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DOHERTY RUMBLE & BUTLER .OFESSIONAL ASSOCIATION JU~J ? 2 t999 3500 Fifth Street Towers i50 South Fifth Street \1inneapolis, \Iinnesota 55402-1235 Telephone (612) 677-4500 FAX (612) 677-4800 www.drblaw.com Attorneys at Law Writer"s direct dial number: June 21, 1999 (612) 677-4533 MWlsog@drblaw.com Mr. Tom Zerwas Police Chief City of Elk River P.O, Box 490 Elk River, MN 55330--0490 Re: Elk River Trespass Notice Ordinance Dear Tom: You have asked that Doherty, Rumble & Butler review a letter submitted by the St. Cloud Area Legal Services Association regarding the proposed trespass ordinance for the City of Elk River. We have undertaken an analysis of that letter and have concluded the following: . The principal concern set forth in the Legal Services letter is that use of the notices may violate the due process rights of alleged trespassers. The letter sets forth no legal support for that assertion, but rather, makes general conclusory statements. A review of Minnesota case law on this issue reveals that no court has addressed whether a trespass notice ordinance similar to the one proposed in Elk River violates the due process rights of an alleged trespasser. On the other hand, several cases have examined situations in which trespass notices have been issued. In one case the use of a trespass notice was overturned as unconstitutional, but in that case, an alleged trespasser was issued a trespass notice for one building which was a part of a larger overall complex of buildings, On a later date, the police attempted to enforce the trespass ordinance against the individual but at a different building with a different address which was also in the same complex, The court simply struck the application of the trespass notice in that specific circumstance by noting that technically, the defendant had only been issued a notice with respect to one address within the complex. Other cases have also examined situations in which trespass notices were issued. In none of those cases have the Minnesota courts expressed concern over the due process implications of the trespass notice. The Legal Services letter undoubtedly raises a potential concern with the use of the trespass ordinance by pointing out that state action is relied upon to enforce the trespass notice subsequent to its issuance by a private landlord or tenant. No court has expressly ruled upon that issue. There is a possibility that an individual could challenge the constitutionality of this ordinance, and that a court could find a violation of due process. Enforcement of the ordinance would subsequently be . rendered impossible. If the City desires to incorporate a tool such as this, we believe the attached MunsoG 592827.1 St.P:lill - :\1illiIt'ilpoii:J . [lel/i.'CI' . v'/d:JhiilgtOIl, D.C.