A tale of two lawsuits

Welty et. al. vs. ISD 709 and Johnson Controls, Inc.

By Jennifer Martin-Romme

Zenith City Weekly

The emails are missing — those now–infamous emails among School Board member Gary Glass; Harry Welty, Let Duluth Vote’s most prominent member; and Craig Hunter, the attorney formerly representing Welty and four others in a lawsuit against ISD 709 and Johnson Controls, Inc.

The emails were voluntarily relinquished by plaintiffs Welty, et. al., in response to an interrogatory that led to Hunter’s removal from the case.

Sixth District Judge Eric Hylden ruled on July 28 that "[Hunter] admits he violated Rule 4.2 of the Rules of Professional Conduct by having contact with…Glass," who is already represented by the District’s lawyers.

On July 24, the Budgeteer described the emails as "underhanded, blunt, and sometimes profane…more than 100 pages of documents [in which] Glass demonstrates example after example of the conflict of interest he shared with Hunter."

There’s just one problem: The emails in question have never been available to the public.

The snippets quoted in the Budgeteer were attached to a motion by the co–defendants to sanction Hunter (presumably those that would most support such a request). But the emails themselves were verbally ordered confidential by Hylden immediately and have never been a part of the public record, according to Hylden’s staff.

Hunter’s removal was the latest installment of an odyssey that began in March when Welty, et. al. filed a complaint alleging the contract between the District and Johnson Controls (JCI) is illegal.

The plaintiffs argued that the District gave JCI a contract for implementation of the school facilities plan without competitive bidding and in violation of a District policy that any contract over $25,000 must include itemized bid proposals.

The co–defendants disagreed and moved to dismiss. "Plaintiffs may be interpreting the same in a manner inconsistent with its terms and meanings."

The District claimed a number of "affirmative defenses" — those which would justify or excuse allegations, usually invoked to avoid liability even if the facts are determined to be true: Namely, that the plaintiffs have no standing to bring their claim, have suffered no adverse consequences, the District Court lacks jurisdiction, and JCI acted in good faith.

The primary defense emphasized in subsequent responses and media statements is that the plaintiffs never actually claim any violation of state law, only District policy.

A slew of pre–trial motions continued throughout March and April, which, though not as salacious as the famous emails, look a lot like the legal equivalent of a fistfight.

Plus, they’re actually in the public record, which greatly benefits the endeavor of commenting upon them.

The defense attempted to claim "estoppel by laches" — that the plaintiffs waited too long to bring their suit and this inaction changed the defendant’s position for the worse. The doctrine is similar to a statute of limitations, but usually invoked when the law provides no specific timeframe.

The plaintiffs responded with a motion for "summary judgment" — a ruling without going to full trial — and "asserts laches is inapplicable because the defendants have unclean hands."

While that sounds like something Welty might say in his ongoing online commentary at LincolnDemocrat.com (much of which, along with many pages of LetDuluthVote.com, has been entered into the court record), "unclean hands" is a legal term meaning that one party has somehow acted in bad faith and, therefore, can’t claim dirty fighting by the other.

When invoked by a plaintiff, unclean hands is often a response to affirmative defenses, in what appears to be the legal equivalent of I know you are, but what am I?

The District requested a denial of summary judgment, claiming Welty, et. al. were filing inconsistent motions — amending their complaint while, at the same time, asking the judge to rule on it.

The plaintiffs filed for two separate trials, one on the legality of the contract and another to determine relief, which JCI objected would be an "extraordinary remedy," estimating that discovery alone would require six to eight months.

Arguably, the first offensive move on the part of the co–defendants came on May 12 when JCI filed the affidavit requesting a surety bond and the District filed a memo supporting that idea.

Tucked in next to JCI’s subsequent memo opposing an expedited schedule is, ironically, a July 15 letter to the judge from the District’s lawyers, requesting a hearing as soon as possible. (Presumably, this is a coincidence, unless someone in court records has an impish sense of humor.)

