§ 484.87

State of Minnesota v. Don Antoine Jones · 2014 1 citation

Applying the plain meaning of “proceeding,” we conclude that the phrase “[a]ny proceeding under this section” does not refer to a criminal prosecution for an alleged violation of Minn. Stat. § 518B.01, *536 subd. 14. Section 518B.01, subdivision 14, creates a criminal offense. That is a substantive means of redressing a violation of an order for protection, not a procedural means of seeking redress of that offense from a tribunal or agency. The procedural means for seeking redress for a criminal offense, including a violation of an order for protection, is set forth in the Minnesota Rules of Criminal Procedure and several statutes, including Minn. Stat. § 484.87 (2012) (prescribing the pleading, practice, and procedure in criminal proceedings); Minn. Stat., §§ 628.01-.26 (2012) (prescribing the procedural requirements for a criminal indictment); Minn. Stat. §§ 630.12-.37 (2012) (prescribing pretrial procedures in a criminal case); and Minn. Stat. §§ 631.02-.21 (2012) (prescribing trial procedures in a criminal case). Section 518B.01 does not provide the procedural means to criminally prosecute a violation of an order for protection. Rather, section 518B.01, subdivision 4, provides a procedural means to seek an order for protection. By its terms, section 518B.01, subdivision 4, creates “an action known as a petition for an order for protection” and then sets forth the procedure that a private party may use to obtain an order for protection from a district court that has jurisdiction. Accordingly, the phrase “[a]ny proceeding under this section” as used in section 518B.01, subdivision 16, does not refer to a criminal prosecution for violating an order for protection. Rather, that phrase refers to an action to obtain an order for protection from a court that has jurisdiction. Because the phrase “[a]ny proceeding under this section” does not refer to a criminal prosecution for violating an order for protection, we reject the State’s contention that a criminal conviction and sentence for violation of an order for protection are “in addition to other ... criminal remedies” within the meaning of section 518B.01, subdivision 16.

State v. Lemmer · 2007 6 citations

IV. Because we have concluded that collateral estoppel is a procedural rule governed *659 by this court, we must now determine, as applied to the facts of this case, whether collateral estoppel prevents the litigation of an issue in a DWI prosecution that was previously litigated in an implied consent proceeding. Whether collateral estoppel precludes litigation of an issue is a mixed question of law and fact that is reviewed de novo. Hauschildt, 686 N.W.2d at 837. Collateral estoppel may be applied when: (1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue. 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)). We do not rigidly apply collateral estoppel, and we will not apply collateral estoppel if its application would work an injustice on the party to be estopped. See Hauschildt, 686 N.W.2d at 837; Johnson v. Consol. Freightways, Inc., 420 N.W.2d 608, 613-14 (Minn.1988). In applying collateral estoppel in this case, we will examine all four factors. A. Identity of Issues In this case neither party disputes that factor one, identity of issues, is met. At the implied consent proceeding the district court found that the deputy sheriff had no particularized basis to stop Lemmer. Because the stop was illegal, all of the evidence obtained from the stop, including the breath test that established that Lemmer was intoxicated, was suppressed as a fruit of that illegal seizure. In the DWI prosecution, the state may only prosecute Lemmer if it is able to introduce the evidence of his intoxication, which was obtained as a result of the wrongful stop, putting the legality of the stop at issue. Therefore, we conclude that the issue decided in the implied consent proceeding is identical to the one to be decided in the DWI prosecution. B. Final Judgment on Merits Factor two, that there was a final judgment on the merits, is also met. A judicial hearing was held under Minn. Stat. § 169A.53 to review the revocation of Lemmer's license. At that hearing, the district court concluded that the evidence against Lemmer should be suppressed and rescinded the commissioner's revocation of Lemmer's driver's license. The Commissioner of Public Safety had a right to appeal this ruling under Minn. Stat. § 169A.53, subd. 3(f) but did not exercise that right. Because the Commissioner of Public Safety failed to exercise its right of appeal, the district court's ruling is a final judgment on the merits. See Restatement (Second) of Judgments § 13, cmt. b (1982) ("[A] judgment will ordinarily be considered final in respect to a claim * * * if it is not tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court * * *."). C. The Estopped Party Is in Privity with the Party to the Prior Adjudication There is significant disagreement over factor three, whether the estopped party— the state—was a party or in privity with a party to the prior adjudication—the Commissioner of Public Safety. Lemmer argues that we need not determine whether the State of Minnesota, as represented by the Scott County Attorney, and the Commissioner *660 of Public Safety are in privity because the two entities are actually the same party—the State of Minnesota. The state contends that it was not in privity with the commissioner because it had no control over the litigation and had no authority to seek appellate review of the implied consent determination. The state also emphasizes that commonality of interest alone is not sufficient to find privity and suggests that the differing functions of the Commissioner of Public Safety and the state weigh against finding privity. We will address both parties' arguments in turn. First, we reject Lemmer's argument that the state and the Commissioner of Public Safety are the same party. In State, Department of Public Safety v. House, we concluded that a prosecuting attorney, who represented the state in the criminal DWI prosecution, did not have the authority to execute a plea bargain dismissing the subsequent implied consent proceeding, which was brought by the Commissioner of Public Safety. 