State of Minnesota In Supreme Court

Transcription

1 NO. A State of Minnesota In Supreme Court TONY WEBSTER vs. Appellant, HENNEPIN COUNTY AND THE HENNEPIN COUNTY SHERIFF S OFFICE Respondents/Relators. APPELLANT S REPLY BRIEF Scott M. Flaherty (#388354) Cyrus C. Malek (#395223) Samuel Aintablian II (#398075) BRIGGS AND MORGAN, P.A IDS Center 80 South Eighth Street Minneapolis MN Tel: (612) sflaherty@briggs.com Attorneys for Appellant Tony Webster Daniel Rogan, Sr. (#274458) HENNEPIN COUNTY ATTORNEY S OFFICE A-2000 Government Center 300 South Sixth Street Minneapolis, MN Tel: (612) daniel.rogan@hennepin.us Attorney for Respondents Hennepin County and the Hennepin County Sheriff s Office

2 TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES... ii INTRODUCTION...1 ARGUMENT...1 I. NORTHERN PACIFIC RAILWAY REMAINS THE PROPER LEGAL STANDARD FOR A STAY PENDING APPEAL...1 II. III. A. Northern Pacific Railway need not precede to Minn. Stat and Appellate rule 108 to control...2 B. The Northern Pacific Railway Court adopted the rule from Corpus Juris Secundum, which included a factor test...3 C. Likelihood of Success on appeal is implicitly included within the Northern Pacific Railway framework In equity matters, courts account for likelihood of success on appeal; and they should Likelihood of success on appeal necessarily is a factor when considering the harms to a party seeking and opposing a stay Likelihood of success on appeal is explicitly included in the modern formulation of Corpus Juris Secundum...8 RESPONDENTS MISCHARACTERIZE THE PHRASE MAY ORDER A STAY UPON SUCH TERMS AS IT DEEMS PROPER IN MINNESOTA STATUTES RESPONDENTS WILL NOT BE SERIOUSLY INJURED ABSENT A STAY CONCLUSION i

3 TABLE OF AUTHORITIES Page(s) Cases C.H. Robinson Worldwide, Inc. v. XPO Logistics, Inc., No. 27-CV , 2014 WL (Minn. 4th Jud. Dist., Jan. 14, 2014) (Abrams, J.)...6 Churchill Envtl. & Indus. Equity Partners, L.P. v. Ernst & Young, L.L.P., No. MP , 2001 WL (Minn. 4th Jud. Dist. Dec. 7, 2001) (Nord, J.)...6 Cooper v. Gwinn, 298 S.E.2d 781 (W.Va. 1981) DRJ, Inc. v. City of St. Paul, 741 N.W.2d 141 (Minn. App. 2007)... 9, 14 Green v. BMW of N. Am., LLC, 826 N.W.2d 530 (Minn. 2013) Hilton v. Braunskill, 481 U.S. 770 (1987)... 6, 7 Holt v. State, 772 N.W.2d 470 (Minn. 2009)...3 Howe v. City of St. Paul, No. C , 1995 WL (Minn. Ct. App. Feb. 14, 1995) Jaeger v. Palladium Holdings, LLC, 884 N.W.2d 601 (Minn. 2016)... 2, 3 Kelsey v. State, 298 Minn. 531, 214 N.W.2d 236 (1974)...3 LaMont v. Premier Bank Minnesota, No. A11-211, 2011 WL (Minn. Ct. App. Oct. 11, 2011) ii

4 Larkin v. Wells Fargo Bank, N.A., No. 27-cv , 2012 WL (Minn. 4th Jud. Dist. May 10, 2012) (Quam, J.)...6 MacLean v. Lasley, 181 Minn. 379, 232 N.W. 632 (1930)...3 Marple v. Minneapolis & St. L. Ry. Co., 115 Minn. 262, 132 N.W. 333 (1911)...5 Marriage of Gottsacker v. Gottsacker, 664 N.W.2d 848, 852 (Minn. 2003)...5 Peterson v. Johnson Nut Co., 209 Minn. 470, 297 N.W. 178 (1941) Reiter v. Sonotone Corp., 442 US 330 (1979)... 4,5 Stabs v. City of Tower, 229 Minn. 552, 40 N.W.2d 362 (1949)... 8,9 State v. Fearon, 283 Minn. 90, 166 N.W.2d 720 (1969)... 6, 7 State v. Murphy, 277 Minn. 355, 152 N.W.2d 507 (1967)...7 State v. Northern Pacific Railway Co., 221 Minn. 400, 22 N.W.2d 569 (1946)... passim State v. Serstock, 402 N.W.2d 514 (Minn. 1987)...8 State v. Wedge, 24 Minn. 150 (1877)...8 Statutes Minn. Stat passim Minn. Stat Minnesota Government Data Practices Act... 13,14 iii