In his May 22 order, Hylden summarized the allegations as "a contract with Johnson Controls, Inc…under conditions where ISD 709 did not know how much it would be charged by JCI for implementation of the plan. Plaintiffs allege that this makes the contract unreasonable per se, illegal, and thus void [which] Defendants vigorously dispute."

Hylden declined to rule on the case that day, noting the "Defendants have alleged both factual and substantive defenses," essentially refusing to rush to judgment.

However, he granted separate trials on the basis that, "if the contract is determined to be void, then the case is swiftly brought to conclusion. On the other hand, if the contract is valid then, presumably, even Plaintiffs would agree the lawsuit should be dismissed."

Or maybe not.

On June 15, Welty et. al. requested a temporary injunction to put the facilities plan on hold until the case could be decided. Both JCI and the District balked that this would harm them more, regardless of which side ultimately prevails. Hylden denied the injunction.

The District moved again to dismiss, arguing again that Welty et. al. "lack standing to bring their claims." In multiple communications to the court, the District argues that the court lacks jurisdiction and/or the plaintiffs lack standing. So far, the judge has not opined on either claim.

Meanwhile, both sides had been serving each other with "interrogatories" — exhaustive lists of questions used to hone a case.

JCI objected to every request on the grounds that the questions were "burdensome, vague, and ambiguous." They claim some of the requested information is protected by either attorney–client privilege or "work product doctrine."

The District called the requested information "beyond the scope of [Welty et. al.’s] claims…broad and burdensome."

Prior to the May 22 hearing, Welty, et. al. withdrew their earlier request to name as defendants all members of the School Board except Glass — further deflating the charge of his critics that Glass is "suing himself."

The lawsuit was organized by Let Duluth Vote, which Glass co–founded with Welty during their 2007 campaigns. Glass has never been a plaintiff or a defendant in the suit.

While fellow Board member Ann Wasson once called Glass an "elephant in the room," his position may be more like "monkey in the middle."

Glass says he initially contacted Hunter in January 2009 (two months before Welty et. al. filed suit) "because the School District had been stonewalling me on public information," mostly pertaining to the financial details of the facilities plan.

"I’ve been blocked from attending the agenda setting meetings," which he believes is a violation of the state open meeting law.

According to Glass, the Superintendent and Board Chair are "charged with a policy to set the agenda." They can use any method to do so and opt to hold meetings, which no other Board members are permitted to attend.

"Who knows why [the other Board members] don’t ask for information?" says Glass. "That’s my complaint. The process is very badly flawed."

Glass says he approached a number of public agencies, including the state Department of Education, Attorney General, Information Policy Analysis Division, and the St. Louis County Attorney.

All advised him to seek legal counsel, but he says none of them mentioned that the District’s lawyers were already representing him — an important point in a matter adversarial to the District itself.

Glass says no one with the District ever told him that he was already considered to have representation. Even though, during this period, all Board members except Glass were meeting individually with the District’s lawyers because they were personally named as defendants at the time.

"Why didn’t the [School] District advise me at any time, through July 20, that I shouldn’t be communicating with Craig Hunter?" says Glass. "It was general knowledge I was involved with the taxpayers’ attorney."

He describes the result as "an ambush to knock Hunter off the case and knock me off the Board."

On July 28, Hylden ruled that removing Hunter from the case "is necessary because of the tightly interwoven nature of the information gained from Dr. Glass in Plaintiff’s case. However, dismissal is not justified because Plaintiffs did not gain any information from Dr. Glass that was truly privileged."

On September 14, the District appealed Hylden’s decision not to dismiss the case, for which trial was scheduled to begin October 15 — and still might.

A notice of appeal ends the jurisdiction of the District Court, except on peripheral matters, according to media lawyer Mark Anfinson, who represents the Minnesota Newspaper Association (of which the Zenith is a member).

The Minnesota Court of Appeals must accept any valid appeal, Anfinson says. But if the Appellate Court refuses the case, the District Court’s jurisdiction would resume.

Disclosure: The author was employed by the Reader Weekly from October 2005 to August 2006, during which time she occasionally edited Harry Welty’s articles.