LivingWordBibleCamp vs. CountyItascaA12-0281_SharonsBuckLake

15823Hy55BuckLake,Nashwauk

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8.         A12-0281
            Living Word Bible Camp, Respondent, vs. County of Itasca, Respondent;
            Pamela J. Brown, et al., intervenors, Appellants.
            Affirmed in part, reversed in part, and remanded; motion denied.   Judge Terri J.
            Stoneburner.
            Itasca County District Court, Hon. Jon A. Maturi.


19.       A11-1755
            State of Minnesota, Respondent, vs. Daniel Thomas Infante, Appellant.
            Affirmed.  Judge Kevin G. Ross.
            Itasca County District Court, Hon. John Hawkinson.
MN Judge's Jon Maturi ,John Hawkins_BAD BEHAVIOR,Heinous,Repugnant Discrimination against Sharon and Decedant Jim Anderson 1997 for Judicial Greed, Exploiting Disabled Silver Star Marine triggering JR's Murder 21Sept2000, from Jim Anderson's 1 year Committment to Brainard State Hospital,

http://www.mncourts.gov/opinions/coa/current/opa120281-091712.pdf

This opinion will be unpublished and


may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2010).

STATE OF MINNESOTA

IN COURT OF APPEALS

A12-0281

Living Word Bible Camp,

Respondent,

vs.

County of Itasca,

Respondent,

Pamela J. Brown, et al., intervenors,

Appellants.

Filed September 17, 2012

Affirmed in part, reversed in part, and remanded; motion denied

Stoneburner, Judge

Itasca County District Court

File No. 31-CV-10-885

G. Craig Howse, Jeffrey C. Thompson, Jacob R. Grassel, Howse & Thompson, P.A.,

Plymouth, Minnesota (for respondent Living Word Bible Camp)

Michael J. Ford, Cally R. Kjellberg, Quinlivan & Hughes, P.A., St. Cloud, Minnesota

(for respondent Itasca County)

James P. Peters, Law Offices of James P. Peters, PLLC, Glenwood, Minnesota (for

appellants)

Considered and decided by Stoneburner, Presiding Judge; Ross, Judge; and

Connolly, Judge.

2

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

STONEBURNER, Judge

Appellants, owners of land adjacent to a planned development on a lake, sought to

intervene in a declaratory-judgment action brought by respondent developer to challenge

the decision of respondent county requiring an environmental-impact statement (EIS) for

respondent’s planned lakeshore development. The district court denied the motion to

intervene, reversed the county’s EIS determination, remanded the matter for the

preparation of a new environmental-assessment worksheet (EAW), and sua sponte

enjoined the participation of one commissioner in further proceedings on the project.

Appellants challenge the district court’s orders, arguing that, as affected neighboring

landowners, they have a right to intervene and have standing in this appeal to challenge

the district court’s ruling on the merits. Because we conclude that appellants have a right

to intervene, we reverse the denial of the intervention motion and recognize appellants’

standing to challenge the district court’s rulings on the merits. Because we conclude that

the district court did not err in concluding that a commissioner’s bias made the county’s

decision on the EIS arbitrary and capricious, we affirm the district court’s reversal of the

EIS decision and remand for a new EAW process in which the biased commissioner shall

not participate.

FACTS

This is the fourth time that this court has addressed disputes related to respondent

Itasca County’s handling of a proposal by respondent Living Word Bible Camp (LWBC)

to build a camp on the shores of Deer Lake. Most recently, we reversed the decision of

3

county board of commissioners (board) granting a conditional-use permit (CUP) and

planned-unit-development permit (PUD) for the project based on the board’s decision, in

its capacity as the responsible governmental unit (RGU), that an EAW was not necessary.

We remanded to the board for completion of an EAW. Applications of LWBC, 2008 WL

2245708, at *1 (Minn. App. June 3, 2008).

The EAW

On remand from this court, the board retained the consulting firm of Widseth,

Smith, Nolting & Associates, Inc. (WSN) to assist with preparation of the EAW. WSN

assigned environmental scientist Brian Ross to work on the EAW. The board forwarded

all of the comments it had received in relation to its prior EAW determination to Ross.

LWBC submitted data in the form of a draft EAW to Ross, and Ross prepared and

submitted a draft EAW to the county.

Commissioner Catherine McLynn, who represents a district encompassing

LWBC’s land, believed that the draft EAW submitted by Ross was incomplete and in

some respects inaccurate. McLynn discussed her beliefs with staff and sent emails

summarizing her views to staff, fellow commissioner Karen Burthwick, and Ross.

