Opinions-Unpublished?

Quo Warranto_Dismissed A11-1222 Limmer vs.LoriSwanson,MarkDayton,Jim Showalter Judge Kathleen R. Gearin et al

2011-12-04T09:48:00.000-08:00

http://www.mncourts.gov/Documents/0/Public/Clerks_Office/SC%20Opinions/ora111222-113011.pdf

OPINIONS OF THE SUPREME COURT

FILED WEDNESDAY, NOVEMBER 30, 2011

NOTICE - MEDIA RELEASE TIME IS 10:00 A.M.

ORDER FILED NOVEMBER 30, 2011

A11-1222 State Senator Warren L. Limmer, et al., Petitioners, vs. Lori
Swanson In her official capacity as Attorney General, Mark
Dayton in his official capacity as Governor, Jim Showalter in
his official capacity As Commissioner of the Department of
Management and Budget, and Kathleen R. Gearin in her
official capacity as Chief Judge of the Ramsey County
District Court, Respondents; League of Minnesota Cities,
et al., Intervenors.
Supreme Court.
Petition for writ of quo warranto is dismissed as moot. Chief Justice Lorie S. Gildea.
Concurring, Justices Paul H. Anderson and David R. Stras.
Dissenting, Justice Alan C. Page.

OPINIONS FILED NOVEMBER 30, 2011

A09-1776 In re: Individual 35W Bridge Litigation.
A09-1778
Court of Appeals.
The 2007 amendments to Minn. Stat. § 541.051 (2010) do not clearly and manifestly express a legislative intent to retroactively revive an action for contribution previously extinguished by the statute of repose before the amendments were effective.
Affirmed. Justice Christopher J. Dietzen.

A10-87 In re: Individual 35W Bridge Litigation.
A10-89
A10-90
A10-91
Court of Appeals.
1. The 2007 amendments to Minn. Stat. § 541.051 (2010) do not clearly and manifestly express a legislative intent to retroactively revive a cause of action previously extinguished by the statute of repose before the amendments were effective.
2. The “notwithstanding” clause of the compensation statutes, Minn. Stat. § 3.7394, subd. 5(a) (2010), clearly and manifestly expresses legislative intent to retroactively revive the State’s cause of action for statutory reimbursement that was previously extinguished by the statute of repose in Minn. Stat. § 541.051.
3. The reimbursement provision of the compensation statutes, Minn. Stat. § 3.7394, subd. 5(a) (2010), does not violate appellant’s constitutional right to due process by reviving a cause of action for statutory reimbursement previously extinguished by the statute of repose.
4. The compensation statutes, Minn. Stat. §§ 3.7391-.7395, do not result in a substantial impairment of the contract between the State and appellant because the State was not contractually obligated to assert sovereign immunity as a defense to the claims of the individual plaintiffs.
5. Pursuant to the “notwithstanding” clause of Minn. Stat. § 3.7394, subd. 5(a), the State is not barred by either Pierringer releases or the common law doctrine of voluntary payments from asserting its statutory reimbursement claim against appellant.
Affirmed. Justice Christopher J. Dietzen
Concurring, Chief Justice Lorie S. Gildea.
Concurring, Justice David R. Stras.

Judge Unseals Video of Court Proceedings in Prop 8 Case - Constitutional Law - CourtSide

2011-09-20T06:01:00.000-07:00

Judge Unseals Video of Court Proceedings in Prop 8 Case - Constitutio nal Law - CourtSide

FEATURED DOCUMENT

JUDGE UNSEALS VIDEO OF COURT PROCEEDINGS IN PROP 8 CASE
(FindLaw's Courtside) - A federal judge in San Francisco has ordered the unsealing of digital recordings made of court proceedings in the challenge to Proposition 8, the California ballot measure that created a state constitutional ban on same-sex marriages. The judge issued the order after finding no compelling reason to keep the recordings under seal. Share:

RealEstateDiscrimination 27-cv-26849_TaxCourt

2011-09-12T06:39:00.000-07:00

Documents 1 to 1 of 1

1.	27-CV-10-26849
	*Abstract:* Class action, discrimination, equal protection, due process, motion to dismiss. STATE OF MINNESOTA TAX COURT FOURTH JUDICIAL DISTRICT COUNTY OF HENNEPIN REGULAR DIVISION Idowu Odunlade, Jose Llangari and Andrea Kral, on behalf of themselves and all other similarly situated, Petitioners, ORDER vs. File No

The index is up-to-date.

Page 1 of 1

E OF MINNESOTA TAX COURT

FOURTH JUDICIAL DISTRICT

COUNTY OF HENNEPIN REGULAR DIVISION


Idowu Odunlade, Jose Llangari and Andrea Kral, on behalf of themselves and all other similarly situated, Petitioners,		ORDER

vs.		File No.	27-CV-10-26849

City of Minneapolis, City of Minneapolis Assessor’s Office, City of Minneapolis Assessor Patrick J. Todd, in his personal capacity, County of Hennepin, Hennepin County Assessor’s Office, Hennepin County Assessor James R. Atchison, in his personal capacity,
		Dated: August 31, 2011
	Respondents.

The Honorable Sheryl A. Ramstad, Judge of the Minnesota Tax Court, heard this matter on August 25, 2011, at Courtroom 310, Minneapolis City Hall, Minneapolis, Minnesota.

David L. Wilson, Attorney at Law, Wilson Law Group, and Michael D. Gavigan, John E. Braun, Jonathon Moore, and Katherine Pasker, Student Attorneys under the Senior Practice Rule, represented Petitioners.

Mark Chapin, Deputy County Attorney and Lisa Hahn-Cordes, Assistant Hennepin County Attorney, represented the Respondents Hennepin County, Hennepin County Assessor’s Office, and County Assessor James R. Atchison. Deputy City Attorney Peter Ginder, Assistant City Attorneys James Moore, Amanda Trelstad and Gregory Sautter represented the Respondents City of Minneapolis, the City of Minneapolis Assessor’s Office and City of Minneapolis Assessor Patrick J. Todd.

The Court, upon all of the files, records and proceedings herein, now makes the following:

ORDER

1. The Motion for Judgment on the Pleadings brought on behalf of the County of Hennepin, Hennepin County Assessor’s Office, and Hennepin County Assessor James R. Atchison is granted with respect to the allegations against them set forth in Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, and 30.

2. Hennepin County shall be dismissed from this action.

3. The Motion to Dismiss brought on behalf of the City of Minneapolis, City of Minneapolis Assessor’s Office, and City of Minneapolis Assessor Patrick J. Todd is granted with respect to the allegations against them set forth in Counts 1, 2, 3, 4, 5, 8, 9, 11, 13, 14, 15, 16, 17, 21, 22, 24, 26, 27, 28, and 30.

4. The City of Minneapolis shall be dismissed from this action.

IT IS SO ORDERED. LET JUDGMENT BE ENTERED ACCORDINGLY. A STAY OF FIFTEEN DAYS IS HEREBY ORDERED. THIS IS A FINAL ORDER.

	BY THE COURT,







	Sheryl A. Ramstad, Judge
	MINNESOTA TAX COURT

DATED: August 31, 2011

Memorandum

Background

Idowu Odunlade, Jose Llangari and Andrea Karl, on behalf of themselves

and all others similarly situated (“Petitioners”), filed a Complaint in District Court

on November 19, 2010, alleging that City of Minneapolis, City of Minneapolis

Assessor’s Office, and City of Minneapolis Assessor Patrick J. Todd (“the City

Respondents”) and Hennepin County, Hennepin County Assessor’s Office, and

Hennepin County Assessor James R. Atchison (“the County Respondents”)

discriminated against them and others similarly situated in the Camden, Near

North Minneapolis, and the Phillips communities in making property tax

assessments. They allege that their property taxes have been unfairly high due

to incorrect or inaccurate valuations of their real property. The claims are

premised upon their belief that the tax assessment and methodology used by

both the City and the County are flawed and resulted in discriminatory

treatment. In response, the County Respondents filed a Motion to Transfer the

case to the Tax Court. The City Respondents also supported that Motion.

By Order of Hennepin County District Court Judge Joseph R. Klein dated

March 4, 2011, the Motion to Transfer to Tax Court was granted. [1]The County

Respondents now brings a Motion for Judgment on the Pleadings based upon

Petitioners’ failure to state a claim upon which relief can be granted, and the City

Respondents have filed a Motion to Dismiss Plaintiff’s Amended Complaint

pursuant to Minnesota Rules of Civil Procedure, Rule 12.02.

The Amended Complaint

In their 75-page Amended Complaint dated December 2, 2010, Petitioners

seek relief under both state and federal law for alleged improper assessments

of their properties and those of other, as yet unidentified, property owners in their

respective neighborhoods. The following paragraphs summarize the 30 counts

set forth in Petitioners’ Amended Complaint:

Count 1 seeks declaratory judgment and alleges a violation of the U.S.

Constitution Amendment XIV, Equal Protection Clause by the County Assessor,

in concert with the City Assessor, in the assessment of residential real property in

the City of Minneapolis for taxes payable in 2009.

Count 2 alleges a 42 USC § 1983 claim against all County and City

Respondents for violating the Equal Protection Clause in the assessment of

residential real property in the City of Minneapolis for taxes payable in 2009.

Count 3 alleges a violation of Minnesota Constitution Art. I, §§ 2 and 16

(Minnesota Equal Protection Clause) by all County and City Respondents in the

assessment of residential real property in the City of Minneapolis for taxes

payable in 2009.

Count 4 seeks declaratory judgment and alleges the City violated the U.S.

Constitution, Amendment XIV (procedural due process) in the valuation and

classification of residential property owners in the City of Minneapolis.

Count 5 seeks declaratory judgment and alleges the County violated the

U.S. Constitution, Amendment XIV (procedural due process) through the form of

the Truth-in-Taxation Statement issued to residential property owners in the City

of Minneapolis for taxes payable in 2009.

Count 6 alleges a 42 USC § 1983 claim against the County for violating

the U.S. Due Process Clause based on the form of the Truth-in-Taxation

Statement issued to residential property owners in the City of Minneapolis for

taxes payable in 2009.

Count 7 alleges the County violated the Minnesota Constitution Art. 1,

§ 8 Due Process Clause based upon the form of the Truth-in-Taxation

Statement issued to residential property owners in the City of Minneapolis for

taxes payable in 2009.

Count 8 seeks declaratory judgment and alleges all County and City

Respondents violated the Minnesota Constitution, Art. X, § 1, Uniformity in

Taxation, in the assessment of residential real property in the City of Minneapolis

for taxes payable in 2009.

Count 9 alleges all County and City Respondents violated the Minnesota

Constitution, Art. X, § 1, Uniformity in Taxation, in the assessment of

residential real property in the City of Minneapolis for taxes payable in 2009.

Count 10 seeks declaratory judgment and alleges a violation of Minn.

Stat. § 273.061, subd. 8 (1) by the County in the assessment of residential real

property in the City of Minneapolis for taxes payable in 2009.

Count 11 seeks declaratory judgment and alleges a violation of Minn.

Stat. § 273.11 against all County and City Respondents in the assessment of

residential real property in the City of Minneapolis for taxes payable in 2009.

Count 12 alleges a violation of Minn. Stat. § 273.061, subd. 8 (1) by the

County in the assessment of residential real property in the City of Minneapolis

for taxes payable in 2009.

Count 13 alleges a violation of Minn. Stat. § 273.11 by all County and City

Respondents in the assessment of residential real property in the City of

Minneapolis for taxes payable in 2009.

Count 14 seeks declaratory judgment and alleges a violation of the U.S.

Equal Protection Clause by the County Assessor, in concert with the City

Assessor in the assessment of residential real property in the City of Minneapolis

for taxes payable in 2010.

Count 15 alleges a 42 USC § 1983 claim against all County and City

Respondents for violated the U.S. Equal Protection Clause in the assessment of

residential real property in the City of Minneapolis for taxes payable in 2010.

Count 16 alleges a violation of the MN Equal Protection Clause by all

County and City Respondents in the assessment of residential real property in

the City of Minneapolis for taxes payable in 2010.

Count 17 seeks declaratory judgment and alleges the City violated the

U.S. Constitution Due Process Clause in the valuation and classification of

residential real property in the City of Minneapolis for taxes payable in 2010.

Count 18 seeks declaratory judgment and alleges the County violated the

U.S. Due Process Clause through the form of the Truth-in-Taxation Statement

issued to residential property owners in the City of Minneapolis for taxes payable

in 2010.

Count 19 alleges a 42 USC § 1983 claim against the County for violating

the U.S. Due Process Clause based upon the form of the Truth-in-Taxation

Statement issued to residential property owners in the City of Minneapolis for

taxes payable in 2010.

Count 20 alleges the County violated the Minnesota Due Process Clause

based on the form of the Truth-in-Taxation Statement issued to residential

property owners in the City of Minneapolis for taxes payable in 2010.

Count 21 seeks declaratory judgment and alleges all County and City

Respondents violated the Minnesota Constitution, Art. X, §1, Uniformity in

Taxation, in the assessment of residential real property in the City of Minneapolis

for taxes payable in 2010.

Count 22 alleges all County and City Respondents violated the Minnesota

Constitution, Art. X, § 1, Uniformity in Taxation, in the assessment of

residential real property in the City of Minneapolis for taxes payable in 2010.

Count 23 seeks declaratory judgment and alleges a violation of Minn.

Stat. § 273.061, subd. 8 (1) by the County in the assessment of residential real

property in the City of Minneapolis for taxes payable in 2010.

Count 24 seeks declaratory judgment and alleges a violation of Minn.

Stat. § 273.11 against all County and City Respondents in the assessment of

residential real property in the City of Minneapolis for taxes payable in 2010.

Count 25 alleges a violation of Minn. Stat. § 273.061, subd. 8 (1) by the

County in the assessment of residential real property in the City of Minneapolis

for taxes payable in 2010.

Count 26 alleges a violation of Minn. Stat. § 273.11 by all County and City

Respondents in the assessment of residential real property in the City of

Minneapolis for taxes payable in 2010.

Count 27 seeks declaratory judgment and alleges a violation of the U.S.

Equal Protection Clause by the County Assessor, in concert with the City

Assessor, in the assessment of residential real property in the City of

Minneapolis for taxes payable in 2011.

Count 28 seeks declaratory judgment and alleges all County and City

Respondents violated the Minnesota Constitution, Art. X, §1, Uniformity in

Taxation, in the assessment of residential real property in the City of Minneapolis

for taxes payable in 2011.

Count 29 seeks declaratory judgment and alleges a violation of Minn.

Stat. § 273.061, subd. 8(1) by the County in the assessment of residential real

property in the City of Minneapolis for taxes payable in 2011.

Count 30 seeks declaratory judgment and alleges a violation of Minn.

Stat. § 273.11 against all County and City Respondents in the assessment of

residential real property in the City of Minneapolis for taxes payable in 2011.

To summarize, Counts 1, 2, 3, 8, 9, 10, 11, 12, 13, 14, 15, 16, 21, 22, 23,

24, 25, 26, 27, 28, 29, and 30 are claims which have an underlying basis in the

assessment of residential property in the City of Minneapolis, while Counts 5, 6,

7, 18, 19, and 20 are claims which have an underlying basis in the Truth-in-

Taxation Statement issued to residential property owners in the City of

Minneapolis. Counts 4 and 17 allege that the City’s Notice of Valuation and

Classification violated Petitioner’s due process rights.

