Due Process_Krongard v. Mpls

This opinion will be unpublished and may not be cited except as provided by Minn.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 A07-0518 Randy J. Krongard, Relator, vs. City of Minneapolis, Respondent. Filed April 15, 2008 Affirmed Willis, Judge Minneapolis City Council File No. 3712 28th Ave S Floyd E. Siefferman, Jr., Saliterman & Siefferman, P.C., U.S. Bank Plaza, Suite 2000, 220 South Sixth Street, Minneapolis, MN 55402 (for relator) Jay M. Heffern, Minneapolis City Attorney, Lee C. Wolf, Assistant City Attorney, 300 Accenture Tower, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Willis, Presiding Judge; Wright, Judge; and Poritsky, Judge.*

U N P U B L I S H E D O P I N I O N http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=mn&navby=year&year=2008q2mnappunpub

WILLIS, Judge
By writ of certiorari, relator challenges respondent city.s decision to raze condemned buildings on his property, arguing that the city deprived him of due process
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ¡× 10.
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by not giving him (1) notice, (2) an opportunity to be heard, or (3) an opportunity to repair the buildings after it ordered them to be razed and that the city erred by not applying the procedures of an amended version of the city.s code of ordinances. Because the city.s decision did not violate relator.s due-process rights and because the city was not required to apply the amended ordinance, we affirm.
FACTS
This case involves the decision of respondent City of Minneapolis to raze a house and garage owned by relator Randy J. Krongard. Krongard purchased the property in the fall of 2005; for at least the preceding three years, it had been the subject of frequent police calls and citations for housing-code violations. Krongard concedes that, at least by late 2005, he was aware that the city had condemned the house and garage. In the fall of 2006, as a result of these violations and the fact that the house and garage had been boarded up since early 2004, the city.s inspections division requested that the Public Safety and Regulatory Services Committee of the Minneapolis City Council schedule a public hearing on September 27, 2006, to determine whether to order rehabilitation or razing of the buildings.
As required by ordinance, the city sent notices of the public hearing to Krongard and two prior owners who may have had an interest in the property. Additionally, the city published the notice in Finance & Commerce and posted a notice on the property. The notice provides that the property ¡°constitutes a nuisance condition under Chapter 249 of the Minneapolis Code of Ordinances¡± and contains information regarding (1) the time and place of the public hearing, (2) the fact that the committee will order either
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rehabilitation or razing of the buildings, and (3) the rights of parties with an interest in the property at the hearing. The city mailed notice of the hearing by certified mail to Krongard.s post-office box in Lakeland, Minnesota. But after unsuccessful attempts at delivery on September 8, 11, and 19, the post office returned the envelope to the city as unclaimed. In accordance with the Minneapolis Code of Ordinances, the city also mailed neighborhood-impact statements to all residents of property within 350 feet of Krongard.s property.
Krongard did not attend the September 27, 2006 public hearing. He claims that he did not physically receive the notice because he was working ¡°out of state for only a few weeks and had so notified the post office.¡± At the hearing, city staff summarized the recommendations of both the inspections division and the Minneapolis Community Development Agency to raze the buildings. Evidence was presented showing that (1) the costs of rehabilitation substantially outweighed the property.s post-rehabilitation value, (2) the house had lost its historic significance, and (3) neighbors reported that the buildings were covered with ¡°gang markings¡± and opined that they were ¡°too far gone to be rehabilitated.¡± At the conclusion of the hearing, the committee, which consisted of city-council members, voted to recommend to the full city council that the buildings be demolished. On October 6, 2006, the city council adopted the committee.s findings of fact, conclusion, and recommendation at a regularly scheduled council meeting. The city council.s action became effective on October 14, 2006, after the mayor signed the order and the city published it in Finance & Commerce. The city razed the buildings in early 2007, and Krongard filed this certiorari petition in March 2007.
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D E C I S I O N
Certiorari is an ¡°extraordinary remedy only available to review judicial or quasi-judicial proceedings and actions.¡± Minn. Ctr. for Envtl. Advocacy v. Metro. Council, 587 N.W.2d 838, 842 (Minn. 1999) (quotation omitted). Here, it is undisputed that the city.s decision to order the demolition of the buildings was quasi-judicial.
Review by certiorari is confined to (1) questions affecting jurisdiction; (2) the regularity of proceedings; and (3) whether the order in question was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). This court will not retry facts or make independent credibility determinations and will uphold the decision if the government entity ¡°furnished any legal and substantial basis for the action taken.¡± Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn. App. 1996) (quotation omitted). The record in a certiorari appeal includes the papers, exhibits, and transcripts of any testimony considered by the government entity whose actions are under review. See Minn. R. Civ. App. P. 115.04, subd. 1 (providing that rule 110 of the rules of civil appellate procedure should apply to certiorari proceedings ¡°[t]o the extent possible¡±).
I. Krongard received due process of law.
We consider first Krongard.s argument that the city denied him due process of law in violation of the Minnesota Constitution when it decided to raze the buildings on his property. The Minnesota Constitution provides that ¡°[n]o person shall be . . . deprived of life, liberty, or property without due process of law.¡± Minn. Const. art. I, ¡× 7. The due-process protection provided under the Minnesota Constitution is ¡°identical to the due
5
process guaranteed under the Constitution of the United States.¡± Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn. 1988). The Minnesota Constitution also provides that ¡°[p]rivate property shall not be taken, destroyed or damaged for public use without just compensation therefore, first paid or secured.¡± Minn. Const. art. I, ¡× 13.
To comply with due-process requirements in a nuisance-abatement proceeding, a government entity must give the property owner notice and the opportunity to be heard. Village of Zumbrota v. Johnson, 280 Minn. 390, 395-96, 161 N.W.2d 626, 630 (1968); City of Minneapolis v. Fisher, 504 N.W.2d 520, 525 (Minn. App. 1993), review denied (Minn. Sept. 30, 1993). The destruction of property by a government entity without due process of law constitutes a taking, and the property owner has a cause of action for inverse condemnation. See City of Minneapolis v. Meldahl, 607 N.W.2d 168, 172 (Minn. App. 2000); see also Alevizos v. Metro. Airports Comm¡¯n, 298 Minn. 471, 477, 216 N.W.2d 651, 657 (1974); DePalma v. Rosen, 294 Minn. 11, 17, 199 N.W.2d 517, 520 (1972). To succeed on such a claim, a property owner must also show that he was prejudiced by the alleged due-process violations. See Hous. & Redevelopment Auth. of City of St. Paul v. Greenman, 255 Minn. 396, 408, 96 N.W.2d 673, 682 (1959). But if a government entity ¡°properly uses its police powers to abate a nuisance by destroying property, no taking occurs and the landowner is not entitled to compensation.¡± Meldahl, 607 N.W.2d at 172 (citing State Fire Marshal v. Sherman, 201 Minn. 594, 599, 277 N.W. 249, 251 (1938)).
Krongard claims that the city denied him due process of law because (1) it did not provide him with notice of the hearing at which a committee of the city council voted to
6
raze his property, (2) he did not have an opportunity to be heard because the city did not allow him to present his case directly to the decision-maker, and (3) he was not given an opportunity to repair the buildings after the city council voted to raze them but before they had actually been destroyed. We address each argument in turn.
A. The city provided adequate notice to Krongard of its decision to order the razing of the buildings on his property.
