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Patch v. Posusta: US District Court : EMPLOYMENT | CONTRACT | GOVERNMENT - permission not a contract; law not bill of attainder

GLEN POSUSTA, individually;
CLINT HERBST, individually; and
Case No. 06-CV-0409 (PJS/JJG)
Klay C. Ahrens, J. Robert Keena, and Sharonah A. Jacobus, HELLMUTH &
JOHNSON PLLC, for plaintiff.
Julie Anne Fleming-Wolfe, FLEMING-WOLFE LAW OFFICE, for defendants.
Plaintiff Fredrick Patch was the chief building official of defendant City of Monticello
until January 2006, when he was terminated for violating a city ordinance prohibiting certain city
officials, including the chief building official, from performing similar work for other cities.
Patch has sued, filing a quintessential kitchen sink complaint containing a total of seventeen
claims: thirteen against Monticello, one against Monticello city council member Glen Posusta,
one against Monticello mayor Clint Herbst, and two against all three defendants.
This matter is before the Court on the parties cross motions for summary judgment.
Defendants move for summary judgment on all seventeen of Patchs claims. Patch moves for
partial summary judgment on counts fourteen and fifteen of his complaint. For the reasons set
forth below, Patchs motion is denied and defendants motion is granted with respect to the four
claims over which the Court has original jurisdiction. With respect to Patchs remaining statelaw
claims, the Court declines to exercise supplemental jurisdiction, and those claims are
dismissed without prejudice.
As Monticellos chief building official, Patch was in charge of building inspections and
zoning administration. Not long after becoming the chief building official in 1997, Patchs
duties brought him into conflict with Posusta, who was then a local businessman.
A. Early Disputes Between Patch and Posusta
Patchs first encounter with Posusta arose as a result of Monticellos November 1998
request that Patch draft an ordinance prohibiting barbed-wire, razor-wire, and electric fences.
Posusta believed that this ordinance was aimed at him. He ran a self-storage facility, and he had
earlier mentioned to someone at city hall that he intended to put a barbed-wire fence around the
facility. Posusta loudly opposed the ordinance at a planning commission meeting, and he
directed much of his anger at Patch.
The ordinance was enacted despite Posustas opposition. In April 1999, Posusta applied
for a variance from the ordinance. His application was denied both by Monticellos planning
commission and, on appeal, by the city council. As the chief building official, Patch had
recommended the denial of Posustas request.
Patchs next significant encounter with Posusta was a dispute over Posustas U-Haul
leasing business, which Posusta started in July 2000. Posusta started the business without
obtaining the required conditional-use permit, and he later moved the U-Haul business to his
storage facility without a permit or zoning approval. Posusta also unlawfully erected advertising
and parked vehicles on adjacent city property. Patch contacted Posusta about his failure to
obtain the proper permits. Patch also had to instruct Posusta repeatedly to remove the vehicles
and advertisements from city property.
B. Patchs Outside Employment
In the summer of 2000, the city of Big Lake found itself without a building official. Big
Lake approached Jeff ONeill, Monticellos deputy city administrator, to find out if Patch could
work for Big Lake as a consultant. Big Lake also asked Patch if he was interested in the
position. After some discussion and an exchange of memos, ONeill told Patch that he saw no
problem with Patchs consulting work for Big Lake. Fleming-Wolfe Aff. Ex. 20. The
Monticello city council also apparently gave its approval to the arrangement. Herbst Dep. 20.
Patch later did similar work for other cities, including Andover, Hanover, and Dayton.
Herbst, who was later elected mayor, was serving on the city council in 2000. Herbst had
concerns about Patchs work for Big Lake. In particular, Herbst suspected that Patch was using
Monticello equipment to do work for Big Lake on Monticello time. At one point, Herbst
followed a Monticello truck to Big Lake, believing that Patch was in the truck. As it turned out,
however, Patch was not in the truck.
