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

text:
    Brian JAMES, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A03-489.
    Court of Appeals of Minnesota.
    Feb. 3, 2004.

      John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Gaylord Saetre, Todd County Attorney, Long Prairie, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge, KLAPHAKE, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant pleaded guilty to, and was sentenced for, one count of fourth-degree criminal sexual conduct. The district court stayed appellant’s sentence and put him on probation for ten years. After appellant violated his probation, the district court executed his sentence, including the imposition of a ten-year conditional-release term. Several years later, appellant filed a postconviction petition challenging the imposition of the conditional-release term; appellant argued that either he should be allowed to withdraw his guilty plea or the district court should modify his sentence to comport with the upper limits of his plea agreement. The district court denied appellant’s motion, and he now appeals. We affirm.

FACTS

Appellant Brian Keith James and A.B.C. were acquaintances. James entered A.B.C.’s apartment while she slept and attempted to have anal intercourse with A.B.C. A.B.C. awoke during the attempt and struggled with James. A.B.C. recognized James, and, after James left, she called the police. The police arrested James, and the state charged James with third-degree criminal sexual conduct and first-degree burglary pursuant to Minn. Stat. §§ 609.344, subd. 1(d); .582, subd. 1(c) (1996).

James pleaded guilty to one count of fourth-degree criminal sexual conduct, which carried a penalty of up to ten years of incarceration, in exchange for a promise of a 36-month stayed sentence. See Minn. Stat. § 609.345, subd. 2 (1996). According to statute, offenders with a prior conviction were required to be incarcerated for a minimum term of three years unless the district court found the offender amenable to a long-term, in-patient sex-offender treatment program, and the offender was accepted into such a program. Minn.Stat. § 609.346, subd. 2 (1996). At the plea hearing, the district court and counsel discussed both whether the mandatory minimum executed term would be waived in James’s case and whether James would be allowed to withdraw his plea if he was not accepted into a long-term in-patient program pursuant to Minn.Stat. § 609.346, subd. 2. The final disposition and terms of James’s plea agreement were postponed until the presentence investigation could be completed. At the sentencing hearing, the court sentenced James to 36 months in prison, but stayed the execution of that sentence and placed James on probation for ten years.

Because James violated his probation, the district court revoked his probation. At the revocation hearing, James admitted that he was aware that his probationary status was contingent on the completion of listed conditions. The district court executed James’s sentence, ordering James to serve 36 months in prison and imposing a ten-year conditional-release term at the end of his incarceration, as required by the sex-offender statute.

James sought postconviction relief from the ten-year conditional-release term, requesting the withdrawal of his guilty plea or a modification of his sentence. But James waited more than three years to seek relief after the district court imposed the conditional-release term to his sentence. This was more than five years after the date that James pleaded guilty and more than six years after the date of the offense. The district court denied his petition, and James now appeals that decision.

ISSUE

Did the postconviction court abuse its discretion by denying the motion of James to either withdraw his guilty plea or to modify his sentence?

ANALYSIS

We review the decision of a post-conviction court under an abuse-of-discretion standard. Scales v. State, 620 N.W.2d 706, 707 (Minn.2001). A postconviction court’s factual findings will be sustained if they are supported by sufficient evidence. State v. Christopherson, 644 N.W.2d 507, 510 (Minn.App.2002), review denied (Minn. July 16, 2002). A postconviction relief petition collaterally attacks the district court’s decision — a decision that “carries a presumption of regularity and which, therefore, cannot be lightly set aside.” Pederson v. State, 649 N.W.2d 161, 163 (Minn.2002).

Once a criminal defendant enters a guilty plea there is no absolute right to withdraw that plea. Perkins v. State, 559 N.W.2d 678, 685 (Minn.1997). The defendant bears the burden of proving, by a preponderance of the evidence, that the facts warrant withdrawal of the guilty plea. Lundin v. State, 430 N.W.2d 675, 679 (Minn.App.1988), review denied (Minn. Dec. 21, 1988).

The defendant is allowed to withdraw a plea of guilty after sentencing only upon a timely motion and proof that the withdrawal is necessary to correct a manifest injustice. Minn. R.Crim. P. 15.05, subd. 1. The language of the rule, on its face, explicitly directs that in order for a defendant to withdraw a guilty plea, the motion to withdraw the plea must first be timely made, and second, there must be proof that a manifest injustice would result if the plea were not withdrawn. See id.

The first prong of Minn. R.Crim. P. 15.05 mandates that a defendant’s motion to withdraw a plea of guilty must be timely. A motion “is timely if made with due diligence, considering the nature of the allegations therein.” Chapman v. State, 282 Minn. 13, 17, 162 N.W.2d 698, 701 (1968) (quoting A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty (tentative draft), § 2.1). Because case law does not provide an explicit time limit for bringing plea-withdrawal motions, we must analyze the evidence in support of a motion to withdraw a guilty plea to determine if the motion is timely. See Jones v. State, 288 Minn. 527, 179 N.W.2d 315, 316-17 (1970).

At this point, we distinguish the timeliness issue here from other timeliness issues inherent in appeals from the imposition of a conditional-release term to a defendant’s sentence. Here, we discuss James’s motion to withdraw his plea of guilty, which relates to his conditional right to withdraw the plea, not to his choice of remedy if we found that he had properly exercised that right. If his motion is timely, this court is required to analyze the potential remedy to correct the imposition of a conditional-release term that would make James’s final sentence exceed the upper limits of his plea agreement. See e.g., State v. Wukawitz, 662 N.W.2d 517, 520 (Minn.2003) (determining that where the imposition of the conditional-release term violated appellant’s plea agreement, the district court may allow the defendant to withdraw his plea; if the plea withdrawal would unduly prejudice the state, the district court may "modify the defendant’s sentence); State v. Jumping Eagle, 620 N.W.2d 42, 45 (Minn.2000) (remanding to the district court with the instruction that the state may argue whether the court should allow withdrawal of the guilty plea or modification of the sentence). Neither Wukawitz nor Jumping Eagle discusses the timeliness of a motion to challenge the addition of a conditional-release term to the appellant’s sentence. The implicit holdings in both these cases are, therefore, that the appellants timely challenged the addition of a conditional-release term to their sentences.

Here, we hold that James’s motion to withdraw his guilty plea, filed more than five years after the district court had 'accepted that plea and more than three years after the imposition of the conditional-release term, was not timely. See Fox v. State, 474 N.W.2d 821, 826 (Minn.1991) (holding that a four-year delay weighs against granting the motion to withdraw a guilty plea). First, Minn. R.Crim. P. 15.05 requires that defendant’s motion to withdraw a plea of guilty be timely filed. Second, public-policy considerations support the conclusion that a motion to withdraw a plea of guilty, made more than three years after the action complained of, is untimely.

There is more than one public-policy consideration underlying the requirement that a motion must be timely. The prejudice to the prosecution in retrying the case is surely one of the considerations. See Bolinger v. State, 647 N.W.2d 16, 22 (Minn.App.2002) (stating that even if petition for postconviction relief was untimely, the court would consider whether withdrawal of the plea would cause prejudice to the prosecution “as a result of defendant’s untimely request to stand trial”) (quoting State v. Lopez, 379 N.W.2d 633, 637 (Minn.App.1986), review denied (Minn. Feb. 14, 1986)) (describing three factors district courts should consider in cases where deportation consequences attach after guilty plea: (1) the strength of defendant’s reason for requesting withdrawal of the plea, (2) the existence of prejudice to the prosecution, and (3) whether defendant’s misunderstanding of the collateral consequences that attached to the guilty plea was a reflection of the defendant’s own ignorance or misleading statements by the government); see also Smith v. State, 596 N.W.2d 661, 664-665 (Minn.App.1999) (stating that delay in seeking post-conviction relief weighs against allowing withdrawal of a guilty plea), review denied (Minn. Aug. 27,1999).

But prejudice to the prosecution is not the only public-policy consideration. An expectation of finality is another policy consideration at stake. Generally, an expectation of finality is discussed as it relates to the criminal defendant. See State v. Calmes, 632 N.W.2d 641, 645 (Minn.2001) (recognizing that due process limits a court’s ability to change a sentence after “the defendant has developed a crystallized expectation of finality in the earlier sentence”). But this does not mean that the state does not have an interest in the finality of judgments. See Chapman, 282 Minn. at 16, 162 N.W.2d at 700 (stating that the general policy of finality of judgments applies to criminal cases and that the appellate court is not inclined to set aside pleas “made with deliberation and accepted by the [district] court with caution”).

Minn. R.Crim. P. 15.05, as well as the public policy requiring parties to timely file motions, bars James’s request for withdrawal of his guilty plea. Because James waited more than three years to make his motion, it was not made with due diligence; the motion was, therefore, untimely. See Chapman, 162 N.W.2d at 700, 282 Minn. at 16. The postconviction court did not abuse its discretion by denying James’s motion to withdraw his guilty plea.

James’s motion for modification of his sentence is, like his motion to withdraw his plea of guilty, untimely. A motion for modification is not governed by any rule of criminal procedure; it is, however, constrained by the same public-policy considerations that make James’s motion for withdrawal untimely.

Here, James moved for modification of his sentence more than three years after the imposition of the conditional-release term. Because this delay amounts to a lack of due diligence in making the motion for modification, we can not say on this record that the postconviction court abused its discretion by denying James’s request for a sentence modification.

DECISION

Because James’s motion seeking either withdrawal of his plea of guilty or modification of his sentence was untimely, the postconviction court did not err in refusing either to allow James to withdraw his plea or to modify the sentence.

Affirmed.

KLAPHAKE, Judge

(dissenting).

