Jay Nygard; Kendall Nygard v. City of Orono, a Minnesota municipality

United States Court of Appeals
For the Eighth Circuit
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No. 21-2941
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Jay Nygard; Kendall Nygard
Plaintiffs - Appellants
v.
City of Orono, a Minnesota municipality
Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota
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Submitted: March 17, 2022
Filed: July 5, 2022
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Before GRUENDER, BENTON, and ERICKSON, Circuit Judges.
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GRUENDER, Circuit Judge.
Jay and Kendall Nygard sued the City of Orono, Minnesota after they were
prosecuted for replacing a driveway without a permit. They challenged the permit
ordinance as unconstitutionally vague and raised claims of abuse of process and
malicious prosecution. The district court dismissed the complaint. We reverse the
district court’s dismissal of Kendall Nygard’s malicious-prosecution claim, but we
otherwise affirm.

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I.
In October 2019, Jay Nygard replaced the driveway on a property that he
owned with his wife, Kendall Nygard. On October 25, after he removed the
driveway and was about to pour concrete for the new one, an inspector from the City
of Orono arrived and told Nygard that he needed a permit to replace the driveway.
Nygard said he would apply for one, the inspector left, and Nygard continued to
work on the driveway.
The next day, Nygard finished the driveway and applied for a permit. The
new driveway had a narrower width than the previous one. Nygard’s permit
application contained an aerial photograph of the property. In the application,
Nygard referenced a wind-turbine footing to provide additional information and to
address concerns relating to a separate permit application. The city sent him an
individualized “Builder Acknowledgement Form” (“BAF”), which listed “permit
conditions,” including that (1) the driveway should have a lip so that its pavement
sits “a minimum of 1 5/8 in. above [the] street pavement where the two intersect”;
(2) the driveway had to be “replaced ‘in kind,’” meaning it had to retain its existing
width; (3) the “Wind Turbine footing” was “not permitted”; and (4) the “[h]ardcover
calculations”1 had to include a sidewalk from the driveway to the front door. The
BAF stated that “[h]ardcover calculations” were “not requested or reviewed due to
the replacement of the existing driveway.”
Nygard emailed the city planning assistant and expressed concerns about
some of the conditions. The city planning assistant replied that the city would issue
the permit once Nygard signed the BAF. Nygard crossed out some of the conditions,
believing they were not required under the city code or were otherwise inapplicable
1 The City of Orono’s website defines “hardcover” as “a hard surface that
prevents or retards entry of water into the soil and causes water to run off the surface
in greater quantities and at an increased rate of flow.” Hardcover Information, City
of Orono, https://ci.orono.mn.us/DocumentCenter/View/2755/Hardcover-
Information-Packet-2022-pdf (last updated January 2022).

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to his driveway. For example, he crossed off the condition that his driveway sit
above the street pavement because the city code did not require driveway lips on
streets that lacked curbs and gutters, his street lacked curbs and gutters, and none of
his neighbors had driveway lips. He also crossed off the condition about the wind-
turbine footing. He initialed the modified form and returned it to the city.
On October 31, the city planning assistant emailed Nygard, explaining that
the city would grant a permit only if Nygard accepted all the conditions listed on the
original BAF. Her email acknowledged some of Nygard’s concerns and stated that
the driveway lip requirement was meant to assist with Nygard’s “drainage concern.”
Nygard responded, still objecting to the conditions as inapplicable. After further
similar exchanges, Jeremy Barnhart, the Orono Community Development Director,
emailed Nygard on December 12 stating that he must agree to the conditions by the
end of the day, or else “this matter will be turned over to the prosecuting attorney
tomorrow for possible legal action.” Nygard still did not acknowledge the
conditions, and the next day, Barnhart emailed a city prosecutor, asking him to “file
a citation to Jay Nygard and Kendall Nygard . . . for violation of [Orono City Code]
section 86-66(b).” In the email, he stated that the Nygards “have completed work
without a permit and have spent the last 6 weeks arguing with [Barnhart] on
requirements of the permit, after they installed the improvement.”
Relying on the “reports of . . . Jeremy Barnhart,” a city police officer drafted
a statement of probable cause, alleging that “work had been completed without
having first obtained a permit on a home” owned by Jay and Kendall Nygard. The
statement asserted that the driveway did not have a lip, “the driveway that had been
replaced was a non-conforming width,” and “the hardcover calculations exceeded a
24-inch wide sidewalk from the driveway to the front door.” According to the
Nygards, the police department did not inspect the property or investigate whether
these statements were true, and contrary to the probable-cause statement, “the
replacement driveway pavement was above the street pavement where they
intersect.” On December 29, the city charged Jay and Kendall Nygard with violating
Orono City Code section 86-66(b), which states that a “zoning permit application

