Can a Minnesota city disconnect one utility service when another municipal service bill goes unpaid?

Plain-English summary

The Minnesota Attorney General overruled a 1938 opinion that had allowed a village billing water, heat, and electricity together to discontinue any or all of those services when one charge was unpaid. The 2019 opinion says that, in light of later developments concerning consumer protection and utility service, the office was "not confident that the 1938 opinion remains an accurate legal analysis and expressly overrules it."

The 2019 opinion does not decide whether every cross-service cutoff is lawful or unlawful. Its rule is that reasonableness "turns on specific questions of fact and the construction of any local ordinance or resolution implementing the enforcement method." The requester supplied no particular ordinance. Even so, the AG concluded that the law did not allow a municipality to disconnect utility service for nonpayment of "the varied and unrelated municipal services stated in your letter." Read the official opinion.

What this means for you

Municipal officials and utility managers. The 1938 opinion no longer supplies authority for a cross-service cutoff. The 2019 opinion requires attention to the particular services, facts, and local ordinance or resolution. It does not construe an ordinance the requester did not provide.

Customers. The AG rejected a cutoff for the varied, unrelated services described in the requester's letter. The opinion does not resolve every combined-bill dispute; its conclusion is tied to that inquiry.

Common questions

Does one combined bill let a city disconnect a different service when a charge goes unpaid?

The 1938 opinion said that a village billing water, heat, and electricity together could adopt such a rule. The AG expressly overruled that opinion in 2019. Whether another ordinance's enforcement method is unreasonable depends on its facts and terms.

Did the AG ban every cutoff for an unpaid, unrelated municipal service?

No categorical ban appears in the opinion. The AG concluded that disconnection was unavailable for the "varied and unrelated municipal services stated in your letter," while declining to make factual findings or interpret an ordinance that was not supplied.

Why does the opinion discuss garbage collection bills?

It contrasts decisions from three other states: South Dakota and Nebraska rejected utility cutoffs to collect garbage fees, while California upheld terminating services for an unpaid garbage portion of a joint bill in the circumstances there. The AG quoted the California court's warning about an "unduly harsh" or "oppressive" method.

Background and statutory framework

The opinion's headnote says municipal utilities must use reasonable collection methods and utility service may be disconnected only for good cause. The opinion describes conflicting decisions from South Dakota, Nebraska, and California before overruling its own 1938 opinion. It cites Village of Blaine for the point that AG opinions receive careful consideration but are not binding. The office says it does not make factual determinations or construe local ordinances in its opinions. Official PDF.

Citations

• Op. Atty. Gen. 624c-4 (Nov. 2, 1938), expressly overruled.
• Op. Atty. Gen. 629a (May 9, 1975).
• Owens v. City of Beresford, 201 N.W.2d 890, 893 (S.D. 1972).
• Garner v. City of Aurora, 30 N.W.2d 917, 921 (Neb. 1948).
• Perez v. City of San Bruno, 616 P.2d 1287, 1296-97 (Cal. 1980).
• Village of Blaine v. Indep. Sch. Dist. No. 12, Anoka Cty., 138 N.W.2d 32, 39 (Minn. 1965).

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/office/opinions/624c4-20190516.pdf

Original opinion text

The official PDF on the AG's website begins at internal page 2 of the opinion; the first page of the AG's analysis was not present in the retrieved file. The reasoning and disposition reproduced here are taken from the available pages.

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 of Beresford, 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 of Aurora, 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. Indep. 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).

John T. Shockley
May 16, 2019
Page 3

You did not supply a specific ordinance, rule, or regulation 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

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)