I respectfully dissent. The majority has focused on the timeliness of appellant’s request to withdraw his plea, stating that timeliness is a threshold issue to be determined before manifest injustice can be considered under Minn. R.Crim. P. 15.05. Timeliness, while an issue under the rule, is not the only factor that must be considered. Butala v. State, 664 N.W.2d 333, 338 (Minn.2003) (“Certainly, delay is one relevant factor against [permitting withdrawal of a plea], and in extreme cases may justify denial of relief.... But we have a commitment to convicted defendants’ rights to at least one substantive review.”).

Even more important is insuring that a plea is accurate, voluntary, and intelligent. State v. Christopherson, 644 N.W.2d 507, 510 (Minn.App.2002), review denied (Minn. July 16, 2002). The Minnesota Supreme court explained these requirements for entering a plea.

The accuracy requirement protects the defendant from pleading guilty to a more serious offense than he or she could be properly convicted of at trial. The voluntariness requirement insures that the guilty plea is not in response to improper pressures or inducements; and the intelligent requirement insures that the defendant understands the charges, his or her rights under the law, and the consequences of pleading guilty.

Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998) (footnotes omitted).

The voluntary aspect of a plea means that if a plea agreement is based on promises or representations by the state, those promises or agreements must be fulfilled. State v. Brown, 606 N.W.2d 670, 674 (Minn.2000). The intelligent requirement means that the defendant must understand the charges, the rights waived, and the consequences of the plea. Id. at 675. These plea requirements are more than mere housekeeping rules; failure to accurately inform a defendant of the consequences of a plea is a denial of due process rights. State v. Wukawitz, 662 N.W.2d 517, 521-22 (Minn.2003) (citing Mabry v. Johnson, 467 U.S. 504, 507-08, 104 S.Ct. 2543, 2546, 81 L.Ed.2d 437 (1984)).

Here, the conditional release requirement was not a part of the plea or sentence; the district court imposed the requirement only upon execution of appellant’s sentence, an event occurring more than two years after the plea and 16 months after the sentencing hearing. It is perplexing that appellant is held to a stringent timeliness standard, but the district court is not. At the time of the sentencing hearing, the conditional release requirement had been a part of the law for several years, yet the district court failed to impose it as mandated by statute until more than a year after sentencing.

Although timeliness is inarguably part of the formula of plea withdrawal under rule 15.05, the larger question, as the supreme court makes clear in Wukawitz, is whether a defendant’s due process rights are violated by the later addition of a conditional release term that exceeds the agreed-upon sentencing cap. See Wukawitz, 662 N.W.2d at 521.

The majority concludes that because appellant waited three years after imposition of the conditional release term, his motion is untimely despite the serious due process implications of the late amendment of his sentence. But here the record is devoid of any explanation of conditional release. In the revocation hearing, which includes a long and thorough discussion of the probation terms appellant failed to complete, the only mention of conditional release is the district court’s comment, “I believe I’m also required to advise you that even upon completion of the prison time you’ll be placed on conditional release for an additional period of 10 years once you’re released from prison.” Even the warrant of commitment refers to a conditional release of five, not ten, years. The timing of this appeal suggests that appellant did not understand conditional release until its terms were invoked.

Although the majority finds a bedrock principle of timeliness in rule 15.05, in fact that rule does little to clarify this concept, noting only that a defendant must make a timely motion, which is not barred solely because it occurs after sentencing. Minn. R.Crim. P. 15.05, subd. 1. The rule does not define timeliness. The rule does not specify if timeliness is tied to the lapse of time following the crime, the plea, the sentence, or the imposition of new terms of a sentence, or the defendant’s realization of the consequences of the plea. The majority cites Chapman v. State, 282 Minn. 13, 17, 162 N.W.2d 698, 701 (1968) for the proposition that a timely motion is one “made with due diligence, considering the nature of the allegations therein[.]” It is interesting to note that in Chapman, the defendant was permitted to withdraw his plea three years after it was entered, based on questions raised during the pre-sentence investigation completed prior to sentencing. Id. at 14-15, 162 N.W.2d at 700. In affirming the grant of the defendant’s postconvietion petition, the Chapman court does not discuss the timeliness of the motion but focuses on manifest injustice.

Timeliness, in fact, is a flexible concept. The supreme court recognizes this in Wuk-awitz, by analyzing plea withdrawal in terms of the prejudice, stating, “In the past, we have recognized that reprosecution is always difficult after the passage of a long period of time, and that plea withdrawal should not be used as a tactical device to frustrate the prosecution.” Wukawitz, 662 N.W.2d at 526-27 (quotation omitted). The record here is devoid of any allegation of prejudice to the state should appellant be permitted to withdraw his plea.

In the absence of affirmative allegations that the state would be prejudiced by the withdrawal of this plea, and given the serious due process implications of the late addition to appellant’s sentence, I believe that the proper course here would be to remand this matter to the district court to determine whether appellant should be permitted to withdraw his plea or to have his sentence conform to the plea agreement as in Wukawitz.

      . Because the withdrawal motion was not timely here, we need not reach the second prong of the rule 15.05 withdrawal inquiry, namely: whether the withdrawal is necessary to correct a manifest injustice.


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    In the Matter of the TRUSTEESHIP OF the TRUST CREATED UNDER TRUST AGREEMENT DATED DECEMBER 31, 1974; and In the Matter of the Trusteeship of the Trust Created Under Trust Agreement Dated December 30, 1980; and, In the Matter of the Trust Created Under Trust Agreement Dated December 30, 1980.
    No. A03-454.
    Court of Appeals of Minnesota.
    Feb. 3, 2004.

      Morris M. Sherman, Jane F. Godfrey, David R. Crosby, Leonard, Street and Dei-nard, Minneapolis, MN; and Judith T. Younger, University of Minnesota Law School, Minneapolis, MN, of counsel, for appellants PAM and DHM.

      Richard B. Solum, Joseph K. Thiegs, Dorsey & Whitney, L.L.P., Minneapolis, MN, for respondent Trustees.
    Kay Nord Hunt, Phillip A. Cole, Lom-men, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, for respondent beneficiaries.
    Considered and decided by HALBROOKS, Presiding Judge, KALITOWSKI, Judge, and STONEBURNER, Judge.
   OPINION

HALBROOKS, Judge.

Respondent trustees brought a petition pursuant to Minn.Stat. § 501B.16 (2002), requesting the district court to determine beneficiaries and interpret terms of three trusts created by settlor JHM. Appellants, JHM’s ex-wife PAM and the children born to her during her marriage to JHM (the younger children), challenge the district court’s interpretation of trust language determining the beneficiaries of the trusts. Appellants argue that the district court erred by (1) interpreting the subject trusts as limiting beneficiaries to JHM’s biological children and (2) concluding that relevant portions of the applicable parentage act did not conclusively establish the biological paternity of the younger children, thereby precluding any subsequent paternity challenge brought by respondent trustees. By notice of review, respondent beneficiaries challenge the district court’s conclusion that it lacked personal jurisdiction over the younger children and could not therefore compel them to undergo genetic testing.

We conclude that Minn.Stat. § 501B.16 does not authorize trustees to challenge a previous determination of paternity made consistent with applicable parentage laws, and that the trustees here may not challenge the younger children’s paternity in the context of their trust-clarification aetion. We further conclude that were such a challenge authorized by section 510B.16, it would nonetheless be unavailable to respondent trustees here because of their failure to comply with the standing and timeliness requirements of applicable parentage laws.

FACTS

In 1974, JHM created an irrevocable trust (the 1974 Trust), the primary beneficiaries of which were his “issue,” defined in the trust as “all persons who are descended from [JHM], either by legitimate birth to or legal adoption by him or any of his legitimately born or legally' adopted descendants.” The 1974 trust authorizes the trustees to make discretionary distributions of trust income and principal to named beneficiaries.

In 1980, JHM created two more irrevocable trusts (the 1980 Trusts), both of which designated JHM’s children as beneficiaries, defined “child” as “issue of the first generation,” and defined “issue” as

all persons who are lineal descendants of [JHM] (including legally adopted lineal descendants and including lineal descendants in gestation, but not including step-children and foster-children of any generation) except (i) persons who become descendants by legal adoption after attaining the age of 18 years and their descendants and (ii) illegitimate descendants and their descendants.

Each trust provided that neither JHM nor any other person could modify, amend, or revoke the trust in any respect. Each trust is to be interpreted according to law of its situs, which for all three trusts has always been Minnesota. The combined value of the trusts is approximately $900,000,000.

JHM has been married three times. The six children born during his first two marriages are referred to in this matter as “the older children.” JHM married PAM, his third wife, in 1979; they were divorced in 1991. During the marriage, PAM gave birth to DHM (in 1983), CWM (in 1985), and ACM (in 1987), referred to in this matter as “the younger children.” On each child’s birth certificate, JHM is listed as the father. PAM and DHM, who has since reached majority, are represented in this matter; the district court is representing CWM and ACM pursuant to Minn. Stat. § 501B.19 (2002), which authorizes a court to represent interested minors in trust proceedings.

In 1986, JHM filed a petition to dissolve his marriage to PAM that challenged the paternity of DHM and CWM. ACM was not yet born. JHM subsequently filed a notice of voluntary dismissal of the action, stating that “with respect to the issues raised by him relative to the paternity of [DHM and CWM] ... [he] voluntarily dismissed the] petition with prejudice.”

In 1989, the trustees of a fourth trust, created for the benefit of JHM and not at issue here, filed a petition in Minnesota district court seeking authorization to distribute trust assets to JHM’s “children,” a beneficiary class defined in the trust instrument as “all [of JHM’s] legal issue and all adopted children.” The petition, which was considered without objection from the older children, identified the younger children as JHM’s and therefore eligible to receive trust distributions. In granting the petition, the district court specifically found that DHM, CWM, and ACM were JHM’s children.

In 1991, JHM and PAM dissolved their marriage pursuant to a settlement agreement that specifically provided that the younger children are “children of the marriage” and stated that “no additional issue is contemplated.” The agreement also provided:

Husband further agrees that in the event of his death, with respect to any testamentary disposition of his assets held by him or in trust for his benefit, the [younger children] shall share equally and no differently than Husband’s children from prior or future marriages. The Husband shall insure and require that in the event any new or future trusts are established by him, that the instruments will reflect the above agreement and that this obligation is specifically enforceable by a court of competent jurisdiction.

