Town of West Lakeland, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1992

Town of West Lakeland,
Respondent,

vs.

Karl E. Auleciems,
Appellant,

Susanne M. Auleciems,
Appellant,

Ethan Auleciems, et al.,
Defendants.

Filed January 11, 2021
Reversed and remanded
Johnson, Judge

Washington County District Court
File No. 82-CV-18-2962

Viet-Hanh Winchell, Andrea B. McAlpine, Galowitz Olson P.L.L.C., Lake Elmo,
Minnesota (for respondent)

Karl E. Auleciems and Susanne M. Auleciems, Lake Elmo, Minnesota (pro se appellants)

Considered and decided by Johnson, Pr esiding Judge; Larkin, Judge; and Bjorkman,
Judge.

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NONPRECEDENTIAL OPINION
JOHNSON, Judge
Karl E. Auleciems and Susanne M. Aule ciems own a large home on a large lot in
the Town of West Lakeland, which they have rented out on a short-term basis on numerous
occasions without obtain ing a permit. The to wnship commenced this action to stop the
Auleciemses from doing so. The township initially obtained a temporary restraining order
and a temporary injunction, and it later obtained a permanent injunction after a court trial.
The district court’s orders prohibited the Auleciemses from renting out their property
without obtaining a permit from the township. But th ey continued to do so. The district
court found the Auleciemses in civil contempt of court. We conclude that the district court
erred by imposing sanctions that are criminal in nature based on a finding of civil contempt.
Therefore, we reverse and remand.
FACTS
The Auleciemses own a home with seven bedrooms, nine bathrooms, and 14,000
square feet of space, which is located on a cul de sac in th e Town of West Lakeland, in
Washington County. Beginning in 2017, the Auleciemses a dvertised the home for short-
term rentals on websites such as HomeAway and VRBO. On several occasions in 2017
and 2018, the Auleciemses rent ed the home to persons hostin g special events with large
numbers of guests, such as weddings and fam ily reunions. The Auleciemses’ neighbors
frequently complained to the township about large numbers of people on the property and
on the roads leading to and from the property.

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The applicable West Lakeland zoning or dinance allows property owners in the
Auleciemses’ neighborhood to rent out their property only if they apply for and obtain a
permit. The Auleciemses did not apply for a permit before starting to rent out the property
in June 2017, and they never have obtained a permit. In February 2018, the chair of the
township board sent an e-mail message to Karl Auleciems st ating that he had received
complaints from the Auleciemses’ neighbors and that the Auleciemses must cease renting
out the home without a permit. An attorney for the township followed up a week later with
a cease-and-desist letter, which was sent by certified mail. Karl Auleciems responded with
a letter stating that the property had been rented out to KEASons Enterprises L.L.C. for the
entire 2018 calendar year, that th e township should direct future corre spondence to that
company, and that the company was informing the township that it should not trespass on
the property.
In June 2018, the township commenced this action against Karl Auleciems, Suzanne
Auleciems, and KEASons Enterprises L.L.C. The township sought relief in the form of an
order enjoining the Auleciemses from “operating and using any property in [the applicable
zoning district] for anything other than single family use pursuant to Town Code,” an order
“compelling [the Auleciemses] to comply with the Town Code,” and damages.
In early July 2018, the township moved for a temporary restraining order (TRO) to
compel the Auleciemses to remove all adver tisements for the prop erty and cancel all
existing rental agreements and to restrain them from renting out the property. The district
court granted the motion on an ex parte basis. In doing so, the district court scheduled a
hearing for late July 2018 on the township’s request for a temporary injunction. The

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Auleciemses did not attend that hearing. In early August 2018, the district court issued a
temporary injunction that reiterated the terms of the TRO.
In September 2018, the township moved to find the Auleci emses in “civil and
criminal” contempt of court for violating the TRO and temporary injunction by renting out
their home on six occasions since July 2018. The district court issued show-cause orders
requiring Karl Auleciems and Suzanne Aul eciems to appear for a hearing in early
November 2018. In Octobe r, the Auleciemses answered the complaint and asserted
counter-claims and moved for summary judgment and to dissolve the temporary injunction.
The township’s appellate brief states that th e district court conducted an “initial” show-
cause hearing in November 2018 and again in February 2019 and April 2019, but it appears
that no evidence was offered or received on those three dates.
In May 2019, the district court conducted a court trial on the merits of the township’s
complaint and, it appears, jointly conducte d an evidentiary hearing on the township’s
September 2018 contempt motion. In June 2019, the district court filed a 49-page order in
which it found that the Auleciemses had viol ated the township’s zoning ordinances and
concluded that the township was entitled to declaratory relief and a permanent injunction.
Specifically, the district c ourt enjoined the Auleciemse s from “renting/leasing the
property”; required the Auleciemses to “immediately and permanently remove all listings
and/or advertisements that the property . . . is for rent or lease from all rental websites,
including but not limited to HomeAway, VR BO, AirBNB etc.”; and “restrained [the
Auleciemses] from creating new listings to rent/lease the property.”

