This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







In the Matter of the Expulsion of M.A.L.
from Litchfield Independent School District No. 465.



Filed November 26, 2002


Stoneburner, Judge


Minnesota Department of Children, Families

and Learning


Patrick J. Flynn, Jennifer K. Anderson, Knutson, Flynn & Deans, PA, Suite 10, 1155 Centre Pointe Drive, Mendota Heights, MN 55120 (for respondent ISD No. 465)


Robert D. Schaps, 236 North Sibley Avenue, Litchfield, MN 55355 (for M.A.L.)



            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N



Relator challenges the decision of the Commissioner of the Department of Children, Families and Learning affirming his expulsion from Litchfield High School for possession of a firearm on school property.  Relator argues that (1) the school district’s weapons policy is preempted by, and conflicts with, state law; (2) the policy is vague and overbroad; (3) he was denied due process and rights under the Pupil Fair Dismissal Act (PFDA), Minn. Stat. §§ 121A.40-.56 (2000); and (4) the expulsion was arbitrary and capricious.  Because the commissioner’s decision does not reflect an error of law, was not based on unlawful procedures, and was not arbitrary and capricious, we affirm.



            Relator was, at the relevant time, a junior at Litchfield High School.  At the beginning of each year, the school gives a copy of the student handbook to each student and, at a presentation, outlines the school district’s weapons policy.  The policy prohibits possession of a firearm on school grounds and states that expulsion is the consequence for a student’s violation of the policy.

            One morning as relator parked his car in the school parking lot, he realized that his 12-gauge shotgun, used for hunting the previous day, was still in his car.  Relator knew that he was not to have the gun at school, but did not want to take the gun home and be late for class.  The gun would not fit in the trunk, so he covered the gun with a coat and went to class.

            After school, relator’s car would not start.  Relator and a parent came later to remove the car and found that a window was broken and that the shotgun was missing.  The next morning, relator’s mother came to the school and reported to the assistant principal, Michael Sundin, that relator’s shotgun had been stolen from his car while it was parked in the school parking lot.  Mr. Sundin then questioned relator, who confirmed that the shotgun had been taken from his car while it was parked in the school parking lot.  Relator suggested another student had taken the shotgun.

            Litchfield Police Officer Fank responded to the report of a stolen shotgun at the high school.  He went to the school and spoke with Mr. Sundin, relator, relator’s mother, and the student who had taken the shotgun from relator’s car.  Officer Fank retrieved a shotgun from that student’s car.  Relator identified the shotgun as the one taken from his car.  Officer Fank also observed the broken window of relator’s car, which was still in the school parking lot.

            The school mailed a notice of intent to expel to relator and his parents.  Although the notice did not comply exactly with requirements of the PFDA, it stated the time and place of the hearing, listed the school’s witnesses, and informed relator of the right to legal counsel and that assistance was available to obtain counsel.  The notice informed relator that he had the right to call witnesses and that he could not be compelled to testify.  A copy of the PFDA, the school weapons policy, and the relevant portion of the student handbook were attached to the notice. 

Relator and his parents attended the hearing without counsel.  The school district called Mr. Sundin and Officer Fank as witnesses.  Officer Fank testified about his investigation and also stated that he had read his partner’s report about the stolen gun in the daily logs at the police station and that his partner informed him that the gun had been stolen at the high school.  Relator did not testify or call witnesses.  Relator’s father made a statement to the committee, explaining that relator had forgotten to take the gun out of his car before he came to school and did not want to take the gun home because he would be late for class.  The committee asked relator and relator’s father some questions and they answered.  Relator’s mother also spoke at the hearing.  Relator and his parents indicated that they were aware relator’s actions were “wrong.”

Based on the hearing committee’s recommendation, the school board expelled relator.  Relator, represented by counsel, appealed to the Commissioner of the Department of Children, Families and Learning, who upheld the expulsion.  This appeal by writ of certiorari followed.


