Representing Clients in Reviews of Housing Court Referee Decisions

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Representing Clients in Reviews of Housing
Court Referee Decisions

• Drew Schaffer, Staff Attorney
• Legal Aid Society of Minneapolis

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Minn. Gen. R. Prac. 601-612

• Rules for practice in Housing Court in Hennepin
  County and Ramsey County
• Supplemented by the Minnesota Rules of Civil
  Procedure and statutory law Minn. Gen. R. Prac.
  601
• Referees given subject matter jurisdiction over
  all criminal and civil claims arising under
  Chapter 504B Minn. Gen. R. Prac. 602

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Getting a Judge under Minn. Gen. R. Prac. 601-612

• Option to remove a case from the referee system
  Minn. Gen. R. Prac. 602
• Option to remove a particular referee Minn. R.
  Civ. P. 63.03
• Option to review any referee decision in a case
  not removed from referee system Minn. Gen. R.
  Prac. 611

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Reviewing a Referees Decision

• Minn. Gen. R. Prac. 611
• In all cases except conciliation court actions,
  a party not in default may seek judge review of a
  decision or sentence recommended by the referee
  by serving and filing a notice of review on the
  form prescribed by the court administrator.
•  

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Minn. Gen. R. Prac. 611

• Applicable to all cases except conciliation
  court actions
• Applicable to parties not in default
• Reference to recommended decisions or sentences
  implicit that all decisions are subject to
  review

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Decisions Frequently Reviewed Under Minn. Gen. R.
Prac. 611

• Eviction action decisions
• Orders denying tenants motions for expungement
• Rent abatement determinations in rent escrow
  actions

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Initiating a Judge Review

• Notice of request for review
• Filed at Housing Court on Floor C-3 of the
  Hennepin County Government Center
• Affidavit to proceed in forma pauperis required
  for indigent party if notice of request for
  review is first filing in the case

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Initiating a Judge Review (cont.)

• Reviewed by the referee in chambers in Hennepin
  County
• Issuance of ex parte scheduling order
• Service of the ex parte order and the notice on
  the opposing party pursuant to the terms of the
  ex parte order

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Deadlines to Request Review

• Decision announced orally in court
• 10 days after announcement
• Written decision mailed to the parties
• 13 days after service by mail service deemed
  effective at mailing

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Seeking a Stay of the Judgment

• Judgment not stayed by the filing of the notice
  of request for review
• Stay obtained by a partys request in the notice
  of request for review
• Important if the party seeking review is a
  defendant in an eviction action

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Bond Required for Stay

• Request for a bond or waiver of a bond included
  as part of request for stay of judgment Minn.
  Gen. R. Prac. 611(b)
• Bond decision governed by Minn. R. Civ. App. P.
  108 (amended in 2009)
• Cross-referenced in Minn. Gen. R. Prac. 611(b)
  and now found in Minn. R. Civ. App. P. 108.02

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Bond Amount

• Predecessor appellate rule bond as value of the
  use and possession of the premises from the time
  of the review, while the review is pending
• Monthly rent as it comes due
• Amended appellate rule suggestive of the same
  measure using different language
• GOAL To keep parties in same position as at
  start of the review process

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Scope of Review

• Scope of review limited to the record made before
  the referee Minn. Gen. R. Prac. 611(a)
• Includes the testimonial, documentary, and
  photographic evidence introduced during the
  proceedings before the referee

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Scope of Review

• Additional testimony, documents, and photographs
  not considered by the reviewing judge
• EXCEPT when reviewing judge exercises discretion
  to ask for and to consider additional information
  extremely rare

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Standard of Review

• Not explicit in Minn. Gen. R. Prac. 611
• Standard of review under case law and other rules
• Whether the evidence in the record sustains the
  findings and whether the findings sustain the
  conclusions
• Factual findings clearly erroneous Minn. R.
  Civ. P. 52.01
• Legal issues de novo

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Transcript Request

• Party seeking review required to obtain and to
  make payment arrangements for a transcript
  Minn. Gen. R. Prac. 611(c)
• Supplemental affidavit to proceed in forma
  pauperis required for an indigent party to obtain
  a transcript

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Transcript Request

• Deadline to request a transcript One day after
  filing the notice of request for review
• Will likely be addressed in the ex parte
  scheduling order in Hennepin County
• Transcript to be provided within five days of
  purchase
• Extension of time periods for good cause
  Minn. Gen. R. Prac. 611(b)

