OCC, LLC v. Cnty. of Hennepin (In re OCC, LLC), A18-0526

Decision Date29 August 2018
Docket NumberA18-0526
Citation917 N.W.2d 86
Parties IN RE OCC, LLC, Petitioner, OCC, LCC, Petitioner, v. County of Hennepin, Respondent.
CourtMinnesota Supreme Court

Eric J. Magnuson, Robins Kaplan LLP, Minneapolis, Minnesota; and Thomas R. Wilhelmy, Judy S. Engel, Fredrikson & Byron, P.A., Minneapolis, Minnesota, for petitioner.

Michael O. Freeman, Hennepin County Attorney, Thomas F. Pursell, Jane N.B. Holzer, John J. March, Assistant Hennepin County Attorneys, Minneapolis, Minnesota, for respondent.



In this case, we must decide whether the notice to remove an assigned tax court judge was timely, see Minn. R. Civ. P. 63.03 (allowing a notice to remove to be filed within 10 days of notice of the assigned judge), and if so, whether the assigned judge erred in finding that it was impracticable to honor the notice. See Minn. Stat. § 271.06, subd. 7 (2016) (stating that the Rules of Civil Procedure govern tax court procedures "where practicable"). OCC, LLC, a property owner in Hennepin County and petitioner in the Minnesota Tax Court, petitions for a writ of mandamus that directs the tax court to vacate an order that quashed OCC’s notice to remove the assigned tax court judge and to honor the notice. Hennepin County, respondent here and in the tax court, opposes the petition. The County argues that OCC’s notice to remove was untimely, and based on the facts of this proceeding, the tax court correctly concluded that honoring the notice to remove was not practicable.

We conclude that OCC’s notice to remove was timely. We further conclude that the record does not establish that honoring the notice to remove is impracticable in this case. We therefore grant the petition for mandamus, direct the tax court to vacate its order quashing OCC’s notice to remove, and direct the tax court to honor that notice by assigning OCC’s consolidated tax proceedings to a different judge.


OCC, a property owner in Hennepin County, has filed three appeals from Hennepin County’s tax assessments for its property, one appeal for each tax year, 2015, 2016, and 2017. See Minn. Stat. § 278.02 (2016) (explaining that each petition challenging a tax assessment must be limited to a single assessment date). In July 2016, the tax court issued a scheduling order in the first case, for tax year 2015, directing OCC and the County to prepare and file a joint statement of the case by May 2017 ("July 2016 Order"). The July 2016 Order, signed by one of the three members of the tax court, notified the parties that the 2015 tax year appeal would be deemed "trial-ready as of September 5, 2017." The Order also informed the parties that after the joint statement was filed, "the tax court administrator will assign a judge, schedule the trial in this matter, and notify the parties of the judge assignment and the trial date."

On May 5, 2017, the parties filed their joint statement of the case in the appeal for the 2015 tax year. The parties also explained that two additional appeals (for the 2016 and 2017 tax years) had been filed for the same property and asked the tax court to consolidate the three cases. Finally, the parties asked the tax court to adopt the schedule in the July 2016 Order as the governing order for the consolidated cases.

On May 11, 2017, the tax court granted the partiesjoint request, consolidated the cases "for all further pretrial proceedings and for trial," required the consolidated cases to "proceed under" the July 2016 Order, and notified the parties that the trial-ready date established by the July 2016 Order—September 5, 2017—now applied to the consolidated cases ("May 2017 Order"). The tax court judge who signed the July 2016 Order did not sign the May 2017 Order. Instead, the judge who is the subject of the removal notice signed the May 2017 Order. As of the May 2017 Order, no other hearing and no specific trial date was scheduled in the consolidated cases. And the May 2017 Order did not notify the parties which tax court judge had been assigned to the case.

On August 18, 2017, OCC (through its counsel of record) requested a hearing date from the tax court administrator to address motions in limine. On August 21, 2017, the tax court administrator provided counsel for both parties with dates on which the tax court judge—the same judge who had signed the May 2017 Order—would be available for a hearing on OCC’s motions. A hearing date in September was selected.

On August 30, 2017, OCC filed a notice to remove the assigned judge, citing Minn. R. Civ. P. 63.03. Noting that a "Notice of Judicial Assignment has not yet been issued in these matters," OCC relied on the judge information provided by the tax court administrator on August 21, 2017, to establish that its notice was timely.

On September 5, 2017, OCC asked the tax court administrator whether the September hearing on its motions in limine would be rescheduled in light of its notice to remove. At this point, Hennepin County objected to OCC’s notice to remove as untimely, stating that the assigned judge had already presided over the consolidated cases, in May, by granting the parties’ joint consolidation request in the May 2017 Order. Accordingly, the County contended, the deadline to file a notice to remove expired in May, and OCC’s August notice was untimely under Rule 63.03. OCC, in response, argued that the May 2017 Order consolidating the three appeals was a "ministerial action" that was not "a motion or any other proceeding" within the meaning of Rule 63.03.

