F

APF'T

1 R

INSx :MLttURT
Doug NIann,Linda Iann,David Tilsen,
Petitioners,
VS

James Schowalter, Respondent.

Doug NIann,Linda Iann,David Tilscn,

Petitioners,
V.

Iinnesota Spo s Facilities Authority, Intervenor.

IINNESOTA

SPORTS FACILITIES AUTHORITY'S ON JURISDICTION AND RELIEF

IE 10RANDUPI

TABLE OF CONTENTS
INTRODUCTION.
1

ARGUMENT.. 2
1. Thc Supremc Court Has Original Jurisdiction ln This NIattcr. 2 A. Thc Pctitioncrs impropcrly try to invokc this Court's original jurisdiction in the Stadium Lcgislation. 2

B. This Court has originaljurisdiction to dctcrmine a pctition br a writ ofprohibition. .. 4

H. Pctitioncrs Iay Not Obtain Thc ReliefRcqucstcd Through A Writ Of

Prohibition. 6

A.
B,

Avrit ofprohibition cannot issuc bccausc thc acts complaincd ofarc

notjudicial or quasi.iudiCial in nature.

Rcspondcnt's sale and issuancc of Stadiunl bonds is an excrcise of power authorizcd by la v. 8 Rcspondent's salc and issuancc of Stadiunl bonds docs not rcsult in ittury for which thcrc is no othcr adcquatc rcmedy atla v. 9 10

C.

CONCLUSION.

TABLE OF AUTHORITIES

Cases

s.C . .P .F/ ,13

Minn 244,

1868 WL 1889(Minn.) 6,7,8

71i 4s

4 . r" C r E C '7,8 587N.W.2d838(Minn.1999)

,

r 4 s'L . E .B &R s .E 9

35N.W.2d337(Minn,1948)

6,9

. 'M? / ,24
S rep

NoW.2d715(Minn,1946) 6,7
,

41N.W.1020(p inn.1889)..
Statutes

4.hr s .C pp . .C

Minn,Stat. 16A.695,Subd.10.

3,4

6 Minn.Stat. 16A.965 Minn.Stat. 16A.965,Subd.2.

8,9

5 NIinno Stat. 480.04.

Minn.Stat. 484.01,Subd.1(1)

INTRODUCTION
Intervenor Minnesota Sports Facilities Authority ("MSFA") responds to the

two questions in this Court's January 14,2014 Order as follows:

(a)

Whether this court's originaljurisdiction has been properly invoked in this case?

Not as claimed by Petitioners, but originaljurisdiction exists on another ground. Petitioners wrongly attempt to invoke the Stadium Legislation (defined in
the MSFA's opening brief) to support jurisdiction. That statute would confer

original jurisdiction on a validation proceeding initiated by Respondent, Commissioner Schowalter. But since Respondent did not initiate a validation proceeding (and was under no obligation to do so), Petitioners' asserted basis

of

jurisdiction does not exist. However, this Court does have original jurisdiction
over proceedings seeking writs of prohibition. Therefore, this Court does have

jurisdiction to

assess the merits

of the Petition and the proposed relief requested.

(b)

Whether petitioner"s can obtain the relief requested through a petition fo, o w'rit of prohibition?
seek

No. A writ of prohibition cannot provide the relief that Petitioners

here. A writ of prohibition exists only to prohibit lower courts and other officials
from acting in a judicial or quasi-judicial capacity. Petitioners ask this Court to
order Respondent not to issue or sell stadium appropriation bonds. Issuing and

selling bonds is not

judicial or quasi-judicial act, so the writ of prohibition is not

available to enjoin or restrain such activity. Therefore, Petitioners are wrong about this Court's jurisdiction (although

jurisdiction exists on other grounds); they are wrong about the relief requested;
and, as previously stated by the MSFA and Respondent, they are wrong on the

merits. Petitioners threaten to disrupt the delicate tirning of the bond issue and
related transactions, creating delay and added costs, through r-neritless arguments

that cause harm not because they are valid, but merely because they have been asserted. The Petition is Petitioner Doug Mann's third bite at the apple; his similar claims against the City of Minneapolis were dismissed in Novernber,2013, and he

did not timely appeal that ruling. He instead waited until January 9,2014 and filed
another mandamus proceeding, this time in the Court of Appeals. Because the mere existence of such matters on a court's docket could stall the bond sale, delay

construction of the Stadium, dramatioally increase costs for the people

of

Minnesota and threaten the very existence of highly beneficial related economic development, this Court should dispose of the claims raised once and for all.

ARGU IENT

I.

The Supreme Court Has Original Jurisdiction In This Matter.

A.

The Petitioners improperly try to invoke this Court's original iurisdiction in the Stadium Lesislation.

Petitioners allege that the Stadium Legislation provides this Court with

"original jurisdiction to determine the validation of appropriation bonds and all

matters connected therewith." (Pet'rs' Mem. at 3 (quoting Minn. Stat. $ 164.695,

Subd. 10(c))).)r Petitioners' out-of-context quotation misconstrues the actual

jurisdictional grant in the Stadium Legislation.