The agreement’s article governing law and venue provides: “The parties agree that if any action or proceeding by either party dealing with the provisions of this Settlement Agreement and/or the [younger children] is commenced, Florida law will govern.” The agreement was incorporated into the final judgment of dissolution of marriage entered in Florida in February 1991.

In 1997, respondent trustees, who are neither beneficiaries of the subject trusts nor members of JHM’s family, received information that JHM is not the father of PAM’s children. Reasoning that they had a duty to ascertain the proper trust beneficiaries, the trustees conducted an investigation and determined that there is a basis to reasonably conclude that PAM’s children are not JHM’s children.

In April 2000, two of the older children filed, and were granted, a petition in district court to determine JHM’s capacity and to appoint them as plenary guardians over his person and property. The petition stated that the younger children are JHM’s minor children.

In July 2000, respondent trustees brought a “Petition for Order to Determine Beneficiaries and for Other Relief’ pursuant to Minn.Stat. § 501B.16(3), (4) (2002), which authorizes trustees to request that the district court interpret the terms of a trust in order to identify beneficiaries and determine the nature and extent of their interests. The petition requested an order “[ajuthorizing and ordering such proceedings as are reasonably necessary to identify the proper beneficiaries of the Subject Trusts.” In an affidavit accompanying the petition, the trustees asserted that “blood or saliva testing could be used to resolve conclusively the question of the parentage of [the younger children] for the purpose of this proceeding.”

The trustees then filed a motion for partial summary judgment, requesting a declaration that any beneficiary of the subject trusts must be a biological descendent of JHM and that the younger children are not JHM’s “issue” as the term is defined in the subject trusts. Respondents, the older children, filed a memorandum in support of the trustees’ motion. Appellants brought a cross-motion to dismiss the trustees’ petition, arguing that the trustees are precluded under the Florida Parentage Act and the Minnesota Parentage Act from challenging the younger children’s paternity by (1) the 1991 judgment and decree of dissolution; (2) JHM’s voluntary dismissal with prejudice of the 1986 paternity challenge; and (3) the 1989 Minnesota district court order finding the younger children to be JHM’s for the purposes of a trust distribution. Appellants also moved for summary judgment on the grounds that the younger children are proper beneficiaries under the terms of the trusts, arguing that the term “issue” in the trusts does not require biological parentage. For the purposes of the cross-motions, the parties stipulated that the younger children “are not the biological children of [JHM].”

By an order issued in June 2002, the district court granted respondent trustees’ motion, concluding that, under the terms of the trusts, beneficiaries must be JHM’s biological or adopted children. The court authorized the respondent trustees “to conduct such proceedings and/or investigation as reasonably necessary to determine if the [younger children] are the biological children of [JHM].” The court denied all of appellants’ motions, reasoning that (1) as to standing, the respondent trustees were specifically authorized by Minn.Stat. § 501B.16 to ascertain beneficiaries; (2) the 1991 dissolution judgment was conclusive as to the younger children’s legitimacy and JHM’s paternity for the purposes of child support, but had no preclusive effect on respondent trustees’ challenge to the younger children’s paternity for the purposes of determining the trust beneficiaries.

In July 2002, respondent trustees filed a Motion for Order Approving Process for Determination of Beneficiary Status in which they requested the district court to declare that the younger children are not the biological children of JHM unless they submit to genetic testing under agreed-upon, court-directed circumstances. Appellants filed motions (1) opposing the genetic-testing proposal; (2) requesting reconsideration of the June 2002 order; and (3) to compel discovery related to respondent trustees’ factual inquiry into the younger children’s paternity. Appellants’ request for discovery was premised on the argument that the younger children’s parentage should be determined by “traditional means before any genetic testing.” Appellants also argued that respondent trustees’ July 2000 petition to determine beneficiaries was barred by the doctrine of laches because the trustees knew as early as December 1997 of allegations questioning the younger children’s paternity.

In February 2003, the district court issued an order granting respondent trustees’ motion and denying all of appellants’ motions. The court subsequently issued a judgment declaring that the younger children are not the biological children of JHM for the purposes of the subject trusts unless they submit to genetic testing within either one year of the order or within one year of attaining majority, whichever is later. The court reasoned that because this is an in rem proceeding, it lacks personal jurisdiction over the younger children and cannot order them to undergo genetic testing. This appeal follows.

ISSUE

Did Minn.Stat. § 501B.16 (2002) authorize the trustees to seek a determination that JHM is not the younger children’s biological father?

ANALYSIS

Appellants argue that the trustees and respondent beneficiaries are precluded from requesting a declaration that the younger children are not JHM’s biological issue because such an authorization is not authorized by Minn.Stat. § 501B.16 (2002) where the children’s paternity has been previously established pursuant to both Florida and Minnesota parentage laws. Appellants contend that the trustees’ challenge to the younger children’s parentage action fails to meet those acts’ standing and timeliness requirements and is barred by res judicata as an attempt to relitigate a previously adjudicated issue. Statutory construction is a question of law, which we review de novo. In re Estate of Zeno, 672 N.W.2d 574, 576 (Minn.App.2003).

Whether Minn.Stat. § 501B.16 authorizes trustees to challenge a beneficiary’s parentage, as previously determined by applicable parentage laws, is an issue of first impression in Minnesota. Respondent trustees and respondent beneficiaries first argue that the trustees’ action is not governed by either the Florida or the Minnesota Parentage Act because it does not seek to challenge the younger children’s paternity as established by those statutes, but is merely seeking to clarify and enforce the terms of the subject trusts pursuant Minn.Stat. § 501B.16. We disagree with respondents’ characterization of the trustees’ action.

As the filings in this matter make clear, the challenge to the younger children’s paternity is the kernel of the trustees’ petition. Both respondents requested — and obtained — a declaration from the district court that the younger children are not JHM’s biological issue and cannot therefore be trust beneficiaries; without such a declaration, the trustees’ petition for clarification would contain no practical request for relief. Cf. In re Estate of Lamey v. Lamey, 689 N.E.2d 1265, 1269 (Ind.Ct.App.1997) (holding that where an action to identify heirs will necessarily require an action to determine paternity, “there is no practical difference between these two types of actions”). We further observe that the district court’s June 2002 order specifically describes the trustees’ action, and allows it to go forward, as “a challenge by the trustees of [JHM’s] paternity of the younger children.”

We agree with respondents’ contention that the trustees have standing to request trust clarification pursuant to Minn.Stat. § 501B.16. But section 501B.16 does not thereby confer standing upon the trustees to challenge the younger childrens’ paternity by bringing a collateral attack of a preexisting adjudication of parentage made consistent with applicable parentage laws.

We next address whether the applicable parentage law is that of Florida, where the younger children were born and reside, or of Minnesota, the situs of the subject trusts. Although the trusts are clear that Minnesota law must control their interpretation, the status of a person who may be a beneficiary of an instrument created under Minnesota law is determined by the laws of that person’s domicile. See In re Patrick’s Will, 259 Minn. 193, 196, 106 N.W.2d 888, 890 (1960) (stating that “[w]ith respect to a claimant’s right to take from an estate being probated in this state, the status of the claimant is determined by the laws of his domicile, but his rights in the estate are determined by the laws of this state”); Restatement (Second) of Conflicts of Laws § 287 (1971) (stating that generally, the traditional rule is that determinations of paternity status are governed by the local law under which the status was created).

“Before applying the choice-of-law analysis, this court must first determine whether the choice of one law will be outcome determinative, i.e., whether there is an actual conflict.” Kearns v. Am. Family Ins. Group, 486 N.W.2d 796, 798 (Minn.App.1992) (quotation omitted), revieiv denied (Minn. Aug. 4, 1992). We therefore consider whether the application of Florida or Minnesota law will lead to different results in this case.

In Florida, courts maintain “the presumption that a child born in wedlock is the blood issue of the partners of such marriage.” Knauer v. Barnett, 360 So.2d 399, 403 (Fla.1978). Parentage proceedings in Florida are governed by the Determination of Parentage Act, Fla. Stat. ch. 742 (2002). That act provides:

Any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise.

Fla. Stat. § 742.011. Chapter 742 “is the exclusive remedy for establishing paternity in Florida.” Achumba v. Neustein, 793 So.2d 1013, 1016 (Fla.Dist.Ct.App.2001).

Paternity is established by law “when there has been an adjudication of paternity or by the filing of affidavits or stipulation acknowledging paternity.” G.F.C. v. S.G., 686 So.2d 1382, 1385 (Fla.Dist.Ct.App.1997). The Florida Supreme Court has held that “a final judgment of dissolution of marriage which establishes a child support obligation for a former husband is a final determination of paternity.” D.F. v. Dep’t of Revenue ex rel. L.F., 823 So.2d 97, 100 (Fla.2002). Although subsequent challenges to legally established paternity may be brought pursuant to FI. R. Civ. P. 1.540 for mistake, newly discovered evidence, or fraud, a motion for relief from a final judgment on any of those grounds must be brought “not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.” Id. (quoting Fl. R. Civ. P. 1.540(b)(5)); Florida Dep’t of Revenue ex rel. Sparks v. Edden, 761 So.2d 436, 437 n. 2 (Fla.Dist.Ct.App.2000) (stating that “[ajbsent a showing of fraud upon the court a trial court is without jurisdiction to permit a challenge to a judgment of paternity more than one year after its rendition”).

