STATE OF MINNESOTA

IN SUPREME COURT
A14-0893

Court of Appeals

Stras, J.
Concurring, Gildea, C.J.
Took no part, Hudson, Chutich, JJ.

Mark R. Zweber,
Appellant,
vs.

Filed: July 27, 2016

Office of Appellate Courts

Credit River Township, et al.,

Respondents.
________________________

Thomas M. Fafinski, Nathan W. Nelson, Steven V. Rose, and Lesley J. Adam, Virtus
Law, PLLC, Brooklyn Park, Minnesota, for appellant.
Paul D. Reuvers and Jason J. Kuboushek, Iverson Reuvers Condon, Bloomington,
Minnesota, for respondents.
Anthony B. Sanders, Lee U. McGrath, and Meagan A. Forbes, Institute for Justice,
Minneapolis, Minnesota; and
William R. Maurer, Institute for Justice, Bellevue, Washington, for amicus curiae
Institute for Justice.
James J. Thomson, Kennedy & Graven, Chartered, Minneapolis, Minnesota, for amicus
curiae Minnesota Association of Townships.
_______________________

SYLLABUS
A district court has subject-matter jurisdiction over a property owners takings and
equal-protection claims under 42 U.S.C. 1983 (2012) when neither claim requires an
examination into the validity of any quasi-judicial decisions made by a local
governmental entity.
Reversed and remanded.
OPINION
STRAS, Justice.
This case involves the relationship between the court of appeals certiorari
jurisdiction to review quasi-judicial decisions of local governmental entities and the
broad power of Minnesota district courts to hear and determine actions brought under
42 U.S.C. 1983 (2012), a federal civil-rights statute. Mark Zweber, an owner of a large
parcel of undeveloped land, brought a section 1983 action against Scott County and
Credit River Township, alleging that they had deprived him of his property without just
compensation and violated his equal-protection rights. The district court concluded that
it had subject-matter jurisdiction over Zwebers action, but the court of appeals reversed.
According to the court of appeals, the district court lacked jurisdiction because Zwebers
exclusive remedy was to seek a writ of certiorari from the court of appeals. Zweber v.
Credit River Twp. (Zweber II), No. A14-0893, 2015 WL 1128985, at *1 (Minn. App.
Mar. 16, 2015). Because the district court has jurisdiction over Zwebers section 1983
action, we reverse the decision of the court of appeals.

I.
Zweber owns a large parcel of undeveloped land in Credit River Township
(Township), which is located in Scott County (County). Zweber contacted County
officials in April 2003 to develop a plan for the development of the parcel, which he
named Liberty Creek. Among other things, Zweber and the County discussed where to
locate roads within the subdivision and how to stem the flow of traffic into adjoining
neighborhoods.

The discussions culminated in the submission of Zwebers 2006

preliminary plat application, which proposed to divide the parcel into 39 lots and 1 outlot.
The then-owner of an adjoining development known as the Territory wrote a letter
to the County that criticized the Liberty Creek plan. The primary complaint was that
Liberty Creek, as proposed in the preliminary plat application, would cause a substantial
increase in traffic through the Territory. County officials informed Zweber that he would
have to change a road connection in the proposed plat to ease the flow of traffic through
the Territory.
Several months later, the Scott County Planning Commission (Planning
Commission) recommended approval of Zwebers amended plat on the condition that
the Liberty Creek development occur in phases. The Scott County Board (County
Board) then imposed another condition: Zweber was required to construct a barricade at
the border between Liberty Creek and the Territory that was to remain in place until the
development was 90% complete. The County Board eventually approved Zwebers final
plat application and the Master Developers Agreement, the latter of which Zweber
signed.
3

Despite the County Boards approval of the final plat, Zweber did not proceed
with the Liberty Creek development. Instead, in 2008, Zweber submitted to the County
an application for a proposed re-subdivision of the parcel, now called the Estates of
Liberty Creek. This time, based on the recommendation of the Planning Commission, the
County Board denied the application.
Zweber timely appealed the County Boards decision to the Minnesota Court of
Appeals, which granted a writ of certiorari, reversed the Countys decision, and ordered
the County to approve Zwebers application. Zweber v. Scott Cty. Bd. of Commrs
(Zweber I), No. A09-1990, 2010 WL 2733275, at *2, *8 (Minn. App. July 13, 2010). For
over 2 years after the court of appeals decision, the County took no formal action to
approve the proposed re-subdivision.
In 2013, Zweber brought the present action, which includes claims under
42 U.S.C. 1983, in Scott County District Court. In his amended complaint, he seeks
money damages based on allegations that: (1) the County took his property without just
compensation by placing conditions on the approval of his plat application; and (2) the
Countys treatment of him from 2006-2012, the period during which it considered his
various applications, violated his equal-protection rights. Zweber also requests a writ of
mandamus ordering the County to commence inverse-condemnation proceedings to
compensate him for the taking.
In a motion for summary judgment, the County argued that the district court did
not have subject-matter jurisdiction because Zwebers exclusive avenue for review of the
Countys decisions was to seek a writ of certiorari from the court of appeals. The district
4

