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Friday, June 13, 2008

Freds Tire v. 2002ChevSilverado

For Litigation purposes Do We Sue the Person or the Property?
Posted for Educational purposes
http://ad.doubleclick.net/click;h= FindLaw> State Resources> Minnesota> Primary Materials> Minnesota Court Opinions

This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-563

Fred's Tire Co., Inc.,

Appellant,

vs.

2002 Chevrolet Silverado,

VIN # 1GCEK 19T322276318, MN Plate JKG611,

Respondent.

Filed November 30, 2004

Affirmed

Robert H. Schumacher, Judge

Washington County District Court

File No. C1033746

Earl P. Gray, Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for appellant)

Michael A. Welch, Hebert, Welch & Humphreys, P.A., 20 North Lake Street, Suite 301, Forest Lake, MN 55025 (for respondent)

����������� Considered and decided by Schumacher, Presiding Judge; Minge, Judge; and Crippen, Judge.*


U N P U B L I S H E D�� O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Fred's Tire Co. Inc. challenges the judgment ordering the forfeiture of respondent 2002 Chevrolet Silverado, VIN # 1GCEK 19T322276318, MN Plate JKG611, to Washington County under Minn. Stat. � 169A.63 (2002).� Fred's Tire argues the district court misinterpreted the forfeiture statute and also erroneously found that Fred's Tire knew or should have known of the illegal use of its vehicle.� We affirm.

FACTS

Shortly after midnight on May 27, 2003, Frank Macalus (Macalus) was arrested for driving under the influence of alcohol.� He later pleaded guilty to the offense.� This was his fourth alcohol-related driving offense.� At the time of his current arrest, he was driving a 2002 Chevrolet Silverado owned by Fred's Tire.� Following the arrest, Washington County authorities seized the vehicle because Macalus's conviction was a "designated offense" under Minn. Stat. � 169A.63 (2002).�

Fred's Tire filed a petition in district court seeking return of the vehicle, claiming it was an innocent owner pursuant to Minn. Stat. � 169A.63, subd. 7(d).� At a hearing on the petition, Fred Macalus, Sr. testified that Fred's Tire is a family owned and operated business with four locations in the metro area, that he is the sole owner, and that he is not actively involved in day-to-day operation, "letting the family run it."� He also testified that each of the company's four stores is managed by one of his five children or their spouses; Macalus and his brother Tommy Macalus share the management duties of the store located in Forest Lake.�

Frank Macalus testified that on May 26, 2003, he went to the store and picked up the 2002 Silverado and drove it away.� He did not ask his father for permission to use the company vehicle.� He testified that, based on the company's policy instituted in February 2002, he did not have a right to take the 2002 Silverado for his personal use.� He further testified that under this new company policy company trucks were "not to be driven for personal use" but store managers were allowed to drive the truck home if the manager was "working with some delivering or something to do with business, where it works out best."�

At the hearing Fred's Tire stipulated that statements from Macalus's neighbors contained in a police report were accurate and the report was admitted into evidence.� The report stated that a neighbor across the street recognized a picture of the 2002 Silverado "as the vehicle that Macalus drove on a regular daily basis."� Another neighbor stated that he recognized the picture as the truck Macalus had driven for the last year and that Macalus "drove the vehicle on a daily basis." �

Washington County presented evidence showing that approximately 24,400 miles were put on the 2002 Silverado in one year.� Macalus testified that other than an occasional use by his girlfriend while she still worked for Fred's Tire, he was the only employee at the Forest Lake store who drove the vehicle.� He also testified that Fred Macalus, Sr. took the vehicle approximately once a month to haul his boat or supplies to the family's cabin in Wisconsin.� Fred Macalus, Sr. testified he also took the truck "a couple times" but did not know how many miles he had driven it.�

Macalus was also questioned about his alcohol use and prior driving under the influence convictions.� He testified that he was driving company trucks at the time of both his 1999 conviction and his 1993 conviction.� Further, as a result of his 1999 DWI conviction, the state impounded the license plates of the company truck he was driving and his driving privileges were suspended for 90 days.� He testified that the company "applied [to the state] through the office and got new plates."�

The district court found that Macalus has a significant history of drunk driving and alcohol-related offenses, that Fred Macalus, Sr.�the sole owner of Fred's Tire�was aware of his son's prior drunk driving and knew or should have known he was using the 2002 Silverado for his personal use, that the license plates of a company truck had been impounded in 1999 because Macalus was driving the truck while he was under the influence of alcohol, and that Fred's Tire "acquiesc[ed] in Frank Macalus's personal use of the company owned truck."� The court also found that the "knowledge of the corporation is not limited to the actual knowledge of its sole owner and president, but the corporation also has the constructive knowledge of its authorized agent," that Macalus, as a co-manager, was authorized to use the 2002 Silverado, and that Macalus himself knew of his intended use of the vehicle.� Based on these findings the district court ordered the 2002 Silverado forfeited to the Washington County Sheriff's Department under Minn. Stat. � 169A.63.

D E C I S I O N

Statutory construction is a question of law, which this court reviews de novo.� Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).� When reviewing a district court's findings of fact, this court may not set such findings aside unless they are clearly erroneous.� Rife v. One 1987 Chevrolet Cavalier, 485 N.W.2d 318, 321 (Minn. App. 1992), review denied (Minn. June 30, 1992).� If the underlying findings of fact made by the district court are undisputed or sustainable, the district court's "ultimate" findings must be affirmed because of the absence of a demonstrated abuse of discretion.� Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990).�

1.�������� Under Minn. Stat. � 169A.63, subd. 6,� "A motor vehicle is subject to forfeiture . . . if it was used in the commission of a designated offense or was used in conduct resulting in a designated license revocation."� The parties stipulated that Macalus used the 2002 Silverado in the commission of a designated offense.� Because Fred's Tire was the owner of the 2002 Silverado, the vehicle is only subject to forfeiture "if its owner knew or should have known of the unlawful use or intended use."� Id., subd. 7(d).� Fred's Tire argues that "unlawful use" in subdivision 7(d) must refer to the "designated offense" in subdivision 6 and thus, the record must show that it knew of or should have known of Macalus's prior DWI convictions.