291 Minn. 424, 425-26, 192 N.W.2d 93, 94-95 (1971). House examined the distinctions between the two proceedings, noting that the Commissioner of Public Safety was the individual party to the implied consent action, based upon the commissioner's statutory duties. 291 Minn. at 426, 192 N.W.2d at 95. In contrast, the county attorney acts as the attorney for the state in all criminal matters within the county and has no authority to act in civil cases, such as implied consent proceedings, in which the state is a party. Id. at 425, 192 N.W.2d at 95. These statutory distinctions remain today. See Minn. Stat. § 8.06 (2006) (granting the authority to act for state officers, such as the Commissioner of Public Safety, to the Attorney General); Minn. Stat. § 169A.43, subd. 2 (2006) (establishing that prosecution of DWI offenses is the responsibility of the attorney within the jurisdiction where the offense occurred); Minn. Stat. § 388.051 (2006)[6] (outlining the duties of the county attorney, which include prosecuting felonies, and to the extent prescribed by law, gross misdemeanors, misdemeanors, and petty misdemeanors). After examining the implied consent proceeding and the criminal DWI prosecution, we stated that the two proceedings were "related only to the extent that they both generally grow out of the same set of facts" and noted that "the parties to the proceedings are not the same." House, 291 Minn. at 425, 192 N.W.2d at 94-95. We conclude that the reasoning of House remains sound and, therefore, conclude that the state and the commissioner are not the same party. Because we reject Lemmer's argument that the state and the Commissioner of Public Safety are the same party, we must now consider whether the Commissioner of Public Safety and the State of Minnesota are in privity. To determine whether privity exists, we carefully examine the circumstances of each case. Margo-Kraft Distribs., Inc. v. Minneapolis Gas Co., 294 Minn. 274, 278, 200 N.W.2d 45, 47 (1972). Commonality of interests alone is insufficient to establish privity. Pirrotta v. Indep. Sch. Dist. No. 347, 396 N.W.2d 20, 22 (Minn.1986); see also State v. Miller, 194 W.Va. 3, 459 S.E.2d 114, 124 (1995) (stating that privity is not established merely because parties are interested in the same question or *661 proving the same facts); State v. Fritz, 204 Conn. 156, 527 A.2d 1157, 1165 (1987) (same), overruled on other grounds by State v. Crawford, 257 Conn. 769, 778 A.2d 947 (2001). Rather, when determining whether privity exists, the proper focus is on whether the legal rights of the party to be estopped were adequately represented by the party to the first litigation. Fritz, 527 A.2d at 1166; see also Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 403, 60 S.Ct. 907, 84 L.Ed. 1263 (1940) (noting that officers of the same government may be in privity, but that the "crucial point [in determining whether privity exists] 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"). This court bases its privity determination on whether the party to be estopped (1) had a controlling participation in the first action, (2) had an active self-interest in the previous litigation, County of Ramsey v. Stevens, 283 N.W.2d 918, 924 (Minn.1979), or (3) had a right to appeal from a prior judgment, Kaiser v. N. States Power Co., 353 N.W.2d 899, 904 (Minn. 1984). A party to be estopped has control of the first action if it has a choice about legal theories and proofs to be advanced on behalf of the party to the action and control over the ability to obtain review of the judgment. Restatement (Second) of Judgments § 39, cmt. c; see Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860, 864 n. 3 (5th Cir.1985). Although the general rule is that litigation by one state agency is binding on other agencies of the same government, "exceptions may be warranted if there are important differences in the authority of the respective agencies." 18A Charles Alan Wright, et al., Federal Practice and Procedure § 4458, at 560 (2d ed.2002). Collateral estoppel will not apply between the two government agencies [i]f the second action involves an agency or official whose functions and responsibilities are so distinct from those of the agency or official in the first action that applying preclusion would interfere with the proper allocation of authority between them. Restatement (Second) of Judgments § 36, cmt. f. We conclude that in this case the differing functions and responsibilities of the Commissioner of Public Safety and the State of Minnesota are sufficiently distinct to support the conclusion that the parties are not in privity. It is undeniable that at one level there is a connection between the State of Minnesota and the Commissioner of Public Safety; the latter directs an agency of the former. But we do not believe that alone is determinative. See Huelsman v. Kan. Dep't of Revenue, 267 Kan. 456, 980 P.2d 1022, 1025 (1999) (noting that the fact that a city exists by virtue of laws adopted by the state is not determinative in deciding whether a city prosecutor and state administrative agency are in privity). The Department of Public Safety, which is headed by the commissioner, was established for the purpose of regulating drivers' licensing and safety responsibility. See Minn. Stat. § 171.015 (2006). That purpose is separate and distinct from the prosecution of crimes, which is the function that the state is serving in the DWI prosecution. The state specifically delegates the duties of prosecuting crimes to the offices of county attorneys and city attorneys. See Minn. Stat. § 388.051 (outlining the duties of the county attorney); Minn. Stat. § 487.25, subd. 10 (2004) (outlining the authority of attorneys of municipalities and statutory or home rule cities to prosecute certain crimes) (current version at Minn. Stat. § 484.87, *662 subds. 2-3 (2006)); Minn. Stat. § 488A.10, subd. 11 (2004) (outlining the authority of attorneys of municipalities and statutory or home rule cities within Hennepin County to prosecute certain crimes) (current version at Minn. Stat. § 484.87, subds. 