This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Bob Fletcher, Ramsey County Sheriff,
Affirmed; motion granted
Ramsey County District Court
File No. C4-03-11176
David M. Gross, 8323 West Franklin Avenue, St. Louis Park, MN 55426-1914 (for appellant)
Susan Gaertner, Ramsey County Attorney, Angela L. Potts, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Toussaint, Chief Judge; Schumacher, Judge; and Minge, Judge.
Appellant J.M.P. challenges the district court’s decision upholding the sheriff’s denial of J.M.P.’s application for a permit to carry a firearm. Because appellant’s right to procedural due process was not violated, because the trial court correctly reviewed evidence under a de novo standard, and because the district court did not abuse its discretion by holding that there was clear and convincing evidence that there was a substantial likelihood that J.M.P. is a danger to society if authorized to carry a firearm under a permit, we affirm.
On June 2, 2003, appellant submitted an application to the Ramsey County sheriff for a permit to carry a firearm. On June 26, 2003, the sheriff’s office sent appellant a letter denying the permit on the ground that he posed a substantial likelihood of danger to himself or the public. The letter stated that the decision was based on an investigation “including but not limited to a University of Minnesota Police Terroristic Threats case dated April 15, 1993.” Without submitting any additional information to the sheriff’s office regarding the denial, appellant requested the Ramsey County District Court to review the denial pursuant to Minn. Stat. § 624.714, subd. 12 (Supp. 2003).
The district court conducted a hearing. At the hearing, respondent presented an affidavit by Sgt. Ryan O’Neill that included four exhibits related to the denial of the permit including: (1) the investigation of events related to the 1993 University of Minnesota terroristic threats case; (2) a threat made to the Maplewood mayor to kill people in 2000; (3) an allegation made by an acquaintance accusing appellant of pickpocketing; and (4) a temporary restraining order against appellant issued in 2001 based on threatening and harassing e-mails. The second incident turned out to involve appellant’s father and not appellant.
The evidence presented relating to the 1993 case includes extensive investigation of appellant and appellant’s accuser, as well as an order from a 1995 civil case brought by the accuser against appellant. The record shows that appellant was subject to a restraining order, which he agreed to, on March 12, 1993. Appellant was accused of sending harassing and life-threatening e-mails. A police report shows that on April 15, the appellant was confronted by a police officer while apparently sending e-mails to his accuser, in violation of the restraining order. Appellant struggled with the officer and attempted to flee. The officer observed the appellant had a computer file open titled “Kill Cori” (his accuser’s first name). An investigation into the relationship between appellant and his accuser showed that his accuser’s credibility was suspect, partially because she often contacted appellant despite the restraining order. Both the Hennepin County and Minneapolis city attorneys declined to prosecute appellant. In 1995, a Ramsey County district court dismissed a civil suit brought by his accuser against appellant and prohibited further conciliation court actions based on activities that occurred before the dismissal.
The evidence of the 1997 pickpocket investigation consists of police reports from June 15, 1997. According to the reports, a man who was acquainted with appellant told police that appellant stole his wallet while appellant was rollerblading and provided an accurate description of appellant, which included the fact that appellant wore a bulletproof vest. Appellant was stopped in his car and arrested, but the wallet was not recovered and he was never prosecuted.
The evidence from the 2001 harassment case consists of the application for the temporary restraining order, a temporary restraining order, a police report, and a restraining order. An ex parte temporary restraining order was issued against appellant based on accusations of harassing communications. Before the hearing on continuing the order, the accuser filed a police report stating appellant was violating the restraining order. On November 27, 2001, the district court found that appellant had harassed his ex-girlfriend through e-mail and the telephone, and extended the restraining order until November 27, 2003. (The restraining order was not in the record at the time of trial; respondent sought to add it to the record in a posttrial motion filed on August 18, 2004.)
