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement agents, in order ‘to safeguard the privacy and security of individuals against arbitrary invasions ⅜ * Id. (citations omitted). “Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Id. at 654, 99 S.Ct. 1391.

Generally, an officer stopping a vehicle on the open road in order to check the driver’s license is a “seizure” under the Fourth Amendment. Prouse, 440 U.S. at 653, 99 S.Ct. 1391. An officer must have reasonable articulable suspicion of wrongdoing in order to justify such a stop. Id. at 663, 99 S.Ct. 1391.

The state argues that by applying for and receiving the special series plates, appellant was aware that his use of that vehicle carried with it a condition giving the police the statutory authority to stop the vehicles bearing those plates without reasonable articulable suspicion. The state argues appellant “destroyed” any reasonable expectation of privacy he may have had which would allow him to object to the search. We disagree.

Here, appellant had a subjective expectation of privacy. He expressed his opinion that the officer needed to have a reason to stop him separate from the mere presence of the special series registration plates. It is not clear from the record that appellant was put on notice that these plates were accepted on the condition that law enforcement may stop the vehicle at any time to check the validity of the driver’s license. We decline to imply consent under these facts.

The special series registration plates are only issued upon a showing that someone will be legally driving the vehicle bearing those plates. This person may be the violator, who may be issued a limited license to drive under certain circumstances, such as attending work or school. Minn.Stat. § 171.30. However, the special series plates are also issued where someone other than the violator, either a member of the violator’s household or someone else identified to the commissioner of public safety, will be lawfully driving the vehicle. These qualified, licensed drivers of the specially registered vehicles are also subject to the possibility of numerous stops made each and every day, pursuant to Minn.Stat. § 168.0422, solely on account of driving a motor vehicle bearing special series registration plates. Thus, Minn. Stat. § 168.0422 subjects a number of licensed motorists, who were not party to the original revocation of the registration plates or the subsequent reissuing of the special series plates, to the possibility of being stopped by every law enforcement officer they encounter.

We look to the totality of the circumstances to determine whether a stop under these facts was reasonable. United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). The degree of the intrusion must be weighed against the promotion of legitimate government interests. Id. at 119, 122 S.Ct. 587.

Minnesota Statutes § 168.0422 seeks to dispense with the individualized suspicion requirement. In Ascher v. Comm’r of Public Safety, we, exercising our independent authority to interpret the Minnesota Constitution, held that using roadblocks to stop all vehicles at sobriety checkpoints violates “Minn. Const, art. I, § 10, which we have long held generally requires the police to have an objective individualized articulable suspicion of criminal wrongdoing before subjecting a driver to an investigative stop.” 519 N.W.2d 183, 187 (Minn.1994). In Ascher, we “engaged in a judicial determination of the reasonableness of the use of a temporary roadblock to stop a large number of drivers in the hope of discovering evidence of alcohol-impaired driving by some of them.” Id. at 187. We concluded:

Based primarily on the state’s failure to meet its burden of articulating a persuasive reason for dispensing with the individualized suspicion requirement in this context, we conclude that the constitutional balance must be struck in favor of protecting the traveling public from even the “minimally intrusive” seizures which occur at a sobriety checkpoint.

Id. at 187.

Our reasoning in Ascher applies to stops under Minn.Stat. § 168.0422. Although a smaller number of drivers are potentially affected, those drivers may be stopped daily on numerous occasions without reasonable articulable suspicion of any criminal activity, solely because the vehicle carries the special series registration plates. The state has not met its “burden of articulating a persuasive reason” for dispensing with the general requirement of individualized suspicion in this context. Ascher, 519 N.W.2d at 186. In Prouse, the Supreme Court pointed out that where individualized suspicion is not required to make a stop, other safeguards are relied upon to assure that a driver’s reasonable expectation of privacy may not be invaded at the discretion of a patrolling officer. 440 U.S. at 654-55, 99 S.Ct. 1391. Minnesota Statutes § 168.0422 seeks to eliminate the constitutional safeguard requiring an officer to have reasonable articulable suspicion of criminal activity before stopping a motorist, but provides no substitute to protect licensed motorists driving in vehicles with special series plates from repeated stops at the unchecked discretion of law enforcement officers. As we noted in Ascher, the police should not be allowed to define the reasonableness of their own conduct. Ascher, 519 N.W.2d at 186. Neither is the legislature empowered to redefine the constitutional parameters of police conduct. Therefore, based on Ascher and Prouse, we conclude Minn.Stat. § 168.0422 is unconstitutional under the Fourth Amendment and Article I, Section 10 of the Minnesota Constitution.

II.

The district court held Minn. Stat. § 168.0422 unconstitutional, but concluded the stop was lawful because there existed “a reasonable and articulable suspicion of criminal activity justifying the stop.” We agree that Minn.Stat. § 168.0422 is unconstitutional. To effectuate a stop of a vehicle an officer must have a reasonable articulable suspicion that the motorist is violating the law. Prouse, 440 U.S. at 663, 99 S.Ct. 1391. However, the mere presence of the special series plates does not amount to “reasonable articulable suspicion.”

We do not believe the presence of special series registration plates issued pursuant to Minn.Stat. § 168.041, subd. 6 or Minn.Stat. § 169A.60, subd. 13, amounts to reasonable articulable suspicion nor do the circumstances surrounding the issuance of the plates render a suspicionless stop of a driver in a vehicle with these plates “reasonable.” The U.S. Supreme Court has articulated that reasonable suspicion must be examined by the totality of the circumstances. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An analysis of the totality of the circumstances “must raise a suspicion that the particular individual being stopped is . engaged in wrongdoing.” Id. at 418, 101 S.Ct. 690.

Special series registration plates 'are issued, upon the satisfaction of conditions set forth by statute, in order to enable continued legal use of a motor vehicle by licensed drivers. Minn.Stat. § 168.041, subd. 6; Minn.Stat. § 169A.60, subd. 13. The driver of the vehicle is not necessarily the one whose actions led to the original impoundment and subsequent issuing of special series plates. Because the special series plates are only issued when it is demonstrated that the vehicle may lawfully be driven, we hold that the mere presence of special series plates does not amount to reasonable articulable suspicion of criminal activity and, in fact, the special plates demonstrate that the vehicle may be lawfully driven. Nor is it reasonable to automatically infer that there is a substantial possibility that the driver of the vehicle does not possess a valid driver’s license. While the special series plates may be a factor for law enforcement to consider and would provide a basis for closer scrutiny of these vehicles, the special series plates may not provide the sole justification for a stop.

The dissent approves “this type of (sus-picionless) stop” and deems it “reasonable because [of the] substantial state interest in safeguarding our roads from drivers who repeatedly drive while impaired.” However, the dissent ignores the showing we required in Ascher. Ascher, 519 N.W.2d at 186. We have never before simply allowed the ends to justify the means when the means void our citizens’ constitutional protections. The dissent’s rationale would be a dramatic departure that demotes constitutional protections to a position inferior to that of traffic safeguards. The state has not met its burden of showing that it is impracticable for police to develop individualized suspicion and that a departure from the individualized suspicion requirement will significantly help police achieve a higher rate of arrest than would using more conventional means of apprehending alcohol impaired drivers. Ascher, 519 N.W.2d at 186. Therefore, the balance must be struck in favor of protecting the traveling public from even the “minimally intrusive” seizure present here. Id. at 187.

We recognize that the practice of impounding standard license plates may further the state’s interest in protecting the public from repeat drunken drivers. The state has an obvious and substantial interest in safeguarding our roads from such drivers. However, the subsequent issuance of special plates to allow the vehicle to again be driven does not necessarily further the state’s interest in protecting the public, but may enable or facilitate the impaired driver’s use of the same vehicle. Furthermore, the dissent fails to explain why these plates should be used to annul constitutional protections. Contrary to what the dissent surmises, these special plates do nothing to “ensur[e] that repeat offenders do not harm the motoring public by driving during their period of revocation.” Rather, these special plates may actually provide a further opportunity for repeat drunken drivers to drive again by making available a properly licensed vehicle.

