*1 parental of and that termination to ter- dence relating of the laws purpose The interests, we best to ensure is in the children’s rights rights parental of mination by the court of the result reached affirm that: appeals. is not (2)if parents with placement modified. Affirmed as foreseeable, for the to secure
reasonably permanent placement, a safe and child PAGE, (concurring specially). Justice a fit adoptive parents or preferably through transfer of willing and relative in I concur presented, the record On custody to legal physical permanent by the court. result reached that relative. clearly sup- Further, has legislature or rela- favoring adoption
ported policy a care long-term foster over placement
tive long-term provisions limiting
with other See, e.g., Minn.Stat. care.
foster 11(d)(3) 260C.201, (provid- subd. foster long-term that court can order
ing alia, finds, “compelling only QWEST’S if it inter care In the Matter of perma- that neither award reasons WHOLESALE SERVICE custody to a rela- legal physical nent QUALITY STANDARDS. tive, rights is parental nor termination No. A03-1409. interests”). Therefore, in child’s best to con- required the district court was Minnesota. Appeals Court as an alterna- long-term sider foster care of its interests adoption part tive to as best April analysis. case, supports
In the record adoption that determination
district court’s children’s best interests.
was in need
court that the children were found permanent home with
of an immediate for their wel-
family “capable providing not err Accordingly, the court did
fare.” parental concluding that termination adoption was
rights to allow immediate
the children’s interests. best summary,
In hold that the court we statutory holding
appeals erred estab- for termination were not
grounds convincing evidence
lished clear fact, termi- notwithstanding of the
nation was in the best interests we conclude
children. Because were
statutory for termination grounds convincing evi-
supported by clear and *3 Topp Larry Espel,
Jason D. D. John Bazis, Baker, M. M. Jeanette Greene Es- MN, P.L.L.P., pel for Minneapolis, relator Qwest Corporation. General, Hatch, Attorney
Mike Steven O’Hern, Alpert, Opperman H. Cassandra General, Paul, Attorney Assistants St. MN, for respondent Minnesota Public Util- ities Commission. Zeller,
Virginia Attorney K. Assistant General, Paul, MN, for respondent St. Department Minnesota of Commerce. Bradley, Dan Michael J. Lipschultz, M. Barnett, P.A., MN, Minneapolis, Moss & USA, Inc., respondents McLeod North- Inc., Access, LLC, Link, Onvoy, Star U.S. Inc., L.L.C., In- Encore Communications Minnesota, Inc., tegra Telecom of Global Services, Inc., Crossing Edge Local New Networks, Inc., Telecom, Tail Otter Venture, L.L.P. VAL-AD Joint d/b/a Communications. Merz, Gray, Plant, Mooty,
Gregory successfully R. moved for reconsideration and P.A., Bennett, MN; Mooty Minneapolis, stay & of the order appeals from the Lehr, MN, Paul, Lesley St. J. denial of these motions.1 WorldCom, respondent Inc. Clauson,
Karen L. Eschelon Telecom of FACTS Minnesota, Inc., MN, Minneapolis, for re- Qwest agreed to “participate coop- and- Minnesota, Telecom of spondent Eschelon expedited erate proceeding to estab- Inc. permanent lish wholesale service quality *4 Steven H. AT & T Weigler, Law De- (WSQ) standards” as a condition MPUC CO; Denver, partment, and Thomas E. approval Qwest of the merger of and U.S. Bailey, Ayotte, Briggs Morgan, Mark J. & 2000, July Qwest West.2 In proposed filed P.A., MN, Minneapolis, respondent for AT WSQ required parity standards that be- Midwest, T& of the Inc. Communications Qwest tween the services provided to the and the Qwest provided CLECs services Briggs Morgan,
W. Patrick Judge, & customers, to itself and its retail but the P.A., Paul, MN, for respondent St. DIECA WSQ proposed standards included no Communications, Covad Communica- d/b/a means of enforcing compliance. In De- tions Co. 2000, cember the CLECs and the Depart- Liethen, Robins, Rebecca McElfresh ment of Commerce proposed WSQ filed Ciresi, Kaplan, MN, Minneapolis, Miller & standards set benchmark levels of respondent for Time Warner. service and included an enforcement mech- Qwest anism requiring payments to make RANDALL, by Considered and decided or Qwest’s the CLECs when state HARTEN, Presiding Judge, Judge, and performance WSQ fell below the stan- MINGE, Judge.
