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Lawsuit from Washington County (2)
I AITCONE„ AT LAW ez.t..P. 0) 13P1L September 19, 2012 Suite 100 • 8519 Eagle Point Boulevard GEORGE KUPRIAN, ESQ Lake Elmo, MN 55042 ASSISTANT WASHINGTON COUNTY ATTORNEY Firm (651) 290-6500 WASHINGTON COUNTY GOVERNMENT CENTER Fax (651) 223 -5070 15015 — 62' ST N EMS POBOX6 W� ' STI LLWATER MN 55082 www.jolaw.com Re: 37024(872) County of Washington v. City of Oak Park Heights John M_ Kennedy, Jr. Eugene J. Flick • chaaea E. Giffin • Dear George: Pierre N. Regnier Mark A. Fonkea • George W. Patti J. d • r Thank you for your voice message the other day. I appreciate the sentiment. It was a Timothy s. cram • • well -fou t battle on both sides of the table and I look forward to working with you again Lawrence M. Rochcforrl • a g Y James G Ga>embeck • someday. Joseph E. Flynn • Marlene S. Garvis • Thomas Leonard J. ScInveich As to resolving the costs issue, we would appreciate it if the County would cut a check Jessica E. Schwie payable only to the League of Minnesota Cities Insurance Trust for the amount of J Mk $3,454.71 which is reflective of the $1,153.50 awarded by the district court and the au' re Thomas Matthew P. Bandy • $2,301.21 ordered by the appellate courts. Please send the check to my attention, I will visa M. liadevig • then deliver the check to LMCIT and re are the paperwork necessary for film a Jason A. Koch P P p Pe Y g Darwin S. Wiiiarns satisfaction of judgment(s). We will close our file in this matter shortly thereafter. Mark K. Nellie • Nancy M_ Aboyan Daniel M. , Gallatin If you have any other questions or concerns, please contact us. A wbad P. Goodwin Allison A. Walsh Jamie L. Guderian Very truly yours, Brooke G. Swenson Gerald M. Linnihan - Retired Man R. Vanes& - Retired JARDINE, LOGAN & O'BRIEN, P.L.L.P. Some members also admitted to practice Nor law in South D j� • + V2N' and Iowa Dakota, South T�ka4, I Shannon Bararcewaki Jessica E. Schwie Administrator Direct Dial: (651) 290 -6591 E-mail Address: jschwie@a jlolaw.com Donald M. Jardine (1915 -2005) Jene F. Logan (1923 John R. O'Brien (1928-2012) JES j es Equal Opportunity Employer I I STATE OF MINNESOTA IN SUPREME COURT * • Al 1 -0067 Court of Appeals Dietzen, J. County of Washington, Respondent, vs. Filed: August 8, 2012 Office of Appellate Courts City of Oak Park Heights, Appellant. Peter Orput, Washington County Attorney, George Kuprian, Assistant County Attorney, Stillwater, Minnesota, for respondent. Pierre N. Regnier, Jessica E. Schwie, Jardine, Logan & O'Brien, P.L.L.P., Lake Elmo, Minnesota, for appellant. Susan L. Naughton, Saint Paul, Minnesota, for amicus curiae League of Minnesota Cities. SYLLABUS 1. Absent a statute or appellate rule to the contrary, a writ of certiorari under Minn. Stat. ch. 606 (2010), is the exclusive method to seek review of a municipality's quasi-judicial decision denying a requested reimbursement for alleged overpayment of sewer and water services. 1 T Sf 2. A city council's denial of a requested reimbursement for alleged overpayment for sewer and water services was a quasi-judicial decision because the city council investigated a disputed claim, weighed evidentiary facts, applied those facts to a standard prescribed by statute, and issued a binding decision pursuant to a written appeal policy regarding that claim. 3. The proprietary - governmental conduct dichotomy is not relevant to determining the manner of review of a municipality's quasi-judicial decision. Reversed and remanded. OPINION DIETZEN, Justice. This case requires us to decide whether certiorari review under Minn. Stat. ch. 606 (2010), is the exclusive method for reviewing a city council's denial of a request for a refund of an alleged overpayment for sewer and water services. Respondent Washington County (County) filed a claim for reimbursement with appellant City of Oak Park Heights (City), alleging that the City had overcharged the County for sewer and water services. Following consideration at a City Council meeting, the City adopted findings and conclusions, and issued an order denying the County's claim. Subsequently, the County sued the City in district court, and the City moved for summary judgment, asserting that review of its decision was limited to certiorari review under Minn. Stat. ch. 606 and that the County's failure to bring a timely certiorari petition deprived the district court of subject matter jurisdiction. The district court denied the motion, and the 2 court of appeals affirmed in a published decision. We granted the City's petition for review. We conclude that the City's decision to deny the refund is a quasi-judicial decision, and therefore the exclusive method for reviewing the City's decision was through a writ of certiorari under Minn. Stat. ch. 606. Because the district court lacked subject matter jurisdiction to hear the County's claim, we reverse the court of appeals. The material facts relevant to the issue of the district court's subject matter jurisdiction are undisputed. The City provides sewer and water services to the Washington County Law Enforcement Center. During the relevant time period, water usage at the Center was monitored through a combination of seven water meters. The City charged the County for services determined through meter readings conducted by County employees. During a sales and use tax audit by the Minnesota Department of Revenue, the County initiated an investigation into the City's sewer and water charges. Pursuant to its investigation, the County concluded that numerous errors in its employees' reading of the meters, as well as discrepancies in reporting the meter readings, had resulted in the City overcharging the County for sewer and water services. A written City policy adopted by the City Council establishes a three -part procedure for appealing utility charges. First, if a customer believes that "charges for utility accounts have been improperly assessed," they "shall contact the Accountant to determine if staff may handle the problem." In the event that the "Accountant cannot resolve the appeal, the customer shall communicate the appeal to the City in writing." The policy contains a number of requirements specifying the contents of such a written 3 F 1 appeal. Finally, "[i]f the customer is not satisfied with the response from the written appeal, he may request that the matter be placed on the agenda and discussed by the City Council at a formal meeting." The policy further provides that "[t]he City Council shall have the final determination on appeals. " Following the audit, the County notified the City that the County had been overcharged for sewer and water services and requested a refund, in compliance with the City's policy for challenging utility charges. In May 2009 the City Finance and Utility Department denied the County's request for reimbursement. The County then filed an appeal with the City Council. In September 2009 the County presented its reimbursement claim at a City Council meeting. The County offered evidence in support of its claim and requested reimbursement in the amount of $114,262. In October 2009 the City Council again considered the appeal at a public meeting. Subsequently, the City Council adopted a resolution containing findings and conclusions, and issued an order denying the County's appeal. The City Council concluded that "the County has not supplied the City with reasonable documented evidence that indicates in any regard that the meter readings implemented by the County staff were in error, or precipitated an error in billing when reported to City Staff." There is no contention in this case that the County was unaware of the City's policy or failed to comply with the policy's procedural requirements. 4 Subsequently, the County brought suit against the City in district court, asserting a cause of action for unjust enrichment and seeking reimbursement of the amount allegedly overcharged by the City. Both parties filed motions for summary judgment. The County argued that summary judgment was appropriate because the "only issue [wa]s that the City received money for services it did not provide." The City argued that the district court lacked subject matter jurisdiction over the action on the ground that the City Council's decision to deny the County's request for reimbursement was quasi-judicial, and that review of its decision was therefore limited to a writ of certiorari before the Minnesota Court of Appeals pursuant to Minn. Stat. § 606.01. The district court denied both motions for summary judgment. The court determined that in providing sewer and water services, the City had acted in a proprietary capacity. Because the City was "acting in the capacity of a private corporation, not a governmental entity," the court concluded that "its actions [were] not quasi-judicial, and therefore jurisdiction of this matter lies properly with the court." The City appealed the denial of summary judgment based on subject matter jurisdiction. The court of appeals affirmed, concluding that the district court had subject matter jurisdiction over the County's claim. Cnty. of Washington v. City of Oak Park Heights, 802 N.W.2d 767 (Minn. App. 2011). The court of appeals first determined that the City's provision of sewer and water services was a proprietary activity "because the city voluntarily engage[d] `in the same business which, when conducted by private persons, is operated for profit.' " Id. at 769 (quoting Keever v. City of Mankato, 113 Minn. 55, 61, 5 129 N.W. 158, 159 (1910)). Because in denying the request for reimbursement the City was "act[ing] as any other business, with the same rights and responsibilities," the court of appeals reasoned that the City "cannot reasonably be viewed as engaging in governmental conduct," and that the City's decision to deny reimbursement was not subject to review by a writ of certiorari. Id. at 770. Therefore, the court of appeals concluded that the district court had subject matter jurisdiction. Id at 771. I. The City argues the district court erred in denying the City's motion for summary judgment and concluding that the court had subject matter jurisdiction to consider the County's overpayment claim. According to the City, certiorari review under Minn. Stat. § 606.01 is the exclusive method for review of a city council's quasi-judicial decision denying a refund for sewer and water charges. We review a district court's denial of summary judgment de novo. See Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010). On review, "our task is to determine whether genuine issues of material fact exist, and whether the district court correctly applied the law." Savela v. City of Duluth, 806 N.W.2d 793, 796 (Minn. 2011). Subject matter jurisdiction is the authority of the court to hear the type of dispute at issue and to grant the type of relief sought. Seehus v. Bor - Son Const., Inc., 783 N.W.2d 144, 147 (Minn. 2010). A district court's denial of summary judgment is appealable when the motion is based on the court's alleged lack of subject matter 6 jurisdiction. Minn. R. Civ. App. P. 103.03 advisory comm. cmt. -1998 amendment; see McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 833 (Minn. 1995). Whether a court has jurisdiction is a question of law that we review de novo. State v. Ali, 806 N.W.2d 45, 51 (Minn. 2011). When a party seeks review of a municipal decision, the reviewing court has subject matter jurisdiction, provided that the party challenging the decision timely seeks relief in the proper manner and forum. See Tischer v. Hous. & Redev. Auth. of Cambridge, 693 N.W.2d 426, 429 (Minn. 2005). The question here is whether the proper method to seek review of the City's decision was by filing an action in the district court or seeking certiorari review in the court of appeals. If a writ of certiorari filed under Minn. Stat. ch. 606 with the court of appeals is the exclusive method by which to challenge a municipality's decision, then the district court lacks subject matter jurisdiction to hear the case. See Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 677 -78 (Minn. 1990) (concluding that where the writ of certiorari was the appropriate 2 Minnesota Statutes chapter 606 does not enumerate the types of actions that may be reviewed through a writ of certiorari, but does provide: No writ of certiorari shall be issued, to correct any proceeding, unless such writ shall be issued within 60 days after the party applying for such writ shall have received due notice of the proceeding sought to be reviewed thereby. The party shall apply to the Court of Appeals for the writ. Minn. Stat. § 606.01. The chapter also allows for the recovery of costs and defines the time for service of the writ on an adverse party. See Minn. Stat. §§ 606.04, .02. Finally, chapter 606 provides that certiorari review of the decision of an administrative agency with statewide jurisdiction "is a matter of right." Minn. Stat. § 606.06. 7 method to seek review, the district court lacked subject matter jurisdiction to decide a declaratory judgment action); see also Minn. Stat. § 606.01 (stating that a party must apply to the court of appeals for a writ of certiorari "within 60 days after the party applying for such writ shall have received due notice of the proceeding sought to be reviewed "). Therefore, if we determine that a writ of certiorari was the exclusive method by which to review the City Council's decision, the district court in this case was without subject matter jurisdiction to hear the County's unjust enrichment claim. The limited scope of judicial review of municipal decisions is predicated on the separation of powers clause in the Minnesota Constitution. Minn. Const. art. 3, § 1; cf. In re Haymes, 444 N.W.2d 257, 258 (Minn. 1989) (explaining that judicial review of statewide executive agencies is limited by the separation of powers). The decisions of municipal bodies entail the exercise of executive powers which courts, as judicial bodies, are not constitutionally permitted to exercise. See Sellin v. City of Duluth, 248 Minn. 333, 337, 80 N.W.2d 67, 70 (1957) (explaining that "a particular act may contain certain elements of what is ordinarily considered a judicial function and yet constitute primarily a function which may not be exercised by the judicial branch of the government "). To prevent the judiciary from impermissibly exercising executive powers, "[c]onstitutional principles of separate governmental powers require that the judiciary refrain from a de novo review of administrative decisions." Dokmo, 459 N.W.2d at 674. In determining the proper forum in a given case, we have consistently distinguished between a municipality's legislative and quasi-judicial decisions. See, e.g., 8 Interstate Power Co. v. Nobles Cnty. Bd. of Comm'rs, 617 N.W.2d 566, 573 -74 (Minn. 2000). Legislative decisions "affect the rights of the public generally, unlike quasi - judicial acts which affect the rights of a few individuals analogous to the way they are affected by court proceedings." Id. at 574; see also State by Rochester Ass 'n of Neighborhoods v. City of Rochester, 268 N.W.2d 885, 888 (Minn. 1978). Typically, decisions by local government bodies that are legislative in nature are not subject to certiorari review. Instead, parties challenging a municipality's legislative decisions must first litigate the question of their validity in district court. Dead Lake Ass 'n, Inc. v. Otter Tail Cnty., 695 N.W.2d 129, 134 (Minn. 2005). In contrast, the quasi-judicial decisions of a municipality are reviewable only by certiorari. We have long held that, absent a right of review provided by statute or appellate rules, certiorari is the exclusive method "to review the proceedings of municipal boards when their proceedings are judicial or quasi-judicial." State v. Bd. of Pub. Works of City of Red Wing, 134 Minn. 204, 205, 158 N.W. 977, 977 (1916); see also Dead Lake Ass'n, Inc., 695 N.W.2d at 134; Haymes, 444 N.W.2d at 259 ( "Where no right of discretionary review has been provided by statute or appellate rules for the quasi-judicial decision of an administrative agency or an administrative law judge, an aggrieved party has the common law right to petition for a writ of certiorari pursuant to Minn. R. Civ. App. P. 120 and Minn. Stat. § 606.01. "); State ex rel. Bd. of Comm 'rs of Saint Louis Cnty. v. Dunn, 86 Minn. 301, 303, 90 N.W. 772, 773 (1902) (explaining that in the absence of an "appeal or other legal remedy being provided," review by certiorari is 9 L • appropriate for "all questions of law in judicial or quasi judicial proceedings of inferior tribunals, involving the merits of a controversy, and affecting the substantial legal rights of the parties "). We have consistently limited review of quasi-judicial decisions of cities and counties to certiorari review under chapter 606 unless judicial review is otherwise expressly authorized by statute. See, e.g., Haymes, 444 N.W.2d at 259. We have applied this rule most frequently in the employment context. See Willis v. Cnty. of Sherburne, 555 N.W.2d 277, 282 (Minn. 1996); Dietz v. Dodge Cnty., 487 N.W.2d 237, 237 (Minn. 1992) (holding that "a petition for a writ of certiorari provides the exclusive means by which an employee can secure judicial review of the county's employment termination decision "); Bahr v. City of Litchfield, 420 N.W.2d 604, 606 -08 (Minn. 1988) (concluding that certiorari was the appropriate method to review a police civil service commission's hiring decisions). When a statutory right to review a municipal body's quasi-judicial decision is lacking, we have concluded that certiorari is an appropriate, or the exclusive, method to seek judicial review. We have reached this conclusion in a number of areas, including the designation of buildings for heritage preservation, establishment and 3 Handicraft Block Ltd. P'ship v. City of Minneapolis, 611 N.W.2d 16, 20 - (Minn. 2000) (concluding that certiorari was the appropriate means by which to review a City's designation of buildings for heritage preservation). 10 assessment of sewage costs, denial of a liquor license, school board classification of teachers, vacation of public streets,' assessing damages for the laying of streets or destruction of buildings, and certain county zoning decisions. Applying these principles, the City's denial of the County's sewer and water reimbursement claim is subject to certiorari review if it was a quasi-judicial decision. Thus, we must examine whether the City Council's decision was quasi-judicial. II. The County argues that the City's denial of its refund claim is not a quasi-judicial decision, and that certiorari review under Minn. Stat. ch. 606 is not applicable. The 4 City of Shorewood v. Metro. Waste Control Comm'n, 533 N.W.2d 402, 404 (Minn. 1995) (concluding that certiorari is the exclusive mechanism to review a waste control commission's calculation, adjustment, and assessment of estimated sewage costs). 5 Country Liquors, Inc. v. City Council of Minneapolis, 264 N.W.2d 821, 823 (Minn. 1978) (reviewing a city council's denial of a liquor license on certiorari). 6 Foesch v. Indep. Sch. Dist. No. 646, 300 Minn. 478, 481, 223 N.W.2d 371, 373 (1974) (reviewing a school board's classification of teachers on writ of certiorari). ' Beck v. Council of Saint Paul, 235 Minn. 56, 58 -59, 50 N.W.2d 81, 82 (1951) (reviewing a city council's decision to vacate a street through a writ of certiorari). 8 In re Wilson, 32 Minn. 145, 151, 19 N.W. 723, 726 (1884) (providing "instances of acts of municipal officers which have been held judicial, and hence directly subject to review on certiorari: Laying out a street or highway across private property, and assessing the owner's damages therefor ... assessing damages for the destruction of buildings to prevent the spread of fire; determining contested election cases "). 9 Dead Lake Ass 'n, Inc., 695 N.W.2d at 134 (explaining that the writ of certiorari is the exclusive method to review a county's decisions with respect to granting conditional use permits). 11 County contends that its claim is one for unjust enrichment, and therefore was properly brought in the district court. According to the County, its claim concerns "money the City wrongly holds" and has nothing to do with "a disputed bill" or the City's decision regarding the requested reimbursement. We have articulated three factors that must be present to find that a municipality was acting in a quasi-judicial capacity: "(1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim." Minn. Ctr. for Envtl. Advocacy v. Metro. Council (MCEA), 587 N.W.2d 838, 842 (Minn. 1999). The County does not dispute that the City Council's decision involved investigation into the County's disputed claim for reimbursement of water and sewer charges. See Handicraft Block Ltd. P 'ship v. City of Minneapolis, 611 N.W.2d 16, 21 (Minn. 2000). The City Council made a decision directed at the "particular interests" of the County, and was not "making a decision bearing on an open class of persons and properties." Id. at 21. Moreover, the City Council adopted findings of fact and conclusions of law that summarized and weighed the evidence presented, assigned credibility to that evidence, and denied the refund based upon its review and consideration of the evidence. See id. Therefore, we conclude that the City Council's decision satisfied the first factor of the quasi-judicial test. The second factor examines the application of the facts to a prescribed standard. MCEA, 587 N.W.2d at 843. In Handicraft we concluded that a city's decision applied 12 facts to a prescribed standard when the city's guidelines "circumscribed its ability to designate any building for heritage preservation that did not meet one of the four listed criteria." 611 N.W.2d at 23. These criteria included, for example, determining whether particular structures were "of an architectural type inherently valuable for study" or "associated with the lives of historic personages [or] important events." Id. at 23 n.3. We determined that the standards "provide[d] the framework for the facts the City investigates and findings the City makes regarding the property." Id. at 23; see also VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 507 n.3 (Minn. 1983) (discussing a quasi-judicial denial of a variance pursuant to an ordinance that required a city council to determine that the proposed variance would not "endanger the public safety," "in any other way impair health, safety, comfort, morals," or "in any other respect be contrary to the intent of this Ordinance "). In this case, the City Council applied the reasonableness standard prescribed by statute to determine whether the County was entitled to a reimbursement of sewer and water payments. A municipality has statutory authority to provide sewer and water services. See Minn. Stat. §§ 412.321, 444.075 (2010). Specifically, the statutory scheme provides that the City "may impose just and equitable charges for the use and for the availability" of the services, ensuring that "charges made for service rendered shall be as nearly as possible proportionate to the cost of furnishing the service." Minn. Stat. § 444.075, subd. 3. Moreover, the statutes authorize the City to fix sewer charges "on the basis of water consumed." Id., subd. 3a(1). The City Council concluded that the charges 13 to the County were based on actual use of sewer and water services and that the charges imposed were reasonable. The City Council noted that the County had not provided evidence that "the meter readings implemented by the County staff were in error." We therefore conclude that the City Council's decision satisfies the second factor of the quasi-judicial test. The third factor examines whether the municipality rendered a binding decision regarding the disputed claim. See MCEA, 587 N.W.2d at 842. The County relies on our decision in Meath v. Harmful Substances Compensation Board, 550 N.W.2d 275 (Minn. 1996), to argue that the City's policy was "no more than a settlement protocol," that the County was not required to comply with the appeal policy, and therefore that the City Council's decision was not binding. In Meath we found that the board's decision was not quasi-judicial because the Harmful Substance Compensation Board's determination of compensation "simply afforded claimants an alternative procedure for procuring compensation." Id. at 276. Because the claimants were not required to have compensation determined by the board and were allowed under the statute to bring an action in district court for the same injury, we determined that the board's decision was not quasi-judicial. Id. at 275 -76. The County's reliance on Meath is misplaced. Unlike Meath, the City's policy in this case indicates that the appeal process for challenging utility charges is mandatory; specifically, the policy states that "the following process shall be utilized to handle appeals" and that "[t]he City Council shall have the final determination on appeals." 14 (Emphasis added). Moreover, the City had the authority to adopt such an appeal policy and render binding decisions with respect to reimbursements under Minnesota law and the City's Ordinances. See Minn. Stat. § 412.321, subd. 1 (2010) (stating that "the council . . . shall make all necessary rules and regulations for the protection, maintenance, operation, extension, and improvement [of the utility] and for the sale of its utility products" (emphasis added)); Oak Park Heights, Minn., Ordinances, §§ 1001.01, YP P ) g .07 (2009) (providing that "[t]he City Council shall have responsibility for the management, maintenance, care, and operation of the sewer and water systems of the City" and vesting the City Council with authority to promulgate rules, regulations, and rates with respect to the sewer and water systems and with regard to billing). It is undisputed that the appeal policy was adopted and applicable at the time of this dispute. Therefore, we conclude that the City Council's decision in this case was quasi-judicial under our three - factor test. The County further relies on Willis v. County of Sherburne, 555 N.W.2d 277 (Minn. 1996), to argue that an unjust enrichment claim is not subject to certiorari review. In Willis, an employee challenged the county's decision to terminate his employment in district court, and alleged that his termination was the result of defamatory statements by other county employees. Id. at 278. We concluded that certiorari was the exclusive method for reviewing the termination decision, regardless of whether the plaintiff framed the claim as one for wrongful termination or one for breach of contract. Id. at 280, 282. But we determined that the district court action was the appropriate forum for the plaintiff 15 to bring his defamation claim. Id. at 282 -83. We reasoned that the inquiry into what the county board knew about the truth or falsity of the allegedly defamatory statements before publishing them to a third party would "not involve any inquiry into the county board's discretionary decision to terminate Willis," and therefore was not subject to certiorari review. Id. We concluded that the appropriate inquiry was to examine the underlying claim, and determine whether the outcome of the claim depended upon the validity of the municipality's quasi-judicial decision. Id. When the underlying basis of the claim requires review of a municipality's quasi-judicial decision to determine its validity, the exclusive method of review is by certiorari under chapter 606. A party cannot avoid certiorari review of a municipality's quasi-judicial decision by employing creative pleading. See Willis, 555 N.W.2d at 280 (determining that certiorari should not depend upon whether "the claimant calls it an action for wrongful discharge" or "calls the action one for breach of contract" if the underlying claim requires a court to review a municipality's quasi-judicial termination decision). Accordingly, we conclude that the City's decision to deny the claim for alleged overpayment of sewer and water charges assessed against the County was a quasi-judicial decision. The City's decision not to provide reimbursement falls within the City's discretionary authority to provide sewer and water services and assess charges that are reasonable and based on usage. Moreover, the outcome of the County's claim clearly depends on the validity of the City Council's decision to deny a refund for sewer and 16 water charges. Consequently, certiorari review under Minn. Stat. ch. 606 provides the exclusive method for review of the decision. III. The County, however, urges our court to adopt a different approach to certiorari review for this type of case. Specifically, the County urges us to adopt the proprietary - governmental conduct distinction to determine whether a City's quasi-judicial decisions are subject to certiorari review. The County argues that the subject matter of the City Council's decision involved a proprietary enterprise, and therefore should not be subject to certiorari review. Essentially, the County urges us to abandon the quasi-judicial versus legislative approach in favor of the proprietary- governmental conduct dichotomy. Originally, the proprietary- governmental conduct dichotomy arose in the context of governmental immunity. See Snider v. City of Saint Paul, 51 Minn. 466, 471 -73, 53 N.W. 763, 763 -64 (1892), overruled in part on other grounds by Spanel v. Mounds View Sch. Dist. No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962). The dichotomy was developed by the judiciary to relieve plaintiffs from the harsh results of governmental immunity for tort and contract liability when the government was acting in a proprietary capacity, see Spanel, 264 Minn. at 290 -91, 118 N.W.2d at 802, but the dichotomy was later abrogated by statute. Minn. Stat. § 3.736, subd. 1 (2010) (state); Minn. Stat. § 466.02 (2010) (municipal); see also Imlay v. City of Lake Crystal, 453 N.W.2d 326, 330 (Minn. 1990); 18 Eugene McQuillin, The Law of Municipal Corporations § 53.02.10, at 132 (3d ed. 1993) ( "To mitigate the harshness of sovereign immunity, the 17 judiciary and state legislatures developed exceptions to the rule. The major exception was for harm resulting from a municipality's performance of its `proprietary' or `corporate' ... functions. "). The proprietary- governmental conduct dichotomy has fallen out of favor as courts and legislatures have abolished governmental immunity. See, e.g., Minn. Stat. § 466.02 (stating that "every municipality is subject to liability for its torts ... whether arising out of a governmental or proprietary function "); Restatement (Second) of Torts § 895C cmt. e (1979) (noting that the classification between proprietary and governmental conduct has largely been abandoned because "[t]he classification of particular functions as one or the other proved to be so difficult and uncertain, and the subject of so much disagreement that there was little uniformity in the decisions "). We have maintained the dichotomy in a few discrete areas, such as determining liability for costs and disbursements. Lund v. Comm 'r of Pub. Safety, 783 N.W.2d 142, 143 (Minn. 2010) (noting that the taxing of costs and disbursements stems from sovereign immunity concerns). But we have declined to apply the dichotomy in other areas. See, e.g., Imlay, 453 N.W.2d at 330 (declining to apply the governmental - proprietary dichotomy to considerations of joint and several liability, explaining that "we do not wish to reinstate this troublesome dichotomy "); Fischer v. City of Sauk Rapids, 325 N.W.2d 816, 819 (Minn. 1982) (declining to adopt the dichotomy in adverse possession law because to do so "would overturn a longstanding body of law "); Mesaba Aviation Div. of Halvorson of 18 Duluth, Inc. v. Cnty. of Itasca, 258 N.W.2d 877, 880 (Minn. 1977) (rejecting the dichotomy in determining the applicability of equitable estoppel). Nevertheless, the County urges us to follow the court of appeals and determine that the appropriate method of review of a municipal decision depends on whether the government action is proprietary or governmental. The County relies primarily on City of Crookston v. Crookston Waterworks, Power & Light Co., 150 Minn. 347, 185 N.W. 380 (1921), and Sloan v. City of Duluth, 194 Minn. 48, 259 N.W. 393 (1935), in support of its contention that the proprietary nature of the City's provision of water and sewer services allows the City Council's decision to be challenged through an action in district court. In Crookston, the city brought an action in district court to recover sums paid by the city to the defendant, who was the private operator of the city's waterworks system. 150 Minn. at 348, 185 N.W. at 380. The city had contracted with the defendant, promising that if the waterworks did not yield a specified profit, the city would pay the deficiency. Id. at 349, 185 N.W. at 381. The city alleged that it "had no right or authority to guarantee any alleged deficiency" and that the funds paid by the city "were wrongfully converted for private purposes." Id. at 351, 185 N.W. at 381. In determining that the city had failed to state a claim, we stated that the arrangement between the city and the defendant was a valid exercise of the city's authority and that "[i]n these matters the city acted only in its proprietary capacity." Id. at 353, 185 N.W. at 382. Similarly in Sloan, the city levied assessments against the plaintiff's property for his pro rata share of the costs of extending water mains. 194 Minn. at 48, 259 N.W. at 19 L j 394. An ordinance provided that the assessments would be discharged when the plaintiffs payment for water and gas services equaled the amount of the assessment. Id. at 49, 259 N.W. at 394. The plaintiff sued in district court because the city failed to give credit against the assessments for payments he made. Id. at 49, 259 N.W. at 394. We framed the issue as whether "a municipality, acting in its proprietary capacity ... [may] exact more than its ordinance permits and successfully resist repayment of such excess." Id. at 50, 259 N.W. at 394. We found that the city was "acting in its proprietary capacity" and that it lacked the authority to charge more than the ordinance governing assessments permitted. Id at 53, 259 N.W. at 396. The County correctly points out that the plaintiffs in both Crookston and Sloan brought actions in district court. But both cases are easily distinguishable because the mechanism for judicial review of a municipal decision was not raised or addressed by our court in either case. Moreover, the cases in which we have allowed judicial review in the district court of municipal decisions made in a proprietary context have been cases in which there was no administrative review available to the claimant. See, e.g., Knutson Hotel Corp. v. City of Moorhead, 250 Minn. 392, 393, 397, 84 N.W.2d 626, 627, 630 (1957) (allowing plaintiff to bring an action in district court to recover overcharges for the use of the city's sewer facilities, noting that the ordinance in question "did not provide any administrative remedy at all," and that the only way for the plaintiff "to obtain a refund for the overcharges" was to bring suit). Here, unlike the city involved in 20 Knutson Hotel, the City of Oak Park Heights provided an administrative process for refunds. See id. at 397, 84 N.W.2d at 627. Our reasoning in City of Shorewood v. Metropolitan Waste Control Commission, 533 N.W.2d 402 (Minn. 1995), and Youngstown Mines Corp. v. Prout, 266 Minn. 450, 124 N.W.2d 328 (1963), supports rejection of the proprietary - governmental distinction in determining the proper method to review municipal decisions. In City of Shorewood, the city was involved in the proprietary activity of selling sewer services to its residents that were provided by the Metropolitan Waste Control Commission. 533 N.W.2d at 403. When the Commission billed the city to cover a shortfall in the previous year's estimated costs for sewage services, the city refused to pay, and the Commission authorized the levy of a deficiency tax against property within the city. Id. The city brought an action for declaratory judgment, challenging the Commission's allocation of costs and imposition of a tax levy. Id. We concluded that the district court lacked subject matter jurisdiction because certiorari was the exclusive method to review the Commission's "estimation of contemplated annual usage and the adjustment of previous estimates to conform with actual usage." Id. at 404. In Youngstown, we held that certiorari was the appropriate mechanism for review even though the State's proprietary conduct was at issue. 266 Minn. at 488, 124 N.W.2d at 353. In Youngstown, the plaintiff entered into a lease with the State, allowing the plaintiff to extract minerals from land in exchange for the payment of royalties to the State. Id. at 454, 124 N.W.2d at 334. The plaintiff submitted a claim for a refund of 21 royalties to the Commissioner of Conservation. Id. at 454 -55, 124 N.W.2d at 334. The Commissioner denied the refund, and the plaintiff petitioned for a writ of certiorari. Id. at 455, 124 N,W.2d at 334. After finding that the State was "[c]learly ... act[ing] not in its sovereign, but in its proprietary, capacity, subjecting itself to the same liability as other litigants," we determined that, because the Commissioner had acted in a quasi-judicial capacity, certiorari was the only means by which to review the decision. Id. at 473 -74, 483, 488, 124 N.W.2d at 345, 350, 353. Additionally, we have consistently distinguished between liability of a municipal actor and the jurisdictional prerequisites to bring suit in other areas involving proprietary conduct. Tischer v. Hous. & Redev. Auth. of Cambridge, 693 N.W.2d 426 (Minn. 2005); Frasch v. City of New Ulm, 130 Minn. 41, 153 N.W. 121 (1915). In Frasch, we considered whether the proprietary - governmental doctrine should apply to presuit notice. Id. at 41, 153 N.W. at 121. There a statutory provision required an individual suing a municipality to first serve the municipality with notice of the claim. Id. at 42, 153 N.W. at 121 -22. Even though the city was engaged in the proprietary function of supplying water and therefore could be held liable for negligence "to the same extent as ... a private owner," we concluded that "the Legislature is not, because of similarity of liability, precluded from making distinctions between municipalities and private corporations in respect to conditions precedent to suit." Id. at 43, 153 N.W. at 122. Similarly, in Tischer we distinguished between the method of reviewing a municipality's decisions and determination of a municipality's liability. 693 N.W.2d at 22 • 428. In Tischer, the plaintiff challenged the decision of the Housing and Redevelopment Authority (HRA) to terminate her employment. Id. at 427. Tischer argued that Minn. Stat. § 469.014 (2010), providing that the HRA "shall be liable in contract or in tort in the same manner as a private corporation," created an exception to the general rule that certiorari is the exclusive method to review an executive body's termination decision. 693 N.W.2d at 427 -28. We disagreed, concluding that the statute referred only to liability and did not govern subject matter jurisdiction. Id. at 430. Even though the HRA could be liable like a private corporation, it could not be sued in the same manner, and Tischer was required to comply with the jurisdictional prerequisites for challenging the HRA's decisions by bringing a writ of certiorari. Id. at 432. Tischer and Frasch support our conclusion that the decisions a municipality makes in a proprietary capacity are not removed from the general rule requiring review of a municipality's quasi-judicial decisions by certiorari. Our precedent supports the conclusion that the proper focus, in determining appropriate judicial review, is on the nature of the municipal decision, and not the nature of the specific enterprise at issue. We therefore reject the proprietary- governmental dichotomy to determine the manner of judicial review of municipal decision - making. We conclude that, absent a statute or appellate rule to the contrary, the exclusive method to obtain judicial review of a municipality's quasi-judicial decision is a writ of certiorari under Minn. Stat. ch. 606. The determination of whether a decision is quasi - judicial or legislative is made by examining whether the municipality: (1) investigated a 23 K disputed claim and weighed evidentiary facts; (2) applied those facts to a prescribed standard in a properly - enacted ordinance or rule; and then (3) made a final and binding decision regarding the claim. See MCEA, 587 N.W.2d at 842. We believe that this approach properly focuses on the nature of the municipality's decision. Moreover, it is objective in nature, is relatively easy to apply, and provides results that are predictable. The City Council's decision to deny the County's overcharge claim was quasi - judicial in nature, and no statute or appellate rule provided the County with a right to review of that decision in district court. As a result, the exclusive method of judicial review was through a writ of certiorari under Minn. Stat. ch. 606. Because the County did not bring a petition for certiorari to challenge the City's decision, the district court lacked subject matter jurisdiction over the County's unjust enrichment claim. Therefore, we reverse and remand for entry of judgment in favor of the City of Oak Park Heights. Reversed and remanded. 24 CASE NO. A11 -0067 STATE OF MINNESOTA IN SUPREME COURT City of Oak Park Heights, Appellant, vs. County of Washington, Respondent. BRIEF OF AMICUS CURIAE LEAGUE OF MINNESOTA CITIES Pierre N. Regnier ( #90232) Pete Orput Jessica E. Schwie ( #296880) WASHINGTON COUNTY ATTORNEY JARDINE, LOGAN & O'BRIEN, George Kuprian (# 1 47722) P.L.L.P. Assistant County Attorney 8519 Eagle Point Blvd., Suite 100 15015 62 Street North Lake Elmo, MN 55042 P.O. Box 6 (651) 290 -6500 Stillwater, MN 55082 (651) 430 -6115 Attorneys for Appellant Attorneys for Respondent Susan L. Naughton ( #0259743) LEAGUE OF MINNESOTA CITIES 145 University Avenue West St. Paul, MN 55101 -2044 (651) 281 -1232 Attorney for Amicus Curiae TABLE OF CONTENTS Page TABLE OF AUTHORITIES .ii STATEMENT OF THE LEGAL ISSUE 1 STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE 2 STATEMENT OF THE CASE AND FACTS 3 INTRODUCTION AND SUMMARY OF LEGAL ARGUMENT 3 LEGAL ARGUMENT 5 I. This case will have a significant, statewide impact 5 II. A balancing of the competing public policies favors maintaining the current certiorari requirement regardless of what underlying activity a local government body was performing .9 CONCLUSION 16 TABLE OF AUTHORITIES Page STATE CONSTITUTION Minn. Const. Art. III, § 1 8 STATE STATUTES Minn. Stat. § 13.01 12 Minn. Stat. § 13.02 11 Minn. Stat. § 13.685 .11 Minn. Stat. § 13D.01 .12 Minn. Stat. § 412.02 ..12 Minn. Stat. § 412.141 12 Minn. Stat. § 412.151 12 Minn. Stat. § 412.321 12 Minn. Stat. § 444.075 12 STATE CASES City of Shorewood v. Metro. Waste Control Comm 'n, 533 N.W.2d 402 (Minn. 1995) 7 Dietz v. Dodge County, 487 N.W.2d 237 (Minn. 1992) 8, 9, 13 Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671 (Minn. 1990) 8 Keever v. City of Mankato, 113 Minn. 55, 129 N.W. 158 (1910) .6 Meath v. Harmful Substance Comp. Bd., 550 N.W.2d 275 (Minn. 1996) 7, 10 Oakman v. City ofEveleth, 163 Minn. 100, 203 N.W. 514 (1925) 7 ii • State ex. Rel. Ging v. Bd. ofEduc., 7 N.W.2d 544 (1942) 15 State v. Waughtal, 1993 WL 328750 (Minn. App. Aug. 31, 1993) ..12 Tischer v. Housing and Redevelopment Auth. of Cambridge, 693 N.W.2d 426 (Minn. 2005) 8, 9 Willis v. County of Sherburne, 555 N.W.2d 277 (Minn. 1996) ..8, 14, 15 Youngstown Mines Corp. v. Prout, 124 N.W.2d 328 (1963) 10 OTHER AUTHORITIES 18 McQuillin Mun. Corp. § 53.02.10 11 2 -35 Antieau on Local Gov't Law § 35.02 14 iii STATEMENT OF THE LEGAL ISSUE Minnesota law provides that local government bodies' quasi-judicial decisions are subject to certiorari review at the court of appeals in order to maintain the constitutionally required separation of powers and protect public resources. Should an exception to the certiorari requirement be created if the underlying activity a local government body was performing is a "proprietary activity" even though the nature and process of the challenged decision making was quasi-judicial? 1 STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE The League of Minnesota Cities ( "League ") has a voluntary membership of 830 out of 854 Minnesota cities.' The represents League resents the common interests of Minnesota g p cities before judicial courts and other overnmental bodies and provides a variety of g P services to its members including information, education, training, policy - development, risk-management, and advocacy services. The League's mission is to promote excellence g y e eague p in local overnment through effective advocacy, analysis, and trusted guidance for 8 g Y p Y g all Minnesota cities. The League has a public interest in this case as a representative of cities throughout the state with quasi-judicial authority. All Minnesota cities have a public interest in preserving the requirement for certiorari review of their quasi-judicial decisions —a requirement that maintains the constitutionally required separation of powers and protects public resources. The League sought permission to participate as amicus curiae in this case because it's concerned that the county of Washington Count has been distracted by its private interest in avoiding ("County") Y P g the dismissal of its lawsuit and is shortsightedly arguing for a change in Minnesota law that will harm all local overnment bodies including towns, cities, counties, and school districts. g 8 1 The League certifies pursuant to Minn. R. Civ. App. P. 129.03 that this brief was not authored in whole or in part by counsel for either party to this appeal and that no other person or entity besides the League made a monetary contribution to its preparation or submission. 2 STATEMENT OF THE CASE AND FACTS The League concurs with the City of Oak Park Heights's ( "City's ") statement of the case and facts. INTRODUCTION AND SUMMARY OF LEGAL ARGUMENT The court of appeals in a published decision held that the district court could exercise subject matter jurisdiction over this appeal because the provision of municipal water and sewer services is a proprietary activity. The City claims that its decision to deny the County's refund request was quasi-judicial and is only subject to certiorari review at the court of appeals under this Court's precedent — precedent which has never recognized a proprietary- activities exception in the context of subject matter jurisdiction. The court of appeals' new proprietary - activities exception will harm local government bodies throughout the state by causing many of their quasi-judicial decisions to receive less deference and be subject to a longer and more costly appeal process that's not based on a record review. The court of appeals' decision will have a significant, statewide impact because of the wide variety of governmental conduct that can be characterized as "proprietary activities" under the court of appeals' broad definition of this term. Instead of focusing on the nature and process of the challenged decision making, the court of appeals erroneously focused on the underlying activities that the City was performing in order to justify creating an exception to this Court's precedent requiring certiorari review. It's possible that the court of appeals chose this erroneous approach out 3 of sympathy either for the County which missed the appeal deadline for certiorari review or out of sympathy for individuals that may have payment disputes with municipal utilities in the future. But when the court of appeals chose this approach, it created bad law and overstepped its authority as an error - correcting court. Indeed, this Court has already balanced the public policies at issue when local government bodies' quasi- judicial decisions are challenged and has consistently concluded that certiorari review is required even when it poses practical difficulties for those challenging the decisions. The court of appeals also erred by concluding that de novo review in the district court wouldn't violate the constitutionally required separation of powers. The court of appeals concluded that there wasn't any governmental conduct at issue, in part, because the decision to deny the refund request wasn't a policy decision, and therefore, there was no separation -of- powers concern. But this Court has consistently held that separation -of- powers concerns arise not only from challenges to quasi - legislative decisions that involve policy decisions like the adoption of a zoning ordinance or a snowplowing policy but also from challenges to quasi-judicial decisions that involve discretionary administrative decisions like the termination of an employee or the denial of a claim for compensation. The court of appeals also erroneously concluded that there wasn't any governmental conduct at issue because the provision of municipal water and sewer services has been characterized as proprietary activities in the past in different contexts. This simplistic conclusion was erroneous because it's based on a distinction that has largely been rejected in current law and because it fails to recognize the governmental nature of municipal water and sewer services. 4 This Court shouldn't change Minnesota law to adopt a proprietary - activities exception in the context of subject matter jurisdiction. The creation of such an exception would be bad public policy and would be based on a distinction that has proven unworkable in other contexts and that will entangle courts in second - guessing the factual findings of a separate branch of government. In short, it's the nature and process of the challenged decision making that should continue to determine whether certiorari review is required not the underlying activity that the local government body was performing. LEGAL ARGUMENT The League concurs with the City's legal arguments and won't repeat them here. Instead, this brief focuses on the statewide significance of this case and on why a balancing of the competing public policies favors maintaining the current certiorari requirement regardless of what underlying activity the local government body was performing. I. This case will have a significant, statewide impact. The case will have a significant, statewide impact. The creation of a proprietary - activities exception to the certiorari requirement will harm local government bodies throughout the state by causing their decisions in areas that can be characterized as "proprietary activities" to receive less deference and be subject to a longer and more costly appeal process that's not based on a record review even when those decisions meet this Court's test for quasi-judicial decisions. This is a case of first impression that will impact hundreds of local government bodies throughout our state that make quasi-judicial decisions in a variety of contexts. 5 The statewide significance of this appeal is demonstrated by the court of appeals' broad definition for what constitutes proprietary activities when determining subject matter jurisdiction. [A]ctivities are considered proprietary not because the city seeks to make a profit but because the city voluntarily engages "in the same business which, when conducted by private persons, is operated for profit." App. Add. A58 (quoting Keever v. City of Mankato, 113 Minn. 55, 61, 129 N.W. 158, 159 (1910)) Indeed, under this definition, almost any city service could be considered proprietary, because almost every city service has been or could be operated by a private person for profit including animal-control, park-and-recreation, firefighting, engineering, p p g , p � g g, 8 g> land -use ublic -works snowplowing, e 3 Quasi-judicial p and police services to name a few. decisions in all of these areas would no longer be subject to certiorari review under the court of appeals' broad definition of proprietary activities. For example, one could use the court of appeals' decision to argue that a city's quasi-judicial decision to order the destruction of a "dangerous dog" under its animal ordinance or a city's quasi-judicial decision to temporarily exclude an individual from a public recreation center for violating the centers policies should both be subject to de novo review in district court. Indeed, plaintiffs will be motivated to try and characterize a wide variety of governmental 2 Keever discussed the proprietary distinction a century ago in the tort- liability context —a context where the proprietary distinction has since been abandoned. See Appellant's Brief at 9 -12. 3 In fact, the city of Foley recently made headlines when it decided to contract out certain police services to a private security company. http ://wvvw.sctimes.com/article/20111019/NEWS01/1009. 6 conduct as proprietary activities in order to obtain a standard of review that is less deferential to the challenged quasi - judicial decision. In addition, the court of appeals' decision directly conflicts with this Court's precedent which has consistently held that it's the nature and process of the decision making that determines whether a decision is quasi-judicial, and therefore, whether certiorari review is required. The term "quasi judicial" indicates acts of the city officials which are presumably the product or result of investigation, consideration, and deliberate human judgment based upon evidentiary facts of some sort commanding the exercise of their discretionary power. It is the performance of an administrative act which depends upon and requires the existence or nonexistence of certain facts which must be ascertained, and the investigation and determination of such facts cause the administrative act to be termed quasi judicial. Oakman v. City ofEveleth, 163 Minn. 100, 108 -109, 203 N.W. 514, 517 (1925); City of Shorewood v. Metro. Waste Control Comm 'n, 533 N.W.2d 402, 404 (Minn. 1995) (estimation of contemplated annual sewage - disposal usage and the adjustment of previous estimates to conform to actual usage was quasi-judicial because it required "the exercise of a great deal of discretion and judgment and the finding of facts that are not always self - evident "); Meath v. Harmful Substance Comp. Bd., 550 N.W.2d 275, 279 (Minn. 1996) (quasi - judicial decisions are marked "by an investigation into a disputed claim and a decision binding on the parties "). But under the court of appeals' decision, it will now be the underlying activity that a local government body was performing —and not the nature and process of its decision making —that will determine whether certiorari review is required. As a result, one could argue that public- employee termination decisions involving any underlying government activity that could be characterized as a 7 proprietary activity should no longer be subject to certiorari review. Such a result would be bad public policy and would conflict with this Court's precedent. See Tischer v. Housing and Redevelopment Auth. of Cambridge, 693 N.W.2d 426 (Minn. 2005) (HRA's termination of employee subject to certiorari review); Dietz v. Dodge County, 487 N.W.2d 237 (Minn. 1992) (county's termination of nursing -home employee subject to certiorari review); Willis v. County of Sherburne, 555 N.W.2d 277 (Minn. 1996) (county's termination of director of land- mapping office subject to certiorari review); Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671 (Minn. 1990) (school district's termination of teacher subject to certiorari review). In Tischer, for example one of the HRA's underlying activities was providing housing, in Dietz the county's underlying activity was providing nursing -home services, in Willis that county's underlying activity was providing land -use mapping services, and in Dokmo, the school district's underlying activity was providing education services. Again, the provision of all of these services could be characterized as proprietary activities under the court of appeals' broad definition of this term because private individuals also perform these services to make a profit. And if these services are proprietary activities, public - employee termination decisions in any of these contexts would no longer be subject to certiorari review under the court of appeals' proprietary - activities exception. This result would not only be inconsistent with this Court's precedent; it would also be bad public policy. 8 II. A balancing of the competing public policies favors maintaining the current certiorari requirement regardless of what underlying activity the local government body was performing. Like most cases this Court considers, there are competing public policies at issue. A balancing of the competing public policies in this case, however, favors maintaining the current certiorari requirement regardless of what underlying activity the local government body was performing. A. Separation of powers The primary purpose for the certiorari requirement is to maintain the separation of powers mandated by the Minnesota Constitution. Minn. Const. Art 3, § 1. Because certiorari review requires judges to defer to a local government body's findings it prevents the judicial branch from usurping the administrative prerogatives of a separate branch of government and it minimizes judicial intrusion into administrative decision making. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). The court of appeals concluded that there wasn't a separation -of- powers concern in this case because there wasn't any governmental conduct at issue. This conclusion appears to be based, in part, on the fact that the City's decision to deny the refund request wasn't a "policy" decision. App. Add. A60. But it's clear from this Court's precedent that —in addition to the separation -of- powers concerns that arise when challenges are made to quasi- legislative decisions that involve policy decisions like the adoption of a zoning ordinance or a snowplowing policy —a separation -of- powers concern also arises when challenges are made to quasi-judicial decisions that involve discretionary administrative decisions like the termination of an employee or the denial of a claim for 9 compensation. See Tischer, 693 N.W.2d at 429 (holding that the separation -of- powers doctrine requires that an administrative decision to terminate a public employee be subject to certiorari review); Youngstown Mines Corp. v. Prout, 124 N.W.2d 328, (1963) (holding that an administrative decision to deny a claim for compensation was subject to certiorari review); Meath, 550 N.W.2d at 279 (holding that the type of administrative decisions that are subject to certiorari review are "administrative decisions which are based on evidentiary facts and which resolve disputed claims of rights "). The court of appeals also based its conclusion that there wasn't any governmental conduct at issue on the fact that the provision of municipal water and sewer services has been characterized as a proprietary activity in the past. App. Add. A58. But there are several reasons why this simplistic conclusion doesn't withstand review. First, the cases that the court of appeals relied on characterized municipal water and sewer services as proprietary activities in the context of tort and contract and simply didn't address whether such a characterization was appropriate in the context of subject matter jurisdiction. Second, the proprietary distinction was subsequently abandoned in both the tort and contract contexts. See Appellant's Brief at 9 -12. Third, the cases the court of appeals relies on were decided decades before 1996 when this Court first began to develop its test for quasi- judicial decisions in Meath v. Harmful Substance Compensation Bd., 550 N.W.2d 275 (Minn. 1996). And fourth, one of the main reasons for abandoning the proprietary distinction is equally applicable here — namely, the proprietary distinction is too simplistic to properly accommodate for the dual nature of many governmental 10 activities. See 18 McQuillin Mun. Corp. § 53.02.10 (discussing the governmental - proprietary distinction). For example, a municipal water and sewer utility might be considered a proprietary activity based on a simplistic test that only focuses on whether a city charges a fee for a particular service or on whether a city is engaging in an activity that the private sector also engages in for profit. But such a conclusion ignores the fact that the provision of potable water is an essential public service throughout the world and that this public service is overwhelmingly performed by municipalities in Minnesota. Indeed, a closer review of the nature of municipal water and sewer services demonstrates that the provision of this essential public service should be considered governmental conduct. First, a municipal water and sewer utility doesn't act like a private corporation. It isn't a separate corporate and legal entity, but instead, is simply a department of the city. A body of elected city councilmembers is the ultimate decision -maker regarding all utility matters not a private board of directors. Second, because a municipal water and sewer utility is part of the city, it's subject to all the requirements that apply to the city. For example, the Minnesota Government Data Practices Act classifies certain municipal utility data as private data and other utility data as public data. Minn. Stat. § 13.685 (municipal electric utility data); Minn. Stat. § 13.01, subd. 3; Minn. Stat. § 13.02, subd. 7 (municipal water and sewer data). When a city council discusses or makes decisions about its municipal water and sewer utility it must comply with the Open Meeting Law. 4 The Minnesota Department of Health has estimated that there are 726 municipal water utilities and 244 nonmunicipal utilities in Minnesota. http://wvvw.health.state.mn.us/divs/eh/water/com/index.htm 11 Minn. Stat. § 13D.01. The revenues generated from municipal water and sewer utilities are public funds that are subject to the requirements in state law for financial reporting and auditing. See, e.g., Minn. Stat. § 412.02, subd. 3; Minn. Stat. § 412.141; Minn. Stat. § 412.151, subd. 2. Third, unlike a private corporation that conducts business to make a profit, state law provides that fees for municipal water and sewer services "shall be as nearly as possible proportionate to the cost of furnishing the service." Minn. Stat. § 444.075, subd. 3. Fourth, cities are statutorily authorized to provide water and sewer services under their police powers. Minn. Stat. § 412.321; Minn. Stat. § 444.075. And finally, cities exercise regulatory functions to promote the public good while providing municipal water and sewer services. For example, Minnesota cities commonly adopt ordinances that require property owners to connect to municipal water and sewer services in order to protect the public health. See State v. Waughtal, No. 5 -92 -2400, 1993 WL 328750 at 3 -4 (Minn. App. Aug. 31, 1993), rev. denied (Oct. 28, 1993) (unpublished decision) (holding that a township ordinance requiring certain property owners to hook • up to the township water system was a valid exercise of police power). Amicus Add. ADD 1. In short, the court of appeals erroneously characterized the provision of municipal water and sewer services as a proprietary activity and erroneously concluded that a district court's de novo review of a city's discretionary, administrative decision wouldn't violate the separation of powers. This Court should correct these errors because public policy favors maintaining the current certiorari requirement in order to maintain the separation of powers. 12 B. Protection of public resources Maintaining the current certiorari requirement would also protect public resources. Certiorari review provides an efficient and less costly form of judicial review because it has a 60 -day deadline for appeal, it bypasses district -court review, and it's based on a record review without a costly and time - consuming discovery process. Dietz v. Dodge County, 487 N.W.2d 237, 240 (Minn. 1992) (noting that certiorari provides an expedient and economical form of review). It logically follows that public resources would be best protected if all quasi-judicial decisions were subject to certiorari review without exception. Indeed, maintaining the current certiorari requirement would result in a savings of both cost and time not only for local government bodies but also for the individuals and businesses that challenge quasi-judicial decisions. C. Consistent treatment of municipal utilities Maintaining the current certiorari requirement would also ensure that municipal water and sewer utilities are treated consistently. It's inconsistent to treat municipal water and sewer utilities like private corporations when determining subject matter jurisdiction while simultaneously subjecting them to all the requirements applicable to cities like the Open Meeting Law, the Minnesota Government Data Practices Act, and financial- reporting and auditing requirements. In addition —as previously discussed —it's also inconsistent to treat municipal water and sewer utilities like a private corporation when they aren't structured like one and they don't operate like one. 13 D. Clarity for appeals of quasi - judicial decisions Maintaining the current certiorari requirement would also help provide clarity for appeals of quasi-judicial decisions. Certiorari review is an exception to the general jurisdiction of district courts. By creating an exception to an exception, the court of appeals has created unnecessary confusion for parties and judges regarding where subject matter jurisdiction properly lies for appeals of quasi-judicial decisions. In addition, prior experience in other contexts demonstrates the difficulty that judges have faced when attempting to define and apply a distinction that's "inherently unsound and unworkable." See 2 -35 Antieau on Local Gov't § 35.02 (2d ed.) (discussing the distinction between governmental and proprietary actions). Maintaining the current certiorari requirement would be good public policy because it would allow judges to avoid the difficulty of trying to apply an inherently unsound distinction and to avoid becoming entangled in second- guessing the administrative decisions of a separate branch of government. E. Competing public policies The County has argued that competing public policies weigh in favor of creating a proprietary- activities exception to the certiorari requirement. Essentially the County argues that if this Court doesn't adopt a proprietary - activities exception it will give cities a competitive advantage, insulate them from accountability, and allow the fox to guard the henhouse. Response to Petition For Review at 3, 5. However, none of these concerns is sufficient to outweigh the public policies that support maintaining the current certiorari requirement. 14 First, the League assumes that the "competitive" advantage to which the County refers is based on certiorari's deferential standard of review and its shorter deadline for appeal. But because a valid separation -of- powers concern exists in this case any private interest in avoiding a erceived "competitive" advantage is necessarily outweighed by the P P g Y g Y public interest in complying with a constitutionally mandated requirement. Second, it's clear that certiorari review doesn't deprive the County of a remedy and thereby insulate the City from accountability; instead, the certiorari requirement merely "specifies an appropriate remedy." Willis v. County of Sherburne, 555 N.W.2d 277, 282 n. 3 (Minn. 1996). And third, the County's concern about the fox guarding the henhouse applies to ce a t e pp Y g g all quasi-judicial decisions; it isn't unique to quasi-judicial decisions involving I I "proprietary activities. " The fact that cities and other local government bodies (including counties) frequently review challenges to their own discretionary administrative decisions arises q Y g �'Y from the fact that the state has delegated local government bodies the legislative power to IC I adopt laws, the executive power to administer those laws, and the quasi-judicial power to investigate and resolve disputed claims. Indeed, in a teacher - termination case, this Court g P > recognized that even though the consolidation of legislative, executive, and quasi-judicial power in a local government body could lead to abuse, it was still necessary to defer to a school board's quasi-judicial findings because the need to maintain the separation of powers outweighed any concern about the potential for abuse, and further, that any abuse could be detected under a certiorari review at the court of appeals. State ex. Rel. Ging v. Bd. of Educ., 7 N.W.2d 544, 571 -572 (1942), overruled in part on other grounds. In 15 short, local government bodies' quasi-judicial decisions aren't insulated from accountability by the fact that "the fox is guarding the henhouse," but instead, their quasi- judicial decision are subject to review by the court of appeals and must comply with a variety of requirements in statutory and constitutional law. CONCLUSION This case will have a significant, statewide impact on local government bodies across the state that exercise quasi-judicial authority in a wide variety of contexts many of which could be characterized as "proprietary activities" under the court of appeals' broad definition of this term. This Court shouldn't change Minnesota law to adopt a proprietary- activities exception in the context of subject matter jurisdiction. The creation of such an exception would be bad public policy and would be based on a distinction that has proven unworkable in other contexts and that will entangle courts in second- guessing the factual findings of a separate branch of government. In short, it's the nature and process of the challenged decision making that should continue to determine whether certiorari review is required not the underlying activity that the local government body was performing. For all of these reasons, the League respectfully requests that this Court reverse the court of appeal's decision. LEAGUE OF MINNESOTA CITIES Date: November 4, 2011 dtV79/7641/570 Susan L. Naughton ( # 145 University Avenue West St. Paul, MN 55103 -2044 (651) 281 -1232 Attorney for Amicus Curiae 16 ADDENDUM AND ITS INDEX State v. Waughtal, No. 5 -92 -2400, 1993 WL 328750 (Minn. App. Aug. 31, 1993)...ADD1 Westlaw Not Reported in N.W.2d Page 1 Not Reported in N.W.2d, 1993 WL 328750 (Minn.App.) (Cite as: Not Reported in N.W.2d) P1 township water system and to use that system for all State, Northern Tp. v. Waughtral of their human consumption of water. Minn.App.,1993. Only the Westlaw citation is currently available. Initially, to encourage people to hook up to the NOTICE: THIS OPINION IS DESIGNATED AS system, all work was done free of charge. The UNPUBLISHED AND MAY NOT BE CITED township now requires any property owner who did EXCEPT AS PROVIDED BY MINN. ST. SEC. not hook up at the time of installation to pay the 480A.08(3). entire cost of hooking up to the system. Court of Appeals of Minnesota. STATE of Minnesota, Northern Township, Leigh and Carol Waughtal own property which is in the area served by the township water supply s Respondent, Y P pp Y stem. Y v. On that property, the Waughtals have a private well. Leigh WAUGHTAL, et al., Appellants. The Waughtals have not hooked up to the township No. 5 -92 -2400. water system. The Waughtals claim that hooking up to the township water system would cost them Aug. 31, 1993. $7,000. Review Denied Oct. 28, 1993. The Waughtals were charged with a misdemeanor for Appeal from District Court, Beltrami County; John P. refusing to hook up to the township water system in Smith, Judg e. violation of section 4, subdivision 7(e) and section 5, 13 of ordinance. The Waughtals subdivision 3 f the rdmanc . h ghta s Jana Austad, Kief, Fuller, Baer, Wallner & Rogers, requested a jury trial. However, before the case was Ltd., Bemidji, for respondent. tried, the prosecutor certified the charge as a petty Paul T. Benshoof, Carpenter, Benshoof & Klein, misdemeanor. The trial court found the Waughtals P.A., Bemidji, Hubert H. Humphrey,jII, Atty. Gen., guilty of violating the ordinance and determined that Alan C. Williams, Asst Atty. Gen., St. Paul, for the ordinance is constitutional. The Waughtals were amicus curiae Com'r of Pollution Control Agency. fined $100 each, stayed on the condition that they hook up to the township water system before May 15, Considered and decided by AMUNDSON, P.J., and 1993. This appeal followed. SCHUMACHER and SHORT, JJ. DECISION UNPUBLISHED OPINION AMUNDSON, Judge. I. Violation of the Ordinance *1 Appellants challenge the trial court's finding that they violated the Northern Township's Water Supply The Waughtals argue the trial court erred in finding System and Utility Ordinance and the trial court's that they violated the ordinance. determination that the ordinance is constitutional. We affirm. A. Section 4, subdivision 7(e) FACTS Section 4, subdivision 7(e) of the ordinance provides: It is unlawful for any person to construct or maintain Northern Township (the township) completed any private well of any kind or form intended for use construction of its own water system in 1988. On or used for human consumption of water within that May 17, 1988, the township adopted the Water area of the township designated by the State of Supply System and Utilities Ordinance (the Minnesota as having polluted ground water and /or ordinance). The ordinance makes it unlawful to " served by the township water supply system. construct or maintain" a private well for human consumption in certain areas. The ordinance also (Emphasis added.) requires people in certain areas to hook up to the Because of the " and /or" term, the township must ADD 1 • • Not Reported in N.W.2d Page 2 Not Reported in N.W.2d, 1993 WL 328750 (Minn.App.) (Cite as: Not Reported in N.W.2d) _ prove two elements to prove a violation of this is to be interpreted as including " use," the ordinance ordinance provision -(1) that the Waughtals is void for vagueness. Since we do not construe the constructed or maintained a well, and (2) that the ordinance in this manner, we do not reach this issue. well was in an area designated by the state as having polluted ground water or that the Waughtals were in Thus we conclude the trial court properly determined an area served by the township's water supply system. that the Waughtals maintained a private well. 1. Construct or maintain a private well 2. Designation by the state The township does not argue that the Waughtals have The Waughtals correctly argue that the language of constructed a well. Therefore, the issue on appeal is the ordinance requires a showing of current pollution. whether they have maintained a private well, The See Section 4, subdivision 7(e) (" within that area of Waughtals argue that maintaining a well is not the the township designated as having polluted ground same as using a well. They claim that in order to water" ) (emphasis added). The township has not maintain a well, one must do something more than established that the Waughtals' property has polluted just use it. The township argues that the Waughtals ground water. However, because of the disjunctive maintained their well by providing the source and nature of the ordinance, the township does not have support necessary to keep the well functioning. The to prove the Waughtals' property has polluted ground township contends that it is not necessary to have water. It is enough for the township to prove that the repaired the well, but that providing and paying for Waughtals maintained a private well and that well electricity to run the well's electric motor is enough. was located in an area served by the township water supply system. *2 " Maintain" is defined as: 1. To continue; carry on: maintain good relations. 2. 3. Served by township's water supply system To preserve or keep in a given existing condition, as of efficiency or repair: maintain two cars. 3.a. To The Waughtals do not dispute that they are in an area provide for: maintain a family. b. To keep in served by the township's water supply system. existence; sustain: food to maintain life. American Heritage Dictionary 757 (2d college ed. Thus, the township has proved that the Waughtals 1982) (emphasis in original). maintained a private water well and that they are served by the township's water supply system. The township's construction is consistent with the Accordingly, the trial court properly determined the plain language of the ordinance. Providing electricity Waughtals violated section 4, subdivision 7(e) of the for the well is necessary to maintain the well -to keep ordinance. the well in an existing condition of operation. Under the Waughtals's reading of the ordinance, a well B. Section 5, subdivision 13 which did not need repairs for two decades or more has not been maintained. Section 5, subdivision 13 of the ordinance provides: Notwithstanding any other provisions hereunder to In addition, even if we were to assume a more the contrary, all persons or property owners * * * restrictive meaning of maintain -that is, " maintain" within that area of the Township designated by the means keeping in an existing condition of repair -our State of Minnesota as having polluted ground water conclusion would be the same. In order to keep a well and/or which is served by the Township water supply in an existing condition of repair, specific system shall be required to hookup to the Township maintenance such as changing a screen or a pump water system and to use the same for all of the human would be necessary only if the screen or pump were consumption of water. broken. When nothing is broken, obviously no such extraordinary actions are necessary to keep it in an *3 As noted above, the Waughtals do not dispute existing condition of repair. Either way, the well is they are in the area served by the township water being maintained. supply system. It is also undisputed that the Waughtals have not hooked up to the township water The Waughtals argue that, to the extent " maintain" system. Thus, the trial court properly found the :s. ADD2 t Not Reported in N.W.2d Page 3 Not Reported in N.W.2d, 1993 WL 328750 (Minn.App.) (Cite as: Not Reported in N.W.2d) Waughtals violated section 5, subdivision 13 of the 631. ordinance. The Waughtals concede the township's purpose in II. Constitutionality enacting the ordinance is " laudable." The intrusion, however, is negligible -the Waughtals have to put up The Waughtals argue that the ordinance is with a water line under ground and use township unconstitutional since it violates their right to water rather than well water. See id. at 38,214 privacy, is an improper use of police power and N.W.2d at 632 (" While forced fluoridation does constitutes a taking without just compensation. intrude on an individual's decision whether or not to ingest fluoride, the impact of this intrusion on an A municipal ordinance is presumed constitutional. individual's life is negligible." ). While the Waughtals City of St. Paul v. Dalsin, 245 Minn. 325, 329, 71 may prefer their own water, it would be difficult for N.W.2d 855, 858 (1955). The burden of proving an us to give substantial weight to such a preference. See ordinance is unreasonable or that the requisite public id. (Such a prerogative " if fully recognized would interest is not involved, and consequently that the confer upon the individual the prerogative to refuse ordinance does not come within the police power of to allow the government to chlorinate water or to take the city, rests on the party attacking its validity. Id. similar actions which it has been determined to be in There is a strong presumption favoring a city's the best interests of public health." ) Absent actions. Arcadia Dev. Corp. v. City of Bloomington, significant adverse consequences, we do not accord 267 Minn. 221, 226, 125 N.W.2d 846, 850 (1964). If substantial weight to the preference to use well water. the reasonableness of the city's actions is doubtful or See id. fairly debatable, a court will not interject its own conclusions as to more preferable actions. Id. *4 Given the minimal intrusion involved, we conclude that the ordinance is justified. We do not A. Right to Privacy find the means adopted by the township to accomplish its purpose " particularly offensive or The Waughtals argue the ordinance violates their unusual." See id. at 39,214 N.W.2d at 633. As the right to privacy under the Minnesota constitution. City of Brainerd court noted, the preparation and treatment of water is a " common and accepted public There is a right to privacy under the Minnesota function" and such a quality- control measure does , constitution. Jarvis v. Levine, 418 N.W.2d 139, 148 not " ordinarily affront a person's sensibilities." Id. (Minn.1988). This privacy right is independent of and broader than the privacy right under the federal Therefore we hold the ordinance does not violate the constitution. Id at 147 -49, The Minnesota Supreme right of privacy under the Minnesota constitution. Court has noted that the right of personal privacy could also extend to B. Police Power protect an individual's decision regarding what he will or will not ingest into his body. The Waughtals argue that the ordinance is an improper exercise of the township's police power. Minnesota State Bd. of Health v. City of Brainerd, They contend that since use of their well does not 308 Minn. 24, 35 -36, 241 N.W.2d 624, 631 (1976). injuriously affect the public health, safety, morals, or This right, however, is not absolute. Id. at 36,214 general welfare, the ordinance is invalid. Two other N.W.2d at 631. In City of Brainerd, the state board of state supreme courts have rejected this argument in health sought a writ of mandamus to compel the city upholding similar ordinances requiring connection to to fluoridate its water supply, The supreme court a municipal water supply system. See Town of Ennis stated that, in determining the constitutionality of an v. Stewart, 807 P.2d 179 (Mont.1991) (requiring ordinance that allegedly invades a privacy right, the connection to city water system valid even absent court should consider (1) the importance of the state's allegation of immediate threats arising from use of purpose; (2) the nature and magnitude of the effect of private well water); McMahon v. City of Virginia requiring the act; (3) whether the state's purpose Beach, 267 S.E.2d 130 (Va.1980) (ordinance that justifies the intrusion; and (4) whether the means required landowners to hook up to the city water adopted by the state to accomplish this purpose is system but did not require use of city water was a proper and reasonable. Id. at 36- 37,214 N.W.2d at valid exercise of police power), cert. denied,449 U.S. ADD3 ■ t > Not Reported in N.W.2d Page 4 Not Reported in N.W.2d, 1993 WL 328750 (Minn.App.) (Cite as: Not Reported in N.W.2d) 954 (1980). showing that the use of private water is injurious to the public health. In addition, in Hutchinson v. City of Valdosta, 227 U.S. 303, 33 S.Ct. 290 (1913), the United States The supreme court has stated:While the opinion of Supreme Court upheld a city ordinance that required the attorney general is entitled to great weight, it is property e owners residing along streets with sewer not determinative in its own. The attorney general's P lines to install " water closets" in their houses and written opinions, under Minn.Stat. § 270.09, have the 1 connect them to the public sewer. In Hutchinson the force and effect of law until overruled by a court of owner of a house without a water closet who did not competent jurisdiction. comply with the ordinance was subject to a fine not to exceed $200, or to labor on the streets or public Northern Stales Power Co. v. Williams, 343 N.W.2d works, or to be confined in the guardhouse of the city 627, 632 (Minn.1984). for not exceeding 90 days. Id at 305, 33 S.Ct. at 291. In order to comply 1 with the ordinance, the First, we note that the attorney general's opinion homeowner would have had to build an addition to predated City of Brainerd by 12 years. The opinion her house which, with connection to the sewer system recognized there was no controlling Minnesota and payment for water would cost her a " authority (" Whether the police power includes the al water municipal the use of considerable sum of money. Id. authority to compel P systems has not, to our knowledge, been judicially The Supreme Court held that the ordinance was a determined." ) After City of Brainerd, we are not valid exercise of police power. Id. at 308, 33 S.Ct. at hampered by such a lack of judicial direction on the 292. It noted: issue. It is the commonest exercise of the police power of a state or city to provide for a system of sewers, and to Second, although the attorney general's opinion compel property owners to connect therewith. And would require a showing that the public health is this duty may be enforced by criminal penalties. It endangered by the continued use of a private water may be that an arbitrary exercise of the power could system before a municipality could compel the use of be restrained, but it would have to be palpably so to a municipal system, there is no requirement that the justify a court in interfering with so salutary a power danger to public health must be imminent before a and one so necessary to the public health. There is municipality may act. See, e.g., Town of Ennis, 807 certainly nothing in the facts alleged in the bill to P.2d at 183 (" Allowing some citizens to forgo justify the conclusion that the city was induced by connection to such a system indefinitely or until a anything in the enactment of ordinance o f the ordither than health threat is imminent may make such a system unaffordable and thereby the public good, or that such was not the effect. Y defeat the purpose o f preventing potential health problems before they *5 Id. arise." ) (emphasis in original); City of Virginia Beach, 267 S.E.2d at 134 (" There is no requirement Later courts have cited Hutchinson in upholding that protective measures be limited to actions taken ordinances requiring connection to water or sewer after a crisis has arisen or a catastrophic disaster has systems. See Schrader v. Horton, 471 F.Supp. 1236 struck." ). We believe such a requirement would be (W.D.Va.1979), (water system), affd,626 F.2d 1163. unwise. Cf. City of Virginia Beach, 267 S.E.2d at 134 1243 (4th Cir.1980); Board of Health v. Crew, 129 (" To anticipate seemingly unlikely events * * * as A.2d 115 (Md.1957) ( water 7 system); McNeill v. public health hazards may be to exercise y stem ), _ Harnett County, 398 S.E.2d 475 (N.C.1990) (sewer commendable prudence and foresight." ) Even system); Kingmill Valley Pub. Serv. Dist. v. though the threat to the Waughtals' water supply may Riverview Estates Mobile Home Park, Inc., 386 not be imminent, we believe that the township has S.E.2d 483 (W.Va.1 989) (sewer system). made a sufficient showing of endangerment to justify its actions. We will not impose on the township our In addition, the Waughtals rely on an attorney general conclusions as to what would have been the best opinion, Op.Att'y Gen. 469c -11 (Nov. 30, 1964) in course of action. See City of Bloomington. 267 Minn. which the attorney general stated: at 226, 125 N.W.2d at . We conclude the Waughtals A village lacks authority to require a property owner have not met the burden of showing the ordinance is to use a municipal water system in the absence of a an improper exercise of police power. ADD4 Not Reported in N,W.2d Page 5 Not Reported in N.W.2d, 1993 WL 328750 (Minn.App.) (Cite as: Not Reported in N.W.2d) 28, 241 N.W.2d at 627 (civil case). The ordinance's C. Taking unreasonable and arbitrary nature makes it an unconstitutional exercise of the township's power to *6 The Waughtals argue that enforcement of the enact ordinances for its citizens' health and safety. ordinance would amount to a taking of their property without compensation, As the township correctly Minn.App.,1993. notes, even if there is a taking, it would not be an State, Northern Tp. v. Waughtral affirmative defense in a criminal action. It would just Not Reported in N.W.2d, 1993 WL 328750 mean that the Waughtals, if successful in their claim, (Minn.App.) would be entitled to compensation in a civil action. END OF DOCUMENT III. Motion to Strike In making our decision, we do not rely on material in the appendix of the Pollution Control Agency's amicus brief, therefore we decline to rule on the motion to strike. Affirmed. SHORT, Judge (dissenting). 1 respectfully dissent. The ordinance is unconstitutional because it is an improper use of the township's police power. Under its police power, the township may enact ordinances for the health and safety of its citizens, but such ordinances must be reasonable and not arbitrary. Olsen v. City of Minneapolis, 263 Minn. 1, 13, 115 N.W.2d 734, 742 (1962); Fairmont Foods Co. v. City of Duluth, 260 Minn. 323, 325, 110 N.W.2d 155, 157 (1961). The record contains no evidence either that the Waughtals' well is polluted or that their continued use of well water would endanger the general public's health and safety. In light of these facts, the township's ordinance is unreasonable and arbitrary. See, e.g., Manufactured Housing Institute v. Pettersen, 347 N.W.2d 238, 245 (Minn.1984) (health department's determination of maximum formaldehyde levels was arbitrary and capricious). The fact that it would cost the Waughtals over $7,000 to comply with the ordinance also renders the ordinance unconstitutional. See Missouri Pac. R.R. Co. v. Norwood, 283 U.S. 249, 255, 51 S.Ct. 458, 461 (1931) (cost of complying with state law may be considered in determining whether law is arbitrary and unconstitutional). The Waughtals' situation differs from the facts of Minnesota State Bd. of Health v. Ciry of Brainerd, 308 Minn. 24, 241 N.W.2d 624 (1976) (the floridation case) in two important respects: (1) the Waughtals' choice to continue using their well affects only themselves rather than the general public; and (2) the Waughtals are being made to suffer criminal penalties. Cf id at ADDS Eric Johnson From: Molly Nystel [MNystel @jlolaw.com] Sent: Friday, December 09, 2011 10:27 AM To: MRossow @Imc.org; Eric Johnson; MVierling©eckberglammers.com Cc: Pete Regnier, Jessica Schwie Subject: County of Washington vs. City of Oak Park Heights Claim No. [11071183] Our File No. 37024 (872) - Respondent's , Brief and Reply Brief of Petitioner City of Oak Park Heights Attachments: City of Oak Park Heights - Reply Brief of Petitioner City of Oak Park Heights.pdf; City of Oak Park Heights - Respondent's Brief.pdf Attached hereto is the Brief submitted by Washington County in this matter and our Reply Memorandum. With this, all briefing in this matter to the Supreme Court is now completed. When a date for oral argument has been set, we will contact you. If you have any questions or concerns in the meantime, please contact us. Sent on behalf of attorney Jessica Schwie. direct dial 651/290 -6591 Molly R. Nystel Legal Secretary Jardine, Logan & O'Brien, P.L.L.P. 8519 Eagle Point Boulevard - Suite 100 Lake Elmo, MN 55042 Phone: 651 - 290 -6540 FAX: 651 - 290 -7429 E -Mail: MNystelOJLOlaw.com STATEMENT OF CONFIDENTIALITY This message and any attachments are covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 -2521, and may contain information that is privileged and confidential and is intended solely for the use of the individual(s) to whom it is addressed. This communication and any attachments may also contain information protected by the attorney - client privilege. This form of communication does not constitute a waiver of any confidentiality or applicable privileges. If you are not the intended recipient, you are notified that dissemination, distribution, copying or forwarding this E -mail message and any attachments is strictly g g g Y Y prohibited. If you have received this E -mail in error, please notify the sender immediately and then delete this message and any attachments from your computer system. 1 o 1 • NO. A11-0067 c $tatt r(f 411 bat e City of Oak Park Heights, Petitioner, v. County of Washington, Respondent. REPLY BRIEF OF PETITIONER CITY OF OAK PARK HEIGHTS JARDINE, LOGAN & O'BRIEN, PETE ORPUT, COUNTY ATTORNEY N TON COUNTY G P.L.L.P. WA.SHI COUNTY, MN i n (#147722) Pierre N. Re ' er (#90232) George Ku rta Jessica E. Schwie ( #296880) 15015 — 62nd Street North 8519 Eagle Point Boulevard P.Q. Box 6 • Suite 100 Stillwater, MN 55082 Lake Elmo, MN 55042 (651) 430 -6115 (651) 290 -6500 Attorneys for Respondent Attorneys for Petitioner LEAGUE OF MINNESOTA CITIES Susan L.Naughton ( #0259743) 145 University Avenue West St. Paul, MN 55101 -2044 (651) 281 -1232 Attorney, f br.Arnicus Curiae 2012- BACHMAN LEGAL PRINTING - FAXW21 - PHONEME)339- 951Esr1 71543113 f TABLE OF CONTENTS ARGUMENT 1 L BECAUSE RESPONDENT HAD A REMEDY FOR ITS CLAIMED INJURY, THERE IS NO REASON FOR THIS COURT TO PROMULGATE THE PROPRIETARY CAPACITY EXCEPTION WHICH HAS BEEN USED ONLY TO PROVIDE EXCEPTIONS TO GENERAL RULES OF LAW THAT WOULD OTHERWISE DEPRIVE CLAIMANTS OF A REMEDY AND REVERSAL OF THE LOWER COURTS IS PROPER. 1 CONCLUSION 13 CERTIFICATION OF BRIEF LENGTH 14 } t • TABLE OF AUTkHORITIES STATUTES . Minn. Stat. § 444.075 9 Minn. Stat. Ch. 412 9 Minn. Stat. Ch. 444 9 Minn. Stat. Ch. 453 9 Minn. Stat. Ch. 465 9 Minn. Stat. Ch. 471 9 CASES City of Crookston v. Crookston Water Works, P. & L. Co., 150 Minn. 347, 185 N.W. 380 (Minn. 1921) 3 City of Shorewood v. Metropolitan Waste Control Commission, 533 N.W.2d 402, (Minn. 1995) 6, 7 Dead Lake Assn v. Otter Tail County, 695 N.W.2d 129 (Minn. 2005) 1, 2 Dietz v. Dodge County, 487 N.W.2d 237 (Minn. 1992) 7 Dokmo v. Independent School District No. 11, 459 N.W.2d 671 (Minn. 1990) 9 Handicraft Block P'Ship v. City of Minneapolis, 611 N.W.2d 16 (Minn. 2000) 8, 13 Imlay v. Lake Crystal, 453 N.W.2d 326 (Minn. 1990) 7 In re Petition of Brainer Nat'l Bank, 383 N.W.2d 284 (Minn. 1986) 7 Keever v. City of Mankato, 129 N.W. 158 (Minn. 1910) 3, 11 Lund v. Comm 'r of Pub. Safety, 783 N.W.2d 142 (Minn. 2010) 6 Oakman v. City of Eveleth, 163 Minn. 100, 203 N.W. 514 (Minn. 1925) 2 Peterson v. Balach, 294 Minn. 161 (Minn. 1972) 7 Peterson v. Commissioner of Revenue, 533 N.W. 710 (Minn. 1997) 9 Sloan v. City ofDuluth, 194 Minn. 48, 295 N.W. 393 (Minn. 1935) 6 Spanel v. Moundsview School District No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962) 8 ii { 1 St. Paul v. Chicago, M. & S.P.R. Ca, 45 Minn. 387 (1891) 3 State ex rel. Spurck v. Civil Service Board, 226 Minn. 240 (Minn. 1948) 4, 7 Stein v. Regent of University of Minn., 282 N.W.2d 552 (Minn. 1979) 11, 13 Tischer v. Hous. & Redev. Auth., 693 N.W.2d 426 (Minn. 2005) 1, 4, 5, 8 Wensmann Realty, Inc. v. City of Eagan, 734 N.W.2d 623 (Minn. 2007) 10 Williams v. Smith, 2011 Minn. App. Unpub. LEXIS 947 (Minn. Ct. App. Oct. 17, 2011) 11 Willis v. County of Sherburne, 555 N.W.2d 277 (Minn. 1996) 4, 5 • I I 111 ARGUMENT I. Because Respondent had a remedy for its claimed injury, there is no reason for this Court to promulgate the proprietary capacity exception which has been used only to provide exceptions to general rules of law that would otherwise deprive claimants of a remedy and reversal of the lower courts is proper. Whether review of a claim against a governmental entity should be limited to certiorari review is a question of subject matter jurisdiction. Tischer v. Hous. & Redev. Auth., 693 N.W.2d 426, 430 (Minn. 2005). Whether subject matter jurisdiction properly lies within a court is determined by reference to constitutional provisions', statutes, and procedural rules. Id. The County admits at pages seventeen and nineteen of its brief that there is no case holding that subject matter jurisdiction is deterrined by reference to the proprietary e propr� Lary capacity exception. As discussed in the City's moving brief and herein, although this Court has occasionally referred to the proprietary capacity exception in order to avoid otherwise harsh results, there is no harsh result here that would merit recognition of the proprietary capacity exception for purposes of determining subject matter jurisdiction. It is incorrect to state that the constitutional principle of separation of powers is not a concern simply because a decision of a city council was rendered in its "proprietary capacity." See Resp, Brief p. 18 -19. Concerns related to the separation of powers arise immediately upon a court being called to review a decision of a city council. See Dead Lake Assn v. Otter Tail County, 695 N.W.2d 129, 134 (Minn. 2005). Such concern, however, does not necessitate review by certiorari. Id. Rather, whether the requirements of the constitutional principal are met in cases challenging the decision of the city council is determined by reference to the constitution, statutes, and procedure. Id.; Tischer, 693 N.W.2d at 430. 1 This case is not about whether Respondent has a remedy, the question is what is the proper remedy. The parties do not dispute that if the County overpaid the City for sewer and water services, it has (or had) a remedy The dispute ) y Th di pute is over the proper remedy — certiorari or an unjust enrichment claim in the district court. The distinction is an important one for resolving the issue of whether the .proprietary capacity exception should be applied here because the exception, to the extent that it is used, is used only to alleviate harsh applications of general rules of law. The ro rieta capacity p p ry p uy exception was created for purposes of providing a remedy where there would be harsh results otherwise. Contrary to Respondent's assertions it is correct to �' suggest that all undertakings of a city are governmental. Resp. Brie . 4, 9. That is the g eneral rule of law—city Brief general y council decisions are either legislative, uasi J 'udicial (also referred to as discretionary) or 9 administrative also referred to as ministerial). Dead Lake Ass ) A 'n, 695 N.W.2d at 134; Oakman v. City of Eveleth, 163 Minn. 100, 107, 118, 203 N.W. 514 (Minn. 1925). The 2 III its recitation of the facts, without citation to the record, the County suggests that the subject billing discrepancy did not come to its attention until an audit was p erformed in response to a change in the sales tax laws. Resp. Brief p. 3. The record, however, establishes that the City regularly questioned the County regarding the meter readings and its usage of sewer and water throughout 2004 -2008. 4.22 -23, 1 6. 3 At page six of its brief, Respondent suggests that one such remedy was settlement, but that "the City had declined meaningful settlement." Respondent did not cite to the record, since there. is no support for that proposition. To the contrary, this Court need only look to the Complaint in this matter to understand that it is the County's contention that any compromised settlement was invalid since the County employees who would have agreed to the settlement were without authority to settle or compromise a claim since the authority to settle a claim resides exclusively with the County Board. 4.48, Complaint at ¶28. 2 notion that a city council's decision might be proprietary is an exception to the general rule that the decision is governmental. Although Respondent suggests that the City has ignored or misconstrued the law of this state, both parties agree that there is a "century's worth" of cases in which this Court has referred to the proprietary. capacity exception. Case law holds that the injured should have available a remedy; and, therefore, the law is generally interpreted in a manner so as to provide a remedy. City of Crookston v. Crookston Water Works, P. & L. Co., 150 Minn. 347, 353, 185 N.W. 380 1921 a 1 in the proprietary capacity (Minn. )( pP Y g P P �' P tY exception to the general rule of law that would have otherwise barred a remedy to the injured pay). Consistent with this general principle of law, in all cases cited to this court (by both parties) in which the proprietary capacity exception is discussed, the court has applied the exception (or pp p ( refused to apply the exception) in a t pA Y p ) manner so as to provide an • injured person with a remedy from J P y a governmental entity. See e.g. Id. (applying proprietary capacity doctrine to serve as an exception to general rule of law that would have barred remedy from governmental entity) Keever v. City of Mankato, 129 N.W. 158 (Minn. 1910)(sarne ; C . St. Paul v. Chicago, M & ) .� g , S.P.R. S Co., 45 Minn. 387, 396 (1891) (rejecting the invitation to adopt and apply the exception so as to allow the city to avoid application of statute of limitations). In short, the proprietary capacity exception has - I been applied by the judiciary y � ary in this state onl y as necessary to alleviate claimants from �y the otherwise harsh results of ene g ral rules.of law that, that but for the application of the exception, would serve to deprive the claimants of a remedy. 3 Proscribing a method of review does not create such harsh results such that promulgation of the proprietary capacity exception is necessary. As set forth above, the proprietary capacity exception has been employed so as to avoid the harsh result of depriving a claimant of a remedy. Limiting review by writ of certiorari, however, does not deprive a claimant of a remedy. Tischer, 693 N.W.2d at 430; Willis v. County of Sherburne, 555 N.W.2d 277, 282 fn. 3 (Minn. 1996). Review by certiorari has both a procedural component as well as providing remedial relief. Tischer, 693 N.W.2d at 430; Willis, 555 N.W.2d at 282 fn. 3. The remedial relief afforded by writ of certiorari is more limited than that which might otherwise be available at law. State ex rel. Spurck v. Civil Service Board, 226 Minn. 240, 249 -253 (Minn. 1948). On certiorari review, the court is generally limited to affirming or reversing the decision of city council with instructions to the city council to enter a decision consistent with the holdings of the court. Id. Some have said that while it may be appropriate to limit review and remedy of those claims that challenge the basis for, or the propriety of a city council's decision, in order to preserve the separation of powers doctrine, it is not p ne, t is of appropriate and even "harsh" to limit claims that challenge a city council's interpretation of a contract. See e.g. Tischer v. Hous. & Redev. Auth., 693 N.W.2d 426, 432 (Minn. 2005) (Justice Paul Anderson's dissenting opinion, joined In by Justice Alan Page); Willis, 555 N.W.2d at 283 (Justice 4 Keith's dissenting opinion, joined by Justices Gardebring and Page). 4 Respondent has never made this argument in this case, nor can it. Respondent has advanced an unjust enrichment claim in which it challenges the propriety of the City's decision to keep (allegedly "wrongly ") the money paid to it by the Respondent. Resp. Briefp. 6. Respondent is not asking this Court, nor has it ever asked any court, to interpret the terms of contract between it and the City for the provision of sewer and water services. See Resp. Brief p. 2, 6 -7, •10 -11, 27 -28. To the contrary, Respondent asserts that it is not subject to any policies or practices that may have been adopted by the City regarding the provision,of sewer and water services. Brief in Opp. 4 It is worthwhile to note in this case that neither the dissenting opinion in Tischer, nor the dissenting opinion in Willis premised their conclusions upon the proprietary capacity doctrine. Rather, both dissenting opinions state that there is no separation of powers concern where a claimant brings a breach of contract claim that requires only an interpretation of contract as opposed to a review of the merits of the decision to breach the contract. Tischer, 693 N.W.24 at 432; Willis, 555 N.W.24 at 283. As discussed herein, Respondent is not seeking an interpretation of a contract with the City; it is seeking a review of the merits of the decision to "wrongly" keep the County's money. Resp. Briefp. 3, 6 -7. S Respondent attempts to separate itself from the City's utility appeal policy by claiming that its request was for reimbursement of an overcharge as opposed to a "bill dispute subject to the City's utility bill appeal policy." Resp. Briefp. 6 -7. First, the policy itself does not refer to billing but is rather "Appeal process for charges — if a customer feels that charges for utility accounts have been improperly assessed the following process shall be utilized to handle appeals." A.54. Furthermore, Respondent's own appeal papers to the City Council points out that the overcharges were based on meter readings and "billing calculation." 4.11. Also, the County in its submittal to the City Council refers to the documentary record relating to the "billing invoices" and the "the billing errors." A- 16 Furthermore, Respondent's complaint in this lawsuit refers to the City Council's resolution "denying Plaintiff's appeal of its water bills." A. 49, Complaint 135. 5 • p. 6 -7, 22. In such circumstances, review by certiorari is the proper method of review. Certiorari review determines calls for the court to determine (1) what the law is and what the legal rights of the parties are, (2) whether the city council kept within its jurisdiction, (3) whether the city council's decision was arbitrary, capricious, oppressive, or fraudulent, and (4) whether there was evidence supporting the city council's decision. See City of Shorewood v. Metropolitan Waste Control Commission, 533 N.W.2d 402, 404 (Minn. 1995). • In this case, certiorari review is the most appropriate review because the case (1) calls for a determination of the applicable standard for resolving the bill dispute in light of the fact that Respondent disputes that it is subject to the policies and practices of the City, (2) requires a determination of whether the city council correctly applied the applicable law and policies when it decided to keep the money, (3) requires a determination of whether the city council's decision to keep the money was supported by the evidence, (5) prevents the improper usurpation of the city council's power to resolve such disputes and to interpret its own policies and procedures for resolving such disputes, and (4) allows the court to reverse the city council's decision to keep the money and order further proceedings consistent with its rulings. See City of Shorewood, 533 N.W.2d 6 The City recognizes that in Sloan v. City of Duluth, 194 Minn. 48, 259 N.W. 393 (Minn. 1935), the Court concluded that a claim for unjust enrichment relating to the overpayment • of sewer and water assessments should be permitted to proceed in district court. The court in Sloan, however, was not called upon to decide whether certiorari review would provide the most appropriate remedy as'necessary to provide relief, but also to preserve the separation of powers doctrine as is the issue here. Therefore, it is not of instructional value. Lund v. Comm'r of Pub. Safety, 783 N.W.2d 142, 143 (Minn. 2010)(case law that does not address the issue at hand lacks persuasive value). 6 f at 404(holding that methodology for calculating sewer costs to be invoiced was reviewable only by certiorari because there was no precise formula for making such calculation in statute); Dietz v. Dodge County, 487 N.W.2d 237 (Minn. 1992)(explaining the purpose and scope of certiorari review); Youngstown Mines Corp, v. Prout, 266 Minn. 450, 124 N.W.2d 328 (1963)(rejecting argument that certiorari review was improper because the underlying conduct was proprietary; certiorari review was proper to review decision of whether to refund overpayments); Spurck, 226 Minn. at 249 -253 (explaining the remedy that may be awarded to a party if it is concluded on certiorari review that a body has acted arbitrarily). In short, any moral obligation that the City might have to return money allegedly wrongly kept can be adequately addressed and remedied through the certiorari process while still preserving, as this court must do, the constitutional principle of separation of powers. Exceptions are to be avoided and lied only as necessary to avoid the harsh aPP Y �'Y result of being left without a remedy. See e.g. Imlay v. Lake Crystal, 453 N.W.2d 326, 330 1990) (rejecting invitation (Minn. ) re (J g to on to revive the proprietary capacity exception for purposes of evading statutory caps on liability); In re Petition ofBrainer Nat'l Bank, 383 N.W.2d 284, 289 (Minn. 1986) (rejecting invitation to create an exception to a general J g P S rule of torrens law because it would negatively impact the predictability of the general • rule); Peterson v. Balach, 294 Minn, 161068 (Minn, 1972)(noting that exceptions are oftentimes used to "whittle away" at general rules of law that have harsh results, but that the use of such exceptions can lead to "complex, confusing, inequitable and, paradoxically, nonuniform" results); Spanel v. Moundsview School District No. 621, 264 7 Minn. 279, 285, 118 N.W.2d 795 (1962)(abandoning the use of the proprietary capacity exception for purposes of determining tort liability of governmental entities). Because there was a remedy available to Respondent to seek redress for its claimed injury, there is no harsh result in this case that merits the adoption and promulgation of the proprietary capacity exception. Furthermore, in this case, there is no other basis for concluding that limiting Respondent to certiorari review would be harsh. Accordingly, this Court should reject the invitation to adopt the proprietary capacity exception as a reference for determining subject matter jurisdiction. _'resent subject matter Jurisdiction test, the Handicraft test, dictates certiorari review. Throughout the Litigation of this matter, Respondent has not disputed that: 1. Respondent's suit challenges the October 13, 2009 City of Oak Park Heights City Council decision to deny its request for a refund for sewer and water charges. A -49, 52, Complaint at ¶ 1135 and 45. 2. If subject matter jurisdiction is determined without any reference to the proprietary capacity exception, it is determined by reference to the factors specified in Handicraft Block P'Ship v. City ofIinneapolis, 611 N.W.2d 16, 20 (Minn. 2000). 3. Under Handicraft absent statute vesting district court jurisdiction, claims attacking a quasi-judicial decision of a governmentar entity are to be heard via writ of certiorari. Id.; Tischer., 693 N.W.2d at 428. 4. Application of the Handicraft test to the facts of this case dictates that the October 13, 2009 decision by the City Council to deny Respondent's appeal was quasi - judicial itt nature because it was a binding decision that followed investigation into a set 8 of facts, application of facts to a proscribed standard, and consideration of arguments by opposing parties. 5. There is no statute providing for district court review of a municipal decision to deny an appeal seeking refund of sewer and water charges. See Resp. Brief to the Court of Appeals p. 14 citing Minn. Stat. Ch. 444, 412, 465, 471 (enumerating municipal powers, including the provision of sewer and water services and ability to charge for the same, but lacking statutory authority for district court review and jurisdiction) • I I 7 In its Statement of' Facts at page three, but nowhere in the Argument section of its brief, Respondent implies that the City Council's decision was not quasi-judicial because the request for refund made by Respondent was placed in the city council minutes under New Business as opposed to under Public Hearings which belies Appellant's contention that the council was acting as a factfinder. It is obvious why Respondent did not pursue this argument in the Legal Argument portion of its brief. This Court has specifically rejected the need for a hearing in order to have a matter considered quasi-judicial. Dakmo v. Independent School District No. 11, 459 N.W.2d 671, 675 -676 (Minn. 1990). Furthermore, in this case, the Respondent has never claimed that the record is inadequate. To the contrary, the County submitted a letter argument to the City Council pointing out that the County believed that "the documentary record provides compelling evidence that the County was overcharged .... " A.16. 8 The City notes that throughout its brief to this Court, Respondent ondent treats sewer and water p utilities as being interchangeable with other utilities, such as electric. See e.g. Resp. Brief 9, 12. It i s improper for th p f p the County or any other entity to refer to the utilities interchangeably. As the Respondent recognized in the court below, sewer and water utilities operate under their own specific statutory scheme. See Minn. Stat. § 444.075. This statutory scheme, ry a e, unlike others, such as Minn. Stat. Ch. 453 as cited to by Respondent, does not provide that sewer and water utilities may be treated like private corporations, nor does it address the treatment of its employees. Therefore, as Respondent also admits at pages p pag nine and twelve of its brief, the unrelated statutes and case law are not instructional here. See Peterson v. Commissioner of Revenue 533 N.W. 710, 715 (Minn. 1997xrejecting citation to case law and statutes that contained different standards than those at issue). 9 Under these circumstances, if this Court agrees that subject matter jurisdiction should be determined without reference to the proprietary capacity exception, then it is undisputed that the County's unjust enrichment claim had to be reviewed by writ of certiorari and that the district court, therefore, lacked jurisdiction. In this circumstance, the City would be entitled to reversal of the decisions of both lower courts and entry of judgment, dismissing the Complaint. If this court adopts the proprietary capacity exception for purposes of determining jurisdiction, it should specify what factors should be considered for determining whether an entity is acting in its proprietary capacity. At page thirteen of its brief, the County suggests that the City is asking this Court to remand the case to the district court to determine what the test should be for determining whether a governmental entity is acting in its proprietary capacity. This is not what the City is asking for, and, such request would be inappropriate. It is for this Court, not the district court, to identify whether a new legal principle has been adopted and the terms of the principle. Wensmann Realty, Inc. v. City of Eagan, 734 N.W.2d 623, 635 (Minn. 2007). Once the new legal principle is adopted, and its terms specified, it is the role of the lower court, on remand, to resolve any fact disputes that may related to the newly created legal principle(s). Id Accordingly, in this case, it is the role of this Court to specify in this case (1) whether subject matter jurisdiction should be determined by reference to the proprietary capacity exception, and, (2) if so, to specify the test for determining whether a governmental entity is acting its proprietary capacity. • 10 Respondent further asserts that there is no reason for this Court to specify the test for determining whether a governmental entity is acting its proprietary capacity. At page thirteen of its brief, it argues that the City is ipso facto acting in its proprietary capacity "with regard to providing sewer and water ". Yet, at pages ten through eleven of its brief it recognizes that some activities related to the provision of sewer and water are not proprietary. This is the precise type of confusion this Court should address should it adopt the rule of law proposed. It is correct to say that there is case law which holds that the operation of a sewer and/or water utility, even though operated without a profit, is proprietary conduct because the city "is voluntarily engaged in the same business which, when conducted by private persons, is operated for profit." Keever, 129 N.W. at 60 -61. On the other hand, as set forth in the City's moving brief, and undisputed by the Respondent, there is also the more fact- intensive test suggested by this Court in Stein v. Regent of University of Minn., 282 N.W.2d 552, 555 (Minn. 1979). The Stein test requires discovery and an inquiry into, the nature of the operations, including review of financial data, the primary beneficiaries of the operation, funding of the operation, the purpose of the operation, and whether any private corporations are providing similar operations. Id. Furthermore, in the recent unpublished opinion of Williams v. Smith, the Minnesota Court of Appeals utilized in part a "public interests test. Williams v. Smith, 2011 Minn. App. Unpub. LEXIS 947 (Minn. Ct. App. Oct. 17, 2011). There the Court of 9 If that is going to be the test, then Respondent admits at page ten of its brief that the City's sewer and water utility service is governmental and not proprietary since it "serves a public purpose." 11 • Y Y Appeals determined that the University of Minnesota's basketball program was proprietary in part because there is "no public interest served by the basketball team." Id. at 16. Finally, as cited in the City's moving brief, a few other jurisdictions continue to recognize the proprietary capacity doctrine, those jurisdictions have also developed tests which may prove informative to this Court should it wish to move Minnesota's case law in the direction proposed. This Court should not adopt the jurisdictional test proposed by the Court of Appeals in this matter because as set forth in the City's brief and even Respondent brief at a es ten and eleven any proprietary capacity exception test adopted by this Court is P g � yP P ry P tY P P Y likely to have confiising results. However, if this Court chooses to adopt such a test, then this Court should clear up the tests presently existing in case law as outlined above and set forth the test that courts should employ going forward for purposes of determining when a city council is acting in its proprietary capacity. Furthermore, this Court should then remand the matter to the district court to allow the parties to conduct the extensive fact discovery that would be necessary for such 1° At pages ten through eleven of its brief, Respondent confirms the very reasons cited by the City as to why the proprietary capacity exception should not be adopted here. Great confusion would arise from parsing out specific actions within the same government department when determining the issue of jurisdiction to hear a review of an employment discipline or termination proceeding. Respondent's argument when applied to this issue of jurisdiction would lead to the situation whereby an employee of the water department who constructs a water system or is involved with the charging for the water can only review their termination by a writ of certiorari whereas a water department person who operates the system could only challenge their termination by first going to district court. This is exactly why there is no legal or logical reason for adopting the proprietary versus governmental factor as a test for determining whether an action is quasi-judicial for purposes of determining jurisdiction. • 12 • A - analysis. See e.g. Stein, 282 N.W,2d at 555 -557 (reviewing the many facts relevant to whether a hospital was operating in a proprietary capacity). Following discovery, the parties should then be entitled to have the matter heard by way of motion again under the new pronouncements of this Court, because the ultimate issue challenged still remains a jurisdictional issue which is a question of law, decided by the court and is immediately appealable. CONCLUSION The Court of Appeal decision, which held that a decision of the city council rendered while the city council was operating in its proprietary capacity, is not a quasi- . judicial decision, must be reversed. The statement of law represents the expansion of an analytically unsound doctrine that has been generally rejected by this Court and the nationwide majority. Furthermore, as it pertains to these specific parties, the correct application of the law calls for the application of the Handicraft test and reversal under that test because it is undisputed that under Handicraft, the October 13, 2009 decision of the City of Oak Park Heights' City Council was - quasi judicial. DATED: /9/ 6 / fl JARDINE, LOGAN & OBRIEN, P.L,L.P. :By: "... -- Pierre 14. Regnier (A.R' #90232) James G. Golembeck (A.R. #17' • 20) Jessica E. Schwic (A.R, #296880) 8519 Eagle Point Boulevard, Suite 100 • Lake Elmo, MN 55042 -8630 • (651) 290 -6500 Attorneys for Appellant 13 CERTIFICATION OF BRIEF LENGTH I hereby certify that this Brief conforms to the requirements of Minn. R. Civ. App. P. 132.01, subds. 