NO. A16-0736

State of Minnesota

In Supreme Court

TONY WEBSTER

Appellant,vs.

HENNEPIN COUNTY AND THE HENNEPIN COUNTY SHERIFF’S OFFICE

Respondents/Relators.

APPELLANT’S REPLY BRIEF

Scott M. Flaherty (#388354) Cyrus C. Malek (#395223) Samuel Aintablian II (#398075) BRIGGS AND MORGAN, P.A. 2200 IDS Center 80 South Eighth Street Minneapolis MN 55402 Tel: (612) 977-8745 sflaherty@briggs.com

Attorneys for Appellant Tony Webster

Daniel Rogan, Sr. (#274458) HENNEPIN COUNTY ATTORNEY’S

OFFICE

A-2000 Government Center 300 South Sixth Street Minneapolis, MN 55487 Tel: (612) 348-5529 daniel.rogan@hennepin.us

Attorney for Respondents Hennepin County and the Hennepin County Sheriff’s Office

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TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES ............................................................................... ii

INTRODUCTION ................................................................................................1

ARGUMENT ........................................................................................................1

I. NORTHERN PACIFIC RAILWAY REMAINS THE PROPER LEGAL STANDARD FOR A STAY PENDING APPEAL ...........................................................................................1

A. Northern Pacific Railway need not precede to Minn. Stat. §14.65 and Appellate rule 108 to control .....................2

B. The Northern Pacific Railway Court adopted the rule from Corpus Juris Secundum, which included a factor test ..........................................................................................3

C. Likelihood of Success on appeal is implicitly included within the Northern Pacific Railway framework .................4

1. In equity matters, courts account for likelihood of success on appeal; and they should ........................5

2. Likelihood of success on appeal necessarily is a factor when considering the harms to a party seeking and opposing a stay ........................................7

3. Likelihood of success on appeal is explicitly included in the modern formulation of Corpus Juris Secundum ...........................................................8

II. RESPONDENTS MISCHARACTERIZE THE PHRASE “MAY ORDER A STAY UPON SUCH TERMS AS IT DEEMS PROPER” IN MINNESOTA STATUTES §14.65 ............9

III. RESPONDENTS WILL NOT BE SERIOUSLY INJURED ABSENT A STAY .......................................................................... 13

CONCLUSION .................................................................................................. 14

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TABLE OF AUTHORITIES

Page(s)

Cases

C.H. Robinson Worldwide, Inc. v. XPO Logistics, Inc., No. 27-CV-12-16003, 2014 WL 8335959 (Minn. 4th Jud. Dist., Jan. 14, 2014) (Abrams, J.) .............................................................................6

Churchill Envtl. & Indus. Equity Partners, L.P. v. Ernst & Young, L.L.P., No. MP 01-00395, 2001 WL 35927945 (Minn. 4th Jud. Dist. Dec. 7, 2001) (Nord, J.) ....................................................................................6

Cooper v. Gwinn, 298 S.E.2d 781 (W.Va. 1981) ........................................................................ 13

DRJ, Inc. v. City of St. Paul, 741 N.W.2d 141 (Minn. App. 2007) .......................................................... 9, 14

Green v. BMW of N. Am., LLC, 826 N.W.2d 530 (Minn. 2013) ...................................................................... 12

Hilton v. Braunskill, 481 U.S. 770 (1987) ..................................................................................... 6, 7

Holt v. State, 772 N.W.2d 470 (Minn. 2009) .........................................................................3

Howe v. City of St. Paul, No. C5-94-1106, 1995 WL 59224 (Minn. Ct. App. Feb. 14, 1995) .............................................................................................................. 11

Jaeger v. Palladium Holdings, LLC, 884 N.W.2d 601 (Minn. 2016) .................................................................... 2, 3

Kelsey v. State, 298 Minn. 531, 214 N.W.2d 236 (1974) ..........................................................3

