author: HANSON, Justice. ANDERSON, G. BARRY, J. BLATZ, C.J.

text:
    HOUSING AND REDEVELOPMENT AUTHORITY OF CHISHOLM, Minnesota, Appellant, v. Carolee E. NORMAN, Respondent.
    No. A03-1613.
    Supreme Court of Minnesota.
    May 19, 2005.

      Thomas F. Andrew, Brown, Andrew & Signorelli, P.A., Duluth, MN, for Respondent.
    Christina L. Clark, Debra M. Corhouse, St. Paul, MN, Amicus Curiae Education Minnesota.
    Joseph E. Flynn, Jennifer K. Earley, Mendota Heights, MN, Amicus Curiae Minnesota School Boards Association.
    Gregg M. Corwin, Jennifer J. Duchsch-erer, St. Louis Park, MN, Amicus Curiae AFSCME Councils 6 and 14 and MAPE.
   OPINION

HANSON, Justice.

We review the question of whether appellant Chisholm Housing and Redevelopment Authority (CHRA) is obligated to continue to pay health insurance premiums for the benefit of respondent Carolee E. Norman, a retired former employee. Norman bases her claim on a promise from CHRA, contained in a collective bargaining agreement (CBA) in effect when she retired, to pay the health insurance premiums for qualified employees. CHRA argues that Minn.Stat. § 179A.20, subd. 2a (2004), limits the authority of CHRA to obligate itself to pay retiree healthcare costs beyond the term of the CBA, which expired in September 1995, and that Norman thus could not reasonably rely on the promise in the CBA. The district court granted summary judgment for Norman and the court of appeals affirmed. Norman v. Housing and Redev. Auth. of Chisholm, 681 N.W.2d 376 (Minn.App.2004). Both courts determined that section 179A.20, subdivision 2a, was overridden by the more specific and subsequently-enacted Minn.Stat. § 471.61, subd. 2b (2004), which authorizes public employers to provide health insurance coverage for retirees indefinitely. The courts concluded that Norman’s reliance on the CBA was reasonable and established CHRA’s obligation under promissory estoppel. We affirm, although on different grounds.

Norman was an employee of CHRA from May 23, 1983, to February 24, 1995. The CBA in effect when she retired provided that all employees with at least 10 years of service who retire “shall continue to be covered under * * * the existing hospital medical, surgical, drug and dental programs covering employees of the CHRA * * The CBA further provided that CHRA “shall pay all insurance premiums in full, to include single coverage and disability retirement.” In September 1995, about 7 months after Norman’s retirement, the union was decertified and the CBA expired.

CHRA continued to pay Norman’s health insurance premiums under health and dental plans covering CHRA employees until November 2002, more than 7 years after her retirement. At that time, CHRA notified Norman that it would no longer pay her premiums “due to the continuing rising costs of Health Insurance and Budget constraints.” Norman sent letters requesting that CHRA recommence paying her health insurance premiums, but CHRA refused.

Norman brought this action against CHRA, and in a motion for summary judgment requested the court to order CHRA “to-fulfill its promise to Norman by making back payments to her equal to the cost of insurance she lost from December 1, 2002, until the' CHRA again provides her coverage on the same basis it does for current employees of the CHRA.” CHRA brought a cross-motion for summary judgment, asserting that CHRA had no obligation to pay Norman’s health insurance premiums upon her retirement, that it had “gratuitously” paid the premiums for 7-1/2 years, and that her reliance on CHRA’s promise to continue payment was not reasonable in view of Minn.Stat. •§ 179A.20, subd. 2a, which said that a CBA may not obligate a public employer “to fund” healthcare benefits beyond the duration of the CBA.

The district court granted summary judgment in favor of Norman, concluding that CHRA was obligated to continue the premium payments. The court of appeals affirmed. Norman, 681 N.W.2d at 879-80. The court held that limitations in section 179A.20, subdivision 2a, were overridden by more specific and subsequently-enacted provisions relating to insurance continuation for public employees, Minn.Stat. § 471.61, subd. 2b. Norman, 681 N.W.2d at 379. The latter provisions require public employers to include retirees in the same insurance group as current employees and authorizes public employers to pay the premiums if a CBA provides that the employer must do so. We granted review of the issue of whether a promise contained in a CBA may bind a public employer to pay retiree health insurance premiums beyond the term of the CBA.

As noted, the parties, district court and court of appeals framed the case in terms of promissory estoppel, undoubtedly in reliance on our decision in Christensen v. Minneapolis Municipal Employees Retirement Board, 331 N.W.2d 740 (Minn. 1983). In Christensen>.we rejected a conventional contract analysis of the public employee’s claim for a statutorily based pension because it “tends to deprive the analysis of the relationship between the state and its employees of a needed flexibility,” whereas the equitable nature of promissory estoppel allows a court to capture and weigh competing interests of the public and the public employee. Id. at 747-49. We also intimated that statutory restrictions on a public employer’s authority to bargain and contract to pay pension benefits would preclude a contract analysis, stating, “promissory estoppel precisely applies where, as here, there are no ‘contract rights.’ ” Id. at 748.

After Christensen, a series of legislative amendments supplied authority to public employers to contract to pay retirees’ health insurance premiums. .We will consider whether these amendments eliminated the premise underlying- our use of promissory estoppel — that the retirees had no contract rights. But we begin our analysis by discussing the history of legislation concerning the authority of public employers to contract to pay retirement benefits. In this discussion, we resolve the conflict between section 179A.20, subdivision 2a, which CHRA argues precludes public employers from contracting to pay retirees’ health insurance premiums beyond the term of the CBA, and section 471.61, subdivision 2b, which Norman argues requires public employers to pay retirees’ premiums if a CBA so provides.

I.

CHRA relies on section 179A.20, subdivision 2a, enacted in 1988 as part of several changes to the Public Employment Labor Relations Act (PELRA), which provides that:

A contract may not obligate an employer to fund all or part of the cost of health care benefits for a former employee beyond the duration of the contract, subject to section 179A.20, subdivision 6. A personnel policy may not obligate an employer to fund all or part of health care benefits for a former employee beyond the duration of the policy. A policy may not extend beyond the termination of the contract of longest duration covering other employees of the employer or, if none, the termination of the budgetary cycle during which the policy is adopted.

Act of Apr. 24, 1988, ch. 605, § 7, 1988 Minn. Laws 671, 675. CHRA argues that “to fund” is equivalent to “to pay,” and that this section deprives a public employer of authority to contract to pay retiree healthcare benefits beyond the term of the CBA that provides those benefits.