The Stadium Legislation provides this Court with original jurisdiction only

for a specific proceeding that has never been filed. As Respondent states in his
opening brief, the Stadium Legislation gives this Court jurisdiction if (and only if) the Commissioner files a compiaint in this Court to determrne the validation

of

appropriation bonds. (Resp't's First Br. at 7-8); see Minn. Stat. $ 164.695, Subd.
10(a) (validation is discretionary); id , Subd. 1 0(c) (this Court's jurisdiction); irl.,

Subd. 10(d) (commissioner to file complaint with this Court); id., Subd. 10(e)

(condition precedent before complaint is filed). Only then will this Court have original jurisdiction "to determine the validation of appropriation bonds and all
matters connected therervith." Id., Subd. l0(c).

Here, Respondent has not fulfilled the condition precedent, let alone chosen

to file a complaint. (See Resp't's First Br. at7-8; Affidavit of James Schowalter ("Schowalter Aff.") fl 6 (he has not fultrlled condition precedent of issuing order

"providing for the issuance of the bonds").) Respondent does not intend to file
complaint to validate the bonds. (See Schowalter

Aff

'lT

("At present, I do not

This brief rvill cite the Minnesota Statute sections fbr the Stadium Legislation, not the Session Law citation"

plan to exercise the discretionary authority to file a validation complaint.").) Thus,

this Court's originaljurisdiction has not been invoked.

Petitioners cannot invoke this Court's originaljurisdiction; only a complaint

by Respondent does so. The Stadium Legislation unambiguously states that after
the Commissioner files a cornplaint, this Court "shall issue an order" allowing citizens and taxpayers "to appear before fthis Court.]" Minn. Stat. d 164.695, Subd. 10(g). Only after this Court issues such an order may "[a]ny taxpayer, citizen, or person interested . . . becom e a party to the action by moving against or pleading to the complaint

. ." 1d, Subd. 10(i). Respondent has not fulfllled the

condition precedent: he has not filed a complaint with this Court; and this Court
has not issued an order allowing taxpayers and citizens to

join the action. For

those reasons, this Court lacks jurisdiction under the Stadium Legislation.

B.

This Court has original iurisdiction to determine a petition for writ of prohibition.

Although this Court lacks original jurisdiction under the Stadium Legislation, it has originaljurisdiction over writs of prohibition. Article VI,
Section 2 of the Minnesota Constitution gives this Court "originaljurisdiction in
such remedial cases as are prescribed by

law." Remedial

cases are "those special

or extraordinary proceedings under what are usually called original rernedial writs,
such

as... prohibition."

State ex rel. Clappv. Minn. Thresher Mfg. Co.,41 N.W.

1020, 1021-22 (Minn. 1889).

Minn. Stat. $ 480.04 specificalll,addresses wrils of prohibition:

The [Minnesota Supreme Court] shall have power to issue to all courts of inferior jurisdiction and to all corporations and individuals, writs of . . . prohibition . . . and all other writs and processes, whether especially provided for by statute or not, that are necessar),to the execution of the laws and the furlherance ofjustice. It shall be always open for the issuance and return of such writs and processes and for the hearing and determination of all matters involved therein and for the entry in its minutes of such orders as may from tirne to time be necessary to carry out the power and authority confbrred upon it by law, subject to such rules as it may prescribe. . . .
Thus, this Court has original jurisdiction over lvrits of prohibitiorr, including

"the hearing and determination of all matters involved therein."

The jurisdiction over writs has a defined purpose. Minn. Stat. $ 480.04

authorizes this Courtto issue writs "that are necessaryt 7s the exectrtion of the laws

and thefurtherance of.iustice." Here, those statutory pulposes would be thwarted

by issuing the writ and are threatened even by the continued existence of this proceeding. To allow for the execution of the Stadium Legislation, this Court
should dismiss the Petition on the merits or, at a rninimum, require a substantial
surety bond to protect the public interest.

Nor would justice be furthered by a writ of prohibition. Mr. Mann appears

to be a serial litigant, determined to keep asserting meritless claims until this Court, the final arbiter of Minnesota law, definitively disposes of those claims. Allowing Petitioners to continue to disrupt, delay and threaten the Stadium Project and the

Downtown East Development Project by endless litigation does not further justice.

Petitioners Mav Not Obtain The Relief Requested Throush A Writ Of

Prohibition.
Petitioners request a writ of prohibition "restraining respondent Jim Schowalter, Commissioner of Minnesota Management and Budget, from proceeding with the sale and issuance of certain stadium appropriation bonds
pursuant to Minn. Stat. $ 164.965 (2012)." (Order at 1.) That remedy is sirnply

unavailable to them, here or in any other court. Under Minnesota law, [t]hree things are essential to justify the issuance of the writ [of prohibition]. It must appear (1) that the coutI, officer, or person against whom it issues is about to exercise.judicial or quasi-judicial power; 12) that the exercise of such power by such cour:t, officer, or person is unauthorrzed by law; and (3) that it will result in injurl' for which there is no other adequate remedy at law.
Itlemo v. Local Joint Exec. Bd.

& Hotel &

Rest. Entploltees ' Loca! ,3 5 N.W.2 d 337

a

340 (Minn. 1948). Because Petitioners fail to meet any of these requirements,

writ of prohibition cannot issue.