LaMont v. Premier Bank Minnesota, No. A11-211, 2011 WL 4782512 (Minn. Ct. App. Oct. 11, 2011) ................ 11

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Larkin v. Wells Fargo Bank, N.A., No. 27-cv-10-4725, 2012 WL 9756898 (Minn. 4th Jud. Dist. May 10, 2012) (Quam, J.) ................................................................................6

MacLean v. Lasley, 181 Minn. 379, 232 N.W. 632 (1930) ..............................................................3

Marple v. Minneapolis & St. L. Ry. Co., 115 Minn. 262, 132 N.W. 333 (1911) ..............................................................5

Marriage of Gottsacker v. Gottsacker, 664 N.W.2d 848, 852 (Minn. 2003) .................................................................5

Peterson v. Johnson Nut Co., 209 Minn. 470, 297 N.W. 178 (1941) ........................................................... 12

Reiter v. Sonotone Corp., 442 US 330 (1979) ........................................................................................ 4,5

Stabs v. City of Tower, 229 Minn. 552, 40 N.W.2d 362 (1949) ........................................................ 8,9

State v. Fearon, 283 Minn. 90, 166 N.W.2d 720 (1969) ....................................................... 6, 7

State v. Murphy, 277 Minn. 355, 152 N.W.2d 507 (1967) ..........................................................7

State v. Northern Pacific Railway Co., 221 Minn. 400, 22 N.W.2d 569 (1946) .................................................. passim

State v. Serstock, 402 N.W.2d 514 (Minn. 1987) .........................................................................8

State v. Wedge, 24 Minn. 150 (1877) .........................................................................................8

Statutes

Minn. Stat. §14.65 ....................................................................................... passim

Minn. Stat. § 340.96 ..............................................................................................6

Minnesota Government Data Practices Act ................................................ 13,14

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Other Authorities

Appellate rule 108.02 .................................................................................. passim

4 C.J.S. Appeal and Error § 636.................................................................. 3, 4, 8

D. Walker, The Oxford Companion to Law (Clarendon Press, Oxford 1980) .................................................................................................. 13

Minn. R. Civ. P. 4.03(a) ........................................................................................3

1

INTRODUCTION

Stays are equitable, not legal, and this Court’s decision in State v.

Northern Pacific Railway Co., 221 Minn. 400, 22 N.W.2d 569 (1946) embodies

the traditional principle that equity is flexible. This flexibility means that

decisions of whether to issue a stay pending appeal are context-dependent

and vary on a case-by-case basis. As such, the test reflected in trial courts’

application of Northern Pacific Railway—and in its federal counterpart—is

not a checklist to be ticked by rote but is instead a guide for a trial court’s

discretion to permit meaningful appellate review of it. In an effort to topple

Northern Pacific Railway, Respondents miss this point. Respondents’ brief

also mischaracterizes the statutory phrase “may order a stay upon such

terms as it deems proper” and they attempt to vivisect Northern Pacific

Railway rather than reading its parts together in context. And finally they

imply that without the existing stay, the most populous, wealthiest county in

the state cannot produce emails that they have already identified,

segregated, and preserved.

ARGUMENT

I. NORTHERN PACIFIC RAILWAY REMAINS THE PROPER LEGAL STANDARD FOR A STAY PENDING APPEAL.

Respondents make three arguments regarding State v. N. Pac. Ry. Co.,

221 Minn. 400, 22 N.W.2d 569 (1946). First, Respondents argue that

Northern Pacific Railway cannot control because the case predates Minn.

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Stat. §14.65 and appellate rule 108. Respondents then argue that neither

Northern Pacific Railway nor Corpus Juris Secundum included a factor test.

Finally, Respondents argue that, even if Northern Pacific Railway or Corpus

Juris Secundum included a factor test, likelihood of success on appeal is not

included among those factors. These arguments are all erroneous.