dards. OPINION 2002, In rejected March the MPUC both proposed standards deferred sets HARTEN, Judge. 2002, April action on the matter. In Minnesota Respondent Public Utilities issued its own MPUC set standards. (MPUC) im- Commission issued an order Qwest 2002, posing on July Qwest’s relator In Corporation, connection carrier, exchange incumbent local petition bench- to the Federal Communications (FCC) mark service standards and an en- Commission approval offer services, long forcement mechanism for those standards certain distance the MPUC affecting wholesale transactions adopted between a Minnesota Performance Assur- (MPAP) Qwest respondents competitive local Qwest ance Plan that included (CLECs). exchange Qwest WSQ 2002, un- parity August carriers standards. In Qwest protective right challenge 1. this court also moved for a its order. the MPUC See granted York, stay; order and a court the mo- City also New Inc. TCG v. White protective tion for order mo- and denied the Plains, 67, (2d Cir.2002) 305 F.3d 81-82 stay. tion for (holding provision waiving a telecommu provider's right challenge nications a fran merger 2. Because provid document also unenforceable"), “completely court chise in was "waived, ed compromised had not denied, rt. U.S. S.Ct. ce any rights or relating limited” mat either L.Ed.2d ters then rights before the MPUC or con law, ferred Minnesota did waive not Qwest challenges the entire MPUC or- Qwest and the CLECs asked
the MPUC provisions particu- penalty the merits of the MPAP. der comment lar. proposed In CLECs October WSQ standards of
modifications 1. MPUC Order MPAP; modifications included these payments levels and benchmark service Qwest argues that the MPUC order ex- meet failure to the benchmark linked to authority statutory ceeds because fed- Qwest’s Ultimately, service levels. over regulation law of in- preempts eral both objection, adopted the CLECs’ the MPUC trastate service telecommunications WSQ standards in- modifications to the standards and because parity mandates cluded in the MPAP. law, construed, does properly state when permit order. also the MPUC ISSUES argues unsup- order is ported by the evidence. im- MPUC have *5 Does the WSQ on pose standards benchmark Law a. Federal
Qwest?
Qwest argues first
the Federal
im-
MPUC have
to
Does the
(the Act)
1996
Telecommunications Act of
pose an enforcement mechanism
and
“withdrew from states
their commis
Qwest?
adopt
regula
their
power
sions the
own
ANALYSIS
competition.”
tions
for
and standards
We
disagree
language
of the Act itself
Review
Standard of
—the
See, e.g.,
argument.
refutes
47 U.S.C.
this
agency
legislative
An
exercises a
251(d)(3) (1996) (the
pre
§
FCC “shall not
quasi-judicial
function
opposed
as
any regulation,
of
clude the enforcement
when
cost and noncost factors
it balances
order,
policy
or
of a State
commission
among public policy
choices
makes
(A)
access and interconnection
establishes
v.
Arvig Tel. Co. Northwest
alternatives.
carriers”);
obligations
exchange
local
47
of
Co.,
111,
ern
270
116
Bell Tel.
N.W.2d
(1996)
252(e)(3)
in
(“[Nothing
§
U.S.C.
(Minn.1978).
agency
legis
in its
acts
prohibit
this
a State commis
section shall
determining
capacity
lative
in
the extent to
establishing
enforcing
from
or
other
sion
be
or
competition
permitted
which
should
in its
requirements of State law
review of
116-17.
an agency
limited.
Id. at
When
including
agreement,
an [interconnection]
function,
legislative
exercises a
its decision
requiring compliance with intrastate tele
shown,
is
affirmed unless
is
clear
quality
communications service
standards
evidence, to be in
convincing
excess
253(b)
requirements”);
§
47
or
U.S.C.
un
statutory authority
unjust,
or to have
(1996)
in this section shall affect
(“Nothing
reasonable,
discriminatory
or
results.
impose,
ability
on a
State
City Moorhead v. Minn. Pub. Utils.
competitively neutral basis
consistent
(Minn.1984).
Comm’n,
843,
343 N.W.2d
846
section, require
254 of this
with section
judgment
This court cannot substitute its
necessary
preserve
ments
and advance
agency
agency’s
when
that of an
service,
public safety
protect
universal
supported by the evi
finding
properly
welfare,
464,
quality
the continued
Starkey,
ensure
dence.
v.
