author: GORDON W. SHUMAKER, Judge. MINGE, Judge,

text:
    JEWISH COMMUNITY ACTION, et al., Petitioners, National Lawyers Guild—Minnesota Chapter, et al., Petitioners, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    Nos. CX-02-1214, C4-02-1290.
    Court of Appeals of Minnesota.
    March 11, 2003.

      Todd A. Noteboom, Daniel L. Palmquist, Timothy P. Griffin, Mical R. Kapsner, Leonard, Street and Deinard, Minneapolis, MN, for petitioners Jewish Community Action, et al.
    Jordan S. Kushner, Minneapolis, MN, and Peter James Nickitas, St. Paul, MN, for petitioners National Lawyers Guild— Minnesota Chapter, et al.
    Mike Hatch, Attorney General, Melissa J. Eberhart, Omar A. Syed, Assistant Attorneys General, St. Paul, MN, for respondent.

      Teresa Jo Nelson, St. Paul, MN, for Minnesota Civil Liberties Union.
    Eric Lipman, State Representative, Minneapolis, MN, for amicus curiae legislators.
    Steven L. Theesfeld, Yost and Baill, LLP, Minneapolis, MN, for amicus curiae Minnesotans for Immigration Reform.
    Considered and decided by MINGE, Presiding Judge, SHUMAKER, Judge, and HALBROOKS, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

This is a pre-enforcement declaratory-judgment action over which this court has original jurisdiction under Minn.Stat. § 14.44 (2002). The petitioners seek judgment declaring invalid certain department of public safety rules pertaining to proof of identity for the issuance of drivers’ licenses and state identification cards. The petitioners contend that the department exceeded its authority in promulgating the rules, failed to comply with statutory rule-making requirements, and violated state and federal constitutions.

FACTS

In January 2002, the Minnesota Department of Public Safety (DPS) issued a request for comment on a possible rule that would require applicants for Minnesota drivers’ licenses or state identity cards to prove lawful presence in the United States and would link the period of validity of a short-term resident alien’s license to the term of his or her visa. Because an anti-terrorism bill introduced in the legislature shortly thereafter included similar measures, the DPS postponed rulemaking to await the outcome of the legislative process. The bill passed in May 2002, without the driver’s-license provisions.

In June 2002, shortly after the legislative session concluded, the DPS adopted new rules, amended an existing rule, and repealed a rule, all governing proof of identity for the issuance of drivers’ licenses, drivers’ permits, state identification cards, and motor-vehicle title certificates or registrations (collectively, license or licenses). Amended Minn. R. 7410.0400 provides that an applicant for a license who cannot prove identity through a previously issued Minnesota license must present a “primary document,” such as an official record of birth, an adoption certificate, a listed federally issued identification card, a passport, or a listed immigration document. In addition to the “primary document,” the applicant must present a “secondary document,” which could be an additional primary document; a foreign driver’s license, permit, or identification card with photographic or digitized images; certain birth records; or certain school records.

Minn. R. 7410.0410, a new rule, requires license applicants to prove Minnesota residency and either U.S. citizenship or lawful short-term, indefinite, or permanent presence in the United States. The rule specifies the documents acceptable as proof of residency and lawful presence.

Minn. R. 7410.1810, also a new rule, requires that a license contain a full-face image of the license-holder, with head and face unobscured and uncovered. Headcov-erings are allowed only in the case of applicants suffering from illness or disease-related hair loss. In adopting this rule, the DPS also repealed Minn. R. 7410.1800, which provided an exception to the photograph requirement for applicants who opposed being photographed on religious grounds.

State agencies, such as the DPS, have statutory authority to adopt, amend, or repeal their rules, but, subject to exceptions, the agencies must follow the procedures designated in Minn.Stat. §§ 14.001 to 14.69. Minn.Stat. § 14.05 (2002). Those procedures include (1) public review of the agency’s statement of the need for and reasonableness of the rule, Minn.Stat. § 14.131, and (2) an opportunity for a public hearing on the proposed rule, Minn. Stat. § 14.25.

An agency may adopt, amend, or repeal a rule without following the usual rulemak-ing requirements if there is “good cause” to do so. This exception applies if the agency finds the usual requirements “unnecessary, impracticable, or contrary to public interest” and the rule addresses “a serious and immediate threat to the public health, safety, or welfare.” Minn.Stat. § 14.388 (2002). When the DPS amended rule 7410.0400, adopted rules 7410.0410 and .1810, and repealed rule 7410.1800, it invoked the “good-cause exception” and did not submit the matter for public review. Instead, as required by statute, the DPS submitted its findings of fact, supporting reasons, and supporting documents to the Minnesota Office of Administrative Hearings for review.

The DPS characterized licenses as “gateway documents,” which enable holders to establish ostensibly accurate and legitimate identities and to gain privileges available only to people who can identify themselves through widely accepted official documentation. With such gateway documents, terrorists can blend into society without raising suspicion and can prepare sabotage schemes from the inside. The DPS determined that the rule changes will reduce fraud in license applications and will make it difficult for undocumented aliens to obtain or to continue to hold licenses. Drawing principally on media reports of terrorist activities and threats, the DPS further determined that public rulemaking would have been contrary.to the public interest because of the urgency of dealing with the threat of terrorism.

An administrative law judge (ALJ) reviewed the DPS’s submissions; found that the DPS failed to show an immediate, serious threat to public safety or that the ordinary rulemaking process would be contrary to the public interest; and disapproved the rules. The ALJ noted that the DPS had demonstrated the “very real” threat of terrorism nationally, but “the immediacy of the threat, insofar as it can be addressed through drivers’ licenses, has not been shown.”

The DPS then requested review by the chief administrative law judge under Minn. R. 1400.2400, subp. 5 (2001), and provided additional evidence of the national threat of terrorism and' the opinion of certain federal officials that further attacks in the United States are inevitable. The chief ALJ concluded that the proposed rules were “a proper use of the Good Cause exemption” and approved them, with modifications not at issue here. The rules took effect on July 12, 2002, and are valid for two years. Minn.Stat. § 14.388 (2000).

Petitioners challenge these rules. They also challenge two additional changes to internal DPS license-issuance policy. The first provides that licenses issued to temporary residents must contain the phrase “status check” and the expiration dates of the residents’ visas. The second provides that the DPS will automatically cancel the license of any temporary resident who does not inform the DPS of a visa renewal or extension prior to the status-check date. Because the additional changes were not included in the final rules as promulgated, they may be not be challenged in a pre-enforcement action under Minn.Stat. § 14.44. Minn. Ass’n of Homes for the Aging v. Dep’t of Human Servs., 385 N.W.2d 65, 69 (Minn.App.1986), review denied (Minn. June 13, 1986).

ISSUES

1. What is the standard governing appellate review of an agency’s finding of “good cause” to engage in exempt rule-making?

2. Did the DPS satisfy the requirements governing good-cause exempt rule-making?

ANALYSIS

The validity of an administrative rule may be challenged through a petition for declaratory judgment addressed to this court if the rule allegedly would interfere with or impair the petitioner’s legal rights or privileges. MinmStat. § 14.44 (2002). This court

shall declare the rule invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was adopted without compliance with statutory rulemaking procedures.

Minn.Stat. § 14.45 (2002).

Although petitioners challenge the rules on all three grounds provided in section 14.45, the issue of compliance with statutory rulemaking procedures is dispositive, and we need not address the other grounds.

Standard of Review

Because the appellate courts of this state have not previously been asked to review an agency’s findings of good cause to engage in exempt rulemaking, the question of the standard of review to be applied is one of first impression. We turn to federal law for guidance. Under the federal administrative-procedure act, the existence of good cause to engage in exempt rulemaking is an issue of law. Washington State Farm Bureau v. Marshall, 625 F.2d 296, 306 (9th Cir.1980); Ohio State Consumer Educ. Ass’n v. Sehweiker, 541 F.Supp. 915, 919 n. 2 (D.C.Ohio 1982). Like Minnesota law, the federal statute permits a good-cause exemption when public rulemaking is impracticable, unnecessary, or contrary to public interest. We find no basis for treating Minnesota’s good-cause exemption differently from the federal approach; thus, we hold that the existence of good cause for purposes of exempt rulemaking under Minnesota administrative law is a question of law. This court reviews an agency’s conclusions of law de novo. St. Otto’s Home v. Minn. Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989) (requiring de novo review of agency decision involving questions of law).

Existence of Good Cause

The DPS found that there was good cause to engage in exempt rulemaking. In the context of this case, the existence of good cause depends on a showing (1) that there is a serious and immediate threat to public health, safety, or welfare; (2) that the rules address that threat; and (3) that it would be contrary to the public interest to follow usual rulemaking procedures. See Minn.Stat. § 14.388 (2002).