Here, the 1991 dissolution decree, as entered into judgment in Florida, stated that JHM was the younger children’s father and established JHM’s child-support obligations. We observe that JHM had previously stipulated to paternity of the two elder younger children when he voluntarily dismissed, with prejudice, his 1986 paternity challenge. We conclude that these acts established JHM’s paternity of the younger children in Florida as a matter of law. We further observe that even had the younger children’s paternity not been established under Florida law, only “[a] woman who is pregnant or has a child, [a] man who has reason to believe that he is the father of a child, or [a] child” has standing to challenge paternity. Fla. Stat. § 742.011. The trustees therefore lack standing to challenge the younger children’s paternity under Florida law. Further, even if they had standing, the trustees’ challenge is barred as untimely under Florida law.

In its order permitting the trustees to challenge JHM’s paternity of the younger children, the district court correctly cited Daniel v. Daniel, 695 So.2d 1253, 1254 (Fla.1997), for the proposition that in Florida, “paternity and legitimacy are related, but nevertheless separate and distinct concepts.” In Daniel, the court held that “legitimacy” refers to the status of a child born during a valid marriage, while “paternity” refers to the status of being the natural, or biological, father of a child. Id. at 1254-55. Citing Daniel, the district court concluded that Florida law preserves the presumption of legitimacy for children born during a marriage but “clearly permits a challenge to a determination of paternity, subject to various limitations.” We find the court’s reliance on Daniel misplaced in that the parties in Dani&l stipulated in the marriage dissolution proceeding that the husband was not the biological father of the child born to his wife during the marriage. See id. at 1254. In the case before us, paternity was stipulated in an adjudicated dissolution decree. Daniel held that a child’s legitimacy is unaffected where a former husband raises the issue of paternity during a dissolution proceeding. Id. at 1255. The Florida Supreme Court has since held that Daniel does not affect the principles that “a final judgment of dissolution of marriage which establishes a child support obligation for a former husband is a final determination of paternity” and that any subsequent challenge to paternity must be brought under the provisions of the rules of civil procedure governing relief from judgment, decrees, or orders. D.F., 823 So.2d at 100.

Florida courts have consistently “applied the principle that a divorce decree which establishes the paternity of a child is a final determination of paternity.” Anderson v. Anderson, 746 So.2d 525, 526 (Fla.Dist.Ct.App.1999) (quotation omitted). The trustees cite no authority permitting them to use the trust-clarification petition to circumvent the standing and timeliness requirements of the Florida Parentage Act or otherwise reopen the dissolution judgment establishing JHM’s paternity of the younger children. See Knauer, 360 So.2d at 403 (holding that where father’s ac-knowledgement of paternity rendered child legitimate for all purposes, factual proof of paternity by father was unnecessary and irrelevant in declaratory judgment proceeding to determine whether son was “blood issue” of father within meaning of trust instrument). We conclude that under the Florida Parentage Act, when a child is born into a marriage, the law does not expressly authorize a third party, who is not asserting paternity in the child, to petition the court for a mandatory determination of a child’s paternity under the guise of a petition to clarify a trust instrument.

“[A]s a general matter, foreign dissolution decrees are entitled to full faith and credit from the Minnesota courts.” Mahoney v. Mahoney, 433 N.W.2d 115, 119 (Minn.App.1988), review denied (Minn. Feb. 10, 1989). We therefore conclude that the 1991 Florida dissolution decree and JHM’s 1986 voluntary dismissal with prejudice of the 1986 paternity action conclusively established the younger children’s status as his biological issue under Florida law. That status is entitled to full faith and credit in Minnesota courts, and the trustees are therefore barred by the Florida Parentage Act’s standing and timeliness requirements from challenging the younger children’s paternity.

We next address the younger children’s parentage status under Minnesota law. The Minnesota Parentage Act “provides the exclusive bases for standing to bring an action to determine paternity.” Witso v. Overby, 627 N.W.2d 63, 65-66 (Minn.2001). “Whether the trial court properly interpreted the parentage act is a question of law, which we review without deference to the trial court’s conclusions.” In re Welfare of C.M.G., 516 N.W.2d 555, 558 (Minn.App.1994). “Whether and when a person may bring a paternity action depends on which presumptions of paternity, if any, apply.” Witso, 627 N.W.2d at 66 (citing Minn.Stat. § 257.57 (2000)). Under the Minnesota Parentage Act, a man is presumed to be the biological father of a child born to his wife. Minn.Stat. § 257.55, subd. 1(a) (2002). That presumption may be rebutted by clear and convincing evidence, id., subd. 2 (2002), but only by the child, the mother, or the presumptive father, Minn.Stat. § 257.57, subd. 1 (2002), and “in no event later than three years after the child’s birth,” at which point the presumption becomes irrebutta-ble. Id., subd. 1(b). Adjudications of parentage under the parentage act are “determinative for all purposes.” Minn.Stat. § 257.66, subd. 1 (2002).

The parentage act’s standing requirements contain no exceptions. See Markert v. Behm, 394 N.W.2d 239, 242 (Minn.App.1986) (observing that the act confers standing “only upon” those persons named). The act’s timeliness requirements are similarly inflexible: “The obvious intent of the three-year statute of limitations is to make the presumption of legitimacy conclusive once a child reaches three years of age.” Pierce v. Pierce, 374 N.W.2d 450, 452 (Minn.App.1985), review denied (Minn. Nov. 4, 1985); see also DeGrande v. Demby, 529 N.W.2d 340, 343-44 (Minn.App.1995) (holding that “[e]ven in the face of scientific evidence excluding [a party’s] biological paternity, the three-year statute of limitations contained in the Minnesota Parentage Act is an absolute bar to an action to declare the father-child relationship nonexistent”), review granted (Minn. May 16, 1995), appeal dismissed (Minn. July 27, 1995); Clay v. Clay, 397 N.W.2d 571, 575 (Minn.App.1986) (holding that even where the former husband “knew or should have known at the time of the dissolution” that the child born of the marriage was not his biological issue, the district court properly refused to vacate the portion of the marriage dissolution decree naming appellant father of the child in question, despite blood tests indicating he could not be the child’s father), review denied (Minn. Feb. 17, 1987).

In support of its conclusion that “[t]he presumption of legitimacy is not a per se bar to a challenge by the trustees of [JHM’s] paternity of the younger children,” the district court relied on our decision in In re Estate of Palmer, 647 N.W.2d 13 (Minn.App.2002), aff'd, 658 N.W.2d 197 (Minn.2003), for the proposition that “[c]lear and convincing evidence of the parentage may be used [to challenge paternity] regardless of the limitations of the parentage act.” We find the district court’s reliance upon Palmer misplaced in that Palmer concerned the interpretation of a provision of the Minnesota Probate Code stating that “the parent and child relationship may be established under the Parentage Act.” Id. at 15 (quoting Minn. Stat. § 524.2-114(2) (2000)). We concluded that because “may is permissive ... [t]he probate court’s jurisdiction over the determination of heirs and successors is not limited by the Parentage Act.” Id. Minn.Stat. § 501B.16, under which the trustees brought their petition for trust clarification, contains no analogous permissive language authorizing the district court to look beyond the parentage act’s justicia-bility requirements to entertain a paternity challenge.

We conclude that because JHM’s biological paternity of the younger children was previously adjudicated under Minnesota law and because the trustees did not meet the standing and timeliness requirements of the Minnesota Parentage Act, their attempt to challenge the younger children’s established paternity was not authorized by either Minnesota or Florida law. Because we conclude that no actual conflict is created by the choice of whether Florida or Minnesota law applies to the trustees’ challenge to the younger children’s paternity, no choice-of-law analysis is necessary.

In Minnesota, the “parent and child relationship” is “the legal relationship existing between a child and the child’s biological or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations.” Minn. Stat. § 257.52 (2002). “The guiding principle [of the parentage act] is that the best interests of the child are paramount.” Wilson v. Speer, 499 N.W.2d 850, 852 (Minn.App.1993), review granted (Minn. July 19, 1993), appeal dismissed (Minn. Aug. 16, 1993). In Michael H. v. Gerald D., 491 U.S. 110, 119-120, 109 S.Ct. 2333, 2340, 105 L.Ed.2d 91 (1989), the court stated that a determination of parentage made pursuant to a state parentage act reflects

a substantive rule of law based upon a determination by the Legislature as a matter of overriding social policy, that given a certain relationship between the husband and wife, the husband is to be held responsible for the child, and that the integrity of the family unit should not be impugned.

(Quotation omitted.) Given the clear statements of policy expressed by the parentage act, we cannot conclude that the legislative intent embodied in that act would be furthered were we to permit third-party challenges to prior adjudications of paternity.

Other courts have reached the same conclusion after applying state parentage acts to facts similar to those before us. In In re Trust Created by Agreement Dated Dec. 20, 1961, 166 N.J. 340, 765 A.2d 746 (N.J.2001), certain trust beneficiaries filed a challenge to a beneficiary’s parentage and thus her status as a beneficiary of the trust. Id. at 751. The court held that the New Jersey Parentage Act, the applicable terms of which are substantively similar to those before us, foreclosed the beneficiaries’ third-party attack on a beneficiary’s parentage adjudicated on the basis of an acknowledgement of paternity in a divorce action; the beneficiaries thus could not collaterally attack the parentage in an attempt to exclude the beneficiary. Id. at 755. The court specifically found that the term “issue,” the same term used in the subject trusts before us, includes children whose paternity has been established under the state parentage act. Id. at 757.

Both the Minnesota and Florida parentage acts provide limited opportunity for certain specified individuals to challenge a determination of paternity previously adjudicated in a divorce proceeding. Although Minn.Stat. § 501B.16 authorizes respondent trustees to request a clarification of the trust language, that law does not authorize respondents to circumvent the standing and timeliness requirements of the applicable parentage acts in order to mount a collateral attack on the younger children’s paternity. Because we conclude that Minn.Stat. § 501B.16 does not authorize the trustees’ action, we do not address the alternative grounds for dismissal or the other issues raised by the parties.

