*1 subject they to sanc- expenditure of time them could a useless which caused Explicit warning required tions. not by the bank. effort case, pre-1986 since unlike the ver- in this III. upon by 549.21 relied sion of Minn.Stat. § court, post-1986 version the Uselman Attorney Fees to Denial Radloffs provi- statute does not contain the attorney claim fees Radloffs’ required “timely specifically which no- sion alleg statements the bank grounded on Further, of intent to claim award.” tice appellants’ stance re edly misrepresenting appropriately trial court here terminat- right Appel bank’s setoff. garding the opportuni- at proceedings the earliest ed all contrary that, to the bank’s argue lants foreclosing spe- most ty, chances to warn assertions, contested bank’s never cifically against appellants’ actions. with right any jury adverse award offset discharged of the bank’s loan the balance DECISION bankruptcy proceeding. Ap in Radloffs’ find no abuse of discretion We persist argu in this continue to pellants sanctioning trial court in Radloffs and their ment, it is though irrelevant because even however, attorney; we vacate $967 by the all of their claims were dismissed $22,037 award and reduce the award trial, prior precluding trial court $21,070. attorney We affirm fees to also off. The trial court jury verdict set the denial of fees to Radloffs. attorney fees to Rad- denied an award of loffs, and we affirm. as modified. Affirmed
IV. Requirement
Notice pos requires notice
Uselman prospective im
sibility reasons for At in this case
position of sanctions. issue and Pinotti received is whether Radloffs HENNEPIN COUNTY COMMUNITY op provide them “the adequate warning to Relator, DEPARTMENT, SERVICES to correct future conduct.” Usel portunity man, Although appel 143. N.W.2d at precisely appeal the notice lants did not Commissioner, HALE, Minnesota Sandra Uselman, it ad should be Administration, issue under Department Jane by this court. Johnston, dressed Respondents. E. 10, 1990, prior three months April No. C9-90-2122. hearing, granted the trial court the final Appeals of Minnesota. Court judgment summary motion the bank’s personal injury dismissing the Radloffs’ May 14, 1991. hy- Regarding Barbara Radloffs claims. July Denied Review court that ac- pertension, the trial stated evidence, the cording prob- to the medical years the “pre-date[d] by a number of
lem dealings with defen-
Radloffs’ business claim, the As to Steven Radloffs
dants.” weaker than Bar-
trial court found it even disparaged the medical The court
bara’s. plain- “little than
expert’s opinion more version of events.”
tiffs’ own orders, along summary judgment denying relief numerous other orders Radloffs, ample warning to alert *2 Freeman, Hennepin County
Michael Katzman, Hennepin Asst. Atty., Arthur W. Minneapolis, County Atty., for Community Dept. Services Gen., III, Humphrey, Atty. H. Hubert Gen., Casserly, Atty. St. Martha J. Asst. Paul, Hale. for Sandra Peterson, Horton, Sonja E. R. Donald Associates, for Minneapolis, Horton and Jane E. Johnston. RANDALL, and decided
Considered PETERSON, P.J., JJ. and SHORT January therapists. In Susan OPINION DeVries, psychologist a licensed with the PETERSON, Judge. R., clinic, five-year-old girl, referred a of the De- is from an order appeal This therapy. R. and her four- *3 directing Hen- Administration partment of C., sister, the year-old had been referred to certain County to correct and amend nepin family by members the clinic with other E. John- concerning respondent Jane data De- Hennepin County Community Services part of a question data in ston. The ordered partment after the district court County Hennepin report to the submitted in therapy for them because a third child to an order issued pursuant District Court family the victim of sexual had been prior in action between John- by the court a in the by person an unknown while abuse ston, party third Hennepin County, and a family individually saw R. home. Johnston appeal. party a to this who is not during January through March times five together then saw R. and C. 1983. She investigation report The summarized through May 1983. nine times from March complaint made abuse of a child sexual investigation was The against Johnston. that there was told DeVries Johnston Hennepin County employees conducted physical family, in the but she was abuse the child report concluded and did not recall mention of sexual abuse. report was substantiated. sexual abuse 1983, May told DeVries Prior to Johnston thought girls’ that she mother was procedures established Pursuant in DeVries was the involved the abuse. 