City of Golden Valley v. Wiebesick

CONCURRENCE

GILDEA, Chief Justice

(concurring).

I agree with the result the majority reaches and join much of the opinion. There are, however, three parts of the opinion that I do not join and I write separately to explain my disagreement on these matters.

First, I do not join in Part I.A. of the opinion. In this section, the opinion purports to resolve a punctuation issue in Article I, Section 10 of the Minnesota Constitution. As the majority acknowledges, the issue about the semicolon was not raised below or briefed by the parties. See Travelers Indem. Co. v. Bloomington Steel & Supply Co., 718 N.W.2d 888, 898 n.7 (Minn. 2006) (declining to address issues raised by an amicus curiae that were neither argued below nor within “the scope of the briefing order given by [the] court to the parties”). As a result, I would not reach this issue.

Second, I do not join the opinion’s reliance upon the U.S. Census Bureau data, supra at 167 n.15. This data is not in the record and we should not rely on matters outside the record to decide this case. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (“An appellate court ... may not consider matters not produced and received in evidence below.”).

Third, I do not join in Part II of the opinion, which imposes specific procedures on district court judges to use when they consider petitions for administrative search warrants. In Camara v. Municipal Court, 387 U.S. 523, 539, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), the United States Supreme Court stated that, when probable cause is satisfied, a judge may issue a “suitably restricted search warrant.” I would leave the implementation of Ca-mara’s charge to the discretion of our very able district court judges to handle on a case-by-case basis.