Op. Atty. Gen 624c-4 ( 2019 )

PUBLIC UTILITIES: ELECTRICITY – LIGHT & POWER: DELINQUENT BILLS:
Municipal utilities must use reasonable methods to compel payment for services and utility
service may not be disconnected other than for good cause. Op. Atty. Gen. 624c-4 (Nov. 2,
1938) superseded.
624c-4
(cr.ref. 624d-5)
John T. Shockley
May 16, 2019
Page 2
Courts in other states have discussed the methods municipal utilities may or may not use
to enforce the collection of fees or utility charges. As you noted in your letter, the South Dakota
Supreme Court held that a city wrongfully disconnected electrical and telephone service for
nonpayment of garbage collection fees because garbage collection was a collateral matter. See
Owens v. City ofBeresjord, 201 N.W.2d 890, 893 (S.D. 1972). Similarly, the Nebraska Supreme
Court held that a city could not attempt to force collection of garbage fees by disconnecting
water service. See Garner v. City ofAurora, 30 N.W.2d 917, 921 (Neb. 1948). On the other
hand, the California Supreme Court held that, where a city used a single bill for municipal
services (water, sewer, and garbage collection), the city did not violate due process by
terminating all municipal services for failure to pay the garbage collection portion of the joint
bill. See Perez v. City of San Bruno, 616 P.2d 1287, 1296-97 (Cal. 1980). The court cautioned,
however, that "when a statutory or legislative scheme utilizes a means to reach its end and which
is unduly harsh or exacts a penalty which may be deemed oppressive in light of the legitimate
objections sought to be achieved, it may be held to be violative of constitutional due process
guarantees." Id. at 1297.
A Minnesota Attorney General opinion from 1938 opined that a village providing water,
heat, and electricity, all billed on one statement, may adopt a regulation allowing for
discontinuance of any and all services for delinquency of one service. Op. Atty. Gen. 624c-4
(Nov. 2, 1938). While Attorney General opinions are given careful consideration, they are not
binding. Village of Blaine v. lndep. Sch. Dist. No. 12, Anoka Cty., 138 N.W.2d 32, 39 (Minn.
1965). Given the substantial development of the law since 1938, regarding consumer protection,
entitlements to provision of gas, electric, and water service, and the reasonableness of
terminating services for nonpayment, this Office is not confident that the 1938 opinion remains
an accurate legal analysis and expressly overrules it.
Ultimately, whether enforcement of a city ordinance that allows for disconnection of a
utility service based upon nonpayment of another service is unreasonable turns on specific
questions of fact and the construction of any local ordinance or resolution implementing the
enforcement method. The Attorney General does not render opinions that require making such
factual determinations or construing the meaning of terms in local ordinances or resolutions. See
Op. Atty. Gen. 629a (May 9, 1975). You did not supply a specific ordinance, rule, or regulation
John T. Shockley
May 16, 2019
Page 3
implementing the enforcement method you discussed in your request. Given the breadth of the
municipal services established in your inquiry, however, we do not believe that the law allows a
municipality to disconnect utility service for nonpayment of the varied and unrelated municipal
services stated in your letter.
Sincerely,
KEITH ELLISON
Attorney General
1'�4£t>'
KATHERINE HINDERLIE
Assistant Attorney General
(651) 757-1468 (Voice)
(651) 297-1235 (Fax)
Enclosure: Op. Atty. Gen. 629a (May 9, 1975)
Op. Atty. Gen. 624c-4 (Nov. 2, 1938)
114479693-vl
MINNESOTA LEGAL REGISTER
MAY, 1975 Vol. 8, No. 5 Page 22
Opinion, of the Attorney General IN THIS ISSUB
Hon. WARREN SPANNAUS 11■.,Jeet O•• lfe,
ATTORNEY GENERAL: Opinions Of,
629-a 5/9/76
ATTORNEY GENERAL: OPINIONS OF: Proper subjects
for opinions of Attorney General discussed, COUNTY: Pollution Control: Solid Waste,
125a-68 5/21/76
Thomas M. Sweeney, Esq. May 9, 1975
Blaine City Attorney 629-a
2200 American National Bank Building (Cr. Ref. 13)
St. Paul, Minnesota 55101
In your letter to Attorney General Warren Spannaus, In construing a charter provision, the rules of statutory
you state substantially the following construction are generally applicable. See 2 McQuillin,
FACTS Municipal Corporations § 9.22 (3rd ed. 1966). The declared
At the general election in November 1974 a proposal to object of statutory construction ls to- ascertain and effec­
amend the city charter of Blaine was submitted to the tuate the intention of the legislature. Minn. Stat. § 645.16
city's voters and was approved. The amendment provides (1974). When the words of a statute are not explicit, the
for the division of the city into three election districts and legislature's intent may be ascertained by considering,
for the election of two council members from each district. among other things, the occasion and necessity for the law,
It also provides that the population of each district shall the circumstances under which it was enacted, the mischief
not be more than 5 percent over or under the average popu­ to be remedied, and the object to be attained. Id.