DECISION

Minn.Stat. § 501B.16 (2002) does not authorize trustees to collaterally attack a beneficiary’s previously adjudicated parentage where no applicable parentage law authorizes third parties to seek a declaration disestablishing parentage under the guise of a trust-clarification action. The district court therefore erred in permitting respondent trustees to challenge the younger children’s paternity and in declaring that the younger children are not the biological issue of JHM. We therefore reverse the district court’s decision and order that summary judgment be entered in favor of appellants.

Reversed.


author: TOUSSAINT, Chief Judge.

text:
    Donna INGRAM, et al., Appellants, v. Selmer SYVERSON, et al., Respondents.
    No. A03-967.
    Court of Appeals of Minnesota.
    Feb. 3, 2004.

      Raymond L. Hansen, O’Brien & Wolf, L.L.P., Rochester, MN, for appellants.
    Michael B. Goodman, Goodman & Guzin-ski, P.A., Rochester, MN, for respondents.
    Considered and decided by TOUSSAINT, Chief Judge; KLAPHAKE, Judge; and G. BARRY ANDERSON, Judge.
   OPINION

TOUSSAINT, Chief Judge.

On appeal in this personal-injury case, appellants Donna Ingram and James Ingram argue that the district court erred in determining that their expert testimony was not based on adequate factual foundation, and in granting summary judgment because appellants failed to show their theory of causation was more probable than that of respondents. Because a physician’s expert opinion may be reasonably based on information from multiple sources, including statements made to the physician by a patient, and because causation is an issue best suited for a jury, we reverse and remand.

FACTS

The present action arose out of a low-speed accident that occurred in Rochester on January 29, 1996, between vehicles driven by respondent-defendant Selmer Syverson and appellant-plaintiff James Ingram. Syverson, driving a pickup truck owned by his employer, respondent-defendant Expertise Lawn Care (Expertise), made a left turn as the Ingrams’ van approached from the opposite direction. The icy conditions that afternoon made stopping difficult, and the Ingrams’ van struck the passenger-side edge of the snowplow mounted on Syverson’s turning vehicle.

Appellant-plaintiff Donna Ingram, who had been diagnosed six days earlier with degenerative disc disease in her back (and who had been receiving back-pain treatment at the Mayo Clinic for three years), was a passenger in the vehicle driven by her husband. She asserts that, upon impact, she immediately felt a sharp pain in her low back. She now claims that the accident prompted, or at least accelerated, the need for spine-fusion surgery in July 1997.

The Ingrams filed suit against both Sy-verson and Expertise, alleging that Syver-son’s negligence caused both the accident and Donna Ingram’s deteriorated back condition. To support their claims, the Ingrams solicited the testimony of Dr. R.A. Klassen, Donna Ingram’s treating surgeon, who testified that her condition worsened after the collision, and that her spine-fusion surgery “was related to the increasing pain that she had following the accident.”

On cross-examination, however, Dr. Klassen admitted that he was unable to causally connect Donna Ingram’s symptoms to the accident solely from his own findings and examination, and relied upon her statements that her pain resulted from the accident. Further, Dr. Klassen conceded that Donna Ingram’s injuries might have resulted from the natural progression of her degenerative back disease, rather than from the accident.

Respondents moved for summary judgment, claiming that the Ingrams failed to establish that Syverson’s alleged breach of duty caused Donna Ingram’s back problems. They asserted that Dr. Klassen’s testimony was based solely on Donna Ingram’s own statements concerning the relationship of the accident to her pain, and that none of Dr. Klassen’s physical examinations, standing alone, could link her increased pain to the accident.

The district court granted respondents’ motion, finding that Dr. Klassen’s testimony was “not based on adequate factual foundation because no medical reports indicate evidence of injury suffered by the Plaintiff solely attributable to the accident ...” Without medical reports supporting Dr. Klassen’s testimony, the court reasoned, the only evidence linking the accident to Donna Ingram’s pain was Donna’s own statement. The court further determined that the Ingrams’ theory of causation was “founded on speculation and conjecture” because the Ingrams did not show their theory was more probable than that of the respondents. • The Ingrams appeal, asserting that their expert’s opinion was based on sufficient factual foundation to withstand summary judgment, and that the court improperly decided a fact issue that should have been determined by a jury.

ISSUES

I. May a physician testifying as an expert witness rely on statements made by a patient about her symptoms to formulate opinions concerning causation?

II. Must appellants demonstrate that their theory of causation is more probable than respondents’ theory to withstand summary judgment?

ANALYSIS

When deciding a motion for summary judgment, the reviewing court is to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn.1992). The court must review the evidence de novo, and in the light most favorable to the party against whom judgment is granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). All doubts and factual inferences must be resolved in favor of the non-moving party. Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988).

I.

The Ingrams first dispute the district court’s determination that Dr. Klassen’s testimony lacked adequate factual foundation. They contend that Dr. Klassen’s opinion that Donna Ingram’s pain related to the accident was based not only on her own statements about her symptoms, as the district court concluded, but also on medical records and physical examinations. This, they argue, is information typically relied upon by experts in Dr. Klassen’s field.

The Ingrams’ argument finds support from the Minnesota Rules of Evidence. The comments to rule 703 state that a court should apply a two-part test to determine whether an expert’s opinion is based on adequate foundation. First, the court should determine if the facts and data are of a type relied upon by experts in the field when forming inferences or opinions on the subject. Minn. R. Evid. 703-1989 comm. cmt. Second, the court should address whether the expert’s reliance is reasonable. Id. The comments specifically state that the physician-as-expert, because of the nature of his practice, “bases his diagnosis on information from numerous sources and of considerable variety.” Id. This information includes “statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X-rays.” Id.

Indeed, Minnesota courts have long recognized the relatively subjective, imperfect nature of medical science. In the oft-cited Hiber v. City of St. Paul, the Minnesota Supreme Court noted the difference between an expert’s inference and mere conjecture rests in the expert’s ability based on education, training, and experience to interpret facts relative to a patient’s physical condition, symptoms, and case history. 219 Minn. 87, 91-92, 16 N.W.2d 878, 880 (1944). The court stated that such inferences need not be absolutely certain:

It is not necessary that the truth of an expert’s opinion be capable of demonstration; it is sufficient that it is probably true. [An expert witness] is not required to speak with such confidence as to exclude all doubts in his mind, but may render his testimony in the form of an estimate of opinion, couched in expressions that fall short of absolute conviction of accuracy. Such qualification affects merely the probative force of the testimony.

Id. at 93, 16 N.W.2d at 881 (quotations omitted).

Here, the district court determined that Dr. Klassen’s conclusions lacked adequate factual foundation because Donna Ingram’s medical records shortly after the accident reflected no substantial change to her back condition when compared to her records immediately prior to the accident. It therefore found that “the only evidence linking the accident to the Plaintiffs pain is the Plaintiffs own statement.”

Our view of Dr. Klassen’s testimony differs from that of the district court. Though Dr. Klassen did state during cross-examination that he based his testimony solely on Donna Ingram’s statements, this is clearly an incomplete list of the sources he used to form his opinion. Dr. Klassen’s testimony derives not only from statements made by his patient, but also from his education, training, and experience as a practitioner. Through his interpretation of Donna Ingram’s medical history records and firsthand observations during examinations, Dr. Klassen was able to form an opinion as to the legitimacy of her statements about her pain, and could rationally relate her symptoms to the accident. This type of inference is consistent with both Hiber and rule 703.

Because Dr. Klassen did not simply reiterate statements made to him by his patient, but instead used his medical education and experience to form a reasonable opinion based upon the patient’s statements, we conclude that the district court erred in determining Dr. Klassen’s testimony lacked adequate factual foundation.

II.

The Ingrams next challenge the district court’s conclusion that their causation theory is merely speculative “because there are two theories of causation neither of which has been shown to be more plausible than the other.” Though the district court correctly notes that the Ingrams must ultimately show that it is more probable that Donna Ingram’s condition resulted in whole or in part from Syverson’s negligence than from any other cause, see Bahl v. Country Club Market, Inc., 410 N.W.2d 916, 920 (Minn.App.1987), we agree with the Ingrams that the court erred in granting summary judgment.

In Bahl, this court noted that causation can be found as a matter of law only where the facts are undisputed and are reasonably susceptible of only one inference, or where reasonable people can come to no other conclusion. Id. Where reasonable minds can differ on the issue of causation, the jury should resolve the issue, and it would be error to grant summary judgment. See id.; see also Paidar v. Hughes, 615 N.W.2d 276, 281 (Minn.2000) (“Causation is generally a question of fact left to the finder of fact that only becomes a question of law “where different minds can reasonably arrive at only one result.’ ”); Abo El Ela v. State, 468 N.W.2d 580, 582-83 (Minn.App.1991) (because negligence involves standards of reasonableness and causation uniquely suited for jury consideration, questions of negligence are usually inappropriate for summary judgment); Van Gordon v. Herzog, 410 N.W.2d 405, 406 (Minn.App.1987) (“From the outset, we emphasize that our task in reviewing a grant of summary judgment is to determine whether triable issues of material fact exist and whether the law was misapplied, not whether a jury would find the theory advanced under these facts to be credible in light of other evidence.”).

Here, there are two plausible theories as to Donna Ingram’s deteriorating back condition. The Ingrams claim that the condition was affected by the accident, and have Dr. Klassen’s medical testimony to support this assertion. Respondents have the testimony of Dr. McPartlin, retained by respondents for litigation purposes, who examined Donna Ingram and concluded that the accident did not affect her condition. This type of causation dispute is exactly the type to be submitted to a jury, for it is ultimately the jury’s responsibility to determine which theory is more credible.

Because reasonable minds could differ as to the cause of Donna Ingram’s injury, we hold that the district court here improperly preempted the jury’s authority to determine the matter. We therefore reverse the district court’s grant of summary judgment and remand for further proceedings.