Serious and Immediate Threat

The seriousness of the threat of terrorism to life, liberty, or property is beyond dispute. The September 11, 2001, terrorist attacks on the World Trade Center in New York and the Pentagon in Washington, D.C., are chilling evidence of the palpable gravity of the threat that the DPS seeks to address. The intelligence information on which the DPS relied in its findings — some of which included communications intercepted, from terrorist networks — portend additional attacks at any time and anywhere throughout the United States. The ALJ questioned the DPS’s showing of immediacy of the threat or its particular links to Minnesota. Realistically, effective terrorism, such as that carried out on September 11, is clandestine and surreptitious, and its perpetrators will unquestionably conceal locations and timing of attacks until they are launched. Thus, better evidence of the immediacy and locations of future attacks than that supplied by the DPS is likely not readily obtainable before the fact. We hold that the DPS sufficiently demonstrated both the seriousness and the immediacy of the threat of harm the rules purportedly address.

Focus of the Rules

The DPS determined that the rules will “tighten homeland security in Minnesota,” noting that some of the terrorist activity in the United States is carried out by foreign nationals and that many foreign nationals are illegally present in this country. Because even people not entitled to be in the United States can usually obtain or retain licenses, they can appear to be lawfully present and can plan nefarious activities without easy detection:

The September 11th hijackers were described as initially entering the country, some through fraudulent means, establishing an identity through state-issued documents and blending into society in order to plan their attack.

According to the DPS, the new rules will close an identification loophole that has made identification fraud and identity theft possible.

The DPS has not demonstrated a particularly strong link between license regulation and the perpetration of terrorist crimes. But unarguably a critical key to the prevention and detection of crime is the ready and accurate identification of criminals. Law enforcement nationwide devotes considerable resources to identification through fingerprint, voice, and DNA analysis; blood-type matching; and comparable procedures. The new rules, aimed at fostering accurate identification of all license holders — citizens and permanent and temporary residents alike — address the problem of protecting the safety and welfare of people in Minnesota. We hold that the rules are generally tailored to address a problem of public safety; but, because of our analysis in the following section, we do not further reach the question of the substantive propriety of the rules, to deal with threats of terrorism.

Contrary to Public Interest

The third factor is whether following usual rulemaking procedures would be contrary to the public interest. In his order approving the rules as modified, the chief ALJ highlighted the significance of the ordinary rulemaking process:

Removing rules from the normal process precludes notice to the public and any opportunity for the affected members of the public to comment on the potential impacts of the proposed rule. This is a significant intrusion into the rights of the public and increases the risk of unanticipated adverse consequences arising from application of the rule.

The DPS contended that the contrary-to-public-interest factor “requires inquiry into whether delay occasioned by public participation in rulemaking would seriously injure important public interests.” It then argued that “Minnesota must produce a recognizably reliable source of identification” in issuing licenses to “reduce exposure to identity theft and fraud” and “to protect the integrity of Minnesota” licenses.

The chief ALJ concluded that federal security alerts of ongoing threats and the desire of the federal Office of Homeland Security “to establish tighter control over foreign visitors” through license changes do not justify exempt rulemaking. But the DPS produced evidence of hundreds of license applicants whose federal admission documents were “due to expire within days of the application” and evidence of “a significant number of individuals using fraudulently obtained identifications.” The chief ALJ noted that, although there is no link between those individuals and the threat addressed by the rules, the DPS

did present facts showing that, on a nation-wide basis, non-U.S. citizens are seeking to obtain forms of legitimate identification documents as a part of their plan to conduct terrorist operations within the country.

The chief ALJ concluded that current license rules are susceptible to exploitation by persons not entitled to receive licenses and that the DPS “has shown that some of those persons present a risk of harm within the United States.” It is this evidence, according to the chief ALJ, that provides “adequate justification that the exempt rule process is needed.”

Exempt rulemaking is an exceptional procedure and is reserved for emergencies. Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir.1982). It obviates “the opportunity to bring to the agency’s attention all relevant aspects of the proposed action and thereby enhance the quality of agency decisions.” Cmty. Nutrition Inst. v. Butz, 420 F.Supp. 751, 754 (D.D.C.1976). It has a negative impact on the statutory goal of “increas[ing] public accountability of administrative agencies.” Minn.Stat. § 14.001(2) (2002). See U.S. Dep’t of Labor v. Kast Metals Corp., 744 F.2d 1145, 1152 (5th Cir.1984) (noting that an administrative agency needs public input to remain informed).

The ALJ who originally considered the rules noted some of the significant concerns in bypassing the full rulemaking process:

As to the substance of the rule, the commentors assert that a full rulemak-ing process should consider whether or not * * * the commissioner has statutory authority to address immigration issues through licensing of drivers, whether or not the rule conflicts with the four-year license period in statute, and whether or not there are equal protection problems in the rule’s treatment of immigrants.
An exempt rule record is inadequate to make a decision on issues such as these.

The record before us is more conclusory than factual on the contrary-to-public-interest standard. The DPS simply asserts that delays in implementing the rules would be inimical to the public safety. The DPS has not quantified the delay; thus, we do not know whether it is a matter of weeks, months, or years. Obviously, even the DPS believed that some delay is tolerable because it initially sought to adopt the rules through the lengthier public process and then suspended its rule-making efforts during the 2002 legislative session to await the outcome of the governor’s anti-terrorism bill. Even though the DPS was undoubtedly proceeding in good faith to avoid unnecessary duplication and potential conflicts in rules and statutes, its action evinces its belief that the formal rulemaking process, with public participation, could be adequate to address the problem.

To satisfy the contrary-to-public-interest factor, the DPS must reasonably quantify the delay that will occur if formal rulemak-ing is undertaken; show with reasonable particularity how the public interest will likely be harmed by that delay; and demonstrate specifically how the exempt rule-making procedure will better serve the public interest. We hold that the DPS has faded to carry its procedural burden as to the contrary-to-public-interest requisite, and, therefore, has failed to show good cause for exempt rulemaking. Thus, solely on procedural grounds, we declare rules 7410.0410, .1800, and .1810 to be invalid.

DECISION

The exempt rules address a threat to public safety that arguably might be both serious and immediate. But because the DPS has not demonstrated with reasonable particularity how rulemaking through public procedures would have harmed the public interest, the statutory requirements governing good-cause exempt rulemaking have not been satisfied.

Rules declared invalid.

MINGE, Judge,

(concurring specially).

I concur in this opinion with one exception. I would not reach the question of whether the DPS has sufficiently demonstrated the seriousness and immediacy.of the threat of harm to support the rules in question. Since this decision invalidates the rules, this statement on seriousness and immediacy is dicta and that determination should be left to the DPS, the legislature and any subsequent court consideration of possible replacement rules. Certainly all of us, including appellate judges, agree that our nation faces threats from terrorists. The tragedy of the September 11, 2001, airplane hijackings and crashes are a grim reminder that we cannot be complacent. However, at the same time we are keenly aware that some past claims of seriousness and immediacy have been used to justify policies which in retrospect have been discredited. Compare Korematsu v. U.S., 328 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944) (finding constitutional the internment of Japanese-Americans during the second world war) with Civil Liberties Act of 1988, Pub.L. No. 100-383, 102 Stat. 903 (apologizing for the internment of Japanese-Americans and making restitution to internment survivors).

      . See 5 U.S.C. 553(b)(B) (2000) (exempting rulemaking from notice and comment requirements "when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest”).


source: Caselaw Access Project

author: KALITOWSKI, Judge.

license: Public Domain

text:
    Steven M. THUL, Appellant, v. STATE of Minnesota, Respondent.
    No. C9-02-1365.
    Court of Appeals of Minnesota.
    March 11, 2003.

      Steven J. Meshbesher, Meshbesher & Associates, P.A., Minneapolis, for appellant.
    Mike Hatch, Attorney General, St. Paul; and Wilbur F. Dorn, Ham Lake City Attorney, Dorn Law Firm, Ltd., Blaine, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge, HUDSON, Judge, and PORITSKY, Judge.

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

   OPINION

KALITOWSKI, Judge.

Appellant Steven M. Thul challenges the denial of his petition for posteonviction relief for violating City of Ham Lake, Minn., City Code § 9-470 (2000). The posteonviction court determined that the ordinance at issue did not violate the Equal Protection Clause of the Fourteenth Amendment and was not constitutionally void for vagueness.

FACTS

In October of 1998, appellant received the first in a series of letters from the City of Ham Lake (Ham Lake), informing appellant that the city had received complaints regarding appellant’s operation of a helicopter from his property and requesting that appellant cease doing so. On November 10, 1999, the Ham Lake City Attorney advised the mayor and the city council that the current ordinances then in effect would not apply to appellant’s helicopter activities and suggested zoning amendments as a possible solution.