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In the same order, the district court also granted the township’s September 2018
contempt motion and found the Auleciemses in civil contempt for violating the TRO and
the temporary injunction between July 2018 and June 2019. The district court reserved
ruling on the township’s request that the Auleciemses be jailed and stated that its ruling on
that request would depend on the Auleciemse s’ compliance with its latest order. The
district court required the Auleciemses to certify their compliance with the district court’s
post-trial order by, within te n days, submitting a sworn statem ent that they had removed
all advertisements for rentals of their home. The district court further ordered that, if the
Auleciemses did not submit such certification, they would be required to pay $118,890 to
the township within 11 days of the post-trial order. In addition, the district court awarded
the township attorney fees and costs pursuant to section 588.11 of the Minnesota Statutes
in the amount of $35,386.
The Auleciemses appealed from the district court’s June 2019 order. This court
considered and rejected the Auleciemses’ argument that th ey did not violate the West
Lakeland zoning ordinanc e and their argument that the di strict court erred by awarding
attorney fees to the township. Town of West Lakeland v. Auleciems, No. A19-1211, 2020
WL 1130318, at *1-4 (Minn. App. Mar. 9, 2020), review denied (Minn. May 27, 2020).
This court did not consider the Auleciemses’ argument that the district court’s order
violated their Fourth Amendment rights on th e ground that the issue was not ripe. Id. at
*3. This court did not consider other argumen ts that had not been preserved or were not
adequately briefed. Id. at *3-4. The Auleciemses did not challenge the district court’s
finding of civil contempt. See id. at *1-4.

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Meanwhile, the Auleciemses timely filed a sworn statement that they had complied
with the district court’s permanent injunction by removing all advertisements for rentals of
their home. But the township questioned the veracity of the statement because it had
received additional reports of weekend rentals. The district court filed an order scheduling
another show-cause hearing. The district court conducted the show-cause hearing on two
days in August and September of 2019. The township calle d six witnesses—a neighbor
and five police officers. The township’s evidence showed that the Auleciemses had rented
out their home for weddings on numerous occas ions since the May 2019 trial. Karl
Auleciems testified that he had removed all lis tings for his property from the internet, as
required by the district court’s post-trial order, and testified further that he had not leased
out the home since the trial, but he also testified that he had “shared” the home with guests,
in exchange for compensation, while he or another resident remained on the property.
In October 2019, the district court filed a 21-page order in which it again found the
Auleciemses in civil contempt of court. The district court found that the Auleciemses had
rented out their home on 13 weekends between the conclusion of trial in May 2019 and
September 2019. Based on this finding, the district court imposed three primary sanctions.
First, the district court ordered the Auleciemses to pay a fine of $81,870. The district court
calculated the amount of the fine by finding th at the Auleciemses had received at least
$21,870 in income from three rentals and by estimating that they had received an additional
$60,000 from the other ten rentals (by assuming a rental fee of $1,500 per night, a cleaning
fee of $1,000 per rental, and a refundable de posit of approximately $2,000 per rental).
Second, the district court ordered the Auleciemses to pay the township’s costs and attorney

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fees related to the second show-cause order and gave the township 14 days to submit
evidence of the amount of its costs and fees. But the district court record indicates that the
township did not submit such evidence and that the distri ct court never entered a money
judgment for the town ship’s costs and fees. Third, the district court ordered the
Auleciemses to serve a jail term of 180 days, unless they fully paid the $81,870 fine, the
township’s attorney fees and costs related to the se cond show-cause order, and the
previously ordered $118,890 fine.
The Auleciemses appeal from the Octo ber 2019 order. We construe their pro se
brief to make three arguments: (1) the district court erred by finding them in civil contempt
of court but imposing criminal punishment base d on findings that they had violated court
orders in the past, not a finding that they were in ongoing noncompliance with court orders;
(2) the district court erred by admitting the tes timony of a police officer to the extent that
it contained hearsay and to the extent that it referred to matters disclosed by alleged
violations of their Fourth Amendment rights; and (3) the district court erred by imposing
criminal punishment that is not authorized by law and not supported by the evidence.1