DECISION

Because medicine is an imperfect science and a plaintiffs symptoms may not always be proven by tests and statistics, a physician testifying as an expert witness may rely on statements made by patients about their own symptoms to formulate opinions concerning causation. Furthermore, a court may not circumvent the jury’s authority to determine which of two plausible theories of causation is more probable than another, by granting summary judgment.

Reversed and remanded.


author: KLAPHAKE, Judge.

text:
    STATE of Minnesota, Appellant, v. Ralland Isadore KOLB, Respondent.
    No. A03-931.
    Court of Appeals of Minnesota.
    Feb. 3, 2004.

      Mike Hatch, Attorney General, Timothy Rank, Assistant Attorney General, St. Paul, MN; and Patrick W. Flanagan, Mower County Attorney, Eric V. Heren-deen, Chief Deputy County Attorney, Austin, MN, for appellant.
    Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Roseville, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, KLAPHAKE, Judge, and ANDERSON, Judge.
   OPINION

KLAPHAKE, Judge.

Appellant State of Minnesota challenges a pretrial order issued by the district court that suppressed evidence found during the search of a vehicle driven by respondent Ralland Isadore Kolb and resulted in the dismissal of controlled substance charges against respondent. The state argues that the district court clearly erred in ruling that police, who ordered respondent’s car towed because he did not have a valid license, needed reasonable, articulable suspicion of drug-related activity to conduct a dog sniff of the exterior of the vehicle after impoundment. Because police do not need reasonable, articulable suspicion to order a dog sniff of a lawfully impounded vehicle, we reverse and remand.

Because respondent is entitled to reasonable attorney fees and expenses when responding to a pretrial prosecution appeal, regardless of the outcome, and counsel’s request is reasonable, we grant respondent’s motion for attorney fees.

FACTS

On November 24, 2002, Trooper Ryan Siegle of the Minnesota Highway Patrol, stopped respondent because the vehicle he was driving had very dark tinted windows, an equipment violation. Respondent admitted to the trooper that he did not have a license, and the trooper learned from dispatch that respondent’s license was can-celled as inimical to public safety. The trooper arrested respondent, transported him to the Mower County Law Enforcement Center, and had the vehicle towed to the impound lot. The trooper later learned that the vehicle was registered to respondent’s girlfriend.

The trooper testified that while driving to the jail, respondent went “from being angry to kind of happy to not caring about what was going to happen to him” and remained that way upon arrival at the jail. He stated that respondent seemed to care only about his car. Respondent asked when he could get his car, where it was going, and when his girlfriend could pick it up. The trooper testified that respondent’s extreme concern about the car “raised some suspicions” that “there was something in the vehicle that [respondent] was worried about.” The trooper did not observe any indicia of intoxication, such as the smell of alcohol, bloodshot or watery eyes, or dilated pupils; nor did the trooper suspect that respondent was under the influence of any other controlled substance.

During the booking procedure, a woman entered the jail and identified herself as respondent’s girlfriend. She asked about the car and a cell phone in the car, and whether she could take the car. She did not ask about respondent, what he was being charged with, or when he would be released.

At some point, another officer informed the trooper of respondent’s possible prior involvement in drug activities. After respondent was booked, the trooper checked respondent’s local criminal history, which showed a 1984 conviction for a controlled substance offense. The trooper was at the end of his shift and could not reach the chief deputy before he left to inquire about conducting a dog sniff of the vehicle that day.

When the trooper arrived at work the next day, he spoke to the chief deputy, explained his suspicions, and asked that a certified narcotics dog perform an exterior sniff of the car. No illegal substances had been found when a roadside cursory inventory search for large and personal effects had been performed. The chief deputy reported to the trooper that the dog “hit” on the driver’s door of the vehicle. A search warrant was obtained based on the dog sniff, respondent’s mood swings, his prior drug conviction, and his inquiries regarding the release of the car. Found in the lower pocket of the driver’s door was some marijuana, a plastic bag of cocaine, and a plastic fuse box with dry hard rocks inside.

Respondent was charged with (1) first-degree possession with intent to distribute cocaine under Minn.Stat. § 152.021, subd. 2(1) (2002); (2) second-degree possession of controlled substance under Minn.Stat. § 152.022, subd. 2(1) (2002); and (3) gross misdemeanor driving after cancellation under Minn.Stat. § 171.24, subd 5 (2002). At an omnibus hearing, respondent moved to suppress the evidence found as a result of the dog sniff. The district court granted the motion and dismissed the controlled substance counts. The state appeals.

ISSUE

Did the district court err in suppressing evidence obtained during the search of the vehicle?

ANALYSIS

On appeal from a pretrial suppression order, the state “must ‘clearly and unequivocally’ show both that the [district] court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn.1995)). “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” Id. “Critical impact has been shown not only in those cases where the lack of the suppressed evidence completely destroys the state’s case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.” State v. Kim, 398 N.W.2d 544, 551 (Minn.1987). “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

Without the drug evidence obtained from the search of respondent’s car pursuant to the warrant, the state would not have had any basis to charge him with either of the controlled substance crimes. We therefore conclude that the suppression of the evidence has a critical impact on the state’s ability to successfully prosecute respondent.

The state argues that the district court “incorrectly extended state and federal law to require law enforcement officers to have reasonable, articulable suspicion of drug-related criminal activity before a narcotics-detection dog sniff may be conducted around the exterior of a lawfully impounded vehicle.” The state argues that this standard is not required because “not even a minimal amount of intrusiveness occurs when the dog sniff is so far removed from the scene of the traffic stop and the defendant’s presence.” We agree.

Fourth Amendment concerns and privacy expectations surrounding an automobile are much less than those in a home. Cardwell v. Lewis, 417 U.S. 583, 589-90, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974). “[A]n exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics.” City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 453, 148 L.Ed.2d 333 (2000). A dog sniff around the exterior of a car is “ ‘much less intrusive than a typical search.’ ” Id. (quoting United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983)). Thus, the Minnesota Supreme Court has held that “a dog sniff around the exterior of a legitimately stopped motor vehicle is not a search requiring probable cause on the basis of either the Fourth Amendment or the Minnesota Constitution.” State v. Wiegand, 645 N.W.2d 125, 133 (Minn.2002) (footnote omitted).

That holding, however, does not necessarily end the inquiry here. Noting that while a dog sniff around the exterior of a vehicle in a public place is not a search for purposes of the Fourth Amendment, the supreme court in Wiegand nevertheless held that this type of police activity was an investigatory procedure that required police to have a reasonable, articulable suspicion of drug-related criminal activity. Id. at 133-37. The Wiegand court reasoned that a dog sniff involves “some intrusion into privacy interests,” and that an officer cannot conduct such a procedure around a vehicle “stopped for a routine equipment violation without some level of suspicion of illegal activity.” Id. at 134. The court thus examined the scope of the initial stop and its duration, emphasizing that an “ ‘investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.’ ” Id. at 135 (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983)).

In Wiegand, police initially pulled the defendant’s vehicle over for a burned-out headlight. Id. at 128. They did not suspect that the driver was under the influence of any drugs, but merely believed that he was acting suspiciously. Id. While one officer issued a warning ticket for the equipment violation, another officer conducted a dog sniff around the exterior of the vehicle. Id. at 129. The duration of the stop was thus not at issue because the stop was not extended beyond the time necessary to issue a ticket for the equipment violation. Id. at 136. But because the officers were unable to articulate a reasonable suspicion of criminal activity, the supreme court concluded that they exceeded the scope of the initial investigatory stop. Id. at 136-37.

Similar to the defendant in Wiegand, respondent was initially stopped for an equipment violation. Unlike Wiegand, however, respondent was lawfully arrested soon after the stop when the trooper discovered respondent’s license had been can-celled. The dog sniff did not take place until the next day, after the vehicle was legally impounded. Thus, neither the scope nor the duration of the initial stop was improperly expanded: the purpose of the initial stop was no longer implicated because respondent was lawfully arrested, and the stop ended long before the dog sniff took place.

In a case more similar to this one than Wiegand, the First Circuit held that a dog sniff around the exterior of a vehicle that was legitimately in police custody did not infringe upon any Fourth Amendment rights so as to require reasonable, articula-ble suspicion to conduct such a procedure. United States v. Rodriguez-Morales, 929 F.2d 780, 788 (1st Cir.1991), cert denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992). Relying heavily on the Supreme Court’s decision in Place, 462 U.S. at 707, 103 S.Ct. at 2644, the First Circuit summarized: “So long as the automobile is lawfully impounded, the canine sniff test can be performed without any showing of reasonable suspicion.” Rodriguez-Morales, 929 F.2d at 789. We find the First Circuit’s holding persuasive and fully consistent with our supreme court’s decision in Wiegand.

We therefore conclude that once a vehicle is lawfully impounded, police need not have reasonable, articulable suspicion of criminal activity in order to conduct a dog sniff of the exterior of the vehicle. Such police activity does not improperly expand or violate either the scope of duration of the initial stop. Thus, because the probable cause for the search warrant issued here was based on a lawfully conducted dog sniff, the district court erred in suppressing the drug evidence and dismissing the controlled substance charges against respondent.

Finally, respondent requests attorney fees on appeal. Under Minn. R.Crim. P. 28.04, subd. 2(6), when a defendant responds to a pretrial appeal by the prosecution, he is entitled to reasonable attorney fees and costs, regardless of the outcome. We conclude respondent’s request for $1,965 in attorney fees is reasonable.

DECISION

Police do not need reasonable, articula-ble suspicion to conduct a dog sniff of a lawfully impounded vehicle the day after a lawful investigatory stop. We therefore conclude that the district court erred in granting respondent’s motion to suppress and reverse the district court’s order dismissing counts 1 and 2. We conclude that respondent’s request for attorney fees is reasonable and grant the motion.

Reversed and remanded; motion granted.

