author: MEIERHENRY, Justice.

text:
    2007 SD 23
    BRIDGEWATER QUALITY MEATS, L.L.C., Plaintiff and Appellee, v. Leonard HEIM and Jeannie Heim, d/b/a J & L Bison Ranch, Defendants and Appellants.
    No. 24060.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 8, 2007.
    Decided March 7, 2007.

      Roger R. Gerlach, Salem, South Dakota, Attorney for plaintiff and appellees.
    Jeff Adel of Bridgman and Adel, Wess-ington Springs, South Dakota, Attorneys for defendants and appellants.
   MEIERHENRY, Justice.

[¶ 1.] This action arises out of two separate agreements involving the slaughter and sale of buffalo. The first agreement involved Leonard and Jeannie Heim, d/b/a J & L Bison (collectively referred to as Heim) and Jason Sparling (Sparling), d/b/a Gourmet Bison and the second involved Sparling and Bridgewater Quality Meats, LLC (Bridgewater). Pursuant to these agreements, Heim delivered buffalo to Bridgewater for slaughtering over a two year period and on some occasions received the processed meat. In July of 2003, Bridgewater filed a small claims action alleging that Heim owed $7,986.58 for meat products received from Bridgewater. Heim removed the case to circuit court and counterclaimed seeking over $42,000.00 for sixteen buffalo he had delivered to Bridgewater. A jury trial was held on December 19, 2005, and the jury returned a verdict in favor of Bridgewater and against Heim on his counterclaim. Heim appeals and we affirm.

FACTS

[¶ 2.] The following facts are not in dispute. Heim operated a buffalo ranch in Jerauld County, South Dakota and entered into an agreement with Sparling, owner and operator of Gourmet Bison (hereinafter referred to as “the Heim-Sparling Agreement”). Heim agreed to purchase young buffalo, feed them, and take them to Bridgewater, a meat processor, for slaughter. In addition to the slaughter cost, Sparling agreed to pay $2.30 per pound hot hanging weight for the buffalo. Spar-ling would then take the meat for resale. In December of 1999, Heim made the first delivery of buffalo to Bridgewater and Sparling paid Heim pursuant to the terms of their agreement.

[¶ 3.] Sparling subsequently began experiencing financial difficulties and approached Han Párente (Párente), owner of Bridgewater, regarding Sparling’s obligations under the Heim-Sparling Agreement. Sparling explained that he was no longer financially able to pay Heim under their agreement. He asked Párente to continue slaughtering the buffalo Heim delivered to Bridgewater, but then also purchase the meat from Heim for the same price provided under the Heim-Sparling Agreement. Párente agreed that Bridge-water would continue to accept deliveries from Heim, but only agreed to pay Heim the current market rate of $1.90 per hot hanging weight for the buffalo meat, rather than the $2.30 per hot hanging weight as set forth in the Heim-Sparling Agreement. Accordingly, Sparling agreed that he would pay Heim the difference.

[¶ 4.] At what point Heim began making deliveries pursuant to Sparling’s agreement with Párente (hereinafter referred to as “the Sparling-Parente Agreement”) is disputed. Heim testified that he began delivering buffalo to Bridgewater pursuant to the Sparling-Parente Agreement beginning with his February 2000 delivery of buffalo. Heim testified as follows:

Q. The first animals you ever got paid by Bridgewater Quality Meats was for a load you delivered in March of 2000; correct?
A. He was supposed to buy a load that I delivered in February.
Q. What do you mean supposed to?
A. When Jason Sparling couldn’t pay me for the buffalo, Jason and lian (Párente) had a conversation.
Q. Wait. Were you part of that conversation between Jason and Párente?
A. No.
Q. You weren’t there?
A. No.
Q. Did you take a load of buffalo there in February of 2000?
A. Yes.
Q. Well, who told you to take them there?
A. lian (Párente).
Q. Do you know who ended up with the meat?
A. No.
Q. Do you know if Jason Sparling ended up with that meat?
A. No. I don’t know who ended up with the meat of any of the buffalo that I took to Bridgewater.

[¶ 5.] Párente denied receiving a delivery of buffalo from Heim in February of 2000. Párente testified that he had searched every record in Bridgewater’s plant to try to locate documentation of a transaction with Heim on February 21, 2000 and that “there is no record for February 21 of 2000 for bison brought into Bridgewater Quality Meats by Leonard Heim.” Párente claimed that, according to his records, the first delivery Heim made per the Sparling-Parente Agreement was in March of 2000. Párente testified as follows:

Q. Now you kind of distinguished the first load which was March 13, 2000, from the loads that were brought in after that.
A. Correct.
Q. Why is that?
A. The initial discussion that I had was not with Leonard Heim nor did I ever have a discussion with Leonard Heim about how many animals he had, what he expected to be paid for them, et cetra. I did not know Leonard Heim prior to that date that he brought them into my facility. The only person I knew at the time was an individual by the name of Jason Sparling.
Q. So this load of buffalo, the first load on March 13, 2000, how did they end up at that facility?
A. Jason Sparling contacted me, and he and I had been conducting business at the time for several months and informed me that he was unable to hold up his end of an agreement that he had with a family member of his, namely Leonard Heim, and if I would be kind enough to assist him in slaughtering those animals.

Párente further testified that after the first day of trial it struck him that the buffalo may have come into Bridgewater’s facility listed under Gourmet Bison, Spar-ling’s d/b/a. After checking his records for Gourmet Bison, he found a record indicating Gourmet Bison had delivered sixteen buffalo on January 12, 2000. However, he did not produce any record for Gourmet Bison indicating a February, 2000 delivery.

[¶ 6.] The parties continued their business agreement into 2001 until the buffalo market declined. Because of the extreme drop in the market, Párente informed Heim that he would no longer be able to afford to pay Heim for buffalo. However, Párente and Heim agreed that Heim would continue to deliver buffalo to Bridgewater. In return, Heim would receive buffalo meat for resale purposes and Párente would pay off his account gradually. Párente eventually zeroed out Heim’s account.

[¶ 7.] Heim and Párente then entered into another agreement wherein Heim was allowed to purchase buffalo meat from Bridgewater on credit. Heim agreed to satisfy this account with buffalo he was currently raising. However, Heim failed to deliver the buffalo as agreed, which led Bridgewater to file this action.

[¶ 8.] After a three day trial, the jury returned a verdict in favor of Bridgewater for $7,986.58 for the amount of meat Heim had received from Bridgewater for resale purposes. The jury found against Heim on his counterclaim. Heim timely filed a new trial motion alleging that he had discovered new evidence consisting of records from the South Dakota Animal Industry Board (Animal Industry Board), a state agency that provides inspection services to small meat processing and slaughter establishments, which indicated that Heim had delivered buffalo to Bridgewater on or around February 21, 2000. After twenty days had passed, Bridgewater subsequently filed a motion for an order stating that the time to decide the new trial motion had lapsed pursuant to SDCL 15 — 6—59(b). The trial court issued an order, which “determined that the time for a new trial has lapsed statutorily.” Heim appeals and raises one issue.

Did the trial court err when it failed to order a new trial based on Heim’s post-trial discovery of a livestock delivery record?

ANALYSIS

1. Standard of Review

[¶ 9.] The procedure for granting or denying a motion for a new trial is set forth in SDCL 15 — 6—59(b) as follows:

The court shall make and file the order granting or denying such new trial within twenty days after the service and filing of such motion, unless for good cause shown, the court files an order within said twenty days extending the time for entering such order. If a motion for new trial has not been determined by the court and no order has been entered by the court extendiny the time for such ruliny within twenty days from the date of service and tiling of such motion, it shall be deemed denied.

SDCL 15-6-59 (emphasis added).

[¶ 10.] We review specific grants or denials of a motion for a new trial under the abuse of discretion standard. Schmidt v. Royer, 1998 SD 5, ¶ 9, 574 N.W.2d 618, 621. As a matter of first impression, we must decide whether to apply the abuse of discretion standard when reviewing the statutory denial of a motion for a new trial because of the trial court’s failure to rule upon the motion pursuant to SDCL 15-6-59(b). The statute states that when the trial court fails to pass upon a motion for a new trial within twenty days, such motion, “shall be deemed denied.” SDCL 15-6-59(b). Thus, according to the plain meaning of the statute, the trial court is presumed to have exercised its discretion by letting the time-lapse serve as a denial of the motion just as if the trial court had affirmatively granted the motion. See In re Shepard’s Estate, 221 Cal.App.2d 70, 34 Cal.Rptr. 212, 214 (1963) (stating that the merits of a motion for a new trial denied by operation of law may be reviewed upon appeal in the same manner as if expressly denied by the court); Strauch v. Bieloh, 16 Cal.App.2d 278, 60 P.2d 582, 584 (1936) (stating that the abuse of discretion standard applies with equal force when the motion for a new trial is automatically denied for failure to pass upon the motion). Therefore, the abuse of discretion standard applies when the motion for a new trial is automatically denied under the provisions of SDCL 15-6-59(b).

2. Bridgewater’s Jurisdictional Arguments

[¶ 11.] Bridgewater argues that Heim cannot appeal the statutory denial of his motion for a new trial because the trial court did not affirmatively rule on the merits. Therefore, Bridgewater contends that this Court cannot address the issue for the first time on appeal. Bridgewater cites no supporting authority for this argument and we find its rationale unpersuasive. If we accepted Bridgewater’s rationale, every statutory denial of a motion for a new trial pursuant to SDCL 15 — 6—59(b) would evade appellate review. Furthermore, SDCL 15-26A-6, which governs the time limits for filing an appeal with this Court, contemplates the situation where the trial court fails to take action on a motion. The relevant portion of the statute provides:

The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the circuit court by any party pursuant to § 15-6-59 or § 15 — 6—50(b), or both, and the full time for appeal fixed by this section commences to run and is to be computed from the attestation and filing of an order made pursuant to such motion or if the circuit court fails to take action on such motion or fails to enter an order extending the time for taking action on such motion within the time prescribed, then the date shall be computed from the date on which the time for action by the circuit court expires.

