This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-2614

Daryl L. Kirt, et al.,

Appellants,

Bud E. Hamilton,

Plaintiff,

vs.

Hubert H. Humphrey, III,

Attorney General for the

State of Minnesota; et al.,

Respondents,

Susan E. Gaertner, Ramsey

County Attorney,

Respondent,

and

Minnesota Automobile

Dealers Association, Inc.,

intervenor-defendant,

Respondent.

Filed September 9, 1997

Affirmed

Randall, Judge

Ramsey County District Court

File No. C4-95-8344

Michele R. Wallace, Volunteer Attorney for Minnesota Civil Liberties Union, Oppenheimer, Wolff & Donnelly, 1700 First Bank Building, St. Paul, MN 55101; and

Kathleen M. Milner, Minnesota Civil Liberties Union, 1021 West Broadway, Minneapolis, MN 55411 (for appellants)

Hubert H. Humphrey III, State Attorney General, John S. Garry, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondents Humphrey, et al.)

Susan E. Gaertner, Ramsey County Attorney, Darwin Lookingbill, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 560, St. Paul, MN 55102 (for respondent Gaertner)

Marshall H. Tanick, Mansfield & Tanick, P.A., 900 Second Avenue South, Suite 1560, Minneapolis, MN 55402 (for respondent intervenor/defendant Minnesota Automobile Dealers Association, Inc.)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellants challenge the district court's award of summary judgment, upholding the constitutionality of Minnesota's ban on the sale of motor vehicles on Sunday. Appellants claim the law infringes upon their fundamental rights of religion, privacy, equal protection and due process, and that it violates the Establishment Clause and the prohibition against special legislation contained in the Minnesota Constitution. We affirm.

FACTS

Appellants Daryl L. Kirt and Vicky Dim Williams brought suit in Ramsey County District Court against Minnesota Attorney General Hubert H. Humphrey III; Donald E. Davis, the Commissioner of the Minnesota Department of Public Safety; and Susan E. Gaertner, the Ramsey County Attorney, seeking to have Minn. Stat. § 168.275 (1996), which bans the sale of motor vehicles on Sunday, declared unconstitutional under the Minnesota Constitution. Appellants claim the statute violates their right to the free exercise of religion, the Establishment Clause, equal protection and substantive due process, and their right to privacy. Appellants amended their complaint to add a claim that the law violates the Minnesota Constitution's prohibition against special legislation. The Minnesota Automobile Dealers Association, Inc. (MADA) intervened as a defendant.

Kirt is the principal owner of Hooked on Classics, a licensed classic car dealership in Watertown. He has been licensed and operating as a car dealer since 1978. Hooked on Classics advertises that it is open Monday through Friday, and on Sundays for "browsing." Because Kirt is a member of the United Church of God, which recognizes the Sabbath as running from sunset Friday to sunset Saturday, he believes he cannot engage in business on Saturdays. But Kirt does have an arrangement with Roger Oestreich, a retired individual with nearly 40 years of experience with classic automobiles, to open Hooked on Classics on most Saturdays. While not open every Saturday, Oestreich opens Hooked on Classics approximately 75-80% of all Saturdays. Oestreich receives 40% of the profits from all Saturday sales and Kirt receives the remaining 60%. There is nothing in the record to indicate that Kirt could not arrange to have someone operate the business every Saturday.

Kirt maintains that the Sunday ban on the sale of motor vehicles puts him at an economic disadvantage because other classic car dealers do not observe a Saturday Sabbath. Kirt concedes, however, that the Sunday closing law has not forced him to change or alter his religious beliefs or practices.

Williams is married with two young children and is a resident of St. Paul. She is a member of the Beth Jacob Congregation, a conservative Jewish sect. Like Kirt, she recognizes the Sabbath as running from Friday sunset to Saturday sunset. During the Sabbath, members of the congregation may not ride in cars, exchange money, write, sign their names, or use electricity or the telephone. According to Williams, she leads a busy lifestyle because of her family, work, and religious and community service activities.

Williams claims that in the fall of 1992, she sustained economic injury when she had to take an hour off from her weekday evening teaching job to purchase her 1993 Mercury Villager. She claims she lost $18 in wages. She said she would like to shop for cars on Sundays because she is busy during the week and does not want to shop on Saturdays. Williams acknowledges, however, that the difficulty she and her husband experienced in taking delivery of the vehicle was because of her busy schedule.

Following discovery, the district court heard cross-motions for summary judgment. The district court granted summary judgment in favor of respondents and against appellants, dismissing appellants' amended complaint. Following the summary judgment in their favor, respondents applied for costs and disbursements in the amount of $10,912.18. The court administrator allowed $4,832.18 of the claimed costs and disbursements. The district court denied appellants' appeal of the court administrator's award of costs and disbursements to respondents.

