State v. Lemmer

HANSON, Justice

(dissenting).

Although I agree with the conclusion that, under separation of powers, only the court has the power to modify the common law doctrine of collateral estoppel, I disagree with the further holdings of the majority. I would conclude that for collateral estoppel purposes the state and the Commissioner of Public Safety are the same party or, at the very least, are in privity with one another — the commissioner acts in his official, not individual, capacity and is nothing more than an officer and agent of the state. And I would conclude that comity should not be given to legislative efforts to overrule this application of the common law doctrine of collateral es-toppel because the public policy considerations underlying that doctrine substantially outweigh the inconvenience to the state of simply being required to coordinate the implied consent civil proceedings and driving while impaired (DWI) criminal prosecutions.

A. Separation of Powers

I agree with the conclusion of the majority that the common law doctrine of collateral estoppel is properly classified as procedural, not substantive, for separation of powers purposes. But I think it is important to look beneath that somewhat technical classification and consider the fundamental importance of the doctrine of collateral estoppel to the ability of the judiciary to fulfill its constitutional mandate to fairly and efficiently adjudicate civil and criminal eases under the rule of law. The doctrine of collateral estoppel is fundamentally important to the judiciary for at least three separate but interrelated reasons: 1

1. Fairness to the Parties

Once a judgment has become final, the parties to the proceeding have the right to rely on that judgment to govern their affairs. This principle of finality is crucial to allow the parties to conclude their disputes and move forward, to eliminate the waste of time and resources that would be re*665quired to engage in duplicate proceedings, and to avoid the risk of inconsistent decisions. The doctrine of collateral estoppel is one of the tools that the judiciary has fashioned to assure fairness to the parties by establishing and preserving the finality of judgments of the court.

2. Prudent Use of Judicial Resources

Annually, over 2,000,000 new cases are filed in Minnesota district courts, and over 220,000 of them require substantive attention by a judge. Studies by the legislative auditor have concluded that Minnesota district judges carry individual caseloads that greatly exceed those of judges in the other states in the upper-Midwest. In order to assure that each person who claims a right or seeks a remedy in the Minnesota courts will receive a fair and reasoned decision, it has been necessary for the judicial branch to better organize and streamline court processes. The doctrine of collateral es-toppel was important to the judiciary in earlier times, when there was less pressure on the district courts, but it is even more important to the current efforts to fairly and efficiently adjudicate a growing caseload. That doctrine eliminates the waste of judicial time and court resources by providing finality — an issue need be determined only once and when that decision becomes final it prevents any party who may be dissatisfied with the outcome from requiring any judge to devote more time and court resources to decide it again.

3. Public Trust and Confidence

A legislative requirement that the judiciary provide duplicate trials for selected issues would devalue the worth of the judicial effort that was expended to decide the issue the first time and would present the possibility of inconsistent decisions by different judges on precisely the same issue. Surely the parties, and the public at large, would have little trust in a judiciary that allows the losing party a second chance to litigate an issue that has already been decided by a final judgment and imposes the risk on the winning party that the second decision might come out differently.

For these reasons, the doctrine of collateral estoppel is inherently judicial and is not within the province of the legislative branch.

B. Parties and Privity Collateral estoppel applies where, among other things, the party to be es-topped in the present case by the judgment in the former case was a “party or in privity with a party to the prior adjudication.” Willems v. Comm’r of Pub. Safety, 333 N.W.2d 619, 621 (Minn.1983) (quoting Victory Highway Village, Inc. v. Weaver, 480 F.Supp. 71, 74 (D.Minn.1979)). The majority concludes that this element was not satisfied here because the state, as a party to the present DWI prosecution, is not the same party as the commissioner, who was the named party to the prior implied consent proceeding. Further, the majority concludes that the two are not even in privity.

