MS 480A.08 Unpublished Opinions?

SAo how much trouble can one get for publishing it?Is it just a misdeamnor?
Rule of Law Threats - Unpublished Nonopinions and Inherent Power Sanctions
Sharon4Anderson@aol.com wrote:DL/803-2007-02-27T0343 Judy Hanson city attorney "taking" Sharon DL, former clerk for Retired Judge Cohen

ECf_Fed_13 www.mncourts.gov

Click her e: City of St. Paul v. Shahidullah, A06-334

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-334

City of St. Paul, petitioner,

Respondent,

vs.

Mohammed Shahidullah,

Appellant.

Filed ­­­April 24, 2007

Affirmed

Dietzen, Judge

Ramsey County District Court

File No. C3-04-3774

John J. Choi, St. Paul City Attorney, Judith A. Hanson, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Mohammed Shahidullah, P.O. Box 907, Winsted, MN 55395 (pro se appellant)

Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

DIETZEN, Judge

In this condemnation proceeding, appellant challenges the judgment awarding him $51,000, arguing that the district court erred in finding that appellant was properly served by publication and denying appellant’s Batson challenge to the city’s peremptory strike of a potential juror, and appellant alleges misconduct by the city during the trial. Because the district court properly applied the law and did not abuse its discretion, we affirm.

FACTS

Appellant Mohammed Shahidullah was the owner of certain property located at 328 Lexington Avenue North in St. Paul, Minnesota. In April 2004, the City of St. Paul (city) filed a petition to condemn appellant’s property for the expansion of the Jimmy Lee Recreation Center.

The city served its notice of intent to take title and possession under Minn. Stat. § 117.042 by certified mail to appellant at a post office box in Winsted, Minnesota, and to a street address in St. Paul. The notice sent to the St. Paul address was returned with stamps indicating “return to sender” and “moved, left no address.” And the notice to Winsted was returned with stamps indicating “returned to sender” and “unclaimed.” The city then followed the procedure set forth in Minn. Stat. § 117.045 to serve the owner of the property by publication and published the notice in the St. Paul Legal Ledger for three consecutive weeks, as required by law. Additionally, the city again sent notice of the hearing to appellant by first-class mail to the post office box in Winsted and the street address in St. Paul. The notice sent to the St. Paul address was again returned with the same stamped information. The notice sent to the Winsted address was not returned.

The city then received a signed copy of a letter from appellant to the Ramsey County District Court, acknowledging the condemnation action and requesting a continuance. In that letter, appellant listed his address at the post office box in Winsted. The district court denied appellant’s request for continuance, but the matter was rescheduled by the court for other reasons to a date two weeks later.

At the hearing on the petition for condemnation, both appellant and the city appeared and presented their arguments to the court. Following the hearing, the district court filed findings of fact, conclusions of law, and an order granting the petition for condemnation, appointing commissioners, and authorizing payment or deposit of the city’s approved assessed value of the property and transferring title and possession of the property to the city in accordance with Minn. Stat. § 117.042. Several months later, the court-appointed commissioners conducted hearings to determine the amount of damages. At the hearing, the city’s appraiser estimated the damages to be approximately $51,000. Although appellant did not present appraisal testimony, he testified as to his opinion of the value of the property. Following the hearing, the commissioners determined that the value of the subject property was $51,000, and appellant filed an appeal, requesting a trial de novo on the issue of damages. Before trial, the city filed a motion in limine and other documents in accordance with the court’s pretrial order.

At trial, the court considered and made various rulings on the city’s motion in limine. After jury selection, appellant objected to the city’s peremptory strike of a potential juror on the basis that it was racially motivated. The court made a Batson inquiry and determined that the city had stated a valid nondiscriminatory reason for exercising its peremptory strike and, therefore, denied the challenge.

Following a two-day trial, the jury returned a special verdict determining that the value of the subject property, as of the date of taking, was $51,000. The district court adopted the special verdict and entered judgment for that amount. Appellant moved for a new trial on various grounds; the motion was denied by the district court. Appellant then brought a motion to reconsider, which was also denied. This appeal followed.

Subsequently, this court dismissed portions of the appeal challenging the public purpose and necessity for the taking, concluding that appellant is barred from challenging the issues of public purpose and necessity because he failed to raise the objection before the district court and did not appeal the order granting the taking. See City of Eagan v. O’Neil, 437 N.W.2d 736, 737 (Minn. App. 1989), review denied (Minn. June 9, 1989). Appellant also brought a motion to require the city to return the property, arguing that the city failed to fully pay the damage award. In June 2006, this court denied his motion, concluding that payment of the damage or the damage award required enforcement of the judgment and, therefore, should be pursued in the district court.

D E C I S I O N

I.

Appellant argues that the city failed to properly serve him with the petition for condemnation, and, therefore, the notice was defective. We disagree.