D E C I S I O N

On appeal from summary judgment, this court must determine whether there are any genuine issues of material fact exist and whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). A challenge to the constitutionality of statutes is a question of law, and this court is not bound by the lower court's conclusions. In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993).

Appellants challenge the constitutionality of Minn. Stat. § 168.275 (1996). This section provides, in part, that:

Any person who shall carry on or engage in the business of buying, selling, exchanging, dealing in or trading in new or used motor vehicles; or who shall open any place of business or lot wherein the person attempts to or does engage in the business of buying, selling, exchanging, dealing or trading in new or used motor vehicles; or who does buy, sell, exchange, deal or trade in new or used motor vehicles as a business on the first day of the week, commonly known and designated as Sunday, is guilty of a misdemeanor for the first offense * * *.

Minn. Stat. § 168.275.

"Minnesota statutes are presumed constitutional, and [the] power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary." In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). "The party challenging a statue has the burden of demonstrating beyond a reasonable doubt a violation of some provision of the Minnesota Constitution." Id.

Standing

Initially, respondents claim that Kirt and Williams lack standing to challenge the constitutionality of Minn. Stat. § 168.275. Standing to raise a constitutional challenge requires "direct and personal harm resulting from the alleged denial of constitutional rights." City of Minneapolis v. Wurtele, 291 N.W.2d 386, 393 (Minn. 1980); accord May v. Strecker, 453 N.W.2d 549, 555 (Minn. App. 1990), review denied (Minn. June 15, 1990). The challenger must show that he "has sustained or is in immediate danger of sustaining some direct injury resulting from [the statute's] enforcement and not merely that [he] suffers in some indefinite way in common with people generally." Paulson v. Lapa, Inc., 450 N.W.2d 374, 380 (Minn. App. 1990), review denied (Minn. Mar. 22, 1990).

First, Williams lacks standing to challenge the constitutionality of Minn. Stat. § 168.275. The only burden she has alleged is that she is "inconvenienced" by the Sunday closing law. While she may have lost $18 for the hour she took off from work to take delivery of her new car, that was her choice, and only puts her in the same category as countless other individuals in Minnesota who, for practical or personal reasons, take modest amounts of time off from work to do personal errands. Williams admits that this "injury" was the result of her busy schedule and not because of the Sunday closing law. The mere inconvenience that the Sunday closing law might cause Williams does not rise to the level of a constitutional violation sufficient to confer standing to challenge the constitutionality of Minn. Stat. § 168.275.

Kirt, on the other hand, does have standing to challenge the constitutionality of the Sunday closing law. Kirt claims a direct economic loss if the statute is enforced because unlike his non-Sabbatarian competitors, he is unable to personally keep his business open six days a week (Monday through Saturday). Accordingly, we conclude that he has standing to challenge the statute's constitutionality.

Preservation of Issues

Next, we agree with respondent MADA that Kirt is barred from arguing on appeal that Minn. Stat. § 168.275 is void for vagueness. This issue was not raised below or decided by the district court. "Arguments not presented to the trial court will not be considered for the first time on appeal." Leonard v. Parrish, 420 N.W.2d 629, 632 (Minn. App. 1988). Because the vagueness argument was not presented to or ruled on by the district court, Kirt may not raise it for the first time on appeal.

Contrary to respondents' assertions, however, the arguments regarding freedom of religion, the Establishment Clause, equal protection, and due process were all raised, presented to, and decided by the district court, and are properly before this court.

Free Exercise of Religion

Kirt argues that the Sunday closing law infringes on his fundamental right to religious freedom as guaranteed by article 1, section 16 of the Minnesota Constitution because it requires him to choose between his religious faith and economic survival.

Where an infringement of religious beliefs is alleged, the compelling state interest balancing test is employed. Hill-Murray Fed'n of Teachers v. Hill-Murray High School, 487 N.W.2d 857, 864-65 (Minn. 1992). This four-prong test that asks: (1) whether the objector's belief is sincerely held; (2) whether the state's regulation burdens the exercise of religious beliefs; (3) whether the state interest in the regulation is overriding or compelling; and (4) whether the state regulation uses the least restrictive means. Id.

