text:
    ADVANTAGE CAPITAL MANAGEMENT, individually and on behalf of the State of Minnesota, Petitioner, Respondent, Appellant, v. CITY OF NORTHFIELD, Appellant, Respondent, Anthony D. BECKER, et al., Respondents, Appellants.
    Nos. C2-02-1904, C6-02-1923, C5-02-1928.
    Court of Appeals of Minnesota.
    July 8, 2003.

      David Hvistendahl, Mary L. Hahn, Hvis-tendahl, Moersch & Dorsey, P.A., North-field, MN, for Advantage Capital Management.
    Susan M. Sager, League of Minnesota Cities, St. Paul, MN, for City of North-field.
    Christopher J. Dietzen, Christopher J. Deike, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, MN, for Anthony D. Becker, et al.

      Considered and decided by LANSING, Presiding Judge, SHUMAKER, Judge, and WRIGHT, Judge.
   OPINION

LANSING, Judge.

This is a consolidated appeal from a series of orders in an action seeking a writ of mandamus directing the city to issue a building permit and requesting damages for failure to grant or deny the permit within the time limits prescribed by Minn. Stat. § 15.99, subd. 2 (2002). Because the city acted on the zoning-action application within a properly noticed extension of the sixty-day limit imposed by the statute, we reverse the district court’s mandamus order compelling issuance of the permit and approval of the site plan. In light of our holding, the district court’s decisions on damages, immunity, intervention, dismissal of parties, and amendment to the petition have no legal impact, and we do not address the challenges to these moot issues.

FACTS

Fire destroyed a three-unit dwelling on property located at 1016 Forest Avenue in the city of Northfield in February 2001. The property owner, Advantage Capital Management, Ltd., (Advantage) decided to rebuild the dwelling. The applications for the building permit and zoning-action approval necessary for Advantage to rebuild are at issue in this appeal. The property is in an R-2 zoning district, which permits one and two-family residences. When Advantage built the dwelling in 1978, it obtained a conditional-use permit (CUP) to allow a three-unit dwelling in addition to the small cottage already on the property.

Advantage met with city officials after the fire, and, in late February 2001, the city told Advantage that it was unnecessary to reapply for a CUP, but that Advantage must comply with the R-2 district’s minimum setback requirements, off-street-parking requirements, and additional regulations. About a month later, Anthony Becker and Rebecca Judge, who live directly north of Advantage’s property, submitted a petition on behalf of seventeen neighboring property-owners, requesting that the city council revoke Advantage’s CUP.

On April 9, 2001, the city received a building-permit application to reconstruct the dwelling from a construction firm acting on behalf of Advantage. As required by the Northfield Zoning Ordinance, the building permit was submitted with a preliminary building-and-site-development plan. Northfield, Minn., City Code § 34-808(b)(1) (2003). The building plan did not, however, include dimensional parking arrangements or a landscaping scheme as required by the zoning ordinances. See id.

The city granted Becker and Judge’s request for a hearing on Advantage’s CUP. The city notified Advantage in writing of its decision to hold a hearing and informed Advantage that the city would not act on the building permit until it made a decision on the CUP. Following a public hearing, the city rejected the petition to revoke the CUP.

On May 3, 2001, Advantage filed an application for zoning action requesting a site-plan review. The Design Advisory Board (DAB), by resolution, conditionally approved the site plan on May 23, 2001. The approval was conditioned on submission of a revised survey showing building location, approval of a grading-and-drainage plan, specific engineering changes to accommodate seven, nonstacked parking spaces, submission of color samples, and a revised site plan showing the required changes. Advantage submitted the revised site plan the next day.

On the same day the DAB conditionally approved the site plan, Becker and Judge appealed the decision to the city council. Northfield City Code section 34 — 163(b) provides that DAB review runs concurrently with a zoning request, and the city notified Advantage that a building permit would not be issued until the appeal had been decided.

The city council reversed the DAB’s conditional site-plan approval on June 18, 2001. The council found that the proposed configuration of two, five-bedroom apartments would be unique in the city; the increased footprint of the proposed structure, from 800 sq. ft to 3,995 sq. ft., would be disproportionate to the neighboring buildings; the configuration would require on-site parking excessive for the neighborhood, and the proposed extension of a driveway on Lincoln Street might be illegal. The council referred the plan back to the DAB for further review.

The city notified Advantage in writing on June 20, 2001, that it was extending, under Minn.Stat. § 15.99, the sixty-day deadline for final decision on the zoning-action application. On July 3, the DAB met to further consider the site plan. Advantage requested that consideration be postponed until its attorney could be present, and the DAB voted 2-1 to postpone consideration.

On July 11, 2001, Advantage petitioned for a writ of mandamus directing the city to issue a building permit for failure to act within sixty days of a request related to zoning. Advantage named Becker and Judge as respondents in the mandamus action. The district court, relying on the April 9, 2001, submission of the application for a budding permit as the date that triggered the sixty-day deadline, concluded that the notice of extension was untimely. The June 20, 2001, extension was, however, within sixty days of Advantage’s May 3, 2001, application for zoning action to approve the site plan. The court ordered the city to issue the building permit and to approve the site plan. The court, on its own motion, determined that Becker and Judge were not proper parties to the mandamus action and dismissed them from the proceedings.

The city appealed to this court, and a special-term panel dismissed the appeal as premature because Advantage’s allegation of damages had not been decided. Advantage Capital Mgmt. v. City of Northfield, No. C8-02-661 (Minn.App. May 21, 2002) (order). Upon dismissal of the appeal, Becker and Judge moved, in the district court, to intervene. The district court denied the motion to intervene as untimely and granted the city summary judgment on Advantage’s claim for damages, concluding that the city was immune from damages caused by a violation of Minn. Stat. § 15.99.’ The city, Advantage, and Becker and Judge all appealed, and the three appeals were consolidated.

During the posthearing proceedings, at a special DAB meeting on July 24, 2001, the DAB denied the site-plan-review application and requested that new plans be submitted to address, among other concerns, the size and height of the proposed buildings.

ISSUE

Did the district court err in concluding that the sixty-day time limit in Minn.Stat. § 15.99 (2002) for an agency to approve or deny a written request relating to zoning begins to run upon the agency’s receipt of a building-permit application?

ANALYSIS

To obtain a writ of mandamus, a petitioner must establish that the law clearly requires the performance of the mandatory or purely ministerial act for which the writ will issue. Minn.Stat. § 586.01 (2002); McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn.1989). Whether a petitioner has established the grounds necessary to support the writ is a question of law, which we review de novo. McIntosh, 441 N.W.2d at 118.

The district court’s writ directing the city to issue Advantage’s building permit and to approve the site plan is grounded solely on the city’s failure to grant, deny, or extend Advantage’s building-permit application within the time limits of Minn. Stat. § 15.99. Under section 15.99 “an agency must approve or deny within sixty days a written request relating to zoning[.]” Id., subd. 2. “Failure of an agency to deny a request within sixty days” in writing with stated reasons “is approval of the request.” Id. “Agency” includes a dty. Id., subd. 1. “An agency may extend the time limit * * * before the end of the initial sixty-day period by providing notice of the extension to the applicant.” Id., subd. 3(f).

The supreme court addressed the extension provision of section 15.99 in Am. Tower, L.P. v. City of Grant, and concluded that the provisions were unambiguous. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312-13 (2001). The court characterized section 15.99 as an act “which establishes time deadlines for local governments to take action on zoning applications.” Id. at 312. Advantage’s mandamus petition was granted on a significantly broader interpretation of the statute’s requirement that a city grant or deny a written request relating to zoning within sixty days. Advantage contends that the broader interpretation is correct because the plain meaning of “written request relating to zoning” encompasses the issuance of a building permit. Conversely, the city contends that the plain meaning of “written request relating to zoning” excludes a building permit.

To determine the meaning of a statute, we look' first to the language of the statute itself. See Minn.Stat. § 645.16 (2002) (setting forth plain-meaning rule). If on its face and as applied to the facts, a statute’s meaning is plain, judicial construction is neither necessary nor proper. Id.; Am. Tower, 636 N.W.2d at 312. Courts refrain from construing statutory provisions that convey a plain meaning “in order to preserve .language as an effective medium of communication from legislatures to courts.” Krzalic v. Republic Title Co., 314 F.3d 875, 879 (7th Cir.2002).