A. Northern Pacific Railway need not precede Minn. Stat. §14.65 and Appellate rule 108 to control.

Respondents assert that because Northern Pacific Railway was not a

request for a stay under Minn. Stat. §14.65, and was decided in 1946, “long

before the creation of the Rules of Civil Appellate Procedure,” Resp. Br. at 16,

Northern Pacific Railway cannot be controlling precedent here. Respondents’

argument misses its mark in two ways. As discussed fully in Section II of this

brief, Respondents stretch Minn. Stat. §14.65 beyond its meaningful bounds,

so it is irrelevant whether Northern Pacific Railway was a request for a stay

under Minn. Stat. §14.65. Further, Respondents offer no support for the

conclusion that precedent fails to control when that precedent predates a

codified rule of law. On the contrary, this Court has recognized the opposite.

In Jaeger v. Palladium Holdings, LLC, 884 N.W.2d 601 (Minn. 2016),

this Court addressed the validity of service of process upon an individual for

notice of a foreclosure sale under Minn. R. Civ. P. 4.03(a). In discussing the

substitute-service requirement, the Court cited a 1930 case, MacLean v.

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Lasley, 181 Minn. 379, 380, 232 N.W. 632, 632 (1930), for the proposition that

substitute-service requirements are subject to strict compliance. See Jaeger,

884 N.W.2d at 609. After citing MacLean, the Court explained: “Although

MacLean predates our adoption of the Minnesota Rules of Civil Procedure,

there is no reason to treat substitute service under Rule 4.03(a) any

differently than we did in MacLean….” Id.; see also Holt v. State, 772 N.W.2d

470, 480–81 (Minn. 2009) (relying on Kelsey v. State, 298 Minn. 531, 532, 214

N.W.2d 236, 237 (1974) for its harmless error analysis despite Kelsey

predating the Minnesota Rules of Criminal Procedure). Jaeger and Holt

suggest that Northern Pacific Railway is not eliminated even though the

appellate rules were adopted in its wake.

B. The Northern Pacific Railway Court adopted the rule from Corpus Juris Secundum, which included a factor test.

As Respondents correctly note, 4 C.J.S. Appeal and Error § 636, as

cited by the Court in Northern Pacific Railway, provides the following:

As a rule a supersedeas or stay should be granted, if the court has the power to grant it, whenever it appears that without it the objects of the appeal or writ of error may be defeated, or that it is reasonably necessary to protect appellant or plaintiff in error from irreparable or serious injury in case of a reversal, and it does not appear that appellee or defendant in error will sustain irreparable or disproportionate injury in case of affirmance.

It should be granted where…the loss or damage occasioned by the stay can be met by a money award, where important questions of law are raised, which, if decided in favor of appellant or plaintiff in error, will require a reversal, to avoid a multiplicity of suits, or to protect the appellate court’s jurisdiction.

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State v. N. Pac. Ry. Co., 221 Minn. 400, 409–10, 22 N.W.2d 569, 574–75

(1946). Respondents conclude that the above language is in reference to

“general rules” that a court may consider. Often overlooked, however, is the

text of the next sentence in 4 C.J.S. Appeal and Error § 636, which provides:

A supersedeas or stay will not be granted by either the lower or the appellate court unless it appears to be necessary to prevent irreparable injury or a miscarriage of justice, and that substantial questions will be presented on appeal. Nor will it be granted where it appears that the appeal or writ of error is merely for the purpose of delay, is frivolous, and without merit;

4 C.J.S. Appeal and Error § 636. Using the phrase “will not be

granted…unless” provides a directive. That directive is that a specific

requirement must be satisfied for a stay pending an appeal to be granted.

Congruently, the phrase “Nor will it be granted where…” exemplifies that the

preceding requirement is multi-faceted.

C. Likelihood of Success on appeal is implicitly included within the Northern Pacific Railway framework.

Respondents argue that Northern Pacific Railway does not contemplate

likelihood of success on appeal as a factor that must be considered. To reach

this conclusion, Respondents dissect Northern Pacific Railway, pulling out

the fragmented shrapnel and examining those pieces as needed. In essence,

Respondents treat Northern Pacific Railway as a statute. But, Respondents’

mechanical parsing is impermissible because judicial decisions are not

statutes and they must not be treated as such. See Reiter v. Sonotone Corp.,

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442 US 330, 342 (1979) (explaining that “the language of an opinion is not

always to be parsed as though we were dealing with language of a statute”).