Courts interpret statutes to ascertain and effectuate legislative intent.� Minn. Stat. � 645.16 (1998); see also Klein Bancorporation, Inc. v. Commissioner of Revenue, 581 N.W.2d 863, 866 (Minn. App. 1998) (noting that "[w]e presume plain and unambiguous statutory language manifests legislative intent"), review denied (Minn. Sept. 22, 1998).� When a statute is free of ambiguity, we look only at its plain language.� Tuma v. Comm'r of Econ. Sec., 386 N.W.2d 702, 706 (Minn. 1986).

The plain meaning of the phrase "unlawful use" is use prohibited by law. Black�s Law Dictionary 1536, 1540 (7th ed. 1999) (defining unlawful as "not authorized by law; illegal" and "use" as "the application or employment of something"). The plain meaning of the phrase "intended use" is use that is deliberate or intentional.� American Heritage College Dictionary 721 (4th ed. 2002) (defining intended as "deliberate or intentional").� We conclude the language of subdivision 7(d) is unambiguous and it is sufficient that Fred's Tire knew or should have known that Macalus would intentionally drive the company vehicle for personal use or that he would use the vehicle while he was impaired in violation of Minn. Stat. � 169A.20.

2.�������� Fred's Tire also argues the record does not support a finding that he knew or should have know of the unlawful use, suggesting that the district court findings ignore "the strong evidence showing that it was not reasonable for Fred Macalus, Sr. to expect that the [2002 Silverado] would be used in the commission of a designated offense."� Although Fred's Tire argues it had no knowledge of Macalus's "unlawful use," Minn. Stat. � 169A.63, subd. 7(d) provides a vehicle is subject to forfeiture "if its owner knew or should have known of the unlawful use or intended use."� Our determination is limited to deciding whether the district court's ultimate finding that Fred's Tire knew or should have known of Macalus's unlawful use or intended use was an abuse of discretion because the court's findings were clearly erroneous.� See Maxfield, 452 N.W.2d at 221; Rife, 485 N.W.2d 318, 321.

The district court found that Macalus had a significant history of drunk driving and alcohol-related offenses, that Fred Macalus, Sr., the sole owner of Fred's Tire, was aware of his son's alcohol-related driving offenses, that the license plates of a company truck had been impounded in 1999 because Macalus was driving the truck while he was under the influence of alcohol, and that Fred's Tire "acquiesc[ed] in Macalus's personal use of the company owned truck."�

These findings are supported by the record.� Macalus testified that he was driving a company vehicle during his prior DWI offenses, that the license plates had been impounded, and that new license plates were obtained "through the office."� Macalus's neighbors provided statements that he used the 2002 Silverado daily.� Washington County also produced multiple personal items that were found in the 2002 Silverado.� Further, neither Macalus nor Fred Macalus, Sr. adequately accounted for the 24,400 miles that had been put on the truck in the year since its purchase.� The district court's findings of fact are not clearly erroneous and therefore, the district court did not abuse its discretion in its ultimate finding that Fred's Tire knew or should have known of Macalus's unlawful use or intended use.� See Maxfield, 452 N.W.2d at 221.

Although a finding that Fred Macalus, Sr., as the sole owner of Fred's Tire, knew or should have known of Macalus's unlawful use or intended use is sufficient to defeat the "innocent owner" defense under Minn. Stat. � 169A.63, subd. 7(d), we also conclude that the district court correctly determined that Macaulus's knowledge, as an authorized agent of the corporation, could be imputed to Fred's Tire.� In making this determination, the district court found that Macalus�as a co-manager� was authorized to use the 2002 Silverado, and that Macalus knew of his intended and unlawful use of the vehicle.�

Fred's Tire argues that it was impermissible to impute any knowledge Macalus had of his own actions to the corporation because he is not an officer of the corporation. Macalus testified that under the company policy, store managers are authorized to use the company vehicle.� Use of the company vehicle was within the scope of Macalus's authority and therefore his knowledge regarding his use of that vehicle is imputable to the corporation.� Kay v. Peter Motor Co., Inc., 483 N.W.2d 481, 485 (Minn. App. 1992) (stating knowledge of corporate officer "as both employee and officer was properly imputed to the corporation by the trial court" (emphasis added)).

Further, because Fred's Tire acquiesced in the personal use of the company vehicle or would have learned of Macalus's use of the vehicle if it had exercised proper care, the corporation is chargeable for his acts.� See McGee v. Breezy Point Estates, 283 Minn. 10, 22, 166 N.W.2d 81, 89 (Minn. 1969) (stating "scope of apparent authority is determined not only by what the principal knows and acquiesces in, but also by what the principal should, in the exercise of ordinary care and prudence, know his agent is doing").

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, � 10.


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Wednesday, May 21, 2008

Unpublished PHA v. Deanna-Drug Addict Disability

Tuesday, May 13, 2008

Saint Paul/ RICO Update Plaintiffs Objections To Magistrate's Order Of April 23, 2008 And Amended Order Of May 8, 2008.

Please click onto the COMMENTS for the motion. (New here? Read the RICO lawsuits against the City of Saint Paul located to the right of the screen under the Scale of Justice)

posted by Bob at Tuesday, May 13, 2008 32 comments links to this

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

A07-1199

Public Housing Agency of the City of Saint Paul, Appellant, vs. Deanna Ewig, Respondent.

Filed May 20, 2008

Reversed and remanded

Willis, Judge

Ramsey County District Court

File No. C1-07-2573

John J. Choi, St. Paul City Attorney, Michael F. Driscoll, Assistant City Attorney, 400 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for appellant)

JaPaul J. Harris, Southern Minnesota Regional Legal Services, Inc., 166 East Fourth Street, Suite 200, St. Paul, MN 55101; and Michael Hagedorn, Southern Minnesota Regional Legal Services, Inc., 450 North Syndicate Street, Suite 285, St. Paul, MN 55104 (for respondent)

Considered and decided by Shumaker, Presiding Judge; Willis, Judge; and Peterson, Judge.

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

WILLIS, Judge

In this eviction action, appellant housing agency challenges a district-court order denying a writ of restitution. We reverse and remand

Appellant Public Housing Agency of the City of Saint Paul (PHA) brought this action after learning that one of its tenants, respondent Deanna Ewig, smoked crack cocaine and allowed guests to smoke crack cocaine in her apartment. PHA alleged that these actions constitute "a serious violation" of the terms of Ewig’s lease and sought to have Ewig evicted. The district court dismissed the action, concluding that, because Ewig is addicted to cocaine, she is disabled under the federal Fair Housing Act and thus is entitled to a reasonable accommodation, which PHA failed to provide, rendering PHA’s attempt to evict Ewig discriminatory. This appeal follows.

