Nygard v. City of Orono
| Decision Date | 05 July 2022 |
| Docket Number | 21-2941 |
| Citation | 39 F.4th 514 |
| Parties | Jay NYGARD; Kendall Nygard, Plaintiffs - Appellants v. CITY OF ORONO, a Minnesota municipality, Defendant - Appellee |
| Court | U.S. Court of Appeals — Eighth Circuit |
Gregory Martin Erickson, Erick G. Kaardal, Mohrman & Kaardal, Minneapolis, MN, Plaintiffs-Appellants.
David S. Kendall, Jared D. Shepherd, Campbell & Knutson, Eagan, MN for Defendant-Appellee.
Before GRUENDER, BENTON, and ERICKSON, Circuit Judges.
Jay and Kendall Nygard sued the City of Orono, Minnesota after they were prosecuted for replacing a driveway without a permit. They challenged the permit ordinance as unconstitutionally vague and raised claims of abuse of process and malicious prosecution. The district court dismissed the complaint. We reverse the district court's dismissal of Kendall Nygard's malicious-prosecution claim, but we otherwise affirm.
In October 2019, Jay Nygard replaced the driveway on a property that he owned with his wife, Kendall Nygard. On October 25, after he removed the driveway and was about to pour concrete for the new one, an inspector from the City of Orono arrived and told Nygard that he needed a permit to replace the driveway. Nygard said he would apply for one, the inspector left, and Nygard continued to work on the driveway.
The next day, Nygard finished the driveway and applied for a permit. The new driveway had a narrower width than the previous one. Nygard's permit application contained an aerial photograph of the property. In the application, Nygard referenced a wind-turbine footing to provide additional information and to address concerns relating to a separate permit application. The city sent him an individualized "Builder Acknowledgement Form" ("BAF"), which listed "permit conditions," including that (1) the driveway should have a lip so that its pavement sits "a minimum of 1 5/8 in. above [the] street pavement where the two intersect"; (2) the driveway had to be "replaced ‘in kind,’ " meaning it had to retain its existing width; (3) the "Wind Turbine footing" was "not permitted"; and (4) the "[h]ardcover calculations"1 had to include a sidewalk from the driveway to the front door. The BAF stated that "[h]ardcover calculations" were "not requested or reviewed due to the replacement of the existing driveway."
Nygard emailed the city planning assistant and expressed concerns about some of the conditions. The city planning assistant replied that the city would issue the permit once Nygard signed the BAF. Nygard crossed out some of the conditions, believing they were not required under the city code or were otherwise inapplicable to his driveway. For example, he crossed off the condition that his driveway sit above the street pavement because the city code did not require driveway lips on streets that lacked curbs and gutters, his street lacked curbs and gutters, and none of his neighbors had driveway lips. He also crossed off the condition about the wind-turbine footing. He initialed the modified form and returned it to the city.
On October 31, the city planning assistant emailed Nygard, explaining that the city would grant a permit only if Nygard accepted all the conditions listed on the original BAF. Her email acknowledged some of Nygard's concerns and stated that the driveway lip requirement was meant to assist with Nygard's "drainage concern." Nygard responded, still objecting to the conditions as inapplicable. After further similar exchanges, Jeremy Barnhart, the Orono Community Development Director, emailed Nygard on December 12 stating that he must agree to the conditions by the end of the day, or else "this matter will be turned over to the prosecuting attorney tomorrow for possible legal action." Nygard still did not acknowledge the conditions, and the next day, Barnhart emailed a city prosecutor, asking him to "file a citation to Jay Nygard and Kendall Nygard ... for violation of [Orono City Code] section 86-66(b)." In the email, he stated that the Nygards "have completed work without a permit and have spent the last 6 weeks arguing with [Barnhart] on requirements of the permit, after they installed the improvement."
Relying on the "reports of ... Jeremy Barnhart," a city police officer drafted a statement of probable cause, alleging that "work had been completed without having first obtained a permit on a home" owned by Jay and Kendall Nygard. The statement asserted that the driveway did not have a lip, "the driveway that had been replaced was a non-conforming width," and "the hardcover calculations exceeded a 24-inch wide sidewalk from the driveway to the front door." According to the Nygards, the police department did not inspect the property or investigate whether these statements were true, and contrary to the probable-cause statement, "the replacement driveway pavement was above the street pavement where they intersect." On December 29, the city charged Jay and Kendall Nygard with violating Orono City Code section 86-66(b), which states that a "zoning permit application for hardcover and/or land alteration shall be submitted by the individual performing the work prior to conducting any land alteration or hardcover installations on a property."
At trial, the state court dismissed the charge against Kendall Nygard, ruling that she could not be guilty of violating section 86-66(b) as someone who merely owned the property and did not perform or order any unauthorized work. Jay Nygard was acquitted because the driveway-lip condition was only a "suggestion" and "there was no basis for a zoning permit application for hardcover replacement" where the city had not requested "hardcover calculations." The city never officially granted or denied Nygard's permit application.
The Nygards sued the city in federal court under 42 U.S.C. § 1983, claiming section 86-66 is void for vagueness. They also raised a First Amendment retaliation claim, an abuse-of-process claim, and a malicious-prosecution claim. The district court dismissed all claims under Federal Rule of Civil Procedure 12(b)(6). The Nygards appeal the district court's rulings on vagueness, the abuse-of-process claim, and the malicious-prosecution claim.
We review de novo the grant of a motion to dismiss under Rule 12(b)(6). Martin v. Iowa , 752 F.3d 725, 727 (8th Cir. 2014). "In analyzing a motion to dismiss, a court must accept the allegations contained in the complaint as true and make all reasonable inferences in favor of the nonmoving party." Id.
First, the Nygards challenge the city ordinance as unconstitutionally vague, asserting a facial challenge and an as-applied challenge. The ordinance provides:
The Nygards raise a facial challenge to the ordinance. However, "[a] vagueness challenge to [a] statute which does not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Orchard , 332 F.3d 1133, 1138 (8th Cir. 2003) (internal quotation marks omitted); see Gallagher v. City of Clayton , 699 F.3d 1013, 1015, 1021-22 (8th Cir. 2012) (). Here, there is no First Amendment interest that would justify deviating from the rule requiring as-applied challenges.
The Nygards rely on a plurality opinion in City of Chicago v. Morales , which authorized facial attacks to criminal laws outside the First Amendment context where "vagueness permeates the text of such a law." 527 U.S. 41, 55, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). But they concede that the Morales plurality "expressed a different approach" from Eighth Circuit precedents. Crucially, some of these Eighth Circuit cases were decided after Morales . See, e.g. , Orchard , 332 F.3d at 1138 ; Gallagher , 699 F.3d at 1021-22. Accordingly, we decline to follow the Morales plurality to the extent that it conflicts with these binding cases. See N.Y. State Rifle & Pistol Ass'n v. Cuomo , 804 F.3d 242, 265 (2d Cir. 2015) ().
We next turn to the Nygards’ as-applied challenge. "To defeat a vagueness challenge, a penal statute must pass a two-part test: The statute must first provide adequate notice of the proscribed conduct, and second, not lend itself to arbitrary enforcement." United States v. Barraza , 576 F.3d 798, 806 (8th Cir. 2009). "One to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Parker v. Levy , 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). An as-applied challenge fails if the person challenging the...
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... ... vagueness challenge to a city ordinance that does not involve ... First Amendment freedoms is an as-applied challenge ... Nygard v. City of Orono, 39 F.4th 514, 519 (8th Cir ... 2022). A plaintiff must first prevail on an as-applied ... challenge before raising a ... ...