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for hardcover and/or land alteration shall be submitted by the individual performing
the work prior to conducting any land alteration or hardcover installations on a
property.”
At trial, the state court dismissed the charge against Kendall Nygard, ruling
that she could not be guilty of violating section 86-66(b) as someone who merely
owned the property and did not perform or order any unauthorized work. Jay Nygard
was acquitted because the driveway-lip condition was only a “suggestion” and “there
was no basis for a zoning permit application for hardcover replacement” where the
city had not requested “hardcover calculations.” The city never officially granted or
denied Nygard’s permit application.
The Nygards sued the city in federal court under 42 U.S.C. § 1983, claiming
section 86-66 is void for vagueness. They also raised a First Amendment retaliation
claim, an abuse-of-process claim, and a malicious-prosecution claim. The district
court dismissed all claims under Federal Rule of Civil Procedure 12(b)(6). The
Nygards appeal the district court’s rulings on vagueness, the abuse-of-process claim,
and the malicious-prosecution claim.
II.
We review de novo the grant of a motion to dismiss under Rule 12(b)(6).
Martin v. Iowa, 752 F.3d 725, 727 (8th Cir. 2014). “In analyzing
a motion to dismiss, a court must accept the allegations contained in the complaint
as true and make all reasonable inferences in favor of the nonmoving party.” Id.
A.
First, the Nygards challenge the city ordinance as unconstitutionally vague,
asserting a facial challenge and an as-applied challenge. The ordinance provides:

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(a) Permits required. It is unlawful for any person to erect,
construct, enlarge, alter, repair, move, improve, remove, convert,
or demolish any building or structure, or any part or portion,
including but not limited to the general construction, plumbing,
on-site sewage treatment system, wood stoves and fireplaces,
ventilating, heating or air conditioning systems, or cause such
work to be done, without first obtaining a separate building, sign,
or general permit for each such building, structure or separate
component from the city.
. . .
(b) Zoning permit for land alteration. A land alteration and
hardcover plan shall be submitted with the site plan or certified
site plan and incorporated as part of the building permit approval,
including the name of the individual performing the work. If no
building permit is necessary, a separate zoning permit
application for hardcover and/or land alteration shall be
submitted by the individual performing the work prior to
conducting any land alteration or hardcover installations on a
property, including grading, patios and retaining walls. The
zoning permit shall be reviewed and approved by the city prior
to issuance.
Orono City Code § 86-66.
The Nygards raise a facial challenge to the ordinance. However, “[a]
vagueness challenge to [a] statute which does not involve First Amendment
freedoms must be examined in the light of the facts of the case at hand.” United
States v. Orchard, 332 F.3d 1133, 1138 (8th Cir. 2003) (internal quotation marks
omitted); see Gallagher v. City of Clayton, 699 F.3d 1013, 1015, 1021-22 (8th Cir.
2012) (holding that a “facial challenge” to an outdoor-smoking ordinance “is not
properly before this court” because “smoking does not implicate the First
Amendment on these alleged facts”). Here, there is no First Amendment interest
that would justify deviating from the rule requiring as-applied challenges.

