author: STRINGER, Justice.

text:
    Joseph WHITENER, Jr., Michael Lee Bower, Jerome Lee Whitener, and Thomas Jacob Whitener, minors, by their guardian ad litem, Lee MILLER, Petitioners/Appellants, v. Ronald DAHL, d/b/a Flowing Well Supper Club, Defendant and Third-Party Plaintiff, Respondent, v. Mahnomen Implement, Inc., et al., Third Party Defendants.
    No. C7-99-2177.
    Supreme Court of Minnesota.
    May 17, 2001.
    Paul F. McEllistrem, Hauer, Fargione & Love, P.A., Minneapolis, for appellants.
    Waldeck and Lind, P.A., Peter Lind, Steven D. Pattee, Minneapolis, for respondent.
    Joseph M. Goldberg & Assoc., Joseph M. Goldberg, Mineapolis, for third party defendants.
   OPINION

STRINGER, Justice.

Appellants, the four minor children of Sandra Bower, assert claims under the Minnesota Civil Damages Act, Minn.Stat. §§ 340A.801.802 (2000), for damages resulting from respondent’s allegedly illegal sale of alcohol to their mother hours before her death in a car accident. Appellants allege that late in the evening of December 5 and in the early morning hours of December 6, 1995, Ronald Dahl, d/b/a Flowing Well Supper Club (respondent), illegally sold their mother intoxicating beverages at a time when she was obviously intoxicated, resulting in her death shortly after 7 a.m. on December 6, 1995 when the car she was driving collided with a vehicle owned by Mahnomen Development, Inc. and driven by Shawn Paul Kologi. A guardian ad litem was appointed for appellants on March 9, 1999. Process was served on respondent on April 1, 1999, more than three years after the death of Sandra Bowers.

Respondent moved for summary judgment on the basis that the action was not commenced within two years after the injury as required by Minn.Stat. § 340A.802, subd. 2 (2000). Appellants argued that their suit was timely because each appellant is younger than age 18 and under the minority-tolling statute, Minn. Stat. § 541.15(a)(1) (2000), the limitations provision for bringing an action under the Civil Damages Act is suspended until one year after a minor child reaches age 18. The trial court denied respondent’s motion for summary judgment but certified as important and doubtful the following question: “Is the statute of limitations, for the cause of action of the minor children pursuant to Minn. Stat. § 340A.801 et seq., tolled pursuant to Minn.Stat. § 541.15?” The court of appeals reversed, granting the motion for summary judgment and holding that the legislature did not intend the limitations period in the Civil Damages Act to be suspended by the statutory minority-tolling provision and answered the certified question in the negative. We agree with the court of appeals and affirm.

The certified question brings into focus an apparent conflict between Minnesota’s minority-tolling statute, Minn.Stat. § 541.15(a), and the Civil Damages Act, Minn.Stat. §§ 340A.801.802. The minority-tolling statute creates a general exception to statutes of limitations for claims of minors, and provides, relevant to our purposes here, that the running of the statute of limitations on a cause of action shall be suspended as to a minor plaintiff until one year after the minor reaches age 18. Minn.Stat. § 541.15(a). The Civil Damages Act creates a right to bring a cause of action for injury or loss caused by an intoxicated person against an entity or person who illegally sold alcohol to the intoxicated person, but contains its own statute of limitations requiring commencement of an action within two years after the date of injury. The interplay of these two statutory provisions is the heart of this appeal and is a question of first impression before this court.

In denying respondent’s motion for summary judgment, the trial court concluded that the minority-tolling statute and the two-year limitations provision in the Civil Damages Act are not irreconcilable. The court ruled that although the legislature has determined that public policy is served by requiring claims to be asserted within a reasonable time period, the general exception for the claims of minors applies because their disability prevents them from bringing suit on their own behalf until they reach majority. The court certified as important and doubtful the question whether the minority-tolling provision in Minn.Stat. § 541.15 applies to an action brought under the Civil Damages Act.

On review, the court of appeals resolved the certified question in the negative. The court cited Cashman v. Hedberg, 215 Minn. 463, 467, 10 N.W.2d 388, 391 (1943), where we first observed that a cause of action for wrongful death was not recognized at common law and that compliance with the conditions imposed by the statute creating the cause of action relate to the right to bring suit in the first instance, not the remedy. We stated:

It is established, however, by the weight of authority, and followed by this state, that, since a wrongful death statute creates a right of action which did not exist at common law and is a condition affecting the right rather than the remedy, ordinarily neither express nor implied provisions which toll general limitation statutes will extend the limitation period in a wrongful death statute in the absence of a saving clause in the latter statute.

Id. We ruled that the court will make no exception to the limitations period provided by a statute granting a statutorily created right unless that statute contains a clause stating that general tolling statutes or other exceptions apply. We then went on to examine legislative intent through such indicia as the time of enactment, statutory language, and legislative history as that history interwove with previous decisions of this court, and concluded that failure to comply with the wrongful death limitations period bars commencement of an action for wrongful death. Id. at 471-73, 10 N.W.2d at 393-94.

The court of appeals acknowledged that the Civil Damages Act is a statutory creation in derogation of the common law and therefore must be strictly construed, citing Bonhiver v. Fugelso, Porter, Simich and Whiteman, Inc., 355 N.W.2d 138, 141 (Minn.1984), and Schulte v. Corner Club Bar, 544 N.W.2d 486, 488-89 (Minn.1996). It cited our recent decision in Ortiz v. Gavenda, where, in the context of a claim made under the Wrongful Death Act, we held that compliance with the limitation period was a condition precedent to maintaining an action. 590 N.W.2d 119, 122 (Minn.1999).

The court then turned to indicia of legislative intent and held that because the minority-tolling statute was enacted long before the Civil Damages Act, the legislature could not have intended the tolling statute to apply to a statutorily-created cause of action not then in existence. The court noted we have long held that because the right to bring an action for wrongful death is granted by statute in derogation of the common law, it is conditioned upon compliance with the statute of limitations contained in the statute creating the right. Cashman, 215 Minn. at 467-72, 10 N.W.2d at 391-93 (affirming Rugland v. Anderson, 30 Minn. 386, 15 N.W. 676 (1883)). In the absence of statutory language to the contrary, we will not infer that the general tolling provisions apply to the wrongful death limitations period. Id. Like an action for wrongful death, a claim brought under the Civil Damages Act is a statutorily-created cause of action in derogation of the common law. Beck v. Groe, 245 Minn. 28, 34, 70 N.W.2d 886, 891 (1955). The court of appeals concluded that the legislature’s failure to take any remedial steps to require application of the minority-tolling statute to the limitations period of the Civil Damages Act after this court first held, in 1883, that the right to maintain an action under the Wrongful Death Act “is such as that section gives and no other,” Rugland, 30 Minn. at 386, 15 N.W. at 676, is further indication that the legislature did not intend to grant minors additional time to bring a civil damages action. Further, the two-year limitations period was added to the Civil Damages Act in 1969 separate from and without reference to the tolling statute.

Finally, the court of appeals rejected appellants’ effort to distinguish Wrongful Death Act claims from Civil Damages Act claims on the basis that wrongful death actions may be brought only by a trustee, while under the Civil Damages Act children may have rights of action in their own names. The court reasoned that this distinction merely provides additional support to previous decisions regarding the inapplicability of general tolling statutes to the Wrongful Death Act, but does not support appellants’ argument that the minority-tolling statute should extend the Civil Damages Act limitations period. The court reversed the trial court and answered the certified question in the negative.

In urging this court to reverse the court of appeals, appellants maintain that the Civil Damages Act creates an individual cause of action in the name of each person sustaining damage and should be read in terms of the important public policy behind Minn.Stat. § 541.15, the minority-tolling statute. In support of their policy argument, appellants refer to principles of statutory construction, specifically, “[w]hen a general provision in a law is in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that effect may be given to both.” Minn.Stat. § 645.26, subd. 1 (2000). Appellants argue that treating the minority-tolling statute as an exception to the Civil Damages Act limitations period would give effect to the language of both statutes, and cite Ostrander by Ostrander v. Cone Mills, Inc., 445 N.W.2d 240, 243 (Minn.1989) (Yetka, J., dissenting), for the proposition that public policy considerations supporting the minority-tolling statute, such as fairness and sufficient time to ascertain the extent of damages suffered by minors, outweigh the public policy considerations behind statutes of limitations generally.

Resolving the conflict between the statutes at issue here is not as easily accomplished as appellants argue. Appellants’ argument simply avoids the issue by concluding that the public policy underlying the minority-tolling statute requires its application to the Civil Damages Act limitations period, despite decades of jurisprudence establishing that the solution lies not in which statute is supported by the more important public policy, if such a determination could even be made, but rather in what the legislature intended in adopting the statutes. See, e.g., Cashman, 215 Minn. at 467-72, 10 N.W.2d at 391-93. We reject appellants’ argument that the certified question can be resolved by favoring the policy of one statute over the other.