McLynn made several suggestions for changes to the draft EAW and

criticized Ross’s failure to include or respond to letters and statements previously

submitted to the county by parties opposed to the LWBC project. McLynn objected to

including conclusory statements in the EAW.

Ross responded to McLynn’ s concerns, editing the EAW in many respects, but

also advising her that some of her proposals were not supported by the record and noting

4

that the EAW form calls for conclusory statements in some respects by asking for an

opinion about effects and impacts.

McLynn submitted a request for board action (RBA) to return the draft EAW to

Ross for revisions. The board met and passed McLynn’s RBA. The board also

scheduled a hearing for December 7, 2009, to approve the EAW for distribution.

Four days before the scheduled hearing, Ross sent a new draft of the EAW to

McLynn, advising her that he had made “small revisions” based on comments received

from LWBC’s attorney. McLynn responded by email, asserting that there were

“significant revisions so it will be impossible for the board to approve on Mon[day] a

document that has been revised significantly from the copy we were given.” She also

wrote that she was “very disappointed in the revised draft.” She asserted that,

[a]ccording to the EQB Guidelines and state law, this

document is THE COUNTY’S assessment of the project, not

the proposer’s. You are working for us in preparing the

document. You were directed by the board to revise the

document after reviewing specifically identified documents

ON FILE with the county. And yet, the drafts you sent us are

full of conclusionary [sic] statements that are NOT

appropriate in the EAW and are in substantial conflict with

what the county already has on file as far as knowledge of the

project and impact on the environment. Please delete or

revise ALL conclusionary statements and stick to known

facts. Did you review and would you please refer and include

as appendices the limnology and fish and wildlife reports on

file . . . ?

(Emphasis in original.) McLynn further stated that “[t]he EAW is full of references to

promises, indications, expectations and proposed conditions NONE of which are in force

as mitigation measures YET.” (Emphasis in original.)

5

Before the December 7 meeting, McLynn sent a memorandum to the board titled,

“Accuracy and completeness of EAW for LWBC.” The memo contained three pages of

McLynn’s recommendations for amendments, including the addition, as appendices, of

the materials received by the county from individuals opposed to the project, some of

which were not supported by the data. She also proposed deleting from the draft EAW

numerous statements concluding that the project will not impact or significantly impact

certain resources and, in some cases, replacing those statements with statements that the

project will or may impact certain resources.

At the December 7 meeting, Ross spoke to the board addressing and objecting to

several of McLynn’s proposals and stating that the conclusions in the draft EAW

reflected his professional opinions based on the reports that had been commissioned from

a limnologist and an engineer.

McLynn asserted during the meeting that her proposed changes were her attempt

to make the EAW more neutral. But Ross pointed out that some of McLynn’s proposed

language was itself conclusory. Ross and McLynn explained their respective positions

and McLynn moved to approve the EAW with the amendments contained in her memo,

with certain corrections. Four of the five county commissioners were present at the

December 7 meeting. Two commissioners expressed an interest in accepting Ross’s draft

EAW as written. But a third commissioner supported McLynn, and the commissioners

were deadlocked 2-2. Ross then proposed to make all but one of McLynn’s amendments

to the draft EAW, and McLynn agreed to drop that amendment and not to add anything to

the appendices. McLynn moved for approval of that compromise. After that motion

6

failed, Ross reviewed and discussed with the commissioners specific changes that

concerned him. Ross eventually agreed to remove much of the conclusory language.

The board passed a motion, over McLynn’s “no” vote, to exclude the language that Ross

agreed to remove and to exclude the amendment and additional appendices that McLynn

had previously agreed to. The board then approved the EAW for distribution, again over

McLynn’s “no” vote.

The EAW was submitted to the Environmental Quality Board (EQB) and

published in the EQB Monitor, which started a 30-day public-comment period. The

county received approximately 50 written comments and/or data submittals during the

public-comment period, from supporters and opponents of the project, and from state

agencies and other experts who advocated further study of the environmental impacts of

the project. The Minnesota Department of Natural Resources (DNR) submitted a 12-

page letter, identifying shortcomings of the EAW and concluding that “[t]here is a need

to further describe various environmental effects from the project and identify specific

mitigation measures that could be included as requirements of project permitting to

minimize negative environmental effects.”