In November 2002, Posusta was elected to the Monticello city council. One of the
reasons Posusta ran for city council was his concern about Patchs work for Big Lake and other
cities. In March 2003, Posusta began investigating Patchs outside work activities to discover
whether Patch was working for other cities on Monticellos time. Posusta requested records
from Big Lake, and also sought records of Patchs cell-phone use from Monticello. Later, in
2005, Posusta obtained Patchs 2004 and 2005 vacation records, apparently for the purpose of
determining whether Patch worked for other cities on Monticellos time.
C. Later Disputes Between Patch and Posusta
In the meantime, Patch and Posusta continued to find themselves on opposing sides of
various disputes. Before he was elected to the city council, Posusta entered into a purchase
agreement with Monticello for the purchase of some land. After his election, the agreement was
renegotiated in a manner that Patch thought was unfairly favorable to Posusta. Patch complained
to the state attorney general, the county attorney, and the state auditors office about this
transaction. The state auditor eventually opined that the renegotiation may have been a conflict
of interest, but no action was ever taken, and there is no evidence that Posusta knew that Patch
was the source of the complaint.
Patch, meanwhile, was facing accusations of a conflict of interest in connection with his
role in a private development project called Liberty Park. Patch was the landowner and also did
some design work for the project. Posusta was concerned that Patchs position as the official in
charge of inspecting buildings and approving permits presented a conflict of interest. Posusta
and ONeill (the deputy city administrator) eventually proposed that Patch pay for an outside
inspector to work on the project. Patch considered this discriminatory and now argues that the
inspection work could have been performed by his employees without his involvement. The
issue became moot when the project fell apart; Patch blames Posusta for the failure of the
D. The Outside-Employment Ordinance
At some point after Herbsts election as mayor, Herbst and Posusta became members of
Monticellos personnel committee. In their capacity as members of the personnel committee,
Herbst and Posusta proposed that Monticello adopt an ordinance regulating city workers outside
employment. The council eventually asked the city attorney to draft an ordinance, which the
council adopted in September 2005 as Monticello City Ordinance 1-6-33 (the Ordinance). The
Ordinance provides as follows:
OUTSIDE EMPLOYMENT: Any employee holding one of the
positions listed below shall not perform the same or substantially
similar duties for another local unit of government on either a fulltime
or ongoing part-time basis, either directly as an employee or
independent contractor or indirectly through a corporation or other
entity. The positions covered by this subsection are: City
Administrator, Deputy City Administrator, Community
Development Director, Economic Development Director, Public
Works Director, Chief Building Official and City Engineer.
Compl. 84; Am. Answer 28. Any individual with outside employment in violation of this
ordinance had until December 31, 2005 to comply. Patch does not dispute that he knew that he
had to either resign his position with Monticello or stop working for Big Lake and other cities in
order to comply with the ordinance. Patch, however, refused to do either. In January 2006,
Monticello terminated Patch.
A. Standard of Review
Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law. Fed. R. Civ. P. 56(c). A dispute over a fact is material only if its resolution
might affect the outcome of the action under the governing substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is genuine only if the evidence is
such that a reasonable jury could return a verdict for either party. Ohio Cas. Ins. Co. v. Union
Pac. R.R., 469 F.3d 1158, 1162 (8th Cir. 2006). In considering a motion for summary judgment,
a court must assume that the nonmoving partys evidence is true and must draw all justifiable
inferences arising from the evidence in that partys favor. Taylor v. White, 321 F.3d 710, 715
(8th Cir. 2003).
B. Count Nine Federal Equal Protection
Patch alleges that the Ordinance violates the Equal Protection Clause of the Fourteenth
Amendment. Because the Ordinance does not create a suspect classification or implicate a
fundamental right, it is analyzed under the rational-basis test. Crum v. Vincent, 493 F.3d 988,
994 (8th Cir. 2007). Under this highly deferential standard, a law is presumed valid and will be
upheld so long as the classification that it draws bears a rational relationship to a legitimate
government interest. Id. The presumption of validity can be overcome only by a clear showing
of arbitrariness and irrationality. Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp.,
21 F.3d 237, 240 (8th Cir. 1994). The actual subjective motives of the legislators who enacted
the law are irrelevant; Patch must show that there is no conceivable rational basis for the
legislative classification. Id. at 241.