Here, appellant appeared at the hearing without challenging the propriety of service. A defect in service is waived by appearing at the hearing. See County of LeSueur v. Globe Indemnity Co., 150 Minn. 120, 122, 184 N.W. 677, 678 (1921) (noting that those who appear cannot “complain of the want of notice”); Kickenapp v. Supervisors, 64 Minn. 547, 549, 67 N.W. 662, 663 (1896) (holding that landowner not named in petition or served with written notice waived defects in the proceedings where he appeared, took part in the proceedings, and was awarded damages). Appellant has therefore waived any challenge to any defect in service.

Second, Minn. Stat. § 117.055, subd. 2(c) (2006), permits a city to serve notice through publication where it cannot ascertain the property owner’s place of residence. It states:

If any such owner be not a resident of the state, or the owner’s place of residence be unknown to the petitioner, upon the filing of an affidavit of the petitioner or the petitioner’s agent or attorney, stating that the petitioner believes that such owner is not a resident of the state, and that the petitioner has mailed a copy of the notice to the owner at the owner’s place of residence, or that after diligent inquiry the owner’s place of residence cannot be ascertained by the affiant, then service may be made upon such owner by three weeks’ published notice.

Here, the city attempted service at two known addresses, one of which appellant continues to use. When the mail was returned, it then published notice for three weeks. The city’s notice to appellant satisfied the requirements of Minn. Stat. § 117.055, subd.2(c).

II.

Appellant argues that the district court erred by denying his Batson challenge to the city’s peremptory strike of a potential juror. The use of peremptory challenges to exclude potential jurors on the basis of race is subject to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986). “Whether there is racial discrimination in the exercise of a peremptory challenge is a factual determination to be made by the district court and is entitled to great deference on review.” State v. Taylor, 650 N.W.2d 190, 200-01 (Minn. 2002). The decision will not be reversed unless it is clearly erroneous. Id. See also State v. Pendleton, 725 N.W.2d 717, 724 (Minn. 2007) (giving deference to the district court on a Batson challenge and “recognizing that the record may not reflect all of the relevant circumstances that the court may consider”).

Minnesota has adopted and applied the following summary of Batson’s three-step analysis:

[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful discrimination.

State v. Blanche, 696 N.W.2d 351, 364-65 (Minn. 2005) (quoting Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770-71 (1995)). Race-neutral explanations do not need to be “persuasive, or even plausible.” State v. Reiners, 664 N.W.2d 826, 832 (Minn. 2003) (quoting Purkett, 514 U.S. at 767-68, 115 S. Ct. at 1771). Rather, the explanation will be deemed race-neutral “[u]nless a discriminatory intent is inherent in the [party’s] explanation.” Purkett, 514 U.S. at 768, 115 S. Ct. at 1771.

When the Batson challenge occurred and the city was directed to explain the grounds for the peremptory strike, it stated that the case is about the value of real property, and the potential juror is not a property owner. The district court determined that the city stated a valid, non-discriminatory reason for exercising the strike and denied appellant’s challenge. We agree. On this record, we see no discriminatory intent inherent in the city’s explanation that it dismissed the potential juror because he did not own property.

Appellant further argues that the city’s stated reason is pretextual, because the city did not move to strike another potential juror who did not own property. But the city had only two peremptory challenges and it had two other potential jurors that it sought to remove for cause. The city apparently concluded that it should strike the one juror that did not own property and one of the other two that was not removed for cause. We see no discriminatory intent in the decision made by the city. We are not aware of a legal requirement that a party use peremptory strikes for the same jurors that they tried to remove for cause. Thus, the district court did not clearly err in rejecting appellant’s Batson challenge to the city’s use of a peremptory strike.

III.

Appellant argues that the city engaged in misconduct during the trial. Specifically, appellant argues that it was improper for the city to bring “so many” issues in its motion in limine “just immediately before the trial beg[an] by which it deprived the appellant opportunity to prepare an informed response.” Assignment of error in a brief based on “mere assertion” and not supported by argument or authority is waived “unless prejudicial error is obvious on mere inspection.” State by Humphrey v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quoting Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971).

Here, the city made a motion in limine within the time permitted by the district court’s pretrial order. Appellant was given 10 days to respond to the motion which was heard on the first day of trial. Appellant was also provided the opportunity on the day of trial. Thus, contrary to appellant’s assertions, he was not denied an opportunity to respond to the motion. Further, the portions of the motion in limine related to appellant’s assertions of market value—to bar appellant from “commenting or introducing any evidence concerning property assessment values in Ramsey County” and from “introducing evidence concerning property tax information for properties in Ramsey County”—were withdrawn by the city. On this record, appellant has not shown prejudice, nor is error “obvious upon mere inspection.” See Modern Recycling, 558 N.W.2d at 772.

Affirmed.

Condemnation

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