Furthermore, Respondents’ mandate that likelihood of success must be

explicit in Northern Pacific Railway before warranting consideration is futile

because likelihood of success on appeal is inherently included in the types of

equitable weighing involved in decisions like stays pending appeal.1

1. In equity matters, courts account for likelihood of success on appeal; and they should.

When deciding a matter of equity, courts inherently consider the

impact of the suggested outcome—whether that requirement is codified or

not. And they should. See App. Br. at 17 (explaining that a rule that assesses

the relative harms of a stay but not the merits of an appeal is

counterintuitive, as a litigant with little (or even no) chance of prevailing on

appeal may secure a stay nonetheless). A rule contrary to this wastes judicial

efficiency and resources. See Marple v. Minneapolis & St. L. Ry. Co., 115

Minn. 262, 266, 132 N.W. 333, 334 (1911) (“Equity will not compel the doing

of a useless act.”).

1 A review of the briefs filed in Northern Pacific Railway, (on file with the Minnesota State Law Library) shows that neither party asked the trial court to consider the likelihood of success on appeal. That trial court had no duty to consider an argument that neither litigant made. See Marriage of Gottsacker v. Gottsacker, 664 N.W.2d 848, 852 (Minn. 2003) (discussing that the district court had no duty to consider the issue because it was not raised at trial).

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Minnesota district courts have followed this conventional practice by

considering likelihood of success on appeal when determining whether to

grant a stay pending an appeal. See e.g., C.H. Robinson Worldwide, Inc. v.

XPO Logistics, Inc., No. 27-CV-12-16003, 2014 WL 8335959, at *2-10 (Minn.

4th Jud. Dist., Jan. 14, 2014) (Abrams, J.) (applying N. Pac. Ry. Co., 221

Minn. 400, 22 N.W.2d 569 or the federal-law equivalent); Churchill Envtl. &

Indus. Equity Partners, L.P. v. Ernst & Young, L.L.P., No. MP 01-00395,

2001 WL 35927945 (Minn. 4th Jud. Dist. Dec. 7, 2001) (Nord, J.) (applying

the four factors of Hilton, 481 U.S. at 776); Larkin v. Wells Fargo Bank, N.A.,

No. 27-cv-10-4725, 2012 WL 9756898, at *1-3 (Minn. 4th Jud. Dist. May 10,

2012) (Quam, J.) (applying those four federal factors). These factors serve

both to channel a trial court’s discretion, and to permit meaningful appellate

review of the exercise of that discretion.

While this Court has not had an opportunity to revisit Northern Pacific

Railway until now, the Court has considered an implicit word in a codified

rule. In State v. Fearon, this Court examined a statute on intoxication, Minn.

Stat. § 340.96, which read: “Every person who becomes intoxicated by

Voluntarily drinking intoxicating liquors is guilty of the crime of

drunkenness, and shall be punished as follows….” 283 Minn. 90, 91, 166

N.W.2d 720, 721 (1969). The Court opined that it was rare for the Court to

review such a statute, but explained that the Court had done so a few years

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earlier in State v. Murphy, 277 Minn. 355, 357, 152 N.W.2d 507, 509 (1967).

See Fearon, 283 Minn. at 93, 166 N.W.2d at 722. The Fearon Court then

quoted Murphy for this commentary on the intoxication statute: “Unlike

some ordinances and statutes which punish that offense, s 340.96 does not

merely proscribe intoxication in a public place or intoxication accompanied by

disorderly or offensive conduct. The statute punishes any excessive drinking

to the point of intoxication.” See Fearon, 283 Minn. at 93-94, 166 N.W.2d at

722. After quoting Murphy’s explanation, the Court noted the difference

between Murphy’s explanation and the statutory text. Id. In response, the

Court in Fearon reasoned that “[u]nless we are to assume that the [Murphy]

court intended to read the word ‘voluntarily’ out of the statute, we must

conclude that it is implicit in the above statement that the prohibition

extends only to voluntary excessive drinking.” Id. Fearon reiterates that in

certain instances, implicit words merit consideration.