The city council discussed appellant’s helicopter use at a council meeting on December 6,1999, and directed the city attorney to draft an ordinance clarifying where helicopters may take off and land in Ham Lake. At the city council meeting on January 3, 2000, the council again discussed helicopter regulations, agreeing that requiring a Federal Aviation Administration (FAA) approval letter as part of the ordinance would be helpful by providing needed expertise in this area. The council then completed the first reading of an ordinance regulating where helicopters may take off and land in Ham Lake.

On January 18, 2000, the council adopted Ordinance 9-470 (ordinance), regarding the operation of helicopters in certain residential areas. The ordinance reads as follows:

9-470 Operation of Regulated Aircraft It shall be unlawful for any person operating a Regulated Aircraft to take off from or land upon any land in the City of Ham Lake except as provided herein. 9A70.1 R-l; R-M; R-2; ML PUD; PUD; RS-1 and RS-2 Zoning Districts Regulated Aircraft are prohibited from landing or taking off in the R-l, R-2, RM, ML-PUD, PUD, RS-1, and RS-2 zoning districts * * *.
* * * *
9-470.4 Exemptions
The provisions of Article 9-470 shall not apply to any regulated aircraft which was being used on or before March 1, 2000, if the location from which landings and takeoffs occurred had been approved under a favorable determination letter dated prior to March 1, 2000, issued by the Federal Department of Transportation, Federal Aviation Administration, pursuant to Federal Aviation Regulations Part 157, or any other pertinent regulation, after due notice and review by said agency.

City of Ham Lake, Minn., City Code 9-470.4 (2000).

On February 29, 2000, one day before the exemption deadline, appellant received a favorable determination letter from the FAA. The letter stated the FAA’s position that helicopter operations could be conducted safely at appellant’s heliport, provided that appellant met certain conditions. The FAA’s conditions included, among others, that: (1) a nonobstructing wind indicator be maintained adjacent to the take offilanding area; and (2) warning signs be maintained around the take off/landing area. Also on February 29, 2000, appellant conducted a “test flight” in an effort to be “grandfathered in” according to the exemption. On June 30, 2000, a complaint was filed in Anoka County District Court charging appellant with violating the ordinance.

At the omnibus hearing on March 5, 2001, the parties stipulated that the only FAA condition from the approval letter at issue was whether appellant put up adequate warning signs around the take off/landing area. Appellant argued that the one homemade warning sign that he stuck in a nearby snow bank was sufficient for compliance with the FAA condition. Appellant also argued that federal law preempts the ordinance. The district court denied appellant’s motion to dismiss the charges against him, concluding that appellant violated the ordinance due to his failure to comply with the FAA condition regarding warning signs and that the ordinance was not preempted by federal law.

Appellant was convicted for violating the ordinance on February 11, 2002, and received a stayed sentence of 30 days in jail, a stayed fine of $700, and one year of probation. Appellant appealed the conviction, but prior to adjudication of the direct appeal, appellant petitioned this court for a stay to allow for a postconviction hearing. The petition did not raise any substantive challenges to the conviction, but sought to supplement the district court record for purposes of appellate review of appellant’s conviction. This court granted appellant’s motion to stay the appeal, dismissed the case, and remanded to the district court for postconviction proceedings. Thul v. State, No. Cl-02-307 (MinnApp. Apr. 3, 2002) (order).

On July 16, 2002, a postconviction hearing was held. The postconviction court denied appellant’s petition for relief, determining that the ordinance was not void for vagueness and that enforcement of the ordinance against appellant did not violate the Equal Protection Clause of the Fourteenth Amendment. This appeal followed.

ISSUES

1. Does the ordinance violate the Equal Protection Clause of the Fourteenth Amendment?

2. Does the ordinance violate the Due Process Clause of the Fourteenth Amendment because it is constitutionally void for vagueness?

8. Does federal law preempt the ordinance?

ANALYSIS

I.

Because this court dismissed appellant’s direct appeal pursuant to appellant’s request to pursue postconviction relief, we apply the standard of review that we would have normally applied on the direct appeal, even though this is an appeal of a postconviction proceeding. See Santiago v. State, 644 N.W.2d 425, 439 (Minn.2002). Thus, we review appellant’s challenges under a de novo standard of review because they involve questions of law. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

1. Discriminatory Enforcement

Appellant argues that the ordinance violates the Equal Protection Clause of the Fourteenth Amendment because it was enforced in a discriminatory manner and does not address a legitimate government purpose. We disagree.

“The constitutionality of an ordinance is a question of law which this court reviews de novo.” Hard Times Cafe, Inc. v. City of Minneapolis, 625 N.W.2d 165, 171 (Minn.App.2001) (quotation omitted). The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits intentional, discriminatory enforcement of nondiscriminatory laws. City of Minneapolis v. Buschette, 307 Minn. 60, 64, 240 N.W.2d 500, 502 (1976) (citation omitted). Although criminal prosecutions are presumed to have been undertaken in good faith and in a nondiscriminatory manner, State v. Hy-land, 431 N.W.2d 868, 872 (MinmApp. 1988), the supreme court has held that a criminal defendant may raise the defense of discriminatory enforcement of criminal laws by law-enforcement officials on all levels. Buschette, 307 Minn, at 66, 240 N.W.2d at 503.

To prove discriminatory enforcement, appellant must establish, prima facie

(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of a constitutional right.

Hyland, 431 N.W.2d at 872-73 (quotation omitted). Therefore, to prevail in a discriminatory-enforcement claim, appellant must allege facts showing both that he was singled out for enforcement and that his selection was invidious or in bad faith. Id. at 873.

Appellant argues that he was singled out for prosecution because another helicopter pilot in Ham Lake was grandfathered in under the exemption in the ordinance. The record indicates that the Ham Lake resident who was grandfathered in received a favorable determination letter from the FAA on December 9, 1996, and that the individual complied with all the conditions outlined in the FAA letter by December 20, 1999. But here, the omnibus court found that appellants FAA approval letter was replete with conditional language that makes the operation of his heliport contingent on the fulfillment of specific criteria, and concluded that appellant did not comply with the conditions of the FAA letter because he failed to post the required warning signs * * *. The finding of the omnibus court that appellant was not in compliance with the conditions of the FAA approval letter is supported by the record and therefore not clearly erroneous. Thus, we accept the omnibus courts finding that appellant did not meet the requirements of the exemption. See State v. Williams, 535 N.W.2d 277, 286 (Minn.1995) (reviewing court accepts factual findings unless clearly erroneous).

Specifically, appellants FAA approval letter states that signs must be maintained around, the take offilanding area. The plain language of the letter indicates that more than one sign was necessary for compliance. Moreover, appellant testified at the omnibus hearing that the take off/landing area could be approached from more than one direction. Appellant was not singled out for prosecution. Rather, he was prosecuted because he did not meet the conditions of the FAA approval letter and consequently, did not meet the requirements for the exemption from the ordinance. Thus, the ordinance was not dis-criminatorily enforced against appellant.

2.Facial Unconstitutionality

Appellant also argues that the ordinance is facially unconstitutional because the only purpose behind the ordinance was to prohibit appellant from operating a helicopter within city limits and therefore, no legitimate purpose existed for the ordinance. We disagree.

A municipal ordinance is presumed constitutional. City of St. Paul v. Dalsin, 245 Minn. 325, 329, 71 N.W.2d 855, 858 (1955). Moreover, if the reasonableness of an ordinance is debatable, courts will not interfere with the legislative discretion. Hyland, 431 N.W.2d at 872 (quotation omitted).

To determine whether a zoning ordinance has a rational basis, first, we identify a legitimate government purpose, then ask whether a rational basis exists for the governmental body to believe that the legislation would further the purpose. Graham v. Itasca County Planning Commn., 601 N.W.2d 461, 465 (MinnApp. 1999) (citations omitted). The burden of proof is on the opponent of the ordinance. See Honn v. City of Coon Rwpids, 313 N.W.2d 409, 414-15 (Minn.1981). Under the rational basis test, the challenged legislation need only be supported by any set of facts either known or that could reasonably be assumed. Arcadia Dev. Corp. v. City of Bloomington, 552 N.W.2d 281, 289 (Minn.App.1996), review denied (Minn. Oct. 29, 1996). Generally, the protection of health, morals, safety, or welfare are legitimate purposes. Zylka v. City of Crystal, 283 Minn. 192, 195, 167 N.W.2d 45, 48-49 (Minn.1969).

Appellant contends that in enacting the ordinance the city was merely responding to a neighbors complaint about noise. We disagree. The record indicates that the legitimate governmental purpose behind the ordinance is safety. The city council discussed safety as a purpose for the ordinance at their council meetings and incorporated the requirement of the FAA approval letter into the exemption because the FAA has specialized knowledge in this area. Moreover, the councils safety concerns were proven justified when a helicopter recently crashed on a Ham Lake road. One week prior to the accident, the same helicopter landed and took off from appellants heliport. A similar crash in a residential neighborhood could have caused extensive damage and injury. The city rationally believed that prohibiting helicopter activity in areas zoned for residential use would decrease the risk of helicopter-related damage and injury and would further the legitimate government purpose of safety. Thus, we conclude the ordinance passes the rational basis test and does not violate equal protection.

