author: DIETZEN, Judge.

text:
    SHAMROCK DEVELOPMENT, INC., Respondent, v. Denison E. SMITH, et al., Appellants, Dakota Turkey Farms, Limited Partnership, Defendant.
    No. A06-1647.
    Court of Appeals of Minnesota.
    Aug. 21, 2007.

      Stanford P. Hill, David A. Turner, Bass-ford Remele, P.A., Minneapolis, MN, for respondent.
    Timothy J. Mattson, Charles J. Schoen-wetter, Bowman & Brooke, LLP, Minneapolis, MN, for appellants.
    Considered and decided by STONEBURNER, Presiding Judge; KALITOWSKI, Judge; and DIETZEN, Judge.
   OPINION

DIETZEN, Judge.

Appellants challenge the district court’s denial of their motion to dismiss, arguing that the district court erred in concluding that (1) respondent satisfied the requirements of Minn. R. Civ. P. 4.04(a)(1) for service of process by publication, (2) the affidavit in support of service by publication was not “manifestly false,” and (3) the summons was not defective. Because we conclude that the district court properly applied the law and did not abuse its discretion, we affirm.

FACTS

Farm Credit Leasing Services Corp. (FCL) was engaged in the business of leasing agricultural facilities and equipment. Wild Rice Farms, a Minnesota partnership in which appellants Randall Smith and Denison Smith, Richard Burtness, and others were partners, leased agricultural facilities and equipment from FCL.

In September 1991, Wild Rice Farms assigned its obligations under the lease to defendant Dakota Turkey Farms (Dakota), a Minnesota limited partnership in which the Smiths, Burtness, and others were partners. These partners, including the Smiths, jointly and severally guaranteed Dakota’s obligations under the lease. In a separate transaction, Burtness leased agricultural facilities from FCL. Wild Rice Farms’s partners, including the Smiths, jointly and severally guaranteed Burtness’s obligation under the second lease.

Subsequently, Dakota and Burtness defaulted on both leases. In April 1993, the parties entered into a settlement agreement and a “Stipulation for Entry of Judgment,” which acknowledged the debt and that the Smiths were each “individually and jointly and severally indebted to FCL.” The Smiths and their co-obligors subsequently defaulted on their payments, and FCL filed the stipulation with the court and sought judgment. In April 1996, the Hennepin County District Court entered judgment against the Smiths and the rest of the debtors in the amount of $825,620.79. Shortly thereafter, FCL assigned the judgment to respondent Shamrock Development, Inc. (Shamrock). Following the assignment, Burtness was released from the judgment, but the Smiths and Dakota remained as judgment debtors.

Before the ten-year limitation on actions to enforce judgments expired, Shamrock sought to locate the Smiths in order to bring an action to renew the judgment. Using Accurint, an Internet database that is widely used to locate persons for service of process, Shamrock learned that from April 1996 to October 2000, both of the Smiths used an address in Medina, Minnesota. That address, which is a private residence in Medina, was, and continues to be, the registered address for service of process on Dakota. Shamrock attempted personal service on both the Smiths and Dakota, but it was unsuccessful. Shamrock later completed personal service on Dakota by serving the summons and complaint on the Minnesota Secretary of State.

Subsequently, Shamrock searched the U.S. Bankruptcy Court filings for Denison and Randall Smith, but was unable to locate them. Shamrock then hired a private investigator, who located and personally served Denison Smith with the summons and complaint at his home in Fairfax, Virginia.

Because Shamrock was unable to locate Randall Smith, it commenced service by publication under Minn. R. Civ. P. 4.04(a)(1). Less than ten days after the completion of publication, the Smiths filed a limited and special appearance and challenged personal jurisdiction. Shamrock then served a copy of the complaint on the Smiths’ attorney under Minn. R. Civ. P. 4.042.

The Smiths moved to dismiss the complaint for lack of jurisdiction. Following a hearing, the district court denied the motion to dismiss. Subsequently, the district court denied appellants’ motion for reconsideration. Appellants then filed two appeals with this court. In the present appeal, appellants challenge the district court’s denial of their motion to dismiss for lack of jurisdiction, arguing that the summons was invalid and that service of process was insufficient. In a second appeal, appellants challenged the order denying their motion to reconsider, which order concluded that the judgment had been renewed. This court dismissed the second appeal because an order denying a motion to reconsider is not independently appeal-able.

ISSUES

I. Did the district court err in determining that service of process by publication on Randall Smith was sufficient to confer jurisdiction?

II. Did the district court err in determining that the summons served on appellants was valid?

III. Should this court strike portions of appellants’ appendix and brief?

ANALYSIS

I.

Appellants argue that Shamrock failed to comply with the requirements of Minn. R. Civ. P. 4.04, which governs service of process by publication. Appellants specifically argue that Shamrock failed to renew its judgment on a timely basis and failed to satisfy the requirements for service by publication. We disagree.

A. Renewal-of-Judgment Actions

A judgment “survives, and the lien continues, for ten years after its entry.” Minn.Stat. § 548.09, subd. 1 (2006). But “[n]o action shall be maintained upon a judgment or decree of a court of the United States, or of any state or territory thereof, unless begun within ten years after the entry of such judgment.” Minn. Stat. § 541.04 (2006).

The procedure for renewing a judgment is not specifically prescribed by statute, but caselaw indicates that actions are routinely brought to renew judgments so that the judgments extend beyond the initial ten-year period. For example, in Tharp v. Tharp, our supreme court addressed “an action to renew a judgment.” 228 Minn. 23, 23, 36 N.W.2d 1, 2 (1949). Although the case focused on the validity of the summons, the court implicitly concluded that a party may bring an action to renew a judgment as long as the ten-year limitations period on the judgment has not expired. Id. at 26-27, 36 N.W.2d at 3-4. In a more recent case, Haas v. Brandvold, this court also addressed the procedure for pursuing an action to renew a prior judgment. 418 N.W.2d 511, 513 (Minn.App.1988). This court analyzed the sufficiency of service of the summons and complaint under Minn. R. Civ. P. 4.01 and 4.03 and determined that because service had been sufficient and had been completed within ten years of the original judgment, the district court did not err in concluding that it had jurisdiction to consider the renewal action. Id. at 513-14.

We conclude that a party may bring an action to renew a judgment, provided that (1) the action is commenced within ten years after entry of the original judgment, and (2) the party complies with all the requirements for commencing a civil action. Appellants argue that Shamrock was not diligent because it did not start its search and commence the action until shortly before the statute of limitations was to expire. See generally Tharp, 228 Minn. 23-24, 36 N.W.2d at 2; and Haas, 418 N.W.2d at 512-13. But here, Shamrock conducted its search for appellants, filed the necessary pleadings with the court, and completed service by publication within the ten-year statutory period for renewal-of-judgment actions. Accordingly, we conclude that Shamrock properly commenced its action to review judgment.