2-3 (2006)); Minn. Stat. § 488A.27, subd. 11 (outlining the authority of attorneys of municipalities and statutory or home rule cities within Ramsey County to prosecute certain crimes) (current version at Minn. Stat. § 484.87, subds. 2-3 (2006)). With respect to the prosecution of crimes, the state acts almost exclusively through county attorneys or city attorneys. The attorney general plays only a limited role in criminal prosecutions and then only at the request of the county attorney or the governor. Minn. Stat. § 8.01 (2006) ("Upon request of the county attorney, the attorney general shall appear in court in such criminal cases * * *. Whenever the governor shall so request, in writing, the attorney general shall prosecute any person charged with an indictable offense, and in all such cases may attend upon the grand jury and exercise powers of a county attorney."). Therefore, although the Commissioner of Public Safety may have been an agent of the state in the license revocation proceeding, the commissioner's role and responsibilities are so distinct from the responsibilities of the state as represented by the county attorney that applying collateral estoppel would "interfere with the proper allocation of authority between" the commissioner and the state. Restatement (Second) of Judgments § 36, cmt. f; see Cook v. State, 921 So.2d 631, 643-44 (Fla.Dist.Ct.App.2005) (concluding that the different responsibilities of the Florida Department of Education, Education Practices Commission, whose purpose is to discipline educators, and the state, as represented by the state attorneys for the purpose of prosecuting crimes, supported a finding that the parties were not in privity). Moreover, the different functions of an implied consent proceeding and a DWI prosecution underscore the state's inability to establish controlling participation in the implied consent proceeding. In this case, the Commissioner of Public Safety and the state both have an interest in establishing that Lemmer was intoxicated. But this common interest is insufficient to establish controlling participation. See Pirrotta, 396 N.W.2d at 22 (holding that even though the school board's interests were similar to those of the appellant teacher where the school board acted on its own behalf without accountability to the teacher, there was no privity and collateral estoppel does not apply). The state has no authority over decisions made by the commissioner in implied consent proceedings and vice versa. See State, Dep't of Pub. Safety v. Mulvihill, 303 Minn. 361, 368, 227 N.W.2d 813, 818 (1975) (noting that license revocation is imposed by the commissioner "regardless of the outcome of the criminal proceeding"); House, 291 Minn. at 425-26, 192 N.W.2d at 95 (concluding that the county attorney has no authority to litigate implied consent proceedings without receiving permission from the attorney general). Because the state had no input into litigation strategy, the state cannot be said to have exercised controlling participation in the litigation. See Miller, 459 S.E.2d at 125 (concluding that privity did not exist between the prosecuting attorney and government agency because the prosecuting attorney's interest in having guilt or innocence determined is not met in an administrative proceeding where the prosecuting attorney has "no control over the timing, substance, or litigation of charges"); Fritz, 527 A.2d at 1166-67 (concluding that the department of consumer protection, which had the authority to investigate licensing complaints *663 and could bring administrative proceedings to deal with license violations, and the division of criminal justice, which governed the state's attorneys who investigated and prosecuted criminal matters, were not in privity because "the state's interest in having guilt or innocence determined is not adequately served in an administrative proceeding because * * * the state's attorney has no control over the timing, substance or litigation of charges lodged against the defendant by the department of consumer protection").[7] The lack of controlling participation by the state, combined with the state's lack of interest in the outcome of the hearing and the state's inability to appeal an adverse ruling against the commissioner in an implied consent proceeding, supports our conclusion that the differing functions and responsibilities of the Commissioner of Public Safety and the State of Minnesota weigh against the existence of privity. We conclude that privity does not exist between the Commissioner of Public Safety and the state in these circumstances. D. Full and Fair Opportunity to Be Heard In this case, Lemmer's trial counsel informed the Scott County Attorney in writing of Lemmer's implied consent hearing. The state, apparently relying on Minn. Stat. § 169A.53, subd. 3(g), did not attend the implied consent hearing. Because the state was relying in good faith on section 169A.53, subd. 3(g), it had no incentive to participate in the implied consent proceeding. Moreover, given the statutory limitations on the state's role in implied consent proceedings, it is unclear to us the extent to which the state would have been allowed to participate. Therefore, we conclude that the state did not have a full and fair opportunity to be heard on the litigated issue. See In re Miller, 153 B.R. 269, 274 (Bankr.D.Minn. 1993) (concluding that a full and fair opportunity to be heard existed where the party had an opportunity and incentive to litigate the issue and failed to do so); Reynolds v. State, 4 S.W.3d 13, 16-18 (Tex. Crim.App.1999) (concluding that the Department of Public Safety and the county district attorney were not the same party for collateral estoppel purposes, particularly where the district attorney had no opportunity to litigate the issue decided in the administrative proceeding). In sum, we conclude that collateral estoppel is inapplicable to issues litigated in DWI prosecutions that were previously litigated in implied consent proceedings because the Commissioner of Public Safety and the state are not in privity, and in this instance the state did not have a full and fair opportunity to be heard.