1. Identical Parties

Clearly, the commissioner does not act in his individual capacity in an implied consent proceeding, but only in his official capacity as a member of the executive branch of state government, and thus as an officer and agent for the state. The state, although a legal “person” for most purposes, can only act through its officers and agents. The only apparent reason that the implied consent statute specified that the commissioner must be named as the “respondent” in a petition for judicial review is that the commissioner provides the prior administrative review. Compare *666Minn.Stat. § 169A.53, subd. 1 (2006)2 (“[A] person may request in writing a review of the order of revocation or disqualification by the commissioner ⅜ * ⅞.”), with Minn.Stat. § 169A.53 subd. 2(b)(1) (2006) (noting the petition must “be captioned in the full name of the person making the petition as petitioner and the commissioner as respondent”). In this sense, the commissioner is the nominal party, and the state is the real party. In fact, the implied consent statute recognizes that the state is the real party in both the implied consent and the DWI proceedings by providing that the implied consent hearing “may be conducted at the same time and in the same manner as hearings upon pretrial motions in the criminal [DWI] prosecution.” Minn.Stat. § 169A.53, subd. 3 (2006).

This identity between officers and the government they serve was recognized years ago by the United States Supreme Court in Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03, 60 S.Ct. 907, 84 L.Ed. 1263 (1940), where the Court stated:

Where the issues in separate suits are the same, the fact that the parties are not precisely identical is not necessarily fatal. As stated in Chicago, R.I. & P. Ry. Co. v. Schendel, 270 U.S. 611, 620, 46 S.Ct. 420, 70 L.Ed. 757, “Identity of parties is not a mere matter of form, but of substance. Parties nominally the same may be, in legal effect, different, ... and parties nominally different may be, in legal effect, the same.” A judgment is res judicata in a second action upon the same claim between the same parties or those in privity with them. Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195. There is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the government. The crucial point is whether or not in the earlier litigation the representative of the United States had authority to represent its interests in a final adjudication of the issue in controversy.

(Citations omitted.)

The reference to “the representative” in Sunshine Anthracite Coal Co. means the governmental agency, not its counsel. In other words, because two agencies are in privity with one another and are representatives of the same government, the only question is whether the agency that was the nominal party in the first proceeding had authority to represent the government in that proceeding. As applied here, the question is whether the commissioner had authority to represent the state in the implied consent proceeding. If the commissioner did, then the interests of the state were adequately represented in the implied consent proceeding and any judgment is binding on the state or any of its other agencies.

The Supreme Court of Alaska relied on Sunshine Anthracite Coal Co. to conclude that there was an identity of parties between the state and its department of public safety so that a suppression order entered against the state in a DWI preliminary hearing, determining that the results of a breathalyzer test could not be used because of the failure to preserve a sample, collaterally estopped the department from relitigating the admissibility of

*667the test results in the license revocation proceeding. Briggs v. State, Dep’t of Pub. Safety, 732 P.2d 1078, 1082-83 (Alaska1987). The court in Briggs stated:

The suppression issue decided by the district court was fully litigated by the prosecution at the suppression hearing. The interests of the Department of Public Safety in litigating this issue were thus adequately represented. We therefore conclude that all the requirements for collateral estoppel have been met, and the state is therefore barred from relitigating the suppression issue.

Id.

The Ohio Supreme Court was even more direct in finding identity between the state and its bureau of motor vehicles, stating:

The state argues essentially that privity does not exist between the parties because it is the [Registrar of Motor Vehicles] whose interest is represented at the [administrative driver’s license suspension] appeal and it is the state whose interest is represented at the criminal proceeding. We find this argument to be unpersuasive. The state acts through its various agencies and entities, and the Bureau of Motor Vehicles is an agency of the state. We conclude that the state of Ohio is the real party in interest in both proceedings and the requirement of privity as an element of issue preclusion is satisfied.

State v. Williams, 76 Ohio St.3d 290, 667 N.E.2d 932, 936 (1996).