2. Likelihood of success on appeal necessarily is a factor when considering the harms to a party seeking and opposing a stay.

Neither party disputes the conclusion that a harm-analysis is an

integral component to determine whether a stay pending an appeal should be

granted. When analyzing harm, the determining consideration is whether the

stay itself will cause the impending harm. See N. Pac. Ry. Co., 221 Minn.

400, 409-10, 22 N.W.2d 569, 574-75 (1946); see also Hilton v. Braunskill, 481

8

U.S. 770, 776 (1987). Likelihood of success on appeal is inherently a part of

this analysis. The harm a litigant is facing from a stay depends on how likely

a litigant is to succeed on appeal. Revisiting the hypothetical from above, a

litigant with little chance of prevailing on appeal faces minimal harm, with or

without a stay, as both paths lead to the same conclusion: the litigant losing.

Here, a stay merely delays the inevitable. By contrast, the same

consideration and analysis could not be accomplished without considering

likelihood of success on appeal.

3. Likelihood of success on appeal is explicitly included in the modern formulation of Corpus Juris Secundum.

Finally, the modern formulation of 4 C.J.S. Appeal and Error § 636

explicitly includes likelihood of success on appeal as a factor, providing:

A party requesting a stay pending appeal must show [1] a likelihood of prevailing on the merits, [2] irreparable injury in the absence of a stay, and [3] that a stay will not substantially harm other interested parties nor the public interest. A court may also consider [4] whether the object of the appeal will be defeated if the stay is denied, and it is an abuse of discretion to deny supersedeas where a refusal to supersede the judgment would deny the right to any appeal.

Moreover, this Court has a history of adopting principles that the Court had

adhered to in the past. See State v. Serstock, 402 N.W.2d 514, 517 (Minn.

1987) (adopting a 100-year-old approach consistent with the Court’s previous

holding in State v. Wedge, 24 Minn. 150 (1877)); see also Stabs v. City of

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Tower, 229 Minn. 552, 566, 40 N.W.2d 362, 371 (1949) (authorizing this

Court to “apply old rules to newly created conditions” in proper instances).

II. RESPONDENTS MISCHARACTERIZE THE PHRASE “MAY ORDER A STAY UPON SUCH TERMS AS IT DEEMS PROPER” IN MINNESOTA STATUTES §14.65.

Respondents pepper their brief with the phrase “may order a stay upon

such terms as it deems proper.” In doing so, Respondents repeatedly argue

that in the context of granting a stay pending an appeal, this phrase provides

a court with extremely broad discretion to consider any factors that the court

“deems proper.” See Resp. Br. at 7-12. Respondents conclude that Judge

Mortenson acted within his discretion because he had the authority to grant

Respondents’ stay motion upon any factors he deemed proper, including those

factors in DRJ, Inc. v. City of St. Paul, 741 N.W.2d 141 (Minn. App. 2007).

See Resp. Br. at 7-12. Here, Respondents conflate the word “factors,” with the

word in the statute: “terms.”

The phrase “may order a stay upon such terms as it deems proper”

derives from the first sentence of Minn. Stat. §14.65, which provides: “The

filing of the writ of certiorari shall not stay the enforcement of the agency

decision; but the agency may do so, or the Court of Appeals may order a stay

upon such terms as it deems proper.” Although Respondents are correct that

this sentence affords discretion, Respondents miss the object of that

discretion. Particularly germane to this analysis is the meaning of the word

10

“terms.” As used in the phrase “upon such terms as it deems proper,” the

word “terms” does not mean factors, justifications, or rationales, as

Respondents suggests; instead, “terms” relates to the terms and conditions of

the security, if any, required to ensure that the prevailing party can be secure

in victory. 2

Minnesota Statutes §14.65 governs stays of decisions in general but

offers no guidance on the meaning of the word “term.” Moreover, because a

stay pending an appeal is typically adjudicated in the trial court, this Court

has seldom had an opportunity to review such rules and provide guidance. So

it is necessary to examine other rules for direction. Pertinent here is Minn. R.