B. Service of Process

Appellant Randall Smith contends that Shamrock “failed to comply with the requirements of Minn. R. Civ. P. 4.04” for service of process by publication. In Minnesota, service of process is proper when a defendant is served with a summons. Minn. R. Civ. P. 3.01; see also Wallin v. Minn. Dep’t of Corr., 598 N.W.2d 393, 400 (Minn.App.1999) (explaining that an action in Minnesota begins with service of the summons), review denied (Minn. Oct. 21, 1999). Absent proper service of process or a waiver thereof, the district court must dismiss the action. Uthe v. Baker, 629 N.W.2d 121, 123 (Minn.App.2001). A plaintiff may accomplish service of process by personal service within the state under Minn. R. Civ. P. 4.03, publication under Minn. R. Civ. P. 4.04(a), or by personal service outside of the state under Minn. R. Civ. P. 4.04(b).

Compliance with the rules governing the commencement of an action is a jurisdictional requirement. Schuett v. Powers, 288 Minn. 542, 544, 180 N.W.2d 253, 254 (1970). Rule 4.04(a) provides that service by publication shall be sufficient to confer jurisdiction “(1) when the defendant is a resident individual domiciliary having departed from the state with intent to defraud creditors, or to avoid service, or [the defendant] remains concealed therein with the like intent[.]” Minn. R. Civ. P. 4.04(a)(1) (emphasis added).

Randall Smith first argues that review of the district court’s order regarding service by publication is de novo. Shamrock agrees that whether an action has been commenced in accordance with the rules is a jurisdictional issue, which we review de novo. But Shamrock argues that the district court’s findings regarding the factual assertions in the affidavit of publication are reviewed under the clearly erroneous standard. We agree with Shamrock.

Whether a summons has been properly served is a question of law subject to de novo review. Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn.App.1992), review denied (Minn. July 16, 1992); see also McBride v. Bitner, 310 N.W.2d 558, 561-63 (Minn.1981) (applying de novo review when considering whether service was proper). Thus, we review de novo the jurisdictional question of whether Shamrock complied with rule 4.04. But whether the defendant “is a resident individual domiciliary” who has departed from the state “with intent to defraud creditors or avoid service” is a question of fact. See Minn. R. Civ. P. 52.01; Lundgren v. Green, 592 N.W.2d 888, 890 (Minn.App. 1999) (stating that “[t]he location of a person’s usual place of abode is a question of fact, and the decision of the district court will not be reversed unless it is clearly erroneous”) (quotation omitted), review denied (Minn. July 28, 1999). We conclude that the district court’s findings of fact regarding the affidavit of publication are subject to the clearly erroneous standard of review. We now turn to the sufficiency of the affidavit of publication.

Essentially, Randall Smith makes three arguments. First, he argues that the affidavit in support of publication does not contain the required jurisdictional facts. We disagree. Service by publication is sufficient to confer jurisdiction over a party only if the affidavit in support of publication contains the required jurisdictional facts. Schuett, 288 Minn, at 543, 180 N.W.2d at 254. The required jurisdictional facts are as follows: the affidavit in support of publication “shall state the existence of one of the enumerated cases, and that [the] affiant believes the defendant is not a resident of the state or cannot be found therein, and either that the affiant has mailed a copy of the summons to the defendant at the defendant’s place of residence or that such residence is not known to the affiant.” Minn. R. Civ. P. 4.04(a).

Here, Shamrock’s affidavit stated that (1) Randall Smith is a “resident individual domiciliary who has departed from the state of Minnesota with intent to defraud creditors, or to avoid service, or remains concealed with the like intent,” (2) Randall Smith is not a resident of the state and cannot be found herein, and (3) Randall Smith’s place of residence or address is unknown for service of process. Thus, the affidavit contained the required jurisdictional facts.

Second, Randall Smith argues that he was never a resident of Minnesota, and, therefore, the affidavit in support of publication was “manifestly false.” An affidavit must be supported by “good faith that [the defendant] cannot be found in the state.” Van Rhee v. Dysert, 154 Minn. 32, 35, 191 N.W. 53, 54 (1922). A “good faith” affidavit is required to show that the party and attorney used “due diligence in making a search for the defendant.” Id. Whether a party’s efforts at service were diligent is a question of fact. Duresky v. Hanson, 329 N.W.2d 44, 49 (Minn.1983). The steps necessary to constitute a diligent search can vary by case, but the plaintiff must be able to demonstrate that he or she has reasonably attempted to find the defendant and has been unsuccessful. Id. at 49; see also Van Rhee, 154 Minn. at 35, 191 N.W. at 54 (holding that a search was diligent when a plaintiff made repeated inquiries of numerous persons at places in the county in which the defendant was believed to reside, sought information “touching the whereabouts” of the defendant from several county officers and various places of business, and looked for financial records regarding the defendant and his heirs).

Here, the record supports the district court’s finding that Shamrock conducted a diligent search. Shamrock’s attorneys conducted an Accurint search, which revealed a residential address that was connected to both appellants between 1996 and 2000, and it attempted to serve process at that address. Shamrock also searched bankruptcy court filings and was unable to locate either appellant. Shamrock then employed a private investigator, who located Denison Smith in Virginia. But the private investigator and Shamrock were unable to locate Randall Smith.

Randall Smith, nonetheless, argues that Shamrock could have called appellants’ former attorney or made additional use of previous addresses contained in affidavits of debtor identification that were filed in connection with the original judgment. But the affidavits of identification were submitted by FCL’s attorneys, and the information contained therein was older than the information uncovered by Shamrock’s Accurint search. And Shamrock’s attorneys presented evidence showing that the same search methods they used here had been used successfully to locate parties for service in previous cases. Also, Minnesota law imposes no requirement on the length of time that a party must search before that search may be considered “diligent.” See Abu-Dalbouh v. Abu-Dalbouh, 547 N.W.2d 700, 703 (Minn.App.1996) (stating that “[e]ven though service by publication is not a reliable means of notifying interested parties, Minnesota recognizes service by publication in situations where it is not reasonably possible or practicable to give more adequate warning”) (quotation omitted).

Third, relying on McBride, 310 N.W.2d at 562, Randall Smith argues that Shamrock has not proven that he “is a resident individual domiciliary having departed from the state,” as required by Minn. R. Civ. P. 4.04(a)(1). But McBride is distinguishable.

