A17-1958

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0971
A17-1958

Pro-Life Action Ministries, Incorporated, et al.,
Appellants,

vs.

Regents of the University of Minnesota,
Respondent.

Filed August 20, 2018
Appeals dismissed
Rodenberg, Judge

Hennepin County District Court
File No. 27-CV-16-15359

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for
appellants)

Douglas R. Peterson, General Counsel, Brian J. Slovut, Deputy General Counsel, Carrie
Ryan Gallia, Assistant General Counsel, University of Minnesota, Minneapolis, Minnesota
(for respondent)

Considered and decided by Florey, Presiding Judge; Peterson, Judge; and
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellants challenge the district court’s dismissal of their petition for a writ of quo
warranto. Appellants argue that the district court erred by (1) dismissing the petition for

2
lack o f taxpayer standing, (2) failing to hold an evidentiary hearing on the question of
standing, and (3) denying appellants’ rule 60.02(b) motion for relief. Because the purpose
of these consolidated appeals was rendered moot by the legislature’s 2017 passage of Minn.
Stat. § 137.47 (Supp. 2017), we dismiss the appeals.
FACTS
Appellants Pro Life Action Ministries, Incorporated, et al., filed a petition for a writ
of quo warranto in district court in October 2016. Appellants alleged that “[t]he University
of Minnesota [(the university)] 1 is procuring and using human fetal tissue for
transplantation research which it cannot do under statutory law. ” Appellants alleged that
the university has a policy entitled , “Procuring and Using Human Fetal Tissue for
Transplantation Research,” which sets forth the university’s policies and procedures for
procuring and using fetal tissue in research. Appellants alleged that Minn. Stat. § 145.1621
(2016) prohibits testing of fetal remains except in limited circumstances, none of which are
applicable to the university’s research. Appellants alleged that the university’s policy and
any research completed thereunder is therefore unauthorized by law and a misuse of public
funds. Appellants claimed standing to pursue the writ as taxpayers challenging the use of
public funds because respondent had acted illegally by authorizing the procurement of fetal
tissue for research.
Appellants requested a writ of quo warranto to require respondent:

1 We distinguish between the university and respondent Regents of the University of
Minnesota. For the purposes of this case, references to the former are to the institution of
higher education, whereas references to the latter are to the party named in this appeal.

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(1) to show how the University of Minnesota has authority to
implement its administrative policy for “procuring and using
human fetal tissue for transplantation research” when
Minnesota Statute § 145.1621 states that fetal tissue testing is
limited to “laboratory tests to those necessary for the health of
the woman or her future offspring or for purposes of a criminal
investigation or determination of parentage prior to disposing
of the remains”;
(2) [t]o show how the University of Minnesota is not violating
Minnesota Statute § 145.1621;
(3) [t]o show how the University of Minnesota’s policy to
allow the testin g of human fetal tissue from out -of-state for
transplantation research is not preempted by Minnesota Statute
§ 145.16[2]1; and
(4) [t]o show why this Court should not issue a writ enjoining
the University of Minnesota’s administrative policy for
“procuring and using human fetal tissue for transplantation
research” as an ongoing violation of Minnesota Statute
§ 145.1621.

Appellants also requested a hearing on the petition and that the district court issue a writ
enjoining the university from procuring and using fetal tissue in research.
Respondent moved to dismiss the petition, arguing that appellants lacked standing
to bring a quo warranto action because they “failed to identify a specific disbursement of
funds that violates [section 145.1621]” an d because taxpayer standing has never been
applied to money appropriated by the legislature to a university which is combined with
the university’s other revenue sources. Respondent also argued that a writ of quo warranto
would be inappropriate because section 145.1621 does not provide a private cause of action
and only provides criminal penalties, and because writs of quo warranto are not intended
to be “employed to test the legality of the official action of public or corporate officers.”

