                                STATE OF MINNESOTA

                                    IN SUPREME COURT

                                         A13-1028

Court of Appeals                                                               Wright, J.
                                                       Concurring, Anderson and Stras, JJ.
                                                                 Concurring, Lillehaug, J.
Ethan Dean, et al.,

                      Appellants,

vs.                                                                  Filed: August 5, 2015
                                                                 Office of Appellate Courts
City of Winona,

                      Respondent.
                               ______________________

Anthony B. Sanders, Lee U. McGrath, Institute for Justice, Minneapolis, Minnesota; and

Diana K. Simpson, Institute for Justice, Arlington, Virginia, for appellants.

George C. Hoff, Shelley M. Ryan, Hoff, Barry & Kozar, P.A., Eden Prairie, Minnesota,
for respondent.

Teresa Nelson, Saint Paul, Minnesota, for amicus curiae American Civil Liberties Union
of Minnesota.

Erick G. Kaardal, Mohrman & Kaardal, P.A., Minneapolis, Minnesota; and

Daniel E. Frank, Sutherland Asbill & Brennan LLP, Washington, D.C., for amici curiae
The Cato Institute and The Minnesota Free Market Institute at the Center of the American
Experiment.

Eileen M. Wells, City Attorney, Linda Boucher Hilligoss, Assistant City Attorney,
Mankato, Minnesota, for amicus curiae City of Mankato.

Terry L. Adkins, City Attorney, Rochester Minnesota, for amicus curiae City of
Rochester.



                                             1
Samuel J. Clark, City Attorney, Gerald T. Hendrickson, Deputy City Attorney, Saint
Paul, Minnesota, for amicus curiae City of Saint Paul.

Susan L. Naughton, Saint Paul, Minnesota, for amicus curiae League of Minnesota
Cities.

Bradley J. Boyd, Sarah B. Bennett, Christopher P. Renz, Thomsen & Nybeck, P.A.,
Bloomington, Minnesota, for amicus curiae Minnesota Association of Realtors.

Jarod M. Bona, Bona Law P.C., La Jolla, California; and

Aaron R. Gott, Minneapolis, Minnesota, for amicus curiae Minnesota Vacation Rental
Association.

                               ______________________

                                     SYLLABUS

       Dismissal is appropriate when a case is moot and no exception to our mootness

doctrine applies.

       Appeal dismissed.

                                      OPINION

WRIGHT, Justice.

       Appellants Ethan Dean, Holly Richard, and Ted and Lauren Dzierzbicki brought

this action, challenging a rental ordinance enacted by respondent City of Winona (the

City). The ordinance, referred to as the “30-percent rule,” limits the number of lots on a

block in certain areas of the City that are eligible for certification as rental properties.

Appellants assert that the 30-percent rule is a zoning law that exceeds the City’s power

authorized by Minn. Stat. § 462.357 (2014).

       Appellants also contend that the 30-percent rule violates their rights to equal

protection and substantive due process guaranteed by the Minnesota Constitution. On

                                              2
cross-motions for summary judgment, the district court granted summary judgment to the

City. The court of appeals affirmed, concluding that the adoption of the ordinance was a

valid exercise of the City’s police power and that appellants did not meet their burden of

establishing that the ordinance is unconstitutional. After we granted appellants’ petition

for review, the City moved to dismiss for lack of jurisdiction, asserting that the case had

become moot while on appeal. We conclude that the challenge to the ordinance does not

present a justiciable controversy because appellants no longer have an interest in the

outcome of the litigation. We, therefore, decline to reach the merits of appellants’ claims

and dismiss the appeal.

                                            I.

       At the heart of this dispute is the City’s policy limiting the number of rental

licenses available to homeowners in Winona. The City requires its homeowners to obtain

rental licenses before they are permitted to rent their properties to tenants. In 2005, the

City enacted the 30-percent rule, currently codified as Winona, Minn., Code § 33A.03

(2014), to regulate the density of rental properties in certain residential zones. The

purpose of the rule, when enacted, was to decrease conversions from owner-occupied

properties to rental properties, which, the City reasoned, would decrease crime and

nuisance complaints and improve the quality of life in Winona. In residential zones

subject to the 30-percent rule, homeowners generally may not obtain rental licenses for

their properties if more than 30 percent of the lots on that block already are licensed as




                                            3
rental properties. For example, on a 12-property block subject to the rule, only four lots

may be licensed as rental properties.1

       Appellants sued the City in 2011 after each sought and was denied a standard

rental license. Appellant Holly Richard purchased a house in Winona in December 2006.