II.

Appellant also argues that the ordinance is impermissibly vague and thus, violates the Due Process Clause of the Fourteenth Amendment. We disagree.

Where, as here, there is no fundamental right or suspect class involved, an ordinance is presumed to be constitutional, and the burden is on the challenger to prove a constitutional violation beyond a reasonable doubt. Rio Vista Non-Profit Hous. Corp. v. County of Ramsey, 335 N.W.2d 242, 245 (Minn.1983), appeal dismissed, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984) (citation omitted). Vague statutes are prohibited under the Due Process Clause of the Fourteenth Amendment. State v. Newstrom, 371 N.W.2d 525, 528 (Minn.1985). To satisfy the requirements of due process, therefore, a criminal offense must be defined with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. City of Mankato v. Fetche-nhier, 363 N.W.2d 76, 78 (Minn.App.1985) (citation omitted). Moreover, vagueness must be judged in light of the conduct that is charged under the ordinance. Id. at 79.

Appellant argues that the ordinance does not contain any language regarding full compliance with any guidelines or recommendations that might be contained in an FAA approval letter. But an appellant challenging the constitutionality of an ordinance on vagueness grounds “must show the [ordinance] lacks specificity as to his own behavior rather than some hypothetical situation.” Ruzic v. Comm’r of Pub. Safety, 455 N.W.2d 89, 92 (Minn. App.1990) (citation omitted). Here, appellant’s behavior indicates that he fully understood his need to comply with the FAA conditions to be exempt from the ordinance. Appellant received his letter from the FAA on February 29, 2000, a day before the deadline for an exemption under the ordinance. On that same day, he erected a handmade warning sign and conducted a test flight. Additionally, appellant testified on direct examination at the omnibus hearing that he needed to erect a warning sign “in order to make the favorable determination letter completely legal for me or be in compliance with it completely.” Thus, the requirements of the ordinance and the FAA letter were clear to appellant, and he understood his need to comply with the FAA conditions in order to be “grandfathered in” under the ordinance. We thus conclude that appellant’s argument that the ordinance is void due to vagueness fails.

III.

Whether regulatory power is preempted by federal law is a question of law and thus, the standard of review is de novo. In re Speed Limit for Union Pac. R.R. Through City of Shakopee, 610 N.W.2d 677, 682 (Minn.App.2000). Preemption claims are analyzed under the assumption that the historic police powers of the [s]tates are not to be eclipsed unless to do so was the clear and manifest purpose of Congress. Dahl v. Charles Schwab Co., 545 N.W.2d 918, 922 (Minn.1996) (quotation omitted).

Preemption can be express or implied, but where it is implied,

congressional intent to do so must be clearly inferred, either from the extent of federal involvement or from the scope of the federal interest; and even then the state will be preempted only to the extent that state regulation actually conflicts with federal law.

State by Minn. Pub. Lobby v. Metro. Airports Commn, 520 N.W.2d 388, 390 (Minn. 1994) (quotation omitted).

Appellant argues that the ordinance is preempted by federal laws regarding airspace use regulation, 49 U.S.C. 40103 (2002), and FAA regulations governing the construction, alteration, activation, and deactivation of airports. 14 CFR 157. We disagree.

The Eighth Circuit has decided this precise issue in Condor Corp. v. City of St. Paul, 912 F.2d 215 (8th Cir.1990). In that case, the appellant argued that the city council did not have the authority to dictate the location of heliports. The circuit court disagreed, stating:

We see no conflict between a citys regulatory power over land use, and the federal regulation of airspace, and have found no case recognizing a conflict.

Id. at 219 (citations omitted). We agree.

Appellant claims that Condor is not similar to his situation and instead, points to City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), as being controlling. The issue in Burbank was whether federal law preempted a municipal curfew on takeoffs at an airport, and the Supreme Court concluded that the ordinance was preempted. But Burbank solely concerned a nui-sanee especially problematic for aircraft— noise. Here, as discussed above, the ordinance was adopted to address public safety concerns. Moreover, [m]erely because a state law touches on some aspect of the airline industry does not necessarily mean that it is preempted by federal law. State v. Sherbrooke, 633 N.W.2d 856, 862 (Minn. App.2001). Thus, we conclude the ordinance is not preempted by federal regulations because regulating the location of heliports has been determined to be within the province of local governments, and the purpose of the ordinance included public safety.

Finally, we reject appellants argument that, even if federal law does not preempt the ordinance, the Anoka County District Court and Ham Lake were prohibited from interpreting the meaning of the FAA approval letter. Appellant cites no authority, and we have found none, for the contention that state and local governments are prohibited from interpreting documents issued by a federal agency.

DECISION

City of Ham Lake, Minn., City Code 9-470 (2000), restricting the operation of regulated aircraft in certain residential areas, does not violate the Equal Protection Clause, is not unconstitutionally vague, and is not preempted by federal law.

Affirmed.


author: GILBERTSON, Chief Justice. KONENKAMP, Justice

text:
    2003 SD 19
    In re SOUTH DAKOTA MICROSOFT ANTITRUST LITIGATION.
    No. 22306.
    Supreme Court of South Dakota.
    Argued Nov. 20, 2002.
    Decided Feb. 12, 2003.

      Charles B. Casper of Montgomery, McCracken, Walker & Rhoads, LLP, Philadelphia, PA, David B. Tulchin, Joseph E. Neuhaus, Sullivan & Cromwell, LLP, New York, NY, Gene N. Lebrun of Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, South Dakota Attorneys for appellant Microsoft.
    Mark A. Moreno of Schmidt, Schroyer & Moreno, PC, Pierre, South Dakota, Ben Barnow of Barnow & Associates, P.C., Chicago, IL, Leonard B. Simon of Milberg, Weiss, Bershad, Hynes & Lerach, LLP, San Diego, CA, Attorneys for appellees Swanson, Knecht, Schoenfelder, Gengler.
   GILBERTSON, Chief Justice.

[¶ 1.] The Sixth Judicial Circuit Court granted class certification in this indirect-purchaser antitrust action to members of a certified class of South Dakota end-users (Class Members). This Court granted a diseretionary appeal brought by Microsoft Corporation (Microsoft). We affirm the circuit court’s certification order.

FACTS AND PROCEDURE

[¶ 2.] The Class Members, who are indirect purchasers of Microsoft Windows or MS-DOS operating systems software (OSS), are residents of the State of South Dakota. The Class Members allege that Microsoft has maintained a monopoly in the marketplace since the late 1980’s or early 1990’s. They contend that this monopoly was established through various anti-competitive acts such as stifling innovation in the market place and overcharging customers. The Class Members claim that Microsoft’s actions “eliminated competition in the market for similar OSS, deprived purchasers of the benefits of a free market and injured consumers by forcing them to purchase Microsoft OSS at artificially high and supra-competitive prices in violation of South Dakota antitrust laws.”

[¶ 3.] The Class Members sought and after extensive proceedings before the circuit court, obtained certification of a class in the Sixth Judicial Circuit. Microsoft was granted this discretionary appeal, raising the following issue for our review:

Whether the circuit court abused its discretion when it granted class certification in this indirect-purchaser antitrust action.

STANDARD OF REVIEW

[¶ 4.] “On review of an order denying or granting a motion to maintain a class, the lower court may be reversed only for an abuse of discretion.” Trapp v. Madera Pacific, Inc., 390 N.W.2d 558, 560-61 (S.D.1986); see also Swanson v. Sioux Valley Empire Elec. Ass’n Inc., 535 N.W.2d 755, 759 n. 2 (S.D.1995).

[¶5.] ‘“An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.’ ” Black v. Class, 1997 SD 22, ¶27, 560 N.W.2d 544. In applying the abuse of discretion standard, “ ‘we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.’” State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citations omitted). Under such a standard of review “we must be careful not to substitute our reasoning for that of the trial court.” State v. Larson, 512 N.W.2d 732, 736 (S.D.1994).

ANALYSIS AND DECISION

[¶ 6.] The United States Supreme Court in Illinois Brick Co. v. Illinois, 431 U.S. 720, 729, 97 S.Ct. 2061, 2066, 52 L.Ed.2d 707 (1977), held that indirect purchaser suits for overcharge damages are barred under federal antitrust law. However, South Dakota, like many other states, has enacted a repealer statute that allows for indirect purchaser lawsuits to be maintained at the state level. Our state’s repealer statute, SDCL 37-1-33, provides:

No provision of this chapter may deny any person who is injured directly or indirectly in his business or property by a violation of this chapter the right to sue for and obtain any relief afforded under § 37-1-14.3. In any subsequent action arising from the same conduct, the court may take any steps necessary to avoid duplicative recovery against a defendant.