D E C I S I O N

On review of a district-court order in an eviction action, we defer to the district court’s findings of fact, and those findings will be upheld unless they are clearly erroneous. See Minneapolis Cmty. Dev. Agency v. Smallwood, 379 N.W.2d 554, 555 (Minn. App. 1985) (discussing the standard of review in an unlawful-detainer action, now replaced by an eviction action), review denied (Minn. Feb. 19, 1986). But we do not defer to the district court on a purely legal issue. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

An eviction action is a summary proceeding to determine the present possessory rights to property. See Minn. Stat. § 504B.001, subd. 4 (2006). A landlord is entitled to recover possession by eviction when a tenant holds over "contrary to the conditions or covenants of the lease." Minn. Stat

verdict requires that the district court find only whether "the facts alleged in the complaint are true." Minn. Stat. § 504B.355 (2006). Applying this standard, the supreme court has stated that "[u]nder the trial court’s limited scope of review in unlawful detainer actions, the court was bound to determine only whether [tenant’s] son engaged in . . . criminal activity and thus whether the lease was broken." Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W.2d 700, 704 (Minn. 1999).

Ewig’s lease provides in part that she shall not allow her guests "to engage in any criminal activity, including drug-related criminal activity." PHA’s complaint alleges that Ewig violated this provision by allowing guests to smoke crack cocaine in her apartment. The district court "was bound to determine" whether this allegation is true and thus whether Ewig violated the lease. See Lor, 591 N.W.2d at 704. The district court failed to do so.

Ewig’s lease also provides in part that Ewig shall not "engage in . . . any criminal activity, including drug-related criminal activity." PHA’s complaint alleges that Ewig violated this provision by smoking crack cocaine in her apartment. At the hearing, Ewig admitted that she had done so on at least two occasions. Despite this admission, the district court did not enter a specific finding regarding the truth of PHA’s allegation that Ewig had smoked crack cocaine in her apartment. Instead, the district court concluded that, because Ewig is addicted to cocaine, she "has a disability" under the federal Fair Housing Act; that she is entitled to a reasonable accommodation of that disability; and that PHA’s decision to evict her was discriminatory. We disagree

The federal Fair Housing Act, 42 U.S.C. §§ 3601-3631 (2006), prohibits discrimination against any person in the rental of a dwelling "because of a handicap1 of that [person]." 42 U.S.C. § 3604(f)(2)(A). Courts have held that recovering drug addicts are handicapped under the act. E.g., United States v. Southern Mgmt. Corp., 955 F.2d 914, 919 (4th Cir. 1992). But the act’s definition of "handicap" contains an exception specifically providing that "such term does not include current, illegal use of . . . a controlled substance." 42 U.S.C. § 3602(h). Ewig argues that she is not excluded under this provision because her relapse does not constitute "current" illegal use of a controlled substance. We interpret the words of the provision "in accord with [their] ordinary or natural meaning." Smith v. United States, 508 U.S. 223, 228, 113 S. Ct. 2050, 2054 (1993). "Current" means "[b]elonging to the present time." The American Heritage Dictionary 446 (4th ed. 2000). Thus, drug use that is "reasonably contemporaneous with the alleged incidents of discrimination" is excluded from protection under the act. Fowler v. Borough of Westville, 97 F. Supp. 2d 602, 609 (D.N.J. 2000). Here, Ewig’s alleged use of crack cocaine occurred two weeks before PHA sought to evict her. Because Ewig’s drug use was reasonably contemporaneous with PHA’s decision to evict her, and was in fact a cause of that decision, she is not "handicapped" under the act.

1 The district court consistently refers to Ewig’s condition as a "disability" under the Fair Housing Act, but the Fair Housing Act uses the term "handicap," not disability. See 42 U.S.C. § 3602(h).

Our interpretation of the act is also consistent with the principle that statutes should not be interpreted to produce absurd results. See Rowley v. Yarnall, 22 F.3d 190, 192 (8th Cir. 1994) (stating that interpretations of statutes that produce absurd results are

to be avoided). The district court concluded that Ewig was entitled to a reasonable accommodation that essentially excused her illegal drug use. Interpreting a federal anti-discrimination law to excuse illegal drug use produces an absurd result. The act’s definition of handicap "[wa]s not intended to be used to condone or protect illegal activity." Southern Mgmt., 955 F.2d at 921 (quoting H.R. Rep. No. 100-711 (1988) (reprinted in 1988 U.S.C.C.A.N. 2173, 2183)).

Finally, Ewig argues that she is handicapped because, in addition to her cocaine addiction, she has been diagnosed with minor depression and anxiety disorder. But these diagnoses were not the cause of her eviction. She was evicted for using illegal drugs and allowing others to use illegal drugs in her apartment. The federal Fair Housing Act prohibits discrimination "because of" a handicap. 42 U.S.C. § 3604(f)(2)(A). Even if Ewig’s minor depression and anxiety diagnoses are handicaps under the act, they were not the cause of her eviction.

Because the district court failed to enter specific findings regarding the truth of PHA’s allegations and misapplied the relevant federal housing law, we reverse and remand for further proceedings consistent with this opinion.

Reversed and

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Saturday, May 17, 2008

City of Morris v. Sax Invest-A06-1188-MS16B.62,sub(1)2006

Supreme Court Opinions
http://www.mncourts.gov/opinions/sc/current/OPA061188-0515.pdf

A06-1188 City of Morris, Respondent, vs. Sax Investments, Inc., Appellant.
Court of Appeals.
1. When the express language of a state statute defines the scope of permissible municipal regulations, we determine the validity of municipal regulations on the same subject by applying the plain language of the statute.
2. Under Minn. Stat. § 16B.62, subd. 1 (2006), a municipal rental licensing ordinance regulating components or systems of a residential structure covered by the State Building Code is invalid where the municipal ordinance imposes different requirements than the State Building Code.
3. Inspection standards in a municipal rental licensing ordinance regulating ground fault interrupter receptacles, bathroom ventilation, and egress window covers are invalid under Minn. Stat. § 16B.62, subd. 1, because the inspection standards are building code provisions regulating components or systems of a residential structure and are different from provisions in the State Building Code.
4. The authority of municipalities to enact and enforce habitability standards for rental housing is constrained by the prohibition on municipal regulation of building code provisions in Minn. Stat. § 16B.62, subd. 1.
5. We will not consider issues arising out of allegedly dangerous conditions in a residential structure that were not previously raised or were not previously charged.
Reversed and remanded. Justice Lorie S. Gildea.
Dissenting, Justice Paul H. Anderson.
Took no part, Justice Christopher J. Dietzen.