The plain-meaning rule presupposes the ordinary use of words that are not technical or defined by statute, relies on conventional rules of grammar, and draws from the full context of the act or statutory provision. Am. Tower, 636 N.W.2d at 312 (words and phrases carry plain and ordinary meaning); Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999) (rules of grammar apply .to determine meaning); Glen Paul Court Neighborhood Ass’n v. Paster, 437 N.W.2d 52, 56 (Minn.1989) (sections of the statute must be read together to give words their plain meaning).

Although plain meaning is the governing principle in applying all statutory language, Minnesota courts will not give effect to plain meaning if it produces an absurd result or an unreasonable result that is plainly at variance with the policy of the legislation as a whole. Minn.Stat. § 645.17(1) (2002); Olson v. Ford Motor Co., 558 N.W.2d 491, 494 (Minn.1997) (discussing alleged absurdity); Wegener v. Comm’r of Revenue, 505 N.W.2d 612, 617 (Minn.1993) (discussing- unreasonable result at variance with manifest intention).

If the statutory language is not plain, courts construe the law to effectuate the intention of the legislature. Minn.Stat. § 645.16. Construction is necessary to ascertain legislative inteht when the words of a law are ambiguous, unclear, or not sufficiently explicit. Id. To ascertain legislative intent, courts consider factors that include the need for the law, the circumstances of its enactment, the purpose of the statute, the consequences of a particular interpretation, and the contemporaneous legislative history. Id.

By its terms, the sixty-day-response rule of section 15.99 applies to “a written request relating to zoning, septic systems, or expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action.” Minn.Stat. § 15.99, subd. 2. The specificity of the three listed subjects- — zoning, septic systems, and expansion of the metropolitan urban service area — -indicates that the statute is tailored to particular actions. But the use of the phrase “relating to” suggests the broader application on which Advantage relies.

A “zone” is generally defined as “[a] section of an area * * ⅜ established for a specific purpose, as a section of a city restricted to a particular type of building, enterprise, or activity.” American Heritage Dictionary 2004 (4th ed.2000). “A zoning statute or ordinance is one which regulates by districts the budding development and uses of property.” Orme v. Atlas Gas & Oil Co., 217 Minn. 27, 32, 13 N.W.2d 757, 761 (1944). Zoning involves “governmental regulation of the uses of land and buildings according to districts or defined areas.” 8 E. McQuillin, Municipal Corporations § 25.07 (3d ed.2000). Whether a building permit-is a request “relating” to zoning, requires us to determine if zoning “bringfs] into or link[s]” building permits “in logical or natural association.” See American Heritage Dictionary, supra at 1472 (defining “relate” as “to bring into or link in logical or natural association”).

“Budding codes, the issuance of budding permits, and budding inspections are devices used by municipalities to make sure that construction within the corporate limits of the municipality meets the standards established.” Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 223, 199 N.W.2d 158, 160 (1972). Minn.Stat. § 16B.61 (2002), a provision of the Uniform Budding Code, which has been adopted in Minnesota, provides for “a code of standards for the construction, reconstruction, alteration, and repair of buildings,” including structural materials, design and construction materials, fire protection, health, sanitation and safety. This concern with structural, engineering, and safety standards in the construction process differs qualitatively from the regulation of land use within certain districts or defined areas included in the definition of zoning.

In determining whether the disputed language, “written request relating to zoning,” has a plain meaning, we also look to the full context of the language in the act or provision. Christensen v. Dep’t of Conservation, Game, and Fish, 285 Minn. 493, 499-500, 175 N.W.2d 433, 437. (1970) (observing that statutes must be read as a whole and that meaning should be ascertained from context); City of St. Louis Park v. King, 246 Minn. 422, 428-29, 75 N.W.2d 487, 492 (1956) (noting that court should consider meaning of word and phrases “by inquiring into the sense of their employment [and] in the connection in which they are used”). Subdivision 3(b) of-section 15.99 restates the scope by specifically referring to “an action relating to zoning.” By preceding “relating” with “an action,” section 15.99 appears to limit the scope of “relating to zoning” to the zoning application actions referred to in Am. Tower, 636 N.W.2d at 312.

To the degree that the meaning of section 15.99 is not explicit in its application, however, its meaning must be ascertained by looking to the intention of the legislature. Minn.Stat. § 645.16. Legislative intent may also be used to resolve an ambiguity of language that is “subject to at least two meanings, one broad and one narrow.” State v. Stevenson, 656 N.W.2d 235, 238 (Minn.2003). Ambiguity, in the context of statutory interpretation is not, however, confined to situations in which the same word is capable of meaning two different things, but “ * * * describe^] any kind of doubtful meaning of words, phrases, or longer statutory provisions.” Black’s Law Dictionary 79 (7th ed.1999) (defining ambiguity as an uncertainty of meaning or intention). This definition of ambiguity is consistent with the statutory canons that permit construction when the words of a law are ambiguous, unclear, or not sufficiently explicit. Minn.Stat. § 645.16.

The underlying purpose of the statute is to “establish[ ] time deadlines for local governments to take action on zoning applications.” Am. Tower, 636 N.W.2d at 312. The legislative history of section 15.99 provides specific information on the use of the term “zoning.” During senate floor debate, the senate version of the bill was amended to delete a reference to the generic term, “land use,” and replace it with the more precise term, “zoning.” Senate Floor Debate on S.F. No. 124-6 (May 2, 1995) (A-4 Amendment).

Interpreting “written request relating to zoning” to apply to zoning-application actions rather than all land-use decisions that might be tangentially connected to zoning, would permit agencies to reasonably apply the provision and reasonably respond within the permitted time limit. To force agencies to consider building-permit applications and other land-use permits and approvals as triggering section 15.99 would frustrate the legislative intent of ensuring timely compliance by the city in notifying the landowner whether a particular zoning action is allowable.

In light of the legislative history, purpose, and effect of the competing interpretations, we conclude that “a written request relating to zoning” is a request to conduct a specific use of land within the framework of the regulatory structure relating to zoning or, in other words, a zoning application.

This interpretation of section 15.99 is consistent with the cases that have applied the sixty-day rule to special-use permits, conditional-use permits, variances, and site-plan approval that relate specifically to zoning. See, e.g., N. States Power Co. v. City of Mendota Heights, 646 N.W.2d 919, 925 (Minn.App.2002) (applying statute to CUP request for power line); Am. Tower, 636 N.W.2d at 313 (applying statute to application for CUP to build telecommunications towers); Demolition Landfill Servs., LLC, v. City of Duluth, 609 N.W.2d 278, 281 (Minn.App.2000) (applying statute to special-use permit request for landfill), review denied (Minn. July 25, 2000). Advantage’s site-plan application, which was submitted on May 3, 2001, constituted such a request. See Northfield, Minn., City Code § 34-771 (2003) (defining a site plan as “a plan, to scale, showing uses and structures proposed for a parcel of land as required by the regulations involved”). Advantage’s earlier application for a building permit, however, did not.

The district court erred in concluding that Minn.Stat. § 15.99 governed the city’s response to the building-permit request submitted by Advantage. The sixty-day period to approve a written request relating to zoning did not begin to run until May 3, 2001, when Advantage submitted the zoning-action application for site-plan review. Therefore the city’s June 20, 2001, letter stating that the city was choosing to extend the deadline for a final decision on the site plan, operated as a timely extension under section 15.99.

Because we reverse the district court’s grant of a writ of mandamus ordering the city to issue a building permit, we do not address the challenges to the district court’s decisions on damages, immunity, intervention, dismissal of parties, or amendment to the petition. In light of our decision, these issues are moot.

DECISION

The time limits in Minn.Stat. § 15.99, subd. 2 (2002), begin to run from the submission of an application for a zoning action and not from the submission of an application for a building permit. We reverse the district court’s writ of mandamus directing the city to issue Advantage a building permit and to approve the site plan.