Facts

The following facts are not in dispute:

1. Each of the named Petitioners owns residential property in Hennepin

County.

2. Petitioners assert their properties have been overvalued for purposes

of property taxation. Specifically, Petitioners claim that Respondents

assessed their properties at inflated values compared to the properties’

market values and seek a systematic reassessment of all residential

property in the communities for the tax assessment years 2008, 2009,

and 2010.

3. When Petitioners’ properties were taxed, the assessors determined the

market value by considering the value of nearby properties, but

excluded those bank transactions they found to be forced sales.

4. Between March and May of each assessment year, the City mailed

“value notices” to each Petitioner, containing his/her property’s

estimated market value, classification, the dates of the Local Board of

Review and County Board of Equalization, and other information

pursuant to Minn. Stat. § 273.121. These notices were mailed out at

least ten days prior to the meeting of the Local Board of Review, which

meets between April 1 and May 31 of each year pursuant to Minn. Stat.

§ 274.01.

5. In November of each year, the County mailed Truth-in-Taxation

Statements to all Petitioners, stating the properties’ estimated market

values and estimated proposed property taxes for the coming year.

6. By March 31 of each year, the County mailed property tax statements

that included the properties’ estimated market value, the properties’

classifications, and the amount of tax payable, along with other

information.

7. Because the City of Minneapolis is a city of the first class, the

Minneapolis City Assessor’s Office performs the duties of the county

assessor within the city.

8. None of the Petitioners served and filed a Chapter 278 tax petition on

or before April 30 of the year in which the tax became payable.

9. None of the Petitioners pursued any of the three administrative

remedies authorized by Minnesota law to challenge their tax

assessments.

10. None of the Petitioners claim to have not received the value notices,

Truth-in-Taxation Statements, or property tax statements that were

mailed to them.

Standard of Review

The Minnesota Tax Court follows the Rules of Civil Procedure for the

district courts where practicable.[2] Minnesota Rules of Civil Procedure, Rule 12.02

states that “lack of subject matter jurisdiction” and “failure to state a claim under

which relief can be granted” are defenses which may be made by motion at the

option of the pleader.[3] Rule 12 provides for dismissal of a complaint where

the complainant has not stated a cognizable claim or cause of action under the

substantive law. When considering a motion to dismiss, courts assume that the

allegations of the complaint are true.[4]

On a motion to dismiss for failure to state a claim, a complaint must be

dismissed if it fails to set forth “a legally sufficient claim for relief.”[5] Dismissal is

appropriate if the moving party can demonstrate that it is not possible to grant

relief on any evidence that might be produced consistent with the complaint.[6]

Courts are not bound by legal conclusions stated in a complaint when

determining whether the complaint states a claim upon which relief can be

granted.[7] To survive a motion to dismiss, a plaintiff must plead facts that “raise a

right to relief above the speculative level.”[8]

Claims against County Respondents

Truth-in-Taxation Statement

There is no dispute that for taxes assessed in 2008, 2009, and 2010, the

Hennepin County Auditor-Treasurer prepared and mailed Truth-in-Taxation

Statements to the owners of residential property in the City of Minneapolis. It is

also undisputed that the Truth-in-Taxation Statements were in the form

prescribed by the Commissioner of Revenue according to Minn. Stat. § 275.065, which provides as follows:

Subd. 3. Notice of proposed property taxes. (a) The county auditor

shall prepare and the county treasurer shall deliver after November 10

and on or before November 24 each year, by first class mail to each taxpayer at the address listed on the county’s current year’s assessment roll, a notice of proposed property taxes. (b) The commissioner of revenue shall prescribe the form of the notice.

Petitioners’ Amended Complaint pleads six counts against the County

Respondents related to the Truth-in-Taxation Statement.[9] The County argues

that the counts fail to state a claim upon which relief can be granted because the

County is without discretion in the information that must or may be included with

the Statement. We agree.

Minnesota Statute Section 645.44, subdivision 16 states that the word

“shall” is mandatory. In other words, Minn. Stat. § 275.065 mandates that the

county auditor prepare and deliver a notice of proposed property taxes between

November 10 and 24 of each year and that the Commissioner of Revenue

prescribe the form of the notice. These actions are “ministerial” duties. In Kelly v.

City of Minneapolis,[10] the Minnesota Supreme Court defined “ministerial” duties

as “‘absolute, certain, and imperative, [and] involv[ing] merely execution of a

specific duty arising from fixed and designated facts.’”[11] “A ministerial duty is

simple and definite, leaving nothing to the discretion of the official.”[12]

Here, Petitioners do not claim that the County’s Truth-in-Taxation

Statements failed to contain the information spelled out in the statute. Nor do

they claim they did not receive the Statements. Rather, Petitioners argue that the

legal notices were deficient because they were based upon alleged

impermissible and discriminatory valuation practices. Petitioners claim that

because of these practices, the Statements did not constitute sufficient notice to

the Petitioners as required by statute.

The County argues that what is required under Minn. Stat. § 645.44, subd.

16, is that the Hennepin County Auditor-Treasurer prepare the Truth-in-Taxation

Statement, in the form prescribed by the Commissioner of Revenue, and mail the

notice to each property owner. Further, the County claims that since there is no

discretion under the statute with respect to the preparation, content, and mailing

of the Statements, the County simply is performing its ministerial duties in acting

according to statute. Additionally, the County urges us to dismiss Counts 5, 6, 7,

18, 19, and 20 for failure to state a claim upon which relief can be granted

because the County lacks discretion as to the information that may or must be

included in the Truth-in-Taxation Statement.

The Minnesota Supreme Court’s definition of “ministerial duties” stated in

Kelly,[13] includes the County’s actions in preparing and sending out the Truth-in-

Taxation Statements to Petitioners. Minnesota Statute Section 275.065,

subdivision 3(a) imposes a mandatory, nondiscretionary, ministerial duty to

prepare and mail the Truth-in-Taxation Statement in the form prescribed by the

Commissioner, and the County is without discretion in the information that must

be included in the Statement or that may be included with the Statement. In this

case, there is no claim that the Truth-in-Taxation Statements sent by the County

did not comport with the statutes under which they were sent. The County

exercised no discretion as to the content, timing, or preparation of the

Statements. Rather, they were done according to the statute and sent in the

manner prescribed. Under the circumstances, we find that the County was simply

satisfying ministerial duties in preparing and sending out the Statements to

Petitioners.

Petitioners next challenge the Statements that the County sent, alleging

they did not adequately inform taxpayers of the exclusion of bank sales by the

assessor in valuing their properties. In Programmed Land, Inc. v. O’Connor, [14]

the Minnesota Supreme Court defined the requirements for a property tax notice

as follows:

In the context of challenges to property taxes, notice need not

expressly identify every factor and decision that went into the determination of the estimated or final tax on the parcel. The

taxpayer may not know for certain whether the estimated tax is

lawful or correct by looking at the notice, but the taxpayer is on

notice that a tax of an estimated amount will be levied according to

the stated value of the property…[T]he federal and state constitutions require that the taxpayer have an opportunity to question the validity

and amount of the tax, not be apprised of all elements of the tax that

might contain errors. Such a lengthy document not only would be burdensome to local governments but likely would go unread by taxpayers.[15]

Petitioners make no claim that the Statements they received did not

contain the information required by statute or that they were not sent according to

the required procedure. Instead, Petitioners claim that the notices were

inadequate because they failed to set forth the manner in which the assessments

were done—that is, the assessor’s decision to exclude bank sales as forced

sales from the comparables he considered. Petitioners’ position, however, is

unsupported under Minnesota case law.[16] The Statements gave the taxpayers

adequate notice from which to inquire as to the basis of the tax and then

challenge it if the taxpayers believed the taxes were calculated improperly.

Petitioners’ final assertion that the County’s inaction constitutes malice

is not substantiated by the factual allegations in the Complaint. There is no

allegation that the County intentionally did a wrongful act or willfully violated a

known right by sending out the Truth-in-Taxation Statements to Petitioners.

Because the County Respondents were simply carrying out their

ministerial duties under Minn. Stat. § 275.065, subd. 3(a), and because there is

no evidence in the record to substantiate Petitioners’ claims that they did not

receive adequate notice or that the County acted maliciously in following the

letter of the law, Counts 5, 6, 7, 18, 19, and 20 must be dismissed for failure to

state a cause of action.

Assessment of Market Value

All real property in the state of Minnesota is taxable.[17] The Minnesota

Legislature prescribes the procedures, rates, and exemptions that cities must

follow when taxing real property.[18] All parties agree that the City of Minneapolis

Assessor’s Office performs the duties of the county assessor within the city

because Minneapolis is a city of the first class.[19]

Petitioners’ Complaint includes 22 counts which plead claims against the

County related to the assessment of residential property in the City of

Minneapolis.[20] It is undisputed that the City of Minneapolis is a city of the first

class pursuant to Minn. Stat. § 410.01 and that as a city of the first class, the

Minneapolis City Assessor has the powers and performs the duties ascribed to a

county assessor pursuant to Minn. Stat. § 273.063.[21] Petitioners claim that

despite the statute, the County Respondents retain specific responsibilities that

include the City of Minneapolis and cannot be allowed to remain complicit in

allegedly known illegal practices and benefit from them through increased

revenues. The County Respondents argue that since the Hennepin County

Assessor has no authority to review, correct, or in any way supervise the

assessment practices of the City of Minneapolis Assessor, Petitioners have no

cause of action against them. We agree.

Petitioners cite no authority for their argument that Section 273.061 does

not permit the City of Minneapolis to have sole authority to assess properties

within its boundaries. In fact, Section 273.063, in relevant part, provides, “[i]n

counties having a city of the first class, the powers and duties of the county

assessor within such city shall be performed by the duly appointed city

assessor.” Petitioners argue that a county retains those Section 273.063 duties

which exceed the boundaries of a city of the first class. While that may or may

not be the case, here there is no dispute that the parties are seeking relief with

respect to properties that are located within the City’s boundaries. Petitioners’

argument that the county assessor is granted specific duties according to statute

is correct as far as it goes, but that does not prevent those duties from being

performed by the city assessor pursuant to Section 273.063.

. In Northwestern National Life Ins. Co. v. County of Hennepin,[22] we found

the Hennepin County Assessor should not be a party in an appeal of the market

value of property located in the City of Minneapolis because the City Assessor

was independent of the supervision of the county assessor, and the county

assessor had no statutory right or duty to assess property within the City of

Minneapolis or to supervise the assessments of the city assessor pursuant to

Minn. Stat. §§ 410.01 and 273.063.

Since the Hennepin County Assessor has no authority to review, correct,

or in any way supervise the assessment practices of the City of Minneapolis

Assessor, Petitioners have failed to state a claim against County Respondents

upon which relief can be granted. Thus, the County’s Motion to Dismiss is

granted with respect to the remaining allegations against them set forth in Counts

1, 2, 3, 8, 9, 10, 11, 12, 13, 14, 15, 16, 21, 22, 23, 24, 25, 26, 27, 28, 29, and 30.

The County shall be dismissed from this action.

Claims Against City Respondents

Petitioners’ Failure to Pursue Chapter 278 Petitions

The City Respondents argue that a petition under Minn. Stat. Ch. 278 is

the appropriate remedy for challenging property taxes on five statutorily

enumerated bases, namely allegedly improper valuation, classification,

exemption, unfair assessment, or illegality. Because Petitioners seek to

challenge the valuations of their properties, the City Respondents contend they

should have pursued Chapter 278 petitions. Inasmuch as Petitioners do not

challenge the constitutionality of any Minnesota statute, the City Respondents

argue that Petitioners could and should have sought relief under Chapter 278.

The statutory framework requires that petitions only challenge one

assessment year and must be filed by April 30^th of the year that the tax becomes

payable.[23] Petitioners’ Complaint in this matter was filed on November 7, 2010,

and it was not served in the manner required by Chapter 278. Petitioners’

Amended Complaint was then filed on or about December 2, 2010, correcting the

previous deficiency in service. Thus, the City Respondents argue that Petitioners

cannot be permitted to avoid the filing deadlines set forth in the statute by

recasting their claims related to their 2008 and 2009 assessments in the rubric of

constitutional jurisprudence. As for the 2010 assessment, the City Respondents

claim the Amended Complaint is fatally deficient because it includes multiple

petitioners.

Under Minnesota law, a property taxpayer can contest the valuation of his

or her property in one of four main ways. First, before the Local Board of

Review meets, a property owner may request a change informally by contacting

the local assessor.[24] Second, a property owner can appear before the Local

Board of Review or County Board of Equalization to contest the valuation of their

property.[25] Third, a property owner may file an abatement pursuant to Minn.

Stat. § 375.192, subd. 2, challenging the valuation of his/her property and

seeking reduction of the property’s estimated market value or taxes that were

erroneously or unjustly paid.[26] Fourth, a property owner may serve and file a

Chapter 278 tax petition to contest the valuation of their property, among other

challenges.[27] None of the Petitioners pursued any of the three administrative

remedies or the Chapter 278 petition remedy to challenge their property tax

assessments.

A petition under Minn. Stat. Ch. 278 is the appropriate remedy for

challenging property taxes on five statutorily enumerated bases, namely

improper valuation, classification, and exemption, unfair assessment, or

illegality.[28] Chapter 278 benefits both taxpayers and local governments—

providing taxpayers with an efficient mechanism to object to property taxes, and

also providing for the prompt collection of taxes and ensuring a reliable stream of

revenue for local governments.[29] The City argues that Minn. Stat. Ch. 278

provides a process to challenge any alleged issues in the assessment of

Petitioners’ properties in past years, and that their failure to do so precludes them

from now bringing those claims after the statutory time for appeal has lapsed.

The City further argues that Petitioners should not be permitted to abrogate the

statute of limitations set forth in Section 278.01 and subvert the policies the time

limitation was intended to serve.

Again, we turn to Programmed Land, Inc.[30] where the Minnesota Supreme

Court addressed a case similar to the one we consider in which the taxpayers

failed to avail themselves of adequate statutory remedies to challenge the

application of class rates by the assessor. The Supreme Court found that the

assessor’s acts, which the taxpayers claimed resulted in the partial, unfair, or

unequal assessment of property were subject to challenge under Minn.

Stat. § 278.01, subd. 1, and having failed to avail themselves of adequate

statutory remedies, the taxpayers could not seek to pursue equitable or common

law causes of action. Because the taxpayers had an adequate remedy provided

by statute under Chapter 278 and through local review and abatement to seek

redress, the Supreme Court refused to allow them to pursue an independent

cause of action in order to claim their constitutional due process rights or equal

protection rights had been violated.

Similarly, Petitioners in this case seek to challenge alleged issues of the

assessment of their properties. Specifically, Petitioners contend that the City

incorrectly excluded a certain type of open market sales—namely, bank sales--,

resulting in non-uniform assessment and Petitioners bearing disproportionate

shares of property taxes compared to those residential property owners whose

homes are located in other communities. Clearly, this is related to the

assessment process, which Chapter 278 was designed to address. Because

Petitioners did not timely and properly pursue relief under the statute, they

cannot now challenge the valuation of their properties by recasting their claims

under constitutional law theories.