STATE OF MINNESOTA 1 of 25

IN SUPREME COURT

A06-1188

Court of Appeals Gildea, J.

Dissenting, Anderson, Paul H., J.

Took no part, Dietzen, J.

City of Morris,

Respondent,

vs. Filed: May 15, 2008

Office of Appellate Courts

Sax Investments, Inc.,

Appellant.

S Y L L A B U S

1. When the express language of a state statute defines the scope of permissible municipal regulations, we determine the validity of municipal regulations on the same subject by applying the plain language of the statute.

2. Under Minn. Stat. § 16B.62, subd. 1 (2006), a municipal rental licensing ordinance regulating components or systems of a residential structure covered by the State Building Code is invalid where the municipal ordinance imposes different requirements than the State Building Code.

3. Inspection standards in a municipal rental licensing ordinance regulating ground fault interrupter receptacles, bathroom ventilation, and egress window covers are invalid under Minn. Stat. § 16B.62, subd. 1, because the inspection standards are building

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Sunday, May 11, 2008

Alice Krengel Published


A07-645 Evelyn I. Rechtzigel Trust, by its Trustees Frank Rechtzigel
and Gene Rechtzigel, Appellant, vs. Fidelity National Title
Insurance Company of New York, Respondent; Pulte Title
Agency of Minnesota, LLC, Respondent.
 Dakota County District Court, Hon. Richard G. Spicer.
1. Unless claims are asserted that threaten the marketability of title or other risks specified in the policy, title insurance does not cover monetary losses incurred by the insured arising out of the bankruptcy of a qualified intermediary in a 26 U.S.C. § 1031 like-kind exchange.
2. If a bankruptcy trustee's preference action against an insured does not implicate the marketability of title to real property or other risks specified in the title insurance policy, the title insurer has no duty to defend under a title insurance policy.
 Affirmed. Judge David Minge.




A07-310 City of West St. Paul, Respondent, vs. Alice Jane Krengel,
Appellant.
 Dakota Cohttp://www.mncourts.gov/opinions/coa/current/opa070310-0506.pdfunty District Court, Hon. Leslie May Metzen.
 1. A district court may not issue a permanent injunction to abate a public nuisance pursuant to Minn. Stat. § 617.83 (2006) unless the public nuisance exists at the time of the hearing on the request for the permanent injunction.
2. A public nuisance exists for purposes of Minn. Stat. § 617.83 (2006) if two or more incidents of statutorily defined nuisance activity have occurred within the 12-month period preceding the hearing on the request for the permanent injunction.
 Vacated; motion denied. Judge Matthew E. Johnson.
Dissenting, Judge Gary L. Crippen.*

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Friday, March 21, 2008

Karl Granse-Unlawful Detainer-Quiet Title1997

FindLaw> State Resources> Minnesota> Primary Materials> Minnesota Court Opinions

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.§ 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-96-401

Park Drive Partnership,
Respondent,

vs.

Karl G. Granse,
Appellant.

Filed September 24, 1996
Affirmed
Kalitowski, Judge

Dakota County District Court
File No. C6962035

Craig A. Wible, Wible & Gallagher, PLLP, 1275 Capital Centre, 386 North Wabasha Street, St. Paul, MN 55102 (for Respondent)

Karl G. Granse, 105 East 151st Street, Burnsville, MN 55337 (Pro Se Appellant)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.

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

KALITOWSKI , Judge
Appellant Karl G. Granse challenges the judgment of restitution granted by the district court in an unlawful detainer action brought by respondent Park Drive Partnership (Park Drive). Granse argues: (1) the district court was precluded from hearing the matter because of a pending quiet title action, and (2) the proper procedures were not followed with regard to the sale of the disputed property to Park Drive. We affirm.
D E C I S I O N

The IRS claimed appellant Karl G. Granse owed in excess of $50,000 for unpaid taxes. Based on its claim, the IRS placed a tax lien on Granse's property, which included a home. The IRS later seized the home and sent Granse a notice of a Sealed Bid Sale, which informed him that his home would be sold. The home was sold to Park Drive. Granse made no effort to redeem the property before the sale, during the redemption period, or after the redemption period.
An unlawful detainer action was commenced by Park Drive when Granse did not vacate the property. Park Drive presented evidence to the district court establishing it had purchased the home from the IRS. Granse did not challenge Park Drive's assertion, but instead made numerous allegations against the IRS and argued the court could not hear the unlawful detainer action because of a pending quiet title action regarding the home.
I.

On appeal Granse again asserts that an unlawful detainer action cannot be decided while his title claim is pending. This is an issue of law. A reviewing court is not bound by and need not give deference to a trial court's decision on a purely legal issue. Frost-Benco Elec. Assoc. v. Minnesota Pub. Utils. Comm. , 358 N.W.2d 639, 642 (Minn. 1984).
Unlawful detainer actions do not determine title. William Weisman Holding Co. v. Miller , 152 Minn. 330, 332, 188 N.W. 732, 733 (1922) (an unlawful detainer action does not determine the ultimate rights of the parties). An unlawful detainer action is a summary proceeding designed only to determine who has the right to present possession of the property. Id.; Keller v. Henvit , 219 Minn. 580, 585, 18 N.W.2d 544, 547 (1945) (unlawful detainer action determines only right to present possession). As the supreme court has stated:
The scope and purpose of the [unlawful detainer] action differs so essentially from the scope and purpose of an action to enforce equitable rights in the property that the pendency of the latter action cannot be held to bar the right to prosecute the former.

Weisman Holding , 152 Minn. at 332, 188 N.W. at 733.
Accordingly, we reject Granse's assertion that the district court could not decide the unlawful detainer action while his quiet title action was pending.
II.