5 Other Authorities Appellate rule passim 4 C.J.S. Appeal and Error , 4, 8 D. Walker, The Oxford Companion to Law (Clarendon Press, Oxford 1980) Minn. R. Civ. P. 4.03(a)...3 iv

6 INTRODUCTION Stays are equitable, not legal, and this Court s decision in State v. Northern Pacific Railway Co., 221 Minn. 400, 22 N.W.2d 569 (1946) embodies the traditional principle that equity is flexible. This flexibility means that decisions of whether to issue a stay pending appeal are context-dependent and vary on a case-by-case basis. As such, the test reflected in trial courts application of Northern Pacific Railway and in its federal counterpart is not a checklist to be ticked by rote but is instead a guide for a trial court s discretion to permit meaningful appellate review of it. In an effort to topple Northern Pacific Railway, Respondents miss this point. Respondents brief also mischaracterizes the statutory phrase may order a stay upon such terms as it deems proper and they attempt to vivisect Northern Pacific Railway rather than reading its parts together in context. And finally they imply that without the existing stay, the most populous, wealthiest county in the state cannot produce s that they have already identified, segregated, and preserved. ARGUMENT I. NORTHERN PACIFIC RAILWAY REMAINS THE PROPER LEGAL STANDARD FOR A STAY PENDING APPEAL. Respondents make three arguments regarding State v. N. Pac. Ry. Co., 221 Minn. 400, 22 N.W.2d 569 (1946). First, Respondents argue that Northern Pacific Railway cannot control because the case predates Minn. 1

7 Stat and appellate rule 108. Respondents then argue that neither Northern Pacific Railway nor Corpus Juris Secundum included a factor test. Finally, Respondents argue that, even if Northern Pacific Railway or Corpus Juris Secundum included a factor test, likelihood of success on appeal is not included among those factors. These arguments are all erroneous. A. Northern Pacific Railway need not precede Minn. Stat and Appellate rule 108 to control. Respondents assert that because Northern Pacific Railway was not a request for a stay under Minn. Stat , and was decided in 1946, long before the creation of the Rules of Civil Appellate Procedure, Resp. Br. at 16, Northern Pacific Railway cannot be controlling precedent here. Respondents argument misses its mark in two ways. As discussed fully in Section II of this brief, Respondents stretch Minn. Stat beyond its meaningful bounds, so it is irrelevant whether Northern Pacific Railway was a request for a stay under Minn. Stat Further, Respondents offer no support for the conclusion that precedent fails to control when that precedent predates a codified rule of law. On the contrary, this Court has recognized the opposite. In Jaeger v. Palladium Holdings, LLC, 884 N.W.2d 601 (Minn. 2016), this Court addressed the validity of service of process upon an individual for notice of a foreclosure sale under Minn. R. Civ. P. 4.03(a). In discussing the substitute-service requirement, the Court cited a 1930 case, MacLean v. 2