Norman argues that limitations in section 179.20, subdivision 2a, were overridden by the enactment in 1992 of Minn.Stat. § 471.61, subd. 2b, which states in part:

A unit of local government must allow a former employee and the employee’s dependents to continue to participate indefinitely in the employer-sponsored hospital, medical, and dental insurance group that the employee participated in immediately before retirement, under the following conditions:
* * * * * ⅝
(e) The former employee must pay the entire premium for continuation coverage, except as otherwise provided in a collective bargaining agreement or personnel policy.
⅜ * * * * *
(k) Notwithstanding section 179A.20, subdivision 2a, insurance continuation under this subdivision may be provided for in a collective bargaining agreement or personnel policy.

To assist in construing these statutes, the court of appeals employed Minn.Stat. § 645.16 (2004): “Every law shall be construed, if possible, to give effect to all its provisions.” Norman, 681 N.W.2d at 379. The court concluded that the legislature must have intended that the specific authority in section 471.61 for public employers to contract to pay retiree healthcare benefits indefinitely created an exception to general limitations in section 179A.20 on the authority of public employers to contract for pension benefits. Norman, 681 N.W.2d at 379.

CHRA and amicus curiae Minnesota School Boards Association (MSBA) counter that the court of appeals’ construction of these statutes violates the overriding legislative intent, which they suggest was to produce cost savings for public employers. They argue that allowing a public employer to obligate itself to pay health insurance premiums indefinitely is contrary to that purpose because it “imposes a cost factor, not a savings, to public employers.”

We view the matter differently. First, we are persuaded that the purpose for the 1988 amendments was far broader than what CHRA and MSBA suggest. Our reading of the 1988 amendments to PEL-RA is that their main purpose was to authorize public employers to offer health insurance benefits to encourage highly compensated employees to retire, which would increase health insurance costs but yield greater savings in payroll costs. Our review of the historical context supports this reading.

Before the 1988 amendments to PEL-RA, a public employer was not authorized to agree in a CBA to pay health insurance premiums for retirees. In fact, a CBA could not provide for any retirement benefits. The obligation of a public employer to meet and negotiate with representatives of public employees was restricted to “the terms and conditions of employment, * * *.” Minn.Stat. § 179A.07, subd. 2 (1986). The phrase “terms and conditions of employment” was defined to exclude “retirement contributions or benefits.” Minn.Stat. § 179A.03, subd. 19 (1986). Under this pre-1988 language, we held that a public employer could not be required to bargain over any retirement contributions or benefits. AFSCME Councils 6, lA, 65 & 96, AFL-CIO v. Sundquist, 338 N.W.2d 560, 576 (Minn.1983). And the court of appeals followed Sundquist to specifically hold that section 179A.03, subdivision 19, “excludes health insurance benefits for retired persons from the scope of collective bargaining for the public sector.” Minnesota Teamsters Public & Law Enforcement Employees Union, Local No. 320 v. Washington County, 413 N.W.2d 245, 247 (Minn.App.1987), rev. granted (Minn. Dec. 18, 1987), appeal dismissed (Minn. Apr. 29,1988).

The 1988 amendments reveal that the legislature chose to authorize a public employer to bargain over retiree health insurance premiums to provide an incentive encouraging early retirement. Because, prior to those amendments public employers could not contract to pay those premiums, it is apparent that the goal was to authorize the employer to pay health insurance premiums so that -it could .obtain greater payroll savings through early retirements.

The centerpiece of the amendments was a change to the definition of the “terms and conditions of employment”-that could be included in a CBA. The 1988 changes to section 179A.03, subdivision 19, provided that the “terms and conditions of employment” could include “employer payment of, or contributions to, premiums for group insurance coverage of retired employees.” Act of Apr. 24, 1988, ch. 605, §, 4, 1988 Minn. Laws 671, 674-75. In this context, subdivision 2a assumes a meaning contrary to-that suggested by CHRA. Rather than being the foundational piece of the 1988 amendments, subdivision 2a was a tool to serve the amendments’ central purpose— to encourage early retirement by authorizing public employers to offer retiree health care benefits. Given this overriding intent, it would be unreasonable to conclude that the legislature intended to limit that tool to 1- to 3-year terms typical in a CBA. Minn.Stat. § 179A.20, subd. 3 (1988) (providing that the duration of a CBA “shall not exceed three years”). An employee who would elect to continue employment to obtain health insurance benefits likely would be unwilling to surrender those and other employment benefits solely on the promise of 1- to 3-year insurance premiums.

Accordingly, we read subdivision 2a to have a much narrower purpose than what CHRA suggests. Subdivision 2a recognizes that public employers have authority to contract to pay retiree healthcare premiums, and it addresses the narrow question of what impact that authority might have on the employer’s budgeting and appropriation processes. We reach this conclusion because subdivision 2a uses the verb “to fund” instead of “to pay.” We conclude that subdivision 2a was intended only to relieve public employers from any obligation to appropriate or set aside current resources to “fund” these.future liabilities to retirees. The word to “fund” means to “make permanent provision of resources for discharging the interest or principal of’ an obligation. Webster’s Third New International Dictionary Unabridged 921 (1993). Thus, a public employer is authorized under section 179A.03, subdivision 19, to obligate itself in a CBA to pay retiree healthcare premiums indefinitely, and the purpose of subdivision 2a was to relieve the employer from any obligation to set aside current resources to secure this future liability beyond the duration of the CBA.

Given this reading of the 1988 amendments to PELRA, the addition in 1992 of insurance continuation provisions in Minn. Stat. § 471.61, subd. 2b, does not conflict with PELRA. It clarifies that public employee retirees'must be allowed to continue to participate “indefinitely” in the same “hospital, medical, and dental insurance group” as before retirement. Subdivision 2b(e) states that “[t]he former employee must pay the entire premium for continuation coverage, except as otherwise provided in a collective bargaining agreement or personnel policy” (emphasis added). This subdivision authorizes public employers to contract in a CBA to pay insurance premiums on behalf of retirees. And subdivision 2b(k) specifically eliminates any conflict with section 179A.20, subdivision 2a, by providing: “Notwithstanding section 179A.20, subdivision 2a, insurance continuation under this subdivision may be provided for in a collective bargaining agreement or personnel policy.”

Because section 179A.20, subdivision 2a, does not limit the authority of a public employer to obligate itself to pay retiree health insurance premiums beyond the duration of the CBA that creates that obligation, it does not conflict with section 471.61, subdivision 2b, which likewise recognizes that a public employer is- authorized to obligate itself to pay future retiree health insurance premiums indefinitely where it does so in a CBA.