IV. Because we have concluded that collateral estoppel is a procedural rule governed *659 by this court, we must now determine, as applied to the facts of this case, whether collateral estoppel prevents the litigation of an issue in a DWI prosecution that was previously litigated in an implied consent proceeding. Whether collateral estoppel precludes litigation of an issue is a mixed question of law and fact that is reviewed de novo. Hauschildt, 686 N.W.2d at 837. Collateral estoppel may be applied when: (1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue. 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)). We do not rigidly apply collateral estoppel, and we will not apply collateral estoppel if its application would work an injustice on the party to be estopped. See Hauschildt, 686 N.W.2d at 837; Johnson v. Consol. Freightways, Inc., 420 N.W.2d 608, 613-14 (Minn.1988). In applying collateral estoppel in this case, we will examine all four factors. A. Identity of Issues In this case neither party disputes that factor one, identity of issues, is met. At the implied consent proceeding the district court found that the deputy sheriff had no particularized basis to stop Lemmer. Because the stop was illegal, all of the evidence obtained from the stop, including the breath test that established that Lemmer was intoxicated, was suppressed as a fruit of that illegal seizure. In the DWI prosecution, the state may only prosecute Lemmer if it is able to introduce the evidence of his intoxication, which was obtained as a result of the wrongful stop, putting the legality of the stop at issue. Therefore, we conclude that the issue decided in the implied consent proceeding is identical to the one to be decided in the DWI prosecution. B. Final Judgment on Merits Factor two, that there was a final judgment on the merits, is also met. A judicial hearing was held under Minn. Stat. § 169A.53 to review the revocation of Lemmer's license. At that hearing, the district court concluded that the evidence against Lemmer should be suppressed and rescinded the commissioner's revocation of Lemmer's driver's license. The Commissioner of Public Safety had a right to appeal this ruling under Minn. Stat. § 169A.53, subd. 3(f) but did not exercise that right. Because the Commissioner of Public Safety failed to exercise its right of appeal, the district court's ruling is a final judgment on the merits. See Restatement (Second) of Judgments § 13, cmt. b (1982) ("[A] judgment will ordinarily be considered final in respect to a claim * * * if it is not tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court * * *."). C. The Estopped Party Is in Privity with the Party to the Prior Adjudication There is significant disagreement over factor three, whether the estopped party— the state—was a party or in privity with a party to the prior adjudication—the Commissioner of Public Safety. Lemmer argues that we need not determine whether the State of Minnesota, as represented by the Scott County Attorney, and the Commissioner *660 of Public Safety are in privity because the two entities are actually the same party—the State of Minnesota. The state contends that it was not in privity with the commissioner because it had no control over the litigation and had no authority to seek appellate review of the implied consent determination. The state also emphasizes that commonality of interest alone is not sufficient to find privity and suggests that the differing functions of the Commissioner of Public Safety and the state weigh against finding privity. We will address both parties' arguments in turn. First, we reject Lemmer's argument that the state and the Commissioner of Public Safety are the same party. In State, Department of Public Safety v. House, we concluded that a prosecuting attorney, who represented the state in the criminal DWI prosecution, did not have the authority to execute a plea bargain dismissing the subsequent implied consent proceeding, which was brought by the Commissioner of Public Safety. 291 Minn. 424, 425-26, 192 N.W.2d 93, 94-95 (1971). House examined the distinctions between the two proceedings, noting that the Commissioner of Public Safety was the individual party to the implied consent action, based upon the commissioner's statutory duties. 291 Minn. at 426, 192 N.W.2d at 95. In contrast, the county attorney acts as the attorney for the state in all criminal matters within the county and has no authority to act in civil cases, such as implied consent proceedings, in which the state is a party. Id. at 425, 192 N.W.2d at 95. These statutory distinctions remain today. See Minn. Stat. § 8.06 (2006) (granting the authority to act for state officers, such as the Commissioner of Public Safety, to the Attorney General); Minn. Stat. § 169A.43, subd. 2 (2006) (establishing that prosecution of DWI offenses is the responsibility of the attorney within the jurisdiction where the offense occurred); Minn. Stat. § 388.051 (2006)[6] (outlining the duties of the county attorney, which include prosecuting felonies, and to the extent prescribed by law, gross misdemeanors, misdemeanors, and petty misdemeanors). After examining the implied consent proceeding and the criminal DWI prosecution, we stated that the two proceedings were "related only to the extent that they both generally grow out of the same set of facts" and noted that "the parties to the proceedings are not the same." House, 291 Minn. at 425, 192 N.W.2d at 94-95. We conclude that the reasoning of House remains sound and, therefore, conclude that the state and the commissioner are not the same party. Because we reject Lemmer's argument that the state and the Commissioner of Public Safety are the same party, we must now consider whether the Commissioner of Public Safety and the State of Minnesota are in privity. To determine whether privity exists, we carefully examine the circumstances of each case. Margo-Kraft Distribs., Inc. v. Minneapolis Gas Co., 294 Minn. 274, 278, 200 N.W.2d 45, 47 (1972). Commonality of interests alone is insufficient to establish privity. Pirrotta v. Indep. Sch. Dist. No. 347, 396 N.W.2d 20, 22 (Minn.1986); see also State v. Miller, 194 W.Va. 3, 459 S.E.2d 114, 124 (1995) (stating that privity is not established merely because parties are interested in the same question or *661 proving the same facts); State v. Fritz, 204 Conn. 156, 527 A.2d 1157, 1165 (1987) (same), overruled on other grounds by State v. Crawford, 257 Conn. 769, 778 A.2d 947 (2001). Rather, when determining whether