In McBride, a defendant in a wrongful-death suit was a resident of Minnesota at the time of the accident but subsequently moved out of the state. Id. at 560. Shortly before the statute of limitations was to expire, the plaintiff attempted to locate the defendant for service of process. Id. Believing that the defendant was a resident of Wright County, Minnesota, the plaintiff forwarded the summons and complaint to a sheriff for personal service. Id. When the sheriff returned the summons and complaint stating that the defendant had moved and could not be found, plaintiffs counsel filed an affidavit stating that a diligent effort to locate the defendant had been unsuccessful and obtained an ex parte order purporting to authorize service by publication. Id. The supreme court stated that “[i]t is apparent from a reading of [rule 4.04(a)(1)] that it did not authorize publication merely because plaintiffs’ attorney had made diligent but unsuccessful efforts to locate defendant in this state.” Id. at 562.

Our case is factually distinguishable because, unlike the plaintiff in McBride, Shamrock submitted an affidavit under rule 4.04 and expressly stated the required jurisdictional facts. Also, the district court conducted an evidentiary hearing in this case to determine whether the affidavit complied with the rule. Following the hearing, the district court found that Shamrock had exercised due diligence in attempting to locate Randall Smith, that the affidavit was made in good faith, and that the factual assertions therein were supported by the record.

We read rule 4.04(a)(1) to require that Shamrock establish that the affidavit was made in good faith, that the factual assertions are supported by the record, and that Shamrock exercised due diligence in attempting to locate Randall Smith. Here, the district court found that Shamrock’s affidavit was made in good faith, that Shamrock had reason to believe that Randall Smith was a resident of Minnesota but had left the state with intent to defraud creditors or avoid service of process, and that Shamrock had exercised due diligence in attempting to locate Randall Smith. The record supports the district court’s findings, and they are not clearly erroneous.

II.

Appellants argue that the summons was defective because it failed to provide information about alternative dispute resolution (ADR) as required by MinmStat. § 543.22 (2006).

The interpretation of a statute or rule raises a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998) (interpreting statute); Barrera v. Muir, 553 N.W.2d 104, 108 (Minn.App.1996) (interpreting rules of civil procedure), review denied (Oct. 29, 1996). We interpret the words of a statute according to their plain and ordinary meaning. See MinmStat. § 645.08(1) (2006) (mandating that words and phrases be construed according to their common and approved usage). The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. MinmStat. § 645.16 (2006). The rules of civil procedure “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.” Minn. R. Civ. P. 1. We turn to the applicable rule and statute.

In 1951, the Minnesota Supreme Court adopted rules of civil procedure to govern all suits of a civil nature, subject to certain exceptions. Rule 4.01, which was adopted in 1951 and has been amended from time to time, states that a summons must

state the name of the court and the names of the parties, be subscribed by the plaintiff or by the plaintiffs attorney, give an address within the state where the subscriber may be served in person and by mail, state the time within which these rules require the defendant to serve an answer, and notify the defendant that if the defendant fails to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint.

Minn. R. Civ. P. 4.01. Here, the district court determined that the summons complied with the rule and that the failure to include the notice of ADR required under Minn.Stat. § 543.22 was not fatal to jurisdiction. We agree.

In 1999, the legislature enacted Minn. Stat. § 543.22, which provides:

When a civil case is commenced against a party, the summons must include a statement that provides the opposing party with information about the alternative dispute resolution process as set forth in the Minnesota General Rules of Practice.

The statute does not provide a remedy for failure to comply with the statute. Rule 114 of the general rules of practice provides that ADR is required for nearly all civil cases filed in district court. Minn. R. Gen. Pract. 114.01. But the rules do not refer to Minn.Stat. § 543.22 or provide a remedy for failure to comply. Thus, we discern no legislative intent that the failure to include the required ADR information in the summons is fatal to jurisdiction. Clearly, the legislature intended to leave to the courts the enforcement of the statute through the rules of general practice.

Appellants rely heavily on Tharp, 228 Minn. 23, 36 N.W.2d 1 to argue that the summons is defective. In Tharp, the defendant moved to dismiss on the ground that the summons did not comply with the provisions of Minn.Stat. § 543.02, which was the statute that set forth the requirements for a summons at that time. Id. at 24, 36 N.W.2d at 2. The supreme court granted the motion to dismiss, reasoning that the summons (1) incorrectly stated that the defendant needed to appear in court within 20 days, (2) contained no information alerting the defendant that he was required to answer the complaint, and (3) contained no address at which an answer could be served. Id. at 26-27, 36 N.W.2d at 3. The Tharp court concluded that the summons was fatally defective because it failed to comply with the requirements of a summons, which would enable the defendant to answer and defend. Id. The court reasoned that although the requirements of the statute should be liberally construed to avoid dismissing an action due to “technical and formal” defects, the summons must be sufficient to inform the defendant of the essential matters the statute requires so that the defendant can answer and defend the claim. Id.

Here, the summons contained all the requirements set forth in rule 4.01. Although the summons did not include the ADR information, this omitted information was not essential for appellants to answer and defend the claim and was, therefore, in the nature of a technical defect. Cf. Haas, 418 N.W.2d at 513 (holding that the failure to include statutorily required signed acknowledgment of potential liability for costs and disbursements in a complaint was not jurisdictional defect requiring district court to dismiss case). Therefore, we conclude that the district court did not err in determining that the summons was sufficient and in denying the motion to dismiss.

III.

Shamrock moves to strike portions of appellants’ appendix, and all refer-enees thereto because they were filed after the order denying the motion to dismiss and outside the record of this appeal. Appellants argue that the material contained in the appendix is part of the motion for reconsideration and, therefore, is properly before this court. Generally, documents may not be included in a party’s brief unless they are part of the appellate record. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn.App.1992), aff'd, 504 N.W.2d 758 (Minn.1993). Here, appellants’ appendix contain materials that would have been part of the record of the second appeal filed in this matter, but that case was dismissed. Although those materials are instructive regarding the procedural history of that appeal, they are outside the record with respect to the merits of this appeal and are therefore stricken.

DECISION

Because the summons substantially complied with the applicable rules and statutes, and because the district court did not clearly err in determining that Shamrock complied with the rules regarding service of process, the district court did not err in denying appellants’ motion to dismiss.

Affirmed; motion granted.

      . On appeal from an order, the appellate court may review any other orders affecting the order from which the appeal is taken. Minn. R. Civ.App. P. 103.04. Although the August 30 order is not independently appeal-able, this panel may consider that order. See Rettke v. Rettke, 696 N.W.2d 846, 850 (Minn.App.2005) (holding that when an appeal is properly taken from an underlying judgment, the court of appeals has discretion to review a subsequent order denying a motion to vacate).

      . Denison Smith was served personally with a summons and complaint and does not challenge service of process.

