Demurrer in re Mann vs Minneapolis City Council case no.

A14-0026

1/21/14 2:10 PM

STATE OF MINNESOTA IN COURT OF APPEALS ____________________________________ In re Doug Mann, Petitioner vs. Minneapolis City Council Respondent DEMURRER TO ANSWER OF RESPONDENT MINNEAPOLIS CITY COUNCIL ____________________________________________________________________ Hennepin County District Court Case type: Other Civil Case No. 27-CV-13-13029 Presiding Judge: The Honorable Phillip D. Bush Appellate Court Case No. A14-026

MEMORANDUM IN RESPONSE TO ANSWER OF RESPONDENT Introduction Petitioner has challenged the determination of the District Court of Hennepin County in its order dated November 12, 2013 to deny and dismiss the petition for a writ of mandamus in Mann vs. Minneapolis City Council, case no. 27-CV-13-13029. To summarize Petitioner’s legal arguments: The District Court ruled in favor of the petitioner on two issues: 1) Petitioner's standing to sue the City Council by virtue of his status as a taxpayer with a vested interest in enforcing the city charter. 2) Local sales taxes authorized by the Legislature and imposed by the City of Minneapolis to pay for a professional sports facility are "city resources" within the meaning of Chapter 15, section 13 (Section 13) of the Minneapolis City Council. The District Court determined that section 13, which requires a referendum was applicable to approval of Session Laws of Minnesota (the Stadium Act), Chapter 299, article 3. However, the District Court also ruled that Section 13 was preempted by the Stadium Act,

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Demurrer in re Mann vs Minneapolis City Council case no. A14-0026

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Article 3, section 4. Petitioner alleges that the Judge erred in ascertaining legislative intent and interpreting the law. The first sentence of the Article 3, section 4 of the Stadium Act, which was voided by the District Court decision, states that: Any amounts expended, indebtedness or obligation incurred including, but not limited to, the issuance of bonds, or actions taken by the city under this act, are deemed not an expenditure or other use of city resources within the meaning of any law or charter provision. . . . The District Court erred in determining that the second and third sentences in article 3, section 4 of the Stadium Act and provisions inseparably connected to it are still valid. In argumentation in the memorandum in support of the petition, I note the following: 1) Minn. stat. section 645.16 LEGISLATIVE INTENT CONTROLS: "The object of all interpretation an construction of laws is to ascertain and effectuate the intention of the legislature. . ." 2) Minn. stat. 645.20 CONSTRUCTION OF SEVERABLE PROVISIONS. . . . . If any provision of a law is found to be unconstitutional and void, the remaining provisions of the law shall remain valid, unless the court finds the valid provisions of the law are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the legislature would have enacted the remaining valid provisions without the void one; or unless the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent. 3) Minn. Stat. 645.17 PRESUMPTIONS IN ASCERTAINING LEGISLATIVE INTENT. In ascertaining the intention of the legislature the courts may be guided by the following presumptions. . . .(3) the legislature does not intend to violate the Constitution of the United States or of this state. . . The Stadium Act, Article 3, section 4 as written did not preempt the Chapter 15, Section 13 of the Minneapolis City Charter. The Legislature did not intend to "preempt" the Minneapolis City Charter but stated only that it “did not apply”. Under the rules of Preemption, the City Charter provisions would be voided on the grounds that State has

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Demurrer in re Mann vs Minneapolis City Council case no. A14-0026

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occupied the area of law addressed by them. Nordmarken vs. City of Richfield, 641 N.W. 2d 343, 347-48 (Minn. Ct. App. 2002) . The legislature can also unilaterally and unconditionally withdraw or modify powers vested in a home rule charter by enactment of general law, but not by enactment of special legislation. Neither of these occurred under the Stadium Act. Respondent's answer does not address issues re legal errors of the District Court Because respondent has chosen to not address the legal arguments regarding errors of law by the District Court, Petitioner stands on original arguments in the memorandum in support of the petition. Respondent's answer does not challenge petitioners standing to sue as a taxpayer Because respondents have chosen to not challenge the petitioners assertion of a right to sue by virtue of his status as a taxpayer with a vested interest in enforcing the Minneapolis City Charter, Petitioner stands on original arguments in the memorandum in support of the petition. Respondents’ Arguments are limited to technical objections to Petitioner’s filing. Respondent alleges that Petitioner did not appeal the District Court order dismissing and denying a writ of mandamus in Mann vs. Minneapolis City Council. The filing can stand as an appeal and request of review of errors committed by the District Court Judge as Petitioner has followed the requirements of Rule 103 of the Rules of Civil Appellate Procedure. Alternatively, Petitioner has complied with Rule 120.01 et seq. in filing a Petition for a Writ of Mandamus. The papers were filed within the time allowed for filing an appeal. The relief sought is an order commanding the District Court to vacate its order dated November 12, 2013 and to issue a writ of mandamus commanding the Minneapolis City Council to refer approval of the use of "city resources" in excess of 10 million dollars to the voters in a referendum. In either case, the remedy sought would be no different. In respondent's memorandum in opposition to the petition, on page 8, last paragraph and

