This opinion will be unpublished and

may not be cited except as provided by

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






In re General Election for the Office of Mayor of the City of Medford,
Lois M. Nelson, contestant,


Daniel A. Kaiser,


Filed August 2, 2005


Peterson, Judge



Steele County District Court

File No. C9041447



Mark A. Priore, Priore Law Offices, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN  55402; and


Michael B. Padden, Padden & Associates, P.A., 223 Farrington Street, St. Paul, MN  55102 (for appellant)


Ross L. Leuning, Walbran, Furness & Leuning, 140 East Main Street, P.O. Box 273, Owatonna, MN  55060; and


Mark J. Rahrick, Smith, Tollefson & Rahrick, 113 West Main Street, P.O. Box 271, Owatonna, MN  55060 (for respondent)


            Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


This appeal seeks review of a district court order dismissing an action relating to an election contest.  The district court concluded that appellant’s service of the notice of contest was insufficient to confer jurisdiction on the court.  Appellant contends that (a) the service complied with the statutory requirements of Minn. Stat. § 209.021 (2004); and (b) the requirements of Minn. Stat. § 209.021 are so unduly vague that they violate the contestant’s constitutional rights.  We affirm.


            Of the 627 votes cast in an election for the Office of Mayor of the City of Medford, respondent Daniel A. Kaiser received 304 votes and appellant Lois M. Nelson received 298 votes.  The remaining 25 votes were cast for write-in candidates.  Appellant requested a recount, which resulted in respondent receiving 305 votes and appellant receiving 298 votes.

            On the same day that appellant requested the recount, she also filed in the district court a petition to contest the election, asserting that several violations of election laws occurred during the election.  Appellant mailed copies of the petition to respondent and to Medford City Clerk Karen Sanborn and also personally served a copy on Sanborn.  Following the recount, appellant mailed a second copy of the petition to respondent by certified mail.

            The district court granted respondent’s motion to dismiss for lack of personal jurisdiction, and judgment was entered.  This appeal followed.



            Appellant argues that the district court erred in concluding that it lacked personal jurisdiction over respondent.  Statutory construction and the existence of personal jurisdiction are questions of law, which this court reviews de novo.  Ryan Contracting, Inc. v. JAG Inv., Inc., 634 N.W.2d 176, 181 (Minn. 2001).

            Minn. Stat. § 209.021, subd. 1 (2004), states: “Service of a notice of contest must be made in the same manner as the service of summons in civil actions.  . . .  The contestant shall serve notice of the contest on the parties enumerated in this section.”  Minn. Stat. § 209.021, subd. 3 (2004), states:

In all contests relating to the nomination or election of a candidate, the notice of contest must be served on the candidate who is the contestee, a copy of the notice must be sent to the contestee’s last known address by certified mail, and a copy must be furnished to the official authorized to issue the certificate of election.  If personal or substituted service on the contestee cannot be made, an affidavit of the attempt by the person attempting to make service and the affidavit of the person who sent a copy of the notice to the contestee by certified mail is sufficient to confer jurisdiction upon the court to decide the contest.


            Minn. Stat. § 209.021, subd. 3, expressly requires that the notice of contest be served on the contestee, and, as a party enumerated in section 209.021, the contestee must be served according to the requirements of Minn. Stat. § 209.021, subd. 1.  Minn. Stat. § 209.021, subd. 1, requires service of a notice of an election contest to be made in the same manner as the service of summons in civil actions.  Minn. R. Civ. P. 4.03, which governs service of a summons in civil actions, provides that service of a summons within the state shall be made “[u]pon an individual by delivering a copy to the individual personally or by leaving a copy at the individual’s usual place of abode with some person of suitable age and discretion then residing therein.”  Minn. R. Civ. P. 4.03(a).  Minn. R. Civ. P. 4.05 permits service by mail:

In any action service may be made by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Form 22 and a return envelope, postage prepaid, addressed to the sender.  If acknowledgment of service under this rule is not received by the sender within the time defendant is required by these rules to serve an answer, service shall be ineffectual.


            Appellant did not attempt personal service on respondent.  She sent a copy of the petition by certified mail to respondent, but the record does not show that an acknowledgment of service was included or returned.  Citing Powell v. Johnson, 304 Minn. 534, 231 N.W.2d 926 (1975), appellant argues that the doctrine of substantial compliance can be applied to a contest of an election and that, under the doctrine of substantial compliance, respondent’s receipt of the copies of the petition sent by mail was sufficient to establish personal jurisdiction.