privity exists, the proper focus is on whether the legal rights of the party to be estopped were adequately represented by the party to the first litigation. Fritz, 527 A.2d at 1166; see also Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 403, 60 S.Ct. 907, 84 L.Ed. 1263 (1940) (noting that officers of the same government may be in privity, but that the "crucial point [in determining whether privity exists] 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"). This court bases its privity determination on whether the party to be estopped (1) had a controlling participation in the first action, (2) had an active self-interest in the previous litigation, County of Ramsey v. Stevens, 283 N.W.2d 918, 924 (Minn.1979), or (3) had a right to appeal from a prior judgment, Kaiser v. N. States Power Co., 353 N.W.2d 899, 904 (Minn. 1984). A party to be estopped has control of the first action if it has a choice about legal theories and proofs to be advanced on behalf of the party to the action and control over the ability to obtain review of the judgment. Restatement (Second) of Judgments § 39, cmt. c; see Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860, 864 n. 3 (5th Cir.1985). Although the general rule is that litigation by one state agency is binding on other agencies of the same government, "exceptions may be warranted if there are important differences in the authority of the respective agencies." 18A Charles Alan Wright, et al., Federal Practice and Procedure § 4458, at 560 (2d ed.2002). Collateral estoppel will not apply between the two government agencies [i]f the second action involves an agency or official whose functions and responsibilities are so distinct from those of the agency or official in the first action that applying preclusion would interfere with the proper allocation of authority between them. Restatement (Second) of Judgments § 36, cmt. f. We conclude that in this case the differing functions and responsibilities of the Commissioner of Public Safety and the State of Minnesota are sufficiently distinct to support the conclusion that the parties are not in privity. It is undeniable that at one level there is a connection between the State of Minnesota and the Commissioner of Public Safety; the latter directs an agency of the former. But we do not believe that alone is determinative. See Huelsman v. Kan. Dep't of Revenue, 267 Kan. 456, 980 P.2d 1022, 1025 (1999) (noting that the fact that a city exists by virtue of laws adopted by the state is not determinative in deciding whether a city prosecutor and state administrative agency are in privity). The Department of Public Safety, which is headed by the commissioner, was established for the purpose of regulating drivers' licensing and safety responsibility. See Minn. Stat. § 171.015 (2006). That purpose is separate and distinct from the prosecution of crimes, which is the function that the state is serving in the DWI prosecution. The state specifically delegates the duties of prosecuting crimes to the offices of county attorneys and city attorneys. See Minn. Stat. § 388.051 (outlining the duties of the county attorney); Minn. Stat. § 487.25, subd. 10 (2004) (outlining the authority of attorneys of municipalities and statutory or home rule cities to prosecute certain crimes) (current version at Minn. Stat. § 484.87, *662 subds. 2-3 (2006)); Minn. Stat. § 488A.10, subd. 11 (2004) (outlining the authority of attorneys of municipalities and statutory or home rule cities within Hennepin County to prosecute certain crimes) (current version at Minn. Stat. § 484.87, subds. 2-3 (2006)); Minn. Stat. § 488A.27, subd. 11 (outlining the authority of attorneys of municipalities and statutory or home rule cities within Ramsey County to prosecute certain crimes) (current version at Minn. Stat. § 484.87, subds. 2-3 (2006)). With respect to the prosecution of crimes, the state acts almost exclusively through county attorneys or city attorneys. The attorney general plays only a limited role in criminal prosecutions and then only at the request of the county attorney or the governor. Minn. Stat. § 8.01 (2006) ("Upon request of the county attorney, the attorney general shall appear in court in such criminal cases * * *. Whenever the governor shall so request, in writing, the attorney general shall prosecute any person charged with an indictable offense, and in all such cases may attend upon the grand jury and exercise powers of a county attorney."). Therefore, although the Commissioner of Public Safety may have been an agent of the state in the license revocation proceeding, the commissioner's role and responsibilities are so distinct from the responsibilities of the state as represented by the county attorney that applying collateral estoppel would "interfere with the proper allocation of authority between" the commissioner and the state. Restatement (Second) of Judgments § 36, cmt. f; see Cook v. State, 921 So.2d 631, 643-44 (Fla.Dist.Ct.App.2005) (concluding that the different responsibilities of the Florida Department of Education, Education Practices Commission, whose purpose is to discipline educators, and the state, as represented by the state attorneys for the purpose of prosecuting crimes, supported a finding that the parties were not in privity). Moreover, the different functions of an implied consent proceeding and a DWI prosecution underscore the state's inability to establish controlling participation in the implied consent proceeding. In this case, the Commissioner of Public Safety and the state both have an interest in establishing that Lemmer was intoxicated. But this common interest is insufficient to establish controlling participation. See Pirrotta, 396 N.W.2d at 22 (holding that even though the school board's interests were similar to those of the appellant teacher where the school board acted on its own behalf without accountability to the teacher, there was no privity and collateral estoppel does not apply). The state has no authority over decisions made by the commissioner in implied consent proceedings and vice versa. See State, Dep't of Pub. Safety v. Mulvihill, 303 Minn. 361, 368, 227 N.W.2d 813, 818 (1975) (noting that license revocation is imposed by the commissioner "regardless of the outcome of the criminal proceeding"); House, 291 Minn. at 425-26, 192 N.W.2d at 95 (concluding that the county attorney has no authority to litigate implied consent proceedings without receiving permission from the attorney general). Because the state had no input into