This court may reverse an administrative agency’s decision only if the decision violates a constitutional provision, is outside the statutory authority or jurisdiction of the agency, is based on unlawful procedures, reflects an error of law, is unsupported by substantial evidence, or is arbitrary and capricious.  Minn. Stat. § 14.69 (2000).

I.          Preemption and conflict with state law

            Relator asserts that the school district’s policy is unenforceable because it is preempted by state law and directly conflicts with Minn. Stat. § 609.66, subd. 1d (d)(3) (2000).  Relator did not raise these issues in his appeal to the commissioner.  Generally, failure to raise an issue in an administrative proceeding precludes review on appeal.  State ex. rel. Quiring v. Bd. of Educ. of Indep. Sch. Dist. No. 173, 623 N.W.2d 634, 638 (Minn. App. 2001).  But the appellate court may address any issue as justice requires.  Minn. R. Civ. App. P. 103.04.  In this case, we choose to address the claims to explain that they are without merit.

1.         Preemption

            Relator argues that Minn. Stat. § 609.66, subd. 1d, making possession of a dangerous weapon on school property a felony, preempts the school district’s weapons policy because the statute comprehensively regulates possession and use of dangerous weapons on school property and leaves no room for further regulation. 

On appeal, when there are no disputed facts, the issue of whether a state statute renders local law unenforceable is a question of law and is reviewed de novo. Nordmarken v. City of Richfield, 641 N.W.2d 343, 346 (Minn. App. 2002).

Preemption occurs when a state law so fully occupies a certain legislative arena so as to leave no room for local regulation.  Mangold Midwest Co. v. Richfield, 274 Minn. 347, 356, 143 N.W.2d 813, 819 (1966).  Mangold sets out a four-part test for determining whether state law preempts local regulation.  Id. at 358, 143 N.W.2d at 820.  The four-part test consists of the following questions:

            1.         What is the subject matter that is to be regulated?  In this case, the subject matter to be regulated is possession of a dangerous weapon on school property.

            2.         Has the subject matter been so fully covered by state law as to have become solely a matter of state concern?  In this case, the state statute defines the criminal penalties for possession of a dangerous weapon on school property but does not prescribe or preclude school disciplinary measures that may be imposed against students for such possession.  The subject matter is not so fully covered that school disciplinary action has become a matter solely for state concern.

            3.         Has the legislature, in partially regulating the subject matter, indicated that it is a matter solely of state concern?  The legislature has specifically recognized the ability of schools and school districts to make regulations regarding the possession of weapons on school property, while clearly indicating that other local regulation in this subject matter is preempted.  See Minn. Stat. § 471.633 (2000) (expressly preempting local regulation regarding possession of weapons at school), Minn. Stat. § 471.634 (2000) (removing schools and school districts from state preemption.)  Relator argues that because Minn. Stat. § 609.66 was enacted after Minn. Stat. § 471.634, the later statute repeals the former.  We disagree.  Nothing in Minn. Stat. § 609.66 expressly or impliedly repeals Minn. Stat. § 471.634.  The fact that the legislature wanted to make possession of a weapon at schools a crime does not imply that the legislature also desired to eliminate the school district’s ability to further regulate possession of weapons on school property.

            4.         Is the subject matter itself of such a nature that local regulation would have unreasonably adverse effects upon the general populace of the state?  The existence of Minn. Stat. § 471.634 demonstrates that regulation by schools and school districts does not have adverse effects on the general population. 

The school district policy is clearly not preempted by Minn. Stat. § 609.66, subd. 1d.  Id.

            2.         Conflict of law

Minn. Stat. § 609.66, subd. 1d (d)(3), exempts from criminal liability persons who keep a firearm in a motor vehicle on school property if the firearm is stored in accordance with applicable firearm-transportation statutes.  Relator argues that the school’s policy to expel students for conduct that is legal under state law directly conflicts with state law and is invalid. 

