Jake's correctly notes that the files themselves were not made part of the district court record. However, because Jake's never objected during the district court proceedings, we will not address that issue for the first time on appeal. Jake's concedes that the prior federal judgment precludes relitigation of whether the ordinance is constitutional on its face. Jake's argues, however, that the ordinance is unconstitutional as applied and that it is free to assert this distinct constitutional challenge in this appeal. We agree with the district court that this constitutional challenge fails because Jake's did not assert the defense in its answer and did not raise the issue until it submitted post-hearing arguments.
Ordinances enjoy a presumption of constitutionality.
The party challenging an ordinance bears the burden of establishing that it is unconstitutional. Accordingly, a constitutional challenge to enforcement of an ordinance is an affirmative defense and must be pleaded as such. See Minn. R. Civ. Finally, Jake's argues that res judicata precludes the city from obtaining an injunction in this case because an injunction was requested and denied in federal court. Res judicata applies when two successive suits involve claims arising out of the same nucleus of facts.