SDCL 15-26A-6 (emphasis added). If SDCL 15-6-59(b) were interpreted as Bridgewater suggests, the language in SDCL 15-26A-6 referencing the trial court’s failure to take action on a motion would be rendered meaningless. “[0]ur method of statutory interpretation requires that we find a meaningful understanding of a statute where possible.” Bon Homme Co. Comm’n v. AFSCME, 2005 SD 76, ¶ 22, 699 N.W.2d 441, 452. Accordingly, the trial court’s failure to take action on Heim’s motion for a new trial did not affect the availability of appellate review.

[¶ 12.] On the other hand, Bridgewater argues that this Court may not review Heim’s motion for a new trial because SDCL 15-26A-9 provides that this Court may only review post-judgment motion rulings if they were “timely presented to the [trial] court.” Bridgewater contends that because Heim’s motion was statutorily denied on timeliness grounds, a review of the motion would violate SDCL 15-26A-9. Bridgewater fails to appreciate the fact that Heim’s motion for a new trial was timely presented to the trial court. It was the trial court itself that failed to take action within the statutorily prescribed time limit. Accordingly, Bridgewater’s argument is without merit.

3. Neioly Discovered Evidence

[¶ 13.] Heim argues that the trial court’s statutory denial of a new trial was an abuse of discretion. Heim argues that the record from the Animal Industry Board is newly discovered evidence that Heim delivered buffalo to Bridgewater on February 21, 2000, a material disputed fact. We review the statutory denial of a motion for a new trial under the abuse of discretion standard. See supra ¶ 10.

[¶ 14.] When a party seeks a new trial under SDCL 15-6-59(a) based on newly discovered evidence, the party must demonstrate first that it is newly discovered evidence and secondly that it could not, by reasonable diligence, have been determined and produced at the trial and that it would be believed by the jury and would produce a different result. City of Sioux Falls v. Missouri Basin Mun. Power Agency, 2004 SD 14, ¶ 16, 675 N.W.2d 739, 744.

[¶ 15.] At trial, Heim presented a handwritten note that he had prepared dated February 21, 2000, which listed the buffalo he had delivered to Bridgewater on that date. The note included information such as the animal tag number, the animal carcass weight, and whether the buffalo was kosher. Conversely, Párente testified that after thoroughly checking his records, he had no evidence that Heim made a delivery on that date. Párente further testified that he had contacted the U.S. Department of Agriculture (USDA) and was told that there was no record of such delivery. Heim claims that the first time he became aware that the USDA or any other agency kept records of animal deliveries to Bridgewater was when Párente testified at trial.

[¶ 16.] Only after the completion of the jury trial did Heim contact the USDA, which contacted the Animal Industry Board. According to the Animal Industry Board’s record, it tested sixteen buffalo on February 25, 2000, which had been delivered by Heim to Bridgewater. The tag numbers of these animals matched the tag numbers Heim had recorded in his handwritten note as having been delivered to Bridgewater on February 21. Heim argues that the Animal Industry Board’s record is newly discovered evidence and that the trial court abused its discretion in not granting his motion for a new trial.

[¶ 17.] “The burden rests on the moving party to show there was no lack of diligence precluding earlier discovery. A new trial applicant will be denied relief, if the same effort to find the evidence expended after trial, would have produced it before trial.” State v. Gehm, 1999 SD 82, ¶ 15, 600 N.W.2d 535, 540-41 (citing United States v. Bransen, 142 F.2d 232, 235 (9th Cir.1944)); see also George v. Estate of Baker, 724 N.W.2d 1, 12 n. 8 (Minn 2006) (stating that “[a] motion for a new trial upon the ground of newly discovered evidence is properly denied for lack of diligence of the moving party where the same diligence which led to the discovery of the new evidence after trial would have discovered it had such diligence been exercised prior thereto.”).

[¶ 18.] In April of 2001, the parties began discussing Heim’s allegation that he delivered buffalo in February 2000. Bridgewater instituted this lawsuit in July of 2003. Heim discovered the records from the Animal Industry Board between the December 2005 trial and the January 16, 2006 Motion. The records from the Animal Industry Board could have easily been obtained during the time period between 2001 and 2005. Besides Heim’s lack of knowledge that these records existed at the time of trial, Heim offers no explanation as to why these records could not have been discovered earlier. Knowing that he needed to prove that he had delivered buffalo to Bridgewater in February of 2000, it is reasonable to conclude that Heim could have checked sources such as the USDA and the Animal Industry Board, two agencies that are required by law to monitor, test, and regulate the meat processing industry.

[¶ 19.] Notwithstanding the lack of diligence, Heim fails to show that the newly discovered evidence would have been believed by the jury and would have produced a different result. City of Sioux Falls, 2004 SD 14, ¶ 16, 675 N.W.2d at 744. Even if the record from the Animal Industry Board were considered, it is still unclear if the buffalo were delivered pursuant to the Heim-Sparling or the Sparling-Parente Agreement. There was conflicting testimony as to whether the first load of buffalo delivered under the Sparling-Parente Agreement occurred in February or March of 2000. Whether the introduction of the record from the Agricultural Board would have changed the verdict is difficult to ascertain. The test is whether “there is a reasonable probability that the newly discovered evidence would probably produce a different result at a new trial.” State v. Steele, 510 N.W.2d 661, 664 (S.D.1994) (quoting State v. Willis, 396 N.W.2d 152, 154 (S.D.1986)); see also Gehm, 1999 SD 82, ¶ 18, 600 N.W.2d at 542 (stating that “it is not enough to ask if the verdict would possibly be different. The question is would it probably be different.”). While the record from the Animal Industry Board may have indicated that Heim delivered buffalo to Bridgewater in February of 2000, it did not answer the ultimate question as to whether Bridgewater was obligated to pay Heim for the delivery. Only under the Sparling-Parente Agreement could Bridgewater have been liable for payment to Heim and the record of the Animal Industry Board is silent on that issue. Although the newly discovered Animal Industry Board record may lend support to Heim’s claim, we can not conclude that the jury would have reached a different verdict had this evidence been presented.

[¶ 20.] “New trial motions based on newly discovered evidence request extraordinary relief; they should be granted only in exceptional circumstances and then only if the requirements are strictly met.” Gehm, 1999 SD 82, ¶ 15, 600 N.W.2d 535, 540. Considering the three to four year period in which Heim could have discovered the record from the Animal Industry Board, the lack of showing that the verdict probably would have been different, and our deferential standard of review, the statutory denial of Heim’s motion for a new trial was not an abuse of discretion.

[¶ 21.] Affirmed.

[¶ 22.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . The Animal Industry Board's website contains the following information regarding its purpose:
      The Animal Industry Board is specifically charged with protecting the health of the animal industry of South Dakota under SDCL 40-3. Every aspect of our activities in regulatory operations takes into account this responsibility. Certain diseases have control and eradication programs such as brucellosis, pseudorabies, pullorum, etc. Other diseases are monitored for threats to the various industries. Requirements for inspections, identification, facilities, licensing, testing programs, and others constantly weigh the risk a threat may present versus the benefits of regulations to the industries and the people of South Dakota.

        Sam D. Holland, DVM, South Dakota Animal Industry Board, http://www.state.sd.us/aib/ meatinspection.htm.

      . SDCL 15 — 6—59(b) has no federal counterpart.

      . The full text of SDCL 15-26A-9 provides: "When reviewing an order denying a new trial, the Supreme Court may review all matters properly and timely presented to the court by the application for a new trial.”

      . Heim testified that he had prepared the handwritten note that was admitted into evidence. However, it is unclear how Heim obtained the information contained within the note. At trial, Heim claimed to have received the information from Bridgewater either through a phone call or a kill sheet he received, which he claimed was illegible. The illegible kill sheet was never admitted into evidence. Heim testified as follows:
      Q. So you prepared [the handwritten note]?
      A. I got the information from Bridgewater. Yes, I prepared this. I must not have been able to read the one that was sent to me.
      Q. Did you have the one that was sent to you?
      A. No. Sometimes I called down and got the information. That’s how I found out which ones koshered and which ones didn’t. I have no way of knowing that on my own.


source: Caselaw Access Project

author: HECHT, Justice.

license: Public Domain

text:
    STATE of Iowa, ex rel. Jeannie E. DOBBS, Appellee/Cross-Appellant, v. John BURCHE, Appellant/Cross-Appellee. State of Iowa, ex rel. Dawn M. Halligan, Appellee/Cross-Appellant, v. John A. Burche and Maura Burche, Appellants/Cross-Appellees.
    No. 04-0273.
    Supreme Court of Iowa.
    March 30, 2007.

      John Burche and Maura Burche, Davenport, pro se.
    Thomas J. Miller, Attorney General, and Teresa M. Baustian, Assistant Attorney General, for appellees.
   HECHT, Justice.

The State, suing on behalf of former tenants, brought this action against the tenants’ former landlord, I.J.P., Inc., and its owners, John Burche • and Maura Burche, alleging sexual discrimination in housing. The district court entered judgment against the defendants for compensatory and punitive damages, penalties, and injunctive relief. During the pendency of this appeal, the parties reached a settlement agreement calling for satisfaction of the money judgment. Upon review of the issues not rendered moot by the settlement, we affirm in part, reverse in part, and remand this case for the entry of a judgment granting injunctive relief consistent with this opinion.

I. Background Facts.

A reasonable person could find the following facts from the record in this case. Jeannie Dobbs was a residential tenant of I.J.P., Inc., a corporation owned by John Burche and his wife, Maura Burche. Mr. Burche appeared at Dobbs’s apartment on August 1, 1999, purportedly to collect rent. Mr. Burche put his hands on Dobbsls face and told her she was pretty. During another visit to her apartment, Mr. Burche again told Dobbs she was pretty and asked her to go out with him, an offer she de-clinéd. When Dobbs reminded Mr. Burche he was a married man, he said, “What does that matter?” On that occasion, Mr. Burche grabbed her and kissed her on the cheek. During yet another encounter, Mr. Burche grabbed her face and kissed her on the mouth.

