Supervalu/Columbia II Rockridge Center v. County of Hennepin
| Decision Date | 19 October 2020 |
| Docket Number | 27-CV-18-5553,27-CV-19-19545,27-CV-19-4110 |
| Parties | Supervalu/Columbia II Rockridge Center Petitioners, v. County of Hennepin, Respondent. |
| Court | Tax Court of Minnesota |
This matter came before the Honorable Wendy S. Tien, Judge of the Minnesota Tax Court, on petitioner's motion for recusal.
Robert A. Hill, Robert Hill Law, Ltd., represents petitioner Supervalu/Columbia II Rockridge Center.
Rebecca L.S. Holschuh and Sara L. Bruggeman, Assistant County Attorneys, represents respondent Hennepin County.
Based upon all the files, records, and proceedings, the court now makes the following:
Petitioner's motion is denied.
IT IS SO ORDERED.
On April 5, 2018, Supervalu/Columbia II Rockridge Center ("Supervalu") filed a petition in the Minnesota Tax Court, challenging the Pay 2018 assessed value of the Subject Property, 4445 Nathan Lane North in Plymouth, and asserting that it was unequally assessed when compared with other properties.[1] Subsequently, on March 18, 2019, and November 26, 2019, Supervalu filed petitions challenging the Pay-2019 and Pay-2020 assessed values of the Subject Property (the "Pay-2019 Case" and the "Pay-2020 Case").[2]
This court issued a scheduling order on December 19, 2018 for the Pay-2018 Case, which is scheduled for trial to begin on November 17, 2020.[3] The Pay-2019 and Pay-2020 Cases were consolidated[4] and a scheduling order issued on August 4 2020; no trial has been scheduled for these cases.[5]
On March 9, 2020, Supervalu moved for an "Erie-Shuffle Order" [6] transferring the Pay-2018, -2019, and -2020 Cases to the Hennepin County District Court for "determination of issues which have arisen that are beyond the subject matter jurisdiction of this Court to consider." [7]Supervalu asked this court to transfer the three cases to the Hennepin County District Court and to "recuse itself" entirely from further proceedings.[8] A hearing on the Erie Motion was held on March 23, 2020. At that time, Supervalu confirmed on the record it was not moving the court for recusal, nor did Supervalu assert actual bias or impropriety on the part of any member of this court.[9] Accordingly, the court concluded no motion for recusal was before the court as part of the Erie Motion and none was decided.[10] The court denied the Erie Motion on its remaining grounds.[11]
On September 10, 2020, Supervalu filed the instant motion, which asks this court to transfer the three cases to the Hennepin County District Court and to "recuse itself" entirely from further proceedings.[12] The basis for this renewed request is the same as in the Erie Motion: that, because of the former substantive participation of Judge Bowman as counsel of record for the County, the court as a whole should exercise discretion to recuse itself. Supervalu's claim rests on two assertions, made solely in its motion: first, that Judge Bowman's presence on the court creates an "appearance of impropriety" for the rest of the court with respect to these cases, which recusal avoids;[13] and second, that the impartiality of the judges of this court may reasonably be questioned concerning these cases.[14] The Recusal Motion explicitly seeks the same relief as the Erie Motion: transfer of all three cases to the district court.[15]
A hearing on this motion was held September 24, 2020.
Minnesota Statutes, section 271.06, subdivision 7 (2018), provides that, in general, the Minnesota Rules of Civil Procedure (the "Rules") govern the procedures in the tax court, where practicable. Rule 63.03 specifies the removal procedure with respect to a judge who already has presided at a motion or other proceeding of which the party had notice. In re OCC, LLC v. Cty. of Hennepin, 917 N.W.2d 86, 92-93 (Minn. 2018). Specifically, "[a] judge or judicial officer who has presided at a motion or other proceeding … may not be removed except upon an affirmative showing that the judge or judicial officer is disqualified under the Code of Judicial Conduct." Minn. R. Civ. P. 63.03.
The standard for an affirmative showing of disqualification is an "objective examination of whether the judge's impartiality could reasonably be questioned." Powell v. Anderson, 660 N.W.2d 107, 116-18 (Minn. 2003) (concerning Canon 3(D)(1) of the former Code of Judicial Conduct, requiring disqualification in situations "where the judge's impartiality might reasonably be questioned," parallel to current Judicial Rule 2.11(A)); see also State v. Burrell, 743 N.W.2d 596, 601 (Minn. 2008) ().
