Federal magistrate denies motion to prohibit deposing LF Council in Hensel lawsuit

City’s attorney will appeal decision

By Terry LehrkeNews Editor

A magistrate in federal court denied a motion to prohibit the deposing of the city’s elected officials. The motion was filed by Paul Reuvers, the attorney representing the city of Little Falls in a lawsuit brought by Robin Hensel, a resident of Little Falls.

The lawsuit was filed in federal court against the city by Hensel’s attorney, Larry A. Frost, for allegedly violating her Constitutional rights to free speech, among other reasons, by requiring her to remove signs placed in her yard saying they were against city ordinance, while failing to request other unlawful signs in the city be removed.

Police Chief Greg Schirmers, Police Officer Derrick Nagorski, Public Works Director Jerry Lochner, Finance Officer Lori Kasella, City Administrator Dan Vogt, Park, Recreation and Tree Board Member Jeff Tschida, Planning Commission Member Jean Myers and Heritage Preservation Commission ex-officio member Linda Burggraff, were deposed in February.

At that time, Hensel’s attorney wanted the mayor and members of the City Council deposed as well.

Reuvers filed the motion to prohibit the depositions because, he said, “Elected officials aren’t subject to discovery.”

He said the magistrate makes the initial decision on whether to grant such a motion or not, but that the city had the right to appeal.

The magistrate’s decision was made May 17, and three weeks were given for the depositions to be completed.

Reuvers plans to appeal the decision to Federal District Court Judge Richard Kyle.

“We’re hopeful it will be denied or at least limited,” said Reuvers. “Right now depositions are scheduled for all of next week. The time and expense associated with that will serve no useful purpose.” Since Reuvers filed an appeal, depositions will not be held at this time.

The Council learned Monday night that the League of Minnesota Cities Insurance Trust (LMCIT) has incurred $100,714.49 in litigation (defense) costs, for work done through April 13.

Mark Rossow, claims supervisor for LMCIT, listed the city’s costs to date as 15 percent of the total incurred so far ($15,107.17) and a deductible so far of $26,986.75 for a total of $42,093.92.

The city has a $50,000 deductible — $23,013.25 of which was paid out for other insurance claims, from Aug. 1, 2011 – Aug. 1, 2012, said Rossow.

The city also has a co-pay under its insurance coverage.

Under the city’s contract, Rossow said LMCIT pays 85 percent of the first $250,000 of the litigation costs and 60 percent of any litigation costs in excess of $250,000.

As its co-pay, the city pays 15 percent of the first $250,000 and 40 percent of anything over that amount. That includes defense costs and any judgment that may be lodged against the city, Rossow said.

Reuvers could give no timeline as to when the federal judge would rule on the appeal, or when the case would be heard.

“Hopefully it will be in front of the judge this summer,” he said. “As soon as we can get it in front of the judge.”

Frost is being assisted by Bruce Fein, a lawyer from Washington, D.C., who specializes in constitutional law.

Reuver’s firm, Iverson, Reuvers, Condon, Bloomington, is retained by the League of Minnesota Cities.