Having concluded that Minn.Stat. § 168.0422 is unconstitutional under the Fourth Amendment and Article I, Section 10 of the Minnesota Constitution, we need not address appellant’s other arguments. We reverse the court of appeals and hereby vacate appellant’s convictions for driving after revocation, Minn.Stat. § 171.24, subd. 2, and no driver’s license in possession, Minn.Stat. § 171.08, as the product of an unlawful seizure. We limit the retroactive application of this ruling to cases pending on the date of this decision in which the constitutionality of this statute has been properly raised in a timely fashion.

Reversed.

MEYER, Justice

(dissenting).

I respectfully disagree with the majority’s conclusion that Minn.Stat. § 168.0422 (2002) violates the Minnesota and federal constitutions. Officer Maitland’s stop of Joel Henning, limited as it was to inquiring about the validity of his driver’s license, was a reasonable seizure and therefore not prohibited by either the state or federal constitution. This type of stop, authorized by statute, is reasonable because the substantial state interest in safeguarding our roads from drivers who repeatedly drive while impaired, combined with the focused nature of the practice, outweigh the limited intrusion on individual liberty. Aside from whether the balancing test weighs in favor of the seizure’s reasonableness, the statute should be upheld because the owner of the vehicle gave consent to a suspi-cionless stop when he applied for the special plates.

The state has devised a system for impounding license plates as part of its overall scheme of keeping the traveling public safe on the roads. The legislature has passed laws making driving under the influence of drugs or alcohol a crime. Minn. Stat. ch. 169A (2002). Violating these statutes once is a gross misdemeanor, and repeat offenders can be sent to jail for months. Minn.Stat. § 169A.275 (2002). The state will revoke an individual’s license to drive and impound that individual’s license plates during the period of the revocation. Minn.Stat. §§ 169A.54-.60 (2002). Taking away the license plates is a particularly important step in this procedure, because it ensures that individuals who are repeat offenders of our driving laws will not be able to illicitly drive their vehicles unnoticed.

The record establishes that Henning had driven while impaired twice within 5 years. Because of those violations, the state impounded his license plates and revoked his driver’s license as required by statute. MinmStat. §§ 169A.54-.60. Then, in order to obtain plates denoted by the prefix WZ, Henning’s father requested these sper cial-issue plates and demonstrated to the court that he owned the vehicle and had a valid license to drive.

The Fourth Amendment of the United States Constitution, as well as Article I, Section 10 of the Minnesota Constitution, are implicated in this case because “stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of [the constitution], even though the purpose of the stop’ is limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). What both constitutions prohibit is “not all searches and seizures, but unreasonable searches and seizures.” Elkins, v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); see also U.S. Const. amend. TV; Minn. Const. art. I, § 10; State v. Olson, 271 Minn. 50, 57, 135 N.W.2d 181, 186 (1965). After it has been established that a police practice amounts to a search or seizure, the analysis of what searches and seizures are unreasonable, and therefore unconstitutional, involves balancing competing interests. See Prouse, 440 U.S. at 654, 99 S.Ct. 1391; State v. Larsen, 650 N.W.2d 144, 148 (Minn.2002); Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183, 185-86 (Minn.1994). The balancing test involves three factors: the gravity of the public concern served by the seizure; the degree to which the seizure advances the public interests; and the severity of the interference with individual liberty. Ascher, 519 N.W.2d at 185 (citing Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)). The question presented in this case is whether it is.reasonable for a peace officer to stop a driver of a WZ vehicle and inquire about his or her driver’s license without any additional particularized suspicion.

The first factor to weigh in the balance is the gravity of the public concern served by the seizure. The state has a substantial interest in keeping our roads safe. See Prouse, 440 U.S. at 658, 99 S.Ct. 1391. As part of its efforts to keep roads safe, the state must grapple with the problem of people who drive under the influence. We have recognized on multiple occasions the seriousness of this problem. See, e.g., Ascher, 519 N.W.2d at 185 (citing the magnitude of the problem with drunk driving and the strong state interest in eradicating it); Heddan v. Dirkswager, 336 N.W.2d 54, 62-63 (Minn.1983) (discussing the relationship ' of drunk driving to tragedy on the highways). Despite the best efforts of legislators and law enforcement, impaired drivers continue to present a very real danger, causing a disproportionate number of traffic deaths each year. Thesé accidents exact a tragic cost on the families of the individuals involved and are a drain on the financial resources of the state.

Even more specifically, the practice of impounding standard plates • and issuing special plates is intended to further the state interest in protecting the public from individuals who repeatedly drive under the influence or without a driver’s license. The National Highway Traffic Safety Administration (NHTSA) reports that approximately one-third of all drivers arrested or convicted of driving while impaired each year are repeat offenders. National Highway Traffic Safety Administration, Vehicle & License Plate Sanctions, at www.nhtsa.gov/people/outreaeh/safe sobr/19qp/factsheets/vehiele.html (last visited June 30, 2003). In addition, repeat offenders are “overrepresented in fatal crashes and have a greater relative risk of fatal crash involvement.” Id. In addition many second- and third-time convicted DWI offenders are involved in traffic offenses or crashes during their suspension. Id. I conclude that repeat offenders of our laws against driving while impaired pose a serious threat to the safety of other travelers, and the seizure authorized by this statute addresses that threat.

The second factor in the balancing test concerns the efficacy of the stops at issue. The court was presented with no statistics as to how frequently peace officers find legal drivers at the wheel when they stop cars with special-issue plates of this variety. However, a study of Minnesota’s plate impoundment system found “a significant decrease in recidivism for violators who had their plates impounded versus violators who did not. Violators whose license plates were impounded by the arresting officer showed a 50 percent decrease in recidivism over a 2-year period (when compared with DWI violators who did not experience impoundment).” Id. The decrease in recidivism suggests that the impoundment scheme is furthering the state’s interest in protecting the public from the unsafe driving habits of repeat offenders. As our WZ plates are a key aspect of ensuring that repeat offenders do not harm the motoring public by driving during their period of revocation, and this statute is narrowly tailored to the population of repeat offenders, it reasonably advances the public interest.

I turn now to the third factor, the “nature and quality” of the intrusion on liberty entailed by the seizure. See Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In this case, we face a situation in which a narrow class of people — individuals driving with WZ plates — can be stopped by an officer for the purpose of ensuring that they are operating the vehicle within the scope allowed them by our state licensing agency. Although potentially aggravating, intimidating, and embarrassing, the purpose of the stop is limited and the resulting detention is brief, just long enough for the officer to ensure the driver has a valid license.

Having considered the gravity of the public concern presented by repeat offenders of our drunk driving laws, the focused nature of' this statute as part of the state’s enforcement scheme, and the extent of the intrusion involved when an officer asks to see the operator’s license to drive, I conclude this practice is a reasonable seizure and therefore the statute does not violate either the state or federal constitution. I emphasize here that the scope of the seizure authorized by statute is limited; it authorizes the stop of a vehicle in order to determine the validity of the driver’s license. Anything beyond that limited scope, justified by the state’s need to protect the public from individuals who repeatedly drive under the influence, could be unreasonable. See Terry, 892 U.S. at 29, 88 S.Ct. 1868 (noting that “evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation” and that frisks justified by the protection of police officers and bystanders must be confined to an intrusion designed to discover hidden instruments that could be used in an assault); see also State v. Fort, 660 N.W.2d 415, 418 (Minn.2003) (“the scope and duration of a traffic stop investigation must be limited to the justification for the stop”).