      . Previously, Minn.Stat. § 534.02 set forth the requirements for a summons. But it was superseded by rule 4.01, which currently governs the general requirements for summons.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2007 ND 138
    STATE of North Dakota, Plaintiff and Appellee v. Johnny WASHINGTON, Defendant and Appellant.
    No. 20060369.
    Supreme Court of North Dakota.
    Aug. 22, 2007.

      James Allen Hope, Assistant State’s Attorney, Dickinson, N.D., for plaintiff and appellee.
    Danny Lee Herbel, Bismarck, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Johnny Washington appealed from an amended order deferring imposition of sentence entered on a conditional plea of guilty to class C felony burglary. We conclude Washington’s Fourth Amendment rights were not violated by law enforcement officers in effectuating his arrest and searching his vehicle. We affirm.

I

[¶ 2] At 4:18 a.m. on Sunday morning, January 15, 2006, Officer Brian Koskovich of the Dickinson Police Department was at a gas station preparing to refuel his patrol car when he was notified by a dispatcher of an “alarm call” from Army’s West, a Dickinson bar. At the time, Koskovich happened to be located about one block from Army’s West and he arrived at the bar two minutes after receiving the dispatch. A liquor store is located approximately 200 feet from the bar and there is a large parking lot between the establishments. As Koskovich entered the parking lot, he was “surprised” to see a “white vehicle come out from behind” the liquor store traveling west with its lights on. According to Koskovich, the white vehicle “stopped abruptly next to a parked vehicle [in the Army’s West parking lot], the lights were turned off and the engine was turned off.” Koskovich could tell the engine had been turned off because the temperature was “pretty close to zero” and “there was no exhaust coming out of the exhaust pipe.” Koskovich considered the “abrupt stop ... suspicious activity under the circumstances.” Koskovich pulled 10 to 15 feet behind the white vehicle and ran a registration check on the vehicle, and the dispatcher informed him the vehicle was registered to Washington and another person. No one had exited the vehicle, and Koskovich was unable to see in the vehicle’s windows because they were tinted.

[¶ 3] In the meantime, Dickinson Police Sergeant Parke Little arrived to check out the alarm call and found the front door of Army’s West had been “smashed.” Little radioed the information to Kostovich and Kostovich told Little to watch the white vehicle while he went to the front of the bar to maintain security until other officers arrived. Little pulled within 50 to 60 feet from the white vehicle and watched it for 15 to 20 minutes. No one exited the vehicle.

[¶ 4] When two other officers arrived at the scene, they did a security sweep of the bar and found the gaming area had been damaged, but discovered no one in the bar. Little, accompanied by the two other officers, approached the white vehicle. Little had a flashlight, shined it through the tinted windows and saw a person lying on the rear seat. Little pounded on the window with the flashlight “to the point where I was afraid it was going to break” and “[y]ell[ed]” that he was a police officer. The person in the back seat did not respond. Little testified he was “puzzled” by the failure to respond because “it’s sub zero weather out there and you have [an] individual ] in a car [that’s] not running.” After “a couple minutes” of pounding on the window without any response, one of the other officers called dispatch to summon a locksmith to come to the scene and unlock the car door.

[¶ 5] The officers waited for 15 to 20 minutes for the locksmith to arrive and continued trying to get the attention of the person in the backseat, but “[t]here was no movement at all that we saw.” The locksmith eventually opened the passenger side door and Little then observed another person, later identified as Washington, lying on the floorboard of the front seat. The officers, with their weapons drawn, removed both people from the vehicle, handcuffed them, and placed them in the back seats of separate patrol cars. Officer Greg Barros, one of the six officers who eventually appeared at the scene, shined his flashlight through the open door of the white vehicle and spotted gloves, a hammer, and a crowbar under the driver and passenger front seats. Barros asked Washington for permission to search the vehicle, but Washington refused. The officers contacted the State’s Attorney to obtain a search warrant and had the vehicle towed to the Dickinson Law Enforcement Center. After obtaining the warrant, the officers found further incriminating evidence in the vehicle, and Washington was later charged with class C felony burglary under N.D.C.C. § 12.1-22-02.

[¶ 6] Washington moved to suppress the evidence based on “the unlawful searches of the defendant’s vehicle and the illegal seizures of the defendant and his vehicle.” Following an evidentiary hearing, the district court denied the motion, concluding “law enforcement personnel had probabl[e] cause to enter and search the vehicle in which the Defendant and his companion were located.” The court explained in its findings recited into the record at the close of the hearing:

The Court would agree that in order to approach the vehicle there had to be reasonable suspicion. I think there was reasonable suspicion. In order to open the door or have someone open the door, I think at that point you need probable cause for the search of the vehicle. The Court’s view is that there was enough evidence known to law enforcement at the time to give them probable cause to search the vehicle. That evidence would be as pointed out by the State. A burglar alarm had sounded. The officer arrived a few minutes after the alarm call. The only vehicle that was seen at the scene is this white Oldsmobile. The time of day, 4:20 a.m. The vehicle stopped abruptly and parked, turned the lights out; enough for there to be reasonable suspicion to approach the vehicle. When the officers approached the occupants were non-responsive. They could observe — Officer Little testified he observed someone laying in the backseat. Apparently the person laying on the floorboard of the front was not observed but someone was observed in the vehicle and this was not just one or two minutes, this was 10-15 minutes. The officers — Officer Little testified he announced himself, whether he shouted or announced himself I think it was pretty clear that they were tapping, pounding on the vehicle, announcing themselves. When you get no response I think that was additional evidence that something is amiss here. Putting all of the pieces together at that point there was probable cause to search the vehicle. I think that the automobile exception applies. The vehicle had been driven a few minutes earlier. When we have the automobile exception the police can search the vehicle if they have probable cause for a search and that is what they did. Once the doors were open they observed the defendant and another individual, Mr. Bigholm. They also observed the burglar tools, gloves, and whether or not they needed a search warrant, the policy was they were going to get a search warrant, and at that point they did it. I think the question is whether they had the probable cause to search the vehicle, have the door open in the first instance. I’m satisfied that putting all the pieces together there was probable cause, the automobile exception applies.

[¶ 7] Washington entered a conditional plea of guilty under N.D.R.Civ.P. 11(a)(2), reserving his right to appeal from the denial of his motion to suppress evidence.

II

[¶ 8] Washington argues the district court erred in denying the suppression motion because the law enforcement officers, without probable cause or a search warrant, contacted the locksmith to open the car door so they could enter the vehicle.

