On December 18, a hearing was held. It concerned Motions To Dismiss and, in the alternative, Motions for Summary Judgment by St. Olaf College and Minnesota Public Radio (MPR).
The submission of affidavits to the Court by the parties transforms the
court actions into Motions For Summary Judgment.
St. Olaf College was represented by three attorneys — Michael Cunningham, Robert Harding and Sarah Dunwiddy of Gray Plant Mooty.
MPR had two attorneys — Salo Ale and Hazen Graves of Faegre & Benson – as well as MPR's Executive Vice President, Chief Administrative Officer and General Counsel Tom Kigin, who was sitting with the attorneys but was not introduced to the court.
The Minnesota Attorney General was represented by attorneys Ann Bloodhart and Shannon Harmon.
Other than a number of SaveWCAL supporters present in the courtroom, the lone non-SaveWCAL observer in the courtroom for the entire proceeding was St. Olaf College Treasurer Alan Norton.
Judge Borene then asked for remarks from the attorneys and requested that St. Olaf and MPR speak first. Their attorney's remarks, which went on for about 45 minutes, restated arguments that have been covered by written memorandum and replies already in the hands of the court. Essentially, no new arguments or information was presented.
St. Olaf's lead attorney Michael Cunningham seemed much more prepared to discuss the question of charitable trusts at this hearing session. In fact, he worked overtime to try to distinguish between an implied and a declared charitable trust, continuing to claim that WCAL was not a trust.
Robert Harding, of the Gray Plant Mooty partners representing St. Olaf College has been present for every hearing on the St. Olaf Petition and SaveWCAL Petition since 2007. Yet he has hardly commented during that time. At this hearing, however, he spoke at length about charitable trusts.
SaveWCAL does not believe that their argument can be sustained, however. St. Olaf College went to Court in 2007 in order to get the court's permission to allocate funds that were a part of that trust. If there were no trust, then why were they in court in the first place? After all, that is why they used the term "charitable trust" in their original petition!
Furthermore, the Minnesota Attorney General has already weighed in on the matter in the June 20, 2007 Memorandum:
"In its April [2007] memorandum, St. Olaf attempts to circumvent charitable trust requirements for lifting restrictions on its assets by characterizing certain of its assets as not "literally" being charitable trusts and thus not subject to charitable trust principles. St. Olaf's assets, however, are undoubtedly either charitable trusts or held in charitable trusts and thus subject to charitable trust principles. Interestingly, St. Olaf's charitable trust arguments in its April memorandum are directly at odds with the charitable trust principles it sets forth in its Original Petition for Release On and Instructions Regarding Administration of Certain Gifts (dated October 6, 2006 [and filed on December 28, 2007]) ("Original Petition")."
At this hearing, the Attorney General's representative spoke the least of any of the parties, simply standing by her submitted briefs and supporting some of St. Olaf and MPR's positions.
SaveWCAL's attorney, Michael McNabb spoke last — and eloquently.
SaveWCAL had expected that the other attorneys would simply repeat the specific points of law that they had already discussed in their memoranda. McNabb's intent was to provide a contrast by placing the focus on general principles of equity, the conscience of law (or morality, in lay persons' terms).
He also intended that the brevity of his remarks would be in contrast to the other attorneys who would drone on and on on points that they had already presented to the court in their memoranda.
Finally, McNabbb intended to deliver his remarks in a measured and somber tone and then to wait for several beats before sliding back from the counsel table after concluding his remarks so that there would be dead silence in the courtroom when he gave the signal that he had finished.
The full text of McNabb's closing remarks, a scant page and half, double spaced, is available in a separate posting, "SaveWCAL's Closing Remarks at Rice County District Court Hearing".
As expected, McNabb's original presentation took the other attorneys by complete surprise.
After McNabb finished and when asked by when Judge Borene asked if they had anything to say in rebuttal, they each responded with a very quiet "no".
It was the finish McNabb hoped to achieve because SaveWCAL succeeded in establishing the tone and the memory that Judge Borene will have of the hearing.
Judge Borene then took the matter under advisement and explained that due to the pressing caseload and other judicial priorities, it would probably require a full 90 days for his determination on the motions of St. Olaf and MPR and SaveWCAL's Petition.
We therefore expect his decision around March 18, 2008.