Reversed.


source: Caselaw Access Project

author: HARTEN, Judge.

license: Public Domain

text:
    SAIF FOOD MARKET, Relator, v. COMMISSIONER, STATE of Minnesota, DEPARTMENT OF HEALTH, Respondent.
    No. C7-03-192.
    Court of Appeals of Minnesota.
    July 8, 2003.

      Phillip S. Resnick, Reid M. Goldetsky, Resnick & Seiler, P.L.L.P., Minneapolis, MN, for relator.
    Mike Hatch, Attorney, Jennifer Beens Harper, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge, HARTEN, Judge, and STONEBURNER, Judge.
   OPINION

HARTEN, Judge.

Respondent Minnesota Department of Health disqualified relator, a vendor, from participating in the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) for six years. An administrative law judge (ALJ) found by a preponderance of the evidence that relator violated WIC rules by purchasing a WIC voucher for cash and tobacco and exchanging tobacco for a WIC vouchers. The Commissioner of Health adopted the ALJ’s report and imposed the recommended six-year disqualification. Relator appeals by writ of certiorari, arguing that respondent did not prove the violations and failed to provide adequate notice of prior violations.

FACTS

The Special Supplemental Nutrition Program for Women, Infants and Children (WIC) is a federally funded, state managed program that provides pregnant women, nursing mothers, infants, and children up to age five with nutritional supplements and other health care services. In August 2001, relator Saif Food Market and respondent Minnesota Department of Health entered into an agreement allowing relator to participate as a WIC vendor. Relator was permitted to accept WIC vouchers in exchange for specific food products but prohibited from purchasing vouchers for cash or exchanging tobacco for vouchers. Respondent ensures compliance with WIC rules through covert investigations.

On 11 December 2001, respondent sent an undercover investigator to relator with two WIC vouchers, each allowing her to purchase three cans of infant formula. Before entering the store, the investigator disposed of a cigarette as relator’s owner, Abdul Muwahid, watched. After the investigator exchanged the vouchers for the infant formula, Muwahid gave her a pack of cigarettes. The investigator did not request the cigarettes.

On 2 January 2002, the same investigator returned to relator and presented a voucher for four cans of infant formula. Muwahid filled in the voucher for $63.96 (the cost of four cans of formula) and told the investigator that he would buy back the formula if she returned later. The next day, the investigator returned with the four cans of formula. She gave the formula to Muwahid, and Muwahid gave her $20 in cash and a pack of cigarettes. Relator later redeemed the voucher for $63.96.

Respondent determined that relator violated WIC rules by exchanging cash and tobacco for a WIC voucher. On 4 February 2002, respondent notified relator that it was disqualified from participating in WIC for six years. Relator appealed. An ALJ found by a preponderance of the evidence that relator bought a WIC voucher for cash and exchanged tobacco for a voucher in violation of Minn. R. 4617.0084, 7 C.F.R. § 246.12(k)(l), and the Retail Food Vendor Agreement. On 30 December 2002, the commissioner issued an order adopting the ALJ’s report and imposed on relator the recommended disqualification. Relator challenges the disqualification by writ of certiorari.

ISSUES

1. Does substantial evidence support relator’s disqualification?

2. Does respondent’s failure to provide notice of relator’s alleged prior violations preclude it from disqualifying relator for the. charged violations?

ANALYSIS

1. Substantial Evidence

We defer to the agency’s factfind-ing process and consider only whether substantial evidence supports its decision. Dokmo v. Indep. Sch. Dist. No. 11, Anoka-Hennepin, 459 N.W.2d 671, 675 (Minn.1990). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” In re Excess Surplus Status of Blue Cross and Blue Shield of Minn., 624 N.W.2d 264, 274 (Minn.2001) (citation omitted).

The commissioner adopted the ALJ’s detailed findings of fact and the conclusion that relator purchased a WIC voucher for cash in violation of Minn. R. 4617.0084, subp. 3(A). Substantial evidence supports the commissioner’s decision. The investigator testified that she purchased $63.96 worth of infant formula using a WIC voucher, that Muwahid told her that he would purchase the formula from her if she came back another day, and that Muwahid gave her $20 cash and a pack of cigarettes in exchange for the formula the next day. Her testimony was corroborated by the lead investigator’s testimony; other evidence corroborated both investigators’ testimony and showed that Muwahid subsequently redeemed the WIC voucher for $63.96.

Relator contends that it did not buy a voucher for cash but merely committed the lesser violation of allowing the return of infant formula purchased with a WIC voucher. But the record supports the ALJ’s finding that the purchase of the formula with the voucher and the return of the formula the next day for cash were part of a single transaction. Moreover, the ALJ found that

it is not credible to believe that Muwah-id did not know that [his] actions were improper. The fact that he redeemed the January 2 voucher for $63.96, but gave in return only $20.00 and one pack of cigarettes, is more than enough to refute any claim of ignorance.

We defer to the agency’s credibility determinations. See Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn.App.1996) (reviewing court does not retry facts or challenge agency’s credibility determinations). Relator presumably would have returned the full $63.96, not $20 and a pack of cigarettes, if it had been simply allowing the investigator to return the formula. Substantial evidence supports the commissioner’s decision that relator purchased a WIC voucher for cash.

2. Notice of Prior Violations

Relator argues that we must reverse its disqualification because the department failed to follow WIC rules and its own procedures when it did not notify relator of alleged prior violations of Minn. R. 4617.0084, subp. 12 (2000). Relator’s argument is not properly before this court, however, because it was not raised or considered below. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (this court will generally not consider matters not argued and considered in court below). The ALJ did not consider whether the failure to warn relator of prior, less serious violations precluded disqualifying relator for the charged violations.

Even if relator’s argument were properly before this court, we conclude that it lacks merit. The lead investigator testified that thé prior violations were part of a separate investigation. Relator cites no authority for the proposition that failing to issue a notice of violation in one investigation precludes sanctions for violations in later investigations. Moreover, relator received a warning: the Retail Food Vendor Agreement provided that a vendor is disqualified “for six years if the vendor * * * buys or sells one or more vouchers for cash” and “for three years if the vendor provides any * * * tobacco product in exchange for one or more vouchers.”

Relator relies on respondent’s Statement of Need and Reasonableness (SONAR) to support its argument that it should have been given notice. Relator’s reliance is misplaced: the SONAR explains the reasoning behind providing notice for violations of Minn. R. 4617.0084, subps. 7-9, 12, and 13, but relator was charged with violating subparts 3 and 4. Moreover, the SONAR provides that notice allows a vendor the opportunity to correct the alleged violation. Relator does not explain how notice of providing incentives and returning WIC items would help it correct its violations of buying vouchers for cash and exchanging vouchers for cigarettes. Failure to issue notice of prior alleged violations of one subpart of Minn. R. 4617.0084 does not preclude disqualification for a later violation of another sub-part of Minn. R. 4617.0084.

DECISION

Substantial evidence supports the disqualification of relator from WIC for six years for selling vouchers for cash, and respondent was not required to provide relator with notice of prior alleged violations before disqualifying it for the charged violations.

Affirmed.

      . Relator also asserts that the department did not disqualify it for an earlier incident involving the same conduct, suggesting that its disqualification for the charged violations was arbitrary and capricious. See Minn.Stat. § 14.69 (2002) (this court may reverse or modify an "arbitrary or capricious” agency decision). Although a witness testified that an investigator had returned infant formula to relator for cash and cigarettes on another occasion, the witness did not testify as to the date or circumstances and explained that the incident was not pursued because Muwahid had not initiated the exchange.

      . Because we affirm the commissioner's disqualification of relator for selling a WIC voucher for cash, we do not address relator's arguments regarding the less serious offense of exchanging tobacco for vouchers. See Minn. R. 4617.0084, subp. 17(a)(2) (commissioner shall disqualify vendor for period corresponding to most serious violation when vendor commits multiple violations during a single investigation).


author: WILLIS, Judge.

text:
    STATE of Minnesota, Respondent, v. Bryce Lee WILLIAMS, Appellant.
    No. C1-02-1229.
    Court of Appeals of Minnesota.
    July 11, 2003.
    Mike Hatch, Attorney General, St. Paul, MN; and
    Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge, WILLIS, Judge, and HUDSON, Judge.
   OPINION

WILLIS, Judge.