A.
"[]t

A writ of prohibition cannot issue because the acts complained of are not iudicial or quasi-iudicial in nature.
is clear that [a rvrit of prohibition] is only issued to restrain the exercise
St. Paul v. a

ofjudicial powers." Ilome Ins. Co. of

1

Flint,l3 Minn. 244, 1868 WL

889, at *2

(Minn.). "In order

to

justify

writ of prohibition, it is fundamentally

essential that the court, individual, or officer Be [sic] about to exercise judicial or

quasi-judicial power." O'Neill v. Kollsen, 24 N.W.2d715,716 (Minn. 1946). A

writ of prohibition "will not issue to restrain individuals or nonjudicial bodies frorn

exercising purely political, legislative or administrative functions." Id.

ln Hotne Insurance Companlt petitioner sought a writ of prohibition to

restrain a county attomey from making a financial examination and certification required by statute. I 3 Minn . 244, 1868 WL 1 889 at * l-2. The Court noted that "used in the ordinary and legal acceptation," there was nothing'Judicial" in this

act. Id. at*2. The Courl then turned to the dictionary definition of 'Judicial" to confirm this view.

1d Merriam

Webster Online defines 'Judicial" as:

"of or relating to coutts of law or judges"

"ordered or done by a court" "responsible for dealing with all legal cases involving the government"

http://wwrv.merriarn-webster.com/dictionarlz/judicial?show:0&t:1389820632
The same analysis is appropriate here. In any sense of the word, the sale and
issuance of stadium bonds is

not'Judicial" in nature. The definition of 'Judicial"

confirms that assessment, as the act is not "relatfed] to courts of law or judges," or
"ordered or done by a court," and it has nothing to do with responsibility for legal
cases involving the government. Id.

Likewise, the sale and issuance of stadium bonds is not quasi-judicial in nature. In Minnesota C.'enterfor Environmental Advocacy v. Metropolitan Cottncil,
587 N.W.2d 838 (Minn. 1999), this Court set forth a frameu'ork for determining
an action to be restrained is quasi-judicial, giving three indicia of quasi-judicial

if

actions:

"(l)

investigation into a disputed claim and weighing of evidentiary facts:

(2) application of those f-acts to a prescribed standard; and (3) a binding decision
regarding the disputed claim." Id. at 842. Here, the sale and issuance of the stadium bonds does not involve R.espcndent Schowalter investigating any disputed

claim or weighing any evidence, applying facts to any prescribed standard, or making a binding decision of any kind. Respondent is exercising an administrative function expressly pror.'ided by Minnesota statute:
ect to the limitations of this subdivision, the commissioner may sell and issue appropriation bonds of the state under this section for public purposes as provided by law, including. in particular, the
Sub.f

financing of all or a porlion of the acquisition, construction, improving, and equipping of the stadium project of the Minnesota Sports Facilities Authority as provided by chapter 473J.

Minn. Stat. $ 16,{.965, Subd. 2(a). That the statute may cont-er discretion on
Respondent does not convert the act at issue from administrative to judicial or

quasi-judicial: "[m]inisterial officers are not unfrequently required to perform acts which involve to some extent the exercise of legal discretion, but which are not
regarded as judicial." Honte Ins. Co.,

l3 Minn .244, 1868 WL I 889 at *2.

Respondent is not "about to" exerciSe onlz judicial or quasi-judicial power, a

fundamental element for a writ of prohibition. The remedy does not apply here.

B.

Besrrondent's sale and issuance of Stadium bonds is an exercise of rlower authorized by law.

Petitioners also fail to meet the second requirement for a writ of prohibition.

They cannot show that the exercise of the judicial or quasi-judicial power at issue
is unauthorized by law. See Nemo, 35 N.W.2d a1340. Respondent's sale and
issuance of the Stadium bonds is expressly authorizedby Minnesota statute. See

Minn. Stat. $ 164.965, Subd. 2(a); see a/so Subd . 2(c) ("Appropriation bonds may
be issued from time to time in one or more series on the terms and conditions the

commissioner determines to be in the best interests of the state"). Respondent is

fully authorized to issue and sell Stadium bonds, and a writ of prohibition
theretbre not available.2

is

C.

Respondent's sale and issgance of Stadium bonds does not result in iniurv for which there is no other adequate remedv at law.

As discussed in Respondent's opening Brief, the thrust of Petitioners' theory

is that the treatment of lvlinneapolis tax revenues under the Stadium Act of 2012 (passed in May 2012), is unconstitutional. Under Minnesota law, the district

courts, not the Supreme Court, have originaljurisdiction over such matters. Minn.
Stat. $ 484.01, Subd. 1(l

).

Petitioners could have, but chose not to, bring a timely

action in Minnesota district court challenging the constitutionality of the Stadium

Act. Petitioners fbrmerly

had an adequate remedy at law, which they failed to

pursue. for over 18 months. As explained in Respondent's opening Brief at

To the extent that Petitioners may argue that Respondent is not legally authorized to issue bonds because of Petitioners' clairn that the law is unconstitutional, that is a separate claim which is not appropriate in a writ of prohibition proceeding, as shown in Section II.C., infi"a.

Section I, Petitioners have no valid excuse fbr this faiiure, and such a suit would
cause serious prejudice at this late

hour. Any such suit is thus barred by laches.

CONCLUSION
The MSFA respectfully renews its request for either a merits-based dismissal of the Petition or, at a minimum, requirement of a substantial surety bond to protect the interests of the MSFA, the Respondent, and the people of Minnesota.