Our April 1992 decision in Law Enforcement Labor Services, Inc. v. County of Mower, 488 N.W.2d 696 (Minn.1992), is relevant to the historical review but does not control our decision. County of Moiver was decided after the 1988 amendments to PELRA but just days after the 1992 enactment of section 471.61, subd. 2b. See Act of Apr. 16, 1992, ch. 488, § 3, 1992 Minn. Laws 379, 380-81. It does confirm that the 1988 amendments to PELRA authorized public employers to bargain for the payment of health insurance premiums for retirees. County of Mower, 483 N.W.2d. at 699-701. It did recite that “[i]f the parties reach an agreement, the resulting contract ‘may not’ obligate the county to fund all or part of the cost of retiree health care beyond the expiration of the contract,” but it did not discuss what the words “to fund” meant. Id. at 701. And because the parties briefed and argued the case before section 471.61, subdivision 2b, was enacted, we had no need to discuss the section’s impact on section 179A.20, subdivision 2a.

Mower County’s CBA did not include agreement to pay retiree healthcare premiums. Thus we did not reach the precise issues presented here. But we did hold that the county’s promise to pay health insurance premiums, which was not in a CBA but was contained in a notice provided to employees when they retired, was enforceable under promissory estoppel. County of Mower, 483 N.W.2d at 701. In fact, we held that the promise was not restricted to the duration of the CBA but “vested for the life of the retiree.” Id. From that holding, we find some support for our conclusion that section 179A.20, subdivision 2a, does not restrict a public employer’s liability for retiree health insurance premiums to the duration of the CBA. If the noncontractual promise in County of Mower is not limited to the duration of the CBA, the more solemn contractual promise by CHRA should not be seen as having less longevity.

II.

Given that CHRA was authorized to include retiree healthcare benefits in the CBA, we next consider what rights accrued to Norman when the CHRA included these benefits in the CBA in effect when she retried. Because the parties framed their arguments under promissory estoppel and the district court and court of appeals addressed the arguments exclusively under that theory, we first turn to promissory estoppel.

As noted earlier, the precedent for viewing public employee claims for retiree benefits under promissory estoppel is our 1988 decision in Christensen. This case was decided before PERLA was amended in 1988, at a time when public employers had no authority to include any pension benefits in a CBA. Further, the employee in Christensen did not rely on a CBA, but rather on a statutory pension that the legislature attempted to reduce by amendment after the employee retired. Christensen, 331 N.W.2d at 742^13. Thus, the case could not proceed under conventional contract law and we faced either perpetuating our prior case law that characterized public employee retirement benefits as a “gratuity” to which the employee had no legal rights, or departing from our case law to consider the employee’s rights under promissory estoppel. We chose the promissory estoppel option as the most “realistic, fair and practical” way to characterize a public employee’s interest in a statutory pension. Id. at 748.

A claim for promissory estoppel has three elements: (1) Was there a clear and definite promise? (2) Did the promi-sor intend to induce reliance, and did such reliance occur? (3) Must the promise be enforced to prevent injustice? Olson v. Synergistic Tech. Bus. Sys., Inc., 628 N.W.2d 142, 152 (Minn.2001); see also Christensen, 331 N.W.2d at 749 (quoting from Restatement (Second) of Contracts § 90 (1981)).

If we apply promissory estoppel to this case, there is no legitimate dispute regarding the first two elements. The CBA contains a clear and definite promise that retirees with at least 10 years of service “shall continue to be covered under * * • * the existing hospital medical, surgical, drug and dental programs covering employees of the CHRA” and that CHRA “shall pay all insurance premiums.” CHRA should have reasonably expected that this would induce an employee like Norman to believe that her health insurance needs would be paid after retirement. Norman’s actual reliance on the promise is shown by her continued employment for the prescribed 10-year period and then her retirement during the term of the CBA. See, e.g., County of Mower, 483 N.W.2d at 701.

The dispute in the district court and court of appeals centered on the third prong, whether injustice may be avoided only by enforcing the promise. CHRA argued that the third prong requires Norman to show that her reliance on the promise was reasonable. CHRA argued that section 179A.02, subdivision 2a, makes it illegal for a public employer to contract to pay pension benefits beyond the term of the CBA, that Norman is presumed to know the law, and that Norman thus could not have reasonably relied on the promise after the CBA expired. But our conclusion that section 179A.20, subdivision 2a, does not make it illegal for a public employer to contract to pay retiree insurance premiums beyond the term of the CBA supports the conclusion that Norman’s reliance was reasonable as a matter of law.

If we were to decide this case on promissory estoppel grounds, we would affirm the conclusion of the court of appeals that all elements of promissory estoppel had been shown as a matter of law. But the statutory changes made after Christensen require us to re-examine whether promissory estoppel remains appropriate for considering a public employee’s interest in a CBA that provides for the employers to pay retiree health insurance premiums.

We recognized in Christensen that promissory estoppel applies only to agreements “implied in law where no contract exists in fact.” Christensen, 331 N.W.2d at 748 (quoting from Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 283, 230 N.W.2d 588, 593 (1975)). Although promissory estoppel may remain proper for analyzing noncontractual promises of retirement benefits to public employees, the statutory authority granted to a public employer to contract in a CBA to pay retiree health insurance premiums obviates the need to resort to promissory estoppel when a CBA includes this benefit. We hold that a promise by a public employer, embodied in a CBA, to pay health insurance premiums for an employee who retires during the term of the CBA is enforceable on contract grounds.

Under a contract analysis, we first look to the language of the contract and examine extrinsic evidence of intent only if the contract is ambiguous on its face. Blattner v. Forster, 322 N.W.2d 319, 321 (Minn.1982). A contract is ambiguous if it is susceptible to more than one interpretation based on its language alone. Metro Office Parks Co. v. Control Data Corp., 295 Minn. 348, 351, 205 N.W.2d 121, 123 (1973); Telex Corp. v. Data Products Corp., 271 Minn. 288, 291, 135 N.W.2d 681, 684-85 (1965).

The CBA in effect when Norman retired provided, in section 5.a, that all qualified retirees who had at least 10 years of service “shall continue to be covered under * * * the existing hospital medical, surgical, drug and dental programs covering' employees of the CHRA * * Section 5.a further provided that the CHRA “shall pay all insurance premiums in full, to include single coverage and disability retirement.” Section 5.a did not limit the promise to pay these premiums to the duration of the CBA. Because Norman retired before the CBA expired, her rights to this benefit vested and necessarily survive the expiration of the CBA. County of Mower, 483 N.W.2d at 701 (stating that, upon retirement in reliance on the county’s promise of pension benefits, the retiree’s “right to such benefits is vested for the life of the retiree and cannot be altered' absent the retiree’s express consent”).

This conclusion is reinforced by the parties’ practical construction of the - CBA. CHRA did not terminate Norman’s insurance on the expiration of the CBA, but instead paid Norman’s insurance premiums for more than 7 years thereafter. We hold that Norman’s right to the payment of health insurance premiums vested at the time she retired and CHRA cannot now unilaterally terminate those benefits.

Affirmed.

