Thul v. State

• Decision Date: 11 March 2003
• Docket Number: No. C9-02-1365.,C9-02-1365.
• Parties: Steven M. THUL, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Court of Appeals

657 N.W.2d 611

Steven M. THUL, Appellant, v. STATE of Minnesota, Respondent.

No. C9-02-1365.

Court of Appeals of Minnesota.

March 11, 2003.

Steven J. Meshbesher, Meshbesher & Associates, P.A., Minneapolis, for appellant.

Mike Hatch, Attorney General, St. Paul; and Wilbur F. Dorn, Ham Lake City Attorney, Dorn Law Firm, Ltd., Blaine, for respondent.

Considered and decided by KALITOWSKI, Presiding Judge, HUDSON, Judge, and PORITSKY, Judge.¹

OPINION

KALITOWSKI, Judge.

Appellant Steven M. Thul challenges the denial of his petition for postconviction relief for violating City of Ham Lake, Minn., City Code § 9-470 (2000). The postconviction court determined that the ordinance at issue did not violate the Equal Protection Clause of the Fourteenth Amendment and was not constitutionally void for vagueness.

FACTS

In October of 1998, appellant received the first in a series of letters from the City of Ham Lake (Ham Lake), informing appellant that the city had received complaints regarding appellant's operation of a helicopter from his property and requesting that appellant case doing so. On November 10, 1999, the Ham Lake City Attorney advised the mayor and the city council that the current ordinances then in effect would not apply to appellant's helicopter activities and suggested zoning amendments as a possible solution.

The city council discussed appellant's helicopter use at a council meeting on December 6, 1999, and directed the city attorney to draft an ordinance clarifying where helicopters may take off and land in Ham Lake. At the city council meeting on January 3, 2000, the council again discussed helicopter regulations, agreeing that requiring a Federal Aviation Administration (FAA) approval letter as part of the ordinance would be helpful by providing needed expertise in this area. The council then completed the first reading of an ordinance regulating where helicopters may take off and land in Ham Lake.

On January 18, 2000, the council adopted Ordinance 9-470 (ordinance), regarding the operation of helicopters in certain residential areas. The ordinance reads as follows:

9-470 Operation of Regulated Aircraft

It shall be unlawful for any person operating a Regulated Aircraft to take off from or land upon any land in the City of Ham Lake except as provided herein. 9-470.1 R-1; R-M; R-2; ML PUD; PUD; RS-1 and RS-2 Zoning Districts Regulated Aircraft are prohibited from landing or taking off in the R-1, R-2, R-M, ML-PUD, PUD, RS-1, and RS-2 zoning districts * * *.

* * * *

9-470.4 Exemptions

The provisions of Article 9-470 shall not apply to any regulated aircraft which was being used on or before March 1, 2000, if the location from which landings and takeoffs occurred had been approved under a favorable determination letter dated prior to March 1, 2000, issued by the Federal Department of Transportation, Federal Aviation Administration, pursuant to Federal Aviation Regulations Part 157, or any other pertinent regulation, after due notice and review by said agency.

City of Ham Lake, Minn., City Code 9-470.4 (2000).

On February 29, 2000, one day before the exemption deadline, appellant received a favorable determination letter from the FAA. The letter stated the FAA's position that helicopter operations could be conducted safely at appellant's heliport, provided that appellant met certain conditions. The FAA's conditions included, among others, that: (1) a nonobstructing wind indicator be maintained adjacent to the take off/landing area; and (2) warning signs be maintained around the take off/landing area. Also on February 29, 2000, appellant conducted a "test flight" in an effort to be "grandfathered in" according to the exemption. On June 30, 2000, a complaint was filed in Anoka County District Court charging appellant with violating the ordinance.

At the omnibus hearing on March 5, 2001, the parties stipulated that the only FAA condition from the approval letter at issue was whether appellant put up adequate warning signs around the take off/landing area. Appellant argued that the one homemade warning sign that he stuck in a nearby snow bank was sufficient for compliance with the FAA condition. Appellant also argued that federal law preempts the ordinance. The district court denied appellant's motion to dismiss the charges against him, concluding that appellant violated the ordinance due to his failure to comply with the FAA condition regarding warning signs and that the ordinance was not preempted by federal law.