The majority attempts to analogize this case to the unconstitutional police practices at issue in Prouse and Ascher. Those cases are distinguishable in part because the intrusion affected many more people than does the intrusion authorized by Minn.Stat. § 168.0422. In Prouse, the police practice at issue was the arbitrary stop of any car on the road. 440 U.S. at 650, 99 S.Ct. 1391. And in Ascher, the practice at issue was temporary roadblocks used for sobriety tests, which detained all vehicles at a particular intersection. 519 N.W.2d at 184. In both of these cases the practices could potentially impact large populations, limiting the efficacy of the stop.

An additional difference between the instant case and Ascher is that Ascher did not involve a police action authorized by statute. The sobriety checks at issue in Ascher were an attempt by the police to use innovative tools to decrease drunk driving, but there was no statute prescribing the roadblocks. Because the court was faced with the constitutionality of a police practice, not a statute, the court was free to place the burden of proof on the state. Ascher, 519 N.W.2d at 187. In this case a statute is at issue, which shifts the burden of proof. Statutes are presumed constitutional, and the court traditionally uses its power to declare a statute unconstitutional “only when absolutely necessary.” State v. Larsen, 650 N.W.2d 144, 147 (Minn.2002). The party challenging the constitutionality of the statute bears the heavy burden of establishing its invalidity. Heidbreder v. Carton, 645 N.W.2d 355, 372 (Minn.2002). The mere “possibility” that lawful drivers may be repeatedly stopped should not suffice to meet the appellant’s heavy burden of establishing the statute’s invalidity. Nothing in the record before us convinces me it is “absolutely necessary” to strike down this statute.

Even if we were to conclude that the state’s interest in regulating repeat DWI offenders does not outweigh the intrusion on those drivers’ liberty, I would nevertheless conclude that the statute is constitutional because the owner of the vehicle gave consent to a suspicionless stop by applying for the special plates. That consent eliminated Henning’s reasonable expectation of privacy, at least insofar as it included an expectation to be free from an investigative stop to confirm he was a licensed driver. See State v. Perkins, 588 N.W.2d 491, 493 (Minn.1999) (“But even a reasonable expectation of privacy may be waived if a defendant’s conduct, objectively viewed in light of the totality of the circumstances, ‘mandates the conclusion that any expectation of privacy was unreasonable’”) (quoting State v. Tungland, 281 N.W.2d 646, 650 (Minn.1979)) (internal ellipsis omitted).

The majority opinion refuses to imply consent to a suspicionless stop because (1) Henning stated his view that the officer needed a separate reason to stop him, and (2) there was no evidence that Henning was put on notice that the special plates were accepted on the condition that law enforcement could stop the vehicle at any time. But the existence of a reasonable expectation of privacy, as a prerequisite to an unlawful search and seizure, depends not merely on the party’s subjective expectations, but also on his or her objective expectations. In re Welfare of B.R.K, 658 N.W.2d 565, 571 (Minn.2003) (“First, we must determine whether B.R.K. exhibited an actual subjective expectation of privacy in the home and, second, whether that expectation is reasonable.”). Henning did admit to the officer that he was on notice of the conditions under which the special plates were issued (in fact, he debated with the officer about the appropriate interpretation of those conditions). Henning is charged with notice of the law, and the law expresses those conditions. See State v. Calmes, 632 N.W.2d 641, 648 (Minn.2001). Because consent is implied, neither the violator nor the person who applied for special plates has a reasonable expectation of privacy in the vehicle. The violator cannot rely upon any theoretical expectation of privacy that might be possessed by someone other than the violator or the applicant.

I would hold that MinmStat. § 168.0422 is constitutional, because it authorizes only reasonable seizures of individuals who have continually abused their driving privileges and, alternatively, it authorizes a stop of an individual who has revoked his or her reasonable expectation of privacy in the vehicle. Therefore, I would affirm the court of appeals.

BLATZ, Chief Justice (dissenting).

I join in the dissent of Justice Meyer.

HANSON, Justice (dissenting).

I join in the dissent of Justice Meyer.

      . The no proof of insurance charge was later dropped when proof of insurance coverage was provided to the court.

      . Limited licenses are issued pursuant to Minn.Stat. § 171.30 when a person’s license has been suspended or revoked but the person needs a license to attend school, work, or treatment or to accomplish the tasks required as a homemaker.

      . The dissent relies upon numerous studies, statistics and anecdotal conclusions, which are not part of the record, in order to justify an unconstitutional intrusion. There obviously are important policy considerations involved with addressing the problem of repeat drunken drivers. Other options are available to the legislature that could directly address the problem of repeat drunken drivers without trampling on the constitutional rights of our citizens, including simply declining to issue the special plates or subjecting the vehicle driven to forfeiture.

      . Joel Henning's plates were impounded under Minn.Stat. § 168.042 (1998), which is now repealed, but carried the same substantive provisions as sections 169A.54-.60.

      . Other circumstances for issuance include when the violator himself has a limited license to perform essential tasks. See Minn. Stat. §§ 168.041, subd. 6; 169A.60, subd. 13; 171.30 (2002).

      . In 2001, there were 226 alcohol-related traffic fatalities in Minnesota, which constituted 40% of all traffic deaths in that year. Mothers Against Drunk Driving, State-by-State Traffic Fatalities — 2001, at http:// www.madd.org/stats/0,1056,4809,00.html (last visited June 30, 2003)¿

      . It is estimated that the average alcohol-related fatality costs the State bf Minnesota $3.5 million. Public Services Research Institute, Impaired Driving in .Minnesota, at www.nhtsa.gov/peopIe/iniury/alcohol/MN.htm (last visited June 30, 2003). Using the number of .traffic deaths reported in, note 3, alcohol-related fatalities cost Minnesota an estimated $791 million in the year 2001.

      .Interestingly, the NHTSA includes among its recommendations for strengthening states’ license plate sanctions that states allowing special-issue plates "incorporate a provision that permits officers to stop the vehicle for the sole purpose of checking whether the driver is operating the vehicle while their license is under suspension.” National Highway Traffic Safety Administration, Vehicle & License Plate Sanctions, at www.nhtsa.gov/people/out-reacb/safesobr/19qp/factsheets/vehicle.html (last visited June 30, 2003). Minnesota is one of three states that issue special license plates as part of its efforts to monitor repeat offenders. Id.

      . The majority describes the statute as subjecting legitimate motorists "to the possibility of being stopped by every law enforcement officer they encounter.” The facts of this case do not establish that the actual government intrusion is unnecessarily invasive; there is no indication that other members of Hen-ning’s family were harassed while driving. In this case, Henning was the individual whose license had been revoked after he was caught driving under the influence of alcohol or drugs twice within 5 years. And Henning was the individual behind the wheel when Mait-land stopped the car after noticing the special plates. Regardless, I would defer that concern for another day and only decide the constitutionality of Minn.Stat. § 168.0422 as applied to the facts before us. See, e.g., Boutin v. LaFleur, 591 N.W.2d 711, 716 (Minn.1999) (finding .predatory offender registration statute constitutional as applied to appellant); State v. Chambers, 589 N.W.2d 466, 480 (Minn.1999) (finding life sentence without possibility of release, as applied to appellant, constitutional); Wheeler v. City of Wayzata, 533 N.W.2d 405, 407 (Minn.1995) (finding Wayzata’s zoning ordinance "not constitutionally invalid as applied here”). As applied to these facts, issues concerning the statute’s .breadth do not take on constitutional significance. The majority also expresses concern that the statute might authorize a suspicion-less stop of a qualified driver who was not a party to the original revocation. I would also defer that concern to another day because the facts before us involve a driver whose violation caused the original revocation.

      . It is not clear whether the majority is of the view that the legislature could never condition the issuance of special plates on the applicant's consent to suspicionless searches or only that the legislature did not do so with sufficient clarity here. I do not read the majority opinion as foreclosing further efforts by the legislature to make the applicant’s consent more explicit.


source: Caselaw Access Project

author: FORSBERG, Judge*

license: Public Domain

text:
    In the Matter of the REQUEST FOR SERVICE IN QWEST’S TOFTE EXCHANGE.
    No. C2-02-2079.
    Court of Appeals of Minnesota.
    July 22, 2003.