Civ. App. P. 108, which specifically governs stays pending an appeal.

Appellate rule 108.02, subdivision 2, provides: “[A] trial court may grant [a

stay] ... if the appellant provides security in a form and amount that the trial

court approves.” This provision indicates that a court’s discretion relates to

the security required for a stay, rather than the justifications for granting a

stay.

Subdivisions 3 and 4 of Minn. R. Civ. App. P. 108.02 continue by

discussing that the trial court approves both the appropriate form of the

2 Respondents need not post a bond. See Minn. R. Civ. App. P. 108.02, subd.

11

security and the amount of the security.3 Finally, Minn. R. Civ. App. P.

108.02, subd. 6, provides:

If the Court of Appeals grants the motion, it may give relief on the same terms that a trial court may give under Rule 108.02, subds. 2, 3, and 4, and may require that any security that the appellant must provide be posted in the trial court.

(Emphasis Added).

Appellate rule 108.02, subdivision 6, draws a parallel between the court

of appeals granting a motion for a stay pending an appeal and the trial court

granting such a motion. Notably, the rule is specific that a trial court grants

a stay under the “terms” listed in Minn. R. Civ. App. P. 108.02 subds. 2, 3 and

4: security required; form of security; and amount of security. Stated

differently, Minn. Stat. §14.65 left open the meaning of the word “terms.”

That missing ingredient is in Minn. R. Civ. App. P. 108.02, subd. 6, which

explains that “terms” relate to the security required to obtain a stay.

And the practice of Minnesota courts confirms that “terms” does not

refer to the legal test that governs the issuance of stays. See Howe v. City of

St. Paul, No. C5-94-1106, 1995 WL 59224, at *2 (Minn. Ct. App. Feb. 14,

1995) (“This court granted the motion for a stay pending appeal and

remanded to the city council to impose reasonable terms and conditions.”)

(Emphasis added); LaMont v. Premier Bank Minn., No. A11-211, 2011 WL

3 Appellate rule 108.02, subdivision 5 requires each provider of security to submit to the jurisdiction of the district court.

12

4782512, at *3 (Minn. Ct. App. Oct. 11, 2011) (“Accordingly, the special term

panel granted a stay and remanded the matter to the district court for a

determination of the appropriate terms and conditions of a stay pending

appeal.”) (Emphasis added). Based on this common practice, if the word

“terms” meant “factors,” and if Minn. Stat. §14.65 provided a court with the

discretion to grant a stay upon any factors that the court deemed fit, then

courts would have no reason to grant a stay and then remand the case for

determination of the proper “terms and conditions.” This reading would be

unusual, insofar as it would allow a trial court to determine what law to

apply when considering a stay. District courts may not choose what law to

apply; a district court abuses its discretion when it misapplies the law. See

Green v. BMW of N. Am., LLC, 826 N.W.2d 530, 539 (Minn. 2013) (finding an

abuse of discretion when the district court failed to consider all relevant

factors); Peterson v. Johnson Nut Co., 209 Minn. 470, 473-74, 297 N.W. 178,

180 (1941) (admonishing the district court for failing to follow the Court’s

precedent). Since Minn. Stat. §14.65 provides no court with free-wheeling,

standard-less discretion, Respondents’ argument that Minn. Stat. §14.65

controls, while Northern Pacific Railway does not, fails.

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III. RESPONDENTS WILL NOT BE SERIOUSLY INJURED ABSENT A STAY.