Krongard claims that the city did not provide him with adequate notice of the public hearing at which the Public Safety and Regulatory Services Committee decided whether to recommend that the full council order the rehabilitation or razing of the buildings on Krongard.s property. We disagree.
To comply with the notice component of procedural due-process, a government entity must provide notice ¡°reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.¡± O¡¯Sell v. Peterson, 595 N.W.2d 870, 872 (Minn. App. 1999) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950)).
Several weeks before the committee hearing, the city sent notice of the hearing by certified mail to Krongard and to two former owners of the property, in accordance with the Minneapolis Code of Ordinances, which requires the city to notify all persons ¡°shown to have an interest in the [property].¡± Minneapolis, Minn., Code of Ordinances ¡× 249.40(2) (2004). After three unsuccessful attempts to deliver the notice to Krongard, the postal service returned the envelope containing the notice to the city as unclaimed.
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Krongard contends that the city.s use of certified mail to provide notice was ¡°merely a gesture.¡± But such use of certified mail satisfied its due-process obligation to notify him of the hearing. See Eischen Cabinet Co. v. Hildebrandt, 683 N.W.2d 813, 817 n.4 (Minn. 2004) (¡°The use of certified mail fills the function of insuring receipt by a person of suitable age or discretion at the person.s last known address and is thus reasonably calculated to provide notice to the affected person.¡±) (quotation omitted); Meadowbrook Manor, Inc. v. City of St. Louis Park, 258 Minn. 266, 273, 104 N.W.2d 540, 545 (1960) (¡°While mailed notice may not be effective in reaching every person who has an interest in property, nevertheless, such notice is .reasonably calculated. to reach the party to be informed, and that is all that due process requires.¡±).
To the extent that Krongard contends that due process requires that he physically receive the notice, his argument is unavailing. We have stated that actual notice ¡°may be found where the certified mailing is properly directed to the intended recipient, even though not actually received by them.¡± Har-Ned Lumber Co. v. Amagineers, Inc., 436 N.W.2d 811, 815 (Minn. App. 1989); see also Eischen, 683 N.W.2d at 817 n.4. Finally, it appears from the record that the address used by the city was current because Krongard acknowledged that he received other notices from the city at that address, including assessments mailed both before and after the hearing. The city satisfied its due-process obligation to provide Krongard with notice.
B. The city gave Krongard an opportunity to be heard.
We next analyze Krongard.s argument that he was denied due process because there was not a public hearing regarding his property before the full city council. The
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city council has delegated the responsibility of conducting public hearings relating to vacant buildings and nuisance properties to one of its committees, consisting of members of the council. See Minneapolis, Minn., Code of Ordinances ¡×¡× 249.10-.90 (2004). The ordinance provides for a public hearing, at which the committee considers evidence offered by city staff, the property owner, and the public. Id., ¡× 249.40(3). At the conclusion of the hearing, the committee votes to recommend a specific disposition, such as ordering the rehabilitation or razing of the property, to the full city council. Id., ¡× 249.50. The full council then votes to accept or reject the recommendation of the committee. Id.
Krongard claims that even if the city provided adequate notice of the hearing, he was denied an opportunity to be heard because the city conducted the public hearing regarding his property before a committee of the city council, not the full council. Krongard contends that by delegating public-hearing responsibilities to the committee, ¡°the city [did] not allow [him] to present his case to the decision-maker.¡±
Although Krongard is correct that the city.s procedure does not allow a public hearing before the full city council, his argument that the council cannot delegate public-hearing responsibilities to a committee of its members is without merit. He cites no authority that supports that contention; the authority that he does cite does not prohibit a city from delegating the functions of conducting a public hearing, gathering evidence, evaluating credibility, and weighing policy considerations to a committee of the city council. See United States v. James Daniel Good Real Property, 510 U.S. 43, 62, 114 S. Ct. 492, 505 (1993) (stating only that due process requires ¡°the Government to afford
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notice and a meaningful opportunity to be heard before seizing real property¡±); Juster Bros., Inc. v. Christgau, 214 Minn. 108, 119-20, 7 N.W.2d 501, 508 (1943) (¡°Notice and an opportunity to be heard are universally recognized as essential to due process.¡±). Here, the city.s delegation of public-hearing responsibilities did not prevent Krongard from presenting evidence and questioning witnesses before a decision-maker.
C. Krongard was not entitled to a post-decision opportunity to repair the buildings.
Krongard asserts next that a ¡°third requirement of due process¡± obligated the city to allow him ¡°an opportunity to repair the house after the city council decided to destroy it but before it was destroyed.¡± But Krongard cites no authority that establishes such a requirement. And Minnesota courts have emphasized that due-process rights in a quasi-judicial proceeding, such as the nuisance-abatement action here, ¡°are simply reasonable notice of a hearing and a reasonable opportunity to be heard.¡± In re North Metro Homes, Inc., 711 N.W.2d 129, 136 (Minn. App. 2006) (citing Barton Contracting Co., Inc. v. City of Afton, 268 N.W.2d 712, 716 (Minn. 1978)), review denied (Minn. June 20, 2006). There is no requirement that the city, after giving Krongard notice and an opportunity to be heard, had to provide him with yet another opportunity to bring the buildings into compliance with the applicable city ordinances after the city decided to raze them.
II. The city was not required to apply the amended ordinance that went into effect after the public hearing but before the city council¡¯s final action.
Krongard argues finally that the city should have used the procedures described in an amended version of chapter 249 of the Minneapolis Code of Ordinances in determining whether to order rehabilitation or razing of the buildings on his property,
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instead of the version of the ordinance in effect at the time of the public hearing. We disagree.
In May 2006, the city council amended the ordinances governing the procedure in nuisance-abatement proceedings. The new ordinance was effective October 1, 2006, and changed the process by creating a panel to which a property owner may appeal before the matter goes to the Public Safety and Regulatory Services Committee or the full council. Minneapolis, Minn., Code of Ordinances ¡× 249.45 (2006). The amendments do not significantly change the prehearing-notice requirement or the content of that notice. And the amended ordinance does not provide that its procedures apply to cases pending on its effective date.
Krongard cites no authority in support of his argument that the city should have applied the procedures of the amended ordinance. He concedes as much, admitting that he was unable to find authority ¡°directly on point to resolve the issue.¡± And our review of Minnesota law reveals no authority that would have compelled the city to apply the nuisance-abatement procedure of the amended ordinance to a proceeding that began before its effective date. Finally, we note that even if the city should have used the procedure described in the amended ordinance, it is unclear how application of the earlier ordinance prejudiced Krongard. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating that to prevail on appeal, a party must show both error and that the error caused prejudice). Even if the city had applied the amended ordinance, it would have been sufficient for the city to provide Krongard with notice of the hearing by certified mail and by publication. See Minneapolis, Minn., Code
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of Ordinances ¡× 249.40(3) (2006). And under the amended ordinance, there still would not have been a public hearing regarding Krongard.s property before the full council. See id., ¡×¡× 249.45(b), .50(b) (2006).
Affirmed.