(emphasis added).

[¶ 7.] In order to obtain certification of a class, the plaintiffs must satisfy all the requirements of SDCL 15-6-23 (FRCP 23(a)) (hereinafter Rule 23(a)) and at least one of the provisions of SDCL 15-6-23(b) (FRCP 23(b)) (hereinafter Rule 23(b)). Trapp, 390 N.W.2d at 560; Shangreaux v. Westby, 281 N.W.2d 590, 592-93 (S.D.1979). Microsoft does not dispute that the requirements of Rule 23(a) are met on this appeal; therefore, we will only address the requirements of Rule 23(b). In its entirety, this statute reads:

An action may be maintained as a class action if the prerequisites of § 15-6-23(a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B)adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate permanent injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(D) the difficulties likely to be encountered in the management of a class action.

[¶ 8.] Plaintiffs assert that questions of law or fact common to all members of the proposed class predominate, including:

a. Whether Microsoft is a monopolist in the market for operating system software;
b. Whether Microsoft engaged in anti-competitive conduct in order to unlawfully maintain its monopoly powers;
c. Whether Microsoft’s conduct violated South Dakota’s antitrust laws;
d. The impact of Microsoft’s activity in the relevant marketplace;
e. Whether Microsoft’s conduct caused harm; and
f. Whether Plaintiffs and putative class are entitled to damages and appropriate measure of such damages.

According to General Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982), a court is required to conduct a rigorous analysis to determine if the elements of Rule 23 have been met. Furthermore, in applying the federal version of Rule 23, the United States Supreme Court has held that a party seeking certification must show “actual, not presumed,” conformance with class certification requirements. Id. However, any doubts as to whether the class should be granted certification should be resolved in favor of certification. Bellinder v. Microsoft Corp., No. 99-CV-17089, 2001 WL 1397995, at *8 (Kan.Dist.Ct. Sep. 7, 2001) (citing Arch v. American Tobacco Co., 175 F.R.D. 469, 476 (E.D.Pa.1997)).

[¶ 9.] The question we are faced with here is whether this case is suitable for resolution on a class-wide basis. We stated in Trapp, 390 N.W.2d at 560:

Class actions serve an important function in our judicial system. By establishing a technique whereby the claims of many individuals can be resolved at the same time, the class suit both eliminates the possibility of repetitious litigation and provides small claimants with a method of obtaining redress for claims which would otherwise be too small to warrant individual litigation.

[¶ 10.] This is consistent with the last sentence of SDCL 37-1-33 which directs a trial court: “[i]n any subsequent action arising from the same conduct, the court may take any steps necessary to avoid duplicative recovery against a defendant.” One method of insuring against this threat is to try all claims in a single proceeding.

[¶ 11.] We are aware that denial of class certification may be the death knell of claims due to the de minimus amounts of each individual claim which may economically preclude attempted redress by plaintiffs in separate law suits. c.f. Lick v. Dahl, 285 N.W.2d 594 (S.D.1979). Herein the circuit court held that there were “a very large number of claimants with relatively small amounts at stake. Most consumers have little incentive to file suit independently because the high cost of litigation would far exceed their potential recovery.” At oral argument before this Court, Microsoft conceded that should the class not be certified, individual consumers could not in all likelihood, economically pursue separate legal actions against it.

[¶ 12.] Moreover, the Plaintiffs are not required to prove their case on the merits at the class certification stage. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152-53, 40 L.Ed.2d 732 (1974); Bellinder, 2001 WL 1397995, at *7. They must make a “threshold showing” that the antitrust activity, if proven, had a common impact on the class members. Bellinder, 2001 WL 1397995, at *7; In re Catfish Antitrust Litig., 826 F.Supp. 1019, 1041-42 (N.D.Miss.1993). The Plaintiffs must advance a method for determining generalized damages on a class-wide basis. Bellinder, 2001 WL 1397995, at *7; Catfish, 826 F.Supp. at 1042-43.

[¶ 13.] Microsoft first argues that the trial court abused its discretion because it evaluated Plaintiffs showing under Rule 23(b) under an improper relaxed standard of proof. In so doing, Microsoft seeks to avoid the effect of this deferential standard of review by arguing the circuit court committed an error of law in its improper application of a lower standard of proof. It relies upon our holding in State v. Vento, 1999 SD 158 ¶ 5, 604 N.W.2d 468, 469 that “by definition, a decision based on an error of law is an abuse of discretion.” Microsoft argues that the circuit court improperly applied a standard of proof of “not so insubstantial or illusory as to amount to no method at all.” We agree with Microsoft that such a standard is little better than no standard. It would invite procedural abuses of the legal system never intended for proper use of class actions. While the circuit court did acknowledge that such a standard has been applied by other courts, it did not rest its decision on that standard. Instead it plainly stated in its findings of fact and conclusions of law:

In applying the federal version of Rule 28, the United States Supreme Court has held that a party seeking certification must show “actual, not presumed,” conformance with class certification requirements, and that a reviewing court must conduct a “rigorous analysis” in determining whether the elements of Rule 23 have been met. See General Telephone Company v. Falcon, 457 U.S. [at 160-61, 102 S.Ct. at 2372, 72 L:Ed.2d 740]; ... This Court has applied that standard.

(emphasis added).

[¶ 14.] Having determined the circuit court identified the proper legal standard, we now proceed to Microsoft’s second contention that that circuit court abused its discretion by improperly applying that standard when the court considered the evidence submitted to it on the certification question. Microsoft asserts that under Rule 23(b)(3), the Plaintiffs must demonstrate at the time class certification is sought that the “impact” on each class member can be established by common proof. Rule 23(b)(3) requires that either common questions of law or fact predominate. The circuit court found that “Plaintiffs need not calculate each class member’s damages individually. Instead damages can be calculated in the aggregate for the class. A summing of all individual claims is not required.” For support, the circuit court points to Coordination Proceedings Special Title (Rule 1550(b)) Microsoft I-V Cases, NO. JCCP.NO. 4106 (Cal.Super.Ct, San Francisco Co., Aug. 29, 2000) and Catfish, 826 F.Supp. at 1043.

[¶ 15.] Microsoft specifically challenges the proposed methodology- Plaintiffs advance to determine damages. Recently in McKie v. Huntley, 2000 SD 160, ¶ 20, 620 N.W.2d 599, 604, we set forth the general doctrine of proof of damages by a plaintiff, especially when the claimed difficulty in its determination was purportedly caused by the acts of the defendant who now is complaining about the lack of accuracy of such proof:

Difficulty in computing damages ought not to be confused with the requirement of proving damages as an essential element for recovery. Once the existence of damage has been shown by a preponderance of the evidence, a claimant must produce only the best evidence available to allow a jury a reasonable basis for calculating the loss. While jurors cannot speculate, they have some leeway in figuring damages. “Any doubt persisting on the certainty of damages should be resolved against the contract breaker.” “[B]reaching parties may not complain when the task is made difficult by their own acts.” All we require, therefore, is a reasonable basis for measuring the loss.

Id. (internal citations omitted). From a review of the record which is more fully discussed hereinafter, along with the detailed 86 findings of fact and conclusions of law entered by the circuit court, we are satisfied the circuit court accomplished what it set for itself as an appropriate standard, conducting a “rigorous analysis” of the entire certification question.

[¶ 16.] The term “threshold showing” based upon a “rigorous analysis” is probably not subject to a more specific legal definition than its generic understanding because of the various types of potential evidence that could be submitted to the court in the certification controversy. We are mindful that if the standard is set too low, it invites non-meritorious claims to be filed as class actions, which may force a potential defendant to evaluate the case more on economic costs of defending a class action rather than the case on the merits. On the other hand, should too high a standard be set, potential plaintiffs with valid claims, but limited means, are economically precluded from redress to the courts because they cannot each financially maintain individual actions. See Lick, 285 N.W.2d 594. SDCL 15-6-1 is a guide to 15-6-23 certification questions. It states in part that our civil procedure code is to “be construed to secure the just, speedy and inexpensive determination of every action.”