When she attempted to obtain a rental license in 2009, the City erroneously told her that

no licenses were available for her block. After Richard filed the lawsuit, the City issued a

standard rental license to her. Appellant Ethan Dean bought a house near Winona State

University in 2006. He rented his house without a license after his job required him to

work in Iraq in 2009. The City granted Dean a temporary, nontransferable rental license

in 2010, but declined to issue a standard rental license. In November 2012, after failing

to sell the home, Dean transferred it to Wells Fargo Bank by warranty deed to avoid

foreclosure. Appellants Ted and Lauren Dzierzbicki purchased a house in 2007 near the

university for their daughter and student renters to live in while attending college. After

the Dzierzbickis learned that they could not rent the home as planned because of the 30-

percent rule, they put the house on the market in December 2009.

       The parties filed cross-motions for summary judgment in January 2013. In their

cross-motion, appellants sought a declaratory judgment that the 30-percent rule violates

their equal-protection, procedural-due-process, and substantive-due-process rights under


1
       An exception exists for blocks in which more than 30 percent of the properties
were licensed as rental properties before the rule took effect in 2005. Winona, Minn.,
Code § 33A.03(i)(i). Homeowners who had rental licenses before the 30-percent rule
was enacted may continue to renew those licenses, even if the percentage of rental
property on their blocks is above 30 percent. Id.

                                             4
the Minnesota Constitution. Appellants also alleged that the ordinance exceeds the City’s

zoning power under Minn. Stat. § 462.357, Minnesota’s zoning enabling statute. See id.

(describing a municipality’s authority for zoning and the limitations of that authority).

Specifically, appellants claimed that the ordinance is unlawful under section 462.357

because it impermissibly regulates the ownership or occupancy of property, rather than

the use of property. Appellants sought injunctive relief and nominal damages. The

district court granted the City’s motion for summary judgment in April 2013, concluding

that the 30-percent rule is not unconstitutional and that the City had authority to enact it.

The court of appeals affirmed. Dean v. City of Winona, 843 N.W.2d 249, 263 (Minn.

App. 2014).

       The Dzierzbickis sold their house in March 2014, one month after the court of

appeals issued its decision. At that time, the Dzierzbickis were the only appellants still

seeking a rental license from the City. Appellants filed a petition for review, which we

granted in May 2014. After we granted appellants’ petition for review, the City moved to

dismiss the appeal for lack of jurisdiction.

                                               II.

       We first consider the City’s motion to dismiss. The City argues that dismissal is

warranted because the case is not justiciable and nominal damages cannot be recovered

under the Minnesota Constitution.

       Justiciability is an issue of law, which we review de novo. McCaughtry v. City of

Red Wing, 808 N.W.2d 331, 337 (Minn. 2011). In the context presented here, the

jurisdictional question is one of mootness. See In re Schmidt, 443 N.W.2d 824, 826

                                               5
(Minn. 1989) (observing that when we are unable to grant relief, the issue raised is

deemed moot). The mootness doctrine is not a mechanical rule that is automatically

invoked whenever the underlying dispute between the parties is settled or otherwise

resolved. State v. Rud, 359 N.W.2d 573, 576 (Minn. 1984). Rather, it is a “flexible

discretionary doctrine.” Id. Mootness has been described as “ ‘the doctrine of standing

set in a time frame: The requisite personal interest that must exist at the commencement

of the litigation (standing) must continue throughout its existence (mootness).’ ” Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citation

omitted). An appeal should be dismissed as moot when a decision on the merits is no

longer necessary or an award of effective relief is no longer possible. In re Minnegasco,

565 N.W.2d 706, 710 (Minn. 1997).

        Appellants acknowledge that they do not have a current interest in the litigation

beyond their claim for nominal damages under the Minnesota Constitution and that their

claims for declaratory and injunctive relief are moot. Nonetheless, they argue that we

should apply two discretionary exceptions to our mootness doctrine. First, appellants

maintain that the issues raised are capable of repetition, yet likely to evade review. See

Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005). Second, appellants contend that this

case is “functionally justiciable” and of “statewide significance.” See Rud, 359 N.W.2d

at 576. The City counters that neither exception applies. We address each argument in

turn.