Sharon's False Files (MN) 1992_2009

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Case Number	Style	Filed/Location/Judicial Officer	Type/Status
31-P5-96-001128	SHARON LEA ANDERSON	07/05/1996 Itasca	Commitment - Mentally Ill Converted Closed
62-C5-93-010695	SHARON (LEA) ANDERSON vs. NORM COLEMAN et al.	09/21/1993 Ramsey Civil	Civil Other/Misc. Converted Closed

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Case No. 62-C5-93-010695

SHARON (LEA) ANDERSON vs. NORM COLEMAN et al.

§ § § § §

Case Type: Civil Other/Misc. Date Filed: 09/21/1993 Location: Ramsey Civil

Party Information

				Lead Attorneys
Defendant	185 (88)
Defendant	City of St. Paul St. Paul, MN 55102			MCCLOSKEY, PAUL F, Jr. Retained
Defendant	COLEMAN, NORM			Pro Se Retained
Defendant	GEARIN, DINO			Pro Se Retained
Defendant	GRIMM, MARIE			Pro Se Retained
Defendant	HUDSON, NATALIE			Pro Se Retained
Defendant	LONG, BOB			Pro Se Retained
Defendant	MACCABBEE, PAULA			Pro Se Retained
Defendant	MUNICIPAL CANVASS BOARD M.S. 205.18
Defendant	O'ROURKE, MOLLY			Pro Se Retained
Defendant	RETTMAN, JANICE			Pro Se Retained
Defendant	THUNE, DAVID			Pro Se Retained
Defendant	WILLSON, WM.			Pro Se Retained
Plaintiff	ANDERSON, SHARON LEA SAINT PAUL, MN 55104			Pro Se Retained

Events & Orders of the Court

			OTHER EVENTS AND HEARINGS
09/21/1993			Converted Filing Fee
09/21/1993			DOC-Document Filed
09/21/1993			FLD-Case Filed
09/21/1993			ORD-Order
09/28/1993			AFF-Affidavit
09/28/1993			AFF-Affidavit
09/28/1993			DOC-Document Filed
10/13/1993			Converted Filing Fee
10/13/1993			MTN-Motion Filed
10/28/1993			MTN-Motion Filed
10/29/1993			Motion Hearing (9:30 AM) Result: Converted Activity Status Flag Occurred
11/10/1993			ORD-Order
03/29/1994			ARC-Archive
07/28/2006			Converted Pending Activity Logout Search Menu New Civil Search Back Location : All MNCIS Sites - Case Search Help Register Of Actions Case No. 31-P5-96-001128 SHARON LEA ANDERSON § § § § § Case Type: Commitment - Mentally Ill Date Filed: 07/05/1996 Location: Itasca Party Information Lead Attorneys Petitioner ITASCA COUNTY DEPT - HUMAN SERVICES Grand Rapids, MN 55744 MASON, WINTON J Retained Respondent ANDERSON, SHARON LEA ST. PAUL, MN 55106 Female 01/27/1939 GRAHAM, JOHN R Retained Events & Orders of the Court DISPOSITIONS 08/23/1996 Dismissed (Judicial Officer: Judge, Presiding) Converted Disposition: Related Participants: ITASCA COUNTY DEPT - HUMAN SERVICES OTHER EVENTS AND HEARINGS 07/05/1996 FLD-Case Filed 07/05/1996 RVW-Case Status Review 07/08/1996 DOC-Document Filed 07/08/1996 DOC-Document Filed 07/08/1996 ORD-Order 07/08/1996 ORD-Order 07/09/1996 DOC-Document Filed 07/09/1996 SUB-Submitted 07/09/1996 Preliminary/Probable Cause Hearing (1:30 PM) Result: Converted Activity Status Flag Occurred 07/10/1996 DOC-Document Filed 07/16/1996 Commitment Hearing (1:30 PM) Result: Converted Activity Status Flag Cancelled 07/17/1996 RPT-Report Filed 07/23/1996 CRS-Correspondence 07/25/1996 CRS-Correspondence 07/26/1996 DOC-Document Filed 07/26/1996 SCH-Schedule Hearing 07/29/1996 DOC-Document Filed 07/30/1996 Commitment Hearing (9:00 AM) Result: Converted Activity Status Flag Cancelled 07/31/1996 ORD-Order 07/31/1996 SPA-Subpoena 08/01/1996 DOC-Document Filed 08/01/1996 NOT-Notice 08/01/1996 Hearing (9:00 AM) Result: Converted Activity Status Flag Occurred 08/02/1996 SUB-Submitted 08/02/1996 Commitment Hearing (9:00 AM) Result: Converted Activity Status Flag Occurred 08/08/1996 CRS-Correspondence 08/08/1996 SPA-Subpoena 08/08/1996 SPA-Subpoena 08/09/1996 AJU-Adjudicated 08/09/1996 CRS-Correspondence 08/09/1996 DOC-Document Filed 08/15/1996 CRS-Correspondence 08/16/1996 ORD-Order 08/16/1996 RPT-Report Filed 08/22/1996 RPT-Report Filed 08/23/1996 CLO-Closed 08/23/1996 DIS-Dismissed 08/23/1996 ORD-Order 08/23/1996 RPT-Report Filed 10/16/1996 CRS-Correspondence 10/23/1996 ARC-Archive 04/19/2004 Converted Pending Activity

Nancy Lazaryan v. DPS (MN)

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Case Number	Style	Filed/Location/Judicial Officer	Type/Status
05-CV-09-1658	NANCY CAROL LAZARYAN vs DEPARTMENT OF PUBLIC SAFETY	09/25/2008 Benton Scherer, John H.	Civil Other/Misc. Reopened

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Case No. 05-CV-09-1658

NANCY CAROL LAZARYAN vs DEPARTMENT OF PUBLIC SAFETY

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Case Type: Civil Other/Misc. Date Filed: 09/25/2008 Location: Benton

Related Case Information

Related Cases

05-VB-08-610 (Companion Case)

Party Information

				Lead Attorneys
Defendant	DEPARTMENT OF PUBLIC SAFETY ST PAUL, MN 55101-5170			WATNE, JOEL A Retained
Plaintiff	LAZARYAN, NANCY CAROL RICE, MN 56367		Female 12/18/1958	Pro Se Retained

