author: PAGE, Justice.

text:
    In the Matter of the WELFARE OF the CHILDREN OF N.F. and S.F., Parents.
    No. A07-152.
    Supreme Court of Minnesota.
    May 30, 2008.

      Michael O. Freeman, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, Minneapolis, MN, for Appellant Hennepin County Human Services and Public Health Department.
    Bruce Jones, Faegre & Benson, L.L.P., Minneapolis, MN, for Guardian Ad Litem.
    Jill Waite, Minneapolis, MN, for Respondent Father, S.F.
    Jill Clark, Jill Clark, P.A., Golden Valley, MN, for Respondent Mother, N.F.
    John Kingrey, Executive Director, Minnesota County Attorneys Association, Susan Gaertner, Ramsey County Attorney, Kathryn M. Eilers, Assistant County Attorney, St. Paul, MN, for Amicus Curiae Minnesota County Attorney’s Association.
   OPINION

PAGE, Justice.

In 2005, S.F. disciplined his 12-year-old son, G.F., by paddling G.F. on the back of the upper thighs with moderate force a total of about 36 times. After a healing on stipulated facts and limited witness testimony, the district court adjudicated G.F. and his younger brother, C.F., to be in need of protection or services (CHIPS) under Minn.Stat. § 260C.007, subd. 6(2) (2006). The boys’ parents, S.F. and N.F., appealed. The court of appeals reversed the district court. Relying on the definition of “malicious prosecution of a child” under Minn.Stat. § 609.377, subd. 1 (2006), one of the crimes constituting “child abuse” under Minn.Stat. § 260C.007, subd. 5 (2006), the court held that “physical abuse” under section 260C.007, subdivision 6(2), “requires unreasonable force or cruel discipline that is excessive under the circumstances.” In re Welfare of Children of N.F. & S.F., 735 N.W.2d 735, 738 (Minn.App.2007). The court further held that, considering such circumstances as G.F.’s age and weight, the force used was not unreasonable and the paddling was not cruel or excessive discipline. We granted review and now affirm the court of appeals as to its reversal of the CHIPS adjudication of G.F. and his brother C.F., but reverse the court of appeals as to its definition of “physical abuse.”

At the adjudication hearing in November 2006, the parties stipulated to the basic facts, and our recitation of the facts reflects that stipulation. In 2005, G.F. weighed 195 pounds and was 5 feet, 2 inches tall. He left home that year without permission “numerous times.” G.F. would then refuse to say, or would lie about, where he had been. G.F.’s parents, N.F. and S.F., first tried to change his behavior by withdrawing privileges and grounding G.F. In June 2005, the parents discussed with G.F. various Bible verses about corporal punishment and posted the verses on the refrigerator. The parents told G.F. that if he left home again without permission, or if he was disrespectful to them, he would be paddled once for each year of his age. The parents told G.F. that S.F. would do the paddling, but that S.F. would not paddle G.F. while S.F. was angry.

On June 29, 2005, instead of going to bed as instructed, G.F. left the house without permission shortly before 9 p.m. C.F. reported G.F.’s departure to his father. When G.F. returned, between 15 and 30 minutes later, S.F. told G.F. that he was going to get a “hot seat” for leaving home without permission. S.F. used a paddle, stipulated by the parties to be a “small maple paddle,” to strike the back of G.F.’s upper thighs “approximately 12 times with moderate force.” After G.F. had a temper tantrum, S.F. again paddled G.F. 12 times on the back of the upper thighs “with moderate force” for being disrespectful. G.F. then grabbed a knife and threatened to kill himself. S.F. disarmed G.F. and paddled him an additional 12 times, again with “moderate force.” S.F. sent G.F. to bed, but G.F. climbed out his bedroom window. The police found G.F. around 11 p.m. as he was walking down the street. On July 5, 2005, Hennepin County Human Services and Public Health Department (County) filed a petition alleging that G.F. and C.F. were in need of protection or services. As a result, G.F. and C.F. were removed from the home and placed in foster care. The boys were returned to their parents’ care on December 23, 2005.

At the adjudication hearing in November 2006, the parties, in addition to stipulating to the basic facts, also submitted as evidence the paddle and two photographs of the back of G.F.’s upper thighs. The photos show no bruising on G.F.’s legs; however, the record does not indicate when the photos were taken. In addition, S.F. gave limited testimony about the impact of the proceedings on his aspirations to become a teacher. The district court concluded that “[sjtriking a child with a wooden paddle 36 times” was not reasonable or moderate discipline and therefore constituted physical abuse. The court further concluded that the boys’ environment was injurious or dangerous and adjudicated both as children in need of protection or services (CHIPS) based on the physical abuse of G.F. The court continued the boys’ placement in the care and custody of their parents, subject to compliance with a case plan that included, among other things, individual and family therapy and oversight by a county social worker.

N.F. and S.F. appealed the district court’s CHIPS adjudication, arguing that the term “physical abuse” as used in section 260C.007, subdivision 6(2)(i), requires proof of a physical injury. In re the Children of N.F. & S.F., 735 N.W.2d at 738. The County argued that “physical abuse” should be considered the same as bodily harm under Minn.Stat. § 609.02, subd. 7 (2006), which includes physical pain but does not require other injury. Id. The court of appeals noted that the definition of “child in need of protection or services” under Minn.Stat. § 260C.007, subd. 6(2), “refers to the definition of ‘child abuse’ in Minn.Stat. § 260C.007, subd. 5.” Id. at 738. The court then noted that “child abuse” under subdivision 5 requires violation of one of a list of criminal statutes, including malicious punishment of a child. Id. “Malicious punishment of a child,” in turn, is defined as “an intentional act or a series of intentional acts with respect to a child, [which] evidences unreasonable force or cruel discipline that is excessive under the circumstances.” Id. (quoting Minn.Stat. § 609.377, subd. 1). The court of appeals concluded, therefore, that “ ‘physical abuse,’ like ‘child abuse,’ requires unreasonable force or cruel discipline that is excessive under the circumstances.” Id. at 739. Citing G.F.’s age and weight and the fact that the force used was “moderate,” the court concluded that “the discipline was not cruel discipline that was excessive.” Id. The court also concluded that the district court’s “dangerous environment” finding was premised on the erroneous finding of abuse and reversed the district court’s CHIPS adjudication as to both G.F. and his brother. Id. We accepted the appeal of the County and the guardian ad litem, and rejected the parents’ cross-appeal of whether Minn.Stat. § 260C.007 (2006) is unconstitutional and quasi-criminal in nature.

I.

Minnesota Statutes § 260C.007, subd. 6, defines a “child in need of protection or services” to include a child who:

(2)(i) has been a victim of physical or sexual abuse, (ii) resides with or has resided with a victim of domestic child abuse as defined in subdivision 5, (iii) resides with or would reside with a perpetrator of domestic child abuse or child abuse as defined in subdivision 5, or (iv) is a victim of emotional maltreatment as defined in subdivision 8.

We first address the meaning of “physical abuse” as used in subdivision 6(2)(i).

The meaning of “physical abuse” is a matter of statutory interpretation. Our primary goal in statutory interpretation is to give effect to the intent of the legislature. Heine v. Simon, 702 N.W.2d 752, 764 (Minn.2005). We cannot conclude that the statute is so clear and unambiguous that the phrase “physical abuse” requires no interpretation. See ILHC of Eagan, LLC v. County of Dakota, 693 N.W.2d 412, 419 (Minn.2005) (when a statute’s meaning is plain from its language, judicial construction is not necessary). Nor does section 260C.007 provide an explicit definition of “physical abuse.”

When the words of a statute are not explicit, we may consider such matters as the occasion and necessity for the law, the object to be attained, and the consequences of a particular interpretation. Minn.Stat. § 645.16 (2006). We also may look to other statutes upon the same or similar subjects. Harris v. County of Hennepin, 679 N.W.2d 728, 732 (Minn.2004); see also State v. Lucas, 589 N.W.2d 91, 94 (Minn.1999) (“The doctrine of in pan materia is a tool of statutory interpretation that allows two statutes with common purposes and subject matter to be construed together to determine the meaning of ambiguous statutory language.”). To interpret “physical abuse,” we therefore look first — as the court of appeals did — to other provisions of the same statute, interpreting “physical abuse” in light of them. See Hince v. O’Keefe, 632 N.W.2d 577, 582 (Minn.2001) (separate provisions within the same statute are to be interpreted in light of each other).

