Andrew Ellis, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0258

Andrew Ellis,
Appellant,

vs.

David A. Herberholz, in his official capacity, et al.,
Respondents.

Filed September 10, 2018
Affirmed
Ross, Judge

Hennepin County District Court
File No. 27-CV-16-18271

Andrew Ellis, Minneapolis, Minnesota (pro se appellant)

Susan L. Segal, Minneapolis City Attorney, George N. Henry, Assistant C ity Attorney,
Minneapolis, Minnesota (for respondents)

Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
The City of Minneapolis fined Andrew Ellis $100 for failing to dispose of yard
waste in compostable bags and storing items in the area designated for garbage removal.
Ellis sued the city seeking damages for alleged tort, constitutional, and ordinance
violations. The district court dismissed the complaint for lack of jurisdiction due to Ellis’s
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failure to exhaust his administrative remedies. Ellis argues on appeal that the city never
provided adequate notice to trigger the administrative process. Because we conclude that
the city’s notice was sufficient and Ellis c annot bring a civil action before exhausting the
available administrative remedies, we affirm.
FACTS
After the City of Minneapolis fined Andrew Ellis $100 for violating the city’s
ordinance provision regulating yard -waste disposal and prohibiting debris storage in the
area designated for garbage removal, Ellis filed a civil complaint in district court . The
complaint alleges that Ellis owns a rental duplex at 2102 and 2104 16th Avenue South. It
asserts that the city’s director of solid waste and recycling sent Ellis a letter addressed to
“2102-2106,” not “2102-2104.” The letter explained that “there was a problem with either
the contents of the cart(s) or [a problem] at the Solid Waste Collection Point (SWCP) along
[his] alley or curb line. This could include items such as: Uncontained Household Garbage,
Building Material, Litter, Carpet, Yard Waste, Hazardous Waste, Large Items, Tires and
Auto Parts.” The letter continued with a directive:
Yard Waste must be in composta ble bags. Brush must be 3
inches or less in diameter, tied in bundles with twine or rope
and weigh 40 pounds or less. Solid Waste Collection Point
(SWCP) must not be used as a storage area. Please cleanup the
area within 20 feet of your alley or curb SWCP. If this is not
done by 6 a.m. 11/16/2015, City crews will do so and a fee will
be added to your Minneapolis utility bill in accordance with
city ordinance #225.690. No matter what the origin of the
debris, you are responsible to clean the area.

According to Ellis’s civil complaint, the person responsible for the debris was Ellis’s
next-door neighbor and Ellis promptly directed his property manager to gather the debris
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and replace it onto the neighbor’s property. Two city employees mo ved the debris back
onto Ellis’s property near the garbage bins and photographed the bags. The city sent Ellis
another letter, fining him:
On 11/09/15, you were notified that garbage and rubbish were
in the area around the Solid Waste Collection Point (SWCP)
along your alley or curb line . . . , and that you were given until
6:00 a.m. on 11/16/15 to clean this area. Since you did not
clean the area, the clean-up was done by city crews. This is in
accordance with the city of Minneapolis Ordinance 225.690.

The charge for this cle an-up service is $100.00. This amount
will be added to the City of Minneapolis utility (water)
bill . . . .

You are responsible for keeping the area within 20 feet of your
alley or curb line clean and containing all rubbish and garbage
in the 90 -gallon ga rbage cart. Uncontained rubbish and
garbage outside your cart is a nuisance condition that threatens
public health and safety, and detracts from the livability of the
neighborhood.

If you have any questions concerning this matter, please do not
hesitate to call us at 612-673-2917.