The EIS vote

On February 23, 2010, the board met and voted to issue a positive declaration

requiring an EIS for the project. In contrast to the lengthy discussion about the EAW, the

record discussion on the EIS determination is brief. As part of his contractual duties,

Ross prepared and presented to the board a resolution for a positive declaration with

supporting findings. McLynn and two other commissioners proposed edits to the draft

7

findings. Some of McLynn’s edits were to correct misstatements. But, as with the EAW,

McLynn also proposed to delete a number of “no-impact” and “mitigation” statements in

Ross’s draft findings. McLynn also asked for her own findings to be appended to those

drafted by Ross. After additional discussion, the chairperson called for any other

comments regarding the findings and positive declaration, and hearing none, stated that

she was most persuaded by the 12-page letter from the DNR, stating that there is potential

for significant environmental impact. No other commissioner expressed a specific reason

for voting for the positive declaration, but, as the district court later noted,

“Commissioner Burthwick proposed significant substantive findings of fact in support of

her vote and her findings are supported by substantial evidence in the record.” The board

voted three-to-one to require an EIS and to adopt the draft findings with the amendments

proposed by McLynn, Burthwick, and the chairperson.

District court proceedings

LWBC brought a declaratory-judgment action in district court, seeking a

declaration that the county’s decision to require an EIS was arbitrary and capricious.

LWBC moved for summary judgment, submitting affidavits and an extensive expert

report by Westwood Professional Services (the Westwood report) critiquing the EAW

process and, particularly, McLynn’s role in that process. The Westwood report had not

been presented to the board. Appellants noticed their intent to intervene in the

declaratory-judgment action as a matter of right.

After a hearing on the motions, the district court issued an order on July 25, 2010,

denying, in relevant part, appellants’ motion to intervene, holding that as a matter of law

8

McLynn’s actions reflected partiality and were improper such that her vote should be

excluded, and ordering an evidentiary hearing to determine whether McLynn’s “partiality

and improper actions” rendered the board’s resulting two-to-one positive declaration for

an EIS arbitrary and capricious.

The district court based its decision on McLynn’s conduct in the course of the

EAW and EIS proceedings, explaining that “all of the changes McLynn sought and had

made to the EAW, other than typographical changes (affect v. effect, for example)

changed statements that were more favorable to LWBC’s position into statements that

were either facially neutral or more favorable to those opposed to LWBC’s position.”

The district court also identified facts outside of the EAW and EIS proceedings

supporting its determination that McLynn had acted partially. The district court, noting

that because the record before it could support either a positive or negative declaration for

an EIS, stated “it is impossible to speculate as to what the result would have been absent

Commissioner McLynn’s partiality and improper conduct.”

Both LWBC and the county moved for amended findings, and appellants sought

reconsideration of the denial of their notice to intervene. On December 15, 2010, the

district court issued conclusions of law, concluding that, even without reference to

matters outside of the record, the record supported the district court’s finding that

Commissioner McLynn acted arbitrarily and capriciously by voting for a positive

declaration for an EIS and that her vote should not count. The district court also

concluded that it had erred by upholding the positive declaration based on only two votes

because it now understood that the board cannot pass any resolution unless a majority of

9

the five board members vote in favor of the resolution. The district court again

concluded that the record could support either a positive or negative declaration for an

EIS and that “[b]ecause Commissioner McLynn’s actions and involvement may have

affected the whole EAW process and the extent of her improper influence cannot be

determined, it is necessary that the EAW process be completed anew.” The district court,

in relevant part, cancelled the previously ordered evidentiary hearing on whether

McLynn’s actions made the board’s EIS decision arbitrary and capricious and remanded

the matter to the county to conduct a new EAW process with a recommendation that the

matter be referred to a different RGU if possible. Sua sponte, the district court enjoined

McLynn’s participation in further proceedings involving LWBC’s proposal. The district

court denied appellants’ motion for reconsideration of the motion to intervene, stating

that the county had appropriately represented their interests and that they could

participate in the further proceedings before the board.

This appeal

The county did not appeal the district court’s order and subsequently requested

that the EQB appoint a different RGU.1 Appellants filed this appeal, challenging the

district court’s denial of their notice to intervene and the district court’s reversal of the

county’s positive EIS declaration. LWBC moved to dismiss the appeal, arguing that the

appeal is untimely and that appellants do not have standing to appeal. A special-term

panel of this court denied the motion, reasoning that the appeal is timely; that appellants

1 The EQB addressed the request to reassign the matter at its June 18, 2012 meeting and

voted to table the matter until this court issues a ruling.