13.04, (1984), subd. 4 Johnston Minn.Stat. § therapist. mother’s County either re- requested Hennepin replace report from its records or move the 1983, early May In Johnston and two complete report. it with an accurate and therapists at clinic an- other Shea request and stated county denied the leaving to es- nounced that would be county’s determination that that it was the fi- practice. Johnston’s tablish their own complete. and report was accurate the clinic was arrangement nancial with billings one half of her that she received appealed the determination Johnston the other half. the clinic received and Hennepin County to the Commissioner clinic, left the her clients When she to Minn.Stat. pursuant Administration stay stay her or to with free to with 4. The issued Commissioner clinic. hearing, hearing and order for a notice of Silverstein, 17, 1983, a hearing May held before an adminis- Deborah On Child The administrative law worker with judge. trative law social fact, report from received findings conclusions Protection Services judge issued had observed recommendations, R. mother that she recommending that and C.’s daughters’ in the change in her behavior changed the conclusion of mother told Silver- prior two weeks. report of from “substantiated abuse” the other one child had rubbed stein that The Commis- “unable to substantiate.” that, explained “Jane fact, child’s breast findings of conclu- sioner issued her also stated that The mother does this.” adopting order the administrative sions and plays that “Jane girls had told her in their en- judge’s recommendations law only mother said poking games.” The County’s subsequent mo- tirety. Hennepin was Jane Johnston. girls knew “Jane” denied. Hen- tion for reconsideration was appeals. nepin County 1983, Silverstein, along with May On teacher, inter- tried to girls’ day care
FACTS girls’ home. Neither and R. at the view C. therapy ses- their child would talk about a master’s Jane E. Johnston obtained they did Both children stated Septem- In sions. degree in social work therapy but did go to sessions employment not like to obtained her first ber 1982 she 20, 1983, day why. May not state On psychotherapist with Michael Shea as a the behav- to R. about Associates, eight care teacher talked approximately clinic of poked nipples and said that Dad R. told at reported. ior her mother game.” poked poked and that Jane “play that her there she did not teacher that R. whether various with there. DeVries asked C. May 23, talked Silverstein On her, very people played game girls active other again. The became and C. DeVries. C. play including out her brother and said to talk about or did not want everyone DeVries asked her about. therapy. yes anything related 26, 1983, then asked R. to talk about the DeVries May Silverstein other poking game. Throughout the conversa- clinic met with Johnston employees of Shea tion, R. complaint was serious her demeanor with that had and told her about the R. smiling laughing. DeVries asked her. stated that no made about been *4 game people played if various the with her. type had oc- no behavior the described person to named during therapy with R. R. said no each DeVries curred her sessions except played if she the speculate Jane. When asked and C. When asked to about here, game R. poking such a re- looked at DeVries why the children would make they great her surprise were with on face and port, speculated that re- “No, your room, sponded, played to not in we attempting get her into due trouble parental it in Jane’s room.” DeVries showed R. the having about disclosed their fear played female and asked where she the to her. doll physical abuse belly poking game. pointed R. to the but- girls’ DeVries met with the mother genitals nipple and the and the ton rubbed that R. May 1983. The mother stated forth in a manner similar to back and what sitting each other when and C. were next to seeing. R. her mother had demonstrated they ready to togo asked them if were she then at the doll for a few moments looked therapy turned to R. and their session. C. voice, very in a “I and said serious didn’t go play poking asked if she wanted that game.” play want that girls game. The that both mother said her whispered and DeVries returned to C. and asked then looked embarrassed they again poking game. as the This time C. each other if had secret. When about Linda, meant, inquired they girls’ that a teacher at the the mother to what indicated game” day center, game with her girls poking played “the care the associated they during poking Linda her in the something with did with Jane and demonstrated button, also therapy belly nipple, eyes. The mother also and C. indi- their sessions. rubbing her girls played game her cated that mother observed one of button, belly nipple. pointed with her and to the breast area and When mother thing leg. again giggling girl good nipple wasn’t a to do and C. was once told the that “Oh, responded, okay, silly. it it’s Jane does C. inquired further. with us.” The mother 27, 1983, DeVries conducted On June if tickled C. under her arm and asked She sepa- videotaped interview with each child doing