Appellant challenges his convictions of third-degree driving while impaired and fleeing a peace officer in a motor vehicle. Respondent contends that in return for the dismissal of an additional charge of carrying a weapon without a valid permit, appellant waived his right to take this appeal. Although we have earlier held that we will not honor a waiver of a criminal defendant’s right to appeal a sentence, Ballweber v. State, 457 N.W.2d 215 (Minn.App.1990), whether we should accept such waivers in other contexts is an issue of first impression in Minnesota. We conclude that appellant’s waiver is valid and do not reach the merits of his appeal.

FACTS

On September 30, 2001, a Robbinsdale police officer on patrol saw a car that appeared to be exceeding the 40 mile-per-hour speed limit. Using the squad car’s lights and siren, the officer signaled that the speeding car should pull over, but the driver instead accelerated to 70 miles per hour and ran a red light. The officer eventually forced the car to pull over and ordered the driver, appellant Bryce Lee Williams, out of the vehicle. The officer noticed that Williams smelled of alcohol. In addition, other officers on the scene found in Williams’s car a 9 mm pistol, two loaded 9 mm ammunition magazines, and a loaded .45-caliber magazine. In Williams’s wallet, police found a Minnesota state permit to carry a handgun that was stamped “not valid while consuming alcohol or drugs.” Williams was placed under arrest and taken to a police station: There, police administered an Intoxylizer test that showed that Williams had an alcohol concentration of .14.

The state charged Williams with third-degree driving while impaired, in violation of Minn.Stat. § 169A.27 (2000); fleeing a peace officer in a motor vehicle, in violation of Minn.Stat. § 609.487, subd. 3 (2000); and carrying a weapon without a valid permit, in violation of Minn.Stat. § -624:714, subd. 1(b) (2000).'

At Williams’s jury trial, the state offered as evidence the pistol and the three magazines' found in Williams’s car. Williams objected, arguing that the magazines were unduly prejudicial to his defense because they were not necessary to prove that he was guilty of the weapon charge and were offered only to show that Williams posed a threat to the officers who arrested him. The district court overruled the objection and admitted the magazines. Later in the trial, the state offered to drop the weapon charge if Williams would agree not to raise on appeal any issues concerning the admission of the magazines. In a colloquy with Williams on the record, his counsel explained:

The only argument you can’t make [on appeal] is that the jury got the gun information [and] because they got that gun information they were * * * unduly tainted.

Williams replied, “I agree to that.”

The jury found Williams guilty of third-degree driving while impaired and fleeing a peace officer. Williams appeals from his convictions, arguing that (1) giving effect to the waiver of his right to appeal on a ground related to the court’s admission of the magazines into evidence would violate public policy and (2) the district court abused its discretion by admitting the magazines.

ISSUE

Should this court honor Williams’s waiver of the right to appeal?

ANALYSIS

Whether a defendant can waive the right to appeal is a question of law, which this court reviews de novo. Cf. State v. Wright, 588 N.W.2d 166, 168 (Minn.App.1998) (reviewing de novo constitutionality of a statute), review denied (Minn. Feb. 24, 1999).

There is no federal constitutional right to an appeal. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983). But in Minnesota, “a convicted defendant is entitled to at least one right of review by an appellate or postconviction court.” Hoagland v. State, 518 N.W.2d 531, 534 (Minn.1994) (quotation omitted); see also Minn.Stat. § 590.01, subd. 1 (2002) (providing for postconviction petition); Minn. R.Crim. P. 28.02, subd. 2, 29.02, subd. 1 (providing for direct appeals). A defendant’may intentionally waive a known right or privilege if the waiver is knowing, intelligent, and voluntary. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981); State v. Givens, 544 N.W.2d 774, 777 (Minn.1996).

Williams does not. dispute that his waiver of the right to appeal was knowing, intelligent, and voluntary. He argues instead that we should not honor the waiver on the ground that such waivers insulate convictions from appellate review and thereby “weaken[] the integrity of the judicial system.” At least one other jurisdiction has, on this ground, declined to honor waivers of the right to appeal. E.g., State v. Ethington, 121 Ariz. 572, 592 P.2d 768, 769 (1979).

Although Williams’s argument is not without merit, several factors convince us to give effect to Williams’s waiver. Williams did not waive his right to appeal from a conviction on the charges of driving while impaired and fleeing a police officer in a motor vehicle. Nor did Williams waive his right to appeal all of the district court’s evidentiary rulings. He instead waived the right to appeal a specific evi-dentiary ruling related to the count that the state dismissed. Thus, in return for the waiver, Williams received an important concession from the state: he no longer faced the weapon count, and his right to appeal from convictions on the other two counts was preserved.. Equally important, Williams does not dispute that his waiver was knowing, intelligent, and voluntary.

In addition, we are not faced with a waiver of the right to appeal 'a sentence, which we held invalid in Ballweber v. State, 457 N.W.2d 215 (Minn.App.1990). Nor are we faced with a waiver of the right to appeal made as part of a plea bargain, which commentators have criticized on due-process grounds. See, e.g., Robert K. Calhoun, Waiver of the Right to Appeal, 23 Hastings Const. L.Q. 127, 158 (1995) (arguing that the pressure placed on defendants to waive the right to appeal “when faced with bargaining extremely long sentences which are in the virtual control of the prosecutor’s office raises anew the traditional due process concerns of fairness and voluntariness”).

Finally, Williams does not argue on appeal that his convictions are unconstitutional or that the district court made an error of law. Rather, this case concerns the admission or exclusion of evidence, a decision that is typically within the district court’s discretion. See State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989). We therefore conclude that when the state dismisses a criminal charge in return for the defendant’s waiver of the right to appeal an evidentiary ruling by the district court related to the dismissed charge, the waiver is effective as long as it is knowing, intelligent, and voluntary.

DECISION

Williams made an effective waiver of the right to appeal on the ground that the district court abused its discretion by admitting the ammunition magazines into evidence. We therefore do not reach the merits of Williams’s appeal.

Affirmed.


author: NEUMANN, Justice. KAPSNER, Justice,

text:
    2003 ND 75
    Kelly MALCHOSE, Plaintiff and Appellee, v. Eric Lynn KALFELL, Lisa Kalfell and Lance Kalfell, Defendants and Appellants.
    No. 20020290.
    Supreme Court of North Dakota.
    May 6, 2003.

      Michael J. Maus of Hardy, Maus & Nordsven, P.C., Dickinson, ND, for defendants and appellants.
    Vince H. Ficek, Dickinson, ND, for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] The Kalfells appeal from the trial court’s judgment finding them liable in a negligence action arising out of an automobile accident. We affirm.

[¶ 2] On February 13, 2000, Eric Kal-fell and Kelly Malchose were involved in a motor vehicle accident. At the time of the accident, Eric Kalfell was driving a 1992 Pontiac Bonneville titled in the names of his parents, Lance and Lisa Kalfell. Mal-chose sued the Kalfells seeking to recover damages against Eric Kalfell for negligence, and against Lance and Lisa Kalfell on theories of family car doctrine, negligent entrustment, and strict liability for basic no-fault benefits under N.D.C.C. § 26.1-^41-02(5). After a bench trial, the trial court found Eric Kalfell at fault for negligence, Lance and Lisa Kalfell liable under both the family car doctrine and strict liability claims, and it awarded Kelly Malchose damages. The Kalfells appeal.

[¶ 3] The Kalfells argue the trial court erred (1) in improperly admitting Plaintiffs Exhibit 7, a Worker’s Compensation Bureau summary of medical bills; (2) in determining Lance and Lisa Kalfell were liable under the family car doctrine because Eric Kalfell was an adult child living away from home, Eric was the owner of the vehicle involved in the accident, and the car was not being used for family business; (3) in awarding damages for wage loss, tip income, delivery income, vehicle damage and non-economic damages; and (4) in finding Lance and Lisa Kalfell were owners of the car and therefore liable under North Dakota’s Auto Accident Reparations Act.