Mr. Burche frequently appeared at Dobbs’s apartment without her permission. On one such occasion, she was alone in her apartment taking a shower. Hearing what she believed was the sound of a door closing, Dobbs opened the bathroom door. She saw Mr. Burche climbing the stairs, so she shut and locked the bathroom door. Mr. Burche claimed he had arrived to fix the toilet, but Dobbs did not recall reporting a faulty toilet.

These incidents made Dobbs’s continued tenancy burdensome and significantly less desirable than it would have been in the absence of the harassment. Dobbs testified that , in September of .1999 her boyfriend assisted Mr. Burche with some work. Consequently, Mr. Burche took Dobbs and her boyfriend out to lunch. After lunch, Burche followed Dobbs inside her apartment and told her they would have dinner alone on October 16, 1999. Dobbs, fearful of Mr. Burche’s conduct, stayed away from her residence on October 16. She requested that her boyfriend spend more time at her apartment to keep Mr. Burche away. Dobbs testified that because Mr. Burche’s conduct made her uncomfortable, she used her income tax refund to secure other housing.

Mr. Burche committed similar acts against Dawn Halligan, another tenant. Mr. Burche subjected her to unwelcome conduct of a sexual nature and requests for sexual favors. Mr. Burche agreed to keep her electrical and water service in his name, due to her lack of credit. When Mr. Burche came to Halligan’s apartment to discuss her desire to obtain lower rental payments in exchange for cleaning his apartments, Mr. Burche told her he would give her “gifts,” which she interpreted to mean lower rental payments, in exchange for sex. Halligan declined this proposal. Upon leaving Halligan’s residence, Mr. Burche held her in his arms and kissed her against her will on each cheek “for good luck.”

After Halligan had cleaned apartments for Mr. Burche, she received a notice alleging she had not fully paid her rent. She borrowed money from her mother and requested an extension of the time period in which to pay the rent. Mr. Burche again suggested to Halligan that if she had sex with him, he would give her “gifts,” which Halligan again interpreted to mean a reduction of her rent. Halligan. declined.

Because of Mr. Burche’s unwelcome conduct, Halligan’s tenancy became significantly less desirable. She began spending nights with her mother and friends, and a friend stayed with her for awhile. She eventually decided she had no choice but to move, notwithstanding her desire to prove to the Department of Human Services that she was stable and ready to reacquire custody of her children. Before she moved, Mr. Burche terminated Halli-gan’s electrical and water service.

Seven other former tenants of I.J.P., Inc., though not specifically joined as plaintiffs, testified that Mr. Burche had sexually harassed them. They generally endured acts of sexual harassment similar to those suffered by Dobbs and Halligan at the hands of Mr. Burche, including unwanted touching and invitations for sex in lieu of rental payments. One former tenant testified the day she moved into her apartment, Mr. Burche tried to convince her to have sex with him for “good luck.” When she refused, Mr. Burche overpowered and raped her. Mr. Burche evicted some of these tenants, while others moved to avoid further contact with him.

Although Mrs. Burche was not directly involved in her husband’s unwanted sexual advances against tenants, she did lash out against those who reported such incidents to her. Mrs. Burche accused one tenant of sleeping with Mr. Burche and called her a whore. Similarly, when one tenant requested that Mrs. Burche ask her husband to stop calling, Mrs. Burche called the tenant a whore.

II. Background Proceedings.

The State’s Petition alleged that Mr. and Mrs. Burche’s behavior constituted sex discrimination in violation of the Iowa Civil Rights Act of 1965 (2001) (ICRA). The State sought damages not only for Dobbs and Halligan, the named plaintiffs, but also for witnesses who neither intervened nor were parties but who were allegedly “identifiable victim[s] of Defendants’ discriminatory housing practices.” See Iowa Code § 216.17A(9)(b)(2) (authorizing courts to award damages in actions under the ICRA). The State also sought the assessment of a civil penalty to be paid to the State, a declaratory judgment that defendants violated the ICRA, and an injunction restraining the defendants from discriminating on the basis of sex with regard to apartment rentals in the future, interfering with or threatening to take actions against people exercising or enjoying rights granted or protected by the ICRA, and failing to take affirmative steps to ensure the discontinuance of the alleged discrimination. See id. § 216.17A(9)(b)(l)-(3) (authorizing courts to order injunctions, civil penalties, and other “appropriate relief’ in actions under the ICRA).

After a trial, the district court found the defendants: (1) created a hostile housing environment for female tenants, in violation of section 216.8(2); (2) engaged in conduct amounting to quid pro quo sexual harassment of female tenants, in violation of section 216.8(2); (3) constructively evicted female tenants through quid pro quo sexual harassment and creation of a hostile housing environment, in violation of section 216.8(1); (4) interfered with female tenants’ enjoyment of their apartments without sex discrimination, in violation of section 216.11A; and (5) engaged in a pattern or practice of resistance to the rights granted and protected by the ICRA, in violation of section 216.17A(9). Because the district court believed a “drastic measure” was necessary to prevent Mr. and Mrs. Burche from engaging in future acts of sex discrimination, the court permanently enjoined them from “participat[ing] in the management of any residential properties ... currently owned or acquired in the future, in whole or in part.” The district court’s ruling further directed the Burches to hire an independent firm — defined as a firm not owned by and that does not employ or “utilize any individual or company ... related to John or Maura Burche by blood or by marriage” — to manage their rental properties. Although the injunction authorized them to visit their rental properties (1) for the purpose of inspection when notified by the independent management firm that a rental unit is “unoccupied, vacant and not under lease,” and (2) “for a purpose other than engaging in management activities,” the Burches were enjoined from initiating verbal or other contact with female tenants during such visits. The district court also found the defendants liable to Dobbs and Halligan for compensatory and punitive damages and assessed a civil penalty to be paid by the defendants to the State. The court rejected the State’s prayer for damages sustained by nonparty witnesses who testified that they had also been harmed by defendants’ patterns and practices of discrimination in housing.

The defendants appealed, and the State cross-appealed. During the pendency of this appeal, I.J.P., Inc. filed a petition in bankruptcy. The Chapter 7 trustee and the State entered into a settlement approved by the bankruptcy court. The court file discloses that the holders of all discrimination claims agreed to dismiss “any and all claims against I.J.P., Inc.,” to dismiss “any and all pending claims against John and Maura Burche, personally,” and to “release and satisfy any judgments [they] may currently hold against John or Maura Burche, personally.” In an order filed August 30, 2006, this court granted the State’s motion to dismiss I.J.P., Inc.’s appeal, but denied a motion requesting the same relief as to the appeal filed by Mr. and Mrs. Burche individually.

III.Issues on Appeal.

The Burches, who appear pro se, contend there is no factual or legal basis for the award of damages and penalties in this case. The State has cross-appealed, contending the district court erred in failing to award damages to the non-party witnesses who experienced discrimination in housing as tenants of I.J.P., Inc. We conclude, however, that the settlement of all damage claims against I.J.P., Inc. and the Burches has rendered these contentions moot. See State v. Briggs, 666 N.W.2d 573, 576 (Iowa 2003) (“As a rule, we do not decide appeals in which ‘the issue becomes nonexistent or academic and, consequently, no longer involves a justiciable controversy.’ ” (quoting State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002))).

The issues remaining for decision in this appeal are the Burches’ claims that (1) the district court’s decision granting permanent injunctive relief is not supported by sufficient evidence, and (2) the nature and extent of the injunctive relief granted by the district court is excessive in scope and inequitable.

IV. Scope of Review.

“ ‘An injunction may be obtained as an independent remedy [in] an action in equity, or as an auxiliary remedy in any action.’ ” Lewis Invs., Inc. v. City of Iowa City, 703 N.W.2d 180, 184 (Iowa 2005) (quoting Iowa R. Civ. P. 1.1501). If an injunction is obtained as an independent remedy in an equitable action, review is de novo; however, if an injunction is obtained as an auxiliary remedy in an action at law, review is for correction of errors of law. See Harrington v. Univ. of N. Iowa, 726 N.W.2d 363, 365 (Iowa 2007); Green v. Advance Homes, Inc., 293 N.W.2d 204, 208 (Iowa 1980). This case was filed and tried as a law action. The plaintiffs sought an injunction as an auxiliary remedy. Consequently, our review is for correction of errors at law.

V. Discussion.

1. Sufficiency of the Evidence.

The Burches devote much of their brief to an attack on the credibility of Dobbs, Halligan, and the other witnesses whose testimony provided the factual basis for the equitable relief ordered by the district court. The recurring theme advanced by the Burches is that the witnesses against them should not be believed because they were all motivated by an economic motive to avoid payment of rent. The district court found the tenant-witnesses credible and the Burches incredible. The district court’s findings as to credibility are supported by substantial evidence. The evidence supporting the district court’s finding that Mr. Burche committed serial acts of sexual harassment against the defendants’ tenants is overwhelming. We therefore affirm on this issue.

2. Nature and Extent of Equitable Relief.

The Burches assail the scope and extent of the permanent injunction on the ground that it inequitably limits their lawful business activities and unreasonably requires them to hire an independent management firm to manage all rental properties they now own or may own in the future.

Generally, the scope of a violation determines the scope of a remedy against further violations. See Sherman v. Kasotakis, 314 F.Supp.2d 843, 878 (N.D.Iowa 2004) (citing Easley v. Anheuser-Busch, Inc., 758 F.2d 251, 263 (8th Cir.1985)) (stating “the scope of the injunction may not be broader than necessary to remedy the underlying wrong”).

Given the compelling evidence of Mr. Burche’s history of sexual harassment of numerous female tenants, we find an overwhelming factual basis for a permanent injunction restraining him from engaging in such discriminatory conduct in the future. We consequently find Mr. Burche should be permanently enjoined from initiating contacts with visiting rental properties when existing or potential female tenants are there. Such injunctive relief against Mr. Burche is appropriate in scope and reach under the egregious circumstances of this case and is necessary to restrain his persistent predatory behavior.

