This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Andrew Raymond Kremer, petitioner,


Commissioner of Public Safety,

Filed November 16, 1999
Mulally, Judge[*]

Hennepin County District Court
File No. 476 578

Peter B. Wold, Wold, Jacobs & Johnson, P.A., Barristers Trust Building, Suite 205, 247 Third Avenue South, Minneapolis, MN 55415; and

Charles N. Ek, Law Office of Charles N. Ek, P.A., Barristers Trust Building, Suite 205, 247 Third Avenue South, Minneapolis, MN 55415 (for respondent)

Mike Hatch, Attorney General, Jeffrey F. Lebowski and Michael R. Pahl, Assistant Attorneys General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Commissioner of Public Safety challenges the district court's order, which rescinded the revocation of respondent's driver's license after the district court concluded that the limited-discovery provisions in Minn. Stat. § 169.123, subd. 5c(d) (1998) violate the separation of powers doctrine. The commissioner asserts that respondent did not have standing to challenge the statute's constitutionality. We agree and reverse.


Respondent Andrew Raymond Kremer was arrested October 18, 1998, for driving while under the influence. His alcohol concentration exceeded .10, and his driver's license was subsequently revoked. Kremer challenged the revocation, arguing (a) the police lacked probable cause to arrest him, (b) the Intoxilyzer test was unreliable, and (c) the implied consent statute's mandatory, limited-discovery provisions are unconstitutional. The district court determined that police had probable cause to stop Kremer and that the Intoxilyzer test was reliable. The district court rescinded the revocation of Kremer's license, however, after determining that the limited-discovery provisions violate the separation of powers doctrine. The district court did not address Kremer's other constitutional challenges.


When the facts are undisputed, standing is a legal question. Joel v. Wellman, 551 N.W.2d 729, 730 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996). Legal questions are reviewed de novo on appeal. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639 N.W.2d 642 (Minn. 1984).

Although the issue was raised below, the district court did not address standing. The district court's failure to address standing does not preclude this court from addressing it on appeal; a challenge to standing may be made at any time. Lucio v. School Bd. of Indep. Sch. Dist. No. 625, 574 N.W.2d 737, 739 n.2 (Minn. App. 1998) ("[A] party's standing to bring a claim may be raised at any time." (citation omitted)), review denied (Minn. Apr. 30, 1998).

A party does not have standing to make "a constitutional challenge absent a 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). Kremer contends that standing does not require the actual deprivation of a right but only "the possibility of the deprivation of a right." Kremer cites St. Paul Area Chamber of Commerce v. Marzitelli, 258 N.W.2d 585, 588 (Minn. 1977), which states that a party challenging a statute's constitutionality must "show that the statute is, or is about to be, applied to his disadvantage." (Citation omitted.) Demonstrating that harm is imminent, however, is distinctly different from demonstrating that harm is a mere "possibility." The supreme court has specifically stated "that merely possible or hypothetical injury is not enough to satisfy this standard." Kennedy v. Carlson, 544 N.W.2d 1, 6 (Minn. 1996) (citation omitted).

Kremer contends that because he was forced by law to proceed in this case subject to the statutory discovery limitations, application of the statute was imminent at the time he challenged the statute's constitutionality. Contrary to Kremer's argument, he was not precluded from making a good-faith attempt to obtain additional discovery. Cf. Minn. R. Civ. P. 11 (permitting imposition of sanctions against attorneys and parties who sign documents not warranted by existing law or by "a good faith argument for the extension, modification, or reversal of existing law"). Further, the application of the statute alone does not equate to the conclusion that Kremer was harmed, or in imminent danger of being harmed, by its application. See Wurtele, 291 N.W.2d at 393 ("[T]here is no standing to raise a constitutional challenge absent a direct and personal harm resulting from the alleged denial of constitutional rights.").

The commissioner provided Kremer with all of the discovery mandated by statute and informed Kremer that he could inspect the commissioner's entire file or obtain copies of the documents subject to the mandatory discovery. Additionally, the commissioner notified him that any documents concerning the alcohol concentration test could be inspected by contacting the BCA. The commissioner noted that Kremer had requested copies of the police officer's radar, laser, and speedometer logs and informed Kremer that the commissioner did not have "possession, custody or control" over those documents. The commissioner recommended that Kremer contact the police officer and/or the city attorney's office in order to obtain that information. The record does not demonstrate whether Kremer sought these documents from the officer or city attorney's office.

Kremer failed to demonstrate that the statutory discovery limitations were the direct cause of any inability to obtain the requested information. Further, Kremer did not attempt to establish that, absent this information, he could not proceed and did not attempt to conduct any other discovery. Kremer has not shown that he was harmed, or that he was in imminent danger of being harmed, by the limited-discovery provisions. Therefore, he did not have standing to challenge the constitutionality of the statutory discovery provisions.


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