      . Respondent does not challenge the legality of the initial stop here or the subsequent impoundment of the vehicle.


author: G. BARRY ANDERSON, Judge.

text:
    In the Matter of the APPEAL OF the SELECTION PROCESS FOR THE POSITION OF ELECTRICIAN (Exam # 000200).
    No. A03-785.
    Court of Appeals of Minnesota.
    Feb. 3, 2004.

      V. John Ella, Mansfield, Tanick & Cohen, P.A., Minneapolis, MN, for relator Keith M. Anderson.
    Jay M. Heffern, Minneapolis City Attorney, Caroline M. Bachun, Assistant City Attorney, Minneapolis, MN, for respondent Minneapolis Civil Service Commission.
    Considered and decided by WILLIS, Presiding Judge; KLAPHAKE, Judge; and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

In 2002, relator, Keith Anderson, a temporary electrician for the City of Minneapolis, complained of alleged safety violations involving city vehicles. Shortly afterward, relator was terminated from his employment. After the termination, relator complained to the Minnesota Occupational, Safety, and Health Agency (MOSHA). Eight months after relator’s employment was terminated, the city accepted applications for permanent electricians; one of the highlighted requirements was completion of a state-approved apprenticeship. Relator had completed a state-approved apprenticeship but was unsuccessful in applying for the position; one of the successful applicants had not completed a state-approved apprenticeship. Relator challenged the application procedure in proceedings before respondent, the Minneapolis Civil Service Commission, alleging that he was not hired as retaliation for his MOSHA complaint and that there were irregularities in the hiring process, including the waiver of the apprenticeship requirement. Respondent did not conduct an evidentiary hearing and concluded that either there were no irregularities or that any irregularities were irrelevant. We reverse.

FACTS

From January 1998 until February 2002, relator was employed by the City of Minneapolis (the city) as a temporary (i.e., non-civil-service) electrician. In January 2002, relator complained to his supervisors, including his general foreman, Tom Piersak, that the city truck provided to him was unsafe. Approximately one week after his complaint, relator’s employment with the city was terminated. Relator claims that this was in retaliation for his complaint, although the official reason given was that he was released as part of a workforce reduction. Relator filed a complaint with MOSHA and his union, alleging retaliatory discharge because of his complaint.

From October 16, 2002, through November 1, 2002, the city accepted applications for electricians in the public works transportation department, the same department in which relator had served as a temporary employee. Relator submitted an application. The posting stated only one educational requirement: that the applicant must have completed “an apprenticeship program approved by the State Division of Apprenticeship,” and the posting also required submission of proof of successful completion of the apprenticeship. The proof-of-completion requirement was underlined and starred. The posting also stated the applicant needed to possess, and submit proof of, a Class A Journeyman Electrician’s License. The requirement of proof of licensure had two stars and was underlined.

Respondent’s staff ranked relator twelfth out of twenty candidates. The top four candidates were interviewed. But one of those candidates — one of two ultimately employed — had not submitted proof of completion of an apprenticeship. Of the candidates ranked fifth through eleventh, only numbers five, seven, and nine had submitted proof of completion of a state-approved apprenticeship. Relator had submitted proof of completion a state-approved apprenticeship.

Relator also challenged the interview process, alleging that (1) one of the successful candidates did not meet the minimum requirements; (2) Tom Piersak, one of those conducting the interviews, had called one of the successful candidates and told him what to say at the interview; and (3) relator had been denied the job because of his safety complaint while a temporary worker. Relator submitted affidavits and notarized letters to respondent supporting his claims. The human resources department investigated and submitted a report stating: (1) Piersak called all the interviewees but only arranged meeting times with them; (2) work experience could substitute for the apprenticeship requirement, conceding that one of the interviewees had not completed an approved apprenticeship; and (3) relator’s application was fairly reviewed, and no one who evaluated his application had knowledge of his MOSHA complaint.

Respondent conducted two hearings on relator’s challenges but refused to conduct an evidentiary hearing. At the first hearing, respondent requested that relator submit an affidavit and that the human resources department submit “some written materials in response.” At the second hearing, respondent heard arguments and considered the previously requested written material but did not hear testimony or receive additional evidence.

Without any further hearings, respondent concluded that (1) alternative methods to fulfill the educational requirement should have been stated, but this failure did not prejudice relator, (2) respondent did not have jurisdiction to “review the process used by the [public works transportation] department in its internal interviews,” and (3) no one reviewing relator’s application knew of the MOSHA complaint, and the grading of the applications was fair. Relator, by writ of certiorari, now challenges these conclusions.

ISSUES

I. Does relator have standing?

II. Did the Minneapolis Civil Service Commission err in finding it did not have jurisdiction to review the interview process used following certification of a list of interviewees?

III. Is the Minneapolis Civil Service Commission’s finding that no one grading relator’s application knew of his MOSHA complaint and that his application was graded fairly and objectively based on substantial evidence?

IV. Did the Minneapolis Civil Service Commission err in deciding it was irrelevant that the human resources department did not follow the stated educational requirement?

V. What is the appropriate remedy for the alleged irregularities?

ANALYSIS

“There is a presumption of administrative regularity, and the party claiming otherwise has the burden of proving a decision was reached improperly.” Buchwald v. Univ. of Minn., 573 N.W.2d 723, 727 (Minn.App.1998), review denied (Minn. Apr. 14, 1998).

I. Standing

Respondent raises, as a threshold matter, the issue of relator’s standing to challenge either the deviation from the apprenticeship requirement or the alleged procedural irregularities in the employment procedure because relator was ranked twelfth and only the top four candidates received interviews. Standing is a matter of law, which we review de novo. Schiff v. Griffin, 639 N.W.2d 56, 59 (Minn.App.2002). In deciding standing, the court is to look at the complaining party, not the proposed issues. Id. “Essentially, a potential litigant must allege injury in fact, or otherwise have a sufficient stake in the outcome, to have a court decide the merits of a dispute.” Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 433 (Minn.App.1995), review denied (Minn. May 31, 1995).

Standing is a low hurdle because relator need only allege injury in fact. See id. Here, relator has alleged injury in that he was a highly qualified candidate who should not have received a low civil service ranking and therefore should have received an interview and a chance at the job. Further, relator argues persuasively that, regardless of his rank relative to the other candidates, the interview process was sufficiently defective such that he could not reasonably be eliminated as a candidate for employment. Relator has alleged injury in fact and has standing. See id.

II. Respondent’s Jurisdiction

Respondent contends that it lacks jurisdiction to review the interview process but does not explain why jurisdiction is absent. Respondent asserts that, once a list of interviewees is compiled and is sent to the hiring department for interviews, the matter is removed from respondent’s jurisdiction. But relator argues that respondent has broad jurisdiction to investigate all aspects of the hiring process and notes that respondent has cited no authority supporting a jurisdictional limit.

Jurisdiction is a question of law and is reviewed de novo. Shaw v. Bd. of Regents, 594 N.W.2d 187, 190 (Minn.App.1999), review denied (Minn. July 28, 1999). The supreme court has said:

A commission can exercise only such authority as is legally conferred by express provisions of law or such as, by fair implication and intendment, is incident to and included in the authority expressly conferred for the purpose of carrying out and accomplishing the objectives for which the commission was created. Any reasonable doubt as to the existence of any particular power in the commission should be resolved against the exercise of such authority.

Essling v. St. Louis County Civil Serv. Comm’n, 283 Minn. 425, 428, 168 N.W.2d 663, 665 (1969).

The jurisdiction of respondent is not clearly delineated. Relator claims, and respondent does not contest, that there are no appellate decisions holding that civil-service commissions lack jurisdiction to consider the fairness of the application procedure for civil-service positions. For example, in Amundsen v. City of Minneapolis, the fairness of an interview was questioned, but the civil service commission’s jurisdiction to review the interview process was not challenged. 300 Minn. 520, 521, 218 N.W.2d 690, 691 (1974).

We conclude that respondent has jurisdiction. The city charter in chapter 19, section 19, directs respondent to investigate issues arising under chapter 19, and section 13 of chapter 19 states, “All examinations shall be impartial, fair and practical and designed only to test the relative qualifications and fitness of applicants to discharge the duties of the particular employment.” Minneapolis, Minn., City Charter Ch. 19, § 13 (2002). The rules state, “Examinations may consist of one or more of the following components: written test, oral interview, rating of education, skills, and/or experience, practical/work sample, physical performance, or seniority. The number of candidates advancing to successive components in the examination may be restricted to the most highly qualified person.” Minneapolis R. Civ. Serv. Comm’n 6.06. Thus, respondent has jurisdiction to consider the fairness and impartiality of the application process.

The human resources department, which reports to respondent, is required to investigate all appeals based on the intent of the commission’s rules, which are in place for the purpose of efficient and fair hiring practices. Minneapolis R. Civ. Serv. Comm’n 2.04(B); rule 1.01. Appeals are allowed that relate to any part of an application, including oral interviews. Minneapolis R. Civ. Serv. Comm’n 2.04(D)(2).

Further, rule 2.04(E) orders respondent to preserve the intent of the rules and chapter 19 of the charter. Because the intent of chapter 19 and the rules is to promote a fair system of hiring based on merit, the commission is not only authorized but required to take action to preserve the fairness of the hiring system. Therefore, the commission has jurisdiction to ensure that the hiring process is fair, which is the ultimate issue in dispute here.

We are mindful of the caution in Essling that reasonable doubts as to the question of jurisdiction should be resolved in favor of finding a lack of jurisdiction. 283 Minn. at 428, 168 N.W.2d at 665. But because respondent’s jurisdiction extends to the fair implications of chapter 19 necessary to effectuate the commission’s purpose of ensuring fair hiring systems based on merit, relator’s challenge to the interview process is certainly within the ambit of chapter 19 of respondent’s rules. See id.; see also Minneapolis R. Civ. Serv. Comm’n 2.04. We conclude that respondent has jurisdiction to review relator’s challenge to the interview process.

