This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2128

 

Kenneth Mixon,

Plaintiff,

 

vs.

 

One 2002 GMC

VIN #1GKGK66ULLJ313138,

Respondent,

 

South Lake Minnetonka

Police Department,

Appellant.

 

Filed June 7, 2005

Affirmed
Crippen, Judge
*

 

Hennepin County District Court

File No. 03-20343

 

Steven M. Tallen, Tallen & Baertschi, 4640 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for respondent)

 

Kenneth N. Potts, 5101 Thimsen Avenue, Suite 200, Minnetonka, MN 55345 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            This case involves a dispute between two neighboring police departments over the proper distribution of proceeds from a motor-vehicle forfeiture.  Appellant South Lake Minnetonka Police Department challenges the district court’s order permitting the Deephaven Police Department to receive 70% of forfeiture proceeds due for the policing agency, arguing that it was the “appropriate agency” entitled to receive this part of the forfeiture proceeds under Minnesota’s vehicle-forfeiture statute.  Because appellant’s seizure of the vehicle was made pursuant to Deephaven’s request for mutual assistance under the Hennepin County Chiefs of Police Association Mutual Aid Pact (mutual aid pact), Deephaven is the “appropriate agency” entitled to the vehicle-forfeiture proceeds in question, and we affirm. 

FACTS

            In circumstances unfolding in mid-November 2003, Deephaven Officer Cory Johnson observed a black GMC Yukon Denali.  Based on prior knowledge, Johnson was aware that the vehicle belonged to Minnesota Vikings player Kenneth Mixon and that Mixon’s driver’s license had recently been revoked.  Because a concrete barrier divided the road between Johnson’s squad car and the vehicle, he was unable to immediately pursue the vehicle and radioed South Lake Minnetonka Officer James Williams for assistance.  Johnson asked Williams to “check on” the vehicle in order to see whether Mixon was driving it.

            After locating the vehicle described by Johnson, South Lake Minnetonka Officer Williams stopped the vehicle in the city of Deephaven and determined that it did in fact belong to and was driven by Mixon.[1]  Mixon showed signs of intoxication.  Williams also observed “what appeared to be a mixed drink in a glass with ice cubes.”   Officer Johnson then arrived on the scene and Officer Williams proceeded to perform field-sobriety tests on Mixon, who failed each test.  Mixon was then arrested for driving under the influence of alcohol.

            Because Mixon had two prior implied consent revocations on his driving record in the past 10 years, the two officers determined that his vehicle was subject to forfeiture and Officer Johnson impounded the vehicle.  A “notice of seizure and intent to forfeit vehicle” was immediately served upon Mixon by South Lake Minnetonka.[2]

            Approximately one month later, on December 17, 2003, Mixon challenged the forfeiture by filing a complaint and demand for judicial determination under Minn. Stat. § 169A.63, subd. 8(d) (2002).  The complaint was served upon Deephaven and not upon South Lake Minnetonka.  Two days later, Deephaven served an amended “notice of seizure and intent to forfeit vehicle” upon Mixon by certified mail. 

            Just prior to trial, several months later, Deephaven and Mixon agreed to a settlement whereby Deephaven would return a stereo speaker from the vehicle in return for Mixon’s agreement to the forfeiture.  The district court then directed the parties to execute a “Stipulation of Dismissal.”  Based on that stipulation, the court would then dismiss the matter with prejudice.  On April 22, Mixon’s attorney filed a noncompliant “notice of dismissal,” which was signed only by Mixon’s attorney.[3] 

            A few days later, South Lake Minnetonka informed the court that it was not aware of the April 16 hearing.  South Lake Minnetonka then submitted a motion to stay entry of judgment, which the court granted “to consider which police agency is deemed to be the ‘appropriate agency’ for purposes of forfeiting [Mixon’s] vehicle.”

            Both South Lake Minnetonka and Deephaven were represented by their respective city attorneys at the subsequent hearing.  The district court vacated the previous stay of judgment and ordered that Deephaven execute an original stipulation of dismissal per the original settlement agreement forfeiting the vehicle to Deephaven.  After finding jurisdiction in the case because counsel had failed to prepare and properly execute a mutually signed stipulation of dismissal, the district court concluded that both police departments were authorized by law to pursue the forfeiture against Mixon.  But relying on the mutual aid pact, which “permit[s] agencies to share law enforcement resources with other agencies in Hennepin County,” the district court determined that Deephaven was the “appropriate agency” entitled to the police-agency share of forfeiture proceeds.

D E C I S I O N

South Lake Minnetonka primarily argues that it is an “appropriate agency,” the police agency that is the proper recipient of a majority of the forfeiture proceeds under Minn. Stat. § 169A.63 (2002).  Whether a statute has been properly construed is a question of law reviewed de novo by this court.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).   

Minnesota’s vehicle-forfeiture statute provides for the seizure of a vehicle for certain “designated offense[s],” as well as “conduct resulting in a designated license revocation.”  Minn. Stat. § 169A.63, subds. 2(a), 6 (2002); see Minn. Stat. § 169A.63, subd. 1(d) (2002) (listing the violations that constitute a “designated offense”).  Accordingly, “[a]ll right, title, and interest in a vehicle subject to forfeiture under this section vests in the appropriate agency upon commission of the conduct resulting in the designated offense or designated license revocation giving rise to the forfeiture.”  Id., subd. 3 (2002). 