Appellants next argue that we should look to the Michigan Supreme Court decision in Lambert v. Calhoun, 394 Mich. 179, 229 N.W.2d 332 (1975), for sound reasoning to reverse the court of appeals. The minor plaintiffs in that case sought recovery from the Michigan Motor Vehicles Accident Claims Fund, a right of action created by statute which provided that the claim must be commenced within three years of the accident. The court considered whether Michigan’s Revised Judicature Act, similar to Minnesota’s minority-tolling statute, permitted the minor plaintiffs to commence an action under the act more than three years after the accident. Lambert, 229 N.W.2d at 332-33. The court first observed that the doctrine conditioning the maintenance of a statutorily-created cause of action upon strict compliance with the statute creating the right evolved as a method for avoiding forum shopping where the limitation periods differed among states, and turned to legislative policy and intent. Id. at 334-37. The court found “scant reason” to differentiate between common law and statutorily-created causes of action in applying the tolling provision. Id. at 337. Importantly however, and distinguishing the statutory history in Lambert from that before us, Michigan’s minority-tolling statute was amended in 1961 to extend to “any action” in contrast to its previous more limiting statutory language “any of the actions mentioned in this chapter.” The court cited the legislative amendment broadening the application of the tolling statute as a basis for concluding that despite the lack of explicit language allowing the application of the general tolling statutes, the legislature intended that the Michigan Motor Vehicles Accident Claims Fund statute of limitations must be applied without exception. Id. at 337.

We disagree that Lambert provides a sound and reasoned analysis to be followed by this court. The legislative history of the two statutory provisions before us does not lead to the same conclusion as reached by the Michigan Supreme Court in Lambert. The minority-tolling statute became a part of Minnesota law in 1849 when by act of Congress the laws of Wisconsin were extended to the territory of Minnesota. Cashman, 215 Minn. at 466, 10 N.W.2d at 390. The Civil Damages Act was adopted in 1911. Despite this court’s decisions in Rugland and Cashman where we held that in the absence of a saving clause the exceptions contained in the general tolling statutes do not apply to the limitations period incorporated into a statutorily created cause of action, Cashman, 215 Minn. at 473, 10 N.W.2d at 391-92; Rugland v. Anderson, 30 Minn. at 386, 15 N.W. at 676, the legislature did not adopt explicit language requiring application of the general tolling provisions when the Civil Damages Act was adopted in 1911, or when it was amended to incorporate a two-year limitations period in 1969. Thus notably absent from this legislative history, unlike the history of the Michigan statute, is an indication of legislative intent that the limitations period in Minn.Stat. § 340A.802 be subject to the minority-tolling provision in Minn.Stat. § 541.15. Indeed it appears to be just the opposite. In the absence of explicit language allowing the application of the minority-tolling statute to the two-year limitations provision in the Minnesota Civil Damages Act, the minority tolling statute does not apply to a civil damages action brought by minors.

Appellants next challenge the court of appeals ruling on the basis that the Wrongful Death Act is fundamentally different from the Civil Damages Act because a child does not have a cause of action under the wrongful death statute and challenge the court of appeals ruling to the contrary. The statute provides that an action for wrongful death must be commenced by a trustee who, by definition, must be “suitable and competent.” Minn. Stat. § 573.02, subd. 3 (2000). Appellants argue that a child could not qualify as a trustee because of the legal disability associated with being a minor and therefore the question whether the minority-tolling statute suspends the limitations period provided in the wrongful death statute could not arise. Appellants argue that where the legislature intended to limit the application of the minority-tolling statute it has done so explicitly and that if this court finds an implicit exception to the minority-tolling statute here, it will result in a bizarre patchwork of limitation periods for minors and their guardians to navigate.

While the distinction between the Wrongful Death Act and the Civil Damages Act suggested by appellants no doubt exists, it is of no significance to the ultimate issue here, as failure to comply with the limitations period prescribed by a statutorily created cause of action bars the right to bring the action, irrespective of who brings it. Further, the legislature could hardly have intended such a profound difference as would occur if, as appellants argue, application of the tolling statute turned on whether a guardian ad litem or a trustee is appointed. See Cashman, 215 Minn. at 467, 10 N.W.2d at 391 (describing the fundamental difference between statutorily-created causes of action and common law causes of action). Appellants’ concern that bizarre and inconsistent results will occur if the minority-tolling statute applies in a common law cause of action but not in a statutorily created cause of action is misplaced. The simple answer is that it is not unusual for the right to recover for an injury to depend upon the cause of action alleged. As to the matter before us, where the cause of action did not exist at all under the common law, if the legislature determines that in the best interests of the state and consistent with public policy such a cause of action should be created, the legislature clearly has the authority to set the conditions for bringing the action. The limitations period may well be different from the limitations period for a common law claim, but as we have often pointed out, that policy argument is properly presented to the legislature, not to this court. See, e.g., McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542-43 (Minn.1983). We need look no further than the minority-tolling statute itself for proof that the legislature certainly is capable of and knows how to blend the statute with other causes of action. It did not do so with respect to the Civil Damages Act and the minority-tolling statute.

As the Civil Damages Act is a creature of statute and has no common law counterpart, there would be no basis for appellants’ cause of action in its absence, and it must be strictly construed. Bonhiver, 355 N.W.2d at 141; Beck v. Groe, 245 Minn. at 34, 70 N.W.2d at 891. In the context of the exclusively statutory cause of action arising under the Wrongful Death Act we have held that in the absence of specific language in the statute creating the cause of action, “neither express nor implied provisions which toll general limitation statutes will extend the limitation period.” Cashman, 215 Minn. at 467, 10 N.W.2d at 391. In Ortiz we held that where the plaintiff failed to bring an action for wrongful death as the duly-appointed trustee for her husband’s next of kin within three years, equitable principles of relation back were inapplicable because a suit commenced without the appointment of a trustee was a nullity. 590 N.W.2d at 124. We ruled that the deficiency could not be ignored as “too technical” because the

period fixing the time within which the right of action for wrongful death may be exercised is not an ordinary statute of limitations. It is considered a condition precedent to the right to maintain the action, and the lapse of such period is an absolute bar. It conditions the right.

Id. at 122 (quoting Berghuis v. Korthuis, 228 Minn. 534, 536, 37 N.W.2d 809, 810 (1949)). Finally, as to respondent’s argument that a claim brought under the Civil Damages Act is a “special case” that the legislature has carved out as an exception to the general limitations provisions such as the minority-tolling statute, it may well be that the legislature intended to include a statutory cause of action with built-in limitation periods as a “special case” but the statute provides no definition of that term and we decline to explore its meaning where there is ample indicia of legislative intent to conclude that the minority-tolling statute was not intended to be an exception to the Civil Damages Act limitations provision.

We add as a concluding note that while there are compelling reasons for suspending the limitations period on Civil Damages Act claims belonging to children until the claimants reach majority, and similarly legitimate concerns about stale claims as well, it is not up to this court to create a right in appellants to bring a civil damages claim after the limitations period has expired where longstanding principles of statutory construction and clear legislative intent indicate that none now exists.

The certified question is answered in the negative.

Affirmed.

      . Minnesota Statutes § 340A.801, subd. 1 (2000) provides that:
      A spouse, child, parent, guardian, employer, or other person injured in person, property, or means of support, or who incurs other pecuniary loss by an intoxicated person or by the intoxication of another person, has a right of action in the person's own name for all damages sustained against a person who caused the intoxication of that person by illegally selling alcoholic beverages. All damages recovered by a minor under this section must be paid either to the minor or the minor's parent, guardian or next friend as the court directs.

      . Minnesota Statutes § 541.15(a) (2000) provides:
      Except as provided in paragraph (b), [creating a cap on the suspension of the statute of limitations for actions relating to medical malpractice] any of the following grounds of disability, existing at the time when a cause of action accrued or arising anytime during the period of limitation, shall suspend the running of the period of limitation until the same is removed; provided that such period, except in the case of infancy, shall not be extended for more than five years, nor in any case for more than one year after the disability ceases: (1) that the plaintiff is within the age of 18 years * * *.

        .See Minn.Stat. § 340A.802, subd. 2 ("No action may be maintained under section 340A.801 unless commenced within two years after the injury.”).

      . Revised Judicature Act of 1961, 1961 Mich. Pub. Acts No. 236, ch. 58, § 600.5851, 416, 592 (codified at Mich. Comp. Laws Ann. § 600.5851(1) (2000)).

      . See Judicature Act of 1915, 1915 Mich. Pub. Acts No. 314, ch. IX, § 15, 3, 60.

      . Act of April 18, 1911, ch. 175, 1911 Minn. Laws 221, 221.

      . Act of July 1, 1969, ch. 952, § 1, 1969 Minn. Laws 1855, 1855-56.

      . That the legislature knew how to do this is without question, as in 1986 the minority-tolling provision was amended to cap the period at seven years in actions relating to malpractice against a health care provider. Act of Aug. 1, 1986, ch. 455, § 79, 1986 Minn. Laws 840, 877-78 (codified at Minn.Stat. § 541.15(b) (2000)).

      . See Minn.Stat. § 541.15(b) ("In actions alleging malpractice, error, mistake, or failure to cure, whether based on contract or tort, against a health care provider, * * * [minority] suspends the period of limitation until the disability is removed. The suspension may not be extended for more than seven years, or for more than one year after the disability ceases.”).

      . See Minn.Stat. § 541.15(b) (capping the time an action relating to medical malpractice can be suspended for reasons of disability at seven years).

