This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Mark Ritchie, as Minnesota Secretary of State, et al.,
Filed May 8, 2007
Toussaint, Chief Judge
Lori Swanson, Attorney General, Kenneth E. Raschke, Jr., Nathan James Hartshorn, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondents)
Considered and decided by Toussaint, Chief Judge; Worke, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant Dale Nathan challenges the district court’s judgment dismissing his taxpayer’s lawsuit seeking a declaratory judgment that respondents Mark Ritchie, as Minnesota Secretary of State, Alberto Quintela, Jr. as Chief Deputy Secretary of State, Kathy Hjelm, as Fiscal & Administrative Services Manager, Minnesota Office of Secretary of State, and the State of Minnesota, acted unlawfully in cancelling a service contract for the state’s voter registration system. Because appellant does not have standing to bring this lawsuit, we affirm.
The State of
The secretary of state’s office notified Election.com that it was not fully satisfied with services rendered after July 2002 and did not pay a $68,000 invoice. The parties subsequently entered into a letter of agreement cancelling the service contract. The state agreed to pay $48,129.88 in full satisfaction of its obligations, and Election.com agreed to provide certain information to the state and to refresh the “source code” for the system. The letter of agreement also stated that the parties “will not give either verbal or written statements to anyone as to the cancellation of this contract other than it was cancelled by reason of the State of Minnesota’s budget cuts.”
The legislative auditor’s routine audit of the secretary of state’s office specifically addressed the cancellation of the Election.com contract. The audit report specifically found that the secretary of state’s office did not follow “appropriate procedures” when it canceled the contract. The report made three “recommendations” for future contract cancellations: (1) work with appropriate state agencies when cancelling contracts, (2) clearly document that work paid for has been satisfactorily performed, and (3) complete the required approval form when the contract is completed.
In the secretary of state’s response to the audit, she explained, among other things, that a federal law, passed after the contract was executed, changed the requirements for the registration system, rendering the old system obsolete. She noted that the cancellation agreement required the secretary of state’s office to pay only for satisfactory work performed and for receipt of the “source code,” which was critical to becoming compliant with the federal law in time for the upcoming elections.
Appellant seeks a declaratory
judgment against respondents, alleging that the letter of agreement cancelling
the Election.com contract is null, void, and unenforceable; that payments made
for unsatisfactory services must be recovered; and that the cancellation
agreement included an illegal statement.
Appellant “is a citizen of
Respondents moved for summary judgment based, in part, on lack of standing. Appellant filed a motion for discovery and for partial summary judgment. The district court granted respondents’ motion and dismissed the action for lack of standing. This appeal followed.
documents outside of the pleadings are presented to and not excluded by the
district court, the motion shall be treated as one for summary judgment and
disposed of as provided for in Rule 56.
Appellant argues that he has standing to bring this action as a taxpayer “whose tax burden could be increased by illegal spending.” Because appellant has not shown that he is the proper party to bring this lawsuit, the district court correctly dismissed the action.
A proper party to
bring a lawsuit has a sufficient personal stake in a justiciable controversy. State
by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 493 (
Appellant does not
meet the requirements for standing to bring this action. First, he has not shown a direct injury
distinct from the public’s injury.
Second, he has not identified express statutory authority to bring this
action. In contrast, the attorney
general is vested with authority to prosecute if the secretary of state’s
office violated a criminal statute. See Minn.
Stat. § 16C.05, subd. 6 (2004) (authorizing attorney general to recover illegal
payments made by agency). Third, he
has not shown that respondents, by the letter of agreement to cancel the
original service contract, unlawfully disbursed public money or acted illegally. Neither appellant nor the legislative auditor
report identifies “illegal” action. Cf. McKee,
261 N.W.2d at 571 (alleging violation of notice provisions in rulemaking); see also Arens v. Will of Rogers, 240
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 About eight months after the contract was executed, in October 2002, Congress passed the Help America Vote Act, 42 U.S.C. §§ 15301-306 (2000 & Supp. II 2002). HAVA established minimum election administration standards for states and local units of government. It made the 2001 voting system, for which the technical services contract was executed, obsolete. In 2003, the state completed a HAVA plan for federal funding and received a federal grant to improve the administration of elections for state and federal offices. The legislative auditor’s report also made various recommendations regarding management of HAVA funds, which are not at issue in this appeal.
cites two criminal statutes, Minn. Stat § 609.43 (2004) (making false
statement) and Minn. Stat. § 609.455 (2004) (payment of fraudulent claim), but does not identify how
they would serve as the basis for his civil taxpayer action. See
Larson v. Dunn, 460 N.W.2d 39, 47 n.4