STATEMENT OF FACTS. Paula Prescott. After their relationship ended in 2009, Ms. Prescott obtained a Harassment

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1 STATE OF MINNESOTA COUNTY OF HENNEPIN - Plaintiff, vs. State of Minnesota and Deborah A. Styles, in her individual and official capacities, Defendants. DISTRICT COURT FOURTH JUDICIAL DISTRICT PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTIONS TO DISMISS Court File No: 27-CV Case Type: Other Judge: Frank J. Magill, Jr. STATEMENT OF FACTS From 2006 until 2009, Plaintiff~as in a romantic relationship with a Paula Prescott. After their relationship ended in 2009, Ms. Prescott obtained a Harassment Restraining Order ~HRO) against ~ (Second Amended Complaint, hereinafter "Compl." ~7.) On February 10, 2011, Ms. Prescott called the police and reported had just violated the HRO by engaging in contact with Ms. Prescott while both drove separate vehicles in Minneapolis. -does not deny that he and Ms. Prescott drove their respective vehicles on the same road at the same time, but ~enies that he intended to be in the same place at the same time with Ms. Prescott and he also denies that the coincidental encounter described above was intentional. (Compl. ~8.) As a result of Ms. Prescott's report, II ~as charged with misdemeanor violation of HRO in Hennepin County District Court, Court File No. 27-CR After several court appearances, the criminal case was scheduled for trial to commence on June 6, Defendant Deborah A. Styles, an Assistant Minneapolis City Attorney, represented the State and prosecuted ~Compl. ~9.) 1

2 27 -CV The trial commenced as scheduled on June 6, 2010, and proceeded until June 10, 2011, at which time the trial was abruptly interrupted and later declared a mistrial due to numerous and intentional acts of misconduct by the State and Ms. Styles. Some of Ms. Styles' acts of misconduct during trial are summarized below: a. Ms. Styles repeatedly and intentionally made improper argumentative statements (rather than asking questions) while cross-examining -even after warnings by the trial judge and after prior similar argumentative statements were held to be improper by the district court in response to objections by ~ounsel. b. Ms. Styles asked a series of improper and prejudicial questions that violated II ~onstitutional right to a fair trial, right to presumption of innocence, and right to remain free from self-incrimination. Ms. Styles asked these questions in sequence, one after another, after having been warned by the trial judge to terminate her line of questioning and after objections to these very questions were sustained. As a result of Ms. Styles' improper and prejudicial questioning and misconduct, the trial judge declared a mistrial and had to be rescheduled. (Compl. ~10.) On January 10, 2013, the Minnesota Office of Lawyers Professional Responsibility (OLPR) found Ms. Styles to have committed several violations of the Minnesota Rules of Professional Conduct (MRPC) in June of 2011, during ~rst trial. Ms. Styles was admonished by the OLPR for her violations of MRPC, Rules 8.4( d) and 3.4(3). Specifically, Ms. Styles was found to have violated Rule 8.4(d), "Misconduct," which states, "It is professional misconduct for a lawyer to... engage in conduct that is prejudicial to the administration of justice." Ms. Styles was also found to have violated Rule 3.4(e), "Fairness to Opposing Party and Counsel," which states, "A lawyer shall not... in trial, allude to any matter that the lawyer does 2

3 not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused." (Compl. ~11.) This Court scheduled a retrial of the HRO violation case for November 29, One of the issues raised prior to Ms. Prescott's testimony during retrial was whether the State could introduce evidence related to a dismissed matter that was previously continued for dismissal, and the Court clearly instructed Ms. Styles not to ask any questions related to that matter. The district court also specifically reminded Ms. Styles, shortly before her redirect examination of Ms. Prescott, that Ms. Styles was not to elicit any such testimony from Ms. Prescott. (Compl. ~12.) On December 1, 2011, immediately after receiving the instructions described above, Ms. Styles put Ms. Prescott on the stand and began to question her as to the matter that was continued for dismissal, in violation of the district court's previous rulings. Objections were made and sustained, but Ms. Styles relentlessly continued with the same line of questioning and later became argumentative in response to the trial judge's attempts to convince Ms. Styles to follow the Court's pretrial orders and sustained objections. It became clear, from Ms. Styles' questioning of Ms. Prescott and her comments in response to the trial judge's instructions, that Ms. Styles wanted the jury to learn about the details of the matter that was previously continued for dismissal, which would directly violate the trial court's previous rulings. In fact, during one of the discussions with the trial judge, Ms. Styles was directly told by this Court, "We're not here on the[e] [issue that was continued for dismissal]...,"to which Ms. Styles replied, "How can we not be?" (Compl. ~13.) 3