litigation strategy, the state cannot be said to have exercised controlling participation in the litigation. See Miller, 459 S.E.2d at 125 (concluding that privity did not exist between the prosecuting attorney and government agency because the prosecuting attorney's interest in having guilt or innocence determined is not met in an administrative proceeding where the prosecuting attorney has "no control over the timing, substance, or litigation of charges"); Fritz, 527 A.2d at 1166-67 (concluding that the department of consumer protection, which had the authority to investigate licensing complaints *663 and could bring administrative proceedings to deal with license violations, and the division of criminal justice, which governed the state's attorneys who investigated and prosecuted criminal matters, were not in privity because "the state's interest in having guilt or innocence determined is not adequately served in an administrative proceeding because * * * the state's attorney has no control over the timing, substance or litigation of charges lodged against the defendant by the department of consumer protection").[7] The lack of controlling participation by the state, combined with the state's lack of interest in the outcome of the hearing and the state's inability to appeal an adverse ruling against the commissioner in an implied consent proceeding, supports our conclusion that the differing functions and responsibilities of the Commissioner of Public Safety and the State of Minnesota weigh against the existence of privity. We conclude that privity does not exist between the Commissioner of Public Safety and the state in these circumstances. D. Full and Fair Opportunity to Be Heard In this case, Lemmer's trial counsel informed the Scott County Attorney in writing of Lemmer's implied consent hearing. The state, apparently relying on Minn. Stat. § 169A.53, subd. 3(g), did not attend the implied consent hearing. Because the state was relying in good faith on section 169A.53, subd. 3(g), it had no incentive to participate in the implied consent proceeding. Moreover, given the statutory limitations on the state's role in implied consent proceedings, it is unclear to us the extent to which the state would have been allowed to participate. Therefore, we conclude that the state did not have a full and fair opportunity to be heard on the litigated issue. See In re Miller, 153 B.R. 269, 274 (Bankr.D.Minn. 1993) (concluding that a full and fair opportunity to be heard existed where the party had an opportunity and incentive to litigate the issue and failed to do so); Reynolds v. State, 4 S.W.3d 13, 16-18 (Tex. Crim.App.1999) (concluding that the Department of Public Safety and the county district attorney were not the same party for collateral estoppel purposes, particularly where the district attorney had no opportunity to litigate the issue decided in the administrative proceeding). In sum, we conclude that collateral estoppel is inapplicable to issues litigated in DWI prosecutions that were previously litigated in implied consent proceedings because the Commissioner of Public Safety and the state are not in privity, and in this instance the state did not have a full and fair opportunity to be heard.

IV. Because we have concluded that collateral estoppel is a procedural rule governed *659 by this court, we must now determine, as applied to the facts of this case, whether collateral estoppel prevents the litigation of an issue in a DWI prosecution that was previously litigated in an implied consent proceeding. Whether collateral estoppel precludes litigation of an issue is a mixed question of law and fact that is reviewed de novo. Hauschildt, 686 N.W.2d at 837. Collateral estoppel may be applied when: (1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue. 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)). We do not rigidly apply collateral estoppel, and we will not apply collateral estoppel if its application would work an injustice on the party to be estopped. See Hauschildt, 686 N.W.2d at 837; Johnson v. Consol. Freightways, Inc., 420 N.W.2d 608, 613-14 (Minn.1988). In applying collateral estoppel in this case, we will examine all four factors. A. Identity of Issues In this case neither party disputes that factor one, identity of issues, is met. At the implied consent proceeding the district court found that the deputy sheriff had no particularized basis to stop Lemmer. Because the stop was illegal, all of the evidence obtained from the stop, including the breath test that established that Lemmer was intoxicated, was suppressed as a fruit of that illegal seizure. In the DWI prosecution, the state may only prosecute Lemmer if it is able to introduce the evidence of his intoxication, which was obtained as a result of the wrongful stop, putting the legality of the stop at issue. Therefore, we conclude that the issue decided in the implied consent proceeding is identical to the one to be decided in the DWI prosecution. B. Final Judgment on Merits Factor two, that there was a final judgment on the merits, is also met. A judicial hearing was held under Minn. Stat. § 169A.53 to review the revocation of Lemmer's license. At that hearing, the district court concluded that the evidence against Lemmer should be suppressed and rescinded the commissioner's revocation of Lemmer's driver's license. The Commissioner of Public Safety had a right to appeal this ruling under Minn. Stat. § 169A.53, subd. 3(f) but did not exercise that right. Because the Commissioner of Public Safety failed to exercise its right of appeal, the district court's ruling is a final judgment on the merits. See Restatement (Second) of Judgments § 13, cmt. b (1982) ("[A] judgment will ordinarily be considered final in respect to a claim * * * if it is not tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court * * *."). C. The Estopped Party Is in Privity with the Party to the Prior Adjudication There is significant disagreement over factor three, whether the estopped party— the state—was a party or in privity with a party to the prior adjudication—the Commissioner of Public Safety. Lemmer argues that we need not determine whether the State of Minnesota, as represented by the Scott County Attorney, and the Commissioner *660 of Public Safety are in privity because the two entities are actually the same party—the State of Minnesota. The state contends that it was not in privity with the commissioner because it had no control over the litigation and had no authority to seek appellate review of the implied consent determination. The state also emphasizes that commonality of interest alone is not sufficient to find privity and suggests that the differing functions of the Commissioner of Public Safety and the state weigh against finding privity. We will address both parties' arguments in turn. First, we reject Lemmer's argument that the state and the Commissioner of Public Safety are the same party. In State, Department of Public Safety v. House, we concluded that a prosecuting attorney, who represented the state in the criminal DWI prosecution, did not have the authority to execute a plea bargain dismissing the subsequent implied consent proceeding, which was brought by the Commissioner of Public Safety. 