                                            6
                                              A.

       We begin by considering the exception to the mootness doctrine for issues that are

capable of repetition, yet evade review. This two-pronged exception applies to issues

that are likely to reoccur, but also would continue to evade judicial review. Kahn, 701

N.W.2d at 821. These circumstances exist when there is a reasonable expectation that a

complaining party would be subjected to the same action again and the duration of the

challenged action is too short to be fully litigated before it ceases or expires. Id.

       This case does not meet the “evading-review” prong of the exception because the

City’s enforcement of the ordinance is ongoing. The constitutionality of the 30-percent

rule is not an issue that, by its character, is “too short to be fully litigated prior to its

cessation or expiration.” Id. (citation omitted); see State v. Brooks, 604 N.W.2d 345, 348

(Minn. 2000) (noting that future defendants might have “no remedy” if the case were not

decided because “[m]ost pretrial bail issues are, by definition, short-lived”).

Traditionally, cases that have been found to evade review involve disputes of an

inherently limited duration, such as prior restraints on speech, see Neb. Press Ass’n v.

Stuart, 427 U.S. 539, 546-47 (1976) (holding that a judge’s order limiting the press’s

reports about a trial would escape judicial scrutiny because such orders would always

expire before appellate review), and short-term mental-health confinement orders, see In

re Blilie, 494 N.W.2d 877, 879-81 (Minn. 1993) (concluding that the issue of whether

plaintiff’s treatment by neuroleptic medication upon her guardian’s consent was

constitutional was capable of repetition yet evaded review because, although plaintiff had

been discharged from state custody, she could again be subjected to 90 days of treatment

                                               7
with the medication if her guardian admitted her to a treatment center); State ex rel. Doe

v. Madonna, 295 N.W.2d 356, 361 (Minn. 1980) (reviewing the constitutionality of three-

day-hold orders for mentally ill appellants who were no longer subject to confinement at

the time of their challenge).

       The time frame of this case makes clear that a challenge to the 30-percent rule is

not, by definition, “short-lived.” Brooks, 604 N.W.2d at 348. The last of the property

owners seeking a rental license here sold their property after the court of appeals’ opinion

was issued and shortly before we granted appellants’ petition for further review.

Appellants’ case had been initiated three years earlier, a duration that typically would

provide ample time for judicial review. In fact, if appellants had pleaded additional

claims or joined plaintiffs while their case was pending before the district court, this case

may have reached us before becoming moot. Because there is nothing about this case

that is of inherently limited duration, this dispute is not capable of repetition, yet evading

review.

                                             B.

       We have the discretion to consider a case that is technically moot when the case is

“functionally justiciable” and presents an important question of “statewide significance

that should be decided immediately.” Rud, 359 N.W.2d at 576. “A case is functionally

justiciable if the record contains the raw material (including effective presentation of both

sides of the issues raised) traditionally associated with effective judicial [decision-

making].” Id. Although the record here is well-developed, this case does not present an

urgent question of statewide significance.

                                              8
       We apply this exception narrowly. In Rud, for example, the issue was whether

defendants accused of sexual abuse of children should be allowed to call child witnesses

and victims at a hearing on a motion to dismiss criminal charges. Id. at 575. The court of

appeals held that defendants had a limited right to call the children as witnesses,

depending on several factors. Id. at 577. After we granted the State’s petition for further

review, the State dismissed the charges. Id. at 576. We proceeded with the case,

however, because “a failure to decide [the issues when presented] could have a

continuing adverse impact in other criminal trials.”      Id.   Had we not decided the

substantive issue in Rud immediately, the court of appeals’ holding, which was erroneous

in light of our decision in State v. Florence, 306 Minn. 442, 239 N.W.2d 892 (1976),

could have resulted in the broad use of probable cause hearings as “ ‘a substitute for

disclosure and discovery.’ ” Rud, 359 N.W.2d at 578 (quoting Florence, 306 Minn. at

450, 239 N.W.2d at 898).