The district court concluded that for purposes of determining the right to possession Park Drive was the legal owner of the property. This is a finding of fact. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.
The purpose of an unlawful detainer action is to determine who has the "superior right of possession." See Sternaman v. Hall , 411 N.W.2d 18, 19 (Minn. App. 1987) (court held legal owner had "superior right of possession"); Minn. Stat. § 566.03, subd. 1 (1994) ("The person entitled to the premises may recover possession * * *."). As noted above, an unlawful detainer action does not determine title. Weisman Holding , 152 Minn. at 332, 188 N.W. at 733 (unlawful detainer action does not determine title).
In the present case, Park Drive purchased Granse's property and Granse did not attempt to redeem the property. Although Granse raised several issues regarding the actions of the IRS, those issues were outside the scope of the district court's authority in an unlawful detainer action and are, therefore, outside our scope of review on appeal.
The judgment in an unlawful detainer action determines only the right to the present possession and is not a bar to an action involving the title or the equitable rights of the parties. Such matters, including counterclaims, cannot be litigated in such action.

Keller , 219 Minn. at 585, 18 N.W.2d at 547; Weisman Holding , 152 Minn. at 332, 188 N.W. at 733 (in an unlawful detainer action "the defendant cannot interpose an equitable defense, nor any defense in the nature of a counterclaim").
Park Drive provided the district court with evidence that it had purchased Granse's home from the IRS. Granse did not present the district court with any evidence demonstrating that he had a greater right of possession to the property than Park Drive. Therefore, we conclude the district court did not err in determining Park Drive was entitled to possession. Further, we deny respondent's request for costs for responding to this appeal.
Affirmed.

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Wednesday, February 27, 2008

Sharon Anderson PD Copywrite

The undersinged blogger "takes" issue with the courts Unpublished opinions
yet published on the Tax-supported www.mncourts.gov
THEREFORE: Sharon Anderson current Candidate http://sharon4staterep64a.blogspot.com
for Public Domain also written today 27Feb08 www.twincities.com Reporter Emily

Unpublished Opinions Released February 26, 2008. Unpublished opinions are issued in cases that are less complicated, that involve legal issues that have already been decided in published opinions, or that will affect only the parties to that particular case. These opinions are usually shorter, do not contain extensive discussion of the facts, and are not generally relied on by other courts to the same degree as published opinions.15. A06-2118
DLJ Mortgage Capital, Inc., Relator, vs. St. Paul City Council,
Respondent.
Reversed and remanded. Judge Gordon W. Shumaker.
City of St. Paul.

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

A06-2118

DLJ Mortgage Capital, Inc., Relator, vs. St. Paul City Council, Respondent.

February 26, 2008

Reversed and remanded

Shumaker, Judge

City of St. Paul

Council File No. 06-936

Eric D. Cook, Christina M. Weber, Wilford & Geske, P.A., 7650 Currell Boulevard, Suite 300, Woodbury, MN 55125 (for relator)

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)

Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Worke, Judge.

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

SHUMAKER, Judge

By writ of certiorari, relator DLJ Mortgage Capital, Inc. challenges the City of St. Paul‟s resolution, adopted according to its nuisance-abatement ordinance, ordering the 2

demolition or removal of DLJ‟s property within 15 days. We conclude that the city failed to follow its own procedure, which deprived DLJ of its right to due process, and that the city‟s decision is unsupported by the evidence and is, therefore, arbitrary and capricious. We reverse and remand.

FACTS

Relator was the mortgage-holder for a two-story triplex located at 719 Case Avenue in St. Paul. The city condemned the property in September 2005, and it has been vacant since that time. In May 2006, relator foreclosed on the owner‟s mortgage and purchased the property. After successfully reducing the redemption period, relator took full possession of the property on September 6, 2006.

In June 2006, the city inspected the property and found it to be a nuisance as defined in the city code: ?[a] vacant building . . . which has multiple housing code or building code violations or has been ordered vacated by the city and which has conditions constituting material endangerment . . . or which has a documented and confirmed history as a blighting influence on the community.? St. Paul, Minn., Legislative Code § 45.02 (2006). On July 17, 2006, the city issued an Order to Abate, which listed 19 interior and exterior conditions that required correction by August 17, 2006. The abatement order was posted at the property and served on the former owner.

Relator was not notified of the abatement order and it did not know that there were problems with the property until August 18, 2006, when the city determined that the abatement order had not been complied with, ordered an owner-encumbrance report, and issued a Notice of Public Hearings to all interested parties. According to this notice, 3

relator was to appear at a public hearing before the city‟ Legislative Hearing Officer (LHO) on September 19, 2006. The LHO would then recommend certain action to the city council at its next meeting on October 4, 2006.

Relator appeared at the September 19 hearing and requested more time to assess the problems with the property and ?to find out what‟ best for our property interest.? In opposition, community activists testified that ?[t]he neighbors want this property torn down? and that ?[a] triplex is untenable, we feel, at this site.? They submitted pictures of the property, several impact statements detailing structural and tenant-behavioral problems, and two signed petitions requesting that the city demolish the property. Relator acknowledged that ?there‟ been an issue with screening of tenants? but emphasized that those problems are not an issue now that the property is vacant and under new ownership.

The LHO said she would recommend to the city council that it postpone public hearing on this matter, but only if relator obtained a code compliance inspection, posted a performance bond, registered the property, paid vacant property fees, and provided a work plan and evidence of financial capacity to repair the property, all before the city council‟ October 4 meeting.

Relator appeared before the LHO on October 3, and reported that it had substantially complied with her requirements. Relator also reported that it was about to sign a purchase agreement with a local buyer, who would in turn post the performance bond and submit work and financial plans. The buyer testified that he owned and had 4

restored property across the street from relator‟ property, and that he planned to rehabilitate the property as a triplex and sell it.

The LHO cautioned relator that the city council wanted the party that rehabilitates the property to also manage it on a long-term basis. The city‟ Vacant Buildings Supervisor reiterated the neighborhood‟ concern that ?they have too much density of rental property in that specific area and that . . . leads to ongoing problems.? Relator countered that the problems complained of were outdated, relating to the previous owner‟ neglect, and renewed its request to delay public hearing on this matter. The LHO agreed to recommend postponement until October 18 and directed the parties to develop work and financial plans before that meeting.

The city council approved the LHO‟ recommendation. The parties provided the LHO with a work plan and financial documentation. At the October 18 public hearing, the LHO recommended that the city council grant the parties 180 days to rehabilitate the property.