The city included the $100 fine on Ellis’s utility bill, which also directed Ellis to
call a specified phone number “for an explanation of the charges shown on your bill” and
invited him to “notify the Utility Billing Office in writing” if he wished “to dispute any
charge(s).” Ellis did not call for an explanation or notify the city in writing to dispute the
charge.
The city moved the district court to dismiss Ellis’s complaint for failure to exhaust
the administrative procedures available through the utility -bill challenge process. The
district court granted the motion. Ellis appeals.
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D E C I S I O N
Ellis challenges the district court’s rule -12.02(a) dismissal of his civil complai nt.
We review a district court’s rule-12.02(a) dismissal de novo. See Egan v. Hamline United
Methodist Church, 679 N.W.2d 350, 353 (Minn. App. 2004).
The district court based its dismissal on its lack of subject -matter jurisdiction.
Whether subject-matter jurisdiction exists is a question of law that we also review de novo.
Nelson v. Schlener, 859 N.W.2d 288, 291 (Minn. 2015). The district court lacks jurisdiction
over claims that can be remedied through, but have not been addressed in, an administrative
process. Minnesota Exp., Inc. v. Travelers Ins. Co. , 333 N.W.2d 871, 87 2 (Minn. 1983).
Whether a person must avail himself of administrative remedies before bringing a civil
action is a question of law we address de novo. Zaluckyj v. Rice Creek Watershed Dis t.,
639 N.W.2d 70, 74 (Minn. App. 2002) , review denied (Minn. Apr. 16, 2002) . Ellis
maintains that he was not required to contest the fine in the administrative process before
filing his civil complaint for two reasons. First, he maintains that the city never performed
any action that would invoke the administrative process and trigger his duty to exhaust
administrative remedies. Second, he maintains that he is excused from the exhaustion
requirement because h is civil complaint raises declaratory, monetary, and constitutional
claims that the city’s administrative process could not resolve. The arguments fail.
We reject Ellis’s contention that the city never triggered an administrative process.
The doctrine of exhausting administrative remedies “presupposes that some action has been
taken by the administrative agency.” State ex rel. Sholes v. Univ. of Minn., 54 N.W.2d 122,
126 (Minn. 1952). Ellis maintains that the city never trigger ed the doctrine because the
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city’s notices were incorrectly addressed, directed to the wrong party, and failed to
specifically describe the violations. But the warning letter was addressed to Ellis, and it
informed him of “a problem with either the contents of the cart(s) or at the So lid Waste
Collection Point” near the “alley or curb line.” And the violation letter informed him that
the city concluded that “garbage and rubbish were in the area around the Solid Waste
Collection Point . . . along your alley or curb line.” Finally, the utility bill included the fine
and announced precisely how Ellis could administratively challenge it. The city’s code
requires only that the notice “[i]nclude a description of the real estate sufficient for
identification.” Minneapolis, Minn., Code of Ordin ances § 244.150(b) (2018). That the
warning letter was off by one digit for one of the duplex addresses (and correct for the other
one) did not cause the notice to fail to reach Ellis. He received it and promptly took
responsive action, sending his property manager to investigate.
Ellis argues that a letter should have also been sent to his neighbor, whom he claims
was the source of the debris . But the city based the violation on what it discovered on
Ellis’s property, not on the neighbor’s. The code requires that the notice “[b]e served upon
the owner, or the operator, or the occupant, as the case may require.” MCO § 244.150(e)
(2018). Ultimately, whether or not the neighbor received notice has no bearing on the
relevant issue, which is whether Ellis received notice sufficient for him to make an
administrative challenge.
The city’s code outlines the steps that would have followed. Had Ellis raised his
dispute administratively as directed, the city’s billing office would have first attempted to
resolve his challenge informally. See MCO § 509.920(a) (2018). If Ellis was not satisfied,
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he could have formalized his complaint, which would have re sulted in a formal decision.
Id. (a), (b) (2018). If Ellis disagreed with that formal decision, he could have then appealed
it to an impartial hearing officer. Id. (c) (2018). The hearing officer would have taken
evidence, heard testimony, made fact findings, and notified Ellis of the final decision. MCO
§ 509.930 (2018). That final decision would have constituted the end of the administrative
process, and Ellis’s claims would be ripe for judicial review. Id. (f) (2018) (“A bill payer,
customer or applicant who disagrees with the hearing officer’s decision may thereafter seek
any judicial remedy provided by law.”). Because Ellis, who was fully informed, never took
the first step, he never reached the end of the plainly triggered, administrative -review
process.
Ellis argues that he is exempt from the exhaustion requirement because he included
constitutional and other claims that the city’s administrative process could not resolve. The
argument is unavailing. Vague assertions of constitutional deprivations, like Ellis’s
generalized complaint that he was deprived of his constitutional rights because the $100
fine was a t aking, and his complaint that his due process rights were infringed when city
employees moved the debris, do not escape the administrative-exhaustion requirement. See
McGrath v. State, 312 N.W.2d 438, 441–42 (Minn. 1981). After the administrative process
has run its course, “[t]he alleged constitutional violations may be raised at the time of
judicial review.” Id. at 442.
We also conclude that Ellis cannot escape the administrative -exhaustion
requirement on the theory that raising an administrative challenge would have been futile.
When administrative proceedings would be futile, a party need not exhaust administrative
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remedies before filing a civil suit. Starkweather v. Blair, 71 N.W.2d 869, 884 (Minn. 1955).
Futility is too narrow a concept to help Ellis. Exhaustion is futile when “nothing can be
accomplished by resort to administrative remedies.” Id. For example, when a city’s
administrative process cannot provide any of the relief requested by a challenger, the
administrative process can fairly be described as futile. See McShane v. City of Faribault,
292 N.W.2d 253, 256 (Minn. 1980). Or when an administrative body “has no intention of
ever” granting any relief sought by a plaintiff, that too makes the process futile. See Amcon
Corp. v. City of Eagan, 348 N.W.2d 66, 71–72 (Minn. 1984). But Ellis’s complaint chiefly
challenges the $100 fine, and relieving him of some or all of the fine fits squarely among
the administrative remedies that were available to him. We reject Ellis’s futility argument.
Ellis contends that the district court did not apply the correct standard of review
when it granted the city’s motion to dismiss. We need not linger on this argument. Even if
the district court applied the wrong standard (and we do not think it did ), our assessment
of the issue is de novo, or, in English, anew. We have reviewed all the legal issues anew,
without deference to the district court, and we reach the same conclusion it reached: the
district court lacked subject -matter jurisdiction over Ellis’s civil complaint because Ellis
failed to exhaust his administrative remedies.
Affirmed.