4 After another set of warnings by the trial judge, Ms. Styles continued her redirect examination of Ms. Prescott. In response to one of the questions, Ms. Prescott stated that IIIII ~as "on probation...," testimony which was in direct violation ofthe trial judge's prior rulings. In addition, Ms. Prescott's testimony was false because -was not, and had never been, on probation for any matter. Ms. Prescott was not allowed to finish her sentence because she was interrupted by an objection and the trial judge's comments; had she not been interrupted, Ms. Prescott would have testified that -was on probation on another matter, which, in addition to being false, directly violated the trial court's numerous, clear, and recent instructions not to introduce any such testimony during trial. (Compl.,-rt4.) On December 1, 2011, shortly before the "probation" testimony, Plaintiff observed Ms. Styles and Ms. Prescott huddling and conferring outside the courtroom for a significant period of time. Upon information and belief, Ms. Styles either (1) intentionally failed to instruct Ms. Prescott, as she was required to do, that Ms. Prescott was prohibited from testifying about the matter that was previously continued for dismissal knowing that, without such an instruction, Ms. Prescott would have undoubtedly raised the issue during trial, or (2) specifically instructed and conspired with Ms. Prescott to introduce false testimony regarding ~allegedly having been on probation in the unrelated matter continued for dismissal, in direct violation of the trial court's clear rulings. (Compl.,-r15.) As a direct result of Ms. Styles' misconduct and violations ofthis Court's orders, coupled with Ms. Prescott's false testimony, the jury received information suggesting that "was on probation," which was false and improperly introduced into the record in violation of this Court's numerous orders and instructions. The same jury that heard Ms. Prescott improperly accusing -of being "on probation" later convicted -for violation of HRO, 4

5 and this Court later entered a criminal judgment, pursuant to the jury's verdict, in favor of the State and against -(Compl. ~16.) Plaintiff appealed his conviction, but the appeal was unsuccessful. Plaintiff then filed the present lawsuit, seeking to have his conviction vacated pursuant to Minn. Stat Plaintiff is not seeking any money damages from any of the Defendants and is only seeking equitable relief pursuant to section Defendants responded with motions to dismiss for failure to state a claim and lack of subject matter jurisdiction, which are presently scheduled to be heard on April 21, As explained below, Defendants' arguments supporting dismissal are without merit and their motions should be denied. STANDARD OF REVIEW Rule 12.02(e): "A Rule 12.02(e) motion raises the single question of whether the complaint states a claim upon which relief can be granted." Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739 (Minn. 2000). A motion to dismiss for failure to state a claim will be granted only if it appears to a certainty from the pleadings as a whole that no facts exist which could be introduced consistent with the pleadings to support granting the relief demanded. Northern States Power Co. v. Franklin, 122 N.W.2d 26, 29 (Minn. 1963). On a motion to dismiss for failure to state claim, the district court may not go outside the pleadings, and all assumptions made and inferences drawn must favor the non-moving party.!d. at 30. "[A] motion to dismiss will be granted only in limited circumstances." N Star Legal Found. v. Honeywell Project, 355 N.W.2d 186, 188 (Minn. Ct. App. 1984). When ruling on a motion to dismiss for failure to state a claim, the district court may consider documents referenced in the complaint without converting the motion to dismiss to 5