8 Lasley, 181 Minn. 379, 380, 232 N.W. 632, 632 (1930), for the proposition that substitute-service requirements are subject to strict compliance. See Jaeger, 884 N.W.2d at 609. After citing MacLean, the Court explained: Although MacLean predates our adoption of the Minnesota Rules of Civil Procedure, there is no reason to treat substitute service under Rule 4.03(a) any differently than we did in MacLean. Id.; see also Holt v. State, 772 N.W.2d 470, (Minn. 2009) (relying on Kelsey v. State, 298 Minn. 531, 532, 214 N.W.2d 236, 237 (1974) for its harmless error analysis despite Kelsey predating the Minnesota Rules of Criminal Procedure). Jaeger and Holt suggest that Northern Pacific Railway is not eliminated even though the appellate rules were adopted in its wake. B. The Northern Pacific Railway Court adopted the rule from Corpus Juris Secundum, which included a factor test. As Respondents correctly note, 4 C.J.S. Appeal and Error 636, as cited by the Court in Northern Pacific Railway, provides the following: As a rule a supersedeas or stay should be granted, if the court has the power to grant it, whenever it appears that without it the objects of the appeal or writ of error may be defeated, or that it is reasonably necessary to protect appellant or plaintiff in error from irreparable or serious injury in case of a reversal, and it does not appear that appellee or defendant in error will sustain irreparable or disproportionate injury in case of affirmance. It should be granted where the loss or damage occasioned by the stay can be met by a money award, where important questions of law are raised, which, if decided in favor of appellant or plaintiff in error, will require a reversal, to avoid a multiplicity of suits, or to protect the appellate court s jurisdiction. 3

9 State v. N. Pac. Ry. Co., 221 Minn. 400, , 22 N.W.2d 569, (1946). Respondents conclude that the above language is in reference to general rules that a court may consider. Often overlooked, however, is the text of the next sentence in 4 C.J.S. Appeal and Error 636, which provides: A supersedeas or stay will not be granted by either the lower or the appellate court unless it appears to be necessary to prevent irreparable injury or a miscarriage of justice, and that substantial questions will be presented on appeal. Nor will it be granted where it appears that the appeal or writ of error is merely for the purpose of delay, is frivolous, and without merit; 4 C.J.S. Appeal and Error 636. Using the phrase will not be granted unless provides a directive. That directive is that a specific requirement must be satisfied for a stay pending an appeal to be granted. Congruently, the phrase Nor will it be granted where exemplifies that the preceding requirement is multi-faceted. C. Likelihood of Success on appeal is implicitly included within the Northern Pacific Railway framework. Respondents argue that Northern Pacific Railway does not contemplate likelihood of success on appeal as a factor that must be considered. To reach this conclusion, Respondents dissect Northern Pacific Railway, pulling out the fragmented shrapnel and examining those pieces as needed. In essence, Respondents treat Northern Pacific Railway as a statute. But, Respondents mechanical parsing is impermissible because judicial decisions are not statutes and they must not be treated as such. See Reiter v. Sonotone Corp., 4

10 442 US 330, 342 (1979) (explaining that the language of an opinion is not always to be parsed as though we were dealing with language of a statute ). Furthermore, Respondents mandate that likelihood of success must be explicit in Northern Pacific Railway before warranting consideration is futile because likelihood of success on appeal is inherently included in the types of equitable weighing involved in decisions like stays pending appeal In equity matters, courts account for likelihood of success on appeal; and they should. When deciding a matter of equity, courts inherently consider the impact of the suggested outcome whether that requirement is codified or not. And they should. See App. Br. at 17 (explaining that a rule that assesses the relative harms of a stay but not the merits of an appeal is counterintuitive, as a litigant with little (or even no) chance of prevailing on appeal may secure a stay nonetheless). A rule contrary to this wastes judicial efficiency and resources. See Marple v. Minneapolis & St. L. Ry. Co., 115 Minn. 262, 266, 132 N.W. 333, 334 (1911) ( Equity will not compel the doing of a useless act. ). 1 A review of the briefs filed in Northern Pacific Railway, (on file with the Minnesota State Law Library) shows that neither party asked the trial court to consider the likelihood of success on appeal. That trial court had no duty to consider an argument that neither litigant made. See Marriage of Gottsacker v. Gottsacker, 664 N.W.2d 848, 852 (Minn. 2003) (discussing that the district court had no duty to consider the issue because it was not raised at trial). 5