1 and 3, for a Brief produced with a proportional font. The length of the Brief is d 73 words. This Brief was prepared using Microsoft Word 2003. DATED: /4'7' 4 JARDINE, LOGAN & O'BRIEN, P.L.L.P, Pierre N. Regnier (A.R. #90. 2) James G. Goiembeck (A. ' , #179620) • Jessica E. Schwie (A.R. #296880) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8630 (651) 290 -6500 Attorneys far Appellant 14 APPENDIX INDEX Williams v. Smith. 2011 Minn. App. Unpub. LEXIS 947 (Minn. Ct. App. Oct. 17, 2011) A000065 • _ f i Switch Ciient i Preferences) Help I Sign Out My Lexis°' Search I Get a Document J Shepard'# More History Alerts FOCUSTM Terms J wflliams & smith & proprietary & bas4 search Within Original Results (1 - 1) • Advanced... View Tutorial Source: Minnesota > Find Cases > MN State Cases, Combined W Terms: wililams & smith & proprietary & basketball (Suggest Terms for My Search) 2011 Minn. App. Unpub. LEXIS 947, * • James R. Williams, Respondent (A10 1802), Appellant, (A11 - 567), vs. Orlando Henry "Tubby" Smith, et al., Appellants (A10- 1802), Respondents (A11 -567). • A10-1802, A11-567 COURT OF APPEALS OF MINNESOTA 2011 Minn. App.. Unpub,. LEXIS 947 October 17, 2011, Filed NOTICE: THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES. PRIOR HISTORY: C *1] Hennepin County District Court Rle Nos. 27- CV-09- 16611, 27- CV -07- 22194. • Williams v. Bd. of Regents, 763 N.W.2d 646, 2008 Minn. App. LEXIS 398 (2008) DISPOSITION: Affirmed. CASE SUMMARY OVERVIEW: Motion for judgment as a matter of law was appropriately dented. The university coach • owed a duty of care to the claimant in conveying information during the hiring negotiations, and the university and coach failed to demonstrate that the claimant's reliance was unreasonable as a matter of law. No correction occurred which would Invalidate the claimant's reliance as a matter of law. Also, the court did not abuse Its discretion by denying the motion for a new trial. OUTCOMEi Judgment affirmed. CORE TERMS: hiring, misrepresentation, duty of care, new trial, assistant coach, resignation, abused, hire, basketball, matter of law, rule -12, negligent - misrepresentation, decision- making, remlttitur, recruiting, correction, hired, basketball coach, interest rate, witnesses to testify, dosing argument, administrator, misconduct, assigned, coach, owed, character evidence, assistant- . coaching, jury award, final authority LEXISNEXIS® HEADNOTES a Hide Civil Procedure > Trials > Judgment as Matter of Law > General overview . in A000065 cIvII Procedure > Appeals > Standards of Review > De Novo Review it HN.i +Minn. R. Civ. P. 50,01 empowers a district court to grant a judgment as a matter of law (3MOL) motion when a party has been fully heard on an Issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party. A district court's 3MOL decision is reviewed de novo. More Uke This Headnote Torts > Business Torts > Fraud & Misrepresentation > Negligent Misrepresentation > Elements C HNZ ±To successfully recover for a negligent misrepresentation, a plaintiff must demonstrate that (1) the defendant owed a duty of care in conveying information; (2) the defendant breached that duty by negligently providing false information; (3) the plaintiff reasonably • relied on the misrepresentation; and (4) damages proximately caused by the plaintiffs reliance. More Uke This Headnote Clvit Procedure > Appeals > Standards of Review > De Novo Review C Torts > Business Torts > Fraud & Misrepresentation > Negligent Misrepresentation a Elements " HW3 *A duty of care in conveying information arises when a party provides information for the guidance of others In the course of a transaction in which that party has a pecuniary Interest, or In the course of that party's business, profession, or employment. Whether a duty of tare exists is a conclusion of law reviewed de novo. More ti Thls Headnote CIVli Procedure > Appeals > Reviewabiiity > Notice of Appeal it HN ±The Minnesota Supreme Court has not, however, Imposed the requirement of a notice of review where the trial court has failed to rune on a question Htigated and practical reasons continue to render such a notice unnecessary. While a notice of review might serve to calf attention to the unresolved Issue, an undecided question Is not usually amenable to appellate review. More tike This Headnote Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss J HNS ±Defenses may be brought in a Minn. R. Chi. P. 12 motion; such an Inclusion Is not mandated. More Like This Headnote Torts > Business Torts > Fraud & Misrepresentation > Negligent Misrepresentation > Elements t HMI duty of care still exists in all Instances when a party provides information for the guidance of others in the course of business or where there Is a pecuniary Interest. More Like This Headnote Governments > Local Governments > claims By & Against Governments a State & Territorial Governments > Claims By & Against St RN77If the government Is to enter into businesses ordinarily reserved to the field of private enterprise, It should be held to the same responsibilities and liabilities. More Like This Headnote • Civil Procedure > Trials > Jury Trials > Province of court &Jury Torts > Business Torts > Fraud & Misrepresentation > Negligent Misrepresentation > General Overview it SM UltImatety, reliance is a jury question. Mme Like This Headnote clvll Procedure > 3udgmeMs > Relief From Judgment > Motions for New Trials ti • A000066 Civil Procedure > Appeals > Standards of Review > Abuse 'of Discretion $ H"l9#A district court may grant a party a new trial upon a showing of misconduct by the prevailing party, accident or surprise that could not have been prevented by ordinary prudence, or errors of law made by the district court at trial. Minn. R. ay. P. 59.01(b), (c), (G. The appellate court reviews a district court's decision on a motion for a new trial for an abuse of discretion. more Uke This Headnote Civil Procedure > Appeals > Standards of Review > Abuse of Discretion Evidence > Procedural Considerations > Rulings on Evidence CI IfNZO +The admission of evidence rests within the broad discretion of the district court and Its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion. More tike This Headnote Civil Procedure > Judgments > Relief From Judgment > Motions for New Trials i HNL .i Entitlement to a new trial on the grounds of Improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudidal error. More Uke This Headnote Evidence > Testimony > Credibility > Rehabilitation it HN ± Minn. R. Evid. 608(a) allows evidence of a party's truthful character to be introduced only after the character of the witness for truthfulness has been attacked [tacked by opinion or reputation evidence or otherwise. More Like This Headnote Evidence > Testimony x erts > Admissibility Y P Evidence > Testimony > Experts > Helpfulness C HN13. district court may allow expert testimony where scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in Issue. Minn. R. Evid. 702. The opinion must also have foundational reliability, the basis of which is independently admissible. Minn. R. Evid. 702; Minn. R. Evid. 703 • (b), More Uke This Headnate Civil Procedure > Judgments > Relief From Judgment > Addtturs & Remittiturs > Remlttiturs CM Procedure > Appeals > Standards of Review > Abuse of Discretion CI NN *Renlittitur may be granted when an award of damages falls to follow the law, is not supported by the evidence presented at trial, or appears to.have been influenced by the passion or prejudice of the jury. Minn. R. Civ. P. 59.01(e), (g). The appellate court .reviews a district court's decision regarding remtttltur for an abuse of discretion. More uke This Headnote Civil Procedure > Trials > posing Arguments > General overview el Civil Procedure > Appeals > Revtewebllity > Preservation for Review i Hms ±The appellate court declines to grant relief when the alleged misconduct during dosing argument is only complained of after an unfavorable result Is realized. A party is not permitted to remain silent, gamble on the outcome, and having lost, then for the first time claim misconduct in opposing counsel's argument. Nola Uke This Headnote Governments > State & Tenitoriel Governments > Claims By & Against A000067 • Torts > Public Entity Liability > Liability > State Tort Claims Acts > Employees C Torts > Public Entity Liability > Liability > State Tort Claims Acts > Remedies a Torts > Public Entity liability > liability > State Tort Claims Acts > Scope of Employment C HN.16+Under the Minnesota Tort Claims Act, the State will pay compensation for injury to or Toss of property caused by an act or omission of an employee of the State while acting within the scope of office or employment. Minn. Stat. § 3.736, subd. 1 (2010). The total liability of the State and its employees acting within the scope of their employment is limited to $1,000,000 or the limit of the State's liability Insurance, whichever Is greater. More Like This Headnote Torts > Public Entity Liability > Uabfllty > State Tort Claims Acts > Scope of Employment HN of employment" under the Minnesota Tort Claims Act means that the employee is acting on behalf of theState in the performance of duties or tasks lawfully assigned by competent autfiority. Minn. Stat. § 3.732, subd. 1(3) (2010). More Like This Headnote Chill Procedure > Remedies > Judgment Interest > General Overview Torts > Public Entity Liability > Llability > State Tort claims Acts > Rernedles el HNta Interest rates for judgments are governed by Minn. Stat. §549.09 (2010). For a judgment against the State or a politicai subdivision of the State, regardless of the amount, the interest rate is to be computed by the court administrator based on the secondary- market yield on the American dollar, or 4 %, whichever Is greater. Minn. Stat. § 549.09, subd. 1. (c)(1). More Like This Headnote COUNSEL: For James R. Williams: Donald Chance Mark, Jr. .4 Alyson M. Palmer ., Fafinski Mark & Johnson, P.A., Eden Prairie, Minnesota; Richard G. Hunegs .O, Hunegs LeNeave & Kvas, P.A., Minneapolis, Minnesota; and Charles E. Spevacek .0, William M. Hart .i, Damon L. Highly ., Meagher & Geer, P.L.L.P., Minneapolis, Minnesota. For University of Minnesota: Mark B. Rotenberg .4, Brian J. Siovut., Jennifer L. Frisch., University Of Minnesota, Minneapolis, Minnesota. JUDGES: Considered and decided by Halbrooks .,.Presiding Judge; Worke ., Judge; and Connolly, Judge. OPINION BV WORKS OPINION UNPUBLISHED OPINION WORKE ., Judge The University of Minnesota and Orlando Henry 'Tubby" Smith argue that the district court: (1) erred by denying their motion for Judgment as a matter of law; (2) abused its discretion by denying their motion for a new trial; (3) lacked jurisdiction over the case presented at trial by James R. Williams; and (4) abused its discretion by declining to remit the jury's damage award. On cross - appeal, Williams also challenges the district court's remittltur decision. We affirm. FACTS • A000068 In the spring of 2007, James R. Williams was employed as an assistant men's basketball [ *2] coach at Oklahoma State University. On March 22, 2007, Williams was contacted by Orlando Henry "Tubby" Smith, then the head men's basketball coach at the University of Kentucky. Smith was considering leaving Kentucky for the head -coach position at the University of Minnesota, where William shad served as an assistant coach from 1971 to 1986. Smith was interested in learning about Williams's experiences at Minnesota, and Williams shared his insights into coaching and recruiting players at the university. Minnesota hired smith as its new head men's basketball coach on March 23. Shortly after the announcement of the hiring, Williams received a phone call from Jim Dutcher, the former head coach at Minnesota whom Williams worked under during his previous tenure at the university. Dutcher asked Williams if he was interested In leaving Oklahoma State and returning to Minnesota as an assistant coach to Smith. Williams informed Dutcher that he was not Interested In the position at Minnesota and intended to stay at Oklahoma State. Nevertheless, Smith contacted Williams again on March 30. Smith and Williams discussed the assistant -coach position at Minnesota for two hours. Smith and Williams negotiated [ *3] the salary parameters that would entice Williams to leave Oklahoma State for Minnesota, and Smith planned to continue their discussion in the following days. Smith next contacted Williams on April 1 and asked him to fax his resume to the university. On the evening of April 2, Smith called Joel Maturi, the director of athletics at Minnesota who had hired Smith one week earlier. Smith Informed Maturi that he Intended to add three assistant coaches, Including Williams. After ending the call with Maturi, Smith called Williams and offered him an assistant -coach position at Minnesota. Williams accepted the offer. Smith volunteered to call Sean Sutton, Williams's head coach at Oklahoma State, and inform him that Williams had agreed to leave Oklahoma State for Minnesota. Williams told Smith that he preferred to call Sutton himself. Smith then discussed Williams's first recruiting trip an behalf of Minnesota, which Smith assigned to Williams for the upcoming weekend. Following his conversation with Smith, Williams called Sutton and verbally resigned from his position at Oklahoma State. Sutton expressed his disappointment, but told Williams that he understood the move and requested that Williams [ *4] submit his resignation in writing In accordance with his contract. The following morning, Maturi sent two a -mails to staff members announcing Smith's assistant- coaching staff and requesting the necessary accommodations to officially add the coaches to the staff at Minnesota. Following the e- mails, Maturi was approached by a university administrator regarding Williams's previous employment at Minnesota. The administrator informed Maturi that Williams committed several "major" violations of National Collegiate Athletics Association (NCAA) bylaws governing student- athlete amateurism during his previous tenure, end was twice cited by the NCAA for his improprieties at Minnesota. Maturi requested that the administrator research Williams's previous misconduct at the university and report back to him. Meanwhlle,•Willisms arrived at Oklahoma State that morning and drafted his letter of resignation. Prior to submitting the letter to Sutton, however, Williams received a phone call from Smith. According to Williams, Smith then informed him for the first time that "[ Maturi] Is going to have to sign off on [the] hiring." But Smith also told Williams that he did not expect Maturl'S final approval to [ *5] be problematic. Williams received another phone call from Smith a few hours later, during which Smith Informed Williams that Maturi now voiced "strong opposition" to his hiring. But Smith called Williams a third time early In the afternoon to discuss Williams's upcoming recruiting assignment. Williams tendered his letter of resignation after the third phone call from Smith; Sutton had already hired Williams's replacement at this time. • Later that afternoon, Maturi was finally informed that Williams's previous major violations twice placed the university on probationary status with the NCAA, serious penalties which Maturi deemed to • disqualify Williams for an assistant- coaching position at Minnesota. Williams was offidaily informed • that Minnesota was not hiring him some time during the week of April 8 and promptly began exploring legal action against the university. Thereafter, W1111ams Interviewed for assistant- coaching positions at Florida State University and at Kentucky. Williams was not hired for either position because, In his opinion, he disclosed his intent to sue Minnesota during his interviews. Williams decided against trying to return to Oklahoma State and also passed on applying [ *6] for at least one other assistant- caoaching position. To this day, Williams has not returned to coaching In college basketball. A000069 • Williams commenced this action against Minnesota and Smith, asserting claims for breach of contract, promissory estoppel, equitable estoppel, jntentional interference with contract, negligent misrepresentation, negligence, defamation, vicarious liability, and due- process violations of his property and liberty interests. Williams v . Bd. of Regents of Univ. of Minn., 763 N.W.2d 646, 650 (Minn. App. 2009). Williams and Minnesota moved for dismissal under Minn. R. ay. P. 12.02 for Failure to state a claim upon which relief may be granted. See id. The district court granted the motion and dismissed all claims, specifically concluding that the common -law claims were barred by the doctrine of separation of powers: because Williams was challenging a decision - making process of the executive branch, Williams was required to obtain a writ of certiorari and failed to do so. See Id. Williams appealed the dismmissal to this court. We affirmed the dismissal of Williams's constitutional claims and each common -law claim except for the negligent - misrepresentation claim. Id. at 655. ( *7] Because the negligent- misrepresentation claim did not involve a challenge to the decision - making process of the executive branch, this court reversed in part and remanded that claim for further proceedings. Id. at 652 -53. FOOTNOTES x Maturi was originally named in the suit, but was later dismissed on the ground of qualified Immunity. The negligent - misrepresentation claim was tried to a jury. Williams's attorney began his opening argument by making several comments seeming to attack the university's hiring process, prompting Minnesota and Smith to move to dismiss the case, The district court denied the motion for dismissal, opting Instead to give a limiting Instruction to the jury which clarified that the decision- making process of the university was not at Issue in thls case. Williams opened his case -in -chief by calling then- congressman James Ramstad, hail -of -fame basketball player Kevin Mcliale, and Dutcher to testify; each witness described his own personal accolades and then testified about his personal admiration for Williams. The district court acknowledged at the end of the first day of trial that such testimony was character evidence and "technically not admissible," and discouraged Williams's ( *8] counsel from further examination Into character. Over the objection of Minnesota and Smith, the district court also permitted Williams to call three expert witnesses to testily about the Industry standard pertaining to hiring assistant coaches In college basketball. The jury returned a verdict In favor of Williams Finding that: Smith falsely represented to Williams that he had final authority to hire assistant basketballs coaches at Minnesota; Smith failed to use reasonable care, either in obtaining information pertaining to his hiring authority or In communicating information about his hiring authority to Williams; Williams relied on Smith's misrepresentation; Williams's reliance was reasonable; and Williams was harmed by the reliance. The jury awarded Williams $1,237,293 In damages. Minnesota and Smith moved for judgment as a matter of law (JMOL) or, alternatively, a new trial. The district court denied the motion. The district court did, however, modify the damages awarded by the jury under the Minnesota Tort Claims Act (MTCA), entering an amended damages award of $1,000,000. This appeal follows. DECISION 3MOi. Minnesota and Smith first challenge the district court's dedsion denying t *9] their JMOL motion. HNI IFMInn. R. Civ. P. 50.01 empowers a district court to grant a 3MOL motion when a party *has been fully heard on an issue and there Is no legally surfldent evidentiary basis for a reasonable jury to find for that party .° A district court's 3MOL dedsion is reviewed de novo. Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919 (Minn. 2009). HH successfully recover for a negligent misrepresentation, a plaintiff must demonstrate that: (1) the defendant owed a duty of care in conveying information; (2) the defendant breathed that duty by negligently providing false information; (3) the plaintiff reasonablyrelied on the misrepresentation; and (4) damages proximately caused by the plaintiffs reliance. Flynn v. Am. Home Prods. Corp., 627 A000070 N.W.2d 342, 350-51 (Minn. App. 2001). Minnesota and Smith assert that Williams's claim falls to meet the duty-of-care and reliance elements. Duty of Care • Minnesota and Smith argue that the district court erred by concluding that Smith owed Williams a duty of care. HN3TA duty of care in conveying information arises when a party provides "information for the guidance of others In the course of a transaction in which [that party] has a pecuniary interest, [ *10] or In the course of [that party's] business, profession, or employment." Smith v: Woodwind • Homes, Inc., 605 N.W.2d 418, 424 (Minn. App. 2000) (quoting Safeco Ins. Co. of Am. v. Dain Bosworth Inc., 531 N.W.2d 867, 870 (Minn. App. 1995), review denied 1995 Minn. LEXIS 646 (Minn. July 20, 1995)). Whether a duty of care exists is a conclusion of law reviewed de novo. See Safeco, • • 531 N.W.2d at 873. We begin by addressing Williams's contention that our first decision in this case implicitly concluded that a duty of care existed. This argument misconstrues the legal context In which the first appeal in this matter was decided. In the first appeal, we addressed the district courts dismissal of Williams's claims on a rule -12 motion. See WFI/Fams, 763 N.W.2d at 651. The district court granted the rule -12 dismissal because the separation -of- powers doctrine requires deference to employment decisions of the executive branch and precludes JudIcial review absent the issuance of a writ of certiorari from the court of appeals, which Williams failed to obtain. .W. at 650. We affirmed the dismissal of all of Williams's claims except for the negligent - misrepresentation claim, stating that: District court consideration of this LA. 1.1] negligence claim could be limited to a determination of whether the university, through Smith, provided [Williams] with false Information that [Williams] reasonably relied on by resigning as an assistant coach with [Oklahoma State]. Unlike the estoppel claims, the district court would focus on the representation, [ Williams's] reliance, and whether [Williams] incurred losses as a result of reliance on the alleged misrepresentation. These are considerations that do not Intrude • substantially on or challenge the university's internal decision - making process.. Because the actual hiring decision is not at issue and is not directly implicated, we conclude [that] the district court erred by dismissing [Williams's] negligent- misrepresentation claim on the pleadings. Id. at 652 -53 (footnote omitted). Accordingly, we reversed the rule -12 dismissal under the rationale that a negligent - misrepresentation claim could be' considered without probing Into the university's hiring procedures; therefore, such a claim would not intrude on separation -of- powers principles, which would have required a writ of certiorari. See Id. We did not address whether Smith owed Williams a duty of care because the issue [ *12] was not presented on appeal. Thus, Williams's contention that this court lmplkltly acknowledged the existence of a duty of care is unavailing. Williams also argues that the existence of a legal duty presents a question of law suitable for a rule - 12 motion; because Minnesota and Smith failed to raise the issue either within their original rule -12 motion or during the first appeal to this court, Williams contends that the issue Is not properly before this court. In support of this assertion, Williams cites to Hoyt Inv. Co. v. Bloomington Commerce & Trade Ctr. Assocs., 418 N.W.2d 1.73 (Minn. 1988). Williams claims that Hoyt requires a party to explicitly inform the appellate court that It seeks remand on an undecided issue In the event of reversal. According to Williams, if the party falls to provide such notice to the appellate court, the party Is bound under Hoyt to the appellate court's mandate even if the mandate has placed the issue beyond resolution. • This argument perverts the holding In Hoyt. Hoyt Involved two appeals and an "unusual procedural history' before the supreme court ultimately affirmed this court's resolution of an issue that was not addressed by the district court or [ *13] raised by either Party on the first appeal. 418 N.W.2d at 174- • 75. The supreme court cautioned that the Issue could have been resolved during the first appeal, had the .parties been more spedflc In their requests for relief. Id. at 175 -76. But the supreme court expressly noted that: HN4 ?This court has not, however, imposed the requirement of a notice of review where A000071 the trial court has failed to rule on a question litigated and practical reasons continue to .. render such a notice unnecessary. While a notice of review might serve to call attention to the unresolved issue, an undecided question is not usually amenable to appellate review. Id. at 175. Moreover, Hoyt did not Involve a rule -12 motion, and the issue originally Ignored by the district court was actually argued at the trial level. Id. at 174; see also Minn. R. Civ. P. 12 (stating that HN defenses may be brought In a rule -12 motion, not mandating such an incluslon).Wiffiams's procedural argument faits. . Minnesota and Smith argue that the district court erred by concluding that a duty of care existed because there Is no Minnesota case taw upholding a duty of care In the context of prospective . employment. Without direct precedent, Minnesota t *14] and Smith assert that this case poses a situation akin to adversarial parties negotiating at arm's Length, and rightly contend that we have repeatedly concluded that a duty of care does not exist under such circumstances. See, e.g., Safeco,531 N.W.2d at 872(concluding that no duty Is owed when two sophisticated equals are • negotiating a commercial transaction), But regardless of the lack of a direct precedent governing the prospective- employment negotiation between Smith and Wiitiams, HN6Va duty of care still exists in all instances when a party "provid(es] Information for the guidance of others in the course of business or where there is a pecuniary interest." Id. at 873. Here, Smith was clearly providing information for the guidance of Williams: Smith discussed salary structure and a first assignment while misrepresenting his authority to hire Williams, and even volunteered to contact Williams's employer to tender resignation on Williams's behalf, Additionally, even after Smith realized that he did not have the flnai authority over the hire and conveyed as much to Williams, Smith furthered the misrepresentation by continuing to discuss the upcoming recruiting trlp that Williams was assigned [ *nn] to make. This was an extensive misrepresentation. Based on the spedfic facts of this rase, we conclude that Smith owed a duty of care to Williams In conveying information during the hiring negotiations. Reliance Minnesota and Smith also argue that the district court erred by concluding that the evidence was sufficient to establish reliance. Minnesota and Smith first challenge the district court's conduslon that the Minnesota athletics department is proprietary in nature, not a government function, and Is thereby bound by all legal obligations governing private enterprise. Minnesota and Smith argue that the district court's reliance on this distinction is without legal support, citing to the longstanding law announced by the supreme court in Jewell Belting Co. v. Village of Bertha: any party contracting with the government is "conclusively presumed to know the extent of authority possessed by the officers with whom they are dealing." 91 Minn. 9, 12, 97 N.W. 424, 42S (1903); see also Morrls v. Perpich, 421 N.W.2d 333, 336 (Minn. App. 1988) (noting that apparent authority may not be advanced against the government because knowledge of the official's authority is presumed), review denied ( *16] (Minn, May 16, 1988). Because Williams was dealing with a government employee in Smith, Minnesota and Smith assert that Williams Is presumed to have known that Smith did not have authority to make final hiring decisions. Accordingly, Minnesota and Smith claim that Williams falls to demonstrate reliance as a matter of law. This argument is unconvincing. In Stein v. Regents of the Univ. ofMtnn., the supreme court announced the expansive rule that: HN 7 "[i]f the government is to enter into businesses ordinarily reserved to the field of private enterprise, it should be held to the same responsibilities and liabilities.° 282 N.W.2d 552, 556 (Minn. 1979) (quotation omitted). As the district court noted below, "(t]here is no regulatory or other public interest served by the basketball team. Instead, college basketball resembles a for - profit business operation. designed to bring revenue and prestige to participating universities." Minnesota and Smith do not deny the profitability of the men's basketball program. Nor do they advance any credible argument that the basketball team is not a proprietary endeavor. Because Minnesota and Smith were engaging In a fleld of private enterprise when negotiating [*17] to hire Williams as an assistant basketball coach, we conclude that the supreme court's decision in Stein trumps the century-old law of Jewel Belting. The district court did not errin this respect. Minnesota and Smith also argue that district court erred because, as a matter of law, it Is A000072 unreasonable for an individual to rely on a misrepresentation after the misrepresentation is corrected. See Hoyt Props., Inc. v. Prod. Res Grp., LL.C., 736 N.W.2d 313, 321 (Minn. 2007) (stating that there can be no reasonable reliance once a party knows a representation Is false). Minnesota and Smith assert that the district court erroneously concluded that Williams "verbally resigned from Oklahoma State on April 2, 2007 — before Smith Informed him that Maturi needed to approve his hiring." Minnesota and Smith point out that Williams did not submit the formal letter of resignation required under his contract q tract until the afternoon of April 3, after Smith inform approve the , informed him both that Maturi needed to a pp a hire and that Maturi disapproved of him. As such, Minnesota and Smith ciatm that Williams's reliance occurred after the misrepresentation was corrected. We disagree. First, Minnesota and S [*18] "correction" Smith overstate 18 the correction that occurred. ] urred. Smith casually mentioned that Maturi would need to approve the hire, but assured Williams that the approval would not be troublesome. Smith next Informed Williams that Maturi strongly opposed the hiring, but called Williams afterwards to discuss Williams's assigned recruiting trip as if Williams would still be hired despite Maturi's objection. Any attempted correction by Smith was muted moments later by his own contradictory behavior. Thus, we conclude that no correction occurred which would invalidate Williams's reliance as a matter of taw. Second, even if we concluded that Smith did correct the misrepresentation of his hiring authority, Minnesota and Smith argued the timing of the correction and the written resignation to the jury, the jury found that reliance existed. H reliance is a jury. question." Hoyt Props. Inc. v. Prod ,des. Grp., L.LC., 716 N.W.2d 366, 375 (Minn. App. 2006), aff'd, 736 N.W.2d 313 (Minn. 2007). And there was suffldent evidence for the jury to conclude that Williams's reliance resulted In his resignation before any correction occurred: Sutton accepted Williams's oral resignation gnatlon on April 2, and Sutton hired Williams's E *19] replacement contemporaneous to the supposed correction and before Williams submitted his written resignation on 9 April 3. Accordingly, Minnesota and Smith fail to demonstrate that Williams's reliance was unreasonable as a matter of law. The 7M01. motion was appropriately denied. New Trial • Minnesota and Smith argue that the district rg th 1 trio court abused its discretion by denying their motion r new yNg,,. y Y g m for a n trial on the basis of evidentiary errors. ♦A district court may grant a party a new trial upon a showing of misconduct by the prevailing party, accident or surprise that could not have been prevented by ordinary prudence, rY P ce, or errors of Saw made by the district court at trial. Minn. R. Civ. P. 59.01 (b), (c), (f). We review a district court's decision on a motion for a new trial for an abuse of discretion. Haifa Nursery, Inc. v. Bauma - rY. Baumann -aerie B Co., 454 N.W.2d 905, 910 (Minn. 1990). HN4 O"The admission of evidence rests within the broad discretion of the d e [ Istria] court and Its ruling will not be disturbed unless it is based on 'an erroneous view of the law or constitutes an abuse of h discretion." Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45 -46 (Minn. 1997) (quotation omitted). r Furth HN Furthermore, �"enti , [ ] tiement ($ to a new trial on the grounds of Improper II I evIdentlary.rulings rests upon the complaining party's ability to demonstrate re udi I error." Usefman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). p j da erron Minnesota and Smith first challenge the admissibility of the character evidence presented by Williams. NN= 2Mlnnesota Rules of Evidence 608(a) allows evidence of a party's truthful character to be introduced only "after the character of the witness for tauthfUlness has been attacked by opinion or reputation evidence or otherwise." Minnesota and Smith argue that Williams o - " " � . paned his case-in-chief b calling three "celebrity Y 9 ty witnesses to testify about Williams ' s good character before his character had been attacked. Additionally, Minnesota and Smith allege that the jury was so star- struck by the impermissible character testimony of the celebrity witnesses that the case was effectively won before the end of the first day of trial. • Minnesota and Smith are correct that Williams's s s character evidence was not admissible and the district court acknowledged as much. However, ' waver, in order to be entitled to a new trial, Minnesota and Smith must also demonstrate prejudice. Minnesota and Smith presented extensive evidence [ *21] of Williams's past NCAA infractions and the considerable harm incurred by the university therefrom, which counterbalanced any unfair advantage derived from WUliams's inadmissible A000073 character evidence. Accordingly, we struggle to see how Williams's inadmissible character evidence was truly prejudicial. The district court did not abuse Its discretion by denying the motion for a new trial on the 'ground of impermissible character evidence. Minnesota and Smith also challenge the district court's admission or expert testimony. HN13 district court may allow expert testimony where "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in Issue." Minn. R. Evid. 702. The opinion must also have "foundational reliability," the basis of which is Independently admissible." Id.; Minn. R. Evid. 703(b).Wifllams called three former head men's basketball coaches as witnesses. Each witness testified about the typical hiring procedure at other major universities, and each witness Indicated that the head coach Is usually the final authority in hiring decisions. But two witnesses also admitted their unfamiliarity with the specific [ *22] hiring protocols at Minnesota. Given the witnesses' tfrrlited familiarity with the university, Minnesota and Smith argue that the district court should not have allowed the witnesses to testify. This argument is unavailing. The district court determined that these witnesses offered Insight into whether Williams was reasonable in relying on Smith's initial oral offer of employment. And Smith and one of Smith's current assistant coaches testified about why Witiiams's reliance was unreasonable; thus, even if the district court abused its discretion by allowing Wililams's witnesses to testify as experts, such an error would not be prejudicial because It was offset by contrary testimony presented by Minnesota and Smith. Accordingly, the district court did not abuse Its discretion by denying the motion for a new trial. Jurisdiction Minnesota and Smith also argue that district court did not have jurisdiction over the case presented by Wiltlarne. Minnesota and Smith assert that Williams Impermissibly attacked the university's decision - making process throughout the course of the proceedings: Williams criticized the university's hiring process in the opening statement, asserting that no university [ *23] official ever contacted the NCAA about the previous violations or offered Williams, himself, the opportunity to explain the circumstances surrounding his misconduct; Williams presented testimony about the hiring processes of other schools; Williams called witnesses to testify about how the university's final decision not to hire him adversely affected his career In coaching; and Williams's closing argument emphasized the philosophy of redemption and shamed the university for denying Williams a chance to prove he has changed since his first tenure at Minnesota: Because Williams effectively challenged a declsion- making process of the executive branch without first obtaining a writ of certiorari from this court, Minnesota and Smith claim that the district court lacked jurisdiction to preside over the specific case presented by Williams at trial. . This Is the Identical argument advanced to the district court; again, the argument falls. As the district court noted, the evidence presented by Williams at trial was largely relevant to the issue of whether his reliance was reasonable. And any evidence that went directly to the hiring decision rather than the misrepresentation claim was addressed [ *24] bye curative limiting instruction to the jury. Accordingly, the district court took appropriate measures to ensure that the jurors were not confused about the Issue at hand. Williams's case did not deprive the district court of its jurisdiction over the matter. Remlttitur Both parties challenge the district court on the Issue of remittitur. HP414 ?Remlttitur may be granted when an award of damages fails to follow the taw, is not supported by the evidence presented at trial, or appears to have been influenced by the passion'or prejudice of the jury. Minn. R. CIv. P. 59.01(e), (g). We review a district court's decision regarding remittitur for an abuse of discretion. Kwaplen v. Stan 400 N.W.2d 179, 184 (Minn. App. 1987). Minnesota and Smith first argue that the district court abused its discretion by refusing to decrease the jury award on remlttitur as a matter of law because Williams had a duty to mitigate his damages, and Williams dearly failed to do so by not actively pursuing any open assistant- coaching positions. But the failure to mitigate was an evidentiary issue presented to the jury. The jury considered all of the evidence Minnesota and Smith currently rely on and found that Williams E *251 did not fail to A000074 mitigate his damages, The evidence presented at trial sufficiently supports the jury's flnding. Accordingly, the district court did not abuse its discretion by refusing to remit damages on the ground of a failure to mitigate. Minnesota and Smith next contend that the evidence does not support the jury award because Williams failed to produce evidence that the misrepresentation was the proximate cause of his damages. Specifically, Minnesota and Smith claim that Williams failed to demonstrate how the misrepresentation affected his inability to secure future employment or otherwise harmed his reputation. This argument is unconvincing. Williams presented testimony that the uncertainty regarding his fallout with Minnesota adversely impacted his interview processes at Florida State and Kentucky; this evidence was sufficient for the jury to find a proximate causal nexus between the misrepresentation and the damages. Finally, Minnesota and Smith claim that the jury's award was a byproduct of Williams's closing argument enflaming the passions of the jurors. Minnesota and Smith assert that an improper influence on the jury may be inferred from Williams's counsel's persistent use [ *26] of redemption rhetoric during dosing arguments and the substantial damages awarded by the jury thereafter. But the jury award was In line with the annual compensation Williams was to earn and was compounded by a reasonable timeline; the compensation was not so,excesslve as to compel a conclusion that the jury was Impassioned. Additionally, Minnesota and Smith failed to object during Williams's closing argument and failed to request a curative instruction to counter any unfair advantage they perceived at the time. H decline to grant relief when the alleged misconduct during closing argument is only complained of after an unfavorable result Is realized. See Quill v. Trans World Airlines, Inc., 361 N.W.2d 438, 446 (Minn. App. 1985) ( "A party Is not permitted to remain silent, gamble on the outcome, and, having lost, then for the first time claim misconduct In opposing counsel's argument." (quotation omitted)), review denied 1985 Minn. LEXIS 1352 (Minn. Apr. 18, 1985). Williams argues that the district court abused its discretion by reducing the final verdict from the $1,247,293 awarded by the jury to $1,000,000 pursuant to the MTCA. tlits the MTCA, "[tyke state will pay compensation for injury to or loss [ *27] of property ... caused by an act or omission of an employee of the state while acting within the scope of office or employment." Minn. Stat. § 3.736, subd. 1 (2010); see also Minn. Stat. § 3.736, subds. 4(e), 8 (2010) (limiting the "total liability of the state and its employees acting within the scope of their employment" to $1,000,000 or the limit of the states liability Insurance, whichever Is greater). Williams asserts that the MTCA is inapplicable to this case because Smith was acting outside of the scope. of his employment when he misrepresented his authority to make hiring decisions. Accordingly, Williams argues that the district court abused its discretion by reducing the damages below the amount awarded by the jury. However, HNfr "scope of employment" under the MICA means that the employee was acting on • behalf of the state In the performance of duties or. tasks Lawfully assigned by competent authority." Minn. Stat. § 3.732, subd. 1(3) (2010). The district court determined that: "At the time in which .. Smith made the misrepresentation, he was performing the duty assigned to him by the [u]niversity; namely, he was attempting to hire an assistant coach." The district court correctly ( *28] noted that Smith was attempting to further the interests of Minnesota by extending the job offer to Williams, and that Minnesota undeniably knew Smith was *recruiting assistant coaches. The district court essentially concluded that Smith was empowered to recruit assistant coaches; because his misrepresentation that he had final authority to hire assistant coaches occurred during this authorized recruitment, he was acting within the scope of his employment and, thus, protection under the MTCA was triggered. The district court did not abuse its discretion Ii this respect. Williams also argues that the district court abused its discretion by affirming the court administrator's application of a 4% pre- and post judgment interest rate. SNSi VInterest rates for judgments are • governed by Minn. Stat. §549.09 (2010). For a judgment .. , against the state or a political - subdivision of the state, regardless of the amount," the interest rate is to be computed by the court administrator based on the secondary- market yield on the American dollar, or 4%, whichever is greater. Id., subd. 1(c)(1). Williams claims that Interest rate of 4% applied by the district court was incorrect because this limitation [ *29] applies only to judgments against the state, whereas other • judgments exceeding $50,000 are subject to a 10% interest rate. See !d., subd. 1(c)(2), Because Williams sought redress against a state employee for actions occurring outside of the scope of A000075 6 -- employment, Wiiilams"cialnas.that the judgment was not against the state and, thus, the district court abused its discretion by applying the 4% interest rate. But, as addressed above, we conclude that the negligent misrepresentation occurred within the scope of Smith's employment under the language of the MTCA. Accordingly, the district court did not abuse its discretion. Armed. Source: Minnesota > Find Cases > MN State Cases, Combined al Terms: wititams & smith & proprietary & basketball (Suggest Terms for My Search) View: i ull Date/Time: Tuesday, December 6, 2011 -1:05 AM EST * Signal Legend: • - Warning: Negative treatment is Indicated - Questioned: Validity questioned by citing refs A - Caution: Possible negative treatment. , • Q - Positive treatment is indicated - Citing Refs. With Analysts Available Citation Information avaliabte * Cpck on any Shepard"s signal to Shepardtze that case. In About LexisNexis I Privacy Policy I 'terms & Conditions I Contact Us Copyright ® 2011 LexisNexis, a division of Reed Elsevier Inc. Ail rights reserved. • • • • . • A000078 , � 3 AAX" j TABLE OF CONTENTS ft TABLE OF AUTHORITIES 11,111 STATEMENT OF CASE 1 STATEMENT OF FACTS 2 ARGUMENT 4 I. INTRODUCTION .4 II. THE BASIS OF THE COUNTY'S LAWSUIT A RETURN OF j THE OVERPAYMENT MADE TO THE CITY AND NOT THE AMOUNT OWED ON A PARTICULAR BILL 6 III. IN PROVIDING SEWER AND WATER SERVICES, THE CITY ACTS IN A PROPRIETARY RATHER THAN GOVERNMENTAL ROLE 3 IV. BECAUSE APPELLANT WAS ACTING IN A PROPRIETARY CAPACITY, THE CITY COUNCIL WAS NOT FUNCTIONING AS A QUASI - JUDICIAL BODY WHEN DENYING RESPONDENT RESTITUTION 13 A. THE CITY FUNCTIONS IN A DUAL ROLE, GOVERNMENTAL AND PROPRIETARY 14 B. APPELLANT MISCONSTRUES THE QUASI- JUDICIAL ANALYSIS .16 C. THE COUNTY'S CAUSE OF ACTION IS DISTINGUISHABLE FROM YOUNGSTOWN MINE CORP. V. PROUT 20 'Y. V. THE CITY'S DEMAND FOR QUASI - JUDICIAL POWER OVER THE COUNTY'S RESTITUTION IS AN UNCONSTITUTIONAL USURPATION OF THE DISTRICT COURT'S JURISDICTION 23 CONCLUSION .27 CERTIFICATE OF BRIEF LENGTH ..29 i ! 11 I TABLE OF AUTHORITIES Statutes: Minn. Stat. § 412271 22 Minn. Stat. § 412.321, subd. 3 11 Minn. Stat. § §453.51- 453.62 (1996) .9 Minn. Stat. § 453.61 12 Minn. Stat. Chapter 453 ..12 Minn. Stat. 6.1369 (now section 16 A. 48) 21 t.. Cases: Agin v. Heyward, 6 Minn. 110 (1861) 18 Anderson v. County of Lyon, 784 N.W.2d 77, 80 (Minn. App. 2010) 18 Breimhorst v. Beckman, 35 N.W.2d 719 (Minn. 1949) .25, 27 Carroll v. Kittle, 457 P. 2d 21, 28 (Kan. 1959) ..15 City of Crookston v. Crookston Waterworks, 185 N.W. 380 (Minn. 1921) • 1, 9 City ofSt. Paul v. Chicago, M & St. P. Ry. Co., 48 N.W. 17 (1891) ..8,14 City of Staples v. Minnesota Power & Light Co., 265 N.W. 58 (Munn. 1936) .8,10,13 ' Crown Cork & Seal, Inc. v. City ofLakeville, 313 N.W.2d 196 (Minn. 1981) 10 County of Washington v. City of Oak Park Heights, 802 N.W.2d 767 (Minn. App. 2011) 2, 8, 11, 13, 18,19, 21,23 Dietz, 487 N.W.2d at 240 27 Dokmo v. I.S.D. No. 11, 459 N.W.2d 671 (Minn. 1990) 12, 19 9 1 0 East Grand Forks v. Luck, 107 N .W. 393 (Minn. 1906 ) 10 10 15, 19 , v'le 5 N.W.2d 254 260 1953 Hahn v. City of Orton al 57 , (Minn. 1953) , Holmberg v. Holmberg, 588 N.W.2d 720 (Minn. 1999) 23, 25, 26, 27 j Keever v. City of (Minn. o Mankato 129 N.W. 158 1910) 2, 8, 10, 15 s v. City ofMoorhead, 84 N.W 626 (Minn. 967 20, 25 Knutson 1967) • tyf (Minn Lundy. Village ofPrinceton, 85 N.W.2d 197 (Minn. 1957) .... 10, 11, 15, 22 Manson v. Village of Chisolm, N.W.2d 924 (Minn. 1919) ..22 Meath v. Harmful Substance Compensation Bd., 550 N.W.2d 275, 276 Mimi.1996) 26, 27 , Moses v. Macfarlan, 2 Burr. 1005 (K.B. 1760) ..24 Nietingv. Blondell, 235 N.W.2d 597, 599 -60 (Minn. 1975) ••. 1 , Oakman v. City ofEveleth, 203 N.W. 514, 516 (Minn. 1925) 26 Paton v. Duluth Gas & Water Co., 52 N.W.527 (Minn. 1892) ..20 Powell v. City ofDuluth, 97 N.W. 450 (Minn. 1903) 11 • 11 t�� S 2 lam_ • r Wi 4 7 z` f� s'f Reed v City ofAnoka, 88 N.W. 981 (Minn. 1902) .8, 11 Reierson. V City of Minneapolis, 118 N.W.2d 223 (Minn. 1962) 15 " k . :Sawh v. City ofLino Lak es, 800 N.W.2d 663 (Minn. 2011) 12 Schaeffer v. State, 444 N.W.2d 876, 879 (Minn. 1989) ..20 Sibley v. County ofPine, 17 N.W. 337, 338 (Minn. 1883) 7 Sloan v. City ofDuluth, 259 N.W. 393 (Minn. 1935) 6, 7, 20, 24 Southern Minnesota Municipal Power Agency v. Boyne, 578 N.W.2d 362 . (Minn. 1998) ..9,12 . 3 Spanel v. Mounds View School District, 118 N.W.2d 795, 802 (Minn. 1962) 19 Stein v. Regents of Univ. ofMinnesota, 282 N.W.2d 552, 556 (Minn. 1979) 15 Stone v. White, 301 U.S.532 (1937) 24 Sulsa v. State, 247 N.W.2d 907, 909 (Minn. 1976) 14 Thorny. George Hormel Co., 289 N.W. 516, 518 (Minn. 1940) 24 Tischer v. Hous. And Redevelopment Authority, 693 N.W.2d 426 (Minn. 2005) ..18 Toddy. Bettinen, 124 N.W. 443 (Minn. 1910) .24, 25 Village ofBurnsville, 245 N.W.2d 445 (1976) 10 Willis, 555 N.W.2d at 282 27 Wulf v. Tax Court ofAppeals, 288 N.W.2d 221 (Minn. 1979) 26 Youngstown Mine Co., v. Prout, 124 N.W.2d 328, 344 (Minn. 1963) 15,20,21,22,23 • • 111 ryti .'iA P t t t -' F i tcY u r K a 3 ia ; + �' STATEMENT OF LEGAL ISSUE rL . r 't I . DID THE COURT OF APPEALS ERR WHEN IT AFFIRMED THE DISTRICT COURT'S DISMISSAL OF APPELLANT'S MOTION FOR 'WV" SUMMARY JUDGMENT FOR LACK OF SUBJECT MATTER VtA,4'; JURISDICTION? Since jurisdiction of Respondent's equitable unjust enrichment action is properly in IiNk7 the district court, the court of appeals did not err in affirming the district court's decision to -' : 41;i, d Appellant's motion for summary judgment. STATEMENT OF THE CASE Appellant's interlocutory appeal has its genesis in its failed attempt to divest the district court of its jurisdiction over an unjust enrichment action brought by Respondent to recover approximately $114,000 it overpaid Appellant for sewer and water services. The Appellant contends the district court must forfeit its jurisdiction over this equitable action because the decision of its city council rendered pursuant to the City's self - prescribed utility bill policy denying Respondent's reimbursement request was quasi-judicial and only be reviewable by writ of certiorari. The district court rejected Appellant's theoretical abstraction finding the city council's decision was rendered in the City's proprietary rather than governmental role and, a fortiori, was not a quasi-judicial decision warranting certiorari review. In articulating its reasoning behind its dismissal of Appellant's motion for summary judgment, the district court, citing to City of Crookston v. Crookston Waterworks, 185 N.W. 380 (Minn. 1921), held that the Appellant "in providing water... acts in its proprietary capacity," and is, thus, only accorded 1 • A r t d a-Y the same rights... as private corporations," citing Keever v. City of Mankato, 129 N.W. ;o rs I Ss4e 5;8 (Minn. 1910). U ! The City appealed the district court's denial of its motion; and, in a published opinion, '1 4 the court of appeals affirmed the district court's decision. County of Washington v. City of � �sir r 4 Y `OakParkHeights, 802 N.W.2d 767 (Minn. App. 2011). The court of appeals reasoned much „ I 4 :: as the district court, perpending that because the City's role in providing the County with sewer and water services was a proprietary function rather than governmental, the city council's decision denying Respondent's request for reimbursement of the overcharge was not quasi-judicial, and the district court remained the proper forum to contest the overcharge. Id. at 771. STATEMENT OF FACTS For the most part, there is little quarrel with the actual facts presented by Appellant's narrative. However, because Appellant's theory of the case does not conform to Respondent's, Appellant's rendering of these facts is at variance with Respondent's view of • the matter, and, therefore, Respondent takes the liberty to make its own presentment, The Washington County Law Enforcement Center (LEC) lies within the boundaries of the City of Stillwater; but, because the City of Oak Park Height's infrastructure for sewer and water was readily available, the Respondent entered into an agreement with Appellant to provide its LEC with sewer and water services. The County has been and continues to be one of the City's long time customers for these services. 2 1 . A, �nY k x � 4 rL ' While performing an audit in response to a change in the sales tax laws, the County • a iscbvered to its chagrin that during the period January 1, 2005 to June 30, 2006, the City F o� ercharged Respondent "north" of $114,000 for the sewer and water services it provided V & }, d ring that timeframe. Respondent made the overcharge known to the City and settlement 4 .z talks ensued. Y._ Parley between city and county staff concerning settlement of the overcharge proved f ir unavailing, and to bring settlement talks to a close, the city administrator suggested the u z r, Respondent place its claim before the city council. Although it was evident from the tenor of ' negotiations at the staff level that appearing before the city council would likely prove an x �y exercise in futility, the Respondent acceded to the prompting of the city administrator and y presented its claim to the city council. A.11 -13. The County's restitution request came before the city council at its September 8, 2009 [ } regularly scheduled meeting. A.14. It is instructive to note that although Appellant portrays } the city council's decision making process in this matter as quasi-judicial the agenda for the meeting noticed Respondent's presentation as new business instead of a public hearing somewhat belying Appellant's contention the council was acting as fact fmder. • • Y The County's finance director presented Respondent's case; and, after some discussion amongst the council members, the council decided to hold over any decision to its 06'k1 ' 1 a},{ October 13, 2009 meeting at which time the city council rendered its denial of the County's • • 1= ' request for restitution of the overcharge. The council's denial was memorialized in A �� � 3 • [ Y _r tt SSf at r`Cili esolution #09- 10 -39. A.18 -26. After receiving the resolution, the Respondent filed an �up�ust. enrichment action in the district court. A.41 -53. rY ARGUMENT i'tF T4r1'fT I. INTRODUCTION avA A reading of the case theories propounded by Appellant and its Paladin, the League of -Minnesota Cities, brings to mind the words of the English jurist. Lord Charles Bowen: "I am y �� z :reminded of a blind man in a dark room looking for a black hat which isn't there." The expostulations offered by the County's worthy antagonists are mere ciphers; dissembled renderings of the issues and law with theories built upon a framework of distorted apocrypha and casuistic legal analysis. Interestingly, study of their disquisitions evidence that whether tt purposely or through happenstance the City and amicus have formulated their theories of the -- case through the implementation of faulty Platonic reasoning. While this observation may be arcane and unintentionally appear sententious, their application of this form of reasoning is so obvious an explanation for their "hen- headed" postulations that its dissection was k :w warranted. .Ta Appellant's and amicus' polemics arise from their ideal of city governance, which, as their writings indicate, are an a priori notion that all undertakings of a city are government qua government, which leads to their belief that every decision made by the city council is 111P governmental in nature or should be viewed as such In fulfillment of this ideal, both e F : Appellant and amicus assert through a contrived empiricism the establishment of a form of r - `" ii&I.11k 4 PAY 0 4 4,t4 a v -fir k�r x Fit - , # j 4 q4p,. e art However, this ideal has long ago been confounded by the principle of proprietary qty. Nevertheless, in its attempt to impose this ideal, Appellant and amicus drive out the ' e function in proprietary as well as in a governmental •__.::..:.,:. ->>, = particular fact that cities fu a ry g , u:.,_:�,. ...and p P 172 � p ;p acity; and when they act in a proprietary role, governments suffer a devolution of ty 0rerogatives and enjoy only those privileges accorded business enterprises. As mentioned, the League of Minnesota Cities has joined the fray as amicus. A } , , ending of its contribution shows it adds little to the discourse essentially aping Appellant's e argument. It does sardonically hint at disapprobation of the actions of both county and court g of appeals in a manner which seems to impugn the integrity of both. It sneers at the County yam. ,� =.- �� ` for contesting the City's appeal in order to gain its thirty pieces of silver, Am. Br. p,2, and provocatively implies the court of appeals inappropriately demonstrated a tendentious bent • toward the County, musing that "[ilt's possible that the court of appeals chose this erroneous approach out of sympathy either for the County which missed the appeal deadline for • certiorari review or out of sympathy for individuals that may have payment disputes with municipal utilities in the future." Am. Br. p.4. Contrary to its puerile caricature, the court of appeals chose its approach because, simply put, it had a century's worth of precedent upon which to draw and rejected out of hand amicus' purblind implication that a city council is a ction into one which is transform a proprietary fun that can magically t od �S' transcenden b P p Y governmental. Moreover, the County had no intention of ever proceeding on a writ of certiorari; its intention always was to cross the Rubicon and file an unjust enrichment suit 5 • �3; tiF 1 tie :. gg a v n st the City. Before casting stones, the League of Minnesota Cities should first look at ' 5L p -_ a: ` 4 F i s ally's role in this affair. It was the City that declined meaningful settlement, and it was the f w i that raised and then appealed the jurisdictional issue. ..r The foundation of Appellant's argument is corrupted from pillar to post. It begins ,,' with a m i � xt�' � , � scharacterization of the County's claim as a disputed bill when in truth it concerns {� ( ,1 � om` L . Y. 0 lone the City wrongly holds; then, proceeds with a portrayal of the principle of proprietary � Y tY gY � , r p p Y p� P „, t - :Capacity that is a perversion; and ends with a jurisdictional presentment that is, in a word, farce. The City has taken a simple suit in equity and transformed it into a constitutional fi 74 �� , .` battle royal. It is a mystery as to why the City continues to importune as there is no rhyme nor reason for Appellant to attempt to kidnap the district court's jurisdiction in a matter that so obviously sounds in unjust enrichment. II. THE BASIS OF THE COUNTY'S LAWSUIT A RETURN OF THE OVERPAYMENT MADE TO THE CITY AND NOT THE AMOUNT OWED ON A PARTICULAR BILL. The Appellant misapprehends the County's action as a bill dispute subject to the City's utility bill appeal policy. App. Br. p.2; A.54. Rather, the County seeks restitution from the City for the money it holds after the County paid the City approximately $114,000 for services the City never provided. Lost on Appellant is the construct of Respondent's suit, A. 41 -53, the framework of which is designed upon the overcharge and the money wrongly kept by the City and not on the discrete individual charges. See, Sloan v. City of Duluth, 259 N.W. 393 (Minn. 1935). All bills submitted to the County by the City during the timeframe 6 sr :f Ybbt i { r 0.r - . . t N ; tf S4'f •- X r�Yt T . , )4 � y Sd V ' p a °aid t withou protest and at the time of payment, without dispute as *- ��� p and, p Y ! p a to th e ry it"a't3JA 3 'rf i 2 b ' �' r sees - It is only now, some four years later (County's suit was filed in December, o ° 1 a 'tlie County is seeking indemnification through this unjust enrichment action for S4Y e ey n� takenly paid to and wrongly kept by the City. A.41-53. ' ri s Sloan; supra, a case replete with similar issues to the case at bar, this Court noted k t �c L S Py 1 r �k ` �, lf � 1' e j obliga of a [city] to repay [for utility overcharges] does not rest upon the { S ''s,] %aithority to collect the money but arises from the moral obligation....to make tion where [it] has received without consideration the money of another which it has no gh t retain. (emphasis added). Id. at 396 citing Sibley v. County of Pine, 17 N.W. 337, 1883). The City stretches credulity to contend that overpayments made over a one and` a half year period nearly four years ago, A.41, are still subject to its utility bill appeal pg hcy, which by its terms clearly appertains to discrete, individual charges assessed prior to a hg pa me nt.being due and is no more than a settlement protocol. A.54. m 1�r s�J • - ` III. IN PROVIDING SEWER AND WATER SERVICES, THE CITY ACTS IN A PROPRIETARY RATHER THAN GOVERNMENTAL ROLE. Appellant quixotically tilts against the concept of proprietary capacity in the faint hope P 5 R ? It of vanquishing its bane from Minnesota law. As mentioned, the City has been joined in this K ; duel by the League of Minnesota Cities which like the Myrmidon serving Achilles gives aid 4 ..4 1. ir4. : City in its struggle to banish its bete noir. However, the League's "sky is falling" s� a fi. y m grumblin add little to the dialogue; and, except for a few instances, Respondent will : ., 7, `c ontent itself with merely addressing Appellant. , 7 R • >L. ' T� -. 3 j Yt �.4 } R gravamen of the court of appeals' decision affirming the district court is its ination that, when providing sewer and water services, the City acted in a proprietary c r : holdin that because these non-governmental decisions did not implicate t}' g " [ ] g [did] p . e aration -of- powers concerns, there [was] no reason to exclude them from the district °4I f co 's j trisdiction ". County of Washington, 802 N.W.2d at 770. The City takes exception i m d irn eriousl. charges that the court of appeals needlessly expanded "the proprietary ��f p Y g pp Y p p P arY 44 4 capaci doctrine into the area of jurisdiction." App. Br. 15 -17. However, Appellant is 61 }}k d�Iymistaken in its rejoinder; in making its assessment, the court of appeals was doing no { R . ,�lia more than following a century's worth of this Court's decisions. See, e.g., Keever v. City of � .. 3 ti � •Mankato 129 N.W. 158 (Minn. 1910); Reed v. City of Anoka, 88 N.W. 981 Minn. 1902); I q City ofStaples v. Minnesota Power & Light Co., 265 N.W. 58 (Minn. 1936). While the court of appeals conformed its holding to the great body of law created by this Court, the City f' . forinulated its counterattack through art and artifice. : ihs ; . The concept of proprietary capacity is not, as Appellant insidiously portrays, a novel P P P rY p tY pp Y P Y idea of recent vintage but has been part of Minnesota's jurisprudential landscape for well il. over a century. See, City of St. Paul v. Chicago, M & St. P. Ry. Co., 48 N.W. 17 (Minn. G 1891). More pointedly, proprietary capacity has been associated with the purveyance of r = sewer and water services for over 100 years, See, Reedy. City ofAnoka, 88 N.W. 981 (Minn. 1902); and contrary to Appellant's implication has grown in stature and importance with regards to a city's business of providing utility services. See e.g., City ofStaples, supra.; City Att.' 8 t trf v -" r. F , 2 • � �^ M x t , atP6 1,P of Crookston v. Crookston Waterworks, Power & Light Co., 185 N.W. 38 (Minn. 1921). £. 4 Antithetical to the simplistic assertion made by amicus that the purveyance of water is so vital a service that it should be considered governmental conduct, even the legislature has weighed in on the matter! It has statutorily recognized that providing utility services is a business enterprise and crafted language into a statute which permits cities that create electric power agencies to operate these agencies as private corporations. Minnesota Statutes §. 453.51- 453.62 (1996). See, Southern Minnesota Municipal Power Agency v. Boyne, 578 N.W.2d 362 (Minn. 1998). Although this statute is not applicable to this case, it nevertheless indicates the legislature views the furnishing of utility services by cities to be business ventures. The concept of proprietary capacity was born of a recognition that not every activity conducted by a governmental entity is governmental in nature. Many of the activities in which governmental entities are engaged are proprietary, mimicking those of a business. However, proprietary is merely an appellation, a name describing a governmental entity acting in a business capacity. It is not as the City would like to convey a one size fits all concept. The principle itself is found in the oft quoted: "When the municipality enters the field of ordinary private business, it does not exercise governmental powers. Its purpose is, Respondent characterizes amicus' assertion as simplistic because even though providing its citizens water is recognized as a public purpose, a City's role in providing the water is, as will be discussed later, an amalgamation of activities, some of which are governmental and others proprietary. 9 t �h � f • } t l � S 1 Fvt • a 41 to govern its inhabitants, but to make for them and itself private benefit ". Keever v. City r of ` Mankato, 129 N.W. at 160 quoting East Grand Forks v. Luck, 107 N.W. 393 (Minn. , ;€ 1906). This Court gave further clarification when it opined that "actual profit is not the test, k Arid it is enough that the city is in a profit making business ", Hahn v. City of Ortonville, 57 N.W. 2d 254, 260 (Minn. 1953). In other words, "...an enterprise is proprietary when it is profit making in this sense that when conducted by private persons it is operated for profit" ,fl ; t Ski f Id �A. Admittedly, utilities, including water and sewer, serve a public purpose. However, .`< any utility is an amalgamation of discrete activities some of which are deemed to be �4 �t governmental in nature and others proprietary. For example, the decision to construct the 1 • { { s infrastructure for a particular utility is governmental, See, In re Village of Burnsville, 245 N..W.2d 445 (1976) (assessments for waterworks infrastructure is a quasi- legislative decision) as is the establishment of fees and connection charges for a given utility. See, } Crown Cork & Seal, Inc. v. City of Lakeville, 313 N.W.2d 196 (Minn. 1981) (sewer and water connection charge is a quasi- legislative decision). On the other hand, the actual ` 1f supply of the utility service is proprietary. See e. City o Staples, supra. The distinction pp Y tY p p �'• g'.� t1' .f p � p VOA ; ar i ses from the fact that activities such as the construction of the infrastructure and the $ . ; i mposition of fees and charges impact the population as a whole and is by necessity a shared p t, 'cost and endeavor while the supply of water, electricity, gas, etc, to individual customers is a pP Y tY, g � geftitl contractual relationship between the City and individual consumer, See, Lund v. Village of z 10 3 F x: S i, ie eton; N.W.2d 197 (Minn. 1957) (Supply of electrical power is through an implied a a act), and entails the furnishing a commodity at a given unit price. Powell v. City of z ° ® fli 9 7 N.W. 450 (Minn. 1903), Reed v. Anoka, supra. In fact, as in this case, the sale of F iv.',-, t3 fi 'Y x 5F `- 1 8 0rvice is not limited to a city's residents and may be made outside its boundaries. See, • ;7 ,. :,i , , an z; Stat. § 412.321, subd. 3. ;, , E4- - Appellant devotes a good deal of its narrative to writing an obituary for proprietary � �a acity. However, its requiem is no more than an allusional contrivance, employing an 40 fr inordinate amount of paper prosing on the suppositious "fall" of proprietary capacity in areas , im :, :: ;.: gft late to utilities. A r totally unrelated pp. B . p.9 -14. But, to paraphrase the eminent Sam uel i Clemens: The report of the demise of proprietary capacity is greatly exaggerated. While k i P. -' x 'd proprietary capacity may have outlived its usefulness in some areas, a valedictory is c ' ,,,-4-,,, unwarranted. To reiterate, the proprietary role of municipalities in providing utility � p P IY p P g services "- _ ..,._:::. been part of Minnesota law for over a century, and that view has not changed one of or A. �n ��:'. <:. p rY� J w: T ` tittle.- , i fi ` 1 In a backhanded reproach of proprietary capacity that proves to be more artifice than V , concern, the Appellant and amicus raise a series of suppositional concerns which cities r; :';'.4 purportedly will face if the decision of the court of appeals stands. They have asked in 7. ' #' insidious, rhetorical fashion: What is to become of those few municipal employees workin k A p working y 4 ts. 1 I ' 444f ll the sewer and water department if they are terminated; what effect will proprietary • r ''' capacity have on open meeting and data practices issues, App. Br. p.14; and how will • Y' 11 F • d y�,l , ,.,,,,,,,.,,,, _ '4Vitt f',.. ous dog decisions be viewed? Am. Br. p.6. Apparently, unbeknownst to the County's It f poi k ese ;very questions have been addressed by this Court. As mentioned previously, etary capacity is not a novel concept. Cities furnishing utilities have operated within 4 s :pictures for over a century, and cities have apparently accommodated themselves to 1, ' within its precincts. There is no reason employees of the city's waterworks would a 1i, s :considered anything other than public employees and dealt with under current law public r R $ employment law. See, Dokmo v. I.S.D. No. 11, 459 N.W.2d 671 (Minn. 1990) and its ' r g�x a f o en C g y: f ,Minn. Stat. sC 453.61 (employees of municipal power agencies deemed private • tt corporations shall be considered public employees). This Court addressed data practices and eolith meeting principles in Southern Minnesota Municipal Power Agency, (SMMPA) supra, =at l east as it pertains to Minn. Stat, Chapt. 453. Although this Court's decision in SMMPA r i-z; revolved around a statutory interpretation of Chapter 453, a reading of this Court's decision Y Yin tandem with the court of appeals decision in SMMPA which was reversed by this Court, a 3 : See, Southern Municipal Power Agency v. Boyne, 563 N.W2d 761 (Minn.. App. 1997), $, „° should at least give cities enough direction to enable them to determine "which way the wind tr .- - blows." Even the dangerous dog issue raised by amicus was answered by the court of appeals in Sawh v. City ofLino Lakes, 800 N.W. 2d 663 (Minn. 2011) rev. granted and now awaits this Court's decision. In the end, the possibility that continued validity of proprietary capacity may pose problems for cities is not reason enough to abrogate a principle that has `° ` §� been a part of Minnesota "lore" for well over a century. �� p i.�7Ks 12 ` Realizing that convincing this Court to banish a century's old principle is no mean i task >the Appellant has importuned that if this Court does not abandon the principle of o 3 riet �r,. «, � capacity it should at least remand this matter to the district court to establish a test P t3' fi t fz•W r proprietary capacity. App. Br. p.22. However, with regards to providing sewer and water t services, if this Court should accede to Appellant's invitation, and there is no reason it tg tr, should, the test would be prosaic and has already long been articulated by this Court, to wit: y q s a City is providing a utility service, it is ipso facto acting in a proprietary role. City of 4 ,Staples, supra. IV. BECAUSE APPELLANT WAS ACTING IN A PROPRIETARY + ° f 6s ;fi CAPACITY, THE CITY COUNCIL WAS NOT FUNCTIONING AS A a QUASI- JUDICIAL BODY WHEN DENYING RESPONDENT "et' RESTITUTION. As the court of appeals obliquely noted in its opinion, the Appellant initially paid little ' hired to the concept of proprietary capacity. County of Washington, 802 N.W.2d at 769 (City iAliCtliies'13.ot dispute the proprietary nature of its conduct). However, inasmuch as the court of a eals ascribed its decision affirming the district court to the city's proprietary r ,�. Pp g t3 rietary role in p p providing sewer and water services, the Appellant has turned to tub- thumping polemics in its V: v AV: attempt to beat, bludgeon and bury the principle. Yet, the City continues to dispatch 4kcProprietary capacity with a dismissive, airy waive of the hand, propounding the bald assertion i .fy lr3 Aw _ . . 9z '* that it is not and never has been a component of jurisdictional analysis, App. Br. p.15. The Vrit i x •pity claims instead that "a trilogy of [Minnesota Supreme court] decisions sets forth the test for determining whether a decision is quasi-judicial as opposed to legislative in nature." App. yY� 13 f • Br. p.7. Unfortunately for the Appellant, its road to this "three part test" is blocked at the entrance by its bugbear, proprietary capacity. A. THE CITY FUNCTIONS IN A DUAL ROLE, GOVERNMENTAL AND { PROPRIETARY. The City's statement that "a trilogy of decisions [setting] forth the "test" for differentiating quasi-judicial from quasi- legislative (emphasis added), App. Br. p7, gives strong indication that the City is on the right track but on the wrong train. This Court has long recognized the dualistic nature of local government. See, City of St. Paul v. Chicago, M & St. P. Ry. Co., 48 N.W. 17, 20 (recognition of actions brought as sovereign or in a governmental capacity as opposed to proprietary or such as a private person might bring). See also, Sulsa v. State, 247 N.W. 2d 907, 909 (Minn. 1976) (drew distinction between state's governmental and proprietary activities). However, it is the precursor form of dualism with which the City fails to come to terms. While the determination of whether a City is functioning in a quasi-judicial or quasi - legislative capacity is a critical component of jurisdictional analysis, it is the dualism associated with the question: Is the function proprietary or governmental? — that must first be answered. In the main, cities function in a governmental capacity, but they also take on a subsidiary role serving in a proprietary manner where its activities are akin to a private business enterprise. As discussed previously, this court has long held it axiomatic that when functioning in its proprietary capacity, governance by a city is no longer its primary objective, rather, the overarching purpose of a city acting in a proprietary role is to secure for 14 e ( ,- it and its citizens a private benefit. Keever, 129 N.W. at 160. However, actual profit is not r� Wi q' ' j the inquiry, f� q lry, and it is sufficient that the city is in a profit making business. Hahn, 57 N.W. 2d k} at 260. The critical aspect for the City acting in a proprietary role is the devolution of its . , governmental prerogatives to those of private businesses. See, Youngstown Mine Co. v. > Prout, 124 N.W. 2d 328, 344 (Minn. 1963); Reierson v. City of Minneapolis, 118 N.W. 2d 223 (Minn. 1962). ;s C. The Appellant, in this case, provides sewer and water services to customers via t , t contract. See, Lund, 85 N. W.2d at 200 (breach of implied contract to supply electrical power 6 N :' to hatchery) and reason suggests that a person who pays the City for utility services ought to x�p �a r ; . , t f be entitled to seek the same remedy for wrongs as if committed by a private business. See, 7t 4 Stein v. Regents of Univ. of Minnesota, 282 N.W.2d 552, 556 (Minn. 1979) quoting Carroll v. Kittle, 457 P. 2d 21, 28 (Kan. 1959). As a corollary, it would be paradoxical, on the one A . hand, to hold Appellant accountable as a private enterprise, but on the other, to preclude the Respondent from seeking redress in the district court but rather requiring it to prosecute its s claim against the Appellant before the city council. If, for example, Xcel had overcharged ` the County, the County would undeniably have recourse in district court.. Employing this Court's rationale in Stein and Keever, it is axiomatic that the Respondent be allowed to ` pursue its anodyne in the district court. It would be farce to give the fox the warrant to guard 5 : the hen - house. ii 15 v a k ai iti = ;4 si is B. APPELLANT MISCONSTRUES THE QUASI - JUDICIAL ANALYSIS. . It is by now well established that the Appellant gainsays the court of appeals' reliance 1 ii • ; i •,, on the principle ofproprietary capacity to ford the city council was not acting quasi judicially .1 . when it rejected the County's claim for reimbursement. App. Br, p. 7. In a head - scratching 3 , - - ? f rapprochement of the court of appeals, the Appellant asserts that "a trilogy of dec ... ' t set forth the test for determining whether a decision is quasi-judicial as opposed to quasi - yM legislative in nature," App. Br. p. 7, inveighing against introduction ofproprietary capacity to i r, •' 4 •:' the "test ". App. Br. P.B. In framing its theory of the case, the City leans upon a reed; for A behind the "bluff and bluster" of its words, Appellant's postulation is merely a house of cards. While the City is spot -on in its pronouncement that the test distinguishes between quasi-judicial and quasi - legislative activities, the Appellant fails to articulate how it gets to ` the test. The City's argument brings to mind Humpty Dumpty's admonition to Alice: "It t means just what I choose it to mean — neither more nor less." By its terms, a determination of whether a particular action is quasi-judicial or quasi- legislative presupposes a governmental activity. Even amicus recognizes the three part * analysis was intended for governmental activity and campaigns for cities proprietary roles to 2 The cases cited by Appellant are Handicraft Block P 'ship v. City of Minneapolis, 611 k N.W.2d 16 (Minn. 2000); Minnesota Center for Environmental Advocacy v. Metropolitan Board, 550 N.W.2d 275 (Minn. 1996), and Meath v. Harmful Substance Compensation I , Bd., 550 N.W.2d 275 (Minn. 1996). If the analysis were pertinent to this case, this troika of cases would have been an apt choice with the former fording quasi-judicial judicial action; the ?` middle, quasi- legislative; and the later, neither. _ 16 F iA -' 3 . . fr' . fl - S V 3 t t, �� f : be included in the test. Am. Br. 9. Although the City would dearly love to use the test, it is q � #4 t y �5 . i; mired in its proprietary role and is purblind with respect to understanding the underlying lea principles attending the analysis involved in the "three part test." To borrow from the �' estimable Dr. Samuel Johnson: The County has found the City an argument; now it is P'. 5 obliged to find it an understanding. c 1 ,,t. j: The City's continual remonstrance against the finding court of appeals of the City's gY pP tY proprietary role in furnishing sewer and water services demonstrates the City's failure to I :';': c, , . ±?. grasp the sine qua non of the "three part" analysis, which is governmental activity. When the -`` z court of appeals in its opinion pointedly indicated; "...cases that determine jurisdiction solely on the distinction between quasi-judicial decision- making and quasi - legislative decision m akin ...are premised on something absent here: decision making = g p g gin the context of N < governmental conduct," County of Washington, 802 N.W. 2d at 769 -770, the City continued i ' : to whistle through the graveyard, wasting a lot of good paper rosin on how the city . � �' Y g g p P prosing tY council's decision fits this three part test while failing to establish or more accurately ii ignoring the necessity to establish the prerequisite governmental conduct. Appellant closes 0: i its eyes to the fact that governmental activity is an outrider in these quasi-judicial cases and i anonymously subsumed. The Appellant is just plain wrong in its short sighted assertion that t proprietary capacity has never been an ingredient of the jurisdictional brew; and while it spoils the taste for the cities, it enhances it for the customers. App. Br. p. 12. j As the court of appeals recognized in its decision, "a district court is a court of general 17 4 i W , 6 jurisdiction," County of Washington, 802 N.W.2d at 769 (citingAnderson v. County ofLyon, 784 N.W. 2d 77, 80 (Minn. App. 2010)), and has been since this state's infancy. This Court r #` =; long ago established that the district court is "the one great court of jurisdiction to general j _; • g g 8r g J which all may apply to have justice judicially administered, in every case where the constitution itself does not direct application to be had elsewhere." Agin v. Heyward, 6 Minn. m' 110 (1861). One such exception created by the courts is the deference to be accorded to the quasi-judicial decisions of the executive branch of government. See, Tischer v. Hous. And Redevelopment Authority, 693 N.W.2d 426 (Minn. 2005). In such instances, the courts are r yet limited to review by writ of certiorari. This doctrine has its roots in the principle of the separation of powers as a check against the judiciary's intrusion upon the constitutional prerogatives of the other two branches of government and was bred to vouchsafe review where no other right of appeal has been provided. Id Because the stated purpose of certiorari review is to give pay to the doctrine of separation of powers, the sine qua non of its f: application is governmental action. Because Appellant's city council was acting on a proprietary matter when it passed on the County's request for reimbursement, the requisite governmental activity was lacking and direct action in the district court was Respondent's lz : _ proper course. Moreover, in response to amicus' head - scratching accusation that the court of appeals fails to focus "on the nature and process of the challenged decision making..." PP P g g.:. rather than "...on the underlying activity that the City was performing..., Am. Br. p. 3, the Respondent would just say a city council is not a transcendent body whereby a city's . • 18 proprietary activity transubstantiates to a governmental role merely because it is brought to the city council. A distillation of the arguments of the City and amicus results in a request to this Court to eschew the distinctions between the dichotomous roles of proprietary and governmental and meld them into one. • In the face of a century's worth of cases, the City makes the obtuse declaration that prior to the court of appeals decision in this case proprietary capacity had not been used to determine jurisdiction. App. Br. p.12. In a paroxysmal response to the court of appeals finding that [b]ecause the non - governmental decisions do not implicate separation -of- powers concerns, there is no reason to exclude them from the district court's jurisdiction, "County of Washington, 802 N.W.2d at 770, the City traduces the court of appeals for its sudden and unpredicted imposition of proprietary capacity in the determination of jurisdiction. App. Br. p. 12. However, to quote Queen Gertrude in Hamlet: "The [City] doth protest too much, methinks," As Appellant itself indicates, App. Br, p. 9, proprietary capacity has long been utilized to counter the doctrine of sovereign immunity with regards to governmental torts, See, e.g., Hahn, 57 N.W.2d at 259. It is a doctrine of immunity sculpted by the judiciary. Spanel v. Mounds View School District, 118 N.W.2d 795, 802 (Minn. 1962). This tort immunity is similar in principle to the judicially engraved tenet of quasi-judicial authority. See, Dokmo v. I.S.D. #11, 459 N.W.2d 671, 674 (Minn. 1990). The doctrine of sovereign immunity was a judicially created principle that gave 19 . ; , jurisprudential life to the common law creation of the "King can do not wrong "; and, although it must be pled as a defense, the tenet is nevertheless invested with jurisdictional dignity. Nieting v. Blondell, 235 N.W.2d 597, 599 -60 (Minn. 1975). In short, like a governmental entity's claim of quasi-judicial action, tort immunity is a question of subject matter jurisdiction. See, Schaeffer v. State, 444 N.W.2d 876, 879 (Minn. 1989) (State's claim of immunity involves the issue of subject matter jurisdiction). Because the jurisdictional issues surrounding sovereign immunity mirror those revolving around the principle of quasi- judicial power and inasmuch as the principle of proprietary capacity was employed to counter the jurisdictionally preclusive effect of governmental tort immunity, proprietary capacity has been employed for purposes of conceding to district courts subject matter jurisdiction they would otherwise be proscribed from gaining. Empirical evidence adds credence to this proposition. Since the 1890's, overcharges by city utilities have been successfully litigated in district courts via unjust enrichment actions with "nary" a jurisdictional challenge being mentioned much less raised, See, e.g. Knutson v. City of Moorhead, 84 N.W.2d 626 (Minn. 1967) (City unjustly enriched for sewer overcharges); Sloan v. City ofDuluth, 259 N.W. 393 (Minn. 1935) (City unjustly enriched for excess water and sewer payment); Paton v. Duluth Gas & Water Co., 52 N.W. 527 (Minn. 1892). (City unjustly enriched for excess sewer and water charges). C. THE COUNTY'S CAUSE OF ACTION IS DISTINGUISHABLE FROM YOUNGSTOWN MINE CORP. V. PROUT. The Appellant continues to confound with its misplaced reliance upon Youngstown 20 • ��i r ,. Mine Corp. v. Prout, 1 24 N.W.2d 328 h (Minn. 1963) for the proposition that proprietary t d ecisions by governmental entities maybe subject to certiorari review. A Br. �' yg Y subject App. PP• 13 -14 However, as the court of appeals found, Youngstown is distinguishable from this case. 0 x County of Washington, 802 N.W.2d at 770. Nevertheless, the City is hidebound to draw parallels so offers a casuistic analysis of Youngstown, distorting the facts and omitting critical } elements from its discussion. A distillation of Youngstown shows Youngstown Mine Corp. (hereinafter the corporation) entered into a fifty year lease with the State of Minnesota to extract iron ore from a portion of the bed of Rabbit Lake. In consideration of the lease, the corporation paid the state royalties. Youngstown Mine Corp. 124 N.W.2d at 334. Subsequently, it was determined through a district court judgment that the state did not own the portion of the lake A bed upon which the corporation had paid royalties. The corporation sought reimbursement of the royalties it paid the state by availing itself of Minn. Stat. § 6.136 9 (now Section 16 A. 48). Id. The statute is the means by which persons seeking reimbursement for monies wrongly paid to the state must proceed and requires a claimant to submit a verified claim of its liquidated damages to the head of the concerned agency which, in the case of Youngstown, q � g g cY � g was the Commissioner of Conservation. The Commissioner was then obligated to' decide "nay" or "yeah" on the claim and to append "whys ". For a whole host of reasons, the Commissioner denied the corporations' refund claim. Id at 334. In response to the denial, the corporation petitioned the district court for and was granted a writ of certiorari. This 21 Court found certiorari review of the Commissioner's decision in this matter proper. Although the Appellant has affixed itself to this decision like a tick, App. Br. pp.13 -14, a great divide exists between the issues presented in Youngstown and the case at bar, not the least of which is the claims statute or the lack thereof in this case requiring the claimant to bring its claim to the Commissioner. The City can point to no like statute which would require the County to present its claim to the city council. Interestingly, Minn. Stat. § 412.271 does contain a provision authorizing the city council to pay liquidated claims presented to it [emphasis added]. However, this Court has found even this provision was meant to merely allow the city council to sit as a board of audit and was not intended to allow the council to sit as a tribunal for assessing damages. Lund v. Village of Princeton, 85 N.W.2d at 205. See also, Manson v. Village of Chisolm, 170 N.W.2d 924 (Minn. 1919). It is important to note that the claim in Youngstown was liquidated not by the commissioner pursuant to section 6.1369 but by prior district court cases determining the validity of the lease. In the case at bar, the Respondent's claim against the City is not liquidated. As the district court found in its decision denying Respondent's motion for summary judgment, "there are issues of material fact present...regarding the amount of the overcharge alleged by the County... ". A.7. Therefore, as the court of appeals noted, the overarching dispute between the parties in Youngstown involved a precursor proprietary contract that was litigated in three district court actions, Youngstown, 124 N.W.2d at 344- 345, which led to the action in Youngstown regarding the entitlement to a refund pursuant to 22 • Ian 5• a claims statute. County of Washington, 802 N.W.2d 771. The Appellant in this case strongly contends that "...there is no logical distinction between the City Council decision to deny the refund in this case, and the decision of the Commissioner to deny the refund in the Youngstown case..." App. Br. p.14 Fn. 1. On the contrary, the disparities are legion, and the logic which Appellant propounds is twisted. V. THE CITY'S DEMAND FOR QUASI - JUDICIAL POWER OVER THE COUNTY'S RESTITUTION IS AN UNCONSTITUTIONAL USURPATION OF THE DISTRICT COURT'S JURISDICTION. In cliff notes summary, Respondent's unjust enrichment action calls upon the inherent equitable power of the district court to order the City to return to the County money the City wrongly holds. Because this is an action in equity, the district court has exclusive subject matter jurisdiction over this matter. See, Holmberg v. Holmberg, 588 N.W.2d 720 (Minn. 1999). The Appellant, on the other hand, has declared this a jurisdictional struggle between it and the district court with the City obtusely declaiming exclusive authority for its city council over the County's claim of unjust enrichment, and the district court and court of appeals respectively holding otherwise. The City contends that when its city council denied the County's claim for the overpayment of a year and a half s worth of sewer and water bills the council was acting in a quasi-judicial capacity and, therefore, embargoing Respondent from seeking its justice in the district court. As suggested previously, the Appellant supports its thesis with a curious amalgam of arguments some of which are apocryphal, some beguiling and others mendacious but none which resonate with the facts comprising the • 23 0 t rx y . �! 3i _, County's unjust enrichment action. M' a; The County's suit against the City is brought to recover approx $114,000 in Q ''' sewer and water overcharges. While the City professes this to be a suit over a sewer and ' water bill, analysis of the complaint, A. 41 -53, evinces it to be a suit for the return of money 1 A collected and kept by the City, which the City has a moral obligation to pay back. - See, Sloan ` v. City of Duluth, supra. The determinative aspect of Sloan and other suits grounded in ,- x, unjust enrichment is the established dogma that the repayment is grounded in a moral { imperative. It was the redoubtable English jurist Lord Mansfield who first crafted the a equitable theory enabling courts to order a person to return the money of anotherFryhere' it ,¢ ' would otherwise be morally reprehensible for him or her to retain, Moses iii Macfa (1,-, > � 4 ¢ F .t` Z"7 t.i Burr. 1005 (K.B.1760). This equitable cause of action has grown to become att n egr 1 e 1; h , , 2 ; t b �h'` i of Anglo- American as well as Minnesota jurisprudence Seep Store ?' t Q f . , ` r!r' t e ¢ t t , s$ y (1937); T odd v . Bettinen, 1 24 N 443 (Minn 1910) and`, o b o o , unjust enrichment or money had and received Unless th ; } ' ,1 n o r $ u" ii' e u y �� ,„ ��- ti� �x� r �� n to the County the money it wrongly holds; whrc it �1 e e� ®� 1 means available to the County to gain e 1 o e 0 v - a 13 �� � � i . ' i hi unjust enrichment. In ordering r a e ® (o g e k' e r cx ®�tif xj c ; aYu i oho k �� � - ' , i-',=: . ' `X .r.:141, e t'jhs:rS A j ■ - e its equitable power;. and i xs -";4-'7't'''''-°'P o --:1-1 o '1: i . I` e' . , ' ®b� 7 'r 0 �` $g g tg,4,0t Y i 1 £) j 3° � � , %. , % -,- ; , i , -„ #� * fi� fr r� i s t r i �r"' -- - 4 order the City to retur th e 1l • % t 10 � , ,� ; 8 ° 1 i .. l e a`. 'i e,5....,4.1%-* 4.4,4,,' = 4, t � K S � 4 4 f a'o- - r y f E'"1.4 -F { � $ ' s /z, 7 i ,;, ' ' , r -r � ,.r,. ' T ' a M1 A , r F i .0 y „ ' * t � � ? i -'� +fi 3 . G 289 ` t 1 6 1 6 t' �) C a a o� o ® ' 1 f f ,}M+..i t r - ,�, ) g r ` t. R t '�F 71 tw f i i }{ s � X34 3r ' 4...V `IT'' ��," '?. i ' ;� S ,t i t i y .. k. i C A *41 x ri � g ai t ' fr r E § „,, ,,, i4.1; ' - *`a,' � ivi k�` � � R t ie "6 . � 2. shy. t �a'� a �. t ' s ' 1 � a ._ :- g Vii -?) r -o `'or. • A 4 0" -fi to c v ti. .r U + }} , + i t M1 r r 'M _ t s . L ; � ,- A , 3 `r E ,, F � 3„ -,,,4,0,11,4-..,,,,,,...,Ac--,i,„,, 14 itr� t . i y 1., • r . ' x,4 3 k.1 1, ; 5,.7,, ∎ i * !� �� �f M1 i $ r t :fir i ' :: the proposition that the city council's decision was quasi-judicial, and the district court must, 4 ; " ! g therefore, bow to the city council's decision to deny the County a refund. Dangerously insinuated in Appellant's overreaching demand is an unconstitutional encroachment on . judicial power. See, Holmberg v. Holmberg, 588 N.W.2d 720 (Minn. 1999). As noted previously, quasi-judicial power is a manifestation of the doctrine of � s }:` separation of powers and is a vital component of our tripartite form of government. However, -h: 1 t" = in its zeal to give deference to executive decisions, the courts must be mindful of protecting , its own pretensions and not erode these prerogatives. Id. at 723. To protect against an unconstitutional appropriation by the executive, this court must scrutinize the rights the executive body oversees and the relief, whether statutory or equitable, that is sought. Id , 4 In the case at bar, the County is requesting the district court to order the City to return money to the County that the County paid to the City for sewer and water services the City 4: f' did not provide, a suit in unjust enrichment. See, Knutson Hotel Corp. v. City of Moorhead, i; supra. No matter how this case is denominated, the remedy requested by the Respondent calls for the district court to exercise its inherent equitable powers. Holmberg, 588 N.W.2d ii at 725. See Todd v. Bettingen, supra. If this Court were to follow Appellant's postulation, it i would consign to the city council the district court's h herent equitable pow`er� 4,deleg4tiox k. y which unconstitutionally infringes on the district court't original jurisdiction I4 - at 116!See, . also, Breimhorst v. Beckman, 35 N.W.2d 719 (Minn: 1949). If it is not viewed as such a transfer of power, then the city council's authority is as the Respondent contends, lid %fore; I 'if 25 0 1 S - 14 " ;qti• 4 • 'i than a settlement protocol. The County presented its claim to the city council in the vain hope that it would voluntarily refund the money. See, Oakman v. City ofEveleth, 203 N.W. 514, 516 (Minn. 1925). (All the ordinary rules of business conduct governing the settlement, adjustment and compromise apply to municipalities). The City refused the County's entreaty, and the County filed suit, calling upon the district court's equitable powers for restitution. See, Meath v. Harmful Substance Compensation Bd. 550 N.W.2d 275, 276 (Minn. 1996) (board's decision is nothing more than an offer claimant rejected). To reiterate, if this Court should accede to Appellant's argument and delegate the district court's equitable powers to the city council, it would insinuate the city council with powers and responsibilities on a par with the district court, resulting in the anomaly of anointing the city with the authority to be judge, jury and executioner of its business disputes. While the City may contend certiorari accords complainants judicial oversight, this Court has in the past appeared less sanguine about the protections afforded by certiorari observing that the availability of judicial review will not always provide the requested amelioration of all separation of powers concerns. Holmberg, supra.; Wulf v. Tax Court of Appeals, 288 N.W.2d 221 (Minn. 1979). The basis of Appellant's claim of quasi-judicial authority is shrouded in a mist of obscurity and appears to be predicated on no more than a talismanic incantation of the appellation quasi-judicial. Appellant's proclaimed endowment of quasi-judicial power over the County's claim has no foundation and brings to mind the Latin maxim ex nihilo nihil fit — ; 26 T, f. w hit .n . t r y ' 2 :■ .1 from nothing comes nothing. _°._ Quasi judicial conduct arises in response to legislative initiatives enjoined upon . ri administrative bodies, See, Meath, supra; Holmberg, supra. See also, Breimhorstv.Beckman, • € 1 ,� 35 N.W.2d at 732. These warrants engender a city authority to act quasi judicially. A search of Minnesota's statutory framework reveals nothing even remotely conferring upon the City license to divest a district court of its jurisdiction over an equitable, common law unjust { , ; enrichment claim. See, Willis, 555 N.W.2d at 282 (common law defamation action was not F z subject to County's quasi-judicial determination); Dietz, 487 N.W.2d at 240 (principle underlying the quasi-judicial decision would not apply to an ordinary action for failure to A ' c= perform a contract for goods and services). With all that said, even if there were such a It ri ,` s statute, because the County's action calls for the district court to employ its inherent aY equitable power, such a statute would still constitute an unconstitutional usurpation of the district court's equitable power. Holmberg, 588 N.W.2d at 726. j CONCLUSION `' , 04 t ,: : z ' :' Well over a century's worth of law has unequivocally established that a city acts in a T ,, : proprietary role when it provides sewer and water services and, thherefore, accorded only: 4 . those privileges provided to private businesses. Because the City has co�.lec`tedthe moneyfor s wt.4 } ,, k services it did not provide and refuses to make return t� the County, the. Coun y cal ',u • a 4 �� it '-' i K•ti ran r + l i the inherent equitable powers of the district court to order the City to make atoene�it~ Q" b yield its equitable power to a city council decision would be a grave assault on th K t 27 g at , 4, "1 �� , 4 )' ; tea ' 'a �l �t €� ;' I � .;.. it, ' c ourt's constitutional prerogatives and to transform this self-prescribed rescribed utili e ;e;; p utility bill appeal a olio into a . , # policy quasi- judicial power would be to engage in legal alchemy. In short, to give • tr . one, who has wrongly taken the money of another and kept it after being asked to return it, the legal authority to determine if it is obligated to return this money and, if so, decide how ' much of it to return is not justice but burlesque. Therefore, this Court should affirm the court of appeals decision affirming the district court's denial of Appellant's motion for 5`. f summary judgment for lack of subject matter jurisdiction. Respectfully submitted, PETE ORPUT, COUNTY ATTORNEY WASHIN C • UNTY, MINNESOTA Dated: / fh' 3 / /) --/ '` / � George `. uprian,'• tty. No. 147722 Assistant Washington County Attorney F Washington County Government Center F 15015 62nd Street North r P. O.Box6 Stillwater, MN 55082 (651)430 -6115 • s f_ 7 S i X h bt- si' h .Yq i , . AV ' 0, -, , 4,...,0 , G w' t M1 a'ii r1: r y R y . x- )t n if 4 1 ' Rh )4 . 5 { r; CERTIFICATION OF BRIEF LENGTH ,, I hereby certify that this Brief conforms to the requirements of Minn. R. Civ. App. P. t 132.01, subds. 1 and 3, for a Brief produced with a proportional font. The length of the Brief :. is 7,412 words. This Brief was prepared using Microsoft Office Word 2007. 1 . A 11 . DATED: PETE ORPUT, COUNTY ATTORNEY WASHINGTON COUNTY, MINNESOTA V .nr 4P -24 ax By ' -• z George Kuprian147722) Assistant County Attorney Y 15015 62 Street North P.O. Box 6 t Stillwater MN 55082 1 ri;: 651 430 -6115 Attorney for Respondent t of t'• z 41 �Cx>y 5 4 4 T s i r `' .s r � Y t ; _ - r , t ��Y ' g '4. i 3 j�tt E' 3�' ;:, z 1 i , .+v t .r. - i r' 1 1 r W 'i V41 + : wY tt y �'' t^ 6 •-, �^ !� F a a x 6 '. T .- z f i • 3 ' J r# a - , 4" f t 1 'S t `r•Pss' - 4 ms .v ..+ k i +I h _,r t `1 ^ k { ma � tc - ,�_ s p A a e v,4, iii. - ...� 3 _ ! � e-o f l b 'l z- a s £ y 3 k' - c '. 4 i ' JARDINE ATTORNEYS AT LAW LOGAN & P.L.L.P. O'BRIEN Suite 100 November 14, 2011 8519 Eagle Point Boulevard Lake Elmo, MN 55042 Firm (651) 290 -6500 Fax (651) 223 -5070 ERIC JOHNSON E -Mail CITY ADMINISTRATOR Websit @'1o1awcom CITY OF OAK PARK HEIGHTS www.jlolaw.com PO BOX 2007 STILLWATER MN 55082 -3007 John Kennedy, Re: County of Washington vs. City of Oak Park Heights Charles E. Gillin * Pierre N. Regnier Our File No. 37024 (872) Mark A. Fonken * George W. Kuehner Patti J. Skoglund * Dear Mr. Johnson: Timothy S. Crom Lawrence M. Rocheford * James G. Flynn * * Pl find enclosed herein a copy of the Brief of Am icus Curiae fi led by LMC. We Joseph E. Flynn * Icy y Marlene S. Garvis * did consult with LMC prior to the filing of the document and generally thought it was Thomas L. Cummings Leonard J. Schweich well done. Jessica E. Schwie Susan S. Tice If you have any questions or concerns, please contact us. We continue to await the Thomas J. P. . B and s k Matthew Band filing of an opposition to our brief and when we receive the same, we will provide Elisa M. Hatlevig you with a copy. Jason A. Koch Darwin S. Williams Mark K. Hellie Nancy M. Aboyan Very truly yours, Daniel M. Gallatin Vicki A. Hruby Michael P. Goodwin JARDINE, LOGAN & O'BRIEN, P.L.L.P. John R. O'Brien - Admitted in Wisconsin, emeritus Minnesota, retired Gerald M. Linnihan - Retired Alan R. Vanasek - Retired Jessica E. Schwie Direct Dial: (651) 290 -6591 Some members also admitted to practice law in Wisconsin *, E -mail Address: jschwie(4jlolaw.com North Dakota, South Dakota, and Iowa JES:jp Shannon Banaszewski Enclosure Administrator Donald M. Jardine (1915-2005) Cc: Mark Rossow via email (w /encs.) Jerre F. Logan (1923 -1983) Mark Vierling (w /encs.) Equal Opportunity Employer CASE NO. Al 1 -0067 • STATE OF MINNESOTA IN SUPREME COURT City of Oak Park Heights, Appellant, vs. County of Washington, Respondent. BRIEF OF AMICUS CURIAE LEAGUE OF MINNESOTA CITIES Pierre N. Regnier ( #90232) Pete Orput Jessica E. Schwie ( #296880) WASHINGTON COUNTY ATTORNEY JARDINE, LOGAN & O'BRIEN, George Kuprian ( #147722) P.L.L.P. Assistant County Attorney 8519 Eagle Point Blvd., Suite 100 15015 62 Street North Lake Elmo, MN 55042 P.O. Box 6 x ,> (651) 290 -6500 Stillwater, MN 55082 (651) 430 -6115 Attorneys for Appellant Attorneys for Respondent Susan L. Naughton ( #0259743) LEAGUE OF MINNESOTA CITIES 145 University Avenue West r;. St. Paul, MN 55101 -2044 (651) 281 -1232 Attorney for Amicus Curiae r i f tf TABLE OF CONTENTS 44 � Page TABLE OF AUTHORITIES ..ii STATEMENT OF THE LEGAL ISSUE 1 , STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE 2 STATEMENT OF THE CASE AND FACTS 3 INTRODUCTION AND SUMMARY OF LEGAL ARGUMENT 3 LEGAL ARGUMENT 5 I. This case will have a significant, statewide impact 5 II. A balancing of the competing public policies favors maintaining the current certiorari requirement regardless of what underlying activity a local government body was performing ...9 CONCLUSION 16 i If X44 * i 7 ' ry J2' f jr. 1 �# •t- TABLE OF AUTHORITIES Page • ` STATE CONSTITUTION y t -; Minn. Const. Art. III, § 1 8 STATE STATUTES Minn. Stat. § 13.01 12 Minn. Stat. § 13.02 11 Minn. Stat. § 13.685 11 Minn. Stat. § 13D.01 12 Minn. Stat. § 412.02 . 12 Minn. Stat. 412.141 § 12 Minn. Stat. § 412.151 12 Minn. Stat. § 412.321 12 Minn. Stat. § 444.075 12 STATE CASES City of Shorewood v. Metro. Waste Control Comm 'n, 533 N.W.2d 402 (Minn. 1995) 7 Dietz v. Dodge County, 487 N.W.2d 237 (Minn. 1992) 8, 9, 13 Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671 (Minn. 1990) 8 Keever v. City of Mankato, 113 Minn. 55, 129 N.W. 158 (1910) ..6 Meath v. Harmful Substance Comp. Bd., 550 N.W.2d 275 (Minn. 1996) 7, 10 Oakman v. City ofEveleth, 163 Minn. 100, 203 N.W. 514 (1925) 7 ii i -3 - y;# State ex. Rel. Ging v. Bd. of Educ., 7 N.W.2d 544 (1942) 15 State v. Waughtal, 1993 WL 328750 (Minn. App. Aug. 31, 1993) .12 Tischer v. Housing and Redevelopment Auth. of Cambridge, 693 N.W.2d 426 (Minn. 2005) 8, 9 Willis v. County of Sherburne, 555 N.W.2d 277 (Minn. 1996) ..8, 14, 15 ' Youngstown Mines Corp. v. Prout, 124 N.W.2d 328 (1963) 10 OTHER AUTHORITIES 18 McQuillan Mun. Corp. § 53.02.10 11 ,1 2 -35 Antieau on Local Gov't Law § 35.02 14 111 1' It its n. STATEMENT OF THE LEGAL ISSUE Minnesota law provides that local government bodies' quasi-judicial decisions are subject . to certiorari review at the court of appeals in order to maintain the constitutionally ' required separation of powers and protect public resources. Should an exception to the r , FRt k certiorari requirement be created if the underlying activity a local government body was 0. performing is a "proprietary activity" even though the nature and process of the f challenged decision making was quasi - judicial? S }its e �S I 3 ' " `, ii li x h 4 t , 1 li k i . ; . F I t ti ;s� ,. 4 ° Y ti F 1 N rJ" I s k.' C ° _ 1 I $r '''' 1 . 4 , ,u it: ,yt' 4 STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE The League of Minnesota Cities ( "League ") has a voluntary membership of 830 5r� , out of 854 Minnesota cities. The League represents the common interests of Minnesota cities before judicial courts and other governmental bodies and provides a variety of services to its members including information, education, training, policy - development, risk- management, and advocacy services. The League's mission is to promote excellence in local government through effective advocacy, expert analysis, and trusted guidance for all Minnesota cities. The League has a public interest in this case as a representative of cities throughout the state with quasi-judicial authority. All Minnesota cities have a public interest in preserving the requirement for certiorari review of their quasi-judicial decisions —a requirement that maintains the constitutionally required separation of powers and protects public resources. The League sought permission to participate as p P P g b y P P amicus curiae in this case because it's concerned that the county of Washington ( "County ") has been distracted by its private interest in avoiding the dismissal of its lawsuit and is shortsightedly arguing for a change in Minnesota law that will harm all local government bodies including towns, cities, counties, and school districts. 1 The League certifies pursuant to Minn. R. Civ. App. P. 129.03 that this brief was not authored in whole or in part by counsel for either party to this appeal and that no other person or entity besides the League made a monetary contribution to its preparation or submission. 2 STATEMENT OF THE CASE AND FACTS The League concurs with the City of Oak Park Heights's ( "City's ") statement of the case and facts. INTRODUCTION AND SUMMARY OF LEGAL ARGUMENT The court of appeals in a published decision held that the district court could exercise subject matter jurisdiction over this appeal because the provision of municipal water and sewer services is a proprietary activity. The City claims that its decision to deny the County's refund request was quasi-judicial and is only subject to certiorari review at the court of appeals under this Court's precedent — precedent which has never recognized a proprietary- activities exception in the context of subject matter jurisdiction. The court of appeals' new proprietary - activities exception will harm local government bodies throughout the state by causing many of their quasi-judicial decisions to receive less deference and be subject to a longer and more costly appeal process that's not based on a record review. The court of appeals' decision will have a significant, statewide impact because of the wide variety of governmental conduct that can be characterized as "proprietary activities" under the court of appeals' broad definition of this term. Instead of focusing on the nature and process of the challenged decision making, the court of appeals erroneously focused on the underlying activities that the City was performing in order to justify creating an exception to this Court's precedent requiring certiorari review. It's possible that the court of appeals chose this erroneous approach out 3 of sympathy either for the County which missed the appeal deadline for certiorari review or out of sympathy for individuals that may have payment disputes with municipal utilities in the future. But when the court of appeals chose this approach, it created bad law and overstepped its authority as an error - correcting court. Indeed, this Court has }= already balanced the public policies at issue when local government bodies' quasi- 4 T 1 t judicial decisions are challenged and has consistently concluded that certiorari review is • u 1 '. required even when it poses practical difficulties for those challenging the decisions. i. {w• The court of appeals also erred by concluding that de novo review in the district court wouldn't violate the constitutionally required separation of powers. The court of K appeals concluded that there wasn't any governmental conduct at issue, in part, because the decision to deny the refund request wasn't a policy decision, and therefore, there was z no separation -of- powers concern. But this Court has consistently held that separation -of- i powers concerns arise not only from challenges to quasi - legislative decisions that involve k' policy decisions like the adoption of a zoning ordinance or a snowplowing policy but also ,:° from challenges to quasi-judicial decisions that involve discretionary administrative , decisions like the termination of an employee or the denial of a claim for compensation. St The court of appeals also erroneously concluded that there wasn't any governmental conduct at issue because the provision of municipal water and sewer X iii services has been characterized as proprietary activities in the past in different contexts. f This simplistic conclusion was erroneous because it's based on a distinction that has N ti i, i largely been rejected in current law and because it fails to recognize the governmental nature of municipal water and sewer services. c 4 K :, r -� This Court shouldn't change Minnesota law to adopt a proprietary - activities -,` exception in the context of subject matter jurisdiction. The creation of such an exception ,_; would be bad public policy and would be based on a distinction that has proven unworkable in other contexts and that will entangle courts in second - guessing the factual Mg ' , findings of a separate branch of government. In short, it's the nature and process of the k challenged decision making that should continue to determine whether certiorari review {` is required not the underlying activity that the local government body was performing. 1 '. LEGAL ARGUMENT s i ',i The League concurs with the City's legal arguments and won't repeat them here. Instead, this brief focuses on the statewide significance of this case and on why a I '. ' balancing of the competing public policies favors maintaining the current certiorari { a requirement regardless of what underlying activity the local government body was performin , I. This case will have a significant, statewide impact. The case will have a significant, statewide impact. The creation of a proprietary-. {� b P P P � ry- activities exception to the certiorari requirement will harm local government bodies throughout the state by causing their decisions in areas that can be characterized as = i ■ �r "proprietary activities" to receive less deference and be subject to a longer and more costly appeal process that's not based on a record review even when those decisions meet this Court's test for quasi-judicial decisions. This is a case of first impression that will impact hundreds of local government bodies throughout our state that make quasi-judicial decisions in a variety of contexts. 5 . n The statewide significance of this appeal is demonstrated by the court of appeals' -414 broad definition for what constitutes proprietary activities when determining subject f matter jurisdiction. a ham: [A]ctivities are considered proprietary not because the city seeks to make a profit but because the city voluntarily engages "in the same business which, when conducted by private persons, is operated for profit." App. Add. A58 (quoting Keever v. City of Mankato, 113 Minn. 55, 61, 129 N.W. 158, 159 (1910)) Indeed, under this definition, almost any city service could be considered proprietary, because almost every city service has been or could be operated by a private person for profit including animal - control, park- and - recreation, firefighting, engineering, land -use, public- works, snowplowing, and police services to name a few. Quasi-judicial decisions in all of these areas would no longer be subject to certiorari review under the k court of appeals' broad definition of proprietary activities. For example, one could use the court of appeals' decision to argue that a city's quasi-judicial decision to order the destruction of a "dangerous dog" under its animal ordinance or a city's quasi-judicial decision to temporarily exclude an individual from a public recreation center for violating the center's policies should both be subject to de novo review in district court. Indeed, I plaintiffs will be motivated to try and characterize a wide variety of governmental r. 2 Keever discussed the proprietary distinction a century ago in the tort- liability context —a context where the proprietary distinction has since been abandoned. See Appellant's i 7k Brief at 9 -12. 3 In fact, the city of Foley recently made headlines when it decided to contract out certain police services to a private security company. http: / /www.sctimes.com /article /20111019/NEWS01/1009. 6 i ; conduct as proprietary activities in order to obtain a standard of review that is less , deferential to the challenged quasi-judicial decision. b q J { In addition, the court of appeals' decision directly conflicts with this Court's precedent which has consistently held that it's the nature and process of the decision making that determines whether a decision is quasi-judicial, and therefore, whether u certiorari review is required. The term "quasi judicial" indicates acts of the city officials which are presumably the product or result of investigation, consideration, and deliberate human judgment based upon evidentiary facts of some sort commanding the exercise of their discretionary power. It is the performance of an administrative act which depends upon and requires the existence or nonexistence of certain facts which must be ascertained, and the investigation and determination of such facts cause the administrative act to be termed quasi judicial. . Oakman v. City of Eveleth, 163 Minn. 100, 108 -109, 203 N.W. 514, 517 (1925); City of 4r , Shorewood v. Metro. Waste Control Comm'n, 533 N.W.2d 402, 404 (Minn. 1995) : > '` (estimation of contemplated annual sewage - disposal usage and the adjustment of previous estimates to conform to actual usage was quasi-judicial because it required "the exercise of a great deal of discretion and judgment and the finding of facts that are not always self - evident "); Meath v. Harmful Substance Comp. Bd., 550 N.W.2d 275, 279 (Minn. 1996) (quasi-judicial decisions are marked "by an investigation into a disputed claim and a decision binding on the parties "). But under the court of appeals' decision, it x will now be the underlying activity that a local government body was performing —and fi not the nature and process of its decision making —that will determine whether certiorari review is required. As a result, one could argue that public - employee termination decisions involving any underlying government activity that could be characterized as a 1 't 7 proprietary activity should no longer be subject to certiorari review. Such a result would be bad public policy and would conflict with this Court's precedent. See Tischer v. Housing and Redevelopment Auth. of Cambridge, 693 N.W.2d 426 (Minn. 2005) (HRA's termination of employee subject to certiorari review); Dietz v. Dodge County, 487 N.W.2d 237 (Minn. 1992) (county's termination of nursing -home employee subject to certiorari review); Willis v. County of Sherburne, 555 N.W.2d 277 (Minn. 1996) (county's termination of director of land- mapping office subject to certiorari review); Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671 (Minn. 1990) (school district's termination of teacher subject to certiorari review). In Tischer, for example one of the HRA's underlying activities was providing housing, in Dietz the county's underlying activity was providing nursing -home services, in Willis that county's underlying activity was providing land -use mapping services, and in Dokmo, the school district's underlying activity was providing education services. Again, the provision of all of these services could be characterized as proprietary activities under the court of appeals' broad definition of this term because private } individuals also perform these services to make a profit. And if these services are proprietary activities, public - employee termination decisions in any of these contexts would no longer be subject to certiorari review under the court of appeals' proprietary- activities exception. This result would not only be inconsistent with this Court's precedent; it would also be bad public policy. 8 II. A balancing of the competing public policies favors maintaining the current certiorari requirement regardless of what underlying activity the local government body was performing. Like most cases this Court considers, there are competing public policies at issue. A balancing of the competing public policies in this case, however, favors maintaining the current certiorari requirement regardless of what underlying activity the local a government body was performing. 1,f Y A. Separation of powers 4 The primary purpose for the certiorari requirement is to maintain the separation of powers mandated by the Minnesota Constitution. Minn. Const. Art 3, § 1. Because certiorari review requires judges to defer to a local government body's findings it prevents the judicial branch from usurping the administrative prerogatives of a separate branch of government and it minimizes judicial intrusion into administrative decision making. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). The court of appeals concluded that there wasn't a separation -of- powers concern in this case because there wasn't any governmental conduct at issue. This conclusion appears to be based, in part, on the fact that the City's decision to deny the refund request wasn't a "policy" decision. App. Add. A60. But it's clear from this Court's precedent that —in addition to the separation -of- powers concerns that arise when challenges are made to quasi - legislative decisions that involve policy decisions like the adoption of a zoning ordinance or a snowplowing policy —a separation -of- powers concern also arises when challenges are made to quasi-judicial decisions that involve discretionary administrative decisions like the termination of an employee or the denial of a claim for 9 i .. compensation. See Tischer, 693 N.W.2d at 429 (holding that the separation -of- powers doctrine requires that an administrative decision to terminate a public employee be subject to certiorari review); Youngstown Mines Corp. v. Prout, 124 N.W.2d 328, (1963) (holding that an administrative decision to deny a claim for compensation was subject to certiorari review); Meath, 550 N.W.2d at 279 (holding that the type of administrative decisions that are subject to certiorari review are "administrative decisions which are based on evidentiary facts and which resolve disputed claims of rights "). The court of appeals also based its conclusion that there wasn't any governmental conduct at issue on the fact that the provision of municipal water and sewer services has been characterized as a proprietary activity in the past. App. Add. A58. But there are several reasons why this simplistic conclusion doesn't withstand review. First, the cases that the court of appeals relied on characterized municipal water and sewer services as proprietary activities in the context of tort and contract and simply didn't address whether such a characterization was appropriate in the context of subject matter jurisdiction. Second, the proprietary distinction was subsequently abandoned in both the tort and contract contexts. See Appellant's Brief at 9 -12. Third, the cases the court of appeals relies on were decided decades before 1996 when this Court first began to develop its test for quasi decisions in Meath v. Harmful Substance Compensation Bd., 550 N.W.2d 275 (Minn. 1996). And fourth, one of the main reasons for abandoning the proprietary distinction is equally applicable here — namely, the proprietary distinction is too simplistic to properly accommodate for the dual nature of many governmental 10 • .f+ e Minn. Stat. § 13D.01. The revenues generated from municipal water and sewer utilities are public funds that are subject to the requirements in state law for financial reporting and auditing. See, e.g., Minn. Stat. § 412.02, subd. 3; Minn. Stat. § 412.141; Minn. Stat. § 412.151, subd. 2. Third, unlike a private corporation that conducts business to make a profit, state law provides that fees for municipal water and sewer services "shall be as nearly as possible proportionate to the cost of furnishing the service." Minn. Stat. § 444.075, subd. 3. Fourth, cities are statutorily authorized to provide water and sewer services under their police powers. Minn. Stat. § 412.321; Minn. Stat. § 444.075. And finally, cities exercise regulatory functions to promote the public good while providing municipal water and sewer services. For example, Minnesota cities commonly adopt ordinances that require property owners to connect to municipal water and sewer services in order to protect the public health. See State v. Waughtal, No. 5 -92 -2400, 1993 WL 328750 at 3 -4 (Minn. App. Aug. 31, 1993), rev. denied (Oct. 28, 1993) (unpublished decision) (holding that a township ordinance requiring certain property owners to hook up to the township water system was a valid exercise of police power). Amicus Add. ADD l . In short, the court of appeals erroneously characterized the provision of municipal water and sewer services as a proprietary activity and erroneously concluded that a district court's de novo review of a city's discretionary, administrative decision wouldn't violate the separation of powers. This Court should correct these errors because public policy favors maintaining the current certiorari requirement in order to maintain the separation of powers. 