Petitioners next claim that they were unaware of the assessor’s practice of

excluding certain sales of residential property at the time they were notifies of

each year’s property tax valuations. The City Respondents argue that Petitioners’

alleged ignorance of the basis for their assessments in prior tax years does not

excuse their failure to pursue their statutory remedies. We agree. “[A] person

who pays an illegal or irregular tax, even if ignorant that the tax is illegal or

irregular, is not entitled to recover the tax in equity when that person has a

statutory remedy by review, appeal or defense to proceedings to enforce the

tax.”[31] Here, Chapter 278 provided a process to challenge any alleged issues in

the assessments of Petitioners’ properties in past years. Petitioners’ failed to file

petitions in 2008 and 2009 and cannot now seek to resuscitate claims from those

tax years. The Complaint to challenge assessments made in 2008 (payable

2009) and 2009 (payable 2010) was not filed until December 2, 2010, so that

Petitioners are untimely in challenging the 2008 and 2009 assessments.

As for 2010 (payable 2011) taxes, although the Amended Complaint was

timely served as a Chapter 278 petition, the City contends the pleading is fatally

defective because it includes multiple petitioners. The City relies upon Rau v.

County of Kandiyohi[32] in which this Court held that petitioners must file their

petitions individually and not as a group. Since all Petitioners filed jointly the

Amended Complaint, and the time to remedy this procedural defect has passed,

the City Respondents argue they are entitled to dismissal of the action because it

is, in essence, an untimely and deficient tax petition. Petitioners claim that the

plain language of Minn. Stat. § 278.01 does not require that tax appeals be

brought individually, citing several cases allowing a Chapter 278 appeal to

proceed with multiple petitioners. We disagree. First, we note that Minn. Stat. §

278.01, subd. 1(a) specifies that “[a]ny person…may have the validity of [their]

claim…determined…by the Tax Court by serving [a petition].” The language

refers in the singular to a “person.” In Rau,[33] we previously ruled “that there was

no authority under section 278.01, subd. 1, for the filing of petitioners’ multiple-

party petition.” Similarly, we find Petitioners in this case must file their petitions

individually, not as a group.[34] Further, the cases[35] cited by Petitioners are

distinguishable in that the multiple petitioners all maintained an interest in the

same property or the actions of multiple petitioners were consolidated by the

court after the individual petitions had been filed. That is not the situation in the

case now before us. Thus, as for the 2010 assessment, we find the pleading is

fatally deficient because it includes multiple petitioners and different properties

and must be dismissed.

Petitioners’ Constitutional Claims

Petitioners’ Amended Complaint alleges violations of their Equal

Protection and Due Process rights under the United States Constitution through

42 U.S.C. §1983. The City contends that claims involving prayers for monetary

damages or declaratory or injunctive relief in state tax matters under §1983 are

barred by law, these counts should be dismissed. Petitioners rely upon general

constitutional principles including fundamental fairness in arguing that they

present actionable claims under the Minnesota and U.S. Constitutions.

The United States Supreme Court held that Section 1983 claims for

damages in state tax cases were improper in Fair Assessment in Real Estate

Assn. v. McNary.[36] Affirming the dismissal of an action seeking compensatory

and punitive damages for deprivation of equal protection and due process rights

when state taxes were allegedly assessed unequally, the Court reasoned that the

principle of comity bars money damages from federal courts in tax matters under

§1983 where there is a plain, adequate, and complete state remedy.[37]

In National Private Truck Council, Inc. v. Oklahoma Tax Commission,[38]

the United States Supreme Court extended the prohibition of Section 1983

actions regarding state tax challenges to state courts. In that case, plaintiffs

brought a class action in state court challenging state taxes under § 1983,

seeking injunctive and declaratory relief.[39] The United States Supreme Court

affirmed the Oklahoma Supreme Court’s conclusion that neither injunctive nor

declaratory relief is available in state tax cases under a Section1983 theory, even

if brought in state court, when there is an adequate legal remedy.[40] “[W]e hold

that § 1983 does not call for either federal or state courts to award injunctive and

declaratory relief in state tax cases.”[41]

Since National Private Truck Council, state courts have further recognized

that there is no Section1983 claim for damages in state tax cases where an

adequate state law remedy exists.[42] Their rationale is clearly used to avoid

throwing state tax administration into disarray, allowing taxpayers to escape

ordinary procedural requirements imposed by state law.[43] Tax appeal remedies

in Minnesota have been ruled to be plain, speedy, and efficient, with Chapter 278

providing “an adequate, speedy, and simple remedy for any taxpayer to have the

validity of his claim, defense or objections determined by the district court.”[44]

“Viewing Ch. 278 in its entirety, we conclude that, in the interest of a better tax-

collection practice, the legislature intended that it should provide the exclusive

means by which a taxpayer may assert the defense of an unfair or unequal

assessment.”[45]

The City Respondents argue that Petitioners fail to state claims for

violations of Procedural Due Process and Equal Protection. In Programmed

Land, Inc., the Minnesota Supreme Court discussed the due process implications

when a plaintiff contended that its property taxes infringed upon those rights. The

Court found that “[d]ue process does not require any particular form of process

as long as it provides notice and a meaningful opportunity to be heard. Based

upon the variety of means provided in Minnesota Statutes to challenge property

taxes, we conclude that respondents received constitutionally sufficient due

process.” [46] Moreover, the United States Supreme Court has found, “It is well

established that a state need not provide predeprivation process for the exaction

of taxes.”[47]

Here, Petitioners had both notice of their property taxes and an

opportunity to be heard regarding any dispute of the assessed value of their

properties. Petitioners do not dispute that they received notice of their property

taxes through the City’s value notices and the County’s Truth-in-Taxation

Statements. Because Petitioners agree that they received both notice and an

opportunity to be heard, they fail to state a claim for a due process violation.

Similarly, Petitioners assert that their properties were assessed at higher

ratios when compared to other communities in violation of their equal protection

rights. It is important to note that Petitioners have not challenged the

constitutionality of the Minnesota Tax Code. Instead, Petitioners make

conclusory allegations that the City Respondents intentionally or arbitrarily valued

their properties at a lower rate than other properties. To survive a motion to

dismiss, the Petitioners must plead facts that “raise a right to relief above the

speculative level.”[48]

We now turn to the adequacy of Minnesota Statute Chapter 278 as a

remedy for Petitioners in this case. In Programmed Land, Inc., the Minnesota

Supreme Court held that Minn. Stat. §278.01 is the appropriate statutory remedy

for challenging property taxes on the statutorily enumerated bases including

valuation, unequal assessment, illegality, classification, and exemption. While the

Court did not determine that Chapter 278 provides the exclusive judicial means

to bring all property tax challenges, it is the proper remedy in most circumstances

for those five types listed in the statute. In this case, because assessment and

illegality (the constitutional violation claims) are among the five types of claims

listed in the statute and given the reluctance to allow injunctive or declaratory

relief, we find that Minn. Stat. Chapter 278 is the appropriate procedural remedy

for Petitioners’ claims. We, therefore, dismiss their requests for a declaratory

judgment and dismiss the claims brought under Section 1983.

Lastly, we address Petitioners’ claims for damages under the Minnesota

Constitution. The City Respondents assert that unlike the federal cause of action

created under 42 U.S.C. §1983, Minnesota has no statutory scheme providing for

private actions based on violations of the Minnesota Constitution. We agree.[49]

Thus, Petitioners’ claims for damages under the Minnesota Constitution fail to

state a cause of action and shall be dismissed.

Declaratory Judgment Act Claims

Petitioners seek to bring a variety of claims under the Uniform Declaratory

Judgments Act, Minn. Stat. Ch. 555. Petitioners’ claims seek to remedy

supposed violations of their federal constitutional rights. The Minnesota Supreme

Court has held that “the Declaratory Judgments Act is not available to test

questions of valuations or assessments in real estate tax matters.”[50] The

Minnesota Supreme Court specifically addressed the unavailability of the Act to

challenge taxes in Land O’Lakes Dairy Co. v. City of Sebeka,[51] stating as

follows:

In order that there shall be no future confusion on this particular

point of the law, we hold that in enacting M.S.A. Ch. 278 it was the intention of the legislature to provide an adequate, speedy, and simple remedy for any taxpayer to have the validity of his claim, defense,

or objections determined by the district court in matters where the taxpayer claims that his real estate has been partially, unfairly, or unequally assess, or that it has been assessed at a value greater

than its real or actual value.

The Court determined that in real estate matters, Minnesota Statutes Chapter

278 is the taxpayer’s remedy, and “the Uniform Declaratory Judgments Act [] is

not available…as an alternative remedy.”[52]

Therefore, Petitioners may not bring declaratory judgment causes of

action when the claims are more properly brought under Chapter 278. Because

Petitioners have an available statutory remedy, we dismiss their claims for

declaratory relief.

Mandamus Claim

In order to be entitled to mandamus relief, Petitioners must show three

elements: (1) the failure of an official to perform a duty clearly imposed by law;

(2) a public wrong specifically injurious to petitioner; and (3) no other adequate

remedy.[53] Mandamus “shall not issue in any case where there is a plain, speedy,

and adequate remedy in the ordinary course of law.”[54] Here, it is not alleged that

the City Assessor failed to perform a duty clearly imposed by law; in fact, the very

acts he performed are those ministerial acts which he did according to statute.

Petitioners admit that he performed his duty imposed by law to assess properties

in the City.[55] Thus, Petitioners fail to allege facts that meet the first element under

the mandamus analysis—failure to perform a duty clearly imposed by law. In

addition, Petitioners fail to state a claim that meets the third element under the

mandamus analysis because there is an adequate remedy at law. For these

reasons, we find Petitioners’ mandamus claims are dismissed.

Conclusion

In view of the foregoing, the claims set forth in the Amended Complaint

against the City and County Respondents shall be dismissed. Based upon this

result, the City’s claims of immunity and that the Petitioners have improperly

named the City of Minneapolis Assessor’s Office need not be addressed.

S. A. R.

[1] This Court does not have original jurisdiction to hear an appeal challenging the constitutionality of government actions. However, in the March 4, 2011, Transfer Order transferred to the Tax Court the district court’s full legal and equitable powers to determine all matters that might come before us pursuant to the Erie shuffle. Erie Mining Co. v. Commissioner of Revenue, 343 N.W.2d 261 (Minn. 1984).

[2] Minn. Stat. § 271.06, subd. 7 (2000).

[3] Minn. R. Civ. P. 12.02 (a) & (e).

[4] Wiegand v. Walser Automotive Groups, Inc.. 683 N.W.2d 807, 811 (Minn. 2004).

[5] Bodah v. Lakeville Motor Express, 663 N.W.2d 550, 553 (Minn. 2003).

[6] Id.

[7] Herbert v. City of Fifty Lakes, 744 N.W.2d 226, 235 (Minn. 2008).

[8] Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Hebert v. City of Fifty Lakes, supra and Bahr v. Capella University, 788 N.W.2d 76, 80 (Minn. 2010) (both referencing Twombly

standard).

[9] The six counts include 5, 6, 7, 18, 19, and 20.

[10] 598 N.W.2d 657, 664 (Minn. 1999).

[11] Id., quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937).

[12] Id.

[13] Kelly v. City of Minneapolis, 598 N.W.2d at 664.

[14] 633 N.W.2d 517, 529 (Minn. 2001).

[15] Id.

[16] Programmed Land, supra; Certain Lands in Redwood County, 40 Minn. 512, 518, 42 N.W. 473,

475 (1889).

[17] Amended Complaint ¶ 93.

[18] See Minn. Stat. Chs. 270-89.

[19] Amended Complaint ¶ 98; Defendant City of Minneapolis, City of Minneapolis Assessor’s Office and Patrick Todd’s Memorandum of Law in Support of Motion to Dismiss, p. 2; Memorandum of Respondent’s County of Hennepin, Hennepin County Assessor’s Office, and Hennepin County Assessor James R. Atchison, p. 9.

[20] The counts are 1, 2, 3, 8, 9, 10, 11, 12, 13, 14, 15, 16, 21, 22, 23, 24, 25, 26, 27, 28, 20, and

30.

[21] Amended Complaint ¶¶ 7 & 8.

[22] File No. 18797 (Minn. Tax Ct. July 21, 1994).

[23] Minn. Stat. §§ 278.01, subd. 1(c), 278.02.

[24] See, Minn. Stat. § 273.01.

[25] Minn. Stat.. §§ 274.01, subd. 1; 274.13.

[26] Id.

[27] Minn. Stat. § 278.01.

[28] See, Minn. Stat. § 278.01; Programmed Land, Inc., 633 N.W.2d at 523.

[29] See, Programmed Land, Inc., 633 N.W.2d at 525-26.

[30] Id.

[31] Programmed Land, Inc., 633 N.W.2d at 522 citing Gould v. Bd. of Comm’rs of Hennepin

County, 79 N.W. 303 (Minn. 1899).

[32] File Nos. C8-86-533, C8-86-550, C8-86-567 (Minn. Tax Ct. Feb. 24, 1987).

[33] Id.

[34] Minn. Stat. § 278.01.

[35] In Arcadia Development Corp. v. Hennepin County, the taxpayers were not challenging their property tax assessments pursuant to Chapter 278, but rather brought a class action asserting that the county underpaid interest on real estate refunds. In L.G.S.R.G. et al. v. O’Connor et al., File No. 97-567 (Minn. Tax Ct. Oct. 30, 1998) it is unclear what properties were involved, and the action was not a property tax appeal brought pursuant to Minn. Stat. Ch. 278. In H.J. of M. Land Venture et al. v. Hennepin County, File No. TC-1207 (Minn. Tax Ct. July 26, 1993), the multiple petitioners held interests in the same parcel of land. Similarly, in Community Housing Development Corp. v. Hennepin County, File No. TC-18582 (Minn. Tax Ct. Oct. 6, 1993) multiple petitioners brought an appeal pursuant to the same parcel of land.

[36] 454 U.S. 100, 102 (1981).

[37] Id. at 116.

[38] 515 U.S. 582, 589 (1995).

[39] Id. at 583-84.

[40] Id. at 589.

[41] Id.

[42] See Gen. Motors Corp. v. City of Linden, 671 A.2d 560, 565 (N.J. 1996), cert. denied 519 U.S. 816 (1996); Gen. Motors Corp. v. City & County of San Francisco, 69 Cal. App.4^th 448, 457-61 (Cal. Ct. App. 1999); PPG Ind., Inc. v. Tracy, 659 N.E.2d 1250, 1252 (Ohio 1996); Murtagh v. County of Berks, 715 A.2d 548, 550-51 (Pa. Commw. Ct. 1998). See Allright Parking Minnesota, Inc. v. County of Ramsey, File No. C2-01-2979 (Minn. Tax Ct. Mar. 27, 2002).

[43] See Empress Casino Joliet, Corp. v. Baltimore Racing Club, ___F.3d___, No. 09-3975 (7^th Cir. July 8, 2011).