11 Minnesota district courts have followed this conventional practice by considering likelihood of success on appeal when determining whether to grant a stay pending an appeal. See e.g., C.H. Robinson Worldwide, Inc. v. XPO Logistics, Inc., No. 27-CV , 2014 WL , at *2-10 (Minn. 4th Jud. Dist., Jan. 14, 2014) (Abrams, J.) (applying N. Pac. Ry. Co., 221 Minn. 400, 22 N.W.2d 569 or the federal-law equivalent); Churchill Envtl. & Indus. Equity Partners, L.P. v. Ernst & Young, L.L.P., No. MP , 2001 WL (Minn. 4th Jud. Dist. Dec. 7, 2001) (Nord, J.) (applying the four factors of Hilton, 481 U.S. at 776); Larkin v. Wells Fargo Bank, N.A., No. 27-cv , 2012 WL , at *1-3 (Minn. 4th Jud. Dist. May 10, 2012) (Quam, J.) (applying those four federal factors). These factors serve both to channel a trial court s discretion, and to permit meaningful appellate review of the exercise of that discretion. While this Court has not had an opportunity to revisit Northern Pacific Railway until now, the Court has considered an implicit word in a codified rule. In State v. Fearon, this Court examined a statute on intoxication, Minn. Stat , which read: Every person who becomes intoxicated by Voluntarily drinking intoxicating liquors is guilty of the crime of drunkenness, and shall be punished as follows. 283 Minn. 90, 91, 166 N.W.2d 720, 721 (1969). The Court opined that it was rare for the Court to review such a statute, but explained that the Court had done so a few years 6

12 earlier in State v. Murphy, 277 Minn. 355, 357, 152 N.W.2d 507, 509 (1967). See Fearon, 283 Minn. at 93, 166 N.W.2d at 722. The Fearon Court then quoted Murphy for this commentary on the intoxication statute: Unlike some ordinances and statutes which punish that offense, s does not merely proscribe intoxication in a public place or intoxication accompanied by disorderly or offensive conduct. The statute punishes any excessive drinking to the point of intoxication. See Fearon, 283 Minn. at 93-94, 166 N.W.2d at 722. After quoting Murphy s explanation, the Court noted the difference between Murphy s explanation and the statutory text. Id. In response, the Court in Fearon reasoned that [u]nless we are to assume that the [Murphy] court intended to read the word voluntarily out of the statute, we must conclude that it is implicit in the above statement that the prohibition extends only to voluntary excessive drinking. Id. Fearon reiterates that in certain instances, implicit words merit consideration. 2. Likelihood of success on appeal necessarily is a factor when considering the harms to a party seeking and opposing a stay. Neither party disputes the conclusion that a harm-analysis is an integral component to determine whether a stay pending an appeal should be granted. When analyzing harm, the determining consideration is whether the stay itself will cause the impending harm. See N. Pac. Ry. Co., 221 Minn. 400, , 22 N.W.2d 569, (1946); see also Hilton v. Braunskill, 481 7

13 U.S. 770, 776 (1987). Likelihood of success on appeal is inherently a part of this analysis. The harm a litigant is facing from a stay depends on how likely a litigant is to succeed on appeal. Revisiting the hypothetical from above, a litigant with little chance of prevailing on appeal faces minimal harm, with or without a stay, as both paths lead to the same conclusion: the litigant losing. Here, a stay merely delays the inevitable. By contrast, the same consideration and analysis could not be accomplished without considering likelihood of success on appeal. 3. Likelihood of success on appeal is explicitly included in the modern formulation of Corpus Juris Secundum. Finally, the modern formulation of 4 C.J.S. Appeal and Error 636 explicitly includes likelihood of success on appeal as a factor, providing: A party requesting a stay pending appeal must show [1] a likelihood of prevailing on the merits, [2] irreparable injury in the absence of a stay, and [3] that a stay will not substantially harm other interested parties nor the public interest. A court may also consider [4] whether the object of the appeal will be defeated if the stay is denied, and it is an abuse of discretion to deny supersedeas where a refusal to supersede the judgment would deny the right to any appeal. Moreover, this Court has a history of adopting principles that the Court had adhered to in the past. See State v. Serstock, 402 N.W.2d 514, 517 (Minn. 1987) (adopting a 100-year-old approach consistent with the Court s previous holding in State v. Wedge, 24 Minn. 150 (1877)); see also Stabs v. City of 8

