Winberg v. University of Minnesota, Nos. CX-91-2009
| Decision Date | 14 May 1993 |
| Docket Number | Nos. CX-91-2009,C3-91-2224 and CX-91-2009 |
| Citation | 499 N.W.2d 799 |
| Parties | 82 Ed. Law Rep. 911 Roger L. WINBERG, Respondent, George Martin, Jr., Respondent, v. UNIVERSITY OF MINNESOTA, Petitioner, Appellant, Commissioner of Veterans Affairs, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
The University of Minnesota is not a "political subdivision" of the state to which the Veterans Preference Act, including Minn.Stat. §§ 197.455 and 197.46 (1990), applies.
Mark B. Rotenberg, University of Minnesota, Minneapolis, and Karen G. Schanfield and Penelope J. Phillips, St. Paul, for U of M.
Gayle Gaumer, Thomas Bennett Wilson, III, Edina, for George Martin, Jr.
Hubert H. Humphrey, Atty. Gen., Bernard E. Johnson, Sp. Asst. Atty. Gen., St. Paul, for Comm. of Veterans Affairs and Roger Winberg.
Heard, considered and decided by the court en banc.
The issue in this consolidated appeal is whether the University of Minnesota is a "political subdivision" of the state to which the Veterans Preference Act, Minn.Stat. §§ 197.455 and 197.46 (1990), applies. After over eighty years of non-application of the Act to the University of Minnesota, we are asked to examine and determine the validity of the University's claimed exemption from the Act. The court of appeals has affirmed an order of the Commissioner of Veterans Affairs and an order of the district court holding that the Act does apply to the University. We reverse.
In Winberg v. University of Minnesota (CX-91-2009), Roger Winberg, an honorably discharged veteran, applied but was not hired for fifteen different vacant positions advertised by the University of Minnesota from 1987 to 1991. He was not granted veterans preference points by the University or notified of the reasons for rejection of any of his applications. Winberg petitioned the Commissioner of Veterans Affairs for relief. After a hearing, the Administrative Law Judge (ALJ) determined that the University was either a political subdivision under Minn.Stat. § 197.455 (1990) or a state agency within the meaning of Minn.Stat. ch. 43A to which the Veterans Preference Act applies. Because there was no showing that Winberg would have been eligible for any of the positions even if preference points had been granted, the ALJ recommended only that the University be ordered to comply with the Act in the future.
The Commissioner adopted the ALJ's findings and ordered the University of Minnesota to revise its hiring practices to comply with the Act in all respects, including awarding veterans preference points and giving reasons for rejection. The University appealed the decision by writ of certiorari to the court of appeals.
In Martin v. University of Minnesota (C3-91-2224), George Martin, Jr., an honorably discharged veteran employed for thirty years by the University of Minnesota, requested a veterans preference hearing pursuant to Minn.Stat. § 197.46 (1990) when he was notified that he was going to be laid off because his position was being abolished in a departmental reorganization. The University denied the request for a hearing on the ground that section 197.46 does not apply to the University. Martin sought a writ of mandamus and injunctive relief in district court. The district court, after a hearing, concluded that the University is a political subdivision of the state to which the Veterans Preference Act applies and enjoined the University from terminating Martin's employment until he is provided a hearing pursuant to section 197.46. The University appealed the order of the district court and requested the consolidation of the Martin and Winberg appeals.
A divided panel of the court of appeals affirmed both orders. See Winberg v. University of Minnesota, 485 N.W.2d 325 (Minn.App.1992). The majority held that the University of Minnesota is included within the term "political subdivision" for purposes of the Veterans Preference Act. 1 Id. at 328. Having found the Act applicable, the court of appeals went on to hold that application would not infringe upon the constitutional power of the Board of Regents to govern the University because the Act would apply only to nonacademic, non-confidential, non-policymaking positions and not to professors, faculty, instructors, administrators, or teaching assistants. Id. at 330. The court of appeals also held the granting of the permanent injunction not to be an abuse of discretion. Id.
The dissenting judge, on the authority of our case law, concluded that "political subdivision" cannot be defined to include the University. Id. at 331 (Huspeni, J., dissenting). The dissent notes that our courts have found an entity to be a political subdivision under the Act only where the entity has the power to tax or to cause taxes to be levied. Id. ().