We note initially that Minn.Stat. § 260C.007, subd. 6(2), delineates two categories of children in need of protection or services: those who. are themselves victims of physical abuse, sexual abuse, or emotional maltreatment (subdivision 6(2)(i) and (iv)); and those who are in need of protection or services only because they reside with victims of domestic child abuse or with perpetrators of domestic child abuse or child abuse (subdivision 6(2)(ii) and (iii)). The legislature provided specific definitions of “child abuse” and “domestic child abuse” in Minn.Stat. § 260C.007, subds. 5 and 13, and it is the definition of “child abuse” upon which the court of appeals relied in interpreting “physical abuse” in this case. 735 N.W.2d at 738. More particularly, the court of appeals held that (1) because malicious punishment of a child is “child abuse” under Minn.Stat. § 260C.007, subd. 6(2)(ii) and (iii), and (2) because malicious punishment of a child under Minn.Stat. § 609.377, subd. 1, requires “unreasonable force or cruel discipline that is excessive under the circumstances,” then (3) “physical abuse” for purposes of Minn.Stat. § 260C.007, subd. 6(2)(i), likewise “requires unreasonable force or cruel discipline that is excessive under the circumstances.” 735 N.W.2d at 738.

We agree that malicious punishment of a child constitutes physical abuse that renders the child in need of protection or services. The problem is the court of appeals’ holding that physical abuse “requires unreasonable force or cruel discipline that is excessive under the circumstances.” 735 N.W.2d at, 738 (emphasis added). We conclude that to limit “physical abuse” under Minn.Stat. § 260C.007, subd. 6(2)(i), to conduct that constitutes the crime of malicious punishment of a child is 'error.

First, the legislature did not use “child abuse” to define children who are in need of protection or services because they have themselves been the victim of abuse or neglect. Rather, the legislature used the term “physical abuse.” Minn.Stat. § 260C.007, subd. 6(2). We presume that distinctions in language in the same context are intentional, and we apply them consistent with that intent,, Transport Leasing Corp. v. State, 294 Minn. 134, 137, 199 N.W.2d 817, 819 (1972). That the' legislature did not use “child abuse” — limited as it is to specific enumerated crimes — in the context of children who have themselves been the victim of abuse or neglect indicates that the legislature intended to protect a broader range of such children. That is, the legislature intended to protect children who have been subjected to conduct constituting physical abuse, regardless of whether that conduct rises to the level of one of the criminal statutes enumerated in the definition of “child abuse” under Minn.Stat. § 260C.007, subd. 5. A broad construction of the definition of children in need of protection or services, with respect to actual victims of abuse and maltreatment, is reasonable in light of the statute’s express instruction that “[t]he paramount consideration in all proceedings concerning a child alleged or found to be in need of protection or services is the health, safety, and best interests of the child.” Minn.Stat. § 260C.001, subd. 2 (2006).

The legislature uses “child abuse” only in the definition of children who are in need of protection or services because of their residence — either with a victim or with a perpetrator of “child abuse.” Minn. Stat. § 260C.007, subd. 6(2)(ii), (iii). We view this as a limitation on the children who are to be adjudicated as in need of protection or services due solely to their residence, and not because they themselves have been the victim of abuse or neglect. Such a narrow construction of subdivision 6(2) is reasonable in light of the statute’s express intent to remove a child from the custody of the parents “only when the child’s welfare or safety cannot be adequately safeguarded without removal.” Minn.Stat. § 260C.001, subd. 2.

Second, while we must strictly construe criminal statutes, resolving all reasonable doubt concerning the intent of the legislature in favor of the defendant, State v. Koenig, 666 N.W.2d 366, 372-73 (Minn.2003), remedial statutes are to be construed liberally, State v. Indus. Tool & Die Works, 220 Minn. 591, 604, 21 N.W.2d 31, 38 (1945). In equating “physical abuse” with the crime of malicious punishment of a child, the court of appeals necessarily adopted a strict construction of what constitutes physical abuse. A strict construction of what constitutes “physical abuse” that renders a child in need of protection or services is contrary to the liberal construction that is to be given to remedial legislation like child protection laws.

Finally, “child abuse” as defined in Minn.Stat. § 260C.007, subd. 5, includes not just malicious punishment, but also such crimes as assault of the child (Minn. Stat. §§ 609.221, 609.222, 609.223, 609.224, 609.2242 (2006)), use of the child in prostitution (Minn.Stat. §§ 609.322, 609.324 (2006)), and criminal sexual conduct (Minn. Stat. §§ 609.342, 609.343, 609.344, 609.345 (2006)). The assault or rape of a child surely constitutes “physical abuse” that renders the child in need of protection or services, even if it does not constitute “unreasonable force or cruel discipline that is excessive under the circumstances.”

We therefore conclude that the court of appeals erred in limiting the physical abuse that renders a child in need of protection and services to that which constitutes the crime of malicious punishment of a child under Minn.Stat. § 609.377.

In interpreting an ambiguous statutory provision, we consider not only the statute in which the ambiguous provision appears, but also other statutes that address the same subject. MinmStat. § 645.16. The county urges us to look to Minn.Stat. § 626.556 (2006), which requires the reporting of the maltreatment of minors, for guidance in the interpretation of “physical abuse” of a child. The stated purpose of chapter 260C is

to secure for each child alleged or adjudicated in need of protection or services and under the jurisdiction of the court, the care and guidance, preferably in the child’s own home, as will best serve the spiritual, emotional, mental, and physical welfare of the child; to provide judicial procedures which protect the welfare of the child; to preserve and strengthen the child’s family ties whenever possible and in the child’s best interests, removing the child from the custody of parents only when the child’s welfare or safety cannot be adequately safeguarded without removal; and, when removal from the child’s own family is necessary and in the child’s best interests, to secure for the child custody, care and discipline as nearly as possible equivalent to that which should have been given by the parents.

MinmStat. § 260C.001, subd. 2. Similarly, MinmStat. § 626.556, subd. 1, declares it to be the public policy of the state “to protect children whose health or welfare may be jeopardized through physical abuse, neglect, or sexual abuse.” In addition,

it is the policy of this state to require the reporting of neglect, physical or sexual abuse of children in the home, school, and community settings; to provide for the voluntary reporting of abuse or neglect of children; to require a family assessment, when appropriate, as the preferred response to reports not alleging substantial child endangerment; to require an investigation when the report alleges substantial child endangerment; and to provide protective, family support, and family preservation services when needed to appropriate cases.

Id. Section 626.556, therefore requires certain persons “who know[ ] or [have] reason to believe a child is being neglected or physically or sexually abused” to report that information to local authorities. Minn.Stat. § 626.556, subd. 3. To be sure, not every report of neglect or of physical or sexual abuse will result in an adjudication of the child as in need of protection or services. But it is reasonable to assume that the legislature intended there to be some symmetry between conduct that must be reported to authorities, and the conduct that actually renders a child in need of protection or services. Therefore, we conclude that it is appropriate to look to section 626.556 for guidance in defining physical abuse under section 260C.007, subdivision 6(2)(i).

Section 626.556 defines “physical abuse” for purposes of the reporting requirement as follows:

“Physical abuse” means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child’s care on a child other than by accidental means, or any physical or mental injury that cannot reasonably be explained by the child’s history of injuries, or any aversive or deprivation procedures, or regulated interventions, that have not been authorized under section 121A.67 or 245.825.

Minn.Stat. § 626.556, subd. 2(g). Section 626.556 does not define “physical injury,” but it does provide this definition of “mental injury”:

“Mental injury” means an injury to the psychological capacity or emotional stability of a child as evidenced by an observable or substantial impairment in the child’s ability to function within a normal range of performance and behavior with due regard to the child’s culture.

Minn.Stat. § 626.556, subd. 2(m).

Because the definition of “physical abuse” under the reporting statute, Minn. Stat. § 626.556, subd. 2(g), expressly includes “mental injury,” section 626.556 requires the reporting of the infliction of mental, as well as physical, injuries upon a child. Physical abuse may result in significant mental injury, even if it results in no observable physical injury. It would be incongruous for the legislature to require the reporting of mental injuries inflicted upon a child, yet leave the courts without jurisdiction to provide protection to such an injured child or to require that services be provided to the child’s family. At the same time, the legislature’s definition of “mental injury” under the reporting statute appropriately narrows the range of adverse mental effects that qualify as mental injury for these purposes: the injury must be “evidenced by an observable or substantial impairment in the child’s ability to function within a normal range of performance and behavior.” Minn.Stat. § 626.556, subd. 2(m). We therefore conclude that the court of appeals erred in excluding physical abuse that results in mental injury from conduct that renders a child in need of protection or services under Minn.Stat. § 260C.007, subd. 6(2)(i).

L8] Based on the foregoing analysis, we conclude that physical abuse that causes only mental injury may nevertheless qualify as physical abuse for purposes of the definition of a child in need of protection or services under Minn.Stat. § 260C.007, subd. 6(2)(i). A child is therefore in need of protection or services under section 260C.007 if there is physical conduct toward the child that causes either physical injury, or mental injury as defined in Minn.Stat. § 626.556, subd. 2(m).

