Jay Nygard v. City of Orono

Citation: Not availableDocket: 21-2941

Court: Court of Appeals for the Eighth Circuit; July 5, 2022; Federal Appellate Court

Original Court Document: View Document

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Jay and Kendall Nygard filed a lawsuit against the City of Orono, Minnesota, after being prosecuted for replacing a driveway without a permit. They claimed the city’s permit ordinance was unconstitutionally vague and alleged abuse of process and malicious prosecution. The district court dismissed their complaint, but the Court of Appeals reversed the dismissal of Kendall Nygard's malicious prosecution claim while affirming the rest of the dismissal.

In October 2019, Jay Nygard replaced the driveway on their property. After removing the old driveway, an inspector informed him that a permit was necessary. Nygard agreed to apply for a permit, completed the driveway, and submitted a permit application that included an aerial photograph. The city provided a Builder Acknowledgement Form (BAF) outlining specific conditions for the permit, including that the driveway maintain its existing width and that it had to be constructed with a specific elevation above the street pavement. 

Nygard expressed concerns about the conditions, particularly regarding the elevation requirement, arguing it was unnecessary due to the absence of curbs and gutters on his street. He crossed out several conditions he deemed inapplicable and returned the modified BAF. However, the city insisted on adherence to the original conditions. After several email exchanges, the Community Development Director warned Nygard that failure to comply would result in referral to legal authorities for prosecution. Subsequently, the director contacted a city prosecutor to file a citation against the Nygards for violating city code by completing the work without the required permit.

A city police officer prepared a statement of probable cause alleging that Jay and Kendall Nygard completed driveway work without a permit, claiming issues such as the absence of a driveway lip, non-conforming width, and excessive hardcover calculations. The Nygards contended that the police did not inspect or verify these claims and that the driveway met street pavement standards. On December 29, the city charged them with violating Orono City Code section 86-66(b), which mandates a zoning permit for any land alteration or hardcover installations. At trial, Kendall was dismissed from the charge because she did not perform or order the work, while Jay was acquitted as the driveway lip condition was deemed merely a suggestion and there was no basis for a permit application due to the city’s lack of request for hardcover calculations. The city did not formally act on the Nygards' permit application. Subsequently, the Nygards filed a federal lawsuit under 42 U.S.C. § 1983, claiming the ordinance was void for vagueness and raising allegations of First Amendment retaliation, abuse of process, and malicious prosecution. The district court dismissed all claims under Rule 12(b)(6), prompting the Nygards to appeal. They challenged the city ordinance as unconstitutionally vague, making both facial and as-applied challenges, citing the ordinance's requirements for permits related to construction and land alterations. The court must accept the Nygards' allegations as true and draw reasonable inferences in their favor when reviewing a motion to dismiss. The Nygards referenced a plurality opinion from City of Chicago v. Morales to support their vagueness challenge, although they acknowledged differing interpretations in Eighth Circuit precedents.

The court declines to follow the Morales plurality due to conflicts with established legal precedents. It addresses the Nygards’ as-applied vagueness challenge against a penal statute, which must demonstrate two criteria: adequate notice of prohibited conduct and resistance to arbitrary enforcement. The court notes that a statute cannot be deemed vague if it clearly applies to the individual's conduct. The Nygards argue that terms in the ordinance, such as “hardcover” and related actions, are vague and do not encompass driveway replacements. However, the ordinance specifies that driveways are included in the definition of “hardcover,” and Nygard's concrete work on the driveway qualifies as a “hardcover installation.” A city inspector informed Nygard of the permit requirement on the day of the work, providing him fair warning of the ordinance’s applicability. The court concludes that the ordinance is sufficiently clear, dismissing the Nygards’ vagueness challenge.

Additionally, the Nygards claim that the city abused the criminal process to enforce inappropriate permit conditions, specifically regarding the removal of the wind-turbine footing. An abuse of process involves the misuse of legal proceedings for purposes outside their intended scope, requiring evidence of ulterior motives. The district court found that the Nygards’ appeal strayed from their original complaint, which focused on the misuse of the BAF process rather than criminal process. The court dismissed the claim, indicating that abuse-of-process claims do not apply to permitting issues. Even if the Nygards’ complaint were construed as a challenge to criminal process usage, the evidence suggests that the city acted appropriately by referring the case to prosecution due to the Nygards’ unpermitted work. Their argument regarding the city's failure to officially respond to the permit application is undermined by the fact that they initiated the work without first obtaining the necessary permit. The city's actions, which included attempts to assist the Nygards post-installation, do not support a plausible claim for relief.

To establish a malicious-prosecution claim in Minnesota, a plaintiff must demonstrate: (1) the lawsuit was initiated without probable cause; (2) it was pursued with malicious intent; and (3) it concluded in favor of the defendant. Probable cause refers to a reasonable basis for suspicion that the defendant is guilty of the alleged offense. A judicial finding of probable cause creates a presumption that such cause existed, which can only be rebutted by clear evidence to the contrary, such as a lack of reasonable grounds or reliance on false statements.

In the case of Jay Nygard, the district court found probable cause for his prosecution based on a state court judge's endorsement of the charging officer's probable-cause statement and evidence that he installed a driveway without a permit, violating Orono City Code section 86-66. The Nygards contended that the prosecution was based on falsehoods from Barnhart and lacked sufficient investigation. However, the court determined that the city had enough evidence from Nygard's communications to justify the suspicion of wrongdoing.

Regarding Kendall Nygard, the issue of probable cause is less clear. She was charged under the same code section as her husband, but the complaint suggests that she was not involved in the driveway work and lived in Florida. The city's communications were primarily with Jay Nygard, who identified himself as responsible for the work. Despite this, the district court upheld the finding of probable cause for her prosecution based on the judge's probable-cause determination and because Orono City Code section 86-36 requires property owners to secure permits for violations, regardless of their involvement in the work itself.

Plaintiffs have adequately claimed the absence of probable cause for the prosecution of Kendall Nygard, countering the city's initial assertion. An email from Barnhart to the prosecuting attorney requested a citation for both Jay and Kendall Nygard for work done without a permit. Although a judge found probable cause, this determination was not fully supported by a complete set of facts. The allegations assert that Kendall Nygard did not participate in the driveway installation; rather, Jay Nygard was responsible. City officials, including Barnhart, were aware of this and did not investigate Kendall's involvement. The prosecution's reliance on section 86-36, which allows for the prosecution of property owners for failing to address permit violations, does not undermine Kendall Nygard's malicious prosecution claim, as she was charged under section 86-66(b). Malicious prosecution requires a lack of probable cause for the charged offense, not for unprosecuted offenses. The case involves charges related to failing to obtain a permit for the installation, distinct from any prior violations. Consequently, the district court's dismissal of Kendall Nygard’s malicious prosecution claim was erroneous, leading to a reversal of that dismissal while affirming the judgment in favor of the City of Orono.