Here, it is not seriously disputed that Kirt's religious beliefs are sincerely held. The question is whether there has been a substantial burden on his religious beliefs. In free exercise cases, the plaintiff must demonstrate a burden on religion. Wilson v. Block, 708 F.2d 735, 740 (D.C. Cir. 1983). "Only if a burden is proven does it become necessary to consider whether the governmental interest served is compelling or whether the [state] has adopted the least burdensome method of achieving its goal." Id. To be recognized as a constitutional infringement, the burden on religious beliefs must be substantial. Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699, 109 S. Ct. 2136, 2148 (1989) (holding that "[t]he free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice").

In Braunfeld v. Brown, 366 U.S. 599, 81 S. Ct. 1144 (1961), the United States Supreme Court held that a Pennsylvania Sunday closing law did not infringe Sabbatarian merchants' free exercise of religion even though the law made the practice of their religious beliefs more expensive because they were open only five days a week while their non-Sabbatarian competitors were open six days a week. The Court stated that "the freedom to act, even when the action is in accord with one's religious convictions, is not totally free from legislative restrictions." Id. at 603, 81 S. Ct. at 1146. The Court held that

if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.

Id. at 607, 81 S. Ct. at 1148. The Court ruled that the Sunday closing law in question did not make unlawful any religious practice of plaintiffs, but simply regulated a secular activity and made practicing their religious beliefs more expensive. Id. at 605, 81 S. Ct. at 1147; see also Gallagher v. Crown Kosher Super Mkt., 366 U.S. 617, 630-31, 81 S. Ct. 1122, 1129 (1961) (rejecting Sabbatarian merchant's argument that Sunday closing law burdened his free exercise of religion because the law caused his business to be closed one day more than competitors); McGowan v. Maryland, 366 U.S. 420, 429-30, 81 S. Ct. 1101, 1107 (1961) (denying standing to plaintiffs claiming an infringement on the free exercise of religion where they alleged only economic injury and any infringement of their own religious freedom or the freedom of employer's present or prospective patrons).

Here, the legislature chose to regulate the sale and purchase of motor vehicles on Sunday. The legislative purpose behind Minn. Stat. § 168.275 is decidedly secular. According to the uncontested affidavit of Hyman Berman, a professor of history at the University of Minnesota, the statute was enacted in 1957 in response to Twin Cities automobile dealers' concerns that they were disadvantaged by local Sunday closing ordinances, unlike their suburban and rural counterparts. After reviewing the legislative history, Professor Berman noted that the statute was enacted to achieve uniformity within the state so that urban automobile dealers were not disadvantaged by local Sunday closing ordinances. The history also showed that experienced automobile salesmen were leaving the industry because of the long work week. The proponents of the legislation hoped it would stem the tide. Professor Berman further noted that there were concerns that, absent uniform legislation, the Minneapolis and St. Paul ordinances prohibiting the sale of motor vehicles on Sundays would be repealed, resulting in car sales on Sundays throughout the state that would, in turn, benefit the Twin Cities dealers to the disadvantage of suburban and out-state dealers.

Although the statute may, in Kirt's case, make it more expensive for him to observe his religious beliefs, this does not render the statute constitutionally infirm. Minn. Stat. § 168.275 does not prohibit or make unlawful any religious practice of Kirt nor has it forced him to change his religious beliefs or practices in any way. The statute does not require Kirt to do anything abhorrent to his religious beliefs or to violate the principles of his theology. See State v. Hershberger, 462 N.W.2d 393 (Minn. 1990) (holding that free exercise of religion was impermissibly burdened where adherence to state statute requiring use of slow-moving vehicle sign on Amish carriages required Amish to undertake conduct that violated deeply held religious beliefs); French, 460 N.W.2d 10 (holding that adherence to anti-discrimination provisions of Minnesota Human Rights Act would require landlord to violate his religious beliefs, thereby violating his free exercise of religion). Because the statute has not forced Kirt to change, alter, or violate his religious beliefs or practices, we conclude that Minn. Stat. § 168.275 does not substantially burden his religious beliefs.

We note that Kirt has lessened his burden through Oestreich. Since, by definition, Kirt's beliefs do not prevent him from having someone else keep his business open on Saturdays, he has no more burden than any business owner who, because he likes to take weekends off, hires someone else to keep his business open. We therefore do not need to consider whether a compelling governmental interest is served or whether the state has adopted the least restrictive means of achieving its goal.

Establishment Clause

Kirt contends that the sole purpose of Minn. Stat. § 168.275 is to establish a preference in favor of worship on Sundays and that the statute serves the improper religious purpose of establishing a common day of rest on Sunday. Kirt maintains that this violates article I, section 16 of the Minnesota Constitution. Although the genesis of Sunday closing laws was religious, over time such laws have evolved into secular laws devoid of their once religious bases. See McGowan, 366 U.S. at 435, 81 S. Ct. at 1110 (stating that "[t]he proponents of Sunday closing legislation are no longer exclusively representatives of religious interests"). To be valid under the Establishment Clause, a statute must (1) have a secular purpose, (2) neither inhibit nor advance religion in its primary effect, and (3) not foster excessive governmental entanglement with religion. Hill-Murray, 487 N.W.2d at 863 (citing Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 2111-12 (1971)).