      . For example in Wallin v. Letourneau we held that the notice requirement in Minn.Stat. §§ 340A.801-.802, subd. 2, was not met when notice was not served on an officer or registered agent, even though it was served on a bartender. Wallin v. Letourneau, 534 N.W.2d 712, 715 (Minn.1995) ("For the Wal-lins to have satisfied the written-notice requirements of the statute, they would have had to serve the notice-of-injury letter on a registered agent of Leaders’ Enterprises, or upon an officer of Leaders’ Enterprises, or upon the Secretary of State.”). General knowledge of drinking and a subsequent accident is not sufficient notice of a dram shop claim:
      Respondents acknowledge knowing that Schulte died in a snowmobile accident after he had been drinking 'sociably' in their respective bars, but argue that this was not enough to give them reasonable notice of a possible dram-shop claim. We agree. * * * We conclude that there must be something more than these two points of information to reasonably put a licensee on notice of a possible claim for purposes of the actual notice requirement in Minn.Stat. § 340A.802.

        Schulte v. Corner Club Bar, 544 N.W.2d at 489.

      .Respondent argues that the language of the general tolling statute indicates that the legislature intended that the minority-tolling statute not toll the Civil Damages Act limitations period. "Actions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues, except where a different limitation is prescribed by the Uniform Commercial Code or, in special cases, by other statute * * Minn.Stat. § 541.01 (2000) (emphasis added).


source: Caselaw Access Project

author: CRIPPEN, Judge

license: Public Domain

text:
    SOO LINE RAILROAD COMPANY, Relator, v. CITY OF MINNEAPOLIS, Respondent.
    No. CX-00-1449.
    Court of Appeals of Minnesota.
    May 8, 2001.

      Carolyn V. Wolski, Diane P. Gerth, Leonard, Street and Deinard, Minneapolis, MN, (for relator).
    Jay M. Heffern, Minneapolis City Attorney, Carol Lansing, Assistant City Attorney, Minneapolis, MN, (for respondent).
    Considered and decided by HARTEN, Presiding Judge, CRIPPEN, Judge, and HANSON, Judge.
   OPINION

CRIPPEN, Judge

Although the heritage-preservation designation of a northeast Minneapolis roundhouse does not affect relator Soo Line Railroad Company’s present use of the building, relator contends that federal railway-operations law preempts the designation. Because there is no conflict that requires a preemption determination, we affirm the city’s designation.

FACTS

Relator owns and operates a rail yard in northeast Minneapolis. In April 1998, relator applied for a permit to demolish a roundhouse in preparation for selling the property to commercial developers. The city’s heritage preservation commission, which reviews all demolition permits, held public hearings in August and September of 1998 to determine whether the roundhouse should be designated for heritage preservation. Many citizens testified to the significance and value of the roundhouse, but relator furnished evidence that the original structure has been changed significantly over the years and that attempts to incorporate the structure in development plans have proven cost prohibitive. The heritage preservation commission voted to recommend designation to the planning commission.

Planning commission staff studied the roundhouse and issued a report recommending that the building not be designated because it found the structure economically unsound. Despite that recommendation, and after holding a public hearing on the issue, the planning commission recommended designation to the city council in October 1998. The Minneapolis City Council then held public hearings in November 1998, which were continued until June 2000. By the time the city council voted on designation, neighborhood groups and concerned citizens had identified two viable development proposals that made use of the roundhouse. But by then, relator had taken the property off the market and returned the roundhouse to railway use. Relator did not testify at the June hearings, and the Minneapolis City Council approved a resolution designating the roundhouse for local heritage preservation on June 23, 2000.

Relator’s preemption claim comes before us on a writ of certiorari permitting its challenge of the designation.

ISSUE

Does the Interstate Commerce Commission Termination Act preempt the Minneapolis City Council’s authority to designate property for historic preservation?

ANALYSIS

1. Preemption

“The preemptive effect of a statute involves a question of law, which this court reviews de novo.” In re Speed Limit for Union Pac. R.R. Through Shakopee, 610 N.W.2d 677, 682 (Minn.App.2000) (citation omitted). When a state law conflicts with or frustrates federal law, the state law must give way. U.S. Const. art. VI, cl. 2; CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387 (1993).

Relator does not refute the assertion that the heritage designation has no effect on its present use of the roundhouse. Thus, we conclude that there is no occasion here to examine in depth the content of relevant preemption law. And the 1998 federal decision involving these same parties has little bearing on the issue in this case. In the 1998 decision, the federal district court found that the city’s actions in withholding a demolition permit from the railway were preempted by the Interstate Commerce Commission Termination Act because they interfered with the railway’s actual plan, not a potential or future plan, related to the movement of property by rail. Soo Line R.R. v. City of Minneapolis, 38 F.Supp.2d 1096, 1101-02 (D.Minn.1998). For this appeal, the railroad wants to be free of the future need to assert preemption. Stated differently, it wants an advisory opinion on possible future disputes.

As respondent points out, “whether a particular land use restriction interferes with interstate commerce” or is preempted by federal law “is a fact-bound question.” Borough of Riverdale Petition for Declaratory Order, STB Finance Docket No. 33466, 1999 WL 715272, at *6 (I.C.C. Sept. 9, 1999). The court “must proceed from the presumption that the historic police powers of the state are not to be superseded by a federal act unless preemption is found to be ‘the clear and manifest purpose of Congress.’ ” Burlington N. Santa Fe Corp. v. Anderson, 959 F.Supp. 1288, 1292 (D.Mont.1997) (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992)) (citation omitted).

Not all state and local regulations that affect interstate commerce fail. Only those that “conflict with” federal regulation, “interfere with” federal authority, or “unreasonably burden” interstate commerce are preempted.
In short, where the state or local law can be applied without interfering with the federal law, the courts have done so.

King County Petition for Declaratory Order, STB Finance Docket No. 32974, 1996 WL 545598, at *4 (I.C.C. Sept. 25, 1996), aff'd sub nom. City of Auburn v. United States, 154 F.3d 1025 (9th Cir.1998), cert. denied, 527 U.S. 1022, 119 S.Ct. 2367, 144 L.Ed.2d 771 (1999).

At the time of designation, relator returned the roundhouse to operating use and stated it had no “plans to alter or demolish the roundhouse.” An anticipatory determination of preemption conflicts especially with the nature of preemption decisions — a fact-specific examination of the alleged interference with operations created by public action premised on local law. More practically, there is no authority suggesting that the possible future burden of asserting preemption outweighs the risk of injustice in either a decision that (a) precludes all future applications of a local law to railroad property, or (b) unwisely attempts to imagine the actual circumstances of specific, future local government decisions and makes in advance a preemption decision for any or all of them.

Relator relies on the King County case as authority for the proposition that preemption can be declared for “potential” interference, but King County did not deal with a potential conflict. To the contrary, it involved specific railroad plans for repair and improvement and the then-present assertion of local government “permitting authority” that included the power to deny the railroad’s authority to proceed with its repair and improvement proposals. Those circumstances called for an immediate determination of the conflict between railroad plans and local-law standards. Id. In contrast, relator’s appeal does not involve a railroad plan — or even evidence of a likely or possible plan — for repair or improvement of the roundhouse. More importantly, the heritage designation does not currently involve the assertion of city authority to deny or limit improvements. The Surface Transportation Board in King County expressly noted the need to examine the particular circumstances of a preemption claim. Id. (noting the need for a “thorough analysis” of the ordinance and its requirements to determine preemption).

The Riverdale case, also cited by relator, is confined to building permits and land-use regulation. Borough of Riverdale Petition for Declaratory Order, 1999 WL 715272, at *1. Like the King County case, the Surface Transportation Board declined to determine the preemptive effect of the local land-use restrictions because the board lacked sufficient facts to determine the issue. Id., at *6. (“[A]s we know few specifics about the buffer issue, we cannot say at this time whether such a requirement, if applied in such a way as not to discriminate against railroads, would significantly interfere with NYSW’s railroad operations and interstate commerce.”). The Surface Transportation Board also expressly reserved judgment on other specific zoning regulations the parties might bring before it for preemption determinations. Id. at *7 (“With regard to the kinds of inspections that are permissible on property owned or used by interstate railroads, the potential for interference depends on the nature of the action by the state or local government and the effect on rail transportation and Board remedies * * *. [W]e cannot go beyond these general principles here without more information about particular inspection and similar requirements that may be at issue in this case.”).

In sum, we decline to view speculative conflicts as present interference permitting us to determine the preemptive effect of the Interstate Commerce Commission Termination Act in this case. “[T]he court does not issue advisory opinions, nor decide cases merely to establish precedent.” In re Schmidt, 443 N.W.2d 824, 826 (Minn.1989) (citation omitted).

2. Other Issues

Relator contends that the heritage designation is void because the heritage preservation commission succeeded in getting the designation only by withholding approval of a demolition permit, a power it was not given by statute or ordinance. Although respondent’s ordinances prohibit issuance of permits for moving or demolition of a building without commission approval, Minneapolis, Minn., Code of Ordinances §§ 115.50(d), 117.30(d) (2000), the commission’s enabling ordinance gives it authority to review permits only for a building or structure already designated for heritage preservation. Id. § 34.60(a) (2000).

Relator’s argument may raise questions regarding the city’s dealings with relator’s demolition-permit application, but that public action is not in question on this appeal. And relator does not question whether the ensuing designation process was conducted according to applicable ordinances, whether the city had statutory authority for such designation, or whether the commission proceeded with authority duly delegated by the city. Moreover, relator has not identified, and we have not discovered, a reason to suggest that the manner in which the matter first came to the commission’s attention impaired the legality of the process.