10

have standing to challenge the intervention denial; and that the panel assigned to address

the merits of the appeal would be in a better position to determine whether appellants

have standing to challenge the merits of the district court’s decision. LWBC has moved

to strike three statements in appellants’ brief on appeal.

D E C I S I O N

Motion to strike denied

LWBC’s motion to strike three statements from appellants’ brief on appeal asserts

that the objected-to statements would mislead this court to believe that consultant Ross

was hired by LWBC rather than the county. But the record is clear that Ross was hired

by the county. The record reflects that LWBC also used consultants in connection with

the EAW/EIS proceedings, and the use of consultants by LWBC has no bearing on our

decision. The motion to strike is denied as unnecessary.

Intervention

Appellants assert that the district court erred by denying their motion for

intervention as a matter of right under Minn. R. Civ. P. 24.01. This court reviews de

novo an order denying intervention as a matter of right. Star Tribune v. Minn. Twins

P’ship, 659 N.W.2d 287, 299 (Minn. App. 2003).

We have articulated four criteria that, when satisfied, compel a court to grant

intervention: (1) a timely application by (2) someone with an interest in the property or

transaction underlying the action; (3) circumstances under which the disposition of the

action will impair or impede the applicant’s ability to protect that interest; and (4) a lack

of adequate representation by those who are already parties to the action. Star Tribune,

11

659 N.W.2d at 299. “Minnesota courts are to follow a policy of encouraging all

legitimate interventions.” Jerome Faribo Farms, Inc. v. Cnty. of Dodge, 464 N.W.2d

568, 570 (Minn. App. 1990), review denied (Minn. Mar. 15, 1991).

Both LWBC and the district court acknowledge that appellants have interests that

will be impacted by this litigation. Their implicated interests include both preserving the

value of their properties and protecting the environment. See id., at 571 (recognizing

neighboring landowners’ interest in protecting value of their real property). But LWBC

asserts that this court should affirm the district court’s denial of intervention, arguing that

appellants did not timely intervene, and that, contrary to the county’s assertion that it

does not adequately represent all of appellants’ interests, the county adequately represents

appellants’ interests.

“The determination of whether intervention is timely must be considered on a

case-by-case basis.” State Fund Mut. Ins. Co. v. Mead, 691 N.W.2d 495, 501 (Minn.

App. 2005). “Timeliness of an application depends on factors such as how far the suit

has progressed, the reason for the delay in seeking intervention, and any prejudice to the

existing parties because of the delay.” Blue Cross/Blue Shield of Rhode Island v. Flam,

509 N.W.2d 393, 396 (Minn. App. 1993), review denied (Minn. Feb. 24, 1994). But

posttrial intervention is disfavored. Id. Appellants noticed their intervention during

summary-judgment briefing and sought no changes to the scheduling orders.2 LWBC

does not assert any prejudice resulting from the delay, and we conclude that, under the

circumstances of this action, appellants timely sought intervention.

2 The court’s scheduling orders did not include a deadline for joining additional parties.

12

With respect to the fourth criteria, appellants “carry the minimal burden of

showing that the existing parties may not adequately represent their interests.” Faribo

Farms, 464 N.W.2d at 570 (quotations omitted).

[I]f [the applicant’s] interest is similar to, but not identical

with, that of one of the parties, a discriminating judgment is

required on the circumstances of the particular case, but [the

applicant] ordinarily should be allowed to intervene unless it

is clear that the party will provide adequate representation for

the [applicant].

Costley v. Caromin House, Inc., 313 N.W.2d 21, 28 (Minn. 1981) (quotation omitted).

The district court reasoned that appellants’ interests would be adequately represented

even if the county chose not to appeal the EIS determination because appellants can

participate in the new EAW determination. But this analysis disregards the remedy

sought by appellants at the district court. The remedy sought by appellants was

affirmance of the county’s decision to require an EIS. Moreover, “[t]he fact that an

intervenor may have another remedy does not preclude intervention.” Avery v. Campbell,

279 Minn. 383, 389, 157 N.W.2d 42, 46 (1968).

LWBC asserts that appellants face a heightened burden in seeking to intervene in

an action already defended by a government entity, citing a parens patriae doctrine that

has been applied by the federal courts. See, e.g., Mausolf v. Babbitt, 85 F.3d 1295, 1303

(8th Cir. 1996) (explaining that “when one of the parties is an arm or agency of the

government, and the case concerns a matter of sovereign interest, the bar is raised,

because in such cases the government is presumed to represent the interests of all its

citizens”) (quotations and alterations omitted). LWBC does not assert that either the

13

Minnesota Supreme Court or this court has adopted this doctrine. And even if the

doctrine applied, we conclude that it should not bar intervention under the facts of this

case.