12 3 4' ti 'ii t 4 B. Protection of public resources Maintaining the current certiorari requirement would also protect public resources. 1 �F f" Certiorari review provides an efficient and less costly form of judicial review because it • has a 60 -day deadline for appeal, it bypasses district -court review, and it's based on a record review without a costly and time - consuming discovery process. Dietz v. Dodge County, 487 N.W.2d 237, 240 (Minn. 1992) (noting that certiorari provides an expedient and economical form of review). It logically follows that public resources would be best protected if all quasi-judicial decisions were subject to certiorari review without exception. Indeed, maintaining the current certiorari requirement would result in a savings of both cost and time not only for local government bodies but also for the individuals and businesses that challenge quasi-judicial decisions. C. Consistent treatment of municipal utilities Maintaining the current certiorari requirement would also ensure that municipal water and sewer utilities are treated consistently. It's inconsistent to treat municipal water and sewer utilities like private corporations when determining subject matter jurisdiction while simultaneously subjecting them to all the requirements applicable to cities like the Open Meeting Law, the Minnesota Government Data Practices Act, and financial- reporting and auditing requirements. In addition —as previously discussed —it's also inconsistent to treat municipal water and sewer utilities like a private corporation when they aren't structured like one and they don't operate like one. 13 , D. Clarity for appeals of quasi - judicial decisions Maintaining the current certiorari requirement would also help provide clarity for appeals of quasi-judicial decisions. Certiorari review is an exception to the general jurisdiction of district courts. By creating an exception to an exception, the court of appeals has created unnecessary confusion for parties and judges regarding where subject matter jurisdiction properly lies for appeals of quasi-judicial decisions. In addition, prior experience in other contexts demonstrates the difficulty that judges have faced when attempting to define and apply a distinction that's "inherently unsound and unworkable." See 2 -35 Antieau on Local Gov't § 35.02 (2d ed.) (discussing the distinction between governmental and proprietary actions). Maintaining the current certiorari requirement would be good public policy because it would allow judges to avoid the difficulty of trying to apply an inherently unsound distinction and to avoid becoming entangled in second- guessing the administrative decisions of a separate branch of government. E. Competing public policies The County has argued that competing public policies weigh in favor of creating a proprietary- activities exception to the certiorari requirement. Essentially the County argues that if this Court doesn't adopt a proprietary- activities exception it will give cities a competitive advantage, insulate them from accountability, and allow the fox to guard the henhouse. Response to Petition For Review at 3, 5. However, none of these concerns is sufficient to outweigh the public policies that support maintaining the current certiorari requirement. 14 1. x � 1 First, the League assumes that the "competitive" advantage to which the County refers is based on certiorari's deferential standard of review and its shorter deadline for appeal. But because a valid separation -of- powers concern exists in this case any private interest in avoiding a perceived "competitive" advantage is necessarily outweighed by the public interest in complying with a constitutionally mandated requirement. Second, it's clear that certiorari review doesn't deprive the County of a remedy and thereby insulate the City from accountability; instead, the certiorari requirement merely "specifies an appropriate remedy." Willis v. County of Sherburne, 555 N.W.2d 277, 282 n. 3 (Minn. 1996). And third, the County's concern about the fox guarding the henhouse applies to all quasi-judicial decisions; it isn't unique to quasi-judicial decisions involving "proprietary activities." The fact that cities and other local government bodies (including counties) frequently review challenges to their own discretionary administrative decisions arises from the fact that the state has delegated local government bodies the legislative power to I adopt laws, the executive power to administer those laws, and the quasi-judicial power to investigate and resolve disputed claims. Indeed, in a teacher - termination case, this Court recognized that even though the consolidation of legislative, executive, and quasi-judicial € power in a local government body could lead to abuse, it was still necessary to defer to a 1 (' school board's quasi-judicial findings because the need to maintain the separation of , fl powers outweighed any concern about the potential for abuse, and further, that any abuse i, could be detected under a certiorari review at the court of appeals. State ex. Rel. Ging v. i li Bd. ofEduc., 7 N.W.2d 544, 571 -572 (1942), overru in part on other grounds. I t' , 15 it - short, local government bodies' quasi-judicial decisions aren't insulated from accountability by the fact that "the fox is guarding the henhouse," but instead, their quasi - judicial decision are subject to review by the court of appeals and must comply with a variety of requirements in statutory and constitutional law. CONCLUSION This case will have a significant, statewide impact on local government bodies across the state that exercise quasi-judicial authority in a wide variety of contexts many of which could be characterized as "proprietary activities" under the court of appeals' broad definition of this term. This Court shouldn't change Minnesota law to adopt a proprietary- activities exception in the context of subject matter jurisdiction. The creation of such an exception would be bad public policy and would be based on a distinction that has proven unworkable in other contexts and that will entangle courts in second - guessing the factual findings of a separate branch of government. In short, it's the nature and process of the challenged decision making that should continue to determine whether certiorari review is required not the underlying activity that the local government body was performing. For all of these reasons, the League respectfully requests that this Court reverse the court of appeal's decision. LEAGUE OF MINNESOTA CITIES C Date: November 4, 2011 f Jr • l Susan L. Naughton ( #259 4 3) 145 University Avenue West St. Paul, MN 55103 -2044 (651) 281 -1232 Attorney for Amicus Curiae 16 ADDENDUM AND ITS INDEX 4 State v. Waughtal, No. 5 -92 -2400, 1993 WL 328750 (Minn. App. Aug. 31, 1993)...ADDI mor y ii. 7 . Page 2 " , Not Reported in N.W.2d fi Not Reported in N.W.2d, 1993 WL 328750 (Minn.App.) (Cite as: Not Reported in N.W.2d) T prove two elements to prove a violation of this is to be interpreted as including " use," the ordinance ordinance provision -(1) that the Waughtals is void for vagueness. Since we do not construe the constructed or maintained a well, and (2) that the ordinance in this manner, we do not reach this issue. well was in an area designated by the state as having • polluted ground water or that the Waughtals were in Thus we concl the trial court a p properly determined on an area served by the township's water supply system. that the Waughtals 1. Construct or maintain a private well 2. Designation by the state The township does not argue that the Waughtals have The ordinance co r r ect l y arg current the language onf constru a well. Therefore, the issue on appeal is the ord requires q « cure ee t p t area of subdivision whether they have maintained private ell is ot The e te Section as ( having polluted ground Waughtals argue that maintaining em s same as using a well. They claim that in order to water" ) (emphasis not o added). The township has luted maintain a well, one must do something more n esolidshedtthat t the Waughtals ' p r of the dip o llu i ed just use it. The township argues that the Waughtals ? have e not ha does maintained their well by providing the source and nature of the ordinance, the township onu n ha support necessary to keep the well functioning. The � e° It i s enough for the twnship t prove that the township contends that it is not necessary to have repaired the well, but that providing and paying for Waughtals located in an area served private by the townshiptwat well electricity to run the well's electric motor is enough. supply system. *2 " Maintain" is defined as: 3. S erved by township's water supply system 1. To continue; carry on: maintain good relations. 2. y To preserve or keep in a given existing condition, as of efficiency or repair: maintain two cars. 3.a. To The served Waughtals the s do not d p supply system. an area provide for: maintain a family. b. To keep in existence; sustain: food to maintain life. Thus, the township has proved that the Waughtals American Heritage Dictionary 757 (2d college ed. maintained a private water well and that they are 1982) (emphasis in original). served by the township's water supply system. e The township's construction is consistent with the Accordingl , the trial ct court 4, ubdiyi determined ( the plain language of the ordinance. Providing electricity Waughtals for the well is necessary to maintain the well -to keep ordinance. the well in an existing condition of operation. Under B. Section 5, subdivision 13 the Waughtals's reading of the ordinance, a well which did not need repairs for two decades or more - Section 5, subdivision 13 of the ordinance provides: has not been maintained. Notwithstanding any other provisions hereunder to In addition, even if we were to assume a more the contrary, all persons or property owners * * * restrictive meaning of maintain -that is, " maintain" within that area of the Township designated by the means keeping in an existing condition of repair -our State of Minnesota as having polluted ground water conclusion would be the same. In order to keep a well and/or em shall is be required served by to hookup to the Township in an existing condition of repair, specific waters stem and to use the same for all of the human maintenance such as changing a screen or a pump Y would be necessary only if the screen or pump were consumption of water. broken. When nothing is broken, obviously no such extraordinary actions are necessary to keep it in an *3 As noted above, the Waughtals do not dispute r existing condition of repair. Either way, the well is they are system. in thee area is served by and to wnship w te r being maintained. supply Waughtals have not hooked up to the township water The Waughtals argue that, to the extent " maintain" system. Thus, the trial court properly found the .s. ADD2 Y . AFFIDAVIT OF SERVICE BY MAIL RE: City of Oak Park Heights v. County of Washington Appellate Court File No: A11 -0067 STATE OF MINNESOTA ) )s.s. COUNTY OF RAMSEY ) Susan Naughton, being first duly sworn upon oath, deposes and says: that on the 4th day of November 2011, she served a: 1. Brief of Amicus Curiae League of Minnesota Cities by depositing two copies in an envelope, postage prepaid, at 145 University Avenue West, St. Paul, MN 55103 -2044, addressed as follows: Pierre N. Regnier Jessica E. Schwie JARDINE, LOGAN & O'BRIEN, P.L.L.P. 8519 Eagle Point Blvd., Suite 100 Lake Elmo, MN 55042 Pete Orput Washington County Attorney George Kuprian Assistant County Attorney Washington County Government Center 15015 62 Street North P.O. Box 6 Stillwater, MN 55082 lli /_ , /� � .�d _ __ Su• . ed and sworn to before rke day of Nove b r 2011. / 1 • : � / . i :1 . . ' mi l . - • s ublrc i * SUSAN H. CHHLCOTF • Notary Public • 4 Minnesota • 4 .6 M/ ommissio_Expire5 Jams 31.201$. • jurisdictional issue which is a - question of law, decided by the court and is immediately appealable. CONCLUSION The Court of Appeal decision, which held that a decision of city council rendered while the city council was operating in its proprietary capacity, is not a quasi-judicial decision, must be reversed. The statement of law represents the expansion of an analytically unsound doctrine that has been generally rejected by this Court and the nationwide majority. Furthermore, as it pertains to these specific parties, the correct application of the law calls for the application of the Handicraft test and reversal under that test because it is undisputed that under Handicraft, the October 13, 2009 decision of the City of Oak Park Heights' City Council was quasi-judicial. DATED: �/j JARDINE, LOGAN & O'BRIEN, P.L.L.P. 1r Pierre N. Regnier (A.R. #90232) James G. Golembeck A.R. #17'620) Jessica E. Schwie (A.R. #296880) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8630 (651) 290-6500 Attorneys for Appellant 23 regard to water and sewer charges and requests for - refunds. Absent specific statutory authority providing for district court review and remedy, judicial review of the city council's October 13, 2009 quasi-judicial decision should have been invoked by writ of certiorari. Handicraft, 611 N.W.2d at 624. Therefore, the district court and the Court of Appeals erred when they both concluded that this matter could proceed by a method other than certiorari review. If this Court affirms the use of the proprietary capacity doctrine, then a remand with instructions is merited. For all of the reasons set forth above, this Court should not adopt the Court of Appeals jurisdictional test which now requires courts to determine whether a city council was acting in its proprietary capacity at the time that it rendered a challenged decision. However, if this Court chooses to adopt such a test, then this Court should set forth the test that courts should employ for purposes of determining when a city council is acting in its proprietary capacity. For example, should the test set forth in Stein serve as the proprietary capacity test or does this Court desire some other test? Furthermore, this Court should then remand the matter to the district court to allow the parties to conduct the extensive fact discovery that would be necessary for such analysis. See e.g. Stein, 282 N.W.2d at 555 -557 (reviewing the many facts relevant to whether a hospital was operating in a proprietary capacity). Following discovery, the parties should then be entitled to have the matter heard by way of motion again under the new pronouncements of this Court, because the ultimate issue challenged still remains a 22 N.W.2d 395, 406 (Minn. 1998)(holding that "reasonable cause" standard in licensing context was similar in nature to "probable cause" standard in criminal context). Because the city council applied a specific standard for determining the usage and payment of sewer and water services, and that standard was applied to specific facts related to a specific piece of property, this factor weighs in favor of fording a quasi-judicial decision. See Handicraft, 611 N.W.2d at 22 -23 (holding that decision was quasi-judicial where the city relied upon specific guidelines in determining the land use status of a particular property). Binding decision regarding the disputed claim A decision is fmal where it vests both rights and responsibilities in the challenging party. Handicraft, 611 N.W.2d at 22 -23. By teems of the City's written policy, the city council's October 13, 2009 decision with regard to the County's appeal was final and binding. 4.54. Absent judicial challenge of the city council's October 13, 2009 decision, the County is obligated to pay the City for sewer and water services used between 2004 and 2008 and it is not entitled to a refund. 4.27 -40. Evidence of the fmality of the decision is further confirmed by the fact that after the County's appeal was denied, the County filed suit, seeking a refund. Accordingly, this factor weighs in favor of fording the City's decision to be quasi-judicial in nature. All of the factors weigh in favor of finding quasi-judicial decision Taking all of the foregoing factors into consideration, it is clear that the city council's October 13, 2009 decision was quasi-judicial in nature. There is no statutory authority specifically providing for district court review of a city council's decision with • 21 upon review and consideration of the weight of the credible evidence. Therefore, under these circumstances, the October 13, 2009 decision of the city council clearly reflected an investigation into a disputed claim and the weighing of evidentiary facts. See Handicraft, 611 N.W.2d at 20 (finding a quasi-judicial decision where the challenged decision related to a specific piece of property and criteria unique to the property); Dokmo v, 459 N.W.2d at 676 (finding quasi-judicial decision where, although there was no formal hearing, evidence was considered and a record was prepared regarding a particular employee's employment); Youngstown, 266 Minn. at 485 (finding that decision to deny request for refund was quasi-judicial where there was a process to appeal amounts invoiced). Accordingly, this factor weighs in favor of holding that the October 13, 2009 city council decision was a quasi-judicial decision. Application of those facts to a prescribed standard The city council had a clear, specific, and definite standard that it applied in this case. By ordinance, persons who receive sewer and water services from the City are obligated to pay for those services. A.27, .31 -33, .54. The question before the city council on October 13, 2009 was whether the evidence, when all things were taken into consideration, allowed for reasonable cause to believe that the County had used sewer and water services such that the County was properly charged approximately $114,000.00. A.25. The reasonable cause standard is a standard recognized and used in judicial contexts. See e.g. Minn. Stat. § 245A.07, subd 2a (reasonable cause is standard used in cases of alleged daycare maltreatment); Wall v. Fairview Hosp. & Healthcare Servs., 584 20 a refund of overcharges for water and sewer use at the Washington County Law - Enforcement Center (LEC) and is making a claim for the overcharges." A.11. In support of its appeal, the County stated, "[i]n addition to the complete detailed documentation previously provided to the city staff, the county offers the following exhibits to summarize the justification for the refund claim." Id. The County then went on in its letter, making argument with citation to evidence and law as to why the County should be refunded for amounts it claims to have been overcharged. A. 11 -13. The city council, much like an administrative law judge, took in the evidence from both the City and the County, entertained a presentation by the County, and entertained a presentation by city staff on the issue of whether there had been overcharges. A.14 -15. At the heart of the issue, were specific property issues —for example, whether the water meters serving the LEC were properly functioning, whether the amount of water used by the County was properly calculated, whether there were errors in reporting, whether the County actually used the services provided to it, and whether the County timely made its refund claim. A.18 -.26. The County's appeal was taken under advisement in order to allow for further consideration, during which time the County submitted further argument in favor of its position. A. 16. A second meeting was held, following which the city council issued a Resolution denying the County's appeal. A.17 -26. The Resolution issued by the city council in this matter strongly resembles an order issued by an Administrative Law Judge following a contested case hearing - it summarizes the evidence presented to it, makes findings of fact, weighs the evidence, assigns credibility, and reaches conclusions based 19 a refund, that the County proceeded through the designated process, that the city council took in evidence and argument, and that the city council issued written fmdings and conclusions. Finally, there is no dispute that there is no statute providing for district court review of a municipal decision to deny an appeal seeking refund of sewer and water charges. See Minn. Stat. Ch. 444, 412, 465, 471 (enumerating municipal powers, including the provision of sewer and water services and ability to charge for the same, but failing to provide any statutory authority for district court review and jurisdiction over a billing dispute). Based upon all of the foregoing undisputed facts, the City has consistently argued that the October 13, 2009 city council decision was a quasi-judicial decision, as determined by the Handicraft test, reviewable by writ of certiorari alone. Washington County has never disputed that application of the Handicraft test to the facts of this case dictates that the October 13, 2009 decision by the city council is quasi-judicial; nor can it. Investigation into disputed claim and weighing of evidentiary facts "Quasi-judicial proceedings involve determining facts for the purpose of reaching a legal conclusion in resolution of adversarial claims." Handicraft, 611 N.W.2d at 20 (quotations and citations omitted). There is no dispute in this case that there was a dispute between the City and the County regarding the proper amount of sewer and water fees invoiced to the County. In reaching its October 13, 2009 decision on the dispute, the city council took in facts and evidence on the issue. By letter dated August 26, 2009 to the city council, the County "submit[ed] [an] appeal of the administrative determination to deny its request for 18 This Court has already concluded that certiorari review is neither unnecessarily costly, nor does it deprive litigants of a remedy. In Willis, this Court specifically rejected the argument that limiting review to writ of certiorari deprived the claimant of a remedy. Id., 555 N.W.2d at 282 fn. 3. Review by writ of certiorari does not deprive a claimant of a remedy, it merely "specifies the appropriate remedy ". Id. For example, as it pertains to this case, certiorari review would not have prevented the County from securing the demanded refund, if it prevailed on review. Moreover, this Court has specifically held that proceeding by way of writ of certiorari is a more expeditious and economical manner of proceeding. Tischer, 693 N.W.2d at 429. Because review is limited to the record developed before the city council, the costly expenses of discovery and trial are avoid which is in keeping with public policy to protect public resources. Id.; Dietz, 487 N.W.2d at 240 (certiorari review affords direct review by the Court of Appeals thus ensuring "expedient review of a fresh record "). In sum, to the extent that any reason for the adoption of the proprietary capacity doctrine in the context of jurisdiction was advanced below, those reasons are without merit. Absent a compelling reason to adopt and expand the proprietary capacity doctrine into the area of jurisdiction, this Court should reverse the decision of the Court of Appeals. Applying the Handicraft test here, it is clear that the city council's October 13, 2009 decision was quasi-judicial. Here, there is no dispute that the City has been granted the specific authority to provide sewer and water services. Minn. Stat. §§ 412.321, 444.075. Further, there is no dispute that the City's ordinance and written appeal policy provided a process for seeking 17 conduct." A.59, County of Washington v. City of Oak Park Heights, 802 N.W.2d at Although the Court of Appeals did not advance any reason for adopting the doctrine in the context of jurisdiction, both the district court and Washington County did. The district court in this matter did not view itself as expanding the doctrine of proprietary capacity into a new area of law, but rather merely cited to a contract case and a tort case for the proposition that the proprietary capacity doctrine should also apply in cases resolving jurisdiction. However, the district court gave some insight into its decision to apply the proprietary capacity doctrine. In footnote 7 of the district order, the district court suggested that requiring review by writ of certiorari in this case would be improper because it would be unnecessarily costly to claimants to proceed as such. A.7. To be clear, Washington County has never argued whether it is good policy to adopt the proprietary capacity doctrine in the context of jurisdiction. Rather the County, in order to avoid having its claim dismissed, argued before the Court of Appeals, in support of the district court's conclusions at footnote 7 of the district court order and further argued that requiring certiorari review of the decision here would deprive the County of a remedy. Resp. Brief p. 17. 2 At paragraph 11 of its Order, the district court cited to two Minnesota Supreme Court cases, City of Crookston, 150 Minn. at 155 (contract) and Keever v. City of Mankato, 113 Minn. 55, 29 N.W. 158 ( 191 0 tort . Because the courts in Keever and Crookston did not address issues of jurisdiction and whether a challenged municipal decision was a quasi-judicial decision, they are not instructive, nor precedential, in this case. Lund, 783 N.W.2d at 143 (case law that does not address the issue at hand has no instructive or precedential value). Accordingly, the district court erroneously relied upon those cases in reaching its decision here. 16 If the provision of sewer and water services is a proprietary act, does this now mean that those few municipal employees working in the sewer and water department come within the proprietary exception such that the termination of their employment is not limited to certiorari review like their counterparts? Cf. Willis v. County of Sherburne, 555 N.W.2d 277, 282 (Minn. 1996); Dokmo v. Independent School District No. 11, 459 N.W.2d 671, 676 (Minn. 1990). Or, does this mean that when the City is addressing proprietary issues it may, like private business, ignore certain statutory mandates that apply to governmental entities such as the Data Practices Act and Open Meeting Law? The law does not favor arbitrary results or the use of doctrines that have arbitrary results. See Spanel, 264 Minn. at 285 (expressing some dismay over the use of proprietary capacity doctrine in order to avoid the application of sovereign immunity); Stein, 282 N.W.2d at 555 -556 (same). Therefore, it is contrary to public policy and this Court's own precedent to revive and expand use of the doctrine. There is no compelling reason to revive and expand the doctrine The question in this case then becomes whether the Court of Appeals' decision in this matter is supported by a compelling reason to call for the adoption and expansion of the proprietary capacity doctrine into the area of jurisdiction. Although it was argued to the Court of Appeals that it should not adopt the proprietary capacity doctrine in the context of jurisdiction, the Court adopted the doctrine without offering any compelling reason for its adoption. Rather, the Court of Appeals simply stated that the Supreme Court's precedent in the area of jurisdiction lacked instructional value because it was "premised on something absent here: decision - making in the context of governmental 15 exchange for the payment of royalties) was proprietary conduct by the State. Id., 266 Minn. at 473. Given the facts of the Youngstown case, the jurisdictional issue presented to this Court at that time, and the fact that the proprietary capacity doctrine was already recognized in by this Court at that time, this Court could have adopted the proprietary tY J capacity doctrine in the context of jurisdiction had it wanted to. Nevertheless, this Court p found that the commissioner's decision to deny the request for a refund was quasi - commissioner determined because the comet s o e de ermined the plaintiff's right upon ht to a refund based u J P g P the record submitted to him. Id., 266 Minn. at 484 -485. The jurisdictional decision was made ithout relation to whether the government was acting in its proprietary g g s p oprietary capacity. Policy and law do not favor use of the proprietary capacity doctrine to determine jurisdiction. As set forth above, courts nationwide, including this Court, abandoned the exception in most, if not all, contexts because the doctrine was analytically proprietary P Yt Y unsound. Contemplating jurisdiction and judicial review of the decisions of this state's 854 municipalities further highlights the impropriety of adopting the proprietary capacity doctrine. ' To the extent that the provision of sewer and water services to the County is carried out in the City's proprietary capacity, in this case, as in Youngstown, such proprietary conduct serves only as the underlying conduct that gave rise to the parties' initial dispute. It does not determine the question of jurisdiction which instead, as in Youngstown, is determined by reference only to the decision challenged —the decision to deny the refund. Because there is no logical distinction between the city council decision to deny the refund in this case, and the decision of the commissioner to deny the refund in the Youngstown case, the same result is mandated in this case. As in Youngstown, the city council decision to deny the refund followed the submission of evidence and was a binding determination of rights, thus, rendering the decision quasi-judicial, reviewable by writ of certiorari alone. 14 To the extent that this Court has had the opportunity to recognize a proprietary capacity doctrine in the area of jurisdiction, it has chosen not to do so. See e.g. Tischer v. HRA of Cambridge, 693 N.W.2d 426 (Minn. 2005 (rejecting argument that certiorari review was improper because entity should be treated like a private corporation); Youngstown Mines Corp. v. Prout, 266 Minn. 450, 124 N.W.2d 328 (1963)(rejecting argument that certiorari review was improper because the underlying conduct was proprietary); Frasch v. City of New Ulm, 130 Minn. 41, 153 N.W. 121 (1915)(rejecting argument that party did not have to comply with jurisdictional prerequisites because governmental entity was acting in its proprietary capacity). The Court of Appeals, however, ignored that case law. The case of the greatest instructional value to this case is Youngstown. In Youngstown, the plaintiff entered into a lease with the State, which allowed the plaintiff to extract minerals from land in exchange for the payment of royalties to the State. Id., 266 Minn. at 454 -455. The plaintiff claimed that it was entitled to a refund of certain royalties paid to the State. Id. A statute permitted the plaintiff to file a claim for a refund to the Minnesota Commissioner of Conservation, which it did. Id. The request for a refund was denied by the commissioner. Id. The plaintiff then filed a writ of certiorari. Id. The State challenged whether the matter should be heard via writ of certiorari, arguing that the decision rendered by the commissioner should not be held to be quasi- judicial. Youngstown, 266 Minn. at 455, 484 -485. This Court found that the underlying conduct which gave rise to the request for a refund (leasing property to a private entity in 13 capacity analysis in these two primary areas of law by adopting statutes addressing the liability of governmental entities in the case of contract and/or tort liability. See Minn. Stat. § 412.221, subd. 2 (power to contract), 466.02 (liability for torts except for specified immunities); see also Imlay, 453 N.W.2 at 330 (need for proprietary capacity analysis was brought to end by adoption of tort and immunity statutes), and Ketterer, 248 Minn. at 221 (the power to contract renders a governmental entity sueable for breach of contract without regard to proprietary nature). The proprietary capacity doctrine had not been used in Minnesota to determine jurisdiction. To the extent that the proprietary capacity doctrine was recognized, and continues to be recognized, in Minnesota, the mere fact that it was, or may be, recognized in one area of the law does not serve as precedential value for its application, or necessitate its adoption, in other areas of the law. See Lund, 783 N.W.2d at 143 (refusing to rely s � ( g Y on prior Supreme Court decision regarding liability for costs and disbursements that was rendered in area of torts when the issue before the court was liability for costs and disbursements in the context of implied consent). Even though this Court had not adopted the proprietary capacity doctrine for purposes of determining jurisdiction, the Court of Appeals in this case did. In doing so, the Court of Appeals created a test not recognized by this Court. gru y ourt. Furthermore, it expanded the use of a widely rejected doctrine; a doctrine this Court had been given the opportunity to adopt in the context of jurisdiction, but declined to do. 12 809 (Tex. App. 2010)(discussing varying results under Texas case law, a minority jurisdiction continuing to utilize the proprietary capacity doctrine). Because an element of the test is whether the governmental operation at issue runs at a profit, the results can vary by profitability of an operation without any correlation to the nature of the operation challenged. For example, a hospital operated by one governmental entity can be declared to be operating in its governmental capacity because it provides services primarily to the indigent and without substantive profit; where as, another might be declared to be operating in its proprietary capacity because it provides services to the public at large and consistently operates at profit. See Stein, 282 N.W.2d at 555 -557 (discussing the results in several different cases in each of which the court was called to determine whether a hospital was acting in its proprietary capacity versus its governmental capacity). While the proprietary capacity doctrine may have been useful in alleviating the harsh results of immunity and/or a governmental entity's failure to honor its contracts, the quagmire resulting from the application of the proprietary capacity doctrine has caused courts, including this Court, to abandon the use of the doctrine. See Spanel, 264 Minn. at 284 -285 (bringing an end to sovereign immunity and any need for any analysis into the proprietary nature of the governmental conduct at issue); Ketterer v. Ind. Sch. Dist., 248 Minn. 212, 221 (Minn. 1956)(abandoning analysis of whether contract was for governmental purpose and simply holding that governmental entity could be held liable for breach of contract); see generally 18 McQuillan Mun. Corp. § 53.25. Moreover, the State of Minnesota's legislature further brought an end to any need for the proprietary 11 doctrine for purposes of determining tort liability of governmental entities); see generally 18 McQuillin Mun. Corp. §§ 53.02.10, 53.05, 53.23, 53.24, 53.25, 53.26, 53.27 (3 ed). The governmental versus proprietary capacity distinction has been described as "elusive" because of the often "dual nature" of local governments —part public or governmental and part "corporate" or "proprietary." 18 McQuillin Mun. Corp. §§ 53.02.10 n. 17, 53.25 (citing to cases nationwide); see also Mountain States Te. & Tel. Co. v. Public Utilities Com., 763 P.2d 1020, 1026 (Col, 1988) (rejecting proprietary capacity doctrine as "analytically unsound "); Hudson v. Town of E. Montpelier, 638 A.2d 561 n. 3 (Vt. 1993)(summarizing the history of the proprietary capacity doctrine, notin g that it is one of the minority states that continues to use the doctrine, and expressing dissatisfaction with its own decision in that regard because of the "arbitrariness" of the doctrine). To be clear, there is no bright -line test in Minnesota case law or elsewhere that establishes whether a governmental entity is acting in its proprietary capacity. See , enerall g y 18 McQuillin Mun. Corp. divergence in the decisions as to what u . C 53.23 ("There is a wide diver Q �• § ( g functions are governmental or public and what are private or corporate, and functions held to be governmental in some jurisdictions are held to be corporate in others. "). Determining whether a governmental entity is acting in a proprietary capacity is a fact - intensive test into whether, under the totality of the circumstances, the entity at issue is operating in manner so as to secure a profit, to compete with private business, and/or to invade an area typically occupied by private corporations. Stein v. Regent of University of Minn., 282 N.W.2d 552, 555 (Minn. 1979); see also Hudson, 638 A.2d at n. 3 (discussing test and varying results in Vermont); Galveston Indep. Sch. Dist. v. Clear Lake Rehab. Hosp. LLC, 324 S.W.3d 802, 10 liable for costs and disbursements to a prevailing party. Lund v. Comm'r of Pub. Safety, 783 N.W.2d 142, 143 (Minn. 2010)(costs and disbursements); Rose Realty, Inc. v. Roseville, 272 Minn. 130, 131 (Minn. 1965)(assessments); City of Crookston v. Crookston Water Works, P. & L. Co. 150 Minn. 347, 185 N.W. 380 1921 contract . Yet, this Court has specifically rejected the proprietary capacity doctrine in other areas of law such as adverse ossession and equitable estoppel. See e. . Fischer v. Sauk Rapids, p q pP g 325 N.W.2d 816, 819 (Minn. 1982); Mesaba Aviation Div. v. County of Itasca, 258 N.W.2d 877, 880 (Minn. 1977). Courts nationwide, including this Court, historically recognized the proprietary capacity doctrine primarily in two contexts (1) in determining whether to grant sovereign immunity, and (2) in determining whether to hold governmental entities liable for breaches of contract. See e.g. Susla v. State, 311 Minn: 166, 171, 247 N.W.2d 907 (1976)(sovereign immunity); City of Crookston, 150 Minn. at 353 (contract); Hillerby v. Town of Colchester, 706 A.2d 446 (Vt. 1997)(immunity); Oyler v. State, 618 P.2d 1042, 1053 (Wyo. 1980)(immunity); see generally, 18 McQuillin Mun. Corp. § 53.02.10 (3' ed.). Fall of the proprietary capacity doctrine It is in these same areas of law (immunity and contract) that the fall of the doctrine may also be observed. See e.g. Imlay v. Lake Crystal, 453 N.W.2d 326, 330 (Minn. 1990)(rejecting invitation to revive the proprietary capacity doctrine for purposes of evading statutory caps on liability); Spanel v. Moundsview School District No. 621, 264 Minn. 279, 285, 118 N.W.2d 795 (1962)(abandoning the use of the proprietary capacity 9 This Court has never evaluated subject matter jurisdiction on the basis of whether the decision at issue was rendered while the city council was acting in its "proprietary capacity." Nor does it appear that such factor has ever served to influence the decisions of courts nationwide when determining questions of jurisdiction. See generally, 17 McQuillin Mun. Corp. § 49 :72. Rise of the proprietary capacity doctrine The powers powe s that a municipality can exercise are limited to those ranted by statute g Y and those incident to its operation. See e.g. Minn. Stat. ch. 412 (setting forth some of the powers that may be exercised by municipalities); Oakman v. Ci o Eveleth, Y Y City of , 163 Minn. 100, 203 N.W. 514 (Minn. 1925). As set forth above, this Court has summarized the acts of city councils as being quasi-judicial, legislative, administrative, and/or ministerial. See e.g. Oakman, 203 N.W. at 517; In re Wilson, 32 Minn. at 150. Occasionally, this Court has referred to what amounts to yet another power, the power to act in a so- called proprietary capacity which is claimed to arise in those circumstances where the municipality acts for a pecuniary profit as opposed to for the common good. See e.g. Heitman v. Lake City, 225 Minn. 117, 120 (1947). The proprietary capacity doctrine appears to have been first discussed by this Court in 1891. St. Paul v. Chicago, M. & S.P.R. Co., 45 Minn. 387, 396 (1891). The proprietary capacity doctrine, while recognized by this Court in some areas of the law, is not recognized in others. The doctrine has been used, for example, to determine whether assessments by a governmental entity should be invalidated, whether governmental entities should be held liable in contract, and whether overnment l entities ties should be 8 legislative decision was not proper because other issues had to be resolved first before decision could be rendered on question presented, thus making the matter better suited for district court review by declaratory j g ud ment action); Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981)(legislative acts of a city affect the rights of the public generally). Test O i' Tes for parsing out quasi-judicial decisions The rule of this Court is that absent a statute vesting district court jurisdiction, quasi-judicial decisions are reviewed by writ of certiorari. Tischer, 693 N.W.2d at 428. It is consistent with the nationwide majority to determine subject matter jurisdiction over J t3' subject jurisdiction of a city council by reference to only this distinction—quasi-judicial decisions are reviewable by certiorari; legislative decisions are not. 17 McQuillin Mun. Corp. §§ 49:71 and 72 (3 Ed. and 2011 Supplement). In fact, this Court has issued a trilogy of decisions that sets forth the test for determining whether a decision is quasi-judicial as opposed to legislative in nature. Handicraft, 611 N.W.2d 16 at 20; Minnesota Center for Environmental Advocacy v. Metropolitan Council, 587 N.W.2d 838 (Minn. 1999), and Meath v. Harmful Substance Compensation Board, 550 N.W.2d 275 (Minn. 1996). The test being that a quasi-judicial decision will be found where there is: (1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim. Handicraft, 611 N.W.2d at 20 (quotation and citation omitted). The test adopted by this Court in each of the foregoing cases is the same as that adopted by the nationwide majority. 17 McQuillin Mun. Corp. J t3' Q § 49:72. 7 Not all decisions of city council are subject to certiorari review It appears that as early as 1884, this Court made the decision to adopt the majority view that only certain decisions of a legislative body are subject to certiorari review— quasi-judicial decisions are, but decisions that are merely legislative or ministerial, are not. In re Wilson, 32 Minn. 145, 150 (1884). The stated reason for this distinction was, in pertinent part: To hold that any mere legislative act of a municipal corporation could be thus directly reviewed on certiorari would not only be a radical departure from all precedent, but extremely onerous upon the courts, and vexatious to municipal officers. Id. at 152. This Court, 121 years later, expounded on the reasoning behind the distinction of allowing certiorari review of quasi-judicial decisions, as opposed to legislative decisions in Dead Lake Ass 'n v. Otter Tail County, 695 N.W.2d 129, 134 (Minn. 2005). Review of quasi-judicial decisions involves review of a binding decision that fixes the rights of parties. Id.; accord Tischer, 693 N.W.2d at 429. The facts to be reviewed are summarized in a record that was developed before legislative body; and as a result appellate review, as opposed to the lengthy district court process involving fact discovery, is the most expedient and proper method of review. Dead Lake Ass 'n, 695 N.W.2d at 134; accord Tischer, 693 N.W.2d at 429. Legislative decisions, on the other hand, are "usually reflective of some public policy relating to matters of a permanent or general character, [are] not normally restricted to identifiable persons or groups, and [are] usually prospective in nature." 17 McQuillin Mun. Corp. § 49:72 (3 Ed. and 2011 Supplement), see also Dead Lake Ass 'n, 695 N.W.2d at 135 (certiorari review of 6 Block .P'Ship v. City of Minneapolis, 611 N.W.2d 16, 20 (Minn. 2000); Dietz v. Dodge County, 487 N.W.2d 237, 239 n.3 (Minn. 1992)(providing a summary of the historical holdings of this Court in this area of the law). In cases where the decision of a city council is challenged, review by a district court contemplates de novo review of a decision rendered by the city council. See Tischer, 693 N.W.2d at 429. The separation of powers clause in the constitution, however, requires the judiciary to exercise its powers in a manner so as to avoid usurpation of the powers exercised by city councils. See id., see also Minn. Const. art. 3, § 1. Because of the confines of the separation of powers doctrine, the judiciary cannot supplant a decision of a city council with its own findings. See State ex. rel. Ging v. Board of Education, 213 Minn. 550, 571, 7 N.W.2d 544 (1942), overruled in part on other grounds, Foesch v. Indep. Sch. Dist., 300 Minn. 478, 485, 223 N.W.2d 371 (1974) . Rather, the judiciary is obligated to defer to the findings of the city council. See id. Because de novo review of a city council's decision would permit a court to put itself in the place of the legislative body and supplant the findings made by the body with those made by the court, such review runs afoul of the separation of powers doctrine. See id. Therefore, this Court has concluded on numerous occasions that certiorari review of a city council's decision, which contemplates deferential review of the challenged decision, is the proper method of review. See id.; accord Tischer, 693 N.W.2d at 429; Handicraft, 611 N.W.2d at 20; Dietz, 487 N.W.2d at 239. Furthermore, this Court has noted that certiorari review "protects public resources because it provides an efficient and economical form of judicial review." Tischer, 693•N.W.2d at 429. 5 Court of Appeals affirmed the lower court. A.55 -.62. The Court of Appeals held in pertinent part: Because the city's decision to deny the county a refund was proprietary, not governmental, conduct, the district court did not err in concluding that it has subject -matter jurisdiction over the county's unjust - enrichment claim. A.62, County of Washington v. City of Oak Park Heights, 802 N.W.2d 767, (Minn. App. 2011). Following a petition for review and opposition, this Court granted review. A. 63 -64. ARGUMENT I. Petitioner is entitled to reversal of both lower court decisions in this matter because the test for determining whether a city council's decision is quasi - judicial reviewable by writ of certiorari alone is not determined by whether the city council was acting in its proprietary capacity, nor should it be determined by such criteria. It is undisputed that this lawsuit challenges the October 13, 2009 decision of the City Council of the City of Oak Park Heights. The question before this Court is what is the proper jurisdiction and method for judicial review of that decision — review in the district court, or, review by writ of certiorari to the Court of Appeals. This Court reviews questions of jurisdiction de novo without deference to the lower courts. Tischer v. Hous. & Redev. Auth., 693 N.W.2d 426, 428 (Minn. 2005). Historical treatment of decisions of legislative bodies, including city councils As a general rule, district courts are courts of general jurisdiction and therefore are presumed to have jurisdiction over all matters. Tischer, 693 N.W.2d at 429. However, some exception is made to this general rule of jurisdiction in cases involving decisions rendered by legislative bodies, such as decisions made by a city council. See Handicraft 4 Lawsuit in Washington County District Court On or about December 28, 2009, the County commenced suit in Washington County District Court challenging the city council's October 13, 2009 decision on the theory of unjust enrichment. A.41-53. Cross - Motions for summary judgment were filed and considered. A. 7. Among other defenses, the City argued that it was entitled to dismissal of the Complaint because the October 13, 2009 city council decision was a quasi-judicial decision, reviewable only by writ of certiorari to the Minnesota Court of Appeals pursuant to Minn. Stat. § 606.01 and the district court, therefore, lacked subject matter jurisdiction. A.6. By Order dated November 4, 2010, District Court Judge John Hoffman denied both motions for summary judgment. A.3 -7. The County's motion was denied based upon an issue of fact. Id. The City's motion was denied based upon a determination of law with the district court concluding that it had jurisdiction over the County's claim. Id. Specifically, the court stated in pertinent part: The City is acting in the capacity of a private corporation, not a governmental entity. Its actions are not quasi-judicial, and therefore jurisdiction of this matter lies properly with the Court. A.7. Appeal to the Minnesota Court of Appeals The City then appealed that portion of the district court's order denying summary judgment dismissal of the Complaint on the basis of subject matter jurisdiction. A.1 -2. No other issues were raised on appeal. Id. By published decision dated July 18, 2011, the 3 Summary of facts giving rise to suit The City provides sewer and water services to the Washington County Law Enforcement Center and charges the County for the services used as determined by meter readings. A.3 -.7; A.27 -32. In 2009, the County submitted an appeal to the City, appealing sewer and water charges invoiced to the County from 2004 through 2008. A.18. The County claimed that it had been erroneously overcharged by the City and was entitled to a refund of approximately $114,700.00. A.18. A written City policy provided that persons wishing to challenge their sewer and water bill could do so by appealing the bill to the City's Finance Director. A.54. The County submitted an appeal and supporting evidence to the City Finance Director, who after considering the evidence, denied the same. A.54. The County then further appealed to the city council pursuant to the City's written appeal process. A.11 -13. The city council heard the matter on September 20 9 receiving ty p $, Q , argument and evidence relative to the County's appeal. A.14 -15. The matter was continued for further review and submissions. A.15 -17. Consideration of the appeal at a public meeting was reconvened on October 13, 2009. A.17. Following consideration of the County's appeal, the city council adopted a resolution, denying the appeal and setting forth numerous findings and conclusions supporting its denial based upon the evidence before it. A.18 -26. Pursuant to the City's written policy, the city council's October 13, 2009 decision was final and conclusive on the matter. A.54. 2 STATEMENT OF THE LEGAL ISSUES I. Whether the city council's October 13, 2009 decision to deny a refund of sewer and water charges is a quasi-judicial decision reviewable by writ of certiorari alone? Lower court proceedings: The issue was raised before the district court on a motion for summary judgment. A.3. The district court ruled that because the City was operating in its proprietary capacity, the decision was not a quasi-judicial decision, and, therefore not reviewable by writ of certiorari. A.7. An interlocutory appeal was filed. A.1. The decision of the lower court was affirmed on appeal by the Court of Appeals in a published decision. A. 62. Apposite Authority: Tischer v. Hous. & Redevelopment Auth., 693 N.W.2d 426 (Minn. 2005) Handicraft Block P'Ship v. City of Minneapolis, 611 N.W.2d 16 (Minn. 2000) Youngstown Mines Corp. v. Prout, 266 Minn. 450, 124 N.W.2d 328 (1963) Spanel v. Moundsview School District No. 621, 264 Minn. 279, 285, 118 N.W.2d 795 (1962) Minn. Const. art. 3, § 1 Minn. Stat. §§ 412.221, 444.075, 466.02 STATEMENT OF CASE AND FACTS Brief summary of district court proceedings On August 27, 2010, the Honorable John C. Hoffman, judge of Washington County District Court, Tenth Judicial District, heard cross - motions for summary judgment filed by the City of Oak Park Heights ( "City") and Washington County ( "County"). A.3. The City sought dismissal of the case on the basis that the County's suit challenged an October 13, 2009 decision of the City Council of Oak Park Heights, the decision was quasi-judicial, and, that as a result, the district court lacked subject matter jurisdiction. A.6. The City's motion was denied, the issue was appealed, and that is the issue before this Court. A.1, .7, Pet. for Review p. 2. 1 18 McQuillin Mun. Corp. 53.05 10 18 McQuillin Mun. Corp. 53.23 10 18 McQuillin uillin Mun. Corp. 53.24 1 Q rp 10 18 McQuillin Mun. Corp. 53.25 10, 11 18 McQuillin Mun. Corp. 53.26 10 18 McQuillin Mun. Corp. 53.27 10 II iv Imlay v. Lake Crystal, 453 N.W.2d 326 (Minn. 1990) 9, 12 In re Wilson, 32 Minn. 145 (1884) 6, 8 Keever v. City of Mankato, 113 Minn. 55, 29 N.W. 158 (1910) 16 Ketterer v. Ind. Sch. Dist., 248 Minn. 212 (Minn. 1956) 11, 12 Lund v. Comm'r of Pub. Safety, 783 N.W.2d 142 (Minn. 2010) 9, 12, 16 Meath v. Harmful Substance Compensation Board, 550 N.W.2d 275 (Minn. 1996) 7 Mesaba Aviation Div. v. County of Itasca, 258 N.W.2d 877 (Minn. 1977) 9 Minnesota Center for Environmental Advocacy v. Metropolitan Council, 587 N.W.2d 838 (Minn. 1999) 7 Mountain States Te. & Tel. Co. v. Public Utilities Com., 763 P.2d 1020 (Col. 1988) 10 Oakman v. City ofEveleth, 163 Minn. 100, 203 N.W. 514 (Minn. 1925) 8 Oyler v. State, 612 P.2d 1042 (Wyo. 1980) 9 Rose Realty, Inc. v. Roseville, 272 Minn. 130 (Minn. 1965) 9 Spanel v. Moundsview School District No. 621, 264 Minn. 279, 285, 118 • N.W.2d 795 (1962) 1, 9, 11, 15 St. Paul v. Chicago, M. & S.P.R. Co., 45 Minn. 387 (1891) 8 State ex. rel. Ging v. Board of Education, 213 Minn. 550, 571, 7 N.W.2d 544 (1942) 5 State v. Rhude & Fryberger, 266 Minn. 16, 29 (Minn. 1963) 9 Stein v. Regent of University of Minn., 282 N.W.2d 552 (Minn. 1979) 10, 11, 15, 22 Susla v. State, 311 Minn. 166, 247 N.W.2d 907 (1976) 9 Tischer v. Hous. & RedevelopmentAuth., 693 N.W.2d 426 (Minn. 2005)1, 4, 5, 6, 7, 13, 17 Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395 (Minn. 1998) 21 Willis v. County of Sherburne, 555 N.W.2d 277 (Minn. 1996) 15, 17 Youngstown Mines Corp. v. Prout, 266 Minn. 450, 124 N.W.2d 328 (1963) 1, 13, 20 Other Authorities 17 McQuillin Mun. Corp. § 49:71 7 17 McQuillin Mun. Corp. § 49:72 6, 7, 8 18 McQuillin Mun. Corp. § 53.02,10 9, 10 iii t TABLE OF AUTHORITIES Statutes Minn. Const. art. 3, § 1 1, 5 Minn. Stat. § 245A.07 20 Minn. Stat. § 412.221 1, 12 Minn. Stat. § 412.321 17 Minn. Stat. § 466.02 1, 12 Minn. Stat. § 606.01 3 Minn. Stat. §444.075 1, 17 Minn. Stat. ch 412 8 Cases City of Crookston v. Crookston Water Works, P. & L. Co., 150 Minn. 347, . 185 N.W. 380 (1921) 9, 16 County of Washington v. City of Oak Park Heights, 802 N.W.2d 767 (Minn. App. 2011) 4, 16 Dead Lake Ass 'n, 695 N.W.2d at 135 6 Dietz v. Dodge County, 487 N.W.2d 237 (Minn. 1992) 5, 17 Dokmo v. Independent School District No. 11, 459 N.W.2d 671 (Minn. 1990) 15, 20 Fischer v. Sauk Rapids, 325 N.W.2d 816 (Minn. 1982) 9 Foesch v. Indep. Sch. Dist., 300 Minn. 478, 485, 223 N.W.2d 371 (1974) 5 Frasch v. City of New Ulm, 130 Minn. 41, 153 N.W. 121 (1915) 13 Galveston Indep. Sch. Dist. v. Clear Lake Rehab. Hosp. LLC, 324 S.W.3d 802 (Tex. App. 2010) 11 Handicraft Block P 'Ship v. City of Minneapolis, 611 N.W.2d 16 (Minn. 2000) 1, 4, 5, 7, 17, 18, 20, 21, 22, 23 Heitman v. Lake City, 225 Minn. 117 (Minn. 1947) 8 Hillerby v. Town of Colchester, 706 A.2d 446 (Vt. 1997) 9 Honn v. City of Coon Rapids, 31 N.W.2d 409, 416 (Minn. 1981) 7 Hudson v. Town of E. Montpelier, 638 A.2d 561 n. 3 (Vt. 1993) 10 11 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF CASE AND FACTS 1 ARGUMENT 4 I. Petitioner is entitled to reversal of both lower court decisions in this matter because the test for determining whether a city council's decision is quasi-judicial reviewable by writ of certiorari alone is not detemined by whether the city council was acting in its proprietary capacity, nor should it be determined by such criteria. 4 CONCLUSION 23 CERTIFICATION OF BRIEF LENGTH 24 • i Case No. A11 -0067 STATE OF MINNESOTA IN SUPREME COURT City of Oak Park Heights, Petitioner, v . County of Washington, Respondent. BRIEF, ADDENDUM, AND APPENDIX OF PETITIONER CITY OF OAK PARK HEIGHTS JARDINE, LOGAN AND O'BRIEN, PETE ORPUT, COUNTY ATTORNEY P.L.L.P. WASHINGTON COUNTY, MN Pierre N. Regnier, Reg. No. 90232 George Kuprian (A.R. #147722) Jessica E. Schwie, Reg. No. 296880 15015 62nd Street North 8519 Eagle Point Blvd., Suite 100 P.O. Box 6 Lake Elmo, MN 55042 Stillwater, MN 55082 (651) 290 -6500 (651) 430 -6115 Attorneys for Petitioner Attorneys for Respondent CERTIFICATION OF BRIEF LENGTH I hereby certify that this Brief conforms to the requirements of Minn. R. Civ. App. P. 132.01, 1 and for Brief length of 2.01 subds. a d 3 a reef roduced with a proportional al font. The len n , p p � p the Brief is 6,418 words. This Brief was prepared using Microsoft Word 2003. DATED: /� JARDINE, LOGAN & O'BRIEN, P.L.L.P. Pierre N. Regnier (A.R. #90232 - James G. Golembeck (A.R. # 179620) Jessica E. Schwie (A.R. #296880) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8630 (651) 290 -6500 Attorneys for Appellant 24 A11-0067 STATE OF 11JW N!E SOT . • I�V SVIxia.911E COV T City of Oak Park Heights, Petitioner, vs. County of Washington, Respondent. • RESPONSE TO PETITION FOR REVIEW OF DECISION OF COURT OF APPEALS Date of Filing of Court of Appeals' Decision: July 18, 2011 PETE ORPUT, COUNTY ATTORNEY JARDINE, LOGAN & O'BRIEN, P.L.L.P. Washington County Attorney Pierre N. Regnier ( #90232) George Kuprian ( #147722) Jessica E. Schwie ( #296880) Maura J. Shuttleworth ( #0322520) 8519 Eagle Point Boulevard Assistant County Attorneys Suite 100 Washington County Government Center Lake Elmo, MN 55042 15015 62nd Street North (651) 290 -6500 P. O.Box6 Stillwater, Minnesota 55082 (651)430 -6115 ATTORNEYS FOR RESPONDENT ATTORNEYS FOR PE'IT1TONER • 3 N FACTS The Petitioner City of Oak Park Heights (City) is the owner and operator of a municipal water and sanitary sewer system. A - 7. One of Petitioner's long time customers is the Respondent • ' Washington County. A - 18. During a February, 2009 audit, the Respondent serendipitously discovered that the City had charged it "north" of $114,000 for services not provided. The Respondent brought the overcharge to the City Council which rejected the claim. A 14, 18 - 22. After the Council's denial, the Respondent filed an action in the district court for unjust enrichment. A - 41 - 52. In response to the complaint, the Petitioner, inter alia, moved for summary judgment contending that because the City Council's action was quasi-judicial the district court forfeited its subject matter jurisdiction and limited Respondent to certiorari review. The district court disagreed and denied the City's motion for summary judgment, finding the City's activities proprietary and not governmental. The Petitioner appealed to the Court of Appeals which affirmed the district court's decision. STATEMENT OF THE LEGAL ISSUES Does the district court have subject matter jurisdiction over Respondent's unjust enrichment action? The District and Appellate Courts both held that because the matter arose in furtherance of a proprietary function, the District Court has subject matter jurisdiction over the action. STATEMENT OF THE CRITERIA FOR REVIEW Although this case holds considerable significance, it is by no means transformative. Both the District Court and the Court ofAppeals delivered clear and concise decisions which assiduously followed long- standing legal concepts, not deviating one jot or tittle from established law. Moreover, contrary to Petitioner's beguiling assertion that a decision by this Court would help clarify the law, the "Law" long ago found that the district court was the proper forum for unjust enrichment , , x u actions against cities for sewer and water overcharges. See e.g, Panton v. Duluth Gas and Water, 52 N.W. 527 (Minn, 1892) ;Sloan v. City of Duluth, 259 N.W. 393 (Minn. 1935); Knutson Hotel v. City of Moorhead, 84 N.W.2d 626 (Minn. 1957). Review of the Appellate and District Courts' decisions would serve no purpose other than to place this Court's imprimatur on their resonant decisions. ARGUMENT In a desperate plea to gain review, the Petitioner castigates the decisions of both the district and appellate courts, gainsaying their reliance on the principle of proprietary capacity and imperiously charging the Court of Appeals with "...adopting a new legal principle that is such a departure from the accepted and usual course of justice so as to call for Supreme Court review..." and with "... [adopting] the proprietary exception in the area of jurisdiction." Petitioner's brief, p. 1. Yet, a close study of Petitioner's narrative and more particularly the cases to which it cites shows its expostulation to be little more than sophistry based on empty apocrypha and advanced on the wings of a casuistic analysis of the law, bringing to mind Humpty Dumpty's querulous rejoinder to Alice: "It means what I wish it to mean - neither more nor less." Petitioner predicates its argument on the contrived postulate that this Court and "Courts nationwide" have recognized the principle of proprietary capacity to be an archaic doctrine. Petitioner 's brief pp. 2 and 4. This supposition is a real "head- scratcher", and to paraphrase Samuel • Clemens: The report of the demise of proprietary function is greatly exaggerated. While it has probably outlived its usefulness as a counter to governmental tort immunity, proprietary function is • • alive, well and prospering in other aspects of the law. In fact, because municipalities are increasingly involving themselves in private sector activities, such as the ownership and operation of utilities, the principle of proprietary capacity grows in stature and relevance. See e.g., Susla v. State, 247 N.W.2d t { 907, 910 (Minn. 1976); Youngstown Mine Corp. v. Prout, 124 N.W.2d 328 (Minn. 1963); Reierson 2 v. City of Minneapolis, 118 N.W.2d 223 (Minn. 1962); City ofCrookston v. Crookston Waterworks, 185 N.W. 380 (Minn. 1921). The Court of Appeals found that a long line of cases exists expressly holding that the • purveyance of utility services is a proprietary and NOT governmental activity of a municipality. A- 58. See e.g, City of Staples v. Minnesota Power, 265 N.W. 58 (Minn. 1936); Keever v. City of Mankato, 129 N.W. 158 (Minn. 1910). In the face of this profusion of cases holding to the viability of the principle of proprietary function, Petitioner's hen-headed pronouncement that the doctrine of proprietary capacity is archaic and belongs on the "ash heap of history" is a farce. If this Court committed to Petitioner's perverted rendering, it would nullify inveterate Minnesota jurisprudence. The precept attending proprietary capacity had as its genesis the government's growing intrusion into the market place; but, being government, the laws in place were according entities such as cities prerogatives not available to private parties, thus, giving cities a competitive advantage and insulating them from accountability. Thus was born the principle of proprietary capacity with the concomitant devolution of governmental pretentions. Because of this principle, cities.are now subject to the same rights and liabilities as private corporations, Youngstown v. Prout, 124 N.W.2d at 344. In addition to writing awishful valedictory for "proprietary capacity", the Petitioner contends it was error for the Court of Appeals to apply the principle to jurisdictional analysis. Petitioner's brief pp. 3-4. However, Petitioner's polemical disquisition on this issue merely gives pay to the theory of the Hellenistic philosopher Demosthenes who postulated that "man is his own easiest dupe, for what he wishes to be true he generally believes to be true." In Petitioner's case, it is the misguided belief that all City Council actions are transcendently governmental in nature. As the Court of Appeals recognized in this case, "a district court is a court of general jurisdiction," A -57. Anderson v. County of Lyon, 784 N.W.2d 77 (Minn. App. 2010). In fact, since 3 this state's infancy, it has been recognized that... "[the district court] is the one great court of general jurisdiction to which all may apply to have justice judicially administered, in every case where the Constitution itself does not direct application to be made elsewhere." Agin v. Heyward 6 Minn. 110 (1861). One such exception is the deference to be accorded to the quasi-judicial decisions of the executive branch of the government where review may only be had by writ of certiorari. However, this imperative is a construct of the principle of separation of powers, and, therefore, the sine qua non of its application is governmental action. Cf. Willis v. County of Sherburne, 555 N.W.2d 277 (Minn. 1996). Moreover, proprietary activity does not sublimate to governmental action merely because the activity passes to the governing body for a final decision. Since Petitioner was undisputedly acting in a proprietary manner when it rejected Respondent's claim, the requisite governmental action was absent, and Respondent's anodyne was to bring action in the district court. As the Court of Appeals recognized in its opinion, Petitioner concedes it was performing a proprietary function. A -59. Rather, Petitioner contends with no more than a dismissive, airy wave of the hand that "proprietary exception is not part of the jurisdictional test." (Respondent believes "the test" to which Petitioner refers is the analysis developed in MCEA v. Metro. Council, 587 N.W.2d 938 (Minn. 1999)). Petitioner's brief, p.3-4. Its jurisdictional disquistion is decidedly obtuse, exhibiting a failure to understand the underlying principle and overarching purpose of the theory of quasi-judicial, which as alluded to previously is to give pay to the doctrine of separation of powers. - _ Fatal to Petitioner's argument is its failure to address the governmental activity component of the "quasi-judicial cases ", closing its eyes to the fact that the "test" would of necessity anonymously subsume governmental action. Because the purveyance of sewer and water is unquestionably a proprietary and NOT governmental activity, Petitioner's denial of Respondent's reimbursement request was ipso facto not a quasi-judicial decision under "test" established by MCEA and its 4 progeny. If as Petitioner decrees the district court is obligated to yield its jurisdiction to the City Council, the Petitioner would be conceded judicial oversight of its own business enterprise, creating the anomalous situation of being judge, jury and executioner of its own business practices, which, in effect, commissions the fox to guard the hen house. In Manteuffel v. City of North St. Paul, 538 N.W.2d 727, 730 (Minn. App.1995), the Court mused over whether the governing body of a municipality could fairly adjudicate the propriety of its own conduct, a question made even more compelling when the conduct is in furtherance of the City's proprietary function. The Petitioner asked both the District Court and the Court of Appeals to engage in legal alchemy by transforming a proprietary activity into governmental action. Rebuffed by both Courts, the Petitioner is now inviting the Supreme Court to take the first step towards transubstantiating the City's proprietary activity into a governmental action, an invitation the Supreme Court should also decline. DATED: September 2, 2011. PETE OR PUT, COUNTY ATTORNEY WASHIN 7, TON CO , MINNESOTA George 7 prian ID /No. 147722 Assistant Washington County Attorney Washington County Government Center 15015 62nd Street North P. O. Box 6 Stillwater, MN 55082 (651)430 -6115 5 A ATTQRMEYS AT LAW p> r. p August 17, 2011 )'l; i;i! Via E -Mail Only Suite 100 SUSAN NAUGHTON 8519 Ewe Point Boulevard STAFF ATTORNEY/MAP Lake Ehno, MN 55042 LEAGUE OF MINNESOTA CITIES Farm (651) 290 -6500 145 UNIVERSITY AVE W Fu (651) 223 -5070 ST PAUL MN 55103 -2044 E -Mail �y ifoLw (Sent via E -Mail to: snaughton alninc.org) www jlolavnmm Re: 37024 (872) LMCIT Claim No: 11071183 John M. Kennedy, Jr.* Trust member: City of Oak Park Heights Eugene j. Flick Charles E. GRIM • Claimant: County of Washington Pierre N. Regnier Mark A. Fonkan . George W. Kudrna Dear Ms Naughton: Patti J. Skogluund' Timothy S Crom' Lawrence M. Rochclbrd * Janes G. Gaeaabed • As you are aware, we are representing the City of Oak Park Heights against an unjust Joseph . Garvis enrichment claim filed by Washington County. We are writing to request that LMC ThOmas L. Cunnings serve as Amicus Curiae before the Minnesota Supreme Court. Leonard J. Schweich Jessica E. Schwie Briefly, Washington County receives sewer and water services from the City. In Susan S. M1 k 2009, it appealed charges incurred between 2004 -2008 to City Staff. City Staff Matthew R Bandt denied the appeal and the matter was referred to City Council. After considering ' Elise M Hatlevig Jason A. Koh evidence and argument submitted by Washington County, the City denied the appeal. Darwin S. Williams Mark K. Hollie Washington County then filed an unjust enrichment claim in District Court. Nancy EL Aboyan Daniel M. Gallatin Mic Goodwin We sought dismissal of the claim on the basis that the court lacked subject matter jurisdiction because the challenged decision was a quasi-judicial decision subject to John R. O'Brien - Admitted in Wiscaagin, emeritus certiorari review alone. The County argued that because the City was acting in its Minnesota, retinal proprietary capacity, the court had subject matter jurisdiction. The court agreed and Gerald M. Jdnn+han- Relived we appealed. The Court of Appeals issued a published decision affirming the holding Man R Vanaaek - Retired of the district court. The Court of Appeals held that "[b]ecause the city's decision to Some e,enbera also admitted deny the County a refund was proprietary, not governmental, conduct, the district ' to Dakota, t t a court did not err in concluding that it has subject - matter jurisdiction over the County's ' and Iowa unjust- enrichment claim." Shannon Ban aszewski Administrator We have petitioned for Supreme Court review; a copy of the Petition is enclosed for your review and consideration. This case is unique in that it is two governmental Donard M. Jardine (1915 -2005) entities at odds with one another, which is not an enviable position to be in. In this Jerre E Logan (1923 -1983) case, Washington County is forced to make the proprietary capacity argument that it is in order to make protect its own interests. If the court ultimately determines that certiorari review was the only method of review, then the County will have lost its Equal Opportunity Employer PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE August 17, 2011 Page 2 opportunity to seek a possible refund in excess of $100,000.00. Of course, the City too has its own interests at hand. The law created by the Court of Appeals decision, however, runs contrary to the common good of political subdivisions statewide. For the reasons outlined in the Petition, we have grave concerns regarding the effect of the Court of Appeals decision which will negatively affect all governmental entities. The proprietary capacity doctrine is an archaic doctrine that has been abandoned by the majority of the court nationwide for good reason. In short, a Supreme Court decision in this matter, if there is one, would likely benefit from an impartial view of the proprietary capacity doctrine and whether it should have been adopted as it was by the Court of Appeals. Very truly yours, JARDINE, LOGAN & O'BRIEN, P.L.L.P. Jessica E. Schwie Direct Dial: (651) 290 -6591 E -Mail: 'schwi ilolaw.com JES :jes Case No. A11 -0067 STATE OF MINNESOTA IN SUPREME COURT City of Oak Park Heights, Petitioner, v . County of Washington, Respondent. PETITION FOR REVIEW OF DECISION OF COURT OF APPEALS AND APPENDIX Court of Appeals decision was filed on: July 18, 2011 JARDINE, LOGAN AND O'BRIEN, PETE ORPUT, COUNTY ATTORNEY P.L.L.P. WASHINGTON COUNTY, M Pierre N. Regnier, Reg. No. 90232 George Kuprian (A.R. #147722) Jessica E. Schwie, Reg. No. 296880 15015 62nd Street North 8519 Eagle Point Blvd., Suite 100 P.O. Box 6 Lake Elmo, MN 55042 Stillwater, MN 55082 (651) 290 -6500 (651) 430 -6115 Attorneys for Petitioner Attorneys for Respondent STATEMENT OF THE LEGAL ISSUES I. Whether the Court of Appeals erred when it adopted the archaic and analytically unsound proprietary capacity exception, a doctrine which has been abandoned by courts nationwide, for purposes of determining subject matter jurisdiction? Lower Court Disposition: The district court and the Court of Appeals, in a published decision, held that subject matter jurisdiction over a municipal decision is determined by whether the municipality was acting in its proprietary capacity. STATEMENT OF CASE The City of Oak Park Heights ( "City ") provides water and sewer services to Washington County ( "County "). A.3 -7; A.27 -32. In 2009, the County submitted an appeal to the City, appealing charges invoiced and seeking a refund. A.18. City staff first reviewed and denied the County's appeal. A.54. The County then further appealed to the City Council. A.11 -13. Following the receipt of evidence and argument, the City Council adopted a resolution, denying the appeal. A.18 -26. The County commenced suit in Washington County District Court challenging the City's decision. A.41 -53. By Order dated November 4, 2010, the district court held that it had subject matter jurisdiction to hear the claim because the City was acting in its proprietary capacity. A.3 -7. By published decision dated July 18, 2011, the Court of Appeals affirmed the lower court. STATEMENT OF CRITERIA FOR REVIEW Review is appropriate because (1) the question presented is an important one upon which the Supreme Court should rule; (2) the Court of Appeals adopted a new legal principle that is such a substantial departure from the accepted and usual course of justice so as to call for Supreme Court review; and (3) a decision by this Court will help clarify the law because a new legal principle, that is contrary to existing state law and poor 1 policy, has been established and resolution of the question presented has statewide impact upon this State's 854 cities and the members of the bench charged with analyzing subject matter jurisdiction. Minn. R. Civ. App. 117, subdivision 2, subpts. (a), (c), (d)(1),(2). L Supreme Court review is necessary because, in a published decision, the Court of Appeals has adopted and expanded an archaic and unsound legal principle, which has been abandoned by the nationwide majority. Background of the proprietary capacity exception The powers that a municipality can exercise are limited to those granted by statute and those incident to its operation which are generally divided into three-categories— administrative, legislative, and quasi-judicial. Oakman v. City of Eveleth, 203 N.W. 514 (Minn. 1925). Occasionally, this Court has referred to what amounts to a fourth power, the power to act in a so -called proprietary capacity which is claimed to arise in those circumstances where the municipality acts for pecuniary profit as opposed to for the g tY P �'Y p pp common good. Heitman v. Lake City, 225 Minn. 117, 120 (Minn. 1947). The proprietary capacity doctrine has been recognized by this Court as an archaic doctrine, which was initially adopted as an exception to sovereign immunity until the legislature passed the Municipal Tort Liability Act, Chapter 466, rendering the proprietary exception dead for purposes of evaluating municipal tort liability. Spanel v. Moundsview School District No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962); Imlay v. Lake Crystal, 453 N.W,2d 326, 330 Minn. 1990). The proprietary exception, while still recognized by this Court in some areas of the law; is not recognized in others. For example, this Court has recently reaffirmed its P � Y existence with regard to the determination of taxation of costs and disbursements. Lund v. Comm'r of Pub. Safety, 783 N.W.2d 142, 143 (Minn. 2010). Yet, this Court has 2 specifically rejected the proprietary exception in other areas of law such as adverse possession and equitable estoppel. See e.g. Fischer v. Sauk Rapids, 325 N.W.2d 816, 819 (Minn. 1982); Mesaba Aviation Div. v. County of Itasca, 258 N.W.2d 877, 880 (Minn. 1977). This is a jurisdiction case The body of law at issue in this case, separate and distinct from tort law, is that which addresses not the merits of the claim, but the proper method of judicial review of decisions made by governmental entities. As this Court recently stated in Lund, the mere fact that the proprietary exception is recognized in one area of the law does not serve as precedential value for its application in other areas of the law. Id., 783 N.W.2d at 143. Nevertheless, the Court of Appeals recognized a proprietary exception in the area of jurisdiction and in so doing adopted and expanded a widely rejected and archaic doctrine. Proprietary exception is not recognized as part of jurisdictional test In compliance with the separation of powers doctrine, judicial review of a municipal decision is limited. Tischer v. Hous. & Redev. Auth., 693 N.W.2d 426, 429 (Minn. 2005); Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). In the last twenty years, this Court has issued a trilogy of cases addressing jurisdiction over municipal decisions. See Handicraft Block P'Ship v. City of Minneapolis, 611 N.W.2d 16 (Minn. 2000); Minnesota Center for Environmental Advocacy v. Metropolitan Council, 587 N.W.2d 838 (Minn. 1999), and Meath v. Harmful Substance Compensation Board, 550 N.W.2d 275 (Minn. 1996). This Court has determined jurisdiction based upon only two categories of governmental action, legislative or quasi-judicial. 3 In none of the cases addressing jurisdiction did this Court recognize, or even discuss, a proprietary capacity category. To the extent that this Court has had the opportunity to recognize a proprietary exception in the area of jurisdiction, it has chosen not to do so. See e.g. Tischer v. HRA of Cambridge, 693 N.W.2d 426 (Minn. 2005)(rejecting argument that certiorari review was improper because entity should be treated like a private corporation); Youngstown Mines Corp. v. Prout, 266 Minn. 450, 124 N.W.2d 328 (1963)(rejecting argument that certiorari review was improper because the underlying conduct was proprietary); Frasch v. City of New Ulm, 130 Minn. 41, 153 N.W. 121 (1915)(rejecting argument that party did not have to comply with jurisdictional prerequisites because governmental entity was acting it is proprietary capacity). The Court of Appeals, however, ignored that case law and adopted the proprietary exception in the area of jurisdiction. Case law from other jurisdictions does not support extension of proprietary exception. Courts nationwide historically recognized the proprietary exception primarily in two contexts (1) in determining whether to grant sovereign immunity to a governmental entity, and (2) in determining whether to hold governmental entities liable for breaches of contract. See e.g. Hillerby v. Town of Colchester, 706 A.2d 446 (Vt. 1997); Oyler v. State, 612 P.2d 1042, 1053 (Wyo. 1980). However, over the course of time, courts abandoned the archaic proprietary exception because the doctrine was analytically unsound. See e.g. Mountain States Te. & Tel. Co. v. Public Utilities Com., 763 P.2d 1020, 1026 (Col. 1988); Hudson v. Town of E. Montpelier, 638 A.2d 561 n. 3 (Vt. 1993). Therefore, by extending the proprietary exception doctrine in Minnesota, the Court of Appeals has adopted a minority position that was rationally abandoned many years ago by courts nationwide. 4 Contemplating jurisdiction and judicial review of the decisions of this state's 854 municipalities further highlights the impropriety of adopting the proprietary exception. If the provision of sewer and water services is a proprietary act, does this now mean that those few municipal employees working in the sewer and water department come within the proprietary exception such that the termination of their employment is not limited to certiorari review like their counterparts ? Cf. Willis v. County of Sherburne, 555 N.W.2d 277, 282 (Minn. 1996); Dokmo v. Independent School District No. 11, 459 N.W.2d 671, 676 (Minn. 1990). Or, does this mean that when the City is addressing proprietary issues it may, like private business, ignore certain statutory mandates that apply to governmental entities such as the Data Practices Act, Open Meeting Law? Under the circumstances, discretionary review of the Court of Appeals' published decision, which has adopted an archaic, analytically unsound, and minority doctrine and which will bring disharmony to existing Minnesota case law, is imperative. Dated: / /6 JARD a ..LOGAT 'BRIEN, P.L.L.P. By: _ -..... d PIERRE N. REGNIER, R.eg. No. 902• JESSICA E. SCHWIE, Reg. No. 296880 8519 Eagle Point Blvd., Suite 100 Lake Elmo, Minnesota 55042 (651) 290 -6500 Attorneys for City of Oak Park Heights ' A survey of the decisions in Texas provides further evidence that Pandora's Box has been opened in this state by the Court of Appeals' decision in this case and its adoption of a new jurisdictional doctrine. Application of the proprietary capacity exception in Texas, one of the few states still using the doctrine, has resulted in such analytically unsound decisions as holding that the provision of insurance benefits to employees is a decision made in the . municipality's proprietary capacity while decisions related to employee health plans are not. Galveston Indep. Sch. Dist. v. Clear Lake Rehab. Hosp. LLC, 324 S.W.3d 802, 809 (Tex. App. 2010); Temple v. City of Houston, 189 S.W.2d 816, 821 (Tex. App. 2006). 5 ®EI ATTORNEYS AT LAW El= P.LL.P. MEM August 3, 2011 VIA E-MAIL Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042 Firm (651) 290 -6500 MR ERIC JOHNSON Fax (651) 223-5070 E -Mail CITY ADMINISTRATOR olaw0j1olaw.com CITY OF OAK PARK HEIGHTS www.jlolaw.com P O BOX 2007 STILLWATER MN 55082 -3007 John M. Kennedy, Jr. • PRIVILEGED AND CONFIDENTIAL COMMUNICATION Eugene r E Flick n • • PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP Pierre nr Mark A. Fononken • AND WORK PRODUCT DOCTRINE M George W. Kuehner Patti J. Skoglund • Timothy S. cram' Re: County of Washington vs. City of Oak Park Heights Lawrence M. Rocheford • James G_Golembeck• Our File No: 37,024 (872) Joseph E. Flynn • Marlene S. Garvin' Thomas L. Cummings Dear Mr. Johnson: Leonard J. Schweich Jessica E. Schwie This will confirm that I will be meeting with the City Council on August 3, 2011, to Susan S.TTce Thomas J. Misurek discuss the City's options at this time. ' Matthew P. Bandr • Elise M. Hatlevig Jason Darwin S. Wi D rwin Ws lliams One of the options for consideration at this time is to Petition the Minnesota Supreme Da Mark K. Hellie Court for further review. Nancy M. Aboyan Daniel). Stahley John R. O'Brien - Admitted Under the Civil Appellate Rules of Minnesota, a party wishing to ask the Supreme Minnesota, retired Court to review a decision of the Court of Appeals must do so by way of a petition to the Supreme Court. That petition must be filed within thirty (30) days of the filing of Alan R. Vanasek - Of Counsel Gerald M. Linniban - Retired the Court of Appeals decision. This decision was filed July 18, 2011, so we have thirty (30) days from July 18, 2011, (i.e. on or before August 17, 2011) to file the Some v m', petition to the Supreme Court if we are going to do so. There is a filing fee of North Dakota, South Dakota, $550.00. Iowa Shannon Banaszewslri Any review of this decision is purely discretionary with the Supreme Court. The Administrator Court looks to certain criteria to consider whether they wish to take the review. The M. Jardine (1915-2005) Donald criteria are as follows: Jerre F. Logan (1923 -1983) 1. The question presented is an important one upon which the supreme court should rule; or Equal Opportunity Employer F PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORE PRODUCT DOCTRINE MR ERIC JOHNSON August 3, 2011 Page 2 2. The court of appeals has ruled on the constitutionality of a statute; or 3. The lower court has so far departed from the accepted usual course of justice as to call for an exercise of the supreme court's supervisory powers; or 4. A decision by the supreme court will help develop clarify or harmonize the law and a. the case calls for application of a new principle or policy or b. the resolution of the question presented has possible state -wide impact or c. the question is likely to recur unless resolved by the supreme court. Our petition cannot exceed five typewritten pages. Therefore, this is not a long brief but as indicated, it is a petition trying to explain to the Supreme Court why they should take review of this case. After we file it, then the County would have twenty (20) days to file a response. We would then wait to hear from the Court as to whether they are going to accept review or not. We believe that this would be an appropriate case to petition the Supreme Court for further review. Perhaps even the League of Minnesota Cities Insurance Trust would file an amicus brief. That would be a decision they would make. We believe that this decision which is a published decision and therefore has precedential value, will have state -wide impact. Furthermore, this case calls for what we believe to be an application of a new principle of law never before adopted by the Supreme Court. Furthermore, we believe that the Court of Appeals decision has improperly distinguished the only Minnesota Supreme Court decision that deals with this specific issue. PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY- CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE MR ERIC JOHNSON August 3, 2011 Page 3 The Minnesota Supreme Court in the Handicraft case specifically set forth the factors to be considered by a court when determining whether a city council's decision is a quasi-judicial act and thus reviewable by writ of certiorari. That was a 2000 Supreme Court case. The Handicraft case applied prior Supreme Court rulings on this issue. The final test or criteria standard to be used is set forth in Handicraft. That test does not include a determination as to whether the underlying activity is proprietary or governmental. This Court of Appeals decision is now adding a new factor to be considered by courts when deciding whether a city council decision is quasi judicial, namely whether the city council's decision involves a matter that is considered proprietary for contract law purposes or tort purposes. We believe the Supreme Court should be the deciding body as to whether new factors are going to be added in determining whether a city council's decision is quasi judicial. Furthermore, I believe there is a statement or holding in the Court of Appeals decision that has some far reaching ramifications for issues that are likely to recur. The Court stated " ... when executive bodies make decisions in the context of proprietary conduct, such as a refund denial involved here, they act as any other business, with the same rights and responsibilities, and cannot reasonably be viewed as engaged in governmental conduct," Does this mean that a city council that is dealing with a matter deemed to be proprietary such as providing utility services or leasing of property, acts as any other business with the same rights and responsibility as a private business and can ignore certain statutory mandates that apply to governmental entities such as the Data Practices Act, Open Meeting Laws? Furthermore, is the City no longer acting under "color of law" so as to be able to ignore constitutional mandates which apply to governmental activities? The court's decision can be interpreted to be saying that when a city engages in any type of conduct which is also conducted by private entities then the city is governed by the same rules as govern a private entity. There is a long list of cases that have come down from the appellate courts holding that the termination of teachers in public schools is reviewable by writ of certiorari. Is that no longer the law since there are plenty of private corporations that operate private schools and termination of teachers in those private schools is not reviewable by writ of certiorari but rather goes to the district court. Therefore, should public schools now be treated the same as private and review of termination is no Longer by writ of certiorari but must go to district court? PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE MR ERIC JOHNSON August 3, 2011 Page 4 Only one of the cases cited by the Court of Appeals in its decision specifically deals with this question of whether an action of an executive body such as a state commissioner or a city council is reviewable by writ of certiorari regardless of whether the conduct involved in the decision is proprietary. In the Youngstown case, the Minnesota Supreme Court specifically ruled that the State's act of leasing mines was a proprietary conduct. The next issue they were faced with is whether or not the State Commissioner's review of a decision not to refund some lease payments that the plaintiff claims were made in error was a decision that was quasi judicial for purposes of determining whether the action would be taken by writ of certiorari or directly to district court. The court in Youngstown specifically ruled that it was a quasi judicial act of the commissioner in reviewing the denial of the refund and therefore, it went by writ of certiorari. Therefore, that court decided while the underlying action was proprietary, a decision not to refund was quasi This Court of Appeals decision recognized the existence of that case and claims they distinguished the case. We believe, however, that instead of truly distinguishing the case, the Court in fact disregarded that Supreme Court decision, A Court of Appeals cannot overrule a Supreme Court decision. The only way they can get around it is to distinguish it. This is another reason why we think the Supreme Court should take this case since it appears to us that the only decision rendered on this issue is favorable to our position, All of the other cases cited by the Court of Appeals never addressed or dealt with this issue of whether a city council's decision involving an underlying propriety matter is reviewable by writ of certiorari. We understand that the Supreme Court only grants review in about 12% of all petitions. We believe in this case, there is a good sound reason why the Supreme Court should accept review. If the Supreme Court denies review, then we just proceed on with the case. If they grant review, then we go through another round of filing briefs and oral arguments before the Supreme Court. We estimate that it would cost somewhere between $2,000.00 to $4,000.00 to draft the petition and perform the research necessary to put that petition together. This is a matter we can discuss with the City Council in a closed session on August 3, 2011. PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE MR ERIC JOHNSON August 3, 2011 Page 5 Thank you. Yours truly, e v J ' : .: o 1 • , • O'BRIEN, P.L.L.P. 40 ' I • ' 1 . •41 GNIER DIRECT DIAL NO: (51- 290 -6563 PNR:srg C: Mr. Mark Vierling [Via E -mail] Mr. Mark Rossow [ LMCIT Claim No: 11071183] [Via E -mail] Mr. Brian Gaviglio [LMCIT Claim No: 11071183] [Via E -mail] r STATE OF MINNESOTA IN COURT OF APPEALS A11 -67 County of Washington, Respondent, vs. City of Oak Park Heights, Appellant. Filed July 18, 2011 Affirmed Bjorkman, Judge Washington County District Court File No. 82 -CV -10 -4198 Pete Orput, Washington County Attorney, George Kuprian, Maura J. Shuttleworth, Assistant County Attorneys, Stillwater, Minnesota (for respondent) Pierre N. Regnier, James G. Golernbeck, Jessica E. Schwie, Jardine, Logan & O'Brien, P.L.L.P., Lake Elmo, Minnesota (for appellant) Considered and decided by Halbrooks, Presiding Judge; Bjorkman, Judge; and Collins, Judge. SYLLABUS When a city engages in proprietary conduct, such as providing utility services to its residents, it acts as a business, not a governmental enti . Accordingly, disputes arising from a city's decisions made in the context of proprietary conduct are subject to the jurisdiction of the district court. Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10. OPINION BJORKMAN, Judge Appellant City of Oak Park Heights challenges the district court's denial of its motion for summary judgment, arguing that the district court lacks subject -matter jurisdiction because respondent Washington County's unjust- enrichment claim challenges quasi-judicial conduct by the city, which may be reviewed only by writ of certiorari. Because we conclude that the city's conduct was proprietary, not governmental, we affirm. FACTS The city provides water and sewer services to the county's law enforcement center and bills the county for those services based on regular meter readings. In 2009, the county concluded that the city had overcharged it for water and sewer services between 2004 and 2008 and requested a refund. Pursuant to a procedure established by the city, the county first presented its request to the city's fmance director, who denied the refund; the county then presented its request to the city council. After receiving evidence and considering the matter, the city council also denied the county's refund request. The county subsequently initiated an unjust- enrichment action in district court. The parties filed cross - motions for summary judgment: The county argued that it is entitled to compensation based on undisputed material facts, and the city argued that the district court lacks jurisdiction because the county's claim implicates a quasi judicial decision of the city council that is reviewable only by writ of certiorari. The district court denied both motions. This appeal by the city follows. 2 ISSUE Does the district court have subject -matter jurisdiction over the county's unjust - enrichment claim? ANALYSIS "The existence of subject matter jurisdiction is a question of law, which this court reviews de novo." Shaw v. Bd. of Regents, 594 N.W.2d 187, 190 (Minn. App. 1999), review denied (Minn. July 28, 1999). "Subject -matter jurisdiction is defined as not only authority to hear and determine a particular class of actions, but authority to hear and determine the particular questions the court assumes to decide." Irwin v. Goodno, 686 N.W.2d 878, 880 (Minn. App. 2004) (quotation omitted). A district court is a court of general jurisdiction, with the power "to determine justiciable controversies regarding claims of statutory or common -law rights." Anderson v. Cnty. of Lyon, 784 N.W.2d 77, 80 (Minn. App. 2010), review denied (Minn. Aug. 24, 2010); see also Minn. Stat. § 484.01, subd. 1 (2010) (stating that district courts "shall have original jurisdiction in .. . all civil actions "). However, an exception to the broad jurisdiction of the district court exists when an action implicates a quasi-judicial decision of an executive body of less - than statewide jurisdiction. Anderson, 784 N.W.2d at 81 (citing Tischer v. Hous. & Redev. Auth., 693 N.W.2d 426, 429 (Minn. 2005)). Such a decision is reviewable only by writ of certiorari in this court. Id. at 81. The city argues that the district court lacks subject -matter jurisdiction because the county's claim implicates the city's quasi-judicial decision to deny the county's refund request. It is undisputed that the city is an executive body within the meaning of Tischer. 3 But the district court concluded that it has jurisdiction over the county's claim because the city's denial of the county's refund request was proprietary action rather than quasi- judicial governmental action. We agree. Minnesota courts have long recognized that cities engage in a variety of proprietary activities. See In re Eller Media Co.'s Applications for Outdoor Advertising Device Permits, 642 N.W.2d 492, 499 -500 (Minn. App. 2002), rev'd on other grounds, 664 N.W.2d 1 (Minn. 2003) (agreeing with the observation that municipalities engage in proprietary activities). Among these proprietary activities is the provision of utility services to residents. City of Staples v. Minn. Power & Light, 196 Minn. 303, 305, 265 N.W. 58, 59 (1936) (citing City of Crookston v. Crookston Water Works, Power & Light Co., 150 Minn. 347, 185 N.W. 380 (1921)). These activities are considered proprietary not because the city seeks to make a profit but because the city voluntarily engages "in the same business which, when conducted by private persons, is operated for profit." Keever v. City of Mankato, 113 Minn. 55, 61, 129 N.W. 158, 159 (1910). And when a city engages in proprietary activities, "it should have the same rights and be subject to the same liabilities as private corporations or individuals." Id. at 62, 129 N.W. at 160. This includes liability for a range of civil claims, including tort, contract, and equitable claims. See Knutson Hotel Corp. v. City of Moorhead, 250 Minn. 392, 396, 84 N.W.2d 626, 629 (1957) (permitting a customer of a city's sewer service to bring suit in district court to recover "a payment made for a service which was not received "). The city does not dispute the proprietary nature of its conduct, but argues that cases such as Crookston and Keever are inapplicable because they address liability but 4 not the critical jurisdictional question of whether the city council's decision is quasi - judicial in nature. We disagree. We recognize that liability is not necessarily commensurate with jurisdiction. See Tischer, 693 N.W.2d at 429 -30 (emphasizing that statute providing for executive -body liability did not necessarily provide for district court jurisdiction). But cases that determine jurisdiction solely on the distinction between quasi-judicial decision - making (reviewable by certiorari) and quasi - legislative decision - making (subject to interpretation by district court) are premised on something absent here: decision - making in the context of governmental conduct. The centrality of governmental conduct to the jurisdictional question is clear when we consider the rationale behind limited court review. District courts may not exercise jurisdiction over an executive body's quasi-judicial decisions because such judicial interference violates the separation -of- powers doctrine by intruding on executive policy decisions. See State ex rel. Ging v. Bd. ofEduc., 213 Minn. 550, 571 -72, 7 N.W.2d 544, 556 (1942), overruled on other grounds, Foesch v. Indep. Sch. Dist. No. 646, 300 Minn. 478, 478, 223 N.W.2d 371, 371 (1974); see also Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977) (stating that courts cannot exercise original jurisdiction over "policy matters which are the responsibility of the legislative and executive branches "). Rather, this court reviews quasi-judicial decisions of an executive body, applying the more restrictive certiorari standard. See Dietz v. Dodge Cnty., 487 N.W.2d 237, 239 (Minn. 1992) (stating that the narrow scope of "certiorari is compatible with the maintenance of fundamental separation of power principles, and thus is a particularly 5 appropriate method of limiting and coordinating judicial review of the quasi-judicial decisions of executive bodies" (footnote omitted)). But as cases like Crookston and Keever demonstrate, when executive bodies make decisions in the context of proprietary conduct, such as the refund denial involved here, they act as any other business, with the same rights and responsibilities, and cannot reasonably be viewed as engaged in governmental conduct. See Keever, 113 Minn. at 60, 129 N.W. at 159 (framing the issue as whether the city's operation of a waterworks was "a overnmental function" or the city acting as a "private or corporate" entity); g tY g P 1 P tY l i Youngstown Mines Corp. v. Prout, 266 Minn. 450, 473, 124 N.W.2d 328, 344 (1963) (stating that "when [the state] descends to the level of those with whom it associates and interests itself in any property and proprietary rights as distinguished from governmental prerogatives, it subjects itself to the same liability as any other litigant "). Because these non-governmental decisions do not implicate separation-of-powers concerns, there is no g p reason to exclude them from the district court's jurisdiction. See Willis v. Cnty. of Sherburne, 555 N.W.2d 277, 282 -83 (Minn. 1996) (concluding that common -law defamation claim against executive body was subject to district court's jurisdiction because it did not involve inquiry into a discretionary decision and, therefore, did not implicate separation -of- powers concerns). To do so would infringe on the rights of parties that conduct business with a city. The city argues that Youngstown requires certiorari review even of decisions related to proprietary conduct. We disagree and find Youngstown distinguishable. Youngstown concerned the conservation commissioners decision that Youngstown was 6 • not entitled to a refund from the state treasury for monies it paid to the state under a mining lease. 266 Minn. at 481 -85, 124 N.W.2d at 349 -52. The district court granted Youngstown's certiorari petition and held that Youngstown was entitled to a refund. The supreme court affirmed. The city emphasizes the Youngstown court's conclusion that the commissioner's decision was quasi-judicial, and therefore subject to certiorari review, because a statute gives the commissioner the power to adjudicate "the rights of persons and property." See id at 484, 124 N.W.2d at 351. But also significant to our analysis is the Youngstown court's recognition that the commissioner was bound by a district court judgment in a prior civil action concerning whether the state owned the property it leased to Youngstown. See id. at 488 -89, 124 N.W.2d at 353 -54. In other words, the dispute between the parties under the lease was a proprietary contract matter subject to district court review and the dispute regarding entitlement to a refund pursuant to statute was a quasi-judicial matter subject to certiorari review. Here, the challenged decision arises out of wholly proprietary conduct by the city. The city chose to engage in the proprietary act of providing water and sewer services and instituted a procedure for addressing billing disputes with its customers. The county requested a refund pursuant to that procedure, and the city denied the request. And unlike the statutory refund process in Youngstown, nothing in the city's ordinances indicates that the city's refund decisions constitute the kind of legal adjudication that bars district court review. Rather, the city's decision reflects how it chose to do business with the county. We conclude that Youngstown does not preclude the district court's jurisdiction under these circumstances. 7 DECISION ' proprietary, Because the city's decision to deny the county a refund was p op tary, not governmental, conduct, the district court did not err in concluding that it has subject - matter jurisdiction over the county's unjust-enrichment claim. Affirmed. 8 r Ewa ATTORNEYS AT LAW p'' E June 2, 2011 MEM Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042 CLERK OF APPELLATE COURTS F, (¢sl) z99 6sao 305 MINNESOTA JUDICIAL CENTER Fax (651) 223 -5070 25 REV. DR. MARTIN LUTHER KING JR. BLVD E -Mail ST PAUL MN 55155 V`L olaw d loMw www..jlolawcom Re: 37024 (872) Case No. A11 -0067 J M Kennedy, JY , Trial Court File No: 82 -CV -10 -4198 Eugene J. Hick • County of Washington v. City of Oak Park Heights Charles E. Gillin Pierre N. Regnier Mark W. K • Dear Clerk of Court: George W. Kuelmcr Patti J. Skoglund • Timothy S. Clan • Lawrence M Rochcford • As the Court is aware, we represent the City of Oak Park Heights in this appeal. Oral James G. Golembedt • Joseph E. Flynn • arguments were held on May 10, 2011, Enclosed herein is a recently issued Court of Martens S. Garvin • 'Thomas L. Cummings PP opinion g A eals Decision that renders an o inion on the issue litigated in the Oak Park Leonard J. Sdnveich Heights' appeal as it pertains to the issue of whether a decision is quasi-judicial in Jessica E. Schwic nature and subject only to certiorari review. The case is Simpson v. Backstrom, Al 0- sraean S. Tice 1294 (Minn. App. May 31, 2011) unpublished. Thomas J. Misurck Matthew P. Bandt • Elias M. Hat evig By copy of this letter, we are serving counsel for respondent with the same. Jason A. Koch Y PY g P Darwin S. Williams Mark K. Hellie Nancy M. Mayan Very truly yours, Daniel M. Gallatin Vicki A. Herby Michael P. Goodwin JARDINE, LOGAN & O'BRIEN, P.L.L. John R. O'Brien - Admitted e - - in Wisconsin, emeritus Minnesota, retired .... Gerald M. Linnihan - Retired Alan R. Vanasek - Retired Jessica E. Schwie Some members also admitted Direct Dial: (651) 290 -6591 to practice lave in Wisconsin% E -mail Address: schwie/� lolaw.com North Dakota, South Dakota, l t✓l and Iowa JES: JP Shannon Banaszcwsld Enclosure Administrator Donald M. Junkie (1915 -2005) Cc: George Kuprian, Esq. (w /enc.) 1 Jerre F. Logan (1923 -1983) Equal Opportunity Employer CLERK OF APPELLATE COURTS June 2, 2011 Page 2 Bcc: City of Oak Park Heights (w /enc.) Mark Rossow (LMCIT Claim No: 11071183) (w /enc.) This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010). STATE OF MINNESOTA IN COURT OF APPEALS A10 -1294 Phillip Mycal Simpson, Relator, vs. James C. Backstrom, in his official capacity as Dakota County Attorney, et al., Respondents. Filed May 31, 2011 Affirmed Ross, Judge Dakota County Employee Relations Department Patrick J. Kelly, Daniel J. Cragg, Kelly & Lemmons, P.A., St. Paul, Minnesota (for relator) James C. Backstrom, Dakota County Attorney, Jay R. Stassen, Assistant Dakota County Attorney, Hastings, Minnesota (for respondents) Y, g � � P ) Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Harten, Judge.* * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION ROSS, Judge The dispute in this appeal originates from a romantic triangle involving two Dakota County corrections officers and one inmate. We must decide whether Dakota County must indemnify and defend corrections officer Phillip Simpson in a lawsuit filed against Simpson and the county by a former inmate. The inmate, who is the current boyfriend of the other corrections officer—the mother of Simpson's child — alleges among other things that Simpson illegally disclosed his medical information obtained during his incarceration. Simpson made the allegedly privacy - violating disclosures during a child- custody proceeding in which he sought to keep the inmate from his child. We affirm the county's decision not to defend and indemnify Simpson because the alleged disclosures were made outside the duties of Simpson's employment. FACTS Phillip Simpson and Emily Bonniwell, corrections officers in the Dakota County Sheriff's Office, became romantically involved and conceived a child born in 2009. The relationship ended and Bonniwell began dating J.O., whom she met while he was a jail inmate. Bonniwell and Simpson began a child - custody dispute in 2010. In it, Simpson sought to prevent J.O. from having contact with their son. He submitted to the district court the following affidavit, which became the primary subject of J.O.'s lawsuit: Mr_,[O,] has been in the Dakota County jail more than once. He has a serious chemical problem and has had at least four (4) DUIs. His driver's license is cancelled for inimical to 2 public safety. I knew he talks [sic] medication, Lithium, for [sic] mental health records. Emily has been very involved with him, taking [the child] to be with Mr, [0.]. I ask that Emily be ordered not to allow any contact between Mr.[0.] and [the child]. Simpson also allegedly told Bonniwell's mother that J.O. is an ex- inmate, is on lithium, and is bipolar. And he allegedly telephoned J.O.'s probation officer and left a message to report that J.O. had consumed alcohol in violation of a probation condition. J.O. sued Simpson and Dakota County for violating his privacy rights under the Minnesota Health Records Act and for defamation arising out of Simpson's statement to the child's grandmother and his leaving the allegedly false message with J.O.'s probation officer. The Dakota County Attorney concluded that the county was not required to defend and indemnify Simpson under Minnesota Statutes section 466.07 (2010) because Simpson's actions were not taken "in the performance of [his] duties" as a corrections officer. Although the record does not indicate the source that defines the procedure to appeal that decision, the county attorney informed Simpson that he could appeal his decision to a three- member panel comprised of county officials. Simpson appealed, and the panel upheld the county attorney's decision refusing to defend or indemnify him. Simpson petitions this court to review by writ of certiorari. DECISION Simpson challenges the county's decision not to defend or indemnify him. A county's determination not to defend and indemnify an employee under Minnesota 3 Statutes section 466.07 is quasi judicial, and it is therefore subject to certiorari review by this court. See Minn. Ctr. for Envtl. Advocacy v. Metro. Council, 587 N.W.2d 838, 842 (Minn. 1999) (defining quasi-judicial decisions as those that involve investigating disputed claims and weighing evidentiary facts, applying those facts to a prescribed standard, and binding decisions on those disputed claims); State v. Tokheim, 611 N.W.2d 375, 376 (Minn. App. 2000) (requiring writ of certiorari to invoke review of quasi- judicial decisions). Our review of quasi-judicial decisions is limited to whether the fact findings are supported by substantial evidence and the decision is affected by error of law, made upon unlawful procedure, or arbitrary and capricious. Minn. Stat. § 14.69 (2010). Simpson contends that Dakota County's decision not to defend and indemnify him was based on legal errors and unsupported fact findings. Municipalities must defend and indemnify their employees for damages arising from tort liability if the employees incurred the liability while they were "acting in the performance of the duties of the position" and were not malfeasant, negligent, or acting in bad faith. Minn. Stat. § 466.07, subd. 1. The county determined that it would not defend or indemnify Simpson because it deemed Simpson's allegedly tortious actions as alleged by J.O. not to have occurred while Simpson was acting in the performance of his duties. Simpson contends that section 466.07 is ambiguous and that we should cure the ambiguity by reading into it respondeat- superior principles and holding that an employee's actions need only be "foreseeable, related to and connected with acts otherwise within the scope of employment" to fit the acting -in- the - performance -of- duties 4 requirement. We decline to do so. If a statute is not ambiguous, its plain and ordinary meaning is conclusive. Minn. Stat. § 645.08 (2010). The clause "acting in the performance of the duties of the position" is not ambiguous. Its terms have a readily understandable, single meaning. The county needed only to determine whether Simpson was "acting" (as in, taking some action or engaging in some conduct) "in the performance of the duties of the position" (as in, while fulfilling some requirement and expectation of a corrections officer). Under the plain language, the county must defend and indemnify an employee's conduct that occurs while the employee is acting to satisfy his duties, not conduct that might merely be "foreseeable" but which has only some distant connection to the workplace. Before we can consider whether Simpson was acting in the performance of the duties of his position when he committed the acts alleged in 7.O.'s suit, we must also resolve the parties' dispute about the scope of the record on certiorari appeal. Simpson argues that we should look only to J.O.'s civil complaint to determine whether the county must defend and indemnify him. Because we are reviewing the county's decision, we must examine its decision in light of the information that was before it. See In re Expulsion of N.Y.B., 750 N.W.2d 318, 324 (Minn. App. 2008) (construing the scope of the record in school -board expulsion case as anything considered by the quasi-judicial school board either at the hearing or at its subsequent meeting). We will therefore consider all of the relevant facts in the record, including the exhibits and testimony received at the county's hearing. 5 The county found that Simpson's allegedly offending actions —his submitting the affidavit to the child - custody court, his making statements to his child's grandmother, and his telephoning J.O.'s probation officer —all occurred entirely outside of his duties as a probation officer. Without discussing why, we have previously characterized as a "finding" a district court's post -trial determination of whether a person was acting in the performance of the duties of his position under section 466.07. Indep. Sch. Dist. No. 404 v. Castor, 670 N.W.2d 758, 763 (Minn. App. 2003). The parties here do not directly address whether the county's determination was a factual finding or a legal holding or both, just as it does not appear that the question was at issue in Castor. We will therefore also treat the determination as a fact finding for the purposes of this appeal. We affirm quasi-judicial agency findings if they are supported by substantial evidence, Indep. Sch. Dist. No. 192 v. Minn. Dept. of Educ., 742 N.W.2d 713, 719 (Minn. App. 2007), review denied (Minn. Mar. 18, 2008), which is defined as "(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety," Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 464 (Minn. 2002). The finding here is supported by substantial evidence. The record supports the finding that Simpson's affidavit was submitted outside of his work hours and did not arise from his assigned duties. It related only to his personal child- custody dispute. We recognize that the record suggests that acquiring J.O.'s confidential medical information may have been part of a correctional officer's duties. 6 But J.0.'s complaint does not suggest any wrongdoing in nor allege any liability for Simpson's acquiring of the information; he alleges that Simpson is liable only for improperly disclosing that information during his child - custody proceedings. Simpson's telling the child's grandmother about J.O. also occurred outside his job duties. It happened at the grandmother's house and away from the workplace. And although Simpson's telling J.0.'s probation officer about his drinking alcohol might in theory be a sort of law-enforcement-information-sharing duty, in fact it was not related to Simpson's job duties for two reasons. First, J.O. was no longer an inmate; the record does not indicate that it is part of Simpson's job duties to monitor the conduct of former inmates. Simpson does not explain, and we cannot imagine, how a corrections officer's normal duties would tend to expose him to a former inmate's conditions of release or to his post- incarceration alleged probation violations. Probation officers monitor offenders after release or as an alternative to incarceration, but corrections officers generally • monitor offenders only during their incarceration. Second, nothing in the record suggests that county corrections officers are expected to make misconduct reports to probation officers whether or not the inmate has been released. The county's finding that Simpson's job duties do not include communications with the child's grandmother and with J.0.'s probation officer is well supported. We have found no legal error, unlawful procedure, or unreasonable finding in the county's decision not to defend and indemnify Simpson. His allegedly improper disclosure of and false statements about J.O. being entirely personal and beyond the 7 scope of his job duties, the public, through his public employer, has no obligation to defend or indemnify him for that conduct under section 466.07. Affirmed. 8 JARDINE ATTORNEYS AT LAW LOGAN & P.L.L.P. O'BRIEN Suite 100 8519 Eagle Point Boulevard May 10, 2011 Lake Elmo, MN 55042 Firm (651) 290 -6500 Fax (651) 223 -5070 E -Mail CITY OF OAK PARK HEIGHTS WoUsi'lolaw.com ATTN: ERIC JOHNSON www.jlolawcom CITY ADMINISTRATOR PO BOX 2007 STILLWATER MN 55082 -3007 John M. Kennedy, Jr.