            As a general rule, conflicts which would render an ordinance invalid exist only when both the ordinance and the statute contain express or implied terms that are irreconcilable with each other.  More specifically, it has been said that * * * a conflict exists where the ordinance forbids what the statute expressly permits.


Mangold, 274 Minn. at 352, 143 N.W.2d at 816 (emphasis in original).  The conduct permitted by the statute, however, is the right to carry a properly stored gun in a motor vehicle even on school property without being subject to criminal punishment.  The statute does not permit a student to avoid the school disciplinary process and the school policy does not permit the school to initiate criminal proceedings.  There is no conflict between the statute and the school policy.

II.        Due process and PFDA procedural requirements


            Relator argues that his due-process rights and the PFDA were violated because the school district failed to advise him of his right to have a representative of his choosing at the hearing, deprived him of the opportunity to confront Officer Fank’s partner by not listing him as a witness, and compelled him to testify by asking questions.

1.         Notice

            The Pupil Fair Dismissal Act requires that students receive written notice of the intent to expel a student. Minn. Stat. §§ 121A.40-.56.  This notice must, among other things:   

(d)              be accompanied by a copy of sections 121A.40 to 121A.56;

            (f)        inform the pupil and parent or guardian of the right to:

            (1)       have a representative of the pupil’s own choosing, including legal counsel, at the hearing.  The district shall advise the pupil’s parent or guardian that free or low-cost legal assistance may be available and that a legal assistance resource list is available from the department of children, families and learning.


Minn. Stat. § 121A.47, subd. 2.  The PFDA also provides

[a] violation of the technical provisions of the Pupil Fair Dismissal Act, made in good faith, is not a defense to a disciplinary procedure under the act unless the pupil can demonstrate actual prejudice as a result of the violation.


Minn. Stat. § 121A.48.

            The notice in this case informed relator:

* * * You have the right to have legal counsel at the hearing and to examine [M.A.L.’s] records prior to the hearing and to present evidence and to confront and cross-examine witnesses.  If you feel you are financially unable to retain counsel, please contact me to discuss available legal assistance.


* * * *


* * * The pupil, or parent, or representative shall have the right to present evidence and testimony * * * *


            Relator claims that because the school district’s written notice did not inform him of the resource list available from CFL and his right to have “other” representation, his notice was inadequate.  The commissioner found that the relator had notice of his rights under the PFDA because the statute was attached to the notice.  The commissioner also found that relator failed to show any actual prejudice caused by the language in the notice.  Because the PFDA requires both inclusion of the description of rights in the notice and attachment of a copy of the statute to the notice, the notice in this case is defective.  But the violations are technical.  There is no evidence that the mistakes made were not made in good faith, and the record supports the commissioner’s finding that relator failed to demonstrate that he suffered any prejudice as a result. 

2.         Witnesses

            The PFDA provides that the notice shall contain a complete list of the witnesses and a description of their testimony, and also provides that a student has the right to compel the testimony of others.  Minn. Stat. § 121A.47.

            Relator argues that, when Officer Fank testified about what he learned from his partner’s report in the police log and from his partner directly, relator’s rights were violated because he was unable to confront Officer Fank’s partner.  Relator also complains that Officer Fank’s and Assistant Principal Sundin’s testimony about conversations they had with relator and his mother are hearsay and that no direct evidence supports the conclusion that he had a gun on school property.

            Relator relies on In re Expulsion of E.J.W., 632 N.W.2d 775 (Minn. App. 2001).  The situation in E.J.W., however, is distinguishable.  E.J.W. was expelled for alleged involvement in a bomb threat.  Id. at 777.  Police officers interviewed various student witnesses about the bomb threat, then testified as to what the student witnesses had asserted during interviews.  Id. at 778.  No student witnesses were called nor were they present to be cross-examined.  Id.  The court found that E.J.W.’s rights had been violated because there was no direct testimony presented, the testimony presented was uncorroborated, and E.J.W. had no opportunity to confront those making statements against him.  Id. at 781.