The Eighth Circuit has recognized that the doctrine does not bar intervention in all

cases involving the government. Id. The court has explained that, “when the proposed

intervenors’ concern is not a matter of ‘sovereign interest,’ there is no reason to think the

government will represent it.” Id. (citing Mille Lacs Band of Chippewa Indians v. State of

Minn., 989 F.2d 994, 1001 (8th Cir. 1993); United States v. Union Elec. Co., 64 F.3d

1152, 1170 (8th Cir. 1995)). Put another way, if the interests of the putative intervenors

are narrower than, and cannot be subsumed into, the government entities’ interests, then

the presumption of adequate representation does not arise. Mille Lacs Band, 989 F.2d at

1000.

In Mille Lacs Band, the Eighth Circuit applied this analysis to a dispute over tribal

hunting and fishing rights and concluded that both a group of Minnesota counties and a

group of individual landowners had interests in the litigation that were not subsumed by

those of the State of Minnesota. Id. at 1000-01. With respect to the landowners, the

court focused on the landowners’ property values, which might be affected by diminished

fish and game stocks if tribal rights were recognized, explaining that their “interests are

narrower and more parochial interests than the sovereign interest the state asserts in

protecting fish and game.” Id. at 1001. The court concluded: Because the counties and

the landowners seek to protect local and individual interests not shared by the general

citizenry of Minnesota, no presumption of adequate representation arises. The proposed

14

intervenors need only carry a minimal burden of showing inadequate representation. Id.

And the court went on to explain that the minimal burden was met by the potential for

conflict among the parties’ positions:

Although the Band notes that the counties’ and landowners’

proposed answers are almost identical to the answer filed by

the state, there is no assurance that the state will continue to

support all the positions taken in its initial pleading.

Moreover, if the case is disposed of by settlement rather than

by litigation, what the state perceives as being in its interest

may diverge substantially from the counties’ and the

landowners’ interests. For example, although the state’s

interest in natural resources may lead it to seek no more than

that endangered species are protected and that wildlife stocks

are preserved at certain levels, the counties and the

landowners will be more concerned with ensuring that any

settlement does not impair their property values. A potential

conflict of this sort is sufficient to satisfy the proposed

intervenors’ minimal burden of showing that representation of

their interests by the existing parties may be inadequate.

Id. The intervenors’ interests in this case are comparable to those in Mille Lacs Band,

and for similar reasons, the parens patriae doctrine should not apply. We conclude that

appellants have met their minimal burden of demonstrating that the county does not

adequately protect their interests in this action.

Because appellants have met the criteria for intervention, we conclude that the

district court erred by denying intervention. Despite the district court’s ultimate denial of

intervention, however, appellants were able to participate to some extent in the district

court proceedings and are not seeking a remand for further proceedings in district court.

Rather, at this stage of the proceedings, appellants seek intervention only to appeal the

15

district court’s orders on the merits. We conclude that appellants have the right to

intervene and therefore have standing to appeal the district court’s orders on the merits.

Challenges to merits of district court’s order

Both appellants and the county challenge the district court’s reversal of the

county’s determination that an EIS is required, arguing that McLynn’s participation did

not render the decision arbitrary and capricious, and challenging the district court’s

restrictions on McLynn’s participation in future proceedings.3 In preparing an EAW, an

“RGU applies certain criteria laid out in Minn. R. 4410.1700, subp. 7, to determine

whether the project has potential for significant environmental effects.” Citizens

Advocating Responsible Dev. v. Kandiyohi Cnty. Bd. of Comm’rs, 713 N.W.2d 817, 824

(Minn. 2006) (quotation omitted). “If, after reviewing the EAW, the RGU decides that

the project does have the potential for significant environmental effects, the RGU is

required to issue a ‘positive declaration’ indicating that an EIS must be completed.” Id.

(citing Minn. R. 4410.1700, subps. 1, 3).

This court reviews a county’s positive declaration for an EIS “independently

without according any special deference to the same review conducted by the district

court.” Id. at 832. But we defer to the county, limiting our role to determining whether

the county took a “hard look at the problems involved, and whether it has genuinely

3 The county does not appeal the district court’s decision but, without objection from

LWBC, challenges the district court’s decision on the merits both in briefing and at oral

argument. The county concedes that it takes no position contrary to appellants. Because

we conclude that the county’s failure to appeal precludes consideration of its arguments

on the merits, we address only the arguments of appellants. But we note that the county’s

position that it does not represent all of the interests of the intervenors.