As noted previously, the legislative purpose behind Minn. Stat. § 168.275 was to bring uniformity to dealer sales of motor vehicles on Sunday. It does not have the principal or primary effect of advancing or inhibiting religion. The statute is neutral and does not prohibit or advance religious beliefs or practices. It simply prohibits the sale of motor vehicles on Sunday, irrespective of individual religious beliefs. Consequently, it does not foster excessive government entanglement. We conclude, therefore, that Minn. Stat. § 168.275 does not violate the Establishment Clause of the Minnesota Constitution.

Equal Protection/Substantive Due Process

Kirt argues that the Sunday closing law violates the equal protection clause of article 1, section 7 of the Minnesota Constitution. A statute is presumed valid and will be upheld "if the classification drawn by the statute is rationally related to a legitimate state interest." Anderson v. Medtronic, Inc., 382 N.W.2d 512, 517 (Minn. 1986). If the statute employs a suspect class or impinges on some fundamental right, strict scrutiny applies and the state must prove that the statute is necessary to serve a compelling state interest. Skeen v. State, 505 N.W.2d 299, 312 (Minn. 1993). Social and economic legislation, however, carries a presumption of rationality that is overcome only by a showing of arbitrariness and irrationality. Anderson, 382 N.W.2d at 517. A statutory classification will not be set aside if it may be reasonably justified by any state of facts. State v. Target Stores, Inc., 279 Minn. 447, 463, 156 N.W.2d 908, 919 (1968).

The reasons behind the enactment of Minn. Stat. § 168.275 were economic, and the statute does not employ a suspect class. Enforcement of the statute has not forced Kirt to change or alter his religious beliefs or practices, and it does not impinge on Kirt's fundamental rights. Therefore, the rational basis test applies.

Under Minnesota's rational basis test, a statute is constitutionally valid if: (1) there is a genuine and substantial distinction between those included in the statute and those excluded, providing a natural and reasonable basis to justify the legislation; (2) the classification is genuine and relevant to the purpose of the law; and (3) it is a purpose that the legislature can legitimately attempt to achieve. State v. Russell, 477 N.W.2d 886, 888 (Minn. 1991). The unconstitutionality of a statute under the rational basis test must be proven beyond a reasonable doubt. Target Stores, 279 Minn. at 468, 156 N.W.2d at 921.

In Target Stores, the Minnesota Supreme Court held that a Sunday closing law prohibiting the sale of certain restricted commodities by retail merchants did not violate the Equal Protection Clause of the Minnesota Constitution. Quoting from the United States Supreme Court decision in Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S. Ct. 1135 (1961), the court rejected plaintiffs' contention that equal protection was violated because the statute excluded the sale of certain restricted commodities by retailers, while at the same time exempting others engaged as wholesalers, service dealers, factories. Target Stores, 279 Minn. at 462-63, 156 N.W.2d at 919-20 (quoting McGinley, 366 U.S. at 589, 81 S. Ct. at 1139). The court, quoting from McGowan, recognized that the fact that certain "'exemptions exist and deny some vendors and operators the day of rest and recreation contemplated by the legislature does not render the statutes violative of equal protection since there would appear to many valid reasons for these exemptions * * *.'" Id. at 464, 156 N.W.2d at 919 (quoting McGowan, 366 U.S. at 427, 81 S. Ct. 1105-06).

Here, the primary reason for the statute was an intent to provide statewide uniformity with regard to the sale of motor vehicles by dealers. It was also enacted to provide car salespersons a day of rest and repose, thereby alleviating the flight of quality salespersons from the industry. These are legitimate economic reasons and the classification contained in the statute is relevant to the law's purpose. Further, the statutory purpose is one that can legitimately be achieved by the statute. Accordingly, we conclude that Kirt's equal protection and substantive due process rights have not been violated.

Right to Privacy

Kirt argues that Minn. Stat. § 168.275 violates his right to privacy. Kirt claims that the decision not to engage in economic activities on a particular day because of one's religious beliefs is an act of conscience and, therefore, an act of privacy with which the state cannot interfere. Kirt asserts that "the statute is an invasion of privacy because it economically burdens [his] right to engage in an act of conscience." We find no invasion of privacy and no interference with Kirt's acts of conscience, and we conclude this argument is meritless.