that what was and C. said was Jane rately. girls ques- asked each of the She repeated nipple “No” and the breast and people they interacted tions about various fondling. with, including they did things what with things they girls together people they enjoyed and what DeVries interviewed the people they with that did not like or 1983. She asked them who did on June game R. indicated at various played poking with them. C. that scared them. Jane, Linda, during immediately played that times the session that responded Mom Jason, poking played had poking game game and the was fun. and Laurie all game poked her and had quite expres- R. was in her facial with solemn point out on a game genital not fun. C. area. When asked sion and said the was poked silly throughout Jane had places the rest doll of the giggling was hand, nose, toes, her, presented R. to the pointed DeVries conversation. button, neck, belly anatomically eyes, hair, nipple, girls with correct dolls very un- played poking genital looked sad and and asked them who area. She they happy game. also said that poked. C. about this She game and where ANALYSIS poking played had Laurie Jane C. presented DeVries game with C. When agency deci- scope of our review of indicated questions, C. similar sions is limited. had DeVries named virtually everyone judicial under sections 14.- In a review also her. C. poking game with played the may the court affirm dad said that her her dad and focused on agency or remand decision of her, her, slapped mean was sometimes may proceedings; further or it case for was down when she made her kneel if the sub- modify the decision reverse naughty. petitioners may rights of the stantial the admin- prejudiced have been because circulated During July 1983 a memo was inferences, conclusions, finding, istrative Child to the staff re- or decisions are: Divisions Welfare Protection Child social workers questing (a) provi- constitutional In violation of seeing Jane John- any clients who were sions; or meeting July 14 a therapist. as a ston (b) statutory authority In excess of the re- workers who held with the social agency; or jurisdiction of the complaint told that a sponded. They were *5 (c) procedure; or upon unlawful Made Nine against Johnston. had made been law; (d) by other error of or Affected interviewed to identified and families were (e) Unsupported by substantial evi- occurred in thera- any problems see in of the entire record dence view any indicated None of the children py. submitted; or problem with Johnston. (f) capricious. Arbitrary or 1, tempo- a August 1983 a for motion (1984). 14.69 Minn.Stat. County Hennepin § rary injunction requiring Department to com- Community Services of the administrative The decision allegations investigation into the plete its by supported substantial agency must be Following by the trial court. was heard Herbst, Mining Co. evidence. Reserve county ordered to com- hearing the 808, (Minn.1977). Substan N.W.2d 825 256 investigation and file a plete the means: tial evidence August 1983. The by court with the 1) as a reasonable relevant evidence such compliance in report was submitted adequate sup- accept as might mind the conclu- report reached this order. The conclusion; 2) than a scintilla more port a had been a substantiated sion that there evidence; 3) than “some evi- more of and that Jane child sexual abuse report of evidence”; dence”; 4) “any more than The con- perpetrator. was the E. Johnston entirety. 5) in its considered evidence guidelines by issued clusion was based Id. of Public Wel- Department Minnesota fare. I. Com- contends ISSUES exceeded of Administration missioner 13.04, 4 subd. I. Does Minn.Stat. § by or- authority jurisdiction statutory
(1984) Department of Admin- authorize the social workers’ dering of the the correction facts and and amend istration to correct report con- abuse child conclusion report prepared in a contained conclusions was substantiated. cerning Johnston concerning allega- by county social workers has county argues that the Commissioner against an abuse made of child sexual tions only correction of authority to order the individual? and that data government errors factual authority to sub- has no of the Commissioner findings and conclusions II. Are the of for that opinion or conclusion stitute her regarding the claim of the Commissioner of social workers conclusion sup- professional against sexual abuse Johnston child supporting the underlying facts when ported by substantial evidence? 164 clearly can identifying We or other data be have not discredited.
conclusion
been
disagree.
only
to be
incidental to the
demonstrated
data
data and the
are not accessed
powers
“[A]gency
construed
identifying
any
name
of
or other
data
light
purposes for which
of the
individual.
Bruesehoff, 343 N.W.2d
created.” State v.
prac-
13.02,
The data
(Minn.App.1984).
(emphasis
add-
Minn.Stat.
subd.