court rejected the Countys argument, concluding that it has jurisdiction over section
1983 actions. The court of appeals reversed, reasoning that the Countys plat approval
subject to conditions is a quasi-judicial action, which is reviewable only by certiorari
appeal within 60 days, and that Zwebers constitutional claims are not separate and
distinct from that action. Zweber II, 2015 WL 1128985, at *1. We granted Zwebers
petition for review.
II.
The question presented in this case is whether the court of appeals or district
courts have the authority to adjudicate constitutional claims arising out of decisions made
by local government entities.1 The court of appeals concluded that it, not the district
court, would have exclusive jurisdiction over both of Zwebers constitutional claims
because the Countys decisions on the plat and re-subdivision applications were quasijudicial and the constitutional claims are not separate and distinct from them.
Zweber II, 2015 WL 1128985, at *4-5; see also Minn. Stat. 606.01 (2014) (The party
shall apply to the Court of Appeals for the writ.). The court of appeals view is that, if
resolving a constitutional claim does not stand alone from a quasi-judicial decision, a

Because the answer to this question resolves the case, we need not address
Zwebers other argument that the 60-day period to issue a writ of certiorari, see Minn.
Stat. 606.01 (2014), is preempted by the 6-year statute of limitations for section 1983
claims, see Owens v. Okure, 488 U.S. 235, 249-50 (1989); see also Minn. Stat. 541.05,
subd. 1(5) (2014). Accordingly, we disagree with the suggestion in the concurrence that
we are deciding, implicitly or otherwise, that some section 1983 claims . . . should be
resolved by certiorari. By declining to address Zwebers preemption argument, we are
simply leaving a discussion of the preemptive scope of 42 U.S.C. 1983 for another day
and a different case.

certiorari appeal is the only way to raise and preserve the constitutional claim. Zweber II,
2015 WL 1128985, at *4.
The parties dispute over which court has the authority to decide Zwebers claims
raises a question of subject-matter jurisdiction that we review de novo. State v. Losh,
755 N.W.2d 736, 739 (Minn. 2008). Subject-matter jurisdiction refers to a courts
authority to hear and determine a particular class of actions and the particular questions
presented to the court for its decision. Giersdorf v. A & M Constr. Inc., 820 N.W.2d 16,
20 (Minn. 2012) (quoting Robinette v. Price, 214 Minn. 521, 526, 8 N.W.2d 800, 804
(1943)). The determination of whether a particular court has subject-matter jurisdiction
depends on whether the court in question has the statutory and constitutional power to
adjudicate the case. Id. (citing Steel Co. v. Citizens for a Better Envt, 523 U.S. 83, 89
(1998)); see also Losh, 755 N.W.2d at 739 (Subject-matter jurisdiction is a courts
power to hear and determine cases that are presented to the court.).
Minnesotas district courts are courts of general jurisdiction that have the
constitutional authority to hear all civil and criminal cases. Minn. Const. art. VI, 3.
The jurisdictional question in this case, therefore, relates to the statutory authority of
district courts to hear the particular types of claims involved here: an inversecondemnation claim and constitutional claims brought under 42 U.S.C. 1983. We have
held that review of certain decisions of local government entities are subject to review
only by certiorari under Minn. Stat. 606.01, which grants exclusive jurisdiction to the

court of appeals over petitions for a writ of certiorari.2 See, e.g., Cty. of Washington v.
City of Oak Park Heights, 818 N.W.2d 533, 539 (Minn. 2012); see also Minn. Stat.
606.01 (stating that parties shall apply to the Court of Appeals for a writ of
certiorari). District courts do not have subject-matter jurisdiction over claims that must
be resolved in a certiorari appeal. See Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d
671, 676-78 (Minn. 1990) (holding that a declaratory-judgment action in district court is
unavailable when review of a quasi-judicial decision is available by certiorari).
The proceedings conducted by local government entities can result in two types of
decisions, the categorization of which determines whether review by certiorari is
obligatory. The first type of decision is legislative. Decisions are legislative if they have
broad applicability and affect the rights of the public generally. Cty. of Washington,
818 N.W.2d at 539. A legislative decision can be reviewed by filing a summons and

The concurrence conflates two separate questions. The question that the court of
appeals answered, and on which we granted review, was whether Minnesota law required
Zweber to bring his constitutional claims in a petition for a writ of certiorarithat is,
whether certiorari review is exclusive under the facts of this case. The question that the
concurrence apparently answers is whether certiorari review is available, which is a
question that no one asks us to address. For instance, the concurrence base[s] [its]
conclusion on the availability of a statutory remedy and concludes that certiorari
review by the court of appeals was not available to Zweber because he has a statutory
remedy under 42 U.S.C. 1983 for the alleged violation of his constitutional rights.
(Emphases added.) See, e.g., Nelson v. Schlener, 859 N.W.2d 288, 292 (Minn. 2015)
(Therefore, if [a statute] provides a specific process for review, certiorari review by the
court of appeals is not available. (emphasis added)). Yet the court of appeals already
answered the question resolved by the concurrencewhether certiorari review was
available to Zweberwhen it ordered the County to approve Zwebers re-subdivision
application in the 2010 certiorari appeal. Zweber I, 2010 WL 2733275, at *8. Contrary
to the concurrences argument, therefore, certiorari review was not only theoretically
available to Zweber, he actually received it.