1The Auleciemses also request that this court award them the attorney fees and costs
they incurred in defending against the contem pt charges. But the Auleciemses did not
preserve the argument by seeking attorney fe es and costs in the district court. See Thiele
v. Stich, 425 N.W.2d 580, 5 82 (Minn. 1988); Doe 175 v. Columbia Heights Sch. Dist. ,
842 N.W.2d 38, 42-43 (Minn. App. 2014). In addition, the Auleciemses have not cited any
legal authority that might jus tify such an award of attorney fees and costs, which is a
necessary prerequisite of such an award. See Van Vickle v. C.W. Scheurer & Sons, Inc. ,
556 N.W.2d 238, 242 (Minn. App. 1996), review denied (Minn. Mar. 18, 1997); Gerdin v.
Princeton State Bank, 414 N.W.2d 765, 768 (Minn. App. 1987).

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DECISION
As stated above, the Auleciemses argue that the district court erred by finding them
in civil contempt of court but imposing crim inal punishment based on findings that they
had violated court orders in the past, not a finding that they were in ongoing noncompliance
with court orders. The Auleciemses conte nd that “[c]ivil contempt proceedings are
designed to induce future performance of a valid court order, not to punish for past failure
to perform.” They contend further that a district court may not “punish past
nonperformance in a civil contempt proceeding.”
A.
By statute, there are “two kinds” of contempt in Minnesota: “direct and
constructive.” Minn. Stat. § 588.01, subd. 1 (2 018). A finding of contempt is direct in
nature if it “occur[s] in the i mmediate view and presence of the court, and arise[s] from”
either “disorderly, contemptuous, or insole nt behavior toward the judge while holding
court, tending to interrupt the due course of a trial or other judicial proceedings” or “a
breach of the peace, boisterous conduct, or violent disturbanc e, tending to interrupt the
business of the court.” Id., subd. 2. “A direct contempt may be punished summarily, for
which an order shall be made reciting the fa cts as occurring in the immediate view and
presence of the court or officer, and adjudging the person proceeded against to be guilty of
a contempt, and that the person be punished as therein spec ified.” Minn. Stat. § 588.03
(2018). On the other hand, a finding of contem pt is constructive in nature if it is “not
committed in the immediate presence of th e court, and of whic h it has no personal
knowledge” and if it arises from any one of 11 specified “acts or omissions.” Minn. Stat.

9
§ 588.01, subd. 3. The third of the specified acts or omissions is “disobedience of any
lawful judgment, order, or process of the court.” Id., subd. 3(3).
In addition, the caselaw recognizes anot her dichotomy based on the purpose of a
contempt order: civil contempt and criminal contempt. See State v. Tatum, 556 N.W.2d
541, 544 (Minn. 1996); see also D.D. Wozniak & Cynthia L. Lehr, Dealing with a Double-
Edged Sword: A Practical Guide to Contempt Law in Minnesota, 18 Wm. Mitchell L. Rev.
7, 9-12 (1992). A finding of contempt is civil in nature if it “impos[es] a sanction that will
be removed upon compliance with a court order that has been defied.” Tatum, 556 N.W.2d
at 544. “Civil contempt proceedings are designed to induce future performance of a valid
court order, not to punish fo r past failure to perform.” Mahady v. Mahady, 448 N.W.2d
888, 890 (Minn. App. 1989). Accordingly, “compliance with the order allows [the
contemnor] to purge himself and end the sanction.” Id. In civil contempt cases, “the only
objective is to secure comp liance with an order.” Hopp v. Hopp , 156 N.W.2d 212, 216
(Minn. 1968). “When the duty is performed, the concern of the court is satisfied.” Id. A
civil contempt order is intended to be “remedial rather than punitive because its purpose is
to coerce compliance with [a court] order, not to vindica te the authority of the court.”
Mower Cnty. Human Servs. v. Swancutt , 551 N.W.2d 219, 222 (Minn. 1996); see also
Minnesota State Bar Ass’n v. Divorce Assistance Ass’n, Inc., 248 N.W.2d 733, 741 (Minn.
1976).
On the other hand, a finding of contempt is criminal in nature if it “punish[es] the
contemnor for past behavior.” Tatum, 556 N.W.2d at 544. In this sense, criminal contempt
is an “offense[] against the dign ity of the state as a whole.” Peterson v. Peterson ,