In general, and once forfeiture has been accomplished, the “appropriate agency” is permitted to sell the vehicle and distribute the proceeds.  Id., subd. 10(a)(1) (2002).  The statute then mandates that 70% of the proceeds from the sale of forfeited vehicles be forwarded to the “appropriate agency,” while 30% of the proceeds be forwarded to the “prosecuting authority that handled the forfeiture.”  Id., subd. 10(b) (2002).  The statute’s use of the term “must” means that the 70/30 distribution formula is mandatory.  Minn. Stat. § 645.44, subd. 15a (2004).  No other distribution formula is contemplated under the statute—equitable or otherwise.[4] 

            The parties each assert that Minn. Stat. § 169A.63, subd. 10(b), governs this dispute.  And the record clearly supports the fact that Deephaven’s city attorney is the “prosecuting authority that handled the forfeiture” or “the attorney in the jurisdiction in which the designated offense occurred who is responsible for prosecuting violations of a designated offense or a designee.”  Id., subds. 10(b), 1(g) (2002).  The record also shows that Deephaven prosecuted the forfeiture and that the criminal acts transpired within Deephaven’s city limits.  Thus, the dispute dwells on which police department is the “appropriate agency” entitled to 70% of the proceeds.  Id., subd. 10(b). 

            “Appropriate agency” is defined as the “law enforcement agency that has the authority to make an arrest for a violation of a designated offense or to require a test under section 169A.51 (chemical tests for intoxication).”  Id., subd. 1(b) (2002).   Although the criminal activity occurred within the city of Deephaven, South Lake Minnetonka Officer Williams had statutory authority to effectuate the arrest.  See Minn. Stat. § 629.40, subd. 3 (2002) (explaining that when a licensed peace officer “in the course and scope of employment . . . is outside of [his] jurisdiction, [he] is serving in the regular line of duty as fully as though the service was within [his] jurisdiction”).  There is no doubt that at the time of the arrest, Officer Williams was serving “in the course and scope of [his] employment” as a peace officer for South Lake Minnetonka.  Id.  By responding to Officer Johnson’s request for assistance, Officer Williams’s response “was quintessentially what police officers do in furtherance of their employment duties.”  Yoraway v. Comm’r of Pub. Safety, 669 N.W.2d 622, 626 (Minn. App. 2003).  Thus, as the district court concluded, both South Lake Minnetonka and Deephaven had the legal “authority to make an arrest for a violation of a designated offense.”[5]  Minn. Stat. § 169A.63, subd. 1(b).  Since both police departments had the authority to make the arrest, the definition of “appropriate agency” does not immediately resolve the controversy over the distribution of proceeds before this court. 

In resolving the dispute before it, the district court relied heavily on the mutual aid pact that was signed by both South Lake Minnetonka and Deephaven and the “Joint and Cooperative Agreement for Use of Law Enforcement Personnel and Equipment.”  As the district court explained:

Officer Johnson (Deephaven) initiated the investigation that led to the arrest, although he did not personally effect the arrest.  While on patrol in Deephaven he spotted the subject vehicle.  Because Officer Johnson had special knowledge (the ownership of the vehicle and driver’s license status of the owner) he had the articulable suspicion to pursue the vehicle himself.  When he found it physically difficult to do so, he summoned help and provided his important information to Officer Williams of South Lake.

 

. . .  Officer Williams was performing his duties pursuant to an agreement between police departments[, the mutual aid pact].  This agreement between the police departments states that its purpose is to “permit agencies to share law enforcement resources.”  Furthermore, the pact provides that “[a] requesting party may call upon any other participating party for mutual aid.”  Officer Johnson called upon Officer Williams for mutual aid in order to effect the arrest. 

 

Pursuant to this agreement, “participating parties can utilize the resources for many reasons including routine circumstances . . . such as back up patrol service.”  The request that Officer Williams investigate whether Mixon was driving fell well within the scope of law enforcement activities conducted pursuant to this agreement. 

 

Most importantly, the pact provides that “[m]anagement of a mutual aid situation remains under the control of the requesting party.”  In other words, in spite of his request for assistance, Officer Johnson of Deephaven remained in control of the arrest of Mixon and the forfeiture of his vehicle.[6] 

 

The court concluded that the mutual aid pact dictated that Deephaven was a “requesting party” authorized to conduct the forfeiture and the “appropriate agency” entitled to the proceeds from it.  This conclusion is dictated by the pact.

            In the circumstances of this case, the mutual aid pact establishes a relationship between the two police departments whereby, the one, Deephaven’s, controls the other, South Lake Minnetonka’s.  This control results in a relationship that involves appellant’s role as the Deephaven police department’s agent.  Although South Lake Minnetonka has legal authority to act as it did, independent of the mutual aid pact, this agreement governs both these agencies, where one asks for help of the other.