6 27 -CV one for summary judgment. Northern States Power Co. v. Minnesota Metropolitan Council, 684 N.W.2d 485, 490 (Minn. 2004). "The showing a plaintiff must make in order to survive a motion to dismiss under Minn. R. Civ. P (e) is minimal. The plaintiff need only allege sufficient facts to state a claim." Noske v. Friedberg, 670 N.W.2d 740, 742 (Minn. 2003). Whether the plaintiff can prove the facts alleged in the complaint is immaterial when considering a Rule 12(e) motion. Martens, 616 N.W.2d at 739. When considering a motion to dismiss for failure to state a claim, all allegations in the complaint must be accepted as true and viewed most favorably to the plaintiff. Honeywell Project, 355 N.W.2d at 188. "[D]ismissals under Rule 12.02(e) are generally disfavored." Jacobson v. Bd of Trustees of the Teachers Retirement Assn., 627 N.W.2d 106, 109 (Minn. Ct. App. 2001). Subject Matter Jurisdiction: Subject matter jurisdiction is "a court's power to hear and determine cases of the general class or category to which the proceedings in question belong." Bode v. Minn. Dep't of Natural Res., 594 N.W.2d 257, 259 (Minn. Ct. App.1999) (quotation omitted). Subject-matter jurisdiction governs a court's authority to consider and decide the issue in controversy. Robinette v. Price, 8 N.W.2d 800, 804 (Minn. 1943). Subject-matter jurisdiction "cannot be conferred by consent of the parties, it cannot be waived, and it can be raised at any time in the proceeding." Tischer v. Housing & Redevelopment Auth. of Cambridge, 693 N.W.2d 426, 430 (Minn. 2005) (citing Minn. R. Civ. P. l2.08(c)). Whether subject-matter jurisdiction exists is a question oflaw. Id at

7 27 -CV ARGUMENT I. SECTION APPLIES TO CRIMINAL JUDGMENTS. Minn. Stat , provides, in relevant part, as follows: Any judgment obtained in a court of record by means of perjury, subornation of perjury, or any fraudulent act, practice, or representation of the prevailing party, may be set aside in an action brought for that purpose by the aggrieved party in the same judicial district within three years after the discovery by the aggrieved party of such perjury or fraud. In such action the court may... may make such... order or judgment as justice shall require. "[A] challenge to a judgment under... [section] requires the commencement of an independent action." Hennepin County Welfare Bd v. Kilkind, 391 N.W.2d 539, 541 (Minn. Ct. App. 1986). "An action brought under... [section] is equitable in its nature and governed by equitable principles." Berkman v. Weckerling, 77 N.W.2d 291, 292, 297 (Minn. 1956). Under section , ''the court has the power, and it is its duty, to award such relief as the facts may require." Id at 298. Application of the statute is to be determined on a case-by-case basis. Hass v. Billings, 42 Minn. 43 N.W. 797, 798 (Minn. 1889). The party challenging the judgment must establish that the judgment was obtained by reason of fraudulent and false testimony. Dart v. Richardson, 104 N.W. 1094, 1096 (Minn. 1905). The statute is not intended to be used as a forum for re-litigation of the original trial issues. Betcher v. Midland Nat'! Bank, 209 N.W. 325, 326 (Minn. 1926). The object of statutory interpretation is to ascertain and effectuate the intention of the legislature. Minn. Stat If a statute is clear and unambiguous, the language determines its meaning.!d. When construing statutes, the reviewing court cannot supply language that the legislature purposefully omitted or inadvertently overlooked. Reiter v. Kiffmeyer, 721 N.W.2d 908, 911 (Minn. 2006); Metropolitan Sports Facilities Com 'n v. County of Hennepin, 561 7

8 ~--~ -~--~ CV N.W.2d 513, (Minn. 1997); Semler v. Klang, 743 N.W.2d 273, 280 (Minn. Ct. App. 2007). "When a statute speaks with clarity in limiting its application to specifically enumerated subjects, its application shall not be extended to other subjects by process of construction." Martinco v. Hastings, 122 N.W.2d 631, 637 (Minn. 1963); see also County of Morrison v. Litke, 588 N.W.2d 16, 18 (Minn. Ct. App. 1997). In the present case, section clearly states, in plain terms, that it applies to "any judgment obtained in a court of record by means of perjury, subornation of perjury, or any fraudulent act, practice, or representation of the prevailing party." (emphasis added). There is no language in the statute stating or even suggesting that it only applies to challenges of civil judgments. There is also no language within the statute limiting its application to certain types of cases but not others. To the contrary, section clearly states that it applies to "any" judgment, civil or criminal. See Because the text of section is clear and unambiguous and b~cause section explicitly states that it applies to "any" judgment, section can be used to challenge a criminal judgment. See (stating that if a statute is clear and unambiguous, the language determines its meaning). For all of these reasons, section can be used to challenge a criminal judgment. II. MINNESOTA'S POSTCONVICTION STATUTE DOES NOT BAR A CHALLENGE TO A CRIMINAL JUDGMENT PURSUANT TO SECTION Defendants argue that Minnesota's postconviction statute bars an independent cause of action pursuant to section , challenging a criminal judgment. As explained below, this argument is without merit. Minnesota's postconviction statute provides, in relevant part, as follows: 8