Relying primarily on the assertion that Herbst and Posusta found little, if any, evidence to
support their suspicions that Patch worked for other municipalities on Monticellos time, Patch
argues that the Ordinance was unnecessary and therefore lacks any rational basis. Patch is
incorrect. It is rational indeed, it is laudatory for a government to act to prevent a problem
before the problem actually arises. The Ordinance unquestionably bears a rational relationship
to the legitimate government purpose of avoiding conflicts of interest and ensuring that highlevel
city employees focus all of their attention and energy on promoting the best interests of
Monticello. The Court therefore grants Monticellos motion for summary judgment on Patchs
federal equal-protection claim.
C. Count Eleven Federal Due Process
Patch alleges that the Ordinance is overly vague and therefore violates the Fourteenth
Amendments Due Process Clause. A statute is void for vagueness if it either fails to provide
people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits
or authorizes or even encourages arbitrary and discriminatory enforcement. Hill v. Colorado,
530 U.S. 703, 732 (2000). Patch contends that the ordinance is vague because there is no way to
tell what is meant by substantially similar duties or what is meant by duties performed on an
ongoing part-time basis.
The Court disagrees. Although there may be hypothetical situations in which the
meaning of these phrases will present close questions, it is clear what the ordinance as a whole
prohibits. Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)). Indeed, Patch
had no doubt that, under the Ordinance, he was prohibited from continuing his work for Big
Lake and the other cities.
For the same reason, Patchs argument that the Ordinance invites arbitrary enforcement is
without merit. The mere fact that enforcement requires the exercise of some judgment does not
render the Ordinance void for vagueness. Id. The enforcement of most laws requires the
exercise of discretion; lawmakers are not clairvoyant, and it is impossible, in a law of general
applicability, to address with surgical precision every possible circumstance to which the law
might apply. The Court therefore grants Monticellos motion for summary judgment with
respect to Patchs federal due-process claim.
D. Count Thirteen Federal Contracts Clause
Patch next alleges that the Ordinance is an unconstitutional Law impairing the
Obligation of Contracts. U.S. Const. Art. I, 10, cl. 1. Although the language of the Contracts
Clause is absolute, a law does not violate the Clause unless it substantially impairs a contractual
relationship. Honeywell, Inc. v. Minn. Life & Health Ins. Guar. Assn, 110 F.3d 547, 551 (8th
Cir. 1997). To determine whether a law substantially impairs a contractual relationship, a court
must determine: (1) whether a contractual relationship exists; (2) whether the change in the law
impairs that relationship; and (3) whether the impairment is substantial. Id. If the law
substantially impairs a contractual relationship, the court must then determine whether the law
serves a significant and legitimate purpose, and whether the nature and extent of the impairment
is appropriate in light of that purpose. See Hawkeye Commodity Promotions, Inc. v. Vilsack, 486
F.3d 430, 439 (8th Cir. 2007).
For purposes of the Contracts Clause, the existence and scope of a contract are questions
of federal law. Id. at 437. But the parties have briefed the contract issues as though Minnesota
law applied, and neither party has suggested that federal common law differs in any material
respect from Minnesota law on the relevant issues. The Court will thus follow the parties lead
and analyze the contract claims under Minnesota law.
Patch claims that he had a binding contract with Monticello under which Monticello was
obligated to permit Patch to moonlight for Big Lake. In general, an offer of employment on
particular terms of unspecified duration may create a binding unilateral contract. Pine River
State Bank v. Mettille, 333 N.W.2d 622, 626 (Minn. 1983). But to constitute a contractual offer,
the employers statement must be definite enough to enable a court to discern with specificity
what the provision requires of the employer so that if the employers conduct . . . is challenged, it
can be determined if there has been a breach. Martens v. Minn. Mining & Mfg. Co., 616
N.W.2d 732, 742 (Minn. 2000).