II.

We next apply this definition to the stipulated facts of this case. As to whether there was physical injury to G.F., the county concedes the record is unclear. The guardian ad litem urges us to find that the infliction of physical pain, even without specific injury, should be sufficient, and argues that we can infer that paddling a child 36 times inflicts pain. We are unwilling to establish a bright-line rule that the infliction of any pain constitutes either physical injury or physical abuse, because to do so would effectively prohibit all corporal punishment of children by their parents. Because the definition of “physical abuse” under the reporting statute, Minn. Stat. § 626.556, subd. 2(g), and the definition of “emotional maltreatment” under the CHIPS statute, Minn.Stat. § 260C.007, subd. 15, both explicitly exclude “reasonable discipline,” it is clear to us that the legislature did not intend to ban corporal punishment. Moreover, even if pain alone could be a basis on which to conclude that physical abuse has occurred, the bare-bones stipulation of facts that forms this record is an inadequate basis on which to reach such a conclusion here.

As to whether there was mental injury-comprising physical abuse for purposes of Minn.Stat. § 260C.007, subd. 6(2)(i), the question is whether the stipulated facts establish by clear- and convincing evidence “an injury to the psychological capacity or emotional stability of [G.F.] as evidenced by an observable or substantial impairment in [his] ability to function within a normal range of performance and behavior.” Minn.Stat. § 626.556, subd. 2(m). G.F.’s use of the knife to make a suicide threat suggests the paddling may have had some effect on G.F.’s psychological or emotional stability. Clearly, wielding the knife in conjunction with the suicide threat raises serious concerns that must be addressed. But for there to be a mental injury and thus physical abuse there must be more. There must be a showing that the injury resulted in an “impairment in [G.F.’s] ability to function within a normal range of performance and behavior.” The bare-bones record here does not support a conclusion that there was such an impairment. The record is simply silent on G.F.’s ongoing ability to function within a normal range of performance and behavior. Given this silence, we are not in a position to hold, based solely on the suicide threat involving the knife, that G.F. is in need of protection or services.

Because of the inadequacies of the factual record before us, we could remand the matter to the district court for further development of the record. We decline to do so, for several reasons. First, the County had the opportunity to make a more complete factual record at the time, but was apparently satisfied with the facts as stipulated. Second, almost three years have passed since the incident at issue, during most of which time the children have been living at home without apparent further incident. A second determination now as to whether the children were in need of protection or services three years ago seems a needless use of judicial resources under those circumstances.

We therefore conclude that the stipulated record does not provide sufficient information on which to conclude that either mental or physical injury has been proven by clear and convincing evidence, and that remand to allow supplementation of the record is not in the interests of justice.

III.

The district court also concluded that G.F. and his brother were in need of protection or services under Minn.Stat. § 260C.007, subd. 6(9), because their “behavior, condition, or environment is such as to be injurious or dangerous to the child or others.” However, the district court’s conclusion in this regard appears to rest on the same findings as its conclusion that G.F. was in need of protection or services as a victim of physical abuse. There are no other findings with respect to the boys’ “behavior, condition, or environment.” Because we hold that the stipulated record does not provide sufficient information on which to conclude that either mental or physical injury has been proven by clear and convincing evidence, we similarly reverse the district court’s conclusion that the boys’ “behavior, condition, or environment is such as to be injurious or dangerous” under Minn.Stat. § 260C.007, subd. 6(9). Therefore, we affirm as modified the court of appeals’ decision reversing the district court’s adjudication of G.F. and C.F. as children in need of protection or services.

Affirmed in part, reversed in part.

DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . We presume this reference in the 2006 version of Minn.Stat. § 260C.007, subd. 6, which applies to these proceedings, should be to subdivision 13 of section 260C.007, which defines “domestic child abuse.” The legislature recently corrected this apparent error by changing the reference to subdivision 13, which defines "domestic child abuse.” S.F. 3674, 85th Leg., 2008 Reg. Sess. (Minn.2008) (enacted).

      . We also presume that this reference in the 2006 version of Minn.Stat. § 260C.007, subd. 6, which applies to these proceedings, should be to subdivision 15 of section 260C.007, which defines “emotional maltreatment.” The legislature recently corrected this apparent error by changing the reference to subdivision 15, which defines "emotional maltreatment.” S.F. 3674, 85th Leg., 2008 Reg. Sess. (Minn.2008) (enacted).

      . The provision in section 260C.007, subdivision 6(2)(iv), making a victim of "emotional maltreatment” a child in need of protection or services is not inconsistent with the inclusion of mental injury within the scope of physical abuse. Section 260C.007 defines "emotional maltreatment” as "the consistent, deliberate infliction of mental harm on a child by a person responsible for the child's care, that has an observable, sustained, and adverse effect on the child’s physical, mental or emotional development.” Minn.Stat. § 260C.007, subd. 15. Further, emotional maltreatment requires the ‘‘consistent, deliberate infliction of mental harm,” id. (emphasis added), whereas "physical abuse” involves any nonac-cidental injury inflicted on a child, Minn.Stat. § 626.556, subd. 2(g). Accordingly, the emotional maltreatment provision in Minn.Stat. § 260C.007, subd. 6(2)(iv), does not always cover a mental injury caused by physical abuse.

      . In their brief, respondents suggest that appellants’ underlying purpose in these proceedings is to challenge the right of parents to use corporal punishment. Appellants deny such a purpose. That issue, however, is not before us. Nor should our decision be seen as either condoning or condemning the use of corporal punishment. By excepting "reasonable and moderate physical discipline” from the definition of "physical abuse” in section 626.556, the legislature has made a policy decision to permit corporal punishment. Whether we agree or disagree with that policy decision is of no importance. Our role is limited to interpreting the law as the legislature has enacted it.

      . Having concluded that the record is inadequate to establish either the physical or mental injury necessary to a finding of physical abuse under Minn.Stat. § 260C.007, subd. 6(2)(i), we need not examine whether the exception for reasonable and moderate discipline in the definition of physical abuse under section 626.556, subdivision 2(g), applies.


source: Caselaw Access Project

author: SCHELLHAS, Judge.

license: Public Domain

text:
    Alaa I. ABDI, Relator, v. DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT, Respondent.
    No. A07-0945.
    Court of Appeals of Minnesota.
    May 27, 2008.

      Mark G. Stephenson, Stephenson & Sut-cliffe, SW, Rochester, MN, for relator.
    Lee B. Nelson, Katrina I. Gulstad, Minnesota Department of Employment and Economic Development, St. Paul, MN, for respondent.
    Considered and decided by SCHELLHAS, Presiding Judge; KLAPHAKE, Judge; and HALBROOKS, Judge.
   OPINION

SCHELLHAS, Judge.

By writ of certiorari, relator challenges the decision of the unemployment-law judge (ULJ) that he was not eligible for extended TRA benefits because he was not enrolled in full-time remedial training. Because we hold that the United States Trade Act of 1974 and its regulations do not require participation in full-time remedial training in order to receive extended TRA benefits, we reverse.

FACTS

Relator Alaa I. Abdi was born in Somalia, moved to Yemen in 1986, and moved to Minnesota in 2000. In Minnesota, he worked for IBM and then Celestica until it ceased doing business in 2002. Relator then applied for unemployment benefits with respondent Department of Employment and Economic Development (DEED). In January 2003, Celestica was certified under the Trade Act of 1974, making relator eligible for trade adjustment assistance (TAA).

In August 2003, relator filed an application for TAA and TRA. He was tested at Rochester Community and Technical College, and it was determined that remedial courses in English and math were necessary prerequisites for relator’s occupational training. In his application for TAA and TRA, relator stated that he was taking general equivalency degree (GED) courses and needed remedial training in English and math. In September 2003, DEED approved relator’s TAA training plan, and in October 2003, relator and DEED signed a Trade Act Training Contract. DEED also approved relator’s application for TRA benefits and paid him basic TRA benefits for the period of March 19, 2004, through June 18, 2005.

In 2005, relator spoke with his TAA counselor about extending his benefits beyond June 2005 because he needed more time to complete his coursework at the community college. Relator’s TAA counselor helped relator submit an amendment to his plan to allow for a program of remedial education because relator had to take 26 credits of remedial courses in English and math in order to graduate. On May 5, 2005, the TAA coordinator approved a 25-week extension of relator’s TRA benefits, apparently under the belief that relator had been in a “remedial program” for the first 25 weeks of his training. Relator’s TAA counselor’s notes reflect that in May 2005 he “Mailed TRA to check on [ejxtension for Remedial training.” He further noted that “[relator] will be deemed as having received [rjemedial TRA for first two semesters and will be eligible for TRA through 12/05.”