[44] Land O’Lakes Dairy Co. v. Village of Sebeka, 31 N.W.2d 660, 665 (Minn. 1948).

[45] State v. Elam, 84 N.W.2d 227, 281 (Minn. 1957).

[46] Programmed Land, Inc., 633 N.W.2d at 528-29.

[47] McKesson v. Div. of Alcoholic Beverages, 496 U.S. 18, 37 (1990).

[48] Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Hebert v. City of Fifty Lakes, 744 N.W.2d 226, 235 (Minn. 2008) and Bahr v. Capella University, 788 N.W.2d 76, 80 (Minn. 2010) (both referencing Twombly standard).

[49] See Jones v. James, 2005 WL 459652 (D. Minn. Feb. 24, 2005) (citing Bird v. State Dept. of Public Safety, 375 N.W.2d 36, 40 (Minn. App. 1985)); see also North Star Legal Foundation v. HoneywellProject, 355 N.W.2d 186, 188 (Minn. App. 1984).

[50] Fitchner v. Schiller, 135 N.W.2d 877, 881 (Minn. 1965).

[51] 31 N.W. 2d at 662.

[52] Id.

[53] Demolition Landfill Services, LLC. V. City of Duluth, 609 N.W.2d 278, 280 (Minn. Ct. App. 2000).

[54] Minn. Stat. § 586.02.

[55]Am. Comp. ¶¶ 12 and 13.

CityMorrisvSaxInvestments_749NW2 i(Minn.2008)

2011-07-17T08:24:00.000-07:00

Minnesota State Law Library

Minnesota Appellate Court Briefs Collection

Shown here are the statements of the issues presented for review by the appellate courts in the briefs filed for this case. The entire brief set can be found at the State Law Library and other libraries around the state. See Minnesota Appellate Court Briefs Collection for more information.

CASE NAME: City of Morris, Respondent, vs. Sax Investments, Inc., Appellant.
Read the opinion in this case at A06-1188
CITATION: 749 N.W.2d 1 (Minn. 2008)

Legal Issues in APPELLANTS' BRIEF, APPENDIX AND ADDENDUM:
WHETHER THE MINNESOTA STATE BUILDING CODE PREEMPTS THE FOUR PROVISIONS OF THE CITY OF MORRIS RENTAL HOUSING ORDINANCE AT ISSUE IN THIS CASE? The Trial Court, and the Minnesota Court of Appeals, in a published opinion filed on May 1, 2007, held that the applicable regulations in the Morris City Code at issue in this case were not preempted by the Minnesota State Building Code. Apposite Authorities: Minnesota Statutes § 16B 62; Morris City Code, Section 4.32; City of Minnetonka v. Mark Z. Jones Assoc., 236 N.W2d 163 (Minn. 1975).

Legal Issues in RESPONDENT'S BRIEF:
1. Whether the State Building Code preempts local ordinances designed to protect the health, safety, and welfare of residents living in rental housing that do not affect any integral part of the construction of such buildings. In a published opinion filed May 1, 2007, the Minnesota Court of Appeals, upholding the District Court's decision in this matter, held that the State Building Code preempts local attempts to regulate construction, alteration, remodeling, and restoration of residential housing but does not preempt local authorities from creating and enforcing habitability standards for rental housing. Thus, the State Building Code did not preempt the City of Morris' rental housing ordinance provisions at issue in this matter. Most apposite cases, statutes, and code provisions: City of Minnetonka v. Mark Z. Jones Assoc., 236 N.W.2d 163 (Minn. 1975); Minn. Stat. § l6B.59 et seq.; Morris City Code, § 4.32.
2. Whether properties used for rental housing have non-conforming use rights under the Minnesota State Building Code if existing conditions are "dangerous to life." Having held that the Minnesota State Building Code did not preempt the city regulations at issue, the lower courts did not address the question. Most apposite cases and rules: Guidelines for Rehabilitation of Existing Buildings, § 104; Crazy Water Retirement Hotel v. State of Texas, 54 S.W.3d 100 (Tex. Ct. App.-Eastland 2001).

Legal Issues in BRIEF OF AMICUS CURIAE CITY OF ROCHESTER:
Whether the state law that prohibits cities from "regulating components or systems of any residential structure that are different from any provision of the State Building Code" act to prohibit cities from regulating rental housing using ordinances that impose habitability standards that do not affect an integral part of the design or construction of buildings. The Court of Appeals held that the State Building Code preempts cities from regulating the construction, alteration, remodeling and restoration of residential housing, but does not preempt the regulation of rental housing habitability standards.

Legal Issues in BRIEF FOR THE CITY OF SAINT PAUL AS AMICUS CURIAE SUPPORTING RESPONDENT:
The City of Saint Paul concurs with the City of Morris' Statement of the Legal Issues.

Legal Issues in BRIEF OF AMICUS CURIAE LEAGUE OF MINNESOTA CITIES:
State law provides that cities must not "require building code provisions regulating components or systems of any residential structure that are different from any provision of the State Building Code." Does state law preempt cities from regulating the business of rental housing by adopting ordinances that impose standards of habitability that do not affect an integral part of the design or construction of buildings? The court of appeals held that the State Building Code preempts cities from regulating the construction, alteration, remodeling, and restoration of residential housing but does not preempt local authorities from creating and enforcing standards of habitability for rental housing.

Also filed: APPELLANTS' REPLY BRIEF

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MN v.Jyll A.Gudvangen CX-00-267

2010-06-06T08:42:00.000-07:00

2000 Minn. App. LEXIS 1241,*

State of Minnesota, Respondent, vs. Jyll A. Gudvangen, Appellant.

CX-00-267

COURT OF APPEALS OF MINNESOTA

2000 Minn. App. LEXIS 1241

December 5, 2000, Filed

NOTICE:

[*1] THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.

PRIOR HISTORY:

Polk County District Court. File No. K399176.

DISPOSITION:

Affirmed.

COUNSEL: Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, St. Paul, MN; and Wayne H. Swanson, Polk County Attorney, Crookston, MN (for respondent).

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, Minneapolis, MN (for appellant).

JUDGES: Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Peterson, Judge.

OPINION BY: WILLIS

OPINION

UNPUBLISHED OPINION

WILLIS, Judge

Appellant challenges an order denying her pretrial notice to remove, in which she argued that all judges in the judicial district should have been disqualified from hearing her case. Appellant also argues that the district court erred in refusing to admit testimony that supported her claim that she did not perform legal services in exchange for money. Because we find no abuse of discretion, we affirm.

FACTS

In February 1999, appellant Jyll A. Gudvangen was charged with one count of aggravated forgery, two counts of felony theft by swindle, [*2] one count of offering a forged court order, one count of unauthorized practice of law, and one count of wrongfully obtaining assistance (food stamps).

In April 1999, appellant filed a notice to remove, by which she sought to disqualify all the judges of the judicial district in which she was to be tried from hearing her case on the ground that she had been married to the present chief judge of the judicial district from 1980 to 1984. In an accompanying affidavit, appellant also described briefly certain disputes, now resolved, between herself and the chief judge over child rearing and child support. The assistant chief judge of the judicial district denied the notice to remove.

At her trial, appellant sought to call four witnesses, each of whom was prepared to testify that appellant had provided him or her with assistance in a quasi-legal matter without seeking payment. The district court did not allow these witnesses to testify, and the jury found appellant guilty of all the charges. This appeal followed.

DECISION

Appellant contends that the denial of her notice to remove all judges of the judicial district warrants a new trial. The state argues that appellant is precluded [*3] from appealing the denial of her notice to remove because she failed to seek a writ of prohibition. "The proper remedy to pursue when a motion to remove has been denied is to seek a writ of prohibition." State v. Cermak, 350 N.W.2d 328, 331 (Minn. 1984). Appellant failed to seek a writ of prohibition, but she argues that the Minnesota Supreme Court's holding in Jones v. Jones, 242 Minn. 251, 64 N.W.2d 508 (1954), allows a reviewing court to grant a new trial after a notice to remove is denied even when the defendant has not sought a writ of prohibition. But Jones does not stand for this proposition. Jones did not involve the denial of a notice to remove, but rather the district court's refusal to recognize the defendant's affidavit of prejudice on the ground that it was filed too late. n1 The supreme court, noting that the deadline for filing an affidavit of prejudice should be given a liberal construction, determined that the affidavit had been timely filed and ordered a new trial before another judge. Id. at 260, 64 N.W.2d at 514-15; see also Ellis v. Minneapolis Comm'n on Civil Rights, 295 N.W.2d 523, 525 (Minn. 1980) [*4] (citing Jones for the proposition that "failure to honor a proper affidavit of prejudice is reversible error requiring a new trial."). Here, the district court accepted affidavits from both appellant and her attorney and allowed appellant and the state to file memoranda before it issued its order denying her notice to remove. At that point, the proper remedy was for appellant to seek a writ of prohibition.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1

Before 1985, Minnesota Rule of Civil Procedure 63.03 referred to a "notice to remove" as an "affidavit of prejudice."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

But even if appellant did not waive her right to appeal the denial of her notice to remove by failing to seek a writ of prohibition, we conclude that her appeal fails on the merits. Appellant argues that the assistant chief judge of the judicial district erred in denying her notice to remove all the judges of the judicial district. Whether to grant a notice to remove based on allegations of actual prejudice is a matter in the district court's discretion. See Durell v. Mayo Found., 429 N.W.2d 704, 705 (Minn. App. 1988) [*5] , review denied (Minn. Nov. 16, 1988). Appellate review of the denial of a notice to remove is limited to determining whether the district court abused its discretion. See State v. Pero, 590 N.W.2d 319, 326 (Minn. 1999) (stating that because there was no claim that recusal was absolutely required by applicable rule, "we must only determine if the trial court abused its discretion in not granting the motion for recusal").

Removal of a judge in a criminal proceeding is governed by Minn. Stat. § 542.16 (1998) and Minn. R. Crim. P. 26.03. Rule 26.03, subdivision 13(4), provides that after a criminal defendant has disqualified a judge as a matter of right under Minn. Stat. § 542.16, subd. 1, a defendant may disqualify a substitute judge only upon an affirmative showing of cause. To make an affirmative showing of cause, a litigant must show that a judge's impartiality might reasonably be questioned. State v. Laughlin, 508 N.W.2d 545, 548 (Minn. App. 1993). Applying this standard to the facts here, because appellant made no affirmative showing of cause regarding any judge other than her former husband, we find no abuse of discretion in the denial [*6] of appellant's notice to remove all the judges of the judicial district.

Appellant also argues that she should be granted a new trial because the district court abused its discretion in excluding testimony from four persons, each of whom was prepared to testify that appellant had provided him or her with assistance in a quasi-legal matter without seeking payment. Appellant contends that this evidence was relevant to the charge that she had engaged in the unauthorized practice of law because it tended to show that she did not perform legal services in exchange for money. She claims that exclusion of this evidence denied her the constitutional right to present a defense.

A criminal defendant "has the right to be treated with fundamental fairness and 'afforded a meaningful opportunity to present a complete defense.'" State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L. Ed. 2d 413 (1984)); accord U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7. But evidence offered must comply with the rules of evidence. State v. Wolf, 605 N.W.2d 381, 384 (Minn. 2000) [*7] (citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297 (1973); State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999), cert. denied, 120 S. Ct. 153 (Oct. 4, 1999)). In a case where the defendant alleges that her constitutional rights were violated by the exclusion of evidence, appellate review is limited to asking whether the district court abused its discretion. State v. Tovar, 605 N.W.2d 717, 722 (Minn. 2000) (citing State v. Gustafson, 379 N.W.2d 81, 84 (Minn. 1985)).

At trial, appellant's counsel offered the four individuals' testimony as character evidence, twice stating that it was not offered as evidence of habit. The district court ruled that the expected testimony was both irrelevant and inadmissible as character evidence.

The Minnesota Rules of Evidence provide that "evidence which is not relevant is not admissible." Minn. R. Evid. 402.

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

[*8] Minn. R. Evid. 401. The rules further provide that evidence, though relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Minn. R. Evid. 403. Because the very slight probative value of the proposed testimony was substantially outweighed by the danger that it would confuse the issues, and mislead the jury, and by considerations of undue delay and waste of time, the district court did not abuse its discretion in excluding the proposed testimony on relevance grounds.

Further, evidence of a person's character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. Minn. R. Evid. 404(a). But the rule does allow "evidence of a pertinent trait of character offered by an accused" to be introduced. Minn. R. Evid. 404(a)(1). The rules of evidence generally limit proof of character to reputation testimony in the form of an opinion. Minn. R. Evid. 405. But in cases in which character or trait of character of a person is an essential [*9] element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

Minn. R. Evid. 405(b). The charge of unauthorized practice of law did not put appellant's character at issue, and none of the defenses appellant raised to that charge involved character as an essential element. The district court did not abuse its discretion in ruling that the proposed testimony was inadmissible as character evidence.

Appellant claims on appeal that the proposed testimony alternatively should have been admitted as evidence of habit. Minnesota law provides that a party may not "obtain review by raising the same general issue litigated below but under a different theory." Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Because appellant did not seek to introduce the proposed testimony at trial as evidence of habit, this argument is not properly before us.

Affirmed.

St.PaulPolice v.CitySt.Paul A09-1349

2010-05-19T10:14:00.000-07:00

This opinion will be unpublished and

may not be cited except as provided by

We the Citizens must get rid of these Unpublished Opinions for our Public Safety

Minn. Stat. § 480A.08, subd. 3 http://www.mncourts.gov/opinions/coa/current/opa091349-0518.pdf(2008).

STATE OF MINNESOTA
IN COURT OF APPEALS
A09-1349

St. Paul Police Federation, Appellant, vs. City of St. Paul, et al., Respondents.

Filed May 18, 2010
Affirmed
Stoneburner, Judge

Ramsey County District Court

File No. 62CV085530

Christopher K. Wachtler, Mark Gehan, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, Minnesota (for appellant)

Gerald T. Hendrickson, Interim St. Paul City Attorney, Portia Hampton-Flowers, Assistant City Attorney, St. Paul, Minnesota (for respondents)

Considered and decided by Stauber, Presiding Judge; Stoneburner, Judge; and Minge, Judge.

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

Appellant union challenges summary judgment granted to respondents dismissing claims that respondents violated the Public Employment Labor Relations Act. We affirm. 2

FACTS

In May and September 2007, appellant St. Paul Police Federation (union), the exclusive representative for certain job classifications in the city’s police department,1 notified the respondent City of St. Paul by letter, on three occasions, that the city’s use of non-union personnel to do work performed by union members at the impound lot and in questioning juvenile runaways was subject to mandatory bargaining under the parties’ collective bargaining agreement (CBA). In the fall of 2007, city and respondents Police Chief John Harrington and Office of Human Resources Director Angela Nalezny (collectively, the city) accepted an 18-month federal grant for $259,977 to establish a "cold-case unit" designed to solve "cold," or unsolved, homicide cases by using DNA evidence. The grant provided that the cold-case unit was to be staffed by non-union retired homicide investigators.

1 The union is the exclusive representative for the job classifications of Senior Commander, Commander, Sergeant, and Police Officer, referred to as "sworn" positions that can only be held by licensed peace officers.