The nearest thing to an offer by Monticello to contractually bind itself to permit Patch to
work for Big Lake is a memo to Patch in which ONeill, the deputy city administrator, stated
merely that I see no problem with your work for the City of Big Lake as long as it is done in a
manner as you have described in your letter of August 4, 2000. Fleming-Wolfe Aff. Ex. 20.
The manner described in Patchs letter is Patchs general assurance that his outside consulting
work would not interfere with his position as Monticellos chief building official and would not
create any conflicts of interest. Id. These statements are too general to constitute a definite offer
of employment on the terms alleged by Patch. Cf. Hunt v. IBM Mid Am. Employees Fed. Credit
Union, 384 N.W.2d 853, 857 (Minn. 1986) (noting that a clause permitting termination for a
serious offense falls far short of the specificity necessary for a contractual offer).
Moreover, ONeills statement bears none of the other hallmarks of a contractual offer.
Every day, employees ask employers for permission to do one thing or another: to stay home
from work to care for a sick child, to leave work early to attend a class, to take a few extra
minutes during lunch to exercise, to listen to an iPod while sitting at a desk. According to Patch,
every time an employer says okay to such a request, the employer has made a contract offer,
which, when accepted by the employee, creates a binding contract that prevents the employer
from changing its mind. That obviously is not true as a matter of contract law, and, in the long
run, such an approach would benefit neither employers nor employees. In short, to the extent
that Patchs claim under the Contracts Clause is based on the allegation that, when ONeill said
that he [saw] no problem with Patch working for Big Lake, ONeill created a binding contract
to forever permit Patch to moonlight for Big Lake, Patchs claim is without merit.
Patch also argues that the Ordinance substantially impaired his contractual relations with
Monticello and the other municipalities because it prohibited him from working for both at the
same time. There is a tension between Patchs argument that the work he did for the other
communities was so minor that it did not in any way interfere with his work for Monticello and
his argument that the Ordinance had a substantial impact on him because it cut off the work he
did for the other communities. Putting that aside, state regulation that restricts a party to gains
it reasonably expected from the contract does not necessarily constitute a substantial
impairment. Energy Reserves Group, Inc. v. Kan. Power & Light Co., 459 U.S. 400, 411
(1983). As described, neither Monticello nor anyone else made a contractual commitment to
Patch to permit him to work for Monticello while moonlighting for nearby communities. Before
the Ordinance, Patch had a contract to work full-time for Monticello as its chief building official
for a particular salary. After the Ordinance, Patch had the same contract to do the same work for
the same salary. In cutting off his moonlighting opportunities, the Ordinance did not
substantially impair any of Patchs contractual rights.
Even if the Court were to find that the Ordinance substantially impaired a contract, the
Court would find that the Ordinance serves a significant and legitimate purpose. The Court sees
nothing wrong with Monticello insisting that its high-level employees work only for Monticello
and not for nearby communities. After all, Monticello must compete with those communities on
many fronts, from attracting new businesses to winning government grants to hiring new city
workers. High-level employees such as Patch play an important role in determining whether,
1In his complaint, Patch cites the bill-of-attainder clause applicable to Congress. See U.S.
Const. Art. I, 9, cl. 3. The two clauses are construed identically. See Citizens for Equal
Protection v. Bruning, 455 F.3d 859, 869 n.4 (8th Cir. 2006).
say, a new business will locate in Monticello or in Big Lake. It is entirely understandable that
Monticello does not want officials such as Patch to be working during the day for Monticello and
on nights and weekends for Big Lake and other competitors. Conflict-of-interest restrictions
such as those contained in the Ordinance are common in both the private and public sectors.