The fact that one proceeding is civil in nature and the other is criminal in nature does not alter the identity of the state as a party to each. In Travelers Insurance Co. v. Thompson, we said:

We agree with appellants that the judgment of conviction in the criminal case is conclusive as to the result of the civil action before us to determine respondent’s rights to the proceeds of the insurance policies on the life of his deceased wife. We are constrained to the view that to permit a retrial of the facts and issues [in a civil proceeding that were] already determined in the criminal proceeding would be an imposition on the courts and only tend to embarrass or bring into disrepute the judicial process.

281 Minn. 547, 555, 163 N.W.2d 289, 294 (1968).

Of course, the application of collateral estoppel between criminal and civil cases may run afoul of another element, the need that the issues be identical. See Willems, 333 N.W.2d at 621. A finding of fact against the driver in a civil case, to a fair preponderance of the evidence, would not be identical to the issue in the criminal case, where the same fact must be proven beyond a reasonable doubt. And conversely, the findings of fact inherent in a not-guilty verdict in a criminal case would not be the identical issue when the same facts are presented in a civil case, where they need only be proven by a fair preponderance of the evidence. But, as the majority agrees, those differences in burden of proof are not implicated here because the fact question decided in the implied consent hearing — that the deputy had no particularized basis to stop Lemmer — is precisely the same fact issue that is presented (and is to be determined under the same standard of proof) in the DWI proceeding.

The majority relies on State, Dep’t of Pub. Safety v. House for the conclusion that the state and the commissioner are not identical parties. 291 Minn. 424, 192 N.W.2d 93 (1971). That reliance is misplaced because House focused not on the parties but on the attorneys — a fact that is wholly irrelevant for collateral estoppel purposes. Although House arose from an implied consent proceeding, and involved *668the impact on that proceeding of actions taken in the DWI prosecution, it did not involve a prior judgment of the court in either proceeding and thus did not present any collateral estoppel issue. Instead, it only involved the scope of the authority of the attorney in the DWI proceeding to negotiate a plea that included the dismissal of the implied consent proceeding. Id. at 424-25, 192 N.W.2d at 94. We focused on the statutes that authorize the county attorneys to represent the state in DWI proceedings and the attorney general to represent the commissioner in implied consent proceedings, holding narrowly: “We accordingly hold that the county attorney acted beyond his authority in attempting to bargain for dismissal of these proceedings, the responsibility for which is vested in the commissioner of public safety.” Id. at 426,192 N.W.2d at 95.

The Alaska Supreme Court, when it applied collateral estoppel in a license revocation proceeding to the judgment of the court in a DWI proceeding, distinguished the circumstances of its case from those similar to those presented in House:

The instant case is distinguishable from situations where the differing interests of the prosecutor and the administrative agency might justify a refusal to apply collateral estoppel. For example, this is unlike a case in which the defendant is seeking estoppel effect from a prosecutor’s dismissal of charges or stipulation of facts. There the prosecutor’s decision to dismiss or to stipulate might reflect interests not shared by the administrative agency and thus should not be used against the agency, which was not entitled to appear at the erimi-nal proceeding. Likewise, this is not a case where the defendant attempts to use a criminal acquittal for estoppel effect at the administrative proceeding. There the differing burdens of proof would justify refusal to give collateral estoppel effect.

Briggs, 732 P.2d at 1083 n. 9 (emphasis added).

Because it was unnecessary in House to decide whether the parties were identical, any statements we made about the relationship between the parties was necessarily dicta. And, perhaps because that was not the focus of the case, our statements about the parties were actually contradictory. We did make the broad statement, relied on by the majority, that “the parties to the proceedings are not the same,” but we later contradicted that statement when we equated the state with the commissioner, stating “[n]o authority is given for the county attorney to deal with civil cases [i.e., implied consent proceedings] in which the state, rather than the county, is a party.” House, 291 Minn, at 425, 192 N.W.2d at 95 (emphasis added). Accordingly, House is of no guidance in this case.