I

[¶ 4] The Kalfells argue the trial court erred in admitting Malchose’s Exhibit 7 into evidence over their objection. Mal-chose offered Exhibit 7 as evidence of the amount of medical damages he sustained. The Kalfells argue because the summary was not certified by the Bureau and is not self-authenticating, it should not have been admitted.

A

[¶ 5] We apply an abuse of discretion standard when reviewing whether a trial court should have excluded evidence for lack of authentication. State v. Haugen, 392 N.W.2d 799, 802 (N.D.1986). The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. N.D.R.Ev. 901(a). “If the trial court is reasonably satisfied that the item offered is what it is purported to be and that the condition of the item is substantially unchanged, it is properly admissible in evidence.” State v. Hartsoch, 329 N.W.2d 367, 370 (N.D.1983). Any defects in the chain of custody go to the weight of the evidence, not admissibility. Id. “It is uniformly recognized that a document may be authenticated by circumstantial evidence, such as the events preceding, surrounding, and following the transmission of a -writing.” Haugen, at 802. Such circumstantial evidence may include information in the writing that is known by the sender and the recipient. Id. Authenticity may be evidenced by the document’s specificity, regularity, and official appearance. Evidence, 12A Fed. Proc., L Ed § 33:562, p. 336 (2002). Because N.D.R.Ev. 901 is taken from the Federal Rules of Evidence, with minor revision, we also consider federal cases to help interpret our rule. See, e.g., State v. Manke, 328 N.W.2d 799, 802 (N.D.1982).

[¶ 6] In the present case, the trial court admitted Plaintiffs Exhibit 7 largely based on Malchose’s testimony that the Worker’s Compensation Bureau summary reflected the medical bills he incurred in or from the accident. The summary’s cover letter, while uncertified and without seal, is signed by a Bureau official. The cover letter indicates the summary was sent in response to Malchose’s request for the summary. Malchose, as recipient of the document, is competent to testify that the document and the information therein was received from the Worker’s Compensation Bureau, and was therefore an authentic Worker’s Compensation Bureau summary. See United States v. Jose Jimenez Lopez, 873 F.2d 769, 772 (5th Cir.1989) (holding a judgment of conviction document was properly authenticated in a case in which a witness testified he personally requested the document and received it from a border patrol agent who procured it from a magistrate’s court; the witness’s testimony “provided circumstantial evidence to support the conclusion that the document was an official record”); see also Hartsoch, 329 N.W.2d at 370 (stating once a trial court concludes it is reasonably probable the evidence offered is what the evidence purports to be and it has not been substantially altered, any defects in the chain of custody go to the weight of the evidence, not admissibility). Malchose’s testimony, combined with internal indicia within the document itself — its specificity and official appearance — supports both the document’s apparent trustworthiness and the trial court’s determination that the document is in fact a summary of medical bills compiled by the Worker’s Compensation Bureau. See Lopez, at 772; cf. Peterson v. North Dakota Dept. of Transp., 518 N.W.2d 690, 694 (N.D.1994) (holding an unsigned, un-certified document, without seal, letterhead, or other indication of official capacity lacked verifiable indicia that the document was in fact what it purported to be). While the summary may not be direct evidence, it is competent indirect evidence of Malchose’s medical expenses. We conclude it was not an abuse of discretion for the trial court to admit the Worker’s Compensation Bureau summary.

B

[¶ 7] The Kalfells argue the medical bill summary, even if authentic, does not fall within the public record exception to the hearsay rule because it is not a publicly available record and because a custodian was unavailable for cross-examination. “Hearsay is not admissible except as provided by these rules, by other rules adopted by the North Dakota supreme court, or by statute.” N.D.R.Ev. 802. Evidence is not excluded by the hearsay rule, even though the declarant is available as a witness, when the evidence consists of “[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (ii) matters observed pursuant to duty imposed by law as to which matters there was a duty to report ... unless the sources of information or other circumstances indicate lack of trustworthiness.” Rule 803(8), N.D.R.Ev.

[¶ 8] In the present case, the public record exception to the hearsay rule applies to a nonpublicly available record or data compilation from a public agency, and the availability of a custodian or other witness with knowledge of its making is immaterial. A record or data compilation does not have to be publicly available to fall within the exception; it need only be “made or done by an officer of the government.” 5 John H. Wigmore, Evidence, § 1630, at 617 (1974). While a publicly available document adds “a special measure of trustworthiness,” whether a document is publicly available or not “should not be regarded as justifying a definite limitation of the scope of the exception; for its strict application would exclude many classes of official documents which are in fact admitted and ought in reason to be admitted.” Id., § 1633, at 621.

[¶ 9] While the party objecting to evidence “may cross-examine under oath any person making the report or factual findings or any person furnishing information contained therein,” “the lack of availability of that testimony does not affect admissibility of the report or factual findings unless, in the opinion of the court, the adverse party would be prejudiced unfairly.” N.D.R.Ev. 803(8). Under our rule, the availability of a custodian or other witness with knowledge is immaterial unless the trial court deems their testimony necessary. Here, it was within the trial court’s discretion to determine that the presence of a custodian or other official with knowledge was not necessary for cross-examination purposes. The trial transcript shows the Kalfells were given the opportunity to cross-examine Malchose after Exhibit 7 was admitted, but declined to take advantage of the opportunity.

[¶ 10] Applying Rule 803(8), N.D.R.Ev., the summary of medical bills constitutes a record or data compilation made by an officer or official of a public agency, the Workers Compensation Bureau. The Bureau’s summary represents a record of matters observed under the Bureau’s duty to record and compensate for an injured employee’s medical bills. See N.D.C.C. §§ 65-04-04.3, 65-05-05, 65-05-32. Because the Bureau’s summary is indirect competent evidence of Malchose’s medical expenses and falls within the public record’s exception to the hearsay rule, the trial court did not abuse its discretion by admitting Exhibit 7.

II

[¶ 11] The Kalfells argue the trial court erred in applying the family car doctrine because Eric Kalfell was an adult child living away from home, and was the owner of the vehicle involved in the accident, and the vehicle was not being used for Kalfell family business.

[¶ 12] The family car doctrine places liability on the owner of a vehicle for negligent operation by a person using the vehicle with the express or implied consent of the owner for purposes of the business or pleasure of the owner’s family. McPhee v. Tufty, 2001 ND 51, ¶ 13, 623 N.W.2d 390. The owner is not liable for his own negligence; he is vicariously liable for the tortious acts of the driver. Id. “Whether the family car doctrine applies depends on the totality of the circum stances.” Id. at ¶ 14. The head of household’s ownership of the vehicle strongly favors application of the doctrine. Id. To be liable, the head of household need not own the vehicle, but must furnish it for the use, pleasure, and business of himself or a member of the family. Id. Whether the family car doctrine applies is a question of fact. Id. at ¶ 15. We will not set aside a trial court’s findings of fact unless they are clearly erroneous. Id. A trial court’s findings of fact are clearly • erroneous only if they are induced by an erroneous view of the law or, although there is some evidence to support the findings of fact, on the record as a whole we are left with a definite and firm conviction a mistake has been made. Id.

[¶ 13] Here, Lance and Lisa Kal-fell were named on the vehicle’s certificate of title as owners at the time of the accident. While the Kalfells presented evidence Eric Kalfell used the vehicle as collateral for a loan, we agree with the trial court that this does not prove a transfer of ownership. Even if title had transferred to Eric Kalfell, the record shows he could not financially maintain the vehicle and attend college without Lance and Lisa Kal-fell’s support. Record evidence shows Lance and Lisa Kalfell purchased the vehicle and furnished it to Eric Kalfell. The Kalfells argue Eric Kalfell had moved away from the family ranch in Montana to attend college and he was, therefore, no longer a member of the family. Evidence presented at trial, however, showed Eric Kalfell was a member of the Kalfell family for the purposes of the family car doctrine. Eric Kalfell listed the family’s ranch address on his driver’s license, Lance and Lisa Kalfell claimed Eric Kalfell as a dependent on their tax return, and Lance and Lisa Kalfell financially supported Eric Kalfell while he was at college. Based on the record evidence, we conclude the trial court’s findings of fact were not clearly erroneous and, in the totality of the circumstances, the trial court did not err in determining the family car doctrine applied.