The particular conflict-of-interest restriction imposed by the Ordinance is reasonable. It
does not apply to every city employee, but only to high-level employees. And it does not forbid
all moonlighting, but only moonlighting that involves the high-level employee being paid by
another community for performing the same or substantial similar duties that the high-level
employee performs for Monticello. For all of these reasons, the Court grants Monticellos
motion for summary judgment on Patchs claim under the Contracts Clause.
E. Count Fifteen Federal Bill of Attainder
Patch alleges that the Ordinance is an unconstitutional bill of attainder. See U.S. Const.
Art. I, 10, cl. 1 (No State shall . . . pass any Bill of Attainder . . . .).1 To be considered a bill
of attainder, a law must specify the affected persons and impose punishment on them without a
judicial trial. Palmer v. Clarke, 408 F.3d 423, 433 (8th Cir. 2005).
1. Specificity of Identification
The hallmark of a bill of attainder is that it imposes punishment on a specifically
identifiable person or group of persons. See Selective Serv. Sys. v. Minn. Pub. Interest Research
Group, 468 U.S. 841, 847-48 (1984). Historically, bills of attainder usually identified the person
or persons to be punished by name. Id. But obviously there are ways for a law to identify a
person or persons other than by proper name. For example, a law may describe a person or
group of persons in terms of conduct which, because it is past conduct, operates only as a
designation of particular persons. Id. (quoting Communist Party of the U.S. v. Subversive
Activities Control Bd., 367 U.S. 1, 86 (1961)) (emphasis added). If a law describes a class of
persons by reference to past conduct e.g., those who, in the past, have done x then all of
those to whom the law applies are identifiable because the class is fixed. Someone who did x in
the past cannot undo it, just as someone who did not do x in the past cannot travel back in time
and do it.
By contrast, a law that describes a class of persons whose membership is made to turn
upon continuingly contemporaneous fact which [an individual] can correct is not directed at a
fixed, identifiable class and thus cannot be a bill of attainder. Id. at 851 (quoting Communist
Party, 367 U.S. at 87). Such a law is focused on what a person is doing now, and not on what a
person did then. Because a person who is doing x today can always stop doing x tomorrow
and because a person who is not doing x today can always start doing x tomorrow the law is
aimed at a class of persons that is in flux. By definition, such a law cannot be a bill of attainder
because it does not inflict punishment on a fixed, identifiable group of people for what they have
done in the past.
The Ordinance is such a law. The punishment that it allegedly inflicts is a prohibition
on moonlighting. But that punishment is not imposed on a group of people identified either by
name (e.g., John Doe) or by reference to past conduct (e.g., any person who has ever
purchased a gun). Rather, that punishment applies to whomever now holds or holds in the
future one of seven high-level positions with the city. Because the person who held the position
of Economic Development Director in 2006 might not be the same as the person who holds the
position in 2007, and the person who holds the position in 2007 might not be the same as the
person who will hold the position in 2008, the Ordinance does not impose punishment on any
particular person for what that person did in the past. Rather, the punishment is inflicted on a
class of persons that is made to turn upon continuingly contemporaneous fact that
continuingly contemporaneous fact being employment in one of seven high-level positions.
Id. at 851 (quoting Communist Party, 367 U.S. at 87).
The Court does not doubt that it was Patchs moonlighting and not the moonlighting
of some other employee that caused the city council to take up this issue. But issues often
come to the attention of legislative bodies because of the conduct of a single individual. What is
important is not why the city council addressed the moonlighting issue, but how. The city
council did not address the issue by punishing Patch or any other employee for what he did in the
past. It addressed the issue by regulating the future conduct of whomever happens to hold
particular high-level positions with the city. Such a law is not a bill of attainder, and thus
Patchs claim must fail. Cf. WMX Techs., Inc. v. Gasconade County, 105 F.3d 1195, 1202 (8th
Cir. 1997) (holding that an ordinance was not a bill of attainder, despite the fact that it applied
only to one business, because [r]ather than attaching to a specified organization, the ordinance
attaches to described activities in which an organization may or may not engage).