The tax court, through the assigned judge, directed the parties to address whether OCC’s notice was timely and if so whether it was practicable to honor the notice in the consolidated cases. In response, Hennepin County moved to quash OCC’s notice to remove, arguing that it was untimely in light of the May 2017 Order. Further, the County argued, the decision on the consolidation motion was not "ministerial" but was instead a discretionary decision that impacted the work of the court and the parties. Finally, the County argued that the tax court had to determine, as a fact question, whether removal was "practicable" in this case, see Minn. Stat. § 271.06, subd. 7 (stating that the Rules of Civil Procedure govern in the tax court, "where practicable"), given an alleged pattern of judicial removals in unrelated tax court proceedings by OCC’s attorneys. The County asked the tax court to conclude "under the unique facts of this case" that honoring the removal notice is impracticable.

OCC opposed the motion to quash, asserting that the May 2017 Order did not "notify the parties of the judge assignment or of any hearing or trial date" and the parties did not have notice of a judge assignment before the tax court issued that order. Under the plain language of Rule 63.03, OCC argued, the time to remove did not begin to run until the parties "actually receive[d] notice of which judge [was] to preside at the hearing or trial," which occurred when the hearing on its motions in limine was scheduled in August 2017. Finally, OCC asserted that the right provided by Rule 63.03, to remove an assigned judge, is a party’s right, rather than an attorney’s right. Thus, OCC explained, notices of removal filed by counsel for OCC in other tax cases, in which OCC was not a party, were irrelevant to determining whether application of Rule 63.03 is practicable in this case.

The tax court, through the assigned judge, granted the County’s motion to quash OCC’s notice to remove.1 The tax court declined to specifically decide whether OCC’s notice to remove was timely. Instead, the tax court concluded that it was not "practicable" to honor the removal notice. The tax court was concerned that OCC’s counsel had a "practice" of removing the assigned judge, which could impair judicial independence.2 Relying on our decision in State v. Erickson , 589 N.W.2d 481 (Minn. 1999), the tax court concluded that it could not honor a notice to remove that "strikes at the court’s independence." The tax court also concluded that as a court with only three judges, the tax court cannot "honor every notice of removal filed in every case" because to do so would allow parties to effectively choose which judge would hear the case, would constrain the court’s ability to effectively and efficiently manage its docket and calendar, and would deplete the limited funding available for appointment of acting judges. In reaching this conclusion, the tax court noted the unique elements of its jurisdiction, as a court with statewide jurisdiction that hears appeals from county property tax determinations, and appeals from sales, income, and other tax assessments by the Commissioner of Revenue. See Minn. Stat. § 271.01, subd. 5 (2016) (stating that the tax court’s jurisdiction over the tax laws of the state is "statewide," and defining "tax laws of this state" to include tax laws administered by the Commissioner of Revenue and "laws dealing with property valuation, assessment or taxation of property for property tax purposes").

OCC filed a petition for a writ of mandamus that asks our court to direct the tax court to "vacate" its order quashing the notice to remove. Then, OCC asks that we direct the tax court to assign a new judge to preside over its consolidated tax court appeals. We directed the parties to file informal briefs, and we granted OCC’s request for oral argument.


In this case, we must decide whether mandamus should be exercised over a pretrial decision of the tax court. A party that seeks a writ of mandamus "directed to ... the tax court" must provide a "statement of the reasons why the extraordinary writ should issue." Minn. R. Civ. App. P. 120.01. Mandamus is an extraordinary legal remedy, Mendota Golf, LLP v. City of Mendota Heights , 708 N.W.2d 162, 171 (Minn. 2006), issued to compel a judicial officer to perform "an act which the law specially enjoins as a duty resulting from an office, trust, or station" or to "discharge any of [the court’s] functions," Minn....

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9 cases
  • Johnson v. Cnty. of Hennepin
    • United States
    • Tax Court of Minnesota
    • August 22, 2022
    ...N.W.2d 86, 91 (Minn. 2018). "In general, it is practicable [in the tax court] to honor notices to remove that are filed under Rule 63.03." Id. at 93-94 (citing Corp. v. Comm'r of Revenue, No. 8670-R, 2015 WL 234718, at *2 (Minn. T.C. Jan. 16, 2015) (stating that "Rule 63.03 notices of remov......
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    • October 19, 2020
    ... ... In re ... OCC, LLC v. Cty. of Hennepin, 917 N.W.2d 86, 92-93 ... ...
  • Schaefer v. Fredin
    • United States
    • Minnesota Court of Appeals
    • April 20, 2020
    ...party can "once" disqualify a presiding judge or judicial officer "as a matter of right." Id.; see also OCC, LLC v. County Of Hennepin (In re OCC, LLC), 917 N.W.2d 86, 91 (Minn. 2018) ("The timely filing and service of a notice under Rule 63.03 automatically results in the judge's removal."......
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    • Minnesota Court of Appeals
    • September 7, 2021
    ...this case. That caselaw explains that a properly filed notice of removal "automatically results in the judge's removal." In re OCC, LLC, 917 N.W.2d 86, 91 (Minn. 2018). "Failure to honor a proper removal notice is reversible error requiring a new hearing." Citizens State Bank of Clara City ......
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