Dated: January 16,2014

EY LLP

Attornel's .for Minnesota Sports Faci lities

Authori$t

ACKNOWLEDGMENT
The undersigned hereby acknowledges that sanctions may be imposed under Minn. Stat. $ 549.211.

10

Kristina L. Carlson (#319338) Erin P. Davenport (#0388845) Hugh D. Brown (#0390969) Suite 1500, 50 South Sixth Street Minneapolis, MN 55402-1 498 (612) 340-2600

DORSEY&

David Y. Trevor

HITNEY LLP

27-CV

13

13029

Flled ln Foulth

udicial Distnct Court

l1/12/2013 7 23 45 PM
Hennepin county C,vl, lN

STATE OF MINNESOTA CO TY OF HE lNEPIN

DISTRICT COURT FOURTH JUDIChL DISTRICT

Doug Nlann,

Court Flie No 27 CV 13-13029

The HonOrable Philip D.Bush Petitioner,

ORDER DISMISSING PETIT10N

RIT OF PIANDAIVIUS FOR

Minneapolis City Council,

Respondent.

The above-captioned matter came before the undersigned Judge of District Court
on August 20, 2013 for a hearing on the Petition for

Writ

of Mandamus filed by

Petrtioner Doug Mann. With the Court's permission, Petitioner filed a supplemerrtal

brief on August 26, 2013, whereupon the record was closed and the matter rvas
submibted.

Petitioner was self-represented.

Respondent lvas represented by Peter W. Ginder, Esq. Based upon a1l the files, records, and proceedings herein, the Court makes the

following:

ORDER

1. The Pctition for a Writ

of iVlandamus is

DENIED.

2.

The Petition for a Writ of Mandamus is dismissed.

LET JUDGMENT BE ENTERED ACCORDINGLY.

27-CV 13 13029

3. 'Ihe attached Memorandum

is made a part hereof.

BY THE COURT:

Dated:11/12/13

l
Phllip D.Bush
udge ofI)istrict Court

27-cV-13-13029

MEMORANDU-M This matter is belbre the Court for a hearing on the Petition for a Writ of
Mandamus filed by Petitioner. For the reasons set forth below, the Petition for a Writ of Mandamus is denied and dismissed.

I.

Backgrgund

Petitioner has petitioned the Court for a writ of mandamus compelling

Respondent Minneapo)-is City Council "to place on the ballot in the next general election on November 5, 2013 the question of whether the City of Minneapolis shall accept

obligations imposed upon rt by the Vikings Stadium Act of 2012."

a. Citv Charter
In
1997, voters

in the City of MinneapoLis ("City") amended the City Charter to

include the following provision requiring a referendum if more than 910 million doilars

in city resources is to be used to finance

a professional sports

facility:

The City of Minneapolis, Minneapolis Community Development Agency, ol any city department, agency, commission, or board, shall use no city resources over $10 million dollars for the financing of professional sports facilities without the approval of a simple majority of the votes cast on the question, in a ballot question put to the public at the next regularly scheduled election. City resources are defined for these purposes os: Tax increment financing, bonds, loans, land purchase or procurement, land or site preparati"on, including necessary infrastructure such as roads, parking development, sewer and water, or other infrastructure deveiopment, general fund expenditures, sales tax or other taxes, deferred payments, interest free or below market interest rate loans, the donation or below market value sa.le of any city resources or holdings or any other free or belorv cost city services. The ballot question shall not be put before the public in a special eJ.ection, in order to prevent the costs associated wilh special elections. Mrnneapolis, Minn., City Charter, ch. 15, $ 13 (emphasis added). Since 1973, the City Charter has included a provision requiring a referendum

if

the City is to incul more than.$15 milLion in debt or other obligations for any capital
1

27-CV 13-13029

improvement. See Minneapol-is, Minn., City Charter, ch. 15, $ 9. That provision states

in pertinent part:
of obligdtion or indebtedness authorized by this Charter and by the laws of the State of Minnesota, the aggregate amount of any such obligations or indebtedness to be issued or incurred for any improvement, including but not limited to acquisition, dcvelopmcnt, construction or bettcrment, of any public

ffihere, with respect to any and all types and forms

building, stadium, or other capital improvement project, shall in a1l phases from inccption Lo completion exceed Fifteen Million Dollars ($15,000,000.00), the Board of Estimate and'I'axation shall not issue or seli any bonds or other obligations nor incur any indebtedness for such pulpose without the approval of a majority of the electors voting on the qnestion ofissuing such obligations or incurring such indebtedness at a genelal or special election. Id.
b. Stadiun Legislation

In

2012, the lVlinnesota legislature enacted legislation ("Stadium Legrslation")

See

providing for a new National Football League stadium ("Stadi.um") in Mirnesota.

2012

Minn. Laws, ch. 299. The Stad-ium is to be built in the City at the site of the
See

Ilubert H. IJumphrey Metrodotne.

id., art.

1, SS 10, 14.

llnder the Starlium Legislation, the cost of building the Stadium is split between
three entities. The owner of the Minnesota Vikingsl must contribute at least $477

million to burlfing costs. See id., art.1,

S 19.