2. Punishment
Patchs bill-of-attainder claim fails for a second reason. A law is a bill of attainder only
if the burden that it imposes is a form of punishment. To rise to the level of punishment, the
burden imposed by a law must fall within the traditional meaning of legislative punishment (the
historical test), fail to further a nonpunitive purpose (the functional test), or be based on a
legislative intent to punish (the motivational test). Citizens for Equal Protection v. Bruning,
455 F.3d 859, 869 (8th Cir. 2006); WMX Techs., 105 F.3d at 1202.
Patch argues that, as a result of the Ordinance, he was forced out of his position as
Monticellos chief building official, and that termination of employment is a punishment in the
traditional sense. In support of his argument, Patch relies heavily on Crain v. City of Mountain
Home, 611 F.2d 726 (8th Cir. 1979). In Crain, the Eighth Circuit indeed wrote that the sanction
of mandatory forfeiture of job or office has long been considered punishment under the bill of
attainder clause. Id. at 728.
The problem with Patchs argument is that, in approving the Ordinance, the city council
did not fire Patch, either de jure or de facto. Long before the Ordinance was approved
indeed, long before Patch began moonlighting for other communities he agreed to work fulltime
for Monticello as its chief building official for a particular salary. Later, he started
moonlighting for Big Lake and then other cities, but that did not change the fact that he held the
same full-time position with Monticello, doing the same duties for the same salary. After the
Ordinance was approved, Patch still held the same full-time position with Monticello, and he
was still paid the same salary for doing the same duties. An ordinance that leaves a full-time
employee with exactly the same title, position, duties, hours, salary, and benefits and that
affects an employee only by prohibiting him from moonlighting cannot possibly be regarded
as an ordinance that forced that employee out of office.
The contrast with Crain is instructive. In Crain, the plaintiff held the position of city
attorney. Crain, 611 F.2d at 727. In that position, he had done various things that angered
2Patch also cites Crain for the proposition that the Ordinance specifically designates him
for punishment. But the focus of the Eighth Circuit in Crain was on whether the ordinances at
issue imposed punishment. Crain, 611 F.2d at 729 (noting, and disagreeing, with the district
courts conclusion that one of the ordinances was not penal in nature). The Crain court did not
engage in a detailed analysis of the specificity requirement. The Court does not believe that the
Eighth Circuit would find that the Monticello ordinance which, as described above,
reasonably regulates the conduct of those who in the future hold one of seven high-level
positions in city government singles out identifiable persons to be punished for past conduct.
members of the city council. On the eve of an election in which Crain was the sole candidate for
city attorney, the city council passed two ordinances that collectively required Crain to forfeit the
remaining term of his office, reduced the city attorneys salary to .00 per year beginning the
following year, and prohibited anyone holding the position of city attorney from outside
employment i.e., from earning more than .00 per year. Id. at 727-28.
There is an obvious difference between Patch and Crain. Patch was left with the same
title, position, duties, hours, salary, and benefits; the only thing affected was his moonlighting.
Crain was left to survive on .00 per year. Crain suffered the sanction of mandatory forfeiture
of job or office. Id. at 728. Patch did not. Thus, under the historical test, the Ordinance did
not inflict punishment on Patch.2
With respect to the functional test, the question is whether, when viewed in terms of
the type and severity of burdens imposed, [the ordinance] reasonably can be said to further
nonpunitive legislative purposes. Nixon v. Admr of Gen. Servs., 433 U.S. 425, 475-76 (1977).