The council heard testimony from the property‟ long-time neighbor, who reported structural deficiencies and repeated problems with previous owners and tenants. Relator testified as well, and emphasized that it ?has been very diligent in performing everything we‟e been asked to do in a very short amount of time,? and that relator had ?nothing to do with the former owner.? The buyer also testified that he has ?a long history of being a landlord in the city, very few police calls, very few evictions,? and that he has ?the same concerns the neighborhood do[es,] that I put good people in? the property. 5

Council member Bostrom stated that he was ?not convinced that anything is going to change overnight on this,? and that he ?want[s] to make sure something happens? at the property ?because this has been just unacceptable what‟ been going on.? He moved the council to order removal of the property within 15 days. No other council members voiced any concerns about the property or its ownership. The council unanimously adopted the resolution to order relator to remove the property. The mayor approved the resolution on October 23, 2006. This appeal followed.

D E C I S I O N

?The governing body of any municipality may order the owner of any hazardous building or property within the municipality to correct or remove the hazardous condition? by enacting and enforcing ordinances addressing this problem. Minn. Stat. §§ 463.16, .26 (2006). Pursuant to this statutory authority, the City of St. Paul enacted a nuisance-abatement procedure, under which the resolution here was issued. St. Paul, Minn., Legislative Code §§ 45.01-.14 (2006).

?[T]he city‟ decision to order demolition of the building [i]s quasi-judicial.? City of Minneapolis v. Meldahl, 607 N.W.2d 168, 171 (Minn. App. 2000). We review quasi-judicial decisions by writ of certiorari. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). Certiorari review ?is limited to an inspection of the record . . . [and is] confined to? issues of jurisdiction, procedure, and whether the order in question ?was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.? Id. (quotation omitted). We will affirm a city‟ decision if it is reasoned and supported by the evidence, even though a different 6

conclusion could have been reached. CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 562 (Minn. App. 2001), review denied (Minn. Nov. 13, 2001).

1. Due Process

Relator claims that it was denied due process when the city failed to serve it with an abatement order before the city scheduled hearings on demolishing the improvements on the property. Procedural due process should ?„be tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard, to insure that they are given a meaningful opportunity to present their case.‟ Sweet v. Comm’r of Human Servs., 702 N.W.2d 314, 320 (Minn. App. 2005) (quoting Mathews v. Eldridge, 424 U.S. 319, 349, 96 S. Ct. 893, 909 (1976)), review denied (Minn. Nov. 15, 2005). Nuisance-abatement procedures are subject to two overriding principles that serve to protect the rights of property owners: (1) abatement and removal should be exercised with caution, and (2) notice and the opportunity to be heard should be granted without restraint. Village of Zumbrota v. Johnson, 280 Minn. 390, 395-96, 161 N.W.2d 626, 630 (1968). Relator must show it was prejudiced by the city‟ alleged due-process violations. See Sweet, 702 N.W.2d at 321 (concluding that due process did not entitle relator to an oral hearing because relator was able to submit his case in writing).

The city has two nuisance-abatement procedures relevant to these circumstances. The first is general abatement, under which an order is served upon the owner of record, who is given ?a reasonable time? to remedy the described nuisance conditions. St. Paul, Minn., Legislative Code § 45.10(1). If the owner fails to request a public hearing or to 7

comply with the order before the deadline, ?the city may abate the nuisance.? St. Paul, Minn., Legislative Code § 45.10(5).

The second procedure is substantial abatement, which is triggered when the estimated cost of abating the nuisance is over $5,000. St. Paul, Minn., Legislative Code § 45.11. A substantial abatement order is served ?upon the owner, all interested parties and any responsible party,? and if the order provides for demolition of the building, it should also be posted at the property. Id., (1), (2)c. If the owner or party does not remedy the described nuisance within the ?reasonable time? specified, a public hearing is automatically scheduled before the city council. Id., (3). Before the public hearing, the owner may participate in an informal meeting with the LHO, who can submit a recommendation to the full council. Id., (4a). ?[T]he city council shall adopt a resolution describing what abatement action, if any, the council deems appropriate.? Id., (5).

Relator argues that the city issued the July 17 abatement order under its substantial abatement procedure and failed to provide relator notice as required under code section 45.11. Alternatively, relator argues that the substantial abatement procedure began on August 18 when the city found noncompliance with the July 17 order, and so the city was required to serve relator with a second abatement order. The city conceded at oral argument before this court that this was a substantial abatement but that, regardless of the procedure under which the July 17 order was issued, relator should have received an abatement order and was entitled to the time specified in that order to take remedial action under code section 45.11. We agree. 8

The face of the July 17 order clearly states that it was issued according to the substantial abatement procedure described in code section 45.11. And it is undisputed that relator is an interested party within the meaning of that section. If proper notice had been given, relator would have had at least the 30 additional days provided in the order within which to comply with the city‟ requirements under code section 45.11. The city‟ failure to follow its own procedure was not a mere misstep, but effectively denied relator the opportunity to remedy the situation. Cf. Hamline-Midway Neighborhood Stability Coal. v. City of St. Paul, 547 N.W.2d 396, 399 (Minn. App. 1996) (concluding that City failed to follow proper procedure when it issued a license without public hearing or council approval, as opposed to ?merely fail[ing] to post proper notice, barely missing a procedural deadline, or skipping a minor step?), review denied (Minn. Sept. 20, 1996). We conclude that relator was prejudiced and was denied due process by the city‟ failure to provide proper notice.

2. Substantial Evidence

Relator asserts that the city‟ decision to demolish the improvements on its property was arbitrary and capricious and lacked any evidence to support it. We apply the substantial evidence test to a city‟ quasi-judicial decision, to determine whether it is supported by legally sufficient reasons and facts in the record. In re N. States Power Co., 416 N.W.2d 719, 723 (Minn. 1987); Watab Twp. Citizen Alliance v. Benton County Bd. of Comm’rs, 728 N.W.2d 82, 93-4 (Minn. App. 2007), review denied (Minn. May 15, 2007). Substantial evidence is ?(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more 9

than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.? Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002). A city‟ decision is arbitrary if it reflects its will and not its judgment. In re Excess Surplus of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn. 2001).

Relator argues that the city council‟ decision was a thinly veiled zoning action based solely on the neighbors‟complaints, which were outdated, pertained only to a prior owner, and were irrelevant to relator‟ current ownership. The city conceded at oral argument before this court that the density issue raised by neighbors played a part in the council‟ decision. And the record shows that the prevailing theme of the neighbors‟complaints was the revolving-door of owners of this property and their tenants‟persistent misbehavior. The record also shows that the neighborhood repeatedly requested that the property be reduced to a single-family residence. We agree with relator that it should not be held legally responsible for the actions and inactions of past owners, with whom relator has no connection and as to whose conduct relator had no knowledge.