The State of Minnesota's sha.e is "limited

to" $348 million of ihe building costs. See id., art. 1, S 15. The City's share is "limited to"
$150

million of the building costs. See ld. In additron to its share of the buildingcosts,

the City is r-rltima[ely responsible for (1) a share of the Stadrum's operating expenses

I The Minnesota Vikings are the National Football League team that See2012 Nlinn. Laws, ch.299, art. 1, $ 10.

will

be playing in the Stadium.

27-CV 13 13029

with the City's share sct to begin at $6 million per yearz and (2) an annual contribution
to the Stadium's capitzrl improvemenb fund with the City's contribution set to begin at
$1.5

mjllion per year.3

See

id., art. 1, $ 18, art. 3, S 1.

The City's share of the buiiding costs and operating expenses and its

contributions to the capital improvement fund are to be funded by various sales taxes

that must be imposed by the Cify, including a sales tax of up to half a percent on
taxable sales within the City, a sales tax of up to three percent on certain sales of
intoxicaLj.ng beverages, a sales tax of up to three percent on certain short-term lodging,

and a sales tax of up to three percent on certain food sales. See id., arL.3, S$ 1-3. The revenue generated by those sales taxes is collected by the Commissioner of
Revenue, who retains enough revenue to satisfu the City's obligations for building costs,

operating expenses, and capital improvements and makes various other deductions
(e.g., collectioncosts). Seeid.,

art.3,

SS

1-2;seealso Minn. Siat.

S 297A.67, subcl. 11

(defining "commissioner"). The balance of the revenue is remitted to the City, which "may use the excess revenue . . . to fund capital projects to further residential, cultural, commerclal, and economic development in both downtown Milneapolis and the

Minneapolis neighborhoods, to fund other city expenditures in support of the basketball

arena, other capital projects, or for other economic development, provided the city may drrect excess revenue first to convention center debt, operations, capital improvements, and marketrlg." Id., art. 3, $ 2.

Ovel the 30-year term of the lease required by the Stadium I.egislatron, see id., art, 1, $ 19, the City's share of the Stadium's operal.ing exlrenses will total no less than $180 million. 3 Over the 3O-year term of the lease required by the Stadium Legislation, the City will have contributed no less than $45 million to the capital improvement fund.

 13-13029 27-C

The Stad-ium Legislatron contained the following provision entitled "Charter

Lirnrtations, Requirements Not To Apply": Any amounts expended, indebtedness, or obLigation incurred including, but not hmited 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 city may exercise any of its powers under this act to spend, borrow, tax, or incur any form of indebtedness or other obligation for the improvement, including, but not limited to, acquisition, development, construction, or betterment of any pubhc building, stadium, or other capital improvement project, without regard to any charber limitation, requirernent, or provision, including any referendum requirement. Any tax exemption estab[shed under this act shall be deemed not an expenditure or other use of city resources within the meaning of any charter provision.

Id., art.3,

S 4.

z\rticie 3 of the Stadium Legislation contained the following provision regarding

local approval:

This article is effectrve the day after the governing body of the city of Minneapolis and rts chief clerical officer comply with Minnesota Statutes, section 645,027, subdivisions 2 and 3. Notwithstanding any law to the contrary, the city of Minneapolis and its chief clerical officer have 30 calendar days follorving final- enactment of this act, bo comply with Minnesota Statutes, section 645.021, subdivisions 2 and 3' Icl-, art.3, $ ?. IJnder the designated statute, local approval is accomplished "by resolution adopted by a majority vote of all members of the governing body of the unit
unless another method of approval is specified by the parti.cular special law." Minn.

Stat. S 645.021, subd. 2.

on May 25, 201,2, the city council, by a vote of.7-6, and the iVlayor approved the
Stadrunr Legislation. (Ginder Aff. Ex. A.) On June 4, 2012, the City Clerk filed a

Certificate of Approval wj-th the Secretarv of State in compliance with Minn. Stat.
645.021, subd. 3. (GrnderAff. Ex. A.)

27

CV

13-13029

U.

Analysis

"Mandamus is an extraordinary remedy that is available only to compel a duty clearly required by law." Northerru States Power Co. u. Minnesota Metro. Council, 684

I{.W.2d 485, 491 (Minn. 2004) (internal citation omitted). To obtain a writ of
mandamus, the petitioner must show that (1) the respondent "failed to perform an

official duty clearly imposed by lalv"; (2) as a result, the petitioner "suffered a public
wrong specifrcaJly rnjurious to the petitioner"; and (3) "there is no other adequate legal remedy."

a. Did Respondent Fail to Perform an Official Duty Clearlv

knposed by Law?
Petitioner maintains that Respondent failed to perform an officiai duty clearly
imposed by 1aw by not holding a referendum on the Stadium Legislation as allegedly

required by both Sections 9 and 13 of Chapter 15 of the City Charter.

i.

Section

13

W-hether Chapler 15, Section 13 of the City Charter ("Section 13") required Respondent to hold a referendum on the Stadium Legislation raises two underlying issues. First, does the Stadium Legislation entail the use of more than $10 million

in

"city resources" for the financing of a professional sports facility, such that Section 13 is
applicable? Second,

if Section

13 is appli.cable, was

it preempted

by the Stadium

Legrslation?
On the first issue, Respondent argues that Section 13 does not apply because the

Stadrum I-egislation does not entai-l the use of "city resources." In making this argument, Respondent notes that the dictionary definition of "resource" sometimes
denotes "availability." With that definition in mind, Respondent maintains that the

27-C -13-13029

sales tax revenue funding the Stadium does not constitute a "city resource" because the

revenue is never "available" to the City insofar as the Stadium Legislation requires that

portion of the sales tax revenue funding the Stadrum to be deposited into the state's
general fund.