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153 N.W.2d 825, 830 (Minn. 1 967). If a person is alleged to be in constructive criminal
contempt of court, the matter should be prosecuted by attorneys representing the state. Id.;
see also Tatum, 556 N.W.2d at 545 n.3; In re Cascarano, 871 N.W.2d 34, 38 (Minn. App.
2015). In addition, a person charged with constructive criminal contempt is entitled to the
protections ordinarily due a criminal defendant, such as a written complaint stating the
allegations of criminal conduct. See Peterson, 153 N.W.2d at 827; Wozniak & Lehr, supra,
at 22 (citing Minn. R. Crim. P. 2.01). A “pre requisite for an adjudication of constructive
criminal contempt” is “a clear definition of the acts to be performed.” Wozniak & Lehr,
supra, at 21. In addition, the accused is entitled to a trial by jury. See Peterson ,
153 N.W.2d at 830. And the pe rson has a right to give testim ony in his or her defense.
Krmpotich v. Krmpotich, 35 N.W.2d 810, 811 (M inn. 1949). As in other criminal cases,
the state must prove the elements of contempt beyond a reasonable doubt. State v. Binder, 251 N.W. 665, 668 (Minn. 1933).
Upon a finding of guilt of constructive cr iminal contempt, “the person shall be
punished by a fine of not more than $ 250, or by imprisonment in the county jail,
workhouse, or work farm for not more than six months, or by both.” Minn. Stat. § 588.10
(2018); see also Tatum, 556 N.W.2d at 545-46. If the contempt has caused “actual loss or
injury to a party in an action or special proceeding,” the district court may, in addition to
ordering a fine or imprisonment, order the guilty person “to pay the party aggrieved a sum
of money sufficient to indemnify the party and satisfy the party’s costs and expenses,
including a reasonable attorney’s fee incurred in the prosecution of such contempt.” Minn.
Stat. § 588.11 (2018); see also Bowman v. Bowman, 493 N.W.2d 141, 144-45 (Minn. App.

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1992); In re Marriage of Nelson, 408 N.W.2d 618, 622-23 (Minn. App. 1987); Time-Share
Sys., Inc. v. Schmidt, 397 N.W.2d 438, 441-42 (Minn. App. 1986).
B.
In this case, the district court stated in its October 2019 order that the Auleciemses
were in “civil contempt.” As stated above , “Civil contempt proceedings are designed to
induce future performance of a valid court order, not to punish for past failure to perform.”
Mahady, 448 N.W.2d at 890. But the district court did not find that the Auleciemses were
in ongoing noncompliance with its prior orders. In fact, the district court specifically found
that the Auleciemses had complied with the order that they remove all advertisements for
rentals. Rather, the conduct for which the district court fo und the Auleciemses in civil
contempt had occurred in the past. Specif ically, the district court found that the
Auleciemses had, on 13 occasions between May and September 2019, violated court orders
by renting out their home without a permit.
After finding the Auleciemses in civil cont empt, the district court ordered them to
comply with the temporary in junction and the permanent inju nction. Such an order is
consistent with the objectiv e of a civil contempt proceed ing, which is “to secure
compliance with an order.” Hopp, 156 N.W.2d at 216. But the district court also imposed
on the Auleciemses a fine of $81,870 and a 180-day jail term that could be lifted only by
paying the $81,870 fine as well as a prev iously imposed fine. The district court’s
characterization of its contempt finding as “civil” in nature is in conflict with the sanctions
that it ordered, which actually are criminal in nature. See Minnesota State Bar Ass’n ,
248 N.W.2d at 741; Hopp, 156 N.W.2d at 216.