9 This remedy takes the place of any other common law, statutory or other remedies which may have been available for challenging the validity of a conviction, sentence, or other disposition and must be used exclusively in place of them unless it is inadequate or ineffective to test the legality of the conviction, sentence or other disposition. Minn. Stat , subd. 2. Plaintiff acknowledges that section , subd. 2, discourages the use of other statutes for the purpose of challenging criminal convictions. However, the postconviction statute does prohibit the use of other statutes to challenge a criminal conviction and explicitly allows such non-postconviction lawsuits if the postconviction statute is "inadequate or ineffective to test the legality of the conviction." As explained below, Plaintiff should be allowed to proceed with his claim under section because the postconviction statute is "inadequate or ineffective" under the circumstances of this case. See , subd. 2. In this case, Plaintiff seeks to have his criminal judgment vacated on the grounds that Ms. Styles either intentionally attempted to introduce, and actually succeeded in introducing, false and prohibited testimony during trial, or intentionally failed to take proper precautions to prevent such improper testimony from being introduced. ~as tried once by this Court and a mistrial had to be declared as a direct result of Ms. Styles' actions during the trial. ~was then tried a second time, during which Ms. Styles caused improper testimony to be introduced. Ms. Styles was admonished by OLPR for her conduct during the first trial, and -was eventually convicted during the second trial by a jury who heard the false testimony pertaining to being on "probation," testimony improperly elicited by Ms. Styles. ~rought this lawsuit seeking to prove that Ms. Styles ( 1) intentionally violated his rights during the first trial and (2) intentionally elicited false and improper testimony during the second trial, which affected the jury's verdict and caused the jury to convict ~or a 9

10 crime he did not commit. In order for ~to prove out his case, he needs an opportunity to conduct discovery. Specifically, ~eeds to depose Ms. Styles, ~eeds to depose Ms. Prescott, and ~eeds to obtain privileged government data from the City of Minneapolis pertaining to any similar violations by Ms. Styles against other criminal defendants. In addition, ~lso needs to have an opportunity to prove, through the use of expert testimony, what effect the "probation" statement had on the jury's verdict in the second trial. Finally, ~seeks to have a jury trial on these issues to determine whether it would be "equitable," because of Ms. Styles' repeated acts of misconduct against him, to have his criminal judgment vacated and set aside. See Berkman, 77 N. W.2d at 292, 297 ("An action brought under... [section] is equitable in its nature and governed by equitable principles."). The postconviction statute is "inadequate" and "ineffective" in this case for several reasons. First, with respect to Ms. Styles' misconduct during the first trial, the postconviction statute offers no remedy for ~hatsoever because this Court declared a mistrial and -was not convicted as a result of that trial. In addition, ~ has no other meaningful remedy for pursuing any sort of justice for the violations he suffered at the hands Ms. Styles during the first trial because Ms. Styles will likely be protected by absolute immunity if sued for money damages, even if -is successful in proving that Ms. Styles intentionally and maliciously violated his rights. Ms. Styles caused -o be tried twice for the same criminal offense, and there is a possibility that -would have been acquitted during the first trial had Ms. Styles not violated his rights. At the same time, neither the postconviction statute nor a lawsuit for damages would allow ~to vindicate his rights violated by Ms. Styles during the first trial. ~seeks to prove in this case that Ms. Styles' misconduct during the first trial was so outrageous and egregious that it warrants the 10