Appellant was convicted for violating the ordinance on February 11, 2002, and received a stayed sentence of 30 days in jail, a stayed fine of $700, and one year of probation. Appellant appealed the conviction, but prior to adjudication of the direct appeal, appellant petitioned this court for a stay to allow for a postconviction hearing. The petition did not raise any substantive challenges to the conviction, but sought to supplement the district court record for purposes of appellate review of appellant's conviction. This court granted appellant's motion to stay the appeal, dismissed the case, and remanded to the district court for postconviction proceedings. Thul v. State, No. C1-02-307 (Minn.App. Apr. 3, 2002) (order).

On July 16, 2002, a postconviction hearing was held. The postconviction court denied appellant's petition for relief, determining that the ordinance was not void for vagueness and that enforcement of the ordinance against appellant did not violate the Equal Protection Clause of the Fourteenth Amendment. This appeal followed.

ISSUES

1. Does the ordinance violate the Equal Protection Clause of the Fourteenth Amendment?

2. Does the ordinance violate the Due Process Clause of the Fourteenth Amendment because it is constitutionally void for vagueness?

3. Does federal law preempt the ordinance?

ANALYSIS

I.

Because this court dismissed appellant's direct appeal pursuant to appellant's request to pursue postconviction relief, we apply the standard of review that we would have normally applied on the direct appeal, even though this is an appeal of a postconviction proceeding. See Santiago v. State, 644 N.W.2d 425, 439 (Minn.2002). Thus, we review appellant's challenges under a de novo standard of review because they involve questions of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984).

1. Discriminatory Enforcement

Appellant argues that the ordinance violates the Equal Protection Clause of the Fourteenth Amendment because it was enforced in a discriminatory manner and does not address a legitimate government purpose. We disagree.

"The constitutionality of an ordinance is a question of law which this court reviews de novo." Hard Times Cafe, Inc. v. City of Minneapolis, 625 N.W.2d 165, 171 (Minn.App.2001) (quotation omitted). The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits intentional, discriminatory enforcement of nondiscriminatory laws. City of Minneapolis v. Buschette, 307 Minn. 60, 64, 240 N.W.2d 500, 502 (1976) (citation omitted). Although criminal prosecutions are presumed to have been undertaken in good faith and in a nondiscriminatory manner, State v. Hyland, 431 N.W.2d 868, 872 (Minn.App. 1988), the supreme court has held that a criminal defendant may raise the defense of discriminatory enforcement of criminal laws by law-enforcement officials on all levels. Buschette, 307 Minn. at 66, 240 N.W.2d at 503.

To prove discriminatory enforcement, appellant must establish, prima facie

(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of a constitutional right.

Hyland, 431 N.W.2d at 872-73 (quotation omitted). Therefore, to prevail in a discriminatory-enforcement claim, appellant must allege facts showing both that he was singled out for enforcement and that his selection was invidious or in bad faith. Id. at 873.

Appellant argues that he was singled out for prosecution because another helicopter pilot in Ham Lake was grandfathered in under the exemption in the ordinance. The record indicates that the Ham Lake resident who was grandfathered in received a favorable determination letter from the FAA on December 9, 1996, and that the individual complied with all the conditions outlined in the FAA letter by December 20, 1999. But here, the omnibus court found that appellants FAA approval letter was replete with conditional language that makes the operation of his heliport contingent on the fulfillment of specific criteria, and concluded that appellant did not comply with the conditions of the FAA letter because he failed to post the required warning signs * * *. The finding of the omnibus court that appellant was not in compliance with the conditions of the FAA approval letter is supported by the record and therefore not clearly erroneous. Thus, we accept the omnibus court's finding that appellant did not meet the requirements of the exemption. See State v. Williams, 535 N.W.2d 277, 286 (Minn.1995) (reviewing court accepts factual findings unless clearly erroneous).

Specifically, appellants FAA approval letter states that signs must be maintained around the take off/landing area. The plain language of the letter indicates that more than one sign was necessary for compliance. Moreover, appellant testified at the omnibus hearing that the take off/landing area could be approached from more than one direction. Appellant was not singled out for prosecution. Rather, he was prosecuted because he did not meet the conditions of the FAA approval letter and consequently, did not meet the requirements for the...