Dana Weaver, Appellant, v. State Farm Mutual Automobile Insurance Company, Respondent.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-97-1859

F. Andrew Brewer,

Appellant,

vs.

Rodney Sando, in his capacity as

Commissioner of the Department of

Natural Resources, et al.,

Respondents.

Filed April 28, 1998

Affirmed

Shumaker, Judge

Ramsey County District Court

File No. C7-97-3353

Casey A. Streich, 4700 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402-4129 (for appellant)

Hubert H. Humphrey, III, Attorney General, by Cassandra Opperman O'Hern, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondents)

Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

SHUMAKER, Judge

FACTS

Appellant had been an at-will employee of the Minnesota Department of Natural Resources (DNR) from 1976 until he was fired on July 24, 1996. At his discharge, he was serving as the DNR's Director of Regulatory and Legislative Services.

Appellant's friend and hunting companion entered a nolo contendere plea to a federal criminal game and fish "tagging" violation and was to be sentenced in April 1996. At his friend's request, appellant wrote a character reference letter to the sentencing magistrate judge. Appellant used blank stationery and did not identify himself as a DNR official. The friend, however, attached appellant's DNR business card to the letter and gave it to the magistrate judge who read the letter in open court.

In the letter, appellant extolled his friend's hunting ethics and expressed shock that his friend had been charged with an obscure violation. He recounted his own similar hunting experiences and encounters with federal agents who had never even mentioned the law under which his friend had been charged. Surmising that his friend's success as a hunter led "neighboring hunters" to conclude that he must be doing something wrong, appellant stated:

When I see Mr. Sheehan now charged with violating the tagging provision * * * it makes me wonder what has happened to the Equal Protection Clause. * * * Somehow DNR enforcement agencies have decided that he does do something wrong. They routinely use the terms "dirty" and "known violator" to describe him.

It seems strange that in all of the years of paying such close attention, there is so little to show for the level of effort expended.

The current situation appears to bear that out. A tagging violation. The bird was lawfully taken. This looks like a situation where a technicality is being used when all else fails.

DNR officials in the courtroom for the sentencing reported appellant's comments to the DNR commissioner. On July 24, 1996 the deputy commissioner informed appellant that his employment was terminated because of the letter, which the deputy interpreted as supporting a game and fish violator, as questioning the DNR's enforcement practices, and as evincing a breach of trust and loyalty.

Appellant commenced this action under Minn. Stat. § 181.932, subd. 1(a) (Supp. 1997), the Whistleblower Act, alleging retaliatory discharge. The district court granted the respondents' Rule 12.02(e), Minn. R. Civ. P. motion to dismiss for failure to state a claim. We affirm.

D E C I S I O N

Our review is limited to a consideration of whether appellant's complaint stated a legally sufficient claim. Elzie v. Commissioner of Public Safety, 298 N.W.2d 29, 32 (Minn. 1980). A claim is legally sufficient if it would support the relief demanded. Northern States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963). For purposes of our review we must take the allegations of the complaint as true. Elzie, 298 N.W.2d at 33. Since the issue on appeal is purely a question of law, we review the matter de novo. Washington v. Milbank Ins. Co., 562 N.W.2d 801, 804 (Minn. 1997).

Minnesota`s whistleblower law provides in part as follows:

An employer shall not discharge * * * an employee * * * because: (a) the employee, or a person acting on behalf of an employee, in good faith reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official.

Minn. Stat. § 181.932, subd. 1(a) (Supp. 1997).

There are serious questions as to whether appellant's letter, intended by its own terms to be a character reference for a friend about to be sentenced for a federal crime, is the kind of good faith report contemplated by the statute. See Minn. Stat. § 181.932, subd. 1(a) (1997). Neither the statute nor whistleblower case law gives any technical definition of "report." Common usages of the term include "an account of," "information about something seen or done," and "a recounting." Webster's New World Dictionary, 2nd College ed. For the limited purposes of a Rule 12 motion to dismiss, it appears that perhaps appellant has sufficiently stated the report element of his claim.

Appellant has not, however, satisfied the requirement that the report be of a "violation or suspected violation" of a law or rule. Minn. Stat. § 181.932, subd. 1(a) (1997). His contention is that the tagging law was enforced as to his friend but not as to other violators. Selective discriminatory enforcement of a law can in some circumstances constitute a violation of the equal protection clause of the federal constitution. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, (1886). The mere fact of selectivity, however, is not constitutionally impermissible. State v. Andrews, 282 Minn. 386, 392, 165 N.W.2d 528, 532 (1969). The Minnesota Supreme Court has said: "the conscious exercise of some selectivity in enforcement is not itself a federal constitutional violation." Id. (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 506 (1962)).

In order to be a violation of the equal protection clause * * * the arrest must have been based upon an unjustifiable standard such as race, religion, national origin, or other arbitrary classification.

Oyler, 368 U.S. at 456, 82 S. Ct. at 506, cited in City of Minneapolis v. Buschette, 307 Minn. 60, 240 N.W.2d 500, 504 (Minn. 1976) (even though state conceded selective enforcement of prostitution law against women, there was no equal protection denial because discrimination on basis of sex had not yet been declared a matter for constitutional scrutiny).

The supreme court elaborated on the "unjustifiable standard" requirement in State v. Russell, 343 N.W.2d 36, 37 (Minn. 1984), saying that there can be an equal protection violation as to a person prosecuted for a crime if

[t]he government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based on such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional right.

Appellant has not alleged that his friend is a member of a class or group entitled to equal protection application. And surely the friend had no constitutional right to violate the tagging law. Thus, even if he were able to prove selective enforcement of the tagging law as to his friend, he still would fail to prove a violation of equal protection. He has, therefore, failed to state a cognizable claim.[1] The district court did not err by granting the Rule 12 motion to dismiss the action.

Affirmed.

[1] Appellant also contends that selective enforcement of the laws violates the "Peace Officer Protection Act." He provides no citation for that act nor does he elaborate on the alleged violation of the act. We have been unable to find any such law. Presumably appellant meant Minn. Stat. § 626.89 (1996), the Peace Officer Discipline Procedures Act. We find nothing in that law applicable to this case.