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Wednesday, December 30, 2009

A District Court Plaintiffs' win in the unallotment litigation against the Pawlenty executive action, as breach of separation of powers.

There probably will be a host or reports, but I have links to two; Strib, this link, and MinnIndependent, this link, both on today's order by Judge Gearin.

Court papers for the unallotment litigation are here.

The order was 11 pages long, at this link as an Adobe pdf document, being an order with subjoined opinion, (there being a subsequent amended order page correcting an inconsequential scrivening error).

Is it immediately appealable, hastening higher court review?

There is tricky wording in the Court rules, Minnesota Rules of Civil Procedure 54.02 governs judgments in actions that involve multiple parties or multiple claims. The rule as presently worded provides that a district court

[...] may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.


See a few recent online cases, if interested, at the law library site, here and here, or via Google Scholar, here and here. They are not about unallotment, but about when an order is interlocutory, but appealable without having to wait for final judgment.

I have not studied the order or opinion to see if there is an explicit finding of no just reason for delay, but it is implicit with the wording above the judge's signature, LET JUDGMENT BE ENTERED ACCORDINGLY. That wording presumably would not be used if the judge believes a just reason for delay existed. It might be the order has the effect of finality, although very prompt.

I expect the intention was to make the order immediately appealable, with notice of appeal having to be timely filed as if this is a dispositive ruling. There are no really disputed facts, only an issue of law is raised. I believe there is an appellate rule, a mechanism, where an intermediate appellate ruling can be bypassed by petition to the Minnesota Supreme Court and acceptance of review, as a matter meriting expedited procedure.

There could be a final word that way soon. My recollection is recount litigation bypassed the intermediate appellate level, but there was a panel decision at the district court level, or in the review process. Both cases raise unique matters of law so that the ultimate word will be from the top court. And there's truly at this point no just cause for delay. It could be wrapped up fairly quickly into the New Year.

I wrap up with words in an email I sent a friend on the GOP side of politics - it is only a first step. The dust settles later. That is the only certainty we share, along with the parties to the litigation. That would be the substance of my post. Unhatched chickens, you're counting eggs if anything.

But my gut feel is the District Court ruling will prevail as the only sensible one possible, given separation of powers and how, factually, the case came to its present posture. I did ask my friend, "What odds will you give me, betting it's upheld, you betting it's overturned?"

I doubt any higher odds than even would be offered in response. I wait and see.

________UPDATE________
It was clear Judge Gearin was not ruling on constitutionality of the legislature's having passed the procedural statute authorizing unallotment in quite particularized circumstances. The statute was not the issue to Judge Gearin, it was how the Governor acted, how he postured things and then avoided a special session [to take his candidcy show on the road, or for other reasons known only to him] and in effect, legislated into effect a budget different than any the legislature voted. He overstepped his power in the view of the District Court. Wording in the order allows the Governor and Legislature to file further papers to put the case into a posture for appellate review; but the facts already have been determined, in the order they are set out in the opinion part, and the case is largely ready to be kicked upstairs for multiple jurists to have a look. While no numbered listing of findings of fact was issued, would it be needed, given what Judge Gearin wrote? To me it appears as if there's no just cause for delay. Run it up the flag pole and see how many Justices salute.