Concurring, ANDERSON, G. BARRY, J. and BLATZ, C.J.

ANDERSON, G. BARRY, J.

(concurring).

Respondent Norman has satisfied all elements necessary to enforce a promise under promissory estoppel, and CHRA has not shown any need to break its promise to her. Norman is therefore entitled to relief and I concur with the result reached by the majority.

But I conclude that this record does not support the contractual analysis used by the majority and would decide this dispute on the promissory estoppel principles we adopted in Christensen v. Minneapolis Municipal Employees Retirement Board, 331 N.W.2d 740 (Minn.1983).

The majority opinion holds, “the statutory authority granted to a public employer to contract in a CBA to pay retiree health insurance premiums obviates the need to resort to promissory estoppel when a CBA includes this benefit.” But this grant of authority, found in the 1988 amendments to the Public Employment Labor Relations Act, see Act of Apr. 24, 1988, ch. 605, § 4, 1988 Minn. Laws 671, 674-75 (codified at Minn.Stat. § 179A.03, subd. 19 (1988)), does no such thing because, although Minnesota law is hardly clear on this point, contractual obligations generally do not survive the expiration of a collective bargaining agreement. See, e.g., Litton Fin. Printing Div. v. Nat’l Labor Relations Bd., 501 U.S. 190, 207-08, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991).

The policies necessitating examination under promissory estoppel have not changed. Prior to our decision in Christensen, a public retirement benefit was considered a mere gratuity, a “bounty springing from the graciousness and appreciation of sovereignty.” Gibbs v. Minneapolis Fire Dep’t Relief Ass’n, 125 Minn. 174, 177, 145 N.W. 1075, 1077 (1914). We noted in Christensen that this view was justified in the early 20th century, when retirement benefits generally were insignificant in amount and not considered compensation for work rendered. Christensen, 331 N.W.2d at 746. In Gibbs, the interest of the sovereign was paramount as against the interest of the public employee. But as employees relied more on promised pension benefits, the balance between the interest of the sovereign and the employee changed. In Gorczyca v. City of Minneapolis, 174 Minn. 594, 598, 219 N.W. 924, 925 (1928), we stated that a retirement allowance “is not a gratuity when the services are rendered while the pension or retirement relief statute is in force, so that the statute becomes a part of the contract of employment and contemplates such pension or allowance as part of compensation for the services rendered.” In Christensen, we weighed these competing interests and expressly rejected a contractual analysis. In so doing, we stated, “[a] conventional contract approach, with its strict rules of offer and acceptance, tends to deprive the analysis of the relationship between the state and its employees of a needed flexibility.” 331 N.W.2d at 747.

The majority opinion concludes that the legislature intended a radical change in its approach to retirement health insurance benefits. In 1988, the legislature added “employer payment of, or contributions to, premiums for group insurance coverage of retired employees” to the terms and conditions of employment that may be negotiated in a collective bargaining agreement. Act of Apr. 24, 1988, ch. 605, § 4, 1988 Minn. Laws 671, 674-75 (codified at Minn. Stat. § 179A.03, subd. 19 (1988)). The majority argues that the legislature intended to create a contractual right of indefinite duration between government and its soon-to-be former employees to produce cost savings by encouraging early retirement. To this end, the majority relies on dates of statutory adoption and the logical, even if unsupported, conclusion that employees would not retire with an incentive of only a three-year health insurance benefit.

It is indeed possible that the legislature intended to do just that; regrettably, the legislature did not expressly state this intention, but only added to the terms that may be included in a collective bargaining agreement of limited duration. The legislature, which is knowledgeable about and heavily involved in regulating negotiation of collective bargaining agreements, could have easily inserted specific authorizing language extending the term of retiree health insurance provisions beyond the length of a collective bargaining agreement either indefinitely or for some other term. The legislature, which was well aware of our decision five years earlier in Christensen establishing our promissory estoppel analysis for benefits extending beyond the term of a collective bargaining agreement, could have added language explicitly creating a contractual right. But it did not do so. Where the legislature did face the question, language of limitation was employed rather than language of expansion: “A contract may not obligate an employer to fund all or part of the cost of health care benefits for a former employee beyond the duration of the contract, subject to 179A.20, subdivision 6.” Minn.Stat. § 179A.20, subd. 2a (2004).

In response to this language, the majority engages in a definitional analysis and concludes that “fund” is not the same as “pay.” But authority for this proposition is limited to a common dictionary definition. The majority then uses the distinction between “fund” and “pay” as a way around what would otherwise be a barrier to a contractual analysis. But in fact, fund and pay are often interchangeable. See, e.g., Black’s Law Dictionary 697 (8th ed.2004) (defining “fund” as “to furnish money to (an individual, entity, or venture)”). Whatever nuanced distinctions may exist between “fund” and “pay,” in practice those distinctions are not sufficiently convincing to support the majority’s divination of legislative intent. If the legislature intended to create a contractual right, the legislature could have done so. It did not, and based on separation of powers principles, we should act with restraint.

Further, it is unnecessary to reach this question in the first instance because the respondent has made a powerful and persuasive argument that promissory estoppel mandates the result reached by the district court and the court of appeals. I would affirm the court of appeals on the basis of promissory estoppel and would not use the contractual analysis framework adopted by the majority opinion.

BLATZ, C.J.

(concurring).

I join in the concurrence of Justice G. Barry Anderson.

      . This interpretation is consistent with the authorization in Minn.Stat. § 471.61, subd. 2a (2004), for a governmental unit “which pays all or any part of such premiums * * * to levy and collect a tax * * * in the next annual tax levy for the purpose of providing the necessary funds for the payment of such premiums” and to have such levies excluded, in whole or in part, from "any tax or expenditure limitation.”

      . Even if there were a conflict, section 471.61, subdivision 2b, would control because it is the subsequently-enacted and more specific provision. Minn.Stat. § 645.26, subd. 4 (2004).

      . Similarly, in County of Mower, we examined the noncontractual claims of retired public employees under promissory estoppel principles. 483 N.W.2d at 701.

      . See also Litton Fin. Printing Div. v. Nat’l Labor Relations Bd., 501 U.S. 190, 207-08, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991) (holding that when a CBA explicitly provides that certain benefits continue after the agreement expires, such benefits "arise under” the CBA and therefore disputes regarding them are subject to postexpiration arbitration procedures unless negated expressly or by clear implication); Municipality of Anchorage v. Gentile, 922 P.2d 248, 258 (Alaska 1996) (holding that police officers’ and firefighters’ CBA intended for pension rights to vest upon retirement); Poole v. City of Waterbury, 266 Conn. 68, 831 A.2d 211, 223-24 (2003) (holding that "[f|rom the employee’s perspective, the promise of health insurance benefits at retirement may be a significant inducement in determining employment. * * * Employees reasonably relying on * * * a promise may be put in an untenable position when their employer unilaterally withdraws or substantially diminishes benefit insurance.”).


source: Caselaw Access Project

author: HANSON, J.

license: Public Domain

text:
    Patricia Agnes FEDZIUK, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant.
    No. A04-2328.
    Supreme Court of Minnesota.
    May 19, 2005.

