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06/17/2005 14:54 LR~I OFFICE 2140 4TH RUE -> 427554:~ NU.5¥4 L~b <br />Steve,n M. Th. ul, Appellant, vs. State of Mirmesota, Respondc.nt. C9-02-1365, Court of Appeals Published... Page 4 of 9 <br />1. Does the orclinanee violate the Equal Protection Clause of the Fourteenth Amendment? <br /> <br /> 2. Does the ordinance violate the Due Process Clause of the Fourteenth Amendment because it is <br />~ons~imrionally void for vagueness? <br /> <br /> 3. Does federal law preempt the ordinance? <br /> ANALYSIS <br /> <br /> Because this court dismissed appellant's direct appeal pursuant to appellant's request to pursue <br />postconviction retief, we apply the standard of review that we would have normally applied on the direct <br />appeal, even though this is an appeal, cfa posteonviotion proceeding. See Santiago v. State, 644 N.W.2d 425, <br />439 (Minn. 2002). Thus, we review appellant's challenges under a do novo standard of review because they <br />involve questions of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utile. Corem'n, 358 N.W.2d 639, 642 <br />(Minn. 1984). <br /> <br /> 1. Discriminatory Enforcement <br /> <br /> Appellant argues that the ordinance violates the Equal. Protection Clause of the Fourteenth Amendment <br />because it was enforced in a discriminatory manner and does not address a legitimate government purpose. <br />We disagree. <br /> <br /> "The constitutionality of an ordinance is a question of law which, this court reviews de novo." Hard <br />Times card, Inc. v. City of Minneapotis~. 625 N.W.2d 165, 171 (Minn. App: 2001) (quotation omitted). The <br />Equal Protection Clause of tbs: Fourteenth Amendment to the United States Const'imfion prohibits intentional., <br />discriminatory enforcemen.t of nondiscriminatory laws. City of Minneapolis v. Buschette, 307 Miva~. 60, 64, <br />240 N.W.2d 500, 502 (1976) (citation omit'ted). Although criminal prosecutions are presumed to have been <br />undertaken in good faith .and in a nondiscriminatory manner, State v. Hyland, 431 N.W,2d 868, 872 (Minn. <br />App. 1988), the supreme court has held that a criminal defendant may raise the defense of discriminatory <br />enforcement of criminal laws by law-enforcement officials on all levels. Buschette, 307 Minn. at 66, 240 <br />N.W.2d a~ 503. <br /> <br /> To prove discriminatory enforcement, appellant must e~tablish, prima faei.e <br /> (1) that, while others similarly situated, have not generally been proceeded against <br /> because of conduct ofth~ type forming the basis of the ~harge against him, he has <br /> been singled out for prosecution, and. (2) that the government's discriminatory <br />http://www.lawlibr~.state.am.us/archJve/ctappub/O303/op021365-311 .htm 6/10/03 <br /> <br /> <br />