City of St. Paul v. Whidby

• Decision Date: 29 December 1972
• Docket Number: No. 43024,43024
• Citation: City of St. Paul v. Whidby, 295 Minn. 129, 203 N.W.2d 823 (Minn. 1972)
• Parties: CITY OF ST. PAUL, Respondent, v. Forest WHIDBY, Appellant.
• Court: Minnesota Supreme Court

Page 823

203 N.W.2d 823

295 Minn. 129

CITY OF ST. PAUL, Respondent, v. Forest WHIDBY, Appellant.

No. 43024.

Supreme Court of Minnesota.

Dec. 29, 1972.

Syllabus by the Court

1. In proceedings for violation of a municipal ordinance which may result in the penalty of incarceration: (a) A defendant is presumed innocent until the contrary is proved and, in case of a reasonable doubt, is entitled to acquittal; (b) the rules of criminal procedure apply rather than the rules of civil procedure; and (c) Minn.St. 546.17, providing for a five-sixths verdict after 6 hours' deliberation in civil cases, shall have no application.

2. The ordinance, St. Paul Legislative Code, § 469.01, prohibiting the keeping or visiting of a disorderly house, is not unconstitutionally vague or overbroad when applied to the facts in this case.

Paul H. Ray, St. Paul, for appellant.

Daniel A. Klas, City Atty., Pierre N. Regnier, Asst. City Atty., St. Paul, for respondent.

Michael F. Fetsch, Legal Assistance of Ramsey County, Inc., Phyllis Gene Jones, Gen. Counsel, Esther M. Tomljanovich, Legal Consultant, Minnesota Urban County Attorney's Board, St. Paul, C. Paul Jones, Public Defender, R. Michael Wetherbee, Minnesota Civil Liberties Union, Minneapolis, amicus curiae.

Reconsidered on the record en banc.

Heard before MURPHY, PETERSON, KELLY, and NELSON, JJ.

KELLY, Justice.

Defendant appeals from a conviction for violating St. Paul City Legislative Code, § 469.01, which prohibits the visiting of a disorderly house. He contends that the district court erred in (1) refusing to instruct the jury that defendant is presumed innocent and must be proved guilty beyond a reasonable doubt; (2) in instructing the jury that after 6 hours of deliberation it would be permitted to return a verdict upon an agreement by five-sixths of its number; (3) by permitting a police officer who had secured a search warrant to testify as to what he saw when he entered the premises in which defendant was arrested; and (4) in denying defendant's motion to dismiss the case on the grounds that the ordinance was unconstitutionally vague and overbroad. We agree with defendant as to issue (1) and reverse as to it. While we find no reversible error in this case as to issue (2), because the jury's verdict was unanimous and defendant did not have the jury polled, we direct that the five-sixths verdict instruction not be given on the new trial. On issues (3) and (4) we find no error in the trial court's ruling.

Several plainclothesmen from the vice squad of the city of St. Paul visited the residence at 144 Mackubin Street shortly after 1 a.m. on December 2, 1970. There they observed what appeared to be an 'after-hours' bar. One of the officers ordered a drink from the bartender and gave the bartender a $10 bill. The bartender gave the bill to defendant who was sitting near the bar, and defendant produced change for the bill. Shortly thereafter, police with a search warrant arrived at the residence.

Defendant was charged with the ordinance violation and pled guilty in municipal court. He was sentenced to 30 days in the workhouse. Thereupon, defendant appealed to the district court for a trial by jury. Minn.St. 488A.27, subd. 6. After the jury had been selected, the following conversation took place among the court and the two attorneys:

'MR. McLAUGHLIN: Is there any objection to mentioning in the opening statement, under the rules of civil procedure the defendant is not entitled to the presumption of innocence?

'THE COURT: I suppose you can. That has been brought up quite frequently during your voir dire examination. Again, I will so instruct, he is not clothed with that presumption. We start off even.

'MR. RAY: The defendant will take exception to that law, that the defendant is not clothed with innocence--is not presumed to be innocent--and that this right is given by the Constitution, even though this is an ordinance violation, it's still criminal in nature in that the defendant may suffer imprisonment.