* Eugene J. Flick * Charles E. Gitlin * PRIVILEGED AND CONFIDENTIAL COMMUNICATION Pierce N. Regnier Mark A. Fonken PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP George W. xuehner AND WORK PRODUCT DOCTRINE Patti J. Skoglund Timothy S. Crom * Lawrence M. Rocheford James G. Golembeck * Re: 37024(872) Joseph E. Flynn Marlene S. Garvis * County of Washington vs. City of Oak Park Heights Thomas L. Cummings Leonard J. Schweich Jessica E. Schwie Dear Mr. Johnson: Thoma J Tice This case was before the Minnesota Court of Appeals for oral arguments on Tuesday, Matthew P Bangt * Elisa M. Hatlevi May 10, 2011, as you were previously advised. The three court panel consisted of Jason Justices Louise Dovre Bjorkman, Jill Flaskamp Halbrooks and Lawrence Collins. Darwin n S. . Williams W Mark K. Hellie Judge Collins is a retired District Court Judge from Winona County. He sits by Nancy M. Aboyan Daniel M. Gallatin Special Assignment to the Court of Appeals on numerous matters. George Kuprian, Vicki M P Go Michael P. Goodwin Assistant Washington County Attorney, argued on behalf of Washington County and M the County Attorney and another assistant were with him at the hearing. Jessica John R. O'Brien - Admitted in Wisconsin, emeritus Schwie, my partner and formerly a Clerk at the Minnesota Court of Appeals, argued Minnesota, retired on behalf of the City of Oak Park Heights. I was present with her. Gerald M. Linnihan - Retired Alan R. Vanasek - Retired It appears that Justice Bjorkman will perhaps be writing the opinion for the Court by Some members also admitted virtue of the fact that she had the most questions of any of the Judges. She appeared to practice law in Wisconsin *, North Dakota, South Dakota, to have about an equal number of questions to both sides. Judge Halbrooks only had and Iowa one or two questions. Interestingly, Judge Collins had only one question and that was Shannon Banaszewski to George Kuprian to whom he asked "Did you write the Brief?" to which George Administrator Kuprian answered affirmatively. I suspect Judge Collins just wanted to know who was writing a Brief containing references to Shakespeare and philosophers, etc. Donald M. Jardine (1915 -2005) Jerre F. Logan (1923 -1983) Equal Opportunity Employer • PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE Eric Johnson, Oak Park Heights City Administrator May 10, 2011 Page 2 We have absolutely no way of knowing how the Court will be ruling in this matter. The Court will be rendering a decision within ninety (90) days of May 10, 2011. All we can do is wait. We will forward a copy of the decision to you as soon as it is rendered. At that time, the party losing the appeal will have to make a decision whether they wish to petition the Minnesota Supreme Court for further review. The Supreme Court has complete discretion as to whether they would accept the appeal or reject it. We will keep you advised. Very truly yours, d _ J • "Iii ` 1 _ - i. & O'BRIEN, P.L.L.P. r` Pierre N. Regnier Direct Dial: (651) 290 -6563 PNR:slf Copy: Mark Rossow, LMCIT Claims (LMCIT Claim No: 11071183) MARK VIERLING, ESQ • ECKBERG LAMMERS BRIGGS WOLFF & VIERLING, PLLP 1809 NORTHWESTERN AVE — STE 110 STILLWATER MN 55082 -7521 JARDINE ATTORNEYS AT LAW LOGAN & PL.L.P. O'BRIEN Suite 100 8519 Eagle Point Boulevard March 24, 2011 Lake Elmo, MN 55042 Firm (651) 290 -6500 Fax (651) 223-5070 E-Mail CITY OF OAK PARK HEIGHTS 1lo1awj1olaw.com ATTN: ERIC JOHNSON Wwww.jlolaw.com CITY ADMINISTRATOR PO BOX 2007 STILLWATER MN 55082 -3007 John M. Kennedy, Jr. * Eugene J. Flick * Charles E. Gillin * PRIVILEGED AND CONFIDENTIAL COMMUNICATION Pierre N. Regnier Mark A. Fonken * PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP George . S g nd }er AND WORK PRODUCT DOCTRINE Timothy S. Crom * Lawrence M. Rocheford James G. Golembeck * Re: 37024(872) Joseph E. Flynn * Marlene S. Garvis * County of Washington vs. City of Oak Park Heights Thomas L. Cummings Leonard J. Schweich Jessica E. Schwie Dear Mr. Johnson: Susan S. Tice Thomas J. Misurek Enclosed for your information please find a copy of Washington County's Brief filed Matthew P. Bands * i response to our Appellate Brief. I am also enclosing a copy of the Reply Brief that Elisa M. Hatlevig p pp g Icy Y S' Jason A. Koch Darwin S. Williams we have served and filed. Mark K. Hellie Nancy M. Aboyan Daniel M. Gallatin We have been advised that this matter is set for oral argument at the Minnesota Vicki A. Hruby Michael P. Goodwin Judicial Center, 25 Reverend Dr. Martin Luther King, Jr., Boulevard, in St. Paul. It will occur in Courtroom 200 on Mav 10, 2011 at 10 :05 a.m. John R. O'Brien - Admitted in Wisconsin, emeritus Minnesota, retired The Judges that have been assigned to the case are Judge Natalie E. Hudson, Judge Gerald M. Linnihan - Retired Louise Dovre Bjorkman and Judge Jill Flaskamp Halbrooks. Alan R. Vanasek - Retired Some members also admitted After oral arguments take place, the Court then has ninety (90) days to render its to practice law in Wisconsin *, North Dakota, South Dakota, and Iowa decision in the matter. Shannon Banaszewski While you are not required to attend the oral arguments, you are certainly free to do Administrator so if you so desire. Donald M. Jardine (1915 -2005) Jerre F. Logan (1923 -1983) Equal Opportunity Employer r - - PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE Eric Johnson, Oak Park Heights City Administrator March 24, 2011 Page 2 If you have any questions, please feel free to contact me at any time. Very truly yours, JARD ► OGAN & O'BRIEN, P.L.L.P. ' Terre N. Regnier Direct Dial: (651) 290 -6563 PNR:s!f Enclosures Copy: Mark Rossow, LMCIT Claims (LMCIT Claim No: 11071183) Mark Vierling, Esq. APPELLATE COURT CASE NO: A11 -0067 STATE OF MINNESOTA IN COURT OF APPEALS County of Washington, Respondent, vs. City of Oak Park Heights, Appellant. APPELLANT'S REPLY BRIEF PETE ORPUT, COUNTY ATTORNEY JARDINE, LOGAN & O'BRIEN, P.L.L.P. WASHINGTON COUNTY, MN Pierre N. Regnier (A.R. #90232) George Kuprian (A.R. #147722) James G. Golembeck (A.R. #179620) 15015 62 "a Street North Jessica E. Schwie (A.R. #296880) P.O. Box 6 8519 Eagle Point Boulevard Stillwater, Mn 55082 Suite 100 (651) 430 -6115 Lake Elmo, MN 55042 -8630 (651) 290 -6500 Attorneys for Respondent Attorneys for Appellant TABLE OF CONTENTS ARGUMENT 1 I. AS AN ERROR - CORRECTING COURT, THIS COURT IS OBLIGATED TO APPLY THE LAW AND THE LAW ESTABLISHES THAT THE DISTRICT COURT ERRED IN FAILING TO DISMISS THE COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION 1 CONCLUSION 11 CERTIFICATION OF BRIEF LENGTH 12 TABLE OF AUTHORITIES Cases Anderson v. Federated Mut. Ins. Co., 465 N.W.2d 68 (Minn. App. 1991) 2 Bahr v. City of Litchfield, 420 N.W.2d 604 (Minn. 1998) 9 City of Crookston v. Crookston Water Works, P. & L. Co., 185 N.W. 380 (Minn. 1921) 3 City of Staples v. Minnesota Power and Light Co., 265 N.W. 58 (Minn. 1936) 3 Crown Cork and Seal Corp v. City of Lakeville, 313 N.W.2d 196 (Minn. 1981) 5 Dietz v. Dodge County, 487 N.W.2d 237 (Minn. 1992) 9 Dokmo v. Independent School District No. 11, 459 N.W.2d 671 (Minn. 1990) 8 Handicraft Block P 'Ship v. City of Minneapolis, 611 N.W.2d 16 (Minn. 2000) 1, 2, 7, 9, 11 Honn v. City of Coon Rapids, 313 N.W.2d 409 (Minn. 1981) 10 Keever v. City of Mankato, 129 N.W. 158 (Minn. 1910) 3 Mahnerd v. Canfield, 297 Minn. 148 (Minn. 1973) 9 McNaught v. City of James, 269 N.W. 897 (Minn. 193 6) 4 Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d 162 (Minn. 2006) 6 Micius v. St. Paul City Council, 524 N.W.2d 521 (Minn. App. 1994) 8 Naegle Outdoor Advertising Inc. v. Minneapolis Development Agency, 551 N.W.2d 235, 237 (Minn. App, 1996) 4 Neighborhood School Coalition v. Independent School Dist. No. 279, 484 N.W.2d 440 (Minn. App. 1992) 9 Neitzel v. County of Redwood, 521 N.W,2d 73 (Minn. App. 1994) 4, 5, 11 Oakman v. City ofEveleth, 203 N.W. 514 (Minn. 1925) 5, 8 Pierce v. Otter Tail County, 524 N.W.2d 308 (Minn. App, 1994) 9 Sloan v. City of Duluth, 259 N.W. 393 (Minn. 1935) 5 Tischer v. Hous. & Redev. Auth., 693 N.W.2d 426 (Minn. 2005) 1 Township of Honner v. Redwood County, 518 N.W.2d 639 (Minn. App. 1994) 8 Willis v. County of Sherburne, 555 N.W.2d 277 (Minn. 1996) 11 ii Wolner v. Mahaska Indistries, Inc., 325 N.W.2d 39 (Minn. 1982) 6 Youngstown Mines Corp. v. Prout, 266 Minn. 450, 124 N.W.2d 328 (1963) 6, 7, 9, 10 Statutes Minn. Stat. § 412.321 10 Minn. Stat. § 444.075 10 Minn. Stat. § 6.136 9, 10 Chapter Minn. Stat. Ch. 412 2 Minn. Stat. Ch. 444 2 Minn. Stat. Ch. 465 2 Minn. Stat. Ch. 471 2 iii ARGUMENT I. AS AN ERROR - CORRECTING COURT, THIS COURT IS OBLIGATED TO APPLY THE LAW AND THE LAW ESTABLISHES THAT THE DISTRICT COURT ERRED IN FAILING TO DISMISS THE COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION. Rather than rely on Socrates or Shakespeare for the defense of its position, the City of Oak Park Heights will rely on the law. Respondent Washington County does not dispute that: 1, Washington County's suit challenges the October 13, 2009 City of Oak Park Heights City Council decision to deny the County's request for a refund. 1 Absent statute vesting district court jurisdiction, claims attacking a quasi - judicial decision of a governmental entity are to be heard via writ of certiorari. Tischer v. Hous. & Redev. Auth., 693 N.W.2d 426, 428 (Minn. 2005). 3. The Handicraft test is the test for determining whether a decision rendered by a governmental entity is quasi-judicial. See Handicraft Block P 'Ship v. City of Minneapolis, 611 N.W.2d 16, 20 (Minn. 2000). 4. Application of the Handicraft test to the facts of this case dictates that the October 13, 2009 decision by the City Council to deny Washington County's appeal was quasi - judicial in nature because it was a binding decision that followed investigation into a set of facts, application of facts to a proscribed standard, and consideration of arguments by opposing parties. 5. There is no statute providing for district court review of a municipal decision to deny an appeal seeking refund of sewer and water charges. See Resp. Brief p. 14 citing 1 Minn. Stat. Ch. 444, 412, 465, 471 (enumerating municipal powers, including the provision of sewer and water services and ability to charge for the same, but lacking statutory authority for district court review and jurisdiction). Because Respondent did not refute any of the foregoing facts or law, Appellant is entitled to reversal of the district court's decision. What Respondent does is to argue to this error - correcting court that it should create an exception to the Handicraft test. Washington County proffers two possible exceptions that would have the law read as follows: 1. decisions made by a governmental entity that would otherwise be held to be quasi-judicial in nature under Handicraft are not entitled to such designation if rendered in cases where the underlying conduct at issue is proprietary in nature. Or, in the alternative, 2. decisions made by a governmental entity that would otherwise be held to be quasi-judicial in nature under Handicraft are not entitled to such designation, if there is no statutory authority allowing the entity to make the challenged quasi-judicial decision. First, this court is an error - correcting court. As such, this court is bound to apply the existing law; it is not vested with the authority to create new law where there is existing law. Anderson v. Federated Mut. Ins. Co., 465 N.W.2d 68, 75 (Minn. App. 1991)(citation and quotations omitted). Second, existing case law does not support Washington County's argument; and, in fact, contradicts it. A. There is no proprietary exception to the quasi - judicial test. Washington County cites the following cases in support of its proprietary exception 2 argument: 1. The City of Crookston v. Crookston Water Works, P. & L. Co., 185 N.W. 380 (Minn. 1921). In Crookston, the city sold the operation of a water plant to the defendant. The city had a dispute with the defendant over the terms of the franchise agreement between them. The city entered into a settlement agreement with the defendant, but subsequently brought suit claiming that the settlement agreement was invalid. The court dismissed the city's claim, holding that it had the capacity to contract and was bound by the contract. The case did not involve an appeal of sewer and water charges, nor the issue of whether the city council was acting in a quasi - judicial manner. 2. Keever v. City of Mankato, 129 N.W. 158 (Minn. 1910). Keever involved a wrongful death action where it was alleged that a user of the city water system contracted typhoid fever and died as a consequence of the city negligently allowing pollution of the water system. The question was whether the wrongful death claim was barred by immunity (at that time sovereign immunity). The case did not involve an appeal to the city council, nor the issue of whether the city council was acting in a quasi-judicial manner. 3. City of Staples v. Minnesota Power and Light Co., 265 N.W. 58, 59 (Minn. 1936). In this case, the city contracted with the defendant for the purchase of electrical power. The city brought suit seeking to have the contract declared null and void on the basis that it was without the authority to enter into the contract. The court dismissed the suit on the basis that the city's claim was barred by laches and equitable estoppel. The case did not involve an appeal of sewer and water charges, nor the issue of whether the city council was acting in a quasi-judicial manner. 3 4. McNaught v. City of James, 269 N.W. 897 (Minn. 1936). The city contracted with Northern States Power for the purchase of electrical power. A resident brought suit seeking to have the contract declared null and void on the basis that the city did not have the authority to enter into such a contract without submitting the issue to the electorate. The court dismissed the suit on the basis that the city had the authority to enter into the contract without submitting the issue to the electorate. The case did not involve an appeal of sewer and water charges, nor the issue of whether the city council was acting in a quasi-judicial manner. Respondent's reliance upon the foregoing cases is without merit. Case law that does not address the issue of whether writ of certiorari is the proper method of review may not be relied upon in arguing that certiorari is not the proper method of review. Naegle Outdoor Advertising Inc. v. Minneapolis Development Agency, 551 N.W.2d 235, 237 (Minn. App. 1996) , (citing Neitzel v. County of Redwood, 521 N.W.2d 73, 76 fn. 1 (Minn. App. 1994), review denied (Minn. October 27, 1994)). Because the foregoing cases cited by Washington County do not involve challenges to a governmental decision, determination of whether the decision was quasi- judicial in nature, and determination of whether certiorari review is proper, these cases are not dispositive in this matter and cannot be relied upon to create a p er P proprietary exception to the quasi-judicial test. As discussed below, two of the cases cited by Washington County do involve challenges to charges imposed upon users of a sewer and water system, but they do not involve an attack on a city council decision following an appeal, nor discuss whether such decision was quasi-judicial in nature. 4 1. Crown Cork and Seal Corp v. City of Lakeville, 313 N.W.2d 196 (Minn. 1981). In this case, the plaintiff purchased property in the city. Thereafter, the city levied a charge for connection to its sewage and water system. The plaintiff challenged the city's authority to levy such a charge. The parties did not argue, nor did the court address the issue of, whether the city was acting in a quasi-judicial manner, nor whether review was limited to certiorari review. 2. Sloan v. City of Duluth, 259 N.W. 393 (Minn. 1935). Sloan involved an unjust enrichment claim brought by the plaintiff who was challenging an assessment and seeking refund of overcharged water services. The plaintiff appears to have directly filed suit without appealing first to the city. There is no discussion in the case as to whether (1) there was an administrative appeal process, (2) the plaintiff had exhausted his administrative remedies, (3) if he used an appeal process, whether the city was acting in a quasi-judicial manner, nor (4) whether review was limited to certiorari review. Nor did the court rule on any of these issues. Because neither Sloan, nor Crown Cork and Seal address whether a municipal decision was quasi-judicial in nature, nor whether the claims should have been reviewed by writ of certiorari, the cases may not be relied upon to argue that certiorari is not the proper method of review. Neitzel, 521 N.W.2d at 76 fn. 1. Washington County does cite to a case that involves consideration of whether a municipal decision was quasi - judicial, but that case does not address whether writ of certiorari was the proper method of review. The case is Oakman v. City of Eveleth, 203 N.W. 514 (Minn. 1925). In this case, a separate lawsuit had been brought against nine former city officials. A taxpayer brought a mandamus action seeking a court order, ordering 5 the city to either pass an ordinance settling the lawsuit or placing the issue on a ballot. The court dismissed the mandamus action holding that a city's decision to settle a lawsuit is discretionary and quasi-judicial in nature and therefore mandamus could not lie. See also Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d 162, 178 (Minn. 2006)(mandamus is not the proper method of challenging discretionary decisions). Therefore, while Oakman is of assistance in determining whether the municipal decision here was quasi-judicial in nature, it is not specifically helpful in determining whether the proper method of review is writ of certiorari. The only case cited by Washington County in which the issues involved (1) consideration of whether a decision of a governmental body was a quasi-judicial decision, (2) consideration of whether the proper method of review of the governmental decision was via writ of certiorari, and (3) a request for refund, is Youngstown Mines Corp. v. Prout, 266 Minn. 450, 124 N.W.2d 328 (1963). As detailed in Appellant's moving brief, the court in Youngstown held that the proper method for review of a governmental decision to deny a request for a refund, absent statute providing for district court jurisdiction, is via writ of certiorari. Because the parties and the court in Youngstown directly addressed the issues of whether (1) a decision of a governmental entity to deny a claim for a refund is quasi-judicial, and (2) writ of certiorari is the proper method of review for such decision, this court is bound to follow the principles set forth in Youngstown. Wolner v. Mahaska Indistries, Inc., 325 N.W.2d 39, 42 (Minn. 1982) (lower courts are bound by the existing law as set forth in Minnesota Supreme Court decisions). Applying Youngstown, it is clear that Washington County's argument for a proprietary exception to the quasi-judicial test is without merit. The court in Youngstown 6 reached its conclusion that the decision that was being attacked was quasi-judicial in nature even though it specifically found the underlying conduct to be proprietary. The focus of the jurisdictional inquiry is not the nature of the underlying conduct, but the nature of the decision that is being attacked. Youngstown, 266 Minn. at 482 -483; Handicraft, 611 N.W.2d at 20. Accordingly, Washington County's request for a proprietary exception to the quasi - judicial test is without merit. Because Washington County has not challenged the fact that application of the Handicraft test results in a conclusion that the October 13, 2009 decision of City Council was quasi-judicial; and, because there is no proprietary exception to the Handicraft test, the exclusive method of review and remedy for Washington County was via writ of certiorari. Accordingly, Appellant is entitled to reversal of the district court order. B. There is no exception to the Handicraft test for instances where there is no statute granting authority, or imposing a duty, to render a quasi - judicial decision. Washington County argues, alternatively, that the City Council's decision here cannot be held to be quasi-judicial absent specific authority allowing it, and /or imposing upon it a duty, to make a quasi-judicial decision. In essence, the County argues that before a governmental body may act in a quasi-judicial manner, the legislature must pass a statute imposing a duty upon it to act in a quasi-judicial manner. Washington County, however, misconstrues the law. For this proposition, the County cites Youngstown. The court in Youngstown, however, makes no such finding. Id., 124 N.W.2d at 334. In fact, a proper reading of the 7 case law, including those cases cited by Washington County undermines the County's argument. Quasi-judicial powers are not a creature of statute. A quasi judicial power is one imposed upon an officer or a board involving the exercise of discretion, judicial in its nature, in connection with, and as incidental to, the administration of matters assigned or entrusted to such officer or board. A quasi judicial duty is one lying in the judgment or discretion of an officer other than a 'judicial officer,' and the function is termed 'quasi judicial' when such an officer is charged with looking into and acting upon facts not in a way which the law specifically directs, but after a discretion, in its nature judicial; quasi judicial functions are those which lie midway between the judicial and ministerial ones." Oakman, 163 Minn. at 108. In other words, the power to act in a quasi - judicial manner does not have to be statutorily bestowed upon a municipality, or other governmental entity, it may occur incidental to government operations. It occurs on those occasions, where a governmental entity, incidental to its operations, conducts an investigation into a disputed manner, applies a statute, regulation, ordinance, handbook, protocol or other rule, and reaches a conclusion that without further review would leave a person without remedy. For example, in all of the following cases, the decision under attack was deemed to be quasi-judicial even though the decision was merely incidental to the entity's operations: 1. Settlement of litigation. Oakman, 163 Minn. at 108. 2. Refusal to reinstate a teacher. Dokmo v. Independent School District No. 11, 459 N.W.2d 671, 676 (Minn. 1990). 3. Alteration of township boundaries. Township of Honner v. Redwood County, 518 N.W.2d 639, 641 (Minn. App. 1994) 4. Denial of a liquor license application. Micius v. St. Paul City Council, 524 N.W.2d 521 (Minn. App. 1994). 8 5. Denial of solid waste permit application. Pierce v. Otter Tail County, 524 N.W.2d 308 (Minn. App. 1994), review denied (Minn. Feb. 3, 1995). 6. Termination of an employee. Dietz v. Dodge County, 487 N.W.2d 237 (Minn. 1992). 7. Designation of a building for heritage preservation. Handicraft, 611 N.W.2d at 20. 8. Rescission of a civil service exam. Mahnerd v. Canfield, 297 Minn. 148, 151 (Minn. 1973). 9. Filling of an employment position. Bahr v. City of Litchfield, 420 N.W.2d 604 (Minn. 1998). 10. Determination of attendance boundaries. Neighborhood School Coalition v. Independent School Dist. No. 279, 484 N.W.2d 440, 441 (Minn. App. 1992). In each of the foregoing cases, as in Youngstown, the determination of whether a governmental decision was quasi-judicial was not governed by whether a statute imposed a duty upon, or granted authority to, the entity to make a quasi- judicial decision. Rather, the inquiry was focused on the nature of decision made. Further, in making the jurisdictional determination, the only statutory question addressed by the court in those cases was whether there was a statute that provided for district court review of the quasi-judicial decision under attack. For example, in Youngstown, Minn. Stat. § 6.136 (now Minn. Stat. § 16A.48) created a process for filing refund claims and having those heard by state agencies, but there was no statute that provided for district court review of the decision made by the agency head should the refund claim be denied. Youngstown, 124 N.W.2d at 334. Because there was no statute providing 9 for district court review of the quasi-judicial decision in Youngstown, nor in any of the ten cases cited above, the exclusive method for review of the quasi-judicial decisions under attack was via writ of certiorari. Here, there is no dispute that the City has been granted the specific authority to provide sewer and water services. Minn. Stat. §§ 412.321, 444.075. The City's ordinance and appeal policy, like Minn. Stat. § 6.136 in Youngstown, provided the process for seeking a refund. Respondent admits that the City is not precluded from implementing ordinances and policies related to the provision of sewer and water services. Resp. Brief p. 15. What Respondent claims, however, is that the City's appeal policy is too broad in that it should only be considered "a protocol to settle bill disputes ", Resp. Brief p, 16, and it should not "wrest from the [c]ourts their original jurisdiction over the claims." Resp. Brief p. 17. Washington County is partially correct; the fault with this argument, however, is that Washington County is confusing two separate and distinct concepts. It is correct to say that the City's ordinance and appeal process set the standard for settling the dispute here. But it is not correct to say that the ordinance and appeal policy eliminated judicial review and jurisdiction. The ordinance and appeal process adopted by the City of Oak Park Heights serve as the measure for determining whether the City made an arbitrary and capricious decision when it denied the refund appeal. Honn v. City of Coon Rapids, 313 N.W.2d 409, 417 (Minn. 198I)(in order to determine whether city rendered an erroneous quasi-judicial decision, the court reviewed in that case the applicable rule —the city's zoning ordinance). The determination of jurisdiction and proper method for review of that decision is, however, 10 found in statute and case law. See e.g. Neitzel, 521 N.W.2d at 76 (noting that there is a statute providing for district court review of quasi-judicial zoning decisions made by municipalities, but no similar statute for quasi-judicial zoning decisions made by counties, and, thus, allowing for review only by writ of certiorari). For this same reason, the County's argument that it would be deprived of a remedy if it were forced to litigate this case before the Court of Appeals instead of the district court (or even the conciliation court if a lower amount in controversy had been at issue) is without merit. In Willis v. County of Sherburne, 555 N.W.2d 277, 282 fn. 3 (Minn. 1996), the court specifically rejected an argument that limiting review to writ of certiorari deprived the claimant of a remedy. Review by writ of certiorari does not deprive a claimant of a remedy, it merely "specifies the appropriate remedy ". Id. The City of Oak Park Heights did nothing to deprive Washington County of a judicial remedy. Washington County always had available to it a remedy for the claimed erroneous denial of its refund —via writ of certiorari. The County, however, chose the wrong remedy and the City is entitled to reversal of the district court order. CONCLUSION N N It is undisputed that under Handicraft the October 13, 2009 decision of the City of Oak Park Heights' City Council was quasi-judicial. Further, it is undisputed that there is no statute rovidin for district court review of the quasi-judicial decision rendered by the City g q J Y IS' in this case. There is no recognized exception, rendering the City's decision anything other than g p � g Y Y g quasi-judicial. There is no proprietary exception to the quasi-judicial test, nor does there have to be a statute vesting authority in the City to make the quasi-judicial decision at issue. 11 Accordingly, review by writ of certiorari was the exclusive method for review and the City is entitled to reversal of the district order and dismissal of the complaint with prejudice. et-4 L AN & O'BRIEN P.L.L.P. DATED: JARDINE, LOGAN , Pierre * R ier (A.R. #90232) James G. Golembeck (A.R. #17'620) Jessica E. Schwie (A.R. #296880) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8630 (651) 290 -6500 Attorneys for Appellant CERTIFICATION OF BRIEF LENGTH I hereby certify that this Brief conforms to the requirements of Minn. R. Civ. App. P. 132.01, subds. 1 and 3, for a Brief produced with a proportional font. The length of the Brief is 3,199 words. This Brief was prepared using Microsoft Word 2003. S44 DATED: JARDINE, LOGAN & O'BRIEN, P.L.L.P. Pierre N. Regnier (A.R. # -1232) James G. Golembeck (A.R. #179620) Jessica E. Schwie (A.R. #296880) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8630 (651) 290 -6500 Attorneys for Appellant 12 - iji ::•I� .:rr ` i • `rl'E•. `�- �il r•.4.� t� y r+iah:� « j.r -.y. .i =• t� Y v h w''L:. •� '�f �'. - Vii• ¢: a ��`: r .t St• 1 -.+ .,> ' i'• 't� r �' t, •`�' :t� - �a. {' : • �. 4' \' - ,� J '•1:, 1 Sr '1 t •✓�F .�: , i �. ii• ,�•� rf' _ ,,, �, .� .�... _ v; r , r.. /, y � ••1•. x .:��•- ♦• :�, ▪ . l= :�q �'d ^ 2 �y �'�•" �r �f ti �> _ - -. •�- > �' - �• � : 1 a{ ..t .t r.. r • : n iK: )� a '.-Z' ;S. 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STATE1vfENT (?F TAE FA.�T'S z ARGUIulEI'�1TS S I. �'NTRGDUC'IIQN .S II. TF�E WRiT f�F GERTIORAIti'S EvTENUED PT.I�.PC7SE IS 'T�! I2E'VIE� CIQVERNMENTAL A�CTItJNS ANI� WILD. NE�'J' ISSUE TG) REV'TEW A PRC?I'RIETAR�' UE�GISIt�N 5 I � III. TFIE .ACT�4N QF APP��:,LANT'S Gt T'Y �Oi.dNCR. '� � rrr r�E�rYY�v� R�sPOr�ENT RE�B�SE�EN•r �o� T� ��rE�t�I�A.�.G� wA� N�a�r A �vAS���m��zAL r�EC�S�ozv � � �� A.. I�NLIRE APPELLANT' S I�ECISI(.�1�, TI3E ACTIC��N ITT Y'C1t11�T+�,S7'Ut3� WAS MADEE PI.T1ZStTAN'I' T� ST'A't'I�TE .: X 1 B. T`I�E L.E�.,rI�LATIJREE HAS PRt:�V�EI� AI'PELLAN`I` �O ' S':I',ATUTORY AUT t�RtT�'' TC"? ENTF..R.TAIN W'ATE£�. BBL n�s�vTES AS A �u�.�z�:n��c�AL �aI�Y . �4 IV. APPELLANT'S T.J"I'ILITY BILL APPEAL Pa�.I�Y IS ...... _._ .. _.. .......�..,...�5 �REEL:'Y' A PI�.QTQ�GL• �'t} SE'1'.EZE C�,AI�3 ... . p��?R.'I`{), T3�FR,I�TG, CSR AFTER LITiGATi(3T1 AN�3 ARISES FR�JM .A CITY S P4WER. TC3 SCJE 4E. -BE Si.TE� ...1 S '� V. ARTICLE VI, SECTItlN 3 t�F T�E� ��:1dNES(?TA CQNS'J'IT`iJTiOl'+I IS TAE At3Tk�If�J�iTY n�'Vk;STINC � �IST�ICT C�tJRT WI"€� QRxC��I�'AL JURISI�C'�QN . . O�EI�.,RESP�?I�II3ENT'S SUIT ,17 �t�NCL�JSInl�i� .� fl . GER.TIF�GATION �3F BI�F .�,,EN('rTH � ..22 v ;: , }'� .• is �. , ,�: r � `T,�LE QE ,t�.CJT��I�`I'IES . i.� . :�, :. ;'. IY�I.NNE�(3TA STATE Cl��I�TIT:�JT�,��i�Nr, ' - t�� �1�Tzx�z�esota S #ate Canstitutibn, Art7icle I, Se�taian 8 1$ 1VIi�.nnesa#a State Constltuticsu, Artfcle'V�, Section 3....... ..12,19 �, .;. I�it�n. Stat..§ �.�36 (an�v S�ctior� 16A.4�} i� Mir�nesosa. S#�tutcs Chapter � � � .I fl Mi�esa#a �ta�tute� Chapter4l�� .2,1� l�fru�. Stat. � 4I2.2I 1. 16 Nlfnn. Stat.. 41�.�41 .. .... 17 Sinn. Sf�t,. § 41.2. 7 i l.� j �in�esot�. ��.tutc� Chapter 444 2, 14, T fi y � A�nneso�. Statutes Chap�cers 4�5 az�rl �7 I .. � � 11�ittn. �ta�. § �71.I�3 ... ltd ,� } t.�1.�E1�t3T�i �2E� �CiTIR. �ityofCrrsol�tar� v. C'rool�sto� Waterworks, I85I�1.�'t�t. ��� (N.[ii�.1��1) ... ..........1,14 �z� af�loorFier�d v. Minr�..t�ub. �1'ti ?fti�� Camm'rx, ��� �i.V►T.2d 8�� �1Viinn.l3l��4).. 1Q �it� afSt`a,�les v Minnesota �'awer anzl.�dght C ©,, �b� N.�tN. 58 �viinn.• 193 } .. .� drown �'a�t�k•a�d SeaF �'orp, v, City of,�a villa, 3 �� N`.�V.�d .19� �in�.. X�BIj .14 • .�3i�tz v. I3QZlga Ctiuxti,�, �4�`d I�1',�gV'.��. ��'7 Sian, t'���) � Dokmo v ,�n�lep�r�den�'.�cF�oal.l7is� �o. .l F, A�S� N,'�.�.� �i�' 1 �►'�nu. � 99fI). , .. .� . 'aruFi�ra,,� .�looTe F'Sh %� �. pity a, f tt�linn�apo�i�, �� 1 N.W.�d 16 (�. 2004�j..� �,1Q,11 ��,1 S F.Falm6��rg�: �+�1»tberg, ��8 N':�.�.d. �ZQ {Min,. �9��j 1�8, x�, �:Q .�onn v. �xiy o,,�Caon ,Rag�ic�, .� 1 � I�.VJ:2d. �0� (.tY:�inn� � �� f j I t� �l.�dzr�scan v � %ty of1l�Iirrnez�,�oli�, �}5 N.�. 4(lfi � 19�•Q) 6 _ ....2 � 7 'f � 1 � .���v�rv. �1 r� .A�ankato, �2"��F.t�. ISM in�.I��t� ....................... ,�, > .7'� � j• ..�. . .�u�trl v, Yfllag� a,�"�`rdnc�torz, 8�5 N,W,��d ��'F (Msnx�r. l��'Fj � 1`� ��rr�ron w Yillc�� of '�'hisk�o�r :,1741`�.W, 924 (��inn. � � 1.�) 1 `� .1I���rth v. Harrr�,l C'vrn�er�riztdvn ��1, ��t� N.W,�d ��� (I�inn.l9�b� 7, 1Q 1t�C.�f v..tld��ro�olita� �`a�a� oil, S87 N.�.Zd 83� .(,t�nz�. I �99j � . � ,�Ic�o�rva» v. ��r Scrv�tor� `s �utFzeran �`hur�ch, �Z"F I�.�.2d �3Q {riss. ��9�) .� ,1��clVizught x pity a��`t..Tarrre.s, 2.69 N.�. &�7 (�vlaxul, I.�3�� 1� �i << :� }. ;: xi�; '�� r3 +: �• :��: � Dakman v. pity of `Evedeth, 2t�3 N.W. S lq (Minn. I92S) I6 ''�'� Cldenthal v. inn. Con , v seventh D Advent %sts, b�9 N.W.2d 426 .�;�. .� .f a}' Minn. X002} 2 Dld Secand plat. BanlCOfr4urora a Town a,�'l�fiddletvwn, 69 I�T.'VV'. 4710. I S9fi). ....1? heed a City raf Anoka, 88 N.W. }81(Mi�u1.1902} � S, � ', ` Reterson v. City of inneapalis,1181�. 223 �Minn.1962) 7 ..�_� 3'loan v. City o}'.l�ulutla, 259 IJ.�'. 393 {M1�n.19�5) 7 `' S'tate ex red. t�'ischstadt �u Olsan, 57 N.�. 477 {ri�inn.1894} ..6 - = Tischer v �'aus. and �ea'PVelopmen�Autliarlty, 69� h1.W.2d.42b (Mires. 24Q5). 10,19 Ytllage of `�rooklyn �ent�r v..Rippen, 96 TT.V�.2d 585 �Yv1'.inn, I953).. .16 l�Y�llis v. Ctrr�stty c�f�fierburne, SSA I*i.�T,2d.277 (Ma.�w..199c�) ...15 Yl�ul v. Tax �aurt o A eats 2$ 8 N. W, Z 221 . r 979 . d 2� 18 .� ,� I�.1' C ) Yom stawn one �`a� , v. Prout 124 N.W.2d 328 M1n�n. 1963 ...6, 7 11 I2 13 I4 i� � � � E e r r � ! s s � f �: �urIlV1v��Q�a. �ouxr c�a� ���.,s p . <j J d � .Manteuffe! v �G'Y.ty o„l`'lYarth,5t. �'�rz�l, 538 N' <W:2d 7�7 �Ivlinn..A.pp. 1915 20 �; ,.. t�'�z . .uses v. Mae,�erlar� 2 Bt�rt,1411� �C.�. I7�0} � 1. C3h�v�rr� a Glty o,�`'.Indelre�derrae, 44,5 U.�. 6�2 (19�fl) 1.'� i �. -� �.�.i ;' 4 .. �� - STATEMENT QF LEC AL ISSITE L WAS THE T3ISTRIG"I` CUUR'I` Ct�RRECT IN ITS I�E'i`EIa�NI�NATIQI�I T�iAT xT IIAD S�3BJECT MATTER. 3UTtISIyIC'I'��N tl�l�. SPUI�T#3ENT'� UNJUST ENRIC�EN'i' �. ACTIOI'�? �� The di ` t ca c rr a 't s b'e � ' di tYOn aver}des ondent's .� . stna urt t� eetly h ld f had u � ct mater juris c p � • a . 4 unjust ernxchrnent action. i ; p. � �f.� • . 1 . i STATEMENT '4F TAE CASE ��,' `'; This interlocuto.� appeal has iii genesis h�. Appellant's failed attempt to usurp the distract c�uxt's ,jurisdiction over Respondent's unjust enrichment aetson. Tha Appell�t � a�sentially demsnds the district cawrt yield to Appetiant'� eel f deen~ed utility hill appeal �� paixcy ita eax�stitutional prexagative to er�xertain �vh�t is a matter in assumpsit. Appellant ;� ar�,ves that the City of Cak Park I�ieight� City CaunciPs deGi�i�an ta.deny Respondent's r'�quested reixr�bursement �f� 1..14,004 in a�ter�l�arges fr�r sewn and v�ater sexviees was quasi ' judicial in nature, and, therefore, �teapax�dent is lhni�d to certinra� revx�r a� the City Goun�il's derision. The dYStrie� court did n ©� accept Appellant ;s theoretical �bstrnati��rn end . held the City Cncancil's deei�siori. was rendered inn 1'u�cthertu7.Ce of its proprietary xe�poz�sibility. �3 'I�erel"b�C, .Appellant's ae�to�n was nat ��ove�nentnl and a f4rtrari not a quasY jt�dzcial .; P . . -�.► '� decision. �isfixict CourC i�i�de� �hereinal�er I�.C.O.�, Fiz�din�s #1 I,.t�.3 -7. In articulating its �. �. re�saning fax its dismissni a� Appellant's �zxntxc�n, d'ne district cc�x�rt determined that the Appellant `zits pr- aviding grater.. ,acts hx its proprie#.�.ry capaQity," �cttin� to Gtz� r�,�'�rt�aks u. ��aoksso� l�otarwar,�, 185 N.V . �S� �h�I.inn. 19�i }end, thus, is �snly a+Gaorded °`...tbe ,j 1 �`�i i '� ,; � • ',� i. � r,: f1 • +, ��� �� sstn� rights...as private ec�rporations, " cuing to Keever v. Caty �,f.t�ankata, I291V,"U�T. I38 ..> �� ` �Iiun. I3ifl�. B.C.U., F�tndi�ng #I 1, A..6r7. S 'The Respondent cancedes interlaeutazy app�s�, cif Apgell�t's jurisdictiar�� clai�i i� :� i :, - p�perly before this Court,1l�cGvwr�rt v. Lour Scrvt�ar's Lutheran Church, S�7 N.W.2d $3E?, $�� -833 (��nn, i995)t and, inasmuch as the appal raises the specter a� subject matter �� jurisdiction, xt is are issue try ire reviewed de novo. C7den#hAl v..�ir�r:. Conf, �f �'eventh .L ay �, �. °y� �4duentisrs, X49 N.VV.2d 4��, 434 {Minn.. 20fl2 }. K, •:: i - STATE1Vi1�NT Q�"T �A+trTS ', j .•. There is little c�uuaxce� with the �aetual prelude to Appellant's ch�llex��e t�f the district ac�urt's sub,�eat mattez� juxisdiatiot� t�ver this matter, i£ the re is' �. t'actual v i�nce in the ,�orisdictian�l aspect o��' thls suit, it �s i:n #�t� zan�� ring. The AppelX�nt i� � pc�liticat s�bdi�visian cif rl.�.e State c�.f NIirmesvta, and rnoxe . specifically a statutory �xty under the �uspicea c�� ivZiunesota Statutes Glue 412. Tlac �� Appellant i� �i+� owner and operatux cif a: rnunicipnl water ands it�ry saw�r system az�d is � . t sarnationed to �azxy on this activity by l�innesata Sta#utes chapter 44�. A.�7 -32. - The �.�spoz�d�nt is orie a� App�ltarit's sew�x and water s�rviae cus�r�a�s. A.1 �, � . �� In Fe�►xuaz y, �i?0��, wbil� p�rf"arn.� an a�ucllt i�a rther�aa+� of a chan,�e in the sates fi�� � , the l p4ttdsx�t c�is�t���ed �zat during tk�e pe�niad Ja�.u�y X; 2005 tc► ;�uue 30, 2fl(l�, the Appellaut bad eha��d ��spande�tt fvx appraxlm��ely twen� {24) rx� Ilion gallons of � � watex which �e Appel�nt had not prow %ded, x�sult�.n� iuz an ovei�chaxga to sponder�t th�.t y ,� eras a "litde north" alb an�htuur�dre� axteen tbausam� {$ l l.�,t}�0} datla+�s. �'esdlass tc� say ��� tr � >� _: - ,,;' .t'�: .s;: �:; Respondent made #�zc overchaarge known to the City. . ^;;;, .f y; �t Parley arn4ngst City and County staff members Gancerning the overcharge was had but to no avail. A,18- 26.'fa Izring negotiations to a close, the City A.dtninistrator suggested Y1�e Respondent pta� its claim befflre the City Cauucit. Under .A.ppeliaut's internal utility bill sppeat policy �Zerexu�„l��r the utility bill policy }, tk�e pity Council �s �ppeliant's arbiter Qf � , � ;� 3ast.resort. A.S4. Uov� ever, it xs important to note for future reference that under the utility . :� ,. �� . , bill policy campro�ise may be dad at the staff �vel, and tine City C ©until need not be ix�volv�d Yn the settl�cnent. Although it was evzt�enf dam tfie tenor ofnegatiativns at ttie sfia�' fi 1eve1 tt�t appearing before the pity Council ��►ould be �w exercise in futili� the R.�pvndant 3' neverfik��;less acceded to t�.e prornptings of �iCy s#at� and presented its claim to �i� pity t . �vurtcf 2. A. I 1 � I �. 'r x. 'fhe 1�.esponden #'s requ+�st fbr an accountx� went before t�h� Cii�► Council aC its .; • Sapte��r 8, 2i till rc�ular�y scheduled meeting. A.14 -T S, It is iustructiv�`#�s �zote, in passing, that althtaugh .�.ppellsnt poxtxays floe Cixy council's decision making proc±�ss in this mattex as i +�ua.�i�,judic al tkr+e �genc� no�.e�d the R+��poadent's p�ese�tatxon as new �uszness rather than public �ea�n�, A.I��1S, sam �v�xat b�tyiug A.p�aeiisnt's coate o�. tea# floe Council was � satin$ as a fact finder. A decided lack a�d�scussic�n among tho eounci� rr��rnbars an+d staff { �I, � aver �� xnaiter, wv�ch is re�feGt gin. tk�e m r�ut�s, adds cre�ea�.ce tv t�►is u�Iusxou. A. l.k� 1 S. .AZthougb: the City Attorney did suggest "�.� �aut�cil could deliberate on e rx�atter i�they :� �e u � h� ' arion. wish the sr�inutes cl��r ix�d%�te the council. me�xabers slid riot t$ke him vn s u�vtt > �y k A..15. (It is preswned tie cot3z��il members �fid�n4t �tiscuss th�.miatter outside tine confncS of I�� :�. � :�. - t. .�'�, ,� � , . i =, the public meeting as such discourse would violate the strictures a�'the Minnesota t3pen �� Meeting Law). !: After ruminating on the matter, the council chose to hold over until its {�ctober 13, � 20a9 meetsng any decision on Respondent's claim at which time the pity Council rendered its decision re,�eeting Respondent's request for reimi�urs+ement. A.� 7. �`he Council's- denial � . . eras rnernorial�ed �n Resolution #f}9 Q�39..A.1.8 -��. After re+�eiving Appellant's afo �mentianed resolution, the R.espondertt filed an original unjust enrichment anion in the district court. A, 4153. � answer to the complaint, the Appellant, utter alarr,. interposed a defec3se of lack Qfsubject �natter�urisdictic�n, averring that tl�e pity Cc�tmoil's deeisidn den3�ng �tespanden #'s reimbursement claim was quasi - I judicial in uat�re; and, thez�e�ore, appe�i o�'the Cacancii's decision must be had ox� writ of � certir�rari t�n the Court a� A.ppeals. The Appellant i�u�thered this t3c�Lian vie a motion for summary�judg�nent which �� district cc�urt denied itt a �Ic�vember4, �f1I U �rder..A.� -�', 'f'k�� � �i�.y .appeals from tlYat order. � '�� �pander�� �Is�+ rn�ed fir snmmar� judgrnenty oorrtendi�xg there was an absence 1 �. n£rnateriai facts in dispute. ��' t1n� sa�rte order, #fie district caurk �oYra�d there �e� issues of" . material foot present regardi�xg tfie hunt Qf �vexchargc snd denied �.espdn�e��t's motion �; �- 1'ar suanzn�ey jurlgrCaent. 'The £tesp�ndeut has opted iiot tea pracsed pursuant tea Rule 146 of the Mu�rxes+ Mules af'� A►ppe�late proeed�s tc� abtazn �rerne�av o� its der�ta3. �f s nmary ju�gme�;t. 1 �. . >. . �, 3 f' i. 4 �. a :.�� . �:f q ;� �� iii' ? �h ' ' � � .� %� �•' . ARGU��NTS '�_ :; ; •,: I. IPITR.#3IIUCTI+OI'� .; �. Appellan #*s cantinued quixotic tilting against the propasiti�an that R.espondent's unjust cnriciuncnt action :s prapez�ly before the district court can an original action is affirmation that 4 fantasy 1cnQws no Iiznit andbrings to mind the wards a�ths �re�k philosaph�r i�emosther�cs . � ' who prased #hat "�m� an is his awn oasicst dupe, far what he wishes to be ixuc he generaliy � . beti�ves tt�. b� �.e," In the ease of A�rpailant, it wisi�e� to believe the i�.vcterate pnncipie 4t' . grupr'�c #ary capacity with attendant cicvoluiian o�gavcrzur��ntsl prcrc�gativ�s dacs nat apply l to the City �Gauncil's dccisian to deny Respanden►t's z�irnburs�In�nt cl�irn; and, despite tk�o ��t the C�'�y �aii21C�� d�ci9iari wss nfl more than. a� ordinary bust -Hess dccisian �it was �au�thele insinuated with quasi ;�adici�l pastux�. Hawcv ,contrary tc� Appellant's stakcn b�iial', the district ca�axt visweci �lppellatxt's a�cogatian �`t�r 'whst it is, a..t�xythical .pr�tens�; end much to �,,ppcllant's chag��in conciuded that tlppcllax�t was acting iii �a pr�apriet�xy opacity and was, thcz� fore, only due thaw privileges accr�rded. any priva�c corparatxc�n. ar individu�.� in lzka ci�rcu�ns#cc, �.CYf�,, �xnding #�11, �..3 -7, Ta ba�raw ��i� � . the oId idiom "what is goad �'+ar the �.aase is food. for the under"; i�l!tespand�.t had bxar�'g�:�� � � - :�,- . its ur��ust ec�chm�nt suit against �cci. �n gy, for �1c, th�c w�►uId be zzo �u�s�ti���'t�.�.� �' °` ''� . . 5 .:.:., ; :.,��.:: , � q :.. apt �ri�inal action f n kh� district c�ttrC would be the prarier mcthc� t�f prncecdiz�g '=�'� ��� �`�' ���� �° •. �ccaus� the iaurveyannre of water and sewer services by rnuni�ipalitics has be�� $`,'. -1 � :' � . 'i:' r deemed a pxppxic�acy activity, �'tty of apps r�. l�ltn�esotcz 1"o��r�trr�d Light ��:, .��5�- ��'' =�;`�� ' ' fig, �� �n�.19�� }; ,+�eeu�r� v. �xt�r �a, f `h�ankrrto, ��r�t., Reed v. �`�� of�4nz��a, $�S N; .��� �; 'x � ; . y �'1 f� -l� , }, k4 �.r ;d� �; :;: . �� ro:• �Miinn.. i�02�, AFPeflan#'s ci�im #a q►�asi judici�I Conduct in ttus matter is na rnarc than an , 1 _ appellation, �. Iabet wi�haut substance, a mere phantasm, If th+� ds`sfrict cotjr# had transmuted �- unto a rivasi juc�.icial decision Appellant's action in deny;ng Respondent's reimbursemen# request, it waui� have engaged in legal aiebsmy. I ��, II. THE �'��T t3� C.�R.'I'IQRA.�I'� Il'�TL1��D PURPQS� IS TA REV'�''4V . � GI�V��.NIYiENTAL A.�TIt7�lYS A�+TD WIi�. 1Yt7T ISSUE T4 REVIEW A I � � PROPRIETARY DE�ISIC�I'�i� i i {. The wait o�+rertiorari is s�f a class c�fprerag��ve writs e�raordinary in nature at2d ,, zne�n�t to xevi�w the docisior� o£ inferior tribunai�. v. City of .�ir�rc�apoiis, 2�� i I"�,�it?'. 4�b, 4�7 �ivlinn. 1940 }. Tl3erefore, certiorari witl not lie when �eze is an adequakc t. ! � remedy at Iaw �i~c�x ,te grievance cocnpla�ed. Mate :� red. �i'2scl�tcYdt v, t�dxara, S7 N. W :417 1 �'+ n. 1 S'�4a. Tine writ cif certis�r�xi was born of the prs"nciglE of seper�tfvn a���po�vers �s n _� check a�;ainsk �e judiciary's in#xusion upon the eanstitutional.g�exagataves of the other tivo branches c�i'goverr�ent, See D+vkrne� v. �e��nde�t ,���aol D�sx l�rr..1.�, 45� N.�1.2d �i7I, � �7� (i�inn. I9�U�, and, brc�i to vaucY���c review where na ether right a�' p�1 his bin i prv�tided.. S�� .Metz v. l�ad� G`ounXy, 487 N.'W.2d ��'�; X39 �iix�t�►; 19�'��; Yuur��stn�vn E „��ne ��r�. v..P'rout, 124 N."S�.�d ���, 3� 1 �11�inn. 19G3 }. �eaause the st d pu�rpo�e a�' ce�iAx�i review zs to give afI'e�t to the scparaticsn of power and to preciucie 1uc��za1 I j intrus�an in�ko tb� pzivi -leges r�� �� other branches 4f �aw� tent, kh� sip: c�ur� na�t tai' i#� �,� �.pplfct�ian is Sao nent.� �c�i�. Sinrye�hs City �ounciiwa,� acing on a prnpxietary mst#ez �v�en it passed � �:espo�ade��� request fc�r rcirnb seznent, S�e� I�`eever� v. Katy rxfMaMlr�ta, supra, -the requisite g�vernmcn l i�npcxativ� w� ranting the isstx�.cc a� � wzi�. n�certiaxa�ri 8 .,, . <�.. .. �-� � - .. . .,, . �t � - S . - , . was tacking; and a ttix�ct aativn in the district court was Respondent's sale means of obtaining r�ss. S'e� death v, �ar�m, ful Ct�mpes�atian Bd., 55{� N.W. 2d77S (lVlin�t,139b }. As the district court rocs�gni�ed. in denying Appeilsnt's znotian for summary judgfner�t, the tuzd�rlyi�g gavornmenta.t action was absent from the pity Council's denial of Respondent's . ' request far x�imb�xrsemont. �.C.{J., �it�ding # t �, A..7. l i ` It is a�iamatic under �esota ,�urisprudenae that wiZ�n a rr�nn ;oipa�ity acts i,� � i proprista�y rapacity it does sa without govarnmental ixa�nse and fs oniy given those pretensions a+�cord�d other businassos i� fire �ie�d.. Yoa��s�,st�wn v, gout, .srr�ra at 3Q-�� i R��rsdn v% pity of tl�innea�alis, 118 bi.W,�d 223 �I'vlir�n. 1962). As tie �txp�ceme �c�urt xeasflned iz�.l�e�v�r v.. �`xty af.�lanlcut ©, 12� I�,W: a� Ibt�: `�v+r�e�z a m��xnxcipa�ity meters the I field Of ordi ry private bus�ae�s, it des nvt �x�r:�iSe gax� mental p ©vyers. its pu�os� is nvt.tn gave its in�iabftants but t�+ rz�.ake �pra�tT' As alluded tc� prav�c�usly, ii•i� �v�re �cel � Energy d�r�yi��g Resp�md�nt�$.ra%rnbuxs��ent roque�t, there �.vc�uid be no.qu�stzrn certiorari i I v+tc��.Td nat Ise i'rom �e denim; and, sln�e �tespand�zxt would b� obtx .tad to bring a d;�r��t ao�ian in �ti.� district r��ti� �� �t �ce� to s�ea� radre�ss, it must a fvrtivrr' brring � dir+�ot. acYiat� �.��inst.l�pp��.azxt � �xostarati�� fir t�� Qv�rcharge. See �l�an v, C�tjr �, f 1'�ulz�� , .��9 N,�. X93 Minn. i'�35 district court is th8 ro or �orc�z� fs�r p`�ainti.�:�s un ust �nrlcbn�.�nt a��tion ( )� C P p .,.. against ���y �'ar �ru�r�harg�;s far rxrafi�rr sarvi��s�. ' �� �� .�.�TY41'iT IJ�F .APP��,.�A�,`�i"�''� �'�'`�t �UUN� �i B�'�V�� ItESF�}1��T'�' R�X�R��i4�1�tT �'+C3R'�'EE (3'R���E �.�� �+�'�` ,A. +��LJA.�I�T�ETi?I�:CAI., D����Cll�t, . � . . . Appo�la 's ox1'ti� ciiss�rtation is d�I.iCat�d to tb� va�uA� a�sartio�i .float �v�. it denied �� 7 ��4 <' �'� Respondent's zein�buxsement claim the City Council vc�as acting is a quasi jud'zazal capacity, I�ut its pretense is nfl more thaxi a vacant, talismaui,� invocation of the term quasi - judicial. ;. Ai�s�nt frc�rn its expostulation is any foundation fer its claim save the in�iguing assumption I that city councils always act as �;ove�ment qua government and, thus, gavernrnental prero�at�ves are ins�.nuatert m all ci#y aQUtacil actions. In proaecding in the a prtvri belief governmental ac#ion is derivative of alt city council decisions, the Appellant fails t©give pay to the dotal roles assumed by municipalities. Whether Appellant is oblivious to th+s notion of proprietary capacaty ar has chnsen to "whistle through the v�yard ", AppellanC neglects to �xpiain how an issua en�anati �m a �itY's P�Prieta� ft;nctian �n ovvx�in� and operating a :. r�uatar�rorl�s su�►limates t� a governmental decision vsrhen the rr�atter reach�a the pity CQUncil fax determination. 1�►pp�llaztt'� dngmati�c insistence an the City �ouncil'a quasi judicial action re�ralves around and i.:� ic�tally deper�ct�nt upaz� the puxparted. three -part test developed isy the 1tiliYVnesota Sup��na Cauri: in.��zna'i�raf�:�'lrrckF',�i��� v. �i�jr o�Lt�"fnn+�a�v�a�, 613.1'�,�I.�.d 1� (lvli�an. �t?0{} }. Appellant's �ri�f pp. 4-8. '�awever, �Ianr�ir..�r�t� serve as na az� ©dy�.e for ` what ails �.ppellant's arguFnent, which is a #'ailura.ta.addr�� the n�tttes+cmae reality that the �� utility bill pglicy con�arna the pity �aun�il i�n one of its pxaprzeta�yy roles. �� . The reduatis�iusm pro retl. by Appeliaot in its analysis v�.F.far�tc�rz vu�as an ercise in avc�idauee, By appropriating tho deaisxox� ra�a�ir���process of the M3nneapvl� pity �auacxl while ig3.arua� the adnte� in, which the deocsion � made; �ipp�I;lant was able to further ate tendentioc� aargurnent. V�lhat Appellafit amatted from its diai�ctia way �t� fYact that the .. 8 ,�� . ;�� . ,. Niinneapoiis pity �QC�ncil's actiar� "was enfranchised by the Muniaipat Heritage Preservation A.ci, and it was this sanction that gave rise to the quasi judicial decisioc�.. The "test" developed by the Supreme Court in Handicra, fi`, which Appellant purports was established to determine if a municipal governing bc�dy'�' dec1510n was quasi jUdlCial., vas to fact np more than a means to distinSuish between quasi judicial and quasi - legislative actions. The need to diff�rantiate between tb� t�va types. of aetic�ns was a result o�tha ambiguity in the Municipal �ierita a Preservatzt�rt .�c the 'stafiute ursuant to vrhieh the Mit�tn polls pity Councfl g � p imp }icztlX drew its authority to ac#. pailure p£ Appellant's polemic to n�.er��Q�z the A. �v�es � pxobxbly �c►r good zeason. The Aye# was tl�e• ingredient ^�v�ich made the Minneapolis LiCy i �oux�cii's decision nukingpracass in.NtrMd'icrafi judicial, not the three�part teat, and it � is a :tack of sta�hrtc�ry warrant for A�ppellan�'s utility bill palacy That p�;:�iudes d�isinns err►inatin� Barn A.ppella,m's pdii+�y from baing coc�sidcr�i quasf judicial, The th�res- parktesfi upon whicYx A.ppeilant bases its �ntir� thesis is only a m�an� a�' det��in,� whether the d�cisic�n making pznre�s proceeding dram a parfiicular sta�u #c is a cliaas�- judicial or a grxasl� 1�gislatiuc decisit�u. at �0. Sc�� ztlrrr, .�1�,EA v. i�I�tra,�vl�tari �'nunc�l, 5571�.'�V.2d 835, fi�� � N�it�r+:,1,9�9 . � .� .. . • '�'iia. courts bav� long struggles with tha concept o�th� qua�iw,�udt��al ao� rec�sg lug tha# the phxas� k�as bean so broadly d��r��d that execut�we bunch act�ic�ns have bear the • habgsiblins oI~ the ,�c�dicia�y, i�ar�r�v��r, nviwithst�andiu� these vi�i�situda�, quasi ; judiic ;�t :aations must have go'�srnmen�.l underpinnings, and sa�unzcipal actin t %c� associated with ordixy bus�ess d:�cisic�s shaulck - nQt b� ac�r+ded. �c stalug at" gp�arnrn�ntal action. �f.. n� .S Msath v. �1'arrnful Comp�nsatton Bd , sxapra, The overarching purpose of the writ of certiaraxi i$ to give pay to the vital principle of . scparatio�a c+f_pawers; and, as suci�., tlxe cases finding quasi judicial actions have anonymously i �- subsumed $governmental cc�nstruct.'This is the critical piece afthe pu�zlethatAppellanthas omitted from its analysis t�� quasi- judici.a�. Since governmental activity is an integral component of` q�zasi judici�I analysis and usually not at issue, it is a �'aator not nt�rn�ally .. developed and. discussed. Tc inanely propose as Appe��ant does on page 8 flf ids bri.+�f that "it is irnpra�aer to canside� die proprietary nature ©f the un.clerlying conduct i�ecause the ��ndiarcp� test does not include consideration ofwhether the municipal entity was engaging in a proprictar3t capacity at ate time of it,� decision" is complete snpl�ist�►. To ttie confirary, i . govarnn�cntal trnperative is a latent co�tponent cif such. cases. � examples one needs to ��ff�, �'i.Q �l.I�h�r �Xail fhb ��9�s Leff @rGC� !�� .1�,�lpG�!&tIt In �#ip�pt'� 4f ltS dl��t�CtiG, �Il t�l.� Gaye L?f �I�aridfcrc�, it v�ras the I�ulunicipal Heritage Preservatirrn Act, Minn, tat. § �'�1. f �3, et. seq. which was impiic�ted; in �'is�h�r Y. .Flaus. and .�ed�eve�op�aent.��tihar�ty, 69� i�I.�1V.2d 42� Win. 2Q�� }� it is the defer�nae t� b� accorded the e�cautive bxnrich of govetn�ent in its etnpla�ment praetYCes; in G`xty of ll�ar�rh��ra u. Mi�r�, Puts. t7�ila�i+�s ��z�r►s'n, 342 �i`:'UV.2d 8��. �, i����}, �t is the Pubic Utilities �anunissin�' rate setting authorsty under N,ti�n. Stat. �h�t. 21 G; ,and. �. �ianM v. �`ity of Cc�rin Rapids, 31.3.1+t:W.2d �t1� �vlir�n. 1 gi3 �:�, it is a. cur's zar�i�g authority. A.s r. fccted in its cider, the d istrict court reeogni�d khat �c sine qua r�r�n of a quasi - jt�dieial decision is ann undextying gc�vernme;�ta� anion, and activities axising frc►m 1� ��� ::tai ,Appellant's aperatian of its water and sewer servie� arc proprietary in nature. Therefore, the district court determined the pity council decisions art�anating from the utility bill policy were not quasi judieiat iu nature, T#�� Appellant gain -rayed th+� distriot coart'.s zvting that A.ppeilant acted in a proprietary role not by denying t ie proposition but rather by disrnissi�rcly gaest�oning the . propriety of a court's introduction of proprietary capacity into Appellant's analysis of the .. . three -part �andicra, test. Appetlant's E�ricf; p. �. 'i'#�.e Appellant ituperiously aid hen- beadedly decried that "...tbe district court was not at leisure to alterthe �Qndicr, test nor to create exceptions to the test [and]... as no supprrt in the lam fc�r the addition of a proprietary factar to the quasi- judiciai decision tesf "'mac ,Appeliant ended its I�arangue with the incar�gruvus per�ra #zan that, "[inn fact, t�:ez� is iaw directly tt� �c aantraryd ��ting Yvun;�stra�vrtV. l�rr�ui, supra, Appollant's Brief, PP. � -9. �av�r�ver,Appeilant's ass n �ftvuld be xacagr�.i�ed fc�r wixat xt is� "...a talc tald...fi�l�l -af sound and fi�.ry, signifying nothing" ivtacbeth, Act V, Scene V.� It is e�vid�nt the Appeli.ant [apes: that tk�rough. the assi�3uous anta�,an t�f "gt�a�i ;juc�ciai" it can effect tixe t�rat��ubstantiation. of a�x ordinaxy buszncss d�ci�ivn %nt�r a quasi ; �ud�cxal ac #ion. .�1,. U1'�L+T� A�''�'�i��ANT'� I3�+ �f�:�f�l'�F, '�'�� �4.CTIt�1�T �A3' Fr1�171�u�',�TtJ� �A�a �1V�.�� p'UR.SXJ'A�S'�'� 1 �T.A.'�`�E. ApP�llant's tt�.ost �or€faunrli axgument is tb.at "ascot an. tority far district court x�evicw, quasi �udieial. d�iaipos ofa pity are subaect to rc�vz�w by c�rEiuxari ala�e," a #�ering 1 Your��,�i�wn .�ir� �at�p v. 'rout, st��r�a as support af�his prrappsztic�n Appe�iaxxt's Brie:� pP• � -1Q. � answer to Appellant, the dist��;t court's authari�ty to ent aua Respv�.dent unjust . q .� .� . � . . enrichment action resides.in 1�rticle VI, Section 3 ofthe Minnesota State Canstitutian. The mare relevant inq�tity cuncems Appellant's statuto� predicate fir pravtd;ng quasi judicial stature to decisions made pt�suant to its utility bill appeal paiicy. . i A study of Appellant's Youngstown narratirsn .shows it Co be stated with a beguiling - accent and is na more than a cc�ntinuaticm ofAppellaz�t 'spoor hackneyed argu�mer►t. It suf#'ers . from tie same ailment ai�icting its analysis in Hand�i ft, supr,�, tQ volt: Qmittttxg zx�ezxt�on oi' ., the nominative statute from which the �cm�nissior�er in Y'oui�g�town dt�ewits authority to act in a. quasi judsciai n�antiet'. The Appellsnt's continued in9istence that �tesp�ndent point. to a statute �r rule eu�xfe�ing the district court with authority to entextain Respondent's unjust enrichment a+�tion is a�u�lly placing t#�e proverbial "cart before the hprse:' Because certiorari review is intended � give a eot tc� the doctrine cf :sepa�rati ©n of powers, it is in+�u�nabenf upon appellant to find a prcge�itor stat�.te �r rule i�aivesting it wit1� the autiiczrity to pct in a quasi �u�ii�ial rn�aner. Yaungs��zv�rx .amine C ©rp. v Pr�c�u�, su�r�r is stuffused witb� issues, but only o�xe wt�:h bears �.p�n this appeal, A distillation of Y'c�r��gszaw�z shows Y'cuugst�wn xte entered. stn a �ifly �'e�c lease wig tk�.e di a of Ivtiz�t�escta, allowing 'Youngstown to e�traet man are fern a p�xti�an of the bed �af Rabbit �a1�e. Tn cQnsideratian cif the lease �'Y`s�ungs #nwn paid the state , royalties, .�a� at�,�3�. Subseci�e�.tiy; itwas dete�xi�aetl_tiae state did.n.�t owe the pc�rtia� �i?tiie l�k� bed leased tc� �our�gst�w�, Ynutagstpwn saugb�t rea.#nbwrs�ixte�t Qf �e royalties it.paid the sxate by �va�ii�g itself cf Finn. St�.t, � �.13� �n�aw Sea#.ian 'i�.�.�8).�Id. section �.i�b (nQw �e�cti ©n i �A.4�� is the v�iucie perscr� seeking:reir�bursernent fox n�tcr�es wrongly paid 12 }`_ t � Y ' to the state must use. It requircd a ciaixnant to submit a verified claim to the head of a canccrned a�anc� which, in the ca�.se of i'vungstawn, vvas the C�issioz�er of �anservatian and obligated "the agency hcad [t ©J cansidcr and approve ax disapprove �e clean, attach a sta�mant of rcasons and forvsrarci..." the claim ort for se#tlemeni. For a number ofreasor�s, the �ozrimi�ssianar doni�d Youngstown *s r�fivad claim. Id. at 33�. �n respans� xo the dc.�isd, . I ! i Yo�ingstown petirioned the kamsey Count�.r I�istriet Court for and was �rantcd a writ of c�rtr�uaxi.Id. 'I'�se Supreme Court foundce�tiozari�viewafthe Ct�mmissionerss deeisifln its 'this matter prvp�r. I�o�v+�verx tharc !s a gr��t divide botween I�oungstown and the case at bsr. In yo�r�gstawn, the elai�nar�t eras proceeding pursuant to a statute rvhiah r�quir�d the p�rasontr�ent to the head a� a concerned. a�er�cy of a claim against the state. T3�ere is no similar gramt�� authority far tho utility h €11policy to which App+�ilsnt cttn point: The �r�tie$1 coznponez�t missing �ratn Appollani's e�past�laYi+�n is the fait its uti� #ty bill pc�li� is a creature of App�ilant's oven ma�.in� A.s the �uprennc Court observed in .Ya�gstvwn, the writ cif certiar�ri is desi�ncd �o a�'fard revie��v o.irihc derision ofan inf�ripr t�^ibunal, which if n ©fi reversed, wottid resul#. in a f�nat ad,�udia�.tiQn ©f same 1e .1 ri�ki� ofp�titioner. Id �t,�31. Thy �aurt went oz� to obs�rv� i . that the writ of �e�rtiorari is employod to re�vievv caste where the Ie�#s[�#u�r� has granted �n ..� o�r�ciai car a�er�oy the au�►ti�ty to ad�ud�aato the rights - o� p�xsons at�d. prop�xty bt�t has • pna�+ided ��za at�ndang aPp�ak �a:m fhe exercise ©f snok� power emphasis axided�> .7�' Appc��nt's reduc�anisrn hz€s papered a�ve�c the avc�a�hin� and d�t�rroh ve factor in :Your�gst�rwr�, which is tia�at�t�� l��;islat��me�st invest �lze City �ounoil v�fih the power to ac�# .�� . 93 ��_;� - Y �: �• � - - �- .. quasi judicially; it fs not enough far the City tc� itself don the mantel of su2erainty. Thereft�r�, the question tip be atnsvcrered its not what statute or rule allcxws the district court to enterkain R�sppndent's unjust enriehm.ent action -- that matter was addressed laz�g agt� when the State o�'Minnesota's constitution carne intp being �- rather, the tluesrion the City mustbut fails to adc�sss i5 what statute concedes � its Coturcit quasi jud�ciai iicense avez a utility b%Xl . disputer B. T� LEGISLATURE HA.S P��YLDED APP�LI�A�1'T NC} STA'I'EJTC?R�t AUTHU�TY'�`� ENTERTAIN WA.TE� BILL AI�PUTES A►S A QIiASi- JI7����AL �f�D�'. � xirnatio� of nnesota's s#atutary attd constitutional frameworks reveal nothing authar��r►g the Appellant to irnlxle�nent �a utility 1�i�I appeal p+�lioy � not �e �ater�vArks Stafizte, Ivl�n. Stat. �hapt, X44 which autharizes the Cady t� esfablish and apexate its sewer and wa#er s�rstem; not the municfpalities. gcnerai powers sta�.e na�t� faxed in 1�Iin�rr. Star, . Chapts. 4�� and x'31.; not #.fie Staitutt�ry' pities statute, �iU�inn. Scat. t�apt. 412 and nvt any offer s#a#ut�ry or corzstituti+erxal pro�uisic�r� Obscure ar manifest. �t is �gnificaxkt that v�lxile the legisia�re accorded cities a�tYthoxity to establish waterwt�rk�s .. and set ra�s� �e� G'rown. G�rrk anr� ��l �',��p. v. C #ty t�,�',L�xkeville;. � 1 � N.'C+V.2d 1 �6 grin. � . 1�Si }, cities were not �iv�n the statutaxy wbexewi#b�.l to enact a bill. dispute ordin�.nce ax �:,�� :���: , �_, pali�cy `#h��C even r�rn►r�te�y x�sernbles thc� one pzav�ded try the state in Yr�nn� town. Ins�a�cti�e ��� _ �°=� .. _� is tl�e� S�p�e�ne CourtY� d+�rxninatian in. ��� �f �rr��k��n� v. C�o��t�n �I'atcrwr�rks, i �5 '��` �. nh �. �� � 1�.�V'. 384 i.�un.. i �2 i.} �r�ere it fou�xd t�iat entering into a. canfix�ct and wanting a �a�achise °;� . � ?" � to a ccz�ripany to provide a r�vafiex�'acr�s for the City dicl nbt tnvol.�ue the exercise of a ;`f i i,,� �� y� ��{M � N l¢w y;.' f.' governmental fiuictior� but oniy implicated the Gi s ry a owers. The urt � °�,�:::" � t�: y. .. -;;,�• to observe t1?at the Qnly gov�ental fi�.r��it�n left the City wig respect to its water titiiity - -- - i�t � ±�• s� f `' was tha setting of rates whioh was a legislative aCt. �t is very likely that the legislature gave 3: s .� � } t payta the abvious whioh is a• dispute involving the ope��ation of a utili� would eider arise in ,� contract, see e,g. lf�Ial+�attght s�, �`ity of �t..Tr�mes, 253 �.V�. 837 {Minn.193b} ar in tort, see �° a s ra wi#h z�co 'tion that such actis�ns are better left to the •- �.. ��eev�r v City o, f �nrikcrt . u}� gm I �� g constit�atinnal prerogatives of the courts. �f. Wt�lis v. �Co�nty ofSIz����rra�, X55 �.�.2d 277 (Mxnn.1�96} (certia�rari is the established method for reviewing govexu�mentat emplaymen�E terrn�inatian cases given that employrr�ent ctmtracts dc� .not involve actions for failure �to perfcnm on a comet �r ga�ads and servi�+�s. Moreover a government ars�.playee's r�ornmt�n lave de�amatior� ciairn was not linslted to review by c�rtio�rax7i }. - x�, Ad.'PLLL.A�NT'S �,iT1tL�TY �3ILL A�'F�AT, P+C�L�C''� 1:S 1!�►.t.�TtELY .� P�.t4'�`t��+ClL T� S�Tx`L� iGI�IMS P�tI(}�t. TQ, �UR.Il'�G Ql�. AFT'ER L�'�'I�:A.Tl,+DN ADD A�I�ES �.FttJrM A, ��iTY'S �Q�''L�t. TC� �� C►�t. �� ►3 V ��r 'f"!ae �.espand�nt does not cs�rttend tktat the pity is preclur�ed from irnpleznenting an internal utility �iil appeal po�o� but takes ����ptidn to the br�ad�► of authoxity .Appellant assigns itself: Ala �s,.ppeila�at relies entirely oza what it �eharactex�+� as the th�ree�patt "test" .. ish b the �u eme �ou� in �anriicrr{� as the fc�tandation raf r ud�cial aattor� �stabk ed for uas� i� q � �' ... • 1tS C��t�91 �ud�C�a�. ei?i'tf�t1C� Appe!•Iant's brief, p. �, it does so co�npl�tely in the ahs�a�t. . . de�reloped pxeviously, ,H'arld`t.'ar ` was d�oid�ad within, tie contest oft�ie M�u�%cipal �ierita�e I?'res�r�ation ,�•ct while AppeSla�'s attempttt� assert quasz ; judicial action. is fas�iirsned a�ror.�d an inta�a# utility bill appeal pt�licy tegithr�i.�sd sotel�= on•its awn authority. in anakin,g its �� � . �� claim, Appellant totally disrega�:ds the old aphorism `E�x ni�zilQ nihil,�t" � from �nntl3ir�g . comes nothing -- asid runs counter to the axiom that �ric�.nivipatities have no inherant authority but only sash powers as axe expressly conferred to th em by staxute or implied as �zecessary in aid of those powers c.�nferred. �'�e Yilirxge of BraaJ�1�r ��rtt� v. Rippers �5 N.�N.2d 585, 58� (Minn.19S 9 }. If the legislature had seen fit tq allow aikies Eeave to pass vn bill disputes, if Could have included a provision in IulinnesQta. statutes Chapter X44 similar to the presen�txnent statute fn �'oung�t��+n. .A,Itla+�ugb Appellant chooses uat to articulate an enabling grant four its utility bill po3icy, Respoz�clent will.'The atility bzil policy has its genesis in the City's power to sue and be sued, but the authority is Iirnited #.c� settiernent Q� claims. �rtan v. Cii� of �veletl�, 2�1� I�,DJ. 514, S 1.5 (11!Iirin.. I X25 }. Sep l�ix�n< Shit. x.41 x,21 I. As the coup recagnis�d in Dakr�arr, all the ardina� Hiles a� business canduat goye�is�g the settlement, adjustment tmd can�pmnxise �ftlieir a.��ir� app�'tc� public man %cipati�ies, Id. at �'�t �. This tene�k meshes wilth the dactri�e established:irl. sash cages as IC��uer u. �'tt,� r.�fltrlankuta,1291�.'�V, at 16ft and �oungsrawn v. .l�rout, 1�� Ai.'W.2d at .�44, which hold that u muruci€pality acting in a prt�p�.etary �,paeity stands iu #Iie shoes �� private businesses. �ip�wever, it i� evident imm 4rrl�rrta� that the City's v�a�at�t des - not - d�place a clistriet court's original �u�risc�at on. ©ver a i�.atter. `1'lae Wight to ,.. settle a eI .aim. is pz��r #a, �ux�€ng ar afrer Eitigatir�n..�d at 51�� Therefs�r�, drawing the reasoni�xg. tram �3ak�at�, .Appellant's utility bin pbllcy is mer�:ly a prot�al to se a bill disputes, a policy iiustituted und.�r the �ityys.autEZa�t,� to sue an.� be sued. �ipp�Il�t miscasts the pity Council �� a trans��ndent body which always acts with 1� ;.� �� 3. . J t� = ]: ` -��:'. governmental irnmperative. See Appellant's Brief p. $ (disEri�t court erred by adding ..• �� • proprietary fact ©r to the quasi judicial decision test }, in reaizty, inas�nuclx as the City Counczl r. . s is the procurator of City affairs, the Council is merely the final level of au�.iarit� in a pratac4l '' impternented bythe pity to pan {promise of it�r bill disputes. See Minn. Stat. § 41.2. 41. The �. statutes which delivar to the pity �nuncil the wsrxant tc� manage �xty airs rnerol�r give leave to the City �t�uncil to c�mprQmise and settle claims; these sta�.ttes da nt�t endow the Council with �n im�.erlum to wrost frotxa. the Ca�u�ts their original ju€�sdictian Aver the claims. S'ee e.,�, f?�d S�c�r�d Nat B,anl� of Aurora v, Town Q,�'Middletawr�, �9 I�,'t�'. 4'� l {M3nn. 189G} tv�+hez� a alum �is properly prescribed to tlae town beard and is t�satlawed, fihe claimant -may cnrnrn�nat an action agaa�t tt�e town fear the amount of the olain�). Far e:�ampie, Mtnr�:. Stan. § 412.27 requires cert�an liquidated Maims be prosented to the pity CQUn�il pri ©r to pay�rfent. Havvover, the C�u�s' have £aulad that the purpos+a of the statuto is to atl ©�v the �;i�r Cawacii to sYt artd de a the €�biigatian as a board of audit. The �nurts ha�� emphaticut�y doaz�ad that :such statutes �ver� nc�t iz�ta�ded to allow file C�iun�iE �t�r sit in su�'erance as a ttxbunai fnr assassir�g damages. v. `l��ge of inc�tQn, �� I+T:i�V.2d 1. �7 205 (l�nn. 195'x;}. See a�'s� 1� �rQn a �''I�l��� rrf `C�a%xhr�lrn, 1'�� fil'.'S�V�. 92� �!�#€rin� 1919)Y �. A�tTI�li+ ', ��+�T�.�i� 3 t3F"�`HE 11�N1�t�`S�J'TA �t]��TI'TU'�'��N XS'�`?�� �4,�`�'H[�TX ���T�iY+� '.� D�ST+CT CSIH�.T �IT�I ��IGx1rtA.�� :�- I�C`�"�O�N C3'�'��. I�SP���1~I�''� ��31T. `�'h� �tesiaonc�ent has brougiat suit a�gaiaast Appeli�t for �pproxitnate�� ���. �4,Ot��J an overoharges for municipal water and sanity power :so ices. Tha aotion faas b brought under tho ogwfitabie principle unjust a chment. It iS a. thea�ry that lira boen p o�.Angl� �� . I American jurisprudence since being first introduced into the law by the redoubtable Lord Mansfield in Moses v. Macferlan, 2 Burr. 1005 (K.B,1760) and is a matter clearly within the prerogatives of the district court. The Appellant insists that notwithstanding the district court's constitutional license over this case, the district court must still bow to the City Council's decision made pursuant to the Appellant's utility bill policy. Appellant's postulation is indeed an intriguing concept to ponder; but to consecrate as quasi-judicial, a - decision which traces its source to the will and pleasure of a self-imposed City policy is no mean. determination and would have profound consequences as it regards a municipality's proprietary role. Quasi- judicial action is a manifestation ofthe separation ofpowers; but while separation of powers is a vital concept to our tripartite form of government, care must be shown that in its zeal to give the executive deference, the courts not erode their own prerogatives, • Holmberg v. Holmberg, 588 N.W.2d 720., 723 (Minn. 1999). Should a policy such as Appellant'ss be found to oustthe district court from its jurisdiction, the resultant expansion of quasi - ,judicial actions would indeed be vexing, and the Court should be reticent to add to jurisdictional contraction by insinuating governmental action into a decision that is clearly proprietary. See WWI). Tax Court of Appeals, 288 N.W.2d 221, 223 (Minn: 1979), The overarching constitutional principle with which the courts must be concerned is contained in Article I, Section 8 of the Minnesota State Constitution which provides that "every person is entitled to a certain remedy in laws for all injuries or wrongs which he may - receive..." In simple words, :it stands for the proposition that every person is entitled to his 18 • judicial overseer of its own business enterprise, creating the anomalous sity, ati4n? o p = a ir' 01 guarding the hen house." The issue of whether the governing body of a municipality:.cann • fairly adjudicate the propriety of its own conduct has always been a compelling subject for the courts, more so when the conduct is in furtherance of its proprietary function. Manteuffel v City ofNorth St. Paul, 538 N.W.2d 727, 730 (Minn. App. 1995). While certiorari review does provide judicial oversight, implicit in Judge Hoff van's footnote is the realization that . f most utility bill disputes are of such small amount that bringing certiorari review to the Court of Appeals would not be worth the cost and trouble, c"f Holmberg, 588 N.W.2d at 726. Therefore, finding Appellant's utility bill policy a qvs ri judicial activity with review limited to certiorari would for most claimants de facto close the door to Conciliation Court. Not only • does it provide claimants with their "guaranteed" day in court, but the specter of Conciliation Court also prompts the City Council to take "real politick" out of its decision malting process, Notwithstanding Appellant's assertion to the contrary, it is evident that cast was not an imperative in Judge Rowan's decisional brew, It was merely offered in a footnote as insight into his decision. The issues of which Judge Hoffman was mindful are also those to which the legislature pays hoed and is rely the reason it has ebosen not to bestow upon municipalities governmental license over their proprietary functions, CONCLUSION Appellant's entire dialectic "leans against .a reed", and its fatuous attempt to divest the district court of its jurisdiction must fall, it is unequivocally established law that when a ntunicipality provides sewer and water services it does so in its proprietary capacity and is - 20 • • CERTIFICATION OF BRIEF LENGTH I hereby certify that this Brief conforms to the requirements of Minn. R. Civ, App. F. . 132.01, subds. 1 and 3, for a Brief produced with a proportional font. The length ofthe Brief is 5,830 words. This Brief was prepared using Microsoft Office Word 2007. DATED: March 7, 201.1. PTE OR LIT, COUNTY ATTORNEY WAS TO UNTY, MINNESOTA . George Kuprian gi 147122 Maura J. Shuttleworth No. 0322520 .Assistant Washington County Attorneys Washington County Government Center 15015 62nd Street North P. O. Box 6 Stillwater, MN 55082 (651)430 -6115 • Attorneys for Respondent • • • • • 22 • am RN YSArLw 1 IMO na r t March 18, 2011 CLERK OF APPELLATE COURTS 8 9 ;� ant Boaimard 305 MINNESOTA JUDICIAL CENTER Lake Elmo, Mr' 350+2 25 REV. DR. MARTIN LUTHER KING JR. BLVD Flan (651)290-6500 ST PAUL MN55155 Fax (651) 223-5070 E- Re: 37024 (872) v b ' � Case No. A11 -0067 �m Trial Court File No: 82 -CV -10 -4198 County of Washington v. City of Oak Park Heights John M. Kcnncdit Jr. • EngeneJ. Flick • Dear Clerk of Court: h Charles E. Gitlin • Pierre N. Regnie r Mark A. /batten Geoqw W Lichee Enclosed herein for filing, please find Appellant's Notice Regarding Oral Argument. Pam J. Skoghnd Timothy S. Cram • Lame M. Rnchehord • Very truly yours, James G. Golcmbak Maritme S. Gu • Thomas L. camrmagr JARDINE, LOGAN & O'BRIEN, P.L.L.P. Leonard J. Schweich ----- ` Jessica E. Schwrie Sven S. race Thermal Miser& Matthew r. Bendt • Jessica. E. Schwie Jn . Hadevig Jason A. Koch Direct Dial: (651) 290 -6591 MOs xe»ie ifte 1 Williams Maik E - mail Address: schwie lolaw.com K. Nancy M. Aboyan Daniel M. Gallatin Wad A. Hanby JES: jp Michael P. Goodwin Enclosure John R. O'Brien - Admitted in Wisconsin, emeritus Minnesota, retired Cc: George Kuprian, Esq. (w /enc.) Geoid M. L.innihan - Retired Assn R. Vanuaek - Retired Some members also admitted to practice law k Wisconsin•, No t Dakota, South Da rota. Shannon Banaeuwaki Administrator Donald M. Jardine (1915 -2005) Jere F Logan (1923 -1983) Equal Opportunity Employer 1 CLERK OF APPELLATE COURTS March 18, 2011 Page 2 Bcc: City of Oak Park Heights (w /enc.) Mark Rossow (LMCIT Claim No: 11071183) (w /enc.) STATE OF MINNESOTA ) SS AFFIDAVIT OF SERVICE COUNTY OF WASHINGTON ) Joy Pilrain of the City of Lake Elmo, County of Washington, in the State of Minnesota, being duly sworn, says that on March 18, 2011, she served the annexed Notice Regarding Oral Arguments on: GEORGE KUPRIAN, ESQ ASSISTANT WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOVERNMENT CENTER 15015 — 62 ST N POBOX6 STILLWATER MN 55082 by mailing to him a copy thereof, enclosed in an envelope, postage prepaid, and by , depositing same in the United States Mail, directed to said attorney at his address above noted, the last known address of said attorney. 0 ..4 er....4,.....4 0 Subscribed and sworn to before me on March 18, 2011. Notary blic NOTICE REGARDING ORAL ARGUMENTS IN THE COURT OF APPEALS Cases may be scheduled as soon as one responsive brief is filed. Minn. App. Spec. R. Pract. 1. Oral hearings are now scheduled 30-240 days from the filing of the first responsive brief. Counsel must advise the court, in writing, of potential scheduling conflicts before the case Is scheduled. Id Counsel may give notice of scheduling conflicts (a) by letter when filing their briefs, (b) by separate letter received by the court before the first responsive brief was filed, or (c) by completing this form and returning it before the case is scheduled. Counsel have a continuing duty to update notices of potential conflicts until an appeal has been scheduled. If counsel fail to notify the court of potential scheduling conflicts before a case is set for argument, postponement will be granted only for extreme emergency. To obtain a postponement, counsel must establish that they are suddenly and unexpectedly unavailable for unpredictable reasons, such as a medical emergency. Case Name: County of Washington v. City of Oak Park Heights Case No.: A11 -0067 Attorney Providing Information: Jessica E. Schwie Which Party Does Attorney Represent? City of Oak Park Heights Unavailable for oral argument on: April 6, 7, 20, 21, 22, 25, 29 May 12, 13, 17, 20, 23, 24, 26 June 21 July 22 2 —29 August 1,15 -19 W� Date: fr //7 , 2011 Will /Pre Signature Copies served (Personally/By Mail) on March 18, 2011, on: George Kuprlian Washington County Attorney's Office 15015 62" a Street North P.O. Box 6 Stillwater, MN 55082 Return to: Clerk of the Appellate Courts 305 Minnesota Judicial Center 25 Rev. Dr. Martin Luther King, Jr., Blvd. St. Paul, MN 55155 DO NOT USE THIS FORM TO SUBMIT OTHER INFORMATION, INCLUDING CHANGE OF ADDRESS 1 APPELLATE COURT CASE NO: A11 -0067 STATE OF MINNESOTA IN COURT OF APPEALS County of Washington, Respondent, vs. City of Oak Park Heights, Appellant. APPELLANT'S BRIEF AND APPENDIX PETE ORPUT, COUNTY ATTORNEY WASHINGTON COUNTY, MN JARDINE, LOGAN & O'BRIEN, P.L.L.P. George Kuprian (A.R. #147722) Pierre N. Regnier (A.R. #90232) 15015 62 Street North James G. Golembeck (A.R. #179620) P.O. Box 6 Jessica E. Schwie (A.R. #296880) Stillwater, Mn 55082 8519 Eagle Point Boulevard (651) 430 -6115 Suite 100 Lake Elmo, MN 55042 -8630 .Attorneys for Respondent (651) 290 -6500 Attorneys for Appellant � R TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF LEGAL ISSUES 1 STATEMENT OF CASE AND FACTS 1 ARGUMENT 3 I. THE DISTRICT COURT ERRED WHEN IT FAILED TO DISMISS THE COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION 3 CONCLUSION 11 CERTIFICATION OF BRIEF LENGTH 12 r TABLE OF AUTHORITIES Cases City of Crookston v. Crookston Water Works, P. & L. Co., 150 Minn. 347, 185 N.W. 380 (1921) 9 City of Moorhead v. Minn. Pub. Utils. Comm'n, 343 N.W.2d 843 (Minn. 1984) 3 Dietz v. Dodge County, 487 N.W.2d 237 (Minn. 1992) 3 Dokmo v. Independent School District No. 11, 459 N.W.2d 671 (Minn. 1990) 6 Handicraft BlockP'Ship v. City of Minneapolis, 611 N.W.2d 16 (Minn. 2000) 1, 4, 6, 7, 8, 10, 11 Honn v. City of Coon Rapids, 313 N.W.2d 409 (Minn. 1981) 3 Keever v. City of Mankato, 113 Minn. 55, 29 N.W. 158 (1910) 9 Neitzel v. County of Redwood, 521 N.W.2d 73 (Minn. App. 1994), review denied (Minn. October 27, 1994) 9 Petition of N. States Power Co., 416 N.W.2d 719 (Minn. 1987) 3 Tischer v. Hous. & RedevelopmentAuth., 693 N.W.2d 426 (Minn. 2005) 1, 3, 4, 8 Township of Honner v. Redwood County, 518 N.W.2d 639 (Minn. App. 1994) 8 Wolner v. Mahaska Indistries, Inc., 325 N.W.2d 39 (Minn. 1982) 8 Youngstown Mines Corp. v. Prout, 266 Minn. 450, 124 N.W.2d 328 (1963) 1, 9, 10, 11 Statutes Minn. Stat. § 606.01 2 ii STATEMENT OF LEGAL ISSUES I. WHETHER THE DISTRICT COURT ERRED WHEN IT FAILED TO DISMISS THE COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION. The district court held that it had subject matter jurisdiction to consider a quasi-judicial decision of the City of Oak Park Heights, although there is no statute providing for district court review. Apposite Authority: Tischer v. Hous. & RedevelopmentAuth., 693 N.W.2d 426 (Minn. 2005) Handicraft Block P 'Ship v. City of Minneapolis, 611 N.W.2d 16 (Minn. 2000) Youngstown Mines Corp. v. Prout, 266 Minn. 450, 124 N.W.2d 328 (1963) STATEMENT OF CASE AND FACTS The City of Oak Park Heights ( "City ") provides water and sewer services to the Washington County ( "County ") Law Enforcement Center and charges the County for the services used as determined by meter readings. A.3-.7; A.27 -32. In 2009, the County submitted an appeal to the City, appealing sewer and water charges invoiced to the County from 2004 through 2008. A.18. The County claimed that it had been erroneously overcharged by the City and was entitled to a refund of approximately $114,700.00. A.18. City policy provided that persons wishing to challenge their water and sewer bill could do so by appealing the bill first to the City's Finance Director. A.54. In this case, the County submitted an appeal and supporting evidence to the City Finance Director, who after considering the appeal and supporting evidence, denied the same. A.54. The County then further appealed to the City Council pursuant to the City's appeal process. A.11 -13. 1 The City Council heard the matter on September 8, 2009 and received evidence relative to the County's appeal. A.14 - 15. The matter was continued for further review and submissions. A.15 - 17. Consideration of the appeal at a public meeting was reconvened on October 13, 2009. A.17. Following consideration of the County's appeal, the City Council adopted a resolution, denying the appeal and setting forth numerous findings and conclusions supporting its denial based upon the evidence before it. A.18 - 26. Pursuant to City policy, the City Council's October 13, 2009 decision was final and conclusive on the matter. A.54. . On or about December 28, 2009, the County commenced suit in Washington County District Court challenging the City's October 13, 2009 decision. A.41 - 53. Cross - Motions for summary judgment were filed and considered. A.7. Among other defenses, the City argued that it was entitled to dismissal of the Complaint because its October 13, 2009 decision was a quasi-judicial decision, reviewable only by writ of certiorari to the Minnesota Court of Appeals pursuant to Minn. Stat. § 606.01 and the district court, therefore, lacked subject matter jurisdiction. A.6. By Order dated November 4, 2010, District Court Judge John Hoffman denied both motions for summary judgment. A.3 - 7. The County's motion was denied based upon an issue of fact. Id. The City's motion was denied based upon a determination of law as the district court concluded that it had jurisdiction over the County's claim. Id. The City now brings this appeal from that portion of the district court's order denying summary judgment dismissal of the Complaint on the issue of subject matter jurisdiction. A.1 - 2. The County has not sought review of any of the issues raised below. 2 z ARGUMENT I. THE DISTRICT COURT ERRED WHEN IT FAILED TO DISMISS THE COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION. District courts do not have subject matter jurisdiction to preside over matters that are to be heard via writ of certiorari. Tischer v. Hous. & Redev. Auth., 693 N.W.2d 426, 428 (Minn. 2005). Whether a matter should be heard via writ of certiorari presents a question of law reviewed de novo. Id. Exception to general jurisdiction of district courts for quasi-judicial decisions Although district courts are courts of general jurisdiction, an exception exists when a claim implicates a quasi-judicial decision of a governmental entity. Tischer, 693 N.W.2d at 429. This exception is founded on the separation -of- powers doctrine, which precludes district court review of a governmental entity's quasi-judicial decision. Id.; Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). City's October 13, 2009 decision was quasi-judicial in nature The action of a city may be either quasi - legislative or quasi-judicial in nature. Petition of N. States Power Co., 416 N.W.2d 719, 723 (Minn. 1987); City of Moorhead v. Minn. Pub. Urals. Comm`n, 343 N.W.2d 843, 846 (Minn. 1984). Quasi - legislative acts of a city affect the rights of the public generally. Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981). Quasi-judicial decisions, on the other hand, are specific, discretionary acts that affect the rights of an individual analogous to the discretionary decisions of a court proceeding. Tischer, 693 N.W.2d at 429. Determination of whether 3 ' t a city's decision is a quasi - judicial decision is a question of law. Handicraft Block P 'Ship v. City of Minneapolis, 611 N.W.2d 16, 20 (Minn. 2000). Although the County's lawsuit is framed as an unjust enrichment claim, at the center of this case is the October 13, 2009 decision of the City in which the City determined that the County was correctly charged for sewer and water services and not entitled to a refund. The question in this case, thus, becomes whether the City's October 13, 2009 decision was a uasi- judicial decision, which could be reviewed by writ of q J Y certiorari alone. See Tischer, 693 N.W.2d at 423 g (ainst while claims against governmental entities may be cloaked in various legal theories, where the suit is centered on a municipal decision, the proper question is whether the municipal decision was quasi - judicial subject to certiorari review). The test for determining whether a decision is quasi-judicial was most recently set forth by the Minnesota Supreme Court in Handicraft. The three indicia of quasi-judicial actions can be summarized as follows: (1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim. Id. 611 N.W.2d at 20 uotation and citation omitted), Applying the Handicraft �R d � f test I• here, it is clear that the City's October 13, 2009 decision was quasi-judicial. Investigation into disputed claim and weighing of evidentiary facts "Quasi- judicial proceedings involve determining facts for the purpose of reaching p g g u P� g a legal conclusion in resolution of adversarial claims." Handicraft, 611 N.W.2d at 20 (quotations and citations omitted). There is no dispute in this case that there was a 4 dispute between the City and the County regarding the amount of sewer and water fees invoiced to the County. In reaching its October 13, 2009 decision on the dispute, the City took in facts and evidence on the issue. By letter dated August 26, 2009 to the City Council, the County "submit[ed] [an] appeal of the administrative determination to deny its request for a refund of overcharges for water and sewer use at the Washington County Law Enforcement Center (LEC) and is making a claim for the overcharges." A.11. In support of its appeal, the County stated, "[i]n addition to the complete detailed documentation previously provided to the city staff, the county offers the following exhibits to summarize the justification for the refund claim." Id. The County then went on in its letter, making argument with citation to evidence and law as to why the County should be refunded for amounts it claims to have been overcharged. A. 11 - 13. The City Council, much like an administrative law judge, took in the evidence from both the City and the County, entertained a presentation by the County, and entertained a presentation by City staff on the issue of whether there had been overcharges. A.14 - 15. At the heart of the issue, were specific property issues —for example, whether the water meters serving the LEC were properly functioning, whether the amount of water used by the County was properly calculated, whether there were errors in reporting, whether the County actually used the services provided to it, and whether the County timely made their refund claim. A.18 - .26. The County's appeal was taken under advisement in order to allow for further consideration, during which time the County submitted further argument in favor of its 5 position. A. 16. A second meeting was held, the City Council heard the evidence, and issued a Resolution denying the County's appeal. A.17 -26. The Resolution issued by the City in this matter strongly resembles an order issued by an Administrative Law Judge following a contested case hearing - it summarizes the evidence presented to it, makes fmdings of fact, weighs the evidence, assigns credibility, and reaches conclusions based upon review and consideration of the weight of the credible evidence. Therefore, under these circumstances, the October 13, 2009 decision of the City clearly reflected an investigation into a disputed claim and the weighing of evidentiary facts. See Handicraft, 611 N.W.2d at 20 (finding a quasi-judicial decision where the challenged decision related to a specific piece of property and criteria unique to the property); Dokmo v. Independent School District No. 11, 459 N.W.2d 671, 676 (Minn. 1990)(finding quasi-judicial where, although there was no formal hearing, evidence was considered and a record was prepared regarding a particular employee's employment). Accordingly, this factor weighs in favor of holding that the City's October 13, 2009 decision was a quasi-judicial decision. Application of those facts to a prescribed standard The City had a clear, specific, and definite standard that it applied in this case. By ordinance, persons who receive sewer and water services from the City are obligated to pay for those services. A.27. The question before the City on October 13, 2009 was whether the evidence, when all things were taken into consideration, indicated that the County had used sewer and water services such that the County was properly charged approximately $114,000.00. Because the terms of the City's ordinance established 6 e specific criteria for the usage and payment of sewer and water services, and that criteria was applied to specific facts related to a specific piece of property, this factor weighs in favor of finding a quasi-judicial decision. See Handicraft, 611 N.W.2d at 22 -23 (holding that decision was quasi-judicial where the city relied upon specific guidelines in determining the land use status of a particular property). Binding decision regarding the disputed claim A decision is final where it vests both rights and responsibilities in the challenging party. Handicraft, 611 N.W.2d at 22 -23. By City policy, the City's October 13, 2009 decision with regard to the County's appeal was final and binding. A.54. Absent judicial challenge of the City's October 13, 2009 decision, the County is obligated to pay the City for sewer and water services used between 2004 and 2008 and it is not entitled to a refund. A.27 - 40. Evidence of the finality of the decision is further confirmed by the fact that after the County's appeal was denied, the County filed suit, seeking a refund. Accordingly, this factor weighs in favor of finding the City's decision to be quasi-judicial in nature. All of the factors weigh in favor of finding quasi decision Taking all of the foregoing factors into consideration, it is clear that the City's October 13, 2009 decision was quasi-judicial in nature. There is no statutory authority specifically providing for district court review of a city's decision with regard to water and sewer charges and requests for refunds. Absent specific statutory authority providing for district court review and remedy, judicial review of the City's October 13, 2009 quasi-judicial decision must be invoked by writ of certiorari. Handicraft, 611 N.W.2d at 7 e 624. Therefore, the district court erred when it concluded that it had jurisdiction to hear this matter. District court erred by adding a proprietary factor to the quasi - judicial decision test In reaching its conclusion in this matter, the district court held that it had jurisdiction to hear the matter because [t]he City is acting in the capacity of a private corporation, not a governmental entity. Its actions are not quasi-judicial, and therefore jurisdiction of this matter lies properly with the Court. A.7.' It is improper to consider the proprietary nature of the underlying conduct because the Handicraft test does not include consideration of whether a municipal entity was engaging in a proprietary capacity at the time of its decision. Id., 611 N.W.2d at 620- 624. Moreover, the district court was not at leisure to alter the Handicraft test, nor to create exceptions to the test. Wolner v. Mahaska Indistries, Inc., 325 N.W.2d 39, 42 (Minn. 1982)(lower courts are bound by the existing law as set forth in Minnesota Supreme Court decisions). Furthermore, there is no support in the law for the addition of a proprietary factor to the quasi - judicial decision test. In fact, there is law directly to the ' In footnote 7 of the district order, the district court also suggests that review by writ of certiorari is further improper because it would be unnecessarily costly to claimants to proceed as such. Questions of cost do not determine jurisdiction in this case; rather it is the supremacy clause. Tischer, 693 N.W.2d at 429. To the extent that cost bears any consideration, the Minnesota Court of Appeals has recognized that proceeding by way of writ of certiorari is a more expeditious and economical manner of proceeding. Township of Honner v. Redwood County, 518 N.W.2d 639, 641 (Minn. App. 1994). 8 } contrary. See Youngstown Mines Corp. v. Prout, 266 Minn. 450, 124 N.W.2d 328 (1963). In reaching its decision in this matter, the district court in its order at paragraph 11 cited to two Minnesota Supreme Court cases, City of Crookston v. Crookston Water Works, P. & L. Co., 150 Minn. 347, 185 N.W. 380 (1921) and Keever v. City of Mankato, 113 Minn. 55, 29 N.W. 158 (1910). Neither case, however, addresses whether a decision to refund claimed water and sewer overcharges is a quasi-judicial decision. The court in Crookston addressed the enforcement of a settlement agreement; not whether the City was acting in a quasi-judicial manner. Crookston, 150 Minn. at 351. The court in Keever considered a negligence claim and the availability of immunity defenses to said claim; not whether the City was acting in quasi-judicial manner. Keever, 113 Minn. at 65. Because the courts in Keever and Crookston did not address issues of jurisdiction and whether a challenged municipal decision was a quasi-judicial decision, they are not instructive, nor precedential, in this case. Neitzel v. County of Redwood, 521 N.W.2d 73 (Minn. App. 1994), review denied (Minn. October 27, 1994)(case law that does not address the issue at hand has no instructive or precedential value). Accordingly, the district court erroneously relied upon those cases in reaching its decision here. Furthermore, the district court's creation of proprietary exception to the quasi - judicial test is in direct conflict with the Supreme Court's decision in Youngstown Mines Corp. v. Prout. Id., 266 Minn. at 482 -483. In Youngstown, the plaintiff entered into a lease with the State which allowed the plaintiff to extract minerals from land in exchange for the payment of royalties to the State. Id., 266 Minn. at 454. The plaintiff claimed 9 t 4. that it was entitled to a refund of certain royalties paid to the State. Id. The matter was heard, and denied, by the State of Minnesota Commissioner of Conservation. Id, The Plaintiff then filed a writ of certiorari. Id. The State challenged whether the matter should be heard via writ of certiorari. The court, in specific response to that argument, ruled that the Commissioner acted in a quasi-judicial manner when it decided the claim for a refund; and, therefore, the appropriate method of review was by writ of certiorari. Youngstown, 266 Minn. at 482 - 483. Because the court in Youngstown specifically ruled upon the question of jurisdiction over a quasi-judicial decision, it is instructive and precedential here. Crucial to the analysis in this case is that in Youngstown the court found that the underlying conduct (leasing property to a private entity) was a proprietary action by the State. Nevertheless, the appeal of the refund claim to the Commissioner and the decision denying the appeal was quasi-judicial conduct. Applying Youngstown to this case, the facts merit the same result. While providing sewer and water services may be a proprietary act, the County's appeal seeking a refund and the City's decision denying the appeal was, under Youngstown, quasi- judicial conduct. Accordingly, it is clear that the district court erred. The law of Handicraft and Youngstown establishes that absent statutory authority for district court review, quasi-judicial decisions of a City are subject to review by writ of certiorari alone. Handicraft, 611 N.W.2d at 20; Youngstown, 266 Minn. at 482 -483. Further, the determination of whether a decision is quasi-judicial is determined by the three indicia set forth in Handcraft without regard to the issue of whether the City was 10 • - 4 , engaging in a proprietary function. Handicraft, 611 N.W.2d at 20; Youngstown, 266 Minn. at 482 -483. Accordingly, under Handicraft and Youngstown, the October 13, 2009 decision rendered by the City in this case was a quasi-judicial decision which was subject to review only by writ of certiorari. CONCLUSION The City of Oak Park Heights is entitled to reversal of the district court order dated November 4, 2010 and dismissal of the Complaint. Washington County's lawsuit challenges a quasi-judicial decision of the City rendered on October 13, 2009. There is no statute providing for district court review; and, therefore, review is permitted only by writ of certiorari. Accordingly, the district court does not have jurisdiction over the Complaint filed by Washington County and dismissal with prejudice is proper. DATED: February 1 , 2011 JARDINE, LOGAN & O'BRIEN, P.L.L.P. Y Pierre N. Regnier (A.R. #90232) James G. Golembeck (A.R. #179620) Jessica E. Schwie (A.R. #296880) 8519 Eagle Point Boulevard Suite 100 Lake Elmo, MN 55042 -8630 (651) 290 -6500 Attorneys for Appellant 11 CERTIFICATION OF BRIEF LENGTH 1 hereby certify that this Brief conforms to the requirements of Minn. R. Civ, App. P. 132.01, subds. 1 and 3, for a Brief produced with a proportional font. The length of the Brief is 2,876 words. This Brief was prepared using Microsoft Word 2003. DA'Z'ED: February , 2011 JARDINE, LOGAN & O'BRIEN, P.L.L.P Pierre N. Regnier (A.R. #90232) James G. Golernbeck (A.R. #179620) Jessica E. Schwie (A.R. #296880) 8519 Eagle Point Boulevard Suite 100 Lake Elmo, MN 55042 -8630 (651) 290 -6500 Attorneys for Appellant 12 JARDINE ATTORNEYS AT LAW LOGAN & EL.L.E. February 4, 2011 O'BRIEN Suite 100 DISTRICT COURT ADMINISTRATOR 8519 Lake Elmo, Point 042 "ard WASHINGTON COUNTY GOVERNMENT CENTER 14949 - 62 ST N Firm (651) 290 -6500 STILLWATER MN 55082 Fax (651) 223 -5070 E -Mail Websi @ilolaw.com Re: 37024(872) www.;lolaw.com Trial Court File No: 82 -CV -10 -4198 County of Washington v. City of Oak Park Heights John M. Kennedy, Jr.* Dear Court Administrator: Eugene J. Flick * Charles E. Gillin * Pierre A. Fonken Rennie` Maz We are hereby requesting that the Court rescind the Scheduling Order that was issued Patti J. Sko glund George Kuehner on January 25, 2011. The City of Oak Park Heights has filed an appeal eal from the Pa * �' Y g Timothy S. Crom * denial of summary judgment and said appeal has been filed with the District Court on Lawrence M. Rocheford * James G. Golembeck* or about January 12, 2011. Pursuant to Rule 108.01, subd. 2, of the Minnesota Rules Maine S. Flynn is * of Civil Appellate Procedure, "The filing of a timely and proper appeal suspends the Thomas L. C Leonard J. Schwe ummings h trial court's authority to make any order that affects the order or judgment appealed from ...." Jessica E. Schwie Susan S.Tice Thomas J. Misurek The City of Oak Park Heights has appealed the denial of summary judgment on the Matthew P. Bandt * Elisa M. Hatlevig basis that the District Court lacks subject matter jurisdiction; therefore, the trial Jason A. Koch n S. Williams court's authority over all matters in this litigation is hereby suspended pending Mark K. Hellie of the appellate process. Accordingly, the January 25, Nancy M. Aboyan completion pp ll p 2011 Scheduling "` � Daniel J. Stahley Order should be immediately rescinded. John R. O'Brien - Admitted in Minnesota, , ec d ams Very truly yours, Alan R. Vanasek - Of Counsel E Gerald M. Linnihan - Retired JARDINE, LOGAN O'BRIEN, P.L.L.P. Some members also admitted / to practice law in Wisconsin *, _- North Dakota, South Dako and Iowa Pierre OOP ,0 Pierre N. ' e_ - Shannon Banaszewski Direct Dial: (651) 29/6563 Administrator PNR:jp Donald M. Jardine (1915 -2005) Jerre F. Logan (1923-1983) Cc: Judge John C. Hoffman George Kuprian, Esq. Equal Opportunity Employer DISTRICT COURT ADMINISTRATOR February 4, 2011 Page 2 Bcc: City of Oak Park Heights (w /enc.) Mark Vierling, Esq. (w /enc.) Mark Rossow (LMCIT Claim No: 11071183) (w /enc.) State of Minnesota District Court Washington County Tenth Judicial District Court File Number: 82 -CV -10 -4198 Case Type: Civil Other /Misc. Notice of Filing of Order JAMES GERALD GOLEMBECK JARDINE LOGAN & OBRIEN PLLP 8519 EAGLE POINT BLVD STE 100 LAKE ELMO MN 55042 County of Washington:vs - CITY OF OAK PARK HEIGHTS You are notif ed that an order :was filed on January 25., 2011. Order- Other. Dated::. January 25, 2011 • Annette Fritz;: Court :Administrator By Deb Miller, Deputy Washington County District court 14949 :.62nd Sr. PO Box 3802 _ - • Stillwater MN 55082 _ • :- 65f-430 :42N— • cc: GEORGE KUPRI'AN.. A true and correct copy .:o1't is notice has been served by . mail upon the parties herein at the last known address. of each, pursuant =to Minnesota Rules of. Civil Procedure, Rule 77.04. 10 - Notice of Filing of Order www.mncourts.eov Revised 10302009 STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT • Flie# C I WASHINGTON COUNTY F County Of Washington, DISTRICT COURT Plaintiff, JAN 2 5 201 SEDULING ORDER vs. D FM No. CV -10 -4198 C3y - COUFCI' ' � ►' IN .. ' c. �' \ ' ' CeputY City of Oak Park Heights, . Defendant. IT IS HEREBY ORDERED THAT: 1. All discovery except expert depositions shall be completed in full on or before May 20, 2011. There will be no extensions of the discovery completion date without leave of the Court. 2. The deadline for joining additional parties to this action, whether by amendment or third- party practice, is March 1, 2011. 3. All dispositive Motions shall be heard by the Court no later than June 3, 2011. 4. All nondispositive Motions shall be heard by the Court no later than August 5, 2011. 5. This matter is scheduled for a court trial. Witness lists and exhibit lists shall be submitted to the Court by July 29, 2011. 6. A Joint Statement of the Case shall be submitted to the Court by July 29, 2011. 7. The pre -trial conference shall be held on August 5, 2011 at 9:00 a.m. before the Honorable John C. Hoffman. 8. The trial shall be held on August 24, 2011 at 9:00 a.m. before the Honorable John C. Hoffman. 1 . 9. Request for trial continuances must be by Stipulation of the Attorneys and their respective clients or by proper Motion to the Court. 10. The parties shall select an ADR neutral and participate in mediation by the pretrial. 11. The Washington County Court Administrator shall mail a copy of this Order by U.S. Mail to the parties' attorneys which shall constitute due and proper service of this Order for all purposes. Dated: �`"� John . Hoffman — Judge \f District Court 2 i _ t JARDINE _ ATTORNEYS AT LAW n L ��� /! 1 _ t ' LOGAN % L. ,; ij O'BRIEN 41 NOV 1 6 2010 z '., _ e)e1 uu'y AI LAW Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042 November 15, 2010 Firm (651) 290 -6500 Fax (651) 223 -5070 E -Mail CITY OF OAK PARK HEIGHTS Websit llolaw.com ww s ite aw.com ATTN: ERIC JOHNSON CITY ADMINISTRATOR - PO BOX 2007 John M. Kennedy, Jr. • STILLWATER MN 55082 -3007 Eugene J. Flick • Charles E. Gillin • Pierre N. Regnier PRIVILEGED AND CONFIDENTIAL COMMUNICATION Mark A. Fonken • George W. Kuehner PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP Patti J. Skoglund • AND WORK PRODUCT DOCTRINE Timothy S. Crom Lawrence M. Rocheford • James G. Golembeck • Joseph E. Flynn • Re: 37024(872) Marlene as L. Cummings County of Washington vs. City of Oak Park Heights Leonard J. Schweich Jessica E. Schwie Dear Mr. Johnson: Susan S.Tice Thomas J. Misurek Matthew P. Bandt • On this past Friday, we received a copy of Judge John C. Hoffman's ruling in this Elisa M. Jason A. Koch matter. Attached please find Judge Hoffman's Findings of Fact and Order. Darwin S. Williams Mark K Hellie Nancy J. t hley A you know, both parties brought motions for summary judgment. The court has Daniel J. Stahley Y p g aty j $ denied both motions and will be issuing a Scheduling Order. John R. O'Brien - Admitted in sin, emeritus Minnesota retired I am quite disappointed in the ruling of the court. Alan R. Vanasek - Of Counsel Gerald M. Linnihan - Retired Our primary grounds for summary judgment was that the proper procedure for Some members also admitted reviewing the decision of the City Council in denying the County's request for to practice law in Wisconsin', North Dakota, South Dakota, reimbursement was to petition the Minnesota Court of Appeals through a Writ of and Iowa Certiorari. If the court were to rule in our favor in that regard, this claim would be Shannon Banaszewski barred since their action for bringing a Writ of Certiorari is barred by virtue of the fact Administrator that it would be too late to bring such a claim at this time. Jerre Donald M. Jardine n (1923-1983) The District Court determined that since a municipality is acting in a proprietary capacity and not a government capacity when it provides water services, the requirement for bringing a Writ of Certiorari does not apply. The County had made the same argument in opposing our motion for summary judgment. The problem with the County's argument and the District Court Judge's decision is that there is no case Equal Opportunity Employer PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE Eric Johnson, Oak Park Heights City Administrator November 15, 2010 Page 2 law to support their contention that because a city is acting in a proprietary capacity, the doctrine of requiring a Writ of Certiorari as the proper procedure does not apply. In fact, one of the cases that the County had cited to the court for the proposition that a Writ of Certiorari does not apply because the City was acting in a proprietary capacity is just the opposite. The Minnesota Supreme Court applied the law of Writ of Certiorari when the State was acting in a proprietary capacity as a lessor of mining property. The cases cited by the District Court do not stand for the proposition that when acting in a proprietary capacity, the doctrine of Writ of Certiorari does not apply. There simply is no case law in Minnesota which stands for the proposition that the Writ of Certiorari does not apply when a governmental entity is acting in a proprietary capacity. This issue of whether the County should have proceeded by Writ of Certiorari rather than a suit for unjust enrichment goes directly to the jurisdiction of the court to be hearing this matter. As such, the City could if it chooses take an immediate appeal of the Judge's ruling. I want to do some further research and review of this matter before coming to a conclusion as to whether it is advisable to take an immediate appeal or wait until after the case is decided. The benefit of an immediate appeal is that you avoid the costs and expense of going through a lengthy trial on this matter. The other aspect of the District Court Judge's ruling is that he never addresses the main argument that we made relative to the County's motion for summary judgment. In responding to their motion for summary judgment, we argued that the County had failed to establish and prove the elements necessary for an unjust enrichment claim. We relied on a Minnesota Supreme Court decision of First National Bank of St. Paul v. Ramier, 311 N.W.2d 502 (Minn. 1981) which stands for the proposition that a person claiming unjust enrichment must show "that a party was unjustly enriched in the sense that the term unjustly could mean illegally or unlawfully." A subsequent Minnesota Court of Appeals decision added the provision that unjust can also mean "unconscionable by reason of a bad motive." It is our contention that the County can show absolutely no evidence of illegal, unlawful or unconscionable conduct. That issue, however, is not immediately appealable. It is the County's contention that all they have to show is that the County paid for something that they did not receive and the City has retained the money. As I state, that will be an issue that we will renew after the County puts in its case at the time of trial. If you have any comments or thoughts regarding the court's ruling in this case, please feel free to share those with me. I will be reviewing this matter further and then discuss with you and representatives of the League of Minnesota Cities Insurance Trust as to whether we should be taking an immediate appeal of the court's ruling. PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE Eric Johnson, Oak Park Heights City Administrator November 15, 2010 Page 3 We have at least sixty (60) days to decide whether we should take an immediate or what is referred to as an interlocutory appeal at this time. Very truly yours, J • % ■ i' ' OG_ & O'BRIEN, P.L.L.P. 4 0 60 O ' Terre N. ' egnier Direct Dial: (651) 290 -6563 PNR:slf Enclosure Copy: Mark Rossow, LMCIT Claims (LMCIT Claim No: 11071183) RK VIERLING, ESQ CKBERG LAMMERS BRIGGS WOLFF & VIERLING, PLLP 1809 NORTHWESTERN AVE — STE 110 STILLWATER MN 55082 -7521 State of Minnesota District Court Washington County Tenth Judicial District Court File Number: 82 - - - 4198 Case Type: Civil Other /Misc. Notice of Filing of Order JAMES GERALD GOLEMBECK JARDINE LOGAN & OBRIEN PLLP 8519 EAGLE POINT BLVD STE 100 LAKE ELMO MN 55042 County of Washington vs CITY OF OAK PARK HEIGHTS You are notified that on November 04, 2010, the following was filed: Findings and Order Dated: November 9, 2010 Annette Fritz Court Administrator Washington County District Court 14949.- 62nd St. N; PO Box 3802 Stillwater MN 55082 651- 430 -6263 cc: GEORGE KUPRIAN A true and correct copy of this notice has been served by mail upon the parties herein at the last known address of each, pursuant to Minnesota Rules of Civil Procedure, Rule 77.04. MNCIS -CIV -140 STATE Notice of Filing of Order Rev. 12/2002 • File # F WASHINGTON COUNTY F STATE OF MINNESOTA DISTRICT COURT 1 DISTRICT COURT COUNTY OF WASHINGT(E 1 NUV 0 4 2010 E TENTH JUDICIAL DISTRICT COURT ADMINISTRATOR By County of Washington, Plaintiff, FINDINGS OF FACT AND ORDER vs. City of Oak Park Heights, File No. CV -10 -4198 Defendant. The above - entitled matter came on for hearing before the Honorable John C. Hoffman, Judge of District Court, on August 27, 2010 at the Washington County Government Center, Stillwater, Minnesota, pursuant to motions for summary judgment filed by each party. Plaintiff was represented by George Kuprian, Assistant Washington County Attorney; Maura Shuttleworth, Assistant Washington County Attorney; and Kari Lindstrom, Assistant Washington County Attorney. Defendant was represented by James G. Golembeck, Esq. Based upon the file, records, and proceedings herein, the Court makes the following: FINDINGS OF FACT 1. Defendant City of Oak Park Heights, (hereinafter "City ") has provided the Washington County Law Enforcement Center (hereinafter "County ") with municipal water and sanitary sewer services for many years, including the time period in question, January 1, 2005 through June 30, 2006. • 2. During this time period in question, January 1, 2005 through June 30, 2006, the water usage at the Law Enforcement Center was monitored through a combination of seven water meters.' Both water and sewer charges were calculated from the amount of water used even though the sewer charge calculation does not incorporate readings from the meters. The water usage determined from the low flow meter was used for calculating both the water and sewer service charges. 3. All seven meters were odometer type devices. Each meter provided a continuous count of the amount of water flowing through it. The amount of water used was calculated by subtracting the meter reading at the beginning of the period from the meter reading at the end of the period. Each meter consisted of more digits than were read or reported. These meters have since been replaced. New meters were supplied by the City in June of 2009. The new meters were installed by the County or a County contractor. 4. During the time period in question, the meters were read by County employees at two month intervals, recorded on water meter worksheets and submitted to the City for processing. The City would calculate the usage from the worksheet s recordin determine the Law Enforcement Center's water and sewer charges over a recordings, 9 two month period, and bill the County for half of those charges. 5. The worksheet upon which the water usage was recorded was devised by a County employee. The worksheets were intended to simplify the usage calculation and allow better records retention. These meters are: #1 west meter; #2 compound meter low flow; #3 compound meter high flow; #4 fire meter; #5 sprinkler meter; #6 cooling tower in meter; and #7 cooling blow down meter. 2 The low flow meter has seven digits, although only four of the digits are read, recorded and used to determine usage quantity. The compound meter high flow has eight digits, with only five of the digits being read to determine usage. 3 The County received a bill every month from the City for water and sewer services. 2 6. The low flow meter was read to four digits although there were seven digits in the meter. The maximum reading was 9999 which would then roil over to 0001. The low flow meter readings were in thousands. 7. The City calculated that the water usage attributable to the low flow meter during the time period of January 1, 2005 through June 30, 2006 was 4,027,000 gallons. This amount was determined as follows: 3893 (June 30, 2006 meter reading) + 10,000 (due to meter rollover) = 13,893. Then taking 13,893 — 9866 (January 1, 2005 reading) = 4,027 x 1,000 gallons = 4,027,000 gallons. 8. The County alleges that the City charged it for 24,780,000 gallons of water used during this time period, resulting in an overcharge to the County for 20,753,000 gallons of water. The County alleges that due to this overcharge in usage it was over- charged $114,262.00 for sewer and water services. The County's claim for reimbursement of the overcharge is based on the theory of unjust enrichment. See, Knutson v. City of Moorhead, 84 N.W.2d 626 (Minn. 1957) (City unjustly enriched for sewer overcharges). The County has filed a Motion for Summary Judgment claiming that any facts laying blame to the misreading of the meters are irrelevant to the issue of overpayment, and that the only issue is that the City received money for services it did not provide. 9. The County informed the City of the overcharge on March 11, 2009. The City Finance and Utility Department denied the County's request for reimbursement. The County then sought reimbursement by filing an appeal with the City Council. By Resolution No. 09 -10 -39 dated October 13, 2009 the City Council for the City of Oak 4 According to the County, a rollover is not a usual occurrence as ten million gallons flow through the meter before a rollover occurs. 3 Park Heights denied the County's request for a refund of utility charges, stating that there is no evidence to support the County's "hypothesized claim. " The City maintains that the meters were read and recorded by County employees and the City has no knowledge as to how the meters were read. 10. The City has also filed a Motion for Summary Judgment, claiming that the District Court Tacks subject matter jurisdiction over Plaintiffs claim. The City contends that Oak Park Heights City Council's decision to deny the County's request for a utility refund was quasi - judicial and that the County's only remedy is to proceed by writ of certiorari before the Minnesota Court of Appeals. 11. Minn. Stat. §444.075, subd. 1 a. "allows any municipality as defined in Section 444.075, sub. 2 to build...repair...maintain...and operate..." municipal water and sanitary sewer facilities. The City of Oak Park Heights Ordinance 1001.01 states that the City Council shall "have responsibility for the management, maintenance, care, and operation of the sewer and water systems of the City..." The City provides the Law Enforcement Center with water and sewer services. The Law Enforcement Center is therefore a customer of the City. Minnesota Courts have determined that "in providing water and electricity for its inhabitants, a municipality acts in its proprietary capacity." City of Crookston v. Crookston Water Works, P. & L. Co., 185 N.W. 380 (Minn. 1921). 'When a municipality engages in a private enterprise for profit, it should have the same rights and be subject to the same liabilities as private corporations or individuals." 5 In the Resolution's Findings of Fact the City Council notes that the County's overcharge claim was not brought by the County Department in charge of reading and supervision of meters, but by the bookkeeping or accounting department and then only as a result of filing for a refund of sales tax with the State of Minnesota. 4 • Keever v. City of Mankato, 129 N.W. 158 (Minn. 1910). A city's entering into contracts and granting a franchise to individuals for furnishing water does not involve the exercise of legislative or governmental functions, but only its proprietary powers. City of Crookston at 380. 12. The City claims that the writ of certiorari is the exclusive remedy by which the County may appeal the City Council's dental of a utility refund. The Court disagrees with the City and finds that it has jurisdiction to hear and decide this matter! The City is acting in the capacity of a private corporation, not a governmental entity. Its actions are not quasi - judicial, and therefore jurisdiction of this matter lies properly with the Court. 13. This Court finds that there are issues of material fact present in this case regarding the amount of the overcharge alleged by the County and it is therefore not appropriate to grant Plaintiff's Motion for Summary Judgment. Based upon the foregoing, the Court makes the following: ORDER 1. Plaintiffs Motion for Summary Judgment is denied. 2. Defendant's Motion for Summary Judgment is denied. 3. The Court will subsequently issue a Scheduling Order. 4. The Washington County Court Administrator shall mail a copy of this Order by U.S. Mail to the Y p arties' attorneys which shall constitute due and proper service of this Order for all purposes. Dated: Il lLEl(o ( Jo n C. Hoffman " y e of District Court 6 " It is immaterial whether the city owns the plant and sells the water, or contracts with a private corporation to supply the water. R is not in either case exercising a municipal funct ion." Id. To require that anyone who wishes to contest their water and sewer bill must file a writ of certiorari with the Minnesota Court of Appeals would most definitely result in consumers being placed at a great disadvantage, and few would have the resources to challenge an alleged overcharge. 5 JARDINE ATTORNEYS AT LAW LOGAN & P.L.L.P. O'BRIEN Suite 100 8519 Eagle Point Boulevard February 1, 2011 Lake Elmo, MN 55042 Firm (651) 290 -6500 Fax (651) 223 -5070 E -Mail CITY OF OAK PARK HEIGHTS W e bsite� 'lolaw.com ATTN: ERIC JOHNSON www.jlolaw.com CITY ADMINISTRATOR POBOX2007 STILLWATER MN 55082 -3007 John M. Kennedy, Jr.* Eugene J. Flick * Charles E. Gitlin * PRIVILEGED AND CONFIDENTIAL COMMUNICATION Pierre N. Regnier Mark A. Fonken * PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP George W. Kuehner Patti J. Skoglund * AND WORK PRODUCT DOCTRINE Timothy S. Crom Lawrence M. Rocheford * James G. Golembeck * Re: 37024(872) Joseph E. Flynn * Marlene S. Garvis * County of Washington vs. City of Oak Park Heights Thomas L. Cummings Leonard J. Schweich Dear Mr. Johnson: Jessica E. Schwie Susan S.Tice Thomas J.. B and s k P. Matthew Band As I advised you previously, the County of Washington requested the District Court Elisa M. Hadevig for an Order to allow them to make a Motion for Reconsideration of the Trial Court's Jason A. Koch Darwin S. Williams determination when it denied Washington County's Motion for Summary Judgment. Mark K. Hellie Nancy M. Aboyan I had filed an Objection to that Request. In the meantime, we served and filed our Daniel J. Stahley Notice of Appeal to the Minnesota Court of Appeals. Subsequent to that filing, Judge John R. O'Brien - Admitted Hoffman issued an Order denying Plaintiffs Request for Reconsideration dated in Wisconsin, emeritus Minnesota, retired January 14, 2011. (I was surprised by this ruling because the general rule is that once Alan R. Vanasek - Of Counsel a case has been appealed to the Court of Appeals, the District Court lacks jurisdiction Gerald M. Linnihan - Retired to issue any Orders while that appeal is pending. I suspect that perhaps the Clerk's Some members also admitted Office in Washington County was late in filing the copy of the Notice of Appeal that to practice law in Wisconsin *, we served on the District Court.) North Dakota, South Dakota, and Iowa Needless to say, we will be going forward with the appeal. This issue of Shannon Btnaszewsk Administrator reconsideration is irrelevant to the issues on appeal. Once we have the Brief prepared in support of the appeal, we will send a copy to you for your information. Donald M. Jardine (1915 -2005) Jerre F. Logan (1923 -1983) Equal Opportunity Employer PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE Eric Johnson, Oak Park Heights City Administrator February 1, 2011 Page 2 If you have any questions, please feel free to contact me at any time. Very truly yours, J ' ` E AN & O'BRIEN, P.L.L.P. 4 04010 94' '1- rre N. Regnier , Direct Dial: (651) ' 90 -6563 PNR:slf Enclosure Copy: Mark Rossow, LMCIT Claims (LMCIT Claim No: 11071183) Mark Vierling, Esq. STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT County of Washington, Court File No. 82 -CV -10 -4198 Plaintiff, Fife # F WASHINGTON COUNTY F v. 1 DISTRICT COURT L L City of Oak Park Heights, E JAN 14 2011 p E Defendant. COURT .,' , 1ST' ,TOR D By Was Deputy The Court by previous order denied the County's motion for summary judgment on the calculation of the amount of overage charged by the City of Oak Park Heights for municipal water serves during the period of January 1, 2005 to June 30, 2006. On or about December 2, 2010, this Court received a letter from counsel for Washington County, George Kuprian, Esq. requesting leave for reconsideration of the Court's determination that there remained material issues of fact in the calculation of overages. The Court received a responsive letter from counsel for the City of Oak Park Heights, Pierre Regnier, Esq. dated December 6, 2010 objecting to the County request or that the Court reconsider the matter further. Based on its review of all the files, records, and proceedings herein, the Court now issues the following: ORDER 1. Plaintiffs' request for reconsideration pursuant to Rule 115.11 is DENIED. 2. The attached Memorandum of Law is hereby incorporated by reference and made part of this Order. Dated: January 14, 2011 BY THE COURT Judge of District Court MEMORANDUM OF LAW Rule 115.11 provides that motions to reconsider are prohibited except by express permission of the Court, and that permission will be granted only upon a showing of compelling circumstances. The Advisory Committee comment notes that motions for reconsideration are to la a very limited role in civil practice, and should be approached cautiously Y rY p � pp Y and used sparingly. It goes on to note that courts are likely to reconsider earlier decisions only where "intervening legal developments" have occurred or where the earlier decision is "palpably wrong" in some respect. In this case, Plaintiff has claimed that evident in the Court's findings and order for summary judgment that the amount in dispute between the parties is readily determinable and the Court should simply enter judgment in favor of the County in the amount of $114,262.00. The Court remains convinced that there are material issues regarding the reading protocol, the documentation of the readings and the resulting calculations that are subject to fact discovery and argument and therefore declines the invitation by the County. The Court does not hold the belief it was "clearly wrong" in the determinations made it the summary judgment order. There clearly are no other compelling circumstances that might warrant reconsideration of the Court's decision. While both parties take issue with the Court's conclusions, these were all determinations that are well within the sound discretion of the trial court and opening such decisions for a second round of arguments merely attempts to reargue the disputed matters anew. It would be inappropriate under these circumstances for the Court to grant reconsideration. JCH 2 JARDINE ATTORNEYS AT LAW LOGAN & O'BRIEN January 4, 2011 Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042 CITY OF OAK PARK HEIGHTS ATTN: ERIC JOHNSON Firm (651) 290 -6500 CITY ADMINISTRATOR Fax (651) 223 -5070 PO BOX 2007 E-Mail STILLWATER MN 55082 -3007 Jlolaw lolawcom @� Website www.jlolawcom PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP John M. Kennedy, Jr. * AND WORK PRODUCT DOCTRINE Eugene J. Flick * Charles E. Gillin Pierre N. Regnier Mark A. Fonken Re • 37024(872) M Patti J. Sko glund George Kuehner County of Washington City of Oak Park Heights Pa * 3r g on vs. � g Timothy S. Crom * Lawrence M. Rocheford * James G. Golembeck * Dear Mr. Johnson: Joseph E. Flynn * Marlene S. Garvis Thomas L. Cummings Followin phone conversation of December 30, 2010 wherein you had advised Leonard J. Schweich b P y me that the City Council was not interested in discussing settlement with the County Jessica E. Schwie at this time given their insistence on making a demand of $85,000, I have sent the Susan S.Tice Thomas J. Misurek attached letter on to the attorney for the County. Matthew P. Bandt * Elisa M. Hatlevig Jason Koch Darwin S. Williams We will be filing an appeal to the Minnesota Court of Appeals within the next few Darwin Mark nc M. Aboyan y 1� you Hellie Nancy days. I will kee ou advised. Daniel J. Stahley John R. O'Brien - Admitted Very truly yours, in Wisconsin, emeritus Minnesota, retired JARDINE, LOGAN & O'BRIEN, P.L.L.P. Alan R. Vanasek - Of Counsel Gerald M. Linnihan - Retired Some members also admitted to practice law in Wisconsin *, North Dakota, South Dakota, and Iowa Pierre N. Regnier Direct Dial: (651) 290 -6563 Shannon Banaszewski PNR:slf Administrator Enclosure Donald M. Jardine (1915 -2005) Jerre F. Logan (1923-1983) Copy: Mark Rossow, LMCIT Claims (LMCIT Claim No: 11071183) Mark Vierling, Esq. Equal Opportunity Employer JARDINE ATTORNEYS AT LAW LOGAN O'BRIEN January 4, 2011 Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042 GEORGE KUPRIAN, ESQ ASSISTANT WASHINGTON COUNTY ATTORNEY Fire, (651) 290-6500 WASHINGTON COUNTY GOVERNMENT CENTER Fax (651) 223 -5070 E��-Malt Web 15015 — 62 ST N sillolaw.com P 0 BOX 6 wwwjlolaw.com STILLWATER MN 55082 Re: 37024(872) John M. Kennedy, Jr.