As an initial matter, “whether an agency relationship exists is generally a question for the jury, unless the evidence is conclusive.”  Duluth Superior Erection, Inc. v. Concrete Restorers, Inc.,665 N.W.2d 528, 534 (Minn. App. 2003).  Agency has been defined as “the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.”  Jurek v. Thompson, 308 Minn. 191, 197, 241 N.W.2d 788, 791 (1976) (quoting Restatement (Second) of Agency § 1 (1958)).  Citing favorably to the Restatement, the supreme court has further elaborated on the nature of agency:

In order to create an agency there must be an agreement, but not necessarily a contract between the parties.  An agreement may result in the creation of an agency relationship although the parties did not call it an agency and did not intend the legal consequences of the relation to follow. 

 

A. Gay Jenson Farms Co. v. Cargill, Inc., 309 N.W.2d 285, 290 (Minn. 1981) (citing Restatement (Second) of Agency § 1 cmt. b (1958)).  To support a finding of agency, two elements must be satisfied.  Teeman v. Jurek, 312 Minn. 292, 299, 251 N.W.2d 698, 702 (1977).  First, it must be shown that there is a manifestation by the principal that an agent act on behalf of the principal.  Id.  Second, it must be shown that the principal has a right of control over the agent for the purpose of the undertaking.  Id. 

            Deephaven specifically requested South Lake Minnetonka’s assistance, asking South Lake Minnetonka to “check on” the vehicle in order to see whether Mixon was driving it.  Deephaven Officer Johnson—as the principal—clearly asked South Lake Minnetonka Officer Williams to act on his behalf—as Deephaven’s agent.  And although Officer Williams performed the majority of the duties to effectuate the arrest, Johnson remained in control of the arrest under the terms of the mutual aid pact.  Accordingly, during Williams’ pursuit of Mixon, he remained in constant contact with Johnson.  In fact, Officer Johnson’s report suggests that Williams was “reporting,” in effect, to Johnson.

Officer Williams advised me that he had the vehicle on Cottagewood Road.  He told me the vehicle had Florida license plates.  He read the plate to me, and I advised him that the owner was [Mixon].  While I drove to the are[a] to back Officer Williams, he told me the vehicle was not stopping, he told me the driver was traveling slowly towards St. James Gate.  He called dispatch and advised them that he had the vehicle stopped at St. James Gate and Minnetonka Boulevard.

 

            Because the mutual aid pact establishes the relationships of the parties in this case, we have no occasion to adjudicate the meaning of “authority to make an arrest” under the vehicle-forfeiture statute.  This decision is confined to the facts and circumstances of two law enforcement agencies acting pursuant to the mutual aid pact, where Deephaven initiated the arrest within its jurisdiction by requesting aid and assistance from South Lake Minnetonka.  The language of the mutual aid pact and the joint and cooperative agreement make it evident that Deephaven—in its role as the “requesting party”—continued to exercise control over the arrest, even though South Lake Minnetonka actually effectuated the arrest.  As the district court determined, pursuant to the mutual aid pact, South Lake Minnetonka (the sending party) acted under the control and authority of Deephaven (the requesting party).  Accordingly, and in light of the relationship established by the mutual aid pact, Deephaven is entitled to 70% of the forfeiture proceeds as the law enforcement agency with “the authority to make an arrest.” 

            Our decision on appeal makes it unnecessary to review questions concerning the district court’s determination that South Lake Minnetonka waived its right to intervene in the case and was not an indispensable party for the decision on distribution of the forfeiture proceeds. 

            Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] While the legality of the stop is not at issue here, Officer Williams did not stop the vehicle based on Johnson’s request alone.  Williams himself observed (1) that the vehicle had stopped only partially at a stop sign, (2) a “bright glowing object immediately to the right of the steering wheel,” presumably a television screen of some sort, and (3) erratic driving behavior.  At this point, Williams activated his emergency lights.  The vehicle did not immediately stop, but instead continued driving on the shoulder until it made a left turn and then stopped.

[2] The notice served on November 18 was outdated and cited the former vehicle-forfeiture statute, Minn. Stat. § 169.1217 (2000). 

[3] Mixon’s attorney captioned the document as a “stipulation of dismissal.”  The court’s clerk’s office then re-captioned it as a “notice of dismissal.”

[4] Unlike some states, Minnesota’s vehicle-forfeiture statute does not provide for the equitable division of forfeited assets by a court.  See, e.g., Mich. Comp. Laws Ann. § 333.7524(1)(b)(ii) (West 2005) (“If more than [one] agency was substantially involved in effecting the forfeiture, the court having jurisdiction over the forfeiture proceeding shall equitably distribute the money among the treasurers of the entities having budgetary authority over the seizing agencies.”).

[5] There is no question that Deephaven Officer Johnson had the authority to arrest Mixon within Deephaven’s city limits.

[6] Under the joint-and-cooperative agreement, “requesting party” means “a [p]arty that requests [l]aw [e]nforcement [a]ssistance from other [p]arties.”  “Sending party” means “a [p]arty that provides [l]aw [e]nforcement [a]ssistance to a requesting party.”