complaint in district court. See id. If the Countys decisions on Zwebers plat and resubdivision applications were legislative, the district court would have jurisdiction to
review the decisions themselves and any derivative constitutional claims. See Dead Lake
Assn, Inc. v. Otter Tail Cty., 695 N.W.2d 129, 134-35 (Minn. 2005).
The other possibility is that the Countys decisions were quasi-judicial, which
would have made them reviewable only through the filing of a petition for a writ of
certiorari with the court of appeals. Minn. Stat. 606.01; see Cty. of Washington,
818 N.W.2d at 539 (recognizing that the quasi-judicial decisions of a municipality are
reviewable only by certiorari). In general, quasi-judicial decisions affect the rights of a
few individuals analogous to the way they are affected by court proceedings. Interstate
Power Co. v. Nobles Cty. Bd. of Commrs, 617 N.W.2d 566, 574 (Minn. 2000). In this
case, even if the decisions of the County were quasi-judicial, as the court of appeals
concluded, it is still possible that the district court would have jurisdiction to adjudicate
the derivative constitutional claims pleaded in Zwebers amended complaint.
The court of appeals recognized such a possibility, but applied a test requiring the
constitutional claims to be separate and distinct from the Countys quasi-judicial
decisions for the district court to have jurisdiction. Zweber II, 2015 WL 1128985, at *4.
This test, first articulated by the court of appeals in City of Minneapolis v. Meldahl,
607 N.W.2d 168, 172 (Minn. App. 2000), requires derivative claims to be raised in a
petition for a writ of certiorari when an inquiry into the facts surrounding the claims
would involve an inquiry into the quasi-judicial decisions themselves. See Zweber II,
2015 WL 1128985, at *4. Meldahl involved a decision by the City of Minneapolis to
8

demolish a building that it considered a nuisance. 607 N.W.2d at 170. The court of
appeals concluded that the owner of the building could not bring an inversecondemnation action against the City. Id. at 172. Instead, the owner was required to
assert that a taking occurred . . . through petition for a writ of certiorari to [the court of
appeals]. Id. In this case, the court of appeals extended the rule from Meldahl to divest
district courts of jurisdiction over all constitutional claims, including those brought under
42 U.S.C. 1983, that are not separate and distinct from a quasi-judicial decision. See
Zweber II, 2015 WL 1128985, at *4-5.
We decline to adopt the separate and distinct test from Meldahl.3 In fact, the
resolution of this case does not require us to announce a new rule at all, as an existing
rule fully addresses the allocation of jurisdiction between district courts and the court of
appeals in cases involving quasi-judicial decisions.

In County of Washington, we

addressed whether certiorari review was the exclusive method to review a city
councils denial of a request for a refund of an alleged overpayment for sewer and water
services. 818 N.W.2d at 536. We explained that the district court did not have subjectmatter jurisdiction over an unjust-enrichment claim brought by the county because the
outcome of the claim depended upon the validity of [a] . . . quasi-judicial decision. Id.
3

It is true that we characterized the defamation claims from Willis v. County of

Sherburne, as separate and distinct from the Countys decision to terminate Williss
employment. 555 N.W.2d 277, 282 (Minn. 1996). But we used the phrase to describe
the relationship between Williss defamation claims and the Countys termination
decision, not to announce a new test. In fact, the next sentence in Willis, which examines
whether the defamation claims would require an inquiry into the county boards
discretionary decision to terminate Willis, is the closest we came to announcing a test.
555 N.W.2d at 282-83.

at 542. Under the rule from County of Washington, [w]hen the underlying basis of the
claim requires review of a municipalitys quasi-judicial decision to determine its
validitythat is, whether the decision was unreasonable, arbitrary, or capriciousthen
the exclusive method of review is by certiorari under chapter 606.

Id.; see also

Williams v. Smith, 820 N.W.2d 807, 814 (Minn. 2012) (concluding that a tort claim that
[did] not involve any inquiry into a government entitys employment decision was not
subject to certiorari review); Dietz v. Dodge Cty., 487 N.W.2d 237, 239 (Minn. 1992)
(stating that a court conducting certiorari review determines whether a decision was
arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or
without any evidence to support it). If resolution of the claim does not depend on the
validity of the quasi-judicial decision, then the party may raise the claim by filing an
action in a district court. Cty. of Washington, 818 N.W.2d at 542.
The rule we announced in County of Washington is consistent with another of our
decisions, Willis v. County of Sherburne, 555 N.W.2d 277 (Minn. 1996). In Willis, we
addressed whether a county employee who had been terminated could bring a separate
action for defamation in district court when the defamatory statements were related to the
employees dismissal. Id. at 278-79. Based on the requirement that review of quasijudicial decisions be by certiorari, we determined that the court of appeals was the
exclusive venue to review the termination decision itself, regardless of whether the
employee framed the claim as one for wrongful termination or breach of contract. See id.
at 280, 282. Notably, however, we reached a different conclusion with respect to Williss
defamation claim, reasoning that whether the County knew the statements were false
10

before publishing them to a third party would not involve any inquiry into the county
boards discretionary decision to terminate Willis. Id. at 282-83. Accordingly, like
County of Washington, Willis stands for the proposition that an aggrieved party may bring
a claim in district court arising out of a local governmental entitys quasi-judicial
decision so long as adjudication of the claim does not require an inquiry into the validity
of the decision.
The concurrence would embrace a rule that neither party urges us to adopt. Under
the concurrences rule, a party may file a petition for a writ of certiorari to review a local
governmental entitys quasi-judicial decision only when an adequate remedy at law is
unavailable. Aside from creating a conflict with the rule from County of Washington,
818 N.W.2d at 542, a long line of cases casts doubt on the concurrences proposed rule.4
In Dokmo v. Independent School District No. 11, for example, we concluded that the