The Minnesota Code of Judicial Conduct (the "Judicial Rules") establishes an independent responsibility for judges to disqualify themselves "from any proceeding in which the judge's impartiality might reasonably be questioned." Minn. Code Jud. Conduct R. 2.11(A). Judicial Rule 2.11(A) sets forth five enumerated circumstances, which are not exclusive, but include: (1) personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed facts (Minn. Code Jud. Conduct R. 2.11(A)(1)); (2) the participation in the proceeding of individuals with specified relationships to the presiding judge (Minn. Code Jud. Conduct R. 2.11(A)(2)); (3) the existence of an economic interest in the case on the part of certain individuals with specified relationships to the presiding judge (Minn. Code Jud. Conduct R. 2.11(A)(3)); (4) extrajudicial public statements by the presiding judge that appear to commit the judge to a particular outcome in the case (Minn. Code Jud. Conduct R. 2.11(A)(4)); and (5) the existence, on the part of the presiding judge, of certain prior employment relationships (Minn. Code Jud. Conduct R. 2.11(A)(5)).
Judicial Rule 2.7 provides that judges "shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law." Minn. Code Jud. Conduct R. 2.7.
The court construes Supervalu's motion for "recusal" as a motion for disqualification pursuant to Rule 63.03. The motion is denied.
A motion to disqualify a judge who has presided at a motion or other proceeding of which the moving party had notice requires an affirmative showing of disqualification under the Judicial Rules. Minn. R. Civ. P. 63.03; Powell, 660 N.W.2d at 116-118. The presiding judge previously presided at the hearing on the Erie Motion, which Supervalu brought (and of which it accordingly had notice).[16] During that hearing Supervalu expressly repudiated its appurtenant request for judicial recusal, and affirmed that that it was not asserting actual bias or impropriety on the part of any member of this court-including the undersigned. In pursuing its current motion, Supervalu made no affirmative showing of disqualification, nor does Supervalu contend the presiding judge is required to disqualify for reasons specified in the Judicial Rules. Indeed, Supervalu agrees the contrary is true: that "[h]ere, Petitioners are not alleging any wrongdoing by the Minnesota Tax Court." [17] Moreover, in response to direct questioning, Supervalu stated it was not suggesting the presiding judge was not meeting her obligations under the Judicial Rules.[18]
Rather than making an affirmative showing of disqualification, Supervalu argues that, because Judge Bowman filed a pretrial brief on behalf of the County in the Pay-2018 Case, [19] her appointment to this court creates the appearance of bias for other judges of this court concerning these cases.[20] Supervalu cites a "collegial relationship" [21] and the common reliance by judges of this court on shared law clerks.[22] The court acknowledges that Judge Bowman is a member of this court, and that this court employs law clerks who perform work for each of the judges. Whether Judge Bowman's membership on the court or the functions of the law clerks create the appearance of bias on the part of the presiding judge in this case, however, requires an "objective examination of whether the [presiding] judge's impartiality could reasonably be questioned." Powell, 660 N.W.2d at 116-18. "The mere fact that a party declares a judge partial does not in itself generate a reasonable question as to the judge's impartiality." Burrell, 743 N.W.2d at 602-03 ().
The presiding judge stated on the record that she examined her responsibilities regarding this case concerning impartiality and had not disqualified or recused herself based on an examination of those responsibilities under the Code of Judicial Conduct.[23] Supervalu alleges no facts, beyond Judge Bowman's membership on the court after having represented the County, and this court's employment of law clerks who perform work for each of the judges, that suggest actual or implied bias on the part of the presiding judge.[24] The suggestion by Supervalu that Judge Bowman's membership on the court might bias the presiding judge in favor of the County, however, is based on conjecture, not evidence. Speculation without evidence about bias resulting from personal relationships "cannot serve as a basis to require the recusal of a [ ] judge." Hooper v. State, 838 N.W.2d 775, 790 (Minn. 2013) (citing Clemens v. U.S. Dist. Ct. for Cent. Dist. of Cal., 428 F.3d 1175, 1180 (9th Cir. 2005) (...
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