DEED paid relator remedial TRA benefits from June 25, 2005, through December 10, 2005, the end of his period of benefits extension. None of relator’s training at the community college consisted of full-time remedial training in English or math. In November 2006, DEED issued a TRA overpayment determination, finding that the remedial TRA was incorrectly authorized for the period of June 25, 2005, through December 10, 2005, and concluding that relator had been overpaid in the amount of $7,400. The TRA overpayment determination includes the following finding of fact:

You collected Remedial TRA benefits when you were not eligible to receive these benefits. For a period of time you were scheduled for full-time TAA approved training^ At] this time remedial and occupational training were scheduled concurrently. The combination of the remedial and occupational training brought you to full-time status, but the remedial itself was not full-time.
Remedial TRA was incorrectly authorized at $296 per week for 25 weeks from week ending 6/25/05-12/10/05 for a total of $7,400.00.

Relator appealed DEED’S determination of overpayment. The ULJ affirmed the determination of overpayment and upon reconsideration the ULJ’s decision was affirmed.

ISSUE

Did the ULJ err in deciding that relator was not eligible for extended TRA benefits because he was not enrolled in a full-time remedial program?

ANALYSIS

The Trade Act of 1974 (Act) provides that “[a] determination by a cooperating State agency with respect to entitlement to program benefits under an agreement is subject to review in the same manner and to the same extent as determinations under the applicable State law and only in that manner and to that extent.” 19 U.S.C. § 2311(d) (2000). Under state law, we may affirm the ULJ’s decision, remand it for further proceedings, or reverse or modify it if the relator’s substantial rights “may have been prejudiced because the findings, inferences, conclusion or decision are ... affected by ... error of law” or “unsupported by substantial evidence in view of the entire record as submitted.” Minn.Stat. § 268.105, subd. 7(d) (2006). We review findings of fact in the light most favorable to the ULJ’s decision and defer to the ULJ’s determinations of credibility. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn.App.2006). We exercise our independent judgment in reviewing questions of law de novo. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn.2002).

The critical issue is the interpretation of the Act and the federal regulations governing TRA benefits under the Act. 19 U.S.C. §§ 2101-2487 (2000 & Supp.2005); 20 C.F.R. §§ 617.10-64 (2007); see also 20 C.F.R. §§ 617.01-02 (2007) (providing that regulations in 20 C.F.R. § 617 (2007) apply to the TRA provisions of the Act). Statutory interpretation is a question of law, which we review de novo. Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn.2002). DEED argues that it is entitled to deference in its interpretation of these federal statutes and regulations. But when “the meaning of the words in [a] regulation is clear and unambiguous, [the court] need not defer to the agency’s interpretation and may substitute its own judgment for that of the agency.” In re Cities of Annandale & Maple Lake NPDES/SDS Permit Issuance for the Discharge of Treated Wastewater, 781 N.W.2d 502, 516 (Minn.2007); see also St. Otto’s Home v. Minn. Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989) (“When a decision turns on the meaning of words in a statute or regulation, a legal question is presented,” and therefore “reviewing courts are not bound by the decision of the agency and need not defer to agency expertise”). Thus, if we conclude that the Act and regulations are clear and unambiguous with respect to the issue before us, DEED’S interpretation is entitled to no deference.

Words and phrases in a statute are to be construed according to their plain and ordinary meaning. Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). “Where the legislature’s intent is clearly discernable from plain and unambiguous language, statutory construction is neither necessary nor permitted and we apply the statute’s plain meaning.” Hans Hagen Homes, Inc. v. City of Minnetrista, 728 N.W.2d 536, 539 (Minn.2007); see also Minn.Stat. § 645.16 (2006) (providing that when the language of a statute is “clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit”). A statute is ambiguous only if its language is subject to more than one reasonable interpretation. Schroedl, 616 N.W.2d at 277.

To determine if the language in the Act and the regulations regarding extensions of TRA benefits for remedial training is clear and unambiguous, we must begin with the language itself. See Annandale, 731 N.W.2d at 517 (stating that to determine whether a statute or regulation is ambiguous, we start with the text itself). DEED states in its TRA overpayment determination that: “To qualify for TRA for any week of unemployment that begins on or after November 21, 1988, an individual must meet each of the ... requirements of [20 C.F.R. § 617.11 (a)(2)(i)-(vii)].” The requirements set forth in section 617.11(a)(2)(vii) include training, as follows:

(A) The individual must — ■
(1) Be enrolled in or participating in a training program approved pursuant to § 617.22(a), or
(2) Have completed a training program approved under § 617.22(a), after a total or partial separation from adversely affected employment within the certification period of a certification issued under the Act, or
(3) Have received from the State agency a written statement under § 617.19 waiving the participation in training requirement for the individual.
(D) For purposes of paragraph (a)(2)(vii) of this section, the following definitions shall apply:
(1) Enrolled in Training. A worker shall be considered to be enrolled in training when the worker’s application for training is approved by the State agency and the training institution has furnished written notice to the State agency that the worker has been accepted in the approved training program which is to begin within 30 calendar days of the date of such approval. (A waiver under § 617.19 shall not be required for an individual who is enrolled in training as defined herein.)

20 C.F.R. § 617.11(a)(2)(vii). TRA are limited by 19 U.S.C. § 2293(a)(2)(A) and (B) to a 104-week period, except when a worker needs remedial education. The statute provides for an additional 26-week period to assist a worker to complete training approved for the worker under section 2296 “which includes a program, of remedial education” under 19 U.S.C. § 2296(a)(5)(D). 19 U.S.C. § 2293(g) (emphasis added). Section 2296(a)(5)(D) includes “any program of remedial education.” Id. § 2296(a)(5)(D). The meaning of “any program of remedial education” is in dispute.

The regulations promulgated pursuant to the Act state that “a training program may consist of a single course or group of courses which is designed and approved by the State agency for an individual to meet a specific occupational goal.” 20 C.F.R. § 617.22(f)(3)(i). With regard to full-time training, the regulations provide that “[i]n-dividuals in TAA approved training shall attend training full time, and when other training is combined with [on-the-job training] attendance at both shall be not less than full-time.” Id. § 617.22(f)(4).

Considering the Act and regulations as a whole, their meaning on the disputed point is clear and unambiguous. Eligible workers must participate in full-time training and in training programs that are approved by DEED. The Act does not provide that eligible workers must participate full time in only one type of approved training at a time; in fact, it states that the full-time training requirement may be satisfied by a combination of on-the-job training and other training. 20 C.F.R. § 617.22(f)(4). Under the Act, on-the-job training and remedial education are distinct types of training programs, 19 U.S.C. § 2296(a)(5)(A)(i), (a)(5)(D), and the regulations contemplate that they may be combined to constitute full-time training. Nothing in the Act prohibits a program of remedial education from being combined with another type of training to constitute full-time training. See 19 U.S.C. § 2293(g) (authorizing extended TRA for training “which includes a program of remedial education”); 20 C.F.R. § 617.22(f)(3)(i) (stating “a training program may consist of a single course”). In this case, relator requested an extension to complete a training program approved by DEED, which included a remedial education program and in which relator participated full time. A plain reading of the Act and regulations supports relator’s claim that his extended TRA benefits were properly authorized.

DEED asserts that the phrase “program of remedial education” combined with the requirement that workers in approved training must attend training full time means that TRA benefits can only be extended to cover full-time remedial training. Relator concedes that he never participated in full-time remedial training and DEED therefore argues that relator was not eligible to receive an extension of his TRA benefits. But in its interpretation of the Act and regulations, DEED confuses the terms “training” and “training program.” Although the applicable regulation requires full-time participation in training, 20 C.F.R. § 617.22(f)(4), it does not limit this requirement to full-time training in one single program. 20 C.F.R. § 617.22(f)(3)(i). The Act allows the full-time training requirement to be satisfied by participation in more than one training program, so long as that participation is full-time. See 19 U.S.C. § 2296(a)(5)(A)®, (a)(5)(D) (including on-the-job training and “any program of remedial education” as allowable training programs); 20 C.F.R. § 617.22(f)(4) (indicating that full-time participation in training can be achieved by participating in a combination of an on-the-job training program and other training).