      Mike Hatch, Attorney General, Karen Finstad Hammel, Assistant Attorney General, Paul, MN, for respondent MPUC.
    Jason D. Topp, Qwest Corporation, Minneapolis, MN, and Larry D. Espel, John M. Baker, William P. Hefner, Greene Es-pel, P.L.L.P., Minneapolis, MN, for relator Qwest Corporation.
    Considered and décided by STONEBURNER, Presiding Judge, FORSBERG, Judge, and HUSPENI, Judge.

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

   OPINION

FORSBERG, Judge*

Relator Qwest Corporation (Qwest) brings this certiorari appeal challenging orders issued by respondent Minnesota Public Utilities Commission (MPUC), that require Qwest to construct facilities to serve approximately 100 persons who live within the Tofte exchange area and to bear most of the cost of providing those services. Qwest asserts that the MPUC’s decisions disregard existing tariff provisions and are unsupported by the record. During the pendency of this appeal, Qwest requested a stay of the proceedings, which we granted in part in an order dated June 13, 2003.

Because the MPUC’s decision to require Qwest to bear most of the costs of providing service to these petitioners is unsupported by substantial evidence in the record and fails to adequately consider the tariff provisions that allow Qwest to recover a sufficient amount of its construction eharges to constitute a prudent investment, we reverse and remand for further proceedings.

FACTS

On May 31, 2000, Robert Tyson and other residents within the Tofte exchange area filed a complaint with the MPUC requesting an investigation into Qwest’s failure to provide telephone service to their residences. See Minn.Stat. § 237.081, subd. la (2002) (providing that MPUC “shall investigate the matters raised” in complaint made against telephone company that “service is inadequate or cannot be obtained”). Throughout this investigation, Qwest has not disputed that the MPUC has the authority to require Qwest to provide services to these petitioners. Rather, Qwest challenges the allocation of costs and . argues that it is entitled to charge the petitioners line extension charges and excess construction charges under the terms of its tariff, known as the Exchange and Network Services Tariff (tariff). This tariff governs Qwest’s local exchange activities in Minnesota.

Section 4.1.B.16 of the tariff deals with line extension charges and provides that “[c]ustomers * * * receive a free 700-foot allowance in cable installation starting at the nearest Network Facility,” defined as an “existing facility which may serve more than one customer.” After this 700-foot allowance, customers may be charged a fixed, nonrecurring fee of $55 and $.51 per foot for the first line and $.04 for each additional line.

Section 4.I.B.I. of the tariff deals with excess construction charges and provides:

Where the equipment or facilities, or both, required to provide a requested service are not available, and their provision entirely at the expense of the Company would not, in the opinion of the Company, constitute a prudent investment, construction * * * charges * * * may apply, in addition to regularly applicable charges * * * to that part of the cost of the required equipment and facilities which would not constitute a prudent investment -if the requested service were furnished subject solely to the rates, charges and initial service periods specified in the appropriate tariffs and/or price lists.

Although Qwest may determine whether the provision of requested services “entirely at [its own] expense” would constitute a “prudent investment,” the assessment of any excess or special construction charges must be approved by the MPUC. See id.; Minn. R. 7812.0600, subp. 4 (2001) (“An LSP [local service provider] may assess special construction charges approved by the commission if existing facilities are not available to serve the customer.”).

In this case, Qwest estimated that individual line extension charges would total approximately $1.2 million and that excess construction charges would total approximately $1.5 million. These estimates are based on the distance from the end of Qwest’s existing line near Highway 61 to each individual petitioner’s residence. To recover all of these costs, the charges per petitioner would range from approximately $5,000 to $45,000-, with an average charge of approximately $35,000 per petitioner. These charges do not include an estimated additional $500,000 to $1 million to provide service sufficient to support Internet access, which was also requested by the petitioners.

In connection with its investigation of petitioners’ complaint, the MPUC received comments, met with interested parties, and toured the area in question with representatives from Qwest, the Minnesota Department of Commerce (DOC), and the Residential and Small Business Utilities Division of the Office of the Attorney General (RUD-OAG). The MPUC heard arguments on May 20, 2002.

At the hearing, Qwest conceded that it should be required to make some reasonable investment to help defray the costs to each customer. MPUC commissioners questioned Qwest regarding any recent investments in the Tofte exchange area and what Qwest would consider to be a reasonable investment; these questions were left largely unanswered.

By order issued June 21, 2002, the MPUC ordered Qwest to extend its network facilities to serve the Tofte residents. The MPUC waived the 700-foot exemption in the tariff and only permitted Qwest to charge each resident the $55 non-recurring flat fee and $.51 per foot from the reasonably extended network facility, which it defined as the “point where Qwest’s service line passes the property of a customer wanting service (assumed to be the local access road).” The MPUC’s order further required Qwest to “provide service that will allow minimum data transmission rates of 14.4 kbps.”

Qwest moved for reconsideration, requesting that it be given two weeks to submit a proposal that would take into account its obligation to make a reasonable investment to extend its network. The commissioners discussed at length what would be a reasonable “demarcation” point for Qwest to extend its network before the tariff charges would begin, noting the lack of cost data in the record. The MPUC granted Qwest’s request and issued an order specifically instructing Qwest to provide information “as to the cost to individual property owners, as to how total costs would be divided between new customers, [and] as to Qwest’s participation in the cost of providing such service.” The MPUC further ordered that Qwest determine the number of people in the area likely to accept service at its proposed price.

Qwest submitted a proposal on September 6, 2002, which it characterized as a “conditional settlement only.” It proposed to construct the facilities necessary to extend service to the petitioners and their neighbors for an initial nonrecurring fee of $8,600 per lot, but only if at least 75% of the currently eligible households accepted that rate.

In a third order issued October 31, 2002, the MPUC rejected Qwest’s proposal because it “did not demonstrate with appropriate cost support that the pricing proposed was fair and reasonable.” The MPUC generally reaffirmed its original order, clarifying that Qwest “shall extend its facilities along all public, private and forest service roads serving the customers” and that the “customers shall be charged a $55 installation fee and a $0.51 per foot charged from the newly-installed facilities to their homes.” Qwest estimates that under the MPUC’s orders, it will recoup approximately $10,000, or less than .5% of the costs necessary to provide the service ordered.

ISSUES

1. What is the appropriate standard of review of the MPUC’s orders in this case?

2. Does the record support the MPUC’s decision to require Qwest to extend its network facilities, to provide service at 14.4 kbps, and to bear most of the costs?

3. Are the MPUC’s orders confiscatory?

ANALYSIS

I.

The legislature has granted the MPUC both legislative and judicial powers. In re Request of Interstate Power Co. for Auth. to Change its Rates for Gas Serv., 574 N.W.2d 408, 412 (Minn.1998). When the MPUC acts in a legislative capacity, the standard of review is whether it exceeded its statutory authority; when the MPUC acts in a quasi-judicial capacity, the standard of review is the substantial evidence test. Id. at 412-13. The MPUC characterizes this matter as quasi-legislative, like a ratemaking case or a request to “establish just and reasonable rates and prices” under Minn.Stat. § 237.081, subd. 4 (2002). Qwest characterizes this case as quasi-judicial, to which the substantial evidence test applies. See Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 668 (Minn.1984) (definition of substantial evidence includes more than some or any evidence or evidence considered in its entirety). Because this case involves the application of specific facts to the tariff provisions and raises policy questions regarding the approval of the line extension charges and excess construction costs proposed by Qwest, we conclude that the MPUC is required to act in both capacities. We thus review this case under both standards.

