Minnesota Cities Magazine
More from Jan-Feb 2018 issue

From the Bench: Court Dismisses Claim of Illegal Access to Driver’s License Data

Statute of limitations
Angela Shambour, a former law enforcement officer, discovered through a 2013 audit that her driver’s license had been accessed 59 times between 2003 and 2011. In 2014, she sued various Minnesota individuals, cities, counties, and law enforcement entities for numerous alleged violations of the Data Privacy Protection Act (DPPA). The DPPA restricts the use and distribution of personal information contained in motor vehicle records to 14 authorized purposes, including some law enforcement purposes. Shambour claimed that there was no authorized purpose for accessing her personal information and that individuals had viewed her information out of romantic attraction or curiosity about the changes in her appearance since her time as a law enforcement officer.

The federal district court dismissed many of Shambour’s claims as time-barred under the DPPA’s four-year statute of limitations. Shambour appealed, claiming the district court had incorrectly applied the statute of limitations. Shambour argued that the limitations period did not start to run until she discovered the unlawful accesses of her personal information. The 8th U.S. Circuit Court of Appeals affirmed the district court’s decision and held that the DPPA’s limitations period begins to run when an unlawful access occurs, not when it is discovered. Shambour v. Carver County, No. 16-1425 (8th Cir. Sept. 25, 2017) (unpublished opinion).

Subdivision statute
The City of Woodbury conditions its approval of subdivision applications on the applicant’s payment of a negotiated fee, called a major roadway assessment (MRA). MRA fees are used to fund construction of streets and other infrastructure needed to support a proposed subdivision, regardless of whether that infrastructure is located inside or outside the subdivision’s boundaries. Martin M. Harstad, a developer, sued the city, seeking a declaration that it does not have authority to require payment of MRA fees. Harstad also claimed that the city’s MRA requirement resulted in a regulatory taking and that his subdivision application was automatically approved because the city had failed to deny it within the time allowed in state statutes.

The city argued that the subdivision statute provides cities with
authority to require the payment of an infrastructure fee,
like the MRA.The city argued that the subdivision statute, Minnesota Statutes, section 462.358, subdivision 2a, provides cities with authority to require the payment of an infrastructure fee, like the MRA. The city also argued that Harstad’s other claims must be dismissed because the city never imposed an MRA fee on Harstad and because Harstad’s subdivision application was incomplete.

The district court dismissed Harstad’s regulatory taking and automatic approval claims. However, the district court held that the subdivision statute does not authorize cities to condition subdivision approval on an applicant’s payment of a fee to fund the construction of infrastructure located outside the boundaries of a proposed subdivision. The Minnesota Court of Appeals affirmed the district court’s decision, but reasoned instead that the city’s MRA requirement is unlawful because the subdivision statute does not expressly or impliedly authorize a city to condition subdivision approval on the payment of a “road assessment.” The court of appeals noted instead that the subdivision statute authorizes a city to “condition subdivision approval on the construction or installation of road improvements, or on the receipt ‘of a cash deposit, certified check, irrevocable letter of credit, bond, or other financial security’ sufficient ‘to assure’ the city that road construction or installation will be completed.” Harstad v. City of Woodbury, N.W.2d (Minn. Ct. App. 2017). Note: The League of Minnesota Cities Insurance Trust (LMCIT) represented the city, and the League of Minnesota Cities filed an amicus brief in its support. The Minnesota Supreme Court has agreed to review this decision.

Employee leave ordinance
In May 2016, the City of Minneapolis adopted the Minneapolis Sick and Safe Time Ordinance. This ordinance requires employers with six or more full-time, part-time, or temporary employees to provide employees with one hour of leave for every 30 hours worked. The ordinance defines employees as those “who perform work within the geographic boundaries of the city for at least eighty (80) hours in a year” for an employer. An employer is defined as a private person or entity that employs one or more employees. In October 2016, the Minnesota Chamber of Commerce sued the city, seeking a declaration that the ordinance is invalid for three reasons: (1) the city lacks authority to enact it; (2) the ordinance conflicts with or is impliedly pre-empted by state law; and (3) the ordinance “extends the city’s power beyond its boundaries.” The Chamber also sought a temporary injunction preventing the city from enforcing the ordinance.