The city claims that its decision is based in part on its lack of confidence in the parties‟abilities to rehabilitate and manage the property. This claim, however, has no basis in the record. While the LHO advised relator that the party repairing the property should also manage it, neither the city‟ abatement procedures nor its ordinances contain any language requiring long-term property management. No council member indicated concern with the parties‟intentions or wherewithal to complete the project. And the 10

record shows, contrary to the city‟ claim, that the city‟ LHO approved of the parties‟work and financial plans.

Relator argues that it was unreasonable for the city council to ignore the LHO recommendation that the council grant relator 180 days to rehabilitate the property. The LHO‟ recommendation is the only evidence in the record regarding a reasonable time-frame within which relator might comply with the city‟ abatement process. No one presented any evidence or even raised the issue whether an alternative deadline would be more reasonable. Instead, the city council rejected the LHO‟ recommendation without any basis in the evidence presented at the hearing.

The city conceded at oral argument before this court that relator was entitled to 180 days for repairs, as recommended by the LHO. We conclude that the city‟ decision to remove relator‟ property within 15 days is not supported by any evidence in this record, and that it is arbitrary and capricious.

We find no merit in relator‟ constitutional and statutory interpretation arguments.

Reversed and remanded.

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Sunday, December 30, 2007

Free Flow Information MS595.021

Home > Appellate Courts > Court of Appeals > Court of Appeals Opinions >

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DECISIONS OF THE COURT OF APPEALS

FILED MONDAY, DECEMBER 24, 2007


A06-2263 In the Matter of the Claim for Benefits by Scott Sletten.
 Minnesota Public Safety Officers Benefit Eligibility Panel.
A firefighter who is forced to retire after sustaining injuries during a cave rescue is entitled to continuing health care benefits under Minn. Stat. § 299A.465 (2006). Cave rescue is an occupational duty or professional responsiblity. The firefighter was at risk for the type of injury he sustained.
Reversed. Judge R. A. (Jim) Randall.



A06-1940 Margaret A. Brickner, et al., Respondents, vs. One Land
A06-1957 Development Company,Defendant (A06-1940), Appellant
(A06-1957); John Andrew Duckwall, Appellant (A06-1940),
Defendant (A06-1957).
 Anoka County District Court, Hon. James A. Morrow.
1. When one party to a real estate contract initiates cancellation proceedings under Minn. Stat. § 559.21 (2002), in accordance with contractual terms, the other party must bring an action opposing cancellation or seek injunctive relief before expiration of the cancellation period and may not avoid cancellation by asserting a prior breach after the cancellation period expires.
2. A party defending against an allegation of slander of title by alleging reliance on an attorney's advice bears the burden to produce specific facts showing reasonable reliance on the attorney's advice.
3. In an action for slander of title where the aggrieved party pleads attorney fees as special damages, an award of attorney fees is measured by the extent that the aggrieved party is obligated to pay them.
Affirmed as modified. Judge Roger M. Klaphake.

A07-678 In Re: Death Investigation of Jeffrey Alan Skjervold.
Ross E. Arneson, in his capacity as Blue Earth County
Attorney, petitioner, Respondent, vs. Daniel Edward
Nienaber, et al., Appellants.
 Blue Earth County District Court, Hon. Norbert P. Smith.
1. The Minnesota Free Flow of Information Act, Minn. Stat. §§ 595.021-.025 (2006), provides to the news media a substantial privilege not to reveal sources of information or disclose unpublished information except as required under the statute.
2. Under Minn. Stat. § 595.024, subd. 2 (2006), an applicant seeking specific information from the news media relevant to a gross misdemeanor or felony must establish by clear and convincing evidence all three criteria of the subdivision. The third criterion requires that the applicant establish that there is a compelling and overriding interest requiring disclosure of the information to prevent an injustice.
Reversed. Judge Christopher J. Dietzen.

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-678

In Re: Death Investigation of Jeffrey Alan Skjervold

Ross E. Arneson, in his capacity
as Blue Earth County Attorney, petitioner,
Respondent,

vs.

Daniel Edward Nienaber, et al.,
Appellants.

Filed December 24, 2007

Reversed

Dietzen, Judge

Blue Earth County District Court

File No. 07-CV-07-168

Mark R. Anfinson, Lake Calhoun Professional Building, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for appellants Daniel Edward Nienaber, et al.)

Ross E. Arneson, Blue Earth County Attorney, Patrick R. McDermott, Susan B. DeVos, Assistant County Attorneys, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002-3129 (for respondent Ross E. Arneson)

John P. Borger, Faegre & Benson, L.L.P., 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402; and

Lucy A. Dalglish, 1101 Wilson Boulevard, Suite 1100, Arlington, VA 22209 (for amici curiae Minnesota Broadcasters, Minnesota Joint Media Committee, Minnesota Newspaper Association, Reporters Committee for Freedom of the Press, Star Tribune Company)

Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Huspeni, Judge.*

S Y L L A B U S

1. The Minnesota Free Flow of Information Act, Minn. Stat. §§ 595.021-.025 (2006), provides to the news media a substantial privilege not to reveal sources of information or disclose unpublished information except as required under the statute.

2. Under Minn. Stat. § 595.024, subd. 2 (2006), an applicant seeking specific information from the news media relevant to a gross misdemeanor or felony must establish by clear and convincing evidence all three criteria of the subdivision. The third criterion requires that the applicant establish that there is a compelling and overriding interest requiring disclosure of the information to prevent an injustice.

O P I N I O N

DIETZEN, Judge

Appellants challenge the district court order and resulting judgment compelling them to divulge information regarding the investigation into the death of Jeffrey Skjervold, arguing that the district court erred in concluding that respondent had met the criteria for disclosure under Minn. Stat. § 595.024, subd. 2 (2006). Because we conclude that the district court erred in applying the law, we reverse.


FACTS

In December 2006, Jeffrey Skjervold was involved in a domestic dispute at his home in rural Blue Earth County. Law enforcement was called, a stand-off ensued, and Skjervold barricaded himself in his home. During the stand-off, Skjervold shot and injured two law enforcement officers; and he was shot and injured by a law enforcement officer.