III. Respondent’s finding on the grading of the application

Respondent found, after examining all of the applications, and argues here that relator’s application was fairly and objectively graded; respondent also concluded and argues here that there was no evidence that anyone in the human resources department had knowledge of relator’s MOSHA complaint because the staff report says as much. Relator counters that the staff report is not sufficient, standing alone, to justify this finding.

Findings of administrative agencies will be upheld if there is substantial evidence for the decision. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn.1977). “Substantial evidence” is defined as

1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2) more than a scintilla of evidence; 8) more than “some evidence”; 4) more than “any evidence”; and 5) evidence considered in its entirety. There are correlative rules or principles that must be recognized by a reviewing court, such as: 1) unless manifestly unjust, inferences must be accepted even though it may appear that contrary inferences would be better supported; 2) a substantial judicial deference to the fact-finding processes of the administrative agency; and 3) the burden is upon the appellant to establish that the findings of the agency are not supported by the evidence in the record, considered in its entirety.

Id. The agency’s conclusions will'be upheld unless they “are arbitrary or capricious.” Id. at 827.

a. the grading

In Amundsen, the supreme court upheld the Minneapolis Civil Service Commission’s decision where the commission adopted a staff report, based on a review of recordings of the interviews at issue, that concluded (1) the interviews were fair to all, (2) all applicants were asked the same questions, (3) all applicants were given the same amount of time to respond, and (4) all of the questions were valid and appropriate. 300 Minn. at 521, 218 N.W.2d at 691.

Here, the staff report, in discussing this issue, states in its entirety:

The Human Resources staff [that] completed the evaluation of the applications and subsequently certified out a list of candidates to the Public Works department did not have any knowledge of the listed incident or lawsuit at the time of the scoring. Since the initial hearing on this matter three weeks ago, I [the author of the report] have personally reviewed the T & E documents and the submitted applications, and I [the author of the report] affirm that the rating of the applications was performed in a manner consistent with good human resources practices and procedures, and that the established ranking fairly and accurately identifies, in order, the applicants most qualified for the position, based upon their submissions.

Another staff report, prepared earlier, states that relator’s application was fairly scored and the reason for his low score was that he put too little information into the section of the application on specific job duties.

In describing on the application form his previous employment with respondent, relator stated, “I had worked under every foreman and had been trained to perform all the jobs at traffic. I did not work on navigation lighting or get the opportunity to build an EPAC Traffic Controller.” Relator briefly described his other work experiences as an electrician. The highest-ranked candidate had only one job as an electrician and that was also with respondent. That candidate described his experience, “Assemble, install, repair and maintain all traffic and street lighting throughout the City of Minneapolis.”

The staff reports relied on by respondent are entirely conclusory and insufficient to support the commission’s decision. Unlike Amundsen, where the staff report included documented facts, including that interviewers consistently asked the same questions and gave each applicant the same amount of time, the staff reports here merely concluded the grading was fair without providing any basis for the conclusion. If the earlier report is correct that the most important section of the written application was the four lines describing previous employment, it is unclear why there is a significant disparity between the points awarded to the top applicant and the points awarded to relator, given that both applications contain roughly the same level of minimal detail. Moreover, while the application instructed relator to include supplementary materials, the earlier staff report states that respondent may ignore these supplementary materials in grading the application. Thus, there is not substantial evidence that the grading was fair.

b. MOSHA complaint

The commission’s finding of lack of knowledge of relator’s MOSHA complaint also lacks substantial evidence. The staff report concluded that no one who evaluated the applications knew of the complaint without giving any explanation for that finding, and the commission adopted this conclusion. Relator alleged that the city attorney had specifically advised MOSHA that relator’s complaint had been forwarded to human resources. Relator also argued that, because Piersak was aware of the complaint and was heavily involved with the process, human resources may have learned of the complaint from Piersak. Relator argues that he should have been afforded the opportunity to develop these facts before respondent issued its decision.

It is uncontested that the city attorney told MOSHA that the complaint had been forwarded to the human resources department. Thus, there is not substantial evidence supporting the finding of lack of knowledge of relator’s safety complaint.

IV. Deviation from the posted requirements

Respondent concluded that, although it was error not to advise applicants of alternative methods of complying with the apprenticeship requirement, relator was not adversely affected by this error.

Whether the deviation from the job posting is permissible is a question of law and is reviewed de novo. See Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989) (stating that the application of the law to uncontested facts is a matter for de novo review). Rule 6.03 states that the human resources department recommends job requirements including “educational achievements, licenses and certificates, medical and physical standards, and work experience” for open positions; the human resources department may also demand proof of those requirements. Minneapolis R. Civ. Serv. Comm’n 6.03. Applications are to be reviewed fairly and objectively. Minneapolis R. Civ. Serv. Comm’n 6.04. Rule 6.04 further provides that “[sjpecific test items may be deleted or more than one correct answer approved when, in the judgment of subject matter experts ... such changes in the scoring are appropriate.” Minneapolis R. Civ. Serv. Comm’n 6.04(D). Rule 6.12 states that “the Human Resources Department may refuse to examine, refuse to certify, or remove from a list” candidates who do not meet the minimum stated qualifications so long as that is “[c]onsistent with law, merit principles, and efficiency.” Minneapolis R. Civ. Serv. Comm’n 6.12.

In Mahnerd v. Canfield, a 160-question test was given to applicants seeking a promotion. 297 Minn. 148, 150, 211 N.W.2d 177, 178-79 (1973). After the test was given, ten questions were eliminated because they were either too difficult or were ambiguous. Id. at 150, 211 N.W.2d at 179. The supreme court concluded that the elimination of ten questions was impermissible and stated, “Here, the civil service commission attempted to adjust the test requirements without having notified the applicants in advance of the test that such an adjustment might be made. With this we do not agree.” Id. at 153, 211 N.W.2d at 180. The supreme court ruled that, prior to the test, the commission was required to give notice that it may adjust the test after it was taken in order to be able to make any adjustments, otherwise, “partisanship and personal favoritism” could creep into the process. Id. at 154, 211 N.W.2d at 181.

Relator argues that changing the job requirements after the job has been posted, applications received, and the deadline for applications has passed, is no-different from changing a test after administration. We agree. It is important to note here that we are not faced with interpreting a requirement for employment or a requirement of minimal significance. Respondent clearly described and emphasized a training and educational requirement and then inexplicably abandoned it.

It was error for respondent to deviate from the posted requirements for the position without giving notice that it might do so.

V. Remedy

Relator seeks to have this court reverse respondent’s ruling and reopen the application process or, at a minimum, remand to respondent for an evidentiary hearing. In State ex rel. Kos v. Adamson, the supreme court affirmed the district court’s reversal of the certification of an applicant' when the application process consisted ■ solely of oral interviews that were subjective in part, consisted of different questions for different candidates, and had no definite criteria for the grading. 226 Minn. 177, 185-86, 32 N.W.2d 281, 285-86 (1948). In Mahnerd, the supreme court concluded that reopening the application process was unnecessary because it was possible for the commission to use already acquired data to rank the list of eligible candidates. 297 Minn. at 155, 211 N.W.2d at 181. But unlike Mahnerd, there is no untainted, already acquired data available here because the application process was flawed from its very inception. The logic set forth in Adamson applies here, and respondent’s decision must be reversed. We take no position on the ultimate outcome of the reopened civil service process. Further, because the application process must be reopened, it is unnecessary to address relator’s demand for an evidentiary hearing, and we decline to do so.

DECISION

We conclude that respondent’s decision lacks a substantial evidentiary basis. Further, material written job requirements were modified without notice to candidates for employment after the applications were received. We reverse and remand this matter with instructions to reopen the application process and conduct the hiring process in accordance with appropriate civil service procedures to fill the position of permanent electrician.

Reversed and remanded.

      . The Minneapolis City Charter states, "The commission shall from time to time investigate the enforcement of this act and of the rules made under it; the action of all examiners; the duties of all departments and of all employees of the city; the efficiency of the service, and such other matters as come within the scope of this Chapter.” Minneapolis, Minn., City Charter Ch. 19, § 19 (2002). The purpose of the civil service commission "is to ensure a fair and effective system of personnel administration, which is based upon the following merit principles: ... E. Recruiting, selecting, and advancing employees on the basis of their relative abilities, knowledge, and skills, including fair consideration of qualified applicants for initial appointment.” Minneapolis R. Civ. Serv. Comm'n 1.01.
      Respondent relies on a section of the city charter that provides for "[t]he creation of lists of eligible candidates after successful examination, in the order of their standing in the examination.” Minneapolis, Minn., City Charter Ch. 19, § 7(d) (2002). The rule concerning the list of interviewees provides, "[T]he Human Resources Department will send the requisitioning department (certify) the names of eligible candidates when there is a vacancy. Eligible candidates not hired will be returned to the list in their proper order.” Minneapolis R. Civ. Serv. Comm'n 8.03.
      The civil service commission rules also provide for appeals of hiring decisions, in which case "[t]he Human Resources Director and his or her staff is authorized to receive and consider appeals relating to the administration of the Civil Service Chapter of the City Charter and these Rules. The Civil Service Commission has the final authority to determine whether or not the Human Resources Department’s decision meets with the intent of the Rules and/or established policy and precedent.” Minneapolis R. Civ. Serv. Comm'n 2.04. That rule continues, "The Human Resources Department will investigate appeals based on the intent of Civil Services Rules, policies, and precedents and make a determination. If it is later determined that not all facts or points of view were considered, or for other good and sufficient reasons, the Commission may reconsider the staff determination in such appeals.” Minneapolis R. Civ. Serv. Comm’n 2.04(B). The rule further allows for "[a]ppeals related to any part (written, oral, practical, Training] & Experience], etc.) of an examination.” Minneapolis R. Civ. Serv. Comm'n 2.04(D)(2). Lastly, rule 2.04 mandates, “The Commission will take remedial action necessary to preserve the intent of the Charter and these Rules.” Minneapolis R. Civ. Serv. Comm’n 2.04(E).