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After a hearing , the district court granted respondent’s motion to dismiss,
concluding that appellants do not have standing to petition for a writ of quo warranto.
Appellants appealed the dismissal of the petition.
Appellants thereafter requested reconsideration and moved for relief from the
judgment, citing newly discovered evidence. The district court denied the motions,
concluding that the information contained within the allegedly newly discovered emails
could have been discovered earlier with due diligence. App ellants appealed the denial of
the relief from judgment, which we consolidated with their earlier appeal.
D E C I S I O N
Appellants argue that the district court erred in dismissing their petition for lack of
taxpayer standing. Appellants argue they alle ged sufficient facts regarding illegal use of
tax funds and illegal action on the part of public officials to establish standing. Appellants
argue that, at a minimum, the district court should have held an evidentiary hearing to
resolve factual disputes c oncerning standing, i.e., whether the university is currently
spending taxpayer money to procure fetal tissue and whether the university is using fetal
tissue in violation of section 145.1621, subdivision 4.
Section 145.1621, subdivision 4, provides,
Hospitals, clinics, and medical facilities in which
abortions are induced or occur spontaneously or accidentally
and laboratories to which the remains of human fetuses are
delivered must provide for the disposal of the remains by
cremation, interment by burial, or in a manner directed by the
commissioner of health. The hospital, clinic, medical facility,
or laboratory may complete laboratory tests necessary for the
health of the woman or her future offspring or for purposes of

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a criminal investigation or determination of parentage prior to
disposing of the remains.

Appellants argue that this fetal-disposition statute limits any research on fetal tissue
by the university to tests “necessary for the health of the woman or her future offspring or
for purposes of a criminal investigation or determination of parentage.”
During the pendency of this case, the legislature passed a statute concerning fetal-
tissue research conducted at the university. See Minn. Stat. § 137.47 (2017). The statute
provides:
A researcher at the University of Minnesota must obtain
approval from the [Fetal Tissue Research Committee (FTR)]
before conducting research using fetal tissue. The FTR must
consider whether alternatives to fetal tissue would be sufficient
for the research. If the proposed research involves aborted fetal
tissue, the researcher must provide a written narrative
justifying the use of aborted fetal tissue and discussing whether
alternatives to aborted fetal tissue, including non -aborted fetal
tissue, can be used.

Minn. Stat. § 137.47, subd. 2(a). The FTR is defined as “an oversight committee at the
University of Minnesota with the responsibility to oversee, review, and approve or deny
research using fetal tissue.” Id., subd. 1(e). Respondent argues that th e passage of
section 137.47 renders this appeal moot because the statute permits the university to
conduct research on fetal tissue if approval is granted by the FTR.
Whether an appeal is moot is a legal question subject to de novo review. Dean v.
City of Winona, 868 N.W.2d 1, 4 (Minn. 2015) . “[Appellate courts] consider only live
controversies, and an appeal will be dismissed as moot when intervening events render a
decision on the merits unnecessary or an award of effective relief impossible. But an appeal

6
is not moot when a party could be afforded effective relief.” Wayzata Nissan, LLC v.
Nissan N. Am., Inc. , 875 N.W.2d 279, 283 (Minn. 2016) ; see Sprenger v. Jacobs , 305
N.W.2d 747, 748 (Minn. 1981) (“It is well settled that if, pending an appeal, an event occurs
which makes a decision unnecessary, the appeal will be dismissed as presenting a moot
question.”). Action by the legislature may render an appeal moot. See Peterson v.
Humphrey, 381 N.W.2d 472, 475 (Minn. App. 1986) (holding that the legislat ure’s repeal
of an act upon which the lawsuit was based rendered the appeal moot), review denied
(Minn. Apr. 11, 1986).
Under section 137.47, “research” is defined as “systematic investigation, including
development, testing, and evaluation, designed to de velop or contribute to generalizable
knowledge. Research does not include a procedure or test administered to a particular
patient by a physician for medical purposes.” Minn. Stat. § 137.47, subd. 1(g). Respondent
argues that the plain language of secti on 137.47 permits testing of fetal tissue , and, as the
more specific statute concerning research on fetal tissue at the university, it controls over
section 145.1621.
Appellants argue that section 137.47 does not render this appeal moot, because it
does n ot “expressly state [that] research is allowed or otherwise expressly preempt or
supersede the provisions of Minnesota Statute § 145.1621, subd. 4’s prohibitio ns to
‘testing’ in laboratories .” Appellants also argue that, because the parties continue to
dispute standing and the application of the rules of civil procedure to a petition for a writ
of quo warranto, the case continues to present a live controversy.