Law enforcement negotiators contacted Skjervold by telephone in an attempt to peacefully resolve the stand-off. The negotiators learned that Skjervold was upset because appellant Daniel Nienaber, a reporter from the Free Press, a Mankato daily newspaper, had contacted him during the stand-off. Bureau of Criminal Apprehension (BCA) agent Robert Nance talked with appellant Joe Spear, editor of the Free Press, and requested that the newspaper abandon its efforts to contact Skjervold. Eventually Spear agreed to abandon further efforts to contact Skjervold. Skjervold later took his own life.

The next day, the Free Press published an article by appellants Daniel Nienaber and Nicholas Hanson that contained information obtained by Nienaber during his conversation with Skjervold. Shortly thereafter, respondent Blue Earth County Attorney served appellants with an application under Minn. Stat. § 595.024 (2006), requesting that the district court issue subpoenas to compel disclosure of the contents of the conversation with Skjervold. The application included an affidavit from Micheal Anderson, a special agent with the BCA.

Following a hearing, the district court granted the application, over appellants’ objection, concluding that all of the criteria set forth in Minn. Stat. § 595.024, subd. 2, had been met. This appeal follows.

ISSUE

Did the district court err in concluding that respondent satisfied the criteria for disclosure under Minn. Stat. § 595.024, subd. 2 (2006)?

ANALYSIS

Appellants argue that the district court erred in its interpretation of the statute and in concluding that respondent had satisfied the criteria in Minn. Stat. § 595.024, subd. 2 (2006). Statutory construction is a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). When interpreting a statute, our purpose is to determine the intent of the legislature. State v. Larivee, 656 N.W.2d 226, 229 (Minn. 2003). Further, “[e]very law shall be construed, if possible, to give effect to all its provisions.” Minn. Stat. § 645.16 (2006). We review a district court’s conclusions of law de novo. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003). Findings of fact of the district court are not set aside unless clearly erroneous, and we give due regard to the opportunity of the district court to judge the credibility of the witnesses. See Minn. R. Civ. P. 52.01.

The Minnesota Free Flow of Information Act, Minn. Stat. §§ 595.021-.025 (2006), confers upon the press “the benefit of a substantial privilege not to reveal sources of information or to disclose unpublished information” except as set forth in applicable provisions of the statute, so as “to insure and perpetuate, consistent with the public interest, the confidential relationship between the news media and its sources.” Minn. Stat. § 595.022. Minn. Stat. § 595.024 sets forth the procedure for applying to the district court to seek disclosure of unpublished information from the news media. Subdivision 2 provides that the application shall be granted only if the court determines, after hearing from the parties, that the applicant has met three conditions, or criteria, by clear and convincing evidence. Minn. Stat. § 595.024, subd. 2. Those criteria are

(1) that there is probable cause to believe that the specific information sought (i) is clearly relevant to a gross misdemeanor or felony, or (ii) is clearly relevant to a misdemeanor so long as the information would not tend to identify the source of the information or the means through which it was obtained, (2) that the information cannot be obtained by alternative means or remedies less destructive of first amendment rights, and (3) that there is a compelling and overriding interest requiring the disclosure of the information where the disclosure is necessary to prevent injustice.

Id.

Initially, appellants argue that the district court erred in not dismissing the application prior to the hearing on the ground that respondent failed to make a showing of probable cause under the statute. We disagree.

The statute does not require that the district court make a preliminary evaluation of the merits or consider dismissing the application sua sponte. Appellants concede that they did not bring a motion to dismiss. See Minn. R. Civ. P. 12.02. Thus, appellants’ argument lacks merit. We turn to an examination of each criterion under the statute.

First, the statute requires that the information sought is “clearly relevant to a gross misdemeanor or felony.” Minn. Stat. § 595.024, subd. 2(1)(i). Appellants argue that the information sought must be relevant to an actual prosecution of a crime, that Skjervold is deceased and cannot be prosecuted and, therefore, that the criterion is not satisfied. The district court rejected appellants’ argument, concluding that the information sought is clearly relevant to felony violations of law committed by Skjervold. We agree.

The statute does not explicitly require that the gross misdemeanor or felony be actually prosecuted. Had the legislature intended to require that the information sought be “clearly relevant” to a gross misdemeanor or felony that was “actually prosecuted,” it could have provided such a requirement in the statute. But it did not. Thus, we conclude that the statute only requires that the specific information sought be “clearly relevant” to a gross misdemeanor or felony. Id.

Second, the statute requires that the specific information sought cannot be obtained by alternative means or remedies less destructive of First Amendment rights. Minn. Stat. § 595.024, subd. 2(2). The district court found that the information is only available through the Free Press reporter because Skjervold is dead and there are no phone company records available. On this record, the district court’s finding is not clearly erroneous. Thus, the second criterion is also satisfied.

Third, the statute requires that there “is a compelling and overriding interest requiring the disclosure of the information where the disclosure is necessary to prevent injustice.” Minn. Stat. § 595.024, subd. 2(3). Appellants suggest that the language of the statute is very broad and, therefore, susceptible of differing interpretations.

We agree that the language of the statute is broad, but we do not agree that it is ambiguous. We read the statute to require that the applicant establish “a compelling and overriding interest” requiring the disclosure of the information to prevent an “injustice.” Id. What constitutes an “injustice” will depend upon the facts and circumstances of the particular case.

Respondent argued and the district court agreed that disclosure is necessary to fully understand the events leading up to Skjervold’s suicide, and that doing so would prevent injustice. We disagree. The county attorney has the responsibility, among other things, to prosecute crimes and represent the county in civil matters. But the county attorney does not argue that it needs the information for any official purpose, such as investigating potential charges against appellants or a law enforcement officer. See Minn. Stat. § § 388.01-.25 (2006). Essentially, the county attorney argues that it needs to conduct discovery to find an injustice, but declines to connect the discovery to a particular injustice. We conclude that the statute requires that the particular injustice be identified. Here, the county attorney has failed to do so and, therefore, the statute has not been satisfied.

Amici curiae argue that the act does not allow for any disclosure, including an in-camera review by the district court, unless the applicant has satisfied the requirements of Minn. Stat. § 595.024, subd. 2. Because it is not necessary for us to reach the issue of whether an in-camera review by the district court is permissible under the statute, we decline to reach that issue.

D E C I S I O N

Because respondent did not establish by clear and convincing evidence that there is a compelling and overriding interest requiring disclosure to prevent an injustice, the district court erred in concluding that respondent satisfied the requirements of Minn. Stat. § 595.024, subd. 2 (2006).

Reversed.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

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