Relator also argues that the record does not contain substantial evidence to support the city’s conclusion that the roundhouse satisfies the heritage-preservation criteria. Our task on review of a quasi-judicial decision is to determine whether the city council “erred as a matter of law, issued a decision unsupported by substantial evidence, or acted arbitrarily or capriciously.” In re Quantification of Envtl. Costs, 578 N.W.2d 794, 799 (Minn.App.1998) (quotation and citation omitted), review denied (Minn. Aug. 18, 1998). Substantial evidence supports the commission’s designation in this case.

Numerous concerned citizens and neighborhood organizations testified to support designation at public hearings held in August, September, October, and November of 1998, and at the hearing in June 2000. The Minneapolis City Planning Department report states that the roundhouse is “a major remnant of the once vibrant railroad industry of Minneapolis” and further explains the importance of the roundhouse:

The City’s grain industry would not have prospered without the transportation piece. The roundhouse was once the epicenter of the railroad repair yards and much of the population of Northeast Minneapolis depended on the Shoreham Yards for employment for almost a century.

The report also states that the “roundhouse is the only example of this building type in Minneapolis.” Id. Furthermore, the State Historic Preservation Officer found that the roundhouse “exemplifies the broad trends of economic and social history.” On this record, there is substantial evidence to support the city’s conclusion that the roundhouse is significant under two of the primary designation considerations: (1) as a structure that “exemplifies the broad trends of economic and social history,” and (2) as a structure that displays “distinguishing characteristics of an architectural type inherently valuable for study.” Finally, the two viable development proposals permit a finding that the roundhouse is economically sound. Thus, the designation is not arbitrary or capricious.

DECISION

Because the heritage-preservation designation of the roundhouse does not presently interfere with railway operations, we decline to determine the preemptive effect of the Interstate Commerce Commission Termination Act. Because the city followed the proper procedures for designating the roundhouse for heritage preservation and because the designation is supported by substantial evidence, we affirm.

Affirmed.

      . The city’s historical-preservation-designation proceedings are quasi-judicial in nature and reviewable by this court on a writ of certiorari. Handicraft Block Ltd. P'ship v. City of Minneapolis, 611 N.W.2d 16, 24 (Minn.2000).


author: DANIEL F. FOLEY, Judge

text:
    In re the Marriage of Kimberly Ann DUFFNEY, Petitioner, Appellant, v. Scott Anthony DUFFNEY, Respondent.
    No. C7-00-1439.
    Court of Appeals of Minnesota.
    May 8, 2001.

      Patricia A. Aanes, Erickson and Pearson Law Offices, Brainerd, MN, (for appellant).
    Jeffrey J. Haberkorn, Haberkorn & Sol-ien, Ltd., Aitkin, MN, (for respondent).
    Considered and decided by PETERSON, Presiding Judge, SHUMAKER, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge

In this child support modification proceeding, appellant Kimberly Ann Duffney alleges the district court (1) misapplied the Hortis/V alentó formula for calculating support in joint physical custody cases by miscalculating the amount of time each party had the children, and (2) understated respondent Scott Anthony Duffney’s income.

FACTS

Based on a marital termination agreement and evidence presented at a hearing, the district court dissolved the parties’ marriage by judgment and decree dated December 10, 1998. The parties were awarded joint physical and legal custody of their three minor children. The district court found appellant’s net monthly income, as defined in the child support guidelines, to be $922 and respondent’s net monthly income to be $1,874. Respondent was ordered to pay appellant $300 per month in child support, $200 per month in day care expenses, and $64.87 per month for clothing and extra-curricular activities for a total of $564.87 per month. These awards were not consistent with strict application of the child support guidelines or the Hortis/Valentó formula.

On behalf of appellant, Crow Wing County filed a motion January 31, 2000, to modify the child support based on appellant’s increased income. At the hearing, appellant attempted to show that the children spend the majority (65%) of their time with her and that respondent should pay child support accordingly, based on the Hortis/Valento formula. Appellant tracked custody over a six-month period, which included a one-week vacation appellant took with the children. Respondent did not exercise his vacation time during the six-month period. The record shows some disagreement between the parties as to the custody tracking.

Respondent admitted he had income in 1999 from logging trees on his property. The proceeds, however, were a one-time occurrence and were used to pay off various loans and part of the marital settlement. Respondent also earns between $200-$300 a year from selling hay stump-age off the property, and pays $441 monthly child support for another child from a previous relationship.

The magistrate found that (1) the parties shared custody 60/40; (2) appellant’s net monthly income is $1,687.93 with total expenses of $1,906.92, covering herself and the three children; and (3) respondent’s net monthly income is $2,032.39 with expenses of $3,037 .28. Because of the 80% increase in appellant’s income since the dissolution, and an anticipated decrease in child care costs, the magistrate lowered respondent’s child support payment to $191, pursuant to the Hortis/Valento formula. Respondent was also ordered to pay $30 per month towards child care expenses and $64.87 towards the children’s clothing and activities.

Both parties filed motions for review in the district court. Each party challenged the magistrate’s determination of the other’s net monthly income. The district court denied appellant’s request for an amended order and remanded the case to the magistrate for identification and resolution of possible mathematical and typographical errors. The magistrate found no errors.

ISSUES

1. Did the magistrate clearly err in determining that the children resided with appellant 60% of the time and respondent 40% of the time?

2. Did the magistrate clearly err in determining respondent’s income?

ANALYSIS

Whether to modify child support is a decision afforded discretion and a reviewing court will reverse an exercise of that discretion only when the resolution of the question “is against logic and the facts on the record.” Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn.1986) (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984)). When an award of child support has a “reasonable and acceptable basis” in the facts on record, this court must affirm. Kirby v. Kirby, 348 N.W.2d 392, 394 (Minn.App.1984) (citation omitted). The findings of fact underlying this discretionary decision regarding whether to modify child support will not be set aside on appeal unless they are clearly erroneous. Minn.R.Civ.P. 52 .01; see Vangsness v. Vangsness, 607 N.W.2d 468, 472, 474 (Minn.App.2000) (discussing proper method for challenging findings of fact).

I. Custody Determination

Appellant argues that the magistrate’s finding that she has the children 60% of the time, rather than 65.49%, is not supported by the facts. Under the Hor-tis/Valento formula, appellant claims that she is therefore not receiving the correct amount of child support from respondent.

Appellant recorded custody from April through September 1999, showing that she had the children a total of 120.5 days and respondent had the children 63.5 days. Respondent did not fully agree with appellant’s records and stated in his affidavit that he spent eight more days with the children and appellant spent nine fewer days with the children than appellant’s records reflect. In addition, during this period appellant spent seven extra days with the children by using her vacation days. Respondent did not use any vacation days during that time. The original order required 60/40 shared custody. Respondent testified at the hearing that the only arrangements that changed on a permanent basis were the children being with him beginning Tuesday after school until Wednesday morning rather than beginning Wednesday after school until Thursday morning. Otherwise, the custody schedule remained virtually the same.

After deferring to the magistrate’s ability to judge credibility, and upon viewing all the evidence and' testimony in the light most favorable to the magistrate’s finding, appellant has not shown the 60/40 custody split to be clearly erroneous. The magistrate used that finding of 60/40 custody split to determine the parties’ child support obligations under the Hortis/Valento formula and there is no dispute that the district court’s arithmetic in applying the formula is correct. Thus, because the finding was not clearly erroneous, we conclude the magistrate did not abuse his discretion in computing the child support obligation.

II. Respondent’s Income

Appellant argues that the magistrate erred by not including respondent’s income from hay stumpage and from the one-time sale of timber from his property. She asserts that because respondent earned and continues to earn monies from property that was once marital, the children would have benefited from the income had the parties remained married. Therefore, she maintains that the children should benefit now by including the logging and hay stumpage profits as part of respondent’s income. Appellant claims, based on case law, that the magistrate should have considered income derived from assets received as part of property settlements when determining the obligor’s income for the purposes of child support. See Maxson v. Derence, 384 N.W.2d 583, 585 (Minn.App.1986) (district court “should consider payments resulting from the stipulated property division to calculate a party’s ‘income’ for purposes of the child support guidelines”) (citation omitted); see also Tell v. Tell, 383 N.W.2d 678, 686 (Minn.1986) (financial resources includes “distribution of marital property to a spouse pursuant to a dissolution decree”). Appellant asserts that a portion of respondent’s income, derived from the one-time sale of logs from the property he received in the settlement, which he then used to pay appellant her portion of the marital settlement, should be considered income for purposes of determining respondent’s child support obligation.

This court will affirm a determination of net income for purposes of calculating child support “if it has a reasonable basis in fact.” Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn.App.1987) (citation omitted). Income is “any form of periodic payment to an individual.” Minn.Stat. § 518.54, subd. 6 (2000). The examples of periodic payments set out in the definition are similar to each other in that they are regular payments to an individual in somewhat fixed intervals (i.e., wages, workers’ compensation, unemployment benefits, annuity, retirement benefits, etc.). Id. None of these types of payments are one-time occurrences. This court has stated that a key aspect of “income” is its “periodic” nature. Generally, if a payment is periodic, it is income. Herrley v. Herrley, 452 N.W.2d 711, 714 (Minn.App.1990). In addition to the child support guidelines, the court must also consider “all earnings, income, and resources of the parents, including real and personal property.” Minn. Stat. § 518.551, subd. 5(c) (2000). “The exact parameters of what may or may not be used to satisfy or set a support obligation have not been fully determined.” Darcy v. Darcy, 455 N.W.2d 518, 521 (Minn.App.1990).