            The Powell court did not apply the doctrine of substantial compliance but did leave open the possibility that the doctrine could be applied to an election contest.  304 Minn. at 535, 231 N.W.2d at 927.  However, in O’Loughlin v. Otis, 276 N.W.2d 38 (Minn. 1979), the supreme court rejected a broad reading of Powell.  The O’Loughlin facts were as follows:

            On November 24, 1978, [the last day for service,] appellant delivered the notice of contest to the Hennepin County Sheriff for service on the county auditor and on respondent.  Because there was no one present at respondent’s house on that day, the sheriff executed and filed an affidavit of not found.  This affidavit was filed with the notice of contest in Hennepin County District Court on November 24, 1978.  The sheriff served the Hennepin County Auditor by leaving one copy of the notice of contest with the secretary of Vernon T. Hoppe, Assistant Auditor.  The sheriff executed and filed an affidavit of service on the county auditor on November 24, 1978.  George Hickey, Auditor, was on vacation that day, but was advised by telephone that the notice of contest had been served.  The letter forwarding that notice to the respondent was not prepared until November 29, 1978, and was not mailed until November 30, 1978.  The auditor executed and filed his affidavit on November 30, 1978.


Id. at 39.  The statute applied in O’Loughlin provided that if the sheriff was unable to effect personal or substituted service on the contestee, the sheriff’s affidavit to that effect, plus an affidavit of the official authorized to issue the certificate of election (the Hennepin County Auditor) stating that the official sent a copy of the notice to the contestee by certified mail, were required to confer jurisdiction on the court.  Id. at 40.

            The O’Loughlin court concluded:

            It is undisputed that the jurisdictional requirements were not strictly complied with in this case.  Appellant served only one copy of the notice of contest on the Hennepin County Auditor and did not effect personal or substituted service of the notice on the contestee.  Although the sheriff executed and filed the affidavit required by Minn. St. 209.02, subd. 2, on November 24, 1978, the Hennepin County Auditor did not do so until November 30, 1978.


            Contestant asserts that the recent cases of Powell v. Johnson, 304 Minn. 534, 231 N.W.2d 926 (1975); Borg v. Fjoslien, 299 Minn. 201, 216 N.W.2d 265 (1974); Petrafeso v. McFarlin, 296 Minn. 120, 207 N.W.2d 343 (1973); and Holmen v. Miller, 296 Minn. 99, 206 N.W.2d 916 (1973), indicate a movement by this court toward a policy of substantial compliance.  Such is not the case.  We have consistently held that where the legislature has set strict procedural requirements and time limitations in an effort to get election contests expeditiously resolved, we would adhere to a rule of strict compliance with the statutes.  . . .  That is not to say that we would not hold in a proper case that where a contestant has done everything within his power to fulfill the statutes and a public official refuses or fails to perform his duty, that the trial court should not take jurisdiction.  But that is not the case before us.


            In this case the contestant waited until the last day before commencing action.  There is no showing in the record that contestant or her attorney made any real effort to locate the contestee to effect personal service.  Only one copy, rather than the two copies required by statute, was served on the county auditor.  The record indicates no follow up on the part of the contestant’s attorney to see that a copy would be or could be made by the county auditor and sent to the contestee and an affidavit of mailing be executed.


Id. at 40-41; see also Rachner v. Growe, 400 N.W.2d 749, 751 (Minn. App. 1987) (stating that “[t]he right to contest an election is purely statutory and in order for the district court to acquire jurisdiction the provisions of the statute relating to filing and serving of the notice must be strictly followed” and that “[s]ubstantial compliance with the strict procedural requirements imposed by the legislature is insufficient”) (quotations omitted), review denied (Minn. Apr. 17, 1987).

            Here, as in O’Loughlin, it was appellant’s failure to comply with statutory requirements that resulted in service on respondent not being effected.  Therefore, the strict procedural requirements set by the legislature in Minn. Stat. § 209.021 must be adhered to, and the district court properly concluded that it lacked personal jurisdiction over respondent.


Appellant argues that Minn. Stat. § 209.021 (2004) is unconstitutionally vague.  Appellant did not notify the Minnesota Attorney General of a facial constitutional challenge to this statute as required by Minn. R. Civ. App. P. 144.  Failure to notify the attorney general limits the constitutional challenge to an “as applied challenge.”  Welsh v. Johnson, 508 N.W.2d 212, 215-16 n.1 (Minn. App. 1993).  But appellant did not raise an as-applied constitutional challenge before the district court.  Generally, this court will address only those issues that the record shows were presented to and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  We find no reason to depart from the general rule in this case.