§
responsible
imposes upon
tices
officials
ed).
act
duty
to “establish
government
for
data
data” means all data col-
“Government
on indi-
procedures to assure that
data
lected, created, received, maintained or
accurate, complete, and current
viduals is
by any
agency, politi-
disseminated
state
which it was collect-
purposes
for the
subdivision,
system
re-
cal
statewide
13.05,
(1984).
ed.” Minn.Stat.
§
form,
gardless
storage
its physical
practices
act also establishes the
data
media
use.
or conditions of
con-
right
subject
data
of an individual
13.02,
(emphasis
Minn.Stat.
subd. 7
add-
accuracy
completeness
test
of data
ed).
about the individual. Minn.Stat. §
investigative report pre
The entire
subd. 4
Hennepin County
pared
social work
Together,
duty
to assure
officials’
ers is
created
maintained
data
accuracy
completeness
of data and
political subdivision. As an individual sub
right
the individual’s
to contest the accura-
data,
ject
may
this
contest
cy
completeness of data
demonstrate
accuracy
completeness
confusion,
legislative purpose
preventing
subject
data
identifies her as the
embarrassment, ridicule,
mistake,
or other
data, including
the conclusions
*6
government
subject
harm that the
of
data
prepared
report.
social workers who
the
data are not accurate
could suffer
the
practices
The data
act establishes the
authority
complete.
The
of the Com-
procedure
by an
to be followed
individual
light
must be construed in
of this
missioner
subject
data
who
to contest
the
wishes
purpose.
accuracy
completeness
Minn.
or
of data.
authority
jurisdiction
"The extent of
or
13.04,
4,
in part:
subd.
states
Stat. §
upon
agency
an administrative
is
bestowed
may
accuracy
An
the
individual
contest
the
it de
from which
measured
statute
private
completeness
public
or
of
or
data.
authority.”
rives its
Frost-Benco Elec.
right,
To exercise this
an individual shall
Comm’n,
Ass’n v. Minnesota Pub. Utils.
notify writing
responsible
in
the
authori-
639,
(Minn.1984).
358 N.W.2d
642
ty describing
disagree-
the
of the
nature
government
practices
data
act
The
responsible authority
ment.
shall
The
authority
agency
vests final
to determine
(a)
days
correct
the
within 30
either:
disputed
accuracy
completeness
of
incomplete
data
to be inaccurate or
found
government
in the Commissioner of
data
attempt
notify past recipients
to
of
authority
This
extends to
Administration.
data, including
incomplete
or
inaccurate
public
private
data on individuals.
individual;
(b)
recipients
named
13.04,
4.
subd.
“Public data
Minn.Stat. §
notify
he believes the
the individual that
on individuals” means data that are accessi
dispute
to
in
data
correct. Data
shall
be
13.02,
public.
ble
Minn.Stat.
subd.
to
§
only if the individual’s state-
be disclosed
(1984).
15
“Private data on individuals”
disagreement
ment
is included with
of
that
means data
are not accessible
the disclosed data.
individual
public, but
accessible
13.02,
subject
respon
of the data. Minn.Stat.
The determination
§
12.
cor
authority
sible
that contested data are
may
“appealed pursuant
pro
to the
rect
govern-
“Data on individuals” means all
procedure act
visions of the administrative
is or
ment data which
individual
relating
contested
Id. The ad
subject
can
of that
cases.”
be identified as
data,
procedure
does not itself
unless the
of the name ministrative
act
appearance
*
* *
hearing,
opinion
of
this
right
to contested case
We are
that when
provide
granted
appeal
requir-
statute
an
without
procedures to be followed
but establishes
ing
preserved
to be
evidence
right.
provides that
when another statute
greater
remedy
transmitted some
Ass’n, Inc.,
People’s Coop.
In re
Power
intended, and that must
been a re-
have
11,
(Minn.App.1989),pet.
447 N.W.2d
charges.”
trial of the
(Minn.
8, 1990). To deter-
rev. denied
Jan.
246,
jur-
the extent of the
at
at 579 (quoting City
mine
Commissioner’s
Id.