       Other instances in which we have found cases to be functionally justiciable also

involved matters of statewide significance. In Jasper v. Commissioner of Public Safety,

for example, we concluded that the proper approval by the Commissioner of Public

Safety of a breath-testing instrument for suspected impaired drivers was an issue of

statewide significance because the model was “the only breath-testing instrument

currently in use in this state and there [had] been substantial litigation in the district

courts as to whether the instrument was properly approved.” 642 N.W.2d 435, 439

(Minn. 2002); see also Kahn, 701 N.W.2d at 823 (reaching the merits on a challenge to

election procedures in Minneapolis because the procedures were similar to those used in

                                            9
other Minnesota cities, impacting almost 14 percent of the state’s population). Similarly

in Brooks, the issue of cash-only bail orders reached our court a second time within one

year after we dismissed State v. Arens, 586 N.W.2d 131 (Minn. 1998), as moot. See 604

N.W.2d at 348. We reached the merits in Brooks because the failure to do so posed the

risk of creating “a class of defendants with constitutional claims but no remedy.” Id.

       Most recently, in In re Guardianship of Tschumy, we addressed whether a court-

appointed guardian may consent to removing a ward from life support, even though the

issue was technically moot because the ward’s life-support systems had been

disconnected as authorized by a district court order. 853 N.W.2d 728, 741 (Minn. 2014)

(plurality opinion). We reached the merits in part because the central issue, whether a

guardian needs prior court approval to consent to the removal of life-sustaining treatment,

implicated the State’s parens patriae power “to protect ‘infants and other persons lacking

the physical and mental capacity to protect themselves,’ ” id. at 740 (quoting In re Pratt,

219 Minn. 414, 422, 18 N.W.2d 147, 152 (1945)), and because more than 12,000

Minnesotans were wards under State supervision and a decision was needed to “clarify

for the guardians and their wards the scope of the guardians’ authority to make one of

life’s most fundamental decisions,” id.

       This case does not present the urgency or significance that underpinned Jasper,

Rud, and Tschumy. The decision of the court of appeals does not affect the efficiency and

validity of criminal proceedings across the state, for example, nor do the issues presented

involve a special area of law or vital “issues of life and natural death.” Tschumy, 853

N.W.2d at 740 (plurality opinion). Moreover, there is no inherent limitation on the time

                                            10
available for appeal as there was for cash-only bail orders in Brooks, 604 N.W.2d at 348.

In sum, this case does not present an issue that must “be decided immediately.” Rud, 359

N.W.2d at 576.

      The right to rent one’s property is an important property interest. But this case

does not present the urgency and broad impact that were present in cases determined to

be functionally justiciable and of statewide significance that required an immediate

decision. Other municipalities impose rental limitations. However, they do not operate

in an identical fashion.2    When, as here, the issues presented are limited to the

homeowners of one municipality, the case does not present the urgency and impact that

were present in other cases that we have found functionally justiciable and of statewide

significance. Accordingly, we decline to apply this limited exception here.

                                           III.

      Appellants also maintain that this case is not moot because they seek nominal

damages based on an implied cause of action under the Remedies Clause of the




2
       At least three other municipalities have enacted similar percentage-based rental
ordinances with varying limitations on rental property. See, e.g., Mankato, Minn., Code
§ 5.42, subd. 20 (2014) (requiring additional procedures for new owners of an already
licensed property to maintain a rental license and imposing a 25-percent rental cap);
Northfield, Minn., Code § 14-97 (2015) (requiring additional procedures for a new owner
of an already licensed property to obtain a new license and imposing a 20-percent rental
cap); W. Saint Paul, Minn., Code, § 435.05, subd. 11 (2014) (disallowing the transfer of
licenses to new owners and imposing a 10-percent rental cap). Additionally, the
circumstances under which these ordinances were enacted vary and, when challenged,
require independent consideration by a district court.