Events & Orders of the Court

			DISPOSITIONS
10/08/2009			Judgment (Judicial Officer: Scherer, John H.)
			OTHER EVENTS AND HEARINGS
09/25/2008			Petition-Other
10/08/2008			Request-Judicial Officer Removal
10/08/2008			Order to Remove
10/08/2008			Notice of Filing of Order
10/21/2008			Motion
10/21/2008			Affidavit of Service
10/24/2008			Order-Other
10/27/2008			Notice of Filing of Order
10/31/2008			Motion
03/09/2009			Order-Other
03/10/2009			Notice of Filing of Order
03/10/2009			Order-Other
03/10/2009			Notice of Filing of Order
04/02/2009			Order-Other
04/02/2009			Notice of Filing of Order
04/29/2009			Motion
04/29/2009			Affidavit of Mailing
08/03/2009			Other Document
08/03/2009			Affidavit of Mailing
08/05/2009			Affidavit for Proceeding In Forma Pauperis
08/07/2009			Hearing (2:00 PM) Result: Held
08/18/2009			Order for Proceeding In Forma Pauperis
08/18/2009			Order-Other
08/18/2009			Notice of Filing of Order
08/18/2009			Scheduling Order
08/18/2009			Notice of Filing of Order
09/01/2009			Briefs
09/02/2009			Affidavit of Service
09/11/2009			Memorandum
09/11/2009			Affidavit of Mailing
09/21/2009			Other Document
09/21/2009			Affidavit of Mailing
09/22/2009			Hearing (9:00 AM) Result: Held
09/22/2009			Taken Under Advisement
10/01/2009			Findings of Fact, Conclusions of Law and Order
10/01/2009			Notice of Filing of Order
10/08/2009			Order-Other
10/08/2009			Notice of Filing of Order
10/08/2009			Findings of Fact, Conclusions of Law and Order
10/08/2009			Notice of Filing of Order
10/16/2009			Notice of Motion and Motion
10/16/2009			Affidavit of Service
10/20/2009			Memorandum
10/20/2009			Affidavit of Service
10/21/2009			Motion Hearing (9:00 AM) Result: Held
10/21/2009			Order for Submissions-Under Advisement
10/21/2009			Order for Submissions-Under Advisement
11/04/2009			Motion Hearing (9:00 AM)

Financial Information

			Plaintiff LAZARYAN, NANCY CAROL
			Total Financial Assessment			372.00
			Total Payments and Credits			372.00
			Balance Due as of 10/28/2009			0.00
08/19/2009			Transaction Assessment			322.00
08/19/2009			Credit/In Forma Pauperis			(322.00)
09/02/2009			Transaction Assessment			50.00
09/02/2009			Credit/In Forma Pauperis			(50.00)

NancyLazaryan v. Judge John VandenorthA08-778(MN)

Court of Appeals Unpublished Opinions

16. A08-778
State of Minnesota, Respondent, vs. Nancy Carol Lazaryan, Appellant.
Affirmed. Judge Larry B. Stauber, Jr.
Ramsey County District Court, Hon. John B. VanDeNorth, Jr.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2008).

STATE OF MINNESOTA

IN COURT OF APPEALS

A08-778

State of Minnesota, Respondent, vs. Nancy Carol Lazaryan, Appellant.

Filed October 27, 2009

Affirmed

Stauber, Judge Ramsey County District Court

File No. 62T507024818

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

John Choi, St. Paul City Attorney, Heidi L. Johnston, Special Assistant City Attorney, Suite 300, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

Marie Wolf, Interim Chief Appellate Public Defender, Mark D. Nyvold, Assistant Public Defender, Suite 300, 540 Fairview Avenue North, St. Paul, MN 55104 (for appellant)

Considered and decided by Stauber, Presiding Judge; Klaphake, Judge; and Minge, Judge. 2 U N P U B L I S H E D O P I N I O N

STAUBER, Judge

On appeal from her convictions of trespassing and disorderly conduct, appellant contends that she was deprived of her constitutional right to present a defense because the district court refused to instruct the jury on the defense of citizen’s arrest. We affirm. FACTS

In late 2007, appellant Nancy Lazaryan made a formal request to the City of Saint Paul’s Department of Safety and Inspections (DSI) under the Minnesota Government Data Practices Act (MGDPA) to review all government data concerning vacant buildings in the city. In order to accommodate appellant’s request, DSI staff had to review each file and redact any non-public information. DSI policy also mandated that a staff member be present to maintain the integrity of the files while appellant reviewed them. Robert Humphrey, an assistant director at DSI, was assigned to appellant’s request. Due to the voluminous nature of the request, Humphrey established a protocol that allowed appellant to meet with a DSI employee once a week at a pre-arranged time to review all relevant files that had been prepared for public viewing in the previous week. Appellant agreed to the protocol; however, on several occasions she failed to arrive on time for her scheduled appointments. As a result, Humphrey modified the protocol to require appellant to schedule viewing appointments at least 48 hours in advance.

On November 28, 2007, appellant arrived at the DSI office without providing any notice and asked to review available files. Humphrey denied appellant access to the files because she had failed to schedule an appointment 48 hours in advance. According to 3

Humphrey, appellant began yelling at him and pushed him into a wall. Appellant told Humphrey that she was placing him under citizen’s arrest because he lacked the authority to deny her access to the files. Appellant also called 911 to alert police that she was making a citizen’s arrest. In an attempt to evade appellant, Humphrey left the public lobby and used his key card to enter a secured area restricted to city employees only. Appellant chased after Humphrey and managed to gain entrance to the secured area. Humphrey proceeded to search for Sergeant Schoen, a police officer assigned to DSI. Humphrey was unable to locate Sergeant Schoen, but upon entering Sergeant Schoen’s office, appellant pushed Humphrey into a chair, ordered him to remain seated, and blocked the doorway with her arm to prevent him from leaving. By that time, police officers responding to appellant’s call had arrived at the office. The officers refused to place Humphrey under arrest because they concluded that there was no evidence to suggest that Humphrey’s conduct was illegal.

Appellant was subsequently charged with trespassing and disorderly conduct. Prior to trial, appellant provided notice of her intent to defend against the charges by claiming that she was making a citizen’s arrest of Humphrey for violating Minn. Stat. § 609.43 (2006), which prohibits misconduct by a public official. Appellant claimed that Humphrey’s denial of her request to review public information constituted a violation of the statute because Humphrey did not have the authority to respond to data requests. Under appellant’s interpretation of the MGDPA, only the city clerk had the authority to facilitate such requests. At the close of trial, appellant requested a jury instruction on the defense of citizen’s arrest. The district court denied the request because appellant had 4

failed to offer sufficient evidence to raise the defense. The court also noted that, even if appellant had satisfied her evidentiary burden, no exigent circumstances were present to justify her decision to immediately arrest Humphrey by force. The court allowed appellant to testify about her decision to restrain Humphrey, but instructed the jury that the execution of a citizen’s arrest was not a valid defense to the charges. At the close of trial, appellant was convicted of both charges. This appeal followed. D E C I S I O N

Appellant argues that the district court’s instruction to the jury that the defense of citizen’s arrest was not a valid defense to the charges violated her right to present a complete defense. The effectuation of a citizen’s arrest can be a valid defense to criminal charges. See Minn. Stat. § 629.30, subd. 2(4) (2006) (stating arrest can be effectuated by private person); Minn. Stat. § 629.37 (2006) (providing grounds under which private person can arrest another); State v. Lawler, 571 N.W.2d 486, 489 (Iowa 1997) (recognizing citizen’s arrest as a defense to criminal charges). And "[d]ue process requires that defendants be afforded [a] meaningful opportunity to present a complete defense." State v. McArthur, 730 N.W.2d 44, 54 (Minn. 2007).