The Ordinance easily leaps this hurdle. As explained above, the Ordinance serves the rational,
nonpunitive purpose of ensuring that high-level city employees devote their full energy and
attention to furthering the interests of Monticello. The Ordinance ensures that full-time
employees with the most important duties and with access to the most sensitive information are
3The three other members of the council were Thomas Perrault, Wayne Mayer, and Brian
Stumpf. Although Herbst, as a member of the personnel committee, proposed the Ordinance, it
is not clear what role, if any, Herbst may have had in actually passing the Ordinance. Even if
Herbst had a direct role in passing the Ordinance in other words, even if Herbst, as mayor,
was able to and did vote on the Ordinance the record demonstrates, at most, that Herbst had a
long-standing concern about Patchs outside employment activities, and a long-standing belief
that high-level city employees should not moonlight for other municipalities. Such evidence is
not enough to establish that Herbst was motivated by a desire to punish Patch. Moreover, the
votes of Posusta and Herbst could not, in themselves, approve the Ordinance, and there is no
evidence that Perrault, Mayer, or Stumpf supported the Ordinance for any reason other than that
they thought that it reflected a sound policy.
not influenced, consciously or unconsciously, by the desire to curry favor with competing
communities that might pay them consulting fees. This minimal intrusion is certainly consonant
with the Ordinances legitimate purpose. Cf. Bruning, 455 F.3d at 869 (noting that the courts
conclusion that the law at issue had a rational basis also demonstrated that the law furthered a
nonpunitive purpose under the functional test).
The final test under which a law may be found to inflict punishment is the motivational
test. Typically legislation that is otherwise constitutional cannot be struck down on the basis of
an allegedly illicit motive. Lawsuits brought under the Bill of Attainder Clause, however, are
included in the very limited and well-defined class of cases where the very nature of the
constitutional question requires an inquiry into legislative purpose. United States v. OBrien,
391 U.S. 367, 383 n.30 (1968). The focus of the motivational test is whether the legislative
record evinces a [legislative] intent to punish. Nixon, 433 U.S. at 478.
The Court agrees with Patch that there is sufficient evidence in the record from which a
jury could conclude that Posusta disliked Patch and voted for the Ordinance in order to inflict
harm on Patch. But there is no evidence that the mayor or other members of the city council
were motivated to pass the Ordinance by a desire to harm Patch.3 Patch cites no evidence that
these others had strong feelings about him one way or the other, and there is certainly no
indication, in the Ordinances legislative history, that the council acted with the collective intent
to punish Patch. In the absence of any such evidence, the motivations of a single city council
member cannot be attributed to the mayor and council as a whole. Patch has therefore failed to
offer sufficient evidence of a legislative intent to punish.
Whether considered under the historical test, the functional test, or the motivational test,
the Ordinance does not impose punishment. The Court therefore concludes that the Ordinance
does not violate the constitutional prohibition against bills of attainder.
F. State-Law Claims
If, before trial, a federal district court dismisses all claims over which it has original
jurisdiction, it is ordinarily appropriate for the court to decline to exercise supplemental
jurisdiction over any remaining claims. See 28 U.S.C. 1367(c)(3); Barstad v. Murray County,
420 F.3d 880, 888 (8th Cir. 2005). In this case, it is particularly appropriate for the Court to
decline supplemental jurisdiction over Patchs state-law claims. The sheer number of those
claims, and the fact that some of them (such as his defamation claims) have nothing to do with
the Ordinance (which is the focus of his federal claims), counsel against the exercise of
supplemental jurisdiction in this case. See 28 U.S.C. 1367(c)(2) (district courts have discretion
to decline supplemental jurisdiction over a claim if that claim substantially predominates over
the claims over which the court has original jurisdiction). The Court therefore declines to
exercise supplemental jurisdiction over Patchs remaining state-law claims.
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
1. Defendants motion for summary judgment [Docket No. 15] is GRANTED in part
and DENIED AS MOOT in part.
a. Defendants motion is GRANTED with respect to Counts Nine, Eleven,
Thirteen, and Fifteen of plaintiffs complaint [Docket No. 1], and these
b. Defendants motion is DENIED AS MOOT in all other respects.
2. Plaintiffs motion for partial summary judgment [Docket No. 18] is DENIED with
respect to Count Fifteen and DENIED AS MOOT in all other respects.
3. All remaining claims are DISMISSED WITHOUT PREJUDICE under 28 U.S.C.
Dated: November 14 , 2007 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



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Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.