In December 2007, the Union sued the city for violation of the Public Employment Labor Relations Act (PELRA). Initially, the lawsuit alleged only the use of non-union staff to question juvenile runaways, replacement of a union Commander with a non-union employee at the St. Paul Impound Lot, and use of a senior clerical employee in the records unit in a position previously occupied by a union Sergeant. But in an amended complaint, the union alleged that the use of non-union retired police officers as analysts or investigators in the cold-case unit without notice or negotiations also constituted an unfair labor practice. 3

In November 2008, the union sought a temporary restraining order (TRO) alleging irreparable harm if the city was not restrained from implementing or continuing the complained-of personnel actions. The union asserted that the cold-case unit would directly impact (1) the number of Investigative Sergeants in the union; (2) the capacity to train veteran investigators; (3) the quality of investigations; and (4) the members’ promotional and investigative-experience opportunities. The district court denied the motion for a TRO, noting the short duration of the grant, the possibility that the grant could be lost if the cold-case unit were operated outside the grant’s parameters,2 and the public interest in implementing the grant to demonstrate the need for permanent funding for a cold-case unit benefitting the public and the union.

2 In the grant application, the city indicated that it would rely on the experience of retired investigators if it secured the grant.

The city then moved for summary judgment, and the union moved for partial summary judgment. By the time of the hearing on the summary judgment motions, the sole remaining issue was whether establishment of the research-analyst positions in the cold-case unit violated PELRA and the CBA. The district court granted summary judgment to the city, concluding that (1) the union failed to submit evidence that only sworn officers can or did perform the functions of a research analyst in the cold-case unit; (2) no terms and conditions of employment of union members changed by the addition of the cold-case unit research-analyst positions; and (3) no union members were denied 4

career advancement opportunities by establishment of the cold-case unit.3 This appeal follows.

3 The district court correctly noted in its memorandum that, pursuant to the CBA, were the cold-case unit to become permanent, the parties’ dispute regarding staffing of that unit "shall" be submitted to the Bureau of Mediation Services for a determination of whether the research analyst positions in the cold-case unit should be included or excluded from the CBA.

D E C I S I O N

"On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[ ] erred in [its] application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We review both the existence of genuine fact issues and application of the law de novo. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 77 (Minn. 2002). We view the evidence in the light most favorable to the party against whom summary judgment was granted. Id. at 76–77.

The provision of the CBA relevant to this appeal is article 5.2, which states that the "functions and programs of the [city], its overall budget, utilization of technology, and organizational structure and selection," are "matters of inherent managerial policy." This clause is comparable to the PELRA provision stating that

[a] public employer is not required to meet and negotiate on matters of inherent managerial policy. Matters of inherent managerial policy include, but are not limited to, such areas of discretion or policy as the functions and programs of the employer, its overall budget, utilization of technology, the organizational structure, selection of personnel, and direction and the number of personnel. 5

Minn. Stat. § 179A.07, subd. 1 (2008). PELRA imposes on public employers the "obligation to meet and negotiate in good faith . . . regarding grievance procedures and the terms and conditions of employment." Id. subd. 2 (2008). "Terms and conditions of employment" are defined as hours, compensation, certain benefits, and "personnel policies affecting the working conditions of the employees." Minn. Stat. § 179A.03, subd. 19 (2008). The Minnesota Supreme Court has recognized that terms and conditions of employment and matters of inherent managerial policy often overlap and at times are far from distinct. City of W. St. Paul v. Law Enforcement Labor Servs., Inc., 481 N.W.2d 31, 33 (Minn. 1992); Law Enforcement Labor Servs., Inc., v. County of Hennepin, 449 N.W.2d 725, 727 (Minn. 1990).

I. Establishment of cold-case unit research-analyst positions does not affect the terms and conditions of Union members’ employment.

The union concedes that the city has an inherent managerial right to create a cold-case unit. But the union argues that the city violated the CBA and PELRA by staffing the cold-case unit with non-sworn-peace-officer non-union employees. The union argues that the city’s practice amounts to contracting out work traditionally performed by union members "and/or [contracting out] work members would hope to be able to do as part of the departmental career track," thereby affecting its members’ terms and conditions of employment. But, as noted by the district court, the union failed to present evidence that only sworn officers can perform or already do perform the duties of a cold-case-unit research analyst, and failed to present evidence that any of its members have actually been denied career advancement opportunities due to staffing of the cold-case unit. 6

The union compares its case to Gen. Drivers Union Local 346 v. Indep. Sch. Dist. No. 704, in which the employer school district proposed to lay off union bus drivers and contract the work to non-union members. 283 N.W.2d 524, 526 (1979). The supreme court concluded that "whether or not an employee’s job will be terminated so that the same function can be performed by a non-unit employee is a subject contemplated for negotiation as a term and condition of employment." Id. at 527 n.1. But here, no union members were doing the work of a cold-case-unit research analyst: no union positions had to be eliminated and no union members were replaced by non-union personnel.

The union argues that the Gen. Drivers holding is not limited to "situations where union members lose their jobs or are displaced by non-union personnel," and cites Foley Educ. Ass’n v. Indep. Sch. Dist. No. 51, 353 N.W.2d 917, 923 (Minn. 1984), for the proposition that an unfair labor practice can exist where the decision to employ non-union personnel "had a direct adverse impact on the employment opportunities for . . . members of the bargaining unit." In Foley, the supreme court concluded that, "the school district’s unilateral action in assigning to persons who were not [union-member] teachers study hall supervisory duties traditionally assigned to teacher union members, changed the unit work jurisdiction and, therefore, constituted an unfair labor practice." Id. at 924.

But, like Gen. Drivers, Foley involved assigning non-union members to jobs already being done by union members. Gen. Drivers, 283 N.W.2d at 526; Foley, 921 N.W.2d at 920. In contrast, the cold-case unit did not reassign the duties of any union members to non-members. The cold-case analyst position was a new job classification involving no duties that required a sworn peace officer and did not affect any existing 7

officers’ jobs or duties. The union concedes that it "presented no evidence that any . . . member was denied career advancement opportunities, . . . promotion, or a request to take on additional responsibilities." The union has not offered any evidence to refute the affidavit of cold-case-unit supervisor, Sergeant Anita Muldoon (a union member), that research analysts in the cold-case unit are not performing the law enforcement duties of a homicide investigator as alleged by the union.

The union has not produced evidence to sufficiently demonstrate that creation of the federally funded cold-case unit, which is staffed by non-union personnel, affects its members’ hours of employment, compensation, fringe benefits, or personnel policy which, under Minn. Stat. § 179A.03, subd. 19, constitute the terms and conditions of employment, that if changed, must be negotiated. The union’s speculations and arguments are not sufficient to overcome summary judgment. See DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997) (stating that a plaintiff must provide more than mere assertions to survive summary judgment). The district court did not err by concluding that the union failed to present evidence creating a material fact question about whether the terms and conditions of members’ employment were changed by staffing the cold-case unit with non-union temporary research analysts. The grant of summary judgment to the city was appropriate.4

4 Despite conceding that the city has an inherent managerial right to create a cold-case unit, the union nonetheless argues that the city should have created the unit differently, arguing that there is no evidence that the federal government required that the unit be staffed with non-union peace officers. The union argues that the city could have asked the funding authority about a change in the proposal to use union officers as research analysts, stating that the funding authority "undoubtedly would have considered the 8

City’s violating state law as a compelling reason to at least consider allowing [the city] to implement the program . . . using [union] personnel, and likely would not have withheld its concurrence for making that simple adjustment." But this argument assumes that staffing the unit with non-union personnel violated PELRA, and we have concluded that it did not.

II. Documents and notations not in the record are not considered.

The city alleges in its brief that certain documents in the union’s appellate-brief appendix were not submitted to the district court. Under Minn. R. Civ. App. P. 110.01, "[t]he papers filed in the [district] court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal." Documents included in a party’s brief that are not properly part of the appellate record may be stricken. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993).

A review of the district court record reveals that two of the seven documents the city alleges were not part of the record are, in fact, not in the record. The affidavit of Christopher K. Wachtler and the inter-office memorandum from John Harrington are nowhere in the district court record and should not have been included in the union’s appendix. But neither these documents nor handwritten notes that appear on other documents in the union’s appendix, which are also outside the record, have been relied on in reaching our decision. Therefore, the city’s request to strike these documents and notations is moot.

Affirmed.

Homestead Estate WmEckley A09-937 MNCourts

2010-04-11T15:49:00.000-07:00

STATE OF MINNESOTA IN COURT OF APPEALS

A09-937
In re the Estate of: William Henry Eckley, IV, a/k/a William H. Eckley, Deceased
Filed April 6, 2010
Reversed and remanded
Connolly, Judge
Hennepin County District Court
File No. 27-PA-PR-04-958
Gayle Gaumer, Wilson Law Firm, Edina, Minnesota (for appellant)
Steven Theesfeld, R. Thomas Greene, Jr., Yost & Baill, Minneapolis, Minnesota (for respondent)
Considered and decided by Connolly, Presiding Judge; Hudson, Judge; and Johnson, Judge.

S Y L L A B U S
For purposes of determining whether a homestead exemption exists, mental incapacity is a legal disability that exempts a homestead owner from the six-month notice-filing requirement of Minn. Stat. ¡× 510.07 (2008).
https://www.revisor.mn.gov/statutes/?id=510

O P I N I O N
CONNOLLY, Judge

Appellant challenges the district court.s determination that decedent.s house was not a homestead property that passed to her by statute. She also challenges the district court.s alleged failure to award her additional money as a family allowance and an elective share of personal property due to a surviving spouse. Because the district court
2
erred in its determination that decedent.s mental incapacity was not a legal disability, and because its findings are insufficient to permit effective appellate review of appellant.s family-allowance and elective-share issues, we reverse and remand.

FACTS
Decedent William Henry Eckley, IV met appellant Erlinda Samaniego Eckley in the Philippines in 1997. They were married on November 16, 1999, when he was 53 and she was 50 years old. Although appellant and decedent married in the Philippines in 1999, she experienced immigration difficulties and was unable to come to the United States until after his death. During this time, decedent made annual winter visits to the Philippines but maintained his primary residence in Northome, Minnesota. Decedent.s last trip to the Philippines was in the winter of 2000-2001. While there, he had a stroke in January 2001. Decedent returned to the United States in March.but not to his house in Northome; he subsequently had a second stroke and experienced serious complications from artery surgery.

He never returned to his home in Northome, and he died on June 27, 2004.
Decedent.s estate has a long and litigious history. The district court appointed Claire Eckley, decedent.s sister, as the general conservator of decedent.s estate in September 2001. The court found that, due to multiple strokes and other serious medical complications, decedent was unable to communicate or make decisions, and was thus unable to protect his estate.
In July 2004, appellant petitioned for formal probate of decedent.s will and for the appointment of a special administrator. The district court issued an order appointing
3
respondent Alternate Decision Makers, Inc., as special administrator of decedent.s estate. The court found that appellant needed financial and other assistance to obtain a visa and to travel to Minnesota to be present for and participate in decedent.s funeral and burial.

Claire Eckley was discharged as conservator by the district court in September 2005. Claire Eckley and appellant disputed the validity of appellant.s marriage to decedent. This was a major issue because decedent.s will and codicil predated his marriage to appellant, and the parties recognized that appellant was only entitled to an intestate share of decedent.s estate if the marriage was valid. The court issued an order on June 23, 2006, declaring the marriage valid and formally probating decedent.s will and codicil. This rendered appellant decedent.s sole heir at law.

Numerous petitions and objections were presented to the district court. Relevant to this appeal, respondent petitioned the district court for an order authorizing it to sell the Northome real estate. Appellant petitioned and counter-petitioned the district court for an order denying respondent.s petition to sell the real estate, instructing respondent to pay appellant additional money in family allowance and statutory elective personal property, and declaring the homestead status of the Northome property. The district court issued an order declaring that decedent.s house was neither his nor appellant.s homestead and allowing a modified version of respondent.s final account.1 This appeal follows.
1 The order was submitted and recommended by a district court referee and became effective when countersigned by the district court judge. See Minn. Stat. ¡× 484.70, subd. 7(e) (2008).
4 https://www.revisor.mn.gov/statutes/?id=484.70

ISSUES
I. Did the district court err in determining that the real property was not decedent.s homestead at the time of his death?
II. Did the district court err in determining that the real property was not independently appellant.s homestead, whether or not it remained decedent.s homestead at the time of his death?
III. Did the district court err in declining to award appellant the maximum amount of family allowance and elective share authorized by statute?

ANALYSIS
This case involves the interpretation of statutes and application of caselaw, which are questions of law subject to de novo review. Great W. Cas. Co. v. Barnick, 542 N.W.2d 400, 401 (Minn. App. 1996). When, as here, the material facts are not in dispute, we do not defer to the district court.s application of the law. In re Collier, 726 N.W.2d 799, 803 (Minn. 2007). A district court.s findings of fact shall be set aside only if they are clearly erroneous. Minn. R. Civ. P. 52.01. On appeal, harmless error is to be ignored. Minn. R. Civ. P. 61.
I.
Minn. Stat. ¡× 524.2-402 (2008) deals with how a homestead is treated for purposes of estate administration. A homestead that ¡°passes by descent or will¡± to a decedent.s surviving spouse ¡°is exempt from all debts which were not valid charges on it at the time
5
of decedent.s death,¡± with exceptions not relevant here.2 Minn. Stat. ¡× 524.2-404(c). In cases not involving the decedent.s descendants, the homestead descends to a surviving spouse ¡°free from any testamentary or other disposition of it to which the spouse has not consented in writing.¡± Id.

(a)(1). Subject to exceptions for mortgages and liens on the property not relevant to this case, a homestead is exempt from a creditor.s claims. Minn. Stat. ¡×¡× 510.01, .05 (2008). https://www.revisor.mn.gov/statutes/?id=510

Debtor-creditor law defines a homestead as ¡°[t]he house owned and occupied by a debtor as the debtor.s dwelling place, together with the land upon which it is situated.¡± Minn. Stat. ¡× 510.01. This definition is also applicable in probate law; courts read debtor-creditor statutes pertaining to homesteads to fill in the relevant gaps in the probate statutes. In re Estate of Bonde, 694 N.W.2d 74, 76 (Minn. App. 2005); In re Estate of Riggle, 654 N.W.2d 710, 714 (Minn. App. 2002). Property ceases to be the owner.s homestead when the owner abandons his home. Minn. Stat. ¡× 510.07. A homestead is deemed abandoned if the owner does not occupy it for more than six consecutive months and the owner does not file notice with the county recorder claiming it as his homestead. Id. Even if the homestead owner files the required notice, the exemption may not continue more than five years after the filing ¡°unless during some part of the term the premises shall have been occupied as the actual dwelling place of the debtor or the debtor.s family.¡± Id.
Despite the statutory notice requirement, longstanding caselaw establishes that an owner is not required to file such notice if he is under a legal disability that precludes him
2 A homestead may be subject to claims for state hospital care or medical-assistance benefits. Minn. Stat. ¡× 524.2-402(c).
6
from filing it. Millett v. Pearson, 143 Minn. 187, 189, 173 N.W. 411, 412 (1919). Thus, in Millett, the supreme court held that an incarcerated person does not abandon his homestead. Id. The court explained that ¡°persons under legal disability or restraint or persons in want of freedom are incapable of losing or gaining a residence by acts performed by . . . others¡± because such persons are not ¡°capable of acting for themselves.¡± Id. Similarly, in Beigler v. Chamberlin, the supreme court held that a person does not lose his homestead rights if his non-occupancy is caused by his involuntary commitment to an insane asylum. 145 Minn. 104, 107-08, 176 N.W. 49, 50 (1920).