At the end of the hearing, the district court requested briefs from both parties and appellant was allowed to file a reply brief to respondent’s brief. On March 16, 2004, the district court upheld the denial of appellant’s application for a permit to carry a firearm. The district court’s findings of fact included determinations that appellant was the subject of a restraining order in March 1993, following an investigation in which appellant was accused of egging an acquaintance’s car; that in April 1993 appellant was investigated for violating the March restraining order by making terroristic threats via e-mail; that appellant was arrested for violating the March restraining order and engaged in a struggle with the police during this arrest; that a documented investigation showed that appellant was identified as a pickpocket; and that appellant was the subject of a temporary harassment restraining order in 2001 from the use of e-mail and voice mail to harass and threaten a female. The district court’s conclusions of law included a determination that as a part of de novo review the district court could examine any relevant evidence, not just that itemized in the notice of rejection, that the evidence presented by the respondent was an appropriate basis for denial of a permit, and that respondent showed by clear and convincing evidence that the incidents occurred, that they were investigated and documented, that appellant was involved in each incident, and that there was a substantial likelihood that respondent would be a danger to the public if allowed to carry a firearm. Appellant seeks review of this decision.
On July 14, 2004, a Minnesota district court found that the Minnesota Citizens’ Personal Protection Act of 2003 (MCPPA), known as Senate File 842 (2003), is unconstitutional because it violates the Minnesota Constitution’s prohibition of multiple subject matters in a single bill. Unity Church of St. Paul v. State, No. C9-03-9570, 2004 WL 1630505, at *8 (Minn. Dist. Ct. July 14, 2004). This decision has been appealed.
Given the ruling of the Ramsey County district court in the Unity Church of St. Paul case, the first issue is whether this case presents a justiciable controversy. A controversy must be justiciable for a court to have jurisdiction over a case. Edina Cmty. Lutheran Church v. State, 673 N.W.2d 517, 521 (Minn. App. 2004). Justiciability requires that a case be “capable of specific rather than advisory relief by a decree or judgment.” Id. This court will dismiss an appeal as moot if, while an appeal is pending, “an event occurs making a decision on the merits unnecessary or an award of effective relief impossible.” In re Inspection of Minn. Auto Specialties, Inc.,346 N.W.2d 657, 658 (Minn. 1984). Cases in which courts have found that an award of relief is impossible often involve issues that are conclusively determined in a separate case or by an agreement. See, e.g., Armored Carrier Corp. v. Sweeney Detective Bureau, Inc., 288 Minn. 7, 10, 178 N.W.2d 903, 905 (1970); N. States Power Co. v. City of Sunfish Lake, 659 N.W.2d 271, 275 (Minn. App. 2003). Courts have refused to consider cases where issues only exist in the realm of future possibility, such as a suit to find a law invalid even though it had not been applied to the plaintiff. See State v. Colsch, 284 N.W.2d 839, 842 (Minn. 1979) (finding non-justiciable the issue of whether a warrantless search would be unconstitutional where no searches have yet occurred).
The decision of the district court in Unity Church of St. Paul enjoins the enforcement of the MCPPA, which contains the guidelines for issuing gun permits that appellant applied under. 2004 WL 1630505, * at 5-8. However, since the decision in Unity Church of St. Paul has been appealed, appellant still has an interest in the case before us. If the district court’s order holding the MCPPA unconstitutional is overturned on appeal and if we reverse in this case, appellant would receive a permit. This distinguishes the present case from those cases where the parties’ possibility of meaningful relief no longer exists or a hypothetical question has been posed about the possible application of a law on a party. In this case, the law in question has been ruled unconstitutional on other grounds. It would be unjust to require appellant to reapply for a permit and repeat the appeals process if the holding of the court in Unity Church of St. Paul is overturned.
Appellant objects to the manner in which respondent handled his permit application prior to any district court review. The alleged errors include the failure of the sheriff’s office to adequately investigate the basis on which it denied the permit and failure to clearly state the basis for the denial. We agree with appellant that the sheriff’s office has certain duties in considering the application, making a decision, considering additional documentation from the applicant, and reconsidering the decision. See Minn. Stat. § 624.714, subd. 6(b) (Supp. 2003). The law allows an applicant to submit additional information following a denial of the application. Id. Appellant did not submit such information to the sheriff’s office. Thus, appellant did not avail himself of an opportunity to clarify the facts underlying the denial of his permit. Generally, we decline to consider on appeal matters unless administrative avenues of relief are first exhausted. See Stephens v. Bd. of Regents of Univ. of Minn., 614 N.W.2d 764, 773 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000). Because of failure to exhaust such remedies, we do not further consider appellant’s challenges to the manner in which the sheriff’s office handled his application.
The next issue is whether appellant was denied due process in the conduct of the district court hearing because appellant was not provided notice of all of the specific incidents on which respondent based the denial of the permit or which the respondent would submit to the district court for its de novo review until he received Sgt. O’Neill’s affidavit on the day of trial.