The parties also disagree on the burden of proof. Qwest claims that it merely sought to apply charges in accordance with its tariff and that the burden should have been placed on the petitioners to show that the tariff rates were inapplicable or should be changed. In re Minn. Pub. Utils. Comm’n (Northwestern Bell Telephone Co.), 365 N.W.2d 341, 343 (Minn.App.1985) (telephone company does not have burden of proof to show rate change is just and reasonable where changes are initially proposed by other parties), review denied (Minn. May 31, 1985). The MPUC, on the other hand, asserts that the burden was properly placed on Qwest to establish the reasonableness of its proposed charges. See In re Deregulation of Installation & Maintenance of Inside Wiring, 420 N.W.2d 650, 657 (Minn.App.1988) (telephone company has burden to show that existing rates are reasonable or that rate change is just and reasonable), review denied (Minn. May 16, 1988). The initial burden may have been on the petitioners to prove inadequacy of service, but the issue here involves the allocation of costs under the existing tariffs. We conclude that the burden of proving that its proposed rates are reasonable is more properly placed on Qwest. See Minn.Stat. § 237.28 (2002) (“In any investigation, action or proceedings arising under, or growing out of, an action initiated by the commission upon its own motion, the burden of proof shall be upon the telephone company to establish the reasonableness of the existing rates.”).

II.

Qwest does not challenge the MPUC’s authority requiring it to provide telephone service to the individual property owners in the Tofte exchange area. Rather, Qwest argues that the MPUC acted unlawfully by refusing to apply and follow the plain terms of the governing tariffs and by assessing the majority of the costs to Qwest. We agree.

Investigations of complaints by the MPUC are governed by Minn.Stat. § 237.081 (2002). Once the MPUC finds that

(1) a service that can be reasonably demanded cannot be obtained, (2) that any rate, toll, tariff, charge, or schedule * * * affecting or relating to the production, transmission, delivery, or furnishing of telephone service * * * is in any respect unreasonable, insufficient, or unjustly discriminatory, or (3) that any service is inadequate, the commission shall make an order respecting the tariff, regulation, act, omission, practice, or service that is just and reasonable and, if applicable, shall establish just and reasonable rates and prices.

Id., subd. 4. While the MPUC must respect the terms of the tariff, it also must insure that any proposed charges are just and reasonable.

With respect to the line extension charges set out in section 4.1.B.16.C. of the tariff, the MPUC concluded that running a single line from each residence to the nearest existing facility, as Qwest proposed, is not a reasonable means of providing service in this ease, given the “clustering” of the residences around a small number of lakes. The MPUC further concluded that because Qwest failed to reasonably deploy its network, it would be unreasonable to measure line extension charges from the nearest “existing facility” as provided by the line extension tariff. The MPUC reasoned that because Qwest’s rates have been set over many years at levels that permitted it to recover its expenses to reasonably extend its network and because Qwest has not yet done so in its Tofte exchange, it now has a duty to extend its network.

The MPUC’s reasoning tends to support its decision to require Qwest to extend its network into the Tofte exchange area because “existing facilities” are not available and because Qwest is required to incur some costs to reasonably extend its facilities as demand for service increases. But Qwest’s failure to make investments in the Tofte area over the years does not necessarily support the MPUC’s decision to require Qwest to bear most of the costs of now providing these services. Nor does the MPUC’s reasoning support its decision to ignore the provisions of the tariff governing line extension and excess construction charges.

Where, as here, “the equipment or facilities, or both, required to provide a requested service are not available,” the tariff allows Qwest to determine whether the provision of those services “entirely at [its own] expense” would constitute a “prudent investment.” Tariff, § 4.I.B.I. But the MPUC must still approve any proposal to assess excess construction charges. See Minn. R. 7812.0600, subp. 4 (2001) (“An LSP [local service provider] may assess special construction charges approved by the commission if existing facilities are not available to serve the customer.”).

Thus, in order to make a reasoned decision regarding approval of excess construction charges, the MPUC properly required Qwest to provide cost data to support its determination that provision of services here would not be a prudent investment. However, the mere fact that Qwest estimated that it will spend over $2 million to provide service for these 100 petitioners does not necessarily render this investment imprudent. Moreover, Qwest conceded that the entire cost of construction should not be placed on the petitioners and that it should be required to make some reasonable investment. While the MPUC properly rejected Qwest’s proposal because it failed to include supporting cost data that would indicate the proposal was fair and reasonable, we are nonetheless left with questions that can only be answered by a remand to enable Qwest and the MPUC to revisit the issues, to provide sufficient evidence to support or refute the positions taken by each, and to ultimately reach a reasonable solution that would best serve the interests of the petitioners, Qwest, and the MPUC.

On remand, Qwest must submit a proposal and provide data from which a determination can be made about how much of the costs need to be recovered to make the investment prudent while remaining reasonable to the petitioners. The MPUC’s rejection of any proposal made by Qwest must have some basis in the record. The MPUC cannot arbitrarily reject Qwest’s proposal as it did previously.

Finally, the MPUC ordered Qwest to provide a grade of service to the Tofte residents sufficient to support Internet access at 14.4 kbps. Qwest claims that this requirement is arbitrary and capricious because the MPUC lacks authority to impose such a requirement. The MPUC responds that it merely required Qwest to provide a grade of service comparable to other outlying rural areas. On remand, any requirement that Qwest provide service at a particular data transmission speed and allocation of the cost of providing such service must also be supported by substantial evidence in the record.

In reaching our decision, we agree with Qwest that the MPUC’s claim that Qwest can simply pass on to its existing customers the costs of expansion is unexplained and unsupported by evidence in the record. We also agree with Qwest that the principle of “universal service” does not justify the MPUC’s decision to require Qwest to bear the majority of the costs of installing phone lines along “all public, private and forest service roads serving the customers” in the Tofte exchange area, particularly when the record lacks evidence to support that decision. See In re MPUC’s Initiation of Summary Investigation, 417 N.W.2d 274, 287 (Minn.App.1987) (reversing MPUC’s order that required telephone company to provide free services to handicapped customers where this court found no evidence to show that the actual effect upon the company’s rate of return was considered), review denied (Minn. Mar. 18, 1988 & Apr. 4, 1988).

We further reject the MPUC’s claim that Qwest must exhaust all remedies under its alternative form of regulation (AFOR) plan, which contemplates a high level of investment for upgrading and expanding the telecommunications infrastructure. Since January 1, 1999, Qwest has operated under an AFOR plan, as permitted by Minn.Stat. §§ 287.76.772 (2002). In particular, the MPUC cites section IV.E.3.C. of the plan, which permits Qwest to petition for a rate change if it makes “[substantial financial impacts of investments in telecommunications infrastructure” that exceed a certain amount or are mandated by the government. At this point, because neither party has shown that this section of the AFOR plan applies to the provision of services for the 100 or so petitioners in the Tofte exchange area, Qwest is not prohibited from seeking to assess fair and reasonable charges under the terms of its tariff.

III.

Qwest argues that the MPUC’s decision is illegal and unconstitutional because it denies Qwest reasonable compensation for the services it has been ordered to provide. According to Qwest, if it is not allowed to impose the line extension charges and excess construction costs upon the Tofte residents, then the rates in place are confiscatory. To show that a rate is confiscatory, a utility must show with specific information that reduced rates jeopardize the financial integrity of the company, either by leaving it with insufficient operating capital or by impeding its ability to raise future capital. See Duquesne Light Co. v. Barasch, 488 U.S. 299, 310, 109 S.Ct. 609, 617, 102 L.Ed.2d 646 (1989) (“whether a particular rate is ‘unjust’ or ‘unreasonable’ will depend to some extent on what is a fair rate of return given the risks under a particular rate-setting system, and on the amount of capital upon which the investors are entitled to earn that return”). Given our decision to reverse and remand for further proceedings, we decline to address this issue. Until rates are in place, any constitutional challenge is premature. See U.S. West Communications, Inc. v. Minn. Pub. Utils. Comm’n, 55 F.Supp.2d 968, 990 (D.Minn.1999) (stating that takings claims is not ripe for review until utility exhausts its state remedies, which include an opportunity to request readjustment of rates).