32 N.W.2d
Compton,
Ill.App. 406,
v.
authority
isdiction and
to correct contested
of Rockford
411, 414) (1904).
data,
practic-
the data
we must look at both
act,
(1984),
13.01-88
es
Minn.Stat. §§
The
court concluded
when the stat-
act,
procedure
Minn.
the administrative
right
appeal
ute
creates a
of
in an
14.01-.69
Stat. §§
proceeding
administrative
as to
is silent
tried,
how the appeal shall be
it means that
author-
The extent
the Commissioner’s
appeal
should be a trial
all the
appeal
in an
under subdivision 4 of
ity
incidents
at
of a trial.
Id.
32 N.W.2d
depends upon
meaning
13.04
section
at 579.
appears
“appealed” as it
in that
the word
act,
Spurck
however,
In
rel.
The
practices
statute.
State ex
Civil
data
is not
Bd.,
appeal
226 Minn.
sioner ings of conclu- fact and draw her own amending completing or NOTE: When A to do so facts. failure sions from these already report refer an submitted of the con- requirements does not meet report agency or number. number case procedures. case tested the Com- In our determination whether supported by is missioner’s decision sub- II. evidence, the evi- we must consider stantial that, County argues even Co., entirety. Mining in its Reserve dence authority to sub has the Commissioner manifestly un- N.W.2d at 825. Unless conclusion stitute her conclusion accepted even just, inferences workers, to do so is her decision the social may appear contrary infer- though it that Depart The unsupported by the evidence. The supported. be better Id. ences would Welfare Social Services ment of Public challenging upon party burden is 1, 1981), (Jan. Manual, relied R. XIV-4736 findings to that the find- agency’s establish upon by workers who reached social ings supported not the evidence provided fol the contested conclusion record, entirety. considered in its Id. protec to child lowing definitions related there is substantial evidence in We find reports: tion maltreatment support the record to the Commissioner’s Case Status Determination of report the contested was inac- decision that 1. Substantiated: concluding curate in that An admission of fact abuse a. abuse Johnston substantiated. neglect by persons responsible; and their mother testimony of children or ne- adjudication An of abuse b. there is was sufficient to conclude reason glect; or However, suspect neglect. abuse or Any of confirmation c. other form changing na- light the inconsistent and agency. the local deemed valid testimony, the fact ture the children’s not mean Substantiated does peo- NOTE: that the children testified various agency to adjudicated. For the local poking ple played other than Johnston neglect has determine abuse them, testimony and the game with require type occurred does not therapy children received from other who peti- needed file an assault evidence complaints, the social no However, against perpetrator. tion logically John- workers could not refute also adjudicated case would consti- denial. ston’s case. tute substantiated DECISION complaint 2. Unsubstantiated: Admin- The order of the Commissioner of substance; no no have reason found affirmed. istration is suspect neglect has that abuse or *8 occurred. Affirmed. Not
3. Unable to Substantiate: Judge SHORT, (dissenting). enough re- criteria for substantied port present, but there is reason respectfully I dissent. Minnesota e.g., neglect; suspect abuse Act allows for Data Practices Government signs physical or child shows emo- of data found to be inaccurate or correction neglect tional abuse or but social incomplete. subd. 4 Minn.Stat. § logically refute the sus- worker cannot However, it is not a vehicle for pected perpetrator’s denial involve- judgments amending the of state officials. ment. Rogers Dep’t v. La United States See (N.D.Cal.1985). bor, F.Supp. 4. Determined: The assess- Not Yet of Administration did yet completed. is When a The Commissioner
ment not made, find the data on Johnston be factual the status of not determination Rather, incomplete. ly submitted inaccurate or writing reweighed the evidence and Agency, State either Commissioner subjective second-guessed evaluation of phone. worker, is not a social This case where requires inaccurate facts correction opinion based on those the correction of or- I therefore reverse the
facts. would
ders of the Commissioner. HARRIS, Appellant,
William N. Minnesota, Respondent.
STATE of
No. C1-90-2647. Appeals
Court of of Minnesota.
May *9 Gerval, Sp. M. Asst. State Public
Jean Defender, Paul, appellant. St. III, Gen., Atty. H. St. Humphrey, Hubert Freeman, Paul, Hennepin County Michael W. Coun- Atty., Barry, Lee Asst. respondent. ty Atty., Minneapolis, for