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The interplay of the two statutes at issue presents a question of stat utory
interpretation, which is considered de novo. Staab v. Diocese of St. Cloud , 853 N.W.2d
713, 716 (Minn. 2014). The goal of statutory interpretation is to effectuate the intent of
the legislature. Minn. Stat. § 645.16 (2016). “If the Legislature’s intent is clear from the
statute’s plain and unambiguous language, then [appellate courts] interpret the statute
according to its plain meaning without resorting to the canons of statutory construction.”
Linn v. BCBSM, Inc., 905 N.W.2d 497, 501 (Minn. 2018) (quotation omitted).
When 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. If
the conflict between the two provisions be irreconcilable, the
special provision shall prevail and shall be construed as an
exception to the general provision . . . .

Minn. Stat. § 645.26, subd. 1 (2016). “When the provisions of two or more laws passed at
different sessions of the legislature are irreconcilable, the law latest in date of final
enactment shall prevail.” Id., subd. 4 (2016).
We begin by determining if the laws are in conflict and, if so, whether they may be
construed in a way that gives effect to both. Section 145.1621, subd ivision 4, requires
“laboratories to which the remains of human fetuses are delivered” to dispose of the
remains as prescribed. The laboratories may also “complete laboratory tests necessary for
the health of the woman or her future offspring or for purposes of a criminal investigation
or determination of parentage prior to disposing of the remains.” Minn. Stat. § 145.1621,
subd. 4. Section 145.1621, subdivision 4, does not explicitly permit any testing or research
for other purposes to be conducted on the remains before disposal. The remains to which

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the statute applies are defined as “the remains of the dead offspring of a human being that
has reached a stage of development so that there are cartilaginous structures, fetal or
skeletal parts.” Id., subd. 2.
Section 137.47, subdivision 2(a), provides that “research using fetal tissue” at the
university is permitted with “approval from the FTR .” “The FTR must consider whether
alternatives to fetal tissue would be sufficient for the research.” Minn. Stat. § 137.47,
subd. 2(a). The fetal tissue can be from an elective abortion, a miscarriage, a stillbirth, or
“a living unborn child.” Id., subd. 1( a), (f). Appellants argue that the statute does not
authorize research at the university, and only pertains to reporting requirements that must
be provided to the legislature. But section 137.47 clearly contemplates fetal-tissue research
to be conducted by the university if certain conditions and procedures are satisfied.
Subdivision 2 of the statute cannot sensibly be read as having any other purpose or
meaning.
Assuming, but without deciding, that the university’s procurement of fetal tissue
requires a delivery of the tissue to the university’s laboratories and a subsequent disposal
of the tissue, the statutes are in conflict. Material that is fetal tissue under section 137.47,
subdivision 1(c) could also be “fetal remains” under section 145.1621, subdivision 2, to
the extent that the tissue is from an aborted or miscarried f etus that has developed
cartilaginous, fetal, or skeletal parts. Under section 145.1621, subdivision 4, testing is
permitted if it is “necessary” and relates to the health of the woman or her future offspring,
a criminal investigation, or a parentage determination. But research, described in
section 137.47, is not limit ed to testing in those areas described in section 145.1621,

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subdivision 4, and there is no requirement under section 137.47 that the testing be
“necessary.” Rather, the research must be “designed to develop or contribute to
generalizable knowledge.” Id., subd. 1(g). Therefore, to the extent that the fetal-tissue
research conducted under section 137.47 involves tissue from an aborted or miscarried
fetus at the stage of cartilaginous o r skeletal development, section 145.1621, subdivision
4, if applicable, would limit the type of testing that may be undertaken, and excludes the
research contemplated by section 137.47. Because section 137.47 permits research using
the same type of fetal tissue described in section 145.1621, despite section 145.1621’s
limitations on the type of testing that may be completed on those remains, the statutes are
in conflict.
Nevertheless, appellants argue that we can construe the two statutes to give effect
to both if we construe section 137.47, concerning research conducted on tissues of aborted
or miscarried fetuses, to be limited to embryonic tissue —the tissue from the pre-
cartilaginous/skeletal stage of development. But section 137.47 does not limit research to
the embryonic phase. Rather, fetal tissue includes any part of “an unborn human child,”
including tissue derived from an aborted or miscarried fetus, and section 137.47 permi ts
research to be conducted using those tissues . Id., subd. 1(b), (c), (f). To place a limit on
research based on the embryonic or fetal age of tissue derived from aborted or miscarried
fetuses reads an exception into section 137.47 that does not otherwise exist. “We may not
add words to a statute that the Legislature has not supplied.” Johnson v. Cook County, 786
N.W.2d 291, 295 (Minn. 2010); see also Beardsley v. Garcia, 753 N.W.2d 735, 740 (Minn.