[¶ 9] In State v. Doohen, 2006 ND 239, ¶ 8, 724 N.W.2d 158 (quoting State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381 (citations omitted)), we explained:

In reviewing a district court’s decision on a motion to suppress evidence, we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. We will affirm a district court’s decision on a motion to suppress if there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence. Our standard of review recognizes the importance of the district court’s opportunity to observe the witnesses and assess their credibility. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.

[¶ 10] The Fourth Amendment to the United States Constitution and Article I, Section 8, of the North Dakota Constitution prohibit unreasonable searches and seizures and require that warrants be issued only upon a showing of probable cause. State v. Ebel, 2006 ND 212, ¶ 12, 723 N.W.2d 375; State v. Woinarowicz, 2006 ND 179, ¶ 21, 720 N.W.2d 635. War-rantless searches are unreasonable unless they fall within a recognized exception to the warrant requirement. State v. Tognotti, 2003 ND 99, ¶ 7, 663 N.W.2d 642. A “seizure” occurs for Fourth Amendment purposes when an “ ‘officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’ ” State v. Olson, 2007 ND 40, ¶ 9, 729 N.W.2d 132 (quoting City of Jamestown v. Jerome, 2002 ND 34, ¶ 5, 639 N.W.2d 478). In State v. Torkelsen, 2006 ND 152, ¶ 10, 718 N.W.2d 22, we identified permissible types of law enforcement-citizen encounters: “(1) arrests, which must be supported by probable cause; (2) Terry stops, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) community caretaking encounters, which do not constitute Fourth Amendment seizures.”

[¶ 11] While community caretak-ing functions are “encounters which are ‘totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute,’ ” Rist v. North Dakota Dep’t of Transp., 2003 ND 113, ¶ 9, 665 N.W.2d 45 (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)), investigative stops of automobiles and their occupants for suspected violations of law may be upheld if an officer has at least a reasonable suspicion that the motorist has violated the law or probable cause to believe the motorist has done so. State v. Westmiller, 2007 ND 52, ¶ 9, 730 N.W.2d 134. In Westmiller, at ¶ 10, we explained the minimum standard to justify a stop:

Reasonable suspicion requires more than a mere hunch. State v. Smith, 2005 ND 21, ¶ 15, 691 N.W.2d 203. Reasonable suspicion for a stop exists when a reasonable person in the officer’s position would be justified by some objective manifestation to suspect potential unlawful activity. Johnson v. Sprynczynatyk, 2006 ND 137, ¶9, 717 N.W.2d 586; Smith, at ¶ 15. The reasonable suspicion standard is objective and does not hinge upon the subjective beliefs or motivations of the arresting officer. State v. Leher, 2002 ND 171, ¶ 11, 653 N.W.2d 56. In order to determine whether an investigative stop is valid, we consider the totality of the circumstances and examine the information known to the officer at the time of the stop. Gabel [v. North Dakota Dep’t of Transp.], 2006 ND 178, ¶ 11, 720 N.W.2d 433; State v. Torkelsen, 2006 ND 152, ¶ 13, 718 N.W.2d 22. The reasonable suspicion standard does not require an officer to rule out every possible innocent excuse for the behavior in question before stopping a vehicle for investigation. State v. Deeoteau, 2004 ND 139, ¶ 14, 681 N.W.2d 803.

[¶ 12] In State v. Linghor, 2004 ND 224, ¶10, 690 N.W.2d 201, we explained the meaning of the more heightened standard of probable cause:

The long-prevailing standard of probable cause protects citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime, while giving fair leeway for enforcing the law in the community’s protection. On many occasions, we have reiterated that the probable-cause standard is a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.
The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. We have stated, however, that the substance of all the definitions of probable cause is a reasonable ground for belief of guilt, and that the belief of guilt must be particularized with respect to the person to be searched or seized.

[Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 799-800, 157 L.Ed.2d 769 (2003) ] (internal citations and quotations omitted). Further, “[i]n assessing whether there is probable cause to arrest, police officers need not have knowledge or facts sufficient to establish guilt [at trial], only knowledge that would give a prudent person reasonable grounds to believe an offense has been or is being committed.” State v. Overby, 1999 ND 47, ¶ 13, 590 N.W.2d 703 (citing Torstenson v. Moore, 1997 ND 159, ¶ 17, 567 N.W.2d 622). The Supreme Court in Pringle concluded, “[t]o determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.” Pringle, 124 S.Ct. at 800.

The probable cause standard is the same for both searches and arrests. See State v. Elison, 135 Idaho 546, 21 P.3d 483, 486 (2001); Matter of Welfare of G.M., 560 N.W.2d 687, 695 (Minn.1997); 2 W. La-Fave, Search and Seizure § 3.1(b) (4th ed.2004).

[¶ 13] Although “mere presence” at or near the scene of a crime does not give rise to a reasonable suspicion of criminal activity or support a warrantless search, Torkelsen, 2006 ND 152, ¶ 15, 718 N.W.2d 22, there is much more than a “mere presence” near the scene of a crime in this case. Koskovich was in close proximity to Army’s West when he received the dispatch about the alarm call and arrived at the scene within two minutes. It was 4:20 a.m. on a cold winter morning when he spotted the lone white vehicle with tinted windows being driven in the parking lot and “abruptly” stopping. The car engine and lights were turned off and no one exited the vehicle, even though the temperature was “pretty close to zero.” After other officers arrived and it was confirmed that there had been a break in at the bar and no one was found inside, Little watched the vehicle for 15 to 20 minutes without seeing anyone exit or turn on the car for heat. Under the totality of the circumstances, we conclude that when Little and the other officers approached the vehicle to converse with its occupants, they had a reasonable and articulable suspicion that the occupants of the vehicle had violated the law.

[¶ 14] “An officer’s approach to a parked vehicle is not a seizure if the officer inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response.” Lapp v. North Dakota Dep’t of Transp., 2001 ND 140, ¶ 8, 632 N.W.2d 419. Little used his flashlight to peer into the vehicle, spotted a person lying on the back seat, and began pounding on the windshield to attempt to gain the occupant’s attention and yelling that he was a police officer. These actions suggest Little and the other accompanying officers surrounding the vehicle were not acting in a community caretaker role during their encounter with the occupants, and the State does not contend that this was a community caretaker encounter rather than a seizure for Fourth Amendment purposes. See, e.g., State v. Boyd, 2002 ND 203, ¶ 10, 654 N.W.2d 392 (community caretaker exception inapplicable where law enforcement officer blocked vehicle’s rear exit and issued orders to occupants and demanded compliance). We conclude the occupants of the white vehicle were seized by the law enforcement officers when the officers surrounded the vehicle in this case.