Appellant’s reliance on Maxson and Tell is misplaced. Both cases are distinguishable from this case in that they both relate to monthly payments received from various sources as opposed to a onetime payment. In Tell, the court included monthly property settlement payments as a portion of a party’s income in determining support obligations. Tell, 383 N.W.2d at 686. In Maxson, the income at issue was a monthly contract-for-deed payment. Maxson, 384 N.W.2d at 585. In this case, however, respondent does not receive a monthly income from logging his property. What he earned from logging was used to pay appellant the balance of her share of the settlement and to pay off other loans. Further, under appellant’s argument that money from a property settlement should be used in determining income, appellant would then have to include as part of her income the $10,000 respondent paid her from the logging for her share of the dissolution settlement.

Appellant’s argument that the income from hay stumpage should be included may be valid. Monthly income of $20 $25 from the stumpage, however, is de minimis and does not warrant a remand. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn.App.1985) (refusing to remand for de minimis technical error); see also Minn. R.Civ.P. 61 (harmless error to be ignored).

The magistrate did not err in excluding the monies from the logging and hay stumpage as part of respondent’s income for purposes of determining a change in circumstances warranting a modification of child support.

DECISION

The record adequately supports the magistrate’s determination regarding the amount of time the parties spend with their children, as well as the exclusion from respondent’s income of a one-time receipt of funds and other amounts that would have an insignificant impact on respondent’s child support obligation. Therefore, there was no abuse of discretion in the magistrate’s application of the Hortis/Valento formula.

Affirmed.

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

      . The supreme court recently ruled that the application of the Hortis/Valento child-support formula in sole physical custody cases is a deviation from the child support guidelines and cannot occur without the findings required by Minn.Stat. § 518.551, subds. 5(c), 5(i) (1998). Rogers v. Rogers, 622 N.W.2d 813, 814 (Minn.2001). Additionally, in footnote 19, the court stated that the propriety of applying the Hortis/Valento formula to joint physical custody cases was not before the court and declined to address whether use of the Hortis/Valento formula was proper in that context. Id. at 821. Here, the parties and the magistrate assumed (without arguing) that use of the Hortis/Valento formula was proper in this joint physical custody case. We decline to comment on the propriety of that assumption. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (appellate courts generally address only issues presented to and decided by the district court).


author: SHUMAKER, Judge

text:
    STATE of Minnesota, Respondent, v. Joel William SCHRUPP, Appellant.
    No. C3-00-1566.
    Court of Appeals of Minnesota.
    May 15, 2001.

      Mike Hatch, Attorney General, St. Paul, MN; and Kenneth N. Potts, Orono City Attorney, Wayzata, MN, for respondent.
    Samuel A. McCloud, Kelly Vince Grif-fitts, Shakopee, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, RANDALL and PETERSON, Judges.
   OPINION

SHUMAKER, Judge

The district court ruled that an investigatory stop of appellant’s motor vehicle was legal and denied appellant’s motion to suppress the fruits of that stop. Appellant challenges the district court’s ruling on the ground that the officer lacked an articula-ble suspicion of illegal activity. We reverse.

FACTS

In the district court, the parties stipulated that a police officer, stopped at an intersection in Orono, watched appellant Joel William Schrupp drive properly through the intersection. The officer pulled behind Schrupp’s vehicle and began to follow it. After a short distance, Schrupp turned into a private driveway “so quickly” that the officer believed that Schrupp might have been trying to avoid him. The officer moved, to a position from which -he could see Schrupp’s vehicle in the driveway. Schrupp spoke with the property owner, and while he did so the officer ran a check on the car’s registration and learned that it was registered to a woman who lived in Glencoe, “not a local address.”

About three minutes after entering the driveway, Schrupp pulled back onto the road and continued to drive. The officer made an investigatory stop and learned that Schrupp’s driver’s license had been cancelled. The officer arrested him for driving after cancellation of his license.

At his omnibus hearing, Schrupp moved to suppress the evidence of the cancellation of his license on the ground that the stop was illegal. The district court denied the motion. After a trial on stipulated facts, the court found Schrupp guilty of the charge. Schrupp appealed.

ISSUE

A police officer saw a male motorist turn his vehicle quickly from the road into a driveway, where the motorist spoke briefly to a person in the driveway. The officer learned that the vehicle was registered to a female in another city. Concluding that the motorist was trying to avoid him, the officer made an investigatory stop. Did the officer have a reasonable basis under the Fourth Amendment for the stop?

ANALYSIS

We review the question of the legality of an investigatory stop de novo and underlying factual findings under a “clearly erroneous” standard. State v. Britton, 604 N.W.2d 84, 87 (Minn.2000).

This case occupies a narrow category of criminal matters, namely, those in which a law enforcement officer stops a motor vehicle without a warrant, without probable cause to arrest an occupant, and -without observing any overt illegality, but with the beliefs that the driver is engaging in suspicious behavior and that further investigation is necessary. This category of cases is also limited to those in which the sole challenge is directed to the basis for the stop, thus focusing the judicial inquiry on whether the officer’s action was justified at its inception.

The foundation for the appropriate judicial inquiry is described in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a case involving an investigatory stop of a person traveling on foot. Tory noted that investigatory stops implicate the Fourth Amendment to the Constitution of the United States and that the Fourth Amendment is made applicable to the states by the Fourteenth Amendment. Id. at 8, 88 S.Ct. at 1873. The Minnesota Supreme Court has held that the authority of Terry v. Ohio applies to investigatory motor vehicle stops. State v. McKinley, 305 Minn. 297, 303, 232 N.W.2d 906, 910 (1975).

The Fourth Amendment protects a person’s right to be free from unreasonable governmental intrusion. Terry, 392 U.S. at 9, 88 S.Ct. at 1873. Thus, “the central inquiry * * * [is] the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Id. at 19, 88 S.Ct. at 1878-79. In examining the question of the reasonableness of an investigatory stop, we may properly consider the governmental interest of apprehending criminals:

One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.

Id. at 22, 88 S.Ct. at 1880 (emphasis added).

There is no fixed or definitive test for the reasonableness of an investigatory stop. Id. at 21, 88 S.Ct. at 1879. Rather, we must balance the need for the stop against the invasion the stop entails. Id. There can be no rational disagreement that an investigatory stop is necessary when the totality of the circumstances points to some observable “unusual conduct * * * [that leads the officer] reasonably to conclude in light of his experience that criminal activity may be afoot.” Id. at 30, 88 S.Ct. at 1884. But the officer must articulate specific facts that, “taken together with rational inferences from those facts,” reasonably justify the stop. Id. at 21, 88 S.Ct. at 1880. The officer need not be absolutely certain of the possibility of criminal activity, but he cannot satisfy the test of reasonableness by relying on an “inchoate and unparticularized suspicion or ‘hunch .’ ” Id. at 27, 88 S.Ct. at 1883. Nor will the officer’s subjective good-faith belief suffice. Id. at 22, 88 S.Ct. at 1880.

The law approves “legitimate and restrained investigative conduct undertaken on the basis of ample factual justification.” Id. at 15, 88 S.Ct. at 1876-77. The proffered factual and inferential bases for the stop are assessed against an objective standard formulated in this question: “[W]ould the facts available to the officer at the moment of the seizure * * * warrant a [person] of reasonable caution in the belief that the [stop] was appropriate?” Id. at 21-22, 88 S.Ct. at 1880 (quotation omitted).

For guidance in how that question might be answered, we can look to Terry. There a detective with 39 years of police experience was patrolling a downtown area where he had been assigned to watch for shoplifters and pickpockets. Id. at 5, 88 S.Ct. at 1871. In mid-afternoon, he saw two men, with whom he was not familiar, standing on a corner. Id. He looked at them but they did not make eye contact. Id. The detective moved to a store entrance and established an observation post. Id. at 5, 88 S.Ct. at 1871-72. He saw one man leave the other, walk past some stores, look in a store window, continue down the street, turn around and walk past the same store and again look in the window. Id. at 6, 88 S.Ct. at 1872. The man then rejoined his companion and the two spoke briefly. Id. Then the second man engaged in the same movement pattern as the first. Id. The men “repeated this ritual alternately between five and six times apiece — in all, roughly a dozen trips.” Id. Eventually, a third man joined them and spoke with them. Id. When the third man left, the other two “resumed their measured pacing, peering and conferring” and then walked off in the direction the third man had taken. Id. One of them was Terry.

These were the detective’s articulated facts. He concluded that the conduct was unusual and supported an inference that the men were “casing” a store and preparing to rob it. Id. He followed the men, stopped them, patted the outside of Terry’s clothing and felt a pistol in his coat pocket. Id. at 6-7, 88 S.Ct. at 1872.

The Terry court noted that much of the behavior of the men was not unusual or suspicious, but rather was indicative of people waiting on the corner for someone and strolling and window-shopping while they waited. Id. at 22-23, 88 S.Ct. at 1881. However, at some point the conduct became unusual and suspicious because of its frequency and repetitive pattern. Id. The conduct then became consistent with a procedure that this trained detective knew from his vast experience to be casing. At that point, the detective believed that there was a possibility of criminal activity afoot and his intrusion into the men’s freedom of movement was reasonable. Surely, any person of reasonable caution would also conclude that the unusual behavior pointed to the possibility of criminal activity. We also note that it is apparent that the detective had a “hunch” from nearly the outset that the men might be involved in nefarious activity, but he exercised restraint and did not act on his inchoate suspicion.