The concurrence criticizes us for failing to adopt Meldahls separate and distinct
test, which it says we have already adopted. We disagree. Our view, which finds
support in both Willis and Williams, is that we used the phrase separate and distinct to
describe the relationship between the claims in those cases and the underlying quasijudicial decisions, not to announce a new test. In fact, in both cases, we used the phrase
separate and distinct together with the test we apply today from County of Washington.
Williams, 820 N.W.2d at 814 (We conclude that a tort claim, such as for negligent
misrepresentation, that is separate and distinct from the government agencys
employment decision and does not involve any inquiry into the agencys discretionary
decision is not subject to certiorari review.); Cty. of Washington, 818 N.W.2d at 542;
Willis, 555 N.W.2d at 282-83. What is most puzzling about the concurrences criticism,
however, is that, of all the tests, Meldahl is least compatible with the concurrences rule,
which would allow a claim to be brought in district court whenever an adequate remedy
at law exists, regardless of whether the claim is separate and distinct from a quasijudicial decision. The concurrences rule, in other words, would substantially narrow the
circumstances in which certiorari review is available, which is exactly the opposite of
how the Meldahl test operates. See Meldahl, 607 N.W.2d at 172-73.
4

11

only method of appealing a school boards decision to deny a teachers reinstatement

request was by writ of certiorari. 459 N.W.2d at 673. We reached this conclusion
despite the fact that the teacher who challenged the school boards decision indisputably
had an adequate statutory remedy: a declaratory-judgment action. See id. at 676-77. By
seeking a declaratory judgment, a remedy at law, the teacher who sought reinstatement in
Dokmo could have vindicated her rights in district court. Yet in reiterating the exclusive
nature of certiorari, we emphasized that our decisions express far more than a
preference toward certiorari review. Id. at 674; see also Tischer v. Hous. & Redev.
Auth. of Cambridge, 693 N.W.2d 426, 427, 431-32 (Minn. 2005) (stating that review of a
termination decision was exclusively by certiorari even though Tischer sued for breach of
an employment contract under Minn. Stat. 469.014 (2014)); Moberg v. Indep. Sch. Dist.
No. 281, 336 N.W.2d 510, 519 (Minn. 1983) ([A] writ of certiorari is the proper form of
action for challenging a school closing decision, rather than the declaratory judgment
action brought in this case.).

Based on Dokmo, therefore, as well as County of

Washington, Willis, and Williams, we reject the concurrences proposed rule for
determining the exclusivity of certiorari review.
The rule from these cases is that certiorari review is exclusive when a claim
requires an inquiry into the validity of a quasi-judicial decision. See Cty. of Washington,
818 N.W.2d at 542; Willis, 555 N.W.2d at 282; Dokmo, 459 N.W.2d at 676-77. In
applying this rule, we acknowledge that there is some overlap in the facts underlying
Zwebers constitutional claims and the Countys decisions on Zwebers plat and resubdivision applications. Nevertheless, the presence of overlap is not enough; the claims
12

themselves need not be completely separate and distinct for the district court to have
jurisdiction over them. Rather, it is sufficient if the constitutional claims do not require
the district court to examine the validity of the Countys decisions.
The takings claim does not require an examination into the validity of the
Countys decisions because it actually assumes their validity. The takings claim, as
Zweber pleads it, presupposes that the conditions placed on his plat application were
valid, but alleges that they constitute[d] a taking [for] which [he] must be compensated.
To adjudicate this claim, the fact-finder will have to determine whether the conditions
placed on Zwebers plat application constituted a regulatory taking of his property. If it
did, then Zweber will be entitled to damages or a writ of mandamus ordering the
initiation of inverse-condemnation proceedings against the property.
We reach the same conclusion on Zwebers equal-protection claim.

Zweber

alleges differential treatment by the County and the Township in comparison to

similarly situated property owners. The facts underlying the equal-protection claim span
approximately 6 years, extending to the period both before and after the Countys
decisions on his plat and re-subdivision applications. See Willis, 555 N.W.2d at 282
(noting that the events supporting Williss defamation claim began over a year before the
Countys quasi-judicial decision to terminate him). Like the takings claim, Zweber does
not seek reversal or modification of the Countys quasi-judicial decisions. In fact, the
complaint makes clear that development of the parcel is no longer feasible and seeks only
money damages for the wrongs allegedly committed by the County.