But a defendant is only entitled to a defense instruction on citizen’s arrest if there is sufficient evidence "to make the defense one of the issues of the case." State v. Auchampach, 540 N.W.2d 808, 817 (Minn. 1995) (concluding if mitigating circumstance or issue is converse of enumerated element of crime charged and negates that element, defendant required to adduce sufficient evidence on proffered defense to make it an issue in case; burden then shifts to state to prove beyond reasonable doubt lack of that defense). 5

In order to satisfy this standard, a defendant must make at least a "prima facie showing that the proffered defense is an issue." State v. Hage, 595 N.W.2d 200, 205 (Minn. 1999). The district court has broad discretion in crafting jury instructions and will not be reversed absent an abuse of that discretion. State v. Broulik, 606 N.W.2d 64, 68 (Minn. 2000).

The district court denied appellant’s request for a citizen’s arrest instruction because appellant failed to produce any evidence that Humphrey had knowingly engaged in misconduct by a public employee. Misconduct by a public employee occurs when an employee "does an act knowing it is in excess of lawful authority or knowing it is forbidden by law to be done in that capacity." Minn. Stat. § 609.43(2) (2006).

Appellant claims that Humphrey engaged in official misconduct by responding to her data request and refusing her access to the data. Appellant contends that Humphrey lacked the authority to respond to data requests or place limitations on her right to view government data because the city clerk had exclusive authority over data requests.

Under the MGDPA, the "responsible authority" is required to respond to government data requests. Minn. Stat. § 13.03, subd. 1 (2006). A "responsible authority" is an "individual designated by the governing body of that political subdivision as the individual responsible for the collection, use, and dissemination of any set of data." Minn. Stat. § 13.02, subd. 16 (2006). Appellant introduced the city’s guidelines and procedures for the MGDPA, which designate the city clerk as the responsible authority. But the document also gives the city clerk the authority to assign government data requests to department supervisors as designees. The city clerk designated responsibility 6

for data requests to the director of Humphrey’s department, Robert Kessler, who in turn, assigned the task to Humphrey.

Strictly construed, Kessler’s assignment of the data request to Humphrey may have been impermissible under the city’s guidelines and procedures because only assignments from the city clerk to department supervisors were explicitly authorized. But even assuming that Humphrey did not have the authority to process appellant’s request, appellant failed to produce any evidence demonstrating that Humphrey knowingly acted outside the scope of his authority. See Minn. Stat. § 609.43(2) (stating that misconduct by a public employee occurs when an employee knowingly acts in excess of lawful authority). In fact, the evidence in the record suggests that Humphrey believed, in good faith, that he had the authority to respond to appellant’s request. Humphrey testified that responding to data requests was part of his job and claimed that he was operating under the direction of Kessler in processing appellant’s requests. Humphrey was conscientious about processing requests and regularly consulted with the city attorney’s office, the city clerk, and the Minnesota Information Policy Analysis Division to ensure compliance with the data practices laws. Humphrey also copied the city clerk on email correspondence between him and appellant to ensure that the clerk was aware of the status of appellant’s request. Humphrey never gave any indication that he doubted his authority to respond to the requests, and Kessler also testified that Humphrey was acting pursuant to his orders.

The only evidence that appellant produced to demonstrate that Humphrey may have been aware that he was acting outside his authority was her own testimony that she 7

told Humphrey at some point that he did not have the authority to process her request. Although appellant’s testimony could suggest that Humphrey knowingly violated the law, the district court apparently did not find her credible. See State v. Kramer, 668 N.W.2d 32, 38 (Minn. App. 2003) (indicating that credibility determinations are entitled to deference on appeal), review denied (Nov. 18, 2003). Because this court defers to the district court’s credibility determinations and because appellant failed to present sufficient evidence to suggest that she was making a valid arrest at the time of the offenses, the district court did not abuse its discretion in refusing to instruct the jury on a citizen’s arrest defense.

Another consideration that factored into the district court’s decision to deny appellant the right to rely on the defense was the lack of immediate necessity to forcibly arrest Humphrey by trespass. State law permits a private citizen to make arrests for public offenses committed or attempted in the arresting person’s presence. Minn. Stat. § 629.37(1). But, as we have previously noted, a statutory construction granting an absolute right of trespass in order to effect a citizen’s arrest is unsupported and would uniquely threaten the privacy of others. State v. Rein, 477 N.W.2d 716, 719 (Minn. App. 1991), review denied (Minn. Jan. 30, 1992). Before a citizen may trespass to make an arrest, it must be shown that deference to law enforcement was not feasible. Id. ("Private arrest powers likely cannot supercede public law enforcement activity absent extraordinary circumstances."). Here, no exigent circumstances were present to necessitate appellant’s trespass and physical restraint of Humphrey. Accordingly, 8

appellant should have refrained from taking matters into her own hands and, instead, referred the matter to law enforcement.

Because appellant failed to present prima facie evidence that Humphrey knowingly violated the MGDPA and because no exigent circumstances were present to support appellant’s decision to trespass into a secured area and physically restrain Humphrey, the district court did not abuse its discretion in refusing to provide the jury with a citizen’s-arrest instruction.

Affirmed.

WmSmithrud v CitySt.Paul Demo

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2008).

Wm Smithrud v. City St.Paul MN - Google Search

STATE OF MINNESOTA

IN COURT OF APPEALS

A08-2003

Leroy Smithrud, Appellant, vs. City of St. Paul, Respondent.

Filed September 15, 2009

Affirmed

Stoneburner, Judge

Ramsey County District Court

File No. 62CV089147

Leroy Smithrud, 7356 Rosewood Lane, Maple Grove, MN 55369 (pro se appellant)

John J. Choi, St. Paul City Attorney, Virginia D. Palmer, Assistant City Attorney, 400 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Considered and decided by Kalitowski, 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

STONEBURNER, Judge

Appellant challenges the dismissal of his complaint, asserting numerous claims relating to respondent city‘s decision to demolish two of appellant‘s rental properties to abate nuisances. Because appellant‘s claims all challenge the city‘s quasi-judicial 2

decision, the district court did not err by dismissing the complaint for lack of jurisdiction. Therefore, we affirm.

FACTS

Appellant Leroy Smithrud filed a 20-page pro se complaint in Ramsey County district court asserting numerous claims that all arise out of the decision of respondent City of St. Paul (the city) to demolish two of Smithrud‘s rental properties to abate nuisances.

Smithrud‘s complaint contains eight counts. Count one asserts that the city violated its own legislative code and failed to follow its own procedural requirements for notice, hearing, due process, and identification of code provisions enforced. Count one also asserts that the city ―heighten[ed]‖ minimal standards for inspection and code enforcement for ―older housing stock.‖ No specific acts or violations of code or statutory provisions are identified.