Since 1907, Minnesota veterans have been afforded a preference, by law, in public employment. See Act of April 19, 1907, ch. 263, §§ 1, 2, 1907 Minn.Laws 355. The "laudable purpose" of this legislation was "to give a well-earned preference in appointments in the public service to those who have honorably served the nation in its time of peril." State ex rel. Kangas v. McDonald, 188 Minn. 157, 161, 246 N.W. 900, 901 (1933). The Act was also designed "to protect honorably discharged veterans in public employment from the ravages and insecurity of a political spoils system." Johnson v. Village of Cohasset, 263 Minn. 425, 435, 116 N.W.2d 692, 699 (1962). Veterans preference laws have been held to be remedial statutes that are to be liberally construed to accomplish their legislative purpose. See Abt v. Wilcox, 264 Mich. 183, 249 N.W. 483, 483 (Mich.1933); Krohn v. Judicial Magistrate Appointing Comm'n, 239 N.W.2d 562, 564 (Iowa 1976).
The provision at issue in Winberg's case gives veterans a credit of five or ten points on their examination ratings when applying for public employment. It reads:
The provisions of section 43A.11 granting preference to veterans in the state civil service shall also govern preference of a veteran under the civil service laws, charter provisions, ordinances, rules or regulations of a county, city, town, school district, or other municipality or political subdivision of this state, except that a notice of rejection stating the reasons for rejection of a qualified veteran shall be filed with the appropriate local personnel officer.
Minn.Stat. § 197.455 (1990) (emphasis added). Martin's case involves the provision of the Veterans Preference Act which requires public employers to hold a hearing before terminating a veteran's employment. That section, in relevant part, provides:
No person holding a position by appointment or employment in the several counties, cities, towns, school districts and all other political subdivisions in the state, who is a veteran separated from the military service under honorable conditions, shall be removed from such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, in writing.
Minn.Stat. § 197.46 (1990) (emphasis added). Nowhere in the Veterans Preference Act has the legislature specifically named the University as an entity to which the Act applies. Sections 197.455 and 197.46 name only counties, cities, towns, school districts, municipalities, and political subdivisions. Is the University a political subdivision of the state for purposes of the Act? We hold that it is not.
The University of Minnesota is a unique constitutional corporation, established by territorial act in 1853 and perpetuated by the state constitution in 1857. The people of Minnesota thereby conferred the entire control and management of the University's affairs and property upon the board of regents, leaving no such power to be exercised by the legislature. State ex rel. University of Minnesota v. Chase, 175 Minn. 259, 220 N.W. 951 (1928). Though the powers of the regents are not subject to legislative or executive control, the University is not "above the law." Fanning v. University of Minnesota, 183 Minn. 222, 226, 236 N.W. 217, 219 (1931).
The legislature recognizes the University's unique constitutional status and, in the great majority of laws it passes affecting the University, it expressly includes or excludes the University or its board of regents as subject to or not subject to the law. 2 Thus, if the legislature had intended the Veterans Preference Act to apply to the University of Minnesota, it most likely would have included the University by specific reference. Using Minn.Stat. § 645.27, a rule of statutory construction which provides that "the state is not bound by the passage of a law unless named therein," the University, which is itself a constitutional arm of the state, would not be bound by the Veterans Preference Act unless explicitly named.
Furthermore, the Act does not seem to have been drafted with the University in mind. As the University points out, the terms "school," "teacher," and "superintendent of schools," found in section 197.46, while appropriate to the primary and secondary school systems, do not fit the University or its job classifications. We find this significant because the Public Employers Labor Relation Act, which specifically establishes bargaining units for University of Minnesota employees, does not use the term "teacher" but "professor", "associate professor", and "assistant professor" when referring to academic employees. Minn.Stat. § 179A.11, subd. 1(8). (1992)
Nor does the case law suggest that the University should be considered a political subdivision of the state to which the Act applies. The only case defining "political subdivision" for purposes of the Veterans Preference Act is Dahle v. Red Lake Watershed Dist., 354 N.W.2d 604, 606 (Minn.Ct.App.1984), in which ...
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