Demurrer in Re Mann vs Minneapolis City Council Case No. A14-0026

7/27/2019 Demurrer in Re Mann vs Minneapolis City Council Case No. A14-0026

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Demurrer in re Mann vs Minneapolis City Council case no. A14-0026 1/21/14 2:1

STATE OF MINNESOTA

IN COURT OF APPEALS

____________________________________

In re Doug Mann, Hennepin County District Court

Case type: Other Civil

Petitioner Case No. 27-CV-13-13029

Presiding Judge:

vs. The Honorable Phillip D. Bush

Minneapolis City Council Appellate Court Case No. A14-026

Respondent

DEMURRER TO ANSWER OF RESPONDENT

MINNEAPOLIS CITY COUNCIL

____________________________________________________________________

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 Petitioners

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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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, theissuance of bonds, or actions taken by the city under this act, are deemed not an expenditure orother 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 remainingprovisions of the law shall remain valid, unless the court finds the valid provisions of thelaw are so essentially and inseparably connected with, and so dependent upon, the void

provisions that the court cannot presume the legislature would have enacted theremaining valid provisions without the void one; or unless the court finds the remainingvalid provisions, standing alone, are incomplete and are incapable of being executed inaccordance 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 followingpresumptions. . . .(3) the legislature does not intend to violate the Constitution of theUnited 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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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 Petitioners 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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page 9 respondent states

Rule 103.03(g) provides that an appeal "may be taken to the Court of Appeals. . . from afinal order, decision or judgement. . . .made in a . . . .special proceeding"See Minn. R.Civ. P. 103.03(g). InMoritz v. Burns, the plaintiff brought a mandamus action in thedistrict court to compel the defendant to remove an obstruction in an alleged public roador, alternatively, to relocate the road.Moritz v. Burns, 292 Minn. 165, 166 (1972). Thedistrict court dismissed the mandamus action.Id. The Supreme Court concluded that theorder was appealable under Rule 103.03 as a final order in "a 'special proceeding'"Moritzv. Burns, 292 Minn. 165, 166 n. 1 (1972). [. . . ] (in Mortitz, The Supreme Court notedthat an order dismissing a mandamus action is appealable as a final order affecting asubstantial right made in a special proceeding." (emphasis in original).

However, inMoritz 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. Hart723 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. Hart723 N.W. 2d


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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. Hart723

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 inMann 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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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

Documents

Demurrer in Re Mann vs Minneapolis City Council Case No. A14-0026