Winberg v. University of Minnesota

HUSPENI, Judge

(dissenting).

I agree with the determination of the majority that the University is not an agency within the meaning of chapter 43A. I respectfully dissent, however, from the majority’s determination that the University is a “political subdivision” under Minn.Stat. § 197.455.

Review of the case law convinces me that when appellate courts have been asked directly whether an entity is a “political sub*331division” under the Veterans Preference Act, the courts have answered “yes” only when that entity had the authority to levy taxes or to cause taxes to be levied. See Henry v. Metropolitan Waste Control Comm’n, 401 N.W.2d 401, 406 (Minn.App. 1987), Dahle v. Red Lake Watershed Dist., 354 N.W.2d 604, 606 (Minn.App.1984). These answers are consistent with the definition of “political subdivision” set forth in Minn.Stat. § 471.49, subd. 3.1 Today for the first time an appellate court answers “yes” with regard to an entity which clearly has no power to tax.

AFSCME Council 96 v. Arrowhead Regional Corrections Bd., 356 N.W.2d 295 (Minn.1984) offers support more apparent than real, I think, for expanding the definition of “political subdivision” to include the University. The issue of the Act’s applicability to the corrections board was not raised in AFSCME. The Supreme Court was not required there to address an issue which neither party asked it to address, and it did not.

When this court ruled that the University was subject to the Open Meeting Law, it was interpreting statutory language considerably broader than that which is being interpreted here.2 The Human Rights Act3 and Minn.Stat. § 355.01, subd. 10 (1990) also contain statutory language broader than that contained in Minn.Stat. § 197.455. In addition, the applicability of Minn.Stat. § 355.01, subd. 10 to the University has not been addressed by the appellate courts of Minnesota. Instead, a June 29, 1955 Attorney General Opinion advised that section 355.01, subdivision 10 included the University. Here, however, in response to the Department of Veterans Affairs question in 1984 about whether the University was covered by Minn.Stat. § 197.455, the Attorney General answered:

[I]t does not appear that Minn.Stat. § 197.455 was intended to apply to the University of Minnesota. That section applies, section 43A.11 (the veterans preference section of the Minnesota Civil Service Law) to “ * * * county, city, town, school district or other municipality or political subdivisions of this state * * Since the University of Minnesota has independent constitutional standing it does not, in my view, come within the meaning of any of these entities.
Furthermore, the Legislature has specifically exempted the University of Minnesota from coverage under the State Civil Service System, Minn.Stat. ch. 43A.

(Emphasis added.)

It is not without considerable reluctance that I conclude that “political subdivision” cannot be defined to include the University. Veterans, indeed, are entitled to “enjoy security in public employment, protected from ‘the ravages and insecurity of a political spoils system.’ ” AFSCME Council, 356 N.W.2d at 298 (quoting Johnson v. Village of Cohasset, 263 Minn. 425, 435, 116 N.W.2d 692, 699 (1962)). Such protection would certainly seem to serve the public policy interests of the State. However, the legislature alone has the authority to enunciate which “public employment” entities are to come within the scope of the Act. “[Cjourts cannot supply that which the legislature purposely omits or inadvertently overlooks.” Wallace v. Commissioner of Taxation, 289 Minn. 220, 230, 184 N.W.2d 588, 594 (1971). The legislature *332may, indeed, wish to amend the Act to specify that the University is included within its provisions. To date, however, the legislature has stated that the Act applies to:

a county, city, town, school district, or other municipality or political subdivision of this state.

Minn.Stat. § 197.455. I fear this court legislates judicially when it decides that the University is a political subdivision. Legislating should be left to the legislature.

. It appears that other statutes which define “political subdivision” are no more susceptible to an interpretation which would include the University than is Minn.Stat. § 471.49, subd. 3. See Minn.Stat. §§ 10A.01, subd. 27; 12.03, subd. 9; 13.02, subd. 11; 65B.43, subd. 20; 103D.011, subd. 20; 103E.005, subd. 21; 115A.03, subd. 24; 115C.02, subd. 11; 116G.03, subd. 3; 169.121, subd. 9(b); 471.49, subd. 3 (1990).

. The Open Meeting Law applies to "any state agency, board, commission or department * * * governing body of any school district * * * county, city, town, or other public body.” Minn.Stat. § 471.705, subd. 1 (1990).

.The Human Rights Act applies to any employer (with exceptions), partnership, association, corporation, legal representative, trustee, trustee in bankruptcy, receiver, and the state and its departments, agencies, and political subdivisions. Minn.Stat. § 363.01, subds. 17, 28 (1990).