The taxpayer’s frivolity

I sat up front with my attorney at yesterday’s court hearing so I wasn’t aware that the Trib’s Ed reporter showed up half way through Judge Hylden’s questioning of the taxpayer’s attorney, Craig Hunter. She probably missed one of the telling questions which demonstrated the Judge’s shrewed understanding of our case and, I hope, some sympathy to our cause.

All you read in Sarah’s article was this summary:

“The plaintiffs allege the contract is void because the district didn’t agree to a price on the work to be done with Johnson Controls before hiring the firm.”

This just grazes the surface. While no one left the courtroom with the faintest idea of how the judge would ultimately rule there was no doubt he saw merit in our case. Nonetheless, Judge Hylden made it clear that the case might never be decided based on its merits if he requires the plaintiffs to post a security bond. I appreciated the Judge’s candor.

The denial by JCI and the School District of their own documents was so laughable that their attorneys wasted very little time on this. The facts, as our Attorney says are indisputable.

Move Forward Duluth loyalists like to say that the taxpayer’s case is “frivolous.” If this was so we would never have gotten this hearing and the School District would not have bypassed the three law firms which got them into this mess and replaced them with hot shot Twin City litigators. Indeed, if our case was frivolous our Attorney, Craig Hunter, would never have taken it. We’re asking for a summary judgement that this contract be dropped like a hot potato. However, because the School District pushed its demolition and construction ahead by a year to beat the next school board elections the Judge now has to balance the merits of our case against a potential loss to taxpayers. If we had met Mr. Hunter a year ago the Red Plan would have been toast. Instead we spent the last year discovering that bureaucrats and politicians everywhere are averse to justice if pursuing it might cost them their jobs. Timidity is infectious.

Fourteen months ago Tim Grover, who wrote the 75 words of the LDV petition, insisted that the School Board might compromise with us if we met it half way. He made it clear he wanted no part of any lawsuit so we deferred to his wishes. We circulated the petition and got only obfuscation, delay and derision from the Board. Tim stopped attending our meetings and was elected Chairman of the Board.

Judge Hylden asked only tough and occasionally embarrassing questions of the Defense attorneys, some of which they were at a loss to answer with conviction or certainty. But among the string of tough questions addressed to the taxpayer’s attorney was one helpful prompt. I jotted it down on the fourth of my 14 pages of notes probably before Sarah Horner showed up.

Judge Hylden was noting that our attorney was asking him to declare the contract void because of its unreasonableness. Hunter had already used his analogy of agreeing to buy a car without knowing the price. No, this didn’t seem reasonable but Judge Hylden reminded our attorney that under Minnesota laws contracts for services are differentiated from those purchasing goods. Then Judge Hylden asked Hunter if the District couldn’t just walk away from the JCI contract if they didn’t like the price …….Bingo!

Hunter had addressed this point in his brief (You haven’t read it yet in the Trib) and I was delighted at Judge Hylden’s prompting to get this into the oral arguments. No, Hunter explained the District could not walk away from the contract if it wanted to fix up the schools. The contract had a lock-in provision which prevented the District from doing any work if it decided not to use Johnson Controls.

The $293 million Red plan was JCI’s icing. The cake was baked later when the Minnesota Department of Education acquiesced (under the threat of a lawsuit by Dr. Dixon according to rumor) to a perverse interpretation of state laws which allowed Dr. Dixon to borrow hundreds of millions without a referendum. The sky and the profits were the limit. (One of the documents denied by the defendants was a letter sent to Kerry Leider by JCI explaining that the management cost of most building projects was 13% but that they were expecting 18%. What’s 5% of $300 million?)

Once Dr. Dixon got hold of the taxpayer’s money he and JCI had all they needed for ads in the Tribune, hiring lobbyists, and fighting taxpayers in court while leaving the School Board to draw money out of the classroom for Dixon’s shiny new buildings.

Judge Hylden grilled the Defense attorneys about contracts for services. Not surprisingly they used the legal services as an example of a contract which didn’t have set prices. Well OK, after all who can predict what legal issues might arise and how much the might cost? (For instance, who could predict that a bunch of angry taxpayers in Duluth might take their school district to court?) Thus according to their argument, attorneys couldn’t be expected to set a price for uncertain services. But as the Judge noted it was certainly possible to set hourly rates before a contract was signed. This year alone I’ve had attorneys who’ve charged $200, $275 and $400 an hour. Ah, but the Defense attorneys said after a half year of negotiations the contact represented industry standards. Which reminds me. We asked for proof that such a tough negotiation took place. Where the hell is it. Locked away like everything else the public has asked for and been denied. That’s sort of JCI’s middle finger salute to the courts.

After the meeting a much honored African American Duluthian who sat through the hearing told me how dismayed she was that the Red plan was abandoning minority children. She had spoken to the Superintendent and Board members about this and she confirmed what I’d heard from others that the District’s Desegregation Committee was in an uproar.

It would have been nice to see her confirm this in a letter-to-the-editor sometime over the last year. Her silence and the silence of so many others including the Duluth News Tribune have emboldened the Reds to call Let Duluth Vote’s complaints frivolous and homeowners threatened with eminent domain NIMBY’s.

I look at it a little differently. Half an hour ago while I was busy editing this post I was called by another angry citizen. I gave her a brief account of the court hearing and told her that the School Board’s supporters reminded me of a (use your imagination) telling his victim to “just get over it” my caller heartily agreed.

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