Kevin Eric Janssen, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1015

Kevin Eric Janssen, petitioner,
Respondent,

vs.

2012 Harley Davidson Motorcycle,
Lic. No.: MN 19097MH, VIN: 1HD1LH318CC413719,
Appellant.

Filed August 19, 2019
Reversed
Ross, Judge

Dakota County District Court
File No. 19WS-CV-16-1497

Samuel A. McCloud, The Law Office of Samuel A. McCloud, Lindstrom, Minnesota
(for respondent)

Jeremy P. Knutson, Mendota Heights Prosecuting Attorney, Conor E. Tobin, Assistant City
Attorney, Grannis & Hauge, P.A., Eagan, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
The Minnesota State Patrol impounded Kevin Janssen’s motorcycle after he rode it
drunk, and the state charged him with second-degree driving while impaired. Janssen
offered to plead guilty to a different charge—one that would not subject the motorcycle to
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forfeiture, but the prosecutor declined. The district court held that the state patrol’s desire
to keep the motorcycle constituted an unconstitutional conflict of interest, and it invalidated
the forfeiture. The district court also reasoned that our now partially reversed decision in
Olson v. One 1999 Lexus MN License Plate No. 851LDV VIN: JT6HF10U6X0079461,
910 N.W.2d 72 (Minn. App. 2018), aff’d in part and rev’d in part, 924 N.W.2d 594 (Minn.
2019), rendered the state’s 15-month preconviction deprivation of Janssen’s motorcycle
unconstitutional on due-process grounds. We reverse because the supreme court partially
invalidated Olson and because the district court improperly constructed an unsupported
“conflict-of-interest” theory; the theory violated the separation of powers by invading the
prosecutor’s statutory and constitutional discretion to pursue forfeiture of a defendant’s
property seized in the commission of a crime while also prosecuting the defendant for
committing the crime.
FACTS
A state trooper stopped Kevin Janssen’s motorcycle in Mendota Heights, suspecting
drunken driving . Janssen had bloodshot eyes, clumsily dismounted his motorcycle, and
refused to perform field sobriety tests. The trooper arrested Janssen, who gave two breath
samples that revealed a blood alcohol content of 0.166 and 0.163. The state charged him
with second-degree driving while impaired. The state patrol exercised its forfeiture power
over the motorcycle under Minnesota Statutes, section 169A.63 (2018).
Janssen tried unsuccessfully to persuade the prosecutor not to pursue forfeiture of
the motorcycle. He wrote the prosecutor offering to pay $1,000 and promising not to ride
it for two years. He said he would plead guilty t o a lesser impaired -driving offense that
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would not trigger the state patrol’s forfeiture power. The prosecutor explained that the state
patrol wanted to pursue forfeiture, and it needed a conviction for the second-degree offense
to do so. Janssen proceeded to a bench trial, and the district court found him guilty.
Janssen moved the district court to declare the forfeiture statute unconstitutional on
its face or as applied in this case. He argued that the prosecutor’s interest in forfeiting his
motorcycle created a conflict of interest that violated his constitutional right to due process.
The district court was persuaded by the argument, and it ordered the state to return the
motorcycle and pay for its storage. It also considered the constitutionality of the forfeiture
based on our decision in Olson and concluded that a 15- month delay between the
motorcycle’s seizure and the hearing on forfeiture constituted a violation of Janssen’s
due-process rights. The state appeals.
D E C I S I O N
The state argues that the district court erred by holding the forfeiture statute
unconstitutional. We review de novo. See Olson v. One 1999 Lexus MN License Plate No.
851LDV VIN: JT6HF10U6X0079461, 924 N.W.2d 594, 601 (Minn. 2019).
The district court cited two theories under which it held the forfeiture
statute unconstitutional as applied to Janssen. The first was a prosecutorial
conflict-of-interest theory. The second arose from our decision in Olson, where we held
that an 18- month delay between the state’s seizure of a vehicle and a hearing on its
forfeiture deprived the non-owner driver of due process. Olson, 910 N.W.2d at 74. The
supreme court has since rejected that rationale. Olson, 924 N.W.2d at 608–12. Janssen
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properly concedes that the district court’s decision cannot rest on our reasoning in Olson.
We turn to the district court’s constitutional conflict-of-interest theory.