Moreover, our determination that the Act and regulations are clear and unambiguous considers the meanings of their terms according to their overall purpose. A “determination of whether words or phrases are ambiguous does not depend on a reading of those words or phrases in isolation, but relies on the meaning assigned to the words or phrases in accordance with the apparent purpose of the regulation as a whole.” Annandale, 731 N.W.2d at 517. The purpose of the Act and regulations is to assist workers who have been adversely affected by import competition to return to suitable employment. Nelson v. Comm’r of Employment & Econ. Dev., 698 N.W.2d 443, 447 (Minn.App.2005). The Act’s purpose is remedial and therefore its eligibility provisions should be liberally construed. Id. The purpose of the Act and regulations do not support DEED’S narrow construction of the phrase “program of remedial education” to mean only full-time remedial training.

DEED argues that construing the Act to permit an extension of TRA benefits to cover a combination of remedial and occupational training would allow individuals to obtain extensions of TRA benefits to take intermittent remedial courses. For example, DEED argues that an individual in a high-level technical program could receive an extension of TRA benefits for a single refresher course in mathematics. But the Act permits the extension of TRA benefits for training that includes a remedial training program, 19 U.S.C § 2293(g), which the regulations define as potentially “a single course.” 20 C.F.R. § 617.22(f)(3)®. The Act also requires that the worker participate in an approved program of remedial education. To the extent that DEED approves the worker’s single course as a training program, the Act allows for TRA benefits to be extended to cover the single course, provided that the worker is engaged in full-time training during the extension period. DEED’S hypothetical is unpersuasive.

DECISION

The unemployment-law judge erred in deciding that relator was ineligible for extended TRA benefits because the Act clearly and unambiguously does not require a worker to participate in full-time remedial training in order to receive extended TRA benefits.

Reversed.


author: ROSS, Judge.

text:
    Tina AYALA, Petitioner, Respondent, v. Carlos AYALA, Appellant.
    No. A07-0657.
    Court of Appeals of Minnesota.
    May 27, 2008.

      Thomas A. Gilligan, Jr., Laura R. Gurney, Murnane Brandt, St. Paul, MN, for respondent.
    Anthony Bushnell, The Bushnell Law Firm, Blaine, MN, for appellant.
    Considered and decided by ROSS, Presiding Judge; LANSING, Judge; and JOHNSON, Judge.
   OPINION

ROSS, Judge.

Carlos Ayala appeals from the district court’s denial of his request to vacate an ex parte order for protection (OFP) issued against him. He argues that he was denied his statutory right to challenge the OFP because he was not properly served notice of the petition and hearing as required by the Minnesota Domestic Abuse Act, Minnesota Statutes section 518B.01, subdivision 5(f) (2006). He argues alternatively that even if the statute does not require attempted personal service before the district court may authorize service by publication, the statute violates his constitutional right to due process. Because the statute does not recognize service by publication unless there was first a failed attempt at personal service by law-enforcement personnel that was thwarted because of concealment to avoid service, we hold that publication was not effective service, and we do not reach the constitutional issue.

FACTS

Tina and Carlos Ayala are divorced and share custody of their four children. Their acrimony created difficulty when transferring their children between homes. The difficulty increased when Carlos Ayala moved from South St. Paul to Burnsville on September 8, 2006, because Tina Ayala did not know his new address.

About a month after his move, Carlos Ayala failed to drop the children off at school. Tina Ayala learned of the absence and called the police, who telephoned Carlos Ayala using the cellular telephone number that Tina Ayala provided police. He twice hung up on the police officer, and he refused to disclose his address. Between calls with the officer, Carlos Ayala called Tina Ayala and allegedly berated her. He returned the children to Tina Ayala’s residence later that day.

Based on this episode and alleged threats made by Carlos Ayala, Tina Ayala filed for and obtained an ex parte OFP against him on October 4, 2006. Because Tina Ayala denied knowing Carlos Ayala’s address, she asked the district court to allow service of the OFP by publication. On an affidavit form provided by Ramsey County, Tina Ayala checked a box indicating that she did not know Carlos Ayala’s address. She did not check the box indicating that personal service was unsuccessful because Carlos Ayala concealed himself to avoid service of process, or the box indicating that the petition and notice were mailed to Carlos Ayala’s address. The district court ordered service by publication based on the affidavit. Law-enforcement personnel had not attempted to serve notice of the OFP or to mail notice to Carlos Ayala’s previous address. Notice was first published on October 19, 2006.

Carlos Ayala learned of the OFP two months later, in December 2006. This was too late for him to challenge the merits of the OFP. Under Minnesota Statutes section 518B.01, subdivision 7(c) (2006), Carlos Ayala had a right to seek a hearing to modify or vacate the OFP for only five days after service of the order was complete. He challenged the validity of the OFP in district court, arguing that Minnesota Statutes section 518B.01, subdivision 5(f) (2006), requires attempted personal service before notice by publication may be effective. Instead of addressing Carlos Ayala’s legal arguments, the district court treated his motion as a motion to vacate an order for fraud under rule 60.02 of the Rules of Civil Procedure, which allows the district court to relieve a party from final judgment if obtained by fraud. The district court denied the motion, finding no fraud.

Carlos Ayala appeals.

ISSUE

Does the Minnesota Domestic Abuse Act allow service of an ex parte order for protection by publication to be effective before personal service has been attempted but intentionally avoided by the respondent’s concealment or other behavior?

ANALYSIS

Carlos Ayala argues that the personal jurisdiction required for an OFP to be effective is lacking because Tina Ayala did not comply with the statutory prerequisites for service of process before the district court authorized service by publication. Whether service of process was proper is a question of law that we review de novo. Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn.App.1992), review denied (Minn. July 16, 1992). A judgment is void if the issuing court lacked personal jurisdiction over a party through a failure of service that has not been waived. Bode v. Minn. Dep’t of Nat. Res., 594 N.W.2d 257, 261 (Minn.App.1999). Carlos Ayala did not waive service, so we address the validity of the service on the merits.

The Minnesota Domestic Abuse Act includes the general requirement that “any order issued under [it] shall be served on the respondent personally.” Minn.Stat. § 518B.01, subd. 8(a) (2006). It lists general exceptions for notice by publication in subdivision 8(c) (2006), and specific exceptions that apply to ex parte orders for protection in subdivision 5(f) (2006). This case turns on our interpretation of that subdivision, which authorizes service of notice of an OFP by publication only if

the petitioner files with the court an affidavit stating that an attempt at personal service made by a sheriff or other law enforcement or corrections officer was unsuccessful because the respondent is avoiding service by concealment or otherwise, and that a copy of the petition and notice of hearing has been mailed to the respondent at the respondent’s residence or that the residence is not known to the petitioner.

Minn.Stat. § 518B.01, subd. 5(f) (emphasis added). Carlos Ayala asserts that service was defective because no attempt at personal service was ever made. Based on a plain reading of the statute, we agree. The act authorizes service by publication only after an attempt at personal service by a law-enforcement officer has failed because the respondent concealed himself to avoid service, and either a copy of the papers has been mailed to the respondent’s residence or the petitioner does not know the address. It is clear that those prerequisites were not met here.

Tina Ayala’s affidavit does not allege that any attempt at personal service ever occurred. She argues instead that attempted personal service was not required in this case. She maintains that the first “and” in subdivision 5(f) should be read disjunctively, so that publication by notice is appropriate either when a failed attempt at personal service was made by a law-enforcement officer and a copy of the petition was mailed to respondent’s address, or when the petitioner simply does not know the respondent’s address. Under this interpretation, a petitioner’s lack of knowledge of the respondent’s address, without more, permits effective notice by publication in every case. But this construction ignores the grammar and wording of the provision. The significant comma comes before the subdivision’s first “and” and sets the balance of the sentence off as the second part of a single conjoined requirement. The first part of the requirement preceding the “and” is attempted service by a law-enforcement officer, and the second part, after the conjunctive “and,” is either the mailing of the notice or ignorance of the respondent’s address. Because Tina Ayala’s affidavit does not state that any attempt at personal service had been made, the affidavit failed to conform to the first part of the statute’s requirement.

We recognize that, according to Tina Ayala, Carlos Ayala refused to give his address to police officers after Tina Ayala reported that the children were not in school. But this concealment cannot satisfy the first part of the requirement because it preceded and was unrelated to any attempt to serve OFP process. The statute allows service by publication to be effective only after a respondent conceals his address with the objective to avoid service of the petition and notice. Carlos Ayala’s concealment to avoid police contact related only to the extant custody dispute in October 2006. This distinction does not elevate form over substance. It not only follows the plain language of the statute, it also emphasizes the intent of the statute to ensure that service by publication is the last resort. Cf. Minn.Stat. § 518B.01, subd. 8(c) (requiring the district court to consider various factors before ordering service by publication for other types of orders in the Domestic Abuse Act, such as efforts made to locate the respondent, and mandating that applications for alternate service include the respondent’s last known address, place of employment, and other locating details). Carlos Ayala’s October 2006 refusal to disclose his address cannot establish concealment under subdivision 5(f).