Ill

[¶ 14] The Kalfells argue the trial court erred in awarding damages for medical expenses, wage loss, tip income, delivery income, vehicle damage and non-economic damages. A trial court’s determination of damages is a question of fact. Bye v. Mack, 519 N.W.2d 302, 305 (N.D.1994). A trial court’s findings of fact will not be set aside on appeal unless the party challenging the finding demonstrates they are clearly erroneous. Id. A trial court’s findings of fact are viewed in a light most favorable to the findings. Id. “A choice between two permissible views of the evidence is not clearly erroneous.” Id. Upon review, a trial court’s findings of fact will only be clearly erroneous when, upon review of the entire evidence, we are left with a definite and firm conviction a mistake has been made. Id.

[¶ 15] Regarding damages awarded for medical expenses, the Kalfells argue Exhibit 7 is not valid evidence of Malchose’s medical expenses because the Bureau’s summary included bills not related to the accident. Because Exhibit 7 is indirect competent evidence of medical expenses incurred as a result of the accident, we conclude it was not clearly erroneous for the trial court to rely on Exhibit 7 in awarding medical expenses.

[¶ 16] Regarding damages awarded for wage loss, tip income, and delivery income, the Kalfells argue Malchose was not seeking recovery of wages paid by the Worker’s Compensation Bureau and Malchose failed to produce evidence of actual expenses. We disagree. The record shows the Bureau had a subrogation interest in Malchose’s lost wages and that Malchose presented evidence of the amount the Bureau paid him. The record shows Mal-chose presented Exhibit 4 as evidence of his tip income and delivery income and he testified to its accuracy. The Kalfells did not object to the admission of Exhibit 4. We conclude the trial court’s finding of fact and award of wage loss, tip income, and delivery income was not clearly erroneous.

IV

[¶ 17] Regarding vehicle damages, the Kalfells argue Malchose’s vehicle had preexisting damage, and Malchose did not present competent evidence of its value at the time of the accident. The record shows Malchose presented evidence of the value of the vehicle and of improvements made to it. Eric Kalfell testified he had the opportunity to have Malchose’s vehicle examined by an auto shop. The record shows the trial court considered all evidence and testimony presented on the vehicle’s value in arriving at its decision. We conclude the trial court’s finding of fact and award of vehicle damages were not clearly erroneous.

V

[¶ 18] Regarding non-economic damages, the Kalfells argue Malchose was not seriously injured and did not meet the monetary threshold to receive non-economic damages as required under N.D.C.C. ch. 26.1-41. The Kalfells concede that N.D.C.C. ch. 26.1^41 does not by its terms apply in this case because this vehicle was uninsured. Nevertheless, they ask this Court to extend the application of N.D.C.C. § 26.1 — 41—08(l)(a), exempting secured persons from liability for non-economic loss except in cases of serious injury, to cases involving uninsured vehicles. We find nothing in N.D.C.C. ch. 26.1-41 that suggests such an intent on the part of the legislature. Section 26.1-41-02(5), N.D.C.C., provides that owners of uninsured vehicles are absolutely liable at law for payment of basic no-fault benefits, and have all the rights and obligations of a basic no-fault insurer. However, the same section also states that this remedy is in addition to any other remedy an injured person may have against an owner.

[¶ 19] The trial court awarded non-economic damages under the family car doctrine. The Kalfells have failed to show the trial court’s findings of fact and conclusions regarding the family car doctrine are erroneous. The trial court’s award of non-economic damages is affirmed.

VI

[¶ 20] The Kalfells argue the trial court erred in concluding Lance and Lisa Kalfell were owners of this uninsured vehicle and therefore absolutely liable for basic no-fault benefits under section 26.1-41-02(5) of North Dakota’s Auto Accident Reparations Act. As set out above, the trial court found Lance and Lisa Kalfell were owners of this uninsured vehicle at the time of the accident, and we held that finding was not clearly erroneous.

VII

[¶ 21] The trial court’s judgment is affirmed.

[¶ 22] GERALD W. YANDE WALLE, C.J., MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ., concur.

KAPSNER, Justice,

concurring.

[¶ 23] Because the Kalfells have appealed only the applicability of the family car doctrine to the facts of this case and not the doctrine itself, I concur. I continue to be of the opinion that the family car doctrine is inconsistent with legislative acts mandating liability insurance and governing uninsured and underinsured motorists and, therefore, should be abolished. See McPhee v. Tufty, 2001 ND 51, 623 N.W.2d 390 (Kapsner, J., concurring in the result). One inconsistency between the statutes and the family car doctrine is highlighted in part V of the majority opinion regarding the type of damages which may be awarded. However, because the doctrine itself was not challenged, I agree the facts in evidence support its application.

[¶ 24] In ¶¶ 7 through 10, the majority opinion engages in a technical examination of an exception to the hearsay rule for admission of a medical bill summary prepared by the Workers Compensation Bureau. I do not join in that analysis because I do not believe the evidence is hearsay. Malchose is competent to testify about the basic facts of his treatment— when he was treated, who provided the treatments and what was the cost of his treatments. See, e.g., Barta v. Hinds, 1998 ND 104, ¶ 10, 578 N.W.2d 553; Erdmann v. Thomas, 446 N.W.2d 245 (N.D.1989). Offering this information in summary form is contemplated by the rules of evidence. N.D.R.Ev. 1006. The fact that the summary was prepared by someone else does not require finding an exception to the hearsay rule so long as the informa tion summarized could be testified to by the person offering the exhibit. As noted in ¶ 6 of the majority opinion, the summary exhibit was received based upon Malchose’s testimony that it reflected his medical bills. There was no abuse of discretion in its admission as a summary of evidence that Malchose himself was competent to give.

[¶ 25] Carol Ronning Kapsner


author: GORS, Circuit Judge.

text:
    2003 SD 67
    Glenford YELLOW ROBE, Appellant, v. Appeal from the BOARD OF TRUSTEES OF THE SOUTH DAKOTA RETIREMENT SYSTEM, Appellee.
    No. 22392.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 13, 2003.
    Decided June 4, 2003.
    Marcia Whiting, Rapid City, South Dakota, Attorney for Appellant.
    Wade A. Hubbard, South Dakota Retirement System, Pierre, South Dakota, Attorney for Appellee.
   GORS, Circuit Judge.

[¶ 1.] Glenford Yellow Robe (Yellow Robe) applied for and was denied disability benefits by the South Dakota Retirement System (SDRS). Yellow Robe appealed and the circuit court affirmed the SDRS denial of disability. Yellow Robe appeals and we reverse.

FACTS

[¶2.] Yellow Robe joined the Rapid City Police Department (Police Department), as a police officer, on February 1, 1985. On April 5, 1985, Yellow Robe obtained his law enforcement certification and became a Class B member of SDRS.

[¶ 3.] In September 1987, Yellow Robe injured his right knee while performing his duties as a police officer. The injury required surgery. Yellow Robe was put on temporary disability until January of 1989, at which time he returned to light duty with the Police Department. In 1990, Yellow Robe returned to full duty, but his physician would not release him to perform patrol duty. Thereafter, Yellow Robe tested and qualified for a detective’s position with the Police Department.

[¶ 4.] While employed as a detective, Yellow Robe’s right knee continued to bother him and his left knee also began to bother him. In June 1995, Yellow Robe failed to complete the required firearms qualification course because of his knee trouble. In addition, Yellow Robe re-injured his knee while trying to complete the course and again underwent knee surgery in July 1995. Two weeks after his surgery, Yellow Robe’s physician allowed him to return to fight duty with the Police Department. Yellow Robe was assigned a partial disability rating of 25%.

[¶ 5.] On October 25, 1995, Yellow Robe met with Police Department Captain Tieszen and Personnel Director Jack Teems. Yellow Robe was told that if his physician did not release him to full duty by December 31, 1995, he would not be able to continue on fight duty as a detective. Yellow Robe was not released to full duty by his physician and consequently went on extended sick leave. It was clear that Yellow Robe would be terminated at the end of his sick leave.