This court reviews de novo a challenge to the constitutional adequacy of notice. Resolution Revoking License No. 000337 of W. Side Pawn, 587 N.W.2d 521, 522 (Minn. App. 1998). “Due process generally requires reasonable notice and a hearing.” Id. Procedural due process is flexible and the protections required are those demanded by the particular situation. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972). The requirement of due process that must be afforded is influenced by the extent to which a party may suffer a grievous loss. Goldberg v. Kelly, 397 U.S. 254, 262-63, 90 S. Ct. 1011, 1017-18 (1970). Adequate notice for due process must apprise a party that an action is pending and inform the party of what interests are at stake. Schulte v. Transp. Unlimited, Inc., 354 N.W.2d 830, 832, 834 (Minn. 1984). The defendant must have sufficient time to investigate charges and prepare a defense. W. Side Pawn, 587 N.W.2d at 523.
Appellant was given a hearing in which appellant’s lawyer was able to call witnesses and present his case before an impartial judge. In addition, appellant was able to submit a brief to the trial court after the hearing and reply to the brief submitted by respondent. Appellant does not contend that the hearing provided him was inadequate.
In this case, appellant had the benefit of a de novo hearing, and he clearly knew that his ability to obtain a permit to carry a firearm was at stake. This court has stated in dictum in a case concerning the revocation of a pawnbroker’s license, that even if the pawnbroker only had one day’s notice of the hearing, this was adequate notice because the factual issues were simple and the pawnbroker could have requested a continuance. Id. at 521. Appellant knew of the hearing far in advance, and the denial of his permit stated that the sheriff had relied on more than just the 1993 incident specifically named. This should have alerted appellant that the sheriff’s office considered other incidents and that they might be presented to the court. He could have used discovery procedures to determine the information the sheriff’s office would introduce. Because all incidents involved his own past conduct, appellant was in a position to present evidence and respond. This limits the impact of the claimed surprise. Most significantly, as the court in West Side Pawn noted, if appellant was surprised, he could have sought a continuance. See id. at 523. Appellant was also afforded the opportunity to discuss issues raised at the district court hearing in his post-hearing brief and reply brief. Under these circumstances, we conclude the district court hearing did not deny appellant his right to procedural due process.
Appellant raises two issues related to the statutory requirement that the district court hold a hearing and engage in de novo review. Minn. Stat. § 624.714, subd. 12(a) (Supp. 2003). The first is whether the district court can consider incidents not identified in the sheriff’s denial of a permit. This is different from the due process notice issue just discussed.
The MCPPA states that the district court is to review the denial of a permit to carry a firearm “de novo without a jury.” Minn. Stat. § 624.714, subd. 12(a). The sheriff in his notice of permit denial is required to provide the specific factual basis justifying the denial. Minn. Stat. § 624.714, subd. 6(b) (Supp. 2003). Appellant appears to argue that this means that the district court is only allowed to consider those matters that were specifically referred to in the notice of permit denial. The district court held, however, that in a de novo hearing it could examine evidence anew or afresh and that it could thus consider any evidence the sheriff could have or did consider, regardless of whether that information was specified in the denial letter.
An appellate court reviews de novo whether a district court has properly construed a statute. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). If the language in a statute is clear, the reviewing court applies the plain meaning without deference to the district court. Minn. Stat. § 645.16 (2002); Correll v. Distinctive Dental Servs., 607 N.W.2d 440, 445 (Minn. 2000). If the language is ambiguous, reviewing courts apply the rules of statutory construction. Minn. Stat. § 645.16; Correll, 607 N.W.2d at 445. Language is ambiguous if it is reasonably subject to more than one interpretation. State by Bealieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996).
According to Blacks Law Dictionary, the phrase “de novo” means “anew.” 447 (7th ed. 1999). A hearing de novo is “1. A reviewing court’s decision of a matter anew, giving no deference to a lower court’s findings. 2. A new hearing of a matter, conducted as if the original hearing had not taken place.” Id. at 725. These definitions indicate that the district court should take a fresh look at the matter and not be constrained by the evidence considered by the sheriff in his decision. The court should look at the matter as if the original consideration by the sheriff did not take place. Since the court is not supposed to give deference to the decision of the sheriff, it is not limited to the evidence that the sheriff considered, but rather should be able to make a decision based on the record before the court and its own interpretation of the facts.