* County of Washington v. City of Oak Park Heights Eugene J. Flick * Charles E. Gillin Pierre N. Regnier Dear Mr. Kuprian: Mark A. Fonken * George W. Kuehner Patti Skoglund * Timothy S. O November 22, 2010 , you inquired as to whether the City Council was interested in S. Cr om * ovem q Lawrence M. Rocheford * discussing settlement of this case. I advised you that I would be meeting with the City James G. Golembeck * Joseph E. Flynn * Council the next day regarding this matter and I would let you know accordingly. On Marlene S. Garvis * Thomas L. Cummings November 30, 2010, I advised you that the City would entertain an offer to settle from Leonard J. Schweich you, however, I also advised you that the City was not interested in discussing settlement Jessica E. Schwie if your demand was going to be in the area of the original demand made by staff at Susan S.Tice Washington County in the area of $80,000 or $90,000. On December 15, 2010, you Thomas J. Misurek Matthew P. Bandt * advised me that the County's demand for settlement at this time is $85,000. That Elisa M. Hatlevig ti f i was passed on to the City Council. The City is not interested at this time in Jason A. Koch h Y Y Darwin S. Williams discussing settlement given that the County still is demanding the same sum of money as Mark K. Hellie Nancy M. Aboyan before this litigation commenced. I have been instructed to file an interlocutory appeal at Daniel J. Stahley this time relative to the question of jurisdiction. John R. O'Brien - Admitted in Wisconsin, emeritus Minnesota, retired Very truly yours, Alan R. Vanasek - Of Counsel Gerald M. Linnihan - Retired JARDINE, LOGAN & O'BRIEN, P.L.L.P. Some members also admitted to practice l in Wisconsin North Dakota, aw South Dakota, and Iowa - rre N. Regnier / Shannon Banaezewski Direct Dial: (651) 290 -6563 Administrator PNR:slf Donald M. Jardine (1915 -2005) Jerre F. Logan (1923 -1983) Equal Opportunity Employer i ♦ l City of Oak Park Heights 14168 Oak Park Blvd. N • Box 2007 • Oak Park Huts, MN 55082 • Phone (651) 439 -4439 • Fax (651) 439 -0574 December 29 2010 Mr. Pierre N. Regnier Jardine, Logan & Obrien 8519 Eagle Point Blvd, Suite 100 Lake Elmo, MN 55042 RE: Washington County v. City of Oak Park Heights Dear Mr. Reginer: (Letter sent as a follow -up to phone message of 12/29/10) Per your letter of Dec 15 2010 the City Council does not desire to pursue the $85,000.00 settlement offer as presented by Washington County and the City certainly does desire that you move forward with the discussed appeal. Lastly, the City does not desire to suggest any settlement amount at this time. Perhaps as the appeals process advances such possibility may be reconsidered. Please let me know if you have any questions. Best Regard d appy New Ye Eric Jo ►ion G --1 0 rZ City A., inistr • ti Cc: Mark Vierling, City Attorney l JA1DINE ATTORNEYS AT LAW LOGAN & P.L.L.P. O B RI EN December 15, 2010 Suite 100 CITY OF OAK PARK HEIGHTS 8519 Eagle Point Boulevard Lake Elmo, MN 55042 ATTN: ERIC JOHNSON CITY ADMINISTRATOR Fax (651) 223 -5070 PO BOX 2007 E -Mail STILLWATER MN 55082 -3007 W lolaw @jlolaw.com ebsite www.jlolaw.com PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE John M. Kennedy, Jr. * Eugene J. Flick* Charles E. Giffin * Re: 37024(872) ' Pierre N. Regnier Mark A. Fonken * County of Washington vs. City of Oak Park Heights George W. Kuehner Patti J. Skoglund * Timothy S. Crom * Dear Mr. Johnson: Lawrence M. Rocheford James G. Golembeck * Joseph E. Flynn * Marlene S. Garvis * This is a follow up to our phone conversation of December 15, 2010. Thomas L. Cummings Leonard J. Schweich On December 15, 2010, I had a phone conversation with George Kuprian, the Jessica e e attorney for Washington County. He stated that he had met with the County Board on Thomas J.. B ands n P. December 14, 2010 and their demand for settlement at this time is $85,000. He stated Matthew Bandt Elisa M. Hatlevig that they would agree to take this as a credit on future bills with a payout over five Jason A. Koch Y g Darwin S. Williams years. The City would have to agree that it would not raise the rates charged to Mark K. Hellie Nancy M. Aboyan Washington County for water for the purpose of recouping the $85,000. He agreed Daniel J. Stahley that the City could raise its rates to recoup this payout so long as the County is not John R. O'Brien - Admitted singled out as the only party to have to pay the increased rates. in Wisconsin, emeritus Minnesota, retired Alan R. Vanasek - Of Counsel You indicated that you will be taking this to the City Council for its meeting on Gerald M. Linnihan - Retired December 28, 2010. You advised me that Mark Vierling will be there as the City Some members also admitted Attorney and, therefore, this can be a closed meeting. I do not want this discussed in to practice law in Wisconsin*, Dak , N orth Dakota, South Dakota, an open meeting. If you want me to be there for that meeting, please advise, North and Iowa otherwise I will not plan on attending. Shannon Banaszewski Administrator As I indicated to you, I believe that we should come back with some offer of settlement in this matter. You indicated that you would recommend to the City Donald M. Jardine (1915 -2005) Council that I be authorized to offer $30,000 since that is what you offered early on in Jerre F. Logan (1923 -1983) this matter in response to their prior request for $85,000. There may be some incentive for the County Board to take tht offer given the fact that the City would be willing to pay the $30,000 as a cash settle ens at one time. mo Aut.. Ilia �, 4 S , 6 ...61'. - wi1i Algot is W 0. Equal Opportunity Employer n ' PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE Eric Johnson, Oak Park Heights City Administrator g Y December 15, 2010 Page 2 If we are unable to settle this matter, I will be filing Notice of Appeal pursuant to authority pp P Y granted to me by the City Council at the last meeting when I was present. This would be the appeal on the question of jurisdiction of the Court to hear this matter. By previous correspondence, I forwarded to you the letters involving the County's request for the Judge to reconsider this matter. We have not heard from the Judge relative to the County's request for reconsideration. In our phone conversation, we discussed how the City could pay a Judgment if this went to trial and the Court ruled against the City. The City Council could consider this payout of the g y CyCounc a py Judgment in computing the rates for certain customers based upon what tier they are located in. Certainly we are not at that stage yet. Please advise me on December 29, 2010 as to the City's position so that I can immediately notify Mr. Kuprian of the City's response. Be sure that this letter is kept confidential and is only discussed with the Council at a closed meeting. Do not make it a part of their general packet which then could become public. If you have any further questions, please feel free to contact me at any time. Thank you. Very truly yours, JA ► 1 er & O'BRIEN, P.L.L.P. A i, 1 e 0 - , Pierre N. Regnier Direct Dial: (651) 290 -6563 PNR:sif Copy: Mark Rossow, LMCIT Claims ( LMCIT Claim No: 11071183) Mark Vierling, Esq. JARDINE ATTORNEYS AT LAW LOGAN & P.L.L.P. O'BRIEN December 6, 2010 Suite 100 CITY OF OAK PARK HEIGHTS 8519 Eagle Point Boulevard ATTN: ERIC JOHNSON Lake Elmo, MN 55042 2 CITY ADMINISTRATOR Firm (651) 290 -6500 PO BOX 2007 Fax (651) 223 -5070 STILLWATER MN 55082 -3007 E -Mail jlo @jlolaw.com W www.jlolaw.eom PRIVILEGED AND CONFIDENTL4L COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE John M. Kennedy, Jr. * Eugene J. Flick * Re: 37024(872) Charles E. Gillin * Pierre N. Regnier County of Washington vs. City of Oak Park Heights Mark A. Fonken George W. Kuehner Patti J. Skoglund * Dear Mr. Johnson: Timothy S. Crom Lawrence M. Rocheford * James Golembeck * n * Joseph E . Flynn I Enclosed please find a copy of Mr. George Kuprian's letter dated December 1, 2010, to E. S. Garvis * Thomas L. Cummings Judge John C. Hoffman requesting the right to file a Motion for Reconsideration of the Thomas L Leonard J. Schweich Court's denial of the County's Motion for Summary Judgment. Enclosed also please find Jessica E. Schwie a copy of the letter that I have sent to Judge Hoffman in response. Susan S.Tice Thomas J. Bn The law limits to two pages the length of a letter that can be submitted by either party Matthew P. . Bands dt Elisa M. Hatlevig regarding this request for a Motion for Reconsideration. Jason A. Koch Darwin S. Williams Mark K. Hellie NancyM.Aboyan I will let you know when I hear the Court's decision. Daniel J. Stahley John R. O'Brien - Admitted Further, as I indicated to you, I will be notifying you as soon as I get the request from the in Wisconsin, emeritus Minnesota, retired County for settlement in this matter. Alan R. Vanasek - Of Counsel Gerald M. Linnihan - Retired Very truly yours, Some members also admitted p lX to practice law in Wisconsin *, J • P• I 1 ' ►' O'BRIEN, P.L.L.P. North Dakota, South Dakota, and Iowa Shannon Banaszewski e N. P ier Administrator Direct Dial: (651) 290 -6563 PNR:slf Donald M. Jardine (1915 -2005) Enclosures Jerre F. Logan (1923 -1983) Copy: Mark Rossow, LMCIT Claims (LMCIT Claim No: 11071183) Mark Vierling, Esq. Equal Opportunity Employer JARDINE ATTORNEYS AT LAW LOGAN & P.L.L.P. O'BRIEN December 6, 2010 Suite 100 5519 Eagle Point Boulevard Lake Elmo, MN 55042 Firm (651) 290 -6500 THE HONORABLE JOHN C HOFFMAN Fax (651) 223-5070 JUDGE OF WASHINGTON COUNTY DISTRICT COURT hal @, olaw.com WASHINGTON COUNTY GOVERNMENT CENTER Websir l www.}lolaw.com 14949 — 62 ST N STILLWATER MN 55082 John M. Kennedy, Jr.* Re: 37024(872) Eugene J. Flick • Charles E. Gillin ` Court File No: 82 -CV -10 -4198 Pierre N. Regnier Mark A. Fonken County of Washington v. City of Oak Park Heights George W. Kuehner Patti J. Skoglund * Timothy S. Crom * Dear Judge Hoffman: Lawrence M. Rocheford * James G. Golembeck Joseph E. Flynn * Marlene S. Garvts * This letter is submitted in response to Plaintiff s December 1, 2010, request to file a Thomas L. Cummings Motion for Reconsideration of your ruling dated November 4, 2010. Leonard J. Schweich Jessica E. Schwie First of all if you grant Plaintiff's request, then, because the Order denies both parties' Susan S.Tice Thomas J. Misurek Motions for Summary Judgment, the Defendant City should also be allowed to have Matthew E Bandt * Elisa M. Hatlevig the Court reconsider all of the issues involved in the Motions, including the City's Jason Darwin S. Williams A. Koch Dar defense to Plaintiffs Motions and the City's Motion for Summary Judgment. D Mark K. Hellie However, the Defendant believes the Motion to Reconsider should be denied. Nancy M. Aboyan Daniel J. Stahley John R. O'Brien - Admitted There simply is no viable grounds for Plaintiff's request to have the Court reconsider in Wisconsin, emeritus what it has already ruled on following numerous submittals by both parties. While Minnesota, retired Y g both parties may disagree with the Court's denial of their respective Motions, there is Alan Vanasek - Counsel Geraera ld d M. Linn ihan - Retired no reason or basis for the Court to re -hear these Motions again. nn Some members also admitted to practice law in Wisconsin *, Prior to 1998, the Rules did not allow for a Motion for Reconsideration. Welch v. North Dakota, South Dakota, and Iowa Commissioner of Public Safety, 545 N.W.2d 692 (Minn. Ct. App. 1996); Carter v. Anderson, 554 N.W.2d 110 (Minn. Ct. App. 1996). In 1998, a General Rule was Shannon Banaszewski adopted. General Rule 115.11 prohibits Motions for Reconsideration except by Administrator express permission of the Court but only if a showing is made of compelling Douala M. Jardine (1915-2005) circumstances. Granting a party a right to move for reconsideration is so rare that a Jerre F. Logan (1923 -1983) denial of a request to bring a Motion to Reconsider is not even appealable. See Baker v. Amtrack, 588 N.W.2d 749 (Minn. Ct. App. 1999). The advisory committee commentators on Rule 115.11 point out that such Motions should play a "very limited role in civil practice and should be approached cautiously and used sparingly," and that courts will rarely exercise the right to reconsider a decision. The comments also Equal Opportunity Employer THE HONORABLE JOHN C HOFFMAN December 6, 2010 Page 2 point out that "Motions for Reconsideration are not opportunities for presentation of facts or arguments available when the prior motion was considered. Motions for Reconsideration will not be allowed to `expand' or `supplement' the record on appeal (citations omitted)." All of the arguments set forth in Plaintiff s letter of December 1, 2010, were either arguments that were made or could have been made at the time of the original Motions. There is no intervening law that has developed and no new arguments or facts that are pointed to which would justify the Court rehearing the Motion for Reconsideration. This is not one of those rare situations where Plaintiff has shown compelling circumstances to allow a Motion to be brought so as to allow the parties to re -argue a Motion that has already been decided. Plaintiffs request to file a Motion for Reconsideration should be denied. Very truly yours, JARDINE LOGAN & O'BRIEN, P.L.L.P. OW Pie - . Regnier Direct Dial: (651) 290 -6563 PNR:slf N (;TON • Office of the Washington \Vashington c° 3 r`��� ? � County Attorney • C ourit y Doug Johnson °&sr Roe- County Attorney December 1, 2010 The Honorable John C. Hoffman Judge of District Court Washington County Government Center Stillwater, MN 55082 RE: County of Washington vs. City of Oak Park Heights County Attorney File No. CV- 2009 -2154 Court File No. 82 -CV -10 -4198 Dear Judge Hoffman: The Plaintiff respectfully requests this Court pursuant to Minnesota General Rules of Practice 115.11 to reconsider its decision to deny Plaintiffs motion for summary judgment in the above referenced matter. The Court denied Plaintiff summary judgment finding "...issues of material fact present in this case regarding the amount of overcharge alleged by the County." However, a close study of the Court's Findings of Fact indicates that the very few material facts not in dispute which would entitle Plaintiff to judgment as a matter of law were lost in a miasma of immaterial facts, hence this request. The Court identified the gravamen of Plaintiffs overcharge calculation in its Finding 143, holding that "....the amount of water used [during any period] was calculated by subtracting the meter reading at the beginning of the period from the meter reading at the end of the period." Utilizing this construct, the Plaintiff employed the undisputed January 1, 2005 and the June 30, 2006 low flow meter readings obtained from the worksheets and calculated the actual water usage attributable to the low flow meter during the period in question, which was 4,027,000 gallons. The Defendant did not dispute the efficaciousness of either the readings used or the calculation. The rest of the overcharge determination was a simple matter and merely involved obtaining from City records the amount of water for which the County was charged; subtracting one from the other; and placing the result in the City's algorithm. As discussed in its memoranda, the County determined from data provided nearly exclusively by the City that during the time in question the water and sewer charges to the County were predicated upon a low flow water usage of 24,780,000 gallons, resulting in a 20,753,000 gallon overcharge to the County. Again, these figures were not controverted by Defendant in its response to Plaintiffs motion. Applying the City's sewer and water rate algorithm to the 20,753,000 gallon overcharge, the County overpaid the City $114,262 for sewer and water services. Clearly, these few material facts identified by the Plaintiff and not disputed by the Defendant unequivocally fix the amount Plaintiff was overcharged at $114,262. The Defendant's only response to Plaintiff's motion was to shroud these material facts in a cloud of apocrypha by contending the overcharge was attributed to Plaintiff's faulty readings. Law Enforcement Center • 15015 62 Street North - P. O. Box 6, Stillwater, Minnesota 55082 -0006 Phone: 651 -430 -6115 • Criminal Fax: 651 - 430 -6117 • Juvenile Fax: 651 - 430 -6184 Civil Fax: 651 - 430 -6163 • Victim Witness Fax: 651 -430 -6160 • TTY: 651 - 430 -6246 www.co.washington.mn.us Equal Employment Opportunity / Affirmative Action The City's contention as reflected in the Court's Finding #9 that the County's claim is a "hypothesized" formulation demonstrates a decided lack of understanding by the City of the ease with which the overcharge may be calculated. The only facts necessary to fix the overcharge are the actual use determined through two bracketing meter readings not in dispute and the amount of water for which the County was charged. The rest is left to the immutable laws of mathematics. The City's response to Plaintiff's motion lacked substance and consisted solely of a vitriolic but irrelevant claim that the overpayment was a product of Plaintiff's employees providing faulty meter readings. Whether proven true or not, Defendant's averments are immaterial to this action for unjust enrichment both from the stand point of a defense and determination of the amount of overpayment. It is established jurisprudence in Minnesota that mistake and good faith are not relevant to an action for unjust enrichment. The imperative underpinning this equitable action is captured in U.S. v. Northwestern Nat'l. Bank, 35 F. Supp. 484, 486 (D. Minn. 1940): "No matter how careless or inexcusable the act of the bestower may have been, the recipient of the benefit....must make restoration, the theory being that restitution results in no loss to the recipient. It merely received something for nothing ". This case gives voice to the incongruity of allowing mistake to be a defense to an action that was intended to ameliorate the effect of that very same mistake. Therefore, even if the City were to establish that County employees provided a number of faulty readings it would not signify because, in addition to fault not being a defense, the actual use determination which is a necessary precursor of the overcharge calculation was not impacted by any disputed readings. The Plaintiff is aware that it is seeking an extraordinary remedy and approaches this request for reconsideration with reticence. However, a close study of the Court's Findings of Fact hints that Defendant's polemics may have created a "where's Waldo" situation, wherein the great host of immaterial facts laid before the Court may have veiled the few undisputed material facts which unequivocally establish the amount the Plaintiff was overcharged. While the Plaintiff has provided substantial evidence to categorically fix the amount of overcharge, a search of Defendant's responses to Plaintiff's motion uncovers nothing even remotely disputing the material facts of this case. A trial on this matter would be a great waste of the Court's valuable time because the few facts necessary to determine the amount of overcharge have been conclusively developed in Plaintiff's motion. The Defendant has failed to contravene these material facts in its response and has identified nothing which would indicate it would fare better at trial while, on the other hand, the grant of summary judgment to Plaintiff would afford the Court a just, speedy and inexpensive way to dispose of this case. Very truly yours, DOUG JO SON COUNTY ATTORNEY WASH TON OUNTY, MINNESOTA --`■4( George Kuprian Assistant County Attorney Pierre N. Regnier JARDINE ATTORNEYS AT LAW LOGAN & P.L.L.P. O'BRIEN December 3, 2010 Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042 Firm (651) 290 -6500 CITY OF OAK PARK HEIGHTS Fax (651) 223 -5070 ATTN: ERIC JOHNSON E -Mail .Ni o l ayv t @jlolaw.com CITY ADMINISTRATOR www.jlolaw.com PO BOX 2007 STILLWATER MN 55082 -3007 John M. Kennedy, Jr. * PRIVILEGED AND CONFIDENTIAL COMMUNICATION Eugene J. Flick * Charles E. Gillin PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP Pierre N. Regnier Mark A. Fonken AND WORK PRODUCT DOCTRINE George W. Kuehner Patti J. Skoglund * Timothy S. Crom * Re: 37024(872) Lawrence M. Rocheford * James G. Golembeck * County of Washington vs. City of Oak Park Heights Joseph E. Flynn * Marlene S. Garvis * Thomas L. Cummings Dear Mr. Johnson: Leonard J. Schweich Jessica E. Schwie This is to fill you in on the status of this matter. Susan S.Tice Thomas J. Misurek Matthew P Ban gt * Elisa M. Hatlevi By letter of November 15, 2010, I forwarded to you a copy of the Findings of Fact Jason Koch Darwin S. Williams and Order from Judge John Hoffman. At your request, I met with the City Council in Darw Mark K. Hellie closed session on Tuesday, November 23, 2010. The day before that meeting, I Nancy M. Aboyan Daniel J. Stahley received a phone call from George Kuprian, Assistant Washington County Attorney, John R. O'Brien - Admitted who is handling the lawsuit on behalf of Washington County. Mr. Kuprian had in Wisconsin, emeritus Minnesota, retired q City discussing inquired as to whether the Cit was interested in discussin a settlement of this matter. I told him I would be meeting with the City and get back to him. Alan R. Vanasek - Of Counsel Gerald M. Linnihan - Retired At the meeting of November 23, 2010, the City Council requested that we take an Some members also admitted to practice law in Wisconsin *, interlocutory appeal of that portion of the Judge's Order denying our request for a North Dakota, South Dakota, and Iowa dismissal of the lawsuit on the grounds that the court lacks subject matter jurisdiction in that the proper remedy should be by petition for a Writ of Certiorari rather than an Shannon Banaszewski unjust enrichment lawsuit in District Court. Administrator Donald M. Jardine (1915-2005) Also at that meeting, I informed the Council that the County Attorney made the Jerre E Logan (1923 -1983) inquiry as to settlement. At the City Council's request, I informed Mr. Kuprian following this meeting that the City Council would consider for discussion a demand for settlement from the County. I also informed Mr. Kuprian that the City was not interested in settlement discussions if the County was going to start with a demand in the area of $80,000 or $90,000 which had been the previous request by the staff of Equal Opportunity Employer PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE Eric Johnson, Oak Park Heights City Administrator December 3, 2010 Page 2 Washington County to the staff of the City. Mr. Kuprian stated that he did not know of any prior demand having been made. In that conversation with Mr. Kuprian, I also him that if we were not able to resolve this matter for a reasonable sum of money, the City Council had requested and directed me to file an interlocutory appeal on the jurisdictional issue. On December 1, 2010, Mr. Kuprian advised me that he had spoken to the County Administrator and they will be meeting with the Washington County Board to discuss this issue of settlement at the Board Meeting of December 14, 2010. He pointed out that if there is a settlement, the County would not insist on this being paid to the County as a lump sum but would consider having it paid as a credit on future water bills. I told him to submit to me the County's demand in writing as soon as possible after the meeting. He has advised me that he could possibly have that to me either on December 14, 2010 or the next day. I advised him that the City would more than likely take that up for discussion at a closed meeting on December 28, 2010. Mr. Kuprian also advised me on December 1, 2010, that he is going to be submitting a written request to Judge Hoffman in which he requests that Judge Hoffman reconsider his decision/order in which he denied the County's request for summary judgment. A party is prohibited from bringing a motion for reconsideration unless they receive expressed permission from the court to do so. The court will only grant such permission upon a showing of compelling circumstances. The commentators on this issue of reconsideration have stated in the State Rules that motions for reconsideration play a very limited role in civil practice and should be approached cautiously and used sparingly. The courts rarely grant a party the right to file a motion for reconsideration. As soon as I get the County's demand for settlement, I will be forwarding that on to you. We can then have a short meeting before the City Council Meeting on December 28, 2010, to discuss this with the City Council. If you pass this letter on to members of the City Council, do not put it in their packet of materials. This correspondence must remain private and confidential and, therefore, if it is passed on to them, it should be done so in a confidential manner and should remain confidential. • PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE Eric Johnson, Oak Park Heights City Administrator December 3, 2010 Page 3 If you have any questions, please feel free to call me at any time. Very truly yours, JARDINE, LOGAN & O'BRIEN, P.L.L.P. Pierre N. Regruer Direct Dial: (651) 290 -6563 PNR:slf Copy: Mark Rossow, LMCIT Claims (LMCIT Claim No: 11071183) MARK VIERLING, ESQ ECKBERG LAMMERS BRIGGS WOLFF & VIERLING, PLLP 1809 NORTHWESTERN AVE — STE 110 STILLWATER MN 55082 -7521 I t , JARDINE ATTORNEYS AT LAW LOGAN & P.L.L.P. O'BRIEN Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042 November 15, 2010 Firm (651) 290 -6500 Fax (651) 223 -5070 E -Mail CITY OF OAK PARK HEIGHTS Websi ylolaw.com www.jlolaw.com ATTN: ERIC JOHNSON CITY ADMINISTRATOR PO BOX 2007 John M. Kennedy, Jr. * STILLWATER MN 55082 -3007 Eugene J. Flick * Charles E. Gillin * Pierre N. Regnier PRIVILEGED AND CONFIDENTIAL COMMUNICATION Mark A. Fonken George W. Kuehner PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP Patti J. Skogland * Timothy S. Crom AND WORK PRODUCT DOCTRINE Lawrence M. Rocheford * James G. Golembeck * Joseph E. Flynn " Re: 37024(872) Marlene S. Garvis * Thomas L. Cummings County of Washington vs. City of Oak Park Heights Leonard J. Schweich Jessica E. Schwie Dear Mr. Johnson: Susan S.Tice Thomas J, Misurek Matthew P. Bands * On this past Friday, we received a copy of Judge John C. Hoffman's ruling in this Elisa M. Hatlevig Jason A. Koch matter. Attached please find Judge Hoffman's Findings of Fact and Order. Darwin S. Williams Mark K. Hellie Nancy M. Aboyan Daniel J. Stahley As you know, both parties brought motions for summary judgment. The court has denied both motions and will be issuing a Scheduling Order. John R. O'Brien - Admitted in Wisconsin, emeritus Minnesota, retired I am quite disappointed in the ruling of the court. Alan R. Vanasek - Of Counsel Gerald M. Linnihan - Retired Our primary grounds for summary judgment was that the proper procedure for Some members also admitted reviewing the decision of the City Council in denying the County' s request for to practice law in Wisconsin *, North Dakota, South Dakota, reimbursement was to petition the Minnesota Court of Appeals through a Writ of and Iowa Certiorari. If the court were to rule in our favor in that regard, this claim would be Shannon Banaszewski barred since their action for bringing a Writ of Certiorari is barred by virtue of the fact Administrator that it would be too late to bring such a claim at this time. Dld M. Jard (1915-2005) The District Court determined that since a municipality is acting in a proprietary Jerre ona R Logan (192 3 -1983) p y g capacity and not a government capacity when it provides water services, the requirement for bringing a Writ of Certiorari does not apply. The County had made the same argument in opposing our motion for summary judgment. The problem with the County's argument and the District Court Judge's decision is that there is no case Equal Opportunity Employer PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE Eric Johnson, Oak Park Heights City Administrator November 15 2010 Page 2 law to support their contention that because a city is acting in a proprietary capacity, the doctrine of requiring a Writ of Certiorari as the proper procedure does not apply. In fact, one of the cases that the County had cited to the court for the proposition that a Writ of Certiorari does not apply because the City was acting in a proprietary capacity is just the opposite. The Minnesota Supreme Court applied the law of Writ of Certiorari when the State was acting in a proprietary capacity as a lessor of mining property. The cases cited by the District Court do not stand for the proposition that when acting in a proprietary capacity, the doctrine of Writ of Certiorari does not apply. There simply is no case law in Minnesota which stands for the proposition that the Writ of Certiorari does not apply when a governmental entity is acting in a proprietary capacity. This issue of whether the County proceeded by should have roceeded b Writ of Certiorari rather than a suit for unjust enrichment goes directly to the jurisdiction of the court to be hearing this matter. As such, the City could if it chooses take an immediate appeal of the Judge's ruling. I want to do some further research and review of this matter before coming to a conclusion as to whether it is advisable to take an immediate appeal or wait until after the case is decided. The benefit of an immediate appeal is that you avoid the costs and expense of going through a lengthy trial on this matter. The other aspect of the District Court Judge's ruling is that he never addresses the main argument that we made relative to the County's motion for summary judgment. In responding to their motion for summary judgment, we argued that the County had failed to establish and prove the elements necessary for an unjust enrichment claim. We relied on a Minnesota Supreme Court decision of First National Bank of St. Paul v. Ramier, 311 N.W.2d 502 (Minn. 1981) which stands for the proposition that a person claiming unjust enrichment must show "that a party was unjustly enriched in the sense that the term unjustly could mean illegally or unlawfully." A subsequent Minnesota Court of Appeals decision added the provision that unjust can also mean "unconscionable by reason of a bad motive." It is our contention that the County can show absolutely no evidence of illegal, unlawful or unconscionable conduct. That issue, however, is not immediately appealable. It is the County's contention that all they have to show is that the County paid for something that they did not receive and the City has retained the money. As I state, that will be an issue that we will renew after the County puts in its case at the time of trial. If you have any comments or thoughts regarding the court's ruling in this case, please feel free to share those with me. I will be reviewing this matter further and then discuss with you and representatives of the League of Minnesota Cities Insurance Trust as to whether we should be taking an immediate appeal of the court's ruling. PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY - CLIENT RELATIONSHIP AND WORK PRODUCT DOCTRINE Eric Johnson, Oak Park Heights City Administrator November 15, 2010 Page 3 We have at least sixty (60) days to decide whether we should take an immediate or what is referred to as an interlocutory appeal at this time. Very truly yours, • , OG _ N & O'BRIEN, P.L.L.P. . I Terre N. , egnier Direct Dial: (651) 290 -6563 PNR:slf Enclosure Copy: Mark Rossow, LMCIT Claims (LMCIT Claim No: 11071183) MARK VIERLING, ESQ ECKBERG LAMMERS BRIGGS WOLFF & VIERLING, PLLP 1809 NORTHWESTERN AVE — STE 110 STILLWATER MN 55082 -7521 State of Minnesota District Court Washington County Tenth Judicial District Court File Number: 82 -CV -10 -4198 Case Type: Civil Other/Misc. Notice of Filing of Order JAMES GERALD GOLEMBECK JARDINE LOGAN & OBRIEN PLLP 8519 EAGLE POINT BLVD STE 100 LAKE ELMO MN 55042 County of Washington vs CITY OF OAK PARK HEIGHTS You are notified that on November 04, 2010, the following was filed: Findings and Order Dated: November 9, 2010 Annette Fritz Court Administrator Washington County District Court 14949 - 62nd St. N; PO Box 3802 Stillwater MN 55082 651- 430 -6263 cc: GEORGE KUPRIAN A true and correct copy of this notice has been served by mail upon the parties herein at the last known address of each, pursuant to Minnesota Rules of Civil Procedure, Rule 77.04. MNCIS -CIV -140 STATE Notice of Filing of Order Rev. 12/2002 File # WASHINGTON COUNTY F STATE OF MINNESOTA DISTRICT COURT 1 DISTRICT COURT COUNTY OF WASHINGTtl NUV 0 4 2010 E TENTH JUDICIAL DISTRICT COURT ADM`INNIISTRATOR By n ._DePuty County of Washington, Plaintiff, FINDINGS OF FACT AND ORDER vs. City of Oak Park Heights, File No. CV -10 -4198 Defendant. The above - entitled matter came on for hearing before the Honorable John C. Hoffman, Judge of District Court, on August 27, 2010 at the Washington County Government Center, Stillwater, Minnesota, pursuant to motions for summary judgment filed by each party. Plaintiff was represented by George Kuprian, Assistant Washington County Attorney; Maura Shuttleworth, Assistant Washington County Attorney; and Kari Lindstrom, Assistant Washington County Attorney. Defendant was represented by James G. Golembeck, Esq. Based upon the file, records, and proceedings herein, the Court makes the following: FINDINGS OF FACT 1. Defendant City of Oak Park Heights, (hereinafter "City ") has provided the Washington County Law Enforcement Center (hereinafter "County ") with municipal water and sanitary sewer services for many years, including the time period in question, January 1, 2005 through June 30, 2006. 6. The low flow meter was read to four digits although there were seven digits in the meter. The maximum reading was 9999 which would then roll over to 0001. The low flow meter readings were in thousands. 7. The City calculated that the water usage attributable to the low flow meter during the time period of January 1, 2005 through June 30, 2006 was 4,027,000 gallons. This amount was determined as follows: 3893 (June 30, 2006 meter reading) + 10,000 (due to meter rollover) = 13,893. Then taking 13,893 — 9866 (January 1, 2005 reading) = 4,027 x 1,000 gallons = 4,027,000 gallons. 8. The County alleges that the City charged it for 24,780,000 gallons of water used during this time period, resulting in an overcharge to the County for 20,753,000 gallons of water. The County alleges that due to this overcharge in usage it was over- charged $114,262.00 for sewer and water services. The County's claim for reimbursement of the overcharge is based on the theory of unjust enrichment. See, Knutson v. City of Moorhead, 84 N.W.2d 626 (Minn. 1957) (City unjustly enriched for sewer overcharges). The County has filed a Motion for Summary Judgment claiming that any facts laying blame to the misreading of the meters are irrelevant to the issue of overpayment, and that the only issue is that the City received money for services it did not ,provide. 9. The County informed the City of the overcharge on March 11, 2009. The City Finance and Utility Department denied the County's request for reimbursement. The County then sought reimbursement by filing an appeal with the City Council. By Resolution No. 09 -10 -39 dated October 13, 2009 the City Council for the City of Oak 4 According to the County, a rollover is not a usual occurrence as ten million gallons flow through the meter before a rollover occurs. 3 Park Heights denied the County's request for a refund of utility charges, stating that there is no evidence to support the County's "hypothesized claim. " The City maintains that the meters were read and recorded by County employees and the City has no knowledge as to how the meters were read. 10. The City has also filed a Motion for Summary Judgment, claiming that the District Court Tacks subject matter jurisdiction over Plaintiff's claim. The City contends that Oak Park Heights City Council's decision to deny the County's request for a utility refund was quasi - judicial and that the County's only remedy is to proceed by writ of certiorari before the Minnesota Court of Appeals. 11. Minn. Stat. §444.075, subd. la. "allows any municipality as defined in Section 444.075, sub. 2 to build...repair...maintain...and operate..." municipal water and sanitary sewer facilities. The City of Oak Park Heights Ordinance 1001.01 states that the City Council shall "have responsibility for the management, maintenance, care, and operation of the sewer and water systems of the City..." The City provides the Law Enforcement Center with water and sewer services. The Law Enforcement Center is therefore a customer of the City. Minnesota Courts have determined that "in providing water and electricity for its inhabitants, a municipality acts in its proprietary capacity." City of Crookston v. Crookston Water Works, P. & L. Co., 185 N.W. 380 (Minn. 1921). 'When a municipality engages in a private enterprise for profit, it should have the same rights and be subject to the same liabilities as private corporations or individuals." 5 In the Resolution's Findings of Fact the City Council notes that the County's overcharge claim was not brought by the County Department in charge of reading and supervision of meters, but by the bookkeeping or accounting department and then only as a result of filing for a refund of sales tax with the State of Minnesota. 4 Keever v. City of Mankato, 129 N.W. 158 (Minn. 1910). A city's entering into contracts and granting a franchise to individuals for furnishing water does not involve the exercise of legislative or governmental functions, but only its proprietary powers. City of Crookston at 380. 12. The City claims that the writ of certiorari is the exclusive remedy by which the County may appeal the City Council's denial of a utility refund. The Court disagrees with the City and finds that it has jurisdiction to hear and decide this matter. The City is Y jurisdiction Y acting in the capacity of I I g he ap y o a private corporation, not a governmental entity. Its actions are not quasi - judicial, and therefore jurisdiction of this matter lies properly with the Court. 13. This Court finds that there are issues of material fact present in this case regarding the amount of the overcharge alleged by the County and it is therefore not g 9 9 9 Y Y appropriate to grant Plaintiffs Motion for Summary Judgment. Based upon the foregoing, the Court makes the following: ORDER 1. Plaintiffs Motion for Summary Judgment is denied. 2. Defendant's Motion for Summary Judgment is denied. 3. The Court will subsequently issue a Scheduling Order. 4. The Washington County Court Administrator shall mail a copy of this Order by U.S. Mail to the parties' attorneys which shall constitute due and proper service of this Order for all purposes. ( Dated: (11 Jo n C. Hoffman ` e of District Court s, "It is immaterial whether the city owns the plant and I water, or contracts with private y he p{a a d se Is the Ovate , o con ac h a p corporation to supply the water. It is not in either case exercising a municipal function." Id. 7 To require that anyone who wishes to contest their water and sewer bill must file a writ of certiorari with the Minnesota Court of Appeals would most definitely result in consumers being placed at a great disadvantage, and few would have the resources to challenge an alleged overcharge. 5 r JARDINE ATTORNEYS AT LAW LOGAN & P.L.L.P. O Suite 100 September 1, 2010 8519 Eagle Point Boulevard Lake Elmo, MN 55042 Firm (651) 290 -6500 Fax (651) 223 -5070 ERIC JOHNSON E� -Mail atv CITY ADMINISTRATOR www.jlolaw.com CITY OF OAK PARK HEIGHTS PO BOX 2007 STILLWATER MN 55082 -3007 John M. Kennedy, Jr. * Eugene J. Flick * Charles E. Gillin Re: County of Washington vs. City of Oak Park Heights Ch Pierre N. Regnier Our File No. 37024 (872) Mark A. Fonken * George W. Kuehner Patti J. Skoglund * Timothy S. Crom * Dear Mr. Johnson: Lawrence M. Rocheford * James G. Golembeck * Joseph E. Flynn * This letter is in follow -up to my telephone message to you wherein I indicated that on Marlene S. Garvis Thomas L. Cummings Friday, August 27, 2010, I argued our motion for summary judgment before the Leonard J. Schweich Honorable John C. Hoffman, District Court Judge, at the Washington County Jessica E. Schwie Government Center in Stillwater, MN. Arguing against our motion for summary Susan S.Tice Thomas J. Misurek judgment and arguing the County's motion for summary judgment was Assistant Matthew P. Bandt * Elisa M. Hatlevig Washington County Attorney George Kuprian. Jason A. Koch Darwin S. Williams Mark K.Hellie Since we filed our motion first, we had the opportunity to argue our arguments first. Nancy M. Aboyan Daniel J. Stahley Our main argument was the fact that the Court lacked jurisdiction since the City Council's decision to deny the refund was a quasi judicial decision. We argued all the John R. O'Brien - Admitted in Wisconsin, emeritus relevant case law and argued that the City's denial was only appealable by writ of Minnesota, retired certiorari to the Court of Appeals and met all three criteria of quasi judicial actions. Alan R. Vanasek - Of Counsel Gerald M. Linnihan - Retired In opposition to our motion for summary judgment, Washington County never argued Some members also admitted to practice law in Wisconsin *, any of the three factors or that the decision was not quasi judicial, but that the North Dakota, South Dakota, and Iowa decision was proprietary in nature and more of a business decision of a waterworks and, therefore, not governmental in nature and, therefore, not reviewable by certiorari. Shannon Banaszewski Administrator We indicated that the main case cited by Washington County for their proprietary argument actually was up on review by writ of certiorari and the Court indicated it Donald M. Jardine (1915 -2005) Jerre F. Logan (1923 -1983) was a quasi judicial action. Washington County had no response to this argument. Washington County also argued that it was entitled to summary judgment based upon the fact that the claim for unjust enrichment was not barred by any material facts. Equal Opportunity Employer ERIC JOHNSON September 1, 2010 Page 2 We argued that Washington County's claim for unjust enrichment was not supported by neither fact nor law in that they did not plead or raise an argument that the City of Oak Park Heights acted illegally or unlawfully. We argued that the case law, which is clear in the State of Minnesota, requires illegal or unlawful action, which Washington County did not show, plead or even argue. We also argued there were factual issues as to the defenses of estoppel and laches and the actual amount of any reimbursement which cannot be verified, especially since Washington County destroyed the meters. The only real comment by the Court was the Court indicated that if a mere homeowner had a small charge they were contesting, they would have to go immediately to the Court of Appeals with the small charge, which did not seem right. I indicated to the Court that certiorari was the remedy as set forth in the law and that the Court had to apply the law in this case. All in all, I believe Washington County's argument was not very persuasive. Judge Hoffman did take the matter under advisement and will be issuing a decision within 90 days. We shall advise you immediately when we receive the Court's decision. If you have any further questions concerning this matter, please feel free to contact me. Very truly yours, JARDINE, LOGAN & O'BRIEN, P.L.L.P. : es G. Golembeck Direct Dial: (651) 290 -6567 JGG:lis copy: MARK J VIERLING ECKBERG LAMMERS 1809 NORTHWESTERN AVENUE STILLWATER MN 55082 f ARDINE ATTORNEYS AT LAW LOGAN & P.L.L.Y. O'B RIEN Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042 August 23, 2010 Firm (651) 290-6500 Fax (651) 223-5070 E -Mail vt l e t t @jlolaw.com www.ylolaw.com COURT ADMINISTRATOR WASHINGTON COUNTY GOV'T CTR 14949 62 ST. N John M. Kennedy, Jr. * STILLWATER MN 55082 Eugene J. Flick * via fax: (651) 430 -4461 Charles E. Gilhn' Pierre N. Regnier Mark e W. Kuehner en George W. Re: County of Washington vs. City of Oak Park Heights Patti J. Skoglund • Timothy S. Crom * Court File No. 82 -CV -10 -4198 T Lawrence M. Rocheford * Our File No. 37024 (872) James G. Golembeck' Joseph E. Flynn' Marlene S. Garvis * Thomas L. Cummings Dear Court Administrator: Leonard J. Schweich Jessica E. Schwie Enclosed for filing, please find Defendant City of Oak Park Heights' Reply Susan S.Tice J . Misurek Thomas Memorandum To Plaintiffs Responsive Memorandum of Law. Matthew P. Bandt * Elisa M. Hatlevig Jason A. Koch By copy of this letter, we are serving the same upon counsel for Plaintiff. Darwin S. Williams Mark K. Hellie • Nancy ce l J. Stahley hley Dan Very truly yours, Daniel J. thley John R. O'Brien - Admitted in Wisconsin, emeritus JARDINE, LOGAN & O'BRIEN, P.L.L.P. Minnesota, retired - 3 Alan R. Vanasek - Of Counsel Gerald M. Linnihan - Retired Some members also admitted 1 Y� ' es G. Golembeck to practice law in Wisconsin *, South Dakota, - North Dakota, s Direct Dial: (651) 290 6567 and Iowa Shannon Banaszewski JGG:lls Administrator Enclosure Donald M. Jardine (1915 -2005) Jerre F. Logan (1923 -1983) Equal Opportunity Employer 1 STATE OF MINNESOTA DISTRICT COURT WASHINGTON COUNTY TENTH JUDICIAL DISTRICT Case Type: OTHER CIVIL Washington County, Court File No. 82 -CV -10 -4198 Plaintiff, vs. DEFENDANT CITY OF OAK PARK HEIGHTS' REPLY MEMORANDUM TO PLAINTIFF'S RESPONSIVE MEMORANDUM OF -LAW City of Oak Park Heights, Defendant. INTRODUCTION This Memorandum is a brief reply to Plaintiff Washington County's Memorandum In Opposition to the City of Oak Park Heights' Motion For Summary Judgment. As more fully set forth in Defendant City of Oak Park Heights' Memorandum of Law In Support of Its Motion For Summary Judgment, this Court lacks jurisdiction to review the City Council's decision because the utility refund proceedings before the City Council were reviewable Writ of certiorari to the Court o f Appeals. judicial in nature and are only ev ewable by W pp eals. Apart from the rhetorical pros set forth by the County, the County makes two basic p p Y Y arguments in support of its contention that the City of Oak Park Heights' decision is not reviewable by writ of certiorari. First, Washington County argues that the City of Oak Park Heights was acting in a proprietary role and, therefore, no decisions are reviewable by writ of certiorari. Second, that review by writ of certiorari denies access to the Courts and limits review. As set forth below, both arguments of Washington County are misplaced and this Court must dismiss Washington County's Complaint as this Court lacks subject matter jurisdiction to review the quasi-judicial determinations of the City of Oak Park Heights. ISSUES I. WHETHER WASHINGTON COUNTY'S ARGUMENT THAT A WRIT OF CERTIORARI IS ONLY INTENDED TO REVIEW ACTIONS OF THE CITY COUNCIL'S DECISIONS ONLY WHEN IT IS ACTING IN A GOVERNMENTAL CAPACITY HAS A LEGAL BASIS? Washington County alleges that the City of Oak Park Heights's City Council's determination, even though it may have been quasi-judicial, is not reviewable by writ of certiorari since the City of Oak Park Heights was acting in its proprietary capacity and not a governmental capacity. Washington County cites several cases for the proposition that in providing water and/or electricity, a municipality acts in a proprietary capacity. Washington County then makes a quantum leap that any decisions relating to water distribution are, therefore, not reviewable by writ of certiorari. Washington County, however, has cited no case law or other law to directly support this argument. One case cited by Washington County for its proprietary argument is actually opposite of the position taken by Washington County. Youngstown Mines Corporation v. Prout, 266 Minn. 450 (1963), involved a certiorari proceeding for review of action of the State Commissioner of Conservation denying a claim of a mineral lessee of the State for a refund of royalties. The writ in Youngstown discusses the State's proprietary functions in entering into the lease. However, the Court states that Youngstown was entitled to certiorari and sets forth the following reasoning: * * * (I)t appears: (1) that no appeal is allowed from the disapproval of the latter's claims; (2) that the action of disapproval was judicial or quasi- 2 judicial; (3) the disapproval affected relator in his property rights; and (4) the disapproval was the final adjudication of a claimed legal right of the relator. It follows that certiorari was the proper method of procedure in this matter. Id., at 488. This is the same exact reasoning as set forth by the City of Oak Park Heights as concerns Washington County's claims for refund of utility charges. Minnesota law states e is a statutory authority for a different proceeding, may "unless there st party Y obtain rY Y p g p review of a quasi-judicial decision by an executive body that does not have statewide jurisdiction only by writ of certiorari." Willis v. County of Sherburne, 355 N.W.2d 277, 282 (Minn. 1966). Unless provided by statute or appellate rule to obtain judicial review of an administrative agency's quasi-judicial decision, a party must petition the Court of Appeals for a writ of certiorari. See, Neitzel v. County of Redwood, 521 N.W.2d 73, 76 (Minn. Ct. App. 1994). In addition, Minnesota Courts have set forth three indicia of quasi-judicial actions. The three indicia of quasi-judicial actions are as follows: "(1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim." See, Handicraft Block Limited Partnership v. City of Minneapolis, 611 N.W.2d 16 (Minn. 2000). The crucial factor in all of the cases cited clearly is whether there is a quasi-judicial decision. None of the cases differentiate between proprietary and /or governmental actions. What the law does state is that review of a quasi-judicial decision by an executive body is only by writ of certiorari. Washington County does not dispute, in its response, any three of the indicia of quasi-judicial actions. There is no dispute that there was an investigation into a 3 disputed claim and weighing of evidentiary facts. There is no dispute that there was application of those facts to a prescribed standard and there was no dispute that there was a binding decision regarding the disputed claim. Clearly, there was a quasi-judicial decision by the City Council and the law clearly states that that decision is only reviewable by writ of certiorari and, therefore, this Court lacks jurisdiction. II. WHETHER WRIT OF CERTIORARI REVIEW LIMITS SCOPE OF REVIEW AND ACCESS TO THE COURT? Washington County makes an argument that writ of certiorari is not appropriate in this matter since it would essentially close the courthouse door to many and limit review and creates a "defacto shut -off from access to the courts." Nothing can be further from the truth. Washington County cites no law that writ of certiorari review is limited to certain issues. It is well- settled that the Court of Appeals, in reviewing the City's quasi-judicial decision, can apply equitable principles. See, Interstate Power Company, Inc. v. Nobles County Board of Commissioners, 617 N.W.2d 566, 575 (Minn. 2000). Further, writ of certiorari is appropriate to review questions of law. See, Naegele Outdoor Advertising, Inc. v. Minneapolis Community Dev. Agency, 551 N.W.2d 235, 237 (Minn. Ct. App -. 1996). Again, Washington County cites no law for the proposition that certiorari review is inadequate, unconstitutional and prevents adequate access to justice and/or limits issues on review and/or appeal. Writ of certiorari review provides the party with an opportunity to seek review immediately at the Court of Appeals and surely does not run contrary to constitutional guarantees that all persons are entitled to a legal remedy for their injuries. 4 CONCLUSION Washington County cites no legal precedent that writ of certiorari is limited to certain classifications of quasi-judicial decisions. Further, Washington County cites no law that the writ of certiorari review is constitutionally inadequate or prevents access to justice. Clearly, the City of Oak Park Heights' decision to not refund utility charges was quasi-judicial and, therefore, this Court lacks jurisdiction since the only method to review the City of Oak Park Heights' quasi-judicial decision was by writ of certiorari. Therefore, the case must be dismissed. Dated: August 23, 2010. JARDINE, LOGAN & O'BRIEN, P.L.L.P. By: ° '4 N. REGNIER (A.R. #90232) + o S G. GOLEMBECK (A.R.# 179620) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8624 (651) 290 -6500 ATTORNEYS FOR DEFENDANT — CITY OF OAK PARK HEIGHTS 5 STATE OF MINNESOTA ) ) ss. Our File No. 37024 (872) COUNTY OF WASHINGTON ) LORI L. STORK of the City of Lake Elmo, County of Washington, in the State of Minnesota, being duly sworn, says that on August 23, 2010, she served the annexed Defendant City of Oak Park Heights' Reply Memorandum To Plaintiffs Responsive Memorandum of Law on: GEORGE KUPRIAN ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH POBOX6 STILLWATER MN 55082 via fax only: (651) 430 -6163 by faxing him a copy thereof. LA, 1 L . Lori L. Stork Subscribed and sworn to before me this Augu t 23, 2010. /1 Not/ 'ublic NAN Y : ; • ms,,. Nctry Public Minnesota Commission :31.201 • JARDINE ATTORNEYS AT LAW LOGAN & EL.L.R O'BRIEN August 18, 2010 Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042 COURT ADMINISTRATOR Fax (651) 223-5070 WASHINGTON COUNTY GOV'T CTR E -Mail 14949 62 ST. N jlolaw @jlolaw.com STILLWATER MN 55082 Website www.jlolaw.com via f fax: (651) 430 -4461 Re: County of Washington vs. City of Oak Park Heights y � y John M. Kennedy, Jr. * Court File No. 82 -CV -10 -4198 Eugene J. Flick Charles E. Gillin * 24 2 Our File No. 37024 (87 ) Pierre N. Regnier Mark A. Fonken * George W. Kuehner Patti J. Skoglund Dear Court Administrator: Timothy S. Crom Lawrence M. Rocheford * James G. Golembeck * Enclosed for filing, please find the following: Joseph E. Flynn * Marlene S. Garvis Thomas L. Cummings Leonard J, Schweich 1. Defendant City of Oak Park Heights , Memorandum of Law In Opposition To Plaintiff's Motion For Summary Judgment; Jessica E. Schwie Susan S.Tice Thomas J. Misurek 2. Affidavit of James G. Golembeck; and Matthew P. Bandt * Elisa M. Hatlevig Jason Koch Darwin 3. Supplemental Affidavit of Judy Hoist. Darwin n S. . Williams W Mark K. Hellie Nancy M. Aboyan Daniel J. Stahley r check in the amount of 125.00 which sum re Also enclosed please find ou ch $ represents p John R. O'Brien - Admitted the motion and fax filing fees. Please return a receipt to me for the filing fees paid. in Wisconsin, emeritus Minnesota, retired By copy of this letter, we are serving the same upon counsel for Plaintiff. Alan R. Vanasek - Of Counsel Gerald M. Linnihan - Retired Very truly yours, Some members also admitted y y to practice law in Wisconsin *, North Dakota, South Dakota, and Iowa • JARDINE, LOGAN & O'BRIEN, P.L.L.P. Shannon Banaszewski 0.111". �� Administrator Donald Jardine (1915-2005) Jaa' G. Golembeck beck Don a M J n Jerre F Logan (1923 -1983) Direct Dial: (651) 290 -6567 JGG:lls Enclosure Equal Opportunity Employer COURT ADMINISTRATOR August 18, 2010 Page 2 copy: GEORGE KUPRIAN ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 blind copy: ERIC JOHNSON CITY ADMINISTRATOR CITY OF OAK PARK HEIGHTS PO BOX 2007 STILLWATER MN 55082 -3007 JUDY HOLST FINANCE DIRECTOR CITY OF OAK PARK HEIGHTS PO BOX 2007 STILLWATER MN 55082 -3007 MARK A ROSSOW LITIGATION SUPERVISOR LMCIT 145 UNIVERSITY AVE W ST PAUL MN 55103 -2044 [11071183] STATE OF MINNESOTA DISTRICT COURT WASHINGTON COUNTY TENTH JUDICIAL DISTRICT Case Type: OTHER CIVIL Washington County, Court File No. 82 -CV -10 -4198 Plaintiff, vs. DEFENDANT CITY OF OAK PARK HEIGHTS' MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT City of Oak Park Heights, Defendant. INTRODUCTION Plaintiff's sole claim against the City of Oak Park Heights is a claim of unjust enrichment. Washington County alleges that it overpaid the City for sanitary sewer and water services for the period January 1, 2005 through June 30, 2006. Defendant City of Oak Park Heights brought a motion for Summary Judgment, arguing that this Court lacks jurisdiction since the City Council's decision to deny a utility refund was quasi-judicial and only reviewable by Writ of Certiorari before the Minnesota Court of Appeals. Plaintiff Washington County brought a motion for Summary Judgment alleging that it is entitled to an award of damages based upon the equitable doctrine of unjust enrichment. Defendant City of Oak Park Heights reasserts that this Court lacks jurisdiction and that this case must be dismissed. Further, Plaintiff's motion for Summary Judgment must be dismissed since Plaintiff had a legal remedy at law and are not entitled to equitable relief. Further, Plaintiff is estopped from challenging the City Council's decision to deny the refund. In addition, the equitable doctrine of laches' prevents recovery in this matter. Lastly, there is no evidence of unlawful or illegal acts and, as such, Washington County's claim of unjust enrichment must be dismissed. ISSUES PRESENTED I. Whether Plaintiff's claims are barred since they had an inadequate legal remedy at law? II. Whether Washington County's claim of unjust enrichment must be dismissed since it is not adequately supported by evidence? III. Are Plaintiff s claims barred by the equitable doctrine of estoppel? IV. Are Plaintiffs claims barred by the equitable doctrine of laches? V. Whether there are material fact issues precluding summary judgment? FACTS Plaintiff Washington County maintains that though the facts of this case are extensive and complex, the material facts are few and simple. In spite of that, Washington County goes forward and recites eight pages of facts. In those eight pages, Washington County takes City of Oak Park Heights also alleges the affirmative defense of waiver in that Washington County obviously waived any of its claims since it voluntarily paid the amounts of the utility bills using information Washington County provided to calculate the usage and charges. 2 great pains to downplay or even eliminate mention of the following undisputed facts: 1. That all the water utility meters were owned, operated and maintained and read by Washington County's employees. 2. That Washington County employees provided information sheets to the City of Oak Park Heights with the meter readings. 3. The meters were never independently read by City of Oak Park Heights and Washington County was fully responsible for reading the meters and understanding its owns meters and training its own employees as to reading its own meters. 4. That the damages Washington County alleges for overcharges occurred in 2005 and 2006. 5. That all the meters have been replaced and disposed of by Washington County. 6. That there is no independent way to verify the accuracy of the meters or the reads, which were read and forwarded by Washington County. (Exhibits 1 -12 — Affidavit of Judy Holst; Supplemental Affidavit of Judy Holst) It is undisputed that during the period of January 1, 2005 — June 30, 2006, water usage at the LEC (Law Enforcement Center) was monitored by water meters owned, operated and maintained by Washington County Employees. Meter readings of all Washington County meters were done by County Employees every two months and the readings were provided by Washington County Employees to the City of Oak Park Heights for billing purposes. (Exhibits 2, 4 and 8 — Affidavit of Judy Holst) There is no evidence or facts on record that the City of Oak Park Heights ever read the meters for the 2005 — 2006 timeframe. (Supplemental Affidavit of Judy Holst) New water meters were supplied by the City of Oak Park Heights in June 2009. These meters replaced the old meters and were installed by Washington County or a Washington County Contractor. The City of Oak Park Heights has no knowledge as to how the old meters utilized for the 2005 -2006 timeframe 3 were disposed of by Washington County or Washington County's Contractor. (Supplemental Affidavit of Judy Holst) On May 15, 2009, the City of Oak Park Heights notified Washington County that the City of Oak Park Heights had no reliable data to challenge the 2005 records as submitted and verified by Washington County staff and further the City of Oak Park Heights had no way of reading meters for usage in 2005 and, therefore, denied Washington County's claim for a refund for the relevant time period. (Exhibit 2 — Affidavit of Judy Holst) Washington County, in its Statement of Facts, and Affidavit of Ann Hudson, indicates that the County first became aware of an alleged overcharge in June 2008. This is in direct contradiction to the fact that the City of Oak Park Heights Employees contacted Washington County and questioned the meter readings of March 2005. This contact, at the very least, and the contemporaneous billings submitted by the City of Oak Park Heights to Washington County should have put Washington County on notice that the charges had increased. (Supplemental Affidavit of Judy Holst) The City believes that there is no way to verify meter readings after the readings have been taken and meters presumably disposed of. (Supplemental Affidavit of Judy Holst) ARGUMENT I. WASHINGTON COUNTY'S EQUITABLE CLAIMS OF UNJUST ENRICHMENT ARE BARRED SINCE THEY HAD A LEGAL REMEDY. Washington County's sole remedy in this matter was to appeal to the Court of Appeals, by Writ of Certiorari, the City's quasi-judicial decision denying the utility refund. The appeal by Writ of Certiorari is a legal remedy which the County failed to pursue. It is long- standing law in the State of Minnesota that if a party has a legal remedy, it cannot avail 4 itself of equitable remedies. See, Thorn v. George A. Hormel & Co., 206 Minn. 589, 289 N.W. 516 (1940). In Thorn, the court denied Thorn's claim for unjust enrichment as Thorn had a legal remedy at law. Id., at 594. This Court lacks jurisdiction to hear Plaintiff's equitable claim of unjust enrichment. Washington County's Summary Judgment motion must be dismissed because of its failure to pursue its legal remedy. As a matter of law, (lack of jurisdiction), Plaintiff's Complaint must be dismissed. (See, Defendant City Of Oak Park Heights' Memorandum Of Law In Support Of Its Motion For Summary Judgment) II. WASHINGTON COUNTY'S CLAIM OF UNJUST ENRICHMENT MUST BE DISMISSED SINCE IT IS NOT ADEQUATELY SUPPORTED BY EVIDENCE. Ignoring clearly established law in the State of Minnesota, the County argues that "the theory of unjust enrichment only requires the County show it paid for services it did not receive." County's Brief 16. After making that statement, the County then cites to case law extending from British reports in the 1700's to Minnesota law from 1892 (Panton v. Duluth Gas & Water Co., 50 Minn. 175, 52 N.W. 527 (1892) to 1957 (Knutson Hotel Corp. v. City of Moorhead, 250 Minn. 392, 84 N.W.2d 626 (1957). 1 unjust relying on these old cases, the plaintiff ignores the plethora of law on � ust enrichment before and since 1957 that is completely contrary to plaintiff's claim that they are entitled to collect under unjust enrichment by merely requiring the County to show it paid for services it did not receive. That argument has been specifically and clearly rejected by the Minnesota Supreme Court and the Court of Appeals. 5 In First National Bank of St. Paul v. Ramier, 311 N.W.2d 502 (Minn. 1981), the Court stated: "The Bank additionally argues that the facts clearly demonstrated that the defendant Betty Rohloff benefited unjustly from the terms of the loan agreement and that the judicial imposition of a constructive trust is necessary to protect its interest. This argument must also fail because as we indicated most recently in Iverson v. Fjoslien, 298 Minn. 168, 213 N.W.2d 627 (1973), unjust enrichment claims do not lie simply because one party benefits from the efforts or obligation of others, but instead it must be shown that 'a party was unjustly enriched in the sense that the term `unjustly' could mean illegally or unlawfully. Sheasgreen Holding Co. v. Dworsky, 181 Minn. 79, 231 N.W. 395 (1930)." Ranvier at p. 504. It should be noted that the argument being made by the County in our case is the same argument made by the dissent in Ramier, namely that unjust enrichment is available merely by showing that the defendant has received a windfall that should rightfully be paid to plaintiff in good conscience. The majority in Ramier, which is the law in Minnesota today, rejected that argument and imposed a requirement that a party making a claim for unjust enrichment must show that the defendant acted illegally or unlawfully. The County has ignored this clearly established law since they realize there is absolutely no evidence of any illegal, unlawful or fraudulent action by the City of Oak Park Heights that caused the County to pay for water it did not receive. It is basic law in the State of Minnesota that an unjust enrichment claim does not lie merely because one party benefits from another's efforts or obligations. See, Custom Design Studio v. Chloe, Inc., 584 N.W.2d 430 (Minn. Ct. App. 1998). In Chloe, the trial court 2 See, John Amann, et al., vs. Allianz Income Management Services, Inc., et al, 2010 Minn. App., filed August 17, 2010, unpublished, attached to Affidavit of James G. Golembeck. It Amann, the Court of Appeals determined Appellants failed to properly plead a cause of action for unjust enrichment by failing to allege that Respondents acted illegally or unlawfully. The Court rejected Petitioners' arguments that simply doing morally wrong was sufficient. The Court states: "Ramier is good law ", Here, Washington County has also failed to plead illegal or unlawful acts and, as such, this case must be dismissed. 6 determined that unjust enrichment was appropriate since Chloe consented to the remodeling of his premises by Custom Design Studio. However, on appeal, the Court of Appeals held: An unjust enrichment claim does not lie merely because one party benefits from another's efforts or obligations; rather, "it must be shown that a party was unjustly enriched in the sense that the term `unjustly' could mean illegally or unlawfully ". citing, First National Bank of St. Paul v. Ramier, 311 N.W.2d 502, 504 (Minn. 1981). In Chloe, the court stated that a review of the record showed that Custom Design Studio had not provided any evidence of fraudulent or illegal acts by Chloe sufficient to sustain an action for unjust enrichment. In addition, mere consent is not evidence of an affirmative action appropriate to 'ustif unjust enrichment absent a plot for unfair advantage. justify unjust Brakke v. Hilgers, 374 N.W.2d 553, 556 (Minn. Ct. App. 1985). In the case at hand, there clearly is no evidence of any fraudulent or illegal action and, as such, Washington County's claim for unjust enrichment must be dismissed. Washington County's argument that it merely paid too much does not amount to an unjust enrichment claim under the laws of the State of Minnesota and must be dismissed. Washington County cites no law supporting its argument that mere payment is sufficient to support a claim for unjust enrichment. Contrary, the law indicates that there must be unfair advantage as shown by fraudulent or illegal acts. Therefore, Plaintiff's claim of unjust enrichment fails as a matter of law and its Complaint which is based solely and strictly on a claim of unjust enrichment must be dismissed as a matter of law. 7 III. WASHINGTON COUNTY'S CLAIMS FOR DAMAGES ARE BARRED BY THE DOCTRINE OF ESTOPPEL. Contrary to Plaintiff's argument, its claim of unjust enrichment seeks an equitable remedy—not a legal remedy. As such, equitable defenses apply to defeat Plaintiff's unjust enrichment claim. "Unjust enrichment is an equitable claim that arises when a party gains a benefit illegally or unlawfully, and there is no valid contract completely governing the rights of the parties." Stein v. O'Brien, 565 N.W.2d 472, 474 (Minn. Ct. App. 1997); see also, Thorn v. George A. Hormel Co., supra. Washington County's claim is barred by the doctrine of estoppel. It is clear in this case that Washington County's reading of the meters and providing incorrect information to the City of Oak Park Heights estopps Washington County from claiming unjust enrichment. A party seeking to invoke the doctrine of equitable estoppel has the burden of proving three elements: (1) that promises or inducements were made; (2) that it reasonably relied upon the promises; and (3) that it will be harmed if estoppel is not applied. See, Hydra -Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 919 (Minn. 1990). See also, Janice Ann Eide v. State Farm Mutual Automobile Insurance Company, 492 N.W.2d 549 (Minn. Ct. App. 1992). In this case, it is clear that promises or inducements were made by Washington County. Washington County owned, operated and read the meters and provided the information needed to calculate the rate to the City of Oak Park Heights. Reported use information could not be checked by the City of Oak Park Heights. City of Oak Park Heights had no access to the meters. City of Oak Park Heights was not responsible for reading the meters, maintaining the meters or training anyone to read the meters. 8 Secondly, the City of Oak Park Heights reasonably relied on the usage meter information provided by Washington County. There was no way the City of Oak Park Heights could either verify or challenge the information provided by Washington County years after the infolination was provided. In addition, currently the meters have been removed and presumably destroyed by Washington County. There is no way to verify the accuracy of the meters. Further, there is no question that Washington County had notice of the billing charges when they were billed. In March of 2008, City Employees contacted Washington County to question meter readings; Washington County submitted no corrected readings. Washington County also attempts to cast doubt upon the City of Oak Park Heights' rate calculation methodology. In effect, this calculation methodology is simple subtraction—simple subtraction of numbers wrongfully read by Washington County. See, page 13 of Washington County's Brief wherein Washington County admits wrong reads were supplied by Washington County employees and formed the basis of the usage charge. Washington County argues in its Summary Judgment Memorandum that success on its theory of unjust enrichment merely requires that the County show it paid for services it did not receive. However, that simple argument is incorrect. It cannot be disputed that the doctrine of unjust enrichment is an equitable remedy. Equitable defenses cannot be disregarded by the mere assertion that unjust enrichment only requires the County show it paid for services it did not receive. Washington County's legal analysis is faulty and its reliance on its principal case is misplaced. Washington County cites Dwinnell, et al v. Oftedahl, et al, 235 Minn. 383, 51 N.W.2d 93 (1952), for the selected proposition that if 9 Defendant received money for services it did not provide, there is no issue of fault or good faith. However, this is not the only issue addressed by the Court in Dwinnell. The Court also indicated that the only other question is "whether anything in the nature of estoppel prevents Plaintiff's recovery." Estoppel clearly applies in the present case. The Dwinnell Court also cited Restatement, Restitution, §20, and states: A person who has paid money to another because of a mistake of fact and who does not obtain what he expected in return is entitled to restitution from the other if the mistake was induced: (a) by the fraud of the payee, or (b) By his innocent and material misrepresentation, or ... (d) by the fraud or material misrepresentation of a third person, provided that the payee has notice of the fraud or representation before he has given or promised something of value. It is clear in this case that there is no evidence of fraud by the City of Oak Park Heights. There is no evidence of any innocent or material misrepresentation by the City of Oak Park Heights and there clearly is no evidence of any third person inducing fraud or misrepresentation. Accordingly, the holding in Dwinnell does nothing to support Washington County's argument. In addition, Washington County cites City of Mahtomedi v. Dominic Spychalla, 308 Minn. 429, 243 N.W.2d 31 (1976) for the proposition that although unjust enrichment was initially founded upon equitable principles, it is nonetheless an action for money damages. Interestingly and importantly, the Spychalla case is not even an unjust enrichment case. The Spychalla case regards enjoining a property owner from operating a junkyard. Therefore, even though cited for dicta, it is almost impossible to even find the reference to the dicta 10 ' cited by Washington County in support of its arguments. Washington County's reliance upon this case is clearly misplaced. No mechanism exists to verify the information provided by Washington County as to the overcharge alleged. Washin ton County's claim of $114 the amount of th o e charge g y > 000.00 overcharge is mere speculation and is not supported by verifiable information. The usage i b information was given to the City of Oak Park Heights s y Washington g County p ersonnel in 2005 and 2006. Damages that are conjectural or speculative may not be recovered. Carpenter v. Nelson, 257 Minn. 424, 428, 101 N.W.2d 918 921 (1960). It is impossible to verify the accuracy of the volume information provided by Washington County. Furthermore, the meters have been removed and there is no way to verify the accuracy of the meters. If the Court rejects the City's jurisdiction motion and rejects the City's argument as set forth herein, the City asserts that at the very least the City should be entitled to conduct discovery on the issue of whether the County is precluded from recovery because of spoliation of evidence, namely the destruction of the meters that were used by the County for its calculations. See, Affidavits of Jud y Holst and James G. Golembeck (Rule 56.06). Spoliation is the destruction of evidence or the failure to preserve property for another's use as evidence in pending or future litigation. Federated Mutual Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 436 (Minn. 1990). The trial court has broad discretion to determine what sanction is appropriate for spoliation. Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995). Dismissal of the case is one such option. Id. The City of Oak Park Heights has received payment for usage as reported by Washington County and the City of Oak Park Heights would be harmed financially if it had to disgorge amounts paid 11 in 2005 and 2006, which were paid voluntarily by Washington County based upon information provided by Washington County. It is clear that, some five years later, Washington County should be estopped from alleging that there was an overpayment when Washington County provided the information which is utilized to ascertain usage. That is especially true when it is impossible to verify the accuracy of the information presented. IV. WASHINGTON COUNTY'S CLAIMS ARE BARRED BY THE DOCTRINE OF LACHES. It is basic law that the doctrine of laches depends on a factual determination in each specific case. See, Eide v. State Farm Mutual Automobile Insurance Company, at 556. In Eide, the court states: "the basic question is whether there has been such an unreasonable delay in asserting a known right, resulting in prejudice to others, as would make it inequitable to grant the relief prayed for. The purpose of laches is to prevent one who has not been diligent in asserting a known right from recovering at the expense of one who has been prejudiced by the delay." See, Klapmeier v. Town of Center, 346 N.W.2d 133, 137 (Minn. 1984). There can be no question that it was an unreasonable delay for Washington County to assert its claim more than four years after the fact. Washington County claims it was overcharged in 2005 and 2006 for services rendered during that timeframe. Washington County is unable to verify any of its usage from 2005 or 2006. In addition, there is no way to verify that the meters that were used by Washington County during that timeframe were accurate since Washington County has removed the meters and, presumably, those meters have been destroyed. Washington County now comes back, some five years later, alleging that it has reviewed "historical data" and believes that there has been an overpayment for 12 those two years. Clearly, there is prejudice in this matter given that if the rates were challenged when they were imposed, usage could have been verified, the meters could have been checked for accuracy and appropriate refunds, if appropriate, could have been given or rates and bills adjusted. Washington County is barred by the doctrine of laches and its unreasonable delay in seeking relief. V. WASHINGTON COUNTY'S SUMMARY JUDGMENT MUST BE DENIED SINCE THERE ARE MATERIAL FACT ISSUES, PRECLUDING SUMMARY JUDGMENT. As previously noted, after explaining eight pages of facts, Washington County has decided that the key facts in this case —that being the fact that it was responsible for its own meters and reported usage from its own meters, is not relevant. However, nothing can be further from the truth. Both the affirmative defenses of estoppel and laches implicate questions of material facts precluding summary judgment. See, Vandal v. Peterson, 2010 WL 10410 (Minn. Ct. App. 2010) Vandal involved the doctrines of equitable estoppel and waiver as concerns a Purchase Agreement which Plaintiffs alleged was ambiguous. In Vandal, the court states that both of these affirmative defenses asserted by Respondent require proof of Appellant's intent to release Respondent from his personal liability under the terms of the Purchase Agreement, either by a promise or inducement under the doctrine of equitable estoppel or by a voluntary relinquishment of a right under the doctrine of waiver. Therefore, both affirmative defenses indicate questions of material facts precluding summary judgment. See, e.g., Rice Street VFW Post #3877 v. City of St. Paul, 452 N.W.2d 503, 508 (Minn. Ct. App. 1990) (stating that whether equitable estoppel applies is a fact question unless only one inference can be drawn from the facts). 13 For the foregoing reasons, Washington County's motion for summary judgment must be denied. It is clear that the following fact issues are in dispute: 1. Fact issues regarding whether Washington County must be estopped: • Washington County owned, maintained and read the meters in question. • Washington County disregarded requests to verify the meter readings were correct. • Washington County has destroyed the old meters. Accuracy of such meters cannot be verified. • Whether the City of Oak Park Heights reasonably relied upon Washington County's information. 2. Fact issues regarding whether the doctrine of laches applies: • Why did Washington County delay in bringing a refund claim four years even after being advised of usage in March of 2005. • Whether the City of Oak Park Heights has been prejudiced by the delay because of the inability to question actual usage and accuracy of the meters five years after the fact. 3. Fact issues regarding actual amount of overcharges, if any: • Washington County bases its alleged overcharges on speculative "historical" average not actual reported usage. CONCLUSION Washington County's summary judgment must be denied since Washington County did not avail itself of its sole legal remedy —that being Writ of Certiorari. The decision of the City Council of the City of Oak Park Heights to deny Washington County's appeal for utility refund was quasi-judicial and reviewable only by Writ of Certiorari, this Court lacks jurisdiction and, therefore, must dismiss Washington County's Complaint. Writ of certiorari 14 is the sole method of review and, therefore, Washington County's attempt to color the claim as an unjust enrichment claim has no legal basis. Further, Washington County's own actions in reading meters and providing usage readings estopps Washington County from claiming at a much later date that these readings were incorrect. Further, Washington County's claims are barred by the doctrine of laches since Washington County waited some five years to make a claim at a time when the meter readings could not be verified and the meters have been destroyed, resulting in prejudice to the City of Oak Park Heights. Washington County's Summary Judgment motion must be denied because material fact issues exist as to the application of the affirmative defenses of estoppel and laches in this matter. Further, there is a factual issue as to Washington County's use of historical data to calculate damages. In addition, there is no evidence of fraudulent or illegal acts to sustain an action for unjust enrichment. Therefore, the case must be dismissed. Dated: August 18, 2010. JARDINE, LOGAN & O'BRIEN, P.L.L.P. By: Ll�li` PI 'r N. REGNIER (A.R. #90232) 1 S G. GOLEMBECK (A.R.# 179620) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8624 (651)290 -6500 ATTORNEYS FOR DEFENDANT — CITY OF OAK PARK HEIGHTS 15 STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: OTHER CIVIL County of Washington, Court File No. 82 -CV -10 -4198 Plaintiff, vs. AFFIDAVIT OF JAMES G. GOLEMBECK City of Oak Park Heights, Defendant. STATE OF MINNESOTA ) )ss. COUNTY OF WASHINGTON ) JAMES G. GOLEMBECK, being first duly sworn on oath, deposes and states as follows: 1. I am one of the attorneys representing the City of Oak Park Heights in the above - entitled matter and that I submit this affidavit in support of the City's motion for summary judgment and in opposition to Washington County's motion for summary judgment. 2. The City of Oak Park Heights has made a motion fo r summary judgment based on the fact that this Court lacks jurisdiction. If the Court rejects the City of Oak Park Heights' arguments as set forth, the City of Oak Park Heights asserts that at the very least, the City of Oak Park Heights should be entitled to conduct discovery on the issue of whether Washington County is precluded from recovering because of spoliation of evidence, namely the destruction of the meters that were used by the p Y Y County for its calculations of use. 3. Affiant states that no depositions have been taken in this matter and that discovery is ongoing on the issue of destruction of the meters by Washington County and/or its Contractor. Affiant believes that, at the very least, if the City of Oak Park Heights's motion for jurisdiction is denied, the City of Oak Park Heights has a right to conduct discovery as to the spoliation of evidence issues as concerns destruction of the meters by Washington County. 4. Attached hereto and marked as Exhibit 1 is a true and correct copy of the unpublished decision of the Minnesota Court of Appeals in John Amann, et al., vs. Allianz Income Management Services, Inc., et al, 2010 Minn. App., filed August 17, 2010. FURTHER YOUR AFFIANT SAITH NOT his O ir G. GOLEMBECK Subscribed and sworn to before me this August 18, 2010. Notary Public Notary p .. , �, • ,� . 31 2015 2 This opinion will be unpublished and Page 1 of 17 This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2008). STATE OF MINNESOTA IN COURT OF APPEALS A09 -1891 John Amann, et al., Appellants, vs. Allianz Income Management Services, Inc., et al., Respondents. Filed August 17, 2010 Affirmed; motions denied Kalitowski, Judge Hennepin County District Court File No. 27 -CV -08 -3933 Richard T. Ostlund, Randy G. Gullickson, Cory D. Olson, Anthony Ostlund Baer & Louwagie, P.A., Minneapolis, Minnesota (for appellants) Scott G. Knudson, Briggs and Morgan, P.A., Minneapolis, Minnesota; and Neil Jacobs (pro hac vice), Wilmer Cutler Pickering Hale and Door LLP, Boston, Massachusetts (for respondents) Considered and decided by Wright, Presiding Judge; Kalitowski, Judge; and Collins, Judge. — EXHIBIT b http:// www 2. mnbar .org /ctops /opa091891- 0817.htm 8/18/2010 This opinion will be unpublished and Page 2 of 17 UNPUBLISHED OPINION KALITOWSKI, Judge Appellants John Amann, Troy Auth, Donald Urban, and Deborah Wesenberg challenge the district court's orders (1) dismissing their claims for breach of contract and partnership agreement, unjust enrichment, breach of fiduciary duty, and tortious interference; (2) granting respondents' motion for summary judgment on promissory estoppel; and (3) denying appellants' motion to amend the claims. Appellants also challenge the district court's orders dismissing all claims against respondent Allianz SE for lack of personal jurisdiction and failing to sanction respondents for discovery violations. In addition, respondents have moved this court to strike appellants' reply brief and impose sanctions pursuant to Minn. Stat. § 549.211 (2008), and appellants have requested that respondents be ordered to pay their costs in responding to the motion for sanctions. We affirm and deny all motions. DECISION Appellants are former employees of res respondent Allianz Income Management Services, PP p g Inc. (AIMS), and this action arises out of their claims that respondents, part of the Allianz Group of financial services, improperly terminated their employment with AIMS. Respondent Allianz SE is a German corporation and the sole owner of respondent Allianz of America, Inc. (AZOA). AZOA in turn is the sole owner of respondent Allianz Life Insurance Company of North America (Allianz Life) and AIMS. After respondents terminated the unprofitable AIMS venture, appellants filed suit. On September 26, 2008, the district court granted respondents' motion to dismiss all of appellants' claims except promissory estoppel, and dismissed all claims against Allianz SE for lack of personal jurisdiction. On November 5, 2008, appellants filed a motion to amend the complaint, but the district court denied the motion on grounds of futility. In August 2009, the district court granted summary judgment in favor of respondents on the remaining promissory estoppel claim. I. htt : / /www2.rnnbar.org /cto s/o a091891- 0817.htm 8/18/2010 P P p This opinion will be unpublished and Page 3 of 17 Appellants claim that the district court made multiple errors of law in its September 2008 order granting respondents' motion to dismiss with regard to five of appellants' six claims. Appellants also claim that the district court erred in its August 2009 order by granting summary judgment to respondents on promissory estoppel. In addition, appellants claim that the district court erred by denying their November 2008 motion to amend the complaint on the grounds that the claims were insufficient to withstand summary judgment and futile. We disagree. When reviewing claims dismissed under Minn. R. Civ. P. 12.02(e) for failure to state a claim on which relief can be granted, the question before this court is whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997). Our review is de novo. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003). We must "consider only the facts alleged in the complaint, accepting those facts as true and must construe all reasonable inferences in favor of the nonmoving party." Id. Appellants claim that the district court applied the wrong standard to the motion to dismiss, because it considered respondents' extrinsic evidence, but ignored evidence presented by appellants. We disagree. The record indicates that the district court declined to consider extrinsic information from either party. Appellants also repeatedly cite N. States Power Co. v. Franklin, 122 N.W.2d 26, 29 (Minn. 1963), for the proposition that, to defeat a motion to dismiss, they need not "allege facts and every element of a cause of action." But more recent cases of this court, citing United States Supreme Court precedent, provide that to overcome a motion to dismiss, the complaint must state "enough factual matter or factual enhancement to suggest ... plausible grounds for a claim —a pleading with enough heft to show entitlement." See Bahr v. Capella University, 765 N.W.2d 428, 437 (Minn. App. 2009) (quotations omitted). This court generally reviews a district court's decision regarding amendment of a pleading for an abuse of discretion. Fabio v. Bellorno, 504 N.W.2d 758, 761 (Minn. 1993). A district court can deny a motion to amend when the additional claim cannot withstand summary http: / /www2.mnbar. ors /ctons /opa0918 91- 0817.htm 8/18/2010 This opinion will be unpublished and Page 4 of 17 judgment. Ag Servs. of America, Inc. v. Schroeder, 693 N.W.2d 227, 235 (Minn. App. 2005). Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law." Minn. R. Civ. P. 56.03. Appellants contend that the district court should have applied a motion -to- dismiss standard to its motion to amend. But the district court properly applied the summary - judgment standard consistent with the caselaw cited above. In addition, "the liberality to be shown in the allowance of amendments to pleadings depends in part upon the stage of the action and in a great measure upon the facts and circumstance of the particular case." Bebo v. Delander, 632 N.W.2d 732, 741 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001). Here, the claims that the district court found to be futile were largely repetitive of pleaded and dismissed claims; significant discovery had already taken place; and appellants should have known of their claims at earlier stages of litigation. Breach of Contract and Breach of Partnership Agreement Appellants claim that the district court erred by applying the statute of frauds and pp Y PP li dismissing their claims for breach of contract and breach of partnership agreement arising from their allegations that the parties had (1) a contract to form and operate a partnership in AIMS; and (2) a contract for appellants' employment at AIMS. We disagree. The statute of frauds states that no action shall be maintained upon any agreement that, by its terms, cannot be performed within one year unless the agreement is in writing. Minn. Stat. § 513.01 (2008). The test is whether the contract is fully performable within a year, not whether performance within a year is likely. Eklund v. Vincent Brass & Aluminum Co., 351 N.W.2d 371, 375 (Minn. App. 1984), review denied (Minn. Nov. 1, 1984). If either party to a contract can fulfill their obligation within a year, the statute of frauds does not apply. See Langan v. Iverson, 80 N.W. 1051, 1052 Minn. 1899). The district court determined that the statute of frauds http://www2.mnbar.org/ctops/opa091891-0817.htm 8/18/2010 This opinion will be unpublished and Page 5 of 17 applied because appellants' pleadings, alleging a five -year employment contract, did not contain facts showing that there was an agreement performable within a year. The district court concluded that because the contracts were not supported by sufficient writing, the claims were barred by the statute of frauds. We agree. Eklund involved an oral contract for permanent employment until retirement, so long as the employee performed satisfactorily. 351 N.W.2d at 375. This court concluded that the contract could be performed within one year if Eklund died, voluntarily departed, or failed to perform satisfactorily. Id. at 375 -76. Conversely, Roaderick v. Lull. Eng. Co. addressed an alleged employment contract with a minimum term of more than one year, which, by definition, cannot be performed in less than one year. See Roaderick, 296 Minn. 385, 388, 208 N.W.2d 761, 763 (1973) (indicating that the employee's alleged oral contract provided for a minimum of two years' employment). In Bolander v. Bolander, a contract was allegedly extended for a two -year maximum, and this court concluded that the facts were more analogous to Eklund because the employee could have died, voluntarily departed, or been fired during that time. 703 N.W.2d 529, 547 (Minn. App. 2005). Here, like the employee in Roaderick, appellants allegedly entered into a contract with a minimum term of more than one year. Appellants' complaint, which repeatedly referenced a term of five years, does not allege facts that, if proved, show that the agreement could be completed in less than a year. On appeal, appellants claim that the statute of frauds does not apply because appellants never agreed to perform for five years, and they could fulfill their obligation within a year. But in their complaint, appellants alleged that they "agreed to work at AIMS through at least 2011." Thus, we conclude that the district court did not err in concluding that the breach-of- partnership- agreement and breach -of- contract claims fell within the statute of frauds, because on the face of appellants' pleadings, neither side of the alleged contract was performable within a year. See Barton, 558 N.W.2d at 749 (reviewing claims dismissed under rule 12 for whether the complaint http: / /www2.mnbar.org /stops /opa091891- 0817.htm 8/18/2010 This opinion will be unpublished and Page 6 of 17 sets forth a legally sufficient claim for relief). In the alternative, appellants contend that, if the statute of frauds applies, their breach -of- contract and breach -of- partnership- agreement claims were not barred because numerous writings support them. We disagree. Appellants claim that they alleged in a letter to the district court that "approvals for implementation of the AIMS project ... were reflected in several key internal Allianz memoranda." But appellants did not allege that these memoranda show agreements for employment or agreements establishing a partnership and the consideration agreed upon thereof. See Minn. Stat. § 513.01 (requiring agreements that fall within the statute of frauds to be in a writing that expresses the consideration). And none of the writings provide details of any such agreements. We conclude that the district court properly dismissed appellants' claims pursuant to the statute of frauds. See Minn. Stat. § 513.01 (barring claims based on agreements that by their terms are not performable within a year, unless the agreement is in writing). In addition, appellants claim that the district court erred in finding futile their breach -of- partnership claim in the November 2008 amended complaint. The district court concluded that appellants' amended breach -of- partnership- agreement claim was futile because they showed no consideration for any partnership agreement. The district court's finding of lack of consideration is supported by the record. Furthermore, appellants failed to allege any agreement between respondents and appellants to share profits, an essential element of a partnership agreement. See Hansen v. Adent, 238 Minn. 540, 545, 57 N.W.2d 681, 684 (1953). We conclude that the district court did not abuse its discretion in denying appellants' proposed amendment to add a breach -of- partnership claim. Appellants also claim that the district court erred in finding futile their November 2008 amended claim for breach of employment agreement. In their amended complaint, appellants alleged that they were promised continued employment at AIMS until their right to acquire shares vested. The district court rejected this contention in light of (1) appellants' deposition testimony that they were at -will employees with no guaranteed term of employment; (2) the http: / /www2. mnbar .org /ctops /opa091891- 0817.htm 8/18/2010 This opinion will be unpublished and Page 7 of 17 Allianz Life employee handbook that provided that they were at -will employees; and (3) appellants' admission that their employment agreement did not contain any specific duration. In addition, the record is replete with evidence of the at -will nature of appellants' employment. Furthermore, appellants' allegations that the parties had agreed to a term of employment lasting until "AIMS became a profitable stand -alone company" are insufficient as a matter of law to support a claim for breach of employment contract, because they do not show the employer's clear intent. See Aberman v. Malden Mills Indus., Inc., 414 N.W.2d 769, 771 (Minn. App. 1987) (finding that to establish an employment contract an employee must establish that an employer clearly intended to create a contract). Appellants contend that even though there was no definite employment term, their claim for breach of employment contract can withstand summary judgment, citing Bussard v. College of St. Thomas, Inc., 200 N.W.2d 155, 163 (Minn. 1972), But in Bussard, the plaintiff testified that he had been promised permanent employment. Here, appellants fail to cite any evidence of such promises, and the district court cites several depositions providing that appellants were never promised permanent employment. Finally, appellants contend that the district court treated their claims unfairly or inconsistently, asserting that the court dismissed appellants' employment claim under the statute of frauds but subsequently found that the claim cannot withstand summary judgment because it contains no definite term. But the court's disparate treatment of appellants' claims merely highlights appellants' inconsistent pleadings. The court reviewed appellants' claims under the proper standards of review at each stage, according to appellants' pleadings. We conclude the district court did not err by treating appellants' claims "inconsistently." Unjust Enrichment Appellants argue that the district court erred in its September 2008 order by dismissing their claim for unjust enrichment. We disagree. A party is unjustly enriched when he knowingly receives something of value to which he http:// www2. mnbar .org /ctops /opa091891- 0817.htm 8/18/2010 This opinion will be unpublished and Page 8 of 17 is not entitled under circumstances that make it unjust for him to retain the benefit. ServiceMaster of St. Cloud v. GAB Business Services, Inc., 544 N.W.2d 302, 306 (Minn. 1996). "[U]njust enrichment claims do not lie simply because one party benefits from the efforts or obligations of others, but instead it must be shown that a party was unjustly enriched in the sense that the term `unjustly' could mean illegally or unlawfully." Id. (quoting First Nat'l Bank v. Ramier, 311 N.W.2d 502, 504 (Minn. 1981)). The district court determined that appellants failed to properly plead a cause of action for unjust enrichment by failing to allege that respondents acted illegally or unlawfully. Appellants claim the district court erred, arguing that unjust - enrichment claims can arise when it would simply be morally wrong for one party to enrich himself at the expense of the other. We disagree. Ramier is good law, and has been cited for the proposition relied on by the district court. See, e.g., ServiceMaster, 544 N.W.2d at 306; Holman v. CPT Corp., 457 N.W.2d 740, 745 (Minn. App. 1990). Moreover, appellants failed to properly assert an uncompensated benefit, a prerequisite to a finding of unjust enrichment. Appellants never proved that they were legal and /or equitable owners of AIMS. And the record indicates that they were fully paid for their time and effort as salaried employees. Because unjust enrichment requires a showing of why it is unjust for respondents to profit from appellants' efforts, the district court did not err in concluding that appellants did not properly allege a factual basis for an unjust - enrichment claim. Appellants also claim that the district court erred by concluding that their November 2008 amended unjust - enrichment claim was futile. But again, appellants failed to allege what benefit they conferred upon respondents, or how respondents unjustly retained it. And the record contains undisputed evidence that respondents lost money in the AIMS venture. We conclude, therefore, that the district court did not err in concluding that this claim was futile because it could not withstand summary judgment. Breach of Fiduciary Duty htto:// www2. nmbar .ora /ctons /ona091891- 0817.htm 8/18/2010 This opinion will be unpublished and Page 9 of 17 Appellants argue that the district court erred in its September 2008 order by dismissing their claim for breach of fiduciary duty. The parties agree that this claim is governed by the Minnesota Business Corporation Act, Minn. Stat. §§ 302A.011- 302A.92 (2008) (the Act). Appellants claim that they were "beneficial shareholders" of AIMS, because they had an "ownership expectancy," and are thus entitled to the protections of the Act. We disagree. The district court did not err by concluding that appellants failed to allege facts sufficient to make a claim under the Act. Appellants acknowledge that they were never issued stock in AIMS, as is required to be a shareholder under the Act. See Minn. Stat. § 302A.011, subd. 29 (defining "shareholder "). Appellants never claimed to have had the power to vote the shares, as is required to be a "beneficial owner" under the Act. See Minn. Stat. § 302A.011, subd. 41(a) (defining "beneficial owner "). And appellants did not allege facts sufficient to establish the right to purchase shares, as required for "beneficial ownership" under the Act. See Minn. Stat. § 302A.011, subd. 41(b) (defining "beneficial ownership "). Appellants rely on their claim that they had an "ownership expectancy," analogizing their case to Warthan v. Midwest Consol. Ins. Agencies, Inc., 450 N.W.2d 145 (Minn. App. 1990). In Warthan, this court reversed the district court's refusal to grant equitable relief under Minn. Stat. § 302A.751 (1988) to a nonshareholder, because the parties intended 50/50 ownership of the company. Id. at 146, 149. As the district court noted, Warthan is inapplicable here. In Warthan, no stocks had been issued, whereas here, stocks have been issued to other parties but not to appellants. See id. at 146. Moreover, appellants have made no showing that they had a right to purchase shares under Minn. Stat. § 302A.011, subd. 41(b). Appellants merely allege that "the parties had a perfected agreement as to shared ownership of the AIMS opportunity." Because appellants failed to allege facts showing that they were shareholders, beneficial owners, or privy to beneficial ownership, they failed to state a cause of action for breach of fiduciary duty under the Act. Appellants also claim that the district court erred by concluding that their November 2008 http:// www2. mnbar .org /ctops /ona091891- 0817.htm 8/18/2010 This opinion will be unpublished and Page 10 of 17 amended claim of breach of fiduciary duty was futile. In their proposed amended complaint, appellants predicated the breach -of- fiduciary -duty claim on "their status and rights as partners in AIMS." But even if the parties were partners under the Act, as discussed above, appellants failed to explain how respondents breached a fiduciary duty by terminating appellants' at -will employment. We conclude, therefore, that the district court did not abuse its discretion by denying appellants' motion to amend their breach -of- fiduciary -duty claim. Tortious Interference Appellants argue that the district court erred in its September 2008 order by dismissing their claims for tortious interference with contract. We disagree. The tortious- interference claim fails because, as discussed above, there were no enforceable contracts. On appeal, appellants cite the tortuous- interference- with - contract standards, but fail to acknowledge that the district court concluded that only a claim for tortious interference with prospective economic advantage could lie where there were no written contracts, and where the alleged oral contracts were unenforceable under the statute of frauds. Appellants' claim for tortious interference with prospective advantage requires a showing that (1) the defendant intentionally and improperly interfered with the prospective contractual relation, (2) causing "pecuniary harm resulting from loss of the benefits of the relation," and (3) the interference either (a) induced or otherwise caused a third person not to enter into or continue the prospective relation or (b) prevented the continuance of the prospective relation. United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 633 (Minn. 1982). "For purposes of this tort, improper means are those that are independently wrongful such as threats, violence, trespass, defamation, misrepresentation of fact, restraint of trade or any other wrongful act recognized by statute or the common law." Harman v. Heartland Food Co., 614 N.W.2d 236, 241 (Minn. App. 2000) (quotation omitted). The district court properly concluded that appellants failed to plead facts showing that respondents' action with respect to appellants' prospective relations with AIMS was http: / /www2.nnmbar .ors /ctons /opa091891- 0817.htm 8/18/2010 This opinion will be unpublished and Page 11 of 17 independently wrongful under this standard. Because an independently wrongful act is a prerequisite for a claim of tortious interference with prospective advantage, this conclusion alone is enough to support the district court's dismissal of appellants' tortious - interference claims. Appellants also argue that the district court erred by concluding that their November 2008 amended claim for tortious interference was futile. Appellants again cite the standards for tortious interference with contract, the wrong standard, given the absence of any evidence of a contract. Further, the record shows that respondents terminated AIMS not in order to interfere with appellants' economic relationships, but for legitimate business reasons: AIMS was unprofitable. We conclude that the district court did not abuse its discretion by denying appellants' motion to amend their tortious - interference claims. Promissory Estoppel Appellants argue that the district court erred by concluding that their November 2008 amended claim for promissory estoppel was futile. We disagree. In order to survive a motion for summary judgment, a claim for promissory estoppel must be supported by alleging: (1) a clear and definite promise, (2) promisor's intent to induce the reliance on the promise, (3) the promisee's detrimental reliance, and (4) the need to enforce the promise to prevent an injustice. Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn. 1992). The district court found that appellants did not allege detrimental reliance. Appellants contend that they detrimentally relied on respondents' promises because they gave up long -term, secure employment to work at AIMS. But this contention is not supported by the evidence. Urban, Wesenberg, and Amann were all at -will employees at Allianz Life, and Auth was an at -will employee at Ameriprise. In Spanier v. TCF Bank Say., 495 N.W.2d 18, 21 (Minn. App. 1993), review denied (Minn. Mar. 22, 1993), this court concluded that an appellant failed to allege detrimental reliance when he left an at -will job to work for TCF, and worked there for a year. Similarly, here, appellants left at -will work and worked at AIMS for over a year. We conclude that the district court did not err by concluding that appellants' promissory - http://www2 . mnbar .ora/ctops /opa091891- 0817.htm 8/1 X12010 This opinion will be unpublished and Page 12 of 17 estoppel claim could not withstand summary judgment because they failed to properly allege detrimental reliance on any clear and definite promise. Appellants also challenge the district court's August 2009 grant of summary judgment to respondents on their promissory- estoppel claim. On appeal from a summary judgment decision, we examine whether there are genuine issues of material fact that preclude summary judgment and whether the lower court properly applied the law. Kratzer v. Welsh Cos., LLC, 771 N.W.2d 14, 18 (Minn. 2009). The district court concluded that appellants "abandoned" their initial promissory- estoppel claim when they submitted their November 2008 amended complaint. The undisputed evidence supports this conclusion. But the district court, under Minn. R. Civ. P. 15.02, allowed amendment of the pleadings to conform to the evidence presented, noting that it was essentially revisiting an issue that it had addressed in an earlier order denying appellants' motion to amend their complaint. Appellants claim that the district court erred by concluding that they failed to allege clear and definite promises relating to "ownership, shared value, and employment." Appellants argue that the district court "never considered whether the promises conveyed between [AIM's chief executive officer (CEO)] and [appellants] were sufficiently clear and definite to them or the length of time over which these promises were conveyed to [appellants]." But the district court concluded that appellant's "new" allegation of the CEO's promise of shared value was too abstract to constitute a clear and definite promise. Throughout 2006 and 2007, the concept of "sharing value" was the subject of various proposals, but the record indicates that the parties never agreed on a final plan. Appellants provide no evidence or argument as to how the promises made by respondents or their employees were clear and definite. Because the failure to allege a clear and definite promise is enough to support granting a motion for summary judgment on a promissory- estoppel claim, we conclude that the district court did not err by granting respondents' motion for summary judgment. See Ruud v. Great Plains Supply, Inc., 526 N.W.2d http: / /www2.mn bar .org /ctops /opa091891- 0817.htm 8/18/2010 This opinion will be unpublished and Page 13 of 17 369, 372 (Minn. 1995) (providing that failure to sufficiently allege a clear and definite promise is enough to grant summary judgment). II. Appellants contend that the district court erred in its September 26, 2008 order by dismissing Allianz SE for lack of personal jurisdiction. We disagree. Whether personal jurisdiction exists is a question of law subject to de novo review. Juelich v. Yamazaki Mazak Optonics Corp., 682 N.W.2d 565, 569 (Minn. 2004). Minn. Stat. § 543.19 (2008) permits courts to assert personal jurisdiction to the extent permitted by the constitutional requirements of due process. Valspar Corp. v. Lukken Color Corp., 495 N.W.2d 408, 410 (Minn. 1992). General Personal Jurisdiction General personal jurisdiction exists when a nonresident defendant's contacts with the forum state are "continuous and systematic. Domtar, Inc. v. Niagara Fire Ins. Co., 533 N.W.2d 25, 30 (Minn. 1995) (quotation omitted). A court may only assert general jurisdiction when a defendant's contacts in a state "are so substantial and are of such a nature" as to justify suit for claims unrelated to those activities. Id. We conclude that the district court did not err in determining that it did not have general personal jurisdiction over respondent Allianz SE. Allianz SE is a German corporation with its principal place of business in Germany. Allianz SE is not licensed to do business, solicits no business or investments, maintains no property, office or personnel, and has no bank accounts or phone listings in Minnesota. Further, Allianz SE (1) has never been involved in the day -to -day operations of its subsidiaries; (2) has a different corporate headquarters than its subsidiaries in Minnesota; (3) keeps separate corporate records and holds separate corporate meetings than its subsidiaries in Minnesota; (4) maintains distinct and adequately capitalized financial units among its subsidiaries; and (5) oes not pay salaries, expenses, or incur losses from an ) P Y � p � any subsidiaries that do business in Minnesota. In arguing that Allianz SE had sufficient contacts, appellants cite http:// www2. mnbar .org /ctops /opa091891- 0817.htm 8/18/2010 This opinion will be unpublished and Page 14 of 17 Allianz SE's visits to Minnesota, and e -mails and phone calls to and from AIMS. But the record indicates that most of these contacts were made by officers acting on behalf of Allianz SE's subsidiaries. See U.S. v. Bestfoods, 542 U.S. 51, 69, 118 S. Ct. 1876, 1888 (1998) (providing that officers and directors with roles at both parent and subsidiary represent the subsidiary separately when acting on behalf of subsidiary). We conclude the district court properly determined that the nature and quality of these contacts are not so substantial as to subject Allianz SE to general jurisdiction here. Specific Jurisdiction In contrast to general personal jurisdiction, "[ s]pecific [personal] jurisdiction can arise from a single contact with a forum if the cause of action arose out of that contact." Marshall v. Inn on Madeline Island, 610 N.W.2d 670, 674 (Minn. App. 2000). Specific jurisdiction exists only if a plaintiff's claim directly "arises out of or relates to the defendant's contacts with the forum." Domtar, 533 N.W.2d at 30. The district court did not err in concluding that it did not have specific jurisdiction over Allianz SE on the facts alleged. Appellants' pleadings contain minimal allegations of misconduct by Allianz SE, and the district court properly found that the allegations of misconduct were belied by evidence submitted by appellants. Furthermore, Allianz SE's approval of the creation of the AIMS initiative is not sufficient to confer specific jurisdiction over appellants' claims, because no claim of misconduct arose out of Allianz SE's approval of the project. III. Appellants claim that the district court abused its discretion by failing to sanction respondents for multiple discovery violations, which resulted in prejudice to appellants and an incomplete record. We disagree. We review a district court's decision regarding sanctions for failure to comply with discovery for an abuse of discretion. Przymus v. Comm 'r of Pub. Safety, 488 N.W.2d 829, 832 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992). A district court abuses its discretion http:// www2. mnbar .org /ctops /opa091891- 0817.htm 8/18/2010 This opinion will be unpublished and Page 15 of 17 when it makes rulings against logic and unsupported by the record, Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984), or when it acts arbitrarily or capriciously, or misapplies the law. Montgomery Ward & Co. v. Cnty. of Hennepin, 450 N.W.2d 299, 306 (Minn. 1990). Appellants assert that respondents' failure to timely produce discovery materials denied appellants the opportunity to view certain documents, which could have affected the district court's orders. We disagree. Appellants identified 3 of the 55,000 documents that respondents produced as being "essential." These documents were: (1) an e -mail announcing plans to form AIMS (2) a March 16, 2007 set of notes from an Allianz Life meeting about AIMS; and (3) an August 6, 2007 e- mail to Allianz SE's CEO reporting the decision to terminate AIMS. The record shows that at least one of these documents was available to appellants before oral argument on the motion to amend. And importantly, none of these documents would have helped appellants overcome respondents' motion to dismiss because the documents do not prove Allianz SE's systematic contacts with Minnesota or show promises respondents made to appellants. Thus, we conclude that the district court did not abuse its discretion by not sanctioning respondents for discovery violations. See State v. Scanlon, 719 N.W.2d 674, 685 (Minn. 2006) (stating that in determining remedies for discovery violations, the district court considers the reason why the disclosure was not made, and the extent of the prejudice to the opposing party, among other factors). Appellants claim that the district court treated them unfairly and ignored their request for reconsideration. But the record shows that the court allowed appellants to file untimely briefs, late motions and amended complaints. Further, the court noted that appellants had "indirectly challenged the [court's] prior Orders," but found that the requests for reconsideration were procedurally improper and declined to consider them. Minn. Gen. Pract. 115.11 provides that "[m]otions to reconsider ... will be granted only upon a showing of compelling circumstances ... [and] shall be made only by letter to the court of no more than two pages in length[.]" Appellants submitted a seven -page letter asking about a http / /www2. mnbar .org /etops /opa091891- 0817.htm 8/18/2010 This opinion will be unpublished and Page 16 of 17 motion for reconsideration, made an oral reference to the issue of reconsideration, and submitted a letter asking the district court to deem their earlier letter a request for reconsideration. Under these facts and Minn. R. Gen. Pract. 115.11, the district court did not abuse its discretion by denying appellants' procedurally improper requests for reconsideration. Appellants also claim that the district court treated them unfairly when it "failed to acknowledge" their rule 56.06 affidavit requesting additional discovery. But the record shows that the court considered and rejected appellants' request because it was procedurally improper. "A rule 56.06 affidavit must be specific about the evidence expected, the source of the discovery necessary to obtain the evidence, and the reason for the failure to complete the discovery to date." Alliance for Metro. Stability v. Metro. Council, 671 N.W.2d 905, 919 (Minn. App. 2003). Appellants' affidavit fails to meet these requirements. Finally, appellants claim that the district court ignored their request for a rule 16 conference pursuant to Minn. R. Civ. P. 16. But the district court addressed the request at oral argument, indicating that it would address the conference request after it issued its order. And the rule 16 conference request became moot after the district court granted summary judgment dismissing appellants' remaining claim for promissory estoppel. We conclude that the district court did not abuse its discretion by deferring the ruling on the rule 16 request, and then ruling on the summary judgment motion. IV. Respondents moved this court to strike appellants' reply brief. Because we conclude that appellants' reply brief does not raise new issues, we deny this motion. See Minn. R. Civ. App. P. 128.02, subd. 4 (confining reply brief to new matters raised in respondent's brief). In addition, respondents moved this court for sanctions against appellants and their counsel, under Minn. Stat. § 549.211, and appellants have requested that this court require respondents to pay their costs in responding to the motion for sanctions. After considering arguments of counsel and the record of this contentious litigation, we deny the motions of both parties. http ://www2.rnnbar. org /ctops /opa0918 91- 0817.htm 8/18/2010 This opinion will be unpublished and Page 17 of 17 Affirmed; motions denied. -- Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10. http:// www2. mnbar .org /ctops /opa091891- 0817.htm 8/18/2010 1 STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: OTHER CIVIL County of Washington, Court File No. Plaintiff, vs. SUPPLEMENTAL AFFIDAVIT OF JUDY HOLST City of Oak Park Heights, Defendant. STATE OF MINNESOTA ) )ss. COUNTY OF WASHINGTON ) JUDY HOLST, being first duly sworn on oath, deposes and states as follows: 1. I am the Finance Director for the City of Oak Park Heights, Minnesota, and I submit this affidavit in support of the City's motion for summary judgment and in opposition to Washington County's motion for summary judgment. 2. As Finance Director, Affiant has personal knowledge and information relative to the water billing and the appeal claims submitted by Washington County to the City of Oak Park Heights relative to water billing for the period of time of 2004 -2008. 3. For the time period of 2004 -2008, all the water meters utilized by Washington County were owned, operated and maintained by Washington County. 4. Washington County Employees provided information sheets to the City of Oak Park Heights with meter readings. These readings were generated by Washington County and, to Affiant's knowledge; no readings were generated by the City of Oak Park Heights for water utilized by Washington County from the time period 2004 — 2008. 5. Affiant states that to her knowledge, meters owned by Washington County were never independently read by the City of Oak Park Heights and Washington County was fully responsible for reading the meters and understanding its own meters and training its own Employees to read its own meters. 