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2008) (declining to interpret a statute so as to “effe ctively rewrite” it because that
prerogative belongs to the legislature).
Likewise, appellants ’ interpretation that “the university cannot test any type of
tissue of any fetus from eight weeks to birth” or during “the entire spectrum of the post -
embryonic stages of fetal development” based on section 145.1621 would render a portion
of section 137.47 ineffective—the portion defining fetal tissue as including tissue derived
from stillbirths rather than from aborted or miscarried fetuses . See id., subd. 1(f). We
presume that the legislature intends the entirety of a statute to be effective and certain.
Minn. Stat. § 645.17(2) (2016). Here, section 137.47 specifically applies to research
conducted on tissue derived from all stages of fetal development including from abortions,
miscarriages, an d stillbirths. Placing a fetal -age limitation on tissue derived from an
abortion or miscarriage in order to effectuate section 145.1621 ignores that research still
would be permitted on fetuses with skeletal and cartilaginous structures that resulted from
a stillbirth. Attempting to give effect to both sections 145.1621 and 137.47 would lead to
an absurd result whereby the legislature would permit research to be conducted on fetal
tissue derived from stillborn fetuses with skeletal or cartilaginous structures, but would not
permit researc h on fetal tissue derived from miscarried fetuses with the same
developmental structures. See Minn. Stat. § 645.17(1) (2016) (indicating that “the
legislature does not intend a result that is absurd, impossible of execution, or
unreasonable”).2

2 We note that, in 2017, members of the Minnesota House of Representatives introduced a
bill to prohibit the acquisition or use of aborted fetal tissue for research, including research

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Because effect cannot be given to both section 145.1621 and section 137.47 without
reaching an a bsurd re sult, we must determine which statute prevails over the other.
Appellants argue that section 145.1621 is more specific because it more specifically
describes the fetal remains to which it applies. However, appellants’ petition for a writ of
quo warranto specifically challenges the university’s authority to conduct f etal-tissue
research. The legislature has established requirements for fetal -tissue research at th e
university. Th erefore, as the more -specific provision concerning fetal-tissue research at
the university, section 137.47 controls concerning such research instead of the more -
general section 145.1621. Minn. Stat. § 645.26, subd. 1. Likewise, the legislature passed
section 137.47 exactly 30 years after section 145.1621 became law. Because the statutes
cannot be read to give effect to both provisions witho ut rendering an absurd result, the
newer statute prevails. Id., subd. 4.
Appellants’ purpose in pursuing the writ of quo warranto is to require the university
to answer how the university’s fetal -tissue research is legal in light of the limitations
contained within section 145.1621. The legislature’s passage of section 137.47 has
resolved that question: fetal-tissue research is permitted at the university so long as certain
conditions are met and procedures are followed. The purpose of appellants’ p etition has
been satisfied—the legislature has expressly provided the authority whereby the university

conducted at the university. H.F. 2814 (2017); State of Min nesota, Journal of the House,
90th Sess. 7048 (Feb. 20, 2018). No accompanying bill in the Minnesota Senate was
introduced during the 2017 legislative session. The introduction of the bill suggests that
some members of the house of representatives do not believe that section 145.1621, as
currently written, acts as a bar to fetal-tissue research at the university.

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may conduct fetal -tissue research. A live controversy on this issue, as framed by
appellants, no longer exists. Therefore, a decision by this court concerning whether the
district court erred in dismissing the petition for lack of standi ng or in denying relief from
judgment would be unnecessary and we do not address those arguments.
Appeals dismissed.