lation per di-strict, which is calculated by dividing the total Thus, an interpretation of a charter provision such as
city population by three. The amendment also states that that referred to in the facts would require an examination
if there is a population difference from district to di-strict of a number of factors, many of which are of a peculiarly
of more than 5 percent of the average population, the char­ local nature. Local officials rather than state officials are
ter commission must submit a redistricting proposal to the thus in the mo·st advantageous position to recognize and
city council. evaluate the factors which have to be considered in con­
The Blaine Charter Commission in its preparation aqd struing such a provision. For these reasons, the city attor­
drafting of this amendment intended that the difference in ney is the appropriate official to analyze questions of the
population between election districts would not be more type presented and provide his or her opinion to the
than 5 percent over or under the average population for municipal council or other municipal agency. The same is
a district. Therefore, the maximum allowable difference in true with respect to questions concerning the meaning of
population between election districts could be as great as other local legal provisions such as ordinances and resolu­
10 percent of the average population, tions. Similar considerations dictate that provisions of
federal law generally be construed by the appropriate
You then ask substantially the following federal authority.
QUESTION For purposes of summarizing the rules discussed in
Docs the Blaine City Charter, as amended, permit a this and prior opinions, we note that rulings of the Attorney
maximum population difference between election districts General do not ordinarily undertake to:
of 10 percent of the average population per district? (1) Determine the constitutionality of state statutes since
OPINION this office may deem it appropriate to intervene and de­
The answer to this question depends entirely upon a fend challenges to the constitutionality of statutes. See
construction of the Blaine City Charter. No question is Minn. Stat. § 555.11 (1974); Minn. R. Civ. App. P. 144;
presented concerning the authority to adopt this provision Minn. Dist Ct. (Civ.l R 24.04; Op. Atty. Gen. 733G, July
or involving the application or interpretation of ·state sta­ 23, 1945.
tutory provisions. Moreover, it does not appear that the (2) Make factual determinations since this office is not
provision is commonly found in municipal charters so as equipped to investigate and evaluate questions of fact.
to be of significance to home rule charter cities generally. See, e.g., Ops. Atty. Gen. 63a-11, May 10, 1955 and 121a-6,
See Minn. Stat. § 8.07 (1974), providing for the issuance of April 12, 1948.
opinions on questions of "public importance."* (3) Interpret the meaning of terms in contracts and other
agreements since the terms are generally adopted for
• Minn. Stat. § 8.07 (1974) lists those officials to whom the purpose of preserving the intent of the parties and
opinions may be issued. That section provides as follows: construing their meaning often involves factual determin­
The attorney general on application shall give bis opin­ ations as to such intent. See. Op. Atty. Gen. 629-a, July
ion, in writing, to county, city, town attorneys, or the 25, 1973.
attorneys for the board of a school district or unorgani­
zed territory on questions of public importance; and on (4) Decide questions which are likely to arise in litiga­
application of the commissioner of education be shall tion which is underway or is imminent, since our opin­
give his opinion, in writing, upon any question arising ions are advisory and we must defer to the judiciary in
under the laws relating to public schools. On all school
matters such opinion shall be decisive until the question
involved be decided otherwise by a court of competent islature and legislative committees and commissions and
jurisdiction. to state officials and agencies) and 270.09 (regarding opin­
See also Minn. Stat, §§ 8,06 (regarding opinions to the leg- ions to the Commissioner of Revenue).
23 MAY, 1985
MINNESOTA LEGAL REGISTER
Published monthly and containing all Opinions
of the Minnesota Attorney General
Pnbll�bed by The Progrees-Regieter
200 Upper Midwest Bldg., Mlnne11,polls, Mn. 66401
Sold only In combination with The Progress­
Register (weekly) at $15.00 per year In Min­
nesota.. Out-of-state $16.00 per y{'a.r. Payable
In advance. Binder and Index aervlce Included,
Second-cla.aa poatn.ge paid at Minneapolis, Mn.
such cases. See Ops. Atty. Gen. 519M, Oct. 18, 1956, and
196n, March 30, 1951.
(5) Decide hypothetical or moot questions. See Op. Atty.
Gen. 519M, May 8, 1951.
(6) Make a general review of a local ordinance, regula­
tion, resolution or contract to determine the validity
thereof or to ascertain possible legal problems, since
the task of making such a review is, of course, the re­
sponsibility of local officials. See Op. Atty. Gen. 477b-14,
Oct. 9, 1973.