Count two is titled ―Declaratory Judgment as to the City‘s Violations of its Own Legislative Code‖ and asserts that, under the Uniform Declaratory Judgments Act, the district court has jurisdiction to determine that the city ―cannot heighten‖ its code ―beyond that of the State Building Code‖ and that ―the City is in violation of its own Legislative code as to Notice and Hearing.‖

Count three is titled ―Declaratory Judgment as the State Building Code Cannot be Heightened by the City.‖ This count again asserts that the district court has jurisdiction to determine that city ―has heightened its Legislative Code above that determined by and 3

adopted in the State Building Code, and that such heightened Code is illegal as enforced against Smithrud.‖

Count four asks for a determination that, at all times material, Smithrud is disabled.

Count five is titled ―Violations of Federal Fair Housing Law.‖ This count asserts that the city has violated the ―Federal Fair Housing Laws‖ as to both of Smithrud‘s properties and as to Smithrud. Smithrud seeks attorney fees, costs, and other damages as may be just and equitable, to be determined by a jury trial. The complaint does not identify specific provisions alleged to have been violated or describe how the federal law was allegedly violated.

Count six, titled ―False or Failed Certifications Under HUD and the Code of Federal Regulations,‖ asserts that the city has not provided any evidence that it has complied with HUD rules and regulations ―especially as to certifications that are mandatory as [to] analysis of impediments and affirmative duties to further the goals of federal fair housing as related to grandfathering older housing stock and as to protected class members.‖ Smithrud asserts that failure to perform analysis of impediments or to protect older, grandfathered-in housing stock is actionable by him under ―42 U.S.C. § 3604 et seq.‖ because Smithrud is trying ―to protect that type of housing on behalf of protected class members.‖ Smithrud asserts that he and his protected-class tenants have been damaged by the city‘s violations of the Federal Fair Housing Act and the Code of Federal Regulations, 24 C.F.R. §§ 91.210, 570.904, 982.401. Smithrud seeks damages for ―such misconduct.‖ 4

Count seven asserts that the city is retaliating against Smithrud for his attempts to sell or rehabilitate his properties, and has caused him to lose rental properties, rents, and will reduce the supply of older, affordable federal fair housing stock that should be grandfathered in. Smithrud seeks damages for this claim.

Count eight seeks a temporary restraining order to preserve the status quo, asserting irreparable harm and that Smithrud meets all five Dahlberg factors. See Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274–75, 137 N.W.2d 314, 321–22 (1965) (setting forth factors to be considered in determining whether the issuance of a temporary injunction can be sustained on appeal).

The district court dismissed the complaint for lack of subject-matter jurisdiction, concluding that all of the claims challenge the city‘s quasi-judicial decision and could only be pursued by writ of certiorari to this court. This appeal followed.

D E C I S I O N

―The existence of subject matter jurisdiction is a question of law, which this court reviews de novo.‖ Shaw v. Bd. of Regents of Univ. of Minn., 594 N.W.2d 187, 190 (Minn. App. 1999), review denied (Minn. July 28, 1999). A city‘s decision to abate a nuisance property is a quasi-judicial decision, and when city or state legislation does not otherwise provide, jurisdiction for review of such a decision rests exclusively in the court of appeals by writ of certiorari. City of Minneapolis v. Meldahl, 607 N.W.2d 168, 171 (Minn. App. 2000). In this case, the city‘s ordinance does not provide for district court review of its quasi-judicial nuisance abatement decisions. See St. Paul, Minn., Legislative Code ch. 45 (2008) (containing no provision for district court review). 5

Smithrud argues that the district court has jurisdiction over his claims for declaratory judgment. See Minn. Stat. § 555.01 (2008) (providing that courts of record have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed). ―Declaratory judgments permit determination of a controversy ‗before obligations are repudiated or rights are violated,‘ essentially allowing one who walks in the dark to turn on the light before—rather than after—one steps in a hole.‖ Cincinnati Ins. Co. v. Franck, 621 N.W.2d 270, 273–74 (Minn. App. 2001) (quoting A.L. Loyd v. City of Irwinton, 236 S.E.2d 889, 890 (Ga. Ct. App. 1977)).

In Connor v. Chanhassen Twp., the supreme court treated a constitutional challenge to a township ordinance in a declaratory judgment action as a challenge to a legislative act and rejected the township‘s assertion that complainant had not exhausted administrative remedies by seeking review by writ of certiorari from a prior zoning decision that triggered application of the challenged ordinance. 249 Minn. 205, 208–10, 81 N.W.2d 789, 793–94 (1957).1 Smithrud relies on Connor to assert that he can proceed with a declaratory judgment action without having pursued review of the demolition decision by writ of certiorari. But Connor is distinguishable because Smithrud is asserting that his rights have been violated by the city‘s quasi-judicial action and is not making an independent challenge to any legislative action by city.

1 The only constitutional issue raised by Smithrud is an allegation that his due process rights were violated by city‘s failure to follow its own procedures. Such a challenge could have been addressed by writ of certiorari. See Minn. Stat. § 14.69 (2008) (permitting reversal or modification of an agency decision ―made upon unlawful procedure‖). 6

Smithrud argues that despite the city‘s adoption of the state building code, the city unlawfully applied more stringent requirements to his properties than those called for under the state building code.2 Smithrud correctly argues that the state building code supersedes municipal building codes, and ―[a] municipality must not by ordinance or through development agreement require building code provisions regulating components or systems of any residential structure that are different from any provision of the State Building Code.‖ City of Morris v. Sax Investments, Inc., 749 N.W.2d 1, 7 (Minn. 2008) (quoting Minn. Stat. § 16B.62, subd. 1 (2006)). But Smithrud is asserting that the city made its quasi-judicial decision in excess of its statutory authority, an argument properly addressed on certiorari review. See Minn. Stat. § 14.69 (2008) (codifying the standard of review of agency decisions in contested case proceedings and providing that this court may reverse or modify a decision that, among other reasons, is made in excess of the agency‘s statutory authority).

2 Despite Smithrud‘s repeated assertion that the city is applying more stringent requirements, Smithrud has not identified in his complaint or in his brief on appeal a citation to any section of the building code and has not explained in what manner more stringent requirements were applied to him.

Courts should construe pleadings liberally and judge them by their substance to determine if they give fair notice of the facts and legal theories to the adverse party. Basich v. Bd. of Pensions, 493 N.W.2d 293, 295 (Minn. App. 1992). But we are unable to conclude from Smithrud‘s pleadings that he has cited any valid claim under the Uniform Declaratory Judgments Act over which the district court could have exercised jurisdiction. 7

Smithrud also asserts that the district court had jurisdiction over claims raised under various federal statutes that he cited, including the Judiciary Act of 1789, the Fair Housing Act (FHA), the Civil Rights Act (CRA), and the Americans with Disabilities Act (ADA).3 But we have held that merely cloaking a challenge to a quasi-judicial decision in the mantle of a different claim does not change the jurisdictional analysis. Meldahl, 607 N.W.2d at 172. In Meldahl, we rejected the assertion that the district court had jurisdiction over an inverse-condemnation claim contained in a complaint challenging demolition of a building for nuisance because the takings claim was ―not separate and distinct from the city‘s quasi-judicial decision to demolish the structure.‖ Id. We stated that, where an inquiry into the facts surrounding a taking‘s claim would involve an inquiry into the city‘s decision, jurisdiction is by writ of certiorari alone. Id.