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The Nygards rely on a plurality opinion in City of Chicago v. Morales, which
authorized facial attacks to criminal laws outside the First Amendment context
where “vagueness permeates the text of such a law.” 527 U.S. 41, 55 (1999). But
they concede that the Morales plurality “expressed a different approach” from
Eighth Circuit precedents. Crucially, some of these Eighth Circuit cases were
decided after Morales. See, e.g., Orchard, 332 F.3d at 1138; Gallagher, 699 F.3d at
1021-22. Accordingly, we decline to follow the Morales plurality to the extent that
it conflicts with these binding cases. See N.Y. State Rifle & Pistol Ass’n v. Cuomo,
804 F.3d 242, 265 (2d Cir. 2015) (“[B]ecause the test set forth by the Morales
plurality has not been adopted by the Supreme Court as a whole, we are not required
to apply it.”).
We next turn to the Nygards’ as-applied challenge. “To defeat a vagueness
challenge, a penal statute must pass a two-part test: The statute must first provide
adequate notice of the proscribed conduct, and second, not lend itself to arbitrary
enforcement.” United States v. Barraza, 576 F.3d 798, 806 (8th Cir. 2009). “One
to whose conduct a statute clearly applies may not successfully challenge it for
vagueness.” Parker v. Levy, 417 U.S. 733, 756 (1974). An as-applied challenge
fails if the person challenging the provision “has received fair warning of the
criminality of his own conduct.” Id.
The Nygards argue that the ordinance is vague because it “fails to define its
terms.” They claim that the terms “erect, construct, enlarge, alter, repair, move,
improve, remove, convert, . . . demolish,” “hardcover and/or land alteration,” and
“hardcover installations” do not clearly cover a driveway replacement. See § 86-66.
“But the [ordinance’s] language gives notice of this application,” see United States
v. Cook, 782 F.3d 983, 989 (8th Cir. 2015), through the phrase “hardcover
installations,” § 86-66(b). The term “hardcover” is used throughout the city code
and expressly includes driveways. See §§ 78-1683 (“The following hardcover items
shall be included in proposed hardcover calculations[:] . . . (2) A driveway for all
garages . . . .”), 78-1682(1) (“The portion of the shared driveway on the primary
property that serves both primary and secondary property shall be considered

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hardcover for the primary property.”), 78-571 (regulating “[h]ardcover” and
referring to “driveway and sidewalk hardcover”); cf. Am.-Arab Anti-Discrimination
Comm. v. City of Dearborn, 418 F.3d 600, 610 (6th Cir. 2005) (holding that a term
was not unconstitutionally vague where it was defined elsewhere in the city code).
And Nygard performed a “hardcover installation[],” § 86-66(b), by pouring concrete
for the new driveway, thereby setting it up for use or service. See “Install,” Merriam-
Webster’s Collegiate Dictionary 648 (11th ed. 2005) (defining “[i]nstall” as “to set
up for use or service”); “Installation,” Merriam-Webster’s Collegiate Dictionary 648
(11th ed. 2005) (defining an “[i]nstallation” as “something that is installed for use”).
At least as applied to a driveway replacement, the ordinance is clearer than other
criminal laws that we have held were not vague. See, e.g., Cook, 782 F.3d at 987-
89 (holding that a statute criminalizing receipt of “anything of value” as part of a sex
trafficking venture was not vague as applied to the defendant’s receipt of “sexual
acts”). Finally, on the day Nygard performed the work, a city inspector told him that
a permit was required, and this was confirmed by Nygard’s subsequent exchanges
with the city. He thus “received fair warning of the criminality of his own conduct.”
Parker, 417 U.S. at 756. The ordinance is also “sufficiently clear [such] that the
speculative danger of arbitrary enforcement does not render it void for vagueness.”
United States v. Birbragher, 603 F.3d 478, 489 (8th Cir. 2010). Therefore, the
district court did not err in dismissing the Nygards’ as-applied vagueness challenge.
B.
Second, the Nygards argue that under Minnesota law, the city abused the
criminal process to force them to comply with inapplicable permit conditions, such
as the requirement to remove the wind-turbine footing. “[A]n abuse of process is
the employment of legal process for some purpose other than that which it was
intended by the law to effect—the improper use of a regularly issued process.”
Dunham v. Roer, 708 N.W.2d 552, 571 n.5 (Minn. Ct. App. 2006). An abuse-of-
process claim requires proof of “an [u]lterior purpose” and “the act of using the
process to accomplish a result not within the scope of the proceeding in which it was
issued.” Kittler & Hedelson v. Sheehan Props., Inc., 203 N.W.2d 835, 840 (Minn.