      Mike Hatch, Attorney General, Jeffery Lebowski, Sean McCarthy, Assistant Attorney General, St. Paul, MN, for Appellant.
    Jeffery S. Sheridan, Strandemo, Sheridan & Dulas, Eagan, MN, Respondent.
    Stephen Simon, Attorney at Law, University of Minnesota, Minneapolis, MN, for Amicus Curiae' Criminal Justice System DWI Task Force.
   OPINION

HANSON, J.

In this declaratory judgment action, respondent Patricia Fedziuk asked the district court to hold that Minnesota’s Implied Consent Law, as amended in 2003, violates procedural due process. The district court determined that the Implied Consent Law’s prehearing revocation procedures violate due process. Because of the statewide impact of its decision, the court stayed its order and‘ certified two questions as “important and doubtful”:

1. Does Minnesota’s implied consent scheme of prehearing revocation offend a driver’s state and/or federal constitutional guarantees of due process of law?
2. Is the 1980 version of the implied consent law revived by the declaration that the current implied consent law is unconstitutional? If not, what version, if any, is revived if the current law is struck down?

We granted accelerated review.

We have upheld the constitutionality of the pre-2003 versions of the Implied Consent Law in three decisions: Heddan v. Dirkswager, 336 N.W.2d 54 (Minn.1983); Davis v. Comm’r of Public Safety, 517 N.W.2d 901 (Minn.1994); Hamilton v. Comm’r of Public Safety, 600 N.W.2d 720 (Minn.1999). We now hold that the 2003 amendments to the Implied Consent Law, which removed the requirement for prompt judicial review of a prehearing revocation, rendered the Implied Consent Law unconstitutional as violative of due process and that the version of the Implied Consent Law that existed immediately pri- or to the 2003 amendments is revived.

The essential facts are not in dispute. Fedziuk. was arrested on October 23, 2003, for driving while impaired. The police officers invoked the Implied Consent Law and tested her alcohol concentration. The toxicology report from Fedziuk’s blood test did not reveal alcohol in her blood, but reported that the concentration of amphetamine (a Schedule II substance) was 0.17 milligrams per liter.

On March 24, 2004, the Commissioner of Public Safety informed Fedziuk that her driver’s license would be revoked for 90 days, effective April 3, 2004. See Minn. Stat. § 169A.52, subd. 4(a)(1) (2002). On April 2, 2004, Fedziuk requested administrative review of the revocation. With that request, Fedziuk raised an affirmative defense under Minn.Stat. § 169A.46 (2004) that the presence of the schedule II controlled substance in her system at the time of her arrest was pursuant to a prescription. She included a letter from her medical doctor stating that she had been taking prescription medication, but the letter did not indicate whether Fedziuk had used the medication as prescribed. On April 14, 2004, the Department of Public Safety sustained the revocation of her driver’s license after the administrative review.

Fedziuk also filed for judicial review on or about April 2, 2004. Her implied consent trial date was set for June 1, 2004, within 60 days of the date Fedziuk filed her petition for judicial review.

Fedziuk also filed a complaint on April 27, 2004, seeking judgment under the Uniform Declaratory Judgments Act, Minn. Stat. §§ 555.01-.16 (2004). She requested a finding and declaration that “Minnesota’s Implied Consent Law is unconstitutional as a violation of due process.” She also requested that the revocation of her driving privileges be rescinded and that a permanent injunction be issued against the Commissioner to prohibit further enforcement of the Implied Consent Law.

Soon after filing her declaratory judgment action, Fedziuk supplied the Commissioner with information that corroborated her affirmative defense that she had taken her medication according to terms of her prescription. Based on Fedziuk’s affirmative defense, the Commissioner administratively rescinded the revocation of Fedziuk’s driver’s license and references to the incident were removed from Fed-ziuk’s driving record.

Fedziuk nevertheless pursued the declaratory judgment action and filed a motion for summary judgment. The Commissioner argued that Fedziuk’s action was moot and that she lacked standing because her license revocation had been rescinded. The, Commissioner also argued that Fed-ziuk failed to demonstrate that she did not have an adequate remedy at law because Fedziuk could have sought temporary reinstatement of her license or moved for an expedited judicial review.

The district court denied the Commissioner’s procedural objections and granted summary judgment to Fedziuk, declaring that several of the prehearing revocation procedures, including but not limited to those added with the 2003 amendments, violated Fedziuk’s due process rights. The court did not grant Fed-ziuk’s request for a statewide injunction at that time. But, on November 22, 2004, the district court issued an amended order declaring all of the Implied Consent Law’s prehearing revocation procedures unconstitutional and determining that the 1980 version of the Implied Consent Law, which did not authorize any prehearing revocation,' was revived. Because of the statewide impact of its decision, the court stayed its order and certified the two questions under Minn. R. Civ.App. P. 103.03® as “important and doubtful.” The Commissioner moved for accelerated review under Minn. R. Civ.App. P. 118, which we granted.

Certified questions are questions of law that we review de novo. Clark v. Lindquist, 683 N.W.2d 784, 785 (Minn.2004). The district court may certify a question to the court of appeals that is important and doubtful. Minn. R. Civ. App. P. 103.03(i). A question that is doubtful need not be one of first impression, but it should be one on which there is substantial ground for a difference of opinion. Jostens, Inc. v. Federated Mut. Ins. Co., 612 N.W.2d 878, 885 (Minn.2000), A question is increasingly important if: (1) it will have statewide impact, (2) it is likely to be reversed, (3) it will terminate lengthy proceedings, and (4) the harm inflicted on the parties by a wrong ruling by the district court is substantial. Id. at 884. We conclude that the district court properly certified the questions for appellate review. The decision will have statewide impact and many litigants await our answers to these questions.

I.

We must first decide whether Minnesota’s Implied Consent Law, as amended in 2003, violates a driver’s due process guarantees. We review issues of constitutional interpretation de novo. Star Tribune Co. v. Univ. of Minnesota Bd. of Regents, 683 N.W.2d 274, 283 (Minn.2004). The party challenging a statute has the burden of demonstrating, beyond a reasonable doubt, that a constitutional violation has occurred. Heidbreder v. Carton, 645 N.W.2d 355, 372 (Minn.2002). If possible, we must interpret a statute to uphold its constitutionality. St. Paul Cos., Inc. v. Hatch, 449 N.W.2d 130, 137 (Minn.1989).