16

engaged in reasoned decision-making.” Id. Nevertheless, a reviewing court should

reverse the county’s positive declaration if it reflects an error of law, is arbitrary and

capricious, or unsupported by substantial evidence. Id.

LWBC argues, and the district court found, that the board’s decision to require an

EIS was arbitrary and capricious because McLynn failed to approach the decision

impartially. A decision is arbitrary and capricious if, among other things, it reflects the

decisionmaker’s will rather than its judgment and if it considered facts not intended by

the legislature. In re Valley Branch Watershed Dist., 781 N.W.2d 417, 423 (Minn. App.

2010); see also Chanhassen Chiropractic Ctr., P.A. v. City of Chanhassen, 663 N.W.2d

559, 562 (Minn. App. 2003) (recognizing that “constitutional due process protections

include the right to an impartial decisionmaker” (quotation omitted)).

The record in this case supports the district court’s finding that McLynn’s actions

reflect partiality that affected the decisionmaking process, making the board’s decision

arbitrary and capricious. McLynn’s comments and proposed edits to the EAW

demonstrate that she failed to approach the EAW process with the neutrality required in

this quasi-judicial matter. McLynn approached the EAW/EIS process in a biased manner

from the beginning. She accepted as fact the assertions of project opponents in their

submissions to the board. And she uniformly rejected any contrary opinions reached by

experts engaged to assist the county in preparing the EAW and by Ross, the consultant

assigned by WSN to exercise independent judgment and expertise in assisting the

county’s preparation of the EAW. The record supports the finding that McLynn’s

17

conduct demonstrated bias and that her ability to alter the EAW to reflect her bias

rendered the decisionmaking process arbitrary and capricious.

Appellants assert that McLynn’s conduct was proper because an RGU is

“responsible for the completeness and accuracy of all information” in an EAW. Minn. R.

4410.1400 (2011). Plainly, the RGU must independently evaluate the statements

proposed to be included in an EAW. But, as the district court found, McLynn’s conduct

in this case does not reflect an independent evaluation of the EAW draft. McLynn

insisted on and obtained input from opponents of the project in shaping the conclusions

contained in the EAW even before the draft was released for public comment, and she

was adamant in changing conclusory statements in the EAW to reflect the bias of project

opponents.

Appellants also assert that this court should affirm the county’s decision because

there is sufficient evidence in the record to support a positive declaration requiring an

EIS. The district court found that the EAW as approved could support either a positive or

a negative declaration, and that, without McLynn’s vote, there was not the majority vote

required in order for the board to issue the positive declaration. We agree that, on this

record, the district court’s decision to remand for a new EAW, drafted without input from

a biased decisionmaker, is the appropriate remedy. See Krummenacher v. City of

Minnetonka, 783 N.W.2d 721, 732-33 (Minn. 2010) (explaining that remand is the

appropriate remedy if the same decision under an appropriate standard would not

necessarily be arbitrary).

18

We also agree with the district court that further proceedings before the board

should be conducted without McLynn’s participation. See Cinderella Career &

Finishing Schs., Inc. v. Federal Trade Comm’n, 425 F.2d 583, 592 (D.C. Cir. 1970)

(remanding for the commission’s reconsideration of the issue without participation of the

commissioner who had prejudged facts); Texaco, Inc. v. Federal Trade Comm’n, 336

F.2d 754, 760 (D.C. Cir. 1964) (stating that when partiality of a commissioner is the only

infirmity, the appropriate remedy is remand for reconsideration without that

commissioner), vacated and remanded on other grounds, 381 U.S. 739, 85 S. Ct. 1798

(1965); Prin v. Council of Monroeville, 645 A.2d 450, 452 (Comm. Ct. Pa. 1994)

(remanding zoning decision for reconsideration without participation of the councilman

who had advocated against the proposed project in his district).4

Affirmed in part, reversed in part, and remanded; motion denied.

4 This issue may be rendered moot if the EQB does not reappoint the county board as the

RGU.      SHARONS    MEMORANDUMN MINNESOTA JUDGES "TAKING" HOMESTEAD PROPERTYS ON DISABLED FAMILYS IS BIZZARE, THESE JUDGES MUST BE REMOVED FROM THEIR OFFICE OF PUBLIC TRUST.

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

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.

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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.