Jayson Jammer Moore, 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This opinion will be unpublished and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
A18-1181

Jayson Jammer Moore,
Respondent,

vs.

2004 Chevrolet Pickup Truck,
Appellant.

Filed August 26, 2019
Reversed and remanded
Connolly, Judge

Wright County District Court
File No. 86-CV-17-2636

Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota (for respondent)

Thomas N. Kelly, Wright County Attorney, Greg T. Kryzer, Assistant County Attorney,
Buffalo, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Connolly, Judge; and
Peterson, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges the summary judgment granted to respondent owner-driver in
this driving-while-impaired (DWI) forfeiture proceeding, arguing that the forfeiture statute
was not unconstitutional as applied to respondent . Because re cent caselaw indicates that
delaying the hearing on respondent’s demand for judicial determination of the forfeiture
pending resolution of the criminal charges against him did not deprive respondent of due
process, we reverse and remand.
FACTS
In May 2017, respondent Jayson Moore was arrested for DWI, served with a notice
of seizure and intent to forfeit his vehicle, and charged with felony DWI; he also filed a
demand for judicial determination of the forfeiture. The criminal matter was concluded in
February 2018, when respondent pleaded guilty and was sentenced to 54 months in prison;
the sentence was stayed, and respondent was placed on probation.
Respondent filed a memorandum of law challenging the constitutionality of the
forfeiture statute, Minn. Stat § 169A.63 (2016), and asked the district court to dismiss the
forfeiture. He did not notify the attorney general of his challenge. Appellant moved for
summary judgment.
In April 2018, this court released Olson v. One 1999 Lexus, 910 N.W.2d 72 (Minn.
App. 2018) (holding that the forfeiture statute did not violate procedural due process on its
face but did violate procedural due process as applied to both the vehicle’s owner and the

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arrested driver, who were denied post -seizure judicial determination of the forfeiture for
more than 18 months), review granted (Minn. June 19, 2018) (Olson I).
Respondent filed a second memorandum challenging the constitutionality of Minn.
Stat § 169A.63, again without notifying the attorney general, and the district court held a
hearing on appellant’s summary-judgment motion.
The district court denied appellant’s motion, granted summary judgment sua sponte
to respondent, who had not moved for it , and ordered the pickup truck returned to
respondent. The appeal from that summary judgment was stayed until the supreme court’s
filing of Olson v. One 1999 Lexus , 924 N.W.2d 594 (Minn. 2019) (affir ming this court’s
determination that Minn. Stat § 169A.63 , while not constitutionally invalid on its face ,
violated the due -process rights of the purportedly innocent owner , but reversing the
determination that the statute violated the due-process rights of the arrested and convicted
driver) (Olson II).
Appellant relies on Olson II to challenge the district court’s determination that the
statute violated respondent’s due-process rights and was unconstitutional as applied to him.
D E C I S I O N
On an appeal from summary judgment, this court revie ws de novo whether the
district court properly applied the law and whether any genuine issues of material fact
preclude summary judgment. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC , 790
N.W.2d 167, 170 (Minn. 2010).

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As a threshold matter, appellan t argues that respondent’s failure to notify the
Minnesota Attorney General of his challenge to the constitutionality of a Minnesota statute
deprived both the district court and this court of jurisdiction.
A party that files . . . [a] document drawing in to question the
constitutionality of a . . . state statute must promptly: (1) file a
notice of constitutional question stating the question and
identifying the document that raises it, if: . . . a state statute is
questioned and neither the state nor any of its agencies,
officers, or employees is a party in an offi cial capacity; and
(2) serve the notice and document . . . on the Minnesota
Attorney General if a state statute is challenged . . . to afford
the Attorney General an opportunity to intervene.

Minn. R. Civ. P. 5A; see also Minn. R. Civ. P. 5A 2007 advisory comm. note (“[I]n many
instances intervention will not be sought until the litigation reaches the appellate courts.”).
While we agree with appellant that respondent’s violation of Minn. R. Civ. P. 5A
could have resulted in a dismissal of his complaint by the district court or a dismissal of
his appeal by this court, we address the merits of the appeal for the sake of completeness
and in the interest of justice under Minn. R. Civ. App. P. 103.04 (“The appellate courts
may reverse, affirm, or modify the judgment or order appealed from or take any other
action as the interest of justice may require.”).
The district court based its conc lusion that the statute was unconstitutio nal as
applied to respondent on Olson I, quoting it for the proposition that “the administrative and
fiscal burden of requiring a prompt, meaningful judicial review of the initial and continued
validity of a prehear ing seizure, as required by other vehicle -forfeiture statutes, is
minimal.” Olson I, 910 N.W.2d at 80. The owner and the driver in Olson waited 18 months
for judicial review; respondent here waited 11.

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But in Olson II, the supreme court made a distinction that this court had not made
between the two owners of the seized vehicle, one of whom was purportedly innocent while
the other was the arrested and convicted driver.
Because [the driver’s] private interest in the [vehicle] is
less significant, because the State’s interest [in keeping drunk
drivers off the road] is significant, and because the pre-seizure
process for determining whether the ultimate forfeiture is
authorized is reliable, we hold that while [the driver] waited for
18 months for a hearing on the demand for judicial
determination pending the resolution of her criminal charges,
Minn. Stat. § 169A.63, subd. 9(d), is constitutional as applied
to her.

Olson II, 924 N.W.2d at 611 -12. Respondent’s private interest in his vehicle was more
significant than that of the driver in Olson II because, unlike her, respondent did not have
three prior DWI incidents in the last decade, so that factor favors respondent. But the
state’s interest in keeping drunk drivers off the road is equally significant here, and the
preseizure process for determining that the forfeiture was authorized is equally reliable, so
those two factors favor appellant. Thus, the reasoning of Olson II applies and supports
reversing the grant of summary judgment.
Reversed and remanded.