[¶ 17.] In the case now before us, the evidence appears to be limited to a battle of experts. In such instances, the circuit court may be assisted by borrowing concepts from the standard which this Court routinely uses for determining the admissibility of purported expert evidence; that being the standard set forth in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). This is not to suggest that the certification issue be combined with a full blown Daubert hearing, but rather has been described as a “lower Daubert standard.” Howe v. Microsoft Corp., 2003 ND 12 ¶ 26, 656 N.W.2d 285 (citing Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives and Composites, Inc., 209 F.R.D. 159, 162-3 (C.D.Cal.2002)). Under Dau-bert, the circuit court’s rigorous certification analysis may be guided by whether “an expert’s testimony rests on both ‘a reliable foundation and is relevant to the task at hand.’ ” Rogen v. Monson, 2000 SD 51, ¶ 13, 609 N.W.2d 456, 459 (piting State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994)). In Daubert ... the United States Supreme Court held that before expert scientific testimony may be received, it must be shown that: (1) it has been tested; (2) it has been subjected to peer review and publication; (3) the known or potential rate of error must be known; and (4) to what extent it has received general acceptance. The Daubert Court explained:

The adjective “scientific” implies a grounding in the methods and procedures of science. Similarly, the word “knowledge” connotes more than subjective belief or unsupported speculation. The term “applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.” Webster’s Third New International Dictionary 1252 (1986). Of course, it would be unreasonable to conclude that the subject of scientific testimony must be “known” to a certainty; arguably, there are no certainties in science.

Kuper v. Lincoln-Union Elec., 1996 SD 145, ¶ 39, 557 N.W.2d 748, 759-60 (citing Daubert, 509 U.S. at 590, 113 S.Ct. at 2795, 125 L.Ed.2d at 481). Admission of expert witnesses is also governed by an abuse of discretion standard. State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 414-15.

[¶ 18.] The Class Members allege that they were harmed because Microsoft’s antitrust violations forced direct purchasers to pay non-competitive prices for Microsoft OSS, and that a portion of the overcharged amount was passed on to them as indirect purchasers. As proof of the impact, Plaintiffs intend to use common evidence and economic methodologies.

[¶ 19.] In seeking certification as a class, the Class Members presented an affidavit by Dr. Leffler, an Associate Professor of Economics at the University of Washington. He presented three theories in which to show that Microsoft harmed the class by monopolistic conduct. Dr. Leffler opined in his affidavit that “the monopolization activity and overcharges at issue here substantially predate the class period. As a consequence, any Microsoft overcharge would have been embedded in the prices at all levels of distribution at the beginning of the class period.” The Class Members argue, therefore, that Dr. Lef-fler’s testimony “plainly establishes that the fact of injury can be shown with some certainty.”

[¶ 20.] Moreover, the Class Members assert that the amount of antitrust injury can be calculated using “standard, yardstick methodologies.” Dr. Leffler proposes that this can be determined by measuring the difference between the price a South Dakota end-user paid for Microsoft’s OSS and the price the user would have paid in the absence of Microsoft’s alleged illegal conduct. Three methods are offered.

[¶ 21.] The first method is the “comparative margin method.” This method compares the prices of Microsoft OSS with the prices of products from a comparable market not affected by anticompetitive activity. The second method is termed the “competitive margin method” in which the margins earned by sellers in a comparable market free from antitrust violations are compared to the margins earned by sellers in the anticompetitive market. The third method is the “violation-free-period method.” This method compares the price of Microsoft’s OSS being charged during the anticompetitive time period with the price of OSS being charged during the period free of anticompetitive conduct.

[¶ 22.] In addition to Dr. Leffler’s expert testimony, the Class Members submitted several published works from other economists. These works were based on the economists’ empirical studies and anal-yses showing how Microsoft’s alleged illegal activities have affected consumers.

[¶ 23.] In order to be granted class certification, the Class Members must also show that damages can be calculated on a class-wide basis. Bellinder, 2001 WL 1397995, at *7. Again, the Class Members use the testimony of Dr. Leffler. He opines that “the amount of Microsoft’s overcharge can be estimated using a class-wide statistical determination of the relationship between costs faced by Microsoft’s customers and the prices paid by end-users.” Dr. Leffler proposes to calculate this amount by statistical estimation, using data available from public sources and third-party discovery.

[¶ 24.] As the circuit court correctly concluded, this judicial inquiry does not involve a determination as to the likely success of the Class Members’ proposed methods. However, the Class Members must present at least one viable method for computing damages on a class-wide basis, one which a reasonable factfinder could accept. Microsoft I-V Cases, slip op. at 17-18; Gordon v. Microsoft Corp., 2001 WL 366432, at *11-12 (Minn.Dist.Ct. Mar. 30, 2001).

[¶ 25.] Microsoft puts forth numerous arguments refuting Dr. Leffler’s opinions. For example, one such expert, Dr. Haus-man, submitted affidavits and provided testimony for Microsoft. The essence of Microsoft’s argument is that there are a multitude of complexities and variances in the marketplace and distribution chain that will affect the Class Members’ ability to analyze whether, and the extent to which, overcharges were passed on to consumers. Additionally, Microsoft claims that the Class Members have failed to make a “threshold showing” of impact because of problems relating to the nature and extent of the overcharges being passed-on to consumers.

[¶ 26.] We find that the circuit court did not abuse its discretion when it did not completely accept Microsoft’s arguments at this stage of the proceedings. The disagreement on impact and damages should be adjudicated at trial by the fact-finder, not by a court on a motion for class certification. Avoiding a “battle of the experts” at the class certification stage is consistent with Supreme Court authority. See Eisen, 417 U.S. at 178, 94 S.Ct. at 2153 (concluding that on a motion for class certification, the determination is whether the Plaintiffs have satisfied the requirements of Rule 23, not whether they will prevail on the merits). The court in Microsoft IV Cases stated:

The question at this stage is not whether plaintiffs will be able to carry their burden of proving that their experts’ analy-ses are reliable, but whether it appears that the differences between the experts can be intelligently presented and evaluated within the framework of the class action. On a motion for class certification, it is inappropriate to resolve a battle of the experts. Whether or not [plaintiffs’ experts] is correct in his assessment of common/impact injury is for the trier of fact to decide at the proper time.

Slip op. at 15. (internal quotations and citations omitted).

[¶ 27.] At oral argument, Microsoft relied heavily upon the recent case of A & M Supply v. Microsoft Corp., 252 Mich.App. 580, 654 N.W.2d 572 (2002). Therein the Court reversed a previous class certification by a trial court. We do not find A & M persuasive. Initially, Michigan applies a “clear error” standard of appellate review while South Dakota uses the “abuse of discretion” standard that grants a trial court more appellate deference. A&M, 252 Mich.App. at 588, 654 N.W.2d at 577. An abuse of discretion occurs only where “a judicial mind, in view of the law and circumstances, could [not] have reasonably reached the same conclusion.” State v. Barber, 1996 SD 96, ¶ 14, 552 N.W.2d 817, 820 (citations omitted). “ ‘Abuse of discretion is the most deferential standard of review available with the exception of no review at all.’ ” Guthrie, 2001 SD 61, ¶ 89, 627 N.W.2d at 481 (Gilbertson, J., concurring in result) (citing State v. Chamley, 1997 SD 107 ¶ 51, 568 N.W.2d 607, 620) (Gilbertson, J., dissenting) (citing Martha S. Davis, Basic Guide to Standards of Judicial Review, 33 SD Law Rev, 468, 480 (1988)).

[¶ 28.] The A&M Court proceeded to review what it determined to be the “battle of the experts.” It was once again Dr. Leffler for the plaintiffs and Dr. Hausman for Microsoft. The A&M court reversed certification after a very extensive examination of each expert’s methodology. A & M Supply, 252 Mich.App. at 584, 654 N.W.2d at 575. It concluded Leffler’s theories insufficient to support certification, as they were “slogans, not methods of proof.” A&M Supply, 252 Mich-App. at 638-39, 654 N.W.2d at 602. Beyond the differing standards of appellate review between our two courts, it further appears from our analysis that under South Dakota case law, the A&M court.would have entered into an examination of the case on the evidentiary merits rather than the threshold issue of class certification. There appears to be little left to ultimately try in front of a jury after it settled the “Battle of the Experts” at the certification stage.

[¶ 29.] In South Dakota the admissibility question awaits a Daubert hearing. Thereafter, other procedural devices such as a motion for summary judgment may be invoked. Assuming the “Battle of the Experts” raises questions of fact which are not settled by these pretrial proceedings, such matters are best left for a jury determination with the experts subject to cross-examination in front of a jury rather than reliance upon numerous salvos of pre-trial affidavits by opposing experts in a certification hearing.

When opposing experts give contradictory opinions on the reliability or validity of a conclusion, the issue of reliability becomes a question for the jury. See State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994). The trial process is well equipped to deal with contradictory opinions. “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert 509 U.S. at 596,113 S.Ct. at 2798, 125 L.Ed.2d at 484 (citations omitted).

Guthrie, 2001 SD 61, ¶38, 627 N.W.2d at 417.

[¶30.] Microsoft cites us to authority from other jurisdictions, which it interprets to conclude that a mere clash between “experts” is not enough by itself to support class certification. That is correct to a point. Production of a self-professed expert is simply not enough to meet the certification requirements under our rigorous analysis standard. However, this Court has consistently refused to extend any gate-keeping function to usurp the factual determination role of the ultimate trier of fact.