Tina Ayala also argues that the form provided to pro se petitioners does not clearly indicate that any attempt at service by a law-enforcement officer is required to precede notice by publication. She accurately notes that the form does not precisely track the statutory requirement, but this is so only because the form does not specify which factors are necessary to provide a basis for service by publication. We disagree that the omission overcomes her failure to satisfy the statutory factual prerequisites to effective service by publication. Although the district court must provide simplified forms to aid the process, Minn.Stat. § 518B.01, subd. 4(e) (2006), the form need not be a paint-by-numbers template. In fact, it should not be; guided specifically by the statute, the district court should inquire further of pro se petitioners to ensure that the facts are legally sufficient to justify the less-favored service by publication. The statute directs the district court to do exactly that. Minn. Stat. § 518B.01, subd. 4(g) (2006) (“The court shall advise a petitioner [who receives simplified forms] of the right to serve the respondent by published notice ... if the respondent is avoiding personal service by concealment or otherwise, and shall assist with the writing and filing of the affidavit.” (Emphasis added)).

We observe that although the county’s affidavit form does not specify which facts are necessary to establish a basis for notice by publication, it does include the actual statutory factor “that an attempt at personal service made by the sheriff was unsuccessful because it is believed that the respondent is avoiding service by concealment or otherwise.” Tina Ayala was therefore presented with a form that included a factual template for effective service by publication. She did not check the box beside that language. The factual deficiency, not the form’s deficiency, left the district court without a basis to authorize publication.

Because the prerequisites to service by publication specified in subdivision 5(f) were not met, service by publication was ineffective. Because service was ineffective, the district court lacked personal jurisdiction over Carlos Ayala. See Bode, 594 N.W.2d at 261. The OFP is therefore invalid, and we reverse the district court’s judgment and vacate the OFP.

Because Carlos Ayala’s appeal prevails on statutory grounds, we do not reach his constitutional challenge. We generally avoid a constitutional question in cases that can be decided on other bases. Erlandson v. Kiffmeyer, 659 N.W.2d 724, 732 n. 7 (Minn.2003).

DECISION

We reverse and vacate the district court’s judgment because the OFP was not served according to the Minnesota Domestic Abuse Act. The act requires that an attempt at personal service failed because the respondent concealed himself to avoid service before the district court may authorize service by publication, and no attempt was made here.

Reversed and vacated.

      . We do not address the due-process issue that may arise if the district court actually assists a litigant to write his or her affidavit or other filing with the court. See Ginsberg v. Minn. Dep't of Jobs and Training, 481 N.W.2d 138, 141 (Minn.App.1992) (“Due process requires a decision by an impartial official; an official who has been involved in the particular aspect of a case under review should not also participate in the decisionmaking process.”), review denied (Minn. Apr. 9, 1992).


author: COLLINS, Judge .

text:
    In re PEER REVIEW ACTION.
    No. A07-0813.
    Court of Appeals of Minnesota.
    June 3, 2008.

      Rebecca Egge Moos, Charles E. Lund-berg, Susan E. Gustad, Bassford Remele, P.A., and Marianne D. Short, Dorsey &
      Whitney, L.L.P., Minneapolis, MN, for appellants.
    Eric J. Magnuson, Briggs & Morgan, P.A., and Margo Struthers, David L. Jordan-Huffman, Oppenheimer Wolff & Don-nelly, Minneapolis, MN, for respondent.
    Carolin J. Nearing, Geraghty, O’Lough-lin & Kenney, P.A., St. Paul, MN, for amici curiae Minnesota Hospital Association, Mayo Health System, Regions Hospital, HealthEast, Children’s Health Care, and Park Nicollet Health Services.
    Considered and decided by TOUSSAINT, Chief Judge; WRIGHT, Judge; and COLLINS, Judge.
   OPINION

COLLINS, Judge .

Hospital appeals from a temporary injunction preventing it from professionally disciplining Physician. Hospital conducted a peer-review inquiry of Physician’s disruptive behavior, resulting in a 120-day suspension of Physician’s privileges and a post-suspension probation. Physician sued to enjoin Hospital from disciplining him. Hospital sought to dismiss the action, claiming immunity under federal and state law. The district court granted the temporary injunction after determining that Hospital’s peer-review action leading to discipline of Physician was taken in malice and, therefore, Hospital was not entitled to immunity. Hospital argues on appeal that (1) the factual findings do not support the legal conclusion that Hospital’s discipline of Physician was motivated by malice, and (2) the suit is barred because Physician contractually agreed not to sue Hospital for its peer-review actions. Because the district court’s factual findings are sufficient to support the conclusion that Hospital’s discipline of Physician was motivated by malice, and because a contract cannot limit liability for malicious acts, we affirm.

FACTS

This case arises from a hospital’s disciplinary action against a physician. The events that led to Physician being professionally disciplined began in February 2005, when Hospital’s Vice President for Medical Services (VPMS) began investigating Physician’s behavior.

The VPMS met with members of Hospital’s leadership on March 15, 2005. He reported that Physician was disruptive and that discipline might be necessary. The VPMS had not spoken to Physician about Physician’s alleged disruptive behavior but he told the other hospital leaders that he had done so. Hospital’s president, the chief of its medical staff, and another member of Hospital’s leadership wrote a letter dated July 12, 2005, to Hospital’s Credentials Committee alleging disruptive behavior by Physician and requesting the committee to begin a peer-review investigation of Physician.

The VPMS’s meeting with Hospital’s leadership did not conform to Hospital’s policy. Hospital’s Disruptive/Abusive Behavior (DAB) Policy sets out a detailed process for communication among administrators, medical-staff leadership, and physicians regarding behavioral conflict. The DAB policy entitles a physician under review to notice of any allegedly disruptive behavior, and an opportunity to modify that behavior and develop conflict-resolution skills. Under Hospital’s Credentials and Hearing (Hearing) Policy, when a complaint is filed, the chief of staff, department chief, patient-care-quality committee chair, or the hospital administrator must conduct an inquiry, including discussing the incident with the subject-physician. Hospital did not give Physician an opportunity to modify his behavior and develop conflict-resolution skills. Neither the VPMS nor the authors of the July 12 letter had discussed Physician’s behavior with him, as required by the Hearing policy.

The credentials committee sent a letter to Physician on August 3, 2005, notifying him that the committee was conducting an investigation. The letter addressed Physician’s disruptive behavior but named none of Physician’s accusers and listed the date of only one incident. It did state that Physician, in various surgeries, had been uncompromising with an anesthesiologist, lost his temper, used profane language, and acted disruptively. The letter invited Physician’s response to these accusations. After Physician asked for more details, the credentials committee sent him another letter elaborating on the specified events.

On September 7, 2005, Physician met with the credentials committee. He denied the allegations and generally denied that he had engaged in any inappropriate behavior. Physician pointed out that the committee had not followed the DAB policy, which calls for early and gradually increasing intervention. Physician complained that he had not previously been made aware of the allegations and that it was unfair to discipline him for them now.

The credentials committee concluded that Physician’s improper conduct had been established and that the improper conduct showed a pattern of unacceptable behavior. To discipline Physician, the committee recommended suspending his privileges for 120 days and requiring him to undergo anger-management training, followed by probation for one year.

On September 12, 2005, Hospital’s Medical Staff Executive Committee reviewed the credentials committee’s recommendation. The medical staff executive committee agreed with the recommendation for discipline but suggested increasing the suspension to 180 days and the probation to two years. Physician appealed, triggering a procedural-review hearing under the Hearing policy.

On January 12 and 14, 2006, a procedural-review hearing was conducted. On January 24, the hearing panel recommended suspending Physician for 180 days followed by a two-year probation. The Hearing policy requires a hearing panel to produce a written report that includes a statement of the basis for its conclusions. Instead, the hearing panel’s one-page written report simply stated that it found “overwhelming evidence” that Physician engaged in “serious disruptive, demeaning and counterproductive behavior.” The report did not describe the behavior or specify the overwhelming evidence. The report also stated that Physician “failed ... to take any responsibility for his poor behavior.” And it stated that the panel’s decision was “based on behavioral issues,” but it did not explain what those issues were. Under the Hearing policy, in order to appeal the hearing panel’s ruling, the subject-physician is required to “submit a written statement ... relative to factual or procedural matters with which he ... disagrees.” Physician asked the hearing panel to provide him with the factual basis for the cursory conclusions in its written report, so that he could meaningfully appeal. Hospital insisted that the hearing panel’s report complied with its Hearing policy and declined to submit factual findings.