That argument is unavailing in several respects. Most notably, the Court cannot
discern any need for turning to a dictionary definition of "resource" when the City

Charter itself defines "city resources" for purposes of Section 13. Specifically, for
purposes of Section 13, the City Charter defines "city resources" to include "sales tax or

other taxes." Minneapolis, Minn., City Charter, ch. 15, $ 13 (emphasis added).
Since Section 13 defines "city resources" to include "sales tax or other taxes," the

voters who adopted Section 13 in 1997 must have intended the definition of "city
resources" to include revenue generated. by a sales tax that applies solely within the

City. The voters'intent is not undone simply because the statutory mechanism for
coJJecting and directing the sales ta-x revenue funding the Stadium precludes the City

from using that revenue for any other purpose.a

Respondent's argument is hkewise unavailing given a curious dichotomy.

According to Respondent, the sales tax revenue used to fund the Stadium is not a "city
resource" because, given the dictates of the Stadium Legislation, those funds are never avai-lable to the City. Under the Stadium Legislation, any excess sales tax revenue is

remitted to the City, which may use the excess revenue for various purposes. See 2012

Similarly, with respect to the provision of the Stadium Legislation stating that any amounts expended by the City are "not an expenditure or other use ofcity resources within the meaning of any law or charter provision," 2012 Minn. Laws, ch. 299, afi.3, $ 4, the intent of the Minneapolis voters and what is meant by "crty resources" is not to be decided by the legislature. The legrslature may have authority to preempt the City Charter, but they do not have authority to interpret it. Interpretation of the iaw is the domain of the judiciary.
a

27-CV-13-13029

Mina. Laws, cb.299, art. 3, $S 1-2. The excess sales tax revenue is thus "avail.able" to
the City and meets the definition of "city resource" posited by Respondent. Accordingly,
Respondent's positi.on necessarily imp[es a curious d"ichotomy whereby some porti.ons of

the sales tax revenue are a "city resourc6" andotherportions ofit are not. That dichotomy undermines Respondent's argument in the following way:
(1) were

it not for the City's

obJigation to fund the Stadium, all of the sales tax revenue

would constitute a "city resource"; (2) accordingly, by approving of the Stadium Legislation, the City surrendered weii in excess of $10 million in "ci.ty resources" for
purposes of funding the Stadrum; and (3) by suruendering "city resources" for that

purpose, the City "used" it for that purpose. Any resource, once expended, is no longer available to the person who expended it. The expenditure of

it

and its subsequent

unavailability does not mean that it was never a "resource" for the person who
expended it. On that point, Respondent might argue that the sales tax revenue would not

exist in absence of the Stadium Legislation. However, the sales tax revenue would exist

in

absence

ofthe Stadium Legislation because the sales.taxes were already authorized

SS

by 1986 Nlinn, Laws, ch. 396,

4-5. Moreover, that 1aw was amended in 2009 to allow

theCitytousesomeofthesa-lestaxrevenueformoreexpansivepurposes. See2009 Minn. Larvs, ch. 88, a,-t.4, $ 12. Accordingly, in absence of the Stadium Legislation, the
City would stiil have enjoyed the sales tax revenue as a resource.
The Stadium Legislation, construed as a whole, further undermines
Respondent's argument that the sales tax revenue is not a "city resource" by virtue of

the statutory mechanism for collecting the revenue and directing a pogion of it toward

27 CV 13

13029

the Stadiurn. The Stadium Legislation undermines that argument because it rests on the premise that the City is responsible for a share of the funding. Specifica11y, the Stadium Le gislation provides: The state share of stadium costs shall be iimited to $348,000,000 for construction of a new stadium, as pelmitted under section I 6A.726. The city of IVlinneapolis share shall be limited to no more than a $150,000,000 contnbution for construction, and the annual operating cost and capital contributions contained under section 47 3J.13.
2012 Minn. Laws, ch. 299,

art

1, $ 15.

If the City has a "share"

of the funding, then "city

resources" must be in play. Similarly, the Stadium Legislation refers to the sales tax as
a

tax "imposed" by the City. See, e.g., id., art.3, $ 1. Revenue generated by a tax

"imposed" by the City nalurally constitutes a "ciby resource."