6. On or about June 22, 2009, the City of Oak Park Heights provided new meters to Washington County. These new meters were installed by Washington County or a contractor hired by Washington County. It is believed that the old meters utilized from 2005 — 2006 were disposed of by Washington County or Washington County's contractor. 7. The new meters supplied in June 2009 to Washington County by the City of Oak Park Heights enabled the City of Oak Park Heights to assume the meter reading responsibilities from Washington County. The new meters were electronically read from outside the building and were compatible with the City of Oak Park Heights' meter reading system which supplies usage by wireless means. It is believed that the only reason to change out the meters was to enable the City of Oak Park Heights to begin reading usage. 8. Affiant states that after the meters were disposed of by Washington County or its contractor, there is no way to verify meter accuracy or readings. 9. Affiant states that the Billing Clerk during March 2005, Lisa Taube, contacted Washington County and questioned meter readings and, to the best of Affiant's knowledge, Washington County did not submit any corrected readings. 2 10. On May 15, 2009, the City of Oak Park Heights, by way of letter from Judy Hoist, Deputy Clerk, Finance Director, advised Washington County, specifically Harley L. Will, Accounting & Finance Director for Washington County, that the City of Oak Park Heights had no reliable data to challenge the 2005 records as submitted and verified by Washington County staff and, further, the City of Oak Park Heights had no way of re- reading meters for usage in 2005 and, therefore, had to deny Washington County's claim for a refund for the relevant time period. 11. Affiant states that to the best of her knowledge, information and belief, Washington County should have been aware of the amount of the water utility bills upon receipt of the bill and certainly the City of Oak Park Heights was questioning Washington County's submittals of usage as early as March 2005. Washington County should have called the question into issue. FURTHER YOUR AFFIANT SAITH NOT JUD ` HOI .T FINANCE DIRECTOR Subscribed and sworn to before me this August 16, 2010. C/ O, /AAla Notary Public P ` v - 3 STATE OF MINNESOTA COUNTY OF WASHINGTON ) ) ) ss. Our File No. 37024 (872) LORI L. STORK of the City of Lake Elmo, County of Washington, in the State of Minnesota, being duly sworn, says that on August 18, 2010, she served the annexed: 1. Defendant City of Oak Park Heights' Memorandum of Law In Opposition To Plaintiff's Motion For Summary Judgment; 2. Affidavit of James G. Golembeck; and 3. Supplemental Affidavit of Judy Holst. on: GEORGE KUPRIAN ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 via fax only: (651) 430 -6163 by faxing him a copy thereof. ISCI L s ft e Alrje..— Lori L. Stork • Subscribed and sworn to before me this August 18, 2010. ` L- zO- P Notary Public . ; MICHELLE L PO L ` Notary Public Min n e sota Janus 31 2015 JARDINE ATTORNEYS AT LAW LOGAN & P.L.L.P. O'BRIEN Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042 August 9, 2010 Firm (651) 290 -6500 Fax (651) 223 -5070 E -Mail Jlolaw @jlolaw.com Website www.jlolaw.com ERIC JOHNSON CITY ADMINISTRATOR CITY OF OAK PARK HEIGHTS John M. Kennedy; Jr. * PO BOA 2007 Eugene J. Flick * Charles E. Gitlin STILLWATER MN 55082 -3007 Pierre N. Regnier Mark A. Fonken * George W. Kuehner Re: County of Washington vs. City of Oak Park Heights Patti J. Skoglund Timothy S. Crom * Our File No. 37024 (872) Lawrence M. Rocheford * James G. Golembeck * Joseph E. Flynn * Dear Mr. Johnson: Marlene S. Garvis Thomas L. Cummings Leonard J. Schweich We have been served with Washington County's summary judgment documents- - Jessica E. Schwie Notice of Motion And Motion, Memorandum Of Law and proposed Order. I enclose Susan S.Tice Thomas J. Misurek a copy of the County's Memorandum Of Law for your review and file. Matthew P. Bandt * Elisa M. Hatlevig Jason A. Koch Darwin S. Williams The main argument by Washington County appears to be that the theory of unjust Mark K. Hellie enrichment only requires that a county show it paid for services it did not receive. Nancy M. Aboyan Daniel J. Stahley The County maintains that apparently no equitable defenses are relevant to an unjust John R. O'Brien - Admitted enrichment claim. in Wisconsin, emeritus Minnesota, retired One of our main arguments in opposition to the motion is that Washington County's Alan - Counsel Geerald d M. . L inn ihan - Retired q e uitable claims of unjust enrichment are barred since they had a legal remedy by nn way of writ of certiorari. We will also be arguing that Washington County's claims Some members also admitted to practice law in Wisconsin *, or damages are barred by the doctrine of estoppel and that in this case, Washington North Dakota, South Dakota, and Iowa County provided all of the information needed to calculate the rate to the City of Oak Park Heights. In addition, we are going to raise the doctrine of laches given that Shannon Banaszewski Washington County waited several years to bring their claims, only after usage cannot Administrator be verified and the meters replaced. Lastly, there are material fact issues precluding summary judgment as to the defenses of estoppel and laches. Donald M. Jardine (1915 -2005) Jerre F. Logan (1923 -1983) Equal Opportunity Employer ERIC JOHNSON August 9, 2010 Page 2 After you have had an opportunity to review the Memorandum of Law, please contact me if you would like to discuss any of the issues raised in the document. We will provide you with a copy our Defendant City Of Oak Park Heights' Memorandum Of Law In Opposition To Plaintiff's Motion For Summary Judgment when it is filed with the Court. Very truly yours, JARDINE, LOGAN & O'BRIEN, P.L.L.P. --P-----.; ___ dip __, a -. . Golembeck Direct Dial: (651) 290 -6567 JGG:lls Enclosure copy: MARK J VIERLING ECKBERG LAMMERS 1809 NORTHWESTERN AVENUE STILLWATER MN 55082 STATE OF MINNESOTA Case Type: Civil Action DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Court File No. 82 -CV -10 -4198 County of Washington, Plaintiff, vs. MEMORANDUM OF LAW City of Oak Park Heights, Defendant. INTRODUCTION Washington County (hereinafter Plaintiff or County) has brought suit against the City of Oak Park Heights (hereinafter Defendant or City) under the theory of unjust enrichment. The action is one in assumpsit and predicated upon overcharges for municipal water and sanitary sewer services the Defendant provided to the County's Law Enforcement Center (hereinafter LEC) located in Stillwater, Minnesota. The overcharges approximate $114,000 and accumulated during the period July, 2005 through June, 2006. The County detected the possibility of overcharge while conducting an audit for state sales tax purposes and confirmed it upon further investigation. The error was first raised with the City in March of 2009 but was rejected by City staff. (Exhibit D, Affidavit of Ann Hudson, ¶19). At the urging of the City Administrator, the County through a presentation by its Financial Services Director brought the matter before the City Council. On October 13, 2009, the City Council rejected the County's claim via Resolution No. 09- 10 -39. No matter how plain and obvious the overcharge and no matter how easily demonstrated, a study of the reasoning contained in 1 Resolution No. 09 -10 -39 furnishes clear indication that the City is being subject to the tyranny of its initial decision and gives meaning to what Demosthenes once prosed: "Man is his own easiest dupe, for what he wishes to be true he generally believes to be true." 1. ISSUES PRESENTED I. DID THE COUNTY OVERPAY THE CITY FOR MUNICPAL WATER AND SANITARY SEWER SERVICES? II. WAS THE CITY UNJUSTLY ENRICHED BY THE COUNTY'S OVERPAYMENTS? II. DOCUMENTS SUPPORTING THE MOTION Exhibit A — Affidavit of James Lindner. Exhibit B 1 -13 — Water meter worksheets attached to Dave Beaver's Affidavit. Exhibit C - Photograph of compound meter high and low flow attached to James Lindner's Affidavit, paragraph 10 and 11. Exhibit D — Ann Hudson plus attachment A, spreadsheet and attachment B, graph. Exhibit E — Defendant's Answers to Plaintiff's First Set of Interrogatories. Exhibit F — Defendant's Response to Plaintiff's Request for Admissions. Exhibit G — Defendant's Answer and attached City of Oak Park Heights Resolution #09 -10 -39 denying County's claim. Exhibit H — Pages 1 and 2 of the Complaint. Exhibit I — Affidavit of Dave Beaver with attached worksheets. Exhibit J — Graph of water use attached to Ann Hudson's Affidavit. III. FACTS Because the facts in this case are extensive and complex but the material facts are few and simple, it is instructive for the factual narrative to include both a recitation of the undisputed material 2 facts appertaining to the County's summary judgment motion and a brief discussion of those facts immaterial to a summary judgment decision but which will provide context for the material facts and gainsay the dialectic of the City that is anticipated to be "...full of sound and fury... [but]....signilying nothing." A. MATERIAL FACTS During the period beginning years before January, 2005 and continuing to the present, the Defendant has provided the County Law Enforcement Center with its municipal water and sanitary sewer services. (Complaint, ¶3). During the period January 1, 2005 through June 30, 2006, the rates charged to the County for these services were based upon the formularies set forth in paragraphs 4 and 5 of the Complaint. Within the January 1, 2005 to June 30, 2006 timeframe, the water usage at the LEC was monitored through a combination of seven water meters: The #1 West Meter; #2 compound meter low flow (hereinafter low flow meter); #3 compound meter high flow; #4 fire meter; #5 sprinkler meter; #6 cooling tower in meter; and #7 cooling blow down meter. (Exhibit I, Affidavit of Dave Beaver, ¶3 and Exhibit G — City Resolution P.1 first whereas clause). Both the water and sewer charges are calculated from the amount of water used although the calculation for the sewer charge does not incorporate readings from all the meters. The water usage obtained from the low flow meter is used for calculating both the water and the sewer service charges. (See, Exhibit G — City resolution, first whereas clause on P.3). All seven meters are odometer type devices that provide totalization readings identical to the principle associated with car odometers. (Exhibit I — Affidavit of Dave Beaver, ¶9). Because each meter provides a continuous count of the amount of water flowing through the portal it monitors, the 3 amount of water used during any one period is calculated by subtracting the meter reading at the beginning of the period from the meter reading at the end of the period. Each meter is comprised of more wheels or digits than are to be read and reported. (Exhibit C, photo of compound meters; Exhibit I, Affidavit of Dave Beaver, ¶10 and Exhibit G, City Resolution, P. 2, second paragraph from the bottom). The digits to be read are easily identifiable as they are white in color. For example, the low flow meter is comprised of 7 digits but only the 4 white digits are to be read, recorded and utilized in the use calculation. (Exhibit I, Affidavit of Dave Beaver, ¶11). On the other hand, its "cousin" the compound meter high flow is made up of 8 digits but only 5 of the digits are read. (Exhibit C, photograph of compound meter high and low flow). During the period January 1, 2005 to June 30, 2006, the meters were read by County employees at 2 month intervals and recorded on water meter worksheets which were then sent to the Defendant for processing. (Exhibit A, Affidavit of James Lindner, ¶7). The Defendant would calculate the water use from the worksheet readings. From those calculations, the Defendant would determine the LEC's municipal water and sanitary sewer charges for the 2 month period, employing the algorithm described in paragraphs 4 and 5 of the Complaint. The charges for the 2 month period would then be halved and a monthly bill sent to the County. (Exhibit G, City Resolution P. 1, second whereas; Exhibit E, Answer to Plaintiff's Interrogatory #1). Because seven meters were involved in monitoring water usage, a County employee devised the worksheet upon which the readings were recorded. (Exhibit I, Affidavit of Dave Beaver, ¶4). As stated above, at each two month period, County employees would enter the current meter readings into "boxes" denominated "current read" and then send the worksheets to the Defendant for further processing. (Exhibit I, Affidavit of Dave Beaver, ¶4). The City, in turn, would send a worksheet to 4 the County to be completed at the next 2 month period. In order to allow for the water use calculation by the City, the next period's worksheet sent to the County by the Defendant would include printed versions of the prior period's meter readings. The prior period readings would be printed in the "box" titled prior reading. (Exhibit I Affidavit of Dave Beaver, ¶6. See e.g., Exhibit B worksheet for November — December 2004). As mentioned previously, the meters are totalization devices; so, in order to obtain the amount of water that flowed through the station monitored by a meter, the prior meter reading would be subtracted from the current reading. The worksheets were merely intended to simplify the calculus and allow for better records retention. Although all seven meters play an integral part in the determination of charges for water and sewer services, the low flow meter has a special place in the pantheon of meters. Not only did the low flow meter account for nearly 80 percent of the water use during the period in question, (See, Defendant's answer to interrogatory #2 ii.), it was also at the epicenter of this lawsuit. As mentioned time and again, the low flow meter is a totalization device that furnishes a continuous measurement of water use. Its operating principles are identical to that of a car odometer except, of course, the low flow meter measures water and the car odometer miles. Therefore, if the desire is to know over any given period of time the amount of water used, one merely subtracts the meter reading at the beginning of the period from the reading at the end of the period. It is as simple as that and is the calculus performed by the Defendant at every 2 month billing period. However, this reckoning is not limited to short intervals of time and may be performed over any time period, be it one month, one year, or one decade. Inasmuch as the low flow meter performs identically to a car odometer, a better understanding of the working of the low flow meter may be had by analogizing its operation to the use of a car odometer on a cross country automobile trip. If one wishes to determine 5 the distance travelled on that automobile trip, one may either read the car odometer on a daily basis; subtract the odometer reading at the beginning of the day's travel from the reading at the end; and add the daily measurements or one can read the odometer at the beginning of the trip and subtract the reading at the end. The results are the same unless one or more of the daily accountings are misread or miscalculated in which case the total trip method would still provide an accurate total distance travelled. So it is with the low flow meter. If one or more of the two month readings are misread or miscalculated which is the case in this lawsuit, a total use can always be had by subtracting a prior reading from a future reading. Such a determination is precisely the "stuff' of the County's summary judgment motion. As with all odometer type devices, because they contain a finite number of digits to read, one must be cognizant of and make allowance for the "roll- over." Because the low flow meter is only read to four digits, (See Exhibit C photograph of low flow meter and Exhibit I Affidavit of Dave Beaver, 1111), the maximum reading of the low flow meter is 9999; and, upon reaching 9999, the low flow meter will roll -over to read 0001. (Exhibit I Affidavit of Dave Beaver, ¶11. See also, Exhibit G, City's Resolution, Finding of Fact #3 for a general discussion of meter roll - overs). To account for a roll -over in subsequent calculations, before the prior reading is subtracted, 10,000 must be added to the very first reading after the roll -over occurs. For example, if the day 1 low flow meter reading is 9980 and the day 2 reading is 0005, it is safe to say the meter rolled over. (A roll -over situation is easily detected because the subsequent reading will be conspicuously less than the prior reading. Moreover, a roll -over is not a usual occurrence inasmuch as 10 million gallons of water flow through the low flow meter, for example, before a roll -over occurs). To determine the amount of water that was used in the above example period, 10,000 is first added to 0005 and then 9980 is subtracted from 6 that sum. Thus, in the example, the measured use from day one to day two is: (10,000 + 0005) — 9980 = 25 gallons. I Once this roll -over calculation is performed, a return to the conventional means of calculating use (current reading minus prior reading) is in order. In the above example, if the low flow meter reading on day 3 is 0020, the use during the period day 2 to day 3 would be: 0020 — 0005 = 15 gallons. The use between days 1 and 3 may be determined in one of two ways. It may be calculated by adding the use between days 1 and 2 to the use between days 2 and 3: 25 + 15 = 40 gallons, or by directly calculating the use between day 1 and day 3: (10,000 + 0020 [day 3 reading]) — 9980 [day 1 reading] = 40 gallons. In the case at bar, a roll -over of the low flow meter occurred sometime between the January 12 and March 15, 2005 low flow meter readings. (Exhibit I, Affidavit of Dave Beaver, 1114). Compare Exhibit B -1 to B -2, November — December, 2004 worksheet to January— February, 2005 worksheet). After this roll -over, the low flow meter did not roll -over again during the timeframe in question. (Exhibit I, Affidavit of Dave Beaver, ¶15. See, Exhibit B -13 worksheet for October 31, 2006 for affirmation). Moreover, during the period January 1, 2005 to June 30, 2006, the low flow meter was in good working order and gave a good accounting of the water flow. (Exhibit I, Affidavit of Dave Beaver, 1116). As has been stated numerous times, the amount of water usage attributable to the low flow meter during any period of time may be calculated simply by subtracting the low flow meter reading at the beginning of the period chosen from the reading at the end of that period. Since it appears the overcharges occurred during the July, 2005 to June 30, 2006 timeframe, low flow meter readings 1 There is a difference between measured use and actual use. Since the meters at the LEC are read in the thousands of gallons, the use calculated from the meter readings must be multiplied by 1,000 to obtain the actual use and the actual use in this example would be 25 X 1,000 or 25,000 gallons of water. 7 which are either not in dispute or have no valid basis for dispute may be chosen to bracket the vexing timeframe and a water usage calculation made for the bracketing period. The water usage over the "bracketed" period may then be calculated and subtracted from the historical use during this period for which the County was charged. The difference between the historical use and the bracketed use would be the amount of water for which the Plaintiff was overcharged. A precise determination of actual timeframe during which the overcharge occurred is unnecessary since it is captured by the bracketing readings. If per chance the bracketing readings fail to catch all the overcharge, only the County will be adversely impacted since all the overcharge will not be captured. Although not material to the inquiry except for deciding on a bracketing scheme, evidence points to the July 1, 2005 to June 30, 2006 timeframe as the period in which the overcharge occurred. See, Durasteel Co. v. Great Lakes Steel Corp., 205 F. 2d 438 (8`'' Cir. 1953) (Even though there is an issue under the pleadings but no dispute as to the controlling material facts, then the court should enter summary judgment). The low flow meter readings on January 12, 2005 and June 30, 2006 will be used to define the bracket period. In addition to not being in dispute, (Exhibit B -1, current low flow meter read on November — December 2004 worksheet and Exhibit G, City Resolution, P. 6 Conclusion #9, reference to January to February 2005 readings), the use of the January 12, 2005 low flow meter reading of 9866 as the beginning of the bracket period will allow the County to demonstrate the roll- over calculus. The endpoint for the bracket period will be the June 30, 2006 low flow meter reading of 3893. (Exhibit B -11, current read on the June, 2006 worksheet and Exhibit G, city Resolution P. 7 reference to Exhibit 3 J). (See also, Exhibit B -12, where 3893 was used on the August 2006 worksheet as the prior low flow meter reading). The use attributable to the low flow meter during the period January 12, 2005 to June 30, 2006 is: (3893 [June 30 reading] + 10,000 [since 3893 would 8 be the first reading after the roll -over, this addition is the allowance for the roll- over]) = 13,893 — 9866 [Jan.l 2 reading] = 4,027. Because the meters are read in the thousands of gallons, the actual amount of water usage attributable to the low flow meter during the period January 12, 2005 to June 30, 2006 is: 4,027 X 1,000 = 4,027,000 gallons of water. The historical amount of water ascribed to the low flow meter upon which the Defendant billed the County during this same period was 24,780,000 gallons of water. (Exhibit E, Defendant's Answer to Plaintiff's Interrogatory #2 plus the low flow use for January — February 2005 calculated from Exhibits B -1 and B -3). Therefore, during the period January 12, 2004 to June 30, 2006, for the portion of the water use imputed to the low flow meter, the County was billed for the use of 24,780,000 gallons of water at the LEC while it only used 4,027,000 gallons and so was overcharged for 20,753,000 gallons of water. Inserting the 20,753,000 gallons of water the County did not use into the City's water and sewer billing algorithm, (Exhibit H paragraphs 4 and 5 of the Complaint), the City over billed the County and the County overpaid the City $114,262 for sewer and water services during that timeframe. It must be reiterated that in this case the actual timeframe of the overcharge is immaterial and only the amount of overcharge is relevant. As will be discussed next, the dates during which the overcharges occurred are not even cogent for purposes of ascribing interest. The County first informed th e City i on March 11, 2009 of the overcharge. (Exhibit D — Affidavit of Ann Hudson 9119). The County's claim was rejected at the staff level and by the City Council. (Exhibit G, City Resolution #09- 10 -39). Under long standing Minnesota law, the interest in a case 2 Since Interrogatory #2 asked only for the low flow use for the period March 1, 2005 to June 30, 2006, the low flow meter use for January — February 2005 had to be determined and added to the amount provided by Defendant and that use was: (10,000 + 0300) — 9966 = 434 X 1000 = 434,000 gallons. Although the total use could have been provided by Ann Hudson from 116 in her affidavit, there is a method to the madness of deriving the historical use in this manner as it evinces the ease with which these calculations may be made. 9 for unjust enrichment runs from date the mistake was discovered and demand for reimbursement made. Sibley v. Willard, 17 N.W. 337 (Minn. 1883) Perkins v. Stewart, 77 N.W. 434 (Minn. 1898). Therefore, interest in this case would begin to accrue from March 11, 2009 when the City was first informed of the overcharge. IV. ARGUMENT A. THE FACTS WHIC H MAY BE IN DISPUTE IN THIS CASE ARE NOT MATERIAL TO THIS ACTION At first blush, this case appears relatively complex, and the intuitive, "knee jerk" reaction to a summary judgment motion would be "no way." However, upon reflection and closer study, it becomes quite evident that principles attending the theory of unjust enrichment simplify the issues to the extreme and make summary judgment not only feasible but verging on imperative. While it is instructive to put the just discussed material facts in context in order to gain insight of how this case came into existence, it is not necessary. Nonetheless there is no denying that the case is replete with interesting though immaterial facts. So, rather than ignore them and go "whistling through the graveyard ", a brief recitation of "the how and why" will be given. However, it cannot be overemphasized that the following narrative does not touch and concern the material facts of this case and is merely offered to provide overview and the County's side of "the rest of the story." Durasteel Co. v. Great Lakes Steel Corp., supra. at 441. This case has its genesis with the roll -over of the low flow meter. As related in the material fact portion of this memorandum, the algorithm that should have been employed by the City to solve the riddle of the roll-over, which was adding 10,000 to the first current low flow meter reading used for calculation after the roll -over, subtracting the prior reading and then returning to the status quo ante, 10 was not used by the City. Instead, as evidenced by the Defendant's responses to Plaintiff's Interrogatories #4a, 5, 8 and 9, the City felt compelled to place a "1" in front of all subsequent low flow meter readings, thereby, transmutating the four digit low flow meter readings into ersatz 5 digit readings. The problem with this practice is that to the rest of the world the low flow meter is still a 4 digit read. There is no physical transformation of the low flow meter from 4 digits to five. See Exhibit C, photo of low flow meter. By placing the "1" in front of the 4 digit low flow meter readings, the Defendant was de facto adding 10,000 to the readings; and, if it continued this practice faithfully, the procedure would have provided the correct low flow meter usage as it did for the 3 billing periods or so after the roll -over. This practice works only because of the mathematics involved wherein the Defendant adds 10,000 to the "front end" (current reading) and immediately subtracts the 10,000 that was carried on the "back end" by the previous reading. However, the "1" must be placed in front of the actual 4 digit low flow meter reading without fail and in perpetuity or, at least, until the meter rolls over again at which time, after an initial complex calculation, a "2" instead of the "1" must be carried in front of all future low flow meter readings until the next roll- over when..... If there is only one instance of not placing a "1" in front of an actual reading, trouble will ensue, bringing to mind an old Cossacks proverb: "When you fish with a minnow, you sometimes catch a shark ". In this case, a very big shark was hooked, and it took a year to reel in. A close study of the attached worksheets, exhibits B -2 to B -11, is instructive. (The story it tells is manifestly and perplexingly at the odds with many of Defendant's declarations in its responses to Plaintiff's discovery requests. But, these are matters for another clay). As stated ad naseunn, the low 3 It cannot be gleaned from Defendant's answers to Plaintiff interrogatories whether Defendant actually understood the mathematics involved in its practice or whether it used this procedure not understanding the mathematics involved but only it because it worked. 11 flow meter rolled -over prior to February 28, 2005. A County employee made the January to February, 2005 low flow reading on March 1, 2005 and entered a reading of 16287. (Exhibit B -2, current reading). This reading was patently wrong since it was 5 digits and was questioned by the City which returned the worksheet to the County for a re -read. The County re -read the meters on March 15 and submitted a reported low flow meter reading of 0300. (Exhibit B -3, low flow reading). The Defendant modified the reported low flow meter reading to 10300. The City inserted this ersatz low flow reading of 10300 in the prior read "box" of the March — April 2005 worksheet. A pattern developed wherein the County would read the low flow meter and submit the 4 digit current reading on the worksheet, and the City would change it to a contrived 5 digit reading by adding the "1" in front of the reading submitted by the County. This was presumably done to avert a negative use calculation. The stated rationale behind adding the "1" in front of the submitted reading was to account for the roll -over; but once the Defendant "got on this merry -go -round it couldn't get off' because if it eliminated the practice of placing the "1" in front of the 4 digit low flow meter reading submitted by County, C the would be faced with a negative use calculation. It is Y� City Y important to note that in this whole process, the County's only task was to provide the Defendant with the current meter readings. The Defendant collected the worksheets and made the use calculations, freely manipulating the current readings to fit its paradigm. (Compare the "current readings" submitted by the County in Exhibits B -3 to B -11 and the "prior readings" used by the City in those exhibits). In effect the County was a prisoner of Defendant's determinations. It was on August 31, 2005 that the City finally caught the "shark" of which the Cossacks prophesy. For whatever reason, whether he was confused by the 5 digit previous read entry on the worksheet provided by the City or some other reason, the County employee tasked with reading the meter for 12 the July — August, 2005 period read and reported the 5 digit low flow reading o f 16102. (Exhibit B- 6). The photograph of the low flow meter which is Exhibit C shows the low flow meter is comprised of 7 digits even though only the white 4 digits are to be read, and it is fairly evident the employee read and reported one of the black digits together with the 4 white digits he was suppose to read. Since the County provided a 5 instead of a 4 digit low flow meter reading for the July — August billing period, the City did not feel inclined to place "1" in front of this reading and made the use calculation based upon the 5 digit reading submitted even though this resulted in a low flow meter use 10 times greater than the prior period's use and for that matter all past uses. However, for the September — October 2005 billing period, the County returned to submitting a 4 digit low flow meter reading, reporting a reading of 2198K (the K denoting the meter is read in the thousands) for the period. (Exhibit B -7). If the City had employed the September — October, 2005 low flow reading submitted by the County for its use calculation, it would have resulted in a negative use (2198 - 16102). Even if the City had reverted to its past practice of placing a "1" in front of the 2198 reading, it still would have been left with a negative use (12198 — 16102). The Defendant had painted itself into the proverbial corner through the prior practice of placing a "1" in front of the low flow readings submitted by the County and then abandoning that practice for the July — August billing period. In an attempt to extricate itself, the Defendant first requested the County to re -read the low flow meter and was presented with the entire 7 digit low flow meter reading. At this point, the Defendant crossed the Rubicon and by an act of legerdemain (actually a significant mathematical "adjustment ") changed the low flow meter to a substantive 5 digit reading by rounding the 7 digit number provided by the County to the 5 digit reading of 21980. (Exhibit G, City Resolution Finding #9 first paragraph on P.7). Because of the mathematics involved in "rounding -up" the low flow 13 meter to 5 digits, this contrived practice resulted in a low flow meter use that was 10 times greater than the actual use and a bill to the County that was predicated on a water use at the LEC that was 800 times greater than was actually used. (According to Defendant's answer to Plaintiff's Interrogatory #2, iii., the low flow meter accounts for nearly 80 percent of the water use at the LEC). This manipulation continued until the May — June, 2006 billing period at which time the City returned to a consistent use of a 4 digit low flow meter reading. (See Exhibits B -11, 12 and 13). Exhibit J is a graph of the water use attributable to the low flow meter during the period January 2005 through December 2006 based on the City's calculation of use and a simultaneous graph predicated on the County's calculations. It provides a depiction of the stark increase from historical use during this transmutative period of July 2005 through June 2006 when the reading from the low flow meter morphed from 4 digits to 5. This graph certainly gives meaning to the old adage that a picture is worth a thousand words. (Exhibit J is Attachment B to Affidavit of Ann Hudson). As evidenced by the proceeding narrative, this case is filled with facts made immaterial to the case by the law concomitant to unjust enrichment. While there is hesitancy to include a discussion in a motion for summary judgment of disputed albeit immaterial facts, it is the "500 pound gorilla in the room "; and, if Plaintiff does not make mention of them, Defendant can be depended upon to do so. But see, Durasteel Co. v. Great Lakes Steel Corp, supra. (Summary judgment should be granted despite disputed immaterial facts). Nonetheless, the principles attending the law of unjust enrichment cleaned the Augean Stables of the facts dealing with the mistakes, recriminations, accusations, projections and hypothecations associated with this case and laid bare the relatively few material facts upon which this case can be decided. The fundamental precept of the theory of unjust enrichment was sententiously espoused by Lord 14 Justice Mansfield in the late 1700's: "This kind of equitable action to recover back money which ought not in justice be kept is .....much encouraged.....[and] lies for money paid by mistake, or upon consideration which happens to fail, or for money got through imposition (express or implied)....or under advantage taken of Plaintiff's situation..... In one word, the gist of the kind of action is that the Defendant, upon circumstances of the case is obligated by the ties of natural justice and equity to refund the amount." Moses v. McFarland, 2 Burrows' Reports 1005. The Minnesota Courts have stated it far more succinctly albeit less eloquently: "Defendant was unjustly enriched at Plaintiff's expense; that is sufficient for recovery." Todd v. Bettingen, 124 N.W. 443 (Minn. 1910). In this case, the Defendant may attempt to "cast stones" at and lay blame at the feet of Plaintiff and profess its good faith; but, its explications, "just don't signify." The question before the Court is simply whether the City has a right to retain the more than $114,000 for which it provided no service and is not whether the Defendant acquired the money honestly, in good faith or through the fault of the County. Grand Lodge v. Towne, 161 N.W. 403, 405 (Minn. 1917). B. THERE ARE NO GENUINE DISPUTES OF MATERIAL FACTS AND PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT It is axiomatic under Minnesota jurisprudence that a party is entitled to summary judgment "....if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits...." evidence no dispute of material fact and show the party to be entitled to summary judgment as a matter of law. Minn. R. Civ. P. 56.03. The raison d' etre behind the theory of summary judgment is to provide the courts with a just, speedy and inexpensive way to dispose of a case when it finds no genuine dispute of material facts and the law is on the moving party's side. DLH, Inc. v. Russ, 566 N.W. 2d 60 (Minn. 1997). In this instance, the law of unjust enrichment 15 makes the decision easy. As shown previously, the Plaintiff overpaid Defendant for water and sewer services in the amount of $114,262, a bill that was based on a little over twenty million gallons of water the Defendant did not provide. It matters not whose fault it was or that the Defendant accepted the money paid in good faith. The fact of the matter is Plaintiff is able to easily demonstrate through two unrebuttable low flow meter readings and the Defendant's own billing formula that the Count g g Y was overcharged $114,262 for municipal water and sanitary sewer services. overcharged P 1 7' C. THE THEORY OF UNJUST ENRICHMENT ONLY REQUIRES THE COUNTY SHOW IT PAID FOR SERVICES IT DID NOT RECEIVE As stated time and again, the County has brought this action on the theory of unjust enrichment predicted on payments made to the City for water and sewer services for which Defendant charged v' e Knutson v. City Moorhead, 84 N.W. 2 626 1957) (City unjustly did not provide. See, Kn is n . Ci y of Mo (Minn. ( ) ( ty ] y enriched for sewer overcharges); Sloan v. City of Duluth, 259 N.W. 393 (Minn. 1935) (City unjustly enriched for excess water and sewer p ayments); Paton v. Duluth Gas and Water Co., 52 N.W. 527 (Minn. 1892). The jurisprudential precept attending unjust enrichment focuses solely on whether the Defendant received money for services it did not provide and leaves fault and good faith aside. See, Youngstown Mines Corp. v. Oftedahl, 51 N.W. 2 " 93 (Minn. 1952) (a person who has paid money to another because of mistake of fact and who does not obtain what is expected is entitled to restitution regardless of the good or bad faith of the Defendant). Therefore, the facts associated with laying blame for the misreadings of the meters and calculations of water use are not cogent to the inquiry City's good and neither is the Cit ood faith or lack thereof relevant to the case. The Defendant may not escape repayment of the overpayment nor parry the summary judgment motion by claiming it was the County's negligence that was the root of the problem and that it acted in good faith in 16 accepting the payments. In United States v. Northwestern National Bank and Trust Co., 35 F. Supp. 484, 486 (D. Minn. 1940), the court captures the essence of the characteristics of and the rationale . << behind an unjust enrichment action: "No matter how careless or inexcusable the act of the bestower may have been the recipient of the benefit....must make restoration, the theory being that restitution results in no loss to the recipient. It merely received something for nothing (emphasis mine)." p � 1 Y something nothing In this case, the City received a little over $ l 14,000 for approximately 20 million gallons of water it did not provide. It would be manifestly unjust for the City to keep this money merely because the County may have been less than diligent in reading the water meters (although evidence may prove otherwise) and the City may have acted in good faith. The question is not whether the Defendant acquired the money honestly in good faith or through the f ault of the County; y, rather, the issue is whether the Defendant has a right to retain the money. Grand Lodge v. Towne, supra. No doubt the g make much of the disputed readings Defendant will do its utmost to dispara the County and will mak m p b associated with the worksheets trying its best to lay blame on the County; but, to borrow from the " remonstrances will be "....much ado about nothing". Even if the words of the "Old Bard", City's remons.rances g Defendant should expostulate on the doctrine of voluntary payment, it would not signify as the . nothing". Twp. has no application when public funds are used to "pay for � . See , Normania N wp•. v. Yellow Medicine County, 286 N.W. 881 (Minn. 1939). D. TO DEMONSTRATE A GENUINE ISSUE OF MATERIAL FACT THE NONMOVING PARTY MUST PROVIDE SPECIFIC FACTS As a corollary to the admonition that a moving party support its motion for summary judgment with probative evidence, the nonmoving party must do likewise in defeating the motion. It is not sufficient for the nonmoving party to merely sell "snake oil" through reference to unverified and 17 conclusionary allegations which may (or may not) be developed in the course of cross - examination, A.J. Builders, 179 N.W. 2" 98 (Minn. 1970) or claim there maybe some metaphysical doubt as to the readings of the low Clow meter. Carlise v. City of Minneapolis, 437 N.W. 2 " 712, 715 (Minn. App. 1989). Nor may Defendant counter Plaintiffs summary judgment motion by resorting to polemics, ad hominem argument, speculation, innuendo, and general assertions. See, Borom v. City of St. Paul, 184 N.W. 2 595 (Minn. 1971). Rather, the Defendant must provide specific facts through affidavits or other means demonstrating that a genuine issue of material fact exists (emphasis mine). Johnson v. Blaricom, 480 N.W. 2 " 138 (Minn. App. 1992). In short, the courts demand substance from parties attempting to foil a moving party's attempt at summary judgment, giving recognition to the old aphorism: ex nihilo nihil fit (nothing comes from nothing). A study of Defendant's answers to Plaintiff's interrogatories; its responses to Plaintiffs request for admissions and its finding and conclusions in its Resolution denying Plaintiff's claim for restitution show an attempt on the part of Defendant to distance itself from any responsibility regarding the low flow meter. Defendant's responses to Plaintiffs discovery request feign ignorance of how the meters were read and recorded; of how they functioned; if they functioned properly; or if they were ever repaired. Defendant also shows a decided lack of understanding of the mathematics involved in the use calculations. (See, e.g., Answers to Plaintiffs Interrogatories #'s 1, 3, 4, 4a., 5, 8, 9, 15, 17 and Responses to Plaintiff's Request for Admissions # 6, 7, 10, 12, 13, 18, 25 and 37). The Defendant's recurring theme in its answers to interrogatories and responses to requests for admissions is "Washington County maintained and read the meters in question and any information and /or accuracy of the meter reads and functionality of the meters was the responsibility of the County, and the City has no knowledge as to how the meters were read." (See, e.g. Responses to 18 Plaintiffs Admission #I3). In sum, when responding to a motion for unjust enrichment, it is not enough for the Defendant to merely remonstrate against, make denials of and otherwise "case stones" at the material facts p resented in this motion for summary judgment as that just "doesn't feed the bulldog ". See, Johnson v. Van Blaricom, supra. V. DEFENDANT'S DEFENSES A. THE DISTRICT COURT HAS SUBJECT MATTER JURISDICTION OVER PLAINTIFF'S UNJUST ENRICHMENT ACTION The Defendant contends that this court lacks subject matter jurisdiction over Plaintiff's common law action of unjust enrichment contending this matter m ust proceed on a writ of certiorari. J � g p Because the Defendant has brought a summary judgment motion solely on this issue, the Plaintiff the Defendant's contention that the court lacks jurisdiction over subject matter will defer addressing h J J this lawsuit until it responds to Defendant's motion for summary judgment except to say this court most certainly has subject matter jurisdiction. As will become obvious from Plaintiff's response, a writ of certiorari would not be an appropriate means of resolving this case. B. THE SHERIFF IS NOT A PARTY TO THE ACTION AND SERVICE OF THE COMPLAINT WAS PROPER In addition to arguing a lack of subject matter jurisdiction over this suit, the Defendant also $ subj J contends the court it is without personal jurisdiction. The Defendant contends that because the Sheriffs Office served the County's Summons and Complaint, the service was in contravention of Rule 4.02 of the Minnesota Rules of Civil Procedures which prohibits a party from serving the summons and complaint; and, therefore, the service on Defendant was ineffective. (Exhibit E, Answer #24 to Plaintiff's Interrogatories). No doubt Defendant's argument has its genesis in the 19 case titled Year 2001 Budget Appeal of Landgren v. Pipestone County Board of Commissioners, 633 N.W. 2nd 875 (Minn. App. 2001). In Landgren, the Sheriff initiated an action on his Office's behalf against the county's board of commissioners claiming the funding for his office was inadequate. Because he was "in the neighborhood," so to speak, the sheriff personally served the notice of appeal. The Court dismissed the Sheriff's action holding that the service of process by the Sheriff of an action to which the Sheriff was a party violated the proscription contained in Rule 4.02 thereby making his service on the county board ineffective. It is presumed the defendant in this case seeks dismissal for lack of personal jurisdiction based on the holding in Landgren. Though beguiling Defendant's argument maybe, it nevertheless lacks the construct of the Landgren Case because the Sheriff is not a party to this action. The fact the Sheriff is an Officer of the County does not ipso facto make him a party to every action, brought by the County; and, in fact, because the County and not the Sheriff is the party in this matter, the rationale behind the Landgren decision is unavailing to the City, and its argument must fail. Courts have long recognized that the teini party in legal parlance is a technical word having a precise meaning and embraces only such persons or entities as are parties in a legal sense. Green v. Bogue, 148 U.S. 478 (1895). Minnesota courts have held the term parties to include only those who are directly interested in the subject matter and have the right to control the proceeding, examine and cross- examine the witnesses and appeal from the order or judgment. Schoenfelder v. Beckman, 55 N.W. 2 305 (Minn. 1952). Unlike the Sheriff in Landgren who had a direct stake in his lawsuit, the sheriff in this action has "no dog in the fight." The Minnesota Supreme Court in the case of Wiggin v. Apple Valley Medical Clinic, LTD., 459 N.W 2 918, 928 (Minn. 1990) could not have made the meaning of party any clearer when it expostulated that the word party in a legal sense means only the 20 named Plaintiff or Defendant. C. THE PRINCIPLES ATTENDING THE THEORY OF UNJUST ENRICHMENT NEUTRALIZE THE DEFENDANT'S PROPOUNDED DEFENSES OF LACHES, ESTOPPEL, WAIVER AND UNCLEAN HANDS. In addition to its jurisdictional defenses, the Defendant also advances the defenses of (aches and/or estoppel, waiver, unclean hands and contributory negligence." Because all these defenses contain an element of fault in the act or omissions of Plaintiff's employees and the theory of unjust enrichment disavows such blame, response to these defenses will be made in mass. Although the facts of the case if totally developed would absolve the county employees of much of the blame in this matter, it would require the court to weigh the evidence, which when considering a summary judgment motion the court is enjoined from doing. Suffice it to say, therefore, that fault or estoppel in any guise is not a defense to any action for unjust enrichment, particularly when payment from the public coffers is at issue. See, Normania v. Yellow Medicine County, 286 N.W. 2 881 (Minn. 1939) (voluntary payment has no application as defense to unjust enrichment action when public funds are involved). In its most distilled form, the very essence of the theory of unjust enrichment is captured by words of the court in Todd v. Bettingen, supra at 445: "The Defendant was unjustly enriched at Plaintiff's expense; that is sufficient" reason for ordering Defendant to reimburse the Plaintiff. (emphasis mine). D. PLAINTIFF'S ACTION IN UNJUST ENRICHMENT IS AN ACTION AT LAW AND PLAINTIFF'S CLAIMS ARE NOT BARRED BY THE DOCTRINE OF ACCORD AND SATISFACTION AND /OR PAYMENT The last two of the defenses advanced by the City enigmatic. The first expounds that Plaintiff's 21 claims are barred "since plaintiff has a legal remedy at law, namely writ of certiorari." (Paragraph XVI of the Answer). In truth, Defendant's argument devolves into one of subject matter jurisdiction. Since the Plaintiff contends the City Council's action is not a quasi-judicial determination, a writ of certiorari would be in appropriate. The Plaintiff availed itself of the only remedy open to it, which is unjust enrichment. Although unjust enrichment was initially founded upon equitable principles, it is nonetheless an action for money damages and fits the fact pattern with which it was presented. See, City of Mahtomedi v. Spyehalla, 243 N.W. 2 31, 33 (Minn. 1976). On the other hand, the writ of certiorari would only be appropriate if the Defendant were sitting as a quasi-judicial body, which Plaintiff disavows, and the question, then, would be jurisdictional. See, University of Minnesota v. Woolen, 659 N.W. 2 300 (Minn. App. 2003). The second of the "puzzles" posed by Defendant is its assertion that Plaintiff's claims are barred by the doctrine of accord and satisfaction and/or payment. (Paragraph XVII of the Answer). When asked to expand on this claim by providing a factual basis, the Defendant responded by stating that "....Washington County did pay in full all charges without reservation." However, the Defendant also demurred on the basis that it called for a legal conclusion. (Answer to Interrogatory #20). Therefore, it is left to speculation whether Defendant abandoned this defense or is being evasive in its response to Plaintiff's interrogatories by failing to provide its entire factual basis for the defense and leaves open other aspects of the defense such as settlement. To the extent the Defendant fails to answer Plaintiff's interrogatory forth rightly, the Plaintiff asks the court to strike this defense. CONCLUSION Although the facts in this case are legion, very few are material and their resolution, while interesting, matter not. Durasteel Co. v. Great Lakes Steel Corp., supra. They are facts that speak of 22 fault, but fault is not relevant to a case of unjust enrichment. The plaintiff has shown with incontrovertible evidence that on January 12, 2005 the low flow meter reading was 9866 and on June 30, 2006 it was 3983. Accounting for the roll =over, the calculated low flow meter use for the period January 12, 2005 to June 30, 2006 was 4,027 and an actual use of 4,027,000 gallons of water. It is also indisputable that during this period the City billed the County and the County paid the City for water and sewer services at the County Law Enforcement Center based on 24,780,000 gallons of water or 20,753,000 gallons more than the County actually used at the Law Enforcement Center, resulting in an overcharge of over $114,000. In addition, the Plaintiff first informed the Defendant of the overcharge on March 11, 2009, and Plaintiff is entitled to interest from that date. Unjust enrichment only concerns itself with the fact that Defendant received money to which it was not entitled to the detriment of Plaintiff. Good faith on the part of Defendant or negligence on the part of Plaintiff does not enter into the equation. Therefore, as a matter of law, Washington County is entitled to summary judgment in the amount of $114,262 plus interest from March 11, 2009. Date: �j // DOUG J0 SON COUNTY ATTORNEY WASH TON OUNTY, MINNESOTA George Kuprian No. 147722 Assistant Washington County Attorney Washington County Government Center 15015 62nd Street North P. O. Box 6 Stillwater, MN 55082 (651)430 -6115 23 Case Type: Civil Action STATE OF MNNESOTA TENTH JUDICIAL DISTRICT TENTH COUNTY OF WASHINGTON JUDICIAL DISTRICT Court File No. 82 -CV -10 -4198 County of Washington, Plaintiff, AFFIDAVIT OF JAMES LINDNER vs. City of Oak Park Heights, Defendant. James Lindner, being first duly sworn states as follows: 1) I am currently employed by Washington County as Assistant Facilities Manager in the Public Works Department. I have been the Assistant Facilities Manager since December of 2004. 2) In my position as Assistant Facilities Manager, I oversee the Facilities Technicians, set up maintenance and service contracts, meet with vendors, conduct trainings, and do small maintenance projects. 3) During the timeframe January 1, 2005 to June 30, 2006, I was responsible for monitoring the compound meter low flow (low flow meter) and overseeing the other Facilities Technicians who were assigned to read the water meters. If something needed to be repaired or replaced on the meters, one of the Facilities Technicians would have notified me, and I would have been the one to make arrangements for the repair. 4) During the timeframe January 1, 2005 to June 30, 2006, the water usage at the LEC was measured through seven water meters: the #1 West Meter; #2 compound meter low flow; #3 compound meter high flow; #4 fire meter; #5 sprinkler meter; #6 cooling tower in meter; and #7 cooling blow down meter. 5) All seven meters are odometer -type devices. The amount of water used during any one period is calculated by subtracting the meter reading at the beginning of the period from the meter reading at the end of the period. 6) Each meter has more digits than are to be read, reported, and used in the calculation to determine water usage. Fcr example, the low flow meter has 7 digits, but only the four white digits are to be read, recorded, and utilized in the calculation. EXHIBIT a a 3 7) During the time period January 1, 2005 to June 30, 2006, the meters were read by Washington County Facilities Technicians at two -month intervals. The readings were recorded on Water Meter Reading worksheets and sent to the City of Oak Park Heights. 8) The City of Oak Park Heights would then send a worksheet back to the County to be completed for the next two -month period. The worksheet sent back to the County had a box titled "prior reading ". The City typed the prior reading into that box and faxed the worksheet back to the County. 9) In my professional capacity, I have access to the records of the Washington County Public Works Department. I have checked the County records. There were no repairs, rebuilding, replacements, or modification to the low flow meter during the time period January 1, 2005 to June 30, 2006. This matches my recollection. 10) Prior to the compound meter low flow and compound meter high flow being replaced, I took a photograph of the meters. This photograph was taken in or around June of 2009. I took the photo so that the County would have a record of the readings on the meters at the time the meters were replaced. 11) Attached as Exhibit C is a true and correct copy of the photograph I took of the compound meter low flow and compound meter high flow in or around June of 2009. This photo is an accurate depiction of how the meters looked in or around June of 2009. J. , es Lindner ashington County Public Works Subscribed and sworn to before me this 77' may of July, 2010. " � VICKY J. KRAWCZESKI `. .1 Notary Public-Minnesota Notary Pu �f" i- M commigebn Expires Jan 31, 2015 " , ,Hr. ,-Hrr, nG L un i = ..l , , 651-440 +`a' -' J i Firr ck.26J :_`� Water Meter Readings Readin • s for Nov. - Dec. 2004 Dave Beaver Fax 430-7958 Read meters near end of every eves month Read to nearest 9a Lawnloroement Center Previous Current Date Date , Previous Current Read Read Use Meter 31298 0 West Meter -1 0 Corn sound Meter Low Flow p Meter Hi• h Flow 15324 s > - s ‘ (4 3 0 Corn sound Total Building . 0 .r 83 � -� Fire Meter 3 Previous Current Water ant Read Read 0 Uction Meters 0 Ded 1633 • Previous ' Current Use Read Read 0 i rl � Tower I r1 2837 Water Cool � 859 S�m� 0 0 n Cooiin• BIOW DoWf 0 Ci Use Onl New 2 Month Previous i�. Use R ea d Rea din. — -- 3155 0 _� - _ 0 Water Only (1334) - ___._._. 4 {t Af. -.fear � t1N �P V�f�'_I � 1J�L/ � _ � Yva4 tae ems. - 63 . Fire Cumulative (1335) Mal 1 EXHIBIT H TOTAL P.01 I /3 - i CY PRI v hE t C.,+4 I 7.., (.. t II 013iter Meter Fteadings Readin-s for Jan. - Feb. 2004 ' ROW MEWS mar end of every even month Law Enforc,ernent Center Read to menet 1000 Sitars Previous Current ncon*A wales wy2.17, .,. ,,,,,,,,,,,p,av,„ __ Date ...._,. 121311U4 _. 03101 Provioua Current Meter Reed Read Use West Meter 31288 0 7 ( 0 4,.. I Com- - und Meter Low Flow 9866 - 2.M , _ 0 Com- -und I■Aeterl-li-h Flow 15843 I (ill' 0 7 Aik Total BuildIng 0 ainsin 86 gl 0 Previous Current Water Cieducete s Read Read 0 en 4t633111M1 0 0 Previous Current Read Read Use meter Caotin- Tower In . WS 2 37 0 rebuilt Water Coati ..: Blow Down 859 S-4-.Cf 0 Orli 0 . . ..: imiusimmillill C use On Previous Test 1111111111115/1= • Water On 1334 111.11ar5 01112111 5347 Water and Seyrvial...i30 _ 64544 011111:01 64 • • 11111111 .Fire 9, WM '1.1 . Elfter rve cbmive....ng Mil) Interrotralec TU• at- P. EXHIBIT 1 3 ,„" *, TOTAL P.01 0 . 3 - 1 - :10 i 28141 FPCM 1.,1fa .H I NGTQN co LP r i u Lt.) OA. '' g" 0 C ( ,rte n r � - 0-7\4c,, 0 C� c e 3 lu 0_ /0: 3 COYA p /0° I\ ,° f,1 t6';\ �`( c - 6 j . C orq, W 0/O ' L - 110 j /r EXHIBIT P.01 n� YOTn, P.r1 MOY-04 -ales _ LI . --:_, 'y -v0-1 tit tliri s 0 , ....1 1 1 Water Meter Readings / I D 4 ' 4V DI° ReadiNs for March - A•kril, 2005 Read meters near end of every even month Law _ Enforcement Center Read to nearest 1300 gallons P revi ou s Current oaTel_iEr..m.willi2ayLaLt9ii_NLIfei_;)1.,1._ m.142,27.53,, ioi.1:. 1 mor)4in,.77y7) _ .. _ _....0........._....... ...- ._____ _ ____ ....._____ ,... ,........ _..........._..,•....„ - - - Pt.eviouG Cure qt, Meter Read Read Use West Meter _L<L, _ _ 3 1298 _ . c . 0 Co m •ound Meter Low Flow Com •ound Meter Koh Flow Iga- 6.=.;-.,i•::.0 L , . -0 0 onscammi 88 90 0 Previous Current \N ater Deduction Meters Read Read Onl S•rinkler 1633 WNW 0 0 Previous CA.irrent Read Read Use Coolin. - rower in 2837 c: i/c-o 0 Water Coolin• Blow Down 859 0 Onl 0 C Use Onl Previous 2 Month .1 New Readin• Use Readint!* Water 0111 Li3L41____ 5347 011111:11111 5347 'AhateLITSLISMU___ 78610 0 78610 . i - -":-------r--------7‘i----_-_ - 163 Eire Cumulative 16...5 ' Enter New Reading into Interrogator EXHIBIT . 1 TOT- P .01 3 c, J1.11.1---3U 1E, : 71 m1<" PPFle HE I ril-fr; r'H Y Water Meter Readings 6514' -, Readin•s for Ma - Jun. 2005 Dave sea,ier Fax 430-7958 Read meters near end of every even month Law Enforcement Center Read to nearest1000 gallons Previous Current at 04 OW 67 i 0170 _________,----------------- -------- --- Previous Current Meter Read Read Use West Meter 31298 ,r-b-i-ti.. . _ . 0 Compound. Meter Low Flow 10650 1611-08 0 Corns ound Meter Hi.,1) Flow 16817 MOM 0 Total Building 0 , gingit 90 UMW 0 Previous Current Water Deduction Meters Read Read INI Onl 1 S•rnkler 1633 Waal 0 1 --------- ---------------- --- Previous Current Read Read Use Coolin• Tower in 2854 NEM 0 Water Coaling Blow Down 859 ci 3,2' 0 Onl 0 . ... • , . Ci Use Onl Previous 2 Month New Readin• Use Readin,* 8975 _ 0 = 8975 Water and Sewer: SIRO:1___ 120645 .. ....:._ .... 0 : IL. 1206 5_ Fire Cumulative (1335) 165 * Enter New Reading into 4ntertogator / --- 1i: 12 4 rv\-- EXHIBIT TOTAL P . 01 - 5 3 _5 t -20.05 1:::' : 21 CRK HHF: HELI_Iml 1,111 Water Meter Readings to 651-439- Readin II s for Jul. - Au.. 2005 Dave Beavec Fax 430-7958 Read meters near end of every even month Law Enforcer_ j______Ient Cer___It,r__ Read to nearest1000 gallons Previous Current -.• -6. \ Date 06i36105 08/31i6 _ ___ ,, , ,.., Previous Current , -=) - Meter Read Read Use „ _ 10968 10 2 : ( L I l / . -c -, COM • wind Meter Low ROW '.• , . - m ,-/_.i.=-vi--- Corn•ound Meter 1-li.th Flow 17640 ' ' o 0 Total Building 0 Fire Meter 92 9 3 0 Previous Current Water Deduction Meters Read Read Ori Onl SRrinj_der • 1635 'J Z9 0 Previous Current Read Read Use Coolin• Tower In 3036 , J - f 5F10 0 • Water Coolin. Blow Down 926 tO V . 0 ON 0 • , . . . . City Use Only 2 Mont New Previous Use Readins* _ \ A n .ilate.:r _niv(134) _ _ 9092 0 - 121669 , .4-1-1A6C1 0 I water and Sewer (133 1 -- =II- ----- - -- . , IMEEMM11111111 167 0 ;_- 16 Enter New Reading Into Interrogator EXHIBIT It TOTAL P.01 a 3 t LH1' 1 t , _If r1L1Q—JU-7. 1.G.c. Water IY.leter Readings Dave Beaver E( 430-7a58 Read meters near end of every evert month Law Enforcement Center Read to nearest 1000 gallons Previous Current 1 t.NatvMeters Date Date Date 08/1/1.15 76 CR, Previouf,.; Current Meter Read Read Use West M eter 16102 _ 31298 .5 /-9i% 0 . - ,2± - 2 7 ,---) -7 c . Gornsound Meter LOW Flaw -.2/,a g., ) / 1- 7/ ---- -- ---- -------- - -,-,, 1 ll 6 ,_, Com sound Meter High Flow 18900 ';- b(-'(,i' N. 0 47`-oloo Total Building MN ' IZIMMIIIIIIIMIIMMII 93 MIMI 0 Previous Current Water Deduction Meters Read Read ON • 2029 WM 0 0 1 r Current Read Read Use Coolin. Tower In 345811101110 0 Water 1 Coolin• Blow Down 1O34 0 On 0 City Use Only Mill 2 Month IIIII New Use Readin.* Water only (1334) _ _ ____ 9800 _ _O _ 9800 lw c ,4 Q.gi — kilAr (1330) 127355 _91 =-• 127355 _—___--_a —_------ Fire Cumulative (1335) 168 EXHIBIT 2 TOTAL P.01 3C - - — _ 1.......2.ii %.03 VNed 31,, ••55,,,P.I.Y.T. .---..- ..... - i iinn - 1 ,''.. ■--. r. .4 A 10,17,1y4r kip pe FlATs , , , 0 c L- /7' ' C J / t) -07 i -.". I .' ... ; . r ........ r", f-=' flnif. i i .., ,......._____2=.2.2.= r.z.ti• 1 :i Fe; v; i ; - i: L'. ..-.; , ,.,,, ; „....;;: j „ :„:64,-; i .-- ) c,..,:-4-,: , °. 1 4.7• '4,4' . ..,••■ =Id dbyli a.iii, ries at,r Es rtri ersi; [Imre:bra =Vel MI:snth 0 to 4 “--.., iblsa 1.7. 3 Vol 1.44 V011:1 '.' - - - _0 - a'a 7:" n f c. , r . : -- ,- I - - 9 C-earjer I _4 , L___ i t..........`",..„,......:,.'-r id_. . k ........._....„...___...............,-1 Reari to nreAr4= it 10 gallons- Previous 1 Current iData I 101:3110 1`.2i31 tv1 Praviesus i 1/4.,urrent , 1 liviater Read Read i Use, West NA eter 31298 3 i z . 0 Cornsound Meter LOW Flow 21980 ' ht- 0 Com sound Meter Hi ah Flow 20006 2,i) q.-c-s 0 Total Building 0 Fire Meter 98 q / 0 Previous Current Water Deduction Meters Read IIIII Read Onl. E1ZZSIZIMIIIIIIIIIIIIIIIIIIIIIIIIIEEaUIBMIII 0 0 . ' Previous Current Read Read Use Coolin Tower in 36611111.111 0 Water Coolin. Blow Down 1083 b 5 S 0 Onl 0 . . . . Ci Use On Previous 2 Month New --- ,— __ Reading! Use Readin.* Water Only (1334) 10282 a 102_82 - — -- „ i 4 r Ct....f-No- 11-4:4.(1\ 133857 0 — 13385T v i,-Li,.,.......-..-:,-w2_ Fire Cumulative (1335) EXHIBIT TOTAL P.01 3s raw —u..-..-L-4,:vJut7. e:.:ci-:.;..., , ...t - sr• c c ciL-l.L.11 -.IBMs, • anew ■ ••...,• ••••■ -....... n.- .... -.■.............. - -. _ Water Meter Readings 651 -439-0 Readings for Jan - Feb 2006 Dave BeaVer re., 430 Read meters near end of every even month Law_E_riforcert Center .._ ___. Read to nearest 1000 gallons Previous Current i II-Iconling ,,;e1\ii6ti.ltis Datrt flee 1 1 f4;3 1/05 _„. ,...... ,...................„.............. P .1 revious Current Meter Read Read Use West Meter 31298 .32,-?;?;' 0 -- ..... Com•ound Meter Low Flow 25080 -z, c--- 0 Corn ound Meter Hi.h Flow 2042305MM 0 Total Building 0 Fire Meter 99 I 0 Previous Current Water Read Or jieliiiAieisillIllIllIll . Read • 2359 MEW 0 0 Previous Curi-ent Read Read Use Coolin• Tower In 3661 615111111111 0 Water Coolln20Wfl 1083 111111 0 Onl , . Ci Use Onl Previous 2 Month New Readin• Use Reading,* ter Only (1334) 102'64 --- -- -0 = iwi and o c.„ 7 .-" vv " u r-- - , (13) 137372 0 , 1......_.......--._— _ Fire Curnulative (1335) 174 0 z: EXHIBIT 6 _ c. TOTAL P.01 ..A L ., _ Lri, , -); HCF:7: , :lcy Readings for March - April 2006 1.3ave Beaver Fax 430-7953 , 1 i Rd meter3 near end of evary {Mil month i _ !...,orocrne.nt Cen'Or 1 Wald to noreut '1000 colloms ... _ inCOMirter. Ndielel _ Litite _ E.)ate __I Date 02/28/06 64/30106 Previous Current Meter Read Read --- West Meter 31298 j•a g 0 Com a ound Meter Low Flow 30570 3 / 70 0 c912n °Land tVietvi 2117611Na 0 Total Building 0 Fire Meter 101 i O 0 Previous Current Water Deduction Meters L _ R ead Read Use Spri Only__ —77-- ----7– ----- 359. - 2_ - %_';6 ' il) 0 1< 7er _ 1.5-7 Previous Current Water Read Read Oni Coolin• Tower in 3661Mall OMNI Cooling Blow Down 1083 i o S''' _ .. . ....... , Ci i Use ON Previous 2 Month New --------Readirta Use _ _ Readirif* Water Only (1334) 1 --- 1028, 0 7 - 7 - -- IVV,14tPr an ,_ H__L__ _LI,, , ri Spvvpr 11"--i'-i'■ , .... , . __._ - Enter New Reading Into Inin EXHIBIT i — ziO TOTAL P.01 3 k' RV :C! 2Ci2, li c,f-IV 1-i-cht, HELUHlo LL 1'( 1 • Readirws for Dave Bea Ver FaX 430-7958 Read meters near end of every even month Lavd Enforcement Centps fUad to novrott 1000 clailnns Pew (') r vont ncoinne,) \Na& bletol'i Da.,!..2_1_ r** DW.e Date — 04/30106 06130106 _—__ Previous Current Meter Read Read Use West Meter • 31298 3 - 0 Com sound Meter Low Flow 3417 Mai 0 Corn • ound Meter Hi• h FlOW 21695 MINIMI 0 Total Building 0 1 .. anSIZI 101 '• '2_ ' 0 Previous Current Water 1 . Deduction Meters Read Read Use On 1 .S•rinkler _ _ _____2359_,.-19yr:/,_"..„..m, 0,_.,„ 0 Previous Current Water Read Read In Or Cooins Tower in 3679 2 --/o 3 6 • 0 Coolini Blow Down 10831Maga 0 . . ,. ... _ . . . .. _ . . .... ,... . . .. Ci Use OM Previous 2 Month New -------- Readin• Use Reading* \i'tfater Only 41334) '11Y02 ti ";■---- ---.:-- r:4---. 'llr1\ 147734 \INittls 171)1(4 %:-.,,27,,,..,! __ 176 Fire Curnulative (1335) Enter fNiew Reading into tnterrogatOr ' EXHIBIT .:4 . I) TOTAL P . 01 1 , ,,I. , Read f& Au ust 2 0 06 Ova &aver Fax 430-795 Road meters near end e evorY von r 11 °P itil , ,,_,,1,:avi Enforcement Co.. _ ___ Road to reamoti3O00 gallons Trevlo T6 urreni _ in t col li Vae,r, tvlei• Date 1 Date , ........of.,..m,dy,tr •.,•••.............,,re........s. C ate 08/30/06 08/3110 --___ Previous Current Meter Read Read Use WestMeter – 31298 3 i 2, ? 0 Com gound Meter Low Flow 3893 Yq -) 6 0 Corn gound Meter High Flow 227011MM 0 Total Building 0 gareM1111111111111111111. 102W 0 Previous Current Water Deduction Meters Read Read On , Scinkier 244.9 7 0 Previous Current Mil Water I Read Read Mal Onl Coolin• Tower In 11111111111110110611 011111111111 1 Cooliii.E.— 891Mall 0 Ci Use Onl Previous 2 Month New Reading Use 101 Re3din • * --- — ------. . Water Only (1334) — - - - II__ .....---""*-^,-...,...,.....a*pag •ftlsa...w.no ..".' ''''' ------L 1 A • ' - +:, r2 ' /... - - -. 1 4 ^1 °Z n \ ... .- . - 1 -------------- . ----_ --- Fire Cumulative (1335) 0 — . " Enter Nev4 Reading Into Interogator EXHIBIT t, i g_ / 2 T3TAL P.01 Readin•s for 10/31/06 Dave Beaver Fax 430-7958 Law (7.nforcernerit Cnter e Read meters near end of every even month Read to oearest 1000 gallor3a ,__.. , . ... +.....,...........,....-.,...........,................-.....,.,....•-.•-,,,,,-,..--.--,,,-------_ -..._-...............■...,.......4... • .......*,.............."..".•, ••I P'CVi 0 Li S C tA rrenC _ Inc° - ,1 - _jia, Water Metclrs i lar.,-)te Datc Date - :. 018131/06 .10/3110 Previous Current Meter Read Read _Use West Meter 31298111M a ' V 0 Conisound Meter Low Flow 44 Corn•ound Meter iii•fi Flow 24262 Wirrea 0 Total Building 0 Fire Meter 102 Min 0 Previous Current Water . Deduction Meters Rel.?... Read Onl _ . , , , • . 0 Previous Current E11 Water Read Read On Coolin• Tower In 4799 MEM 0 11111111111 Coolin, Blow Down 138711011011 0 NMI . . . . „ Ci Use Onl Previous 2 Month .11 New - - - -- Readin• Use Readins* ---- Water Only (1334) 0 -- 1. _ . 2 __Av\iihlifar nai S -- i4 ' 7 "'"' _______-!------------- - -----1 Fire Cumulative (1335) :.: ------ - Enter New Reading Into InterrOgav EXHIBIT TOTAL P.01 `*. f '' a .� ., r b r-'i - h i, c_3 `� 1 r 1 • • ;.?•' ..„1-4-, , - � : :sr" • w 't g i• 0 ,. 7 L r Y l . - P - - f r+�l0 L stn L. t ( . * - 4, -- 7: 4 . �y T l t i C ' \.Z'St 4 . 4 .0'"'i� - _ • • } ��� -• .+g' - , ;41..,..4....-,. 1 tr • g - +' L mss{ t£ «r. ,� {� , a if I •* C t t l'^ ,� Yak �.1} nY•';T� t � 54 x .. �.� i _ K P td Vd • EXHIBIT • • D ---C_______. .. . , - ¢ .� Case Type: Civil Action STATE OF MINNESOTA TENTH JUDICIAL DISTRICT TENTH COUNTY OF WASHINGTON JUDICIAL DISTRICT Court File No. 82- CV- 10.4198 County of Washington, Plaintiff, AFFIDAVIT OF ANN HUDSON vs. City of Oak Park Heights, Defendant. Ann Hudson, being first duly sworn states as follows: 1) I am an accountant currently employed with Washington County Accounting and Finance. I have been employed at Washington County for approximately four years. 2) In my professional capacity, analyzed the City of Oak Park Heights' p pa rty, I have reviewed and a yz y gh ts' billings for water and sewer services to Washington County from January 1, 2005 to December 31, 2006. 3) In February 2008, while looking for potential sales tax savings opportunities for Washington County, I learned that the County could claim a state sales tax refund for the Law Enforcement Center's (LEC) water and heating use for the past three and a half years due to the LEC's use as a correctional facility, which qualified it as a residential customer. 4) In order to claim the state sales tax refund, I had to enter all the water and heating invoices onto a spreadsheet with the following information for each invoice: invoice date, total paid, sales tax paid, and date paid. I obtained the LEC water and heating invoices from Delaina Bacon at Washington County Public Works. 5) In June 2008, while I was determining the total sales tax refund on the water usage, I noticed that the 2 005. -2006 i Vfll! { C Were t\ /n t CiX ti 1 Pr than the T e f th o th e r invoices in the three and a half year period I was looking at. My spreadsheet indicated a potential overcharge of over $50,000.00 for water services. 6) I spoke to Keith Potter at Washington County Public Works regarding the discrepancies. Keith requested that I break the invoices down to the usage and water cost level to try to determine the underlying issue. EXHIBIT a 3 d 7) On June 24, 2008, I added each invoice's water usage and cost to the spreadsheet. The cost of the water was basically consistent, but the water usage during 2005 -2006 was much higher compared to usage before and after that timeframe. 8) In January 2009, 1 started compiling the state sales tax refund, which included the Oak Park Heights LEC water invoices. This reminded me of the potential overcharge for water use issue. 9) I reviewed my original findings and decided I needed a way to reconcile my numbers. Since the Oak Park Heights' invoices included both water and sewer costs, I added the sewer costs to my spreadsheet. 10) I reanalyzed the spreadsheet after adding the sewer costs and realized that not only was the water usage inconsistent, but the sewer usage was inconsistent too. My spreadsheet now showed a potential overcharge of over $100,000.00. 11) In February 2009, I obtained the data from the Water Meter Reading worksheets maintained by Washington County Public Works, including previous and current readings by date, from Jim Lindner, Assistant Facilities Manager. I added the previous and current water meter readings from these worksheets to my spreadsheet. 12) I contacted Judy Tetzlaff from the City of Oak Park Heights to find out the calculation used for the water and sewer usage. Judy told me that the City calculated water usage as follows: West Meter + Compound Meter High + Compound Meter Low — Sprinkler Meter — (Cooling Tower in Meter — Cooling Tower Blow Down Meter). 13) Based on this information, I created an Excel formula using the monthly meter readings on my spreadsheet to calculate the monthly water usage. This formula tied back to a lot of the Oak Park Heights' billings, but not all of them. 1 started to analyze the differences. In doing so, I noticed that there were extra digits in some of the compound low flow meter readings that were impacting the calculations. 14) I contacted Jim Lindner, Assistant Facilities Manager, regarding these findings. I requested photos of the LEC meter readout displays. 15) I compared the meter photos to the calculation errors and confirmed my suspicion that some of the readings included an extra digit to the right which translated to number of hundred gallons used versus reporting number of thousand gallons used. The City of Oak Park Heights was billing Washington County for thousands of gallons used but was basing the billings off hundred rea,a:,,'.o 16) Based on the information 1 gathered from the City of Oak Park Heights' invoices for water and sewer services and the Water Meter Reading worksheets used by Washington County Public Works to report water usage to the City, I have calculated that from the February 28, 2005 invoice to the June 30, 2006 invoice Washington County was charged for 24,780,000 gallons of water attributable to the low flow meter. 17) Attached as Exhibit A is a true and correct copy of a spreadsheet I prepared titled "Usage for LEC Low Flow Meter ". The numbers on this spreadsheet were taken from the Law Enforcement Center Water Meter Reading worksheets that I obtained from Jim Lindner, Assistant Facilities Manager and the invoices that were sent by the City of Oak Park Heights. 18) Attached as Exhibit B is a true and correct copy of a graph I prepared titled "Comparison of Readings Used in City's Calculations of Water & Sewer Usage to Correct Meter Display Readings ". The numbers used in this graph were taken from the Law Enforcement Center Water Meter Reading worksheets I obtained from Jim Lindner, Assistant Facilities Manager. 19) I informed Judy Holst at the City of Oak Park Heights of the overcharge on March 11, 2009. I met with Ms. Holst and went over three color -coded spreads ets: a yearly summary, a monthly /quarterly summary, and a detailed month i /quarterl with calculations. Ann Hudson Washington County Accounting and Finance Subscribed and sworn to before me this , , 2 day of July, 2010. Tr- VICKY J. KRAWCZESKI Notary Public `• �_ Notary Public-Minnesota f �� �.�/ My Commission Expires Jan 31, 2015 • Q1 Of ON z. 0 7 •T �. c+. 00 00 00 R M ttW MON MQ yy gyp Ap. o pp p 9 y W �D M c�5 tl Jf M W M N 2 3 6.M a' N3 fA ato a O m N N N N N N N N N N N O O O O O g. p y o � n7 ( m � 1 N . 9 N t� OO O p p p CO GOOOO p p Q c+f m Q O i 4'f p e p q ? � P. y . y M O M H N d! (# N J► N 0 b dtlMMf H � v p N4 f9 oia.ri y 9 4% try Q N 8 s � r N N 0 0 0 0 0 0 O �m Q> a4c4iagE05 uyS S� "Si�Si� 0 I a ,St dNUsaxx a 2 3 - iii Malin W :j + � c � 1 !!! ! !!Ii1I HM 0 N 3 21 _11_1 _ - -_ - -11 x..�� o• _NN N NN o LL 8 88 O _ n _ _ _ _ _ _ _ _ 88 _ w O O s - " - - - - O M V! W U n 11111t .. • rY 6/ MEM L,,,,,,:. 1 iiI i ii F i F N N . : na O Q Q 23 44 L3 N wo _, . , _, , , . i m, 8 o _1 0 000000 ] i - �s ogboo7.a o 0 0. oo b L nr, - W - C' a0 t+1 N O D u N O aO (( p� 1. r- N N Q OM ] Z Q/ N O N N t` n M O so n • N N N N N N N N N N N N N N N STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: OTI-I FR CIVIL Cot if o Wasl ngtoti, Court File Plaintiff, vs. DEFENDANT CITY OF OAK PARK HEIGHTS' ANSWERS AND OBJECTIONS TO PLAINTIFF'S INTERROGATORIES — SET #1 City of Oak Park Heights, Defendant. TO: PLAINTIFF COUNTY OF WASHINGTON AND ITS ATTORNEYS: DOUG JOHNSON, COUNTY ATTORNEY WASHINGTON COUNTY, MN WASHINGTON COUNTY GOVERNMENT CENTER 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 Pursuant to the Rules of Civil Procedure for the above -named Court, Defendant City of Oak Park Heights submits the following Objections and Answers to Plaintiff's Interrogatories, Set #1. All Answers are made without waiving or intending to waive, but to the contrary, intending to preserve and preserving: 1. All questions as to competency, relevancy, materiality, privileged and of evidence for any purpose in any subsequent proceeding or the trial of any action; EXHIBIT 2. The right to object to the use of any of these Answers, or the subject matter thereof, in any subsequent proceeding or the trial of any action on any grounds. 3. The right to object on any ground at any time to a demand for further response to these or any other interrogatories or discovery proceedings involving or relating to the subject matter of the Interrogatories herein. 4. The right to supplement and /or amend these Answers based upon the recollection of persons presently unavailable or the discovery of additional information. GENERAL OBJECTIONS Defendant objects to each Interrogatory to the extent that it: 1. Is overly broad and any attempt to respond would be unduly burdensome, expensive, harassing, and oppressive; 2. Plaintiff already possesses, or has equal access to, the information sought by the Interrogatories; 3. Seeks information protected by the attorney - client privilege or the work product doctrine, or which is otherwise protected against or privileged from disclosure by law or rule of Court; 4. Seeks information protected against disclosure as the mental impressions, conclusions, opinions, or legal theories of any attorney or other representative of Defendant City of Oak Park Heights. 5. Seeks confidential commercial information without offering adequate protection and /or against improper disclosure; and 6. Seeks information which is not relevant and is not likely to lead to the production of relevant evidence. 2 ANSWERS TO INTERROGATORIES INTERROGATORY NO. 1: Provide a 1)111 and detailed description in narrative l'orrn of the calculation The City used in prociu r bill for water and sewer services for the - Waslrint ton County Law l nforcer_nent Center during the relevant time period. ANSWER: The County submits reads for the 7 meters at the LEC on a form provided by the City. The City subtracts the previous read from the current read to get the amount used. The use from the west meter, compound meter low flow and the compound meter high flow are added together to get the total usage for the building. The cooling blow down use is subtracted from the cooling tower in use. The net amount used from the cooling tower meters is deducted from the total building use. The use from the sprinkler is also deducted from the total building use. Water and sewer for the total building is calculated on the net total building use. The sprinkler and net use for the tower meters is billed for water only. The fire meter is a separate meter and is billed for water only. The total usage was for a 2 month period. The City was billing monthly at that time. The use is split and billed %2 in the current month and ' /2 in the following month, i.e. read was June 30, 1/4 is billed as of June 30 and %s is billed as of July 31. The rates for calculating water for 2005 was a monthly minimum charge of $7.50 for the first 5,000 gallons of water used, then $1.34 per 1,000 gallons of water used above 5,000 up to 16,000 gallons, then $1.76 per 1,000 gallons of water used above 16,000 gallons up to 33,000 gallons, then $2.11 per 1,000 gallons of water used above 33,000 gallons. The rates for calculating sewer for 2005 was a monthly minimum of $16.65 for up to 5,000 gallons of water used, then $3.40 per 1,000 gallons of water used above 5,000 gallons. INTERROGATORY NO. 2: With respect to the low flow meter: i. During the period March 1, 2005 to June 30, 2006, what was the total amount of water measured by the low flow meter? ii. What percentage of the total water used by the LEC during the period July 1, 2005 to June 30, 2006 was attributable to the amount of water that was measured by the low flow meter? iii. How many dollars of the total water and sewer bill charged to the County during the period July 1, 2005 to June 30, 2006 was attributable to the amount of water that was measured by the low flow meter? 3 ANSWER: i. The City did not read the meters. Based on reads submitted by Washington County, there was 24,346,000 gallons of water used. ii. Based on reads submitted by Washington County, 79% of the water used by during th . m I 2t)16 in hint! 71)0() c . . . �fJr .. . . to the. t low flow meter. iii. 79% of the charges would be attributable to low flow meter. INTERROGATORY NO. 3: How many of the digits in the low flow meter are to be read and recorded on the worksheet and used in calculating total water usage at the LEC? ANSWER: Reads are submitted to the City by Washington County. The City then uses the reads as submitted. INTERROGATORY NO. 4: The Water Meter Readings worksheet provided by the City to the County state "read meters to the nearest 1000 gallons." Does this mean that the low flow meter use component is multiplied by 1,000 to obtain the actual amount of water measured by the low flow meter? ANSWER: "Read meters to the nearest 1000 gallons" means just that —read meters excluding hundredths and tenths. i. If 5 -digit low flow meter readings are used to calculate the low flow meter use what is this low flow meter use multiplied by to obtain the actual amount of water measured by the low flow meter? ANSWER: Objection as to overly broad and vague. All reads were submitted by Washington County. The City then utilizes the reads as submitted for billing purposes. 4 INTERROGATORY NO. 4a: As reflected in Exhibits B, C, D, F, G, H, and 1, attached hereto, the County reported 4 -digit current low flow meter reads. The City subsequently changed the 4 -digit readings on the worksheets to 5- digits both in transcribed GI u rent read column anal ;ubsequcot previous read columns. Provide in detail the :factual basis in each instance Lor the t:il_y to change the County's 4 - digit reports to 5 digits, including what allowance was mule for the fact that UL I,,.I.(I.iU Ltll - W■1 IJ lVi 1.■ic1[1■[1 ;] 4li ti to r[. [rr - a;:ry i.AO F .[ :�� „� :, .. c . . v .r flow meter use calculation must be multiplied by 1000 to determine actual use measured by the low flow meter. ANSWER: The meter rolled over from 9,866 to 10,300 on reads, submitted to the City, by the County dated February 28, 2005. INTERROGATORY NO. 4b: With respect to Exhibit J, K and L, provide in detail the factual basis for the City to change the County's April 30, 2006 current read entry of 34170 on the March - April, 2006 • worksheet to a 4 -digit entry of 3417 in the previous read column of the May - June, 2006 worksheet. ANSWER: Unknown at this time. Discovery is continuing. INTERROGATORY NO. 5: Are all "previous read” worksheet entries and all "current read" worksheet entries for the low flow meter to be 4 digits and 4 digits only? If not, when would it be more or less than 4 digits? ANSWER: No. When the meter rolls over is would be 5 digits. 5 INTERROGATORY NO. 6: Using the attached Exhibits F and G, describe in full detail in narrative form the step by step calculation the City used in producing the water and sewer bill charged to the County for the month of SepteniUer, 2005. Sec answer to Interrogatory No. 1 above. INTERROGATORY NO. 6a: Using the attached Exhibits H and I, describe in full detail in narrative form the step by step calculation the City used in producing the water and sewer bill charged to the County for the month of February, 2006. ANSWER: See answer to Interrogatory No. 1 above. INTERROGATORY NO. 6b: Using the attached Exhibits J, K and L, describe in full detail in narrative form the step by step calculation the City used for production of the water and sewer bill charged to the County for the month of June, 2006. ANSWER: See answer to Interrogatory No. 1 above. INTERROGATORY NO. 7: During the period March 1, 2005 to June 30, 2006, how many times and on what dates did the City receive indication that the low flow meter had rolled over? ANSWER: The City does not know the actual date of the roll over, the City does not read or maintain the meters which are read and maintained by Washington County. The first indication the low flow meter rolled over was the March 1, 2005 timeframe. 6 INTERROGATORY NO. 8: For January - February 2005, as reflected on the attached Exhibit A, the County submitted a low flow meter current read of 0300. The City changed that reading to 10300 as reflected in the January - February 2005 worksheet attached hereto as Exhibit 13. i. Why was a "1" placed in front OF the reported reading or 03007 ii. Was the "1" an actual reading on the low flow meter, or was it placed before the 0300 to account for the roll -over of the meter? ANSWER: i. The "1" was placed in front of the reported reading as the meter had rolled over from a previous read of 9866. ii. Unknown. The City does not read or maintain the meters Discovery is continuing. INTERROGATORY NO. 9: For March - April, 2005, as reflected on the worksheet attached as Exhibit C, the County submitted a low flow current meter reading of 0650. As reflected on the worksheet attached as Exhibit D, the City changed that reading to 10650. Why was a "1" placed in front of the reported reading of 0650, and what was the actual current low flow meter reading for the period March - April, 2005. ANSWER: Washington County is responsible for reading and maintaining the meters and, therefore, the City cannot attest to the actual low flow meter reading for the period March — April 2005. The "1" was placed in front of 0650 to reflect the roll over of the meter. INTERROGATORY NO. 10: Using Exhibits C and D, describe in full detail in narrative form the step by step calculation the City used in producing the water and sewer bill charged to the County for the month of April 2005. 7 ANSWER See answer to Interrogatory No. 1 above. iNTP,P.ROCATORY NO. 1 ! FF .. r, t_. :� ., .1_ ' )W � t -1,,: 1 - I ,,, th 1.��- LEI,/. t �it a "hi bit I� the l ` .ruir�l - y or .f l.I I, J Y C� \U� I.IJ t, ,�V \/.l, L1.3 iii i. ll. �i 1. ��i on the �.r. .. � � •- - " - - ' ) "' J submitted a low now current ureter reading of 16102. This was a 5 -digit number and resulted in a nearly 10 fold increase in usage fora the prior two month period. Did the City investigate this jump in water usage? If so, detail all efforts the City made to investigate this anomaly. ANSWER: The City has discovered no records of an investigation of water usage as concerns Washington County's LEC. The City does not read the meters and does not maintain the meters which are read and maintained by Washington County. Discovery is continuing. INTERROGATORY NO. 12: For September - October, 2005, as reflected on the worksheet attached as Exhibit F, the County submitted a low flow current meter reading of 2198. As reflected on the worksheet attached as Exhibit G, the City changed that reading to 21980. Provide the full detailed factual basis for the City changing the low flow meter reading from 2198 to the 5 -digit 21980. ANSWER: Discovery is continuing. INTERROGATORY NO. 13: For January - February, 2006, as reflected on the worksheet attached as Exhibit H, the County submitted a low flow current meter reading of 3057. As reflected on the worksheet attached as Exhibit I, the City changed the reading to 30570. Provide the full detailed factual basis for the City changing the low flow meter reading from 3057 to the 5 -digit 30570. ANSWER: Discovery is continuing. 8 City records indicate that the Utility Billing Clerk contacted Dave Beaver at Washington County LEC regarding the meter read. Based on the information supplied by the County, the Utility Billing Clerk then used the 30570 read for the February 28, 2005 read. I IF',RROt A'l'ORY iN(_). 14: Oin cite March - April, 2006 worksheet, attached hereto as Exhibit J, the County submitted a current read for the low flow meter of 34170. On the May - June, 2006 worksheet, attached hereto as Exhibit K, the County submitted a low flow meter reading of 3893. Initially, the City placed a 34170 entry in the low flow meter previous read column of the May to June, 2006 worksheet. However, the City subsequently changed the entry in this previous low flow meter read column to the 4 digit 3417. i. State in full and complete detail why the City changed the entry in the May - June, 2006 previous low flow meter read column from the 5 -digit 34170 to the 4 -digit 3417. ii. Who made the change? ANSWER: Discovery is continuing. INTERROGATORY NO. 15: In the City's Resolution No. 09- 10 -39, attached to Defendant's Answer, the City concluded on page 7, Exhibit 31, which is the March - April 2006 worksheet attached hereto as Exhibit J, the City found that the low flow meter current reading entry of 34170 sent in by the Plaintiff was correct. However, on the May to June, 2006 worksheet, attached hereto as Exhibit L, the City changed the previous read entry of 34170 to 3417. Since the current read entry for the March - April, 2006 worksheet should be identical to the previous read entry for the May - June, 2006 entry, please state in full and complete detail, the factual basis for the apparent incongruity of the City's determination in the resolution that the low flow meter current read entry of 34170 for March - April, 2006 was correct and that the low flow meter previous read entry for May - June, 2006 of 3417 was also correct, and was the actual low flow meter previous read for May - June, 2006 3417? ANSWER: Discovery is continuing. Reads of water usage were submitted by Washington County. 9 INTERROGATORY NO. 16: In the City's 1?esolutionNo. 09- 10 -39, on page 7, Exhibit 31, the City Co11nci1 concluded that the May - 51. 2006 billing was COrreCt, 1. his two.- IllOnth period ShowCd a use of 476 gallons of water attributed to the low flew which using the 1,000 multiplier translated to Ll / il,000 gallon 1JL VY tL'.A. l.lt(. L. Council also slated on. agc- 1, Exhibit J of the re--solution that the March - April, 2006 usage of 3,600 gallons of water attributed to the low flow meter, which using the 1,000 multiplier translated to 3,600,000 gallons, was correct. Did the City investigate the drop in water usage from 3,600,000 gallons for the period March - April, 2006 to 476,000 for the period May - June, 2006? If so, state in full and complete detail, the factual basis for this drop in usage and if the City did not investigate, state the factual basis for not investigating such a large drop in water usage. ANSWER: The City did not install, read or maintain the meters at the LEC. Discovery is continuing. There are no records of any investigation of any alleged drop in water usage. INTERROGATORY NO. 17: As reflected in Exhibits B, C, D, E, F, G, H, I, and J, if the City knew the low flow meter read to only 4 digits, why did the City, during the period of January 1, 2005 to June 30, 2006, change on the worksheets the County's recorded 4 -digit current low flow meter readings to 5 digits and provide the County with worksheets that had 5 -digit low flow meter previous read entries? ANSWER: Washington County is responsible to read and maintain the meters at the LEC. The City has no knowledge of how the meters were read or the make -up of those meters during that timeframe. Any changes reflected on the worksheets would be to reflect roll -over condition. INTERROGATORY NO. 18: Did the City ever discuss with County employees why it changed a 4 -digit low flow meter current read to 5 digits and then provided the next billing period's worksheet with a 5 -digit low flow meter previous read entry, and, if so, provide in full and complete detail what was discussed? 10 ANSWER: None. Discovery is continuing INTERROGATORY NO. 19: Paragraph XIII of the Answer sets forth a defense of lack of subject matter jurisdiction claiming that a writ of certiorari is the proper vehicle for bringing this action. Please state in full and complete detail the factual basis for your contention that this matter is only reviewable by a writ of certiorari, including but not limited to any statute or ordinance that required the County to first bring its claim of unjust enrichment to the City. ANSWER: Objection. This Interrogatory is calling for a legal conclusion and /or attorney work product and/or mental impressions of counsel. Jurisdiction is a legal issue, not a factual one and, as such, this question is not calculated to lead to admissible evidence. INTERROGATORY NO. 20: Please state in full and complete detail the factual basis for your claim in paragraph XVII of the Answer that plaintiffs claims are barred by the doctrine of accord and satisfaction and /or payment. ANSWER: Objection. This Interrogatory is calling for a legal conclusion and /or attorney work product and /or mental impressions of counsel. Notwithstanding said objection, Washington County did pay in full all charges without reservation. INTERROGATORY NO. 21: Paragraph .X.IV of the .Answer sets forth a defense of laches and /or estoppel. Please state in full and complete detail the factual basis for Defendant's contention that Plaintiffs claims are barred by the doctrine of laches and/or estoppel. 11 ANSWER: Objection. This Interrogatory is calling for a legal conclusion and /or attorney work product and /or mental impressions of counsel. Notwithstanding said objection, it is anticipated that the I actual basis for Defendant's contention that Plainti_ claims are barred by the doctrine of ladies and /or estoppel the lac 1 .t 11. c:.. /i._.. 1. .. , - )L 1.1 . l.) L1ll� 1c Ll�l L11Lll. YY tPJIILIt�'lllil ITV LII IL YY iI) 1 .V -.> . i�. 11 LJ 1 1J l�� L�l 1 t, I.1I t11L 1111 l ll ' CURL L'v[Lll meters and did provide all the information utilized in calculating the charges. It is an axiom of equity that one must have clean hands. INTERROGATORY NO. 22: Please state in full and complete detail the factual basis for the contention in paragraph XVI of your Answer that Plaintiffs claims are barred since Plaintiff has a legal remedy at law, namely writ of certiorari, given that Plaintiffs suit is at law and a writ of certiorari sounds in equity. ANSWER: Objection. This Interrogatory is calling for a legal conclusion and/or attorney work product and /or mental impressions of counsel. INTERROGATORY NO. 23: Please state in full and complete detail the factual basis for the defense in paragraph XV of the Answer that Plaintiff's claims are barred by the doctrine of unclean hands. ANSWER: Objection. This Interrogatory is calling for a legal conclusion and /or attorney work product and /or mental impressions of counsel. Notwithstanding said objection, it is anticipated that the factual basis for Defendant's contention that Plaintiff's claims are barred by the doctrine of laches and /or estoppel is the fact that Washington County was responsible to install, maintain and read meters and did provide all the information utilized in calculating the charges. It is an axiom of equity that one must have clean hands. INTERROGATORY NO. 24: Please state in full and complete detail the factual basis for the contention in paragraph XX of the Answer that Plaintiffs Complaint must be dismissed for insufficiency of process. 12 ANSWER: Objection. This Interrogatory is calling for a legal conclusion and /or attorney work product and /or mental impressions of cou nsel, Notwithstanding said objeetiolt, service or the Suu1imu0ns and Complaint was I_.. it ,.1-. ,I., / 6 1 and, Ir El I `�,1 1iri: id not w 'i 4iV 1. llll ill \ill l /,' LL YI llJ. ..�I. \ %ll L� \,f 1111E �' \. I.i I�J.. .I J Y �� -' t.11 t \1� 11J V.il � ,l lll.l l.. •. Y l .. ,J� \.t non -party to serve the Complaint, which is a violation of Minnesota Rules of Civil Procedure and Minnesota law. INTERROGATORY NO. 25: Please state in full and complete detail the contention in paragraph XIX of the Answer that all damages must be denied because of Plaintiffs own action or contributory fault. ANSWER: Objection. This Interrogatory is calling for a legal conclusion and /or attorney work product and/or mental impressions of counsel.. Notwithstanding said objection, Washington County was responsible to install, maintain and read all water flow meters. Plaintiff's own action or contributory fault can be found in Washington County's actions in maintaining and reading the flow meters in question. INTERROGATORY NO. 26: Please state in full and complete detail the contention in paragraph XVIII of the Answer that Plaintiffs complaint fails to state a claim upon which relief may be granted. ANSWER: Objection. This Interrogatory is calling for a legal conclusion and/or attorney work product and /or mental impressions of counsel. See, Responses to Interrogatories 19 through 25. INTERROGATORY NO. 2'7: List the names, addresses, and job descriptions of employees who worked for the City during the period January 1, 2005 to the present on water billing. 13 ANSWER: Lisa Taube, Utility Billing Clerk (7 -99 to 11 -06) Responsible for utility billing and cash receipts Judy 1- 1olst, Deputy Clerk/Finance Director (4=1 -79 to Current) 14168 Oak Park 13lvdNorth Oak Park Heights, MN 55082 - 6476 Responsible for financial accounting of all City funds including enterprise funds. Supervises finance department which includes utility billing. Roxanne Mendoza, Accountant (12 -06 to 3 -07) Responsible for financial accounting and utility billing Judy Tetzlaff, Accountant (5 -07 to Current) City of Oak Park Heights 14168 Oak Park Blvd North Oak Park Heights, MN 55082 -6476 Responsible for financial accounting and utility billing Tom Ozzello, Public Works Director (8 -04 to 7 -09) Andrew Kegley, Public Works Director (PW Dir. 7 -09 to Current - Employment date 6 -7 -04) City of Oak Park Heights 14168 Oak Park Blvd North Oak Park Heights, MN 55082 -6476 • Judy Hoist Finance Director 14 STATE OF MINNESOTA ) ) SS COUNTY OF WASHINGTON ) Judy Hoist, being duly swore deposes and says that she is the Finance Director of the � <� Y _ [ Y City of Oak Park Heights, one of the Delclidant(s) in the above - entitled cause, and that she verifies the foregoing Defendant City Of Oak Park Heights' Answers To Plaintiff's Interrogatories - Set #1 for and on behalf of said Defendant(s) and is duly authorized to do so; that certain of the matters stated in the foregoing Defendant City Of Oak Park Heights' Answers To Plaintiffs Interrogatories - Set #1 are not within the personal knowledge of deponent and that deponent is informed that there is no officer of Defendant, City of P P Y Oak Park Heights, who has personal knowledge of such matters; that the facts stated in said Defendant City Of Oak Park Heights' Answers To Plaintiff's Interrogatories - Set #1 have been assembled by authorized employees and counsel of Defendant, City of Oak Park Heights, and deponent is informed by said employees and counsel that the facts stated in said Defendant City Of Oak Park Heights' Answers To Plaintiff's Interrogatories - Set #1 are true and correct to the best of her knowledge. ///z-e.-71' Jud ; H ols t / Finance Director Subscribed and sworn to before me on 4 - Z0 1 0 a • Not. ry PubI -.rte Li :41 JE , N NNlFER M PINSKI M C o P - �. ��NNESOTA Y m miss i on Expires Jan. 31. ISF.J...^ . c..'.:'.!:< :.. rrlar 20_2 i As to the form of these answers and any objections. Dated: ("if JARDINB, I,0(_;/\N &. O'BRIE,N, P.C,,I.,.P. By: , . / — - - -- - Y IER1 E N. RLGNIER (A.R. #90232) �S G. GOLEMBECK (A.R.# 179620) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8624 (651) 290-6500 ATTORNEYS FOR DEFENDANT — CITY OF OAK PARK HEIGHTS 16 STATE OF MINNESOTA ) ) ss. Our File No. 37024 (872) COUNTY OF WASHINGTON ) LORI L. STORK ot'the City of Lakc Elmo, County of Washine,ton, In the State of Minnesota, being duly sworn, says that on May 17, 2010, she served the annexed: Defendant City of Oak Park Heights' Answers And Objections To Plaintiff s Interrogatories — Set I on: MAURA J SHUTTLEWORTH ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH POBOX6 STILLWATER MN 55082 by mailing to them a copy thereof, enclosed in an envelope, postage prepaid, and by depositing same in the mail, directed to said attorneys at their addresses above noted, the last known addresses of said attorneys. Lori L. Stork Subscribed and sworn to before me this May 17, 2010. Notary Public MICHELLE L POSEL Notary Public Minn Jon 31 2015 STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: OTHER CIVIL County of Washington. Court Filo No, Plaintiff, vs. DEFENDANT CITY OF OAK PARK HEIGHTS' RESPONSES TO PLAINTIFF'S REQUESTS FOR ADMISSIONS City of Oak Park Heights, Defendant. TO: PLAINTIFF COUNTY OF WASHINGTON AND ITS ATTORNEYS: DOUG JOHNSON, COUNTY ATTORNEY WASHINGTON COUNTY, MN WASHINGTON COUNTY GOVERNMENT CENTER 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 COMES NOW, Defendant City of Oak Park Heights, for its Responses to Plaintiff's Requests For Admissions, states as follows: RESPONSE TO REQUESTED ADMISSIONS 1. Admit that during the relevant time period the water use readings obtained from the meters monitoring water flow at the LEC and recorded on the worksheets are read to the nearest 1,000 gallons; and, therefore, the water use calculated from the readings - on the worksheet must be multiplied by 1000 to obtain the actual total amount of water used at the LEC for any two month billing period. EXHIBIT RESPONSE: Deny. For the relevant time period, Washington County maintained and read the wafer meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 2. Admit that the use measured by the low flow meter is a component of the total use formula and, therefore, subject to the 1,000 multiplier in determining total water use at the LEC. RESPONSE: • Deny. It is not understood as to what is meant by the total use formula. Additionally, use measured by the low flow meter is read by Washington County during the relevant time period. 3. Admit that the low flow meter at the County's LEC contains 7 digits but only the first 4 digits which are delineated by being white are to be read and used in the total water use calculation. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and/or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 4. Admit that because the low flow meter is to be read to only four digits, the use of a 5- digit number for the low flow meter reading means the low flow meter was read to the nearest 100 gallons would provide a low flow meter use component to the total use calculation that is 10 times greater than the actual amount of water that flowed through the low flow meter unless the calculation to determine total water use is modified in a way that the low flow meter use component is multiplied by 100 rather than 1 ,000. RESPONSE: Deny. For the relevant time period, Washington Count maintained and read the Y g Y water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington Count . The City of Y p Y Y Y Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 5, Admit that City records show the low flow meter reading for the County LEC on January 12, 2005 was 9866. RESPONSE: Admit that the City records show that the low flow meter reading submitted by the County on January 12, 2005 was 9866. 6. Admit that the low flow meter is an odometer -type meter that provides a totalization measurement of water that has flowed through the low flow meter. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 7. Admit that the low flow meter rolls over to a reading of 0001 when the reading of the 4 white digits on the low flow meter that are to be read passes 9999. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, g g must deny this request. 8. Admit that City records indicate that the worksheet for the January - February, 2005 time period shows the County reported a current low flow meter reading of 0300. RESPONSE: Admit that the City records indicate that the County reported a sow flow meter reading of 0300 for the January — February 2005 time period. 9. Admit that the City Utility Clerk or other employee of the City placed a "1 (one) in front of the County's 0300 reported January - February, 2005 current low flow meter reading resulting in the City using a current tow flow meter reading of 10300 for the January - February, 2005 worksheet and a previous low flow meter reading of 10300 for. the March - April, 2005 worksheet in calculating the March to April, 2005 water use at the LEC. 3 RESPONSE: Admit that the worksheets for reported flows for January — Febnlary 2005 and March — April 2005 speak for themselves. 10. Admit that the actual LEC current low flow meter reading for the time period January - February 2005, was 0300. RESPONSE: • Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 11. Admit that City records show that on April 30, 2005, the County entered on the March - April, 2005 worksheet a low flow meter current reading of 0650. RESPONSE: Admit that the City records for the March — April 2005 worksheets speak for themselves. This answering Defendant objects to the term "current" as referring to 2005 records. 12. Admit that the City Utility Clerk or other employee of the City placed a "1" (one) in front of the County's 0650 reported March - April, 2005 low flow meter reading, resulting in the City using a current reported low flow meter reading of 10650 for the March - April, 2005 worksheet and a previous low flow meter reading of 10650 for the May - June, 2005 worksheet in calculating the May to June, 2005 water use for the LEC. RESPONSE: < The of Oak Park Heights not responsible for a the meters for the ding Deny. 1 rle City of Valk Park 11.GJ is nV1. responsible ivi reading period in question and is not aware of the actual low flow meter reading, but received the information from Washington County who read the meters. 13. Admit that the actual LEC current low flow meter reading on April 30, 2005 was actually 0650. 4 RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and/or inaccuracy of the meter reads and functionality of the meters is the responsibility of 'Washington County. The City of Oak Park Weights has no knowledge as to how the meters were read and, therefore, must deny this request. 14. Admit that City record's show that the County reported a current low flow meter reading of 2198 on the September to October, 2005 worksheet. RESPONSE: Admit that the City records for September to October 2005 worksheets speak for themselves. Objection as to what is meant by the word "current" referring to 2005 records. 15. Admit that instead of accepting the County's low flow meter reading of 2198 for the September - October, 2005 period, the City Utility Clerk or other employee of the City requested that the County re -read the low flow meter. RESPONSE: This answering Defendant admits that the City Utility Clerk requested the County to re -read its meter reading for the September — October 2005 period. • This answering Defendant specifically objects to any characterization obtained in Admissions Request No. 15. 16. Admit that in re- reading the low flow meter for October 31, 2005, the County reported to the City the low flow meter's entire seven -digit number of 2,197,790. RESPONSE: Admit. 17. Admit that the City Utility Clerk or other employee of the City made the decision to use the five -digit number of 21,980 for the current low flow meter reading for the September - October 2005 water usage calculation. RESPONSE: Admit that a five -digit number 21980 was used for the September — October 2005 water usage calculation. 5 Objection as to what is meant by the word "current" referring to 2005 records. 18. Admit that the City in calculating the LEC's total water use for the September - October, 2005 period used 1,000 as the multiplier for the total water use calculation thereby not making allowance for using the 5 -digit low flow meter number of 21980 to determine the low flow meter use component in the total use calculation. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County, The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 19. Admit that the City records show the County reported the current low flow meter reading on January - February, 2006 worksheet to be 3057. RESPONSE: Admit that Washington County reported the low flow meter reading on January — February, 2006 to be 3057. Objection as to what is meant by the word "current" referring to 2006 records. 20. Admit that the City Utility Clerk or other employee of the City changed the County's reported current low flow meter reading on the January - February, 2006 worksheet from the 4 -digit 3057 to the 5 -digit 30570. RESPONSE: Deny. 21. Admit that the City in calculating the LEC's total water use for the January to February, 2006 period used 1,000 as the multiplier in the calculation for total water use for that billing cycle thereby not making allowance for using the 5 -digit low flow meter number of 30570 to determine the low flow meter use component in the total use calculation. RESPONSE: Deny. Objection to as what is referred to as making allowance, The Request appears to be incomprehensible and, therefore, is denied. 6 22. Admit that for each billing cycle, during the time frame January 1, 2005 to June 30, 2006, the City when calculating the LEC's total water use used 1,000 as the multiplier in the total use calculation even though it may have used 5 -digit low flow meter readings to determine the low flow meter use component of the total use calculation. RESPONSE: Deny. 23. Admit that City records show the County reported a current low flow meter read on the March - April, 2006 worksheet of 34170. RESPONSE: Admit that City records show the County reported a low flow meter read for March - April, 2006 of 34170. Objection as to what is meant by the word "current" referring to 2006 records. 24. Admit that City records show that the County reported a current low flow meter reading of 3893 on the May - June, 2006 worksheet. RESPONSE: Admit that the County reported a low flow meter reading of 3893 for the May — June 2006 time period. Objection as to what is meant by the word "current" referring to 2006 records. 25. Admit that the LEC current low flow meter reading for June 30, 2006 was 3893. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak O _ Park Heights i h , iiv o k as to how the meters were read and, therefore, ,C d1 t� 1161 ��u has knowledge must deny this request. 26. Admit that the City used the 4 -digit 3417 on the May - June, 2006 worksheet as the previous low flow meter reading instead of the 34170 the County reported as the current flow meter read on the March - April, 2006 worksheet because the low flow meter is intended to be read to four digits. • 7 RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 27. Admit that during the entire period July 1, 2005 through April, 2006 the City used 5- digit low flow meter readings to calculate the low flow meter water use component of the total water use calculation for the LEC for each two month billing period. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 28. Admit that even though 5 -digit low flow meter readings were used by the City to calculate low flow meter use component of the total water use calculation during the time period July 1, 2005 through April, 2006 the City did not multiply the low flow meter use component of the total water use calculation by 100 for the LEC for each two month billing period but instead continued to treat the low flow meter use component as if it were calculated from 4 digit readings in the 1000 gallons. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 29. Admit that during the period July 1, 2005 to June 30, 2006 City records show that t _ at the LEC: i -1 10 times m es f om the u se prior to Ltotal wwater Ule Cll the l�LL. increased nearly 1 V u l llliJ il t vu� i�� use prior to July 1, 2005. RESPONSE: Deny. The total water use at the LEC is set forth in the information provided by Washington County to the City as set forth in the water use worksheets. 8 30. Admit that after the April 20, 2006 low flow meter reading, the City began to use 4- digit low flow meter readings to calculate the low flow meter use component of the total water use calculation for the LEC. RESPONSE: Deny all calculations of usage were based upon information received from Washington County. Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 31. Admit that after the City began to use 4 digit low flow meter readings to calculate the low flow meter use component of the total water use calculation at the LEC, the total water use at the LEC showed a nearly 10 fold decrease in total water use at the LEC after April 30, 2006. RESPONSE: Deny all calculations of usage were based upon information received from Washington County. Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 32. Admit that if the low flow meter use component of the total water use calculation for the LEC is calculated from low flow meter readings of 5 digits instead of 4, the total use calculation employed by the City for the LEC must be modified in such a way that the low flow meter use component must be multiplied 100 instead of 1,000 to obtain a correct total water use at the LEC. RESPONSE: Deny all calculations of usage were based upon information received from Washington County. Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of 9 Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 33, Admit that the City had no indication that low flow meter rolled over during the period March 1, 2005 to June 30, 2006. RESPONSE: Deny. 34. Admit that the City required County re uired the Count to install new water meters at the LEC in June and July of 2009. RESPONSE: Admit. dm t . 35. Admit that one of the reasons for the installation of the new water meters in June and July of 2009 was to decrease the possibility of human error in the reporting and calculation of water meter readings. RESPONSE: Deny. The primary reason for the installation of new water meters in June and July 2009 was so that the City of Oak Park Heights would be able to read the meters and could obtain the information directly by way of telemetric reporting as is done in the rest of the City. 36. Admit that on June 5, 2009, the Compound Meter in the County LEC was replaced with a water meter selected by the City. RESPONSE: Admit. 37. Admit that during the period January 1, 2005 to June 30, 2006 there were no repairs or modifications �.r • odimarl 10 th - t• low fl ni F t t(. nor (lid the City request any repairs of or ,u�, ..,ucations v ma - City any repairS be made to the low flow meter. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of 10 Oak Park Heights has no knowledge as to how the meters were maintained, repaired or modified and, therefore, must deny this request. The City of Oak Park Heights has no information or facts regarding City requests to repair or modify Washington County meters during the relevant time period 38. Admit that the City selected the Compound Meter which was installed as part of the initial LEC water metering system and was used until June, 2009. RESPONSE: Deny. The City of Oak Park Heights has no knowledge of who selected the Compound Meter which was installed as part of the initial LEC water metering system. DATED: 72.r - . JARDINE, LOGAN & O'BRIEN, P.L.L.P. By: �E��.!'�` F. .R • . N. REGNIER (A.R. #90232) . i S G. GOLEMBECK (A.R.# 179620) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8624 (651) 290 -6500 ATTORNEYS FOR DEFENDANT — CITY OF OAK PARK HEIGHTS 1 1 STATE OF MINNESOTA ) ss. Our File No. 37024 (872) COUNTY OF WASHINGTON ) LORI L. STORK of the City of Lake Elmo, County of Washington, in the State of Minnesota, being duly sworn, says that on March 29, 2.010, she served the annexed Defendant City of Oak Park Heights' Responses To Plaintiffs Requests For Admissions on: DOUG JOHNSON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 MAURA J SHUTTLEWORTH ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 by mailing to them a copy thereof, enclosed in an envelope, postage prepaid, and by depositing same in the mail, directed to said attorneys at their addresses above noted, the last known addresses of said attorneys. Lori L. Stork Subscribed and sworn to before me this March 29, 2010. l� C Niy Public , Michael Jean Rossing �!• Notary Public Ati NA ;; Minnesota • My Clatnratalon Who 1.31 -2012 STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: OTHER CIVIL County of Washington, Plaintiff, vs. DEFENDANT CITY OF OAK PARK HEIGHTS' ANSWER TO PLAINTIFF'S COMPLAINT City of Oak Park Heights, Defendant. COMES NOW, Defendant City of Oak Park Heights, for its Answer to Plaintiff's Complaint, states and alleges as follows: I. Defendant City of Oak Park Heights denies each and every allegation set forth in Plaintiff's Complaint unless admitted and /or qualified herein. II. Defendant City of Oak Park Heights states that all times it was acting in good faith. III. Defendant City of Oak Park Heights admits Paragraphs 1 and 3 of Plaintiffs Complaint. IV. Defendant City of Oak Park Heights states that as to Paragraph 2 of Plaintiff s Complaint, it hereby admits that Defendant City of Oak Park Heights is a political EXHIBIT Gr subdivision of the State of Minnesota and is located in Washington County. Defendant City of Oak Park Heights denies the remainder of Paragraph 2 of Plaintiff's Complaint and puts Plaintiff to its strictest proof therein. V. Defendant City of Oak Park Heights states that as to Paragraphs 4 and 5 of Plaintiff's Complaint, it hereby admits that Defendant City of Oak Park Heights had in place water rates for all users including the Plaintiff and that the rates indicated in Paragraphs 4 and 5 of Plaintiff's Complaint are correct. However, the rates are charged on a per month basis. VI. Defendant City of Oak Park Heights states it is without sufficient information to form a belief as to the truth or accuracy of allegations contained in Paragraphs 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 28, 32, 35 and 43 of Plaintiff's Complaint and, therefore, denies same and puts Plaintiff to its strictest proof therein. VII. Defendant City of Oak Park Heights denies Paragraphs 6, 26, 27, 31, 37, 38, 40 and 44 of Plaintiff's Complaint. VIII. Defendant City of Oak Park Heights states that as to Paragraphs 10, 19, 24, 25, 29, 30, 33, 34, 39 and 41 of Plaintiffs' Complaint, this answering Defendant denies same and puts Plaintiff to its strictest proof therein. Further, it states that any worksheets refereed to are not attached to Plaintiffs Complaint. However, any written documents /worksheets would speak for themselves and this answering Defendant objects to any characterization of said worksheets. 2 • IX. Defendant City of Oak Park Heights further states that as to Paragraph 10 of PI. ii tiff s Complaint, this answering Deferidant denies sanke and specifically states that Cily staff did not give direction to County staff on how to read the County's own meters. X. Defendant City of Oak Park Heights states that as to Paragraph 36 of Plaintiffs Complaint, this answering Defendant denies same and puts Plaintiff to its strictest proof therein. This answering Defendant does admit that the City Clerk questioned County staff on various readings and did request the County to re -read meters. XI. Defendant City of Oak Park Heights states that as to Paragraph 42 of Plaintiffs Complaint, this answering Defendant denies same and puts Plaintiff to its strictest proof therein. This answering Defendant further states that the Resolution of the City of Oak Park Heights dated October 13, 2009 speaks for itself. XII. Defendant City of Oak Park Heights states that as to Paragraph 45 of Plaintiff's Complaint, this answering Defendant admits that Plaintiff gave notice to the City of its alleged claim of overcharges. This answering Defendant further states that a true and correct copy of the certified Resolution of the City of Oak Park Heights dated October 13, 2009 is attached hereto. The Resolution speaks for itself and lists the documentation reviewed by the City Council, the arguments heard by the City Council, evidence submitted and contains the findings of the City of Oak Park Heights, which findings and resolution of denial are fully set forth in said Resolution dated October 13, 2009. 3 XIII. Defendant City of Oak Park Heights states that Plaintiff's claims are barred since this Court lacks jurisdiction. Speci flea] ly, PI a iJ iff's claims are reviewable, only by writ of certiorari. XI V. Defendant City of Oak Park Heights states that Plaintiff's claims are barred by the doctrines of 'aches and /or estoppel or waiver. XV. Defendant City of Oak Park Heights states that Plaintiffs claims are barred by the doctrine of unclean hands. XVI. Defendant City of Oak Park Heights states that Plaintiff's claims are barred since Plaintiff has a legal remedy at law, namely writ of certiorari. XVII. Defendant City of Oak Park Heights states that Plaintiff's claims are barred by the doctrine of accord and satisfaction and/or payment. XVIII. Defendant City of Oak Park Heights states that Plaintiff's claims fail to state a claim which can be provided relief under the laws of the State of Minnesota and, therefore, must be barred. 4 XIX. De fcndhit City of Oa!: Pay l: Heights states that Plaintiff's claims roust be denied since any damages, if any, were caused by Plaintiff's own action or contributory fault. XX. Defendant City Heights Oak Park Hei g hts states that Plaintiff's Complaint must be dismissed for insufficiency of service of process. XXI. Defendant City of Oak Park Heights denies that it is responsible for any and all damages alleged by Plaintiff. WHEREFORE, Defendant City of Oak Park Heights prays that Plaintiffs pretended cause of action and claims be dismissed with prejudice, and that this answering Defendant be awarded its costs, disbursements and attorneys fees in defending this action. DATED: January 28, 2010. JARDINE, LOGAN & O'BRIEN, P.L.L.P. By: f�/*r„ `+- PIE :1 N. REGNTFR (A.R. #90232) -� 1 S G. GOLEMBECK (A.R.# 179620) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8624 (65 1) 290 -6500 ATTORNEYS FOR DEFENDANT — CITY OF OAK PARK IIEIGHTS 5 ACKNOWLEDGMENT Defendant City of Oak Park Heights hereby acknowledges in accordance with Minn. Stat. 549.211 that costs, disbursements and reasonable attorney and witness fees may be )lhia t'!jf_'i 1 n rnnnsing n2rty nri art iris Y 2 of tp . f�ifinn, .