[¶ 6.] After Yellow Robe started sick leave, Chief of Police Hennies created the position of license compliance officer for the Police Department. The position consisted primarily of office work and the license compliance officer was not required to pass the firearms qualifications test. The license compliance officer is a civilian employee of the Police Department and is a Class A member of SDRS.

[¶ 7.] Chief Hennies created the license compliance officer position with Yellow Robe in mind. The position was advertised, but an employee of the Rapid City Personnel Office telephoned Yellow Robe at home and informed him of the job opening. He was told that he should apply for the job and that if he did not take the job he would lose his retirement benefits. Yellow Robe was offered and accepted the job on May 1,1996.

[¶ 8.] On the same day that Yellow Robe accepted the job, SDRS was notified that Yellow Robe had been reclassified from a Class B member to a Class A member. All of his medical and fife insurance benefits, unused annual leave, and longevity benefits were transferred without disruption. On May 6, 1996, Yellow Robe applied for SDRS Class B disability benefits. Thereafter, on June 18, 1998, his disability benefits request was denied for the reason that his contributory service had not ended.

STANDARD OF REVIEW

[¶ 9.] SDCL 1-26-36 governs the review of administrative law decisions and provides:

The court shall give great weight to the findings made and inferences drawn by an agency on question of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in light of the entire evidence in the record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

In accordance with this statute, we review questions of fact under the clearly erroneous standard. Wendell v. South Dakota Dept. of Transp., 1998 SD 130, ¶ 5, 587 N.W.2d 595, 597. Findings of fact are clearly erroneous when the reviewing court has a definite and firm conviction that a mistake has been made. Goebel v. Warner Transp., 2000 SD 79, ¶ 10, 612 N.W.2d 18, 21. “Conclusions of law, as well as mixed questions of fact and law that require the application of a legal standard, are fully reviewable,” Cohen v. City of Pierre, 2002 SD 110, ¶ 10, 651 N.W.2d 265, 267 (quoting Weeks v. Valley Bank, 2000 SD 104, ¶ 8, 615 N.W.2d 179, 182).

[¶ 10.] Construction of statutes, Bergee v. South Dakota Bd. of Pardons and Paroles, 2000 SD 35, ¶ 4, 608 N.W.2d 636, 638 (citing State v. Shadbolt, 1999 SD 15, ¶ 10, 590 N.W.2d 231, 233), and rules, Island v. Department of Corrections, 1996 SD 28, ¶ 8, 545 N.W.2d 201, 203; Nelson v. South Dakota Bd. of Dentistry, 464 N.W.2d 621 (S.D.1991), is a question of law reviewed de novo.

DECISION

[¶ 11.] The Hearing Examiner found that Yellow Robe qualified for disability as prescribed by ARSD 62:01:04:09. He found:

[t]he condition of Mr. Yellow Robe’s knees constitutes a physical impairment diagnosed by a licensed physician, Dr. Anderson. Applicant’s impairment is long term, and will continue without improvement. Due to his physical impairment the Applicant will never be able to serve as a sworn law enforcement officer for the Rapid City Police Department, or any other law enforcement agency.

The Hearing Examiner also found that “no comparable level of employment with the Rapid City Police Department exists for the Applicant.”

[¶ 12.] Although the Hearing Examiner found Yellow Robe to be disabled as defined by SDCL 3-12-47(3), he recommended that Yellow Robe not receive disability benefits because “he has not terminated his employment with the Rapid City Police Department.” The Hearing Examiner found that “the Applicant transferred to a different, and non-comparable job, with his employer.”

[¶ 13.] In Matter of Schott, SDRS Case # 723625 (decided October 23, 1992), SDRS was presented with a' strikingly similar case. Reiny Ray Schott was a senior patrolman with the Rapid City Police Department. He was injured and could no longer perform the duties of a city patrolman. Schott then transferred to the position of “evidence custodian” which was a civilian job with the Rapid City Police Department. Schott’s disability application was initially denied by the SDRS Administrator but the Board reversed, finding that “[t]he applicant’s contributory service with the System was terminated within the meaning of ARSD 62:01:04:02 effective as of January 1, 1992, because he no longer qualified for Class B membership and was reclassified as a Class A member.” Schott ceased to be a Class B member so his contributory service in Class B was terminated even though he was still a contributing member to the system under Class A.

[¶ 14.] Yellow Robe argues that the doctrine of stare decisis mandates that the decision in his case follow the decision in Matter of Schott. However, the doctrine of stare decisis does not apply to administrative determinations:

“In the judicial setting, previously decided questions of law involving similar fact situations often provide precedential value, embodying the concept of stare deci-sis. Both federal and state courts have repeatedly noted, however, that administrative agencies are not bound by stare decisis as it applies to previous agency decisions. The U.S. Supreme Court has stated that, ‘An agency’s view of what is in the public interest may change, either with or without a change in circumstances.’ ”

Interstate Telephone Cooperative, Inc. v. Public Utilities Commission of the State of South Dakota, 518 N.W.2d 749, 752-753 (S.D.1994)(citing Motor Vehicle Mfrs. Ass’n of the United States, Inc., v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 2874, 77 L.Ed.2d 443, 446 (1983) (citation omitted)). See also City of Alma v. United States, 744 F.Supp. 1546, 1561 (S.D.Ga.1990)(“An agency is not forever bound by its prior determinations, as its view of what is in the public interest may change, even if the circumstances do not.”).

[¶ 15.] Although stare decisis does not apply, the legislature has enacted its substantial equivalent in SDCL 3-12-100 which provides the following:

The board of trustees shall set the criteria for determining the disability of members. Methods of disability determination shall be applied uniformly and consistently to all members applying for the disability benefits.”

(emphasis added). SDCL 3-12-100 does not mean an agency is married to a decision forever. Times change and there are good reasons for an agency to divorce itself from an earlier decision. However, absent a sound reason for changing treatment of claimants in the same situation, SDCL 3-12-100 requires the agency to continue to treat similar claimants similarly.

[¶ 16.] The SDRS Board’s decision to deny Yellow Robe’s application was based solely on the determination that the law relating to Yellow Robe’s claim was changed by the 1992 amendment to SDCL 3-12-98 and the subsequent amendment of the SDRS administrative rules. No other reasons were given for treating Yellow Robe different from Schott. However, examination of the 1992 amendment to SDCL 3-12-98 and the subsequent amendment of the SDRS rules reveals that the law did not actually change in relationship to Yellow Robe’s claim. Since the law and the rules did not change, there was no good reason to treat Yellow Robe different from Schott. Therefore, SDCL 3-12-100 required Yellow Robe and Schott to be treated uniformly.

[¶ 17.] SDCL 3-12-98 was amended by the South Dakota Legislature in 1992. Prior to the amendment, the statute provided as follows:

A contributing member who becomes disabled and who has rendered at least three years of credited service prior to becoming disabled or was disabled by accidental means while performing his usual duties for his employer is eligible for a disability allowance provided such disability is expected to be of long, continued and indefinite duration of at least one year.

The 1992 amendment, effective July 1, 1992, added the following provision;

In order to be eligible for a disability allowance, a member shall be disabled on the date the contributory service ends. Any member who fails to file with the administrator an application for disability benefits within three years of the date on which the member’s contributory service ends, forfeits all rights to disability benefits.

The 1992 amendment was a “department bill” introduced at the request of SDRS on behalf of the Retirement Laws Committee. Senate Bill 16 was passed without amendment on the consent calendar in both houses of the legislature.

[¶ 18.] ARSD 62:01:04:02 provided the same in 1992 as it does now:

A member whose application for a disability allowance is approved shall receive the allowance beginning on the first day of the month following the date on which the member’s contributory service terminates.

At the time Schott was decided by the SDRS Board, a member could not begin to receive disability until the member’s contributory service terminated. The only thing that changed between Schott’s approval and Yellow Robe’s denial was addition of the language from ARSD 62:01:04:02 to SDCL 3-12-98. The requirement that the member’s contributory service end before being eligible for disability was already contained in the SDRS rule and therefore already part of the ARSD jurisprudence. The 1992 amendment to SDCL 3-12-98 did not add the requirement that contributory service end before a claimant was eligible for disability, it only added what was already in the rules to SDCL 3-12-98.