Moreover, the question of whether the state and the commissioner are the same party should not depend on who their attorneys are.3 The state, like any other party, is free to select its attorney. The state has selected its attorneys by enacting statutes that designate the attorney general’s office to be the primary attorney in implied consent proceedings and the county attorney to be the primary attorney in DWI proceedings. See Minn.Stat. § 169A.53, subd. 3 (“The commissioner *669shall appear and be represented by the attorney general or through the prosecuting authority for the jurisdiction involved.”); Minn.Stat. § 388.051, subd. 1(c) (2006) (stating the county attorney shall: “prosecute felonies, including the drawing of indictments found by the grand jury, and, to the extent prescribed by law, gross misdemeanors, misdemeanors, and petty misdemeanors.”). But those assignments are not made exclusive. Thus, the county attorney may request that the attorney general represent the state in DWI proceedings. See MinmStat. § 8.01 (2006). And the county attorney may act either as alternative counsel in the implied consent proceeding, see Minn.Stat. § 169A.53, subd. 3 (permitting representation by the “prosecuting authority for the jurisdiction involved”), or may be designated, on the attorney general’s request, to represent the commissioner in implied consent proceedings, see MinmStat. § 8.06 (2006) (“When requested by the attorney general, it shall be the duty of any county attorney of the state to appear within the county and act as attorney for any * * * officer in any court of such county.”).4

In other words, the selection of counsel is an internal matter for the state and should not alter the rights of third persons with whom the state litigates. Nothing in the statutes prevents the county attorneys and the attorney general from communicating with one another and coordinating common issues that can be expected to arise in these two proceedings. And nothing in the statutes prevents them from agreeing about how they will allocate the issues between them. To the contrary, the statutes actually encourage such cooperation and provide the mechanism for the attorney general and the county attorneys to be interchangeable. These mechanisms assure that the state has a full and fair opportunity to be heard in both the implied consent and the DWI proceeding. It has chosen which counsel it will primarily use in each proceeding, and it has authorized primary counsel to coordinate and even switch roles where appropriate.

Because the commissioner is merely a nominal party in implied consent proceedings, and the real party is the state, whose interests the commissioner represents, I would conclude that the parties in an implied consent proceeding and those in the parallel DWI proceeding are identical for collateral estoppel purposes.

2. Privity

Although I conclude that the state and the commissioner are identical parties, and thus the question of “privity” need not be addressed, I note that many of the courts that have addressed the issue of collateral estoppel in the context of the dual proceedings for license revocation and DWI prosecution have loosely used the word “privity” to explain their holdings. And, it should be emphasized, a majority of the supreme courts from other jurisdictions that have addressed the precise issue before us have held that the state agency that deals with license revocation and the state that prosecutes DWI offenses are either the same party or are in privity. See, e.g., State v. Summers, 351 N.C. 620, 528 S.E.2d 17, 21 (2000) (“However, there can be no question that the district attorney and the Attorney General both represent the interests of the people of North Carolina, regardless of whether it be the district attorney in a criminal trial court or *670the Attorney General in a civil or criminal appeal.”); Thompson v. State Dep’t of Licensing, 138 Wash.2d 783, 982 P.2d 601, 607 (1999) (holding that the state and the Department of Licensing were the “same parties” even though they were represented by different counsel); Briggs, 732 P.2d at 1082 (“Under the circumstances presented here, we hold that the Department of Public Safety and the state were in privity.”); cf Huelsman v. Kan. Dep’t of Revenue, 267 Kan. 456, 980 P.2d 1022, 1025 (1999) (holding that a city that prosecuted a DWI offense was not in privity with the state agency that was responsible for license revocation).