`tt, �S4!).2 1, • 1 • 4i' N. REGNIER (A.R. #90232) -t 1 S G. GOLEMBECK (A.R. #179620) 6 1 ('E'_t T174 -l- This _Lai i an C 'CfrCC-i CW(+ ,A'g t or Ji; lai OCLt y1' rt f Crl le. Ct. f the oak f c:1 —k_ RESOLUTION NO. 09-10-39 -- (141 - 5 Ct fiJ 1(c.i_ (.( CITY OF OAK PARK HEIGHTS C, Gi ck__ lbw WASHINGTON COUNTY, MINNESOTA A RESOLUTION MAKING FINDINGS OF FACT AND DETERMINING THE APPEAL /CLAIM S IB YIIT'TED BY WASHINGTON COUNTY TO THE CITY OF OAK PARK HEIGHTS RELATIVE TO WATER BILLING FOR THE PERIOD OF TIME OF 2004 - 2003 WHEREAS, the City has received by letter dated August 26, 2009, an appeal filed to the City Council pursuant to City ordinance under the water billing rate policies of the City, appealing an initial determination by the City Finance and Utility Department that Washington County is not entitled to any refund for an alleged over- billing of water provided to the Government Center buildings (LEC) by the City of Oak Park Heights for calendar years 2004- 2008; and, WHEREAS, the Washington County Government Center, and in particular the County Law Enforcement Center is a building that is served by City of Oak Park Heights water and sewer. The details of the systems at the County Law Enforcement Center affecting the measurement and usage of Water and Sewer Services are as follows: The County Law Enforcement Center had seven meters that were read in order to determine the amount of water and sewer that was used at the County. Washington County for the periods of time in issue read the meters and sent the reads to the City via facsimile or phone. The City calculated the water usage based on the reads sent in from the County personnel. The meters were read every other month and billed monthly, i.e. meters read in February were billed '/2 of the usage for February and '/2 of the usage for March. Beginning January 1, 2007 the meters are read quarterly and the usage is billed quarterly The meters were changed by directive of the City to City issued meters in July 2009 and are now read electronically by the City. Washington County had the following meters for the period of time in issue: #1 West Meter #2 Compound Meter Low Flow #3 Compound Meter High Flow #4 Fire Meter #5 Sprinkler Meter #6 Cooling Tower In Meter #7 Cooling Tower Blow Down Meter The #1 West h'leter and the #2 and #3 Compound Meters are added together to get the total water use for the LEC. The #7 Cooling Tower Blow Down Meter usage is subtracted from the #6 Cooling Tower In Meter usage. The #5 Sprinkler Meter and the net usage from the Cooling Tower Meters are water only meters and the usage is deducted from the total usage of the compound meters. The #4 Fire Meter is separate and is billed for water only. Example: Previous Current Read Read 1 isF #1 West Meter 31,298 31,298 0 #2 Compound Meter Low Flow 10,300 10,650 350 #3 Compound Meter High Flow 16,373 16,817 444 Total usage Compound Meters 794 Less - Deduction Meters #5 Sprinkler Meter 1,633 1,633 0 water only #6 Cooling Tower In Meter 2,837 2,854 17 #7 Cooling Blow Down Meter 859 859 - 0 Total usage Cooling Tower Meters 17 water only Charge for water and sewer 777 Charge for water only 17 #4 Fire Meter 88 90 2 water only Washington County is questioning the reads for the Cooling Tower Meters for 2004, the Compound Meter Low Flow in 2005 and 2006, the Sprinkler and Cooling Tower Meters in 2006, the Compound Meter Low Flow in 2007, and the West Meter in 2008. Complicating matters further the County Meters for the period in time in issue were a mixed match of meters from differing manufacturers. The meters tend to read in whole numbers by the thousands of gallons used but some had numbers or columns assigned for reads in volumes of less than thousands. Some meters having as few as 4 digits some up to. 7. Meters were also during the period of time in issue rebuilt or replaced by the County without contact with the City Utility department and without confirming reads before and after. Reads reported by the County came in from a number of county staff as opposed to one person being assigned to the task. Reporting en could occur from human error depending on the meter read, the number of digits reported, the accuracy of the reading, the accuracy of the meter and any number of circumstances. 2 City staff would be entirely dependant upon the accuracy of the county reported reads of all meters in order to prepare the billings. All meters as installed within the Government Center (LEC) for the period of time in issue were installed by the County at their direction and under their supervision. WHEREAS, in order to make the computations from the readings that would be provided, all seven meters needed to be read in order to determine the total amount of water that was used at the Law Enforcement Center. The meter is read, but is a back up meter so may not have usage every quarter. The meters were read once every two months until December 31, 2006 and thereafter were read on a quarterly basis. The west meter and two compound meters were added together to get the total water usage for the LEC. The cooling tower blow down usage was subtracted from the cooling tower in usage. The sprinkler meter and the net usage from the cooling tower meters are water -only meters and are deducted from the total usage of the west meter and compound meters. The fire meter is separate and billed for water only. Compound meters are those capable of reading flows at both high and low pressure and delivery levels. WHEREAS, Washington County has submitted a claim to the City of Oak Park Heights projecting and hypothesizing that county staff misread the water meters from 2004 -2008. The County accounting department is making a projection anticipating that as many as 19,000,000 gallons were misread by the County staff relative to beginning and ending meter readings as provided to the City. They have submitted a claim to the City for $114,745 for water and sewer services allegedly not used. WHEREAS, the County submitted documentation to the City Council consisting of the following: 1. Letter August 26, 2009 from James Schug, County Administrator 2. Exhibit #1 - Summary of Issues with projections 3. Exhibit #2- Listing of City invoices for the LEC 4. Exhibit 3a - Water meter reading worksheet- Jan-Feb 2005 (county hand written note) 5. Exhibit 3b - County staff new reading for compound meters 3/16/05 6. Exhibit 3c - Water meter reading worksheet- Mar -Apr 2005 (county editorial attached) 7. Exhibit 3d - Water meter reading worksheet- May -June 2005 (county editorial attached) 8. Exhibit 3e - Water meter reading worksheet- Jul-•Aug 2005 (county hand written note & editorial attached) 9. Exhibit 3f - Water meter reading worksheet- Sep -Oct 2005 (county hand written note & editorial attached) 10. Exhibit 3g - Water meter leading ‘vorksheet- Nov -Dec 2005 ( county hand written note & editorial attached) 11. Exhibit 3h - Water meter reading worksheet- Jan -Feb 2006 (county hand written note & editorial attached) 3 12. Exhibit 3i - Water meter reading worksheet - Mar -Apr 2006 (county editorial attached) 13. Exhibit 3j - Water meter reading worksheet- May -Jun 2006 (county hand written note & editorial attached) 14. Exhibit 3k - Water meter reading worksheet- .Tul -Aug 2006 (county hand written note & editorial attached) 15. Exhibit 4 Calculated (Projected) total LEC Water usage 12/03 -12/08 16. July 24, 2009 letter to Harley Will from Jucly Hoist, City Finance Director 17. May 15, 2009 letter to Harley Will froin Judy Hoist, City Finance Director 18. October 8, 2009 letter from Harley Will to the City Council WHEREAS, the City Staff submitted documentation to the City Council consisting of the following: 1. Identification of Meters current and prior and locations at LEC County Building (3 pages) 2. City Finance and Utility Department - Washington County Utility billing Response to August 26, 2009 Letter. 3. Exhibit A- Summary of issues identified with invoice calculations and meter readings (Meter reading date 03/08/04 4. City Exhibit B - Response to Washington County Exhibit 3a and Exhibit 3b — Readings for Jan — Feb 2005 5. City Exhibit C - Response to Washington County Exhibit 3c — Readings for March — April 2005 6. City Exhibit D - Response to Washington County Exhibit 3d — Readings for May — June 2005 7. City Exhibit E - Response to Washington County Exhibit 3e — Readings for July — August 2005 8. City Exhibit F — Response to Wash;ng nn County EYhybit 3f — Readings for September — October 2005 9. City Exhibit G — Response to Washington County Exhibit 3g — Readings for November — December 10. City Exhibit H — Response to Washington County Exhibit 3h — Readings for January — February 2006 11. City Exhibit 1 — Response to Washington County Exhibit 3i — Readings for March — April 2006 12. City Exhibit J — Response to Washington County Exhibit 3j — Readings for May — June 2006 13. City Exhibit K - Response to Washington County's Exhibit 1 issue(s) Identified with Calculation and Meter Readings — Meter Reading Date 6/30/08 — 14. City Exhibit L - April 9, 2008 Letter to Washington County, 5 -13 -08 Facsimile Transmittal to Dottie, Financial Services, 2006 — 2007 LEC Adjustment Calculations 15. City Exhibit M — May 15, 2009 Letter to Marley L. Will, Accounting & Finance Director, Washington County 4 NOW THEREFORE BASED UPON THE RECORD BEFORE THE CITY AND ALL OF THE FILES RECORDS AND PROCEEDINGS HEREIN THE CITY COUNCIL MAKES THE FOLLOWING: FINDINGS OF FACT 1. The County claim relative to water and sewer usage fees is projected upon a number of fact premises which they assume to be correct in order to present their claim. Those fact premises hypothesized in their claim are as follows: 1.) that County staff for a period of 2004- 2008 consistently misread the meters, either sequentially or individually, in reporting volumes of water used verbally reporting errant readings to the City staff of the City of Oak Park Heights; 2.) the County claim is hypothesized on a principal or premise that the meters, as read by the County staff were consistently functioning, calibrated and accurate; 3.) the County claim relative to the overcharge does not come from the County department relative to the reading and supervision of the meters within the County building, but comes from the bookkeeping or accounting department, and then only as a result of filing for a refund of sales tax with the State of Minnesota. 2. The County accounting department submitting the claim has no new evidence relative to their claim. Their claim is based upon a hypothesis of projected, inaccurate readings by County staff. The projection is based upon the assumption that the County could not have used the volume of water that the County staff initially reported to the City of Oak Park Heights which precipitated the billings received. 3. The meters in issue all have a finite number of digits in their reading process, i.e. four through seven numbers in digit, and then the meter rolls over. Consequently, if a meter is based upon a 5 -digit recording, after the 5- digits in the meter are exhausted, the meter would roll over again and it would begin anew at 00001. The County staff never kept records with regard to how many times the meters would roll over in the process of making their reads. County staff could have made and reported reads from less than whole numbers in those meters that recorded usages at less than 1000 gallons. 4. That the City of Oak Park Heights has received other claims with the County Law Enforcement Center with regard to excessive volumes of usage when inmates would block sewer pipes or otherwise take vandalism type actions so as to create spillages and overflows within the wastewater and water supply systems of the County. 5. That the County acknowledges that the seven meters that they rely upon within the LEC for reading water usage, have never been calibrated, nor demonstrated to be accurate during the period of time of 2004 -2008. County meters have been replaced or rebuilt by County vendors or staff that did not notify City personnel of a change of meter or report before and after readings, period of disconnection or the like. 6. That at times throughout the period of 2004 -2008, City staff questioned the County with regard to several readings that were being reported, and asked County staff to verify the readings 5 that had initially been reported to the City staff. At alI such times, the County staff either did not respond, responded that the readings as originally provided were accurate or supplied new numbers. 7. That the County's claim is based upon hypothesis and projection and there are no recorded meter readings that were provided mechanically or electronically, and the only records relative to readings supplied contemporaneously with the period of time in which the readings were being made, with all of those being were verbally reported from the County staff to the City staff pursuant to the billing process then in effect. 8. That the City did in billing periods correct readings from the County staff that appeared to be inaccurate to City staff throughout the period of time of 2004 -2008 correcting what appeared to be errors in readings, and giving credit to the County for water usage reported but determined by City staff to be incorrect. 9. As to the County projections and hypothesis of its claims the City Council determines: Exhibit 3A and Exhibit 3B — Readings for January — February 2005. As an example, City staff questioned readings for January through February 2005. The original compound meter flow • read for February was sent in by the County as 16,287. Read on 12/31/04 was 9,866. The City questioned the meter read, and the County then re -read the meter and the City received a new read of 0300. The meter had obviously rolled over when it hit 9,999 gallons, and the February read was 10,300. The usage was 434. The billing was determined by City staff to be correct. The City Council determines that there is no reliable evidence to dispute this determination. Exhibit 3C — Readings for March — April 2005. For the readings of March — April 2005, the compound meter flow read for April was sent in by County staff to be 0650. Because the meter rolled over on the January — February 2005 to 10,000, the meter for April was 10,650. Usage was 350. Billing was correct. The City Council determines that there is no reliable evidence to dispute this city staff determination. Exhibit 3D - Readings from May — June 2005. Compound meter flow read for June was sent in at 10,968. Usage was 350. City staff determined that the meter readings and the billings generated therefore was correct. The City Council determines that there is no reliable evidence to dispute this city staff determination. Exhibit 3E _Readings for July — August 2005. The read for the compound meter flow that was sent in by the County was 16,102. The City did not question the County read at that point; nor did the County staff question its read of the meter or the usage amount. Use was up for the low flow meter but was also up at the same time for the compound high flow meter. The high flow meter usage was February 2005 at 530; April 2005 at 444; June 2005 at 823; and August 2005 at 1,260. As is demonstrated by these reads, the meter fluctuates and no one questions the read from the County staff perspective. If a read resulting in a negative usage would have been submitted, the City utility system would have identified the read and it would have been investigated. However, the County staff making the reads and supplying the data precluded that 6 by the nature of the reports that they made. The City Council determines that there is no reliable evidence to dispute this city staff deteiniination. Exhibit 3F Reading from September,::: October 200,5. The compound meter flow read by the County staff that was sent in was 2,198, and then 2,197,790. The city utility clerk assumed not use the list two digits and rounded to 21,980. The usage was 5,878. The August use was 5,134 and consistent with past usage; therefore the utility clerk did not question the read_ The read was not unreasonable compared to the August dates. The compound meter flow was 1,106, which was less than the August flow, but more than the previous three reads. The County staff also did not question the usage. . The City Council determines that there is no reliable evidence to dispute this city staff detennination on this matter. Exhibit 3G — Readings from November — December 2005. The read for the compound meter � p was sent in from the County staff at 25,080. Usage was 3,100. Again, this was not unreasonable compared to the August and October reads if anything was considered less than the previous two usage amounts. The compound meter flow was 417; it was also lower than the August and October reads. Again, if a negative usage had been calculated or reported by the County staff, the City would have verified the County staff reads and reinvestigated the problem. The City Council determines that there is no reliable evidence to dispute this city staff determination on this matter. Exhibit 3H — Readings from January — February 2006. The read for the compound low flow meter was sent in by the County staff at 30,570. The utility billing clerk questioned the read and thought it was too high. Usage would have been 5,490. The utility billing clerk for the City verified the read with Mr. Dave Beaver at the Washington County LEC on March 16, 2006. The utility billing clerk was infouiied by the County staff as of that date was 31,135. The County billed based the sent in at n 5 0 The staff has supplied e red was ��.xeu �aseu upon �.�., read as sent i�. u� 30,570. �.�.. City st f as s rr t` r notes received from the County staff and the notes verifying same. The City Council determines that there is no reliable evidence to dispute this city staff determination on this matter. Exhibit 3I — Readings from March — April 2006. The read for the compound meter flow was sent in by the County at 34,170. The utility billing clerk did not question the read as the usage was lower than the February 2006 usage. Usage was at 3,600. The City Council determines that there is no reliable evidence to dispute this city staff determination on this matter. Exhibit 3J — Readings from May — June 2006. The reads were corrected by the Washington County staff. The billing was correct at that tirh At no time slid the County staff request that the City adjust for previous incorrect reads sent in by the County stmt, or question the billing sent out by the City. The City Council determines that there is no reliable evidence to dispute this city staff determination on this matter. 10. At the time that the City was completing the 2007 annual audit, the City staff discovered an error that had been made by the City on the County water and sewer billings for 2006 and 2007. Adjustments were made to the March 31, 2008 utility billings to reflect the billing errors � 7 for 2006 and 2007. These adjustments matched the revised request in Washington County Exhibit 2, from June 2006 — December 2007. A letter dated April 9, 2008 was sent to the County by the City's accountant informing them of the error and enclosing the current utility billings with the water and sewer adjustments. The City received no response from the County at that time. On March 11, 2009, the City staff net with M. Ann Hudson from the Washington County accounting department who provided the City with the County's documentation for the first time for a claim for a refund at the LEC's utility bills, which the City's staff reviewed and responded to. Exhibit 19 is a copy of the City letter to Washington County dated April 9, 2008. The June 30, 2008 reads as sent in from Washington County show usage on the west meter and the compound meters of 1,862, and a deduct amount from the cooling tower and cooling blow down meters of 135. The total usage of water and sewer is 1,72'7. 11. That the County's delay in presenting their claim and not correcting any perceived errors in the readings of the various meters over the period of several years has made it impossible for anybody to verify the following: 1.) whether or not the meters were actually misread by the County staff; 2.) whether or not the meters were actually functioning in the manner that they were projected to do; 3.) whether or not there are any leaks, faults, or other failures in the system that could have precipitated an error. 12. That the County has engaged in several construction projects from 2004 -2008 which could have easily impacted water usage, as well as the accuracy and deployment of meters within the County's meter systems within the LEC. The potential for those errors and anomalies are not accounted for in the County's projection. County building improvements and modifications thru out the same period of time could also have impacted readings and usage 13. There are no affidavits signed by County personnel actually charged with the task of conducting the readings and submitted to the City of Oak Park Heights acknowledging any errors in meter -reads by County staff. 14. That the County has not supplied the City with reasonable documented evidence that indicates in any regard that the meter readings implemented by the County staff were in error, or precipitated an error in billing when reported to City staff. 15. City staff acted promptly and reviewed billings reasonably when reported by County staff, questioning them when appropriate, and making adjustments and credits to the County for water usage caught by the City staff, which appeared to be an anomaly and incorrect. 16. At times County staff did not respond to City staff on a timely basis when City staff questioned reads from the various meters and systems implemented by the County on their premises, being their meters, and read by their personnel. That the error by the County by not responding correctly to City staff, re- reading meters when requested to do so, or responding to the City when asked to perform certain functions relative to rn.eter readings has precluded any opportunity to reasonably reevaluate this claim for the period of time in issue. 17. That the County has delayed to the prejudice of the City in making this claim on a timely basis, and has done so based upon hypothesis and projection as opposed to data and evidence. 8 That there is no evidence to support the accuracy of the County's hypothesized claim. 18. That the City staff has reviewed the county materials reasonably requesting background data and information where available. BE IT RESOLVED BY THE CITY COUNCIL FOR THE CITY OF OAK PARK HEIGHTS AS FOLLOWS: That the request of Washington County for a refund in utility charges for the period of time of 2004 to 2009 is denied. PASSED BY THE CITY COUNCIL FOR THE CITY OF OAK PARK HEIGHTS THIS j '; AY OF QCf vine-" 2009 (447 4 . David Beaudet, Mayor / f J f /Eri' Johnson, L,ity Administrator / 9 STATE OF MINNESOTA ) ss. Our File No. 37024 (872) COUNTY OF WASHINGTON ) LORI L. STORK of the City of Lake Elmo, County of Washington, in the State of Minnesota, being duly sworn, says that on January 28, 2010, she served the annexed Defendant City of Oak Park Heights' Answer To Plaintiffs' Complaint on: DOUG JOHNSON via fax: (651) 430 -6163 COUNTY ATTORNEY and U.S. Mail WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 GEORGE KUPRIAN ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 MAURA J SHUTTLEWORTH ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH . PO BOX 6 STILLWATER MN 55082 KARI A LINDSTROM ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 1 501 5 6 ?ND S ' i RE T NORTH iJVii OL �11�D L PO BOX 6 STILLWATER MN 55082 by faxing and mailing to them a copy thereof, enclosed in an envelope, postage prepaid, and by depositing same in the mail, directed to said attorneys at their addresses above noted, the last known addresses of said attorneys. Lori L. Stork Subscribed and sworn to before me this Janrry 28, 2010. /L , No Public �'Y grT1' NANCY S. MASON NOTARY PUBLIC - MINNESOTA • My Commission Expires Jan. 31, 2010 I __ STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: OTHER CIVIL Court File No._ County of Washington, Plaintiff, COMPLAINT vs. City of Oak Park Heights, Defendant. Plaintiff as for its cause of action hereby alleges and states: 1. Plaintiff Washington County (hereinafter Plaintiff or County) is a political subdivision of the State of Minnesota with its County seat located in Stillwater, Minnesota. Plaintiff or County shall hereinafter also mean the officers and employees of the Plaintiff. 2. Defendant City of Oak Park Heights (hereinafter Defendant or City) is a political subdivision of the State of Minnesota and is located in Washington County. Defendant or City shall hereinafter also mean the officers and employees of Defendant. 3. Defendant provides, at rates established by the Defendant, sanitary sewer and municipal water services to Plaintiffs campus buildings one of which is the Law Enforcement Center (hereinafter LEC). 4. During the period January 1, 2005 through June 30, 2006 (hereinafter the relevant time frame), t.Lc. ne.1f.i l nt had in place the followinti_ municipal water rate for all users including the Plaintiff: a. A monthly minimum charge of $7.50 for the first 5,000 gallons of water used. EXHIBIT 1 a b. A rate of $1.34 per 1,000 gallons for water use above 5,000 gallons up to 16,000 gallons. c. A rate of $1.76 per 1,000 gallons for water u;c above 16,000 gallons up to 33,000 gallons. d. A rate of $2.11 per 1,000 gallons for water use above 33,000 gallons. 5. During the relevant time frame, the Defendant had in place the following sanitary sewer rate for all users including Plaintiff: a. A monthly minimum charge of $16.65 for the first 15,000 gallons of water used. b. A rate of $3.40 per 1,000 gallons of water used above 5,000 gallons. 6. During the relevant time frame, Plaintiff's water usage at the LEC was monitored by Defendant through the use of the following seven meters: #1 west meter, #2 compound meter low flow, #3 compound meter high flow, #4 fire meter, #5 sprinkler meter, #6 cooling tower in meter, #7 cooling blow down meter. 7. Each meter was read every two months, and the separate amount of water used as measured by each meter during the two month period tabulated. Total water usage for the LEC was then determined through the following calculation: The readings from the west meter plus the compound meter high flow plus the compound meter low flow minus the sprinkler meter minus the difference between the cooling tower in meter and the cooling tower blow down meter. The water use for the current two month period was then calculated by taking the difference between 11lis current suns and subtracting lroin it the sum calculated two months earlier. These calculations are done in the thousands of gallons in order to conform to the billing rates which are charged in thousand gallon 2 Case Type: Civil Action STATE OF MINNESOTA TENTH JUDICIAL DISTRICT TENTH COUNTY OF WASHINGTON JUDICIAL DISTRICT 2- Court File No. 8� C V- 10 -4198 County of Washington, Plaintiff, AFFIDAVIT OF DAVE BEAVER vs. City of Oak Park Heights, Defendant. Dave Beaver, being first duly sworn states as follows: i 1) I am currently employed by Washington County as a Facilities Technician III in the Public Works Department. I have been employed with Washington County Public Works since July 30, 1991. During the relevant time period to this case, January 1, 2005 to June 30, 2006, my position was Facilities Technician III. 2) In my professional capacity, rofessional ca aci , in the time period January 1, 2005 to June 30, 2006, I was one of four Facilities Technicians assigned to read and maintain the water meters at the Washington County Law Enforcement Center (LEC). 3) During the time period January 1, 2005 to June 30, 2006, the water usage at the LEC was monitored through a combination of seven water meters: #1 West Meter; #2 compound meter low flow (low flow meter); #3 compound meter high flow; #4 fire meter; , #5 sprinkler meter; #6 cooling tower in meter; and #7 cooling blow down meter. r involved and the use of deduction meters, I designed Due to the number of meters in gned the t r Reading worksheet used to track water usage Me e at the LEC during the time e Reading g eriod January 1, 2005 to June 30, 2006. The City ry Y of Oak Park Heights agreed to the use of this worksheet. 5) The process in P lace during the time period stated above was as follows. I or another Facilities Technician read the meters at two -month intervals. We recorded the current readings in the appropriate boxes on the worksheet we received from the City and then faxed the worksheet back to the City. EXHIBIT 6) The City then faxed a worksheet back to us with the previous reads typed in the "previous read" boxes when it was time for the next reading. 7) I kept the worksheets that 1 or another Facilities Technician faxed to the City each billing period. I kept these worksheets in a filing cabinet in my office at the Law Enforcement Center. This was done in the regular course of business. 8) Attached as Exhibits 1 to 13 are true and correct copies of the worksheets the County faxed to the City for the time period January 12, 2005 to October 31, 2006. 9) All seven meters that were in use at the LEC during the time period stated above are odometer -type devices that provide a continuous read. 10) Each meter has more digits on it than the digits that are to be read, reported, and used in the water use calculation. The digits that are to be read are white in color. 11) For example, the low flow meter in use during the time period stated above has seven digits, but only the four white digits are to be read and reported. Similarly, the compound meter high flow is made up of eight digits, only five of which are to be read. 12) Neither I nor the other Facilities Technicians assigned to read the water meters received any training from the City of Oak Park Heights on how to read the meters. 13) Because the low flow meter is read to only four digits, its maximum reading is 9999. So, it will roll -over after it has measured 9,999,000 gallons of water to read 0001. Meter readings are done in thousands of gallons. 14) A roll -over of the low flow meter occurred sometime between the January 12, 2005 and March 15, 2005 low flow meter readings. 15) The low flow meter did not roll over again during the timeframe March 15, 2005 to June 30, 2006. 16) There were no repairs, rebuilding, replacements, or modification to the low flow meter during the time period January 1, 2005 to June 30, 2006. The low flow meter functioned properly during this timeframe. /1 Dave Beaver Washington County Public Works Subscribed and sworn to before me this ,`, r `` day o July, 2010. Notary Pub1i ,� _ I VICKY J. � C ns ` Notary My Commission Expires Jan 31,2015 n 7] O m 4 m C oa In CD 3 rn rn 1 ! n z o ro v a a -n A w c o5 y a m n < m N_ Arn m — 0 o to a s n Gallons in Thousnds c w;g y ? ■ .g-- 3 j A WW CO CO ( 6 .71 O G VI - ,- 6 O N O {3. ' N ' p p 8 pp 8 pp j 1 o O O O O O O O § N • - w ' o m` Jan -05 . m a o co c.71 w a o 3 a ■ ! n ° Feb-05 $ ` a ! A A -n ■ NJ r� ; a ; 1 ■ .) -' 6 Q. o Mar -0$ m m° o 0 0 0 Apr -05 c 3 2 3 tn D 1 C co o c May 05 1 C O go N _ _ C ., Jun-05 J yy p N O �D ■ tp c i i .`, N Iv tom O 0 s rn -« P m 0 b l U l - 05 A r. CO o 1 w mi m rt 0 0 r N o g-OS °� c Q ' •�• rn l, F c N, 0 ttp-05 ' .� Co 11 N N. F± C0 o m - N O i tt -05 �' l m CT 'co CT F+ OC 1 C M + I G n v o G w morn m 0 ed N o ° Vec -05 i g to co �q m : o d t N co a a ---------- Jan-06 w w v b w; � ! c v o o� t-,, ' o _ Feb -06 0 in v y J I 6 i o -- o ---4 Mar-06 w W W w A Qu 7 W .. .Cu CO CO o Apr 06 , W co T y CD a+ V i o — May -06 ; w A a c w w a, Jun -06 w i ! i w a a c Jul-0 . , 1 is A 00 A m m Aug -06 I -4 1 . tabbies m x a) y Y w JARDINE ATTORNEYS AT LAW LOGAN & P.L.L.P. O'BRIEN July 23, 2010 Suite 100 COURT ADMINISTRATOR 8519 Lake Elmo, MN WASHINGTON COUNTY GOV'T CTR 14949 62 ST. N Firm (651) 290 -6500 Fax (651) 223 -5070 STILLWATER MN 55082 E -Mail art@jlolaw.com Re: County of Washington vs. City of Oak Park Heights www.jlolaw.`om Court File No. 82 -CV -10 -4198 Our File No. 37024 (872) John M. Kennedy, Jr.* Dear Court Administrator: Eugene J. Flick' Charles E. Gillin " Pierre N. Regnier Mark A. Fonken " Enclosed for filing, please find the following: George W. Kuehner Patti J. Skoglund * Timoth c y S. Crom M. Rocheford 1. Defendant City of Oak Park Heights' Notice of Motion And Motion James G. Golembeck • For Summary Judgment; Joseph E. Flynn " Marlene S. Garvis • 2. Defendant City of Oak Park Heights' Memorandum of Law In Support Thomas L. Cummings Leonard J. Schweich Of Its Motion For Summary Judgment; 3. Affidavit of Judy Holst; and Jessica . Schwic Susan S:fice 4. Proposed Order. Thomas J. Misurek Matthew P. Bandt Elisa M. Hatlevig Also enclosed please find our check in the amount of $100.00, which sum represents ,Jason A. Koch Darwin S. Williams the motion filing fee. Please return a receipt to me for the filing fee paid. Mark K. Hellie Nancy M. Aboyan Daniel J. Stahley By copy of this letter, we are serving the same upon counsel for Plaintiff. John R. O'Brien - Admitted in Wisconsin, emeritus Minnesota, retired Very truly yours, Alan R. Vanasek - Of Counsel Gerald M. Linnihan - Retired JARDINE, LOGAN & O'BRIEN, P.L.L.P. Some members also admitted to practice law in Wisconsin ", r North Dakota, South Dakota, �'' and Iowa es G. Golembeck Shannon Banaszewski Direct Dial: (651) 290 -6567 Administrator Donald M. Jardine (1915 -2005) JGG:lls Jerre E Logan (1923 -1983) Enclosure Equal Opportunity Employer COURT ADMINISTRATOR July 23, 2010 Page 2 copy: MAURA J SHUTTLEWORTH ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 blind copy: ERIC JOHNSON CITY ADMINISTRATOR CITY OF OAK PARK HEIGHTS PO BOX 2007 STILLWATER MN 55082 -3007 JUDY HOLST FINANCE DIRECTOR CITY OF OAK PARK HEIGHTS PO BOX 2007 STILLWATER MN 55082 -3007 MARK A ROSSOW LITIGATION SUPERVISOR LMCIT 145 UNIVERSITY AVE W ST PAUL MN 55103 -2044 [11071183] • STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: OTHER CIVIL County of Washington, Court File No. 82 -CV -10 -4198 Plaintiff, vs. DEFENDANT CITY OF OAK PARK HEIGHTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT City of Oak Park Heights, Defendant. TO: PLAINTIFF COUNTY OF WASHINGTON AND ITS ATTORNEYS: DOUG JOHNSON, COUNTY ATTORNEY MAURA J SHUTTLEWORTH ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 NOTICE OF MOTION PLEASE TAKE NOTICE that on Friday, August 27, 2010, at 9:00 A.M., the undersigned will bring the motion for summary judgment herein on for hearing before the Honorable John C. Hoffman, District Court Judge, at the Washington County Government Center, 14949 62 " Street North, Stillwater, MN 55082, or as soon thereafter as counsel may be heard. ,, MOTION Upon all the files, records, proceedings, and arguments, including the attached Affidavit and Memorandum of Law, Defendant, City of Oak Park Heights, will move the Court for the following: 1. An Order granting Summary Judgment against the Plaintiff herein; 2. An Order dismissing Plaintiff's Complaint against Defendant City of Oak Park Heights, with prejudice; and 3. For entry of judgment. Dated: p7.- .- d O n > JARDINE, LOGAN & O'BRIEN, P.L.L.P. By: Er— PIE ' .'4 N. REGNIER (A.R. #90232) 1 1 S G. GOLEMBECK (A.R.# 179620) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8624 (651) 290 -6500 ATTORNEYS FOR DEFENDANT — CITY OF OAK PARK HEIGHTS 2 STATE OF MINNESOTA ) ) SS. COUNTY OF WASHINGTON ) SHEILA R. GLASSING, being duly sworn on oath, deposes and says that she is of legal age, and is a resident of Inver Grove Heights, County of Dakota, State of Minnesota, and that on July 23, 2010, she served the annexed DEFENDANT CITY OF OAK PARK HEIGHTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT on: MAURA J SHUTTLEWORTH ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 by mailing to her a copy thereof, enclosed in an envelope, postage prepaid, and by depositing same in the post office, directed to said attorney at the address above noted, the last known address of said attorney. ILA R. GLA G Subscribed and sworn to before me on July 23, 2010. NOTAY LIC MARLYS J HgRMpN 31 all Notary p ' 1 � l STATE OF MINNESOTA DISTRICT COURT WASHINGTON COUNTY TENTH JUDICIAL DISTRICT Case Type: OTHER CIVIL Washington County, Court File No. 82 -CV -10 -4198 Plaintiff, vs. DEFENDANT CITY OF OAK PARK HEIGHTS' MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT City of Oak Park Heights, Defendant. INTRODUCTION Plaintiff, Washington County, alleges a claim of unjust enrichment against the City of Oak Park Heights. Washington County alleges that it overpaid for sanitary sewer and water services provided by the City of Oak Park Heights for the Washington County Law Enforcement Center for the period January 1, 2005 through June 30, 2006. Washington County's request for a refund was denied administratively and was appealed to the City Council. Washington County's appeal requesting a refund was also denied by the City Council. By this lawsuit, the County seeks review of the City Council's decision. Because the utility refund proceedings before the City Council were quasi-judicial in nature, they were only reviewable by writ of certiorari to the Court of Appeals. This Court lacks subject matter jurisdiction to review the quasi-judicial determination of the City of Oak Park Heights and, therefore, this case must be dismissed. i STATEMENT OF DOCUMENTS RELIED UPON Exhibit 1 Letter dated April 27, 2009 from Washington County Harley L. Will, CPA, CGFM, Accounting & Finance Director, to Ms. Judy Hoist, Finance Director, City of Oak Park Heights Exhibit 2 Letter dated May 15, 2009 from Judy Hoist, Deputy Clerk/Finance Director, City of Oak Park Heights, to Harley L. Will, Accounting & Finance Director, Washington County Exhibit 3 August 26, 2009 letter from Washington County Administrator, James R. Schug to The Honorable Mayor Beaudet & City Council Members Exhibit 4 Washington County Utility Billing response to August 26, 2009 letter and exhibits from the City of Oak Park Heights dated October 1, 2009 from Judy Hoist, Deputy Clerk/Finance Director, City of Oak Park Heights Exhibit 5 City Council Meeting minutes dated September 8, 2009, page 2 of 4 regarding Washington County — Request for Refund from Utility Charges Exhibit 6 City Council Meeting minutes dated October 13, 2009, page 2 of 3 regarding Washington County — Request for Refund from Utility Charges Exhibit 7 October 8, 2009 letter from Washington County Harley Will to Mayor Baudet and City Council members Exhibit 8 Resolution No. 09- 10 -39, City of Oak Park Heights, regarding "A Resolution Making Findings Of Fact And Determining The Appeal /Claim Submitted By Washington County To The City of Oak Park Heights Relative To Water Billing For The Period of Time Of 2004 -2008 dated October 13, 2009 and signed by David Beaudet, Mayor, and Eric Johnson, City Administrator Exhibit 9 Documents referred to in Resolution No. 09 -10 -39 submitted by Washington County to the City Council as Exhibits 1 -18 and submitted by City Staff to the City Council as Exhibits 1 -15 Exhibit 10 City of Oak Park Heights Ordinance 1001 entitled "Regulation of the Use of Water And Sewer," which Ordinance was in effect from 2004 through 2008 Exhibit 11 City of Oak Park Heights Resolution No. 04 -10 -59 regarding Water Usage Rates in effect from 2005 through 2006 Exhibit 12 Plaintiff's Complaint 2 STATEMENT OF ISSUES I. Does the District Court have jurisdiction to review the quasi - judicial decision of the City of Oak Park Heights regarding utility refunds? II. Whether Washington County's sole remedy is to appeal to the Minnesota Court of Appeals by writ of certiorari? STATEMENT OF FACTS The City of Oak Park Heights provides Washington County Law Enforcement Center (LEC) with sanitary sewer and municipal water services. Washington County alleges, in its Complaint, that during a period of time from January 1, 2005 through June 30, 2006, it was overcharged for water services for the LEC. (Exhibit 12, ¶44 — Affidavit of Judy Holst) During the period of January 1, 2005 through June 30, 2006, water usage at the LEC was monitored by water meters owned, operated and maintained by the Washington County employees. Meter readings of all Washington County meters were done by County employees every two months and the readings were provided by Washington County employees to the City of Oak Park Heights for billing purposes. (Exhibits 2, 4, 8 — Affidavit of Judy Ho1st) The City of Oak Park Heights applied Ordinance 1001 (regulation of the use of water and sewer) and its rate structure. Ordinance 1001.01 entitled "Establishment of Department" provides that the "City Council shall have responsibility for the management, maintenance, care, and operation of the sewer and water systems of the City subject to the delegation of such authority to City employees, individual Council members, or the City Clerk as the Council shall make from time to time." Section 1001.07 "Billing Regulations ", states that the "City Council shall have the authority to prescribe by resolution the rates to be charged 3 for water and sewer service to the customer from time to time and may prescribe the date of billing, a discount for payment within a prescribed period, and/or penalty for failure to pay within such eriod and such further rules and regulations relative to the use and operation of p � said systems as it may deem from time to time." See Exhibits 8, 10, 11 - Affidavit Y Y necessary of Judy Holst) The City of Oak Park Heights adopted a rate resolution setting forth a rate structure for 2005 through 2006 as follows: A. A monthly minimum charge of $7.50 for the first 5,000 gallons of water used. B. A rate of $1.34 per 1,000 gallons for water use above 5,000 gallons, up to 16,000 gallons. C. A rate of $1.76 per 1,000 gallons for water use above 16,000 gallons to 33,000 gallons. D. A rate of $2.11 per 1,000 gallons for water use above 33,000 gallons. (Exhibit 11 - Affidavit of Judy Holst) During the time period January 1, 2005 through June 30, 2006, all meter readings were reported by Washington County personnel and were reported on forms provided by the City of Oak Park Heights. (Exhibit 8 - Affidavit of Judy Hoist) In its Complaint, Washington County alleges that it was overcharged for water and sewer service in the amount of $114,000.00 for the time period January 1, 2005 through June 30, 2006. (Exhibit 12, ¶44 — Affidavit of Judy Hoist) On March 11, 2009, Washington County Employee Ann Hudson met with City of Oak Park Heights Finance Director Judy Hoist and requested a water service refund in the amount of $114,700.49. (Exhibit 1 - Affidavit of Judy Hoist) By way of correspondence dated May 15, 2009, the City of Oak Park Heights notified Washington County that the City of Oak Park Heights had no reliable data to challenge the 4 2005 records as submitted and verified by Washington County staff and, further, the City of Oak Park Heights had no way of re- reading meters for usage in 2005 and, therefore, denied Washington County's claim for a refund for the relevant time period. (Exhibit 2 - Affidavit of Judy Holst) The above administrative denial was then appealed to the City of Oak Park Heights City Council by Washington County. On August 26, 2009, Washington County filed an appeal with the City Council pursuant to City Ordinance 1001 and appealed the initial determination by City Finance & Utility Department that Washington County was not entitled to a refund. (Exhibit 3 - Affidavit of Judy Holst) As part of the appeal process, Washington County submitted documentation to the City Council for consideration consisting of the following documents: 1. Letter August 26, 2009 from James Schug, County Administrator 2. Exhibit #1 - Summary of Issues with projections 3. Exhibit #2- Listing of City invoices for the LEC 4. Exhibit 3a - Water meter reading worksheet- Jan -Feb 2005 (county hand written note) 5. Exhibit 3b - County staff new reading for compound meters 3/16/05 6. Exhibit 3c - Water meter reading worksheet- Mar -Apr 2005 (county editorial attached) 7. Exhibit 3d - Water meter reading worksheet- May -June 2005 (county editorial attached) 8. Exhibit 3e - Water meter reading worksheet- Jul -Aug 2005 (county hand written note & editorial attached) 9. Exhibit 3f - Water meter reading worksheet- Sep -Oct 2005 (county hand written note & editorial attached) 10. Exhibit 3g - Water meter reading worksheet- Nov -Dec 2005 (county hand written note & editorial attached) 11. Exhibit 3h - Water meter reading worksheet- Jan -Feb 2006 (county hand written note & editorial attached) 12. Exhibit 3i - Water meter reading worksheet- Mar -Apr 2006 (county editorial attached) 13. Exhibit 3j - Water meter reading worksheet- May -Jun 2006 (county hand written note & editorial attached) 14. Exhibit 3k - Water meter reading worksheet- Jul -Aug 2006 (county hand written note & editorial attached) 5 15. Exhibit 4 Calculated (Projected) total LEC Water usage 12/03 -12/08 16. July 24, 2009 letter to Harley Will from Judy Hoist, City Finance Director 17. May 15, 2009 letter to Harley Will from Judy Hoist, City Finance Director 18. October 8, 2009 letter from Harley Will to the City Council (Exhibits 8 and 9 - Affidavit of Judy Holst) Also, as part of the appeal process, City Staff submittal for City Council review documentation consisting of the following: 1. Identification of Meters current and prior and locations at LEC County Building (3 pages). 2. City Finance and Utility Department — Washington County Utility billing Response to August 26, 2009 Letter. 3. Exhibit A — Summary of issues identified with invoice calculations and meter readings (Meter reading date 03/08/04) 4. City Exhibit B — Response to Washington County Exhibit 3a and Exhibit 3b — Readings for Jan — Feb 2005 5. City Exhibit C — Response to Washington County Exhibit 3c — Readings for March — April 2005 6. City Exhibit D — Response to Washington County Exhibit 3d — Readings for May — June 2005 7. City Exhibit E — Response to Washington County Exhibit 3e — Readings for July — August 2005 8. City Exhibit F — Response to Washington County Exhibit 3f — Readings for September — October 2005 9. City Exhibit G — Response to Washington County Exhibit 3g — Readings for November — December 10. City Exhibit H — Response to Washington County Exhibit 3h — Readings for January — February 2006 11. City Exhibit I — Response to Washington County Exhibit 3i — Readings for March — April 2006 12. City Exhibit J— Response to Washington County Exhibit 3j — Readings for May — June 2006. 13. City Exhibit K — Response to Washington County Exhibit 1 Issue(s) Identified with Calculation and Meter Readings — Meter Re adding Date 6/30/08 — 14. City Exhibit L — April 9, 2008 Letter to Washington County, 5 -13 -08 Facsimile Transmittal to Dottie, Financial Services, 2006 — 2007 LEC Adjustment Calculations 15. City Exhibit M — May 15, 2009 Letter to Harley L. Will, Accounting & Finance Director, Washington County (Exhibits 8 and 9 - Affidavit of Judy Holst) 6 On September 8, 2009, a hearing was held before the City Council regarding Washington County's appeal from the denial of the refund. (Exhibits 5 and 7 - Affidavit of Judy Holst) At that hearing, Harley Will, Accounting & Finance Director for Washington County, came forward at the meeting and gave oral testimony that the County determined there were issues with their meter reading and corresponding charges and set forth Washington County's argument that it was entitled to a refund. At that time, the City Council moved to take the issue under advisement to review the extensive information submitted by Washington County and to give staff additional time for further review. On October 13, 2009, the City Council reviewed staff analysis and additional documentation regarding the alleged claim and then, in addition, received additional correspondence that day from Washington County in support of its alleged claims. (Exhibits 6 and 9 - Affidavit of Judy Holst) At that time, the City Council voted unanimously to close the record and move to approve a Resolution denying Washington County's appeal for refund. As part of the Resolution, the City Council adopted detailed Findings of Fact discussing the disputed charges. (Exhibit 8 - Affidavit of Judy Holst) ARGUMENT Summary judgment is appropriate in this case since the District Court does not have subject matter jurisdiction. "The District Court has original jurisdiction in all civil and criminal cases and shall have appellate jurisdiction as prescribed by law ". Minn. Const. art. VI, § 3. In Minnesota, "the writ of certiorari is a writ of review in the nature of a writ of error or an appeal." State ex rel. DePonti Aviation Co. v. Minneapolis -St. Paul Metro Airports Commission, 226 Minn. 272, 275, 32 N.W.2d 560, 562 (1948). Unless provided by 7 statute or appellate rule to obtain judicial review of an administrative agency's quasi judicial decision, a party must petition the Court of Appeals for a writ of certiorari. Neitzel v. County of Redwood, 521 N.W.2d 73, 76 (Minn. Ct. App. 1994), rev. denied (Oct. 27, 1994). In this case, there was no statute or rule expressly vesting judicial review in the District Court. Therefore, the Court of Appeals has exclusive certiorari jurisdiction as concerns Washington County's appeal from denial of the refund of utility charges. Here, summary judgment is appropriate since there is no genuine issue of material fact and the moving party of the City of Oak Park Heights is entitled to judgment as a matter of law. Citing, Anderson v. State, Department of Natural Resources, 693 N.W.2d 181, 186 (Minn. 2005), Minn. R. Civ. P. 56.03. I. Plaintiff Washington County's claims are barred since the District Court lacks jurisdiction to review the quasi - judicial decision of the City of Oak Park Heights. It is well founded in Minnesota law that "unless there is statutory authority for a different proceeding, a party may obtain review of a quasi-judicial decision by an executive body that does not have state -wide jurisdiction only by writ of certiorari. Willis v. County of Sherburne, 555 N.W.2d 277, 282 (Minn. 1996). In those circumstances, the Court of Appeals has exclusive certiorari jurisdiction. Heideman v. Metropolitan Airports Commission, 555 N.W.2d 322, 324 (Minn. Ct. App. 1996) The authority of the District Court to review the quasi-judicial action is jurisdictional. Mowry v. Young, 565 N.W.2d 717, 719 (Minn. Ct. App. 1997), rev. denied (Sept. 18, 1997). In this case, the City proceeded under its Ordinances regarding utility charges which do not provide for District Court review of the Decision. Therefore, under applicable case law, Washington County can only challenge the decision by writ of certiorari and, therefore, 8 i the District Court must dismiss this case for lack of subject matter jurisdiction. Minn. R. Civ. P. 12.08(c) clearly provides that the District Court shall dismiss the action when it lacks subject matter jurisdiction. II. The City Council's Decision to deny the County's appeal in which they sought a refund is a quasi - judicial decision. Whether the City's action is reviewable by certiorari ultimately is dependent upon whether the City acted in a quasi-judicial capacity' when it denied Washington County's appeal for refund. Minnesota Courts have set forth three indicia of quasi-judicial actions. The three indicia of quasi-judicial actions are as follows: "(1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim." See Handicraft Block Limited Partnership v. City of Minneapolis, 611 N.W.2d 16 (Minn. 2000). (1) Investigation into a disputed claim and weighing of evidentiary facts. The first factor to consider is whether the City of Oak Park Heights City Council investigated and weighed evidentiary facts relevant to a disputed claim. In the case at hand, the following factors clearly support the conclusion that the City Council's action in denying the appeal was quasi - judicial: A. The claim was disputed as set forth in the claim documents submitted by Washington County. (Exhibits 1, 2, 3, 4, 5 — Affidavit of Judy Holst) 1 See the recent case of Anderson v. County of Lyon, June 22, 2010, Minnesota Court of Appeals. In Anderson, the Court of Appeals further defines quasi - judicial action and states "The action of an administrative agency may be either quasi - legislative or quasi-judicial in nature." "Quasi- legislative acts of an administrative agency affect the rights of the public generally....." By contrast, quasi-judicial acts are specific, discretionary acts that affect the rights of an individual analogous to the discretionary decisions of a court proceeding." 9 . f B. Washington County was a formally identified party to the proceeding. C. Washington County was given the right to participate in the public hearing regarding the request for a refund. D. Washington County provided submittals and additional information for consideration of the Oak Park Heights City Council, including evidentiary facts in regard to the disputed claim. (Exhibit 8 for a complete listing of submittals — Affidavit of Judy Holst) E. City Staff provided submittals and additional information for consideration of the Oak Park Heights City Council, including evidentiary facts in regard to the disputed claim. (Exhibit 8 — Affidavit of Judy Holst) F. The proceedings were adversarial in nature. Evidence regarding the alleged overcharges were taken and Washington County was allowed to submit oral testimony and written evidence at the time of the hearing. (Exhibits 5, 6, 8 - Affidavit of Judy Holst) G. The City of Oak Park Heights made a decision bearing only on the claim of Washington County. The decision was not bearing on an open class of persons or properties; rather, it was directed specifically toward Washington County's claim. Evidence was targeted directly toward the claim between Washington County and the City of Oak Park Heights for overcharges and subsequent refund requests. (Exhibit 8 — Affidavit of Judy Holst) I. The Resolution of the City Council clearly evidences the extent of investigation of the claim of Washington County and clearly indicates the City g g Y Y Y Council weighed the evidentiary facts submitted by both Washington County and City Staff. (Exhibit 8 — Affidavit of Judy Holst) J. Oral argument was submitted at the hearing by Washington County in support � g Y � Y of Washington County's claims. (Exhibit 5 — Affidavit of Judy Holst) In this p analysis, it is clear that the City's proceedings are quasi - judicial. In Neitzel v. Y Y County of Redwood, 521 N.W.2d 73 (Minn. Ct. App. 1994), the Minnesota Court of Appeals, citing Oakman v. City of Eveleth, 163 Minn. 100, 108 -09, 203 N.W. 514, 517 (1925), discussing the essence of quasi - judicial acts, states as follows: A quasi-judicial act is an act of a public officer, commission, or board that is "presumably the product or result of investigation, consideration and 10 deliberate human judgment based upon evidentiary facts of some sort commanding the exercise of their discretionary power. It is the performance of an administrative act which depends upon and requires the existence or nonexistence of certain facts which must be ascertained, and the investigation and determination of such facts cause the administrative act to be termed quasi judicial." The Minnesota Supreme Court, in discussing the reason for a different treatment of quasi-judicial acts states: legislative acts from uasi- j g q J "Legislative acts affect the rights of the public generally, unlike quasi - judicial acts which affect the rights of a few individuals analogous to the way they are affected by Court proceedings. See, Interstate Power Company, Inc. v. Nobles County Board of Commissioners, 617 N.W.2d 566, 574 (Minn. 2000). In the present case, there is only one party affected — namely Washington County — and they were affected by the City Council's determination just as if the determination had been a court proceeding. In this case, there is no legislative act affecting the rights of the public generally and the denial of Washington County's appeal requesting a refund of $114,000.00 based upon a claimed mistake long been made is clearly analogous to a Court proceeding. Here, the City gathered, investigated and weighed relevant information and facts for the specific purpose of reaching a legal conclusion. The decision has all the attendant responsibilities and constraints in resolution of a particular adversarial claim. All these factors clearly indicate that the proceedings were quasi-judicial in nature. (2) Application of those facts to a prescribed standard. The second factor in determination of whether a decision is quasi-judicial is whether, after investigation of the disputed claim and weighing of evidentiary facts, those facts are applied to a prescribed standard. In this case, the City of Oak Park Heights does have a 11 • ' r r prescribed standard —that being a utility rate ordinance and an established utility rate structure. Oak Park Heights Ordinance 1001 regarding "Regulations of the Use of Water And Sewer," provides that the City Council shall have the responsibility for the management and maintenance, care and operation of the sewer and water systems of the City. By way of Resolutions, pursuant to City Ordinance Section 1001.07, the City adopted a rate structure for charges for water and sewer service to the customer. The rate structure is for water used. The only simple. It is a charge per 1000 gallons o y factors in this rate are amount of water used as applied against the fixed rate. The City's rate structure clearly provides a prescribed standard for charges per 1000 gallons of use. In this case, the City applied the facts of water usage or, in Washington County's case, lack of verifiable usage after the fact to the prescribed standard to determine that Washington County's appeal would i In this case, the City's rate structure establishes specific language that is lan ua be denied. t y p g g mandatory and not permissive. Clearly, the rate structure establishes a set standard for charges for use which was applied in this case. (3) A binding decision regarding the disputed claim. The third factor to determine whether the City of Oak Park Heights City Council's decision to deny Washington County's appeal for a refund is quasi-judicial is whether that decision "amounts to a binding decision that affected a disputed claim." The City of Oak Park Heights' City Council's decision to deny the administrative appeal for refund was the final binding decision regarding a disputed claim. Thus, it is a quasi-judicial decision. In determining whether a decision is a final decision and appropriate for certiorari review, the Courts will examine whether the parties treated the matter as final. See Mowry v. Young, 565 N.W.2d 717, 720 (Minn. Ct. App. 1997). Here, the challenged order 12 was not interlocutory or intermediate. It was a final order of the City Council acting as an appeal body for the City of Oak Park Heights. Here, Washington County was notified of the final decision which contains findings. There is nothing in the record which indicates that the parties did not treat this decision other than final. The decision in this case was binding upon Washington County. The City of Oak Park Heights, acting through the City Council, refused to refund any past utility charges as is set forth in the decision of the City Council. It is clear that the City Council, pursuant to Ordinance 1001, has the final responsibility over all utility matters, including rates and billing. In addition, the decision was replete with reference to the record reviewed b b g. a p by the City Council, as well as Findings of Fact and final Conclusions. Nothing in the Resolution indicates the decision is interlocutory or can be further appealed. In this case, it is clear that the decision was a final binding decision, subject only to review by writ of certiorari. The City of Oak Park Heights City Council's decision regarding the utility rate refund request of Washington County was clearly a quasi-judicial decision. The City Council's decision meets all three indicia of quasi-judicial actions. It was clear that the City Council reviewed the claim investigation and then weighed the facts as submitted by Washington County. These facts consisted of voluminous submittals to the City of Oak Park Heights City Council, as well as oral testimony before the City Council. It is clear that the City Council applied those facts to its utility billing ordinance, which clearly sets forth a prescribed rate for usage. In this case, the only issue was usage, which was questioned by. Washington County. Lastly, the City Council decision was a binding decision regarding the disputed claim. This lawsuit is nothing more than a review of that decision of the City Council. 13 •, r III. Washington County's sole remedy is to appeal to the Minnesota Court of Appeals by writ of certiorari since Plaintiff's lawsuit is nothing more than a judicial review of the City Council's quasi - judicial decision. It is well- settled in the State of Minnesota that "certiorari is an extraordinary remedy, only available to review judicial or quasi-judicial proceedings and actions." Citing, Honn v. City of Coon Rapids, 313 N.W.2d 409, 414 (Minn. 1981). It is also well - settled that absent authority for review of a local agency's quasi - judicial decision in District Court, a party's sole remedy is to appeal to the Court of Appeals for writ of certiorari. See, Toby's of Alexandria, Inc. v. County of Douglas, 545 N.W.2d 54 (Minn. Ct. App. 1996). Washington County's attempt to characterize its complaint as sounding in unjust enrichment cannot change the jurisdictional analysis that the District Court must undertake. See, City of Minneapolis v. Meldahl, 607 N.W.2d 168 (Minn. Ct. App. 2000). See also, Willis v County of Sherburne, 555 N.W.2d 277, 282 (Minn. 1996). In Willis, the Court held that regardless of the fact that Willis' claim was "cloaked in the mantle of breach of contract," when the alleged breach involved termination of claimant's employment by an executive body without statewide jurisdiction, claimant may challenge the action by certiorari alone, absent statutory authority for a different process. In Meldahl, the Court held that the District Court did not have jurisdiction over an inverse condemnation claim contained in the Complaint, challenging demolition of a building for nuisance. The reasoning given by Meldahl was that the takings claim was "not separate and distinct from the City's quasi-judicial decision to demolish the structure. Id., at 172. The Court ruled that when an inquiry into the facts surrounding the takings claim ' certiorari alone. involve an inquiry into the City's decision jurisdiction is by writ of certiora ne. a o In the present case, we have the very same issues and facts in both the appeal to the City 14 Council and Complaint. Both the appeal to the City Council and Complaint involve the City Council's decision to deny the County's request for reimbursement of money. The unjust enrichment claim will involve the very same inquiry as made by the City Council. If the County makes a claim that the Council made errors of law, that claim is reviewable in the certiorari proceeding. See, Naegele Outdoor Advertising, Inc. v. Minneapolis Community Dev. Agency, 551 N.W.2d 235, 237 (Minn. Ct. App -. 1996). In the case at hand, certiorari is certainly appropriate to review questions of law. Here, the same arguments were made to the City Council as are being made in the Complaint /lawsuit. Here, Washington County admits to the City Council and in its Complaint that County employees made mistakes in reading and reporting meter results. See, Exhibit 12, ¶27 — Affidavit of Judy Holst) Here, the amount of the claim is rounded to $114,000.00 and is roughly equivalent. See, (Exhibit 12, ¶44 — Affidavit of Judy Holst) Washington County's basic argument to the City Council was that they overpaid charges based upon errors and omissions of County employees. The claim has not changed in the Complaint and is substantially the same as was brought before the City Council on appeal. Further, unjust enrichment is an equitable claim. The Court of Appeals, in reviewing a City's quasi-judicial decision, can apply equitable principles. See, Interstate Power Company, Inc. v. Nobles County Board of Commissioners, 617 NW.2d 566, 575. In Interstate Power, in a writ of certiorari appeal of a denial of a conditional use permit by the County, the Court, using equity, overruled the County's decision. In this case, Washington County cannot cloak its action as unjust enrichment in its attempt to challenge the utility charges which were levied by the City of Oak Park Heights in 2005 and 2006. The essential element of the claim is whether the utility charges were appropriately implemented pursuant 15 . to the rate structure of the City of Oak Park Heights. Couching the claim as an unjust enrichment claim in an effort to side -step the obvious jurisdictional issue is not appropriate. It is clear that the City Council's decision to deny a utility refund was quasi-judicial and reviewable only by writ of certiorari to the Court of Appeals. Therefore, this Court lacks jurisdiction as certiorari to the Minnesota Court of Appeals is the exclusive sole remedy for such review. CONCLUSION, Because the decision of the City Council of the City of Oak Park Heights to deny Washington County's appeal for utility refund is quasi-judicial and reviewable only by writ of certiorari, this Court lacks jurisdiction and, therefore, must dismiss Washington County's Complaint. Writ of certiorari is the sole method of review and, therefore, Washington County's attempt to color the claim as an unjust enrichment claim has no bearing. Therefore, the case must be dismissed. Dated: „..,SL, / cj�., vl o JARDINE, LOGAN & O'BRIEN, P.L.L.P. B �r � ►: PIE '.1 . N. REGNIER (A.R. #90232) S G. GOLEMBECK (A.R.# 179620) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8624 (651) 290 -6500 ATTORNEYS FOR DEFENDANT — CITY OF OAK PARK HEIGHTS 16 i r 1 STATE OF MINNESOTA ) ) SS. COUNTY OF WASHINGTON ) SHEILA R. GLASSING, being duly sworn on oath, deposes and says that she is of legal age, and is a resident of Inver Grove Heights, County of Dakota, State of Minnesota, and that on July 23, 2010, she served the annexed. DEFENDANT CITY OF OAK PARK HEIGHTS' MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT on: MAURA J SHUTTLEWORTH ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 by mailing to her a copy thereof, enclosed in an envelope, postage prepaid, and by depositing same in the post office, directed to said attorney at the address above noted, the last known address of said attorney. S 1 ILA R. GLASS; G Subscribed and sworn to before me on July 23, 2010. NOTARY � x..... - ii"rc Y s J HARMON Notary Public /Anna** 31 2015 I 1 STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: OTHER CIVIL Washington County, Court File No. 82 -CV -10 -4198 Plaintiff, vs. ORDER City of Oak Park Heights, Defendant. The above - entitled matter came on for hearing on the August 27, 2010, before the Honorable John C. Hoffman, at the Washington County Government Center, 14949 62 Street North, Stillwater, MN 55082, on Defendant City of Oak Park Heights' Motion for Summary Judgment. Maura J. Shuttleworth, Assistant Washington County Attorney, appeared on behalf of Plaintiff Washington County. James G. Golembeck appeared on behalf of Defendant City of Oak Park Heights. Based upon all of the files, records and proceedings, Affidavits and Memorandum of Law, including arguments of counsel, IT IS HEREBY ORDERED: 1. That City of Oak Park Heights' motion for summary judgment is granted; 2. That Plaintiff's Complaint is dismissed in its entirety and with prejudice; and 3. Defendant City of Oak Park Heights is granted reasonable costs and disbursement incurred herein. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: BY THE COURT: Judge of District Court 2 f STATE OF MINNESOTA ) ) SS. COUNTY OF WASHINGTON ) SHEILA R. GLASSING, being duly sworn on oath, deposes and says that she is of legal age, and is a resident of Inver Grove Heights, County of Dakota, State of Minnesota, and that on July 23, 2010, she served the annexed PROPOSED ORDER on: MAURA J SHUTTLEWORTH ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 by mailing to her a copy thereof, enclosed in an envelope, postage prepaid, and by depositing same in the post office, directed to said attorney at the address above noted, the last known address of said attorney. 116 / z S l EILA R. GLASS.' G Subscribed and sworn to before me on July 23, 2010. fit attt?.." NOTAR, P LIC ~ARMON • Notary Public i ' •., Minnesota M Corn fission a Jan 31 2 015 CityofOakParkHeights • 14168 Oak Park Blvd N* Oak Parkfteigbts, MN * 55082 Phone: 651.4394439 * Fax: 651439.0574 Washington County Water Meter First Read Date: 9/24/2009 Present: Oak Park Heights Public Works Department James A. Lindner, Assistant Facilities Manager, Washington Co. Government Center North Wing - 1st Floor North Wing Main Old North Wing Main \ Type: Sensus SRH Type: Rockwell Size: 4" Size: 4" Meter # 69819410 Meter # 1245366 ECR# 63478094 ECR # NA 9/30 Read 448 6/22 Read 146743 Cooling Tower Old Cooling Tower Blow Down Meter Blow Down Meter Type: Sensus SRII Type: ABB ' kk /Size: 3/4" Size: 3/4" ` Meter # 67770629 Meter # 10893878 ECR# 61653952 ECR# NA 9/24 Read 33 6/22 Read 1017 Cooling Tower Old Cooling Tower Make -Up Meter Make -Up Meter /Type: Sensus SRII Type: ABB Size: 3/4" Size: 3/4" Meter # 67770631 Meter # 766679 ECR# 61653954 ECR# NA 9/24 Read 156 9/24 Read 6818 e n newts-inn 1 V/ 11 LUUV City of Oak Park Heights • 14168 Oak Park Blvd N * Oak ParkReights, MN* 55082 Phone: 651A39.4439* Fax: 651439.0574 Washington County Water Meter First Read Date: 9/24/2009 Present: Oak Park Heights Public Works Department James A. Lindner, Assistant Facilities Manager, Washington Co. Government Center South Wine - Basement South Wing Main Old South Wing Main "'\ Type: Sensus Type: Rockwell Size: 3" Size: 3" Meter # 70165372 Meter # 1195537 ECR# 63859937 ECR # NA 9/24 Read 1204 9/24 Read 67664 South Wing Irrigation Old South Wing Irrigation Type: Sensus IRR Type: Hersey Size: 2" Size: 2" Meter # 70046614 Meter # 51023F146 ECR# 63726839 ECR# NA 9/24 Read 568 9/24 Read 2497 4A r7 /nnnn I VI I IGUVV • City of Oak Park Heights • 14168 Oak Park Blvd N * Oak ParkHeights, MN * 55082 Phone: 651.439.4439 * Fax: 651439.0574 Washington County Water Meter First Read Date: 9/24/2009 Present: Oak Park Heights Public Works Department James A. Lindner, Assistant Facilities Manager, Washington Co. Government Center South Wing - 2nd Floor Cooling Tower Make Up Old Cooling Tower Make Up Type: Sensus SRII Type: Carlon Size: 3/4" Size: 3/4" Meter # 70720122 Meter # Could not read ECR# 65625436 ECR # NA 9/24 Read 1932 9/24 Read Not removed: Chemical Feed attached to meter Cooling Tower Old Cooling Tower Blow Down Meter Blow Down Meter Type: Sensus SRII Type: ABB Size: 3/4" Size: 3/4" V ) Meter # 67770653 Meter # 11766643 ECR# 61653976 ECR# NA 9/24 Read 646 9/24 Read 1006 A A /9 /1A/1f / GVV.7 I . , • C Ity of Oak Park Heights It 14168 Oak Park Blvd N* Oak ParkHeights MN* 55082 Phone: 651A39.4439* Far 651439.0574 Washington County Water Meter First Read Date: 9/24/2009 Present: Oak Park Heights Public Works Department James A. Lindner, Assistant Facilities Manager, Washington Co. Law Enforcement Center No access to old meters on 9/24 Level 1 Irrigation Old Irrigation Type: Sensus Type: Hersey Size: 1 1/2" Size: 2" Meter # 70718430 Meter # ECR# 65623922 ECR # 9/24 Read 313 6/22 Read 2981 Cooling Tower Blow Down u.'1 e 'Pi ii Old Cooling Tower Blow Down Type: Sensus SRII Type: ABB Size: 3/4" Size: 1" Meter # 67770639 Meter # ECR# 61653962 ECR# 9/24 Read 172 6/22 Read 2282 LP tv Cooling Tower Make Up Old Cooling Tower Make Up - 0 Type: Sensus PPM Type: Carton 'V /� Size: 2" Size: 2" vi Meter # 70046591 Meter v� r / Al - I ECR# 63726820 ECR # # N r- ,�,u, 9/24 Read 1002 6/22 Read 7567` 4 nn/nnnn IV/ ILLVVC/ 1 `C of Oak Park Heights 1 1 • 1 V * Oak Pa ei MN * 55082 14168 Oak Park Blvd N • rk H sits, Phone: 651439.4439 * Fax: 651439.0574 Washington County Water Meter First Read Date: 9/24/2009 Present: Oak Park Heights Public Works Department James A. Lindner, Assistant Facilities Manager, Washington Co. Law Enforcement Center No Access to old meters on 9/24 Level 2 Compound Meter OId Compound Meter Type: Sensus SRH Type: Hersey 9 Size: 3" Size: 3" Meter # 70165369 Meter # ECR# 63859934 ECR # N.A. 9/24 Read 3123 6/22 Read High FIow:2620 7 01 CFI ' 2-S Low Flow: 174 IN LINE AS OF 10/07/09 Bypass Meter OId Bypass Meter Type: No new meter > Type: Hersey 5 i. Lc-- Size: Size: 3 "' ON Meter # Meter # 1365968 L.? ECR# ECR# 9/24 Read 9/24 Read 33246 Fire Meter Old Fire Meter Type: Sensus SRII Type: Hayes Size: 3/4" Size: 1" Meter # 70007865 Meter # ECR# 63681201 ECR# 9/24 Read 7 6/22 Read 106 4 A h / /VIA IV! LOU U I n. i _ M1p o o v o Z C) I O n 1 > . 1 „ ;�Iha__� a C M 1 a it 0 04 OF 0 lt( t1. , - I tb a � 1, sis � I I � � "1 a a b o a 41 ly 1 n ii ~ ____ 4n n i a �� r i a b b 1 a 111111„1151 . 1_ 1 = E� 1 1 1 1 i 1 1 __ l 111011110b+ L ra 8 n "kit I U 1I I_ I , -- ---- ra 1 � _ ! aii ,r4 k l to 411114 P 1 1 G • "kW i III) !s'+ �i, A .__R 1111 n / 11 „ ! 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"aa V - ' • .t ' ' :' • i ( i, It il ) t , , , a. r• .• ' • t t , ' ", < — l': 11' ';' .,,' (.!,' a ,- ' • 'i ll • , t ii ii :. ' '''' • '• - — . . -.. .._ .. .p,. 11411V.TREL I PDX f.,„ I. o , ur • -0. 1; 1 r.AWTNFO CENTER stuwowectsobt I f ' ATTORNEYS AT LAW LOGAN & P.L.L.P. O ' RI E N B July 8, 2010 (r (( suite 100 :519 Eagle Point Boulevard - .ake Elmo, MN 55042 T LE MAURA J SHU T W ORTH -irm (651) 290 -6500 ASST WASHINGTON COUNTY ATTORNEY ax (651) 223-5070 :_Mail WASHINGTON COUNTY GOV'T CTR /Vebsi @Ilolaw.com 15015 62 STREET NORTH www.jlolaw.com PO BOX 6 STILLWATER MN 55082 ohn M. Kennedy, Jr. • Re: County of Washington vs. City of Oak Park Heights :ugene J. Flick 2harles E. Gilhn • County Attorney File No. CV- 2009 -2154 Vlark Fonken ` N. Re g Hier Our File No. 37024 (872) Mark George W. Kuehner )atti J. Skoglund' timothy S. Crom' Dear Ms. Shuttleworth: Lawrence M. Rocheford' ames G. Golembeck oseph E. Flynn' Marlene S. Garvis PLEASE TAKE NOTICE that on Friday, August 27, 2010, at 9:00 A.M., the ' rhomas L. Cummings undersigned will bring a motion for summary judgment herein on for hearing before :eonard J. Schweich g g the Honorable John C. Hoffman, District Court Judge, at the Washington County essica E. Schwie Government Center, 14949 62 Street North, Stillwater, MN 55082, or as soon iusan S.Tice rhomas J. Misurek thereafter as counsel may be heard. Matthew P. Bandt • Elisa M. Hatlevig Darn Koch Ver tr y ours Darwin n S. Williams yours, Mark K. Hellie Nancy M. Aboyan Daniel J. Stahley JARDINE, LOGAN & O'BRIEN, P.L.L.P. John R. O'Brien - Admitted in Wisconsin, emeritus Minnesota, retired �/" Alan R. Vanasek - Of Counse es G. Golembeck Gerald M. Linnihan - Retir Direct Dial: (651) 290 -6567 Some members also admitted to practice law in Wisconsin', North Dakota, South Dakota, and Iowa JGG:lls Shannon Banaszewski Enclosure Administrator Donald M. Jardine (1915 -2005) copy: Jerre F. Logan (1923 -1983) COURT ADMINISTRATOR WASHINGTON COUNTY GOV'T CTR 14949 62 ST. N STILLWATER MN 55082 Equal Opportunity Employer MAURA J SHUTTLEWORTH July 8, 2010 Page 2 blind copy: JUDY HOLST DEPUTY C ,ERKIFINANCE DIRECTOR CITY OF OAK PARK HEIGHTS 14168 OAK PARK BOULEVARD NORTH PO BOX`2007 STILLWA TER MN 55082 -3307 MARK A ROSSOW LITIGATION SUPERVISOR LMCIT l i 145 UNIVERSITY AVE W ST PAUL MN 55103 -2044 [11071183] via e-mail @ MRassow(at)LMC. orj' JARDINE ATTORNEYS AT LAW April 14, 2010 LOGAN P.L.L.P. O'BRIEN RIC JOHNSON CITY ADMINISTRATOR CITY OF OAK PARK HEIGHTS PO BOX 2007 Suite 100 STILLWATER MN 55082 -3007 8519 Eagle Point Boulevard Lake Elmo, MN 55042 Firm (651) 290-6500 JUDY HOLST Fax (651) 223 -5070 FINANCE DIRECTOR E -Mail CITY OF OAK PARK HEIGHTS Websi llolaw.com PO BOX 2007 www.jlolaw.com STILLWATER MN 55082 -3007 Re: County of Washington vs. City of Oak Park Heights John M. Kennedy, Jr. * Eugene J. Flick Our File No. 37024 (872) Charles E. Gillin * Pierre N. Regnier Mark A. Fonken * Dear Mr. Johnson and Ms. Holst: George W. Kuehner Patti J. Skoglund * Timothy S. Crom Lawrence M. Rocheford • Enclosed please find Defendant City of Oak Park Heights' Answers And Objections James G. Golembeck* To Plaintiffs Interrogatories — Set I. Joseph E. Flynn * Marlene S. Garvis * Thomas L. Cummings Leonard J. Schweich Please carefully review the answers to interrogatories and contact me if you feel we need to make any changes or add any additional information. Jessica E. Schwie Susan S.Tice Thomas J..Bandt If y ou are satisfied with the answers, please sign the document, have your signature Matthew P. Bandt * > > Elisa M. Hatlevig notarized and return them to m attention at your earliest convenience. Jason A. Koch Y Y Darwin S. Williams Mark K. Hellie Nancy M. Aboyan Please note I have prepared the document for Eric Johnson's signature as City Daniel J. Stahley Administrator. However, if you would prefer that Judy Holst sign them since she John R. O'Brien - Admitted provided most of the information for the answers, lease let me know and I will make in Wisconsin, emeritus Minnesota, retired the change. Alan R. Vanasek - Of Counsel Please do not hesitate to contact me if you have a y questions regarding the above - Some members also admitted to practice law in Wisconsin *, referenced matter. North Dakota, South Dakota, and Iowa Very truly yours, Shannon Banaszewski L c � E 1 .�` Administrator JARDINE, LOGAN & O'BRIEN, P.L.L.P. �I M E SS� � Donald M. Jardine (1915 -2005) �f:YV tic G 4' 14 J f O s 11,;' Jerre F. Logan (1923 -1983) 1 4"1-4 es G. Golembeck quel‘ {..�. Direct Dial: (651) 290 -6567 5 1,'!'"‘ • JG •lls Enclosure Equal Opportunity Employer STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: OTHER CIVIL County of Washington, Court File No. Plaintiff, vs. DEFENDANT CITY OF OAK PARK HEIGHTS' ANSWERS AND OBJECTIONS TO PLAINTIFF'S INTERROGATORIES — SET #1 City of Oak Park Heights, Defendant. TO: PLAINTIFF COUNTY OF WASHINGTON AND ITS ATTORNEYS: DOUG JOHNSON, COUNTY ATTORNEY WASHINGTON COUNTY, MN WASHINGTON COUNTY GOVERNMENT CENTER 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 Pursuant to the Rules of Civil Procedure for the above -named Court, Defendant City of Oak Park Heights submits the following Objections and Answers to Plaintiff's g g J Interrogatories, Set #1. All Answers are made without waiving or intending to waive, but to the contrary, intending to preserve and preserving: 1. All questions as to competency, relevancy, materiality, privileged and of evidence for any purpose in any subsequent proceeding or the trial of any action; 2. The right to object to the use of any of these Answers, or the subject matter thereof, in any subsequent proceeding or the trial of any action on any grounds. 3. The right to object on any ground at any time to a demand for further response to these or any other Interrogatories or discovery proceedings involving or relating to the subject matter of the Interrogatories herein. 4. The right to supplement and/or amend these Answers based upon the recollection of persons presently unavailable or the discovery of additional information. GENERAL OBJECTIONS Defendant objects to each Interrogatory to the extent that it: 1. Is overly broad and any attempt to respond would be unduly burdensome, expensive, harassing, and oppressive; 2. Plaintiff already possesses, or has equal access to, the information sought by the Interrogatories; 3. Seeks information protected by the attorney - client privilege or the work product doctrine, or which is otherwise protected against or privileged from disclosure by law or rule of Court; 4. Seeks information protected against disclosure as the mental impressions, conclusions, opinions, or legal theories of any attorney or other representative of Defendant City of Oak Park Heights. 5. Seeks confidential commercial information without offering adequate protection and/or against improper disclosure; and 6. Seeks information which is not relevant and is not likely to lead to the production of relevant evidence. 2 ANSWERS TO INTERROGATORIES INTERROGATORY NO. 1: Provide a full and detailed description in narrative form of the calculation the City used in producing a bill for water and sewer services for the Washington County Law Enforcement Center during the relevant time period. ANSWER: The County submits reads for the 7 meters at the LEC on a form provided by the City. The City subtracts the previous read from the current read to get the amount used. The use from the west meter, compound meter low flow and the compound meter high flow are added together to get the total usage for the building. The cooling blow down use is subtracted from the cooling tower in use. The net amount used from the cooling tower meters is deducted from the total building use. The use from the sprinkler is also deducted from the total building use. Water and sewer for the total building is calculated on the net total building use. The sprinkler and net use for the tower meters is billed for water only. The fire meter is a separate meter and is billed for water only. The total usage was for a 2 month period. The City was billing monthly at that time. The use is split and billed 1/2 in the current month and 1 /2 in the following month, i.e. read was June 30, 1/2 is billed as of June 30 and 1/2 is billed as of July 31. The rates for calculating water for 2005 was a monthly minimum charge of $7.50 for the first 5,000 gallons of water used, then $1.34 per 1,000 gallons of water used above 5,000 up to 16,000 gallons, then $1.76 per 1,000 gallons of water used above 16,000 gallons up to 33,000 gallons, then $2.11 per 1,000 gallons of water used above 33,000 gallons. The rates for calculating sewer for 2005 was a monthly minimum of $16.65 for up to 5,000 gallons of water used, then $3.40 per 1,000 gallons of water used above 5,000 gallons. INTERROGATORY NO. 2: With respect to the low flow meter: i. During the period March 1, 2005 to June 30, 2006, what was the total amount of water measured by the low flow meter? ii. What percentage of the total water used by the LEC during the period July 1, 2005 to June 30, 2006 was attributable to the amount of water that was measured by the low flow meter? iii. How many dollars of the total water and sewer bill charged to the County during the period July 1, 2005 to June 30, 2006 was attributable to the amount of water that was measured by the low flow meter? 3 ANSWER: i. The City did not read the meters. Based on reads submitted by Washington County, there was 24,346,000 gallons of water used. ii. Based on reads submitted by Washington County, 79% of the water used by the LEC during the period July 1, 2005 to June 30, 2006 was attributable to the low flow meter. iii. 79% of the charges would be attributable to low flow meter. INTERROGATORY NO. 3: How many of the digits in the low flow meter are to be read and recorded on the worksheet and used in calculating total water usage at the LEC? ANSWER: Reads are submitted to the City by Washington County. The City then uses the reads as submitted. INTERROGATORY NO. 4: The Water Meter Readings worksheet provided by the City to the County state "read meters to the nearest 1000 gallons." Does this mean that the low flow meter use component is multiplied by 1,000 to obtain the actual amount of water measured by the low flow meter? ANSWER: "Read meters to the nearest 1000 gallons" means just that —read meters excluding hundredths and tenths. i. If 5 -digit low flow meter readings are used to calculate the low flow meter use what is this low flow meter use multiplied by to obtain the actual amount of water measured by the low flow meter? ANSWER: Objection as to overly broad and vague. All reads were submitted by Washington u County. The City then utilizes the reads as submitted tt d for billing purposes. 4 INTERROGATORY NO. 4a: As reflected in Exhibits B, C, D, F, G, H, and I, attached hereto, the County reported 4 -digit current low flow meter reads. The City subsequently changed the 4 -digit readings on the worksheets to 5- digits both in transcribed current read columns and subsequent previous read columns. Provide in detail the factual basis in each instance for the City to change the County's 4 -digit reports to 5 digits, including what allowance was made for the fact that because the worksheet calls for readings to be made to the nearest 1,000 gallons the low flow meter use calculation must be multiplied by 1000 to determine actual use measured by the low flow meter. ANSWER: The meter rolled over from 9,866 to 10,300 on reads, submitted to the City, by the County dated February 28, 2005. INTERROGATORY NO. 4b: With respect to Exhibit J, K and L, provide in detail the factual basis for the City to change the County's April 30, 2006 current read entry of 34170 on the March - April, 2006 worksheet to a 4 -digit entry of 3417 in the previous read column of the May - June, 2006 worksheet. ANSWER: Unknown at this time. Discovery is continuing. INTERROGATORY NO. 5: Are all "previous read" worksheet entries and all "current read" worksheet entries for the low flow meter to be 4 digits and 4 digits only? If not, when would it be more or less than 4 digits? ANSWER: No. When the meter rolls over is would be 5 digits. 5 INTERROGATORY NO. 6: Using the attached Exhibits F and G, describe in full detail in narrative form the step by step calculation the City used in producing the water and sewer bill charged to the County for the month of September, 2005. ANSWER: See answer to Interrogatory No. 1 above. INTERROGATORY NO. 6a: Using the attached Exhibits H and I, describe in full detail in narrative form the step by step calculation the City used in producing the water and sewer bill charged to the County for the month of February, 2006. ANSWER: See answer to Interrogatory No. 1 above. INTERROGATORY NO. 6b: Using the attached Exhibits J, K and L, describe in full detail in narrative form the step by step calculation the City used for production of the water and sewer bill charged to the County for the month of June, 2006. ANSWER: See answer to Interrogatory No. 1 above. INTERROGATORY NO. 7: During the period March 1, 2005 to June 30, 2006, how many times and on what dates did the City receive indication that the low flow meter had rolled over? ANSWER: City The Cit does not know the actual date of the roll over, the City does not read or maintain the meters which are read and maintained by Washington County. The first indication the low flow meter rolled over was the March 1, 2005 timeframe. 6 INTERROGATORY NO. 8: For January - February 2005, as reflected on the attached Exhibit A, the County submitted a low flow meter current read of 0300. The City changed that reading to 10300 as reflected in the January - February 2005 worksheet attached hereto as Exhibit B. i. Why was a "1" placed in front of the reported reading of 0300? ii. Was the "1" an actual reading on the low flow meter, or was it placed before the 0300 to account for the roll -over of the meter? ANSWER: i. The "1" was placed in front of the reported reading as the meter had rolled over from a previous read of 9866. ii. Unknown. The City does not read or maintain the meters Discovery is continuing. INTERROGATORY NO. 9: For March - April, 2005, as reflected on the worksheet attached as Exhibit C, the County submitted a low flow current meter reading of 0650. As reflected on the worksheet attached as Exhibit D, the City changed that reading to 10650. Why was a "1" placed in front of the reported reading of 0650, and what was the actual current low flow meter reading for the period March - April, 2005. ANSWER: Washington County is responsible for reading and maintaining the meters and, therefore, the City cannot attest to the actual low flow meter reading for the period March — April 2005. The "1" was placed in front of 0650 to reflect the roll over of the meter. INTERROGATORY NO. 10: Using Exhibits C and D, describe in full detail in narrative form the step by step g p Y calculation the City used in producing the water and sewer bill charged to the County for the month of Y p g g April2005. 7 ANSWER: See answer to Interrogatory No. 1 above. INTERROGATORY NO. 11: For July - August, 2005, as reflected on the worksheet attached as Exhibit E, the County submitted a low flow current meter reading of 16102. This was a 5 -digit number and resulted in a nearly 10 fold increase in usage from the prior two month period. Did the City investigate this jump in water usage? If so, detail all efforts the City made to investigate this anomaly. ANSWER: The City has discovered no records of an investigation of water usage as concerns Washington County's LEC. The City does not read the meters and does not maintain the meters which are read and maintained by Washington County. Discovery is continuing. INTERROGATORY NO. 12: For September - October, 2005, as reflected on the worksheet attached as Exhibit F, the County submitted a low flow current meter reading of 2198. As reflected on the worksheet attached as Exhibit G, the City changed that reading to 21980. Provide the full detailed factual basis for the City changing the low flow meter reading from 2198 to the 5 -digit 21980. ANSWER: Discovery is continuing. INTERROGATORY NO. 13: For January - February, 2006, as reflected on the worksheet attached as Exhibit H, the County submitted a low flow current meter reading of 3057. As reflected on the worksheet attached as Exhibit I, the City changed the reading to 30570. Provide the full detailed factual basis for the City changing the low flow meter reading from 3057 to the 5 -digit 30570. ANSWER: Discovery is continuing. 8 City records indicate that the Utility Billing Clerk contacted Dave Beaver at Washington County LEC regarding the meter read. Based on the information supplied by the County, the Utility Billing Clerk then used the 30570 read for the February 28, 2005 read. INTERROGATORY NO. 14: On the March - April, 2006 worksheet, attached hereto as Exhibit J, the County submitted a current read for the low flow meter of 34170. On the May - June, 2006 worksheet, attached hereto as Exhibit K, the County submitted a low flow meter reading of 3893. Initially, the City placed a 34170 entry in the low flow meter previous read column of the May to June, 2006 worksheet. However, the City subsequently changed the entry in this previous low flow meter read column to the 4 digit 3417. i. State in full and complete detail why the City changed the entry in the May - June, 2006 previous low flow meter read column from the 5 -digit 34170 to the 4 -digit 3417. ii. Who made the change? ANSWER: Discovery is continuing. INTERROGATORY NO. 15: In the City's Resolution No. 09- 10 -39, attached to Defendant's Answer, the City concluded on page 7, Exhibit 31, which is the March - April 2006 worksheet attached hereto as Exhibit J, the City found that the low flow meter current reading entry of 34170 sent in by the Plaintiff was correct. However, on the May to June, 2006 worksheet, attached hereto as Exhibit L, the City changed the previous read entry of 34170 to 3417. Since the current read entry for the March - April, 2006 worksheet should be identical to the previous read entry for the May - June, 2006 entry, please state in full and complete detail, the factual basis for the apparent incongruity of the City's determination in the resolution that the low flow meter current read entry of 34170 for March - April, 2006 was correct and that the low flow meter previous read entry for May - June, 2006 of 3417 was also correct, and was the actual low flow meter previous read for May - June, 2006 3417? ANSWER: Discovery is continuing. Reads of water usage were submitted by Washington County. 9 INTERROGATORY NO. 16: In the City's Resolution No. 09- 10 -39, on page 7, Exhibit 3J, the City Council concluded that the May - June, 2006 billing was correct. This two -month period showed a use of 476 gallons of water attributed to the low flow meter which using the 1,000 multiplier translated to 476,000 gallons of water. The City Council also stated on page 7, Exhibit 31 of the resolution that the March - April, 2006 usage of 3,600 gallons of water attributed to the low flow meter, which using the 1,000 multiplier translated to 3,600,000 gallons, was correct. Did the City investigate the drop in water usage from 3,600,000 gallons for the period March - April, 2006 to 476,000 for the period May - June, 2006? If so, state in full and complete detail, the factual basis for this drop in usage and if the City did not investigate, state the factual basis for not investigating such a large drop in water usage. ANSWER: The City did not install, read or maintain the meters at the LEC. Discovery is continuing. There are no records of any investigation of any alleged drop in water usage. INTERROGATORY NO. 17: As reflected in Exhibits B, C, D, E, F, G, H, I, and J, if the City knew the low flow meter read to only 4 digits, why did the City, during the period of January 1, 2005 to June 30, 2006, change on the worksheets the County's recorded 4 -digit current low flow meter readings to 5 digits and provide the County with worksheets that had 5 -digit low flow meter previous read entries? ANSWER: Washington County is responsible to read and maintain the meters at the LEC. The City has no knowledge of how the meters were read or the make -up of those meters during that timeframe. Any changes reflected on the worksheets would be to reflect roll -over condition. INTERROGATORY NO. 18: Did the City ever discuss with County employees why it changed a 4 -digit low flow meter current read to 5 digits and then provided the next billing periods worksheet with a 5 -digit low flow meter previous read entry, and, if so, provide in full and complete detail what was discussed? 10 ANSWER: None. Discovery is continuing. INTERROGATORY NO. 19: Paragraph XIII of the Answer sets forth a defense of lack of subject matter jurisdiction claiming that a writ of certiorari is the proper vehicle for bringing this action. Please state in full and complete detail the factual basis for your contention that this matter is only reviewable by a writ of certiorari, including but not limited to any statute or ordinance that required the County to first bring its claim of unjust enrichment to the City. ANSWER: Objection. This Interrogatory is calling for a legal conclusion and/or attorney work product and/or mental impressions of counsel. Jurisdiction is a legal issue, not a factual one and, as such, this question is not calculated to lead to admissible evidence. INTERROGATORY NO. 20: Please state in full and complete detail the factual basis for your claim in paragraph XVII of the Answer that plaintiffs claims are barred by the doctrine of accord and satisfaction and/or payment. ANSWER: Objection. This Interrogatory is calling for a legal conclusion and/or attorney work product and/or mental impressions ressions of counsel. p Notwithstanding said objection, Washington County did pay in full all charges without reservation. INTERROGATORY NO. 21: Paragraph XIV of the Answer sets forth a defense of laches and/or estoppel. Please state in full and complete detail the factual basis for Defendant's contention that Plaintiffs claims are barred by the doctrine of laches and/or estoppel. 11 ANSWER: Objection. This Interrogatory is calling for a legal conclusion and/or attorney work product and/or mental impressions of counsel. Notwithstanding said objection, it is anticipated that the factual basis for Defendant's contention that Plaintiff's claims are barred by the doctrine of laches and/or estoppel is the fact that Washington County was responsible to install, maintain and read meters and did provide all the information utilized in calculating the charges. It is an axiom of equity that one must have clean hands. INTERROGATORY NO. 22: Please state in full and complete detail the factual basis for the contention in paragraph XVI of your Answer that Plaintiffs claims are barred since Plaintiff has a legal remedy at law, namely writ of certiorari, given that Plaintiffs suit is at law and a writ of certiorari sounds in equity. ANSWER: Objection. This Interrogatory is calling for a legal conclusion and/or attorney work product and/or mental impressions of counsel. INTERROGATORY NO. 23: Please state in full and complete detail the factual basis for the defense in paragraph XV of the Answer that Plaintiff's claims are barred by the doctrine of unclean hands. ANSWER: Objection. This Interrogatory is calling for a legal conclusion and/or attorney work product and/or mental impressions of counsel. Notwithstanding said objection, it is anticipated that the factual basis for Defendant's contention that Plaintiff's claims are barred by the doctrine of laches and/or estoppel is the fact that Washington County was responsible to install, maintain and read meters and did provide all the information utilized in calculating the charges. It is an axiom of equity that one must have clean hands. INTERROGATORY NO. 24: Please state in full and complete detail the factual basis for the contention in paragraph XX of the Answer that Plaintiff's Complaint must be dismissed for insufficiency of process. 12 ANSWER: Objection. This Interrogatory is calling for a legal conclusion and/or attorney work product and/or mental impressions of counsel. Notwithstanding said objection, service of the Summons and Complaint was performed by a Washington County employee and, as such, Plaintiff did not use a non -party to serve the Complaint, which is a violation of Minnesota Rules of Civil Procedure and Minnesota law. INTERROGATORY NO. 25: Please state in full and complete detail the contention in paragraph XIX of the Answer that all damages must be denied because of Plaintiffs own action or contributory fault. ANSWER: Objection. This Interrogatory is calling for a legal conclusion and/or attorney work product and/or mental impressions of counsel. Notwithstanding said objection, Washington County was responsible to install, maintain and read all water flow meters. Plaintiff's own action or contributory fault can be found in Washington County's actions in maintaining and reading the flow meters in question. INTERROGATORY NO. 26: Please state in full and complete detail the contention in paragraph XVIII of the Answer that Plaintiffs complaint fails to state a claim upon which relief may be granted. ANSWER: Objection. This Interrogatory is calling for a legal conclusion and/or attorney work product and/or mental impressions of counsel. See, Responses to Interrogatories 19 through 25. INTERROGATORY NO. 27: List the names, addresses, and job descriptions of employees who worked for the City during the period January 1, 2005 to the present on water billing. 13 1 ANSWER: Lisa Taube, Utility Billing Clerk (7 -99 to 11 -06) Responsible for utility billing and cash receipts Judy Holst, Deputy Clerk/Finance Director (4 -79 to Current) City of Oak Park Heights 14168 Oak Park Blvd North Oak Park Heights, MN 55082 -6476 Responsible for financial accounting of all City funds including enterprise funds. Supervises finance department which includes utility billing. Roxanne Mendoza, Accountant (12 -06 to 3 -07) Responsible for financial accounting and utility billing Judy Tetzlaff, Accountant (5 -07 to Current) City of Oak Park Heights 14168 Oak Park Blvd North Oak Park Heights, MN 55082 -6476 Responsible for financial accounting and utility billing Tom Ozzello, Public Works Director (8 -04 to 7 -09) Andrew Kegley, Public Works Director (PW Dir. 7 -09 to Current - Employment date 6 -7 -04) City of Oak Park Heights 14168 Oak Park Blvd North Oak Park Heights, MN 55082 -6476 Eric Johnson City Administrator 14 STATE OF MINNESOTA ) ) SS COUNTY OF WASHINGTON ) Eric Johnson, being duly sworn, deposes and says that he is the City Administrator of the City of Oak Park Heights, one of the Defendant(s) in the above - entitled cause, and that he verifies the foregoing Defendant City Of Oak Park Heights' Answers To Plaintiff's Interrogatories — Set #1 for and on behalf of said Defendant(s) and is duly authorized to do so; that certain of the matters stated in the foregoing Defendant City Of Oak Park Heights' Answers To Plaintiff's Interrogatories — Set #1 are not within the personal knowledge of deponent and that deponent is informed that there is no officer of Defendant, City of Oak Park Heights, who has personal knowledge of such matters; that the facts stated in said Defendant City Of Oak Park Heights' Answers To Plaintiff's Interrogatories — Set #1 have been assembled by authorized employees and counsel of Defendant, City of Oak Park Heights, and deponent is informed by said employees and counsel that the facts stated in said Defendant City Of Oak Park Heights' Answers To Plaintiff's Interrogatories — Set #1 are true and correct to the best of his /her knowledge. Eric Johnson City Administrator Subscribed and sworn to before me on Notary Public 15 • As to the form of these answers and any objections. Dated: JARDINE, LOGAN & O'BRIEN, P.L.L.P. By: PIERRE N. REGNIER (A.R. #90232) JAMES G. GOLEMBECK (A.R.# 179620) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8624 (651) 290 -6500 ATTORNEYS FOR DEFENDANT — CITY OF OAK PARK HEIGHTS 16 r • I ATTORNEYS AT LAW LOGAN & P.L.L.P. O'BRIEN March 29, 2010 Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042 DOUG JOHNSON Firm (651) 290 -6500 COUNTY ATTORNEY Fax (651) 223 -5070 WASHINGTON COUNTY GOV'T CTR E 1 Ma llolaw.com 15015 62 STREET NORTH �ww.jl 6 P BOX www.jlolaw.com 11 STILLWATER MN 55082 John M. Kennedy, Jr. • MAURA J SHUTTLEWORTH Eugene J. Flick • ASST WASHINGTON COUNTY ATTORNEY Charles E. Gillin' Pierre N. Regnier WASHINGTON COUNTY GOV'T CTR Mark A. Fonken " George W. Kuehner 15015 62 STREET NORTH Patti lund * PO BOX 6 Timothy thy S. S. Crom ` Lawrence M. Rocheford • STILLWATER MN 55082 James G. Golembeck * Joseph E. Flynn * Marlene S. Garvis • Thomas L. Cummings Re: County of Washington vs. City of Oak Park Heights Leonard J. Schweich Our File No. 37024 (872) Jessica E. Schwie Susan S.Tice Thomas J. Misurek Dear Counsel: Matthew P. Bandt * Elisa M. Hatlevig Jason A. Koch Enclosed herewith and served upon you via United States Mail, please find Darwin S. Williams Mark K. Hellie Defendant City of Oak Park Heights' Responses To Plaintiffs Requests For Nancy M. Aboyan Daniel J. Stahley Admissions. John R. O'Brien - Admitted in Wisconsin, emeritus Thank you. Minnesota, retired Alan R. Vanasek - Of Counsel Very truly yours, Some members also admitted to North Dakota, South Dakota, JARDINE, LOGAN & O'BRIEN, P.L.L.P. and Iowa Shannon Banaszewski r �� Administrator es G. Golembeck Donald M. Jardine (1915 -2005) Direct Dial: (651) 290 -6567 Jerre F. Logan (1923 -1983) JGG:lls Enclosure Equal Opportunity Employer March 29, 2010 Page 2 blind copy: ERIC JOHNSON CITY ADMINISTRATOR PO BOX 2007 STILLWATER MN 55082 -3307 MARK VIERLING, ESQ ECKBERG LAMMERS BRIGGS WOLFF & VIERLING, PLLP 1809 NORTHWESTERN AVE — STE 110 STILLWATER MN 55082 -7521 MARK A ROSSOW LITIGATION SUPERVISOR LMCIT 145 UNIVERSITY AVE W ST PAUL MN 55103 -2044 [11071183] • I STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: OTHER CIVIL County of Washington, Court File No. Plaintiff, vs. DEFENDANT CITY OF OAK PARK HEIGHTS' RESPONSES TO PLAINTIFF'S REQUESTS FOR ADMISSIONS City of Oak Park Heights, Defendant. TO: PLAINTIFF COUNTY OF WASHINGTON AND ITS ATTORNEYS: DOUG JOHNSON, COUNTY ATTORNEY WASHINGTON COUNTY, MN WASHINGTON COUNTY GOVERNMENT CENTER 15015 62" STREET NORTH PO BOX 6 STILLWATER MN 55082 COMES NOW, Defendant City of Oak Park Heights, for its Responses to Plaintiff's Requests For Admissions, states as follows: RESPONSE TO REQUESTED ADMISSIONS 1. Admit that during the relevant time period the water use readings obtained from the meters monitoring water flow at the LEC and recorded on the worksheets are read to the nearest 1,000 gallons; and, therefore, the water use calculated from the readings on the worksheet must be multiplied by 1000 to obtain the actual total amount of water used at the LEC for any two month billing period. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and/or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 2. Admit that the use measured by the low flow meter is a component of the total use formula and, therefore, subject to the 1,000 multiplier in determining total water use at the LEC. RESPONSE: Deny. It is not understood as to what is meant by the total use formula. Additionally, use measured by the low flow meter is read by Washington County during the relevant time period. 3. Admit that the low flow meter at the County's LEC contains 7 digits but only the first 4 digits which are delineated by being white are to be read and used in the total water use calculation. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and/or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 4. Admit that because the low flow meter is to be read to only four digits, the use of a 5- digit number for the low flow meter reading means the low flow meter was read to the nearest 100 gallons would provide a low flow meter use component to the total use calculation that is 10 times greater than the actual amount of water that flowed through the low flow meter unless the calculation to determine total water use is modified in a way that the low flow meter use component is multiplied by 100 rather than 1,000. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 2 5. Admit that City records show the low flow meter reading for the County LEC on y g Y January 12, 2005 was 9866. RESPONSE: Admit that the City records show that the low flow meter reading submitted by the County on January 12, 2005 was 9866. 6. Admit that the low flow meter is an odometer -type meter that provides a totalization measurement of water that has flowed through the low flow meter. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 7. Admit that the low flow meter rolls over to a reading of 0001 when the reading of the 4 white digits on the low flow meter that are to be read passes 9999. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and/or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 8. Admit that City records indicate that the worksheet for the January - February, 2005 time period shows the County reported a current low flow meter reading of 0300. RESPONSE: Admit that the City records indicate that the County reported a low flow meter reading of 0300 for the January — February 2005 time period. 9. Admit that the City Utility Clerk or other employee of the City placed a "1 (one) in front of the County's 0300 reported January - February, 2005 current low flow meter reading resulting in the City using a current low flow meter reading of 10300 for the January - February, 2005 worksheet and a previous low flow meter reading of 10300 for. the March - April, 2005 worksheet in calculating the March to April, 2005 water use at the LEC. 3 RESPONSE: Admit that the worksheets for reported flows for January — February 2005 and March — April 2005 speak for themselves. 10. Admit that the actual LEC current low flow meter reading for the time period January - February 2005, was 0300. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the e Y. o p g Y water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 11. Admit that City records show that on April 30, 2005, the County entered on the March - April, 2005 worksheet a low flow meter current reading of 0650. RESPONSE: Admit that the City records for the March — April 2005 worksheets speak for themselves. This answering Defendant objects to the term "current" as referring to 2005 records. 12. Admit that the City Utility Clerk or other employee of the City placed a "1" (one) in Y Y Yp front of the County's 0650 reported March - April, 2005 low flow meter reading, resulting in the City using a current reported low flow meter reading of 10650 for the March - April, 2005 worksheet and a previous low flow meter reading of 10650 for the May - June, 2005 worksheet in calculating the May to June, 2005 water use for the LEC. RESPONSE: Deny. The City of Oak Park Heights is not responsible for reading the meters for the period in question and is not aware of the actual low flow meter reading, but received the information from Washington County who read the meters. 13. Admit that the actual LEC current low flow meter reading on April 30, 2005 was actually 0650. 4 RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and/or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 14. Admit that City record's show that the County reported a current low flow meter reading of 2198 on the September to October, 2005 worksheet. RESPONSE: Admit that the City records for September to October 2005 worksheets speak for themselves. Objection as to what is meant by the word "current" referring to 2005 records. 15. Admit that instead of accepting the County's low flow meter reading of 2198 for the September - October, 2005 period, the City Utility Clerk or other employee of the City requested that the County re -read the low flow meter. RESPONSE: This answering Defendant admits that the City Utility Clerk requested the County to re -read its meter reading for the September — October 2005 period. This answering Defendant specifically objects to any characterization obtained in Admissions Request No. 15. 16. Admit that in re- reading the low flow meter for October 31, 2005, the County reported to the City the low flow meter's entire seven -digit number of 2,197,790. RESPONSE: Admit. 17. Admit that the City Utility Clerk or other employee of the City made the decision to use the five -digit number of 21,980 for the current low flow meter reading for the September - October 2005 water usage calculation. RESPONSE: Admit that a five -digit number 21980 was used for the September — October 2005 water usage calculation. 5 Objection as to what is meant by the word "current" referring to 2005 records. 18. Admit that the City in calculating the LEC's total water use for the September - October, 2005 period used 1,000 as the multiplier for the total water use calculation thereby not making allowance for using the 5 -digit low flow meter number of 21980 to determine the low flow meter use component in the total use calculation. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and/or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 19. Admit that the City records show the County reported the current low flow meter reading on January - February, 2006 worksheet to be 3057. RESPONSE: Admit that Washington County reported the low flow meter reading on January — February, 2006 to be 3057. Objection as to what is meant by the word "current" referring to 2006 records. 20. Admit that the City Utility Clerk or other employee of the City changed the County's reported current low flow meter reading on the January - February, 2006 worksheet from the 4 -digit 3057 to the 5 -digit 30570. RESPONSE: Deny. 21. Admit that the City in calculating the LEC's total water use for the January to February, 2006 period used 1,000 as the multiplier in the calculation for total water use for that billing cycle thereby not making allowance for using the 5 -digit low flow meter number of 30570 to determine the low flow meter use component in the total use calculation. RESPONSE: Deny. Objection to as what is referred to as making allowance. The Request appears to be incomprehensible and, therefore, is denied. 6 • 22. Admit that for each billing cycle, during the time frame January 1, 2005 to June 30, 2006, the City when calculating the LEC's total water use used 1,000 as the multiplier in the total use calculation even though it may have used 5 -digit low flow meter readings to determine the low flow meter use component of the total use calculation. RESPONSE: Deny. 23. Admit that City records show the County reported a current low flow meter read on the March - April, 2006 worksheet of 34170. RESPONSE: Admit that City records show the County reported a low flow meter read for March - April, 2006 of 34170. Objection as to what is meant by the word "current" referring to 2006 records. 24. Admit that City records show that the County reported a current low flow meter reading of 3893 on the May - June, 2006 worksheet. RESPONSE: Admit that the County reported a low flow meter reading of 3893 for the May — June 2006 time period. Objection as to what is meant by the word "current" referring to 2006 records. 25. Admit that the LEC current low flow meter reading for June 30, 2006 was 3893. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the Y P g Y water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 26. Admit that the City used the 4 -digit 3417 on the May - June, 2006 worksheet as the previous low flow meter reading instead of the 34170 the County reported as the current flow meter read on the March - April, 2006 worksheet because the low flow meter is intended to be read to four digits. 7 • RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and/or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 27. Admit that during the entire period July 1, 2005 through April, 2006 the City used 5- digit low flow meter readings to calculate the low flow meter water use component of the total water use calculation for the LEC for each two month billing period. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 28. Admit that even though 5 -digit low flow meter readings were used by the City to calculate low flow meter use component of the total water use calculation during the time period July 1, 2005 through April, 2006 the City did not multiply the low flow meter use component of the total water use calculation by 100 for the LEC for each two month billing period but instead continued to treat the low flow meter use component as if it were calculated from 4 digit readings in the 1000 gallons. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and/or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 29. Admit that during the period July 1, 2005 to June 30, 2006 City records show that total water use at the LEC increased nearly 10 times from the use prior to July 1, 2005. RESPONSE: Deny. The total water use at the LEC is set forth in the information provided by Washington County to the City as set forth in the water use worksheets. 8 30. Admit that after the April 20, 2006 low flow meter reading, the City began to use 4- digit low flow meter readings to calculate the low flow meter use component of the total water use calculation for the LEC. RESPONSE: Deny all calculations of usage were based upon information received from Washington County. Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and/or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 31. Admit that after the City began to use 4 digit low flow meter readings to calculate the low flow meter use component of the total water use calculation at the LEC, the total water use at the LEC showed a nearly 10 fold decrease in total water use at the LEC after April 30, 2006. RESPONSE: Deny all calculations of usage were based upon information received from . Washington County. Y Deny. For the relevant time period, Washington County maintained and read the water meters in q uestion. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 32. Admit that if the low flow meter use component of the total water use calculation for the LEC is calculated from low flow meter readings of 5 digits instead of 4, the total use calculation employed by the City for the LEC must be modified in such a way that the low flow meter use component must be multiplied 100 instead of 1,000 to obtain a correct total water use at the LEC. RESPONSE: Deny all calculations of usage were based upon information received from Washington County. Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and/or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of 9 Oak Park Heights has no knowledge as to how the meters were read and, therefore, must deny this request. 33. Admit that the City had no indication that low flow meter rolled over during the period March 1, 2005 to June 30, 2006. RESPONSE: Deny. 34. Admit that the City required the County to install new water meters at the LEC in June and July of 2009. RESPONSE: Admit. 35. Admit that one of the reasons for the installation of the new water meters in June and July of 2009 was to decrease the possibility of human error in the reporting and calculation of water meter readings. RESPONSE: Deny. The primary reason for the installation of new water meters in June and July 2009 was so that the City of Oak Park Heights would be able to read the meters and could obtain the information directly by way of telemetric reporting as is done in the rest of the City. 36. Admit that on June 5, 2009, the Compound Meter in the County LEC was replaced with a water meter selected by the City. RESPONSE: Admit. 37. Admit that during the period January 1, 2005 to June 30, 2006 there were no repairs or modifications made to the low flow meter nor did the City request any repairs of or modifications be made to the low flow meter. RESPONSE: Deny. For the relevant time period, Washington County maintained and read the water meters in question. Any information and /or inaccuracy of the meter reads and functionality of the meters is the responsibility of Washington County. The City of 10 • Oak Park Heights has no knowledge as to how the meters were maintained, repaired or modified and, therefore, must deny this request. The City of Oak Park Heights has no information or facts regarding City requests to repair or modify Washington County meters during the relevant time period 38. Admit that the City P selected the Compound Meter which was installed as part of the initial LEC water metering system and was used until June, 2009. RESPONSE: Deny. The City of Oak Park Heights has no knowledge of who selected the Compound Meter which was installed as part of the initial LEC water metering system. DATED: Mze, JARDINE, LOGAN & O'BRIEN, P.L.L.P. By: I 0 C '• � ��� Y� � P R . N. REGNIER (A.R. #90232) i S G. GOLEMBECK (A.R.# 179620) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8624 (651) 290 -6500 ATTORNEYS FOR DEFENDANT — CITY OF OAK PARK HEIGHTS 11 • STATE OF MINNESOTA ) ) ss. Our File No. 37024 (872) COUNTY OF WASHINGTON ) LORI L. STORK of the City of Lake Elmo, County of Washington, in the State of Minnesota, being duly sworn, says that on March 29, 2010, she served the annexed Defendant City of Oak Park Heights' Responses To Plaintiffs Requests For Admissions on: DOUG JOHNSON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 MAURA J SHUTTLEWORTH ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 by mailing to them a copy thereof, enclosed in an envelope, postage prepaid, and by depositing same in the mail, directed to said attorneys at their addresses above noted, the last known addresses of said attorneys. L Lori L. Stork Subscribed and sworn to before me this March 29, 2010. cy ` i r c . --Q-- - Q1'(4; Nbtary Public Michael Jean Rossing �8 Notary Public Minneso My Cn islton Eat' 1.31 -2012 tv, ti STATE OF MINNESOTA DISTRICT COURT COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT Case Type: OTHER CIVIL County of Washington, Plaintiff, vs. DEFENDANT CITY OF OAK PARK HEIGHTS' ANSWER TO PLAINTIFF'S COMPLAINT City of Oak Park Heights, Defendant. COMES NOW, Defendant City of Oak Park Heights, for its Answer to Plaintiff's Complaint, states and alleges as follows: I. Defendant City of Oak Park Heights denies each and every allegation set forth in Plaintiffs Complaint unless admitted and /or qualified herein. II. Defendant City of Oak Park Heights states that all times it was acting in good faith. III. Defendant City of Oak Park Heights admits Paragraphs 1 and 3 of Plaintiff's Complaint. IV. Defendant City of Oak Park Heights states that as to Paragraph 2 of Plaintiff's Complaint, it hereby admits that Defendant City of Oak Park Heights is a political subdivision of the State of Minnesota and is located in Washington County. Defendant City of Oak Park Heights denies the remainder of Paragraph 2 of Plaintiffs Complaint and puts Plaintiff to its strictest proof therein. V. Defendant City of Oak Park Heights states that as to Paragraphs 4 and 5 of Plaintiff s Complaint, it hereby admits that Defendant City of Oak Park Heights had in place water rates for all users including the Plaintiff and that the rates indicated in Paragraphs 4 and 5 of Plaintiff's Complaint are correct. However, the rates are charged on a per month basis. VI. Defendant City of Oak Park Heights states it is without sufficient information to form a belief as to the truth or accuracy of allegations contained in Paragraphs 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 28, 32, 35 and 43 of Plaintiffs Complaint and, therefore, denies same and puts Plaintiff to its strictest proof therein. VII. Defendant City of Oak Park Heights denies Paragraphs 6, 26, 27, 31, 37, 38, 40 and 44 of Plaintiffs Complaint. VIII. Defendant City of Oak Park Heights states that as to Paragraphs 10, 19, 24, 25, 29, 30, 33, 34, 39 and 41 of Plaintiffs' Complaint, this answering Defendant denies same and puts Plaintiff to its strictest proof therein. Further, it states that any worksheets referred to are not attached to Plaintiffs Complaint. However, any written documents /worksheets would speak for themselves and this answering Defendant objects to any characterization of said worksheets. 