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1973). “‘Process’ is defined as ‘[t]he proceedings in any action or prosecution; a
summons or writ, esp[ecially] to appear or respond in court.’” Eclipse Architectural
Grp., Inc. v. Lam, 814 N.W.2d 692, 697 (Minn. 2012) (quoting “Process,” Black’s
Law Dictionary 1325 (9th ed. 2009)); see also Leiendecker v. Asian Women United
of Minn., 834 N.W.2d 741, 753 (Minn. Ct. App. 2013) (applying the Eclipse
definition to an abuse-of-process claim), rev’d on other grounds, 848 N.W.2d 224
(Minn. 2014).
The Nygards’ argument on appeal meaningfully departs from the allegations
in their complaint. Under the heading for the abuse-of-process count, the complaint
alleges that “Orono abused its BAF process”—not criminal process—“by including
in the BAF form . . . certain ‘permit conditions’ city officials knew were not
applicable.” It then states that “Nygard objected to the City’s abuse of the permit
application and BAF process.” The district court did not err in dismissing the claim
because abuse-of-process claims target the misuse of legal process, not a city’s
permitting process. See Leiendecker, 834 N.W.2d at 753.
Even if, as the Nygards argue on appeal, their complaint could be construed
as challenging the city’s use of criminal process, it is not reasonable to infer that the
city used criminal process to coerce the Nygards into compliance with conditions
inapplicable to the driveway. “[H]ere we have an obvious alternative explanation.”
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 567 (2007). Barnhart referred the
case to the prosecutor because the Nygards “completed work without a permit” and
“spent the last 6 weeks arguing . . . after they installed the improvement.” The
obvious explanation is that the Nygards’ apparent violation of completing work
without a permit resulted in prosecution. The Nygards complain that the city’s
failure officially to grant or deny the permit application prevented them from seeking
an administrative appeal. That argument ignores the fact that Nygard sought a
permit only after he had already conducted a hardcover installation despite the
ordinance’s requirement to obtain a permit prior to doing so. See § 86-66(b). The
city made extended efforts to cooperate with him after the fact but ultimately chose

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to prosecute him for the violation. This course of events does not give rise to a
plausible claim for relief.
C.
Finally, we address the Nygards’ malicious-prosecution claim. To state a
malicious-prosecution claim in Minnesota, a party must allege that “(1) the suit
[was] brought without probable cause and with no reasonable ground on which to
base a belief that the plaintiff would prevail on the merits; (2) the suit [was] instituted
and prosecuted with malicious intent; and (3) the suit . . . ultimately terminate[d] in
favor of the defendant.” Stead-Bowers v. Langley, 636 N.W.2d 334, 338 (Minn. Ct.
App. 2001). “Probable cause is a reasonable ground of suspicion, supported by
circumstances sufficiently strong in themselves to warrant a cautious man in the
belief that the person accused is guilty of the offense with which he is charged.”
Allen v. Osco Drug, Inc., 265 N.W.2d 639, 643 (Minn. 1978) (internal quotation
marks omitted). “Only reasonable belief that probable cause existed is necessary to
negate a malicious prosecution claim.” Dunham v. Roer, 708 N.W.2d 552, 569
(Minn. Ct. App. 2006) (internal quotation marks omitted).
A judicial finding of probable cause creates a prima facie showing of probable
cause. See id. at 560-61, 570; cf. Polzin v. Lischefska, 204 N.W. 885, 885 (Minn.
1925) (holding that a grand jury indictment is prima facie evidence of probable cause
to prosecute); Jones v. Flaherty, 165 N.W. 963, 964 (Minn. 1917) (holding that
making “a full and fair statement of the facts” to a city prosecutor who then
“advise[s] the prosecution” creates a complete defense to malicious prosecution).
That showing is rebutted if the plaintiff “show[s] affirmatively that [the] defendant
had no reasonable ground for believing him guilty of the offense.” Polzin, 204 N.W.
at 885. The “failure to investigate” can show that probable cause is lacking, see
Allen, 265 N.W.2d at 644, as can reliance on intentionally false statements, see
Young v. Klass, 776 F. Supp. 2d 916, 923-24 (D. Minn. 2011) (collecting cases).