However, the court should enjoin the defendants’ activities no further than necessary to deter the defendants from the discriminatory patterns and practices demonstrated in this record. We conclude the facts of this case and relevant equitable principles do not justify the requirement that the Burches hire an independent management firm to manage their rental properties or the prohibition against Mr. Burche’s involvement in residential rental property management activities that may be accomplished without direct contact with existing or potential female tenants.

We further conclude that principles of equity do not justify or require a permanent injunction precluding Mrs. Burche from the management of rental properties and from initiating in-person contact with female tenants. Although she uttered offensive epithets when addressing two female tenants and refused to credit reports of Mr. Burche’s abusive and discriminatory acts when they were reported to her, we find no substantial evidence tending to prove Mrs. Burche personally engaged in the substantially more egregious, harassing and assaultive behavior which characterized her husband’s interactions with several female tenants.

VI. Disposition.

In summary, we affirm on the sufficiency of the evidence issue. However, because the injunction granted by the district court is too broad in scope, we reverse and remand for the grant of an injunction consistent with this opinion. The district court shall excise from the permanent injunction the requirement that the Burches hire an independent management firm to manage their rental properties. It shall also excise: (1) the prohibition against Mr. Burche’s visits to the defendants’ rental properties for legitimate management purposes when existing or potential female tenants are not present, and (2) the prohibition against Mr. Burehe’s involvement in management activities that are accomplished without his personal presence on the premises and without his initiation of contact with existing or potential female tenants, and (3) all restrictions upon Mrs. Burche’s participation in the management of the defendants’ rental properties. All other provisions of the injunction shall remain intact.

Costs on appeal are assessed fifty percent against the appellants and fifty percent against the appellee.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

      . Judgment was entered against the defendants for compensatory damages in the amount of $10,000 for Dobbs and $10,000 for Halligan. The court also entered judgment against the defendants for punitive damages in the amount of $50,000 and ordered payment of a civil penalty to the Stale in the amount of $50,000.

        . The settlement included the claims not only of the State, Dobbs, and Halligan, but also those of the non-parties whose claims were the subject of the State's cross-appeal.

      . Other claims asserted in the Burches’ pro se brief on appeal are without merit, or were not preserved for our review because they were not presented to and decided by the district court. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.” (citing Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998); Peters v. Burlington N. R.R. Co., 492 N.W.2d 399, 401 (Iowa 1992))).


author: LARSON, Justice,

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Brian L. EARLEY, Respondent.
    No. 06-1904.
    Supreme Court of Iowa.
    March 30, 2007.

      Charles L. Harrington and Teresa A. Vens, Des Moines, for complainant.
    Brian L. Earley, Montezuma, pro se.
   LARSON, Justice,

The Iowa Supreme Court Attorney Disciplinary Board charged Brian L. Earley with numerous violations of the Iowa Code of Professional Responsibility for Lawyers based on his representation of three separate clients. The Grievance Commission concluded that Earley violated certain provisions of the Iowa Code of Professional Responsibility and recommended that we suspend Earley’s license to practice law for a period of not less than six months.

We agree with the commission’s findings of misconduct and suspend Earley’s license to practice law for a period of not less than four months.

I. Standard of Review.

Our review of attorney disciplinary proceedings is well established. We review the commission’s findings de novo. See Iowa Ct. R. 35.10(1) (2005); Iowa Supreme Ct. Attorney Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 104 (Iowa 2006).

“We give respectful consideration to the Grievance Commission’s findings and recommendations, but are not bound by them.”
The Board must prove attorney misconduct by a convincing preponderance of the evidence. This burden is less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil ease. Once misconduct is proven, we “may impose a lesser or greater sanction than the discipline recommended by the grievance commission.”

Iowa Supreme Ct. Attorney Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 791-92 (Iowa 2006) (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)).

II. Factual Findings.

Earley has been practicing law in Iowa since 1993. At the time of the conduct in this case, Earley was a solo practitioner in Montezuma, Iowa, practicing primarily in the area of criminal defense. The board filed this complaint with the commission for neglect, failure to return a file to the client, failure to cooperate with the board, and trust account violations arising from Earley’s representation of three separate clients.

A. Betty Hartung matters. Earley agreed to represent Betty Hartung in her efforts to receive a portion of her ex-husband’s retirement funds (the property case), which Ms. Hartung alleged had not been disclosed at the time of the dissolution decree, and related child custody issues (the dissolution case).

1. The property case. Ms. Hartung’s property case was filed by another attorney, whose license to practice law was suspended in August 2000. In July 2000 the court notified Ms. Hartung that the case would be dismissed if it was not tried before January 1, 2001. Ms. Hartung hired Earley to represent her in this case sometime after December 26, 2000. It is unclear what agreement Ms. Hartung and Earley had regarding the steps he would take prior to the January 1, 2001 deadline. In any event, Ms. Hartung’s property case was dismissed on January 2, 2001. Earley entered an appearance in the case on January 8, 2001, but took no action to set aside the dismissal. Earley took no further action in this case despite Ms. Har-tung’s numerous attempts to contact him regarding the matter. Ultimately, Ms. Hartung hired another attorney to pursue her case and was awarded a one-half interest in her ex-husband’s retirement funds.

Both Ms. Hartung and her attorney requested that Earley provide them with a copy of Ms. Hartung’s file. Earley did not respond to the letter from Ms. Hartung’s attorney nor did he make any arrangements to provide the file to either Ms. Hartung or her attorney.

2. The dissolution case. Ms. Hartung also retained Earley to represent her with respect to her ex-husband’s application for modification of their dissolution decree. Initially, Ms. Hartung’s ex-husband requested a reduction in child support and increased visitation but later amended his application to seek custody of the parties’ minor child. Earley did not provide Ms. Hartung with the motion to amend nor did he notify her when the court approved the amendment. Ms. Hartung ultimately learned of the amendment when she requested a copy from the clerk of court. Ms. Hartung attempted to contact Earley numerous times regarding the modification hearing, but her attempts were, in large part, ignored.

Shortly before the June 12, 2003 hearing, Ms. Hartung told Earley that her daughter wanted to live with her, not her ex-husband. Earley did not talk directly to Ms. Hartung’s daughter nor did he conduct an independent investigation to support Ms. Hartung’s position that she should retain custody. Ms. Hartung’s daughter testified at the hearing that she did not want to remain in the custody of her mother, and the court advised the parties immediately following the hearing that he would be awarding custody to Ms. Hartung’s ex-husband. Although Earley wrote to Ms. Hartung and informed her that the court was changing custody, he did not advise her of the timeline for appeal nor did he provide her with a copy of the court’s decree. Ms. Hartung received the court’s decree by contacting the clerk of court directly.

Ms. Hartung filed a complaint with the board in May 2003. Earley received a copy of the complaint in July 2003, but did not provide the board with any response.

Ms. Hartung paid Earley $4000, which Earley withdrew from his trust account between February 10, 2001, and May 9, 2003. He did not notify Ms. Hartung at the time he withdrew the funds, and he did not provide her with an accounting of his services at any time after February 2001.

B. Jon Lloyd matters. Jon Lloyd was convicted of a Colfax City Code violation for permitting barking dogs to cause an annoyance or disturbance, and the city counsel ordered Mr. Lloyd to remove his dogs from the city limits. Mr. Lloyd moved his dogs to his son’s home outside the city and hired Earley to help him return his dogs to his home in Colfax. It appears Earley and Mr. Lloyd agreed by telephone they would first appeal Mr. Lloyd’s conviction and then file a petition for judicial review to enjoin the city from enforcing its notice of removal of Mr. Lloyd’s dogs. Earley and Mr. Lloyd’s first, and only, in-person meeting was at the courthouse in July 2002. • Mr. Lloyd paid Earley $500 at that time, and Earley filed the appeal. The $500 was not deposited into a trust account, and Mr. Lloyd did not receive an accounting of Earley’s services. Subsequently, Earley dismissed the appeal without obtaining Mr. Lloyd’s permission to do so.

Earley then filed a petition for judicial review. The court ordered that briefs were to be filed by December 20, 2002, and scheduled oral arguments for January 21, 2003. Earley notified Mr. Lloyd that he was to be present at the January 21, 2003 oral arguments; however, Earley did not inform Mr. Lloyd when the hearing was rescheduled, and Mr. Lloyd appeared for the hearing on January 21, 2003, only to learn it had been continued. Earley then notified Mr. Lloyd that the hearing had been reset for March 10, 2003, and that Mr. Lloyd was to be present. Earley failed to file a brief as ordered by the court and, as a result, the petition for judicial review was dismissed. Earley did not notify Mr. Lloyd that the case had been dismissed, and Mr. Lloyd appeared for the hearing on March 10, 2003, only to learn.his case had been dismissed.

Earley filed another petition for injunc-tive relief on behalf of Mr. Lloyd on February 21, 2003. The court ordered Earley to file appropriate pleadings by July 1, 2003; however, he failed to comply, and the petition was dismissed. Mr. Lloyd was never able to return his dogs to his home in Colfax.

Mr. Lloyd filed a complaint with the board, and notice of the complaint was mailed to Earley but was returned marked “unclaimed.” Earley was then personally served, but did not respond to the board.

C. Richard Lowry matter. Mr. Lowry was charged with a speeding violation and hired Earley to represent him in the matter. Mr. Lowry paid Earley $150 for his services, which was not deposited into a trust account nor was an accounting for Earley’s services provided to Mr. Lowry. Mr. Lowry wanted Earley to try to negotiate a settlement with the county attorney so his driver’s license would not be suspended. Earley was unsuccessful in negotiating a settlement, and trial was scheduled for August 12, 2004. Earley did not inform Mr. Lowry of the trial date. Ear-ley did not appear for the trial, contending that, because the police officer appeared to testify, Mr. Lowry would not have prevailed. Mr. Lowry was found guilty of the speeding charge.

III. Ethical Violations.

A. Neglect. We have held that professional neglect involves “indifference and a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 551 (Iowa 2004). Neglect is more than negligence, and it often involves procrastination, “such as a lawyer doing little or nothing to advance the interests of a client.” Id. at 552.

