This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).








NSPEA, Inc., d/b/a National Society for the Preservation of Engineering and Architecture,

Appellant (C0-02-895, C8-02-918),

 Respondent (C3-02-986),




State of Minnesota, Department of Administration,





Consulting Engineering Council of Minnesota,

Respondent (C0-02-895, C8-02-918),

Appellant (C3-02-986),


NSPEA, Inc., d/b/a National Society for the Preservation of Engineering and Architecture,

Appellant (C0-02-895, C8-02-918),

Respondent (C3-02-986),




City of Maple Grove, et al.,




Filed January 21, 2003


Anderson, Judge


Ramsey County District Court

File No. C7019420


Blake R. Nelson, Hellmuth & Johnson, PLLC, 10400 Viking Drive, Suite 560, Eden Prairie, MN  55344 (for NSPEA)


Mike Hatch, Attorney General, Amy V. Kvalseth, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103 (for respondent Department of Administration)


Jeffrey W. Coleman, Eric R. Heiberg, John A. Markert, Coleman, Hull & Van Vliet, PLLP, 8500 Normandale Lake Boulevard, Suite 2110, Minneapolis, MN  55437 (for Consulting Engineering Council)


John M. Baker, Pamela L. VanderWiel, 200 South Sixth Street, Suite 1200, Minneapolis, MN  55402 (for respondents City of Maple Grove, et al.)


            Considered and decided by Anderson, Presiding Judge, Stoneburner, Judge, and Wright, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellants challenge the district court’s denial of their petitions for issuance of writs of mandamus compelling state and municipal building officials to reject plans for non-exempt building projects that have not been prepared or certified by licensed engineers or architects, as required by Minnesota’s licensing statutes.  Respondents moved for summary judgment, seeking dismissal of the petitions.  The district court found that the building officials did not have a duty to enforce the Minnesota licensing statutes and granted respondents’ motion.  Because we conclude appellants have not met the conditions precedent for issuance of a writ of mandamus, we affirm.



            The National Society for the Preservation of Engineering and Architecture (NSPEA), by petition to the district court, sought a writ of mandamus compelling building officials for the cities of Maple Grove and Plymouth to issue permits only for engineering and architectural plans prepared by licensed engineers and architects, in compliance with Minn. Stat. §§ 326.02-326.15 (2002).  NSPEA also petitioned for a writ of mandamus to compel the Minnesota Department of Administration building officials to issue permits only for plans that had been prepared by licensed engineers and architects.

            The Minnesota Supreme Court ordered the two actions consolidated on December 20, 2001.  All parties moved for summary judgment.  By permission of the district court, the Consulting Engineering Council of Minnesota (CECM) intervened in this dispute.  The district court granted respondents’ motion for summary judgment, denied appellant’s motions, and also denied appellant’s petitions for writs of mandamus.  This appeal followed.


[T]he writ of mandamus is a remedy to compel any person, corporation, public functionary, or tribunal, to perform some duty required by law, where the party seeking relief has no other legal remedy, and the duty sought to be enforced is clear and indisputable. 


Bd. of Comm’rs of Knox County v. Aspinwall, 65 U.S. 376, 383 (1860).         A writ of mandamus “shall not issue in any case where there is a plain speedy, and adequate remedy in the ordinary course of law.”  Minn. Stat. § 586.02 (2002).  On appeal from an order that denies mandamus and finally determines the action, we review de novo whether the elements of the mandamus test have been satisfied.  McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn. 1989).  

            Mandamus is an extraordinary remedy based on equitable principles and is awarded at the discretion of the district court.  Coyle v. City of Delano, 526 N.W.2d 205, 207 (Minn. App. 1995).  A reviewing court will overturn the district court’s order on a petition for issuance of a writ of mandamus only when there is no evidence on which the district court could have reasonably based its decision.  Id.   The evidence presented regarding the central issue in this case concerns opposing interpretations of the relevant Minnesota statutes, rules, and the state building code.  In cases of pure statutory construction, a reviewing court’s analysis of the district court’s decision is de novo.  Hibbing Educ. Ass’n. v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

            Before a writ of mandamus may issue, the petitioner must meet the standing requirements of Minn. Stat. §§ 586.01-.02.  Coyle, 526 N.W.2d at 207.  To do so, the petitioner must demonstrate: (1) the failure of an official to exercise a duty imposed by law; (2) that petitioner is specifically injured by a public wrong, due to this failure; and (3) that there is no adequate alternative legal remedy.  Id.  Here, appellants have failed to demonstrate two of these requirements.

            1.         Failure to perform a mandated duty.

            Minnesota’s Uniform Building Code (UBC) was enacted in 1984 pursuant to Minn. Stat. § 16B.61.  Under section 16B.61, the commissioner of the Department of Administration is charged with enforcing and administering the UBC with regard to state and public facilities.  Minn. Stat. § 16B.61, subd. 1a. (2002).  Municipalities administer the UBC for state and public buildings through contractual agreement with the commissioner.  Id.  According to the UBC, state and municipal building officials are directed to enforce all provisions of the UBC.  UBC § 104.1, 104.2.1 (1997).  Building officials derive their power from, and their duties are described in, the UBC.  See Minn. Stat. § 16B.61, subd. 1a.; see also UBC § 104.  Under the UBC, building officials are not empowered or directed to enforce, in any way, the licensing requirements of Minn. Stat. § 326.03-.15.  See UBC, § 101.  The inescapable conclusion is that state and municipal building officials are not required or duty-bound to enforce the licensing requirements of section 326.  Mandamus will lie only where the law clearly and affirmatively imposes a duty upon an official.  Pole v. Trudeau, 516 N.W.2d 217, 219 (Minn. App. 1994).  Because no such mandated duty is imposed upon state and local building officials, the district court did not err in concluding that appellants had failed to meet the duty element of the mandamus test.