[¶ 15] Once a vehicle has been validly stopped and its occupants lawfully detained, law enforcement officers may constitutionally order the driver and passengers out of the vehicle, even in situations not amounting to arrest. See State v. Haverluk, 2000 ND 178, ¶ 20, 617 N.W.2d 652; State v. DuPaul, 509 N.W.2d 266, 270 (N.D.1993); see also Maryland v. Wilson, 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (passengers); Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (driver). This Court has also determined that no constitutional violation occurs when a law enforcement officer opens a vehicle door after receiving no response from vehicle occupants, see, e.g., Lapp, 2001 ND 140, ¶ 15, 632 N.W.2d 419; State v. Konewko, 529 N.W.2d 861, 863 (N.D.1995), and when an officer is unable to see inside a vehicle because of its tinted windows. See State v. Anderson, 2006 ND 44, ¶¶ 36-37, 710 N.W.2d 392; compare State v. Ferrise, 269 N.W.2d 888, 890 (Minn.1978) (“[T]here is little practical difference between ordering a driver to open his door and get out of his car, on the one hand, and opening the door for the driver and telling him to get out, on the other. In this case, if the driver had not gotten out of the car on his own, the officer could have opened the door and told him to get out.”). Here, despite Little and the other officers’ repeated efforts to obtain a response from the individual lying in the back seat of a non-running vehicle in “sub zero weather” over a twenty-minute period, they saw “no movement at all.” We believe the officers could reasonably form the belief that the person lying in the back seat, if not in need of assistance, was attempting to avoid detection. We conclude that, under the totality of the circumstances at this point, the law enforcement officers had probable cause to arrest the individual lying in the back seat, not only for physical obstruction of government function under N.D.C.C. § 12.1-08-01 and preventing arrest or discharge of other duties under N.D.C.C. § 12.1-08-02, but for the burglary that had occurred at the bar.

[¶ 16] “In making an arrest, an officer is under no obligation to retreat but has the legal right to press forward and accomplish the arrest.” Jones v. Ahlberg, 489 N.W.2d 576, 580 (N.D.1992); see also N.D.C.C. § 29-06-13; Schell v. Collis, 83 N.W.2d 422, 425 (N.D.1957). Because law enforcement officers had the right to open a door to the white vehicle when the person in the back seat failed to respond, they certainly had the right to use appropriate forcible means to effectuate the arrest. See, e.g., Winters v. Adams, 254 F.3d 758, 761, 766 (8th Cir.2001) (officers acted reasonably in smashing the window of a vehicle after occupant rolled up windows, locked doors, and refused to exit); Miller v. Page, 2005 WL 3557426, *7 (W.D.Mo., Dec.28, 2005) (officers did not act unreasonably in breaking vehicle window to extract occupant who failed to respond to request that she roll down window and show her driver’s license and refused to exit car); Lane v. State, 226 Md. 81, 172 A.2d 400, 405-06 (1961) (search and seizure was lawful even though officers broke window of vehicle to prevent occupant who had locked doors from driving away); Qualls v. State, 947 So.2d 365, 372 (Miss.App.2007) (when individual seen inside car did not respond to officer’s requests to exit vehicle, officer had probable cause to break car window and detain occupants for additional questioning, and at the very least, charge them with misdemeanor failure to comply with lawful commands of police officer). Under the circumstances here, the officers’ use of a locksmith to open the vehicle door to effectuate the arrest of the occupants was eminently reasonable under the Fourth Amendment. An arrest warrant was not required. See Linghor, 2004 ND 224, ¶ 8, 690 N.W.2d 201 (“Under North Dakota law an officer is authorized to arrest a person, without a warrant, for a public offense committed or attempted in the officer’s presence; when the person arrested has committed a felony, although not in the officer’s presence; and when a felony in fact has been committed and the officer has reasonable cause to believe the person arrested to have committed it”); N.D.C.C. § 29-06-15(l)(a-c).

[¶ 17] Once the door to the vehicle was opened and Washington was discovered hiding on the floorboard of the front seat, the officers had probable cause to arrest Washington as well. Barros shined his flashlight through the open door of the vehicle and saw gloves, a hammer, and a crowbar under the driver and passenger front seats in plain view. See State v. Parizek, 2004 ND 78, ¶ 22, 678 N.W.2d 154 (officer’s “use of a flashlight to see inside of the van does not render her observations illegal under the plain view doctrine”). Consequently, seizure of this evidence would have been justified under the plain view doctrine or as incident to a lawful arrest. See Anderson, 2006 ND 44, ¶ 38, 710 N.W.2d 392. The officers’ use of caution in obtaining a search warrant before proceeding further, and their subjective beliefs as to the existence or nonexistence of reasonable suspicion and probable cause are of no moment. “An officer’s subjective intent plays no role in ordinary probable cause Fourth Amendment analysis.” State v. Leher, 2002 ND 171, ¶ 11, 653 N.W.2d 56; see also Westmiller, 2007 ND 52, ¶ 10, 730 N.W.2d 134 (“The reasonable suspicion standard is objective and does not hinge upon the subjective beliefs or motivations of the arresting officer”).

[¶ 18] We have considered the other arguments raised by Washington and deem them to be without merit. We conclude Washington’s Fourth Amendment rights were not violated in this case and the district court did not err in denying his suppression motion.

Ill

[¶ 19] The amended order deferring imposition of sentence is affirmed.

[¶ 20] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.


author: CROTHERS, Justice.

text:
    2007 ND 137
    CITY OF FARGO, Plaintiff and Appellee, v. Mitch MALME and Mitch Malme Investments, L.L.C., a North Dakota Limited Liability Company, Defendants and Appellants.
    No. 20070043.
    Supreme Court of North Dakota.
    Aug. 22, 2007.

      Patricia Ann Roscoe, Assistant City Attorney, Fargo, N.D., for plaintiff and ap-pellee.
    Jonathan T. Garaas, Garaas Law Firm, Fargo, N.D., for defendants and appellants.
   CROTHERS, Justice.

[¶ 1] Mitch Malme and Mitch Malme Investments, L.L.C., appeal from a judgment affirming the Fargo Administrative Enforcement Board’s imposition of a fine for violation of municipal ordinances relating to use of property. Because the administrative enforcement board is not a tribunal authorized by state law, we reverse the judgment.

I

[¶ 2] In 2005, the Fargo Board of City Commissioners adopted Article 1-04 of the Fargo Municipal Code which created an “Administrative Enforcement Program.” The administrative enforcement program is intended to be “an alternative method that may be used by the city to gain compliance with the city’s ordinances,” and the enforcement and hearing process provided under the program is “in addition to any other legal or equitable remedy available to the city for the enforcement of ordinances contained in the Fargo Municipal Code.” Fargo Municipal Code § 1-0401. The ordinance contains a list of 17 “administrative offense[s] that may be subject to an administrative citation and corresponding civil fees and processed through the administrative enforcement program.” Fargo Municipal Code § 1-0402. These offenses include violations of the “City Planning and Zoning-Land Development Code,” the “International Building Code,” and the “International Property Maintenance Code/Minimum Housing Standards.” Id.