This majority rule in license revocation DWI proceedings represents an appropriate application of the general rule followed in the other contexts where different state agencies represent the state and are regarded as the same party or in privity. See, e.g., 18A Charles Alan Wright, et al., Federal Practice and Procedure § 4458, at 560 (2d ed. 2002) (“The general rule is that litigation by one agency is binding on other agencies of the same government, but exceptions may be warranted if there are important differences in the authority of the respective agencies.”). Again, the majority of jurisdictions have held that the state and a state agency are the same party or in privity in other contexts where there are parallel criminal or civil proceedings. See, e.g., People v. Watt, 115 Mich. App. 172, 320 N.W.2d 333, 336 (1982) (holding that the Oakland County Prosecutor and the Michigan Department of Social Services are both creatures of the same sovereign, so that the judgment in the administrative proceeding that the department failed to prove facts necessary to terminate benefits precluded proof of welfare fraud in the criminal proceeding); State v. Williams, 132 Wash.2d 248, 937 P.2d 1052, 1057 (1997) (holding that the Department of Social and Health Services, which had determined in a dependency proceeding that Williams had not intentionally received overpayments, was in privity with the county prosecutor of the welfare fraud crime because both “represent the State.”); State v. $11,316 in U.S. Currency, 111 P.2d 65, 68 (Wyo.1989) (holding that there was “sufficient identity of interest between [the state in prosecuting a criminal drug offense and an agency of the state in pursuing a forfeiture proceeding] to warrant the application of collateral estoppel”).

The cases cited in the majority opinion on the issue of privity are distinguishable for several reasons, partly because they did not arise in the license revocation/DWI context and partly because they involve the preclusive effect of administrative decisions, not of judgments of a court.

Thus, in State v. Miller, cited by the majority, the West Virginia Supreme Court of Appeals considered privity in the context of the impact of a state employee grievance proceeding on the criminal prosecution for the employee’s assault of a patient at a state operated facility. 194 W.Va. 3, 459 S.E.2d 114 (1995). The employee argued that the decision of an administrative law judge, that the state failed to prove that the employee abused the patient, should preclude the criminal prosecution under the doctrine of collateral estoppel. Id. at 119-20. The issue framed by the court was “whether collateral estop-pel operates to bar relitigation in a state criminal proceeding of issues previously decided by a state administrative agency.” Id. at 121 (emphasis added). The court did discuss privity, but only as an alternative ground to its holding, and based its privity decision on the inappropriate comparison of the role of the Department of Health and Human Services with the role of the prosecuting attorney in the criminal proceeding. Id. at 124-25. But the real *671basis for the decision was the recognized exception to collateral estoppel where there are “ ‘differences in the quality or extensiveness of the procedures followed in two courts.’” Id. at 121 (quoting Restatement (Second) of Judgments § 28(3) (1980)). The court concluded that the issues and procedures were not identical between the two proceedings, even though there were overlapping factual settings, because the procedures governing decisions of the grievance board were streamlined to provide a simple, expeditious process and were “much different than that employed at a criminal trial.” Id. at 123. The court concluded that the issues of whether an employee was terminated wrongfully for patient abuse was not the same issue as whether the employee committed a criminal act of battery. Id.

Similarly, in State v. Fritz, the Connecticut Supreme Court considered privity in the context of the impact of a decision by an administrative hearing officer, determining that a doctor’s medical license should not be terminated because the state did not prove that he made illegal prescriptions, on a criminal prosecution for making illegal prescriptions. 204 Conn. 156, 527 A.2d 1157 (1987), overruled on other grounds by State v. Crawford, 257 Conn. 769, 778 A.2d 947 (2001). The court concluded that the “department of consumer protection [that commenced the licensing proceeding] is not in privity with the division of criminal justice,” represented by the state’s attorneys. Id. at 1166, 778 A.2d 947. The court observed that the “state’s interest in having guilt or innocence determined is not adequately served in an administrative proceeding.” Id. at 1167, 778 A.2d 947.

