Jeffery R. Anderson, Karen A. Kugler, Barbara J. Felt, Reinhardt & Anderson, 332 Minnesota Street, St. Paul, MN 55101 (for respondents Christopher Fields and John Starks),

Hubert H. Humphrey III, Attorney General, Erica Jacobson, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent State of Minnesota),

Clifford M. Green, John M. Baker, 333 South Seventh Street, Suite 1700, Minneapolis, MN 55402 (for appellants).

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

After the test was developed and validated, the appellant cities formed MPRS, a joint powers organization, to administer the test to police officer candidates and present a list of candidates with passing scores to the participating cities. Passing the MPRS exam was only one step in the police officer hiring process. Candidates who passed the test decided whether to apply for a position in a particular city, and each city decided what criteria to apply when making hiring decisions. The appellant municipalities retained control of their own hiring processes.

Respondents John Starks and Christopher Anthony Fields are African-American men who completed college degree programs that qualified them to seek peace officer licenses in Minnesota. Starks took and failed the MPRS written exam in 1989, 1990, and 1992, and Fields took and failed the exam in 1991 and 1992, which disqualified both respondents from further consideration by appellant municipalities for employment as police officers.

In 1993, respondents brought separate lawsuits alleging that the MPRS exam violated the MHRA because of its unjustified discriminatory impact upon African- American candidates. The trial court consolidated the separate lawsuits for a bench trial. The respondents did not seek class action certification and their cases were limited to a disparate impact theory of liability.

The trial court determined that the MPRS test and certain testing procedures had an impermissible disparate impact upon African-American test takers. The trial court ordered appellants to implement changes to the MPRS testing procedure, including (1) the elimination of use of the AP predictor, (2) the elimination of use of cut-scores on the remaining predictors, and (3) the elimination of use of any language or content of any written testing procedure which references minority races or is racially offensive in any manner.

The trial court also ordered appellants to undertake the following hiring practices: implement, to the satisfaction of the trial court, a program establishing an intern or CSO-type position; identify interested and eligible minority persons and extend offers of the outlined positions to such persons; and maintain detailed documentation as to the identity, race and number of interested and eligible persons identified for internship or CSO-type positions and the identity, race and number of offers of such positions extended to applicants for such positions.

Finally the trial court required appellants to comply with a minority race hiring requirement within seven years of the date of this order, such that the hiring rate of minority race persons from 1979 to November 1, 2003 at least equals the hiring rate of whites during the same time period. The "hiring rate" shall be defined as the number of applicants hired from each group divided by the total number of applicants from each group. The hiring requirement is a collective obligation of all [appellant] municipalities and accordingly the appropriate applicant pool shall include the total number of persons who submit applications to any of the [appellant] municipalities over the relevant period of time.

The trial court imposed a $300,000 statutory penalty, to be paid to the State of Minnesota should appellants fail to comply with the trial court's affirmative action hiring orders, and awarded respondents compensatory and punitive damages. The trial court also awarded respondents attorney fees in the amount of $412,737.08 with interest.

Appellants correctly cite Minn. R. 6700.0700, subpt. 1 (1997), which provides: "A person eligible to be licensed shall meet the following minimum selection standards before being appointed to the position of peace officer." But appellants do not cite any of the selection standards that must be met, and, consequently, do not indicate any minimum standard that either respondent failed to meet.

Stark took the MPRS exam in 1989, 1990, and 1992, and Fields took it in 1991 and 1992. Both respondents brought their lawsuits in 1993. During that time period, the relevant minimum selection standard for becoming a peace officer was set forth in Minn. R. 6700.0700, subpt. 1.E (1989-1993), which provides:

The applicant shall not have been convicted of a felony in this state or in any other state or federal jurisdiction or of any offense in any other state or federal jurisdiction which would have been a felony if committed in Minnesota.

Because neither respondent had been convicted of a felony, neither was disqualified from becoming a peace officer under Minn. R. 6700.0700, subpt. 1 (1989-1993).

Appellants also argue that respondents did not meet the minimum selection standards for becoming peace officers because their misdemeanor theft convictions make them ineligible under Minn. R. 6700.0601, subpt. 1.I. But Minn. R. 6700.0601, subpt. 1.I, was not adopted as a rule until 1994. 18 Minn. St. Reg. 1961 (1994). Therefore, the rule does not apply to respondents, who sought peace officer licenses before 1993. See Peoples Natural Gas Co. v. Minnesota Pub. Utils. Comm'n, 369 N.W.2d 530, 533 (Minn. 1985) (ratemaking is quasi-legislative function and legislation operates prospectively). Respondents' misdemeanor theft convictions did not disqualify them from becoming licensed peace officers, and therefore, did not affect respondents' standing.