291 Minn. 424, 425-26, 192 N.W.2d 93, 94-95 (1971). House examined the distinctions between the two proceedings, noting that the Commissioner of Public Safety was the individual party to the implied consent action, based upon the commissioner's statutory duties. 291 Minn. at 426, 192 N.W.2d at 95. In contrast, the county attorney acts as the attorney for the state in all criminal matters within the county and has no authority to act in civil cases, such as implied consent proceedings, in which the state is a party. Id. at 425, 192 N.W.2d at 95. These statutory distinctions remain today. See Minn. Stat. § 8.06 (2006) (granting the authority to act for state officers, such as the Commissioner of Public Safety, to the Attorney General); Minn. Stat. § 169A.43, subd. 2 (2006) (establishing that prosecution of DWI offenses is the responsibility of the attorney within the jurisdiction where the offense occurred); Minn. Stat. § 388.051 (2006)[6] (outlining the duties of the county attorney, which include prosecuting felonies, and to the extent prescribed by law, gross misdemeanors, misdemeanors, and petty misdemeanors). After examining the implied consent proceeding and the criminal DWI prosecution, we stated that the two proceedings were "related only to the extent that they both generally grow out of the same set of facts" and noted that "the parties to the proceedings are not the same." House, 291 Minn. at 425, 192 N.W.2d at 94-95. We conclude that the reasoning of House remains sound and, therefore, conclude that the state and the commissioner are not the same party. Because we reject Lemmer's argument that the state and the Commissioner of Public Safety are the same party, we must now consider whether the Commissioner of Public Safety and the State of Minnesota are in privity. To determine whether privity exists, we carefully examine the circumstances of each case. Margo-Kraft Distribs., Inc. v. Minneapolis Gas Co., 294 Minn. 274, 278, 200 N.W.2d 45, 47 (1972). Commonality of interests alone is insufficient to establish privity. Pirrotta v. Indep. Sch. Dist. No. 347, 396 N.W.2d 20, 22 (Minn.1986); see also State v. Miller, 194 W.Va. 3, 459 S.E.2d 114, 124 (1995) (stating that privity is not established merely because parties are interested in the same question or *661 proving the same facts); State v. Fritz, 204 Conn. 156, 527 A.2d 1157, 1165 (1987) (same), overruled on other grounds by State v. Crawford, 257 Conn. 769, 778 A.2d 947 (2001). Rather, when determining whether privity exists, the proper focus is on whether the legal rights of the party to be estopped were adequately represented by the party to the first litigation. Fritz, 527 A.2d at 1166; see also Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 403, 60 S.Ct. 907, 84 L.Ed. 1263 (1940) (noting that officers of the same government may be in privity, but that the "crucial point [in determining whether privity exists] 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"). This court bases its privity determination on whether the party to be estopped (1) had a controlling participation in the first action, (2) had an active self-interest in the previous litigation, County of Ramsey v. Stevens, 283 N.W.2d 918, 924 (Minn.1979), or (3) had a right to appeal from a prior judgment, Kaiser v. N. States Power Co., 353 N.W.2d 899, 904 (Minn. 1984). A party to be estopped has control of the first action if it has a choice about legal theories and proofs to be advanced on behalf of the party to the action and control over the ability to obtain review of the judgment. Restatement (Second) of Judgments § 39, cmt. c; see Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860, 864 n. 3 (5th Cir.1985). Although the general rule is that litigation by one state agency is binding on other agencies of the same government, "exceptions may be warranted if there are important differences in the authority of the respective agencies." 18A Charles Alan Wright, et al., Federal Practice and Procedure § 4458, at 560 (2d ed.2002). Collateral estoppel will not apply between the two government agencies [i]f the second action involves an agency or official whose functions and responsibilities are so distinct from those of the agency or official in the first action that applying preclusion would interfere with the proper allocation of authority between them. Restatement (Second) of Judgments § 36, cmt. f. We conclude that in this case the differing functions and responsibilities of the Commissioner of Public Safety and the State of Minnesota are sufficiently distinct to support the conclusion that the parties are not in privity. It is undeniable that at one level there is a connection between the State of Minnesota and the Commissioner of Public Safety; the latter directs an agency of the former. But we do not believe that alone is determinative. See Huelsman v. Kan. Dep't of Revenue, 267 Kan. 456, 980 P.2d 1022, 1025 (1999) (noting that the fact that a city exists by virtue of laws adopted by the state is not determinative in deciding whether a city prosecutor and state administrative agency are in privity). The Department of Public Safety, which is headed by the commissioner, was established for the purpose of regulating drivers' licensing and safety responsibility. See Minn. Stat. § 171.015 (2006). That purpose is separate and distinct from the prosecution of crimes, which is the function that the state is serving in the DWI prosecution. The state specifically delegates the duties of prosecuting crimes to the offices of county attorneys and city attorneys. See Minn. Stat. § 388.051 (outlining the duties of the county attorney); Minn. Stat. § 487.25, subd. 10 (2004) (outlining the authority of attorneys of municipalities and statutory or home rule cities to prosecute certain crimes) (current version at Minn. Stat. § 484.87, *662 subds. 