11 "equitable" remedy of vacating the criminal judgment Ms. Styles obtained in the second trial. The postconviction statute does not offer ~a remedy for the violations he suffered during the first trial, whereas section does offer -an opportunity to challenge his criminal judgment on "equitable" grounds. See Berkman, 77 N.W.2d at 292, 297 ("An action brought under... [section] is equitable in its nature and governed by equitable principles."). For these reasons, the postconviction statute is "inadequate" and "ineffective" as applied to this case. See , subd. 2. Second, with respect to Ms. Styles' misconduct during the second trial, the postconviction statute is likewise "inadequate." As noted above, -seeks to conduct extensive discovery on Ms. Styles' motives for the alleged misconduct during the second trial as well as Ms. Styles' possible misconduct in other similar cases. In addition, ~lso seeks to have a full trial on the issue of whether Ms. Styles' misconduct is sufficiently egregious to warrant the equitable remedy of vacating ~riminal judgment obtained as a result of Ms. Styles' misconduct. The postconviction statute is inadequate under the circumstances of this case because it does not allow an opportunity to conduct discovery and it does not allow for a full trial on the merits. Minnesota's postconviction statutes, , et seq., are relatively brief and they precisely set out the procedures to be followed when a postconviction petition is filed. Specifically, once the petition is filed, it must be answered, and the Court is then required to either deny the petition on the pleadings or hold an "early hearing." See , subd. I. If the "early hearing" is allowed, the court may receive evidence, but the introduction of such evidence is limited to "the discretion of the court" and neither party has a right to introduce and present evidence in a way they would during a civil trial. See , subd. 3. The postconviction 11

12 statutes do not give the petitioner the right to conduct full discovery, nor do they allow any time for such discovery to be had because the hearing, even if one is ordered, is an "early hearing," which would not allow sufficient time for detailed discovery, such as interrogatories, requests for production, and depositions of Ms. Styles, Ps. Prescott, and perhaps other witnesses who have knowledge about Ms. Styles' prior misconduct. Thus, the postconviction statute is "inadequate" for resolving the matters being litigated in this lawsuit and does not provide sufficient opportunity to prepare evidence for trial or to even have a full trial on the merits. See I, subd. 2. Defendants argue in their memoranda that, even if ~ase can proceed under section , the doctrine of collateral estoppel nonetheless bars this case. This argument is without merit because -is not attempting to re-litigate the issues that were raised at trial. Specifically, -s not challenging any of Ms. Prescott's testimony during trial, the facts on which the jury relied in making its decision, or any of the legal standards applicable to his criminal conviction or the crime for which he was convicted. Instead, the purpose of this case is to challenge the manner in which -was convicted and Ms. Styles' alleged repeated violations of ights and court orders during both the first and the second trial. The issue that was litigated at trial was whether -committed a crime. The issue that is being litigated in this case, on the other hand, is whether Ms. Styles' misconduct during ~riminal proceedings, coupled with the "probation" testimony, was so egregious that it warrants vacating conviction for equitable reasons. As such, the doctrine of collateral estoppel does not apply under the circumstances of this case. As explained above, Minnesota's postconviction statute is "inadequate" and "ineffective" under the circumstances of this case and the doctrine of collateral estoppel does not apply. For 12

13 these reasons, Minnesota's postconviction statute does not bar a challenge to a criminal judgment pursuant to section , and this case should be allowed to proceed to discovery and trial. III. THE STATE IS NOT ENTITLED TO SOVEREIGN IMMUNITY IN THIS CASE BECAUSE" PLAINTIFF ONLY SEEKS EQUITABLE RELIEF. The State argues in its memorandum that it cannot be named as a defendant in this civil case due to sovereign immunity. As explained below, this argument is without merit. First, it is well-established that the State may waive its sovereign immunity, thereby subjecting itself to civil litigation. See University of Minnesota v. Raygor, 620 N.W.2d 680, 684 (Minn. 2001). In criminal cases, the State routinely names itself as a plaintiff and, through this action, waives its sovereign immunity as it applies to lawsuits challenging the conviction obtained by the State. In addition, it is important to highlight that Plaintiff is not seeking any damages from the State in this case or payment of any sort. Instead, Plaintiff simply seeks to have his conviction vacated by this Court pursuant to section In Lund v. Commissioner of Public Safety, the only recent case cited by the State in support of its argument, the Supreme Court held that litigants cannot recover money from the State, but that litigants can nonetheless pursue actions against the State which do not require payment of damages or costs and disbursements. 783 N.W.2d 142, 143 (Minn. 2010). In addition, Lund distinguished between cases where the State acts in its "sovereign capacity" from cases where the State acts in its "proprietary capacity" and determined that cases involving the State as a "sovereign" are not barred. See id. Here, as in Lund, the State was acting in its "sovereign" capacity when it obtained a criminal judgment against - and -s likewise now suing the State in its "sovereign" capacity in 13