Lastly, constitutional limitations on local taxes undermine Respondent's

argument that the sales tax revenue is not a "city resource." Under Section 1, Article 9
of the Minnesota Constitution, "a tax cannot be imposed exclusively on any subdivision of the State, to pay an indebtedness or claim which is not pecuJiarly the debt of such

subdiyision, or to raise money for any purpose not peculiarly for the benefit of such
srrbdivision ." Saruborn u. Rice Cnty. Commis, 9 Minn. 273, 278 (1864). This Hmitation

further e,stablishes that revenue generated by a city-specific sales tax is a city resource,
not a resource of the state, insofar as the benefi.ts of that revenue must inure to the city.
For the reasons set forth above, the Court concludes that, within the meaning of Section 13 of the City Charter, the Stadium Legislation entails the use of more than
910 million in "city resources" for the financing of a professional sports facility. Section
13 is

thus applicable. The Court thus turns to the issue of whether Section 13 was

preempted by the Stadium Legrslation

27-CV-13-13029

Under the Minnesota Constitution, municipalities "possess no inherent powers

and are purely creatures of the legislature." See Breza u. City of Minnetrista, 725

N.W.2d 106, 110 (Minn. 2006) (citing Minn. Const. art. XII, $ 3). Nevertheless, a city
governed by a home rule charter, such as the City of Minneapolis, "enjoys as to local

matters all the powers of the state, except when those powers have been expressly or impliedly withheld." Nordm.arken u. City of Richfield, 641 N.W.2d 343, 347 (Minn. Ct.
App. 2002). Given the State's authority to withhold powers from a home rule charter city, the legislature may preempt "charter authority on matters of state concern." Id. at
348 (citing State er, rel. Town, of Lowell u. City of Crookston, 252 Minn. 526, 91 N.W.2d

81, 83-84 (1e58)).

Here, in enacting the Stadium Legislation, the legislature preempted the referendum requirement in Section 13 of the City Charter via the following provision: The city rnay exercise any of its powers under this act to spend, borrow, tax, or incnr any form ofindebtedness or other obligation for the improvement, including, but not limited to, acquisition, development, construction, or betterment of any public building, stadium, or other capital improvement project, without regard to any charter limitation, requirement, or provision, including any referendu.m requirement.
2012 Minn. Laws, ch. 299, art. 3, $ 4 (emphasis added). On the issue of preemption, Petitioner raises two arguments

in support

of his

position that Section 13 still requires a referend.um. First, Petitioner argues that the Stadium Legislation does not evjnce any intent to repeal Section 13 of the City Charter.

Petitioner is correct in noting that the legislature has not expressed any intent to
repeal Section 13. However, repeal is not the issue. The issue is whether the legislature

intcnded to preentpt, the requirements of Section 13 with respect to the Stadium

Legislation. The legislature clearly.expressed such intent.

27 CV 13 13029

Second, Petitioner argues

that Section

13 was not

properly preempted based on

Article

12, Section 2 of the Minnesota Constitution, which provides i.n pertinent part:
i

"The legislature may enact special laws relating to local government units, but a speciai larv, unless otherwise provided by general law, shall become effective only aftei

its

approval by the affected unit expressed through the voters or the governing body and

bysuchmajoritvasthe1egrslaturemaydirect.,,.Id.(emphasisadded)
Petitioner's argument that Section 13 was not properly preempted rests on the
premise that Article 12, Section 2 of the Minnesota Constitution, by use of the
cJrsjunctive "or," requi-red the legislature to allow the City to approve the Stadium

Legrslation through either the voters or the governing body. Petitioner has not cited any case 1aw in support of his reading of Article 12, Section 2. Case law aside, the Court
d.oes

not interpret Article 12, Section 2 as requiring that the affected government unit

be allowed the choice of approving a special law through either the voters or the

governing body. Rather, the Court interprets the disjunctive "or" in Article 12, Section 2
as merely establishing

that a special

1aw takes effect upon

either form of

approval.

Here, the Stadium Legrslation was approved. by the governing body. For the reasons set forth above, the Court concludes that Section 13, though applicable, was preempted by the Stadium Legisiation

ii.

Section

The referendum requirement in Chapter 15, Section g ("Secti.on 9") of the

City

Charter, even if appLicable, is likewise preempted by the Stadium Legislation and its provision stating that "[t]he .lty

-uy

exercise any of its powers under this act to spend,

borrolv,tax,orincuranyformofiadebtednessorotherobligation1brtheimprovement'
l

10

27-CV-1313029

. . . without regard to any charter

limitation, requirement, or provision, including any

referendum requirement-" 201.2 Minn. Laws, ch. 299, art. 3, $ 4.

iii.

Preernption in both

Since the Stadium Legrslation preempted the referendum requirement

Sections 9 and 13 of the Stadium Legislation, Respondent did not fail to perform an

official duty clearly imposed by Iaw by not holdrng a referendum on the Stadium Legislation. Accordrngly, Petitioner has not satisfied the first requirement for obiaining
a

writ of mandamus.

b. Did_th: Betitioqq.r Suffer a Public Wrong Specificallv Iniurious

to Him?
This requirement is essentially a question of standing. Respondent argues that Petitioner lacks standing because he has not demonsLrated that the lack of a
refcrcndr.rm on thc Stadrum Legisiation was more injurious to him than any other City

resident.

In Scinocca u. St. Louis Cnty. Bd. of Com,m'rs, 281 N.W.2d 659, 660 GVIinn.
the court held that the plaintiff had standing to institute a mandamus procceding

1979),

against St. Louis County to enforce the Town of Canosia's zoning ordinances because

"fp]laintrff, as a resident and taxpa5,er, ha[d] an interest in cnsurJ.ng that town zoning
ordinances are enforced."5 Given the standard set forth rn Scinocca, Petitioncr has standing to seek a writ
of mandamus because, as a resident of the City, he has an interest ur ensuring that

Charter requirements giving City residents the right to vote on a particular issue are
honoled and enforced. In other words, Petrtroner is "beneflcially interested" in enforcing
5 In Scinocca, the court held that plaintiff had standing under both Minn. Stat. Ivlnn. St. 586.02. Only the latter statute rs applicable in this case,

$ 394.3?, subd. 4. and

11

27

C -1313029

any right to vote that he may enjoy. See Minn. Stat. S 586,02. The second requirement for

obtaining a writ of mandamus is thus satisfied.

c.