                                           11
Minnesota Constitution.3 See Minn. Const. art. I, § 8. Under this theory, appellants

contend that the Remedies Clause provides an independent cause of action for

constitutional violations.4 Arguing that they seek nominal damages under this cause of

action, appellants contend that this case remains a live controversy.

       However, appellants raised their “implied cause of action” theory for the first time

only after their appeal had reached our court. Appellants referenced the Remedies Clause

in their second amended complaint as a jurisdictional basis for declaratory and injunctive

relief, but they never advanced a claim or an argument for nominal damages at the district

court founded on the Remedies Clause. Appellants’ jurisdictional allegations tied only

their claims for declaratory and injunctive relief to the Remedies Clause. “It is well

established that where a plaintiff litigates his case on one theory only, he is precluded


3
       The text of the Remedies Clause provides:

       Every person is entitled to a certain remedy in the laws for all injuries or
       wrongs which he may receive to his person, property or character, and to
       obtain justice freely and without purchase, completely and without denial,
       promptly and without delay, conformable to the laws.

Minn. Const. art. I, § 8.
4
        In two section headings of their response to the City’s motion to dismiss,
appellants explicitly state that they seek a private cause of action under the Remedies
Clause. Appellants also argue that “the Minnesota Constitution, through its Remedies
Clause, provides a cause of action for constitutional torts by which [appellants] are
entitled to nominal damages,” and state that the “Remedies Clause protects rights . . . by
providing an independent basis for seeking relief, i.e., a private cause of action.” Clearly,
appellants are requesting that we recognize a private cause of action under the Remedies
Clause. Contrary to the concurrence’s characterization, this is not merely our
“understanding” of appellants’ position—rather, it is the express argument that appellants
make multiple times in their response to the City’s motion to dismiss.

                                             12
from asserting new theories on appeal.” John W. Thomas Co. v. Carlson-LaVine, Inc.,

291 Minn. 29, 33, 189 N.W.2d 197, 200 (1971). In particular, the appellants did not

plead a cause of action for nominal damages under the Remedies Clause in their

complaint.   The Minnesota Rules of Civil Procedure require that a civil complaint

“contain a short and plain statement of the claim showing that the pleader is entitled to

relief.” Minn. R. Civ. P. 8.01. A complaint should put a “defendant on notice of the

claims against him.” Mumm v. Mornson, 708 N.W.2d 475, 481 (Minn. 2006). Here,

appellants pleaded constitutional claims of equal protection, substantive due process, and

procedural due process, and made a statutory claim that the City exceeded its zoning

authority. While appellants’ prayer for relief included a generalized request for “nominal

damages of $1.00 for violations of their constitutional rights,” that request, untethered to

a specific claim or constitutional provision, was not enough to implicate the Remedies

Clause. In other words, it did not put respondents on notice of the cause of action for

nominal damages under the Remedies Clause, which appellants now present to our court.

       Only on June 26, 2014, in response to respondent’s motion to dismiss on mootness

grounds before our court, did appellants advance the argument that their request for

nominal damages presented an implied cause of action under the Remedies Clause of the

Minnesota Constitution. That argument came too late. Amendments to pleadings, which

“range from a simple clarification to a whole new theory of the case,” Nw. Nat’l Bank of

Minneapolis v. Shuster, 388 N.W.2d 370, 372 (Minn. 1986), generally must occur before

the action has been placed on the trial calendar, unless the amending party is given leave

to amend by the district court or the adverse party, see Minn. R. Civ. P. 15.01 (stating

                                            13
that a party may amend a pleading by leave of court, and amendments should be freely

granted when justice so requires); see also Shuster, 388 N.W.2d at 372 (“[F]airness

demands recognition of the right to respond and to raise any defense to the newly pleaded

material without seeking the court’s permission.”).

       Therefore, we decline to consider appellants’ Remedies Clause theory at this

juncture. We do not reach constitutional claims unless required to do so. See Brayton v.

Pawlenty, 781 N.W.2d 357, 363 (Minn. 2010). Under the facts and circumstances of this

case, the alleged harm to appellants’ interests has ceased. There is no live case or

controversy regarding the claims that appellants actually pleaded in their complaint. In

short, this case is moot. We will not consider issues of constitutional interpretation in a

case that we have no power to decide.

