Bahr v. City of Litchfield

WOZNIAK, Judge

(dissenting).

I respectfully dissent.

Personal service is not always necessary to satisfy the due notice requirement of Minn.Stat. § 606.01. Where a statute prescribes a method of service, such method must be pursued. Damon v. Town Board of Town of Baldwin, 101 Minn. 414, 415, 112 N.W. 536, 536 (1907). The statute here, however, is silent regarding a method of service. Moreover, the case law does not specifically require personal service. Both In re Judicial Ditch No. 2, 163 Minn. 383, 202 N.W. 52 (1925), and State ex rel. Kruse v. Webster, 231 Minn. 309, 43 N.W.2d 116 (1950), emphasize the importance that written notice plays in triggering the 60-day statutory limit, but do not mandate personal service.

Under the unique facts of this case, appellants received due notice when the written notice of the promotions was posted on the police bulletin board. The notice was directed to “Litchfield Police Officers” and sufficiently informed appellants of the results of the examination. In this respect, this case is unlike Kruse where no written information was sent or furnished to any applicant. Id. at 311, 43 N.W.2d at 118.

At the time of the promotions, the police force consisted of eight officers, five of whom competed in the examination. The notice informed the officers of the Schrums’ promotions to the sergeant positions, such promotions naturally adversely affecting those officers not selected. If appellants wanted to challenge the promotions, they needed to bring a petition for a writ of certiorari within 60 days of the posting on August 26, 1983. They did not, and their petition should now be barred.

Furthermore, I believe the trial court was justified in holding that appellants’ petition is barred by laches. In Kruse, the proceedings which petitioner sought to be reviewed were nearly identical to those here. There, the supreme court discussed petitioner’s delay in bringing his action and the alleged prejudice resulting from the delay. Id., 231 Minn. at 314-15, 43 N.W.2d at 120. Although the court rejected the arguments, that the court addressed them *385indicates that laches is a viable defense where a police commission’s selection process is being challenged.

Here, appellants waited 18 months before bringing their initial petition for mandamus. After the trial court advised them that certiorari was the proper avenue for review, appellants waited an additional four months before serving their petition on respondents, and they waited another four months before filing it in district court. Their delay is unreasonable and unaccountable, and they should not now be permitted to proceed at the expense of the Schrums, who have held their positions for almost four years and who have had to defend against this action.