The circumstances of those cases are not comparable to the circumstances presented here because the probable cause determination in Lemmer’s implied consent proceeding was made de novo by a judge, not an administrative officer; the issue to be precluded is a narrow one, the admissibility of certain evidence and not the ultimate issue of guilt or innocence; and the standards and procedures under which that issue was determined in the implied consent proceeding are the same as those that would be applicable in the criminal proceeding — both require the state to prove by a fair preponderance of the evidence that the officer had a particularized and objective basis for stopping Lemmer’s boat, see State v. Needham, 488 N.W.2d 294, 297 (Minn.1992) (confirming that the state’s burden of proof at a motion to suppress evidence in a criminal proceeding is by a fair preponderance); State, Dep’t of Highways v. Halvorson, 288 Minn. 424, 431, 181 N.W.2d 473, 477 (Minn.1970) (holding that the state’s burden of proof in a license revocation proceeding was by a fair preponderance of the evidence).

Accordingly, even if I were to analyze this case under the concept of privity, I would follow the overwhelming weight of authority that concludes, in circumstances comparable to those presented here, that the state is in privity with a state agency that represents the state in license revocation proceedings.

C. Full and Fair Opportunity to be Heard

The majority independently reviews the question of whether the estopped person had a full and fair opportunity to be heard. But the majority focuses that question on the wrong proceeding. The majority asks whether the state, as a party to the DWI proceeding and represented by the county attorney, had the opportunity to participate in the implied consent proceeding. Of course, if the state and the commissioner are the same party, as discussed above, the state’s opportunity to participate in the *672implied consent proceeding would be measured by the scope of the commissioner’s opportunity, which appears to have been full and complete. The same result would follow if the state and the commissioner are in privity because the commissioner will be deemed to have fully represented the interests of the state in the implied consent proceeding.

Thus, the only meaningful analysis of the opportunity to be heard is one that focuses on the scope of the commissioner’s opportunity. This factor would preclude the application of collateral estoppel only where the quality and extensiveness of the prior proceeding is so deficient that it did not provide a true opportunity to be heard. Suffice it to say that in Minnesota, the standards and procedures applicable to implied consent cases are of the same quality and extensiveness as those available in a motion to suppress evidence obtained during the stop in a DWI proceeding.

D. Public Policy; Comity

Perhaps the most difficult issue is whether we should refrain from the application of collateral estoppel, for reasons of public policy or out of comity to the legislature. The state argues that the application of collateral estoppel here would be contrary to sound public policy.

Although the ultimate purposes of each proceeding may differ, the question is whether they are so different that the parties are not likely to take the implied consent proceeding as seriously as the DWI proceeding. On that issue, I agree with the observation by the court of appeals in State v. Victorsen that any differences have blurred considerably over time. 627 N.W.2d 655, 661-62 (Minn.App.2001), superseded by statute, Minn.Stat. § 169A.53, subd. 3(g). The court of appeals stated:

Penalty enhancements are now available to criminal prosecutors by virtue-of license revocations pursuant to the implied consent statute. See, e.g., Minn. Stat. §§ 169A.25, 169A.26 (elevating severity of DWI offenses to a gross misdemeanor if the offender had a prior license revocation within the past ten years), 169A.275 (increasing the mandatory penalties for each prior license revocation within a ten-year period), 169A.28 (providing for mandatory consecutive sentences if the person has pri- or license revocations), 169A.31 (2000) (elevating severity of alcohol-related bus driving offenses to a gross misdemeanor if the offender had a prior license revocation within the past ten years). Therefore, when defending a license revocation, the actions of the Commissioner of Public Safety now affect the potential criminal penalties available to the state. Similarly, prior impaired driving convictions serve the commissioner’s interests by lengthening the duration of administrative license revocations. See, e.g., Minn.Stat. §§ 169A.52, subd. 4, 169A.54, subd. 1 (2000) (increasing duration of administrative license revocations with prior license revocation). The relationship between these parties is symbiotic, and the differences in their interests, as articulated in [State v. Juarez, 345 N.W.2d 801 (Minn.App.1984)] have become a fictional construct.
Moreover, the effect of Juarez has been the institutionalization of a process whereby duplicative proceedings are frequent with inconsistent outcomes a distinct possibility. Drivers may challenge the legality of traffic stops at both implied consent hearings and at pretrial hearings in criminal matters. These parallel proceedings involve the same substantive law, elements of proof, standard of proof, burden of proof, and, often, the same evidence as well. This *673unnecessary duplication of hearings is contrary to the rules of criminal procedure, which are intended to provide for the “just, speedy determination of criminal proceedings.” Minn. R.Crim. P. 1.02. Furthermore, does not justice presume the consistent application of the law? The potential for inconsistency, realized in this case, is among the most objectionable results of the present system. Multiple hearings on the same record and for the determination of the same question unnecessarily burden the parties and provide no justifiable benefit.