DECISION

We reverse and remand the MPUC’s orders, which limit Qwest’s recovery of the cost of ordered expansion and direct the capacity of service to be provided. On remand, the MPUC must determine an allocation of costs that is fair and reasonable and that follows the tariff provisions, which allow Qwest to charge line extension and excess construction charges so as to make its provision of these services a prudent investment.

Reversed and remanded.


author: RANDALL, Judge.

text:
    FRERICHS CONSTRUCTION COMPANY, INC., Respondent, v. MINNESOTA COUNTIES INSURANCE TRUST, Appellant, v. Julian M. Johnson Construction Corporation, et. al., Third-Party Defendants, v. Buetow & Associates, Inc., Third-Party Defendant and Third-Party Plaintiff, v. Fischer Engineering, Inc., et al., Additional Third-Party Defendants, v. Twin City Glass Contractors, Inc., Intervenor.
    No. C9-03-307.
    Court of Appeals of Minnesota.
    July 29, 2003.

      Jay T. Squires, Joseph J. Langel, Rat-wik, Roszak & Maloney, P.A., Minneapolis, MN, for appellant Minnesota Counties Insurance Trust.
    Jocelyn Knoll, Scott Johnson, Fa-byanske, Westra & Hart, P.A., Minneapolis, MN, for respondent Frerichs Construction Company, Inc.
    Considered and decided by RANDALL, Presiding Judge, SCHUMACHER, Judge, and WILLIS, Judge.
   OPINION

RANDALL, Judge.

Respondent construction company, which had contracted with appellant to construct a building, sued appellant for damages resulting from a breach of contract. Appellant counterclaimed,' alleging that respondent had breached the contract by failing: (1) to report the presence of asbestos and (2) to promptly cease operations upon discovery of the asbestos, contending that it incurred expenses in abating the asbestos from the site and from a pit where respondent had placed it. The district court granted summary judgment to respondent on the counterclaim. Appellant argues that there was a'jury question as to whether respondent “reasonably believed” that asbestos was present, which would have required it to stop excavation. We affirm.

FACTS

The facts of this case concern a site known as the Empire Builder Industrial Park. This site has had various uses over the years, including uses as an asphalt plant, a foundry, and an auto-salvage yard. In 1985, the St. Paul Port Authority (SPPA) purchased the site along with adjoining land to re-develop it into the Empire Builder Industrial Park. Over the course of the project, various buildings were demolished. Part of this process involved the removal of asbestos insulation.

In 1993, the SPPA hired American Engineering and Testing (AET) to conduct environmental assessments of the site, including soil borings and soil testing. Upon performing a Phase I evaluation, AET did not find any contamination of the soil. Although subsequent tests revealed that the site’s soil was contaminated with diesel-range organics and volatile organic compounds, no asbestos was detected. On April 14, 1999, based on AET’s numerous environmental assessments, the Minnesota Pollution Control Agency (MPCA) issued a “No Further Action” letter to the SPPA, stating SPPA need not take any further action to remediate groundwater and soil contamination for the site. This letter cleared the way for construction to begin on the site. Appellant Minnesota Counties Insurance Trust (MCIT) purchased the site shortly thereafter.

In November 1999, AET completed an excavation contingency plan that was part of a conditional purchase agreement between appellants and the SPPA to offset the cost of geotechnical soil-correction work in the area where the building was to be constructed. The contingency plan identified steps the general contractor should take to detect contamination during the course of excavation. But, the contingency plan only addressed detecting oily or stained soil, and not asbestos.

On May 12, 2000, appellant entered into a contract with respondent, Frerichs Construction Company, Inc., to be the general contractor for a project to construct a new office building. The pertinent part of the contract states in Article .10.1.2 that:

In the event the Contractor encounters on the site material reasonably believed to be asbestos or polychlorinated biphe-nyl (PCB) which has not been rendered harmless, the Contractor shall immediately stop Work in the area affected and report the condition to the Owner and Architect in writing.

The contract further provides in Article 10.1.4 that:

To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor, Architect, Architect’s consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorney’s fees, arising out of or resulting from the performance of the Work in the affected area if in fact the material is asbestos or polychlorinated biphenyl (PCB) and has not been rendered harmless, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Owner, anyone directly or indirectly employed by the Owner or anyone for whose acts the Owner may be liable, regardless of whether or not such claim, damage, loss or expense is .paused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Subparagraph 10.1.4.

Despite the existence of -the contingency plan, respondent was not made aware of the plan until July 24, 2000.

Respondent began construction of the building on June 12, 2000, and on June 19, 2000, respondent’s excavation subcontractor, third-party defendant Julian M. Johnson Construction Corporation (Johnson), began the project’s excavation work. While excavating the site, Johnson encountered buried concrete and other construction debris, but nothing it recognized to be asbestos. Johnson transported some of the excavated materials to the Hammes Sand and Gravel Company in Lake Elmo, Minnesota, while the rest of the material was stockpiled on the site.

During the excavation process, a representative of Stork Twin City Testing (TCT) was retained by appellant to perform independent testing. The representative examined the excavation and construction debris and did not detect the presence of asbestos. Further, project architect Randy Engel visited the site on July 7, 2000, to observe and report on the progress of the construction. Engel did not detect the presence of asbestos. A few days later, the MPCA visited the site and inspected the stockpiled soil. The MPCA, once again, did not detect the presence of asbestos.

On July 18, 2000, MPCA returned to the site to re-inspect the soil. While inspecting the site, a MPCA worker discovered what appeared to be asbestos. MPCA immediately notified appellant, who in turn, notified respondent. Respondent correctly stopped work on the excavation and piling as soon at it learned of the possible presence of asbestos. Subsequent tests were conducted to determine whether the soil contained asbestos.

During the course of the testing, a meeting was held on July 19, 2000, where it was determined that respondent would suspend all excavation until the parties were notified of the test results. Braun Intertec collected various soil samples that confirmed MPCA’s suspicion of the presence of asbestos. Shortly thereafter, Braun completed a contingency plan addendum that described the procedures that should be used to investigate, manage, and dispose of contaminated soil and construction debris encountered during the project construction. Even with the existence of the addendum, all grading and site .work remained on hold until additional testing was completed. Over the next several months, additional evidence of the presence of asbestos was discovered, furthering delay of the project. This delay caused the completion date of the project to be postponed.

On December 5, 2001, respondent filed a complaint alleging breach of contract and breach of warranty by appellant. Appellant counterclaimed against respondent and Johnson. Count I of the counterclaim alleged breach of contractual obligation to notify the owner of alleged differing site conditions and the presence of asbestos. Count II alleged breach of contractual obligation'to seasonably complete the project. Respondent and Johnson moved for summary judgment, seeking a dismissal of Count I of the counterclaim. On October 9, 2002, the court granted summary judgment on Count I, finding that “[t]he pertinent facts necessary to determine the issues raised herein are uncontroverted as is the clear and undisputed language of the contract between the parties.” This appeal followed.

ISSUE

Is the question of whether respondent reasonably believed that asbestos was present an issue of fact for the jury, thereby rendering it ah error for the district court to grant summary judgment in favor of respondent, dismissing appellant’s counterclaim?

ANALYSIS

On an appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact, and (2) whether the district court erred -in its interpretation of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). This court views the evi-denee in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

In applying rule 56, the district court must determine whether the nonmoving party has presented, based on affidavits, depositions, pleadings, and other submissions, a genuine issue of material fact for trial. Minn. R. Civ. P. 56.03. Summary judgment should not be granted if reasonable minds could draw different conclusions from the evidence. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997). The burden falls on the nonmoving party to present evidence sufficiently probative to an essential element of the claim to allow reasonable minds to reach different conclusions. Id. at 71.