In contrast, the supreme court later held in Muscala v. Wirtjes that a homeowner.s confinement to a nursing home did not exempt him from section 510.07.s requirement that he file notice if not actually occupying the property, despite the man.s expressed intent and desire to return home. 310 N.W.2d 696, 698 (Minn. 1981). Applying Muscala to hold that a female owner who was confined to a nursing home and failed to file the required notice was deemed to have abandoned her homestead, this court explained that ¡°a need for physical care outside of the home is not tantamount to involuntary commitment¡± or incarceration. In re Estate of Hoffman, 354 N.W.2d 581, 583 (Minn. App. 1984), review denied (Minn. Jan. 2, 1985).
Subsequently, the supreme court reaffirmed the continued vitality of Millett and Beigler, holding that a person who was found to be a danger to himself and the public and was involuntarily committed to a state hospital did not abandon his homestead through
7
his absence of more than six months. Eustice v. Jewison, 413 N.W.2d 114, 116, 119 (Minn. 1987). Eustice makes clear that legal disability remains the determinative inquiry:
The court in Muscala expressly did not overrule the prior cases which granted an exemption for legal disability, but, instead, concluded that confinement to a nursing home due to failing health did not constitute legal disability. In the present case, on the other hand, Jewison was under a legal disability for the entire period he was absent from his home. Although Jewison was placed in a nursing home, as was the decedent in Muscala, Jewison remained under a commitment order and was legally required to reside there until his death.
Id. at 119 (citation omitted).
One federal court has explained:
The Minnesota courts have found exception to the physical occupancy requirement in cases involving imprisonment or mental incapacity, but have refused to find exception even where the person is ¡°compelled¡± to live elsewhere. The distinction is that a mentally incapacitated or incarcerated person may be unable to take the statutory steps necessary to preserve his or her homestead rights.
In re Estate of Mueller, 215 B.R. 1018, 1025 (B.A.P. 8th Cir. 1998). A federal court.s interpretation of state law is not binding on this court. State by Hatch v. Employers Ins. of Wausau, 644 N.W.2d 820, 828 (Minn. App. 2002). However, it may be persuasive, and this interpretation of Minnesota caselaw is consistent with the supreme court.s rationale. A person who needs to live in a care facility rather than in his own house due to physical infirmity is still capable of filing the required legal notice, whereas a person who lacks mental capacity is unable to take the necessary legal steps to preserve his homestead rights.
8
Respondent contends that our decision in Hoffman is controlling in this case. In Hoffman, we held that the decedent abandoned her homestead, notwithstanding her ¡°need for physical care outside of the home¡± that resulted in her residence in a nursing home. 354 N.W.2d at 583. Respondent asserts that Hoffman ¡°had been under conservatorship for some years prior to death, which necessarily means a court had found the decedent to be incapacitated.¡± In fact, Hoffman began living in a nursing home in 1973, but her daughter was not appointed as conservator until 1977. Id. at 582. Again, absent legal disability, notice must be filed within six months. Minn. Stat. ¡× 510.07. There is no indication in Hoffman that the decedent was mentally incapacitated prior to appointment of her conservator, which occurred nearly four years after she ceased to reside in her home. Thus, Hoffman is a case about physical health problems; it does not apply to a case about mental incapacity.
Appellant contends that decedent was mentally disabled within the meaning of Minn. Stat. ¡× 541.15 (2008), which deals with statutes of limitations. Specifically, she contends that decedent was legally insane. We disagree. The statute provides that a ¡°plaintiff.s insanity,¡± if ¡°existing at the time when a cause of action accrued or arising anytime during the period of limitation, shall suspend the running of the period of limitation until the same is removed,¡± but except for infancy, the limitations period shall not be extended for more than five years, and not for more than one year after the disability ceases. Minn. Stat. ¡× 541.15(a)(2). By its plain language, section 541.15 tolls the limitations period for bringing suit when a cause of action has accrued, and is therefore inapplicable to the legal duty that section 510.07 imposes on a physically absent
9
owner to file notice claiming his property as his homestead. See Molloy v. Meier, 679 N.W.2d 711, 723 (Minn. 2004) (when unambiguous, the plain language of a statute is controlling).
Despite appellant.s misplaced reliance on the tolling statute, we find merit in her argument that decedent suffered from a legal disability within the meaning of Millett, Beigler, and Eustice. In its order appointing decedent.s sister as conservator of the estate, the district court found that, as a result of multiple strokes, decedent was ¡°confused and unable to make or communicate decisions,¡± could not speak, and was only occasionally able to respond by nodding his head. The court found that decedent lacked sufficient understanding or capacity needed to make or communicate responsible decisions concerning his estate. In its order allowing respondent.s final account and determining the status of decedent.s home, the district court found that decedent never regained his mental capacity.
This case involves a district court.s unchallenged findings concerning the decedent.s mental incapacity and a district court order appointing a conservator to oversee the decedent.s affairs and estate management. In this case, decedent was incapable of taking the legal steps necessary to protect his estate, such as filing notice of homestead status pursuant to Minn. Stat. ¡× 510.07. We therefore hold that decedent.s mental incapacity was a legal disability such that he was not required to file notice claiming his property as his homestead.
Because decedent died less than five years after ceasing to physically occupy the property, section 510.07 did not cut off the homestead exemption and it remained
10
decedent.s homestead at his death. It follows that, for probate purposes, the property was appellant.s homestead at the time of decedent.s death. ¡°If the owner dies leaving a spouse or minor children constituting the owner.s family surviving, the homestead exemption shall not be affected by the death.¡± Minn. Stat. ¡× 510.06 (2008). The district court.s conclusion that the homestead was non-homestead property subject to claims against decedent.s estate was therefore in error.
II.
Appellant contends that even if decedent abandoned the homestead because his mental incapacity was not a legal disability, it was independently her own homestead. Because we hold that mental incapacity is a legal disability within the meaning of Minnesota homestead-exemption cases, it is unnecessary to consider this argument, and we decline to do so.
III.
Appellant contends that she is entitled to additional money for maintenance pursuant to Minn. Stat. ¡× 524.2-404 (2008) and her elective share of personal property pursuant to Minn. Stat. ¡× 524.2-403 (2008). For the reasons that follow, we conclude that the record is inadequate to resolve these contentions.
A surviving spouse ¡°shall be allowed a reasonable family allowance in money out of the estate for [her] maintenance . . . for one year if the estate is inadequate to discharge allowed claims.¡± Minn. Stat. ¡× 524.2-404(a)(1). ¡°The amount of the family allowance may be determined by the personal representative in an amount not to exceed $1,500 per
11
month.¡± Id. (b) (emphasis added). ¡°The family allowance is exempt from and has priority over all claims.¡± Id. (d).
Appellant asserts that the family allowance in an insolvent estate is $1,500 per month for 12 months, and that if the estate possesses sufficient assets to pay the total $18,000 family allowance in full, it must do so. This is incorrect. Section 524.2-404 plainly allows the personal representative.or in this case, the special administrator3.discretion in determining that a reasonable amount of maintenance might be less than the maximum $1,500 per month. Here, the record reflects that appellant received $600 per month for nine months ($5,400 total), plus $3,375.93 toward immigration expenses, which she concedes is part of the family allowance.
Implicit in appellant.s contention is the argument that reasonable maintenance payments must be made for the whole prescribed term of one year. There is textual support for this position, because the word ¡°shall¡± is mandatory, and the statute provides that the family allowance shall be paid for one year. See Minn. Stat. ¡×¡× 524.2-404(a)(1) (stating that, for insolvent estates, a reasonable family allowance ¡°shall be allowed¡± for the maintenance of a surviving spouse ¡°for one year¡±), 645.44, subd. 16 (¡°.Shall. is mandatory.¡±) (2008). However, the statute does not expressly or by necessary implication require that payments be made once per month. We are not free to read into a statute language that the legislature omitted. Northland Country Club v. Comm¡¯r of Taxation, 308 Minn. 265, 271, 241 N.W.2d 806, 809 (1976). Moreover, appellant has
3 ¡°A special administrator appointed by order of the court in any formal proceeding has the power of a general personal representative except as limited in the appointment and duties as prescribed in the order.¡± Minn. Stat. ¡× 524.3-617 (2008).
12
conceded that the money she received toward immigration expenses was part of the family allowance to which she was entitled. If the $600 per month that she received for nine months was adequate or reasonable, then the remaining $1,800 could be deemed subsumed within the additional $3,375.93 received by appellant.
A surviving spouse is also entitled to receive other exempt property from the estate in the form of an elective share of personal property. A surviving spouse is entitled to ¡°one automobile¡± in addition to ¡°property not exceeding $10,000 in value in excess of any security interests therein, in household furniture, furnishings, appliances, and personal effects.¡± Minn. Stat. ¡× 524.2-403(a). If the selected property is worth less than $10,000, the surviving spouse ¡°is entitled to other personal property of the estate, if any, to the extent necessary to make up the $10,000 value.¡± Id. (c). ¡°Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, but the right to any assets to make up a deficiency of exempt property abates as necessary to permit earlier payment of the family allowance.¡± Id. (d).
Appellant argues that she selected personal property worth $100, and that she is therefore entitled to $9,900 ¡°in cash statutory selection.¡± She notes that respondent sold the remainder of decedent.s personal property for $850, which she did not receive. She asserts that the estate possessed sufficient assets to pay her the full $10,000, as well as the full claimed $18,000 in family allowance. Beyond citing to the relevant statutory provisions, appellant presents no reasoning and cites no authority in support of these claims.
13
The district court.s order includes no findings of fact pertaining to how much money appellant received in family allowance pursuant to Minn. Stat. ¡× 524.2-404 or how much value appellant received in her elective share of personal property pursuant to Minn. Stat. ¡× 524.2-403. The district court failed to discuss appellant.s arguments on these claims. Appellant properly raised these claims in the district court, requesting by petition $9,100 plus interest in additional family allowance and $9,900 plus interest in additional exempt property.
At a hearing before the referee, a representative for respondent did testify that appellant received seven payments of $600 in family allowance, plus one $1,200 payment, and that respondent also paid wire-transfer fees and spent money on a hotel room for appellant as well as on immigration-related expenses in an attempt to secure appellant.s passage to the United States, for a total of $11,350. The representative testified that the personal property in the estate4 had an inventory carrying value of $4,700, but that the share not selected by appellant (which she sold for $100) actually sold for $850. The inventory value of all property was a figure taken from the conservator.s inventory, which significantly overstated the property.s actual value.
The record suggests that the district court believed that expenses of administration are not claims against an estate. If the district court.s decision was premised on this theory, then coupled with the estate.s insolvency, that might explain why the court ruled
4 This figure for the value of the estate.s personal property does not include a truck owned by decedent, which had an inventory value of $5,000 but sold for $2,000, which appellant received. The truck should not have been included toward the $10,000 in personal property to which appellant was entitled. See Minn. Stat. ¡× 524.2-403 (surviving spouse may receive personal property up to $10,000 and ¡°one automobile, without regard to value¡±).
14
on which fees respondent could collect but not on appellant.s family-allowance and elective-share arguments, since sections 524.2-403 and 524.2-404 provide that a surviving spouse.s allowance and selected personal property shares have priority over all ¡°claims.¡± However, the relevant statute makes clear that a ¡°claim¡± includes ¡°liabilities of the estate which arise after the death of the decedent including funeral expenses and expenses of administration.¡± Minn. Stat. ¡× 524.1-201(6) (2008).
This court may not determine issues of fact on appeal. Fontaine v. Steen, 759 N.W.2d 672, 679 (Minn. App. 2009). ¡°A reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.¡± Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (emphasis added). Because the district court failed to consider appellant.s arguments and failed to make the findings needed to address these contentions, we remand. Cf. Friend v. Gopher Co., 771 N.W.2d 33, 35 (Minn. App. 2009) (¡°Because the district court.s findings are insufficient to permit reasoned appellate review, we reverse and remand for further findings.¡±).
D E C I S I O N
Because mental incapacity is a legal disability within the meaning of Minnesota homestead law, decedent did not abandon his homestead by not filing the notice normally required by Minn. Stat. ¡× 510.07. As the surviving spouse, the exempt homestead passed by statute to appellant at the time of decedent.s death. The district court.s determination that decedent.s homestead was not appellant.s homestead was therefore in error. Because the district court failed to address appellant.s claims pursuant to Minn. Stat.
15
¡×¡× 524.2-403 and 524.2-404 and failed to make findings sufficient to permit reasoned appellate review, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.

MN A06-840 v.Tom Hanson Finance File9-05-9413QuoWarranto

2010-02-21T11:13:00.000-08:00

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-840

State of Minnesota ex rel.

Speaker of House of Representatives Hon. Steve Sviggum, et al., petitioners,

Appellants,

vs.

Tom Hanson in his official capacity as

Commissioner of Finance or his successor, et al.,

Respondents.

Filed May 22, 2007

Affirmed in part, reversed in part

Lansing, Judge

Ramsey County District Court

File No. C9-05-9413

Erick G. Kaardal, William F. Mohrman, Mohrman & Kaardal, P.A., 33 South Sixth Street, Suite 4100, Minneapolis, MN 55402 (for appellants)

Lori Swanson, Attorney General, Kenneth E. Raschke, Jr., Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondents)

Peter S. Wattson, Senate Counsel, Research, and Fiscal Analysis, 17 State Capitol, St. Paul, MN 55155 (for amicus curiae Eighty-fourth Minnesota Senate)

Considered and decided by Lansing, Presiding Judge; Worke, Judge; and Ross, Judge.

S Y L L A B U S

I. Quo warranto is a special proceeding to challenge an ongoing and unauthorized exercise of official or corporate power; it is not a proceeding to test the constitutionality of a completed disbursement of public funds.

II. A controversy that has been resolved by the legislature in the exercise of its constitutional powers is nonjusticiable because it fails to present a redressable injury that is capable of resolution through the judicial process.

O P I N I O N

LANSING,Judge

This appeal arises out of a district court order authorizing the commissioner of finance to issue checks and process funds necessary to continue core functions of the executive branch after the legislature ended its regular session in May 2005 without funding many executive-branch agencies for the 2005-07 biennium. The temporary funding order expired on July 14, 2005, when the governor signed a bill funding base-level operations for previously unfunded government agencies, provided that the appropriations were retroactive to July 1, 2005, and expressly superseded the district court’s appropriations. More than a month later, a bipartisan group of thirty-two legislators brought this quo warranto action challenging the constitutionality of the commissioner’s disbursement of funds without a legislative appropriation. The district court denied the petition, and the group of legislators appeals.