                                           IV.

       In conclusion, appellants’ claims are moot. Because no exception to our mootness

doctrine applies, we grant the City’s motion to dismiss.

       Appeal dismissed.




                                            14
                                CONCURRENCE

ANDERSON, Justice (concurring).

      I concur in the result.



STRAS, Justice (concurring).

      I join in the concurrence of Justice Anderson.




                                          C-1
                                  CONCURRENCE

LILLEHAUG, Justice (concurring).

       I agree that the case must be dismissed as moot. I join Parts I and II and the result

of the opinion of the court, departing only from the analysis in Part III.

       Part III is premised on the majority’s understanding that appellants now seek

nominal damages based on an implied cause of action under the Remedies Clause. Based

on this understanding, and because the Remedies Clause was not pleaded as a cause of

action, the majority avoids the question of whether the prayer for nominal damages saves

the case from mootness.

       As I understand appellants’ position, they do not allege, and have never alleged,

that their injury or wrong—their cause of action—is based on the Remedies

Clause. Instead, I understand appellants to seek nominal damages as a remedy for alleged

injury or wrong to their Minnesota constitutional rights of equal protection, substantive

due process, and procedural due process.

       Analytically, then, we cannot avoid appellants’ argument that, even if their three

constitutional claims otherwise have been mooted—making equitable and declaratory

relief unavailable—the case lives on because they prayed for “nominal damages of

$1.00.”1 Their novel theory is that the Remedies Clause requires the availability of a

nominal damages remedy. I disagree.


1
       Nominal damages are “[a] trifling sum awarded when a legal injury is suffered but
there is no substantial loss or injury to be compensated.” Black’s Law Dictionary 473
(10th ed. 2014).


                                             C-1
       Appellants have not drawn to our attention any Remedies Clause precedent that

resuscitates an otherwise moot case, and I am aware of none. And I see nothing in the

Remedies Clause as commanding (at least in the absence of implementing legislation)

that the judicial remedy of purely nominal damages be available against a municipality.

       This is not a situation where appellants had no remedy whatsoever. Equitable and

declaratory relief, which appellants sought in their prayer for relief, were available. Such

relief became unavailable because of appellants’ own strategic litigation choices. At no

point did appellants seek to amend their complaint to add plaintiffs with live claims. Nor

did appellants seek expedited relief.     Minnesota procedure provides for temporary

remedies such as restraining orders and injunctions, see Minn. R. Civ. P. 65, and

declaratory relief, which, “liberally construed and administered” under Minn. Stat.

§ 555.12 (2014), may be secured by “speedy hearing,” Minn. R. Civ. P. 57.

       Nor did appellants invoke Minnesota’s constitutional and statutory remedies for

the municipal taking, destruction, or damage of private property. See Minn. Const., art. I,

§ 13 (“Private property shall not be taken, destroyed or damaged for public use without

just compensation therefor, first paid or secured.”); Minn. Stat. ch. 117 (2014) (governing

eminent domain); Wegner v. Milwaukee Mut. Ins. Co., 479 N.W.2d 38, 42 (Minn. 1991)

(“Once a ‘taking’ is found, compensation is required by operation of law”). Nor did

appellants seek compensation for actual damages; rather, they sued only the municipality.

See Thiede v. Town of Scandia Valley, 217 Minn. 218, 231-33, 14 N.W.2d 400, 408-09

(1944) (damages awarded against individual defendants for eviction in violation of

Minnesota Constitution, but, “in the absence of statute,” township had no liability for


                                            C-2
damages). Nor did appellants plead any federal constitutional claim, whether under 42

U.S.C. § 1983 (2012) or otherwise. See Carey v. Piphus, 435 U.S. 247, 266-67 (1978)

(nominal damages available under section 1983).

          As Part III notes, we do not reach the merits of constitutional claims unless we are

required to do so. See Brayton v. Pawlenty, 781 N.W.2d 357, 363 (Minn. 2010). In the

circumstances of this case, the Remedies Clause does not require that we reach the

merits.




                                              C-3