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1.
We first address whether the City of Orono had a reasonable belief that
probable cause existed to prosecute Jay Nygard. The district court held that there
was probable cause to prosecute Jay Nygard because a Minnesota state court judge
signed the charging officer’s probable-cause statement. It further held that Jay
Nygard’s installation of hardcover without a permit supported probable cause under
Orono City Code section 86-66. The Nygards argue that there was no probable cause
because the police relied on false statements made by Barnhart and did not conduct
an investigation.
Here, the state court judge’s finding of probable cause establishes a prima
facie defense to malicious prosecution. See Dunham, 708 N.W.2d at 569. Jay
Nygard fails to overcome that defense because the city knew from his
communications that he had applied for a permit only after replacing the driveway.
Therefore, there was more than a “reasonable ground,” Allen, 265 N.W.2d at 643, to
suspect he was guilty of failing to submit a “zoning permit application . . . prior to
conducting any land alteration or hardcover installations on a property,” § 86-66(b).
The Nygards’ assertion that Jay Nygard’s prosecution was based on
falsehoods in Barnhart’s reports is not accurate. Barnhart did not claim that the BAF
conditions were required by the city code; rather, he asserted that the Nygards had
not agreed to the requested permit conditions and that Jay Nygard had replaced a
driveway without a permit. Those statements were true. Further, any failure to
investigate does not defeat probable cause to prosecute Jay Nygard because the city
already knew from Nygard’s application and emails that he installed a driveway
without a permit.
2.
Whether there was probable cause to prosecute Kendall Nygard is a closer
question. Like her husband, Kendall Nygard was charged under Orono City Code

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section 86-66(b), which requires “the individual performing the work” to submit the
permit application. The complaint alleges that Kendall Nygard lived in Florida and
was not involved with the driveway replacement or the permit application. The
city’s correspondence was with Jay Nygard, not Kendall Nygard, and in that
correspondence, Jay Nygard repeatedly identified himself as the person who
replaced the driveway. The complaint also alleges that the probable-cause statement
was submitted without any investigation into Kendall’s involvement.
The district court held that there was probable cause to prosecute Kendall
Nygard because of the judge’s probable-cause finding and because Kendall Nygard
was in violation of Orono City Code section 86-36. That ordinance requires an
“owner and/or occupant” of property where “work has been done in violation of any
building code or zoning requirement” to obtain a permit or remove the violation
within thirty days of receiving notice. § 86-36.
The plaintiffs have sufficiently alleged a lack of probable cause to prosecute
Kendall Nygard, rebutting the city’s prima facie showing. In Barnhart’s email to
the prosecuting attorney, he requested a citation for “Jay Nygard and Kendall
Nygard” because “[t]hey have completed work without a permit.” Although a judge
reviewed the probable-cause statement and made a finding of probable cause, it was
not entirely based on “a full and fair statement of the facts,” see Jones, 165 N.W. at
964; accepting the complaint’s factual allegations as true, see Martin, 752 F.3d at
727, Kendall Nygard was not involved with the driveway replacement. Barnhart
and other city officials knew that Jay Nygard installed the driveway, but they had no
knowledge of Kendall’s involvement, and they failed to investigate it. See Allen,
265 N.W.2d at 641, 644 (holding that the failure to investigate the plaintiff’s claim
that she had no involvement in a forged check showed a lack of probable cause in a
malicious-prosecution case); Olson v. Rogers, 210 N.W.2d 232, 233 (Minn. 1973)
(upholding a jury verdict finding malicious prosecution where the plaintiffs were
charged with furnishing alcohol to minors but the police “investigation failed to
establish that [the] plaintiffs had purchased the beer” and instead showed only that
the plaintiffs had attended an event where minors were drinking).

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The fact that section 86-36 allows for the prosecution of property owners who
fail to remedy an existing violation of the permitting requirement cannot defeat
Kendall Nygard’s malicious-prosecution claim because she was charged under
section 86-66(b). Malicious-prosecution claims require “a want of probable cause
for the prosecution,” not a want of probable cause for unprosecuted offenses. See
Moore v. N. Pac. R. Co., 33 N.W. 334, 334 (Minn. 1887) (emphasis added);
Dombrovske v. Dombrovske, 137 Minn. 56, 57, 162 N.W. 891, 891 (Minn. 1917)
(noting that the question in a malicious-prosecution claim is whether there was
“probable cause to believe that [the defendant] was guilty of the offense charged”
(emphasis added)). The criminal charges and trial related to the alleged violation of
failing to obtain a permit before engaging in hardcover installation, not the separate
violation of failing to remedy an existing violation within thirty days. The district
court therefore erred in granting the motion to dismiss as to Kendall Nygard’s claim
for malicious prosecution.
III.
For the foregoing reasons, we reverse the dismissal of Kendall Nygard’s
malicious-prosecution claim but otherwise affirm the judgment in favor of the City
of Orono.
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