[¶ 3] Administrative orders to correct an ordinance violation may be issued by “city officials or their designees,” Fargo Municipal Code § 1-0403, and violators “may be subject to a civil fee not exceeding $2,000.” Fargo Municipal Code § 1-0404. The “[a]dministrative order to correct ordinance violation” must be served “to the person responsible for violation” and “shall state the date, time, nature of offense, name of issuing official, the action required to correct the violation, the deadline for taking corrective action, and the amount of scheduled fee if compliance is not obtained.” Fargo Municipal Code § 1-0405(B) and (C). If an alleged violator does not comply with the administrative order to correct, an administrative citation may be issued and served upon “the registered property owner” informing the owner of “the nature of the offense including the name of the issuing official, the amount of the scheduled fee, the manner for paying the fee, the deadline for paying the fee, and the deadline for appealing the administrative citation.” Fargo Municipal Code § 1 — 0406(B) and (C). The alleged violator must either pay the scheduled fee within 14 days or request a hearing. See Fargo Municipal Code §§ 1-0406(D) and 1-0407.

[¶ 4] Hearings are held before the “administrative enforcement board.” Fargo Municipal Code § 1-0408(A). Section 1-0409 of the Fargo Municipal Code addresses the membership of the administrative enforcement board:

The administrative enforcement board shall consist of a minimum of three members, with two alternative members, who are qualified by experience and training to pass on matters relating to the subjects outlined in section 1-0402. Members of the board shall be appointed by the board of city commissioners to serve three-year terms. Members may not be employees of the city.

The administrative enforcement board is given the power to issue subpoenas, see Fargo Municipal Code § 1 — 0408(G), allow discovery depositions under the North Dakota Rules of Civil Procedure, see Fargo Municipal Code § 1-0408(H), and has the authority to “1. determine that a violation occurred; 2. dismiss the administrative citation; 3. impose the scheduled fee amount; 4. reduce, stay or waive the scheduled fee amount either unconditionally or upon compliance with appropriate conditions.” Fargo Municipal Code § 1-0408(1). The administrative hearing procedure is described in Fargo Municipal Code § 1-0408(C):

At the hearing the parties will have the opportunity to present testimony and question any witnesses, but strict rules of evidence will not apply. The administrative enforcement board will receive testimony and exhibits, give appropriate weight to the evidence, including hearsay evidence which possesses probative value commonly accepted by reasonable and prudent people in the conduct of their affairs.

“The decision of the administrative enforcement board shall be issued at the conclusion of the hearing or in writing if the matter is taken under advisement, and shall contain appropriate findings and conclusions.” Fargo Municipal Code § 1-0408(L).

[¶ 5] Under Fargo Municipal Code § 1-0411(B), unpaid fees for property-related ordinance violations “may be assessed against the property concerned,” and “such special assessments shall then be certified by the county auditor and placed upon the tax roll for that year and be collected as other taxes.” Aggrieved parties may obtain judicial review of the administrative enforcement board’s decisions under the appeal procedures outlined in N.D.C.C. § 28-34-01. See Fargo Municipal Code § 1-0413.

[¶ 6] During 2005, Fargo’s Building Inspections Department found violations of its International Building Code, International Property Code, and City Planning and Zoning-Land Development Code ordinances at a rental property owned by Mitch Malme Investments, L.L.C., whose registered agent is Mitch Malme. On November 16, 2005, the city issued an administrative notice and order to correct to Mitch Malme Investments, L.L.C. The city mailed the notice to Malme at his home address, which is the principal office of Mitch Malme Investments, L.L.C. After the city determined the violations had not been corrected by the deadline, the city issued an administrative citation to Malme and mailed it to his home address.

[¶ 7] Malme appealed and received two hearings before the three members of the Administrative Enforcement Board, none of whom were attorneys. In addition to contesting the alleged violations on their merits, Malme also sought dismissal for improper service of the administrative citation and challenged the authority of the board to act based on numerous constitutional and statutory grounds. At the conclusion of the second hearing, the Administrative Enforcement Board unanimously denied Malme’s appeal and imposed a fíne for the violations. Malme and Mitch Malme Investments, L.L.C., appealed to district court under the provisions of N.D.C.C. § 28-34-01. The court affirmed the board’s decision, concluding Fargo had the authority to enforce its property ordinances under the administrative enforcement program and the Administrative Enforcement Board’s decision was not arbitrary, capricious, or unreasonable. Malme and Mitch Malme Investments, L.L.C. (collectively “Malme”), appealed.

II

[¶ 8] The dispositive issue on appeal is whether Fargo had the authority to create the Administrative Enforcement Board. Malme argues Fargo’s use of a three-member layperson board to adjudicate ordinance violations conflicts with N.D.C.C. § 40-18-01(1), which requires a “municipal judge within a city having a population of five thousand or more [to be] licensed to practice law in this state, unless no person so licensed is available in the city.”

[¶ 9] The Legislature has constitutional authority to provide by law for the establishment and government of all political subdivisions under N.D. Const, art. VII, § 2. See Pelkey v. City of Fargo, 458 N.W.2d 801, 803 (N.D.1990). “Cities are creatures of statute and possess only those powers and authorities granted by statute or necessarily implied from an express statutory grant.” City of Bismarck v. Fettig, 1999 ND 193, ¶4, 601 N.W.2d 247. The Legislature also has the constitutional authority to “provide by law for the establishment and exercise of home rule in counties and cities,” N.D. Const, art. VII, § 6, and has provided for home rule cities by enacting N.D.C.C. ch. 40-05.1. Fargo is a municipal corporation operating under a home rule charter. See Pelkey, 453 N.W.2d at 802; Firefighters Local 6⅛2 v. City of Fargo, 321 N.W.2d 473, 475 (N.D. 1982).

[¶ 10] “[H]ome rule charters] allow[ ] cit[ies] to enact laws contrary to those of the state.” Fettig, 1999 ND 193, ¶ 4 n. 1, 601 N.W.2d 247. Section 40-05.1-05, N.D.C.C., provides “[t]he charter and the ordinances made pursuant to the charter in such matters supersede within the territorial limits and other jurisdiction of the city any law of the state in conflict with the charter and ordinances and must be liberally construed for such purposes.” However, a home rule city’s ability to enact ordinances that supersede state law is not without limitation, because “[w]hatever powers a home rule city may have are based upon statutory provisions.” Pelkey, 453 N.W.2d at 805.