In 1982, the Minnesota legislature amended the Implied Consent Law to permit prehearing revocation of drivers’ licenses in certain specified circumstances. Act of March 19, 1982, ch. 423, § 9, 1982 Minn. Laws 288, 295 (codified at Minn. Stat. § 169.123, subd. 5 (1982)). In Heddan, we upheld these 1982 amendments to the Implied Consent Law against due process challenges. 336 N.W.2d at 59-63. We employed a three-part test established by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), for identifying whether due process requires a hearing before property interests are taken away. Heddan, 336 N.W.2d at 59 (citing Mathews, 424 U.S. at 334-35, 96 S.Ct. 893). Under Mathews, a court must consider three factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Matheios, 424 U.S. at 334-35, 96 S.Ct. 893. In Heddan, we determined that each, of the three factors weighed in favor of upholding the prehearing revocation because of substantial protections provided under the statute, including the short duration of the suspension, the immediate availability of limited licenses in hardship cases, and the requirement for prompt postrevocation review in two forms: an immediate administrative review and a prompt judicial review. 336 N.W.2d at 60-63. Our decision to uphold the 1982 amendments was based in part on a side-by-side comparison of Minnesota’s Implied Consent Law with a Massachusetts law permitting prehearing revocation of drivers’ licenses that the Supreme Court upheld on due process grounds in Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979). Heddan, 336 N.W.2d at 59-63. In general, we concluded that Minnesota’s law provided more procedural protections than the Massachusetts law that was upheld in Montrym. Heddan, 336 N.W.2d at 59-60.

In 1992, the legislature reduced those protections when it added a 15-day waiting period before a driver whose license had been rescinded could apply for a limited license and increased the legal consequences of a revocation by allowing it to be used to enhance a future DWI. Act of April 17, 1992, ch. 570, art. 1, § 23, 1992 Minn. Laws 1944, 1961; id., § 7 at 1948 (codified at Minn.Stat. §§ 169.121, subd. 3a; 171.30, subd. 2a (1992)). In Davis, we held that extending the waiting period for a limited license did not violate due process. 517 N.W.2d at 904-05. We did not address the enhancement effect.

In 1997, the legislature doubled the periods - of revocation and the waiting period for applying for limited licenses for drivers whose testing showed an alcohol concentration of 0.20 or more. Act of June 27, 1997, ch. 2, § 56, 1997 Minn. Laws 1st Spec.- Sess. 3150, 3183 (codified at Minn. Stat. § 171.30, subd. 2c (Supp.1997)). In Hamilton, we upheld - this change as not altering the basic analyses of Heddan and Davis. 600 N.W.2d at 724.

Essentially, Heddan, Davis and Hamilton recognize that the 1982 changes to the Implied Consent Law that permitted the prehearing revocation of drivers’ licenses-were firmly within the boundaries of the Massachusetts law found constitutional in Montrym and that the 1992 and 1997 changes brought Minnesota law closer to, but not outside, the Montrym boundary lines. We see no reason to disturb this precedent. Accordingly, our focus is on whether the 2003 amendments have so eroded an essential protection of the Implied Consent Law as to render it unconstitutional.

Prior to the 2003 amendments, the provision for judicial review of a pre-hearing revocation stated: “[t]he hearing must be held at the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review.” Minn.Stat. § 169A.53, subd. 3a (2002). The statute did not specify consequences for failing to hold such a hearing within 60 days except to authorize the court to stay the balance of the revocation if the hearing was not held within 60 days. Minn.Stat. § 169A.53, subd. 2c .(2002). The 2003 amendments retained authority for a court to stay a revocation if a hearing is not held in 60 days but deleted the requirement that the hearing be “held at the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review.” Act of May 24, 2003, ch. 2, art. 9, § 13, 2003 Minn. Laws 1st Spec. Sess. 1384, 1451.

By eliminating the requirement for prompt postrevocation judicial review, the 2003 amendments affected the driver’s private interest in continued possession and use of the license pending the outcome of a hearing, the first part of the three-part test from Mathews. Heddan, 336 N.W.2d at 60 (citing Montrym, 443 U.S. at 11-12, 99 S.Ct. 2612). The other factors from Mathews — the risk of erroneous deprivation and the government’s interest— have not changed since we last approved the constitutionality of the Implied Consent Law. Accordingly, we must determine whether immediately available administrative review, combined with the now unspecified period for judicial review, provides a sufficiently meaningful postre-vocation review that protects the driver’s private interest, and consequently the driver’s due process rights.

Due process requires a prompt and meaningful postrevocation review. In Barry v. Barchi, the Supreme Court considered the constitutionality of a prehear-ing suspension of a horse trainer’s license. 443 U.S. 55, 64-65, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979). The Court stated, “[o]nce suspension has been imposed, the trainer’s interest in a speedy resolution of the controversy becomes paramount, it seems to us. We also discern little or no state interest * * * in an appreciable delay in going forward with a full hearing.” Id. at 66, 99 S.Ct. 2642. The Court determined that the prehearing suspension violated due process because the provision for a hearing did not assure a prompt proceeding or prompt disposition of the case. Id.

Judicial review under the Implied Consent Law would of course be meaningful, but after the 2003 amendments, there is no requirement that it be prompt. Accordingly, we must examine whether the-alternative administrative review preserves due process rights because it is both prompt and meaningful. The administrative review is required to be prompt, so the question is whether it is sufficiently meaningful.

The Implied Consent Law provides for an immediately available administrative review and requires the Commissioner to provide a written decision within 15 days of receiving the request. * Minn.Stat. § 169A.53, subd. 1(a) (2004). The driver whose license has been revoked may make a written request for an administrative review at any time during the period of license revocation. Id. The Commissioner’s role in this review is to “review the order, the evidence upon which the order was based, and any other material information brought to the attention of the commissioner, and determine whether sufficient cause exists to sustain the order.” Id.; see also Minn. R. 7409.4600, subp. 3 (2003). Availability of administrative review does not affect availability of judicial review. MinfuStat. § 169A.53, subd. 1(b).

Rules of the Public Safety Department further define a driver’s right to administrative review. A hearing is initiated when the driver submits a written request for review, and the hearing may be held by written correspondence or' by a personal appearance. Minn. R. 7409.4600, subp. 2 (2003). The Commissioner must review the order, evidence upon which the order was based, “and any other material information brought to the attention of the commissioner to determine whether sufficient cause exists to sustain the order.” Minn. R. .7409.4600, subp. 3. The rules do not expressly limit a driver’s ability to bring witnesses to the hearing, but neither do they expressly authorize it. The rules do not provide for subpoenaing or cross-examining witnesses. See id., subp. 3 (“The commissioner may seek additional information from the person requesting the review or hearing or from an agency or person believed to have information relating-to the facts underlying the order of withdrawal.”).