13

Adjudicating

Zwebers equal-protection claim therefore does not depend upon the validity of the
[Countys] quasi-judicial decision. Cty. of Washington, 818 N.W.2d at 542.
The constitutional claims in this case stand in contrast to the claims from Dietz.
Dietz involved claims for wrongful discharge and unlawful discrimination arising out
of Dodge Countys decision to terminate Dietzs employment. 487 N.W.2d at 238. In
her complaint, Dietz sought compensatory damages, reinstatement, and damages for
mental anguish. Id. We observed, especially in light of the reinstatement request, that
[t]he cause of action alleged in Dietzs complaint would require the rights and liabilities
of the parties to be fixed not by the terms of the contract, but by the propriety of the
countys exercise of discretion in terminating her. Id. at 240; Willis, 555 N.W.2d at 282
(Just as in Dietz, Willis requests reinstatement, back pay, lost fringe benefits, and front
pay.). Accordingly, we held that Dietz was obliged to seek judicial review of the
countys termination decision by writ of certiorari. Dietz, 478 N.W.2d at 240; cf. Nw.
College v. City of Arden Hills, 281 N.W.2d 865, 868 (Minn. 1979) (stating that this court,
not the district court, should independently review a city councils zoning decision and
concluding that the denial of a building permit was arbitrary).
Unlike the wrongful-discharge and unlawful-discrimination claims in Dietz and
Willis, the rights and liabilities of the parties in this case are not fixed by the propriety
of the [C]ountys decision to deny Zwebers plat and re-subdivision applications. Willis,
555 N.W.2d at 282. Each of Zwebers constitutional claims can be adjudicated without
inquiring into the validity of the Countys decisions. Indeed, Zweber does not request
injunctive relief seeking to undo the Countys decisions, which contrasts sharply with
14

the reinstatement requests made in Dietz and Willis. See Dietz, 487 N.W.2d at 240
([Dietzs] request for reinstatement and damages for mental anguish highlights the fact
that her claim is not an ordinary action for failure to perform on a contract for goods or
services.); Willis, 555 N.W.2d at 282. And Zweber does not use creative pleading to
bring a veiled challenge to the validity of the Countys decisions. Cty. of Washington,
818 N.W.2d at 542.
The County nevertheless raises a public-policy objection to allowing Zwebers
claims to proceed. The County complains that dividing the review of quasi-judicial
decisions and the adjudication of any derivative claims unnecessarily subjects local
governmental entities to expanded liability and protracted proceedings. The County
instead suggests that the better procedure would have been for Zweber to have first
argued in a petition for a writ of certiorari that the conditions placed on approval of his
plat were unconstitutional, and then, if the court of appeals had accepted his argument,
subsequently pursued a takings claim in district court. However, nothing in Minn. Stat.
606.01, nor in our case law, suggests that such an approach is required.
The County also fails to explain how the court of appeals can adjudicate
constitutional claims of the type presented here, which ordinarily involve conflicting
evidence and disputed facts. After all, a writ of certiorari is not a writ upon which to try
issues, State v. Canfield, 166 Minn. 414, 415, 208 N.W. 181, 181 (1926), and the court
of appeals, as an appellate tribunal, cannot weigh evidence as a trier of fact, Nelson,
859 N.W.2d at 294. Accordingly, the Countys objection does not change our conclusion
that, regardless of whether the Countys decisions on the plat and re-subdivision
15

applications were legislative or quasi-judicial, the district court has jurisdiction to

adjudicate Zwebers constitutional claims.
III.
For the foregoing reasons, we reverse the decision of the court of appeals and
remand to the district court for further proceedings consistent with this opinion.5
Reversed and remanded.
HUDSON, J., took no part in the consideration or decision of this case.
CHUTICH, J., not having been a member of this court at the time of submission,
took no part in the consideration or decision of this case.

We acknowledge that the district court will likely need to make a decision on
Zwebers inverse-condemnation claim before it can adjudicate his section 1983 takings
claim. See Williamson Cty. Regl Planning Commn v. Hamilton Bank, 473 U.S. 172,
195 (1985) (holding that a partys section 1983 takings claim is not ripe until it has used
the procedure [provided by the state] and been denied just compensation).

16

CONCURRENCE
GILDEA, Chief Justice (concurring).
I agree with the majority that the district court has subject-matter jurisdiction over
a propertys owners takings and equal protection claims under 42 U.S.C. 1983 (2012).
The majority holds that certiorari review is exclusive when a claim requires an inquiry
into the validity of a quasi-judicial decision. While this factor may be relevant, I believe
that the majority misapplies this factor in this case and that the analysis of the jurisdiction
question is otherwise incomplete. I conclude, in accordance with long-established legal
principles, that the constitutional claims are not subject to certiorari review because the
property owner has a statutory remedy outside the certiorari process.

Therefore, I

respectfully concur.
Following years of failed efforts to develop his property in Credit River Township,
Mark Zweber brought this action in Scott County District Court. Zweber asserted claims
under 42 U.S.C. 1983, alleging that (1) Scott County violated his equal protection rights
by intentionally treating him differently from similarly situated property owners, and
(2) Scott County took his property without just compensation by imposing improper
conditions on the approval of his plat application. Zweber sought damages under section
1983 for the alleged violation of his rights under the Equal Protection Clause of the
Fourteenth Amendment and the Takings and Just Compensation Clauses of the Fifth
Amendment. He also sought a writ of mandamus under Minn. Stat. 586.01.12
(2014) to compel the commencement of eminent domain proceedings.