We conclude the board has proven that Earley neglected the legal matters of three clients in violation of DR 6-101(A)(3) and intentionally failed to seek the lawful objectives of these clients in violation of DR 7-101(A)(l). Earley clearly neglected these clients’ legal matters in his failure to communicate with his clients. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kennedy, 684 N.W.2d 256, 260 (Iowa 2004); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 619 N.W.2d 407, 409 (Iowa 2000). In addition, Earley failed to take any action to pursue Ms. Hartung’s property case, to involve Ms. Hartung in preparation for the modification hearing, and to advise Ms. Hartung of the time period within which to appeal the court’s custody decision. Earley dismissed Mr. Lloyd’s appeal without first consulting him and, more troubling, failed to file briefs and other pleadings in Mr. Lloyd’s petitions for judicial review, which ultimately resulted in dismissals. See Lesyshen, 712 N.W.2d at 105. Finally, Earley failed to inform Mr. Lowry of his trial date and failed to appear at the hearing resulting in Mr. Lowry being found guilty of the speeding violation. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Feeney, 657 N.W.2d 454, 457 (Iowa 2003).

B. Fitness to practice law and prejudice to the administration of justice. Earley’s failure to timely file documents with the court in Mr. Lloyd’s case and his failure to respond to the board’s inquiries is conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5) and is conduct that adversely reflects on the attorney’s fitness to practice law in violation of DR 1-102(A)(6). See Iowa Supreme Ct. Attorney Disciplinary Bd. v. Sotak, 706 N.W.2d 385, 389 (Iowa 2005); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002).

C. Failure to return file to client. Earley’s failure to return Ms. Hartung’s file to her upon her request, and the request of her attorney, is a violation of DR 2-110(A)(2) (providing that a lawyer shall not withdraw from employment until reasonable steps have been taken to return to the client all papers and property to which the client is entitled), and DR 9-102(B)(3) (providing that a lawyer shall promptly deliver to the client the properties in the possession of the lawyer that the client is entitled to receive). See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Plumb, 589 N.W.2d 746, 748 (Iowa 1999).

D. Trust account violations. Finally, the board has proven that Earley failed to properly deposit client funds in his trust account in violation of DR 9-102(A), and failed to render proper ac-countings to his clients in violation of DR 9 — 102(B)(8). Earley failed to notify Ms. Hartung at the time he withdrew monies from his trust account and failed to provide her with an accounting after February 2001. Earley also failed to deposit Mr. Lloyd’s and Mr. Lowry’s monies in his trust account and failed to provide either with an accounting of his services.

In summary, we conclude that Earley’s conduct in representing these clients violated the following disciplinary rules: DR 1 — 102(A)(1), (5), (6), DR 2-110(A)(2), DR 6-101(A)(3), DR 7-101(A)(l), and DR 9-102(A), (B)(3).

IY. Sanction.

There is no standard sanction for a particular type of misconduct, and though prior cases can be instructive, we ultimately determine an appropriate sanction based on the particular circumstances of each case. Plumb, 589 N.W.2d at 748-49. In determining an appropriate sanction, we consider “the nature of the violations, the need for deterrence, protection of the public, maintenance of the reputation of the Bar as a whole, and the violator’s fitness to continue to practice law,” as well as any aggravating and mitigating circumstances. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ramey, 639 N.W.2d 243, 245 (Iowa 2002); Grotewold, 642 N.W.2d at 294. When neglect is the primary violation, the sanction generally ranges from a public reprimand to a six-month suspension. Grotewold, 642 N.W.2d at 294.

Earley acknowledges that some level of discipline is warranted and suggests we impose a thirty-day suspension. We conclude that a more severe sanction is warranted. Earley’s conduct indicates a pattern of neglect that clearly affected his clients’ interests and perception of the legal profession. Though Earley contends his clients were not harmed by his misconduct, we do not agree. Ms. Hartung did not receive her portion of her ex-husband’s retirement funds until 2004, three years after she hired Earley to represent her in the matter, Mr. Lloyd was never able to return his dogs to his home, and Mr. Low-ry was denied the chance to present his case to the court for consideration.

Earley also contends his sanction should be mitigated by the health problems he had during his representation of these clients. 'However, it is unclear, even from Earley’s testimony, that his health problems did, in fact, contribute to his misconduct. Though an attorney’s personal problems may contribute to misconduct, we have firmly held that such personal problems do not .excuse the misconduct. Id. at 295.

Earley’s neglect is compounded by his failure to return Ms. Hartung’s file to her, and his complete failure to respond to the board’s inquiries. Additionally, Earley’s trust account violations, though stemming from poor office organization and management, are serious ethical violations that undermine the public’s trust in the accountability of the legal profession. We must also note that Earley has been previously publicly reprimanded by this court. Finally, we acknowledge that Earley has accepted responsibility for his misconduct and has taken steps to improve his office procedures.

The purposes of attorney disciplinary proceedings include “protecting the courts and the public from persons unfit to practice law, vindicating public confidence in the integrity of our system of justice, and deterring other lawyers from similar misconduct.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hansel, 558 N.W.2d 186, 192 (Iowa 1997). In light of the facts and circumstances of this case, we conclude that a suspension of Earley’s license to practice law for a period of not less than four months is appropriate. See Iowa Supreme Ct. Attorney Disciplinary Bd. v. Ireland, 723 N.W.2d 439 (Iowa 2006) (three-month suspension for neglect causing financial harm, failure to deliver property to client, and prior disciplinary action); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Frerichs, 671 N.W.2d 470 (Iowa 2003) (four-month suspension for neglect, an illegal fee, a trust account violation, failure to provide an accounting, and failure to cooperate); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kallsen, 670 N.W.2d 161 (Iowa 2003) (three-month suspension for neglect, failure to render an accounting, and failure to cooperate); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Adams, 623 N.W.2d 815 (Iowa 2001) (three-month suspension for neglect, trust account violations, failure to account for client property, and misrepresentation).

V. Conclusion.

Earley’s license to practice law is suspended indefinitely with no possibility of reinstatement for at least four months. This suspension shall apply to all facets of the practice of law. Iowa Ct. R. 35.12(3). Additionally, Earley is required to refund $4000 to Ms. Hartung, $500 to Mr. Lloyd, and $150 to Mr. Lowry, as these fees were not earned by Earley due to his neglect. Earley shall provide all of the notifications required by Iowa Court Rule 35.21. Upon any application for reinstatement, Earley shall have the burden to show he has not practiced law during the period of suspension, that he has refunded all unearned fees to the clients discussed above, and that he meets the requirements of Iowa Court Rule 35.13. Costs are taxed to Ear-ley pursuant to Iowa Court Rule 35.25(1).

LICENSE SUSPENDED.


author: LARSON, Justice.

text:
    Myron J. RAAS, Appellant, v. STATE of Iowa, Appellee. Mark Trunecek, Appellant, v. State of Iowa, Appellee.
    Nos. 05-1103, 05-1110.
    Supreme Court of Iowa.
    March 30, 2007.

      Hugh G. Albrecht of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellants.
    Thomas J. Miller, Attorney General, and William A. Hill, Assistant Attorney General, for appellee.
   LARSON, Justice.

This appeal involves separate suits against the State by Myron J. Raas and Mark Trunecek arising out of the escape of two inmates from the state prison system. The State moved to dismiss the petitions under Iowa Rule of Civil Procedure 1.421(l)(a) and (f) on the grounds the court lacked jurisdiction and the plaintiffs failed to establish a duty of care. The district court sustained the motions to dismiss. Plaintiffs appealed separately, and we consolidated the cases. The court of appeals reversed, and we granted further review. We now vacate the decision of the court of appeals, affirm the judgment of the district court as to Trunecek, and reverse and remand the judgment of the district court as to Raas.

I. Facts and Prior Proceedings.

Because the cases were resolved under motions to dismiss, the only facts to be considered are those appearing on the face of the plaintiffs’ petitions. Mark Tru-necek and Myron Raas were injured by two inmates who escaped from the Iowa Medical and Classification Center in Oak-dale, Iowa. Raas was attacked while in the parking lot of the Oakdale facility, where he had gone to visit a family member. Trunecek was attacked by the prisoners as he was fishing in the Iowa River near Swan Lake Road in Johnson County. The plaintiffs alleged that the prisoners’ escape occurred as a result of the State’s negligence in failing to properly supervise the inmates and failing to properly maintain and secure the facility. For purposes of reviewing the order dismissing the case under rule 1.421(1), we assume the facts alleged in the petitions are true.

II. Standard of Review.

We review orders sustaining motions to dismiss for correction of errors at law. Pennsylvania Life Ins. Co. v. Simoni, 641 N.W.2d 807, 810 (Iowa 2002). An order granting a motion to dismiss will be upheld only if the petition, on its face, fails to state a cause of action upon which relief could be granted under any circumstances. Fitzpatrick v. State, 439 N.W.2d 663, 665 (Iowa 1989) (affirming order dismissing plaintiffs suit for damages based on injury caused by parolee from Iowa penitentiary). On a motion to dismiss, the petition should be construed in the light most favorable to the plaintiff, with all doubt resolved in the plaintiffs favor. Id.

III. Discussion.

To establish the plaintiffs’ claims of negligence, they must prove that (1) the State owed them a duty of care, (2) the State breached or violated that duty of care, (3) its breach or violation was a proximate cause of their injuries, and (4) damages. Kolbe v. State, 625 N.W.2d 721, 725 (Iowa 2001). The issue in this case is whether the first requirement — a duty to the plaintiffs — was satisfied.

A. The statutory-duty argument. The plaintiffs argue that the State’s statutorily imposed responsibility for the care of prisoners necessarily includes a duty to prevent their escape. Under Iowa Code section 904.102(4) (2003),

[t]he Iowa department of corrections is established to be responsible for the control, treatment, and rehabilitation of offenders committed under law to the following institutions:
4. Iowa medical and classification center.