The right of privacy protects fundamental rights. Fundamental rights have their origin in the express terms of the United States Constitution or are necessarily implied from those terms. State v. Gray, 413 N.W.2d 107, 111 (Minn. 1987). The freedom, for instance, to stay open seven days a week has never been recognized as a fundamental right. See Essling v. Markman, 335 N.W.2d 237, 239 (Minn. 1983) (stating that freedom of choice and contract have not been recognized as fundamental rights invoking strict scrutiny). The right of privacy has never been extended to include the right to engage in an economic activity, and we decline to so extend it in the present case.

Special Legislation

Kirt argues that Minn. Stat. § 168.275 violates the prohibition against special legislation contained in article 12, section 1 of the Minnesota Constitution. This section states, in relevant part, that

[i]n all cases when a general law can be made applicable, a special law shall not be enacted except as provided in section 2. Whether a general law could have been made applicable in any case shall be judicially determined without regard to any legislative assertion on the subject * * *.

Minn. Const. art. 12, § 1.

"[T]he constitutional prohibition against special legislation does not prohibit the legislature from creating classes and applying different rules to different classes through general laws." Larson v. Sando, 508 N.W.2d 782, 786 (Minn. App. 1993), review denied (Minn. Jan. 21, 1994). A statutory classification does not violate the prohibition against special legislation if it meets the rational basis test. Id.

In State ex rel. Hoffman v. Justus, 91 Minn. 447, 98 N.W. 325 (1904), the Minnesota Supreme Court rejected a similar challenge to a Sunday closing law that prohibited butcher shops from being open for business, while the sale of tobacco and confectionery was not prohibited. The court held that

in the exercise of the police power in establishing a day of rest a very large discretion must be allowed to the Legislature in determining what kind of labor or business should be prohibited * * * and, unless the classification is manifestly purely arbitrary, and not founded upon any substantial distinction or apparent natural reason which suggests the necessity or propriety of different legislation, the courts have no right to interfere with the exercise of legislative discretion.

Id. at 449, 91 N.W. at 326.

Although the sale of other commodities is allowed on Sunday, as noted previously, the ban on the Sunday sale of motor vehicles under Minn. Stat. § 168.275 is rationally related to a legitimate governmental interest. The legislature is free to regulate some industries and not others, and the legislature's classification here is not arbitrary. Accordingly, we conclude that the law does not run afoul of the constitutional prohibition against special legislation.

Award of Costs and Disbursements

Finally, Kirt argues that the district court erred in affirming the court administrator's award of costs and disbursements. In actions commenced in district court, costs shall be allowed to a defendant "when judgment is rendered in the defendant's favor on the merits, $200." Minn. Stat. § 549.02, subd. 1 (1996); In re Will of Gershcow, 261 N.W.2d 335, 340 (Minn. 1977) (holding that in every district court action, the prevailing party shall be allowed costs). "In every action in a district court, the prevailing party * * * shall be allowed reasonable disbursements paid or incurred * * *. Minn. Stat. § 549.04 (1996).

In equitable actions, costs may be allowed or not * * * in the discretion of the court. When there are several defendants * * * and plaintiff fails to recover judgment against all, the court may award costs to such defendants as have judgment in their favor, or any of them.

Minn. Stat. § 549.07 (1996). Further, the award of deposition costs to the prevailing party is within the discretion of the trial court. Green-Glo Turf Farms v. State, 347 N.W.2d 491, 495 (Minn. 1984). Expert witness fees will be disturbed on appeal only where an apparent abuse of discretion is shown. Carpenter v. Mattison, 300 Minn. 273, 280, 219 N.W.2d 625, 631 (1974).

Kirt argues that his suit presents significant issues of public interest and, therefore, no costs or disbursements should have been allowed by the district court. He relies on the supreme court's decision in State ex rel. Village of Orono v. Village of Long Lake, 247 Minn. 264, 77 N.W.2d 46 (1956). In that case, the court held that neither party was entitled to costs and disbursements because the issues presented in the suit raised a "bona fide public question." Id. at 276, 77 N.W.2d at 54. Six years later, however, the supreme court restricted the holding in Village of Orono to suits involving municipalities only. See Village of Edina v. Joseph, 264 Minn. 84, 103-04, 119 N.W.2d 809, 821-22 (1962) (rejecting argument by individual property owners appealing assessments against private property that costs and disbursement should not taxed because a public question was involved).

The district court did not abuse its discretion in awarding costs and disbursements to respondents. The costs to depose Kirt, Williams, and Oestreich are not unreasonable, and the court's award of $300 for each expert is similarly not unreasonable.

Affirmed.