C-1

At issue here is the subject-matter jurisdiction of the district court over Zwebers
constitutional claims. Although we have distinguished between legislative and quasijudicial decisions in resolving questions of subject-matter jurisdiction, see, e.g., Dead
Lake Assn, Inc. v. Otter Tail Cty., 695 N.W.2d 129, 134-35 (Minn. 2005), we have long
held that [t]he writ of certiorari is an extraordinary remedy that is not granted where
there is an adequate remedy in the ordinary course of the law, Nelson v. Schlener,
859 N.W.2d 288, 292 (Minn. 2015) (quoting Aastad v. Bd. of Cty. Commrs, 260 Minn.
357, 359, 110 N.W.2d 19, 20 (1961)); see also State v. Bd. of Pub. Works of City of Red
Wing, 134 Minn. 204, 205, 158 N.W. 977, 977 (1916) (Certiorari will not lie if the
relators have other adequate remedy.).

And we have specifically recognized that

[c]ertiorari is appropriate to review quasi-judicial proceedings only where there is no

appeal and no other adequate remedy. White Bear Rod & Gun Club v. City of Hugo,
388 N.W.2d 739, 741 (Minn. 1986).
The majority does not address whether Zweber has an adequate legal remedy, and
the majority rejects the separate and distinct test applied by the court of appeals,
Zweber v. Credit River Twp., No. A14-0893, 2015 WL 1128985, at *4 (Minn. App.
Mar. 16, 2015). Instead, the majority announces a single, simple rule: certiorari review
is exclusive when a claim requires an inquiry into the validity of a quasi-judicial
decision. In previous appeals involving issues of jurisdiction, we have considered
whether the underlying basis of the claim requires review of a municipalitys quasijudicial decision to determine its validity. Cty. of Washington v. City of Oak Park
Heights, 818 N.W.2d 533, 542 (Minn. 2012); see also Willis v. Cty. of Sherburne,
C-2

555 N.W.2d 277, 282-83 (Minn. 1996). But we also have considered whether the claims
are separate and distinct. Williams v. Smith, 820 N.W.2d 807, 814 (Minn. 2012). In
Williams, we held that a tort claim that is separate and distinct from the government
agencys employment decision and does not involve any inquiry into the agencys
discretionary decision is not subject to certiorari review. Id. In fact, we specifically
concluded that a negligent misrepresentation claim, brought by a candidate for an
assistant basketball coach position at the University of Minnesota, was not subject to
certiorari review because it is separate and distinct from the Universitys decision not to
hire him. Id. at 815 (emphasis added). Thus, the majority decline[s] to adopt a test
we have already adopted.1
In any event, the majority resolves this appeal based on the conclusion that
Zwebers constitutional claims do not require an examination into the validity of the
Countys quasi-judicial decisions. The majority explains that if an aggrieved partys
claim requires a court to inquire into the validity of a quasi-judicial decisionthat is,
whether the decision was unreasonable, arbitrary, or capriciousthen the party may raise
such a claim only in a petition for a writ of certiorari filed with the court of appeals.

The majority recognizes that we characterized the defamation claims from Willis
v. County of Sherburne, as separate and distinct from the Countys decision to terminate
Williss employment in deciding that they were not subject to certiorari review.
555 N.W.2d at 282. Nonetheless, the majority explains that we used the phrase to
describe the relationship between Williss defamation claims and the Countys
termination decision, not to announce a new test. That may be true, but in Williams, we
explained that we were exten[ding] . . . our reasoning in Willis in concluding that a tort
claim was not subject to certiorari review where the claim was separate and distinct
from the Universitys employment decision. Williams, 820 N.W.2d at 814.
1

C-3

According to the majority, adjudicating Zwebers constitutional claims does not require a
court to inquire into the validity of the Countys quasi-judicial decisions because Zweber
is not challenging the validity of those decisions. For example, with regard to the takings
claim, the majority indicates that the complaint actually assumes [the] validity of the
Countys decisions.

The majority also determines that adjudicating Zwebers

constitutional claims does not depend upon the validity of the Countys quasi-judicial
decisions because Zweber is not seeking to undo those decisions; rather, he is seeking
only money damages.
I do not construe Zwebers claims the same way as the majority.