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The district court did not follow the proc edures required for either a finding of
constructive criminal contempt or for criminal penalties, be ginning with the initiation of
contempt proceedings. Such a proceeding must be prosecuted by an attorney representing
the state with authority to prosecute crimes. Peterson, 153 N.W.2d at 830. In this case,
the township’s attorney was the de facto prosecutor at all times. But under Minnesota law,
an attorney representing a township is not authorized to prosecute a misdemeanor offense;
rather, such an offense must be prosecuted by a county attorney. See Minn. Stat. § 484.87,
subd. 3 (2018); Minn. Stat. § 588.20, subd. 2(4) (2018). If the district court was inclined
to consider allegations of constructive criminal contempt and to consider the corresponding
penalties, the district court should have referred the matter to the county attorney. See
Peterson, 153 N.W.2d at 830; State v. Tayari-Garrett, 841 N.W.2d 644, 649 (Minn. App.
2014), review denied (Minn. Mar. 26, 2014). In addition, the district court should have
empaneled a jury, unless the Auleciemses waived their ri ght to a jury trial. See River
Towers Ass’n v. McCarthy, 482 N.W.2d 800, 805 (Minn. App. 1992), review denied (Minn.
May 21, 1992). Thereafter, the district court should have followed the rules and procedures
that apply to criminal prosecutions. See id.
The district court’s contempt order relies in part on the concept of inherent authority.
The district court cited two of this court’s opinions in support of that reasoning, but neither
opinion supports the district court’s analysis. In Buscher v. Montag Development, Inc. ,
770 N.W.2d 199 (Minn. App. 2009), the dist rict court imposed a monetary sanction on
attorneys pursuant to rules 11 and 56 of the ru les of civil procedure and, in addition, its
inherent authority. Id. at 208, 210. This court concluded that the monetary sanctions were

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justified by rules 11 and 56 and expressly stated that it was unnecessary to consider whether
the sanctions also could be justified by the district court’s inherent authority. Id. at 208-12
& nn. 3-4. In Cascarano, the district court relied solely on inherent authority when it
required an attorney to pay $100 in court co sts because the attorney had failed to appear
for a hearing. 871 N.W.2d at 36. This court reversed, stating that “‘the judiciary is not to
resort to inherent authority when doing so would not respect the equally unique authority
of another branch of government.’” Id. at 37 (quoting State v. Ali, 855 N.W.2d 235, 254
(Minn. 2014) (quotation omitted)). We reasoned that the district court violated that
principle because the legislature had enacted the contempt statute, which provides the
substantive and procedural standards that apply to constructive criminal contempt. Id. at
37-39; see also State v. Expose, 872 N.W.2d 252, 259 (Minn. 20 15) (holding that district
courts do not have inherent authority to create exception to statutory therapist-patient
privilege). The Cascarano opinion cannot be distinguished for purposes of this case. Thus,
the district court’s error in ordering criminal penalties based on a finding of civil contempt
is not cured by its reference to inherent authority.
In sum, the sanctions that the district c ourt ordered were constructive and criminal
in nature. Those sanctions are incompatib le with a finding of civil contempt and
incompatible with th e procedures utilized during the c ontempt proceeding. Thus, the
district court erred by imposing contempt sanc tions on the Auleciemses that are criminal
in nature based on a finding of civil contempt. Accordingly, we reverse the district court’s
October 2019 contempt order, including the fine of $81,870 and the 180-day jail term. We
remand the matter to the district court for any further proceedings that may be appropriate,

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including but not limited to proceedings related to civil sanctions or a referral to the county
attorney.2 In light of that resolution of the Au leciemses’ primary argument, we need not
consider their two other arguments.
Reversed and remanded.

2This opinion has no effect on the district court’s orders preceding the October 2019
contempt order. The Auleciemses previously appealed from the district court’s June 2019
post-trial order, in which the district court issued a declaratory judgment and a permanent
injunction and found the Auleciem ses in civil contempt for the first time. In that appeal,
the Auleciemses did not make the meritorious argument that they are making in this appeal,
that the district court erred by finding them in civil contempt but by imposing criminal
punishment for their past conduct. In the pr ior appeal, this court rejected each of the
Auleciemses’ arguments and affirmed the district court’s June 2019 order. Town of West
Lakeland, 2020 WL 1130318, at *1-4. The Aul eciemses sought further review of that
opinion, but the supreme court denied their petition. Town of West Lakeland v. Auleciems,
A19-1211 (Minn. May 27, 2020) (order). Accordingly, the district court’s June 2019 order
is binding on the parties.