The text of the statute is also relevant to this issue. The requirements for the hearing by the district court are contained in Minn. Stat. § 624.714, subd. 12. Subdivision 12 specifies certain types of evidence that the district court cannot rely on as a basis for denying a permit. See Minn. Stat. § 624.714, subd. 12(b)(2). That the legislature did not limit the district court’s discretion to consider other evidence reinforces our conclusion that in a de novo review, the district court may consider evidence of any relevant, non-excluded incident.
The second de novo issue is whether the district court improperly deferred to the respondent in its conclusions of law. The full conclusion of law in question reads as follows:
6. Respondent carried his burden of establishing by clear and convincing evidence that the three incidents occurred, that each incident was investigated and documented, that [Appellant] was involved in each incident, and that the incidents demonstrate [Appellant’s] tendency for impulsivity, over-reaction, and aggressive threatening behavior. Accordingly, Respondent’s conclusion that there exists a substantial likelihood that [Appellant] is a danger to the public if authorized to carry a pistol under a permit is fully justified.
We recognize that the language in the last sentence may be read as deferring to the sheriff and not providing de novo review. However, when read in the context of the preceding portion of the paragraph and the rest of the district court’s order, it is clear that the district court understood it was engaged in de novo review, that the respondent had the burden of proof, and that the court was responsible for making a final, de novo decision. We conclude that the district court did not simply defer to the respondent sheriff but concluded de novo that the statutory standard for denial of a permit had been met.
The next issue is whether the district court based its decision on incompetent and irrelevant evidence. Appellant claims that other improper, inadmissible hearsay evidence was considered. We also understand appellant to claim that the district court misconstrued a statutory prohibition on the incidents that could be used as evidence as a license to admit evidence of all other incidents. The MCPPA specifies that when rejecting a permit, “[i]ncidents of alleged criminal misconduct that are not investigated and documented, and incidents for which the applicant was charged and acquitted, may not be considered.” Minn. Stat. § 624.714, subd. 12(b)(2) (Supp. 2003). The district court found that all of the incidents which it considered were investigated and documented, and because appellant was not acquitted of them, they could be considered. Respondent argues that because appellant did not make a posttrial motion for a new trial, appellant cannot raise evidentiary issues on appeal.
Both the Minnesota Rules of Civil Procedure and the Minnesota Rules for Civil Appellate Procedure indicate the importance of motions for a new trial. See Minn. R. Civ. P. 59.01; Minn. R. Civ. App. P. 103.04. “It has long been the general rule that matters such as trial procedure, evidentiary rulings and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error.” Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986). The Minnesota Supreme Court has recently revisited this rule and clarified that the distinctions raised in Sauter are properly considered as substantive questions rather than procedural questions. In Alpha Real Estate Co. v. Delta Dental Plan, the supreme court explained that rationale underlying the rules on appellate scope of review as follows:
The benefits of requiring motions for a new trial are twofold: (1) they may eliminate the need for appellate review; or (2) if appellate review is sought, they facilitate development of “critical aspects of the record.” More specifically, motions for a new trial “focus the [district] court’s attention on the specifics of an objection”; give the district court the time “and the opportunity to consider the context in which the alleged error occurred and the effect it might have had upon the outcome of the litigation”; and provide the district court with the opportunity to correct its own errors. (Citations omitted).
664 N.W.2d 303, 309 (Minn. 2003).
Appellant did not make a posttrial motion in this case. Appellant’s arguments are unquestionably of an evidentiary nature and fall into an area that, absent a posttrial motion, traditionally are not subject to appellate review. Because this issue was not raised in a posttrial motion, we do not reach the question of whether the district court considered incompetent evidence.
An additional issue before the court is whether this court should grant respondent’s August 19, 2004, motion to modify the record to include the harassment restraining order issued against appellant in November 2001. The record on appeal consists of those matters before the district court. Minn. R. Civ. App. P. 110.01. An appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence below. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). However, an appellate court may consider documents not filed in the trial court “when the evidence is documentary evidence of a conclusive nature (uncontroverted) which supports the result obtained in the lower court.” In re Real Property Taxes for 1980 Assessment; Village Apartments v. State, 335 N.W.2d 717, 718 n.3 (Minn. 1983). The court of appeals has discretion to consider documents that meet the requirements of the exception, but is not required to do so. In re Livingood, 594 N.W.2d 889, 896 (Minn. 1999).