3 Smithrud also argues that a conclusion by this court that the district court did not have jurisdiction would be an unconstitutional violation of federal law by preventing the exercise of concurrent subject-matter jurisdiction and by preventing the district court‘s exercise of original jurisdiction over state claims. Because Smithrud had not asserted any state or federal claims that are independent of his challenge to the city‘s quasi-judicial decisions, we find no merit in this unsupported assertion.

Smithrud‘s references to federal statutes do not assert violations of those statutes separate from the city‘s demolition orders and involve inquiry into the demolition decisions, making certiorari alone his avenue of review. Likewise, Smithrud‘s assertion that his claims involve matters of public interest and implicate public corruption and fraud with regard to fair, affordable housing, do not avoid the jurisdictional issue.

Affirmed.

MN via Lori Swanson v. Messerli,Kramer 21Apr09

Sharon's Disclaimer Title 26 501c3 Educational http://sharonagmn2010.blogspot.com

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ¡× 480A.08, subd. 3 (2008).
STATE OF MINNESOTA
IN COURT OF APPEALS
A08-0415, A08-0551

State of Minnesota, by its Attorney General, Lori Swanson, Appellant (A08-415), Barbara Shipp, et al., Appellants (A08-551), vs. Messerli and Kramer, P.A., et al., Respondents.
Filed April 21, 2009
Affirmed; motion denied
Toussaint, Chief Judge
Ramsey County District Court
File Nos. C7-04-12204, 62-C8-04-012194

Lori Swanson, Attorney General, Gary R. Cunningham, Assistant Attorney General, 1100 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for appellant State of Minnesota)
Galen Robinson, Law Offices of the Legal Aid Society of Minneapolis, 430 First Avenue North, Suite 300, Minneapolis, MN 55401-1780; and
Michael J. Persellin, Jeremy T. Carvell, Law Offices of the Legal Aid Society of Minneapolis, 2929 Fourth Avenue South, Suite 201, Minneapolis, MN 55408 (for appellants Barbara Shipp et al.)

Jeanne H. Unger, Michael A. Klutho, Christopher R. Morris, Bassford Remele, P.A., 33 South Sixth Street, Suite 3800, Minneapolis, MN 55402-3707 (for respondents)
2

Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Randall, Judge.

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

TOUSSAINT, Chief Judge Appellants Barbara Shipp, Barbara Johnson, Joanne Taylor, Lynn Parkkila, Janice Sturges, Marlene Carter, and Melanie Fischer, on behalf of themselves and all others similarly situated (the Shipp appellants), brought an action alleging unlawful attorney-fee collection practices in debt-collection proceedings against respondents Messerli and Kramer, P.A., Derrick N. Weber, and Jefferson C. Pappas, a law firm and its employees that represented creditors of the Shipp appellants. Appellant State of Minnesota, by its Attorney General, Lori Swanson (the state) brought an action alleging unlawful attorney-fee collection practices and unlawful levy/garnishment practices in debt-collection proceedings against respondents. Respondents moved for summary judgment against the Shipp appellants and for judgment on the pleadings against the state. The district court granted both motions, and the Shipp appellants and the state now challenge those decisions. Because the Shipp appellants. claims and the state.s claims are barred as impermissible collateral attacks on underlying judgments and because the state did not file suit pursuant to an independent cause of action, we affirm. We deny respondents. motion to strike. Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ¡× 10.
3

D E C I S I O N

1. A08-551 . The Shipp Appellants¡¯ Case

Creditors of the Shipp appellants employed respondents to collect on the Shipp appellants. debts. Respondents brought actions against the Shipp appellants and, because the Shipp appellants did not answer the complaints, respondents obtained default judgments and attorney-fee awards for their clients against the Shipp appellants. After the time to appeal had lapsed, the Shipp appellants brought this action against respondents, arguing that the attorney-fee affidavits submitted by respondents did not comply with Minn. R. Gen. Pract. 119 and that their cover letters were misleading and unconscionable. Respondents moved for summary judgment; the district granted the motion on the grounds that the Shipp appellants. claims were barred as collateral attacks on the presumptively-valid underlying default judgments and attorney-fee awards.
On appeal from a grant of summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
The underlying default judgments and attorney-fee awards against the Shipp appellants are conclusive as to whether respondents. practices in collecting the attorney fees were lawful. Thus, the district court had no authority to overturn either the default judgments or the attorney-fee awards. ¡°[P]ublic policy favors the finality of judgments and the ability of parties to rely on court orders.¡± Nussbaumer v. Fetrow, 556 N.W.2d
4

595, 599 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997). A ¡°judgment of a court of competent jurisdiction, after the expiration of the time of appeal, cannot be impeached, either directly or indirectly, for mere errors or irregularities not going to the jurisdiction of the court.¡± Sache v. Wallace, 101 Minn. 169, 171, 112 N.W. 386, 387 (1907). The Shipp appellants rely on three exceptions to the collateral-attack doctrine. First, they contend that the district court failed to recognize its inherent equitable power to enforce its procedural rules to prevent injustice. See, e.g., State v. Erickson, 589 N.W.2d 481, 485 (Minn. 1999) (stating that court has inherent power ¡°to administer justice whether any previous form of remedy has been granted or not¡± quotation omitted)); cf. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-45, 64 S. Ct. 997, 1000 (1944) (stating that courts may grant equitable relief to correct injustices where ¡°enforcement of the judgment is manifestly unconscionable¡± (quotation omitted)). But the Shipp appellants have not shown that the attorney-fee awards are manifestly unconscionable. Because the attorney-fee awards have not been shown to be unreasonable, much less unconscionable, a collection agency.s failure to comply with the express language of Minn. R. Gen. Pract. 119 does not constitute an injustice and does not warrant the court.s intervention.
Second, the Shipp appellants rely on Minn. R. Civ. P. 60.02 (providing six grounds for relief from final judgment, but also stating that the rule ¡°does not limit the power of a court to entertain an independent action . . . or to set aside a judgment for
5

upon the court¡±).1 The phrase ¡°an independent action¡± denotes ¡°what had been historically known simply as an independent action in equity to obtain relief from a judgment.¡± 11 Charles Alan Wright et al., Federal Practice & Procedure ¡× 2868, at 396 (2d ed. 1995) (discussing equivalent federal rule). Again, equity did not require the district court to permit the Shipp appellants. impermissible collateral attack. Third, the Shipp appellants contend that a collateral attack is permitted because defects on the face of the record, i.e. the nonconforming attorney-fee affidavits, establish that the underlying judgment was not authorized. But a ¡°judgment alleged to be merely erroneous, or founded upon irregularities in the proceedings not going to the jurisdiction of the court, is not subject to attack.¡± Nussbaumer, 556 N.W.2d at 599 (citing Jones v. Wellcome, 141 Minn. 352, 355, 170 N.W. 224, 226 (1919) (requiring that lack of jurisdiction affirmatively appear on face of record to permit collateral attack)). ¡°Minnesota law does not permit the collateral attack on a judgment valid on its face.¡± Id. The allegedly nonconforming affidavits are merely ¡°irregularities in the proceedings not going to the jurisdiction of the court.¡± Thus, the attorney-fee awards are not subject to collateral attack.
The district court correctly concluded that respondents were entitled to summary judgment against the Shipp appellants as a matter of law. Because collateral attack is a
1 To obtain relief under the first three grounds ((1) mistake, inadvertence, surprise, or excusable neglect, (2) newly discovered evidence, or (3) fraud, misrepresentation, or other misconduct of the adverse party), a motion must be made within one year of entry of judgment. Minn. R. Civ. P. 60.02. The Shipp appellants did not meet this deadline, and the remaining grounds ((4) the judgment is void, (5) the judgment has been satisfied, released, or discharged, or (6) any other reason justifying relief) do not apply here. See id.
6