Id. (footnote omitted).

Since Victorsen, the implied consent and DWI provisions have become even more integrated. Because the loss of license is a “qualified prior impaired driving incident,” Minn.Stat. § 169A.03, subd. 22 (2006), an implied consent proceeding may provide the basis to increase a future driving while impaired offense to first-degree, which is a felony, see Minn.Stat. § 169A.24, subds. 1 and 2 (2006).5 The loss of license may also elevate the penalty for lesser degrees of driving while impaired offenses, see Minn.Stat. §§ 169A.25-169A.27 (2006); increase mandatory penalty provisions, see Minn. Stat. §§ 169A.275-169A.276 (2006);6 and trigger mandatory consecutive sentencing provisions, see Minn.Stat. § 169A.28 (2006).7 Because the stakes have been increased significantly for both a license revocation and a DWI conviction, there is no reasonable likelihood that the state or the driver will treat an implied consent proceeding less seriously than a DWI prosecution.

When we compare the implied consent hearing with a suppression hearing in the DWI proceeding, the differences become even less. The legal standard is the same; the underlying fact issues are the same; the burden of proof is the same; each will be heard de novo by a district judge; and the statute authorizes the two to be heard by the same judge at the same time, Minn. Stat. § 169A.53, subd. 3. Because the suppression hearing would be focused, as in this case, on the legality of the stop, the issues are relatively simple. Thus, it is difficult to see how the state would be prejudiced by being required to conduct them together, or to coordinate their roles.

One treatise has suggested this very solution:

It had long been the rule that an order suppressing evidence in an implied consent case did not collaterally estop the prosecutor from relitigating the issue in a later impaired driving criminal prosecution. But this rule has been modified so that the earlier ruling will be collateral estoppel if the prosecutor had notice of and an opportunity to participate in the initial suppression hearing. The previous rule made for an unfortunate duplication of effort in certain cases, where the identical issues are presented in both proceedings. It also cre*674ates the possibility of directly conflicting orders by two judges in the same court. Except where constitutional considerations may dictate different approaches, it would obviously be more efficient to require only one hearing and decision on these questions. The courts, having authority to regulate procedural matters, could establish such a procedure. The collateral estoppel doctrine may be avoided by having both state agencies participate in the hearing, or waive their appearances.

9A Henry W. McCarr & Jack S. Nordby, Minnesota Practice — Criminal Law and Procedure § 56.33 (3d ed.2001) (footnotes omitted).

It is true that section 169A.53, subd. 3(b), limits the scope of an implied consent hearing. The limitation of that statute might prevent collateral estoppel if the issue that was to be determined in the DWI proceeding was not one that was within the scope of review in the implied consent hearing, but that is not the ease here. The issue is identical. The scope of the hearing permitted in the implied consent proceeding specifically includes “Did the peace officer have probable cause to believe the person was driving, operating, or in physical contact of a motor vehicle * * * in violation of section 169A.20 (driving while impaired)?” Minn.Stat. § 169A.53, subd. 3(b)(1). This is the precise issue presented by the motion to suppress in the DWI proceeding. Thus, although the narrower scope of hearing in implied consent proceedings might mean that the issues determined there will not always be identical to the issues presented in the DWI proceeding, the issue is identical here.