"Injunctive relief * * * must be carefully tailored to remedy the alleged specific harm to the parties involved." Butler v. Dowd, 979 F.2d 661, 674 (8th Cir. 1992). "The remedy must of course be limited to the inadequacy that produced the injury-in-fact that the plaintiff has established." Lewis v. Casey, 116 S. Ct. 2174, 2183 (1996).

An injunction is not overbroad merely because it extends a benefit or protection to persons other than the prevailing parties, if such remedies are necessary to give the prevailing parties the relief to which they are entitled. Brown v. Trustees of Boston Univ., 891 F.2d 337, 361 (1st Cir. 1989). The record supports the trial court's finding that the MPRS exam produced a discriminatory impact on African-American police candidates. Therefore, the trial court could order injunctive remedies related to the exam and its administration even though the benefit of these remedies will extend to persons other than respondents.

But we have found no evidence in the record indicating that respondents were injured by an employment practice other than using the MPRS exam. Taking the exam was the initial stage in the hiring process, and respondents were eliminated from the process at that stage. Absent any showing that respondents were injured by an employment practice later in the hiring process, the trial court exceeded the scope of its authority by issuing an injunction that redressed injuries that respondents did not actually suffer. We reverse all the injunctive remedies issued by the trial court, except the remedies specifically relating to the MPRS exam and its administration.

Because we conclude that the trial court exceeded its authority by ordering race-based hiring remedies, it is not necessary for us to determine whether those remedies violated the Equal Protection Clause of the United States Constitution.

Minn. Stat. § 363.071, subd. 2 (1996), provides in part:

The [trial court] judge shall order any respondent found to be in violation of any provision of section 363.03 to pay a civil penalty to the state. This penalty is in addition to compensatory and punitive damages to be paid to an aggrieved party. The [trial court] judge shall determine the amount of the civil penalty to be paid, taking into account the seriousness and extent of the violation, the public harm occasioned by the violation, whether the violation was intentional, and the financial resources of the respondent.

The plain language of the statute indicates that a civil penalty is to be ordered when the trial court has found a violation of Minn. Stat. § 363.03 (1996), which prohibits unfair discriminatory practices. Here, the trial court ordered a contingent penalty as a means to enforce its injunctive remedies. A penalty that is contingent upon appellant's future conduct is not based on a finding that section 363.03 has been violated; it is based on a possibility that section 363.03 will be violated, and, therefore, is not authorized by the statute.

In Cummings v. Koehnen, 568 N.W.2d 418, 422, n.5 (Minn. 1997), the supreme court noted that while it has looked to Title VII in interpreting the MHRA because the statutes are similar in many respects, it would decline to follow federal precedent where the MHRA is not similar to Title VII. The MHRA authorizes the trial court to award to an aggrieved party who has suffered discrimination: (1) compensatory damages in an amount up to three times the actual damages; (2) damages for mental anguish or suffering; and (3) punitive damages up to $8,500. Minn. Stat. § 363.071, subd. 2.

A party may prove discrimination by showing that an employment practice has a disparate impact. Minn. Stat. § 363.03, subd. 11 (1994) provides:

If the complaining party has met its burden of showing that an employment practice is responsible for a statistically significant adverse impact on a particular class of persons protected by section 363.03, subdivision 1, clause (2), an employer must justify that practice by demonstrating that the practice is manifestly related to the job or significantly furthers an important business purpose. Upon establishment of this justification, the charging party may prevail upon demonstration of the existence of a comparably effective practice that the court finds would cause a significantly lesser adverse impact on the identified protected class.

Because the MHRA expressly recognizes that discrimination can be proved by showing that an employment practice is responsible for a statistically significant adverse impact on a particular class of persons, contrary federal precedent did not preclude the trial court from awarding damages in a disparate impact case.

Appellants also argue that the trial court erred in awarding compensatory damages without regard to respondents' alleged lack of qualifications to become police officers and absence of proof that they would have been hired but for the exam. We disagree. The award of damages under the MHRA is committed to the trial court's "sound discretion and may be modified only if arbitrary and capricious or if unsupported by substantial evidence on the record as a whole." Continental Can Co., v. State, 297 N.W.2d 241, 251 (Minn. 1980).

Minn. Stat. § 363.03, subd. 1 provides:

Except when based on a bona fide occupational qualification, it is an unfair employment practice:

* * * *

(2) For an employer, because of race * * * ,

(a) * * * to maintain a system of employment which unreasonably excludes a person seeking employment[.]