F A C T S

The Minnesota Legislature ended the 2005 legislative session on May 23, 2005, without appropriating the money necessary to fund significant executive-branch functions for the fiscal biennium beginning on July 1, 2005. The same day, the governor exercised his constitutional power to call a special session to allow the legislature to negotiate the necessary appropriations bills.

On June 15, while the legislature was still in special session, the attorney general filed a petition in district court seeking both a declaration that the executive branch must undertake core functions required by the state and federal constitutions and an order requiring the commissioner of finance to fund those functions. Also on June 15, the governor filed a petition to intervene, requesting similar relief. Although the president of the senate and the speaker of the house were served with an order to show cause why the attorney general’s petition should not be granted, neither body took part in the temporary-funding proceedings.

On June 23, the district court issued an order authorizing the commissioner of finance to continue to fund core government functions in the event the legislature failed to appropriate the necessary funds before the next fiscal biennium. The order provided that it would remain effective until the earliest of three dates: July 23, 2005; the date of a budget enactment that would fund all core functions after June 30, 2005; or the effective date of a further order of the court. The district court also appointed a special master to identify core government functions.

Various agencies, programs, and individuals filed petitions for funding, and the special master recommended which functions should be funded. The district court adopted the special master’s recommendations and issued orders to disburse funds. Under this special-master structure, the commissioner disbursed state funds totaling more than $569,000,000.

On July 8 the legislature appropriated funding, retroactively to July 1, for base-level operations of all agencies whose biennial appropriations had not yet been approved. The governor signed the bill into law on July 9. On July 13 the legislature passed the last remaining biennial appropriation bills. Each bill the legislature passed while in special session contained virtually or exactly the following language:

Appropriations in this act are effective retroactively from July 1, 2005, and supersede and replace funding authorized by order of the Ramsey County District Court . . . as well as by Laws 2005 1^st Special Session chapter 2, which provided temporary funding through July 14, 2005.

On July 13 and 14 the governor signed the bills into law. On July 26 the district court issued an order providing that the temporary-funding order expired by its own terms as of July 14.

At the end of August, the bipartisan legislative group (legislators) petitioned the supreme court for a writ of quo warranto against Peggy Ingison, who was then the commissioner of finance, seeking a declaration that the funds the commissioner disbursed under the district court’s authorization without a legislative appropriation were unconstitutional and an order requiring the commissioner to cease disbursements. The supreme court dismissed the petition without prejudice, allowing the legislators to file it in district court. The legislators filed an amended petition in district court, and they and the commissioner filed reciprocal motions for sanctions.

The district court denied the petition for quo warranto, holding that although the legislators had taxpayer standing to restrain the unlawful use of public funds, quo warranto was not the appropriate action to challenge past official conduct. The court noted that quo warranto was instead intended to remedy “a continuing course of unauthorized usurpation of authority.” The court also held that the case was moot because it did not present a live case or controversy for which judicial relief was available, and it was not capable of repetition yet likely to evade review. Further, the court held that the legislators’ petition was barred by laches because they failed to intervene in the temporary-funding proceedings and instead waited until it was too late for the court to grant relief. Finally, the court concluded that the constitution did not bar judicial action to preserve core government functions pending the necessary appropriations by the legislature. The district court also denied both the legislators’ and the commissioner’s motions for sanctions.

This appeal follows.

I S S U E S

I. Are the legislators’ claims barred by the doctrine of laches?

II. Is quo warranto an appropriate action to challenge the constitutionality of official conduct that is not ongoing?

III. Are the issues raised in this litigation justiciable?

IV. Did the district court abuse its discretion by denying the legislators’ motion for attorneys’ fees and costs incurred in responding to the commissioner’s motion for sanctions?

A N A L Y S I S

As a preliminary matter, we consider the legislators’ challenge to the district court’s determination that their petition is barred by the doctrine of laches. The equitable doctrine of laches is available to prevent the granting of relief to a party who has unreasonably delayed the assertion of a legal right and has thereby prejudiced others and made it inequitable for the court to grant the relief requested. Aronovitch v. Levy, 238 Minn. 237, 242, 56 N.W.2d 570, 574 (1953); Fetsch v. Holm, 236 Minn. 158, 163, 52 N.W.2d 113, 115 (1952).

The district court determined that the doctrine of laches precluded the granting of equitable relief because the legislators had notice of the temporary-funding proceedings but failed to assert an objection. Instead, they waited approximately six weeks from the time the governor signed the last appropriation bill into law before asserting their rights, thereby prejudicing respondents. The legislators argue that they were unable to participate because they are precluded during the legislative session from becoming parties to a legal proceeding by the provisions of Minn. Stat. § 3.16 (2006).

We reject the legislators’ argument that they are precluded from participating as parties in a legal proceeding while the legislature is in session. Section 3.16 does not prohibit legislators from participating in judicial proceedings. It only authorizes the postponement of a judicial or quasi-judicial proceeding in which a legislator is involved as a party, attorney, or witness while the legislature is in session. The section states:

No cause or proceeding . . . in which a member . . . of . . . the legislature is a party, attorney, or witness shall be tried or heard during a session of the legislature or while the member . . . is attending a meeting of a legislative committee or commission when the legislature is not in session. The matter shall be continued until the legislature or the committee or commission meeting has adjourned.

The member . . . may . . . waive this privilege. The cause or proceeding . . . may then be tried or heard at a time that will not conflict with legislative duties.

Id. Section 3.16 thus affords legislators a privilege, which they are free to exercise or to waive, but it does not insulate them from a failure to appear in the proceedings and preserve their options. That said, a decision not to appear does not result in laches unless it unreasonably delays the assertion of their right to raise their constitutional challenge, prejudices others, and makes it inequitable for the court to grant the relief requested.

The legislators may have forgone an opportunity to participate in the initial proceeding that resulted in the district court’s approval of the commissioner’s disbursement of public funds. But on this record, we cannot conclude that they unreasonably delayed the assertion of their rights to question the constitutionality of the resulting decision. They may have reasonably decided not to become individually or collectively enmeshed in a judicial proceeding while they were trying to pass a budget. Furthermore, the commissioner has not established that she was prejudiced by the delay. For these reasons, we conclude that the doctrine of laches does not preclude relief for the legislators’ request for a writ of quo warranto. Accordingly, we reverse the district court’s determination on laches.

The writ of quo warranto is a special proceeding designed to correct the unauthorized assumption or exercise of power by a public official or corporate officer. State ex rel. Danielson v. Vill. of Mound, 234 Minn. 531, 542, 48 N.W.2d 855, 863 (1951) (defining quo warranto as remedy to correct “usurpation, misuser, or nonuser of a public office or corporate franchise”). The writ requires an official to show before a court of competent jurisdiction by what authority the official exercised the challenged right or privilege of office. State ex rel. Burnquist v. Vill. of N. Pole, 213 Minn. 297, 303, 6 N.W.2d 458, 461 (1942). The writ has both a statutory and a common-law basis. Danielson, 234 Minn. at 537-38, 48 N.W.2d at 860; see generally Stefan A. Riesenfeld et al., Judicial Control of Administrative Action by Means of the Extraordinary Remedies in Minnesota, 33 Minn. L. Rev. 569, 571 (1949) (describing history of writ of quo warranto).

Typically, quo warranto is an appropriate action to challenge a person’s title to or qualifications for office or the constitutionality of a statute under which a person holds office. State ex rel. Todd v. Essling, 268 Minn. 151, 151, 128 N.W.2d 307, 309 (1964) (involving quo warranto proceeding challenging authority of individual claiming office as member of Board of Tax Appeals); Miller v. Berg, 190 Minn. 352, 356, 251 N.W. 682, 683 (1933) (stating quo warranto proper proceeding to determine whether person elected to public office is citizen and eligible to hold office); State ex rel. Douglas v. Westfall, 85 Minn. 437, 438, 89 N.W. 175, 175 (1902) (involving quo warranto proceeding inquiring into constitutionality of statute by which title examiner claimed right to office); see generally Stefan A. Riesenfeld et al., Judicial Control of Administrative Action by Means of the Extraordinary Remedies in Minnesota, 37 Minn. L. Rev. 1, 4-7 (1952) (discussing action subject to control by writ of quo warranto).

Quo warranto is not ordinarily available, on the other hand, to challenge the manner of exercising powers conferred by law or the validity of conduct that would result in liability but would not be grounds for forfeiture of a public office or corporate franchise. See State ex rel. Lommen v. Gravlin, 209 Minn. 136, 137, 295 N.W. 654, 655 (1941) (stating that “quo warranto is not allowable as preventative of, or remedy for, ‘official misconduct and cannot be employed to test the legality of the official action of public or corporate officers’”); State ex rel. Childs v. Bd. of County Comm’rs, 66 Minn. 519, 530, 69 N.W. 925, 926 (1897) (distinguishing between proper use of quo warranto to correct municipal corporation’s “permanent[] and continuous[]” exercise of jurisdiction beyond its territory and “mere official misconduct . . . of a casual or temporary character” for which “quo warranto will not lie”); see also State ex rel. Grozbach v. Common Sch. Dist. No. 65, 237 Minn. 150, 159-60, 54 N.W.2d 130, 136 (1952) (concluding quo warranto was proper proceeding to test validity of organization of consolidated school district but not validity of consolidated district’s assumption of bonded indebtedness).

Minnesota courts have recognized, nonetheless, that “[a]cts in excess of power may undoubtedly be carried so far as to amount to a misuser of [a public office or corporate franchise] and a ground for its forfeiture.” State ex rel. Clapp v. Minn. Thresher Mfg. Co., 40 Minn. 213, 226, 41 N.W. 1020, 1025 (1889). But “[h]ow far [unauthorized conduct] must go to amount to [forfeiture] the courts have wisely never attempted to define, except in very general terms, preferring the safer course of adopting a gradual process of judicial inclusion and exclusion as the cases arise.” Id.

Through this gradual process of judicial inclusion and exclusion, the quo warranto remedy has expanded beyond its initial limits of addressing only conduct that justified forfeiture of a public office or corporate franchise. Quo warranto will now lie against unauthorized conduct that threatens a substantial public injury but is not necessarily grounds for dissolution of a corporate franchise or ouster from office. See, e.g., Rice v. Connolly, 488 N.W.2d 241, 242-43 (Minn. 1992) (issuing quo warranto writ invalidating legislation authorizing teleracing and telephone betting and requiring discontinuance of all off-track betting); State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777, 783 (Minn. 1986) (issuing quo warranto writ invalidating statute by which legislature transferred responsibilities of state treasurer to commissioner of finance and requiring that transferred functions be returned to state treasurer); Childs, 66 Minn. at 529, 69 N.W. at 926 (stating that “[i]f an information in the nature of quo warranto is the proper remedy for ousting or dissolving a municipal corporation in toto, we see no reason in principle why it will not lie to oust such a corporation from specific territory over which it is wrongfully exercising jurisdiction, or to dissolve it so far as it covers that territory”).

Despite this gradual evolution, Minnesota courts have been consistent in declining to apply quo warranto to an unauthorized exercise of power that is not ongoing; courts have refused to extend the doctrine of quo warranto to test the legality of either pending conduct or official conduct that has been completed. See, e.g., State ex rel. Graham v. Klumpp,536 N.W.2d 613, 614 n.1 (Minn. 1995) (involving challenge to governor’s request for attorney general to prosecute certain individuals and seeking dismissal of indictments obtained by attorney general); State ex rel. Olsen v. Bd. of Control, 85 Minn. 165, 166, 88 N.W. 533, 533-34 (1902) (involving proceedings against board of control to test constitutionality of statutory transfer of school management to newly created board of control); cf. AFSCME Council 6 v. Sundquist, 338 N.W.2d 560, 564 (Minn. 1983) (stating that quo warranto petition seeking to prevent enforcement of legislation increasing government employees’ existing contribution to pension funds did not “fit[] within the nature of quo warranto”).

The legislators contend that in Mattson the supreme court extended the use of quo warranto to challenge past conduct. But Mattson involved a challenge to a continuing course of conduct—the transfer of functions from the state treasurer to the commissioner of finance. 391 N.W.2d at 788-80. Had the writ not issued, the commissioner of finance would have continued to exceed the powers of his office by exercising the functions of the state treasurer. Mattson thus weighs against the argument that quo warranto is available to adjudicate past violations that have expired. The legislators have cited no cases in which quo warranto was appropriately used to correct conduct that was not ongoing, and they have not demonstrated an ongoing usurpation of power by the commissioner.

Because it is well-established that the quo warranto remedy may be applied only to an ongoing exercise of power, we conclude that quo warranto cannot be used to challenge the constitutionality of completed disbursements of public funds. The order authorizing the commissioner to fund core executive functions expired by its own terms on July 14, 2005, after the legislature appropriated the necessary funds and the governor signed the appropriations bills. The commissioner ceased the challenged disbursements on July 14, 2005. When the legislators served the quo warranto petition more than a month later, the commissioner was involved in no ongoing conduct that could be remedied by the issuance of a quo warranto writ.

What the legislators seek, in essence, is not a writ to correct an ongoing usurpation of power but a declaration that the judiciary lacks the power to authorize an executive officer to disburse funds without an appropriation by law. Quo warranto is not an appropriate action to attempt to obtain this relief. Despite the unsuitability of quo warranto as a procedure to challenge the constitutionality of the contested disbursements, we are reluctant, for two reasons, to dismiss this dispute solely because of the scope of the writ.

First, the supreme court has acknowledged that, despite the history and unique nature of a writ of quo warranto, the court has only recently attempted to “definitively proscribe[] its use or address[] its utility or its appropriateness in the modern judicial context.” Rice, 488 N.W.2d at 243. As a result, the court has exercised varying amounts of discretion in determining how to proceed on quo warranto petitions. See id. at 244 (describing procedural mechanisms that supreme court has used in responding to quo warranto petitions).

Second, the legislators’ difficulty in finding an appropriate procedural mechanism relates directly to the foundational issue in this litigation, which we address in Section III. That issue, which we believe is dispositive, is the justiciability of the legislators’ collateral challenge to the constitutionality of the commissioner’s court-approved disbursements of public funds following a legislative appropriation that is retroactive and supersedes the commissioner’s court-approved disbursements.

III

When it denied the writ, the district court reasoned that the legislators had limited standing and that the case was moot. Mootness and standing are overlapping doctrines that fall under the broader concept of justiciability. Erwin Chemerinsky, A Unified Approach to Justiciability, 22 Conn. L. Rev. 677, 678-87 (1990). Standing “focuses primarily on the party seeking to get his complaint” resolved by the court. United States v. Richardson, 418 U.S. 166, 174, 94 S. Ct. 2940, 2945 (1974). Mootness, in contrast, seeks to ensure that a sufficient personal interest continues to exist throughout the litigation. Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005).

Justiciability doctrines—including mootness and standing—all relate, in some manner, to the court’s ability to redress an injury through coercive relief. See State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 493 (Minn. 1996) (linking standing to availability of relief);In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989) (noting that case is moot if courts cannot “grant effectual relief”); see also Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710 (1962) (requiring judicially manageable standards for resolving a dispute). The concept of justiciability forms a threshold for judicial action and requires, in addition to adverse interests and concrete assertions of rights, a controversy that allows for specific relief by a decree or judgment of a specific character as distinguished from an advisory opinion predicated on hypothetical facts. Holiday Acres No. 3 v. Midwest Fed. Sav. & Loan Ass’n of Minneapolis, 271 N.W.2d 445, 447 (Minn. 1978). When a lawsuit presents no injury that a court can redress, the case must be dismissed for lack of justiciability.