Obviously, this statute does not expressly provide a cause of action for a breach of the State’s duty. We, therefore, must decide if a cause of action is implied. In Kolbe, 625 N.W.2d 721, we stated that, when a private cause of action is not expressly granted by statutes or administrative rules,

[W]e ... must employ the following four-factor test to determine whether a private cause of action against the State may be implied from the statute:
(1) Is the plaintiff a member of the class for whose benefit the statute was enacted? (2) Is there any indication of legislative intent, explicit or implicit, to either create or deny such a remedy? (3) Would allowing such a cause of action be consistent with the underlying purpose of the legislation? (4) Would the private cause of action intrude into an area over which the federal government or a state administrative agency holds exclusive jurisdiction?

Kolbe, 625 N.W.2d at 726-27 (quoting Marcus v. Young, 538 N.W.2d 285, 288 (Iowa 1995)).

The “most relevant inquiry” is whether there is any indication of legislative intent to create a private cause of action. Id. at 727; accord Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82, 96 (1979). The plaintiffs have not argued any of the Kolbe factors that would support a private cause of action under the statute. Most significantly, they have failed to point to any statutory language or administrative rule concerning responsibility for prisoners that suggests the legislature intended to create a private cause of action when it enacted section 904.102(4). Furthermore, we have held that the State Tort Claims Act, Iowa Code chapter 669, does not create any new causes of action, but only allows suits against the state that are allowed at common law against private individuals. Kolbe, 625 N.W.2d at 725; Engstrom v. State, 461 N.W.2d 309, 314 (Iowa 1990). The State Tort Claims Act merely

gives recognition to and a remedy for a cause of action already existing by reason of a wrong done but for which redress could not previously be had because of the common law doctrine of governmental immunity.

Graham v. Worthington, 259 Iowa 845, 861, 146 N.W.2d 626, 637 (1966); accord Sanford v. Manternach, 601 N.W.2d 360, 370 (Iowa 1999). We reject the plaintiffs’ argument that they have a statutory basis for a cause of action against the State.

B. The common-law duty argument. The plaintiffs argue that the State owes them a common-law duty of care on which a cause of action may be based. In determining whether a defendant owes a legal duty to a plaintiff, three factors usually control: (1) the relationship between the parties, (2) reasonable foreseeability of harm to the person who is injured, and (3) public policy considerations. Kolbe, 625 N.W.2d at 728.

The State argues that the public-duty doctrine precludes liability because any duty owed by the State is to the public at large, not to individuals such as these plaintiffs. Under the public-duty doctrine, “ ‘if a duty is owed to the public generally, there is no liability to an individual member of that group.’ ” Id. at 729 (quoting Wilson v. Nepstad, 282 N.W.2d 664, 667 (Iowa 1979)).

We have routinely held that a breach of duty owed to the public at large is not actionable unless the plaintiff can establish, based on the unique or particular facts of the case, a special relationship between the State and the injured plaintiff consistent with the rules of Restatement (Second) of Torts section 315.

Kolbe, 625 N.W.2d at 729.

C. Status of the public-duty doctrine. We must first decide whether the public-duty doctrine is still viable in Iowa in view of our adoption of the State Tort Claims Act, Iowa Code chapter 669. Section 669.4 provides that,

[t]he state shall be liable in respect to such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances, except that the state shall not be liable for interest prior to judgment or for punitive damages.

Exceptions to state liability are listed in section 669.14. However, the list of exceptions does not include claims subject to the public-duty doctrine. The plaintiffs argue the absence of a public-duty doctrine exception to state liability indicates that the legislature did not intend for the State Tort Claims Act and the public-duty doctrine to coexist. Their claim is that

[t]he “Public Duty Doctrine” is inconsistent and incompatible with the waiver of sovereign immunity [under] the State Tort Claims Act. Courts should no longer judicially impose this doctrine to prohibit [plaintiffs] ... from seeking redress against the State for the wrongful actions of its employees.

In making this argument, the plaintiffs equate sovereign immunity with the lack of a duty under the public-duty doctrine. However, the principles involved are not the same.

The public duty rule provides that where a municipality has a duty to the general public, as opposed to a particular individual, breach of that duty does not result in tort liability. The rule protects municipalities from liability for failure to adequately enforce general, laws and regulations, which were intended to benefit the community as a whole. The public duty rule is not technically grounded in government immunity, though it achieves much the same results. Unlike immunity, which protects a municipality from liability for breach of an otherwise enforceable duty to the plaintiff, the public duty rule asks whether there was any enforceable duty to the plaintiff in the first place.

18 Eugene McQuillin, McQuillin on Municipal Corporations § 53.04.25 (3d ed.2006).

Our cases decided after the adoption of the State Tort Claims Act continue to recognize the public-duty doctrine, and with the exception of the Wilson and Adam cases discussed below, they have clearly upheld the continued validity of the doctrine. See, e.g., Summy v. City of Des Moines, 708 N.W.2d 333, 344 (Iowa 2006); Kolbe, 625 N.W.2d at 729; Sankey v. Richenberger, 456 N.W.2d 206, 209 (Iowa 1990); Bockelman v. State, 366 N.W.2d 550, 554 (Iowa 1985); Cubit ex rel. Cubit v. Mahaska County, 670 N.W.2d 430, 2003 WL 21920399, at *2 (Iowa Ct.App.2003); Donahue v. Washington County, 641 N.W.2d 848, 851 (Iowa Ct.App.2002); Allen v. Anderson, 490 N.W.2d 848, 856 (Iowa Ct.App.1992).

The plaintiffs contend that our prior cases of Wilson, 282 N.W.2d 664, and Adam v. State, 380 N.W.2d 716 (Iowa 1986), cast doubt on the continued validity of the public-duty doctrine. However, in Kolbe we distinguished Wilson and Adam on the basis that the statutes involved in those cases were not aimed at the protection of the public in general (as required by the public-duty doctrine), but to narrow groups of persons, thereby establishing special relationships and making the public-duty doctrine inapplicable. Kolbe, 625 N.W.2d at 729. Contrary to the plaintiffs’ argument, Wilson and Adam did not eliminate the public-duty doctrine.

In Kolbe we recognized that the public-duty doctrine is still viable despite enactment of the State Tort Claims Act: “Because we conclude there was no ... duty [under the public-duty doctrine], we need not address the immunity issue.” Kolbe, 625 N.W.2d at 725. Although, as the plaintiffs point out, other jurisdictions have held their tort claims statutes to have abrogated the public-duty doctrine in those jurisdictions, we conclude that both doctrines are alive and well in Iowa.

D. Claimed basis of common-law liability. The plaintiffs acknowledge that generally a person has no duty to control the conduct of others. However, they argue that there are “special relationships” between themselves and the State that make the general rule inapplicable. They also contend that special relationships make the public-duty doctrine inapplicable. See id. at 729. In support of these arguments, the plaintiffs rely principally on two provisions of the Restatement (Second) of Torts. Under section 315,

[t]here is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor [State] and the third person [prisoner] which imposes a duty upon the actor to control the third person’s [prisoner’s] conduct, or
(b) a special relation exists between the actor [State] and the other [victim] which gives to the other [victim] a right to protection.

Restatement (Second) of Torts § 315 (1965) [hereinafter Restatement]. Additionally, section 319 provides:

One [State] who takes charge of a third person [prisoner] whom he knows or should know to be likely to cause bodily harm to others [victims] if not controlled is under a duty to exercise reasonable care to control the third person [prisoner] to prevent him from doing such harm.

We have considered Restatement section 319 in tandem with section 315 in several cases, including Leonard v. State, 491 N.W.2d 508, 510-11 (Iowa 1992); Sankey, 456 N.W.2d at 209; and Fitzpatrick, 439 N.W.2d at 666-67. In Leonard a mental health patient, Parrish, was released by the state. The patient assaulted Leonard, a member of the public, who sued the state hospital, claiming a breach of duty under Restatement sections 315 and 319. We said:

There can be little doubt that a special relationship existed between Parrish [the patient] and his treating physician at MHI [the state hospital]. His continuing involuntary commitment only serves to reinforce that bond. Therefore MHI had a duty to control Parrish’s conduct, or at least not negligently release him from custody. But the Restatement rules cited above [sections 315 and 319] do not answer the precise question before us: Does the duty to refrain from negligently releasing dangerous persons from custody run from the custodian to the public at large or only to the reasonably foreseeable victims of the patient’s dangerous tendencies?

Leonard, 491 N.W.2d at 511 (emphasis added). We answered the question this way:

In analogous cases in Iowa, this court has viewed the duties described in Restatement sections 315 and 319 quite narrowly, guided by the principle that the scope of the duty turns on the foreseeability of harm to the injured person. See, e.g., Sankey, 456 N.W.2d at 209-10 (neither city ordinance nor common law imposed duty upon police chief to protect city officials from shooting spree in city council chambers); Fitzpatrick v. State, 439 N.W.2d 663, 667-68 (Iowa 1989)(parole officer had no legal duty to police officer injured by parolee) ....
The foregoing cases also reflect strong public policy concerns about the potential for limitless liability when an individual’s decision might affect the general public.

Id. at 511-12. Under the Leonard line of cases, the State’s duty to protect victims from injury inflicted by escaped patients or prisoners extends only to those persons who are reasonably foreseeable as victims.

IV. Disposition.

The plaintiff, Raas, alleged he

was lawfully in the parking lot of the Oakdale Facility having gone to the facility that day during the regularly scheduled visiting hours to visit a family member incarcerated at the facility.

Assuming this allegation to be true, and viewing it in the light most favorable to Raas, as we are required to do, we believe it is sufficient to allege his status as an invitee and, as such, a person who was reasonably foreseeable as a victim. Under Leonard he has therefore stated a sufficient cause of action by establishing a special relationship. We therefore reverse the district court’s order dismissing his case.

In contrast, according to Trune-cek’s petition, he was not on the premises of the facility, but was fishing in the Iowa River. We conclude that, even giving his petition the most favorable interpretation, he has not alleged the status of a foreseeable victim, but only a member of the public at large. As such, he may not claim a special relationship sufficient to establish a cause of action. We therefore affirm the district court’s dismissal of his case.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED AND REMANDED AS TO PLAINTIFF RAAS AND AFFIRMED AS TO PLAINTIFF TRUNECEK.