We begin analysis of this issue from the long-accepted premise that the purpose of expert testimony is to assist the jury as the trier of fact and not to supplant it. This state is not a trial-by-expert jurisdiction. The value of the opinion of an expert witness is no better than the facts upon which it is based. It cannot rise above its foundation and proves nothing if its factual basis is not true. It may prove little if only partially true. The credibility of witnesses and the evi-dentiary value of their testimony falls solely within the province of the jury.

Lien v. Class, 1998 SD 7, ¶ 23, n. 12, 574 N.W.2d 601, 610 (citing Bridge v. Karl’s Inc., 538 N.W.2d 521, 525 (S.D.1995)).

[¶ 31.] Our decision here is in fine with other jurisdictions that have faced the same certification issue. Every state, with the exception of Maine and Michigan, that has a repealer statute has granted class certification to indirect purchasers seeking redress against Microsoft for antitrust violations. The very same pass-through and overcharge arguments that Microsoft makes here, have been rejected by a large majority of courts considering the issue. In re New Mexico Indirect Purchaser Microsoft Corp. Antitrust Litig., No. D-0101-CV-2000-1697 (N.M.Dist. Ct., Santa Fe Co., Sept. 30, 2002); In re Florida Antitrust Litig., No. 99-27340 CA 11, 2002 WL 31423620 (Fla.Cir.Ct., Dade Co., Aug. 26, 2002); Howe, 2003 ND 12, 656 N.W.2d 285; Bellinder, 2001 WL 1397995; Capp v. Microsoft Corp., No. 00-CV-0637 (Wis.Cir.Ct., Dane Co., June 28, 2001); Friedman v. Microsoft Corp., CV-2000-000722 (Consol.) (Ariz.Super.Ct., Maricopa Co., Nov. 15, 2000 & July 13, 2001); Gordon v. Microsoft Corp., No. 00-5994, 2001 WL 366432 (Minn.Dist.Ct., Mar.30, 2001), affd, 645 N.W.2d 393 (Minn.2002); Microsoft I-V Cases, supra.

[¶ 32.] For the foregoing reasons, we find that the trial court did not abuse its discretion in granting class certification to the Class Members. We find that the Class Members have met their “threshold showing” of harm to end-users/consumers. Its decision in certifying this case as a class action is sufficiently supported by the evidence and applicable law and satisfies all of the requirements of Rule 23.

[¶ 33.] We remand to the circuit court for further proceedings consistent with this opinion.

[¶ 84.] MEIERHENRY, Justice, and TUCKER, Circuit Judge, concur.

[¶ 35.] KONENKAMP, Justice, and AMUNDSON, Retired Justice, concurs with a writing.

[¶ 86.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, was appointed as a Circuit Judge to sit for SABERS, Justice, disqualified.

[¶ 37.] TUCKER, Circuit Judge, sitting for ZINTER, Justice, disqualified.

KONENKAMP, Justice

(concurring).

[¶ 38.] I concur in this decision, but with reservations. I express these reservations in view of the prospect that we may be .reviewing this case again before any final resolution. At some point, the plaintiffs’ expert, Professor Leffler, must verify his untested economic theories, just as all scientists must establish the reliability of their methods. By his own admission, Dr. Leffler offers only a prediction, a hypothesis that given enough time and data, he can adequately calculate damages for the class members. In an indirect purchaser action, the plaintiffs' must prove the actual damages to each class member. See generally SDCL 37-1-33. To date, the Professor’s theories have not proven effective in accomplishing this task.

A. Daubert Standards and Class Certifícation

[¶ 39.] While my concerns' with the plaintiffs’ theories on damages are not so serious as to discommend class certification, the question remains whether those theories will survive the Daubert hearing. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993); - Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). This Court’s opinion acknowledges that the full Daubert criteria have yet to be applied here. These standards cannot be satisfied by simply establishing- the threshold tests for achieving class action status. Each expert’s theories must pass the rigors of scientific methodology.

[¶ 40.] Though the substantive arguments may be similar, evaluating expert evidence in accord with Daubert entails an inquiry “distinct fr'om” the appraisal of expert evidence in support of a motion for class certification. In re Visa Check/MasterMoney Antitrust Litigation, 280 F.3d 124, 132 n. 4 (2d Cir.2001). Trial courts should • not “postpone consideration of a motion for class certification for the sake of waiting until a Daubert examination is appropriate.” Id.; see SDCL 15-6-23(c)(1) (“As soon as practicable after commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.”). In applying discretion to grant or deny a motion for class certification, the court’s inquiry “is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2153, 40 L.Ed.2d 732 (1974):

[¶41.] On the other hand, SDCL 19-15-2 (Rule 702) governs the admissibility of expert testimony. The test for admissibility, the Daubert standard, was adopted in South Dakota in State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994). See also Estate of Dokken, 2000 SD 9, ¶ 51, 604 N.W.2d 487, 500 (Amundson, J., concurring specially) (explaining that Kumho expands the Daubert gate-keeping function). To abide by Daubert-Kumho, the proponent offering expert testimony must show that the expert’s theory or method qualifies as scientific, technical, or specialized knowledge under SDCL 19-15-2 (Rule 702). State v. Guthrie, 2001 SD 61, ¶ 34, 627 N.W.2d 401, 416-16. This burden is met by establishing that there has been adequate empirical proof of the validity of the theory or method. Edward J. Imwink-elried, Evidentiary Foundations 287 (4th ed. 1998). Under this standard, a court considers admissibility based on technical methodology, not the scientific correctness of an opinion because “[i]t is not the trial court’s role to decide whether an expert’s opinion is correct.” See Smith v. Ford Motor Co., 215 F.3d 713 (7th Cir.2000). In deciding whether to admit expert testimony, a court must ensure that the opinion rests on a reliable foundation. Daubert, 509 U.S. at 597, 113 S.Ct. at 2799, 125 L.Ed.2d at 485. The standards set forth in Daubert are not limited to what has traditionally been perceived as scientific evidence. These standards must be satisfied whenever scientific, technical, or other specialized knowledge is offered. Kumho, 526 U.S. at 141, 119 S.Ct. at 1171, 143 L.Ed.2d at 246.

[¶ 42.] When “[f]aced with a proffer of expert [testimony on scientific, technical, or other specialized knowledge],” the trial judge must determine at a preliminary hearing “whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert, 509 U.S. at 592, 113 S.Ct. at 2796, 125 L.Ed.2d at 482. See also SDCL 19-9-7 (Rule 104(a)) (preliminary questions determined by court). Thus the trial court, not the jury, must make a preliminary assessment whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be applied to the facts in issue. Id. That has yet to be established here.

[¶ 43.] In the Daubert hearing, the trial judge may consider the following nonexclusive guidelines for assessing an expert’s methodology: (1) whether the method is testable or falsifiable; (2) whether the method was subjected to peer review; (3) the known or potential error rate; (4) whether standards exist to control procedures for the method; (5) whether the method is generally accepted; (6) the relationship of the technique to methods that have been established as reliable; (7) the qualifications of the expert; and (8) the non-judicial uses to which the method has been put. See Guthrie, 2001 SD 61 at ¶ 35, 627 N.W.2d at 416 (citations omitted). Daubert’s list of factors may not each apply to all experts in every case. Rogen v. Monson, 2000 SD 51, ¶28, 609 N.W.2d 456, 462-63 (Konenkamp, J. concurring) (citing Kumho, 526 U.S. at 141, 119 S.Ct. at 1171,143 L.Ed.2d 238). With these and perhaps other relevant considerations, a judge must ensure that the testifying experts provide a proven scientific basis for a jury to find with reasonable scientific, technical, or, as here, econometric probability that it is more likely than not that defendant’s conduct proximately caused the claimed loss to each class member.

B. Decertiñcation

[¶44.] Considering the provisional nature of the plaintiffs’ expert opinions, a Daubert hearing could result in decertifi-cation. The Supreme Court labels class actions a “nontraditional” type of litigation. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 402 100 S.Ct. 1202, 1212, 63 L.Ed.2d 479 (1980). The action has requirements peculiar to its nature. To secure class certification, the plaintiffs must satisfy all the requirements in SDCL 15-6-23(a) and at least one of the criteria set out in SDCL 15-6-23(b). Risen, 417 U.S. at 163, 94 S.Ct. 2140. Here, the circuit court found that the plaintiffs satisfied all the requirements of § 15-6-23(a) and one requirement of § 15-6-23(b), namely, subsection (3). SDCL 15-6-23(b)(3) provides in part that an action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

In my view, the plaintiffs maintain a thin hold under this provision.