Similarly, any argument that the implied consent proceeding does not offer the procedural safeguards available to the driver in a DWI proceeding is irrelevant where the driver prevailed on the issue with fewer procedural safeguards in the implied consent proceeding. The state can hardly complain that Lemmer should have to try the legality of the stop over again because Lemmer could have even greater procedural protections in the second trial. This argument would only have merit if the party to be estopped (here, the state) had fewer procedural safeguards in the implied consent proceeding.

Because the public policy considerations that underlie the collateral estoppel doctrine are fundamental to the judicial function, and the detriment to the state of being faced with collateral estoppel is only a matter of inconvenience, not of fundamental right, I would not defer to the legislature as a matter of comity. I would hold that Minn.Stat. § 169A.53, subd. 3(g), is unconstitutional and that the judgment in the implied consent proceeding operates as collateral estoppel in the DWI proceeding to establish that the stop of Lemmer was unlawful and that the evidence obtained by that stop must be suppressed.

. See, e.g., Astoria Federal Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 107-08, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991):

Such repose is justified on the sound and obvious principle of judicial policy that a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise. To hold otherwise would, as a general matter, impose unjustifiably upon those who have already shouldered their burdens, and drain the resources of an adjudicatory system with disputes resisting resolution.

See also Travelers Insurance Co. v. Thompson, 281 Minn. 547, 555, 163 N.W.2d 289, 294 (1968):

An impressive number of courts have followed the same rule, largely prompted by a public policy to discourage the use of courts in proceedings which, as the Virginia and New York courts have said, "would discredit the administration of justice, defy public policy and shock the most unenlightened conscience" and permit a possible result which would "encourage and give support to current thoughtless and carping criticism of legal procedure, and to justify the gibe that the administration of the law is the only remaining legalized lottery.”

(Citations omitted).

. After the date of the incident that gives rise to this case, Minn.Stat. § 169A.53, subd. 3, was amended. See Act of June 1, 2006, ch. 260, art. 2, § 12, 2006 Minn. Laws 707, 738-40. Because the amendments are minor and do not affect the outcome of the case, all citations are to the current version of Minn. Stat. § 169A.53.

. Some of the cases from other jurisdictions cited by the majority are not persuasive on the issue of collateral estoppel because they focus not on the parties to the two proceedings, but on their attorneys. See, e.g., State v. Fritz, 204 Conn. 156, 527 A.2d 1157, 1166-67 (1987) overruled on other grounds by State v. Crawford, 257 Conn. 769, 778 A.2d 947 (2001); Reynolds v. State, 4 S.W.3d 13, 17 (Tex.Crim.App.1999); State v. Miller, 194 W.Va. 3, 459 S.E.2d 114, 124 (1995).

. Of course, a county is a subdivision of the state. Minn.Stat. § 2.01 (2006); County of Freeborn v. Bryson, 309 Minn. 178, 188, 243 N.W.2d 316, 321 (1976) (stating that as a political subdivision of the state, a county has the duty to see that legislative policy is carried out).

. Minn.Stat. § 169A.24, subd. 1, was amended in 2006. See Act of June 1, 2006, ch. 260, art. 2, § 3, 2006 Minn. Laws 707, 734.

. Minn.Stat. § 169A.275, subd. 1, was amended in 2005, effective after the date of the events that give rise to this case. See Act of June 2, 2005, ch. 136, art. 18, § 2, 2005 Minn. Laws 901; 1156-57. Minn.Stat. § 169A.275, was also amended in 2007. See Act of May 7, 2007, ch. 54, art. 3, § 1, 2007 Minn. Laws-, -. Because the changes do not alter our reasoning, the 2006 version is cited for simplicity.

.Minn.Stat. § 169A.28, subd. 1, was amended subsequent to the events that give rise to this case. See Act of June 1, 2006, ch. 260, art. 2, § 4, 2006 Minn. Laws 707, 734-35. Because the changes do not alter our reasoning, the current version of the statute is cited