14 Tower, 229 Minn. 552, 566, 40 N.W.2d 362, 371 (1949) (authorizing this Court to apply old rules to newly created conditions in proper instances). II. RESPONDENTS MISCHARACTERIZE THE PHRASE MAY ORDER A STAY UPON SUCH TERMS AS IT DEEMS PROPER IN MINNESOTA STATUTES Respondents pepper their brief with the phrase may order a stay upon such terms as it deems proper. In doing so, Respondents repeatedly argue that in the context of granting a stay pending an appeal, this phrase provides a court with extremely broad discretion to consider any factors that the court deems proper. See Resp. Br. at Respondents conclude that Judge Mortenson acted within his discretion because he had the authority to grant Respondents stay motion upon any factors he deemed proper, including those factors in DRJ, Inc. v. City of St. Paul, 741 N.W.2d 141 (Minn. App. 2007). See Resp. Br. at Here, Respondents conflate the word factors, with the word in the statute: terms. The phrase may order a stay upon such terms as it deems proper derives from the first sentence of Minn. Stat , which provides: The filing of the writ of certiorari shall not stay the enforcement of the agency decision; but the agency may do so, or the Court of Appeals may order a stay upon such terms as it deems proper. Although Respondents are correct that this sentence affords discretion, Respondents miss the object of that discretion. Particularly germane to this analysis is the meaning of the word 9

15 terms. As used in the phrase upon such terms as it deems proper, the word terms does not mean factors, justifications, or rationales, as Respondents suggests; instead, terms relates to the terms and conditions of the security, if any, required to ensure that the prevailing party can be secure in victory. 2 Minnesota Statutes governs stays of decisions in general but offers no guidance on the meaning of the word term. Moreover, because a stay pending an appeal is typically adjudicated in the trial court, this Court has seldom had an opportunity to review such rules and provide guidance. So it is necessary to examine other rules for direction. Pertinent here is Minn. R. Civ. App. P. 108, which specifically governs stays pending an appeal. Appellate rule , subdivision 2, provides: [A] trial court may grant [a stay]... if the appellant provides security in a form and amount that the trial court approves. This provision indicates that a court s discretion relates to the security required for a stay, rather than the justifications for granting a stay. Subdivisions 3 and 4 of Minn. R. Civ. App. P continue by discussing that the trial court approves both the appropriate form of the 2 Respondents need not post a bond. See Minn. R. Civ. App. P , subd. 10

16 security and the amount of the security. 3 Finally, Minn. R. Civ. App. P , subd. 6, provides: If the Court of Appeals grants the motion, it may give relief on the same terms that a trial court may give under Rule , subds. 2, 3, and 4, and may require that any security that the appellant must provide be posted in the trial court. (Emphasis Added). Appellate rule , subdivision 6, draws a parallel between the court of appeals granting a motion for a stay pending an appeal and the trial court granting such a motion. Notably, the rule is specific that a trial court grants a stay under the terms listed in Minn. R. Civ. App. P subds. 2, 3 and 4: security required; form of security; and amount of security. Stated differently, Minn. Stat left open the meaning of the word terms. That missing ingredient is in Minn. R. Civ. App. P , subd. 6, which explains that terms relate to the security required to obtain a stay. And the practice of Minnesota courts confirms that terms does not refer to the legal test that governs the issuance of stays. See Howe v. City of St. Paul, No. C , 1995 WL 59224, at *2 (Minn. Ct. App. Feb. 14, 1995) ( This court granted the motion for a stay pending appeal and remanded to the city council to impose reasonable terms and conditions. ) (Emphasis added); LaMont v. Premier Bank Minn., No. A11-211, 2011 WL 3 Appellate rule , subdivision 5 requires each provider of security to submit to the jurisdiction of the district court. 11

17 , at *3 (Minn. Ct. App. Oct. 11, 2011) ( Accordingly, the special term panel granted a stay and remanded the matter to the district court for a determination of the appropriate terms and conditions of a stay pending appeal. ) (Emphasis added). Based on this common practice, if the word terms meant factors, and if Minn. Stat provided a court with the discretion to grant a stay upon any factors that the court deemed fit, then courts would have no reason to grant a stay and then remand the case for determination of the proper terms and conditions. This reading would be unusual, insofar as it would allow a trial court to determine what law to apply when considering a stay. District courts may not choose what law to apply; a district court abuses its discretion when it misapplies the law. See Green v. BMW of N. Am., LLC, 826 N.W.2d 530, 539 (Minn. 2013) (finding an abuse of discretion when the district court failed to consider all relevant factors); Peterson v. Johnson Nut Co., 209 Minn. 470, , 297 N.W. 178, 180 (1941) (admonishing the district court for failing to follow the Court s precedent). Since Minn. Stat provides no court with free-wheeling, standard-less discretion, Respondents argument that Minn. Stat controls, while Northern Pacific Railway does not, fails. 12