After appellate briefing, the respondent submitted a copy of a restraining order from November 27, 2001, that was effective until November 27, 2003. The court issuing the restraining order found that there was clear and convincing evidence that appellant had engaged in harassment through the use of the telephone and e-mail. The existence of the restraining order is uncontroverted, and it supports the district court’s decision. The appellant was the subject of the order and was familiar with the proceeding. There is no claim that the existence or contents of the order were a surprise or unfairly prejudiced appellant. Under these circumstances, this court will consider this document.
The final issue is whether respondent showed by clear and convincing evidence that there exists a substantial likelihood that appellant would be a danger to the public if authorized to carry a firearm. The question of whether the applicant would be a danger to the public is a mixed question of law and fact. When a district court makes a determination that includes mixed questions of law and fact, the appellate court will correct erroneous applications of law, but grant the district court discretion in the ultimate conclusions and review those conclusions under an abuse of discretion standard. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). Findings of fact will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01. The clear and convincing standard is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt. Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978). Clear and convincing proof exists where the truth of the facts asserted is “highly probable.” Id.
Appellant argues that the evidence does not support the district court’s findings of fact, that there are errors in the findings, that the district court ignored information that explains his conduct, and that its findings were clearly erroneous. The district court was required to examine conflicting evidence and assess the credibility of the appellant to determine if the standard was met. To determine whether the findings are clearly erroneous, we have carefully reviewed the record. We note there are discrepancies, but conclude they are inconsequential. Otherwise we conclude the findings are supported by the record and are not clearly erroneous.
Finally, we address the legal conclusion of the district court. This court must determine if the district court abused its discretion by finding it highly probable that there exists a substantial likelihood that appellant is a danger to the public if allowed to carry a firearm. The evidence shows that appellant has been accused and investigated for similar harassing activity toward two different women. One incident was in 2001 and the other in 1993. In both of these cases, appellant was accused of sending communications that included veiled and actual threats of violence. The level of harassment was serious enough that appellant was subject to restraining orders. The court imposing the 2001 restraining order found that appellant’s accuser had established by clear and convincing evidence that appellant had engaged in the harassment by telephone and e-mail. When the appellant applied for the permit to carry a firearm, he was still under the 2001 restraining order. In both cases it appears that appellant violated the restraining orders and continued communication with the women. There is also direct police testimony in the 1993 case confirming the accusations of appellant’s threatening activity. A police report stated that appellant had a computer file open with a title to kill the accused. Direct police testimony from 1993 shows that appellant struggled with an officer and tried to flee.
The district court concluded that these events demonstrate that the appellant has a tendency to overreact and engage in impulsive, threatening, and abusive behavior. We recognize that there is evidence in the 1993 case that his accuser was not entirely blameless and that ultimately she was prohibited from making claims against appellant. However, even if there are questions regarding the accusers’ credibility or innocence, the fact remains that there was evidence that appellant was harassing other people and that he admitted violating a restraining order. Although the state decided not to pursue the matter, appellant was accused of and arrested for robbery.
We conclude that, based on the record, it was not an abuse of discretion for the district court to conclude that it is highly probable that the appellant has a tendency toward impulsive, over-reactionary, and aggressively threatening behavior. Further, we conclude that, based on this record, it was not an abuse of discretion for the district court to find that there was clear and convincing evidence that this tendency made it more likely that appellant would use a firearm in an impulsive manner and that there exists a substantial likelihood that appellant is a danger to the public if authorized to carry a firearm.
 The district court entered a parallel conclusion of law that limited its basis to just the one incident set forth in the respondent sheriff’s letter notice denying the permit.
 Appellant does not claim the incidents admitted into evidence were irrelevant, he only disputes the competence of the evidence and its weight. The weight is considered in the last section of this opinion.
 Appellant is correct that finding four is not supported by the evidence because the action was actually commenced on October 24, 2003, when the district court filed its writ of mandamus, not on October 27, 2003. Appellant is also correct that the restraining order filed against the appellant was not the result of the “egging” incident because the restraining order was issued before the egging incident. However, the evidence clearly shows that the restraining order was issued and that appellant was investigated in an egging incident. Both these errors are minor and do not affect the significance of the case.