Appellant argues that the question of whether respondent “reasonably believed” that asbestos was present in the material it was excavating is a question of fact for the jury to decide. The Restatement of Torts states that “reasonably believes” is used to:

[djenote the fact that the actor believes that a given fact or combination of facts exists, and that the circumstances which he knows, or should know, are such as to cause a reasonable man so to believe.

Restatement (Second) of Torts § 11 (1965). Reasonableness is generally considered a question of fact for the jury. Weaver v. Sate Farm Ins. Cos., 609 N.W.2d 878, 883 (Minn.2000). Reasonableness becomes an issue of law when the record is devoid of any facts that would support a conclusion that an action or belief is reasonable. See Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn.1995).

Appellant’s counterclaim alleges in Count I that respondent breached a contractual obligation to report the presence of asbestos. The record supports the district court’s decision to grant summary judgment in favor of respondent with regard to Count I of the counterclaim. Part of the contract between respondent and appellant requires respondent to stop excavating if it “encounters on the site material reasonably believed to be asbestos.” The record contains no evidence that respondent ever reasonably, believed asbestos was present at the site, and then did not report it.

Appellant contends that when the MPCA inspected the site on July 18, 2000, it took only moments for MPCA personnel to notice the presence of asbestos. Rather, the evidence indicates that when the MPCA inspected the site on July 18, the MPCA representative discovered material that only appeared to be asbestos. As stated above, multiple times prior to July 18, 2000, people and entities in the busi.ness of looking for asbestos had not noticed any at the construction site. The presence of asbestos, after the July 18 sighting, was confirmed only after extensive testing was completed on the soil. In the meantime, respondent had correctly ceased all work at the site pursuant to the contract when it learned of the July 18 sighting.

Respondent argues convincingly that its failure to detect the possibility of asbestos before July 18 was not unreasonable because multiple parties, including the MPCA, a representative of TCT, and project architect Randy .Engel had all previously failed to detect the presence of asbestos before July 18, despite their contacts with the site.

Appellant argues that William Naatz, respondent’s project superintendent, testified that he had been involved in four or five projects where asbestos, or material believed to be asbestos, was found, and, thus, Naatz “could have” or “should have” noticed the possible presence of asbestos before July 18, 2000. A review of Naatz’s testimony reveals that before July 18, 2000, his only encounters with asbestos consisted of observing asbestos materials wrapped around old, deteriorated, but intact, pipes located in existing and intact buildings. Old pipes were not involved in the MPCA July 18 sighting. Naatz testified that he was only able to recognize asbestos material after, October 12, 2000. Naatz testified that on or about October 12, 2000, an agent from Mavo Systems “educated” him on how to identify asbestos under the present circumstances. It was only after this “instruction” that Naatz was able to recognize the possible presence of asbestos at the site. Naatz stated that if he had seen the same material before July 18, 2000, he would not have suspected the material to be asbestos.

Appellant asserts that respondent excavated hundreds of cubic yards of materials, and, based on its expert testimony, a reasonable and prudent contractor would have known that asbestos was being unearthed at the site because there was simply too much to miss. We disagree. One of the “experts,” Kruse, was assigned to test the Hammes pit. Kruse had' no first-hand knowledge of the site’s condition. He gathered the basis for his “expert report” solely from second-hand information about the site from a colléague. Appellant’s other expert, Connell, was the representative-from the MPCA who discovered what appeared to be asbestos at the site. Notably, the MPCA was at the site approximately a week earlier and had failed to detect the presence of asbestos.

We conclude, as the district court did,that appellant’s two expert opinions regarding the presence of asbestos at the site did not establish a fact question as to whether respondent had a basis to reasonably believe that there was asbestos at the site prior to July 18, 2000. What the record does show is that the site, from which respondent removed hundreds of cubic yards of materials, had been inspected, tested, and approved by environmental engineers and the MPCA. Appellant’s predecessor’s, SPPA, also extensively tested the site and failed to detect the presence of asbestos.

Importantly, respondent is not licensed to handle or identify hazardous materials. Respondent did not advertise itself as such to appellant, and appellant, with full control over whom it would hire to excavate and who might be allowed to subcontract, did not specify that the bidder have expertise in asbestos or other hazardous material identification. The contract did not require respondent- to test for or actively seek asbestos or to furnish trained personnel capable of identifying hazardous materials. The contract merely stated that respondent was to suspend work if it encountered materials reasonably believed to be asbestos and report this to appellant.

The contract provided that respondent did not assume responsibility for all liability related to the construction site. It provided that appellant was not responsible if hazardous material was found on the site.

There is insufficient evidence in the record to create a fact issue as to whether respondent reasonably believed, prior to July 18, 2000, that asbestos was present at the site. Accordingly, summary judgment was appropriate.

DECISION

We conclude there are no genuine issues of material fact concerning whether respondent reasonably believed that asbestos was present at the site. It was not error for the district court to grant, summary judgment in favor of respondents, dismissing appellant’s counterclaim.

Affirmed.


author: GORDON W. SHUMAKER, Judge.

text:
    Tracie Ann GRIESE, Petitioner, Respondent, v. Christopher R. KAMP, Appellant.
    No. C8-02-2281.
    Court of Appeals of Minnesota.
    July 29, 2003.

      Marty G. Helle, Hoversten, Johnson, Beckmann & Hovey, L.L.P., MN, for respondent.
    Brandon V. Lawhead, Lawhead Law Offices, Austin, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, ANDERSON, Judge, and HALBROOKS, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Appellant-father alleges that the district court abused its discretion when it declined to hold an evidentiary hearing before denying his motion to modify custody. He argues that the court .erred when it refused to give sufficient weight to the initial affidavits of respondent-mother’s parents, which favored appellant-father, but were later contradicted by subsequent affidavits from respondent-mother’s parents. Because of the seriousness of the allegations and the contradictory nature of the affidavits by • the same affiants, we reverse and remand for an evidentiary hearing.

FACTS

Appellant-father Christopher R. Kamp and respondent-mother Tracie Ann Griese are the parents of a daughter, L.A.G., who was born in 1995. Griese has sole physical custody of L.A.G., and for the past two years both have lived in the home of Griese’s parents, Daryl and Betty Griese (collectively, the grandparents).

On November 21, 2002, Kamp filed a change-of-custody motion, which was accompanied by affidavits from Kamp, Daryl Griese, Betty Griese, and Tracie Ann Griese’s ex-boyfriend, Kevin Johnson. In his motion, Kamp alleged that Griese’s endangerment of the child and a change in circumstances warranted a custody modification. Kamp’s affidavit stated that the child has expressed concerns for her safety, recounting L.A.G.’s statements that Griese hit her when Griese was under the influence of drugs, took L.A.G. to parties where drugs were being used, and smoked marijuana in her vehicle with L.A.G. present. Johnson’s affidavit stated that Griese excessively used drugs, she used drugs in L.A.G.’s presence, and she hit L.A.G. for no reason.

Daryl Griese’s initial affidavit stated, among other concerns, that Griese “is currently using drugs frequently,” “smokes pot and uses other drugs around [L.A.G.],” has an extensive drug problem that “she cannot resist * * * even for a short period of time,” takes L.A.G. to parties where drugs are used, drives recklessly, has driven while under the influence of drugs and with L.A.G. in the car, does not carry auto insurance, and “puts the child in extremely dangerous situations.” Daryl stated that Griese “has done no child care,” has been “passed out upstairs” while L.A.G. was downstairs unsupervised, and that, when the grandparents are not present, “[L.A.G.] is neglected.” He concluded his affidavit by stating that giving custody to Kamp is “the best way to insure that the child is safe.”

The content of Betty Griese’s initial affidavit was nearly identical to that of Daryl Griese, but Betty added that Griese’s drug use had been escalating, L.A.G. will be harmed if she remains in Griese’s custody, L.A.G. “is in extreme immediate danger of physical harm because of [Griese’s] uncontrolled drug use,” and Griese “is a flight risk with the child,” suggesting that Griese will “take [L.A.G.] out of state and hide.”