265 Minn.
Vicker
services,
470, 122
169, 173
telecommunications
and safe-
N.W.2d
consumers.”);3
(1996),
rights
requiring
that incumbent
guard
local ex-
261(c) (1996) (“Nothing
in this
change
provide
U.S.C.
carriers
interconnection
from
re-
part precludes
imposing
a State
“that
at least equal
quality
in
to that
on a
carri-
quirements
telecommunications
provided by the
local
[incumbent]
ex-
that are neces-
er
intrastate services
itself,”
change carrier to
parity
mandate
sary
competition
provision
further
disagree
standards.
with
We
both asser-
telephone
exchange
service or
exchange
tions.
access,
long
requirements
as
State’s
as the
language
The FCC view that this
“re
part
inconsistent
this
or the
are
quire[d]
provide
incumbent
supe
LECs
regulations
implement
Commission’s
rior
interconnection and network
part.”).
requested”
rejected
elements when
was
Federal
The Minnesota
District Court
F.C.C.,
Iowa
Bd. v.
Utils.
F.3d
252(e)(3) (1996)
construed
U.S.C.
(8th Cir.1997),
part,
part,
rev’d in
aff'd
Communications,
West
Ed-
U.S.
Inc. v.
and remanded sub nom. AT & T Corp. v.
A. Garvey,
ward
No. 97-913 ADM/AJB
Bd.,
Iowa Utils.
525 U.S.
119 S.Ct.
(D.Minn.1999):
(loiva
tion to
protect against
And,
competitors.
practices
all other
and other
competition,
vided to'
unfair
may
and reason-
promoting
have different
fair
competitors
harmful
because
fluctua-
competition.
service
able
sensitivities
tions,
fluctua-
permits
that
a standard
erred in
that
the MPUC
asserts
unequal
in an
carriers
may affect
tions
be
237.16
relying Minn.Stat.
improve
standards
way. Benchmark
cause,
broadly
if the statute is construed
influence
reduce the
predictability
order, it con
enough
permit
any
can wield over
competitor
Act,
adopted
which was
flicts with
other.
was enacted. For this
after the statute
*
assertion, Qwest
on Martin ex rel.
relies
impede
can
the de-
Parity standards
y
Rochester, 642
N.W.2d
market be-
competitive
of a
velopment
Hoffv. Cit of
(when
(Minn.2002)
reading of a statute
one
they
competitors of
deprive
cause
law, the court “will
conflicts with federal
they
need
fundamental information
to determine whether
then look further
A
products.
their
benchmark
to sell
another inter
susceptible
the statute
information.
provides that
standard
a constitu
pretation that does
raise
“Congress,
the FCC
Qwest argues
—
denied,
U.S.—,
defect”),
tional
cert.
have all decided
Eighth
and the
Circuit
2668,
the MPUC order fact, Law a b. State such interpretation; narrow meaning of the reading ignores plain the order relies on Minn. The MPUC RSJ, by Beaulieu v. statute. See State (2002): 237.16, § 8 Stat. subd. (Minn.1996) Inc., 701-02 552 N.W.2d ap- rules adopt commission shall [T]he (when court unambiguous, a the statute companies and plicable telephone to all meaning). The apply plain must ... using carriers telecommunications Minn. order does not contravene MPUC mini- any existing standards as federal § 237.16 Stat. incorporating mum standards and c. Evidence requirements standards or additional that, because the MPUC argues necessary provision to ensure the Qwest’s service is finding no through- made high-quality telephone services poor, plied power the benchmarks the order are not from its pro- “to ensure the properly supported by the evidence.5 But high quality vision of telephone ser- the need to minimum establish levels 237.16, ...” § vices. MinmStat. subd. 8 dependent added). service is not on the existence (emphasis noted, As the MPUC of poor only service. The MPUC is not penalties necessary give are meaning- obligated require improvements when quality ful effect to the standards in the unacceptable; the service level is it must Agreements.... Without the penalties, also ensure that the level of service does LEC, an incumbent gain order to a 237.16, § not deteriorate. See Minn.Stat. competitive advantage, might be inclined (2002) (the subd. 8 MPUC is “to ensure delay to cause provision quality provision of high-quality telephone ser- thereby services to CLECs and hurt the state”). throughout vices penalties end-customer. The provision prevents this behavior and ensures that Penalty Payments 2. The high quality service reaches the custom- of penalties “[T]he assessment er. Possessing requisite authority by and sanctions an agency administrative law, under state may, under finding is not a factual but the exercise of 252(e)(3), impose stan- discretionary grant power.” a In re penalty provisions dards and at issue. (Minn. Haugen, 278 N.W.2d 80 n. 10 U.S. West v. Edward A. Garvey, No. 97- 1979). court, therefore, reviewing “A may (D.Minn.1999). 