Physician then appealed to Hospital’s board of trustees. On April 20, 2006, the board imposed a 120-day suspension and a five-year probationary period. On May 2, 2006, Physician sued to enjoin Hospital’s discipline. The district court granted the temporary injunction on November 16, 2006. Hospital appeals.

ISSUES

I. Did the district court err in determining that Hospital is not afforded immunity from injunction under federal law?

II. Did the district court err by denying Hospital immunity from injunction under state law?

III. Did the district court err by denying Hospital immunity from injunction by virtue of its contract with Physician?

ANALYSIS

We review the grant of a temporary injunction for an abuse of discretion. Metro. Sports Facilities Comm’n v. Minn. Twins P’ship, 638 N.W.2d 214, 220 (Minn.App.2002), review denied (Minn. Feb. 4, 2002). On an appeal from the grant of a temporary injunction we view the facts in the light most favorable to the injunction. Bud Johnson Constr. Co., Inc. v. Metro. Transit Comm’n, 272 N.W.2d 31, 33 (Minn.1978).

I

Hospital argues that it is immune from the temporary injunction by virtue of the Health Care Quality Improvement Act (HCQIA), 42 U.S.C. § 11111(a) (2000), which grants hospitals immunity from a suit for damages if their peer-review actions meet certain standards. But HCQIA only provides immunity from damages, not from injunctions. Sugarbaker v. SSM Health Care, 190 F.3d 905, 911 (8th Cir.1999). Because Hospital appeals the grant of an injunction, HCQIA does not apply; therefore Hospital is not afforded immunity under HCQIA from Physician’s action seeking an injunction.

II

Hospital also claims immunity from Physician’s temporary injunction under state law. Whether a party is entitled to statutory immunity is a question of law, which is subject to de novo review. Conlin v. City of St. Paul, 605 N.W.2d 396, 400 (Minn.2000). Minnesota law provides immunity to hospitals from damages or other relief in any action brought by a person subject to a peer-review inquiry. Minn. Stat. § 145.63, subd. 1 (2006). Unlike HCQIA, discussed above, state-law immunity extends to injunctive relief. Compare id. with 42 U.S.C. § 11111(a). However, a hospital forfeits its state-law immunity if its peer-review process was motivated by malice toward the subject of a peer-review inquiry. Minn.Stat. § 145.63, subd. 1. The

Minnesota Supreme Court has defined malice in the context of statutory immunity as “nothing more than the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.” Rico v. State, 472 N.W.2d 100, 107 (Minn.1991). The conclusion of malice depends on found facts. State ex rel. Beaulieu v. City of Mounds View, 518 N.W.2d 567, 572 & n. 8 (Minn.1994). But whether a district court’s factual findings support its legal conclusion is a question of law, reviewed de novo. All Parks Alliance for Change v. Uniprop Manufactured Hous. Cmtys. Income Fund, 732 N.W.2d 189, 193 (Minn.2007).

At oral argument before this court, Hospital clarified that on this appeal it does not challenge the district court’s factual findings. Rather, Hospital contends that the district court’s factual findings do not support the conclusion that the peer review was motivated by malice. The district court’s denial of immunity was based on its tacit conclusion, drawn from found facts, that Hospital’s peer-review process leading to imposition of discipline against Physician was motivated by malice. See Minn.Stat. § 145.63, subd. 1 (stating that immunity does not protect actions taken in malice). Because Hospital alleges that the district court’s factual findings do not support such legal conclusion, our review of the court’s determination that the peer-review action was taken in malice is de novo. See All Parks Alliance for Change, 732 N.W.2d at 193.

The district court reached its conclusion of malice based on six findings: (1) Hospital’s peer-review process began outside Hospital’s normal channels; (2) Hospital began its investigation in contravention of the Hearing policy, which required that Hospital leadership meet with Physician to discuss his behavior before seeking discipline; (3) Hospital conducted the investigation in a manner contrary to the DAB policy, which required Hospital to give Physician an opportunity to correct his behavior before imposing discipline; (4) in charging Physician, Hospital cited incidents that were unfairly old; (5) Hospital treated Physician disparately as compared to other physicians subjected to discipline; and (6) Hospital improperly applied its power to punish Physician to “make a public statement.” Hospital argues that these findings, even taken as true, are insufficient to show malice. But each of these procedural irregularities is significant and, taken together, they clearly demonstrate that Hospital intentionally, and repeatedly, violated its own established procedural safeguards. Because the district court’s findings show that Hospital repeatedly disregarded several of its own policies without justification in disciplining Physician, those findings are sufficient to support the district court’s conclusion that Hospital acted willfully in violating its own peer-review procedures. That willfulness is malice. See Rico, 472 N.W.2d at 107 (defining malice in similar context as “the intentional doing of a wrongful act without legal justification.”)

Hospital argues in the alternative that even if the district court’s findings show malice, the district court erred by denying Hospital’s claim of state-law immunity because there is no showing the peer review was motivated by malice. Hospital argues that the district court’s findings of malice relate only to how the peer review occurred, but do not address why the review occurred; according to Hospital, the statute requires an inquiry into the “why” of the peer review. This argument fails for two independent reasons. First, malice is an objective inquiry. State ex rel. Beaulieu, 518 N.W.2d at 571. Hospital treats the question as a subjective one, asking the court to probe the minds of the reviewers. But the issue does not implicate what the reviewers believed; rather, the issue is whether Hospital’s actions were such as to allow the district court to conclude that the peer review was motivated by malice. See Rico, 472 N.W.2d at 107 (“[W]ilful and malicious are synonymous.”). The objective evidence of how Hospital violated its procedures in the course of disciplining Physician is a sufficient basis to infer the conclusion of why the Hospital acted as it did — that it was motivated by malice.

Second, we read district court decisions charitably. See Custom Farm Servs., Inc. v. Collins, 306 Minn. 571, 572, 238 N.W.2d 608, 609 (1976) (stating that appellate courts do not presume error); see, e.g., Graphic Arts Educ. Found. v. State, 240 Minn. 143, 145-46, 59 N.W.2d 841, 844 (1953) (holding that a fact found by the court, even if expressed as a conclusion of law, is treated as a finding of fact). Here, although the district court did not make an explicit finding of motivation by malice, it did find that Hospital “subjected [Physician] to substantial malice.” The district court examined, in detail, six discrete bases for malice. The district court quoted the statute to the effect that motivation by malice bars immunity. And ultimately, after finding “substantial malice,” the court denied Hospital immunity. The only reasonable inference to be drawn from the district court’s analysis is that the court determined that the peer review was motivated by malice'. See Butler v. Minn. Lawyers Mut., 648 N.W.2d 704 (Minn.App.2002) (stating that, when characterizing the record, “we honor substance over form” and “magic words” are not required for an appellate court to conclude that a district court made a legally appropriate determination, when that determination can be inferred from the district court’s actions.), review denied (Minn. Aug. 20, 2002).

Hospital’s assertion that the district court’s findings of fact do not support a conclusion that the peer review was motivated by malice thus fails. Hospital repeatedly acted in manners contrary to its established safeguarding policies; it treated Physician differently from others who had been subjected to peer review; and it imposed a harshly public punishment against Physician without first attempting a less-extreme intervention. The factual findings made by the district court are sufficient to support the conclusion that Hospital engaged in “the intentional doing of a wrongful act” or “the willful violation of a known right.” Rico, 472 N.W.2d at 107. Therefore, we' affirm the district court’s denial of Hospital’s claim of immunity under Minn.Stat. § 145.63.

Amici characterize Physician’s suit as a dangerous invitation for courts to substitute their judgment for that of hospital peer reviewers and thereby undermine the peer-review process. But we do not approve limited judicial supervision here to engage in such mischief. Neither the ruling of the district court nor our decision here implicates the judgment of the peer reviewers on the merits. Rather, the focus of attention centers only on Hospital’s wrongful acts without legal justification, in willful disregard of Physician’s procedural rights under Hospital’s own policies. Judicial review of peer-review actions is properly limited, as in this case, to only whether peer reviewers abided by their own established procedures.

Ill

Finally, Hospital argues that Physician contractually agreed not to challenge any of its peer-review decisions in court. Contract provisions that purport to limit liability are strictly construed against the benefited party. Johanns v. Minn. Mobile Storage, Inc., 720 N.W.2d 5, 9 (Minn.App.2006), review denied (Minn. Oct. 25, 2006). A contract cannot release a party from intentional or willful acts. Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn.1982). The district court did not address this argument explicitly. But the district court’s findings and implied conclusion that Hospital acted with and was motivated by malice in disciplining Physician precludes Hospital from successfully asserting its contractual immunity. See id.