We conclude that Minnesota’s administrative review, although prompt, does not provide a sufficiently meaningful review to overcome due process concerns triggered by the 2003 amendment of elimination of prompt time requirements for judicial review. The Department of Public Safety’s administrative review does not appear to contemplate an evidentiary hearing. The rules do not .guarantee that a petitioner can bring witnesses or present testimony. They do authorize the Commissioner to seek additional information, but there are no provisions for subpoenaing or cross-examining witnesses. See Minn.Stat. § 169A.53, subd. 1; Minn. R. 7409.4600, subp. 3. Because a successful review may depend on proving the inaccuracy of police reports or lab results, minimal due process requires that the petitioner be given, the right to compel witnesses to attend the hearing and to cross-examine persons who prepared these reports. See, e.g., State v. Richardson, 670 N.W.2d 267, 277 (Minn.2003) (stating that due process ensures that a criminal defendant have the right to present the defendant’s version of facts through witness testimony); Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (stating that the right of cross-examination helps ensure the accuracy of a trial).

Comparing Minnesota’s statute to the Massachusetts statute upheld in Montrym further supports our conclusion. Like Minnesota’s statute, the Massachusetts statute had two forms of postrevocation review, an immediately available administrative review and judicial review that did not specify any requirement of timeliness. Heddan, 336 N.W.2d at 60. When Heddan was decided, we said, “[t]he differences between the Massachusetts and Minnesota systems of post-revocation review do not appear to favor either system to any constitutionally significant degree.” Id.

But, in Montrym, the Supreme Court held the immediately available postsuspension administrative hearing available under the Massachusetts statute itself satisfied the due process requirement for prompt postdeprivation review, stating:

All that Montrym seeks was available to him immediately upon his suspension, and we believe that the “same day” hearing before the Registrar available under § 24(l)(g) provides an appropriately timely opportunity for the licensee to tell his side of the story to the Registrar, to obtain correction of clerical errors, and to seek prompt resolution of any factual disputes he raises as to the accuracy of the officer’s report of refusal.

443 U.S. at 15, 99 S.Ct. 2612. Thus, the lack in Massachusetts of prompt judicial review did not affect the due process analysis because the Court held that the administrative review was sufficient for due process requirements. Although the Court did not specifically identify which parts of the Massachusetts administrative hearing were essential to due process, we note that the Court cited language in the Massachusetts statute that provided for an evidentiary hearing and that explicitly authorized the driver to subpoena and cross-examine witnesses. Id. at 7 n. 5, 99 S.Ct. 2612. The lack of comparable provisions in Minnesota’s Implied Consent Law make the administrative review an inadequate protection of the driver’s due process guarantees.

Accordingly, we answer the first certified question in the affirmative.

II.

Having determined that the 2003 amendments eliminate a critical due process element to the Implied Consent Law, we must decide which version of the Implied Consent Law is revived.. The Commissioner argues that the proper remedy is to sever only the 2003 amendments and revive the version of the Implied Consent Statute that existed immediately before that amendment. The Commissioner argues that the district court misapplied statutory construction doctrines of sever-ability and revival when it revived the 1980 version of the Implied Consent Law, which did not authorize any prehearing revocation. We agree with the Commissioner.

When a statute is unconstitutional, it is not a law and it is as inoperative as if it had never been enacted. State v. Mullen, 577 N.W.2d 505, 512 (Minn. 1998). We have previously held that if a law is unconstitutional, only' the latest amendment is severed and any previous version found constitutional remains in full force and effect. See State v. One Oldsmobile Two-Door Sedan, Model 1946, 227 Minn. 280, 288, 35 N.W.2d 525, 530 (1948). An unconstitutional law, being void and inoperative, cannot repeal or in any way affect an existing one. Id.

Accordingly, we answer the first part of the second certified question in the negative. Our answer to the second part of the second certified question Is that the version of the Implied Consent Law that is revived is the. version that existed immediately prior ■ to the 2003 amendments. Fedziuk’s motion to strike portions of the Commissioner’s brief and for fees and costs is denied.

Certified questions answered; motion denied.

      . Minnesota Statutes § 169A.46, subd. 2, provides:
      If proven by a preponderance of the evidence, it is an affirmative defense to a violation of section 169A.20 subdivision 1, clause (7) (presence of schedule I or II controlled substance), that the defendant used the controlled substance according to the terms of a prescription issued for the defendant in accordance with sections 152.11 and 152.12.

      . Fedziuk applied for and was granted a limited license under Minn.Stat. § 171.30 (2004). The‘limited license allowed Fedziuk to drive her minor daughter to and from school and medical appointments and, during one 3-hour window each week, to get groceries and other household necessities.

      . We do not regard Fedziuk’s action as moot or that she lacks standing to bring it because an appeal is not moot "where the issue raised is capable of repetition yet evades review or where collateral consequences attach to the judgment." In re McCaskill, 603 N.W.2d 326, 327 (Minn. 1999). Issues raised in the certified questions are capable of repetition and could evade review. Because of the relatively short duration of license revocations — from 90 days to 360 days for test failure — the revocation period could end before an appeal is completed. Accordingly, we will decide the certified questions on their merits.

      . Both the United States and Minnesota Constitutions provide that a person shall not be deprived of life, liberty, or property without due process of law. U.S. Const, amend. XIV, § 1; Minn. Const, art. I, § 7.

      . Fedziuk and the district court both discussed the impact of using civil license revocations to enhance criminal sentences. The 1992 amendment does heighten the consequences of a revocation, but we will not consider the matter in connection with these certified questions because Fedziuk's license revocation was erased from her driving record and cannot be used against her in a subsequent adjudication. Because the potential enhancement has no immediate impact on a prehearing revocation under the Implied Consent Law, we defer consideration of it to a case where enhancement is sought.