[¶45.] To meet the predominance requirement of SDCL 15 — 6—23(b)(3), the plaintiffs must establish that “the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole ... predominate over those issues that are subject only to individualized proof.” Rutstein v. Avis Rentr-A-Car Sys., Inc., 211 F.3d 1228, 1233 (11thCir.2000) (internal quotation marks omitted). As the Michigan Court of Appeals points out in a parallel case, “Dr. Leffler’s methodologies, even if they were to work with respect to small, well-defined subclasses that group class members by a very few strongly unifying characteristics, will essentially require separate trials to determine the different pass-on rates affecting the class as a whole.” A & M Supply Co. v. Microsoft Corporation, 252 Mich.App. 580, 654 N.W.2d 572, 603 (2002).

[¶46.] Despite this conclusion in A & M, I agree with the Court that this case should not guide our decision on class certification because Michigan has a different standard of review at the motion to certify stage. However, a reason justifying decertification here may be that the requirements of SDCL 15-6-23(b)(3) are no longer satisfied. Commonwealth of Pennsylvania v. Local Union 542, Int'l Union of Operating Eng’rs, 90 F.R.D. 589, 593 (E.D.Pa.1981); Edward F. Sherman, Aggregate Disposition of Related Cases: the Policy Issues, 10 Rev. Litig. 231, 272 (1991). The Daubert hearing may reveal that Professor Leffler’s theories cannot achieve a practical answer to satisfy the plaintiffs’ burden of proof on damages.

[¶ 47.] Under SDCL 15-6-23(e)(l), a court may alter or amend a decision on class certification “before the decision on the merits.” Indeed, a court is obligated to monitor class certification and correct the decision as needed in light of evidentia-ry developments. Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir.1983); Reynolds v. Sheet Metal Workers, Local 102, 702 F.2d 221, 225-26 (D.C.Cir.1981); Link v. Mercedes-Benz of N. Am., Inc., 550 F.2d 860, 864 (3d Cir.1977); Reed v. Town of Babylon, 914 F.Supp. 843, 848-49 (E.D.N.Y.1996).

[¶ 48.] Professor Leffler’s economic theories have not reached methodological maturity. It remains to be seen whether they will. His “aggregate” damages proposal fails to meet the requirement that each individual member of the class in an indirect purchaser action was injured by the defendant’s alleged conduct. Alabama v. Blue Bird Body Co., 573 F.2d 309, 316-17 (5thCir.l978). Both the Court and the plaintiffs cite McKie v. Huntley, 2000 SD 160, 620 N.W.2d 599, to permit proof of “aggregate” damages. But that case was not a class action. To allow aggregate damages here means that some members of the class who suffered no loss may be unjustly enriched while others may be under compensated. The Professor’s theories must accommodate the requirement that damages be shown for each class member.

[¶ 49.] In certifying this class action, the circuit judge gave Dr. Leffler an opportunity to prove that his theories are workable. If he fails, decertification should follow.

[¶ 50.] AMUNDSON, Retired Justice, joins this special writing.

      . The Class Members sought certification of the following class pursuant to SDCL 15-6-23 (Rule 23):
      All persons and entities who acquired for use, and not for further selling, leasing or licensing, a license in South Dakota from Microsoft, an agent of Microsoft, or an entity under Microsoft's control, for an Intel-compatible PC version of MS-DOS, Windows 95, upgrades to higher MS-DOS versions, upgrades to or of Windows 95, Windows 98, upgrades to or of Windows 98, or other software products in which MS-DOS or Windows have been incorporated in full or in part at any time during the class period or after March 21, 1996. Excluded from the class are government entities, Microsoft, its officers, directors, employees, subsidiaries and affiliates and any judges and justices who preside over this case or any portion thereof.

      . Rule 23(a) provides:
      One or more members of a class may sue or be sued as representative parties on behalf of all only if
      (1) the class is so numerous that joinder of all members is impracticable,
      (2) there are questions of law or fact common to the class,
      (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class,
      (4) the representative parties will fairly and adequately protect the interests of the class, and
      (5) the suit is not against this state for the recovery of a tax imposed by chapter 10-39, 10-3 9 A, 10-40, 10-41, 10-43, 10-44, 10-45, 10-46, 10-46A, 10-46B, or 10-52.

      . The Circuit Court nevertheless made an independent review of rule 23(a) and concluded that the plaintiffs satisfied all the requirements of that rule.

      . SDCL 2-14-13 mandates that when a South Dakota statute has as its source a uniform law, "it shall be so interpreted and construed as to effectuate its general purposes to make uniform the law of those states which enact it.” We have determined the federal rules of civil procedure to be similar to uniform laws. State v. Wright, 1999 SD 50, ¶ 13 n. 4, 593 N.W.2d 792, 798 n. 4; Miller v. Hernandez, 520 N.W.2d 266, 269 (S.D. 1994).

      . As an example, in Lick class certification of a group of taxpayers was denied by the circuit court on the basis that sovereign immunity barred a class action against the Defendant County. Had the circuit court granted certification sovereign immunity notwithstanding, this would have been an error of law and thus by definition, an abuse of discretion.

      . Catfish, 826 F.Supp. at 1042-43, In Re Potash Litig., 159 F.R.D. 682, 697 (D.Minn.1995); In re Domestic Air Transportation Anti-trust Litigation, 137 F.R.D. 677, 692 (N.D.Ga.1991); In re Indus. Gas Antitrust Litig., 100 F.R.D. 280, 306 (N.D.Ill.1983).

      . This type of analysis has also been adopted by the United States Supreme Court concerning the quantum of proof required for antitrust plaintiffs to recover. In Truett v. Chrysler Motors, 451 U.S. 557, 566-67, 101 S.Ct. 1923, 1929, 68 L.Ed.2d 442 (1981), the Court reasoned:
      "Any other rule would enable the wrongdoer to profit by [its] wrongdoing at the expenses of [its] victim... .Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery.”
      Our willingness to accept a degree of uncertainty in these cases rests in part on the difficulty of ascertaining business damages ... The vagaries of the marketplace usually deny us sure knowledge of what [the] plaintiff's situation would have been in the absence of the defendant's antitrust violation. But it does not " 'come with very good grace' " for the wrongdoer to insist upon specific and certain proof of the injury which it has itself inflicted.
      (internal citations omitted).

      . The actual Daubert hearing with full eviden-tiary and legal arguments comes later in the judicial proceeding than the class certification issue. However, the two may still be connected as a Daubert hearing may convince the circuit court that its initial certification of the class can no longer be justified, thus resulting in a decertification of the class.
      Under NDRCiv P 23(b), a trial court generally considers issues about certification of a class action "as soon as practicable after the commencement of a class action," and at that stage of the proceeding, issues regarding a joint or common interest may not be fully crystallized. A trial court may amend a certification order at any time before entry of judgment on • the merits. NDRCivP 23(3). Under similar language in FedR CivP 23(c)(1), federal trial courts are free to decertify, subclassify, or modify a class certification previously granted. In Richardson v. Byrd, 709 F.2d 1016, 1019 (5thCir.1983), the court aptly explained a federal trial court "must define, redefine, subclass, and decertify as appropriate in response to the progression of the case from assertion to facts.”

        Howe, 2003 ND 12, ¶ 29, 656 N.W.2d 285 (citing Rose v. United Equitable Ins. Co., 2002 ND 148, ¶ 18, 651 N.W.2d 683)..

      . Dr. Leffler’s specialty is antitrust economics including the study of monopolies and the impact of monopolies on consumers. In addition to teaching classes and conducting research for over 25 years in industrial organizations and antitrust economics, he has preformed complex economic analysis in antitrust cases for many years. Dr. Leffler has been qualified as an expert in proceedings before both federal and state courts. He has assisted the Federal Trade Commission and the Justice Department in their investigation of Microsoft's activities in the early 1980's and 1990’s.

      . Dr. Hausman is the MacDonald Professor of Economics at the Massachusetts Institute of Technology. His academic and research specialties are econometrics (the use of statistical models and techniques on economic data) and microeconomics (the study of consumer behavior and behavior of firms). He has substantial experience in computer programming. He has testified in nine antitrust trials in the United States and has given seminars to the American Bar Association, the Justice Department and the Federal Trade Commission on topics in anti-trust economics.

      . In so doing, we respectfully decline to adopt the standard adopted by the Court in Howe, that being: "[a]s long as the basis of the expert's opinion is not so blatantly flawed that, on its face, it would be inadmissible as a matter of law ...” 2003 ND 12, ¶ 27.

      . The obvious exception to this would be where the evidence is undisputed such as occurred in Lick. In such instances all that is left for the circuit court to do is correctly apply the law to those undisputed facts.

        .See Melnick v. Microsoft Corp., Nos. CV 99-709-752, 2001 WL 1012261 (Me. Super.Ct,, Aug. 24, 2001) and A & M Supply Co.