This redressable-injury requirement—and the corollary rule against advisory opinions—is rooted in constitutional text, the nature of judicial decision-making, and prudential concerns. The constitutional function of Minnesota courts is to resolve disputes and to adjudicate private rights. See Montgomery v. Minneapolis Fire Dep’t Relief Ass’n, 218 Minn. 27, 29-30, 15 N.W.2d 122, 124 (1944) (interpreting predecessor of Minn. Const. art. VI, § 3, to require that “the subject matter of the suit is a justiciable one and therefore within the competence of the district court to hear and determine”); In re Application of the Senate, 10 Minn. 78 (1865) (noting that separation-of-powers provision in Minn. Const. art. III, § 1, limits court to “judicial” acts). Because the nature of judicial decision-making is to resolve disputes, the “judicial function does not comprehend the giving of advisory opinions.” Izaak Walton League of Am. Endowment, Inc. v. Minn. Dep’t of Natural Res., 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977). And, as part of our tripartite constitutional structure, the judiciary must act prudentially to abstain from encroaching on the power of a coequal branch. See Sharood v. Hatfield, 296 Minn. 416, 423, 210 N.W.2d 275, 279 (1973) (cautioning courts to exercise restraint in dispute over “what is a legislative prerogative and what is a judicial function”).

In the absence of a redressable injury, Minnesota courts will exercise judicial power only in narrowly-defined circumstances. First, to prevent injury and conserve judicial resources, we will issue declaratory judgments. Minn. Stat. § 555.01 (2006). The senate counsel’s amicus brief encourages us to resolve this dispute using a declaratory judgment. But declaratory relief still requires a case or controversy, and we will not issue “declarations upon remote contingencies or as to matters where the plaintiff’s interest is merely contingent upon the happening of some event in the future.” Seiz v. Citizens Pure Ice Co., 207 Minn. 277, 283, 290 N.W. 802, 805 (1940). Thus, if we lack the power to modify the district court’s appropriations decision, we cannot issue a declaratory judgment. See Cincinnati Ins. Co. v. Frank, 621 N.W.2d 270, 273-74 (Minn. App. 2001) (limiting declaratory relief to genuine conflicts in tangible interests).

Second, if a case is no longer redressable because it has become moot, we will issue a decision if the issue presented is capable of repetition but likely to evade review. Kahn, 701 N.W.2d at 821. The rationale for this exception is that to “abandon the case at an advanced stage may prove more wasteful than frugal.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 192, 120 S. Ct. 693, 710 (2000). But the capable-of-repetition exception cannot revive a dispute that was moot before commencement of the action. Id. at 191, 120 S. Ct. at 709. When the legislators petitioned for a writ of quo warranto in August 2005, the commissioner had already allocated the court-ordered funding and the legislature had explicitly superseded and replaced the commissioner’s disbursements. Because the relevant circumstances remained the same throughout the litigation, the capable-of-repetition exception cannot be used to revive the controversy if it was not redressable at the time it was brought.

In addition, Minnesota courts will act without directly redressing an injury in at least two other circumstances. Appellate courts will answer certified questions. See, e.g., Minn. Stat. § 480.065, subd. 3 (2006) (permitting supreme court to answer questions certified by federal courts and appellate courts in other states); Minn. R. Crim. P. 28.03 (permitting district courts to certify criminal-law questions to court of appeals). But this case does not involve a certified question. Also, under special circumstances, we will issue purely prospective rulings. See State v. Baird, 654 N.W.2d 105, 110-11 (Minn. 2002) (outlining function and limits of special-circumstances rule). The special-circumstances test, however, does not permit us to issue substantive decisions about injuries that we cannot redress. Instead, the test permits us to decline to redress injuries in the interests of fairness. Id.

Because none of the exceptions that allow us to exercise judicial power in the absence of a redressable injury applies, we return to our threshold principle: judicial action is sustainable only when the controversy presents an injury that a court can redress. For reasons that relate directly to the separation of powers and the explicit provisions of the legislature’s retroactive and superseding appropriations bill, we conclude that the issue raised in this litigation is not redressable.

We start from the fundamental principle that we cannot exercise powers that belong to the legislative branch. Minn. Const. art. III, § 1. The Minnesota Constitution provides the legislature with the power to make appropriations. Minn. Const. art. XI, § 1. And, “[w]ithin the constitutional limits of their jurisdiction,” members of a coequal branch “have an independence of official action no less complete and no less important than that of the judiciary.” Rockne v. Olson, 191 Minn. 310, 313, 254 N.W. 5, 7 (1934). Before the legislators brought this action, the legislature, acting as a whole, passed the appropriations for the 2005-2007 fiscal biennium. This enactment expressly stated that the appropriations were retroactive to July 1, 2005, the inception of the biennium, and that they superseded and replaced the funding authorized by the district court.

We attach significance to the legislature’s express language in making the appropriation bill retroactive to the beginning of the biennium and providing that the appropriation “supersedes” the action of the district court in authorizing the executive disbursements. The legislature essentially voided the commissioner’s disbursement of public funds and reasserted its power to appropriate public funds by choosing to make its action retroactive and superseding. See Black’s Law Dictionary 1479 (8th ed. 2004) (defining “supersede” as “[t]o annul, make void, or repeal by taking the place of”).

By its plain terms, the legislative enactment takes precedence over the interim funding and asserts its appropriation as the basis for the funding. We are required to take the legislature at its word. See Minn. Stat. § 645.16 (2006) (imposing “plain-meaning” rule). Thus, the issue raised in this action has been conclusively resolved by legislative determination, not judicial action. The legislature has exercised its fundamental constitutional power to appropriate the public funds and to provide that the appropriations are retroactive to the beginning of the biennium and supersede the court-approved disbursement by the commissioner. The judiciary does not have the constitutional power to “relegislate” the effect of the legislature’s appropriations decisions. Not only is the question nonjusticiable from the courts’ standpoint, but, because of the structure and function of legislative power, it is the legislature and not the judiciary that has the institutional competency to devise a prospective plan for resolving future political impasses. The legislature could prevent another judicially mandated disbursement of public funds without an authorized appropriation by, for example, creating an emergency fund to keep the government functioning during a budgetary impasse or enacting a statute setting forth the procedures to be followed during a budgetary impasse. See S.F. 87 (1st Spec. Sess. 2005) (proposing enactment of amendment that would provide for maintenance and preservation of core and essential services).

We recognize the legislators’ compelling argument that the commissioner’s court-approved disbursements interfered with their appropriations power and improperly affected the dynamics of the legislative process during the special session. If so—and we do not decide the issue—then the damage has already been done, and it is not subject to judicial redress or remedy at this point in time. An advisory opinion ignoring the plain language of the legislature’s retroactive appropriations, which replaced and superseded the commissioner’s court-approved disbursements, would only compound the injury. If the events of 2005 repeat themselves, the legislators can raise a timely challenge to seek a judicial remedy for their asserted injury.

The legislators assert, for two reasons, that the district court abused its discretion by denying their motion for attorneys’ fees and costs incurred in responding to the commissioner’s motion for sanctions.

The legislators first argue that they are entitled to recover the fees and costs they incurred defending against the commissioner’s motion for sanctions because the motion was frivolous and failed to comply with the procedural requirements of rule 11 of Minnesota Rules of Civil Procedure. We are not persuaded that the commissioner’s motion was frivolous; the commissioner’s concerns about whether the alleged injury was justiciable gave her a reasonable basis for moving for sanctions. And although the commissioner failed to comply with rule 11 by filing her motion at the same time as it was served, the failure to comply with rule 11’s procedural requirements does not automatically entitle the legislators to costs and attorneys’ fees; instead, whether to order costs and fees is a matter within the district court’s broad discretion. See Pratt Inv. Co. v. Kennedy, 636 N.W.2d 844, 851 (Minn. App. 2001) (stating that this court reviews district court’s decision to allow or deny sanctions for abuse of discretion).

The legislators’ second claim is that they are entitled to attorneys’ fees and costs because they were prejudiced by the filing of the motion for sanctions. Despite the commissioner’s failure to serve the motion for sanctions twenty-one days before filing it with the court, the legislators had more than twenty-one days before the hearing to withdraw the challenged claims and defenses but they chose not to act. Thus, compliance with the procedural requirements would not have lessened the alleged prejudicial effect of the motion for sanctions.

Accordingly, we conclude that the district court did not abuse its discretion by denying the legislators’ motion for fees and costs they incurred defending against the commissioner’s motion for fees.

D E C I S I O N

We reject the district court’s conclusion that this case is barred by the doctrine of laches. Nonetheless, the district court did not err by concluding that quo warranto is an improper proceeding to challenge official conduct that is not ongoing. Although we agree that the case is nonjusticiable, we rest that determination on the legislature’s constitutionally significant decision to retroactively appropriate public funds that effectively and expressly superseded the commissioner’s temporary actions of distributing funds under a court order without an appropriation. Finally, the district court did not abuse its discretion by denying the legislators’ motion for fees and costs incurred in opposing the commissioner’s motion for sanctions

Affirmed in part, reversed in part.

MSC Selective A081883 Imperial v. Calhoun

2010-02-18T09:02:00.000-08:00

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A081883	Supreme Court	Imperial Developers, Inc., Plaintiff, vs. Calhoun Development, LLC, Respondent, Regal Custom Homes, Inc., et al., Defendants, Lind Homes, Inc., Respondent, Thompson Plumbing Corp., Respondent, Great Northern I, Inc., Respondent, Southview Design & Construction, Inc., Respondent, BankFirst, Appellant, and The Woodshop of Avon, Inc., additional defendant, Respondent, and Scherer Bros. Lumber Co., intervening defendant and third-party plaintiff, Respondent, vs. Matthew Lind, et al., Third-Party Defendants, and Simonson Lumber of Ham Lake, Inc., Third-Party Plaintiff, vs. Contractors Capital Corporation, et al., Third-Party Defendants	Pre-Briefing	Civil	Other	01/08/2010
A081883	Court of Appeals	Imperial Developers, Inc., Plaintiff, vs. Calhoun Development, LLC, Respondent, Regal Custom Homes, Inc., et al., Defendants, Lind Homes, Inc., Respondent, Thompson Plumbing Corp., Respondent, Great Northern I, Inc., Respondent, Southview Design & Construction, Inc., Appellant, BankFirst, Respondent, and The Woodshop of Avon, Inc., additional defendant, Respondent, and Scherer Bros. Lumber Co., intervening defendant and third party plaintiff, Appellant, vs. Matthew Lind, et al., Third Party Defendants, and Simonson Lumber of Ham Lake, Inc., Third Party Plaintiff, vs. Contractors Capital Corporation, et al., Third Party Defendants	Post-Decision	Civil	Other	10/29/2008

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MSC Denial Due Process toA09-2031 Sharon4Anderson,NancyLazaryan,TimKinley,

2010-02-18T09:01:00.000-08:00

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Document Description	Jurisdiction	Filing Date	Docket Entry Type	Filing Type	Status
Order - Grant Amicus - Minnesota Bankers Association	Supreme Court	02/16/2010	Order	Grant Amicus	Final
Order - PFR - Grant	Supreme Court	02/16/2010	Order	PFR - Grant	Final
Response - Petition for Review	Supreme Court	01/29/2010	Response	Petition for Review	Final
Received additional $50 filing fee for the petition for review	Supreme Court	01/11/2010	Correspondence	Incoming	Final
Petition - Further Review	Supreme Court	01/08/2010	Petition	Further Review	Final
Motion - Amicus - Minnesota Bankers Association	Supreme Court	01/07/2010	Motion	Amicus - Leave to File Motion	Final
Opinion - Published	Court of Appeals	12/08/2009	Opinion	Published	Final
Notice - Opinion Release Imminent	Court of Appeals	12/03/2009	Notice	Opinion Release Imminent	Final
Event - Oral - Panel	Court of Appeals	09/17/2009	Event	Oral - Panel	Final
Notice - Oral Argument Date Scheduled	Court of Appeals	07/23/2009	Notice	Oral Argument Date Scheduled	Final
Event - Oral Panel - scheduled for 9/17/09	Court of Appeals	07/23/2009	Event	Oral Panel - scheduled	Final
Event - Orig. Court/Agency Files/Exhibits Received-BOX-	Court of Appeals	03/25/2009	Event	Orig. Court/Agency Files/Exhibits Received	Final
Brief - Reply	Court of Appeals	03/12/2009	Brief	Reply	Final
Notice - Request Trial Court/Agency File	Court of Appeals	03/10/2009	Notice	Request Trial Court/Agency File	Final
Brief - Respondent	Court of Appeals	02/27/2009	Brief	Respondent	Final
Affidavit - Service; appellant's brief	Court of Appeals	02/05/2009	Affidavit	Service	Final
Amended affidavit of service for appellant's brief.	Court of Appeals	01/29/2009	Affidavit	Service	Final
Brief - Appellant	Court of Appeals	01/27/2009	Brief	Appellant	Final
Transcript - Delivery Certificate - Lucy Stageberg	Court of Appeals	01/06/2009	Transcript	Delivery Certificate	Final
Received nonconforming certificate of delivery from CR. Lucy Stageberg	Court of Appeals	01/02/2009	Correspondence	Incoming	Final
Transcript - Delivery Certificate - Tamara Halonen	Court of Appeals	12/10/2008	Transcript	Delivery Certificate	Final
Letter of Thomas M. Zappia; I will not be participating in oral arguments. Oral arguments will be made on behalf of Scherer Bros. Lumber Co. and Southview Design and Construction, Inc. by Ann O'Reilly.	Court of Appeals	11/14/2008	Correspondence	Incoming	Final
Statement - Case - Respondent (Bank First)	Court of Appeals	11/13/2008	Statement	Case - Respondent	Final
Amended Statement - Case - Appellant [purpose of which is to clarify possible "adverse parties"	Court of Appeals	11/10/2008	Statement	Case - Appellant	Final
Transcript - Initial Certificate - Tamara Halonen	Court of Appeals	11/06/2008	Transcript	Initial Certificate	Final
Notice - Attorney Scheduling Conflicts; filed by A.O'Reilly for appellant	Court of Appeals	11/06/2008	Notice	Attorney Scheduling Conflicts	Final
Transcript - Initial Certificate - Lucy Stageberg	Court of Appeals	11/04/2008	Transcript	Initial Certificate	Final
Affidavit - Service for notice of appeal/statement of case on Alliance Bank	Court of Appeals	11/04/2008	Affidavit	Service	Final
Affidavit - Service	Court of Appeals	10/31/2008	Affidavit	Service	Final
Notice - Case Filing	Court of Appeals	10/30/2008	Notice	Case Filing	Final
Statement - Case - Appellants	Court of Appeals	10/29/2008	Statement	Case - Appellant	Final
Notice - Appeal - Case Filed; Order/Judgment 9/16/08	Court of Appeals	10/29/2008	Notice	Appeal - Case Filed	Final