On July 16, 2013, I filed a lawsuit in Hennepin County District Court to enforce a provision of the Minneapolis City Charter that requires a referendum for the use of more than $10 million in “city resources” to build and operate a professional sports facility. In May 2012, the Minneapolis City Council, on a 7 to 6 vote approved Article 3 of the Stadium Act, a piece of special legislation which authorized the City to impose local option sales taxes to raise money for the Vikings Stadium project. The local sales tax revenues will be used to repay $150 million in state issued appropriation bonds for construction of the stadium, plus at least $7.5 million dollars per year for capital and operating funds.

The City attorney argued that the sales tax revenues were not “city resources,” and even if they are, the legislature can enact laws that over-ride the City Charter. The Stadium Act, Article 3, section 4, states that the sales tax revenues are deemed to not be “city resources” within the meaning of any law or charter provision that requires a referendum. Therefore the law as written did not implicate the charter provision that requires a referendum.

I argued that the sales tax revenues are city resources, and that the legislature can unilaterally and unconditionally withdrew powers vested in a Home Rule Charter by enactment of general law, but not by enactment of a special law, exept to expressly repeal a charter provision that conflicts with general law.

On November 12, 2013, District Court judge Phillip Bush denied and dismissed my petition for a writ of mandamus to command the City Council to refer approval of the Viking Stadium taxes to the voters in a referendum. Judge Bush determined that the local taxes to be imposed to pay for the Vikings Stadium are city resources and at least one charter provision, Chapter 15, section 13 of the City Charter (section 13), which requires a referendum, does apply to approval of the local taxes for the stadium. However, he also determined that Stadium Act, Article 3, section 4 preempted section 13 of the City Charter.

The District Court decision also cited an 1864 Minnesota Supreme Court decision, Sanborn v. Rice County commssioners, which determined that under the Minnesota Constition, section 1, Article 9 (since renumbered, now Section 1, Article 10) a tax imposed exclusively on a local justisdiction cannot be used for any purpose not peculiarly to benefit that juristication, or to pay for debts not incurred by that local juristication. The local sales taxes imposed by Minneapolis to pay for state issued bonds would appear to be unconstitutional.

On January 10, 2014, together with David Tilsen and Linda Mann (my wife), I filed in the Minnesota Supreme Court a petition for a writ of prohibition restraining Jim Showalter, in his capacity as commissioner of Minnesota Management and Budget from issuing and selling state appropriation bonds authorized by an unconstitutional law. The Supreme Court dismissed that lawsuit on the grounds that it does not have orginal juristiction in this case, because it is a tax matter, although the Stadium Act states that the Supreme Court has original jurisdiction over all matters related to the validation of the appropriation bonds.

On January 9, 2014, I filed a petition for a writ of mandamus in the Court of Appeals to command the District Court to vacate and reverse its order dated November 12, 2013. The Court of Appeals dismissed the petition on January 21, 2014 because an ordinary appeal (a writ of error) was available to the petitioner, and the mandamus statute does not allow the Court to issue a writ of mandamus if there is another “adequate” remedy. The other requirement for issuing a writ of mandamus directed at a lower court is to show that the District Court judge incorrectly applied the law to arrive at an unjust conclusion, which would be an abuse of discretion.

The issue not addressed by the Court of Appeals is whether the District Court judge had correctly applied the law. The District Court decision invalidated / voided the first sentence in Section 4, Article 3 of the stadium Act, which deemed local sales tax revenues to not be “city resources” within the meaning of any law or charter provision. A statute setting rules on the interpretation of laws, Minnesota Statutes, Chapter 645, states that “Legislative intent controls: The objective of all interpretation of law is to ascertain and effectuate legislative intent (section 16). It cannot be presumed that the legislature would enact provisions of a law that are inseparably connected to voided provisions (section 20). It cannot be presumed that the legislature intends to enact a law that is, in any respect, unconstitutional (section 17). Once determining that the local sales taxes for the Vikings Stadium are “city resources,” it is apparent that the would be unconstitutional, and it cannot be presumed that the legislature intended to violate the constitution. If the judge has correctly applied the law, he would have voided Section 4, Article 3 of the Stadium Act in its entirety and all provisions inseparable connected to it.

Judge Bush had also cited Nordmarken v City Richfield which explained the doctrine of preemption as state laws occupying the same field as a City Charter provision. State law would trump a City Charter provision in that case, even if the City Charter provision did not conflict with state law. In the Nordmarken case a development project that would otherwise require a referendum for approval was preempted by applicable state regulations governing the approval of certain types of development projects. However, Judge Bush only quoted a passage from Nordamarken that says local laws can be preempted in matters of state interest. He didn’t explain how the doctrine of preemption applied to approval of the use of “city resources” to pay for a stadium.

On Febrary 21, 2014 I filed a petition for Supreme Court review of the Appeals Court decision. I asked the Court to rule on the issue of whether the law was correctly applied in the District Court decision, and whether an ordinary appeal was an “adequate” remedy that would preclude the issuance of a writ of mandamus. I alleged that an ordinary appeal was not adequate due, in part, to the risk of being required to post a multi-million dollars surety bond, and having my petion dismissed with prejudice because I couldn’t raise the money for the bond. I would have had to place a $10 million bet on the outcome of the process. There appears to be no precedent in the Minnesota Court system for allowing a writ of mandamus to issue when an ordinary appeal is available. However, I did find a precedent for issuing a writ of mandamus when an ordinary appeal is available, but in another justisdiction: A 2004 Texas Supreme Court decision, In re Prudential 148 SW3d 124.

To find links to the petition for Supreme Court review go to: http://forums.e-democracy.org/groups/mpls/messages/topic/4vA0bQxGrdMBTxMzs78enR

Also see Minneapolis Issues Forum: Dismissal of Stadium Vote appealed to MN Supreme Court