[¶ 11] In Litten v. City of Fargo, 294 N.W.2d 628, 630 (N.D.1980), this Court addressed whether “a home rule city, independent of the general laws relating to cities, [may] select its own form of government and decree its own procedure for changing the form of government.” In answering the question in the negative, the Court reasoned:

It becomes somewhat evident that the language in § 40-05.1-05, NDCC, permitting a city ordinance to supersede state law where there is a conflict has reference only to those powers given to the city under § 40-05.1-06, because in certain instances the legislature specifically required compliance with the special laws. Subsection 11 of § 40-05.1-06, NDCC, specifically provides that the zoning, planning and subdividing outside the city limits may be as permitted by state law, and subsection 14 provides that the boundary limits of the city and the annexation and deannexation of territory must conform with state law. This clearly indicates that the legislature intended the cities to exercise broad plenary powers in those items specified under § 40-05.1-06, except where specifically provided that these powers may be exercised only by conforming or complying with state law. It necessarily follows that in order to determine what broad powers were given to home rule cities we must examine the various provisions of § 40-05.1-06. If the authority or power to enact an ordinance on a specific subject is not found in § 40-05.1-06 or in Ch. 40-05.1, or some other comparable statute, then a strong presumption exists that the city will be governed by the laws generally applicable to cities.
It is not sufficient merely to examine the subsections of § 40-05.1-06, NDCC, to determine what powers the city of Fargo, a home rule city, may have. To make this determination it is also necessary to review the charter to determine if those powers are included in the charter, and if they are it then becomes necessary to determine if they were implemented by an ordinance. It therefore follows that if the powers are not stated in the charter, or if they are stated in the charter but are not implemented by ordinance, the home rule city may not avail itself of the powers enumerated in § 40-05.1-06, NDCC, but would be governed by the statutes applicable generally to all cities.

Id. at 632. Therefore, the supersession provision in N.D.C.C. § 40-05.1-05 applies only to those powers enumerated in N.D.C.C. § 40-05.1-06, and those powers must also be included in the charter and be implemented by ordinance. Id. If these requirements are not met, a home rule city’s “powers are those bestowed by the legislature on all municipalities.” Haug-land v. City of Bismarck, 429 N.W.2d 449, 452 (N.D.1988); see N.D.C.C. § 40-05-01 (powers of all municipalities).

[¶ 12] Article 3 of Fargo’s home rule charter tracks the language and powers set forth in N.D.C.C. § 40-05.1-06(l)-(15). See Litten, 294 N.W.2d at 633. As the source for its authority to establish the administrative enforcement board, Fargo relies upon Article 3, §§ G and I, and N.D.C.C. § 40-05.1-06(7) and (9), which grant the power:

To provide for the adoption, amendment, and repeal of ordinances, resolutions, and regulations to carry out its governmental and proprietary powers and to provide for public health, safety, morals, and welfare, and penalties for a violation thereof.
To define offenses against private persons and property and the public health, safety, morals, and welfare, and provide penalties for violations thereof.

Fargo does not contend the Administrative Enforcement Board is a “court,” and as the authority for establishment of the board, Fargo expressly disclaims any reliance on Article 3, § E of the charter, and N.D.C.C. § 40-05.1-06(5), which grant the power:

To provide for city courts, their jurisdiction and powers over ordinance violations, duties, administration, and the selection, qualifications, and compensation of their officers; however, the right of appeal from judgment of such courts shall not be in any way affected.

Because Fargo disclaims any reliance on section 40-05.1-06(5), we need not decide here whether such a board, if authorized by statute, would impermissibly conflict with Article 6 of the North Dakota Constitution.

[¶ 13] The rule of strict construction applies in defining municipal powers. GO Comm. ex rel. Hale v. City of Minot, 2005 ND 136, ¶ 8, 701 N.W.2d 865; Fettig, 1999 ND 193, ¶ 4, 601 N.W.2d 247; Ebach v. Ralston, 469 N.W.2d 801, 804 (N.D.1991); Haugland, 429 N.W.2d at 453. Any doubt as to the existence or extent of municipal powers must be resolved against the municipality. See Meyer v. City of Dickinson, 451 N.W.2d 113, 115 (N.D.1990); Dacotah Hotel Co. v. City of Grand Forks, 111 N.W.2d 513, 515 (N.D.1961); Lang v. City of Cavalier, 59 N.D. 75, 228 N.W. 819, Syll. 3 (1930).

[¶ 14] Article 3, §§ G and I of Fargo’s home rule charter and N.D.C.C. § 40-05.1-06(7) and (9) broadly allow the city the power to define offenses, to provide penalties, and to adopt ordinances, resolutions, and regulations to carry out its proprietary powers in the interests of public health, safety, morals and welfare. These provisions, however, do not address, let alone authorize, the creation of an administrative system for adjudication of alleged violations of ordinances or regulations enacted by the municipality as an alternative to municipal court. In the face of this void, Fargo argues it has an “inherent authority” which “necessarily includes the ability to further delegate authority to administrative bodies and boards,” and relying on First American Bank and Trust Co. v. Ellwein, 221 N.W.2d 509 (N.D.1974), asserts “[l]ocal governing bodies commonly delegate adjudicative functions to administrative bodies.” Ellwein simply does not support Fargo’s argument because, unlike the situation here, the State Banking Board in that case was expressly “charged by statute with a tripartite responsibility of performing investigative, accusative, and adjudicative functions.” Id. at 513 (emphasis added). The home rule charter and statutory provisions relied upon by Fargo cannot reasonably be construed to provide a home rule city the power to create a layperson administrative adjudicatory board with the responsibility of trying alleged violations of municipal ordinances.

[¶ 15] Section 40-18-01(1), N.D.C.C., provides a “municipal judge has jurisdiction to hear, try, and determine offenses against the ordinances of the city,” and further requires that a “municipal judge within a city having a population of five thousand or more must be licensed to practice law in this state.” The responsibilities granted to Fargo’s Administrative Enforcement Board conflict with N.D.C.C. § 40-18-01(1). We conclude the Administrative Enforcement Board lacked the authority to adjudicate Malme’s alleged violations of Fargo’s municipal ordinances.

Ill

[¶ 16] Because the Administrative Enforcement Board had no statutory authority to adjudicate Malme’s alleged violations of the municipal ordinances, its decision is void. See State v. Johnson, 139 N.W.2d 157, 158 Syll. 3 (N.D.1965). It is unnecessary to address the other issues raised. The judgment affirming the board’s decision is reversed, and the case is remanded for entry of an order vacating the board’s decision.

[¶ 17] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.