On May 11, 2009, SaveWCAL attorney Michael McNabb filed SaveWCAL's Memorandum re Briefs [PDF, 3 pages, 184 KB] in response to the St. Olaf attorneys' Response to SaveWCAL's Motion re Briefs and Affidavit re Transcript in the matter of SaveWCAL's Petition to Redress Breach of Trust.
McNabb says, in part,
First, a transcript of the hearing in the district court on December 18, 2008 is not necessary for an appeal because the hearing was limited to the oral argument of counsel on the legal issues. Neither St. Olaf College nor Minnesota Public Radio has attempted to explain why a transcript is necessary for the purpose of the appeal. In the district court all the parties filed memoranda of law that describe the arguments on the legal issues.
Second, the St. Olaf attorneys have been in possession of the transcript of the hearing for months. In December 2008 St. Olaf attorney Michael R. Cunningham ordered a transcript of the hearing from the court reporter. The court reporter prepared the transcript, delivered a copy to Mr. Cunningham, and delivered the original transcript to the district court administrator who filed it on January 15, 2009. This is an official transcript. (In over 30 years of practicing law this writer has never heard the term "unofficial transcript" as invented by St. Olaf, much less seen it applied to a transcript prepared by the court reporter.)
Third, the fact that the St. Olaf attorney did not initially obtain the transcript for the purpose of an appeal is irrelevant.
Fourth, the St. Olaf attorney does not even attempt to explain his declaration in the St. Olaf Statement of the Case that the transcript had not already been delivered to the parties and filed with the district court administrator.
The attempt by St. Olaf to deceive this Court about the timing of the delivery and filing of the transcript of the hearing (with the tacit collaboration of Minnesota Public Radio) should not be rewarded. Indeed, quite the contrary action is warranted…
Pursuant to Rule 131.02 subd. 2 of the Minnesota Rules of Civil Appellate Procedure SaveWCAL is asking the Appeals Court to direct the Respondents to serve and file their briefs within 30 days after the personal service of the brief of the Appellant on April 23, 2009.