The state argues that the district court erred by holding essentially that the
prosecutor was required to accept Janssen’s offer to plead guilty to a lesser charge and
abandon its forfeiture of the motorcycle. An owner of forfeited property may petition the
prosecutor to remit the forfeiture. Minn. Stat. § 169A.63, subd. 5a (2018). And the
prosecutor may accept the petition if the forfeiture resulted from the owner’s innocent
conduct or an extenuating circumstance. Id. The district court reasoned that this statutory
arrangement violated Janssen’s due-process rights because it created “the appearance of a
conflict of interest” in the prosecutor “and the potential f or bias in the decision making
process.” The district court elaborated, stating, “The State has an obligation to protect
public safety and act in the interest of justice, not to act out of its own financial interest in
the outcome of a criminal proceeding.” The district court cited no precedent supporting its
apparent rule of law that the Due Process Clause prohibits the state from prosecuting a
defendant fully while also exercisin g its discretion to pursue the statutorily forfeitable
instruments of the defendant’s criminal conduct. It is true that the Supreme Court has said
that ensuring neutrality in all governmental decision- making “is of particular
importance . . . where the Government has a direct pecuniary interest in the outcome of the
proceeding” and that the circumstance may prompt greater judicial scrutiny. United States
v. James Daniel Good Real Prop., 510 U.S. 43, 55–56, 114 S. Ct. 492, 502 (1993). But we
have found no precedential case in Minnesota or in any federal appellate court invalidating
either a forfeiture or conviction based on a supposed prosecutorial conflict of interest
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arising from the relationship between the prosecutor’s desire to pursue forfeiture and a
forfeiture-based motive for prosecution.
Even if a federal or state constitutional doctrine authorized the judiciary to enjoin
the executive branch from making discretionary forfeiture or prosecution decisions on
conflict-of-interest grounds, the district court here identified no real conflict. The
prosecutor’s interest in seeking justice, prosecuting criminal behavior, and securing
forfeitable property are not in per se “conflict” merely because the state has a pecuniary
interest in the outcome. A conflict of interest arises when an attorney’s ability to represent
his client is materially limited as a result of other commitments or interests. See Minn. R.
Prof. Conduct 1.7. We see no such conflict here. Both conviction and forfeiture serve the
state’s interest.
“The prosecutor’s decision whom to prosecute and what charge to file is a
discretionary matter which is not subject to judicial review” without evidence of some
invidious motive to discriminate against a protected class. State v. Herme, 298 N.W.2d
454, 455 (Minn. 1980). The district court’s suggestion that the prosecutor had a duty to
bargain with Janssen encroaches on a prosecutorial decision that “rests entirely in his
discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668–69 (1978). The
district court’s bright-line rule unconstitutionally interfered with the prosecutor’s function
and requires reversal.
The state argues that the district court also erred by requiring it to pay the costs of
storing Janssen’s motorcycle. No law enforcement, government, or state agency is
responsible for any storage fees resulting from the impoundment of a vehicle driven by an
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impaired driver. Minn. Stat. § 169A.42, subd. 4 (2018). The forfeiture statute similarly
prevents the government from being held responsible for storage costs. Minn. Stat.
§ 169A.63, subd. 7(b) (2018) (providing that the appropriate agency deducts any storage
costs from a remission to a secured party after a sale of forfeited property). Based on our
decision that the district court erred in its constitutional holding and the fact that Minnesota
law does not support the district court’s order requiring the state to pay storage costs, we
reverse the order requiring the state to pay the costs.
Janssen argues that the state waived its right to challenge the district court’s
storage-costs decision by failing to raise it in its motion for reconsideration. The state did
not file a motion for reconsideration. The prosecutor filed a motion for relief from judgment
because the district court held a nonparty (the City of Mendota Heights), responsible for
returning the motorcycle and associated costs. The state did not waive its right to challenge
the storage-costs order.
Reversed.