2 IX. Defendant City of Oak Park Heights further states that as to Paragraph 10 of Plaintiff's Complaint, this answering Defendant denies same and specifically states that City staff did not give direction to County staff on how to read the County's own meters. X. Defendant City of Oak Park Heights states that as to Paragraph 36 of Plaintiffs Complaint, this answering Defendant denies same and puts Plaintiff to its strictest proof therein. This answering Defendant does admit that the City Clerk questioned County staff on various readings and did request the County to re -read meters. XI. Defendant City of Oak Park Heights states that as to Paragraph 42 of Plaintiff's Complaint, this answering Defendant denies same and puts Plaintiff to its strictest proof therein. This answering Defendant further states that the Resolution of the City of Oak Park Heights dated October 13, 2009 speaks for itself. XII. Defendant City of Oak Park Heights states that as to Paragraph 45 of Plaintiff's Complaint, this answering Defendant admits that Plaintiff gave notice to the City of its alleged claim of overcharges. This answering Defendant further states that a true and correct copy of the certified Resolution of the City of Oak Park Heights dated October 13, 2009 is PY Y g attached hereto. The Resolution speaks for itself and lists the documentation reviewed by the City Council, the arguments heard by the City Council, evidence submitted and contains the findings of the City of Oak Park Heights, which findings and resolution of denial are fully set forth in said Resolution dated October 13, 2009. 3 XIII. Defendant City of Oak Park Heights states that Plaintiff's claims are barred since this Court lacks jurisdiction. Specifically, Plaintiff's claims are reviewable only by writ of certiorari. XIV. Defendant City of Oak Park Heights states that Plaintiffs claims are barred by the doctrines of laches and /or estoppel or waiver. XV. Defendant City of Oak Park Heights states that Plaintiff's claims are barred by the doctrine of unclean hands. XVI. Defendant City of Oak Park Heights states that Plaintiff's claims are barred since Plaintiff has a legal remedy at law, namely writ of certiorari. XVII. Defendant City of Oak Park Heights states that Plaintiff's claims are barred by the doctrine of accord and satisfaction and/or payment. XVIII. Defendant City Heights Oak Park Hei hts states that Plaintiffs claims fail to state a claim which can be provided relief under the laws of the State of Minnesota and, therefore, must be barred. 4 XIX. Defendant City of Oak Park Heights states that Plaintiff's claims must be denied since any damages, if any, were caused by Plaintiff's own action or contributory fault. XX. Defendant City of Oak Park Heights states that Plaintiff's Complaint must be dismissed for insufficiency of service of process. XXI. Defendant City of Oak Park Heights denies that it is responsible for any and all damages alleged by Plaintiff. g g Y WHEREFORE, Defendant City of Oak Park Heights prays that Plaintiff's pretended cause of action and claims be dismissed with prejudice, and that this answering Defendant be awarded its costs, disbursements and attorneys fees in defending this action. DATED: January 28, 2010. P.L.L.P. JARDINE, LOGAN & O ' BRIEN, .L.L. . By: wo PIE r.• N. REGNIER (A.R. #90232) . 1 S G. GOLEMBECK (A.R.# 179620) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN 55042 -8624 (651) 290 -6500 ATTORNEYS FOR DEFENDANT — CITY OF OAK PARK HEIGHTS 5 ACKNOWLEDGMENT Defendant City of Oak Park Heights hereby acknowledges in accordance with Minn. Stat. § 549.211 that costs, disbursements and reasonable attorney and witness fees may be awarded to an opposing party or parties pursuant to Minn. Stat. § 549.211. • N. REGNIER (A.R. #90232) . -1 1 S G. GOLEMBECK (A.R. #179620) 6 1 CCi' tha TlitS is a - e d C CrYCCt Cotes) og • L ornoa( aOCLt ± C f i t £ of tk e Oak ect RESOLUTION NO. 09-10-39 -t i 1 s C ti ( 1 �L ( . CITY OF OAK PARK HEIGHTS putvj c tr cr WASHINGTON COUNTY, MINNESOTA A RESOLUTION MAKING FINDINGS OF FACT AND DETERMINING THE APPEAL /CLAIM SUBMITTED BY WASHINGTON COUNTY TO THE CITY OF OAK PARK HEIGHTS RELATIVE TO WATER BILLING FOR THE PERIOD OF TIME OF 2004 - 2008 WHEREAS, the City has received by letter dated August 26, 2009, an appeal filed to the City Council pursuant to City ordinance under the water billing rate policies of the City, appealing an initial determination by the City Finance and Utility Department that Washington County is not entitled to any refund for an alleged over - billing of water provided to the Government Center buildings (LEC) by the City of Oak Park Heights for calendar years 2004- 2008; and, WHEREAS, the Washington County Government Center, and in particular the County Law Enforcement Center is a building that is served by City of Oak Park Heights water and sewer. The details of the systems at the County Law Enforcement Center affecting the measurement and usage of Water and Sewer Services are as follows: The County Law Enforcement Center had seven meters that were read in order to determine the amount of water and sewer that was used at the County. Washington County for the periods of time in issue read the meters and sent the reads to the City via facsimile or phone. The City calculated the water usage based on the reads sent in from the County personnel. The meters were read every other month and billed monthly, i.e. meters read in February were billed 1 /2 of the usage for February and 1 /2 of the usage for March. Beginning January 1, 2007 the meters are read quarterly and the usage is billed quarterly The meters were changed by directive of the City to City issued meters in July 2009 and are now read electronically by the City. Washington County had the following meters for the period of time in issue: #1 West Meter #2 Compound Meter Low Flow #3 Compound Meter High Flow #4 Fire Meter #5 Sprinkler Meter #6 Cooling Tower In Meter #7 Cooling Tower Blow Down Meter The #1 West Meter and the #2 and #3 Compound Meters are added together to get the total water use for the LEC. The #7 Cooling Tower Blow Down Meter usage is subtracted from the #6 Cooling Tower In Meter usage. The #5 Sprinkler Meter and the net usage from the Cooling Tower Meters are water only meters and the usage is deducted from the total usage of the compound meters. The #4 Fire Meter is separate and is billed for water only. Example: Previous Current Read Read Use #1 West Meter 31,298 31,298 0 #2 Compound Meter Low Flow 10,300 10,650 350 #3 Compound Meter High Flow 16,373 16,817 444 Total usage Compound Meters 794 Less - Deduction Meters #5 Sprinkler Meter 1,633 1,633 0 water only #6 Cooling Tower In Meter 2,837 2,854 17 #7 Cooling Blow Down Meter 859 859 - 0 Total usage Cooling Tower Meters 17 water only Charge for water and sewer 777 Charge for water only 1 #4 Fire Meter 88 90 2 water only Washington County is questioning the reads for the Cooling Tower Meters for 2004, the Compound Meter Low Flow in 2005 and 2006, the Sprinkler and Cooling Tower Meters in 2006, the Compound Meter Low Flow in 2007, and the West Meter in 2008. Complicating matters further the County Meters for the period in time in issue were a mixed match of meters from differing manufacturers. The meters tend to read in whole numbers by the thousands of gallons used but some had numbers or columns assigned for reads in volumes of less than thousands. Some meters having as few as 4 digits some up to 7. Meters were also during the period of time in issue rebuilt or replaced by the County without contact with the City Utility department and without confirming reads before and after. Reads reported by the County came in from a number of county staff as opposed to one person being assigned to the task. Reporting errors could occur from human error depending on the meter read, the number of digits reported, the accuracy of the reading, the accuracy of the meter and any number of circumstances. 2 City staff would be entirely dependant upon the accuracy of the county reported reads of all meters in order to prepare the billings. All meters as installed within the Government Center (LEC) for the period of time in issue were installed by the County at their direction and under their supervision. WHEREAS, in order to make the computations from the readings that would be provided, all seven meters needed to be read in order to determine the total amount of water that was used at the Law Enforcement Center. The meter is read, but is a back up meter so may not have usage every quarter. The meters were read once every two months until December 31, 2006 and thereafter were read on a quarterly basis. The west meter and two compound meters were added together to get the total water usage for the LEC. The cooling tower blow down usage was subtracted from the cooling tower in usage. The sprinkler meter and the net usage from the cooling tower meters are water -only meters and are deducted from the total usage of the west meter and compound meters. The fire meter is separate and billed for water only. Compound meters are those capable of reading flows at both high and low pressure and delivery levels. WHEREAS, Washington County has submitted a claim to the City of Oak Park Heights projecting and hypothesizing that county staff misread the water meters from 2004 -2008. The County accounting department is making a projection anticipating that as many as 19,000,000 gallons were misread by the County staff relative to beginning and ending meter readings as provided to the City. They have submitted a claim to the City for $11 4,745 for water and sewer services allegedly not used. WHEREAS, the County submitted documentation to the City Council consisting of the following: 1. Letter August 26, 2009 from James Schug, County Administrator 2. Exhibit #1 - Summary of Issues with projections 3. Exhibit #2- Listing of City invoices for the LEC 4. Exhibit 3a - Water meter reading worksheet- Jan-Feb 2005 (county hand written note) 5. Exhibit 3b - County staff new reading for compound meters 3/16/05 6. Exhibit 3c - Water meter reading worksheet- Mar -Apr 2005 (county editorial attached) 7. Exhibit 3d - Water meter reading worksheet- May -June 2005 (county editorial attached) 8. Exhibit 3e - Water meter reading worksheet- Jul -Aug 2005 (county hand written note & editorial attached) 9. Exhibit 3f - Water meter reading worksheet- Sep -Oct 2005 (county hand written note & editorial attached) 10. Exhibit 3g - Water meter reading worksheet- Nov -Dec 2005 (county hand written note & editorial attached) 11. Exhibit 3h - Water meter reading worksheet- Jan-Feb 2006 (county hand written note & editorial attached) 3 12. Exhibit 3i - Water meter reading worksheet- Mar -Apr 2006 (county editorial attached) 13. Exhibit 3j - Water meter reading worksheet- May -Jun 2006 (county hand written note & editorial attached) 14. Exhibit 3k - Water meter reading worksheet- Jul -Aug 2006 (county hand written note & editorial attached) 15. Exhibit 4 Calculated (Projected) total LEC Water usage 12/03 -12/08 16. July 24, 2009 letter to Harley Will from Judy Hoist, City Finance Director 17. May 15, 2009 letter to Harley Will from Judy Ho1st, City Finance Director 18. October 8, 2009 letter from Harley Will to the City Council WHEREAS, the City Staff submitted documentation to the City Council consisting of the following: 1. Identification of Meters current and prior and locations at LEC County Building (3 pages) 2. City Finance and Utility Department - Washington County Utility billing Response to August 26, 2009 Letter. 3. Exhibit A- Summary of issues identified with invoice calculations and meter readings (Meter reading date 03/08/04 4. City Exhibit B - Response to Washington County Exhibit 3a and Exhibit 3b — Readings for Jan — Feb 2005 5. City Exhibit C - Response to Washington County Exhibit 3c — Readings for March — April 2005 6. City Exhibit D - Response to Washington County Exhibit 3d — Readings for May — June 2005 7. City Exhibit E - Response to Washington County Exhibit 3e — Readings for July — August 2005 8. City Exhibit F — Response to Washington County Exhibit 3f — Readings for September — October 2005 9. City Exhibit G — Response to Washington County Exhibit 3g — Readings for November — December 10. City Exhibit H — Response to Washington County Exhibit 3h — Readings for January — February 2006 11. City Exhibit I — Response to Washington County Exhibit 3i — Readings for March — April 2006 12. City Exhibit J — Response to Washington County Exhibit 3j — Readings for May — June 2006 13. City Exhibit K - Response to Washington County's Exhibit 1 Issue(s) Identified with Calculation and Meter Readings — Meter Reading Date 6/30/08 — 14. City Exhibit L - April 9, 2008 Letter to Washington County, 5 -13 -08 Facsimile Transmittal to Dottie, Financial Services, 2006 — 2007 LEC Adjustment Calculations 15. City Exhibit M — May 15, 2009 Letter to Harley L. Will, Accounting & Finance Director, Washington County 4 NOW THEREFORE BASED UPON THE RECORD BEFORE THE CITY AND ALL OF THE FILES RECORDS AND PROCEEDINGS HEREIN THE CITY COUNCIL MAKES THE FOLLOWING: FINDINGS OF FACT 1. The County claim relative to water and sewer usage fees is projected upon a number of fact premises which they assume to be correct in order to present their claim. Those fact premises hypothesized in their claim are as follows: 1.) that County staff for a period of 2004- 2008 consistently misread the meters, either sequentially or individually, in reporting volumes of water used verbally reporting errant readings to the City staff of the City of Oak Park Heights; 2.) the County claim is hypothesized on a principal or premise that the meters, as read by the County staff were consistently functioning, calibrated and accurate; 3.) the County claim relative to the overcharge does not come from the County department relative to the reading and supervision of the meters within the County building, but comes from the bookkeeping or accounting department, and then only as a result of filing for a refund of sales tax with the State of Minnesota. 2. The County accounting department submitting the claim has no new evidence relative to their claim. Their claim is based upon a hypothesis of projected, inaccurate readings by County staff. The projection is based upon the assumption that the County could not have used the volume of water that the County staff initially reported to the City of Oak Park Heights which precipitated the billings received. 3. The meters in issue all have a finite number of digits in their reading process, i.e. four through seven numbers in digit, and then the meter rolls over. Consequently, if a meter is based upon a 5 -digit recording, after the 5- digits in the meter are exhausted, the meter would roll over again and it would begin anew at 00001. The County staff never kept records with regard to how many times the meters would roll over in the process of making their reads. County staff could have made and reported reads from less than whole numbers in those meters that recorded usages at less than 1000 gallons. 4. That the City of Oak Park Heights has received other claims with the County Law Enforcement Center with regard to excessive volumes of usage when inmates would block sewer pipes or otherwise take vandalism type actions so as to create spillages and overflows within the wastewater and water supply systems of the County. 5. That the County acknowledges that the seven meters that they rely upon within the LEC for reading water usage, have never been calibrated, nor demonstrated to be accurate during the period of time of 2004 -2008. County meters have been replaced or rebuilt by County vendors or staff that did not notify City personnel of a change of meter or report before and after readings, period of disconnection or the like. 6. That at times throughout the period of 2004 -2008, City staff questioned the County with regard to several readings that were being reported, and asked County staff to verify the readings 5 that had initially been reported to the City staff. At all such times, the County staff either did not respond, responded that the readings as originally provided were accurate or supplied new numbers. 7. That the County's claim is based upon hypothesis and projection and there are no recorded meter readings that were provided mechanically or electronically, and the only records relative to readings supplied contemporaneously with the period of time in which the readings were being made, with all of those being were verbally reported from the County staff to the City staff pursuant to the billing process then in effect. 8. That the City did in billing periods correct readings from the County staff that appeared to be inaccurate to City staff throughout the period of time of 2004 -2008 correcting what appeared to be errors in readings, and giving credit to the County for water usage reported but determined by City staff to be incorrect. 9. As to the County projections and hypothesis of its claims the City Council determines: Exhibit 3A and Exhibit 3B — Readings for January — February 2005. As an example, City staff questioned readings for January through February 2005. The original compound meter flow read for February was sent in by the County as 16,287. Read on 12/31/04 was 9,866. The City questioned the meter read, and the County then re -read the meter and the City received a new read of 0300. The meter had obviously rolled over when it hit 9,999 gallons, and the February read was 10,300. The usage was 434. The billing was determined by City staff to be correct. The City Council determines that there is no reliable evidence to dispute this determination. Exhibit 3C — Readings for March — April 2005. For the readings of March — April 2005, the compound meter flow read for April was sent in by County staff to be 0650. Because the meter rolled over on the January — February 2005 to 10,000, the meter for April was 10,650. Usage was 350. Billing was correct. The City Council determines that there is no reliable evidence to dispute this city staff determination. Exhibit 3D - Readings from May — June 2005. Compound meter flow read for June was sent in at 10,968. Usage was 350. City staff determined that the meter readings and the billings generated therefore was correct. The City Council determines that there is no reliable evidence to dispute this city staff determination. Exhibit 3E — Readings for July — August 2005. The read for the compound meter flow that was sent in by the County was 16,102. The City did not question the County read at that point; nor did the County staff question its read of the meter or the usage amount. Use was up for the low flow meter but was also up at the same time for the compound high flow meter. The high flow meter usage was February 2005 at 530; April 2005 at 444; June 2005 at 823; and August 2005 at 1,260. As is demonstrated by these reads, the meter fluctuates and no one questions the read from the County staff perspective. If a read resulting in a negative usage would have been submitted, the City utility system would have identified the read and it would have been investigated. However, the County staff making the reads and supplying the data precluded that 6 by the nature of the reports that they made. The City Council determines that there is no reliable evidence to dispute this city staff determination. Exhibit 3F — Readings from September — October 2005. The compound meter flow read by the County staff that was sent in was 2,198, and then 2,197,790. The city utility clerk assumed not use the last two digits and rounded to 21,980. The usage was 5,878. The August use was 5,134 and consistent with past usage; therefore the utility clerk did not question the read. The read was not unreasonable compared to the August dates. The compound meter flow was 1,106, which was less than the August flow, but more than the previous three reads. The County staff also did not question the usage. . The City Council determines that there is no reliable evidence to dispute this city staff determination on this matter. Exhibit 3G — Readings from November — December 2005. The read for the compound meter was sent in from the County staff at 25,080. Usage was 3,100. Again, this was not unreasonable compared to the August and October reads if anything was considered less than the previous two usage amounts. The compound meter flow was 417; it was also lower than the August and October reads. Again, if a negative usage had been calculated or reported by the County staff, the City would have verified the County staff reads and reinvestigated the problem. The City Council determines that there is no reliable evidence to dispute this city staff determination on this matter. Exhibit 311 — Readings from January — February 2006. The read for the compound low flow meter was sent in by the County staff at 30,570. The utility billing clerk questioned the read and thought it was too high. Usage would have been 5,490. The utility billing clerk for the City verified the read with Mr. Dave Beaver at the Washington County LEC on March 16, 2006. The utility billing clerk was informed by the County staff as of that date was 31,135. The County was billed based upon the read as sent in at 30,570. The City staff has supplied the read notes received from the County staff and the notes verifying same. The City Council determines that there is no reliable evidence to dispute this city staff determination on this matter. Exhibit 3I — Readings from March — April 2006. The read for the compound meter flow was sent in by the County at 34,170. The utility billing clerk did not question the read as the usage was lower than the February 2006 usage. Usage was at 3,600. The City Council determines that there is no reliable evidence to dispute this city staff determination on this matter. Exhibit 3J — Readings from May — June 2006. The reads were corrected by the Washington County staff. The billing was correct at that time. At no time did the County staff request that the City adjust for previous incorrect reads sent in by the County staff, or question the billing sent out by the City. The City Council determines that there is no reliable evidence to dispute this city staff determination on this matter. 10. At the time that the City was completing the 2007 annual audit, the City staff discovered an error that had been made by the City on the County water and sewer billings for 2006 and 2007. Adjustments were made to the March 31, 2008 utility billings to reflect the billing errors • for 2006 and 2007. These adjustments matched the revised request in Washington County Exhibit 2, from June 2006 — December 2007. A letter dated April 9, 2008 was sent to the County by the City's accountant informing them of the error and enclosing the current utility billings with the water and sewer adjustments. The City received no response from the County at that time. On March 11, 2009, the City staff met with Ms. Ann Hudson from the Washington County accounting department who provided the City with the County's documentation for the first time for a claim for a refund at the LEC's utility bills, which the City's staff reviewed and responded to. Exhibit 19 is a copy of the City letter to Washington County dated April 9, 2008. The June 30, 2008 reads as sent in from Washington County show usage on the west meter and the compound meters of 1,862, and a deduct amount from the cooling tower and cooling blow down meters of 135. The total usage of water and sewer is 1,727. 11. That the County's delay in presenting their claim and not correcting any perceived errors in the readings of the various meters over the period of several years has made it impossible for anybody to verify the following: 1.) whether or not the meters were actually misread by the County staff; 2.) whether or not the meters were actually functioning in the manner that they were projected to do; 3.) whether or not there are any leaks, faults, or other failures in the system that could have precipitated an error. 12. That the County has engaged in several construction projects from 2004 -2008 which could have easily impacted water usage, as well as the accuracy and deployment of meters within the County's meter systems within the LEC. The potential for those errors and anomalies are not accounted for in the County's projection. County building improvements and modifications thru out the same period of time could also have impacted readings and usage 13. There are no affidavits signed by County personnel actually charged with the task of conducting the readings and submitted to the City of Oak Park Heights acknowledging any errors in meter -reads by County staff. 14. That the County has not supplied the City with reasonable documented evidence that indicates in any regard that the meter readings implemented by the County staff were in error, or precipitated an error in billing when reported to City staff. 15. City staff acted promptly and reviewed billings reasonably when reported by County staff, questioning them when appropriate, and making adjustments and credits to the County for water usage caught by the City staff, which appeared to be an anomaly and incorrect. 16. At times County staff did not respond to City staff on a timely basis when City staff questioned reads from the various meters and systems implemented by the County on their premises, being their meters, and read by their personnel. That the error by the County by not responding correctly to City staff, re reading meters when requested to do so, or responding to the City when asked to perform certain functions relative to meter readings has precluded any opportunity to reasonably reevaluate this claim for the period of time in issue. 17. That the County has delayed to the prejudice of the City in making this claim on a timely basis, and has done so based upon hypothesis and projection as opposed to data and evidence. 8 • That there is no evidence to support the accuracy of the County's hypothesized claim. 18. That the City staff has reviewed the county materials reasonably requesting background data and information where available. BE IT RESOLVED BY THE CITY COUNCIL FOR THE CITY OF OAK PARK HEIGHTS AS FOLLOWS: That the request of Washington County for a refund in utility charges for the period of time of 2004 to 2009 is denied. PASSED BY THE CITY COUNCIL FOR THE CITY OF OAK PARK HEIGHTS THIS I ThAY OF CSC i 2009 j i i �� David Beaudet, Mayor Eric Johnson, city Ad inistrator f i 1 9 , STATE OF MINNESOTA ) ) ss. Our File No. 37024 (872) COUNTY OF WASHINGTON ) LORI L. STORK of the City of Lake Elmo, County of Washington, in the State of Minnesota, being duly sworn, says that on January 28, 2010, she served the annexed Defendant City of Oak Park Heights' Answer To Plaintiffs' Complaint on: DOUG JOHNSON via fax: (651) 430 -6163 COUNTY ATTORNEY and U.S. Mail WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 GEORGE KUPRIAN ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 MAURA J SHUTTLEWORTH ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 KARI A LINDSTROM ASST WASHINGTON COUNTY ATTORNEY WASHINGTON COUNTY GOV'T CTR 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 by faxing and mailing to them a copy thereof, enclosed in an envelope, postage prepaid, and by depositing same in the mail, directed to said attorneys at their addresses above noted, the last known addresses of said attorneys. L Lori L. Stork Subscribed and sworn to before me this Jan 28, 2010. N Public NANCY S. MASON ` - r NOTARY PUBLIC - MINNESOTA My Commission Expires Jan. 31, 2010 JARDINE ATTORNEYS AT LAW LOGAN & P.L. L. P. O'BRIEN January 28, 2010 Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042 Firm (651) 290 -6500 DOUG JOHNSON via fax: (651) 430 -6163 Fax (651) 223 -5070 COUNTY ATTORNEY and U.S. Mail E -Mail WASHINGTON COUNTY GOV'T CTR jiolawi jlolaw.com Website law.com 15015 62 STREET NORTH PO BOX 6 STILLWATER MN 55082 Gerald M. Linnihan * John M. Kennedy, Jr. * Eugene J. Flick * GEORGE KUPRIAN Charles E. Gillin * Pierre N. Regnier ASST WASHINGTON COUNTY ATTORNEY Mark en George W. Kuehner WASHINGTON COUNTY GOV'T CTR Geor Patti J. Skoglund 15015 62 STREET NORTH Timothy S. Crom * Lawrence M. Rocheford * PO BOX 6 James G. Golembeck * Joseph E. Flynn * STILLWATER MN 55082 Marlene S. Garvis * Thomas L. Cummings Leonard J. Schweich MAURA J SHUTTLEWORTH Jessica E. Schwie ASST WASHINGTON COUNTY ATTORNEY Susan S.Tice WASHINGTON COUNTY GOV'T CTR Thomas J. Misurek Matthew P. Banat * 15015 62 STREET NORTH Elise M. Hatlevig Jason A. Koch PO BOX 6 Darwin S. Hellie Williams Mark STILLWATER MN 55082 K Hellie Nancy M. Abovan Daniel J. Stahlev KARI A LINDSTROM John R. O'Brien - Admitted m Wisconsin, emeritus ASST WASHINGTON COUNTY ATTORNEY Minnesota, retired WASHINGTON COUNTY GOV'T CTR Alan R. Vanasek - Of Counsel 15015 62 STREET NORTH Some members also admitted PO BOX 6 to practice law in Wisconsin *, STILLWATER MN 55082 North Dakota, South Dakota, and Iowa Re: County of Washington vs. City of Oak Park Heights Shannon ratnas2ewsk Adminis trator Our File No. 37024 (872) Administrator II Donald M. Jardine (1915 -2005) Dear Counsel: Jerre F. Logan (1923 -1983) Enclosed herewith and served upon you via United States Mail, please find Defendant City of Oak Park Heights' Answer To Plaintiffs' Complaint. Equal Opportunity Employer January 28, 2010 Page 2 Thank you. Very truly yours, JARDINE, LOGAN & O'BRIEN, P.L.L.P. am-: . Golembeck iirect Dial: (651) 290 -6567 JGG:lls Enclosure blind copy: ERIC JOHNSON CITY ADMINISTRATOR PO BOX 2007 STILLWATER MN 55082 -3307 MARK VIERLING, ESQ ECKBERG LAMMERS BRIGGS WOLFF & VIERLING, PLLP 1809 NORTHWESTERN AVE — STE 110 STILLWATER MN 55082 -7521 MARK A ROSSOW LITIGATION SUPERVISOR LMCIT 145 UNIVERSITY AVE W ST PAUL MN 55103 -2044 [11071183] . , ‘ City of Ili 14168 Oak Park Blvd N* Oak ParkHeigbts. MN* 55082 Phone; 651439.4439 * Pax 651439.0574 Washington County Water Meter First Read Date: 9/24/2009 Present: Oak Park Heights Public Works Department James A. Lindner, Assistant Facilities Manager, Washington Co. Government Center North Wing - 1st Floor North Wing Main Old North Wing Main Type: Sensus SRH Type: Rockwell Size: 4" Size: 4" Meter # 69819410 Meter # 1245366 ECR# 63478094 ECR # NA 9/30 Read 448 6/22 Read 146743 Cooling Tower Old Cooling Tower Blow Down Meter Blow Down Meter Type: Sensus SRII Type: ABB Size: 3/4" Size: 3/4" Meter # 67770629 Meter # 10893878 ECR# 61653952 ECR# NA 9/24 Read 33 6/22 Read 1017 Cooling Tower Old Cooling Tower Make -Up Meter Make -Up Meter Type: Sensus SRII Type: ABB Size: 3/4" Size: 3/4" Meter # 67770631 Meter # 766679 ECR# 61653954 ECR# NA 9/24 Read 156 9/24 Read 6818 i . i 1Vf11CVVV City , �r of Oak darkHet 14168 Oak Park Blvd N * Oak ParkHeights, MN * 55082 Phones 651.439A439* Fauc 651439.0574 Washington County Water Meter First Read Date: 9/24/2009 Present: Oak Park Heights Public Works Department James A. Lindner, Assistant Facilities Manager, Washington Co. Government Center South Wing - Basement South Wing Main Old South Wing Main Type: Sensus Type: Rockwell Size: 3" Size: 3, Meter # 70165372 Meter # 1195537 ECR# 63859937 ECR # NA 9/24 Read 1204 9/24 Read 67664 South Wing Irrigation Old South Wing Irrigation Type: Sensus IRR Type: Hersey Size: 2" Size: 2" Meter # 70046614 Meter # 51023F146 ECR# 63726839 ECR# NA 9/24 Read 568 9/24 Read 2497 ll A/7 /nhAA IV / /ILVVS City of Oak Park Heights 14168 Oak Park Blvd N * Oak Pad:He€ghts, MN' 55082 Phone 651.439.4439 * Far 651439.0574 Washington County Water Meter First Read Date: 9/24/2009 Present: Oak Park Heights Public Works Department James A. Lindner, Assistant Facilities Manager, Washington Co. Government Center South Wing - 2nd Floor Cooling Tower Make Up Old Cooling Tower Make Up Type: Sensus SRII Type: Carlon Size: 3/4" Size: 3/4" Meter # 70720122 Meter # Could not read ECR# 65625436 ECR # NA 9/24 Read 1932 9/24 Read Not removed: Chemical Feed attached to meter Cooling Tower Old Cooling Tower Blow Down Meter Blow Down Meter Type: Sensus SRII Type: ABB Size: 3/4" Size: 3/4" Meter # 67770653 Meter # 11766643 ECR# 61653976 ECR# NA 9/24 Read 646 9/24 Read 1006 .nnnnnn 101 11 LlAJV City of Oak Park Heights 14168 Oak Park Blvd N * Oak Parkileights, MN * 55082 Phone: 651A39:4439 Fay 651439.0574 Washington County Water Meter First Read Date: 9/24/2009 Present: Oak Park Heights Public Works Department James A. Lindner, Assistant Facilities Manager, Washington Co. Law Enforcement Center No access to old meters on 9/24 Level 1 Irrigation Old Irrigation Type: Sensus Type: Hersey Size: 1 1/2" Size: 2" Meter # 70718430 Meter # ECR# 65623922 ECR # 9/24 Read 313 6/22 Read 2981 Cooling Tower Blow Down Old Cooling Tower Blow Down Type: Sensus SRII Type: ABB Size: 3/4" Size: 1" Meter # 67770639 Meter # ECR# 61653962 ECR# 9/24 Read 172 6/22 Read 2282 Cooling Tower Make Up Old Cooling Tower Make Up Type: Sensus PPM Type: Carlon Size: 2" Size: 2" Meter # 70046591 Meter # ECR# 63726820 ECR# 9/24 Read 1002 6/22 Read 7567 4 A/7l,r r%n i yr r rcvvy C ity of Oak Park Heights Nip 14168 Oak Park Bled N * Oak ParkHeights, MN *55082 Phone: 651.439.4439 * Fa= 651439.0574 Washington County Water Meter First Read Date: 9/24/2009 Present: Oak Park Heights Public Works Department James A. Lindner, Assistant Facilities Manager, Washington Co. Law Enforcement Center No Access to old meters on 9/24 Level 2 Compound Meter OId Compound Meter Type: Sensus SRH Type: Hersey Size: 3" Size: 3" Meter # 70165369 Meter # Ker-Y)) 1 1- ECR# 63859934 ECR # N.A. 9/24 Read 3123/ 6/22 Read High Flow:2620 Low Flow: 174 IN LINE AS OF 10/07/09 Bypass Meter Old Bypass Meter Type: No new meter Type: Hersey Size: Size: 3" Meter # Meter # 1365968 ECR# ECR# 9/24 Read 9/24 Read 33246 Fire Meter OId Fire Meter Type: Sensus SRII Type: Hayes Size: 3/4" Size: 1" Meter # 70007865 Meter # ECR# 63681201 ECR# 9/24 Read 7 6/22 Read 106 n n rnnnn iwl,cuuu i a i s o a o 0 0 + Igo II 0 . 1 11, , i :, 3 = 1 ; Nr _ , 1 - , -- ° m A it lL C „ i 1 CL 0 0 0 0 _ go n - i it_ I sag _1 ' -i 3 g e O a a n a o 1 f "1 bi AN y °1111. � ..' i.,,,, a 1 i 1 1 o. ,i ; Si iii ......;. ,... ......_ a ° o n . 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'' • i • _ — I ., . i i , -Q- ' b � L, j i a _ .a _ I • Y 4 4 i l � _ i It L / / � irf, _ - tk ! ii. /r" �� � Et } I li q r a. ll t � ! i't j / f / � � it i o _ Cot g tower 84 l E ll -\ �,,, "� •`/ la 2 � ) i blo sawn ke =, •I { a r �a — — met $ t ail i . 1 I j6' _ 1 , .t q , t a t• t _. i i it ; _ _.. - I fi Cooling tower • y Y '!1iE , : i 1. -- - . _. - ' i ` f make up meter 6_ llvf it - ''''''' t 1 r3 � ; Y tp f k 1 tr f itil li-litiiiii ril. 1 Il '' i l{ i i 6 V tl i i , 4 Y ' t 1 It t ; I f ii sili illii I, lid , i ;i ;, — f t Y i ` i i E E � i !,. :3 F ` S i :..._ i � 4 r 1 ` 2 7 E. 1 • I•' i l• -' ' ti ti . A 7i 1 • r II ti - A ! NW. LET. I IAN '^ '•� W ASNIOTgs CPNiv "' ,.1 " -� ,, yr • ra J �f !Ww �n o I • Iw I " I I LAW ENFORCEMENT CENTER anEW�TESw+am� I I " ' "` _,...6„,, r� • JARDINE .� ATTORNEYS AT LAW P.L.L.P. \ �, O'BRIEN January 12, 2010 Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042 GEORGE KUPRIAN, ESQ Firm (651) 290 -6500 ASSISTANT WASHINGTON COUNTY ATTORNEY Fax (651) 223 -5070 WASHINGTON COUNTY GOVERNMENT CENTER E-Mail 15015 — 62 ST N ))lolaw@jlolaw.com Web P 0 BOX 6 www.jlolaw.com STILLWATER MN 55082 Gerald M. Linnihan * MARK VIERLING, ESQ Euge e J. Flick � y'Jt ECKBERG LAMMERS BRIGGS WOLFF & VIERLING, PLLP Charles E. Groin * 1809 NORTHWESTERN AVE — STE 110 Pierre N. Regnier Mark A. Fonken STILLWATER MN 55082 -7521 George W. Kuehner Patti J. Skoglund Timothy S. Crom • Re: 37024(872) Lawrence M. Rocheford' James G. Golembeck * County of Washington v. City of Oak Park Heights Joseph E. Flynn * Marlene S. Garvis • Thomas L. Cummings Leonard J. Schweich Gentlemen: Jessica E. Schwie This letter is a Letter of Confirmation confirming the informed consent given for this Susan S.Tice Thomas J. Misurek office to represent the City of Oak Park Heights in the above litigation. This letter is Matthew P. Bandy Elisa M. Hatlevig written pursuant to Rule 1.7(b)(4) of the Minnesota Rules of Professional Conduct. Jason A. Koch Darwin S. Williams Mark K. Hellie As I have advised both of you, our office represents a great number of defendants, all of Nancy M. Aboyan Daniel J. Stahley which are involved with the Minnesota Gang Strike Force. One of the numerous named John R. O'Brien - Admitted defendants in that litigation that this office is representing is Washington County. Mr. in Wisconsin, emeritus Kuprian is familiar with that litigation and he knows that that litigation has absolutely Minnesota, retired nothing to do with water or sanitary sewer rates. Alan R. Vanasek - Of Counsel Some member also admitted This is to confirm that you have both consented on behalf of your clients to have our law to practice law in Wisconsin ", office represent the City of Oak Park Heights in the above litigation, while at the same North Dakota, South Dakota, and Iowa time our law office would continue to represent Washington County in that other litigation involving the Minnesota Gang Strike Force. Shannon Banaszewski Administrator I appreciate your consent given. If there is any additional information that you need in Donald vi. Jardine (1915 -2005) this regard, please advise. Jerre F. Logan (1923 -1983) Equal Opportunity Employer GEORGE KUPRIAN, ESQ /MARK VIERLING, ESQ January 12, 2010 Page 2 With this consent we will be representing the City of Oak Park Heights in the above litigation. Very truly yours, J k LOGAN & O'BRIEN, P.L.L.P. ere /Pro Pierre N. Regnier Direct Dial: (651) 290 -6563 PNR:slf Copy: Mark Rossow, LMCIT Claims (LMCIT Claim No: 11071183) (Sent Via E -Mail to: rnrossow cr,lrnnc.org) Brian Gaviglio, LMCIT Claims (LMCIT Claim No: 11071183) (Sent Via E -Mal to: bgaviglio@lmnc.org) ITY OF OAK PARK HEIGHTS ATTN: ERIC JOHNSON CITY ADMINISTRATOR P 0 BOX 2007 STILLWATER MN 55082 -2007 \ Vas h m gton t� Office of the Washington • • ,:( ' , County Attorney c ounty ` Doug Johnson County Attorney January 6, 2010 Mark J. Vierling Eckberg Lammers 1809 Northwestern Avenue Stillwater, MN 55082 RE: County of Washington vs. City of Oak Park Heights County Attorney File No. CV -2009 -2154 Your File No. 01501 -19306 Dear Mr. Vierling: This letter is in response to your two December 29, 2009 letters concerning the above referenced matter. First, as discussed in our telephone conversation, you may have until January 29, 2010 to serve your answer to the County's complaint. Secondly, I do not share your contention that a writ of certiorari to the Minnesota Court of Appeals is the mandated method for carrying this action; contrary to your argument otherwise, the law makes clear that a direct action in the district court is proper vehicle to effect this matter. I readily admit that my initial, reflexive thought was to bring this action on a writ of certiorari; but, after closer study of the matter, I thought better of it. In its simplest terms, the County's suit against the City is for money damages for services provided or in this case not provided by the City in its proprietary capacity and is predicated on the common law principle of unjust enrichment or money had and paid. The County's suit bears no resemblance to the case cited by you, Naigle Outdoor Advertising,7nc. v. Minneapolis Community Development Agency, 551 N.W. 2d 235 (Minn, Ct. App. 1996), but is nearly identical to the following cases brought on direct action in the district court: Panton v. Duluth Gas and Water Co. 52 N.W. 527 (Minn. 1892); Sloan v. City of Duluth, 259 N.W. 393 (Minn. 1935); and Knutson Hotel Corp, v. City of Moorhead, 84 N.W. 2d 626 (Minn. 1957). Interestingly, even Naigle indirectly gainsays your argument that cert is the required method for bringing this action. As you undoubtedly recall, the Plaintiff in Naigle brought two causes of action against the Minneapolis Community Development Agency. The first was predicated on the Minnesota Uniform Relocation Act and the second on the common law theory of conversion. While the Court dismissed for lack of subject matter jurisdiction the action brought under the Relocation Act (holding that a writ of certiorari was the proper way to proceed in that instance), it decided the conversion claim on the merits, the implication being, of course, that the Court did have subject matter jurisdiction of the conversion claim. The significance to this case lies in the fact that while conversion and unjust enrichment are different causes of action they both have common law underpinnings and should be brought by direct action and Law Enforcement Center • 15015 62 Street North - P. 0. Box 6, Stillwater, Minnesota 55082 -0006 Phone: 851 -430 -6115 • Criminal Fax: 651 -430 -8117 • Juveni a Fax: 651 - 4430.6184 Civil Fax: 651.4306163 • Victim Witness Fax: 651 - 430- 6160.TTY: 651 -430 -6246 www.co.washington.mn.us Equal Employment Opportunity / Affirmative Action • "formed" in the district court. Although it is true that the County brought its claim to the City Council, it did so as a courtesy and at the behest of the City Administrator in the hopes of avoiding a lawsuit. While nominally bringing the claim under the aegis Minnesota § 412.271, the purpose of that particular statute is to define the obligations of a city council sitting as a board of audit and not a quasi-judicial body. As the Minnesota Supreme Court stated in Lund v. Village of Princeton, 85 N.W. 2d 197 (Minn. 1957), section 412.271 was not intended to make the council a tribunal for assessing damages. There exists a profusion of principles and outcomes that militate against your argument that the Court of Appeals is the proper forum for the County's action, which will be brought to the fore should you decide to proceed with a "12.02(a) motion ". See, e.g. Normania Twp. v. Yellow Medicine County, 286 N.W. 981 (Minn. 1939). However, because attorneys are a tendentious lot when it comes to their client, I would venture that had the County — brought this matter on a writ of certiorari, you probably would have argued that the district court was the proper forum for the lawsuit. Such is the nature of the profession and brings to mind the old Cossack aphorism describing the difference between communism and capitalism: "Under capitalism, man exploits man. Under communism just the opposite." But, I digress. Finally, with regards to alternative dispute resolution, I haven't been invested with any authority to settle this matter and have yet to discuss ADR parameters with the County Administrator. However, at this incipient stage in the process, I cannot share the pessimism reflected in your letter that the parties have some how crossed the Rubicon and that settlement is an impossibility. While I cannot say with certainty, I don't believe the County's position is so implacable that it would not be amenable to participating in some sort of non - binding process that would allow for issues to be developed in a more sanguine and less adversarial setting, thus, allowing parties to construct a possible framework for amicable settlement such as the neutral evaluation your letter suggests. On the other hand, binding arbitration holds no appeal whatsoever it being little different than a trial but without some of the evidentiary safeguards that a trial setting would afford. As stated to you in our conversation, I will probably be out of the Office for a good part of February through April; but, as you can deduce from the complaint, Kari and Maura are also attorneys of record on this case so you may to deal with any of us at any time during the pendency of the case. Very truly yours, DOUG JOHNSON, COUNTY ATTORNEY W GTON UNTY, MINNESOTA George Kuprian Assistant County Attorney GK/vk cc: Jim Schug Doug Johnson January 6, 2009 Response to Washington County Summons dated 12/28/09. Judy Hoist, Deputy Clerk /Finance Director City of Oak Park Heights 1. Correct. 2. Correct. 3. Correct. 4. Yes (per month) 5. Yes (per month) 6. During the relevant time frame, Plaintiff's water usage at the LEC was monitored by the Plaintiff and meters were read by the Plaintiff and submitted to the Defendant for billing of water and sewer. Seven meters were read by the Plaintiff; #1 west meter, #2 compound meter low flow, #3 compound meter high flow, #4 fire meter, #5 sprinkler meter, #6 cooling tower in meter, #7 cooling blow down meter. 7. Correct. The Plaintiff was also billed separately for water only for the cooling tower meters; cooling tower in read less the cooling tower blow down equals the water used and billed. 8. I have never physically seen the meters, only pictures of some of the meters. Meters were purchased and installed by the Plaintiff. 9. I have no knowledge of who at the County reads the meters. 10. I have no knowledge of if or how the Plaintiff's staff was or is trained to read the meters. The City supplied worksheets to the County to record the meter reads. I have no personal knowledge of the City staff giving direction to the County staff on how to read meters. 11. Correct. 12. Correct. 13. The City enters "previous reading" on the worksheet that was originally submitted to the City by Washington County. The manner for determining the bill is correct. 14. Yes unless the meter rolled over to the ten thousands, i.e. previous read was 9,998 and current read is 0100, the current read is actually 10,100. 15. Correct, although the read rolled over to 10,000; therefore, read is 10,001. 16. Correct. 17. That is one method. With our old utility billing system, the system would not calculate usage unless the 10, xxx was entered for the period that the meter rolled over. The Utility Billing Clerk would have to add the 1 for the 10,000 onto the read in order to calculate the correct usage. The Clerk would then carry over that read to the next reading period and so forth. 18. It would be obvious if you have a previous 4 -digit read of 9,999 and now have a current 4 -digit read of 0300 that the meter rolled over to 10,300. Continuing will the 10,000 would also be logical assuming the same person is reading the meter or the persons reading the meter are trained. At no time did the person or persons reading and submitting the reads question the City on the reads or usage or the meter roll over. The City did not and does not knowingly manipulate meter readings. 19. Correct. 20. Yes, the meter rolled over to 10,000, usage is correct at 434. Usage from 9866 to 10,000 is 134 plus the 300 reported. 21. There was no negative use calculated for the period March through April 2005. The January through February's low flow meter read was actually 10,300 with the meter rolling over. The low flow meter read for March through April was actually 10,650; which is shown on the City's water use calculations. 22. The 5 -digit reads were correct and usage was correct. Actual reads were in the 10,000 even though the meters only read 4- digits. 23. It would be obvious if you have a previous 4 -digit read of 9,999 and now have a current 4 -digit read of 0300 that the meter rolled over to 10,300. Continuing will the 10,000 would also be logical assuming the same person is reading the meter or the persons reading the meter are trained. At no time did the person or persons reading and submitting the reads question the City on the reads or usage or the meter roll over. The City did not and does not knowingly manipulate meter readings. 24. There was no negative calculation for the period May through June 2005. The actual reads of 10,650 and 10968 for the low flow meter were correct and reflect a correct use based on information from the County. 25. The City relies on accurate reads from the County. If the four digits to read are clearly distinguishable as they are presented on a white background and the three digits which are not read are on a black background as stated in #8, the County should have sent in a 4 digit read, at which time the City would have known the read was in the 10,000 and the read would have been entered as 11,600. 26. Because the City had been recording a 5 -digit read since February 2005 when the meter rolled over, the City did not question the County's 5 -digit read. The City used the read received from the County as being correct. The County did not question the usage or the bill. 27. The City acted in good faith and assumed the County reads were correct. It has been 5 years since the alleged error occurred. The City caught and corrected an error in 2006 and 2007, recalculated the water and sewer usage, and contacted the County regarding the adjustment to their billing. No response was received from the County at that time regarding the correction nor was there any indication from the County as to incorrect reads for the low flow meter. The City had no way of knowing the reads were incorrect. The County had ample opportunity to review the meter reads and report any discrepancies or incorrect reads to the City. 28. The City believed the issue was settled and the reads were correct as the County did not dispute any usage or reads when they received the corrected billings for 2006 and 2007. 29. Correct. 30. Correct. 31. The City Utility Billing Clerk questioned the initial read sent in by the County and then was given the seven digit number of which she used 5- digits for the October 2005 read. The Utility Billing Clerk would not have known what the meters look like nor would she have known the last three digits were to be dropped when sending in the reads. The City Utility Billing Clerk relies on the County to submit the correct reads. 32. The City relies on the reads submitted by Washington County as accurate reads. The City has no way of knowing if a meter is rebuilt, replaced or altered; which could account for usage discrepancies. 33. As stated previously, the City simply had a read of 10,000 after the meter reached 9,999 and continued with the 5 -digit (10,000) read. The City used reads submitted by the County. The usage was not unreasonable compared to the previous 2 months usage. 34. Correct. 35. & 36. & 37. The Utility Billing Clerk contacted the County by phone to question the read. Notes indicate she thought the read was high. She gave the County a read of 30,570. The County responded on March 16, 2006 with a read of 31,135; therefore, the Utility Clerk assumed the read of 30,570 was correct and billed accordingly. The Utility Billing Clerk was relying on information supplied by Washington County staff. 38. Again, the City used reads submitted by the County. The City assumed reads and usage were correct. At no time did the County question the City regarding the reads or usage. 39. Correct. 40. 1 do not know if the County or the City changed the previous read for April 2006. The City used the reads as submitted by the County. At no time did the County request we adjust for previous reads or question the billings. 41. Correct. 42. The City did not read the meters. The City used reads as submitted by the County and assumed they were correct. 43. Reads of all meters play an accessional part in total water use calculations. The City relied on the County to submit the correct reads. . 44. The County read their own meters and submitted them to the City. The City calculates water usage based on the information received from the County. The City has no way of knowing if the meters have been rebuilt, replaced or altered in any way. 45. Correct. � w ECKBERG LAMMERS, ATTORNEYS AT LAW Stillwater Office: Writer's Direct Dial: 1809 Northwestern Avenue (651) 351 -2118 Stillwater, Minnesota 55082 Writer's E -mail: (651) 439-2878 mvierling ®eckberglammers.com Fax (651) 439 -2923 Hudson Office: December 29, 2009 2417 Monetary Boulevard Hudson, Wisconsin 54016 (715) 386 -3733 George Kuprian Fax (651) 439 -2923 Assistant County Attorney Washington County Attorney's Office www.eckberglammers.com Washington County Government Center � ty 15015 62nd Street North P.O. Box 6 Stillwater, MN 55082 Re: City of Oak Park Heights - County Water Billing Dispute Our File No.: 01501 -19306 ADR Dear Mr. Kuprian: I have corresponded with you separately with regard to other matters in dealing with this case, but wish to bring a separate issue to your attention with regard to this matter; that being the issue of mandatory ADR. Regardless of the form in which the action is pursued, it is obvious that some form of ADR will be required. I raised the issue earlier in the month to your collegue, Ms. Harris, and presume that she relayed on that conversation to you; however, to reiterate, it is my thought that it is probably of little or marginal benefit to pursue a form of mediation since it is the impression of the City after having discussed the matter with the County Administrator, that the County was not interested in settlement or resolving the claim in some compromise fashion, but rather wished to pursue a determination in some other determinative forum. 1 Given the requirement for ADR and that expression by the County Administrator, it would be my view that mediation is of no value, but perhaps binding arbitration, or neutral evaluation of the claims by an expert neutral might be of benefit to the parties before they proceed into a litigation stance in this matter. I am raising the issue to you at this time so that you can give some thought to the issue of mandatory ADR and the proper format that you think would be most beneficial to your client, and again we could perhaps speak on the matter when I return from vacation next week. ECKBERG, LAMMERS, BRIGGS, WOLFF C6 VIERLING, PLLP Family Law / Divorce • Business and Commercial Law • Criminal Law • Personal Injury / Wrongful Death Estate Planning / Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation r '\ Y% M•. J. Vierling MJVindf cc: Eric Johnson, City Adminstrator ECKBERG Aiwa, C 0 py LIVMERSr ATTORNEYS AT LAW Stillwater Office: Writer's Direct Dial: 1809 Northwestern Avenue (651) 351 -2118 Stillwater, Minnesota 55082 Writer's E -mail: (651) 439 -2878 mvierling @eckberglammers.com Fax (651) 439 -2923 December 29, 2009 Hudson Office: 2417 Monetary Boulevard Hudson, Wisconsin 54016 (715) 386 -3733 George Kuprian Fax (651) 439 -2923 Assistant County Attorney Washington County Attorney's Office www.eckberglammers.com Washington County Government Center 15015 62nd Street North P.O. Box 6 Stillwater, MN 55082 Re: City of Oak Park Heights - County Water Billing Dispute Our File No.: 01501 -19306 Dear Mr. Kuprian: A copy of the Summons and Petition served at the City of Oak Park Heights with regard to the above- referenced matter has been provided to this office. Initially I note to you that the requirements of Rules of Practice for District Court Rule 115.10, which requires an effort to resolve issues prior to bringing motion hearings before the Court, and in that spirit, I am corresponding with you at this time as it is my impression that your action is venued in the improper forum. As you are aware, the City of Oak Park Heights is a Minnesota statutory city, and pursuant to Minn. Stat. § 412.321, §444,01 et seq. and § 452.01 et seq., the City owns and operates certain utilities for supplying its own needs, and that of its customers, residents and property owners, specifically those related to municipal water sanitary sewer service. Your client submitted the dispute to the City Council of the City of Oak Park Heights for administrative ruling and resolution, as the City Council is the authority for the public utility, and the sole determiner of the aspects of management of the utility as well as the disputed billings. It is my impression that any action to challenge that agency's determination must be by Writ of Certiorari with the Minnesota Court of Appeals, as opposed to a District Court action. I refer you to the case of Naigle Outdoor Advertising Inc., vs. Minneapolis Community Development Agency, 551 NW 2d, 235 (Minn. Ct. App. 1996). The City's hearing and determination on application of your client's submission for dispute was quasi - judicial in nature, relying on investigation into disputed claim in weighing the evidentiary facts. ECKBERG, LAMMERS, BRIGGS, WOLFF &1 VIERLING, PLLP Family Law / Divorce • Business and Commercial Law • Criminal Law • Personal Injury / Wrongful Death Estate Planning / Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation As such, I am suggesting that you take the time to review the applicable law, and if you agree with regard to our position in the matter, that you dismiss your action relative to the District Court action that you have served, and bring the matter, if that is your intent, before the Minnesota Court of Appeals by Petition of Writ of Certiorari. If your position is that you do not agree with our analysis of the matter, it is our intent then to bring a Rule 12 Motion to dismiss your action, and I am taking the opportunity pursuant to Rule 115.10 to raise that issue to you now before I bring such a Motion. In either scenario, I am asking also for a ten (10) day extension on the otherwise twenty (20) days response time as asserted within your Summons, to provide you and I the opportunity to discuss that issue, particularly in light of the fact that I am going to be out of town for the next 5 days and we will not have an opportunity to confer in person or otherwise until I return. Consequently, please advise as to whether or not you are willing to grant a continuance and under either scenario we can certainly confer when I return to town after January 5. Yo M. , J. Vierling MJV /ndf cc: Eric Johnson, City Administrator ..44 00 LEAGUE OF CONNECTING & INNOVATING MINNESOTA SINCE I 9 1 3 CITIES January 5, 2010 Eric Johnson, City Administrator City of Oak Park Heights PO Box 2007 Stillwater, MN 55082-2007 RE: TrustMember: City of Oak Park Heights Claimant: County of Washington Our File: 11071183 Dear Mr. Johnson: On behalf of the League of Minnesota Cities Insurance Trust (LMCIT), this letter will formally acknowledge receipt of the lawsuit tiled in Washington County District Court entitled "County of Washington, Plaintiff, vs. City of Oak Park Heights, Defendant." Please be advised that I. have assigned the handling of the defense of this case to the law firm of Jardine, Logan & O'Brien with offices at 8519 Eagle Point Blvd, Suite 100, Lake Elmo, Minn. 55042. Specifically, Attorney Pierre (Pete) N. Regnier has been assigned the handling of this case. I have given Mr. Regnier instructions to file a timely appearance on your behalf and to take those steps necessary to protect your immediate interests. If you have any questions for Mr. Reenier, feel free to contact him at 651-290-6563. In general terms, the plaintiff alleges the city overcharged them $l 14,000 for water and sewer services provided to their Law Enforcement Center. The plaintiff alleges the city was unjustly enriched by payments they made for services it did not provide to them. The plaintiff seeks a judgment against the city in the amount of $114,000 along with interest, costs and disbursements. Please be advised that any investigation made or action taken by representatives of the LMCIT on this claim is done with a full Reservation of Rights under Covenant Number CMC 30970 with a coverage period from July 7, 2009 to July 7, 2010. Any investigation, adjustment or defense of the claim or any action whatsoever by representatives of the LMCIT will not constitute a waiver of any rights the LIVICIT might have under the covenant. It is, of course, understood that you do not waive any of your rights under the covenant. I. would specifically refer you to the Comprehensive Municipal Coverage fonn under Coverage A. which states in part: LEAGUE OF MINNESOTA CITIES INSURANCE TRUST 145 UNIVERSITY AVE. WEST PHONE: (65 1) 281-1200 FAX (651)281-1297 CLAIMS DEPARTMENT ST. PAUL, MN 55103-2044 TOLL FREE: (800) 925-1122 WEB: WWWLMCORG . - 11071183 -2- 01 -05 -10 Coverage A. Municipal Liability Coverage (Claims Made Basis) 1. Coverage Agreement a. Except as otherwise provided in this agreement, LMCIT will pay on behalf of the covered party all sums which the covered party shall become legally obligated to pay as damages as a result of an occurrence, if the following conditions are met: Also, I refer you to the definition of damages. Damages means money damages, and includes awards for attorneys' fees with respect to suits alleging violations under federal civil rights laws, state human rights laws or the federal or state constitution. Damages does not include any of the following: d. Injunctive or equitable relief, or quasi-judicial or administrative orders. e. Repayment of any tax, assessment, fee, or other charge that was wrongfully obtained, or any interest on, or any other amount claimed. for loss of use of, such tax, assessment, fee, or other charge. Accordingly, to the extent it is determined that the relief sought by the plaintiff does not meet the definition of damages, then coverage would not apply. This means that if it is determined the city owes money to the plaintiff, including interest, for overcharges of water and sewer services, that is not something for which LMCIT provides coverage to the city. That money would be the city's responsibility to pay as opposed to LMCIT's responsibility. in addition to the above mentioned coverage issues which I have cited, there could be further coverage defenses or exclusions that may be applicable. I reserve the rights of the LMCIT to raise such further coverage defenses or exclusions as are applicable. in the event that you receive any additional correspondence in conjunction with this case, please forward those items to us immediately. If you have any questions, feel free to contact me at651- 281 -1282. Very truly yours, ktt`' i<.4Aett< s j Mark Rossow Litigation Supervisor Cc: Pierre N. Regnier, Attorney at Law Cc: Mark Vierling, Attorney at Law Cc: Forest Lake Insurance Agency City of Oak Park Heights 14168 Oak Park Blvd. N • Box 2007 • Oak Park Heights, MN 55082 • Phone (651) 439 -4439 • Fax (651) 439 -0574 November 23, 2009 Ms Susan Harris Washington County Attorney's Office PO Box 6 Stillwater, MN 55082 -0006 RE: Request for Data - Personnel Related Items Dear Ms. Harris: The City has previously provided to you items 1 through 4 as requested in your letter dated 10/22/09. This document conveys your information as requested in Item 5 but in two parts. item 5 - Part 1. You seek "The names of employees who worked for the City of Oak Park Heights during the period from March 1, 2005 - December 31, 2007, on the water billing, their job description, date of first and last employment, education and training, background and previous work experience..." 1 have compiled such information and it is included herewith. Item 5 - Part 2. You seek, "...the existence and status of any complaints or charges against those employees and the final disposition of any disciplinary action, together with the specific reasons for the action, and data documenting the basis of the action. (also for such periods being 3/1/05 through 12/31/07). In response to this aspect of the request we are able to provide to you the following information: It is the City's position that employees, Jeff Kellogg, Tom Ozzello, Lisa Taube, Roxanne Mendoza, Judy Hoist and Judy Tetzlaff worked during that period of time "on the water billing" in some fashion. Then, relative to their files, the only data that would be available would be a summary provided as to the nature of the complaint or charge of discipline asserted against any of those employees during the period of time of the request, i.e. March 1, 2005 - December 31, 2007. That summary is as follows: 1. As it affects employee Jeff Kellogg, Crew Foreman during the requested period the only complaint that the file has relates to an ethnic slur that the employee's supervisor overheard in August 2007 which resulted in a first warning being issued by the City to that employee. 2. As it affects former employee Mr. Tom Ozzello, Former Director of Public Works, during the requested period Mr. Ozzello was the subject of a disciplinary proceeding on September 25, 2007 relative to his failure to follow up with his direct supervisor on performance items, and was issued a written warning at that time. 3. As it affects former employee Ms. Lisa Taube, Former Utility Billing / Account Technician, with regard to former City employee Lisa Taube, her file reflects no disciplinary proceedings during the requested period. Note: Ms. Taube's position (Utility Billing / Account Technician), was terminated in Fall 2006 and was replaced with a new position (Accountant) which she did apply to fill but she was not hired for. The Utility Billing / Account Technician job description can be found in the supplied packet as an "Inactive" position. 4. As it affects former employee Ms. Roxanne Mendoza, Former Accountant, her file reflects no disciplinary proceedings during the requested period. 5. As it affects employee Ms. Judy Hoist, Finance Director, her file reflects no disciplinary proceedings during the requested period. 6. As it affects employee Ms. Judy Tetzlaff, Accountant, her file reflects no disciplinary proceedings during the requested period. There does not appear to be any other employee /personnel sanctions or discipline that was initiated during of the requested period of March 1, 2005 - December 31, 2007. If there is further inquiry regarding these aspects please let me know and I will endeavor to best meet your needs. NOTE: I have enclosed a document entitled City of Oak Park Heights Job Descriptions - Dated April 2007. This document contains all active and recent former positions in the City. Prior to the compilation of this document, job descriptions we individually derived per department. There were no m. -rial changes to these descriptions upon such compilation. '- tar. Eric ohnson Cit Administrator Cc: Mark Vierling, City Attorney Response Request #5 — Washington County Request for Data letter dated October 21, 2009 5. The names of employees who worked for the City of Oak Park Heights during the period March 1, 2005 — December 31, 2007, on the water billing, their job description, date of first and last employment , education and training, background and previous work experience, the existence and status of any complaints or charges against those employees and the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action. Lisa M. Taube — Utility Billing Clerk /Accountant Technician — July 27, 1999 — November 15, 2006 See attached for education and training, background and previous work experience. Roxanne Mendoza — Accountant — December 1, 2006 — March 19, 2007 See attached for education and training, background and previous work experience. Judy Tetzlaff — Accountant — May 14, 2007 — Current See attached for education and training, background and previous work experience. Judy L. Hoist — Deputy Clerk /Finance Director — April 16, 1979 — Current Education —Stillwater High School, Various GFOA classes Background —1969 to 1979 First Trust Company of St. Paul, Employee Benefits Department Thomas Ozzello — Public Works Director — August 1, 2004 —July 21, 2007 See attached for education and training, background and previous work experience. Jeffrey Kellogg — Public Works Foreman — September 6, 1977 — Current Education — Stillwater High School, Water and Sewer Operator Licensed • • Lisa M. Taube 1996 Merriam Lane St. Paul, MN 55104 ' • Home Phone 651 -645 -9480 • • • OBIECTIVE • To obtain a challenging, responsible position that would utilize my proven business and • organizational skills, as well as my above average communication ability in a fast paced, deadline.driven, service industry. • WORK HISTORY , 1997- Present Brokerage Administrator, PrimeVest Financial Brokerage, Signal Bank, N.A. Implemented all tracking systems utilized from Trade Date through Settlement at full service brokerage office. Assets under management approximately $150,000,000 to date. Provide all customer service and internal and external reporting (SEC) on daily /weekly basis: government reporting, STIF investments daily, margin requirements, dividend and interest calculations, as . well.as generate additional brokerage product sales. 1997- Present IRA Administrator, Signal Bank, N A. Provide accurate. timely' and professional customer.service to over 900 IRA account participants at bank customer level; monitor RMD (required minimum distributions), interest rates and payables, beneficiary information, death payouts and federal withholding. taxes. Sell these customers on the benefits of converting to a PrimeVest Brokerage account. • 1991 -1997 Controller, Taylor & Rose Antiques, Inc. - Responsibilities included daily, weekly, month -end and general accounting, A/P, A/R, sales . forecasting, trend analysis, sales tax , state and federal tax preparation, payroll, insurance, disability, monthly /quarterly G/L close -out. Developed and initiated all necessary systems • for organizational useage. New business in 1991; 1997 sales revenue topped $530,000. 1989 -1991 EBF & Associates, Stock Market Trading Accountant Duties included accounting transactions for money management firm that specialized in the trading of financial futures, stock and bond arbitrage, U.S. Treasury notes and bonds foreign currency speculation, margin trading as well as debt restructing for ailing publically traded companies. 1983 -1989 First Trust, N.A., First Banks Corp., Now US-Banks, Trading Department Supervisor Processed securities and ensured smooth, professional workflow of sixteen direct reports. Resolved trading issues and problems within and after the Settlement process. Wrote monthly department recaps and staff performance appraisals. Promoted to this position after successfully demonstrating the skills of an Investment Account Representative for 3 years. Those duties included maintaining over 90 account relationships with average individual asset bases of $90,000,000; review accounts for STIF available daily, stock tender offers, dividend and interest payables and the wiring of money funds. - EDUCATION ' • 1998 Series 7 Certification Received, October, 1998 1998 . IRA Administrator Certification, UPI, Brainerd, MN 1988 , B.S. in Business Accounting, Minor in Economics, College of St. Catherine, St. Paul, MN 1981 A.A. Degree in Business Marketing, Normandale Community College, Bloomington, MN 1978 Diploma, Cretin - Derham Hall High School, St. Paul, MN Microsoft Office, Lotus, Word, IRA & Trading Programs SPOT Award Recipient, First Trust, N.A., 1986 Exceptional Achievement Award Recipient, First Trust, N.A., 1988 • • • 1752 RODAO DRIVE • RIVER FALLS, WI 54022 PHONE (715) 425 -5066 • E -MAIL RRICHARDSONROXY @AOL.COM ROXANN MENDOZA OBJECTIVE Seek a position utilizing my Accounting, Administrative and Customer Service Skills. EDUCATION Bachelor of Science degree in Accounting, Cumulative GPA 3.391 August 9,1996 University of Wisconsin -River Falls CAPABILITIES /RELATED SKILLS Accounting Accounts Receivable Purchasing Customer Service Handled Cash Inventory Control Job Costing Budget Information Computer Skills Accounts Payable Office Skills Team Player WORK HISTORY 04/2006- Present University of Wisconsin -River Falls River Falls Supervisor: Dave Sorenson Financial Specialist 11 (Limited Term, Part time) • Support for Grant Accountant: generate monthly accounting reports from WISDM accounting system; process monthly budget analysis reports. • Audits and processes incoming invoices. • Performs reception duties: sort incoming mail; order and maintain office supplies. 2005 -04/2006 University of Wisconsin -River Falls River Falls Supervisor: Wendy Sader University Operations Associate/ Human Resources Department (Limited Term) • Completed the 2006 -2007 Budget for Classified Employees • Process resignation and retirement letters. • Place advertisement for employment, accept applications, set up interviews, offer employment. • Fill in as needed while Human Resources Manger is on FMLA. 4' t • 01/2004 -2005 University of Wisconsin -River Falls River Falls Supervisor: Joy De Wyer Student Payroll and Benefits Clerk (Limited Term) • Develop and instruct Student Payroll Procedures • Audit department's Student Payroll • Compile State and Federal tax forms, 1 -9 Employment Eligibility Verification, Selective Service Form and Direct Deposits for each student and update as needed • Correspond with the University of Wisconsin Processing Center regarding request for new W -2's, stop payments, new authorizations and accounting. 04/2002 -01/2003 W.C. Branham, Inc River Falls Supervisor: Louise Branham Office Administrator • Act as receptionist for calls, visitors, opening mail, postage meter, fax, and copier • Handle past due accounts • Process daily shipment of products in UPS World Wide System, calculate shipping and handling charges and process invoices • Audit, code and process invoices to be paid • Monitor and order office supplies and light assembly area supplies • Enter payments and make bank deposits • Enter sales leads, mail catalogs and special mailings 0811996 - 01/2001 River Falls Municipal Utilities River Falls Supervisor: Carl Gaulke Utility Cost Accountant • Responsible for and coordinates Accounts Payable activities. Audits invoices and resolves discrepancies • Directs the operation of controlling the inventory, work orders and job order procedures. Prepare cost estimates for customer jobs. And prepares relating General Joumal entries • Responsible for and coordinates Continue Property Records as required by WI Public Services Commission • Assists in Providing Quality Customer Service and Teamwork • Reconciles subsidiary accounts to the General Ledger • Responsible for bank reconciliation of cash • Responsible for sales tax preparation • Responsible for developing, proposing, and implementing improvements to increase efficiency in accounting processes • Participate in budgeting, forecasting, and financial analysis E LSISLIW V 15' S MAR 2 3 2007 JUDY TETZLAFF 5059 Grenadier Ave. N. • Oakdale, Minnesota 55128 ♦ (651) 770 -7765 ♦ ttetz @comcast.net PROFESSIONAL EXPERIENCE CITY OF MAPLEWOOD — Maplewood, Minnesota Accounting Technician 2000 — Present Responsible for all aspects of accounts payable ensuring compliance of government rules, regulations and purchasing procedures. Process wire transfers, balance bank account daily, month end bank reconciliation and prepare journal entries for month end balancing. Tag fixed assets and set up assets in fixed asset software. Process and balance ACH credits and charges for community center, review bi- weekly timesheets for payroll, prepare Developer bills, audit Charitable Gambling Reports, and manage employee charge accounts. CITY OF MAPLEWOOD — Maplewood, Minnesota Clerk Typist P T 1998 — 2000 Solid experience in customer service. Receptionist for the Public Works Department, type letters, agenda reports and notices for mass mailings. COUNTY HEDGING INC /HARVEST STATES COOPERATIVE — St. Paul, Minnesota Accounting Supervisor — Project Leader Information Systems/Accounting Assistant 1992 — 1996 Supervised an accounting staff of five for a futures and options hedging company's back office. Create and generate reports on AS400. Monitor, develop, implement, and/or schedule computer projects. Notify customers of account liquidation due to margin call not being met. Accounting duties to include bank reconciliation, daily and month end account balancing, accounts payable, and general ledger entries. HARVEST STATES COOPERATIVE — St. Paul, Minnesota Accounting Clerk 1990 —1992 Reviewed customers' hedging pool funds to ensure customers met initial deposit requirements and distribution of fund balances when funds closed. Administrator of Crop Insurance program. Created reports from accounting database on AS400 computer system. Reviewed and corrected all customer accounts with problems. EDUCATION COLLEGE OF ST. SCHOLASTICA — St. Paul, Minnesota December 2006 Bachelor of Arts Major: Accounting Summa Cum Laude NATIONAL COLLEGE — St. Paul, Minnesota 1991 Associate of Applkd Science Business Administration with Distinction ADDITIONAL WORK EXPERIENCE TEMPORARY AND PART TIME Tartan High School, Oakdale, MN — Temporary Education Assistant 1998 St. Paul Monastery, Maplewood, MN — Housekeeping/Whirlpools 1996 —1998 National Business Systems, Woodbury, MN— Data Entry Operator 1988 —1990 J & L Keypunching Service, Roseville, MN— Data Entry Operator 1982 —1988 ADDITIONAL SKILLS Proficient in Microsoft Office Manage time to meet deadlines Excellent problem solving skills Competent in detailed work Minnesota Women in City Government Leadership Award Nomination Form Due May 10, 2008 Nominee Name: Judy Ho: 1st Title: Deputy Clerk /Finance Director Address: 41 68 Oak Park Blvd N. City /State/Zip Code: Oak Park Heights, MN 55082 Phone/Fax/E -mail_ 651 - 439 -4439 /Fax 651 -439- 0574 /jholst @cityofoakpark heights .com Will the nominee be attending and be registered for the upcoming LMC Annual Conference in Rochester, Minnesota, June 11 -13, 2008, and be present at the MWCG Breakfast and Membership Meeting June 12, 2008? Yes No (?DtGr') If the nominee is not registered for the LMC Annual Conference June 11 -13, can the nominee be present at the Thursday, June 12, award breakfast if she is selected as a Leadership Award winner? CIO No How long has the nominee served as an elected/appointed official in the city? 2 9 year s Nominated By (Name/Title): Ja r. k , pQ@rr Cpuncilmember r1 c /te City or Organization: City of Oak Park Heights Address: 1 41 68 Oak Park Blvd N. City /State /Zip Code: Oak Park Heights, MST 55082 Phone /Fax/E- mail 651- 439- Q439/Pax_651 - 439 9574 /j rd2543@comcast.net Relationship to Nominee: Nomination Form and Nomination Statement should be mailed to MWCG, c/o Mary McComber, 5728 Penfield Avenue North, Oak Park Heights, MN 55082 or E -mail with attachments to marymccomber@aol.com. Website MWCG. org Minnesota Women in City Government Leadership Award Nomination Statement Nominee: Judy Holst, Deputy Clerk/Finance Director for the City of Oak Park Heights Nominator: Jack Doerr, Councilmember for the City of Oak Park Heights What makes Judy an exceptional leader, and why should she receive the MWCG Leadership Award? In her 29 years with the City of Oak Park Heights, Judy Holst has proven to be an outstanding leader and a role model to other employees. Judy is an exemplary woman, and has many qualities that make her an exceptional leader. She is honest, loyal, enthusiastic, and is committed to excellence. Judy is deserving of the MWCG Leadership Award because she inspires City staff and council and drives them to be their best. ' accomplishments? are some examples that demonstrate Judy's accomp s hments? Judy has always stepped forward when the City needed her. In 1999, and again in 2002, Judy went above and beyond her role as Deputy Clerk/Finance Director and served the City as Acting Administrator. As Acting Administrator, Judy portrayed confidence and a positive demeanor. She earned the trust and respect of the City staff and council. Judy is responsible for creating new policies and reviewing old ones. When doing so, she always thinks three steps ahead — working towards the goal of avoiding problems before they arise. Many challenges may rise along the way, and Judy is able to stay calm, composed and steadfast to the main purpose. She views each situation as a whole, but is able to break them down into manageable steps and make progress towards them. Judy is able to delegate to the right people when needed and only intervenes at critical moments. In 2000, GASB -34 was implemented for cities of Oak Park Heights' size. Because Judy wanted to be ahead of the curve, she prepared for the change two years prior to implementation. She spent a great deal of time reading about the changes and educating City staff. Judy is also responsible for preparing budgets and attending various City Council meetings and worksessions. Judy is always prepared, organized and responsive to changes. She creates ideas and concepts, focuses the council's attention on goals and objectives, and provides a strategy and plan on how to achieve the goals. Judy is always attentive to the needs, opportunities and challenges that face the council and staff, and she moves quickly to support them. She is a good listener, and takes time to explain her position thoroughly and clearly. In preparation for a computer system replacement, Judy budgeted for it three years in advance. She had requests for proposals in place and had the system installed and in use within one year. How has Judy served as an excellent mentor to individuals in this community? Judy also acts as a mentor to other City staff. She is able to instinctively seek to draw out the good qualities of other people. She inspires those around her with her passion and dedication. By showing them how things are done, by having confidence and determination, she helps City staff work towards the desired goal. Judy has gained the loyalty and support of others by appreciating their efforts. She always takes time to offer gratitude for the hard work of others. Judy is a member of the Government Finance Officers Association, the Minnesota Municipal Clerks and Finance Officers Association, and the International Institute of Municipal Clerks, and has received the designation as Certified Municipal Clerk. Judy understands the importance of continued education, and she is a strong promoter of employee growth. How has Judy helped other women become involved in this community? In addition to her service as Deputy Clerk/Finance Director, Judy is also actively involved in the community. She has a member of the Eagles Club for several years having served as past president and past treasurer, and she actively assists the current treasurer. She is a member of the ladies auxiliary and has planned many community events such as golf outings and cookouts. She devotes a lot of her time to help encourage other women in the community to participate in these events. CITY OF as -; ,. OAK PARK HEIGHTS - «' . f ° 14168 Oak Park Boulevard No. • P.O. Box 2007 • Oak Park Heights, MN 55082 -2007 • Phone: 651/439 -4439 • Fax: 651/439 -0574 May 8, 2008 Minnesota Women in City Government c/o Mary McComber 5728 Penfield Avenue North Oak Park Heights, MN 55082 RE: Nomination of Judy Holst for the MWCG Leadership Award Dear MWCG: w It is our understanding that Jack Doerr, a councilmember for the City of Oak Park Heights, has nominated Judy Holst for the MWCG Leadership Award. Judy has served the City for 29 years and has been an outstanding member of the City staff. Judy is passionate about her service to the community and empowers those around her to do their best. Many members of the City staff herewith concur with the nomination. She greatly deserves award and the recognition that goes along with it. Re ectfully, ,V;/: 2 ' i ‘) 61 QAAA4- ‘ 94/v4 Er • J , son, City Administrator Gary Brunckhorst, Sr. Accountant iop if � ti` ' d S anson, Chief of Police Judy Tetzlaff, y Y , Accountant i � Brian DeRosier, Deputy Chief of Police Juli Hultman, Code Enforcement Officer }eet •fr• Jennifer Thoen, Administrative Secretary Sandy Kruse - Roslin, Police Dispatcher Tree City U.S.A. Minnesota Women In City Government Leadership Award Award Program Overview Minnesota Women in City Government (MWCG) is honored to offer two Leadership Awards to two outstanding women in WOMEN Minnesota city government. An award will Ili CITY be presented to an elected woman in city - GOVERNMENT government and the other will be awarded to an appointed woman in city government. Both winners will be recognized for individual achievement in their cities, 4 ,5-1 - 203-2. 9 leadership and mentoring roles both inside Nomination Statement and outside of their communities. Seeking Nominations A Nomination Statement should be included with the attached form. The Nomination The MWCG Leadership Award is open to Statement should include: all women who are elected or appointed Minnesota city officials. • A statement that explains why the nominee is an exceptional leader and should receive the A panel of judges representing MWCG and MWCG Leadership Award. the League of Minnesota Cities will determine the finalists and the winner of • Information that provides insight into the the award. nominee's unique city accomplishments. Give Current members of the MWCG Board of examples that demonstrate the nominee's success in bringing about innovative programs Directors are not eligible to be nominated to their community. Include specific for the award. challenges that were overcome that illustrate Award Presentation how the nominee has made a difference in their community. Finalists for the award will be announced in advance of the LMC Annual Conference in • Please describe how the nominee has served Rochester, Minnesota, June 11 - 13, 2008. as an excellent mentor to individuals in their The winner will be announced and honored CO'anit• along with the other finalists during the annual MWCG Breakfast and Membership • Please describe the outstanding Meeting Thursday, June 12, 2008. contributions of the nominee that have helped other women become involved in their ...Promoting Women in City Government community, government, or civic leadership www.MWCG.org November 9, 1978 Dear Sir: I am sending this letter in regard to your add in the Gazette. My name is Judy Stiles. I am 26 year old, married and have 2 children, ages 5 and 8. I reside at 13628 Square Lake Trail North, Stillwater. I attended and graduated from Stillwater Junior and Senior High School. I am currently employed as an accounting supervisor in the Employee Benefits Department of the First Trust Company of Saint Paul. I have been employed at the First Trust Company since June of 1969. My job has consisted of the following: 1. Typing 2. Handling Cash Flow 3. Computing and billing of fees 4. Account balancing 5. Inputing information on computer 6. Checking output of computer The strong point of my job would be the account balancing. I have a good figure aptitude. The weak point would be explaining myself. My current salary is $955 per month. This amount is negotiable, as I would not have the expense of commuting back and forth and parking. Judy Stiles 644V)1' THOMAS D. OZZELLO 579 Sterling St. South (651) 731 -0985 Maplewood, MN 55119 EDUCATION AND CERTIFICATIONS BS in Business Administration, University of Iowa, May 1988 IR and HR Management Majors - Strong Biology, Computer Science and Chemistry course works. Licensed Operator in Water, Wastewater, Waste Disposal, Commercial Driver Minnesota: A Wastewater, A Water, A -CDL , Low Voltage Electrician, ABC -IV (multi- state) Wastewater WORK EXPERIENCE AND HISTORY City of Woodbury, Minnesota Utilities Supervisor 1998 to date Manage and maintain water pumping (15 wells, 22 MGD, 16 in construction), treatment, and distribution Manage and maintain wastewater collection and 12 station pumping and booster systems, I &I work Identify and implement changes to water /sewer /storm SCADA system and reporting, Security updates since 9/11 Public Works Training, Monthly Safety meeting and training, Energy Control, Utility (One -call) Co- ordination Collective Bargaining, Mediation, discipline, labor management committee, evaluations, all in Unionized setting Plan, submit, revise and obtain final approval of $7M operations Budgets and also 5 year CIP Propose, specify, review and recommend equipment, standards, and vendors for Council Approval Contract and construction oversight of new wells, well rehabilitation, booster station, sewer televising Won both regional and state wide award for best 2000 Consumer Confidence Report in 2001 Updates and implementation of Utility maintenance and tracking in ArcView GIS Cimarron Park Manufactured Home Community, Lake Elmo, MN 1996 to 1998 Utilities Director- Water pumping, treatment, & distribution; Wastewater collection, treatment & disposal NPDES & MDH reporting, Activated bio- solids wastewater process control, Operating & Capital budgets Project Manager of added well, modified treatment and back -up power supply systems Brought systems under control, Earned MPCA Operation's Award, Cut operating costs by 23% Operations Management International, Inc. (OMI a CH2M Hill subsidiary) 1993 to 1995 Management of operation, maintenance, laboratory, personnel, bio- solids and budgets to show profit Traverse City, Michigan: personnel, reports, purchasing, payroll, computer, and bio - solids at WWTP WTUA: Four City Board Reporting and $90M CS facility startup including management, hiring and training Fortron Industries: manage industrial facility and staff to resolve non - compliance with NPDES permits Minnesota Pollution Control Agency (MPCA), Water Quality 1988 to 1993 Industrial Enforcement - Team Leader, Compliance Officer, State and Federal Laws, Industrial Inspections Projects included TQM Facilitator, MSP Airport, Koch Refining, Bongard's Creamery; elected Union Director Municipal Section, Project Manager, Federal and State Wastewater System Design and Construction Programs Managed 17 projects through different phases of construction ($0.6 to $6.2M), Implemented On -site program University of Iowa, Work Study, Student Activities, Employment 1985 to 1988 Tenant/Landlord dispute resolution officer, Student Representative on Transportation Committee Hawkeye Engineering (now owned by PACE Labs) Analyze samples, QA/QC, DMR's to 1986 Public Works, City of Muscatine, Iowa 1979 to 1984 Advanced Industrial/Municipal Wastewater Treatment Facility-Lead Shift promoted to Lead Plant Operator Pure Oxygen Activated Bio- solids Process, Equipment Calibration, Land Application, & Safety Training Pelling Construction, Iowa City, Iowa 1978 to 1979 Heavy equipment operator, excavation, road building, snow and material transport Class A - CDL Monsanto Chemical, Muscatine, Iowa 1974 to 1978 Laboratory testing, Professional Industrial Maintenance Training Program, startup new Wastewater Facility Thomas D. Ozzello The following is a list of co- workers and /or supervisors who are familiar with my work. From the City of Woodbury Roger Glanzer Public Works Operations Superintendent (former) 651/483 -5219 Jim Triebold Streets Supervisor 651/714 -3724 Dick Riemenschneider Parks Supervisor 651/714 -3725 My upper level staff Public Service Workers /Utilities Main # 651/714 -3720 Home Cell /pager Harry Richter 651/738 -7712 retired Charlie Swanson 651/770 -5628 651- 755 -0658 Robert Benson 651/351 -7281 651- 755 -0667 Robert Miller 651/731 -3835 952- 235 -3697 Jack Walters 651/501 -7446 952- 365 -3611 Bill Staebler 651/748 -0611 651 -755 -0669 From Cimarron Park Carol Adams Former Cimarron Community Administrator 651/351 -9801 From the Minnesota Pollution Control Agency (MPCA) 612/296 -6300 Roger Nelson Water Quality - Industrial Enforcement Mary Hayes Water Quality - Industrial Enforcement Debra Schumann Water Quality Permits From my work with OMI, Inc. Scott Blair Project Manager, Traverse City, MI 616/922 -4922 From my industrial assignment in North Carolina while working for OMI Andrew Steurer Fortron Industries / Hoerst Celenase 910/343 -5038 Personal references are also available. Tom A 4 't 7 1 it • j I R x a • 0 oa �� b ,,,,, . , z ' ---- 3 y g c n H =--., • ,... 0 & ,. . . ,, . H c(-31 . . ,, 0 „ , \ z . , • 3 d i d ° y o r ammatil< 1 l 'l tri t" "" -.S ) 11 P.-- a. , g= 1 1 1 i y � rra- d B.THE.x, .r. c z m �'} m vT Ip - •vmot - 'Li Pa. ,.. 8 4 ' f )-I 4,.....+4, ° zz hi d r23 ►..� to =. ozi m: E 0 , r gzym tA d .,n ›. =:i‘ 20,9\ dy g 21T y! R- P ♦* T---i R 0 , . \ i: •t:,.. 6 cAt' Pi '8 i - i 1 1 r Eil . hi )--1 0 - 0 tri 0 It ITi a 0 r/ ?,: ,, tt tTi i E. ! ao z rzi 4 0 col m rri r-, cn 1 $ o e r - `o CV ° a E . a t t 9 3$ a c 3 .4 . c 8 21 •? 14 a o yy 1 .pg a O EE 0Q 4 •o . s gl 1I �. N Ey �+ 8 ' j Q I . 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TO: City of Oak Park Heights, 14168 Oak Park Blvd N., Oak Park Heights, MN 55082 You are hereby summoned and required to answer the Complaint of the Plaintiff in the above- entitled action, which Complaint is attached and herewith served upon you and to serve a copy of your Answer to said Complaint on Plaintiffs attorneys at their office at Washington County Government Center, Washington County Government Center, Stillwater, Minnesota 55082, within 20 days after the service of said Summons upon you, exclusive of the day of such service and if you fail to answer the Complaint within the time before said, the Plaintiff in this action will apply to the Court for the relief demanded in this Complaint. This action is subject to the Alternative Dispute Resolution (ADR) process as set forth in Rule 114 of the Minnesota Rules of General Practice. Dated: / Z !�' DOUG JO SON, COUNTY ATTORNEY WASHIN O COUNTY, MINNESOTA George Kuprian ID No. 147722 Assistant Washington County Attorney Washington County Government Center 15015 62nd Street North P. O. Box 6 Stillwater, MN 55082 (651)430 -6115 b. A rate of $1.34 per 1,000 gallons for water use above 5,000 gallons up to 16,000 gallons. c. A rate of $1.76 per 1,000 gallons for water use above 16,000 gallons up to 33,000 gallons. d. A rate of $2.11 per 1,000 gallons for water use above 33,000 gallons. 5. During the relevant time frame, the Defendant had in place the following sanitary sewer rate for all users including Plaintiff: a. A monthly minimum charge of $16.65 for the first 15,000 gallons of water used. b. A rate of $3.40 per 1,000 gallons of water used above 5,000 gallons. 6. During the relevant time frame, Plaintiff's water usage at the LEC was monitored by Defendant through the use of the following seven meters: #1 west meter, #2 compound meter low flow, #3 compound meter high flow, #4 fire meter, #5 sprinkler meter, #6 cooling tower in meter, #7 cooling blow down meter. 7. Each meter was read every two months, and the separate amount of water used as measured by each meter during the two month period tabulated. Total water usage for the LEC was then determined through the following calculation: The readings from the west meter plus the compound meter high flow plus the compound meter low flow minus the sprinkler meter minus the difference between the cooling tower in meter and the cooling tower blow down meter. The water use for the current two month period was then calculated by taking the difference between this current sum and subtracting from it the sum calculated two months earlier. These calculations are done in the thousands of gallons in order to conform to the billing rates which are charged in thousand gallon 2 increments so the final sum arrived at is multiplied by 1,000 to determine the actual water usage. The #4 fire meter is not part of this calculation and is billed separately. 8. Each one of the seven meters monitoring the water usage at the LEC has a register containing from four to seven odometer wheels that provides a reading of from four to seven digits. Not all digits in a meter are to be read, recorded and used in the water use calculation. For example, the compound meter low flow which will be hereinafter referred to as the low flow meter has a total of seven digits but only the first four digits are to be read and reported. The four digits to be read are clearly distinguishable as they are presented on a white background. The three digits which are not read are on a black background. 9. During the relevant time frame, the Plaintiff assigned one of four facility technicians to read the meters and report the readings to the Defendant. 10. The individuals who read the meters during the relevant time frame had no specific training to read the meters and report the readings on the water meter readings worksheet provided by the Defendant. These individuals read the meters and recorded the readings based on intuition, interpretation of past practices, the meter configuration - i.e., the number of digits that were to be read, and directions from City staff. 11. All seven meters at the LEC were read every other month. The readings were then hand entered onto water reading worksheets (hereinafter worksheets) provided by the Defendant. After Plaintiff entered the meter readings, the worksheet was sent back to the Defendant by facsimile; or, on occasion, the readings were transmitted to Defendant by phone. 3 12. The worksheet provided by the Defendant was for a two month period. The worksheet contained the date of the previous meter reading; the date the current meter reading was taken; a column that contained Defendant's printed entry for the "previous" two month's reading for each meter; a column for Plaintiff's hand entry of the "current reading" of each meter and a column for the Defendant to calculate and enter the amount of water that flowed through each meter during the two month period — i.e., use. 13. During the relevant time frame, the LEC's total water usage for a two month period was determined by taking each meter's "current reading ", subtracting from it the "previous reading" provided by Defendant on the worksheet, and inserting those use values into the formula set forth in paragraph 7 of this complaint. The water charge was then determined in the manner set out in paragraphs 4 and 5. The total charge was then halved, and a bill sent to Plaintiff each month. 14. Because the low flow meter is only read to four digits, the worksheet entries for that meter's "previous" and "current" read columns should contain only four digits. 15. The maximum reading for the low flow meter is 9999. Once that reading is reached the meter will roll over and show a value of 0001. 16. The first calculation of low flow meter usage after this meter has rolled over is as follows: Ten thousand plus the first reading after roll over minus the "previous read ". Because the maximum reading of the low flow meter is 9,999, the addition of ten thousand is to account for the roll over. 17. Once the calculation described in paragraph 16 above is made, the ten thousand should be discarded and the current four digit reading for the just completed two month period 4 1 should be carried over to the next period's worksheet "previous read" entry, rather than creating and showing a five digit number for that "previous read" entry. 18. Because the low flow meter is only a four digit read, confusion could result if five digits are entered into either the "previous" or the "current" read worksheet column and carried over to subsequent worksheets. A low flow meter entry of five digits in a worksheet's "previous read" column together with a correct four digit read in the "current read" column would result in a negative use calculation for that period unless the current low flow meter reading on the worksheet was also manipulated to give a five digit reading. 19. On December 31, 2004, the January through February, 2005 worksheet provided by the City showed a previous low flow meter read of 9866. 20. With respect to the January through February, 2005 period, the County submitted a "current read" for the low flow meter of 0300 indicating the low flow meter had rolled over. Rather than performing the calculation described in paragraph 17 of this complaint, the Defendant created a five digit "current read" number by retaining the ten thousand from the use calculation and showing it as a "1" before the Plaintiffs four digit "current read" of 0300. The Defendant changed Plaintiffs "current read" worksheet entry from 0300 to the five digit 10300. The water usage for the low flow meter for this period was 434. 21. With respect to the March through April, 2005 period, the Plaintiff sent to Defendant a worksheet showing a "current read" for the low flow meter of 0650. Since the Defendant had changed Plaintiff's January through February's low flow meter read of 0300 to 10300, it also changed the "previous read" entry on the March through April worksheet to 10300, which resulted in a negative use calculation for this period. In order to achieve 5 • • a positive use, the Defendant modified Plaintiff's reported "current read" of 0650 to the five digit 10650. 22. Using the worksheet's five digit entries of 10300 for the "previous read" and 10650 for the "current read ", the Defendant calculated a 350 gallon low flow meter use for March through April, 2005, which because of the addition of ten thousand (accomplished by placing a "1" in front of the first digit of each period's reading) to both the January through February and March through April entries was a correct use. 23. Defendant knew or should have known that the low flow meter is to be read to four digits and, in order to avoid negative use calculations in subsequent worksheets, a five digit entry in either the "previous read" or "current read" columns of the worksheet would require continued manipulation of the actual four digit low flow meter readings reported. 24. With respect to the May through June, 2005 worksheet, the Defendant made a "previous read" entry of 10650 for the low flow meter. Based on information and belief, the current low flow meter reading was actually 0968; but, in order to conform to the Defendant's five digit entry in the "previous read" column of the worksheet and avoid a negative use calculation, the five digit 10968 was entered in the worksheet's "current read" column. The use for May through June, 2005 was 318, which because of the addition of ten thousand (accomplished by placing a "1" in front of the first digit of the reading) to the May through June reading was a correct use. 25. With respect to July through August, 2005, the Defendant provided Plaintiff a worksheet with a "previous read" entry of 10968 for the low flow meter. Based on information and belief, the current low flow meter reading for this period was 1610; but, confused by Defendant's five digit worksheet entry of 10968 in the "previous read" column and by no 6 longer having a zero as the left most digit in the reading in front of which "1" could be placed, the Plaintiff read five of the seven low flow meter odometer wheels instead of the requisite four and entered 16102 on the worksheet's "current read" column. This resulted in a purported low flow meter use of 5,134; a use nearly ten times historical usage. Upon information and belief, the actual low flow use for this period was 642. Because the readings are in thousands of gallons, the disparities between the Plaintiff's and Defendant's claimed usages are much more significant than it first appears. In this case, the Defendant's claimed usage corresponds to 5,134,000 gallons of water as opposed to Plaintiff's 642,000. 26. Because the low flow meter is to be read to only four digits and the Plaintiff recorded a five digit entry on the worksheet, the Defendant knew or should have known that Plaintiff's five digit reading was in error and should have questioned the current low flow meter reading on the worksheet; but, because the reading provided by Plaintiff did not result in a negative use calculation, the Defendant accepted the five digit reading of 16102, which resulted in a payment by Plaintiff to Defendant for water Defendant did not provide. 27. Mistakes on the part of its employee in reading and reporting meter results and in acceding to Defendant's manipulation of previous readings on the worksheet do not affect the right of Plaintiff to recover for an overcharge because if a benefit is given through mistake, even if the mistake is shown by the recipient to be careless or inexcusable, the recipient of the benefit must make restoration since it has merely received money for nothing. 7 • 28. Upon information and belief, the Defendant contends that a compromise between Defendant and Plaintiff's employees was reached settling the issues which are the subject of this complaint. Even if County employees agreed to Defendant's accounting of the matter, they were without authority to settle or compromise claims by or against the County. The authority to settle this claim resides exclusively with the County Board. 29. With respect to the period September through October, 2005, the Defendant provided the Plaintiff with a worksheet that showed the "previous read" for the low flow meter to be 16102. On October 31, 2005, the Plaintiff read and entered onto the worksheet a current low flow meter reading of 2198; but, because a reading of 2198 would result in a negative use calculation, the Defendant requested Plaintiff re -read the low flow meter. 30. Plaintiff re -read the low flow meter and reported to Defendant the low flow meter's entire seven digit number which was 2,197,790. This seven digit number was not placed in the worksheet's "current read" entry but was instead written in the margin of the worksheet. 31. Defendant knew or should have known that only the first four digits of the low flow meter were to be read and used in any use calculation. Nonetheless, the City Utility Clerk decided to use five of the seven digits for the reading, rounding the seven digit number of 2,197,790 to 21,980 and using it to calculate a low flow meter use of 5878. Upon information and belief, the actual low flow meter use for this period was 588 resulting in payment by Plaintiff to Defendant for water Defendant did not provide. Because these readings are in the thousands, this desultory "rounding" by the Utility Clerk increased the reported usage by a factor of 10; and, because these readings are in the thousands, the actual reported use rose from 588,000 to 5,878,000 gallons. 8 • 32. Because the low flow meter rolls over at a reading of 9999, a purported 5878 gallon use for September through October coupled with a 5,134 gallon use for July through August, would have caused the low flow meter to turn over; but based on subsequent low flow meter readings during the relevant time frame, no such event occurred. 33. With respect to November through December, 2005, the Defendant provided Plaintiff with a worksheet that showed the "previous read" for the low flow meter to be 21,980. The worksheet indicated a "current" low flow meter reading of 25080 which was used by the Defendant to calculate the two month period's low flow meter use of 3100. Because the low flow meter is to be read only to four digits, the Defendant knew or should have known the five digit "previous read" provided by Defendant on the worksheet and the five digit "current read" were in error. Upon information and belief, the period's actual "current" low flow meter reading was 2508 and a use of 310. The misuse of the 21,980 "previous read" number and the 25080 "current read" number resulted in payment by Plaintiff to Defendant for water Defendant did not provide. 34. With respect to January through February, 2006, the Defendant provided Plaintiff a worksheet that showed a "previous read" for the low flow meter of 25080. On February 28, 2006, the Plaintiff made a "current" low flow reading of 3057 and entered on the worksheet this four digit number as the "current read" and submitted the worksheet to the Defendant. 35. Findings from the City's resolution denying Plaintiffs appeal of its water bills indicate the City Utility Billing Clerk merely assumed the read was the five digit 30570 although the Clerk knew or should have known the low flow meter was a four and not a five digit reading. 9 36. The 30570 "current" reading assigned to the low flow meter by the Utility Clerk resulted in a low flow meter use of 5490. Although this amount was consistent with the past three uses calculated by Defendant, the Clerk questioned it as too high. On March 16, 2006, Defendant requested Plaintiff to re -read the low -flow meter. 37. Upon information and belief, because of the confusion caused by Defendant's continued use of five digit entries for the low flow meter readings and the City Utility Clerk's actions in changing then questioning the initial four digit reading submitted by Plaintiff, the Plaintiff used five of the low flow meter's seven digits in the subsequent reading and provided the Clerk with a low flow meter "current" reading of 31,135. The Clerk settled on a low flow reading of 30570 with a resultant usage of 5490. Upon information and belief, the actual use for January through February as measured by the low flow meter was 549, resulting in payment by Plaintiff to Defendant for water Defendant did not provide. 38. With respect to March through April, 2006, the worksheet provided by the Defendant to the Plaintiff had a "previous read" entry for the low flow meter of 30570. In order to conform to Defendant's "previous read" entry and avoid a negative use calculation, Plaintiff entered a low flow meter reading of 34170 on the worksheet for a purported usage of 3600. Upon information and belief, the actual low flow water use at the LEC for this period was 360, resulting in payment by Plaintiff to Defendant for water Defendant did not provide. 39. With respect to May through June, 2006, the Defendant had printed on the worksheet provided to Plaintiff the "previous read" for the low flow meter of 34170. On June 30, 10 d gallons, and the Defendant was unjustly enriched by payments made by Plaintiff in the amount of $114,000 for water and sewer services it did not provide to Plaintiff. 45. On March 11, 2009, Plaintiff gave notice to Defendant of its claim for overcharge. Defendant formally denied the claim on October 13, 2009 by resolution of the City Council. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $114,000, interest, costs and disbursements. / Date: /;- /' �7 DOUG J9 SON, COUNTY ATTORNEY DOUG JOHNSON, COUNTY ATTORNEY WASH 1 -UTO B OUNTY, MINNESOTA WASHINGTON COUNTY, MINNESOTA -_ ��� George uprian ID No. 147722 Kari A. Lindstrom ID No. 239586 Assistant Washington County Attorney Assistant Washington County Attorney Washington County Government Center Washington County Government Center 15015 62nd Street North 15015 62" d Street North P. O. Box 6 PO BOX 6 Stillwater, MN 55082 Stillwater, MN 55082 (651)430 -6115 (651) 430 -6115 DOUG JOHNSON, COUNTY ATTORNEY WASHINGTON COUNTY, MINNESOTA (\ :/ , t3 f)// Maura J. Shuttleworth ID No. 0322520 Assistant Washington County Attorney Washington County Government Center 15015 62nd Street North P. O. Box 6 Stillwater, MN 55082 (651)430 -6115 ACKNOWLEDGMENT The undersigned acknowledges that: We are familiar with the terms of MINN. STAT. § 549.211, and that costs, disbursements and reasonable attorney and witness fees may be awarded 12 4 u1 , to the opposing party pursuant to subd. 2 thereof, in the event a party or an attorney acts in bad faith; asserts a claim or defense that is frivolous and that is costly to another party; asserts an unfounded position solely to delay the order and cotse of the proceedings or to harass; or commits a fraud upon the Court. Dated: j2 / /,00 .. l _ • George uprian V2-- tb -09 Kari A. Lindstrom ■ E C = -L `fi • 11( ( Dated: 2 ' Maura J. Shuttleworth 13 ECKBERG LAMMERS 4f ATTORNEYS AT LAW Stillwater Office: Writer's Direct Dial: 1809 Northwestern Avenue (651) 351 -2118 Stillwater, Minnesota 55082 Writer's E -mail: (651) 439-2878 mvierling @eckberglammers.com Fax (651) 439 -2923 November 19, 2009 Hudson Office: 2417 Monetary Boulevard Hudson, Wisconsin 54016 (715) 386 -3733 Eric Johnson Fax (651) 439 -2923 City Administrator City of Oak Park Heights www.eckberglammers.com 14168 Oak Park Boulevard North Oak Park Heights, MN 55082 Re: Washington County Requests — Data Practices Our File No.: 01501 -19306 Dear Eric: Washington County has submitted a request to your department for certain documents and information to be produced with regard to disputed utility billings. On Page 2, Paragraph 5 of they request the following data: 1. The names of employees who worked for the City of Oak Park Heights during the period from March 1, 2005 — December 31, 2007, on the water billing, their job description, date of first and last employment, education and training, background and previous work experience, the existence and status of any complaints or charges against those employees and the final disposition of any disciplinary action, together with the specific reasons for the action, and data documenting the basis of the action. Minn. Stat. § 13.43 limits public data with regard to employees to the following information: 1. Name, employee identification number (which must not be the employee's social security number), actual gross - salary, salary range, contract fees, actual gross - pension, the value and nature of the employer paid fringe benefits, and the basis for and the amount of any added remuneration, including expense reimbursement in addition to salary. 2. Job title and bargaining unit job description, education and training background, and previous work experience. 3. Date of first and last employment. 4. The existence and status of any complaints and /or any charges against the employee, regardless of whether the complaint or charge resulted in disciplinary action. 5. Final disposition of any disciplinary action, together with the specific reasons for the action, and the data documenting the basis of the action, excluding data that would identify confidential sources who are employees to the public body. ECKBERG, LAMMERS. BRIGGS, WOLFF 6 VIERLING, PLLY Family Law 1 Divorce • Business and Commercial Law • Criminal Law • Personal Injury / Wrongful Death Estate Planning / Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation Mr. Eric Johnson November 19, 2009 Page 2 There are additional data that is permitted by this statute, but that was not requested by the County. Relative to the request in issue, I suggest that you supply the names of the employees who "worked for the City of Oak Park Heights ... on the water billing." It would appear to me that the phrase "on the water billing" is limited to the clerical function of water billing as opposed to the collection of data from which the billing is generated (the request did not specify otherwise). The information requested, such as job description, date of first and last employment, education and training, background and previous work experience, are all permissible inquiries. The existence and status of complaints or charges against those employees, and the final disciplinary action, together with the reasons for the action, and the data documenting the basis for the action is somewhat open to interpretation. If it is the City's position that employees Tom Ozzello, Jeff Kellogg and Lisa Taube worked during that period of time "on the water billing ", then relative to their files, the only data that would be available would be a summary provided by your offices as to the nature of the complaint or charge of discipline asserted against any of those employees during the period of time of the request, i.e. March 1, 2005 — December 31, 2007. Even then, there would not be supplying to the County of any interoffice memos or disciplinary results other than evidentiary documents which "document the basis of the action ", i.e. those documents were used to determine that the employee did in fact participate in an event that was prohibited by the City in terms of their personnel regulations. For example, on the Jeff Kellogg file, the only complaint that the file has relates to an ethnic slur that the employee's supervisor overheard in August 2007. As there is no documentation as to the evidence of the matter, only the comments from the Supervisor with regard to the discipline, there would be no documentation to provide to the County, merely the statement that Mr. Kellogg was the subject of a disciplinary proceeding for uttering an ethnic slur in August of 2007, which resulted in a first warning being issued by the City to that employee. As it affects Mr. Ozzello, the only information that need be provided to the County is that Mr. Ozzello was the subject of a disciplinary proceeding on September 25, 2007 relative to his failure to follow up with his direct supervisor on performance items, and was issued a written warning at that time. As it affects the performance items that were generated by verbal command, as opposed to written command, there is no follow -up documentation to be provided. The County is not entitled to the actual copy of the Notice of First Discipline. There does not appear to be any other employee /personnel sanctions or discipline that was initiated outside of the requested period of March 1, 2005 — December 31, 2007. Finally, with regard to former City employee Lisa Taube, again, her file reflects no disciplinary proceedings during the requested period. L Mr. Eric Johnson November 19, 2009 Page 3 If you have any other questions with regard to these personnel files in terms of a response to the County, please feel free to contact me directly. 41011111W Mark . ierling MJV /ndf 1 N GTON CO Office of the Washington Washington ' County Attorney C ounty �' N°us'a,.m a Doug Johnson County Attorney October 22, 2009 Eric Johnson, City Administrator 14168 Oak Park Blvd. N. P.O. Box 2007 Oak Park Heights, MN 55082 Re: Request for Data Dear Responsibility Authority, Pursuant to the Minnesota Government Data Practices Act, I am requesting that the City of Oak Park Heights provide for inspection the following public data: 1. All notes, letters, e- mails, notations, records, logs, documents and any other data that were created from March 1, 2005 - December 31, 2007, by the Public Works Department or other departments and /or staff of the City of Oak Park Heights regarding the billing for water use at the Washington County Law Enforcement Center. This request includes data created regarding internal communication within the City of Oak Park Heights, as well as for data created regarding external communication between the City of Oak Park Heights with Washington County, including, but not limited to, any record and/or log of conversations between the City Oak Park Heights staff and Washington County Facilities staff regarding meter readings at the Law Enforcement Center between March 1, 2005 through December 31, 2007. Pursuant to the Minnesota Government Data Practices Act, I am requesting that the City of Oak Park Heights provide copies of the following public data: 2 All complaints received by the City of Oak Park Heights from any person(s), agency, or government entity or the legal representative or designee of the above regarding water billing from March 1, 2005 - December 31, 2007, and all of the City's responses thereto. 3. The liability insurance policies for the City of Oak Park Heights that were in effect from March 1, 2005 - December 31, 2007. 4. The sewer and water rates set by the City of Oak Park Heights that were in effect from March 1, 2005 - December 31, 2007. Law Enforcement Center • 15015 62nd Street North - P.O. Box 6, Stillwater, Minnesota 55082 -0006 Phone: 651 -430 -6115 • Criminal Fax: 651 - 430 -6117 • Juvenile Fax: 651 - 430 -6184 Civil Fax: 651 -430 -6163 • Victim Witness Fax: 651 - 430 -6160 • TTY: 651 - 430 -6246 www.co.washington.mn.us Washington County is an equal opportunity organization and employer . Eric Johnson Page Two October 22, 2009 5. The names of the employees who worked for the City of Oak Park Heights during the period from March 1, 2005 - December 31, 2007, on the water billing, their job description, date of first and last employment, education and training, background and previous work experience, the existence and status of any complaints or charges against those employees and the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action. Please contact Harley Will at 430 -6027 to arrange a date, time and place to inspect the data requested in paragraph #1. As prescribed by Minnesota Statute §13.03, access to this data should be made available promptly and at no charge. Please mail copies of the data requested in paragraphs #2 - #5 and an invoice for payment for those copies to: Susan Harris Washington County Attorney's Office 15015 62 Street North P.O. Box 6 Stillwater, MN 55082 -0006 If possible, I would prefer an electronic version of the data requested in paragraphs #2 - #5. That can be sent to me at sue .harris@co.washington.mn.us. If you should have any clarifying questions about this request please contact me at: 651 430 -6129. Sincerely, DOUG JOHNSON, COUNTY ATTORNEY WASHINGTON ,OUNTY, MINNESOTA _ san Harris Responsible Authority for Washington County SH /tgs cc: Jim Schug Harley Will