'THE COURT: I'm inclined to believe that you would have a lot of support for the position you take. I'm satisfied that someday we may have a different result here in these constitutional rights. You may see the retaining of the rule that proof may not be--reasonable doubt may not be necessary--only preponderance of the evidence, but I think we've got a lot going on it for you on this presumption of (innocence). It's still a crime. It's still a matter that can be very serious--90 days in prison. I'm not sure that that will always be our law. But based on what we have here today, we will tell them we don't have the presumption, so when they come into court, they are still even, but the burden is still on the City to prove by a preponderance that he committed the act as charged.'

After the evidence was in, the trial court instructed the jury as follows:

'* * * Whenever I say a claim must be proved, I mean that all of the evidence, by whomever produced, must lead you to believe it is more likely that the claim is true than not true. So if the evidence does not lead you to believe it is more likely that the claim is true than not true, then that claim has not been proved. Conversely, or the other way around, if the evidence does lead you to believe it is more likely that the claim is true than not true, then that claim has been proved. Proof of a claim does not depend upon the volume of testimony offered or the number of witnesses called, because any believable evidence may be a sufficient basis to prove a claim. What the law requires is that the person with the burden of proof, or the side--in this instance, the City--in proving the claim, must produce evidence which will outweigh--which will preponderate--to a fair degree as compared to the evidence on the other side, or in opposition thereto. It must tip the scales, so to speak, in favor of the person making the claim in order that the burden has been sustained. What it boils down to is the convincing effect of the evidence upon your minds as triers of the facts.'

The jury found defendant guilty, and he was sentenced to 30 days. The maximum sentence for the offense is a fine of $100 or imprisonment for 90 days.

The trial court instructed the jury on the burden of proof appropriate for a civil case. Minn.St. 611.02 provides in part as follows:

'Every defendant in a criminal action is presumed innocent until the contrary is proved and, in case of a reasonable doubt, is entitled to acquittal.'

The basic question before us is whether a judicial proceeding which may result in the accused's incarceration for 90 days is civil or whether it is criminal. A long line of Minnesota decisions has held that a case involving the violation of a municipal ordinance is governed by civil procedure although such ordinances are criminal enactments which are historically sui generis. The defendant is not presumed innocent and may be found guilty by a mere preponderance of the evidence. ¹ The policy considerations of the rule are explained best in State v. Ketterer, 248 Minn. 173, 177, 79 N.W.2d 136, 139 (1956):

'Although prosecutions for violations of municipal ordinances are intrinsically criminal in nature, within the literal meaning of the term 'criminal prosecutions' as used in Minn.Const. art. 1, § 6, it does not follow that the constitutional guarantee applies to them. They fall outside the constitution, not because they are noncriminal, but purely for historical reasons. It is elementary that the constitution preserves the right to jury trial only to the extent that such right existed by the laws of our territory when the constitution was adopted, and such right was thereby neither extended nor limited.

'Prior to the adoption of the constitution, the right of jury trial existed under territorial law only with respect to those criminal prosecutions relating to acts which by statute had been made offenses against the peace and dignity of the state As a whole and not to those offenses involving nothing more than a violation of municipal police regulations or ordinances. These so-called petty offenses had always theretofore been punishable by magisterial officers, in a summary way, without a jury, both in England and in the Colonies. In fact, prior to the adoption of the constitution, despite the intrinsically criminal character of certain ordinance violations, proceedings for their enforcement were treated as civil actions; the majority of states have regarded them as civil actions for the recovery of a debt. Clearly, ordinance violations at common law, and prior to the adoption of our Federal and state constitutions, were placed in an entirely different category from violations enacted for the protection of the realm as a whole. Instead of trying to distinguish such ordinances on the basis that they are civil, non-criminal, or quasi-criminal, it should be frankly recognized that they are criminal enactments which are historically sui generis.

'Our decisions likewise demonstrate that prosecution proceedings under these punitive ordinances are sui generis. On no other basis can we explain the curious conclusions reached in the various cases. We have held that a conviction for a violation of an ordinance does not bar a prosecution for the same act under a state statute although the municipality is but an agent through which the state acts. However, an appeal by a municipality from an acquittal for an ordinance violation is barred on the ground that the accused may not be placed twice in jeopardy for the same offense. Further, unlike an offense under a state statute, proof of guilt for violating an ordinance need not be beyond reasonable doubt. In many other respects our opinions illustrate that prosecutions for ordinance violations fall outside the accepted and normal patterns governing criminal prosecutions under state statutes. Other jurisdictions have recognized the abnormality of these prosecutions by characterizing them...