All justices concur except HECHT and APPEL, JJ., who take no part.


author: /s/Alan C. Page Associate Justice

text:
    Victor VICTOR, Respondent, v. SMITHWAY MOTOR XPRESS, and Liberty Mutual Insurance Company, Relators, and Grand Itasca Hospital, MN Department of Labor & Industry/Vocational Rehab Unit, Grand Itasca Clinic, and CIGNA Healthcare/Primax Recoveries Incorporated, Intervenors.
    No. A06-2413.
    Supreme Court of Minnesota.
    March 28, 2007.
    Michael Aafedt, Radd Kulseth, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, MN, for Relators.
    Donald C. Erickson, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed November 21, 2006, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that “[sjummary affirmances have no prece-dential value because they do not commit the court to any particular point of view,” doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Alan C. Page Associate Justice


author: /s/Helen M. Meyer Associate Justice

text:
    Ilham M. YUSUF, Respondent, v. HILTON HOTEL, and ACE/Gallagher Bassett Services, Inc., Relators, and Park Nicollet Health Services, and HealthPartners, Inc., Intervenors.
    No. A06-2474.
    Supreme Court of Minnesota.
    March 29, 2007.
    Mary E. Kohl, Stacey A. Molde, Sarah E. Groskreutz, Johnson & Condon, PA, Minneapolis, MN, for Relators.
    Michael G. Schultz, Sommerer & Schultz, PLLC, Minneapolis, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed December 4, 2006, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that “[sjummary affirmances have no prece-dential value because they do not commit the court to any particular point of view,” doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: HANSON, Justice.

text:
    STATE of Minnesota, Appellant, v. Daniel Alan KUHLMAN, Respondent.
    No. A06-568.
    Supreme Court of Minnesota.
    April 5, 2007.

      Lori Swanson, Attorney General, Saint Paul, MN, Mary Ellen Heng, Minneapolis, MN, for Appellant.
    Howard I. Bass, Bass & Peck, PLLC, Burnsville, MN, for Respondent.
    Faison T. Sessoms, Jr., Minnesota Association of Criminal Defense Lawyers, Minneapolis, MN, for Amicus Group.
   OPINION

HANSON, Justice.

In September 2004, the Minneapolis City Council enacted Minneapolis Code of Ordinances sections 474.620 to 474.670, which authorized photo enforcement of traffic control signals. The Minneapolis police began enforcing the new ordinance in July 2005, and on August 11, 2005, one of the cameras photographed a car as it failed to stop at a red light at the intersection of West Broadway Avenue and Lyn-dale Avenue North. The Minneapolis Police Department mailed a citation to the registered owner of the car, respondent Daniel Alan Kuhlman, for violating the ordinance. Kuhlman challenged the ordinance, arguing that it conflicted with state law and violated the due process rights of registered owners. The district court granted Kuhlman’s motion to dismiss without reaching the constitutional issues, holding that the ordinance conflicted with state law. The court of appeals affirmed the dismissal. State v. Kuhlman, 722 N.W.2d 1, 2 (Minn.App.2006). We affirm.

Ordinance section 474.640 penalizes an owner of a motor vehicle whose car is photographed running a red light: “If a motor vehicle is operated in violation of section 474.630 [running a red light] and the violation is detected by a recorded image taken by an automated traffic law enforcement system, the owner of the vehicle or the lessee of the vehicle is guilty of a petty misdemeanor.” Minneapolis, Minn., Code art. 1, § 474.640 (2004) (emphasis added). The ordinance further provides, in section 474.660 entitled “Evidence,” that

(a) In the prosecution of a violation, as set forth by section 474.640, captured by an automated traffic law enforcement system, prima facie evidence that the vehicle described in the citation was operated in violation of this section, together with proof that the defendant was at the time of such violation the owner or lessee of the vehicle, shall constitute in evidence a rebuttable presumption that such owner or lessee was the person who committed the violation. The presumption shall be rebutted if the owner or lessee:
(1) Provides a sworn affidavit delivered by United States mail to the city or agency that he or she was not the owner or lessee of the vehicle at the time of the alleged violation and provides the name and current address of the person operating the motor vehicle at the time of the violation; or
(2) Submits a copy of a police report showing the vehicle had been reported as stolen in a timely manner before the date of the violation.
(b) If the city or agency finds that the person named in the citation was not operating the vehicle at the time of the violation or receives evidence under paragraph (a)(1) of this section identifying the person driving the vehicle at the time of the violation, the city or agency shall issue a citation to the identified driver through the United State mail, no later than fourteen (14) days after receipt of this information.

Minneapolis, Minn., Code art. 1, § 474.660 (2004).

Section 660(a)(1) suggests that an owner will remain liable, even if he or she provides the name of another person who operated the vehicle, unless the owner also proves that he or she was not the owner at the time of the alleged violation. But an affidavit submitted by Minneapolis police in response to Kuhlman’s motion to dismiss states that police will not issue a citation to both the vehicle owner and the person the vehicle owner identifies as the driver, and acknowledges that courts cannot convict both the owner and driver of the same violation. At oral argument, the state further explained that if a vehicle owner identifies another person as the driver, the ordinance charge against the owner would be dismissed and the driver would be charged, but the driver would not be charged under the ordinance because the ordinance only provides for owner liability, not driver liability. Instead, the driver would be charged under the Minnesota Traffic Regulations (“the Act”), Minn. Stat. ch. 169 (2006), which imposes liability on motor vehicle drivers for red-light violations. See Minn.Stat. § 169.06, subds. 4(a), 5(a) (2006).

The Act also.requires that its provisions “shall be applicable and uniform throughout this state and in all political subdivisions and municipalities.” Minn.Stat. § 169.022 (2006). The Act does not provide owner liability for traffic light violations.

The district court dismissed the state’s case against Kuhlman, deciding that the Minneapolis ordinance conflicts with the Act. The district court reasoned that the ordinance and the Act cover the same subject matter but that the Minneapolis ordinance provides fewer “due process protections” than are guaranteed to vehicle owners who are prosecuted under the Act. The Minnesota Court of Appeals affirmed the district court, reasoning that (1) an owner-liability ordinance would impede state-wide uniformity and therefore conflicts with the Act; and (2) because the ordinance actually seeks to penalize drivers, rather than owners, it again conflicts with the statute because the ordinance imposes a lesser burden of proof on the state. Kuhlman, 122, N.W.2d at 6-8.

The question before us is very narrow, whether the Act, and specifically Minn.Stat. §§ 169.06 and 169.022, preempt the Minneapolis ordinance. This is a question of law that we review de novo. Peterson v. BASF Corp., 675 N.W.2d 57, 69 (Minn.2004), vacated and remanded on other grounds, 544 U.S. 1012, 125 S.Ct. 1968, 161 L.Ed.2d 845 (mem.) (2005).

Generally, “municipalities have no inherent powers and possess only such powers as are expressly conferred by statute or implied as necessary in aid of those powers which have been expressly conferred.” Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 357, 143 N.W.2d 813, 820 (1966). Minneapolis is a home-rule-charter city with a general welfare clause, and as such has some power to enact traffic regulations, but those traffic regulations are not valid if they are in conflict with state law. See Minn.Stat. § 410.015 (2006); State v. Sugarman, 126 Minn. 477, 479, 148 N.W. 466, 467 (1914).

To consider whether the ordinance conflicts with the Act, we begin with MinmStat. § 169.022, which imposes a uniformity requirement on traffic regulations throughout the state:

The provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any rule or regulation in conflict with the provisions of this chapter unless expressly authorized herein.

We have held that this “provision requiring uniformity and statewide application clearly showed the legislative intent to preempt this field except for the limited local regulation the statute expressly permitted.” Mangold, 274 Minn. at 359, 143 N.W.2d at 821; see also Duffy v. Martin, 265 Minn. 248, 252, 121 N.W.2d 343, 346 (1963) (“In order to provide uniformity in traffic regulations throughout the state, our legislature has prohibited the enactment of ordinances by municipalities in conflict with state statutes, at least since 1911, except where expressly authorized.” (footnote omitted)). But we have further held that even though the state has preempted the field of traffic law, “ ‘no conflict exists where the ordinance, though different, is merely additional and complementary to or in aid and furtherance of the statute.’ ” City of St. Paul v. Olson, 300 Minn. 455, 456, 220 N.W.2d 484, 485 (1974) (quoting Mangold, 274 Minn. at 352, 143 N.W.2d at 817). If the ordinance covers specifically what the statute covers generally, it does not conflict with the statute. Id. at 457, 220 N.W.2d at 485.

We have applied the preemption doctrine in the context of traffic regulations in three principal cases, Olson, Duffy, and State v. Hoben, 256 Minn. 486, 98 N.W.2d 813 (1959). In Olson, the defendant, charged with violating a Saint Paul ordinance prohibiting unreasonable acceleration, challenged the ordinance on the ground that it conflicted with state law. 300 Minn. at 455-56, 220 N.W.2d at 484-85. We determined that the ordinance did not conflict with state law because state law contained a general prohibition against careless driving and unreasonable acceleration was one form of careless driving. Id. at 456-57, 220 N.W.2d at 485. Because the ordinance covered specifically what the statute covered generally, we held that the ordinance did not conflict with state law. Id. at 457, 220 N.W.2d at 485.

In Duffy, a district court had given jury instructions in a civil action relating to the actions drivers must take before moving a parked car. 265 Minn. at 251-52, 121 N.W.2d at 345-46. The state statute required that the person should not move a vehicle “ ‘unless and until such movement can be made with reasonable safety.’ ” Id. at 251, 121 N.W.2d at 346. The Minneapolis ordinance used the same standard, but also required the person to give a hand signal. Id., 121 N.W.2d at 346. We held that the Minneapolis ordinance was invalid because it “adds a requirement that is absent from the statute.” Id. at 254-55, 121 N.W.2d at 347-48. We emphasized that “[t]he purpose of uniformity required by our statutes is to enable a driver of a motor vehicle to proceed in all parts of the state without the risk of violating an ordinance with which he is not familiar.” Id. at 255, 121 N.W.2d at 348.