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Emergency Judge Reviews

• Not provided by Minn. Gen. R. Prac. 601-612
• Exceptional procedure
• Same principles and procedures apply, except the
  following
• Scheduling on TRO calendar in Hennepin County
• Accelerated process same-day hearing possible

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Examples of Emergency Judge Review Issues

• Substantive emergencies
• Denial of essential services or facilities
• Condemnation by municipality
• Procedural emergencies
• Bond/stay determination
• In forma pauperis determination
• Eviction possible before hearing date on
  conventional timeline

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Examples of Emergency Judge Review Issues

• Larry McDonoughs Tome
• www.povertylaw.homestead.com/Readings
• Chapter IX
• Caberallo, L.L.C. v. REDACTED (Dec. 23, 2005)
• Minneapolis Public Housing Authority v.
  REDACTED (Aug. 25, 2006)
• Minneapolis Public Housing Authority v.
  REDACTED (2009) (Jan. 22, 2009)

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Strategies in Judge Review

• Limiting and framing the issues
• Legal writing
• What to expect at the hearing
• Removing a judge
• What relief to request
• Opposing a request for review

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Limiting and Framing the Issues in a Judge Review

• Similar to framing an issue for an appeal to the
  Court of Appeals
• Standard of review can be determinative

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Limiting and Framing the Issues in a Judge Review

• Pure legal issues best for review
• Interpretation of statutes or rules
• Application of legal principles to undisputed
  facts
• Dependent on the quality of the record made
  before the referee
• Requires judge review planning during trial
• Pleadings, motions (Minn. Gen. R. Prac. 610),
  objections, etc.

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Legal Writing

• Notice of request for review
• www.minnhousingclinic.homestead.com/Forms.html
• Identification of general legal issues
• Identification of specifically disputed findings
  and conclusions
• Brief summarization of arguments

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Legal Writing

• Memorandum for review hearing
• Summarization of the factual record, with
  citation to the transcript and exhibits
• Statement of the issue(s) and the standard of
  review
• Thorough, concise argument of the case

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What to Expect at a Judge Review Hearing

• Context in Hennepin County
• Review hearings scheduled on the special term
  calendar
• Held every Thursday morning at 1000 a.m., in
  Room 314 at Minneapolis City Hall

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What to Expect at a Judge Review Hearing

• Context in Hennepin County (cont.)
• Assignment of the presiding judicial officer done
  that morning or earlier in the same week
• Usually 6-8 motion hearings on re-opening default
  Conciliation Court cases heard before judge
  reviews from Housing Court

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What to Expect at a Judge Review Hearing

• Common format
• Attorneys/parties at podiums
• 10 minutes of argument from party requesting
  review
• 10 minutes of argument from party opposing review
• Brief response from party requesting review
• Variable from one judge to the next and from one
  calendar to the next

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Judicial Officer Removal on Judge Review

• Removal of judge on judge review Minn. R. Civ.
  P. 63.03
• Removal of a judge not an option if a referee was
  removed under Minn. R. 63.03 instead of under
  Minn. Gen. R. Prac. 602 earlier in the case

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Judicial Officer Removal on Judge Review

• Notice to remove must be filed and served
  within 10 days after notice of which judicial
  officer is presiding at a hearing
• The Minnesota Court Information System (MNCIS)
  advance information on which judge is assigned to
  hear a case on review

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What Relief to Request

• Potential outcomes
• Affirm
• Remand for additional determinations
• Reverse and award relief on record
• Reverse and remand for relief
• Strategic considerations as party requesting
  review
• Reversal with relief on the record
• Reversal with remand

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Opposing a Request for Review

• Standard and scope of review
• Minn. R. Civ. P. 52.01
• Concession of obvious factual and legal points
  not in dispute
• Memorandum opposing review

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Final Points

• Judge review not an overly time-consuming process
• Cost-benefit and risk-reward analyses often favor
  a second look at the case
• Questions

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Contact Information

• Drew Schaffer, Attorney
• (612)-746-3644
• dpschaffer_at_midmnlegal.org
• Legal Aid Society of Minneapolis, Southside
  Office
• (612)-332-1441
• PowerPoint Presentation by Drew P. Schaffer