Thus, Terry provides a template for answering the question of whether an investigatory stop is reasonable. Articula-ble, objective facts that, by their nature, quality, repetition, or pattern become so unusual and suspicious that they support at least one inference of the possibility of criminal activity, are what will be necessary to justify an investigatory stop of a motor vehicle. Such facts existed in both State v. Johnson, 444 N.W.2d 824 (Minn.1989), and State v. Petrick, 527 N.W.2d 87 (Minn.1995), cases the district court cited in denying Schrupp’s motion. In each case, the driver of a motor vehicle engaged in unusual furtive and evasive conduct in the presence of law enforcement officers. Such unusual conduct constituted indicia of mens rea that supported at least one inference of the possibility of criminal activity, most likely driving without a license or driving while impaired.

Noted in Johnson are some types of motorist behavior that are not unusual and that standing alone will not provide justification for an investigatory stop. Merely watching the police “to avoid some minor misstep, such as a minor traffic violation,” hesitating to pass a police car, appearing nervous or looking away from a police car, or quickening one’s pace on seeing a police car are not unusual behaviors. Johnson, 444 N.W.2d at 826. The unusual behaviors that will justify a stop are like the conduct of the men in Terry:

By contrast, such stops have been upheld when the individual made repeated efforts to avoid police contact, when he engaged in a combination of several different possibly furtive actions, and when the person engaged in a rather extreme means of avoidance such as high-speed flight.

Id. (citation omitted).

Turning to the instant case, the officer’s articulated facts were that a man was driving a car registered to a woman; the owner’s address was in a city other than where the car was being driven; and the driver pulled quickly into a driveway and shortly afterward returned to the road. The officer concluded that the driver “might be trying to avoid me,” and on that basis the officer made an investigatory stop. The officer did not identify any inference of the possibility of criminal activity.

We hold that at the inception of the stop the officer’s suspicion was inchoate and that no facts had ripened into the category of unusual behavior from which a reasonable inference of the possibility of criminal behavior could be drawn. Thus, the stop was an unreasonable intrusion into Schrupp’s freedom of movement in violation of the Fourth Amendment.

DECISION

The district court erred in denying appellant’s motion to suppress the fruits of an unlawful investigatory stop.

Reversed.


author: MARING, Justice.

text:
    2001 ND 85
    Gregory James DAVIS, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20000335.
    Supreme Court of North Dakota.
    May 1, 2001.

      Gregory James Davis (submitted on brief), pro se, Bismarck, petitioner and appellant.
    Wade L. Webb (submitted on brief), Assistant State’s Attorney, Fargo, for respondent and appellee.
   MARING, Justice.

[¶ 1] Gregory James Davis appeals from an order for judgment denying his application for post-conviction relief. A judgment of dismissal was entered on December 8, 2000, and we affirm the judgment of dismissal.

I

[¶ 2] On June 2, 1994, Davis plead guilty to one count of gross sexual imposition under a plea agreement. The trial court sentenced Davis on June 2, 1994, to the State Penitentiary for a period of ten years, commencing June 2, 1994, with four years suspended for a period of four years after the period of incarceration. During the suspended period, Davis was to be on supervised probation subject to several conditions ultimately set forth in an Appendix attached to the criminal judgment. One of the conditions required Davis to successfully complete a sex offender treatment program. At the sentencing, the trial court told Davis:

It is the order and sentence of this Court that you, Gregory James Davis, on Count 1, gross sexual imposition, shall be imprisoned in the North Dakota State Penitentiary at Bismarck, North Dakota, for a period of ten years commencing on today’s date. That you first serve a period of six years in the penitentiary, and the balance of four years is suspended for a period of four years commencing after the period of incarceration. During the suspended period, you will be placed on a supervised probation subject to the terms and conditions of probation as set forth in your agreement.
The important thing to understand here is that upon any revocation of probation, the Court may impose any other sentence that was available at the initial sentencing. That is today. In other words, if you get out and you violate your probation and you’re brought back to me, you can then be sentenced to the full 20 years. That’s the way that works. And if you come back, you can expect something like that....
... If you don’t complete the rehabilitation programs and you’re subject to release, that will be a violation of probation. There will be a bench warrant for your arrest waiting for you at the penitentiary.

[¶ 3] Davis did not complete the sex offender treatment program while in prison. On October 14,1999, in anticipation of his scheduled release on October 25, 1999, the State petitioned the trial court to revoke Davis’ probation, alleging he had not complied with the sex offender treatment program. At the revocation hearing on November 8, 1999, Davis admitted he was in noncompliance with the sex offender treatment program. Following the hearing, the trial court concluded Davis failed to successfully complete the program, revoked his probation and sentenced him to twenty years in the State Penitentiary, with six years credit. Thereafter, Davis wrote a letter to the trial court, requesting it reduce his sentence. On February 23, 2000, the court entered an Order denying Davis’ request under Rule 35(b), N.D.R.Crim.P.

[¶ 4] On October 27, 2000, Davis filed an application for post-conviction relief, arguing his original sentence was unlawfully revoked. The trial court entered a Memorandum Opinion and Order for Judgment on November 24, 2000, summarily denying Davis’ post-conviction relief application. Davis filed his Notice of Appeal on November 29, 2000, and a Judgment of Dismissal was entered December 8, 2000.

II

[¶ 5] Under N.D.C.C. § 29-32.1-09(1), a trial court may summarily deny an application for post-conviction relief if there is no genuine issue of material fact and as a matter of law the moving party is entitled to judgment. Clark v. State, 1999 ND 78, ¶ 5, 593 N.W.2d 329. Our review of a summary denial of an application for post-conviction relief is akin to our review of a denial of summary judgment under N.D.R.Civ.P. 56. Abdi v. State, 2000 ND 64, ¶ 8, 608 N.W.2d 292. The “party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding, and is entitled to an evidentia-ry hearing if a reasonable inference raises a genuine issue of material fact.” Syvertson v. State, 2000 ND 185, ¶ 13, 620 N.W.2d 362 (citation omitted).

[¶ 6] Davis contends he did not willfully violate a condition of his probation because he interprets “condition” of probation to be completed while on probation and not while in prison. We disagree.

[¶ 7] The trial court has broad discretion to impose prior conditions of probation upon a defendant while in prison under N.D.C.C. § 12.1-32-07, which provides a list of conditions the court may impose. State v. Bender, 1998 ND 72, ¶ 9, 576 N.W.2d 210. Although N.D.C.C. § 12.1-32-07 does not specifically list sex offender treatment as a condition of probation, the list of conditions is nonexclusive. Id. The imposition of conditions of probation is purely a matter of judicial discretion, and the trial court is authorized to tailor certain conditions to meet the particular facts and circumstances of each case. Id. Moreover, we have concluded a trial court may require a defendant to successfully complete a sex offender treatment program while in prison as a prior condition of probation. State v. Shepherd, 554 N.W.2d 821, 822-23 (N.D.1996).

[¶ 8] The Criminal Judgment and Commitment required Davis to “[a]ttend, participate in, cooperate with and successfully complete ... the sex offender treatment program at the North Dakota State Penitentiary.” At the initial sentencing hearing, the trial court told Davis: “[i]f you don’t complete the rehabilitation programs and you’re subject to release, that will be a violation of probation.” Davis admitted he did not complete the program, and both the Criminal Judgment and the trial court’s statements make it clear he was required to complete the program as a prior condition to probation. The Criminal Judgment is unambiguous. The trial court properly concluded Davis willfully violated his probation.

Ill

[¶ 9] Davis next contends that when the trial court revoked his sentence and resentenced him to a harsher sentence than his original sentence, it violated his double jeopardy and due process rights. Davis argues the trial court could not sentence him to anything more than the suspended period of his previously imposed sentence.

[¶ 10] The guarantee against double jeopardy protects a “criminal defendant’s ‘legitimate expectations’ of finality in his or her sentence.” State v. Lindgren, 483 N.W.2d 777, 779 (N.D.1992). It ensures that the criminal defendant will not be subjected to multiple punishments for the same offense. State v. Jones, 418 N.W.2d 782, 784 (N.D.1988).

[¶ 11] Under N.D.C.C. § 12.1-32-07(6), a trial court is authorized to resen-tence a defendant who violates a condition of probation to any sentence that was. initially available:

The court, upon notice to the probationer and with good cause, may modify or enlarge the conditions of probation at any time prior to the expiration or termination of the period for which the probation remains conditional. If the defendant violates a condition of probation at any time before the expiration or termination of the period, the court may continue the defendant on the existing probation, with or without modifying or enlarging the conditions, or may revoke the probation and impose any other sentence that was available under section 12.1-32-02 or 12.1-32-09 at the time of initial sentencing or defennent. In the case of suspended execution of sentence, the court may revoke the probation and cause the defendant to suffer the penalty of the sentence previously imposed upon the defendant.