Zwebers

complaint focuses on the conditions the County imposed on the development of his
property, including the imposition of the barricade conditions, as well as his allegations
that the County treated him differently from similarly situated property owners. Among
other claims, Zweber alleges that (1) the imposition of the barricade conditions
constitutes an arbitrary, irrational, capricious, illegal and unconstitutional act; and
(2) the conditions the County placed upon his property throughout the development
process were unenforceable, illegal, without a rational basis, wholly arbitrary,
and motivated by the malicious or bad faith intent to injure Zweber. I have difficulty
seeing how the resolution of these claims would not require a court to inquire into the
validity of the Countys decisions to determine whether the decisions were unreasonable,
arbitrary, or capricious. The fact that Zweber is seeking money damages, and not the
reversal or modification of the Countys quasi-judicial decisions, goes to the remedy, not
the nature of the claims. Zweber is seeking money damages because development of the
C-4

property is no longer feasible as a result of the arbitrary conditions the County

imposed. As the majority recognizes, Zweber is seeking money damages for the wrongs
allegedly committed by County. A court would have to determine that the County
committed wrongs before awarding money damages for those wrongs. Consequently,
the majoritys conclusion that the constitutional claims do not require an inquiry into the
validity of a quasi-judicial decision is based on the false premise that Zwebers complaint
assumes that the conditions placed on his plat application were valid.
Notwithstanding my disagreement with the majoritys analysis, I conclude that the
district court has subject-matter jurisdiction over Zwebers constitutional claims. I base
my conclusion on the availability of a statutory remedy. As a threshold matter, a writ of
certiorari will not be issued where the party may have adequate relief against the
grievance of which he complains, and it should not be allowed or issued when there is a
remedy by appeal, or some other mode of review. State ex rel. Wischstadt v. Olson,
56 Minn. 210, 212-13, 57 N.W. 477, 477 (1894). In other words, the law does not
permit two remedies. See id. at 213, 57 N.W. at 477. If a statute provides a specific
process for review, certiorari review by the court of appeals is not available. Nelson,
859 N.W.2d at 292.2

The majority contends that I am answering the wrong question. Specifically, the
majority says that the issue in the case is whether certiorari review is the exclusive
remedy for the constitutional claims, not whether certiorari review is available. In my
view, the distinction the majority attempts to make is not meaningful. Obviously, if, as I
conclude, certiorari review is not available, then certiorari review does not offer any
remedy for the constitutional claims, exclusive or non-exclusive.

C-5

Accordingly, I would resolve this appeal by holding that certiorari review by the
court of appeals was not available to Zweber because he has a statutory remedy under
42 U.S.C. 1983 for the alleged violation of his constitutional rights. It is well settled
that federal and state courts have concurrent jurisdiction over constitutional claims
arising under section 1983. Maine v. Thiboutot, 448 U.S. 1, 3 n.1 (1980); see also
Haywood v. Drown, 556 U.S. 729, 735 (2009) (noting that state courts as well as federal
courts are entrusted with providing a forum for the vindication of federal rights violated
by state or local officials acting under color of state law). Therefore, because a section
1983 action is available to challenge the constitutionality of the Countys actions,
certiorari review is not appropriate to decide the constitutional claims. See, e.g., Honn v.
City of Coon Rapids, 313 N.W.2d 409, 414 (Minn. 1981) (stating that certiorari is
considered an extraordinary remedy to redress obvious defects of justice for which no
ordinary remedy is available).
We reached a similar result in Willis, 555 N.W.2d at 283, where we addressed
whether the district court had subject-matter jurisdiction over a county employees
disability discrimination claim under the Minnesota Human Rights Act. See Minn. Stat.
363A.08, subd. 3 (2014).

We concluded that the disability discrimination claim

belonged in the district court because of the availability of a statutory cause of action
under the Minnesota Human Rights Act, even though prosecution of the alleged
violation of the Minnesota Human Rights Act may implicate at least some aspects of the
decision to discharge. 555 N.W.2d at 283. I see no reason to treat the availability of a

C-6

statutory cause of action under 42 U.S.C. 1983, a federal civil rights statute, differently
from a statutory cause of action under the Minnesota Human Rights Act.
Moreover, the limited and deferential nature of certiorari review is not
compatible with judicial review of alleged constitutional violations by county officials
under 42 U.S.C. 1983. Williams, 820 N.W.2d at 813; see Tischer v. Hous. & Redev.
Auth. of Cambridge, 693 N.W.2d 426, 429 (Minn. 2005) (explaining that quasi-judicial
decisions of executive bodies are granted deference by the judiciary to avoid usurpation
of the executive bodys administrative prerogatives). Further, the litigation of most
constitutional claims will involve conflicting evidence and disputed facts; however, a writ
of certiorari is not a writ upon which to try issues. State v. Canfield, 166 Minn. 414,
415, 208 N.W. 181, 181 (1926) (No evidence is taken, no findings of fact or conclusions
are made, and there is no judgment in the usual sense.). The court of appeals does not
weigh evidence as a trier of fact. Nelson, 859 N.W.2d at 294. Therefore, regardless of
the other obstacles to jurisdiction in the court of appeals, constitutional claims simply are
not suited to certiorari review in the court of appeals.3

In addition, there are constitutional concerns associated with the majoritys

implicit determination that some section 1983 claimsthose that do challenge the
validity of a countys decisionsshould be resolved by writ of certiorari. See
Charchenko v. City of Stillwater, 47 F.3d 981, 983 n.2 (8th Cir. 1995) (cautioning that a
Minnesota state courts ruling that a section 1983 claim may not be brought in the state
trial court, and presumably must therefore be appended to a certiorari proceeding in the
state appellate court, may well be suspect under the Supremacy Clause and Felder v.
Casey, 487 U.S. 131, 138 (1988)); cf. Haywood v. Drown, 556 U.S. 729, 740 (2009)
(holding that a state is not at liberty to shut the courthouse door to federal claims that it
considers at odds with its local policy by channeling section 1983 claims against state
correction officers into a court of claims with limited remedies and strict procedural
(Footnote continued on next page.)
3