Due-process rights are limited in student disciplinary matters, requiring that a student need only have the opportunity to present his side of the story.  Goss v. Lopez,419 U.S. 564, 581, 95 S. Ct. 729, 740 (1975).  In an administrative proceeding, the rules of evidence do not apply:

[an agency] may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonable prudent persons in the conduct of their affairs.


Minn. Stat. § 14.60, subd. 1 (2000). 

In this case, the witnesses testified about admissions made by relator and reliable hearsay statements made by relator’s mother.  Although Officer Fank testified about a conversation with his partner, the substance of Officer Fank’s testimony was derived from his own investigation.  The record supports the commissioner’s conclusion that relator’s right to confront witnesses was not violated and that sufficient competent evidence supports the uncontested determination that relator had a shotgun in his car in the school parking lot.

3.         Compelled testimony


            Relator further asserts that the hearing committee violated his rights when it questioned him during the hearing without advising him that he could not be compelled to testify.  The constitutional right against self-incrimination is applicable only to criminal cases.  U.S. Const. amend. V.  Relator’s claim, therefore, is based on a violation of the PFDA, which provides that the school may not compel a student who is facing expulsion to testify.  The commissioner found that relator’s testimony was not compelled when he and his parents voluntarily answered the committee’s questions after having received the notice clearly stating that relator could not be compelled to testify.  Although we do not condone the process used, the record supports the commissioner’s determination that relator was not compelled to testify.

            Further, relator cannot claim actual prejudice caused by the questioning because, even without his answers to questions at the hearing, the evidence presented by the school’s witnesses established that relator possessed a weapon on school grounds.

III.       Overbreadth and vagueness/notice

1.         Overbreadth

            Generally, to claim judicial relief for overbreadth, a party must suffer an actual injury (injury in fact).  Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130 (1992).  But in cases when a statute is impermissibly overbroad, injury in fact is not required.  Instead, it is enough that a statute adversely affecting a party may be unconstitutional as applied to others.  Broadrick v. Oklahoma, 413 U.S. 601, 610, 93      S.Ct. 2908, 2915 (1973).  

            In this case, relator does not claim that Litchfield school district’s policy impermissibly infringes on anyone’s constitutional rights.  He claims that the school district policy is overbroad because the school district lacks the power to expel non-students for violating the policy.  Relator himself could not suffer actual injury because of any overbreadth, as students and their potential punishment are explicitly mentioned in the policy. It is unquestionable that the school may discipline students.  Relator does not state a substantive overbreadth claim, and we find the claim asserted without merit.  The policy is not “overbroad.”[1]

2.         Vagueness/notice

            Relator argues the district policy is impermissibly vague, fails to provide students with adequate notice, and contains terms that are fatally unclear.  We need not address these claims, however, because the record clearly establishes relator’s knowledge that having the shotgun in his car in the school parking lot was a violation of the school’s weapons policy.  In this case, relator was provided enough information to understand the policy and its consequences.

IV.       Arbitrary and capricious act


            Finally, relator argues that, considering the totality of the circumstances, his expulsion was arbitrary and capricious. 

[T]he agency’s conclusions are not arbitrary and capricious so long as a rational connection between the facts found and the choice made has been articulated.


In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001) (quotation omitted).  Minn. Stat. §§ 121A.44 and 121A.45 provide that a student may be expelled for willfully violating school policy and possession of a firearm on school grounds.  The school district policy prohibits weapons at school.  The policy and the student handbook give notice that expulsion is the penalty for a student’s violation of the policy.  The record supports the determination that relator possessed a shotgun on school grounds.  There is a rational connection between the evidence presented and the choice to expel relator.  The decision to expel was neither arbitrary nor capricious even though the school had an option to impose a lesser penalty.



[1] Furthermore, the policy is enforceable because the school district can exclude people from its property even if they are not students and can report criminal actions to the authorities.