      . The weight given the private interest depends on three factors: (1) the duration of the revocation, (2) the availability of hardship relief, and (3) the availability of prompt postre-vocation review. Heddan, 336 N.W.2d at 60 (citing Montrym, 443 U.S. at 11-12, 99 S.Ct. 2612). Factors (1) and (2) have not changed since we last approved the constitutionality of the Implied Consent Law.
      The maximum license revocation under Minn.Stat. § 169A.52, subd. 4 (2004) for test failures is 360 days. Fedziuk’s revocation, had it not been rescinded, would have been for 90, days. The Supreme Court has upheld a prehearing revocation statute that included suspensions that lasted for a year or more. See Dixon v. Love, 431 U.S. 105, 108, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977). We also did not find constitutional significance in a 360-day revocation for test results indicating an alcohol concentration of .20 or more for a person with a prior impaired license revocation in the past 5 years. See Hamilton, 600 N.W.2d at 722.
      Minnesota law also provides hardship relief. A driver whose license is revoked is provided advance notice. See Minn.Stat. § 169A.52, subd. 6 (2004); see also Minn.Stat. § 169A.52, subd. 7 (2004) (7-day temporary license when revocation is for test refusal). A driver whose license has been revoked may also apply for a limited license under Minn. Stat. § 171.30 (2004) under certain conditions, including work, family needs, and school. Although a limited license is not immediately available (a first-time offender must wait at least 15 days before applying, Minn. Stat. § 171.30, subd. 2a(l)), we have upheld as constitutional the lack of immediate hardship relief after revocation. Davis, 517 N.W.2d at 904-05 (wait of 15 days); Hamilton, 600 N.W.2d at 721-22, 724 (wait of 30 days). . ,

      . Fedziuk argues that drivers who have an affirmative defense for prescription drugs "will always suffer an erroneous revocation that will remain in effect until the driver can get a fact finder to listen.” Although she argues the difficulties related to proving an affirmative defense under the erroneous deprivation factor, we note that her argument is based on her contention that the administrative review is inadequate and the judicial review is delayed. Questions involving the promptness of postrevocation review involve the driver’s private interest, and we will consider it under that factor from Mathews.

      . The statute did require that "the commission shall give prompt notice of a time and place for such hearing at which the commission will hear such applicant or licensee.” Id. at 60 n. 8, 99 S.Ct: 2642. But the prompt notice of the hearing was held to be insufficient where there was no requirement for a prompt hearing. Id. at 65-66, 99 S.Ct. 2642.

      . We believe that the language removed from Minn.Stat. § 169A.53, subd. 3, is distinguishable from the language we called "directory” in Heller v. Wolner, 269 N.W.2d 31 (Minn.1978), because of the due process requirement of promptness involved in this case. In Heller, we concluded that a statutory requirement that a license revocation hearing occur within 30 days from the receipt of a request for a hearing was of a' "directory nature” and the district court was not deprived of jurisdiction to hold the revocation hearing after the 30 days had passed. Id. at 33. Because the drivers in Heller kept their licenses while they waited for their hearing, the delay in the hearing did not cause any prejudice to the drivers. Id.

      . The Court cited Massachusetts Gen. Laws Ann., ch. 90, § 24(l)(g) (West 1969), which provided:
      The hearing may be adjourned at the request of the driver or sua sponte by the hearing officer in order to permit the attendance of witnesses or for the gathering of relevant evidence. Witnesses at the hearing are subject to cross-examination by the driver or his attorney, and he may appeal an adverse decision of the Registrar to the Board of Appeal pursuant to § 28.

      . The presumption is that unconstitutional provisions are severable. Minnesota Statutes § 645.20 (2004) provides:
      Unless there is a provision in the law that the provisions shall not be severable, the provisions of all laws shall be severable. If any provision of a law is found to be unconstitutional and void, the remaining provisions of the law shall remain valid, unless the court finds the valid provisions of the law are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the legislature would have enacted the remaining valid provisions without the void one; or unless the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

      . In reviving the pre-2003 Implied Consent Law, we express no opinion on the 2004 amendments to the Implied Consent Law, which, among other changes, lowered the test failure alcohol concentration level from .10 to .08.


author: /s/Kathleen A. Blatz Chief Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST James P. MULVAHILL, a Minnesota Attorney, Registration No. 151932.
    No. A04-955.
    Supreme Court of Minnesota.
    May 19, 2005.
   ORDER

On September 21, 2004, the Director of the Office of Lawyers Professional Responsibility and respondent James P. Mulvahill filed a stipulation in which respondent unconditionally admitted the allegations in a petition for disciplinary action and the parties jointly recommended that the appropriate discipline was indefinite suspension from the practice of law. The court ordered the parties to submit briefs addressing why more severe discipline, including disbarment, was not warranted. The Director then filed a supplementary petition for disciplinary action alleging additional misconduct by respondent and requested a remand to a referee. On February 18, 2005, this court remanded this matter to a referee for a hearing on the supplementary petition for disciplinary action and for a recommendation on the appropriate discipline for the misconduct respondent admitted in the September 21, 2004, stipulation and for any other misconduct found by the referee. This court also ordered the parties to submit memoranda within 14 days addressing whether respondent “poses a substantial threat of serious harm to the public” such that temporary suspension pending final determination of disciplinary proceedings is warranted. Rule 16(d), Rules on Lawyers Professional Responsibility (RLPR). The Director submitted a memorandum supporting temporary suspension under Rule 16, RLPR. Respondent has not filed a memorandum as required by this court. Rule 16(c), RLPR, provides that if a lawyer fails to respond to a motion for temporary suspension, “this Court may enter an order suspending the lawyer pending final determination of disciplinary proceedings.”

We have independently reviewed the file and conclude that based on the misconduct alleged in the petition for disciplinary action that respondent admitted in the September 21, 2004, stipulation, respondent “poses a substantial threat of serious harm to the public” under Rule 16(d), RLPR, and therefore temporary suspension is warranted.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent James P. Mulvahill is temporarily suspended from the practice of law in Minnesota pending final determination of the disciplinary proceedings. Respondent shall comply with the notification requirements of Rule 26, RLPR.

IT IS FURTHER ORDERED that the above-entitled matter is stricken from the June 2, 2005 en banc oral calendar.

BY THE COURT:

/s/Kathleen A. Blatz Chief Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Chester D. SWENSON, a Minnesota Attorney, Registration No. 10789X.
    No. A04-2251.
    Supreme Court of Minnesota.
    May 20, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Chester D. Swenson has committed professional misconduct warranting public discipline, namely, making false and misleading statements to his client and to a county human services child support and collection officer indicating the he was waiting for an arbitration date when in fact he had neither commenced a lawsuit nor made a demand for arbitration within the time allowed by statute in violation of Minn. R. Prof. Conduct 1.3,1.4,1.16(d) and 8.4(c).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation •with the Director in which they jointly recommend that the appropriate discipline is a 60-day suspension effective 30 days from the date of this court’s order, followed by reinstatement to permanent retired status, and payment of $900 in costs and disbursements pursuant to 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Chester D. Swenson is suspended from the practice of law effective 30 days from the filing of this order. Respondent shall pay $900 in costs under Rule 24, RLPR, and comply with Rule 26, RLPR. The reinstatement hearing provided for in Rule 18(a)-(d), RLPR, is waived and respondent may be reinstated to permanent retired status following the expiration of his suspension provided that at least 15 days before the expiration of the suspension period respondent files an affidavit with the Clerk of .Appellate Courts and the Director’s Office establishing .that he has fully complied with Rules 24 and 26, RLPR, and has closed his practice of law.

BY THE COURT:

/s/Russell A. Anderson Associate Justice