[¶ 19.] In the Hearing Examiner’s decision, the Hearing Examiner refers to the SDRS amendment to ARSD 62:01:04:09 as adding an additional requirement that the claimant must have ended his employment with his employer to be eligible for disability. On May 24, 1998, ARSD 62:01:04:09 was amended and ARSD 62:01:04:09.01 was added. Before the amendment, ARSD 62:01:04:09 provided as follow:

62:01:04:09. Criteria for determining disability — Position of comparable level. An applicant shall be granted a disability allowance only if the applicant establishes the following by a preponderance of evidence:
(1) The applicant has a mental or physical impairment which has been diagnosed by a license physician;
(2) At the time of termination of the applicant’s employment, his impairment was of sufficient severity to prevent the applicant from continuing to perform his usual duties for his employer;
(3) At the time of termination of the applicant’s employment, his impairment was of sufficient severity to prevent him from performing the duties of a position of comparable level for which he is qualified by education, training, and experience; and
(4) At the time of termination of the applicant’s employment, the disability was expected to last at least one year. Evidence that the applicant could actually secure a position of comparable level or that such a position is actually available is not required to support a finding that an applicant is capable of performing the duties of such a position.

After the amendment, the new ARSD 62:01:04:09.01 provided:

62:01':0⅛:09.01. Criteria for determining disability if contributory service ended after July 1, 1995 — Certification by employer.
An applicant whose contributory service ends on or after July 1, 1995, shall be granted a disability allowance only if the applicant establishes subdivisions (1),
(2), and (4), below, by a preponderance of evidence, and provides subdivision (3), below:
(1) The applicant has a mental or physical impairment which has been diagnosed by a license physician;
(2) At the time of termination of the applicant’s employment, his impairment was of sufficient severity to prevent the applicant from continuing to perform usual duties for the applicant’s employer;
(3) At the time of termination of the applicant’s employment, the impairment was of sufficient severity to prevent the applicant from performing the usual duties of the applicant’s position or the usual duties of a position of comparable level for the applicant’s employer, both as so certified by the employer; and
(4) At the time of termination of the applicant’s employment, the disability was expected to last at least one year. In providing certification pursuant to subdivision (3), above, an employer shall consider the applicant’s education, experience, training, work history, impairment, location of residence, and compensation and benefits in relation to positions of possible comparable level.

ARSD 62:01:04:09.01 applies to claimants whose contributory service ended after July 1, 1995; therefore, it applies to Yellow Robe whose contributory service in Class B ended on May 1, 1996. The requirement that the claimant must have ended his employment with his employer was in the rule before it was amended and continued in the same language after ARSD 62:01:04:09.01 was added to the rules.

[¶ 20.] The SDRS Board concluded that Matter of Schott did not apply because of the new amendment to the statute. The Hearing Examiner stated “[h]ad South Dakota’s Legislature not amended SDCL 3-12-98 in 1992, Applicant Yellow Robe could have successfully applied for SDRS disability benefits.” The SDRS Board misconstrued the 1992 amendment to SDCL 3-12-98.

[¶ 21.] As already noted, the first part of the amendment essentially mirrored ARSD 62:01:04:02, which already required contributory service to end before benefits could begin. The meat of the 1992 amendment to SDCL 3-12-98 was the requirement that placed a three year limit on the time to apply for disability benefits from the end of contributory service. There was no change in the requirement that the member’s “contributory service” • end before receiving benefits.

[¶ 22.] Yellow Robe’s contributory service in Class B ended on May 1, 1996. The statutes clearly distinguish between Class B membership and Class A membership. The membership is different. Class B consists of justices, judges, state law enforcement officers, magistrate judges, municipal police officers, municipal firefighters, county sheriffs, deputy county sheriffs, and penitentiary correctional staff, parole agents, air rescue firefighters, campus security officers, court services officers, conservation officers, and park rangers. SDCL 3-12-47(18). Class A consists of all other members. SDCL 3-12-47(16). The rate of contribution is different. Class A members contribute 6% of their salary. SDCL 3-12-71(1). Class B members contribute 8% of their salary. SDCL 3-12-71(3). The benefits for Class A and B members are different. SDCL 3-12-91 and 3-12-92. Normal retirement age is different. Class A members normal retirement age is 65; Class B members normal retirement age is 55. SDCL 3-12-47(48). Class A members are subject to a “Rule of 85.” SDCL 3-12-47(60)(a). Class B members are subject to a “Rule of 75.” SDCL 3-12-47(60)(c). When a member switches from Class A to Class B or Class B to Class A, the member gets two separate retirement benefits: a Class A retirement benefit and a Class B retirement benefit. See e.g., SDCL 3-12-92.1 to 3-12-92.3.

[¶ 23.] Although Yellow Robe’s move from Class B membership as a police officer to Class A membership as a license compliance officer was handled by the Police Department as a transfer, Yellow Robe’s Class B contributory service ended. Yellow Robe was finished as a police officer. He applied for and was hired in a new civilian position. The fact that the Police Department handled Yellow Robe’s termination as a police officer and subsequent employment as a license compliance officer as a transfer is irrelevant. SDRS denial of disability benefits exalts form over substance. As the circuit court noted in its memorandum decision: “The result seems inequitable — Apparently Mr. Yellow Robe could simply have resigned one day prior to May 1, 1996, to otherwise qualify for benefits.” Disability claimants should not be tripped-up by technicalities over which they have no control. Either they are disabled or they are not, and Yellow Robe was disabled.

[¶ 24.] The SDRS Board’s decision in this case was based on an erroneous analysis of the law. Matter of Schott took into consideration the requirement that “contributory service” end. In Matter of Schott, the SDRS Board found that when an individual no longer qualified for Class B membership and was reclassified as a Class A member, the member’s contributory service in Class B ended. The reasoning in Matter of Schott is still sound. Matter of Schott was decided on October 23, 1992, more than three months after the 1992 amendment to SDCL 3-12-98 took effect and more than seven months after it was signed by the Governor on March 16, 1992. The SDRS Board obviously knew about the 1992 amendment (because it was a department bill proposed by SDRS) when it decided Matter of Schott.

[¶ 25.] Yellow Robe will not receive a windfall. The evidence established that the difference between his 1996 salary as a detective ($35,892.00) and his 1996 salary as a license compliance officer ($30,173.00) was $5,719.00. The disparity would continue to grow and the evidence showed that the lifetime difference would be $65,596. Yellow Robe is no longer eligible for the earlier retirement and the superior benefits of the Class B system. He will have to work at least five years longer for a smaller retirement. If Yellow Robe had not transferred to the civil side of the Police Department, but instead taken a job with an outside employer, he would also be drawing two checks. Yellow Robe is entitled to his disability no matter where he works now.

CONCLUSION

[¶ 26.] Yellow Robe’s contributory Class B service ended when he ceased to be a Class B member. Yellow Robe was disabled. He qualified for Class B disability benefits. Therefore, we reverse and remand with directions that SDRS approve Yellow Robe’s Class B disability benefits.

[¶ 27.] GILBERTSON, Chief Justice, and SABERS and MEIERHENRY, Justices, and GIENAPP, Circuit Judge, concur.

[¶ 28.] GORS, Circuit Judge, for KONENKAMP, Justice, disqualified.

[¶ 29.] GIENAPP, Circuit Judge, for ZINTER, Justice, disqualified.

      . The purpose of the consent calendar is to expedite voting on non-controversial bills. Bills may be placed on the consent calendar by motion following “do pass” action in committee. If any committee member objects, the bill is not placed on the consent calendar. Similarly, on the floor, any member of the body may request that a bill be removed from the consent calendar. When the consent calendar comes to a vote, all of the bills are considered at once, greatly reducing the time it would take to consider each bill separately.

      . After May 24, 1998, ARSD 62:01:04:09 applied only to claimants whose contributory service ended before July 1, 1995.

      . To meet the "Rule of 85” the member’s years of service and age must equal 85.

      . To meet the "Rule of 75” the member's years of service and age must equal 75.

      . Yellow Robe did not decide how to handle the new job. The Police Department decided to handle it as a transfer.