913 ADM/AJB penalties interfere with the or sanc imposed by agency tions an decision unless Qwest claims that this reliance is mis- a clear abuse of discretion is shown placed Garvey because does not address party opposing Henry the decision.” In re 14.045, (1998) (an Minn.Stat. subd. Ass’n, Youth Hockey 511 N.W.2d not, agency “may rule, under (Minn.App.1994), modified, 559 N.W.2d levy a penalty total fine or of more than (Minn.1994). single for a violation the agen- unless $700 For failure to meet the benchmark stan- cy specific statutory authority levy has dards, imposes MPUC order amount”) fine in of that excess or Minn. penalty payments to be made to the (“After 237.462, (2002), Stat. subd. Qwest argues CLECs and to the state. 237.081, proceeding under section the com- (1) penalty payments that the exceed the may mission issue order administrative- statutory authority; MPUC’s are un- ly assessing monetary penalties for know- *8 (3) evidence; supported by the consti- (2) ing any and intentional violations of ... taking tute unlawful of proper- MPUC’s standards, limitations, or conditions estab- ty. pursuant lished in a commission order 237.16”). 237.09, 237.121, sections Statutory Authority
a. that, Qwest argues because MinmStat. The MPUC relied on the federal specify 237.462 does not failure to district court’s construction of Minn.Stat. quality meet service benchmarks as one of 237.16, (1998). subd. 8 may the reasons for which the MPUC authority implement impose
The MPUC’s penalties, the MPUC lacks authori- performance penalties fairly ty impose penalties can be im- for failure to meet Qwest specify does not what evidence is mark. any particular needed or omitted for bench- concluded previously the has [MPUC] ex- But the statute states benchmarks. give appropriate are payments that impo- exclusive: “The it is not plicitly that service stan- meaningful effect to in accor- penalties administrative sition of to all dards. addition with this section dance statutory under available
other remedies 237.642, Minn.Stat. or common law.” adopting the Qwest recommends subd. 9 entirety whereas [the its [M]PAP changes to tailor recommend] CLECs authority statutory has the The MPUC of the current plan purpose the to the prescribed penalties the impose party In neither case did a docket. order. sched- increasing payment propose payments those are ules. Given Evidence b. stipu- in the nature of designed to be severity an administra “[T]he is satisfied damages, [MPUC] lated must reflect the seriousness tive sanction they are not excessive. In re Revocation of the violation.” found that Accordingly, the MPUC Burke, 666 Care License Family Child Burke, as mandated penalty payments, (revers 724, (Minn.App.2003) N.W.2d at “reflect the seriousness 666 N.W.2d daycare provider’s license ing revocation MPUC cites the MPAP violation.” sanction); see also Hau overly as severe the statement as for (affirming at dis gen, 278 N.W.2d 80-81 in the nature payments designed are be reversal of commissioner’s trict court’s Qwest already stipulated damages. has estate brokers’ licenses revocation of real MPAP; Qwest nothing cites agreed to the sanction); Henry Youth overly severe as must its view that a CLEC support (affirming at 457 revo Hockey 511 N.W.2d a penalty show that harm occurred before appropriate licenses as gambling cation of Qwest failing imposed can be sanction); Li In re Insurance ly severe meet a benchmark.6 Kane, 473 N.W.2d 877-78 cences of to show that fails (Minn.App.1991) (reversing loss revo properly supported order is not sanction), overly license as severe cation of evidence. (Minn. 1991); In re Sept. review denied Co., Tipboard Minnesota 453 N.W.2d Taking c. Unlawful (affirming suspension (Minn.App.1990) that the Finally, argues bingo equipment as statu of license to sell taking in a MPUC order will result sanction), review denied torily approved Qwest’s will be property because 1999). (Minn. May payments to the CLECs required to make missing the benchmarks without Qwest claims the MPUC order is from the CLECs. compensation link because is no “[t]here unreasonable is, Qwest’s claim at any alleged responds MPUC penalties between *9 best, yet Qwest has not been premature: that harm.” The MPUC order states transcript a directly by billing But the reflects errors.” claims that "when asked point support why change explanation to to in the record the [the MPUC] more involved of doubling billing cap penalty the measures responses and sets forth to several was made $5,000 $10,000], merely the [from [CLECs] top- questions on the from the commissioners pro- argued doubling penalty that the would ic. greater to reduce vide incentive for