            2.         No alternative remedy.

            Generally, a party must exhaust all available administrative and legal remedies before seeking relief in the form of a mandamus action, unless the remedies are not adequate or do not exist.  Minn. Stat. §§ 586.02-.04; Zaluckyj v. Rice Creek Watershed Dist., 639 N.W.2d 70, 74 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002).  Requiring that alternative remedies be exhausted before resorting to the courts protects agency autonomy and promotes judicial efficiency.  Zaluckyj, 639 N.W.2d at 75.  The record produced through the administrative-review process aids judicial review, if resort to such is necessary.  Id.  But administrative remedies need not be pursued, if they would be futile.  Id

            Since at least 1921, the State of Minnesota has regulated the professions of architecture and engineering.  See Minn. Stat. §§ 326.02-.15 (2002).  Section 326.02, subd. 1, provides that any person practicing in these fields must be licensed or certified as provided by statute.  Minnesota law also requires that “no person, except an architect, [or] engineer, * * * licensed or certified as provided” by statute, shall practice in these fields “in the preparation of plans, * * * or other architectural, [or] engineering documents * * * .”  Minn. Stat. § 326.03 subd. 1.

Section 326.04 provides for the creation of the Board of Architecture, Engineering, Land Surveying, Landscape Architecture, Geoscience, and Interior Design (Board).  Minn. Stat. § 326.04.  The Board is invested with the following powers as set forth in section 326.06: the power to make all rules, consistent with the law, necessary in performing its duties, and the making of rules to define classes of structures, and persons performing engineering and architectural services, that may be exempted from statutory requirements such as those requiring licensing and certification.  Minn. Stat. § 326.06.

            The Board is charged with administering the licensing requirements as set forth by statute.  Minn. Stat. § 326.04-06.  As appellants asserted at oral argument, the building officials are “on the front-line” when it comes to the submission of building plans and issuance of building permits.  Therefore, appellants contend, the building officials provide the only line of defense against the unauthorized practice of architecture and engineering in violation of Minn. Stat. §§ 326.02-.15.  This assertion is misplaced.

The Board has a statutorily-prescribed procedure for the handling of alleged incidences of unauthorized practice of architecture and engineering.  See Minn. Stat. § 326.111.  This procedure includes the establishment of a “complaint committee to investigate, mediate, or initiate administrative or legal proceedings on behalf of the [B]oard with respect to complaints” brought before, or based on information otherwise received by, the Board.[1]  Minn. Stat. § 326.111, subd. 1(b).

            Accordingly, appellants’ complaints concerning the unauthorized practice of architecture and engineering should have been filed with the Board for proper administrative determination, before a petition for a writ of mandamus would have been appropriate.  Alternatively, if it was their intent to bypass the available administrative procedures, the burden is on appellants to demonstrate that seeking redress through the administrative process would have been futile or impossible.  See Zaluckyj, 639 N.W.2d at 74. Appellants have not established, and indeed, have made no serious attempt to establish, that redress through the administrative process was futile or impossible.  As appellants have argued, it would certainly be easier for building officials to simply reject nonconforming plans and specifications rather than to require appellants to seek out nonconforming plans and specifications and file complaints with the appropriate administrative agency.  But the test for granting the extraordinary writ of mandamus is not whether some other remedy might be more convenient for the complaining party or more efficient or superior in some other way.  The key determinant is the existence of an adequate alternative remedy, and we cannot say, on the record before us, that the administrative remedies available to the appellant are futile.[2]

Because we have concluded that appellants failed to establish at least two of the prerequisites for issuing a writ of mandamus, it is unnecessary in this analysis to reach the question of whether or not a public wrong occurred as a result of a specific injury to appellants.  Because appellants have failed to satisfy the requirements for issuance of a writ of mandamus, we affirm the district court’s ruling.


[1]  Minn. Stat. § 326.111, subd. 1(a) states:

If the board, or the complaint committee if authorized by the board, has a reasonable basis to believe that a person has engaged in an act or practice constituting the unauthorized practice of architecture, [or] engineering, * * * or a violation of a statute, rule, or order that the board has issued or is empowered to enforce, the board, or the complaint committee if authorized by the board, may proceed as described in subdivisions 2 and 3.


[2] It is not disputed that state and local building officials routinely issue building permits for plans that were not prepared by licensed individuals, technically in violation of the statute.  Although Minn. Stat. § 326.02, subd. 1 states that, in the interest of safeguarding “life, health, and property, and to promote the public welfare,” any persons practicing architecture or engineering by designing plans for public or private buildings must be licensed or certified according to §§ 326.02-.15, building officials are not charged with enforcing this requirement.  According to the UBC, which guides their conduct, building officials may reject plans prepared by unlicensed or uncertified persons, but are not required to do so.  UBC § 106.3.2 (emphasis added).  Appellants’ concern is that the intent of section 326.02—ensuring safety—is thwarted when unlicensed or uncertified individuals submit plans and receive building permits.  There is at least a hint in the record before us that large, complex projects on compressed timelines may be proceeding without the protections inherent in professional-licensing statutes.  But the legislature has directed that these potentially worrisome circumstances are within the purview of the licensing board and has not chosen to require that building officials participate in licensing-enforcement decisions.