The district court granted a partial injunction, prohibiting the city’s enforcement of the ordinance “against any employer resident outside the geographic boundaries of the City of Minneapolis until after the hearing on the merits of the case, or further order of the court.” The Chamber appealed the temporary injunction order, and the city filed a cross appeal. The Minnesota Court of Appeals affirmed the district court’s decision, holding that the district court did not abuse its discretion either by declining to temporarily enjoin the ordinance in its entirety, or by deciding to temporarily enjoin the enforcement of the ordinance against nonresident employers. Minnesota Chamber of Commerce v. City of Minneapolis, No. A17-0131 (Minn. Ct. App. Sept. 18, 2017) (unpublished opinion).

First Amendment
enforcement officers
removed Hensel from
the roomRobin Hensel, who has a history of making political speeches in the City of Little Falls, attended a City Council meeting at which she moved a folding chair from the public gallery up to the front of the open area directly in front of the City Council seating area. At a meeting four days earlier, some members of the public had been allowed to sit in this area, which at that time was set up with tables and chairs. The City Council did not allow any members of the public to sit in this open area at the subsequent meeting. After Hensel refused to comply with repeated requests and warnings to move back to the public gallery, law enforcement officers removed Hensel from the room. The meeting started late because of Hensel’s conduct. Hensel was cited for—and convicted of—disorderly conduct for disturbing a lawful meeting.

The district court sentenced her to one year of unsupervised probation and a $50 fine. Hensel appealed, claiming in part that that the disorderly conduct statute is unconstitutionally overbroad in violation of the First Amendment. The Minnesota Court of Appeals upheld Hensel’s conviction, ruling that the disorderly conduct statute is constitutional. The Minnesota Supreme Court reversed and ruled that the part of the disorderly conduct statute that makes it a crime to disturb a lawful meeting is invalid and unenforceable because it is unconstitutionally overbroad and could apply to a variety of constitutionally protected speech. State v. Hensel, 901 N.W.2d 166 (Minn. 2017). Note: LMCIT represented the city, and the League filed an amicus brief in its support.

Exclusion from town board meetingsCONSTITUTIONAL LAW
Exclusion from town board meetings
Property owners Mary and Roger Lee attended a meeting of Mathews Township, South Dakota, and voiced criticism about a culvert construction project near their property. Afterwards, the Township Board held several additional meetings regarding the project, but many of these meetings were closed to the public, including Mary Lee, who at the time was serving an elected position as Township Board clerk. A state administrative body later reprimanded the Township Board for violating state open meeting laws. The Lees sued the Township Board and three of its supervisors, claiming in part that their exclusion from township meetings violated their First Amendment constitutional rights to freedom of association and to petition government officials. The Lees also claimed that they were retaliated against for exercising their free-speech rights by criticizing the culvert project. The township defendants made a motion for dismissal and summary judgment based on qualified immunity. Qualified immunity protects an official from being sued unless the official has violated a clearly established right.

The federal district court denied summary judgment to the individual defendants on the First Amendment claims. The 8th U.S. Circuit Court of Appeals reversed the district court’s denial of summary judgment on the claim based on the right to petition government officials, reasoning that there is no First Amendment right to participate as a member of the public in a non-public government meeting. But the Court of Appeals affirmed the denial of summary judgment on the retaliation and freedom-of-association claims, reasoning that there was sufficient evidence to raise a fact issue regarding whether the Lees were retaliated against for exercising their free-speech rights and whether Mary Lee’s freedom-to-associate right was violated when she was excluded from township meetings and prevented from performing her duties as clerk. Lee v. Driscoll, 871 F.3d 581 (8th Cir. 2017).

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: snaughto@lmc.org or (651) 281-1232.

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