In Hoben, the defendant was convicted without a jury of violating an Edina ordinance for driving an automobile while intoxicated. 256 Minn. at 436, 98 N.W.2d at 814. The Edina city charter allowed for trial without a jury for ordinance violations. Id. at 436, 98 N.W.2d at 814. A statute also prohibited driving while intoxicated, making it a criminal offense and thus affording a defendant the right to a jury trial. Id. at 437 & n. 2, 98 N.W.2d at 815 & n. 2. A related statute also provided a presumption of innocence, requiring that the state prove guilt beyond a reasonable doubt, and provided protection against double jeopardy. Id. at 438, 98 N.W.2d at 815. We noted that although the legislature favored concurrent jurisdiction over the issue of driving under the influence, “[i]t would be a strange anomaly for the legislature to define a crime, specify the punishment therefor, provide that its application shall be uniform throughout the state, and then permit a municipality to prosecute that crime as a civil offense.” Id. at 444, 98 N.W.2d. at 818-19. We concluded that the municipality was required in any prosecution for driving under the influence, “to insure uniformity of treatment” by “affording] the defendant all [of] the protection[s] of criminal procedure[,] including the right of trial by jury and immunity from double punishment.” Id. at 444, 98 N.W.2d at 819.

Overall, our jurisprudence related to preemption and conflict in the context of traffic violations can be distilled into four main points of law: (1) state law preempts the field of traffic law except for that which is expressly permitted by state statute; (2) no conflict exists when an ordinance is merely additional and complementary to a state law and covers specifically what the statute covers generally; (3) municipalities must provide the same procedural protections as the state when prosecuting offenses that are covered by an ordinance and a statute; and (4) a municipality may not prohibit by ordinance conduct that is not prohibited by statute.

Because the Act generally preempts municipal traffic law, we first address whether the Act expressly authorizes the ordinance. Minnesota Statutes § 169.04(a)(2) (2006) expressly authorizes a city to regulate “traffic by means of police officers or traffic-control signals.” The state argues that this section authorizes Minneapolis to enact the ordinance.

Minnesota Statutes § 169.01, subd. 27 (2006), defines “police officer” as “every officer authorized to direct or regulate traffic or to make arrests for violations of traffic rules.” Minnesota Statutes § 169.01, subd. 42 (2006), defines “traffic control signal” as “any device, whether manually, electrically or mechanically operated, by which traffic is alternately directed to stop and permitted to proceed.” The state argues that the ordinance is “regulating traffic” by means of a traffic control signal and enforcing those traffic control signals through the use of photographic and video evidence captured by the cameras. But the legislature has narrowly defined “police officer” and “traffic control signal,” indicating its intent to limit the meaning of these terms. And those narrow definitions confirm that the purpose of section 169.04 is only to authorize a city to direct the movement of vehicles on the roadway, not to authorize a city to establish the rules of the road or to enlarge a city’s authority to enforce traffic laws.

We conclude that the narrow provision cannot be read to authorize a city to prohibit conduct that is not prohibited by the Act, or to provide lesser procedural protections to a person charged under the ordinance than to a person charged under the Act. Accordingly, we hold that section 169.04 does not expressly authorize the ordinance. To the contrary, previous attempts to obtain enabling legislation to authorize municipalities to enact photo enforcement of traffic violations have not been successful. See Kuhlman, 722 N.W.2d at 8.

Because the ordinance is not expressly authorized, we next address whether the ordinance conflicts with the state law on red-light violations. Both section 169.06 and section 474.630 of the ordinance define the proper procedures that drivers must follow at red lights. The statute only penalizes the driver for violating section 169.06. See MinmStat. § 169.06, subd. 4(a) (“The driver of any vehicle shall obey the instructions of any official traffic-control device applicable thereto * * *.”) The ordinance goes further. First, the ordinance allows for photo enforcement of red-light violations. Second, the ordinance penalizes the owner of the motor vehicle. Finally, the ordinance contains a rebuttable presumption that the owner was the driver of the motor vehicle.

The state argues that there is no conflict because the ordinance covers specifically what the Act covers generally. In support of its argument, the state asserts two theories: (1) the ordinance, through section 474.640, is a specific application of owner liability found generally in the Act; and (2) the ordinance, through section 474.660, is a mechanism by which the city can indirectly enforce the statutory prohibition against drivers.

Kuhlman argues that if the ordinance is construed as imposing liability on owners, it violates the uniformity requirement of section 169.022 by expanding an owner’s liability in a way that the Act does not. Kuhlman further argues that the ordinance actually imposes liability on drivers, rather than owners, because it presumes that owners are drivers. He contends that the ordinance’s language creates a different burden of proof for driver liability than is imposed by the Act, violating Hoberís requirement that a municipality must provide the same procedural protections for prosecution under an ordinance as exist under the Act.

The state’s first argument — that the ordinance is a specific application of owner liability created generally by statute— must fail because the Act does not create general owner liability for traffic violations. Instead, the Act places liability for traffic violations on owners in only specific, limited circumstances. First, an owner is guilty of a petty misdemeanor if the motor vehicle fails to stop for a school bus that is displaying a stop signal arm and flashing red lights. Minn.Stat. § 169.444, subds. 1, 6 (2006). Second, an owner is guilty of a petty misdemeanor if the motor vehicle fails to stop for a passing emergency vehicle. Minn.Stat. § 169.20, subds. 5, 5b (2006). Third, it is unlawful for an owner “to require or knowingly permit” the driver to violate the Act. Minn.Stat. § 169.90, subd. 2 (2006). Thus, the Act does not provide for owner liability for the failure of the motor vehicle to stop for a red light unless the owner requires or knowingly permits the driver to fail to stop. In this sense, the owner liability provided by the ordinance is more general, not more specific, than that provided by the Act.

Additionally, the more limited owner liability under the Act applies equally throughout the state, whereas the broader owner liability created by the ordinance would apply only in Minneapolis. Section 474.640 thus “adds a requirement that is absent from the statute,” Duffy, 265 Minn. at 254, 121 N.W.2d at 347, namely owner liability for red-light violations where the owner neither required nor knowingly permitted the violation.

We emphasized in Duffy that a driver must be able to travel throughout the state without the risk of violating an ordinance with which he is not familiar. Id. at 255, 121 N.W.2d at 348. The same concerns apply to owners. But taking the state’s argument,to its logical conclusion, a city could extend liability to owners for any number of traffic offenses as to which the Act places liability only on drivers. Allowing each municipality to impose different liabilities would render the Act’s uniformity requirement meaningless. See Minn. Stat. § 169.022. Such a result demonstrates that section 474.640 conflicts with state law.

The state’s second argument — that the statute does not conflict with state law because the ordinance allows the city to enforce red-light violations by drivers, which is conduct prohibited by the statute, must also fail. That argument would require us to treat the owner as the driver under the ordinance because section 474.640 of the ordinance only imposes liability on owners, not drivers. And that argument would also require us to enforce section 474.660, which creates a presumption that the owner was the driver. Subdivision (a) of section 474.660 states that

prima facie evidence that the vehicle described in the citation was operated in violation of this section, together with proof that the defendant was at the time of such violation the owner or lessee of the vehicle, shall constitute in evidence a rebuttable presumption that such owner or lessee was the person who committed the violation.

The problem with the presumption that the owner was the driver is that it eliminates the presumption of innocence and shifts the burden of proof from that required by the rules of criminal procedure. This violates the rule in Hoben that an ordinance cannot provide less procedural protection to the person charged than would be available if the person were charged under the Act. 256 Minn. at 444, 98 N.W.2d at 819.

The state argues that the ordinance meets Hoben’s requirements and does not conflict with the Act because the rules of criminal procedure are applicable to both a charge under the ordinance and one under the Act. The state also cites to the court of appeals’ decision in State v. Eakins for the proposition that the presumption in the ordinance could not violate principles of criminal law because a petty misdemeanor is not within the definition of a crime under the criminal code. 720 N.W.2d 597, 601 (Minn.App.2006) (citing Minn.Stat. § 609.02, subd. 1 (2006), which defines a “crime” as “conduct which is prohibited by statute and for which the actor may be sentenced to imprisonment, with or without a fine”).

Regardless of whether petty misdemeanors are considered to be “crimes” under the criminal code, the rules of criminal procedure specifically apply to petty misdemeanors. Minn. R.Crim. P. 1.01. And those rules require that a defendant be “presumed innocent until proven guilty beyond a reasonable doubt.” Minn. R.Crim. P. 23.05, subd. 3. Thus, in any prosecution under the Act, the state has the burden to prove beyond a reasonable doubt that the owner was driving at the time of the red-light offense, and the owner has no obligation to prove anything.

On the other hand, section 474.660 of the ordinance requires the owner to rebut the presumption that he or she was the driver, or face liability as the owner. Therefore the ordinance provides less procedural protection to a person charged with an ordinance violation than is provided to a person charged with a violation of the Act. Accordingly, the ordinance conflicts with the Act and is invalid.

The state argues that even if section 474.660 is invalid because it creates a presumption that the owner is the driver, that section can be severed and the owner may still be held liable under section 474.640. But, as we discussed above, section 474.640 is itself in conflict with state law because it imposes liability on owners who would not be liable under the Act. Thus we need not analyze the question of severance because it would not alter the outcome in this case.

The state argues that there are compelling public safety considerations that underlie the ordinance, citing that numerous accidents occur as a result of red-light violations and they often lead to “serious injuries, death, extensive property damage and high insurance costs.” Our decision is not meant to minimize those considerations, but only to clarify that they are not relevant to a preemption analysis and are most appropriately addressed to the legislature.

We hold that Minneapolis Code of Ordinances sections 474.620 to 474.670 are invalid because they are in conflict with the Act, and specifically with Minn.Stat. § 169.06, subd. 4(a), and Minn.Stat. § 169.022.

Affirmed.

PAGE, J., took no part in the consideration or decision of this case.