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Demurrer in re Mann vs Minneapolis City Council case no. A14-0026

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page 9 respondent states Rule 103.03(g) provides that an appeal "may be taken to the Court of Appeals. . . from a final order, decision or judgement. . . .made in a . . . .special proceeding" See Minn. R. Civ. P. 103.03(g). In Moritz v. Burns, the plaintiff brought a mandamus action in the district court to compel the defendant to remove an obstruction in an alleged public road or, alternatively, to relocate the road. Moritz v. Burns, 292 Minn. 165, 166 (1972). The district court dismissed the mandamus action. Id. The Supreme Court concluded that the order was appealable under Rule 103.03 as a final order in "a 'special proceeding'"Moritz v. Burns, 292 Minn. 165, 166 n. 1 (1972). [. . . ] (in Mortitz, The Supreme Court noted that an order dismissing a mandamus action is appealable as a final order affecting a substantial right made in a special proceeding." (emphasis in original). However, in Moritz v. Burns, the petition for a writ of mandamus was not dismissed on procedural grounds. ". . . the trial court correctly concluded that there was no dedication of a public road by statutory user pursuant to Minn. St. 160.05." Moritz v. Burns, 193 N.W. 2d. 621 (Jan. 14, 1972) and 292 Minn. 165 (1972). In the decision's concluding paragraph, the Court states "The finding and conclusion of the trial court on the threshold issue of dedication by statutory user is dispositive of plaintiff's claim. We accordingly affirm the order of dismissal without discussion of the other grounds upon which the order was additional based." Moritz v. Burns, 193 N.W. 2d. 622. Respondent's memorandum in opposition to the petition, on pages 7 and 8 states that mandamus ". . . is an "extraordinary" remedy that should only be granted where there is no adequate remedy at law. In re State of Minnesota v. Hart 723 N.W. 2d 254, 257 (Minn. 2006)" The Court determined that there was another remedy for the state "rather than an appeal, our case law dictates that the state's remedy, when a complaint has been dismissed "in the interest of justice," is to refile the complaint. . ." id. "Syllabus A district court's pretrial decision to dismiss a criminal case with prejudice is not appealable. The state's remedy is to refile it complaint, and a district court may be compelled, via a writ of mandamus, to make a probable cause determination on the refiled complaint." In re State of Minnesota v. Hart 723 N.W. 2d

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Demurrer in re Mann vs Minneapolis City Council case no. A14-0026

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255. "Holdings: The Supreme Court, Gildea, J., held that: (1) State was not procedurally precluded from petitioning for a writ of mandamus (2) district court had a duty to make a probable cause determination on refiled complaint. . ." n re State of Minnesota v. Hart 723 N.W. 2d 254. In other words, the state had no option to appeal the decision whatsoever, be it via mandamus or via a writ of error. Respondent alleges that petitioner could have challenged the constitutionality of the stadium law. The case under consideration concerns the duty of the City Council under the charter to hold a referendum before it can commit City resources beyond $10 million for a professional sports facility. Petitioner is challenging the determination of the District Court that there was a preemption of the Minneapolis City Charter, chapter 15, section 13 by the Stadium Act, Article 3, section 4 on the basis of judicial error in ascertaining legislative intent and interpreting the law. Because of the District Court's determination that local taxes imposed by the City of Minneapolis are "city resources" belonging to the City, and not the State, the petitioner additionally has grounds to challenge the constitutionality of Article 2 of the stadium Act, which authorizes the sale of bonds, based on Article X, section 1 of the Minnesota constitution. The petitioner has done so as a petitioner in Mann et al vs. Showalter et al, in the Minnesota Supreme Court, case no A14-0029. Both cases involve the use of Minneapolis sales taxes. However, in this case, the constitutionality of provisions authorizing the sale and issuance of bonds is not at issue. CONCLUSION Based on the foregoing reasons, the relief requested by Petitioner and any other relief as the Court sees fit, should be granted.

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Demurrer in re Mann vs Minneapolis City Council case no. A14-0026

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Dated: January 21, 2014 ___________________________________ Doug Mann Petitioner, pro se 3706 Logan Avenue N. Minneapolis, MN 55412 Phone: (612) 824-8800 ACKNOWLEDGEMENT Petitioner acknowledges that sanctions may be imposed pursuant to Minn.Stat. 549.211

! ______________________________
Doug Mann

!!!!

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