14 ~ ~ ~ 27-CV this case. For these reasons, the doctrine of sovereign immunity does not bar lawsuit in this case. Finally, the State's argument has been rejected by the Minnesota Court of Appeals. In Mitchell v. Steffen, the Court considered whether the State's sovereign immunity applies to cases seeking equitable relief. 487 N.W.2d 896, (Minn. Ct. App. 1992), aff'd, 504 N.W.2d 198 (Minn. 1993). After a lengthy discussion, the Court in Mitchell determined that an action for "equitable relief... is not barred by the doctrine of sovereign immunity" and allowed the Plaintiff in that case to obtain equitable relief against the State.!d. at 907. In this case, as in Mitchell, ~seeks only equitable relief from the State. For this reason, the doctrine of sovereign immunity does not apply and this lawsuit should be allowed to proceed.!d. IV. MS. STYLES IS NOT ENTITLED TO ABSOLUTE IMMUNITY IN THIS CASE BECAUSE PLAINTIFF ONLY SEEKS EQUITABLE RELIEF. Ms. Styles argues in her memorandum that she should be dismissed as a Defendant in this lawsuit because she is entitled to absolute immunity. This argument is without merit and was recently considered and rejected by the Minnesota Court of Appeals in Simmons v. Fabian, 743 N.W.2d 281 (Minn. Ct. App. 2007). In that case, the Court considered whether absolute immunity applies to actions for equitable relief and determined that it does not.!d. at 294. Simmons stated that "the well established rule is that immunity from damages does not ordinarily bar equitable relief as well."!d. (quotation marks omitted). After a lengthy discussion of various public policies supporting absolute immunity, Simmons determined that the absolute immunity doctrine only applies to suits for damages and does not bar lawsuits for equitable relief. Id. In the present case, -is not seeking any money damages from Ms. Styles and the Amended 14

15 ~~-----~~ CV Complaint makes clear that -is only seeking equitable relief pursuant to section For these reasons, Ms. Styles is not entitled to absolute immunity. Ms. Styles also argues that she is not a proper defendant in this lawsuit because she does not have authority to set aside 'minal judgment. This argument is likewise without merit because -is asking this Court, not Ms. Styles, to consider setting aside his criminal judgment on equitable grounds pursuant to section Ms. Styles was added as a Defendant in this case because she prosecuted _.nd because the State has taken the position that it cannot be named as a defendant. Section authorizes the Court, not the defendant, to set aside the judgment in question. Thus, Ms. Styles' inability to set aside II -udgment does not disqualify her from being named as a Defendant in this lawsuit. CONCLUSION As explained in detail above, section applies to criminal judgments, and Minnesota's postconviction statute does not bar ~awsuit under the circumstances of this case. Furthermore, because ~nly seeks equitable relief against the Defendants, the doctrines of sovereign and absolute immunity do not apply. For the foregoing reasons, Plaintiff respectfully requests that Defendants' motions to dismiss be denied. THE LAW OFFICE OF ZORISLA V R. LEYDERMAN Dated: February 18,2015 By: s/ Zorislav R. Leyderman ZORISLA V R. LEYDERMAN Attorney License No Attorney for Plaintiff The Law Office of Zorislav R. Leyderman 222 South 9 1 h Street, Suite 1600 Minneapolis, MN Tel: (612) zrl@zrllaw.com 15