2-3 (2006)); Minn. Stat. § 488A.10, subd. 11 (2004) (outlining the authority of attorneys of municipalities and statutory or home rule cities within Hennepin County to prosecute certain crimes) (current version at Minn. Stat. § 484.87, subds. 2-3 (2006)); Minn. Stat. § 488A.27, subd. 11 (outlining the authority of attorneys of municipalities and statutory or home rule cities within Ramsey County to prosecute certain crimes) (current version at Minn. Stat. § 484.87, subds. 2-3 (2006)). With respect to the prosecution of crimes, the state acts almost exclusively through county attorneys or city attorneys. The attorney general plays only a limited role in criminal prosecutions and then only at the request of the county attorney or the governor. Minn. Stat. § 8.01 (2006) ("Upon request of the county attorney, the attorney general shall appear in court in such criminal cases * * *. Whenever the governor shall so request, in writing, the attorney general shall prosecute any person charged with an indictable offense, and in all such cases may attend upon the grand jury and exercise powers of a county attorney."). Therefore, although the Commissioner of Public Safety may have been an agent of the state in the license revocation proceeding, the commissioner's role and responsibilities are so distinct from the responsibilities of the state as represented by the county attorney that applying collateral estoppel would "interfere with the proper allocation of authority between" the commissioner and the state. Restatement (Second) of Judgments § 36, cmt. f; see Cook v. State, 921 So.2d 631, 643-44 (Fla.Dist.Ct.App.2005) (concluding that the different responsibilities of the Florida Department of Education, Education Practices Commission, whose purpose is to discipline educators, and the state, as represented by the state attorneys for the purpose of prosecuting crimes, supported a finding that the parties were not in privity). Moreover, the different functions of an implied consent proceeding and a DWI prosecution underscore the state's inability to establish controlling participation in the implied consent proceeding. In this case, the Commissioner of Public Safety and the state both have an interest in establishing that Lemmer was intoxicated. But this common interest is insufficient to establish controlling participation. See Pirrotta, 396 N.W.2d at 22 (holding that even though the school board's interests were similar to those of the appellant teacher where the school board acted on its own behalf without accountability to the teacher, there was no privity and collateral estoppel does not apply). The state has no authority over decisions made by the commissioner in implied consent proceedings and vice versa. See State, Dep't of Pub. Safety v. Mulvihill, 303 Minn. 361, 368, 227 N.W.2d 813, 818 (1975) (noting that license revocation is imposed by the commissioner "regardless of the outcome of the criminal proceeding"); House, 291 Minn. at 425-26, 192 N.W.2d at 95 (concluding that the county attorney has no authority to litigate implied consent proceedings without receiving permission from the attorney general). Because the state had no input into litigation strategy, the state cannot be said to have exercised controlling participation in the litigation. See Miller, 459 S.E.2d at 125 (concluding that privity did not exist between the prosecuting attorney and government agency because the prosecuting attorney's interest in having guilt or innocence determined is not met in an administrative proceeding where the prosecuting attorney has "no control over the timing, substance, or litigation of charges"); Fritz, 527 A.2d at 1166-67 (concluding that the department of consumer protection, which had the authority to investigate licensing complaints *663 and could bring administrative proceedings to deal with license violations, and the division of criminal justice, which governed the state's attorneys who investigated and prosecuted criminal matters, were not in privity because "the state's interest in having guilt or innocence determined is not adequately served in an administrative proceeding because * * * the state's attorney has no control over the timing, substance or litigation of charges lodged against the defendant by the department of consumer protection").[7] The lack of controlling participation by the state, combined with the state's lack of interest in the outcome of the hearing and the state's inability to appeal an adverse ruling against the commissioner in an implied consent proceeding, supports our conclusion that the differing functions and responsibilities of the Commissioner of Public Safety and the State of Minnesota weigh against the existence of privity. We conclude that privity does not exist between the Commissioner of Public Safety and the state in these circumstances. D. Full and Fair Opportunity to Be Heard In this case, Lemmer's trial counsel informed the Scott County Attorney in writing of Lemmer's implied consent hearing. The state, apparently relying on Minn. Stat. § 169A.53, subd. 3(g), did not attend the implied consent hearing. Because the state was relying in good faith on section 169A.53, subd. 3(g), it had no incentive to participate in the implied consent proceeding. Moreover, given the statutory limitations on the state's role in implied consent proceedings, it is unclear to us the extent to which the state would have been allowed to participate. Therefore, we conclude that the state did not have a full and fair opportunity to be heard on the litigated issue. See In re Miller, 153 B.R. 269, 274 (Bankr.D.Minn. 1993) (concluding that a full and fair opportunity to be heard existed where the party had an opportunity and incentive to litigate the issue and failed to do so); Reynolds v. State, 4 S.W.3d 13, 16-18 (Tex. Crim.App.1999) (concluding that the Department of Public Safety and the county district attorney were not the same party for collateral estoppel purposes, particularly where the district attorney had no opportunity to litigate the issue decided in the administrative proceeding). In sum, we conclude that collateral estoppel is inapplicable to issues litigated in DWI prosecutions that were previously litigated in implied consent proceedings because the Commissioner of Public Safety and the state are not in privity, and in this instance the state did not have a full and fair opportunity to be heard.

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