C-7

The majority does not consider the availability of a statutory cause of action. Not
only is the availability of a statutory cause of action omitted from the majoritys analysis,
but the majority affirmatively rejects the rule that a party may file a petition for a writ of
certiorari to review a local governmental entitys quasi-judicial decision only when an
adequate remedy at law is unavailable. But this rule is not a new rule or a proposed
rule. This rule has been an essential part of our jurisprudence on the availability of
certiorari review for nearly 100 years. E.g., State v. Bd. of Pub. Works, 134 Minn. 204,
205, 158 N.W. 977, 977 (1916) (Certiorari will lie to review the quasi judicial
proceedings of municipal boards only when there is no right of appeal and no other
adequate remedy., quoted in Aastad v. Bd. of County Commrs, 260 Minn. 357, 359,
110 N.W.2d 19, 21 (1961)); see also Cty. of Washington v. City of Oak Park Heights,
818 N.W.2d 533, 539 (Minn. 2012) (When a statutory right to review a municipal
bodys quasi-judicial decision is lacking, we have concluded that certiorari is an
appropriate, or the exclusive, method to seek judicial review. (emphasis added)).
The majority suggests that we have impliedly abrogated this longstanding rule by
sustaining certiorari review of certain quasi-judicial decisions, even though the plaintiffs
in those cases had sought to bring actions under Minnesotas Declaratory Judgments Act,
Minn. Stat. 555.01.16 (2014). E.g., Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d
(Footnote continued from previous page.)
requirements). In any event, [t]he deprivation of state court subject matter jurisdiction
in 1983 suits does not affect the federal district courts original jurisdiction.
Charchenko, 47 F.3d at 983. Accordingly, the majoritys holding may also undermine
the federal aim of uniform treatment of section 1983 cases in federal and state courts.
See Wilson v. Garcia, 471 U.S. 261, 279 (1985).

C-8

671, 677 (Minn. 1990); Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510, 519
(Minn. 1983). The majoritys reliance on these cases is misplaced because there was no
statutory right of review in those cases. A declaratory judgment action is a procedural
device through which parties may vindicate substantive legal rights. Weavewood, Inc. v.
S & P Home Inv., LLC, 821 N.W.2d 576, 577 (Minn. 2012). And the underlying
substantive law . . . forms the foundation for a declaratory judgment action. Id. at 579
(stating that a complaint requesting declaratory relief must present a substantive cause of
action that would be cognizable in a nondeclaratory suit (citation omitted) (internal
quotation marks omitted)).

In the cases the majority cites, there was no statutory

substantive law providing for review of the school board decisions and the individuals
challenging the school board decisions did not have an adequate legal remedy; certiorari
review was therefore available.

See Dokmo, 459 N.W.2d at 677 (holding that a

declaratory judgment action is not a proper procedure for challenging school board
decisions); Moberg, 336 N.W.2d at 519 (concluding that a declaratory judgment action is
not the proper form of action for challenging a school closing decision). In this case,
by contrast, the claims are grounded in statute, 42 U.S.C. 1983, and there is an adequate
remedy at law.4

The general availability of a declaratory judgment action in the municipal zoning

context precludes certiorari review because the Legislature has provided for judicial
review of zoning decisions of cities, towns, and county boards of adjustment in the
district court. See Minn. Stat. 394.27, subd. 9 (2014) (providing that any person
aggrieved by a decision of a county board of adjustment has the right to appeal to the
district court); Minn. Stat. 462.361, subd. 1 (2014) (providing that [a]ny person
aggrieved by a decision of a governing body or board of adjustments and appeals acting
(Footnote continued on next page.)
C-9

In sum, I would hold that the district court has subject-matter jurisdiction over
Zwebers constitutional claims, without any inquiry into whether resolution of the claims
requires an examination into the validity of the Countys decisions. I rely instead on our
well-established law holding that certiorari review is not available for statutory causes of
action.

(Footnote continued from previous page.)

pursuant to the Municipal Planning Act may have the decision reviewed by an
appropriate remedy in the district court). Based on these statutes, the general rule is
that even quasi-judicial zoning actions should be reviewed in district court, not by
certiorari review in the court of appeals. Interstate Power Co. v. Nobles Cty. Bd. of
Commrs, 617 N.W.2d 566, 574 n.5 (Minn. 2000); see Mendota Golf, LLP v. City of
Mendota Heights, 708 N.W.2d 162, 178 (Minn. 2006) (stating that the proper procedure
for reviewing a citys decision in a zoning matter generally will be a declaratory
judgment action (footnote omitted)). The quasi-judicial zoning decisions of Scott
County at issue here happen to fall within a narrow exception to that general rule,
which exists because the legislature has not provided for judicial review of zoning
decisions of county boards. Interstate Power Co., 617 N.W.2d at 574 n.5.
Consequently, the majoritys broad rule that certiorari review is exclusive when a claim
requires an inquiry into the validity of a quasi-judicial decision does not account for
matters where there is a statutory cause of action or a statutory right of review.

C-10