In response, Griese filed an opposing affidavit denying the allegations in the affidavits of Kamp, Johnson, and Griese’s parents. She stated, among other things, that she has smoked marijuana in the past, but has not smoked marijuana “for some time now.”

Two weeks after they submitted their initial affidavits, the grandparents filed additional affidavits that qualified and directly contradicted portions of their prior affidavits. These additional affidavits stated that the grandparents “can’t prove that [Griese] is using drugs,” though they have noted “some strange behavior, which may have been caused by drugs,” and that Daryl “has smelled things that [he] thinkfe] smelled like marijuana.” The grandparents also minimized their prior-stated fear of “physical harm” to L.A.G. as merely being their fear that Griese would prevent L.A.G. from seeing them. They stated that they “certainly suspect” that Griese has driven a car while under the influence of drugs, but they “have no evidence” that she has done so. The affidavits also stated that even though they suspect and have heard rumors that Griese’s friends do drugs, they have never seen them do so. They said that their prior statements that Griese was “passed out” were inaccurate, restating that Griese was only “sleeping,” though sometimes the sleeping was “at strange hours.” The grandparents added that when they made their prior affidavits, they did not think that their statements “would be used to take [L.A.G.] away from [Griese] on a permanent basis.”

Without holding an evidentiary hearing, the district court denied Kamp’s motion for custody modification. The court explained that although the affidavits from Kamp and Johnson alone were insufficient to warrant an evidentiary hearing, those affidavits — when coupled with the initial affidavits from the grandparents — did establish the requisite prima facie case to require an evidentiary hearing. But the court went on to state that it could not take the initial affidavits as true because they were “directly contradicted, explained and/or compromised, by subsequent affidavits of the same individuals, i.e. [Griese’s] parents.” Consequently, the district court found that Kamp failed to meet the requirements for an evidentiary hearing, and it denied Kamp’s motion for an evidentiary hearing and his request for physical custody. This appeal follows.

ISSUE

Where the district court was presented with contradictory material affidavits from the same affiants, did it err by denying an evidentiary hearing?

ANALYSIS

Generally, an appellate court’s review of a district court’s decision to dismiss a custody-modification petition without an evidentiary hearing is limited to whether the district court abused its discretion. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn.App.1997). But when a district court’s decision relies upon affidavits that are available in the same form to an appellate court, this court reviews the decision de novo. Ross v. Ross, 477 N.W.2d 753, 755-56 (Minn.App.1991). Where, as here, the appellate court is called upon to read and interpret the same affidavits available to the district court, and where there is no evidence beyond those documents, we hold that the appropriate standard of review is de novo.

A party seeking modification of child custody must submit an affidavit asserting facts to support thé requested modification. Minn.Stat. § 518.185 (2002). To establish a prima "facie case and to obtain an evidentiary hearing, a party moving for custody modification must establish four elements:

(1) a change in the circumstances of the child or custodian; (2) that a modification would serve the best interests of the child; (3) that the child’s present environment endangers her physical or emotional health or emotional development; and (4) that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change.

Geibe, 571 N.W.2d at 778 (citation omitted); see Minn.Stat. § 518.18 (providing relevant factors when considering motions for modification of custody). The movant’s affidavits must show the present endangerment of the child, and a showing of endangerment is a threshold issue. See Minn.Stat. § 518.18(d)(iv) (2002) (requiring analysis of the child’s “present environment”); Niemi v. Schachtschneider, 435 N.W.2d 117, 119 (Minn.App.1989).

When evaluating these factors, a district court must accept the moving party’s affidavits as true. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981). If the movant’s affidavits do not provide sufficient grounds for modification, the trial court should deny an evidentiary hearing. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn.App.1989), review denied (Minn. June 21,1989). Conversely, where some factual dispute exists regarding whether the present environment endangers the child, the district court should schedule an evidentiary hearing. Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn.App.1991).

A court must disregard any directly contrary affidavits and may only use an opposing party’s contrary affidavits to “explain the circumstances surrounding the accusations.” Geibe, 571 N.W.2d at 779 (citation omitted). Here, the district court acknowledged that Kamp’s and Johnson’s affidavits, when viewed with the grandparents’ initial affidavits, established a prima facie case. The court stated, however, that the grandparents’ second set of affidavits effectively nullified the statements in their initial affidavits. Specifically, it ruled that it could not “take as true” any affidavits “that are directly contradicted, explained and/or compromised, by subsequent affidavits of the same individuals, i.e. [Griese’s] parents.” This ruling, however, is directly contrary to the rule that the court must accept as true the movant’s affidavits, must disregard any affidavits directly contrary to the movant’s affidavits, and may only use those contrary affidavits to “explain the circumstances surrounding the accusations.” Id. The district court has done precisely the opposite by taking as true the grandparents’ second set of contradictory affidavits and disregarding their pri- or affidavits.

Accordingly, the district court may not give weight to any directly contradictory evidence in the grandparents’ second set of affidavits. Even those portions that appear to explain the circumstances surrounding their prior statements serve to confirm that the grandparents still suspect that Griese has engaged in the endangering behavior, but that they do not have clear evidence to prove it. However, for the purposes of a Nice-Petersen hearing, allegations need not be corroborated with additional independent evidence. Lilleboe v. Lilleboe, 453 N.W.2d 721, 722-23 (Minn.App.1990) (reversing when trial court denied evidentiary hearing because of lack of independent substantiation).

The grandparents’ contradiction of their prior affidavits, at the very least, raises a question of fact requiring an evidentiary hearing. See Larson v. Larson, 400 N.W.2d 379, 381-82 (Minn.App.1987) (holding that contradictory, mitigating affidavits justify an evidentiary hearing). In the context of summary judgment in other civil cases, Minnesota courts have held that a party cannot eliminate the damage done in prior evidence by providing later, contradictory evidence. See, e.g., Oreck v. Harvey Homes, Inc., 602 N.W.2d 424, 429 (Minn.App.1999) (in summary-judgment proceeding, self-serving affidavit later contradicting earlier deposition testimony did not create material fact issue), review denied (Minn. Jan. 25, 2000). As in Nice-Petersen hearings, summary-judgment cases have an exception stating that later affidavits from the same individuals may only explain and clarify the prior statements, rather than simply contradicting them. Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 541 n. 4 (Minn.2001). The courts in these cases have consistently given credence to elements of the first testimony and have stated that subsequent testimony cannot serve to fully eliminate the effects of the first.

Minnesota courts have held that ev-identiary “hearings are strongly encouraged where allegations are made of present endangerment to a child’s health or emotional well being.” Ross, 477 N.W.2d at 756 (citing Harkema, 474 N.W.2d at 14; Lilleboe, 453 N.W.2d at 724). Considering the seriousness of the allegations alleged • by Kamp and by the grandparents, an evidentiary hearing is even more appropriate. See Harkema, 474 N.W.2d at 14 (requiring evidentiary hearing when affidavits provide factual disputes regarding endangerment). An evidentiary hearing serves to resolve disputes with contradictory evidence. Larson, 400 N.W.2d at 381-82 (requiring evidentiary hearing after submission of contradictory, mitigating affidavits). There does not appear to be more contradictory evidence than that in the present case, where the grandparents initially provided very damaging affidavits and then directly contradicted those statements two weeks later.

Finally, we address respondent’s motion to strike. In response to Griese’s affidavits, Kamp filed an affidavit that he included in the appendix to his appellate brief. Because the district court did not consider Kamp’s responsive affidavit, we grant respondent’s motion to strike it from the appellate record. See Minn. R. Civ.App. P. 110.01 (defining record on appeal).

DECISION

Because the conflicting affidavits demonstrate that an evidentiary hearing is needed to ascertain whether L.A.G. is in a dangerous situation, we hold that the district court erred by denying an evidentiary hearing, and we remand for further proceedings.

Reversed and remanded; motion granted.