(7) Construe provisions of federal law. See textual dis· •
cussion supra.
(8) Construe the meaning of terms in city charters and
local ordinances and resolutions. See textual discussion
supra.
We trust that the foregoing general statement on the
nature of opinions will prove to be informative and of
guidance to those requesting opinions.
WARREN SPANNAUS, Attorney General
Thomas G. Mattson, Assist. Atty. Gen.
INDEX: Villages •- Water and light depa.rtment - services ..._
Disoontinuance o� service for failure to pay tor same.
Kr. He.l:l.man. Sokoohat
Tillage Attorney
Ool.eraine, H.innosota
Dar 31r:
Thia will acknowledge reeeipt ot yov le�ter to
· , ,r_ A'l.torney General. ··,1111&& s. 1�2:..,in wb.eroin 7ou ato.t.e u4
'')
.,�
\ laqulre:
\
,: •sltlUl.ticll: 'l'lle Tillage wnter, 11.&ht, •'••
.)
• s�eioa me11• the 'three tollowl....rT1eeMa
(1) .. ter, {I) heat, a.ad (S) •l.atri•l'T• TM
$11:Ne 11- are billed on oa.e e\a�a,, alt •"CJl
:r ��
1,
,- ,-.
:e4 aepuatelJ'.
'Q kla n.ur aad
Coanaer, 1n oar .... ,
elaieU'i.el,7 1Ja 1"11l.l. lea.Y-
,, '-.S) 111& tu hM.\ •.u.ra•• unpa.14.
alea tlNoall.JIM •1 '-lier ot t.11• eta•
(Witter or:.eleolr101,7) �ou ado»,1oa et no.ti a
••"ri. •••
a.a \he • 1 la-
----.j �- r11l.lag u 1- •� ,he �ea\ 1� not pa1�t"
Jdaa. SYS, ou- S.,reae Oou-\ llel4 \.t:.st; a -.miolpall'7 •7
a6Dp, reaaoD&llle rul,■ u• r-s'!!l.a\lou lo ea.tore• _p�t
et •M%'�•• ror •�•� aenl••� r..Acred ,� •ODaWrs 7 t..11•
..aieipal.l\7.
Ille AN or POW8ll Ye City or Dlll•'-ll• 91 JliJul. N, ,..
o-liga,10 oa, par, of lh ooa ....r a n••1Ye &Jltl par
ror atak ••rTl••• re•�• lll)Oll oon,rae1i a.JUI. it tile -'-aof. ot
enrore.....� ot P•JJ18•t f'•r n er::;.op�•4 by tu ...,.1•1•
pa11,7 1• reaaopllle ud. no" proh11t1�ry he eoanaar nit•
JNt■ alaa•ll '-o \ho nil.es alld. regal.atioaa o� ,he auaielpal.lt7
pertailliq to aueh JU'thol ot pay:aea1..
Ua4•r '.b.• ru1• laid down 'by our Supr... Oour\ 1D
\Alt abo•• reterre4 1lo eaaea 1 we are ot the oplDloa i1:1at
■a14 water and 118.b.t oc:aa1aa1on -T adopt a regul ,1on
prondlag that wh&DeY•l" &llJ of t;lle obarpa tor ••rd....
t.rniehe4 by the water an4 llgh\ 4epar'-ta, of-.. Yillap
NOCNM telhqueat an7 or all 01 ��oh aenl••• -1 N la­
eon•laae4 uatU •11 oon■umar p 7■ auoh 4•11nqueat �ill••
You alao 1aq_u1r• a
•;.rou:!.4 it make MJ' 41tterttno• if, wbaa l•••
the.a�• ,o,a1. 4ue oa t.ll• •--1••1 ••
ett.. te11•nt 1• pa:l4• it the r elp' wre aarlce4
'pe.Jllll.e•t OD ••ooUAt' Ulllt •• or ,...,_., 1a
t\111 for water an4 eleotr1el\J ,o____,,�
It tlae oomaiea1onll\op,a a re \tl t1iln prn14� t 'i
.... t.bli onarge tor any or the •-nioe■ tlll"niahed ,. • OOD•
et � •....-le•• aa7 b• 41aaont 111ae4 uatil th• •oar&•• �-=•tu
m ,-ta.· ,.. lt•lleT11 t.bat '-• oo-s•�iga• • riebt �a ,1..,
I'■ wou.14 DO'C 'be
Yours Yery trul.J
WILLIAM n. ;�IN
A•tor••� Genaral
B7
»WIQHS.' N. lOHNSOK
$peoial .:.aaiatail't .·� t\orAeJ Oen•ral.