threshold matter, we do not address the Shipp appellants. other claims. 2. A08-415 . The State¡¯s Case
The state, on behalf of its citizens, brought an action against respondents to obtain a declaration of wrongdoing as well as civil penalties, restitution, and disgorgement. Respondents moved for judgment on the pleadings, arguing that the state.s claims were barred as collateral attacks on final judgments and that the state lacked an independent cause of action to allege against respondents. The district court granted respondents. motion.
A district court.s grant of a motion for judgment on the pleadings is reviewed de novo. See Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003). ¡°All facts alleged in the complaint must be taken as true and all reasonable inferences drawn in favor of the nonmoving party.¡± Marchant Inv. & Mgmt. Co. v. St. Anthony W. Neighborhood Org., 694 N.W.2d 92, 95 (Minn. App. 2005). While this court focuses its consideration on the allegations in the pleadings, it ¡°may also consider documents and statements that are incorporated by reference into the pleadings.¡± Id.; see also Minn. R. Civ. P. 12.03.
As a threshold matter, the district court concluded that the state.s claims, like the Shipp appellants. claims, are barred as collateral attacks. This conclusion was not erroneous; the district court could not have granted the relief requested by the state without overturning the underlying default judgments. ¡°Minnesota law does not permit the collateral attack on a judgment valid on its face.¡± Nussbaumer, 556 N.W.2d at 599.
7

Nor did the district court err in concluding that the state lacked an independent cause of action to maintain claims against respondents under the Minnesota Debt Collections Agencies Act, the Minnesota Uniform Deceptive Trade Practices Act, Minn. R. Gen. Pract. 119, or the levy and garnishment statutes. To argue that no independent cause of action was needed, the state relies on Minn. Stat. ¡× 8.31, subd. 3(a)-(b) (2008) (providing that state has authority to sue for and obtain injunctive relief or a civil penalty) and on Head v. Special Sch. Dist. No. 1, 288, Minn. 496, 503, 182 N.W.2d 887, 892 (1970) (¡°It is clear that the attorney general may commence an action whenever, in his opinion, the interests of the state require it. He possesses such power pursuant to both common law and statute.¡±), overruled on other grounds by Nyhus v. Civil Serv. Bd., 305 Minn. 184, 186 n.1, 232 N.W.2d 779, 780 n.1 (1975). But, while the state may have standing to bring suit in the interests of its citizens, its claims against respondents require an independent cause of action.

A. The Minnesota Collection Agencies Act

The district court concluded that the Minnesota Collection Agencies Act did not provide the state with an independent cause of action against respondents because respondents, as lawyers engaged in the practice of law, are not liable as a collection agency. ¡°The term .collection agency. shall not include persons whose collection activities are confined to and are directly related to the operation of a business other than that of a collection agency such as . . . lawyers . . . .¡± Minn. Stat ¡× 332.32 (2008).
The state argues that the exclusion of lawyers applies only when their collection activities are directly related to the operation of a business other than a collection agency.
8

But this argument refutes the plain language of the statute. The best method of determining the legislature.s intent is to rely on the plain language of the statute. State v. Iverson, 664 N.W.2d 346, 350-51 (Minn. 2003). When the language is clear, we are bound to give effect to that language. Id. at 351. We must construe a statute according to the plain and ordinary sense of its words. Minn. Stat. ¡× 645.08(1) (2008).
The legislature specifically identifies lawyers as among those ¡°whose collection activities are confined to and are directly related to the operation of a business other than that of a collection agency.¡± Minn. Stat ¡× 332.32. The legislature could have imposed conditions on the exclusion of lawyers, as it did on the exclusion of banks, for example. See id. (excluding ¡°banks when collecting accounts owed to the banks and when the bank will sustain any loss arising from uncollectible accounts¡±). But the legislature did not make the exclusion of lawyers from the collection agencies act conditional, and the state.s argument would impose a condition. The district court did not err in finding that the collection agencies act did not provide the state with an independent cause of action.
B. The Minnesota Uniform Deceptive Trade Practices Act
The state has provided no authority establishing that respondents are subject to liability under the Minnesota Uniform Deceptive Trade Practices Act, and, as the district court noted, the legislative history of that act does not reveal any legislative intent to broaden its application beyond the offering of goods and services. Thus, the district court did not err in finding that the deceptive trade practices act did not provide the state with an independent cause of action.
9

C. Minn. R. Gen. Pract. 119
Minn. R. Gen. Pract. 119 sets forth the procedure for obtaining attorney fees after entry of a default judgment. Rules of procedure are to be enforced by the district court overseeing a proceeding and do not create a separate cause of action. See Minn. Stat. ¡× 480.051 (2008) (stating that procedural rules ¡°shall not abridge, enlarge, or modify the substantive rights of any litigant). The district court did not err in finding that rule 119 does not provide an independent cause of action to support a separate lawsuit against attorneys who allegedly violated the rule in underlying proceedings.
D. Levy and Garnishment Statutes
The Minnesota levy and garnishment statutes create no independent cause of action to institute subsequent litigation outside of the original proceedings. See Minn. Stat. ¡×¡× 551.04, 551.05, 571.72 (2008). The district court did not err in concluding that the state did not have an independent cause of action under the levy and garnishment statutes.
Although the state had standing to institute litigation to challenge respondents. practices in the public interest, it did not possess an independent cause of action to do so. The district court did not err in granting judgment on the pleadings in favor of respondents.
3. Motion to Strike
Respondents move this court for an order striking pages of the state.s reply brief that address an issue not addressed in the initial brief. Generally, issues not raised or argued in an appellant.s brief cannot be revived in a reply brief. McIntire v. State, 458
10

N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990). But this court has discretion to address any issue as justice requires. Minn. R. Civ. App. P. 103.04.
Respondents claim that they will be ¡°substantially prejudiced¡± if we consider the issue not briefed in the state.s opening brief because they will be ¡°deprived of an opportunity to respond.¡± But the state.s case has been consolidated with the Shipp appellants. case, and the Shipp appellants briefed the issue in their initial brief. Thus, respondents were not deprived of an opportunity to respond in these consolidated appeals. Their motion to strike is denied.
Affirmed; motion denied.