Does Petitioner Have Any Other Ad=equate Legal Remedv?

a year from the passage of the

Plaintiff rvaited over

Stadium Legislation and the

bringing of this mandamus suit. Although many of his arguments challenge the constitutional authori.ty of the Legislature to do what it did Plaintiff denies he is
challerrging the consLitrrLionality of the Stadium Legislation. One possible alternative
remedy would have been to f,le a lawsuit in Ramsey County chal.lenging the

constitutionally of the Stadium Legislatron. Plaintlff has chosen not to pursue that

option. The third requirement for obtaining

writ

of mandamus is thus not satisfied.

III.
OnJ.y

Conclusion
the second requireurent for obtaining a writ of mandamus is satisfied.

However', since the referendum requirement in Sections 9 and t3 of the City Charter is

preempted by the Stadir.rm Legislation, Respondent has not failed to perform a duty clearly irnposed by law by not holding a referendum on the Stadium Legislation. Accordingly, Petihoner has not satisfred the fi.rst requircmcnt for obtaining a writ of mandamus. Additionaliy Petitioner has an adequate remedy at iaw that he drd not use. The Petition for a Writ of Mandamus is thus denied and dismrssed. PDB

6If standrng requires somc tJrpc of harm more injurious to Petitioner than other members of the pubhc, Petitioner stili has standing as a resident of the City because the Stadrum Legislatron, in effectively precluding a referendum, was particularly injuries to residents of the City insofar as they arc the peoplc whose right to vote is at issuc.
12

AFFIDAVIT OF SERVICE
STATE, OF MINNESOTA )

)SS COUNTY OF HENNEPIN)

Re:

Doug Mann, et al. v. James Schowalter; Court File No. Al4-0029

Myrna Maikkula, being first duly sworn, on oath, deposes and states that on the
16th day of January"2014, she did send via email and U.S. mail to:

Thomas K. Klosowski Kutak Rock LLP 222 South Sixth Street. Suite 1750 Minneapolis, MN 55402 thomas. cl osowski@kutakrock. com

Via Email and UoS.mail

Doug Mann 3706Logan Avenue North Minneapolis, MN 55412 mann4mayor@cs.com

Via Email and UoSo mail

Linda Mann I 821 First Avenue South. #303 Minneapolis, MN 55403 lkmann0@yahoo.com

Via E lail and UoS.Illail

David M. Tilsen 3220 l}th Avenue South Minneapolis, MN 55407 dave.tilsen@gmail.com

Via Email and UoS.mail

the last known address of addressee in which she attached a true and correct copy of the attached:

l.

Minnesota Sports Facilities Authority's Memorandum of Law on Jurisdiction

and Relief:

Subscribed and sworn to before me da1'of January, 2014. this

ltfl

Memorandum and Order in Mann v. Minneapolis City Council, Court File No. 27 -CV -13 - 13029 (Hennepin Cnty. Dist. Ct. Nov. 12, 20 13), app eale d (Minn. Ct. App. Jan. 9, 2014); and

3. Affidavit of Service.

Iaikkula

/jrd,tc/lt
Notarv

4842-6923-0360

D RSEY
ER:NP.DAVENPORT
Associate

Ap.lF
,

davenport.erin@dOrsey.com

(612)492 6749

anuary

16,2014

V!A MESSENGER AND EMA:L

Clerk of Appellate Courts 305 Minnesota Judlcial Center 25 Rev Dr Martin Luther King r Blvd

St Paul,MN 55155

Re.

Doug Mann, et al. v. James Schowalter Court File No. A14-0029

Dear Clerk of Appellate Courts: Enclosed for filing in the above-referenced matter are the following documents.

1.

The original and 3 copies of the Minnesota Sports Facilities Authority's Memorandum of Law on Jurisdiction and Relief;
Four copies of the Memorandum and Order in Mann v. Minneapolis City Council, Court File No. 27-CV-13-13029 (Hennepin Cnty. Dist. Ct. Nov. 12,2013), appealed (Minn Ct App Jan. 9, 2014); and

2.

3. Affidavit of Service.
By a copy of this letter and enclosures, all parties are being served. Please feel free to contact me if you have any questions.

.
Enclosures

, Sincerely,

*1' ,r :,^ ,,LL/i LL| r'' Erin P. Davenport

Associate

/)

'.^

-" '--

'

cc:

Thomas Klosowski, Kutak Rock LLP, (w/encl. via email and U.S mail) Doug Mann (w/encl. via email and U.S. mail) Linda Mann (w/encl. via email and U.S. mail) David M. Tilsen (w/encl. via email and U.S. mail)

DORSEY &ltlHITN EY LLP /vil DORSEY COM T 612340,600 F 6123402868 S ITE 1500 50 SO TH SIXTH STREET o MINNEAPOLIS,MINNESOTA 55402-1498
4836-8]70-0120