(Emphasis added.) A sentence which includes probation is not final, and section 12.1-32-07(6), N.D.C.C., is intended to provide the trial court with a flexible alternative to monitor the defendant’s conduct while on probation. Jones, 418 N.W.2d at 784. We have stated resentencing a defendant to a harsher sentence than his original sentence imposed does not subject him to multiple punishments for the same offense. Id. Such a practice, rather, “reflects the need to alter the defendant’s sentence in light of the fact that the court’s initial sentence of probation was not effective and must be altered.” Id. The trial court’s decision to resentence Davis to twenty years did not subject him to multiple punishments for the same offense. Accordingly, the trial court did not violate Davis’ double jeopardy rights.

[¶ 12] Davis also contends he was denied due process because he was not given notice that he could be sentenced to anything more than the suspended part of his previously imposed sentence if his probation were revoked. Under our Federal and State Constitutions, due process requires that the probationer receive actual notice that his conduct could lead to revocation. State v. Monson, 518 N.W.2d 171, 173 (N.D.1994).

[¶ 13] North Dakota Century Code § 12.1-32-07(6) (1993) gave Davis actual notice that a violation of the conditions of his probation could result in the imposition of any other sentence that was initially available, including a sentence that is more severe than his originally imposed sentence. Lindgren, 483 N.W.2d at 779; Jones, 418 N.W.2d at 784.

[¶ 14] After violating his probation, therefore, Davis could expect to receive a harsher sentence than his original sentence. The trial court did not violate Davis’ due process rights.

IV

[¶ 15] Finally, Davis asks this Court to overturn our decision in State v. Jones, 418 N.W.2d 782 (N.D.1988), which holds the trial court has authority to resentence a defendant, whose probation is revoked, to any sentence available at the time of the initial sentencing without violating the Double Jeopardy Clause. See Annot., Propriety of Increased Sentence Following Revocation of Probation, 23 A.L.R.4th 883 (1983 & Supp.2000) (recognizing that some courts have held that such resentencing does not violate double jeopardy while other courts have held that upward modifications of sentences constitute double jeopardy). Davis, however, has presented no persuasive argument justifying a modification of our current case law, and we, therefore, decline his invitation.

[¶ 16] We affirm the judgment, denying Davis’ application for post-conviction relief.

[¶ 17] VANDE WALLE, C.J., NEUMANN, SANDSTROM, KAPSNER, JJ., concur.

      . An attempted appeal from a memorandum opinion or an order for judgment is interlocutory and not appealable. If, however, the trial court subsequently enters a final judgment, we will treat an appeal from the memorandum opinion and order for final judgment as an appeal from the final judgment. Thompson v. Associated Potato Growers, Inc., 2000 ND 95, ¶ 6 n. 2, 610 N.W.2d 53.

      . In Lindgren, we encouraged trial courts to provide an appropriate warning in any suspended sentence that, upon violating the conditions of probation, a defendant could receive any sentence that was initially available. 483 N.W.2d at 779 n.4. We also suggested plea agreements be drafted with this thought in mind. Id. Both were done here.


author: CARTER, Justice.

text:
    Rita PETERSEN, Mary Friederichs, Carolyn Gabrilson, and Arthur Stone, Appellants, v. DAVENPORT COMMUNITY SCHOOL DISTRICT, Denise Stanger, James Hester, Denise Hollenbeck, David Elliott, Peter Flynn, Margaret Barnes, and Georgia Jecklin, Appellees.
    Nos. 98-1669.
    Supreme Court of Iowa.
    March 21, 2001.
    Rehearing Overruled and Denied May 23, 2001.

      Thomas H. Preacher, Bettendorf, for appellants.
    Craig A. Levien and Jean Dickson Fee-ney of Betty, Neuman & McMahon, L.L.P., Davenport, for appellees.
   CARTER, Justice.

Plaintiff, Rita Petersen, and other taxpayers residing in the Davenport Community School District, suing as a class, appeal from an adverse judgment in their damage action against the school district and board of education members pursuant to 42 U.S.C. § 1983. They contend that their federal constitutional rights were violated by the manner in which the board of education ruled invalid and failed to act on petitions seeking an election to block an instructional support program approved by the board.

The district court concluded that the process invoked by the board in rejecting the petitions was not consistent with due process of law. The court concluded, however, that plaintiffs had waived their right to demand a more favorable hearing process. The court denied any relief on plaintiffs’ claims. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court in part, reverse the judgment in part, and remand the case to the district court for further determinations.

The issues in contention arose after the board of education approved participation in an instructional support program. Under the provisions of Iowa Code section 257.18, such participation may occur for ten years if the board initiates an election of the voters to approve the program. A program may be initiated for five years by resolution of the board subject to a right of the citizens of the district, of a number specified in the statute, to petition for an election to determine whether the action of the board should be approved. The statute that establishes the latter procedure reads as follows:

If the board does not provide for an election and adopts a resolution to participate in the instructional support program, the district shall participate in the instructional support program unless within twenty-eight days following the action of the board, the secretary of the board receives a petition containing the required number of signatures, asking that an election be called to approve or disapprove the action of the board in adopting the instructional support program. The petition must be signed by eligible electors equal in number to not less than one hundred or thirty percent of the number of voters at the last preceding regular school election, whichever is greater. The board shall either rescind its action or direct the county commissioner of elections to submit the question to the qualified electors of the school district at the next following regular school election or a special election held not later than December 1 of the base year. If a majority of those voting on the question at the election favors disapproval of the action of the board, the district shall not participate in the instructional support program. If a majority of those voting on the question favors approval of the action, the board shall certify the results of the election to the department of management and the district shall participate in the program.
At the expiration of the twenty-eight day period, if no petition is filed, the board shall certify its action to the department of management and the district shall participate in the program.

Iowa Code § 257.18(2) (1993).

Plaintiffs circulated petitions to obtain the necessary signatures for a special election. To trigger an election, plaintiffs were required to obtain 3058 signatures on their petitions. The petitions they ultimately submitted to the board contained 3345 signatures. Plaintiffs discovered that some of the signatures were duplicated. As a result, they reduced the number of signatures to 3325 on the receipt submitted to the board’s secretary. The petitions were submitted within the twenty-eight-day time period prescribed in section 257.18(2).

A group of citizens, which included three current board members and Georgia Jeck-lin, a former board member, examined the petitions and determined that 261 of the signatures were invalid and forty-two had been removed or withdrawn for good cause by affidavit at the request of individuals who had signed the petitions. At a meeting of the board of education on April 4, 1994, Jecklin gave a presentation in which she contended that many of the signatures on the petitions were invalid.

The day after Jecklin’s presentation to the board, plaintiffs went to the board’s secretary and asked for a copy of Jecklin’s summary sheet. Although Jecklin’s working papers were sitting on the public counter at the time plaintiffs made this request, the request was denied, and the information was promptly removed from the public counter. On April 11 plaintiffs again requested information concerning the signatures deemed invalid from the board’s secretary. That request was also refused. Plaintiffs were never provided with a list of the signatures being challenged.

On April 15, 1994, the board called a special meeting. At that meeting, Ms. Jecklin was allotted a special place on the agenda and spoke for approximately one-half hour, presenting a list of challenged entries on the petitions. Her presentation was followed by an open forum, at which various members of the public were each allotted approximately three minutes to speak. This open forum was the only time allotted to plaintiffs in which to respond to Jecklin’s statements. At the conclusion of the open forum, the board took a ten-minute recess. When the meeting resumed, the board promptly voted to declare the petitions invalid.

The board found several signatures on the petitions to be invalid for the following reasons: (1) 135 were not verifiable, (2) twenty-seven had been duplicated, (3) three persons signing were under voting age, (4) fourteen addresses were shown not to be in the school district, (5) in forty-six instances one person signed for two, and (6) thirty-three were deemed questionable for unspecified reasons.

In addition, the board found that the wording of the petitions was misleading and was not in compliance with Iowa Code section 257.18(2). It further concluded that in some instances individuals were improperly induced to sign the petitions by misstatements of fact. Based on all of its findings, the board concluded the petitions should be given no effect with respect to the district’s planned participation in the instructional support program. Other facts that bear on our decision will be considered in our discussion of the legal issues presented.

I. Authority of the Board to Invalidate the Petitions.

Plaintiffs’ first claim on appeal is that the board of education lacked legal authority to invalidate the petitions that were submitted to the board’s secretary. They urge that the procedures specified in the election contest statutes incorporated by reference in Iowa Code section 277.22 were the proper means to lodge such challenge. We need not determine whether this contention is correct. Plaintiffs’ action is not brought to validate the petitions under state law, so as to require a determination of what that law is. Its purpose is to obtain an award of money damages under 42 U.S.C. § 1983. Plaintiffs in actions under 42 U.S.C. § 1983 must base their claims on a violation of federal law. Leydens v. City of Des Moines, 484 N.W.2d 594, 596 (Iowa 1992); Bailey v. Lancaster, 470 N.W.2d 351, 356 (Iowa 1991). Whether the board of education or some other agency is empowered to pass on the legal sufficiency of petitions submitted under section 257.18(2) is an issue of state law. Consequently, even if the board misinterpreted that law by assuming authority that it did not have, that conduct would not give rise to a § 1983 claim.

II. Whether the Petitions Contained an Adequate Number of Legally Proper Signatures.

Plaintiffs next argue that, even if the board did have authority to invalidate the petitions for good cause, there was no valid legal reason for doing so in the present case. Once again we are forced to search for the resulting federal law violation should plaintiffs’ claims prove to be true. To establish the violation of a federal right, plaintiffs rely on Duncan v. Poythress, 657 F.2d 691, 703-04 (5th Cir.1981). That case held that a federal right of substantive due process may be violated when state officials act to disenfranchise voters in violation of state law.