DECISION

Because this is an action for in-junctive relief to which federal-law immunity does not apply; because the record supports the conclusion that Hospital was motivated by malice when it investigated and disciplined Physician through its peer-review process; and because actions motivated by malice are not shielded by statutory immunity under Minn.Stat. § 145.63 or by the parties’ contract, the district court did not err in granting Physician’s temporary injunction.

Affirmed.

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

      . The National Practitioner Data Bank is a national database set up under HCQIA to collect information about adverse credentialing actions taken against physicians. A suspension longer than 30 days must be reported to the Data Bank. 45 C.F.R. § 60.9(a)(1)(f) (2007). A negative report in the Data Bank makes it more difficult for a Physician to obtain privileges at other hospitals and to receive referrals.


author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Appellant, v. Jeremy Michael PALMER, Respondent.
    No. A08-0335.
    Court of Appeals of Minnesota.
    June 3, 2008.

      Lori Swanson, Attorney General, St. Paul, MN, and James Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Hastings, MN, for appellant.
    Samuel A. McCloud, Carson J. Heefner, McCloud & Heefner P.A., Shakopee, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; ROSS, Judge; and CONNOLLY, Judge.
   SPECIAL TERM OPINION

TOUSSAINT, Chief Judge.

Respondent Jeremy Michael Palmer has filed a motion to dismiss this prosecution appeal from a pretrial order, arguing that the appeal was not timely filed. Appellant State of Minnesota has filed a response to the motion. Because we conclude that the appeal was timely filed, we deny the motion to dismiss.

FACTS

Palmer was charged with felony driving while impaired based on a traffic stop that revealed indicia of intoxication. Palmer agreed to take an Intoxilyzer test, which showed a .14 alcohol concentration.

Palmer moved for discovery of the source code used in the Intoxilyzer 5000EN, the instrument that produced the .14 test result used to charge him with having an alcohol concentration of .08 or more. The district court granted Palmer’s discovery motion in December 2007, requiring the prosecution to disclose the source code within 30 days. The prosecution later asked for reconsideration of the order, which the district court denied.

On the scheduled trial date, January 29, 2008, the prosecution was granted a continuance. Palmer’s counsel requested suppression of the Intoxilyzer test results due to the state’s failure to disclose the source code. The district court indicated that it would grant the request to suppress the test results. The court also indicated, at the prosecutor’s request, that it would issue a formal order. On February 4, 2008, the district court issued a written suppression order. The state moved for reconsideration of that order on February 8, 2008. On February 15, 2008, the motion was denied at a hearing. The state filed a notice of appeal on February 19, 2008.

DECISION

The state has five days to appeal from a pretrial order. Minn. R.Crim. P. 28.04, subd. 2(8). The rule provides:

The appeal then shall be taken within 5 days after the defense, or the clerk of court ..., subsequently serves notice of entry of the order appealed from upon the prosecuting attorney or within 5 days after the prosecuting attorney is notified in court on the record of such order, whichever occurs first.

Id. (emphasis added). As this language indicates, the triggering of the five-day deadline differs depending on whether the order appealed from is in writing or was entered orally on the record. If the order is in writing, the deadline is triggered by service of notice of entry of the order on the prosecutor. Id.

The state may extend its time to appeal a pretrial order by filing a motion for reconsideration. State v. Wollan, 303 N.W.2d 253, 254 (Minn.1981). But the motion for reconsideration must be filed within the time allowed for the state to file an appeal. Id.

Palmer argues that the prosecution did not file its motion for reconsideration within the five-day appeal period. Palmer argues that the time to appeal began to run on January 29, when the district court announced its ruling from the bench, because the prosecutor was then “notified in court on the record” of the court’s order, as provided in the rule. But because the court indicated that a written order would follow, we conclude that the appeal period did not begin to run until service of notice of entry of the February 4 written order.

The rule formerly provided that the state’s five-day appeal period began to run from the entry of the pretrial order. See State v. Dostal, 433 N.W.2d 159-60 (Minn.App.1989) (applying former rule). The problem with this rule was that the state’s five-day appeal period would sometimes expire before the prosecutor received actual notice of the order. See Minn. R.Crim. P. 28 cmt. The rule was amended in 1991 to eliminate entry of the order as the triggering event and to require some actual notice, either service of notice of entry or notification on the record, “whichever occurs first.” Minn. R.Crim. P. 28.04, subd. 2(8).

There is a sense in which the prosecutor is always “notified in court on the record” of a district court’s bench ruling. See id. But the prosecutor is not “notified” of the court’s decision merely because the result is announced from the bench when the court’s reasoning may be unknown until the written order is later entered. The rule requires notification on the record of “such order” before the five-day appeal period is triggered. Id. The term “such order” appears to refer to the type of order mentioned earlier in the sentence, which is an order on which service of notice of entry may be made. Id. Generally, notice of entry is provided for a written order. See Minn. R.Crim. P. 33.03.

In construing a rule, this court must look first to the plain language of the rule and to its purpose. See Rubey v. Vannett, 714 N.W.2d 417, 421 (Minn.2006). The rules for interpreting statutes, which generally apply to the interpretation of rules, prevent this court from disregarding unambiguous language in favor of a pursuit of the purpose behind the provision. See State v. Hicks, 583 N.W.2d 757, 759 (Minn.App.1998), review denied (Minn. Oct. 20, 1998). But we conclude that the term “such order” is ambiguous. As discussed above, the term does not unambiguously refer to a mere bench ruling when the court has indicated that a written order, an order on which notice of entry may be served, is later to follow.

Because the term “such order” is ambiguous, we conclude that it should be construed as applying to a bench ruling only when the district court has not indicated that a written order will follow. Any other reading of the rule would lead to a number of absurd results.

For instance, if the rule were read as triggering the appeal period when a bench ruling is announced, even if a written order is to follow, the district court’s jurisdiction to issue the follow-up written order could be questioned if, as would often happen, the state’s appeal were filed before the written order. See generally Muecke v. State, 348 N.W.2d 808, 810 (Minn.App.1984) (holding that when appeal is filed, district court’s jurisdiction is suspended as to those matters necessarily involved in appeal); cf. State, City of Crystal v. Kivi, 554 N.W.2d 97, 102 (Minn.App.1996) (noting perfection of pretrial appeal divests district court of jurisdiction), review denied (Minn. Dec. 17, 1996).

The prosecution would also be pressured into filing an appeal even as it was awaiting the written order that might contain the only explanation of the court’s ruling. Indeed, the court’s explanation may be necessary to determine whether the order is even appealable. See State v. Hart, 723 N.W.2d 254, 258 (Minn.2006) (noting that district court’s dismissal order was not appealable because accompanying memorandum explained that dismissal was “in the interests of justice”); State v. Jones, 518 N.W.2d 67, 70 (Minn.App.1994) (holding that critical impact could not be premised on anticipated future rulings), review denied (Minn. July 27, 1994); State v. Kiminski, 474 N.W.2d 385, 388-89 (Minn.App.1991) (relying on language of district court’s memorandum to conclude that probable-cause dismissal was based on statutory construction and was therefore appealable), review denied (Minn. Oct. 11, 1991).

The rules allow the district court to issue its ruling from the bench following an omnibus hearing. Minn. R.Crim. P. 11.07. A ruling from the bench may provide enough information to allow the prosecution to determine whether it can, and should, appeal. See State v. Schermerhorn, 379 N.W.2d 660, 662 (Minn.App.1986). But bench rulings often lack the fuller explanation of the court’s reasoning that is helpful for appellate review and therefore helpful also to the prosecution in deciding whether to appeal. See Hart, 723 N.W.2d at 256 (noting that district court granted defense motion to dismiss after prosecutor did not appear at omnibus hearing, signed form that day indicating dismissal was for lack of prosecution, then later issued “formal order and memorandum” providing that dismissal was nonap-pealable “in the interests of justice”); cf. State v. Perkins, 582 N.W.2d 876, 877-78 (Minn.1998) (noting inadequacy of district court’s omnibus-hearing summation of what issues should be covered by written briefing).

As discussed above, and as the sequence of orders in Hart illustrates, the prosecution may not even know whether it has a right to appeal the pretrial order until the written order is issued. See Hart, 723 N.W.2d at 257-58 (noting that bench ruling and form order did not clarify state’s right to appeal, but subsequent written order had language making ruling nonap-pealable).

We conclude that the announcement of a bench ruling, with a written order to follow, does not give the state the notice as contemplated by the rule of the pretrial order that is to be appealed. Therefore, the state’s appeal time, when a written order is to follow a bench ruling, does not begin to run until service of notice of entry of the written order.

Because the state’s time to appeal the district court’s order granting suppression of the test results did not begin to run until service of notice of entry of the written order, the state’s motion for reconsideration was timely filed. Therefore, the time to appeal was extended, and the appeal was timely filed.

Motion denied.