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Representing Clients in Reviews of Housing Court Referee Decisions

Representing Clients in Reviews of Housing Court Referee Decisions. Drew Schaffer, Staff Attorney Legal Aid Society of Minneapolis. Minn. Gen. R. Prac. 601-612. Rules for practice in Housing Court in Hennepin County and Ramsey County

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Representing Clients in Reviews of Housing Court Referee Decisions

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  1. Representing Clients in Reviews of Housing Court Referee Decisions Drew Schaffer, Staff Attorney Legal Aid Society of Minneapolis

  2. 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

  3. 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

  4. Reviewing a Referee’s 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.”

  5. 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

  6. 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

  7. 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

  8. 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

  9. 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

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

  11. 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

  12. 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

  13. 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

  14. 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

  15. 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

  16. 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

  17. 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)

  18. 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

  19. 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

  20. Examples of Emergency Judge Review Issues • Larry McDonough’s “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)

  21. 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

  22. 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

  23. 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.

  24. 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

  25. 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

  26. 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 10:00 a.m., in Room 314 at Minneapolis City Hall

  27. 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

  28. 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

  29. 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

  30. 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

  31. 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

  32. 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

  33. 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

  34. Contact Information • Drew Schaffer, Attorney • (612)-746-3644 • dpschaffer@midmnlegal.org • Legal Aid Society of Minneapolis, Southside Office • (612)-332-1441 PowerPoint Presentation by Drew P. Schaffer

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