67 takings deprived property. principle type of sanctions at “[A] issue rate-making generally claim cannot based on the here. 2 Am.Jur.2d be See Admin- (1994). §§ rather it based methodology, but must be Law Lacking istrative 52-98 enough It is not that legislative the rate itself.... a grant specific pow- either a speculates govern- a that a party merely er to or clear caselaw granting sanction ment action cause harm.” Utils. will Iowa of an power, question agency’s (8th F.C.C., 744, Bd. v. 219 F.3d 754 Cir. power legal to sanction is a issue of first omitted) (Iowa 2000) (quotation Utilities However, impression. guidance some ex- II). larger agency question ists. The discre- tion in to define its mandate the course of claim, Qwest
In taking its fails to consid- rulemaking in was addressed Chevron er that it service controls of the U.S.A., Inc. v. Natural Resources adjust- provides and that its rates can be Defense Inc., Council, 837, 2778, 467 U.S. 104 S.Ct. if order compliance ed the MPUC’s (1984). 694 81 L.Ed.2d This landmark deprives it fair and re- of “a reasonable analyzed in case has been cited and several turn.” But until has in been fact See, Note, settings. e.g., Pragmatic A Ap- deprived property, takings of its it has no Chevron, proach 112 Harv. L.Rev. 1723 claim. (1999). Although power define en- DECISION forcement and sanctions is different area activity of administrative than the rule- We conclude that neither Chevron, considered in our making task is nor the penalty payments order as a whole law; analogous. conflict or with state federal adequate supports in evidence the order Here, it perva- is clear that the PUC has in general par- penalty payments and the authority local regulate telephone sive ticular, that a claim penalty that the (2002). service. See Minn.Stat. 237.16 payments unlawful taking prema- are an is governments The state and federal have ture. competition providing also decided that Affirmed. telephone local promot- service should be See, 261(c); e.g., ed. 47 Minn. U.S.C. MINGE, Judge (concurring specially). challenging Stat. 237.16. The task of es- join opinion I the court tablishing competitive a framework for a express write to additional on the views partly market falls on the MPUC. The use authority of the Minnesota Public Utilities penalties, principally payable of scheduled (MPUC) Commission an en- include injured by firms violations of the forcement mechanism its order. order, way streamline creative en- that, It accepted is well admin rule. although forcement the new MPUC The agencies only authority predictable. istrative are consequences have violations law, granted process simple. newly to them In this com- powers necessary telephone service, includes to petitive the incidental market of local accomplish them. qualities may important the duties conferred on such be to main- See rel. RR taining playing State ex & Warehouse the level field the mar- Mees, 46, Although ketplace requires. Comm’n v. 235 Minn. the enforce- (1951); new, may N.W.2d v. Tri- ment mechanism be it is not cf Lenihan Co., inherently Telephone Telegraph By looking State & irrational. at the 172, 184, ways Minn. variety N.W. which incumbent *10 (relator Quest extending exchange There is little or no caselaw this local carrier case) may fail to meet standards service, By tying the size innovative. is standard to the benchmark penalty violated, penalty is flexible.
which is of an to tie the hands
It unreasonable is attempting to handle
agency prudent in a fashion responsibilities
broad specific legislative it to obtain requiring step it each enforcement
authority for setting. I conclude every new
takes a rational efforts are the MPUC’s and are fulfilling its mandate
approach to authority of the MPUC implied
within responsibilities.
to meet its the sanction on challenged
Relator has penalties of the ground that the size penal- But the size of the
inappropriate. very to evaluate on this
ties is difficult pre-enforcement proceeding in a
record in an en-
and would be best determined proceeding.
forcement Regarding the
STATE of Minnesota JARVELA, Gregory Allen
Parties:
petitioner, Appellant,
v. formerly Penny
Penny BURKE,
Brotherton, Respondent. A03-1232.
No.
Court of of Minnesota. Appeals
April