18 III. RESPONDENTS WILL NOT BE SERIOUSLY INJURED ABSENT A STAY. Respondents note that absent a stay, the April 22 Order will require Respondents to complete a voluminous review, redaction and production of documents, Resp. Br. at 29, and that [e]xpending the resources necessary to complete the production will harm Respondents and the public as Respondents will expend limited resources on complying with the Order rather than performing other important government functions. Id. This argument is startling and dangerous. It suggests that Hennepin County and its Sheriff s Office are unwilling or unable to comply with the MGDPA while also carrying out important government functions. If adopted, this reasoning would allow any governmental entity to ignore a statute, when the law or a court order enforcing it imposes a burden. This reasoning treats legislation and court orders as mere considerations, suggestions, or factors to consider. The rule of law means more than the duty to maintain order; it also means that the government itself is subject to rules of law, and cannot disregard the law. Cooper v. Gwinn, 298 S.E.2d 781, 786 (W.Va. 1981) (citing D. Walker, The Oxford Companion to Law, at 1093 (Clarendon Press, Oxford 1980)). Within this supposedly voluminous review and cumbersome redaction project, Respondents omit two things. First, Respondents omit that they have 13

19 already performed the search ordered by the ALJ, have segregated responsive data, and had begun rolling productions of those responsive data. (See May 4, 2016 Declaration of Daniel Rogan 3-4.) Second, Respondents also fail to recognize that their obligations derive from a statute the MGDPA which mandates prompt compliance with requests for government data. Respondents cannot claim that their burden is too high, when burden is not the standard; irreparable harm is. See App. Br. at 24. And no irreparable harm or serious injury was found against Respondents. CONCLUSION Although it predates appellate rule 108, Northern Pacific Railway recognizes the traditional principle of flexibility in making equitable determinations, like issuing stays. The trial court, and the court of appeals, relied on DRJ, Inc. s inflexible rule that a trial court may not weigh the merits of an appeal in considering whether to grant a stay pending appeal. (July 5, 2015 Order.) That proscription has no basis in this Court s jurisprudence, nor in the traditional law of equity. Webster asks the Court to reverse the court of appeals reliance on DRJ, Inc. and re-affirm Northern Pacific Railway as controlling law governing stays pending appeal under appellate rule 108. As guidance to the bench and bar, this Court should apply Northern Pacific Railway to the facts found by the ALJ to vacate the stay and remand this case with instructions for the ALJ to supervise rolling 14

20 inspections of the government data described in 3 of the May 4, 2016 Rogan Declaration. Alternatively, the Court could reverse and remand for the ALJ to apply Northern Pacific Railway to the facts it found. The MGDPA s promptness requirement favors the former. Respectfully submitted. 15

21 Dated: December 1, 2016 BRIGGS AND MORGAN, P.A. By: s/ Scott M. Flaherty Scott M. Flaherty (#388354) Cyrus C. Malek (#395223) Samuel Aintablian II (#398075) 2200 IDS Center 80 South Eighth Street Minneapolis, MN (612) ATTORNEYS FOR APPELLANT TONY WEBSTER 16

22 CERTIFICATE OF COMPLIANCE The undersigned counsel for Appellant, certifies that this brief complies with the requirements of Minn. R. Civ. App P in that it is printed in 13-point, proportionately spaced typeface utilizing Microsoft Word Word 2010 v and contains approximately 3,376 Word Count words, including headings, footnotes and quotations. Dated: December 1, 2016 BRIGGS AND MORGAN, P.A. By: s/ Scott M. Flaherty Scott M. Flaherty (#388354) Cyrus C. Malek (#395223) Samuel Aintablian II (#398075) 2200 IDS Center 80 South Eighth Street Minneapolis, MN (612) ATTORNEYS FOR APPELLANT TONY WEBSTER