The trial court determined that respondents met all of the requirements under state law necessary to qualify them for employment as police officers, but both were disabled from pursuing employment as police officers because they failed an exam that has a disparate impact on African Americans. It may be that none of the appellant municipalities would ultimately have hired respondents had they passed the MPRS exam and been placed on the list of available candidates. But this does not change the fact that respondents met the legal requirements for becoming police officers, and the MPRS exam excluded them from even being considered as candidates for employment.

Furthermore, contrary to appellants' argument, the trial court considered the fact that respondents may not have been hired by any of the appellant municipalities even if they had passed the MPRS exam, and reduced respondents' damages awards to reflect the chance that respondents would not have been hired. The trial court's compensatory damages award was based on the following finding:

During 1996 and 1997, [respondents] have a loss of earning capacity associated with their failure to have been employed as police officers. However, the chance that they would have been a police officer even had they passed the Exam during the year in which they became Post Board eligible was 8.9%, and accordingly this is the degree to which they reasonably suffered loss of future actual damages.

The trial court did not err in awarding respondents a total of $156,688 for lost time, loss of future earning capacity, and emotional distress.

Minn. R. Civ. P. 60.01 provides:

Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time upon its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected with leave of the appellate court.

The supreme court has stated that a clerical mistake:

ordinarily is apparent upon the face of the record and capable of being corrected by reference to the record only. It is usually a mistake in the clerical work of transcribing the particular record. It is usually one of form. It may be made by a clerk, by counsel, or by the court. A clerical error in reference to an order for judgment or judgment, as regards correction, includes one made by the court which cannot reasonably be attributed to the exercise of judicial consideration or discretion.

Wilson v. City of Fergus Falls, 181 Minn. 329, 332, 232 N.W. 322, 323 (1930).

The findings of fact in the November 1996 order state that actual damages, other than emotional distress damages, are $8,131 for Starks and $5,213 for Fields. The same order also indicates that each respondent is awarded $65,000 for emotional distress damages. In the conclusions of law, respondent Starks was awarded $81,262 and respondent Fields was awarded $75,426 for actual damages.

Based upon our examination of the record, we conclude that the trial court order did not contain a clerical mistake. The trial court exercised its discretion in deciding to multiply the damages for loss of earning capacity, and to not multiply the emotional distress damages.

Generally, under Minn. Stat. § 549.20, subd.1 (a) (1996), punitive damages are "allowed only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others." Under Minn. Stat. § 549.191 (1996), a complaint may not seek punitive damages; rather, after filing a complaint, a party may bring a motion to amend the pleadings to claim punitive damages.

However, no motion is required to seek punitive damages under the MHRA. In Bougie v. Sibley Manor, Inc., 504 N.W.2d 493, 496 (Minn. App. 1993), this court concluded that the trial court's failure to strike a claim for punitive damages for lack of compliance with Minn. Stat. § 549.191 in a case brought under the MHRA constituted harmless error when the trial court ultimately concluded that punitive damages were appropriate. Similarly, in Ulrich v. City of Crosby, 848 F. Supp. 861, 876-77 (D. Minn. 1994), the federal district court held that plaintiffs may seek punitive damages under the MHRA without complying with the motion requirements of Minn. Stat. § 549.191.

Although respondents were not precluded from recovering punitive damages, we conclude that the trial court abused its discretion by awarding punitive damages where the record does not demonstrate that appellants acted with deliberate disregard for the rights or safety of others. The trial court stressed on several occasions that appellants' effort to design and validate a screening test "involves in the court's view, the absence of any intent to discriminate with respect to such an effort." The trial court also acknowledged that the MPRS examination had been carefully designed by professionals with the intention of developing a nondiscriminatory and validated screening test. Therefore, we reverse the punitive damages award to each respondent.

The prevailing party in a discrimination lawsuit may be awarded reasonable attorney fees and costs. Minn. Stat. § 363.14, subd. 3 (1996). However, a reduction in fees is justified where a prevailing party was not successful on all theories of discrimination in the case. Sigurdson v. Isanti County, 433 N.W.2d 910, 914 (Minn. App. 1988), aff'd, 448 N.W.2d 62 (Minn. 1989). Because we have determined that respondents could not obtain relief for injuries that they did not actually suffer, and that the trial court exceeded its authority by issuing injunctive remedies related to hiring practices other than using the MPRS exam, we reverse the attorney fees award and remand for a determination of fees in light of respondents' limited success.

Affirmed in part, reversed in part, and remanded. Motion denied.