Respondents note that “absent a stay, the April 22 Order will require

Respondents to complete a voluminous review, redaction and production of

documents,” Resp. Br. at 29, and that “[e]xpending the resources necessary to

complete the production will harm Respondents and the public as

Respondents will expend limited resources on complying with the Order

rather than performing other important government functions.” Id.

This argument is startling and dangerous. It suggests that Hennepin

County and its Sheriff’s Office are unwilling or unable to comply with the

MGDPA while also carrying out important government functions. If adopted,

this reasoning would allow any governmental entity to ignore a statute, when

the law—or a court order enforcing it—imposes a burden. This reasoning

treats legislation and court orders as mere considerations, suggestions, or

factors to consider. The rule of law means more than the duty to maintain

order; it also means that “the government itself is subject to rules of law, and

cannot disregard the law.” Cooper v. Gwinn, 298 S.E.2d 781, 786 (W.Va.

1981) (citing D. Walker, The Oxford Companion to Law, at 1093 (Clarendon

Press, Oxford 1980)).

Within this supposedly voluminous review and cumbersome redaction

project, Respondents omit two things. First, Respondents omit that they have

14

already performed the search ordered by the ALJ, have segregated

responsive data, and had begun rolling productions of those responsive data.

(See May 4, 2016 Declaration of Daniel Rogan ¶ 3-4.) Second, Respondents

also fail to recognize that their obligations derive from a statute—the

MGDPA —which mandates prompt compliance with requests for government

data. Respondents cannot claim that their burden is too high, when burden is

not the standard; irreparable harm is. See App. Br. at 24. And no irreparable

harm or serious injury was found against Respondents.

CONCLUSION

Although it predates appellate rule 108, Northern Pacific Railway

recognizes the traditional principle of flexibility in making equitable

determinations, like issuing stays. The trial court, and the court of appeals,

relied on DRJ, Inc.’s inflexible rule that a trial court may not weigh “the

merits of an appeal in considering whether to grant a stay pending appeal.”

(July 5, 2015 Order.) That proscription has no basis in this Court’s

jurisprudence, nor in the traditional law of equity. Webster asks the Court to

reverse the court of appeals’ reliance on DRJ, Inc. and re-affirm Northern

Pacific Railway as controlling law governing stays pending appeal under

appellate rule 108. As guidance to the bench and bar, this Court should apply

Northern Pacific Railway to the facts found by the ALJ to vacate the stay and

remand this case with instructions for the ALJ to supervise rolling

15

inspections of the government data described in ¶ 3 of the May 4, 2016 Rogan

Declaration. Alternatively, the Court could reverse and remand for the ALJ

to apply Northern Pacific Railway to the facts it found. The MGDPA’s

promptness requirement favors the former.

Respectfully submitted.

16

Dated: December 1, 2016 BRIGGS AND MORGAN, P.A.

By: s/ Scott M. Flaherty

Scott M. Flaherty (#388354) Cyrus C. Malek (#395223) Samuel Aintablian II (#398075)

2200 IDS Center 80 South Eighth Street Minneapolis, MN 55402-2157 (612) 977-8400

ATTORNEYS FOR APPELLANT TONY WEBSTER

CERTIFICATE OF COMPLIANCE

The undersigned counsel for Appellant, certifies that this brief complies

with the requirements of Minn. R. Civ. App P. 132.01 in that it is printed in

13-point, proportionately spaced typeface utilizing Microsoft Word Word 2010

v. 14.0 and contains approximately 3,376 Word Count words, including

headings, footnotes and quotations.

Dated: December 1, 2016 BRIGGS AND MORGAN, P.A.

By: s/ Scott M. Flaherty

Scott M. Flaherty (#388354) Cyrus C. Malek (#395223) Samuel Aintablian II (#398075)

2200 IDS Center 80 South Eighth Street Minneapolis, MN 55402-2157 (612) 977-8400

ATTORNEYS FOR APPELLANT TONY WEBSTER