The board of directors’ argument points out that the present case differs substantially from the situation in Duncan. That case involved the failure to hold an election mandated by statute for purposes of filling a vacancy on the state supreme court. In' the present case, an election is not mandated, and more importantly, the record makes clear that irrespective of the validity of plaintiffs’ petitions no election would have been held. Notwithstanding the fact that no election would have been called, plaintiffs would have been able to block participation in the instructional support program had their petitions been found to be valid. We need not determine whether the rationale of the Duncan case applies to the present factual situation because we conclude that the board’s rejection of the petitions was proper.

Petitions used to invoke the procedure of section 257.18(2) are to request (to the board of education) “that an election be called to approve or disapprove the action of the board in adopting the instructional support program.” The petitions that plaintiff circulated ask that an election be called “to determine whether the Davenport school district should participate in the instructional support levy program.” While at first blush this difference in wording may seem slight, it is in fact significant. The language contained in plaintiffs’ petitions failed to inform those persons signing them that the issue to be decided in the election was the validity of the action already taken by the board of education. Based on that omission and the language that was in fact used, signers could infer that an election was necessary in order to have the instructional support levy. Such a belief could entice persons who favored the levy to sign the petitions. Affidavits were filed by some signers indicating that this had in fact occurred. We conclude that the statement of the issue to be voted on deviated sufficiently from the realities of the statutory procedure that the petitions were invalid as a matter of law.

III. Plaintiffs’Due Process Claim.

Finally, we consider plaintiffs’ contention that the method in which the board acted to invalidate the petitions denied them due process of law as guaranteed by the Fourteenth Amendment to the Federal Constitution. This allegation does state a violation of federal law ostensibly actionable under 42 U.S.C. § 1983. The district court concluded that the process under which the board rejected the petitions did not accord plaintiffs due process of law. The court found that plaintiffs were not offered a reasonable opportunity to refute the challenges lodged to various signatures contained on the petitions. The court concluded, however, that, because one of the class members was a member of the board of education and voted in favor of the resolution establishing the hearing procedure, the class as a whole waived any right to have a more favorable hearing process.

In so ruling, the district court interpreted Vignaroli v. Blue Cross of Iowa, 360 N.W.2d 741, 746 (Iowa 1985), as saddling all members of a class with the actions of certain individual class members. We agree with plaintiffs that this interpretation of Vignaroli was incorrect. We stated in Vignaroli that “the interests of a number of persons not present before the court are conclusively determined on the strength of the case made by the representative parties.” However, that language refers to the binding effect of a judgment in the class action on all members of the class. It does not support an imputation to the entire class of the conduct of an individual class member bearing on the merits of that person’s claim. We recognized in Hammer v. Branstad, 463 N.W.2d 86, 90 (Iowa 1990), that disposition of an individual representative’s claim is not dispositive of the rights of the entire class.

As a consequence of our finding that no waiver occurred, we conclude that the evidence supports the district court’s finding that the board violated plaintiffs’ procedural due process rights under the Fourteenth Amendment. Not only were plaintiffs not granted an opportunity to refute the allegations at the hearing, they were denied access to the identity of the signatures that were being challenged until it was too late to respond. Although the board claims that plaintiffs waived any right to challenge that denial of information by not going into court and requesting an order for its production, that claim is untenable. Plaintiffs were entitled to have the data they requested produced by the board of education, and the failure to produce it was a violation of their procedural due process rights under the Fourteenth Amendment. In litigation under 42 U.S.C. § 1983, there is no requirement that a plaintiff exhaust available state law remedies as a condition of seeking the remedy provided by the federal statute. Plough v. West Des Moines Cmty. Sch. Dist., 70 F.3d 512, 514 (8th Cir.1995).

The board urges that any denial of procedural due process that may have occurred should not entitle plaintiffs to relief because for reasons that we have already found to exist the petitions were invalid on their face. Consequently, the board urges that it or any reviewing court was required as a matter of law to ultimately find that the petitions were invalid. This contention by the board is rendered untenable by the decision in Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). The Court held in that case that plaintiffs who establish a violation of procedural due process in actions under 42 U.S.C. § 1983 are entitled to some damages irrespective of the fact that the contentions that they wish to have heard are lacking in legal merit. Carey, 435 U.S. at 266, 98 S.Ct. at 1054, 55 L.Ed.2d at 266 (“Because the right to procedural due process is ‘absolute,’ ... it does not depend upon the merits of a claimant’s substantive assertions.... ”).

The board urges that the entitlement established in the Carey case does not extend to situations in which the parties who are denied procedural due process will ultimately be unable to prevail as a matter of law, as contrasted with those parties ultimately not prevailing on an interpretation of the facts. We do not believe that this distinction can be found in Carey. The distinction would be particularly inappropriate in the present case in which the board clearly sought to invalidate the petitions based on an absence of valid signatures as well as on the theory that the wording of the petitions was fatally flawed. Plaintiffs were entitled to procedural due process in resisting the former contention irrespective of the latter contention.

Plaintiffs who establish procedural due process violations are entitled to recover out-of-pocket expenses and, in addition, damages for impairment of reputation, personal humiliation, and mental anguish and suffering. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307, 106 S.Ct. 2537, 2543, 91 L.Ed.2d 249, 258 (1986). Plaintiffs who have established such violations are entitled to no less than an award of nominal damages. Carey, 435 U.S. at 266-67, 98 S.Ct. at 1054, 55 L.Ed.2d at 267.

In anticipation that its decision as to liability might be overturned on appeal, the district court made a finding as to plaintiffs’ damages. It found that, if plaintiffs were correct concerning their due process claims, they were entitled to only nominal damages. It based this finding on the conclusion that the adverse consequences that had befallen plaintiffs were the result of the legal invalidation of their petitions rather than the illegal procedures employed to reach that result. We are convinced that this finding has adequate support in the record.

The board urges that the district court’s alternative-damage ruling in the event that liability was established on appeal only awarded nominal damages to the class as a whole. While the language of the court’s order may be so interpreted, the issue turns on a proper application of the Carey holding to a class action in which the claims of the individual class members are individual in character and disparate in amount. This is an issue of law rather than an issue of fact, and we are not bound by the district court’s conclusions.

Under Iowa Rule of Civil Procedure 42.15,

[t]he court may award any form of relief consistent with the certification order to which the party in whose favor it is rendered is entitled including equitable, declaratory, monetary, or other relief to individual members of the class or the class in a lump sum or installments.

(Emphasis added.) As we have noted, the damages that may be recovered for denial of procedural due process include out-of-pocket expenses, damages for impairment of reputation, personal humiliation, and mental anguish and suffering. Those damages would differ among various members of the class. If class members had been damaged and the court was seeking to grant them relief, individualized determinations of damages would be proper if not impracticable because of the size of the class. Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1784, at 77 (1986). If it is impracticable to award discreet individual recoveries

[c]ourts must use their discretion, and in many instances their ingenuity, to shape decrees or to develop procedures for ascertaining damages and distributing relief that will be fair to the parties but will not involve them in an unduly burdensome administration of the award.

Id. § 1784, at 78.

The goal in all instances is to determine the aggregate sum, which fairly represents the claims of the individual class members. De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 233 (7th Cir.1983); Samuel v. University of Pittsburgh, 538 F.2d 991, 995-96 (3d Cir.1976). For that reason, we believe a single award of nominal damages for the class as a whole would be inappropriate because, it suing separately, each of the class members would be entitled to an award of nominal damages. On remand the district court shall enter judgment for nominal damages in favor of each of the members of the class.

An award of nominal damages renders plaintiffs the prevailing parties in the litigation pursuant to the Court’s holding in Farrar v. Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 573, 121 L.Ed.2d 494, 504 (1992). Notwithstanding their attaining such status, plaintiffs’ entitlement to fees and costs under 42 U.S.C. § 1988 are dependent upon an application of various factors set forth in the Farrar decision. The district court shall consider the attorney-fee issue following remand.

The district court’s findings and conclusions that establish plaintiffs are only entitled to nominal damages is affirmed. Its judgment on the issue of liability is reversed on the procedural due process claims but affirmed on the other claims. The case is remanded to the district court for further proceedings consistent with this opinion.

Given the peculiar attributes concerning entitlement to fees and costs under 42 U.S.C. § 1988, we conclude that the taxation of costs on this appeal shall abide the district court’s determination of cost entitlement following remand. The clerk of this court shall simply certify to the district court the gross amount of taxable costs, and that amount shall be allocated by the district court in its determination of the other issues involving fees and costs.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except LARSON and NEUMAN, JJ., who take no part.

      . The timing of the board’s resolution approving participation in the program came so late in its budgeting process that, if a sufficient number of valid petitions had been filed, the board would have had to rescind its resolution rather than submitting the matter to an election.

      . This finding is in keeping with an admonition set forth in Carey:

      [W]here a deprivation is justified but procedures are deficient, whatever distress a person feels may be attributable to the justified deprivation rather than to deficiencies in procedure .... This ambiguity in causation . .. provides additional need for requiring the plaintiff to convince the trier of fact that he actually suffered distress because of the denial of procedural due process itself.
      Carey, 435 U.S. at 263, 98 S.Ct. at 1052, 55 L.Ed.2d at 264-65.