STATE OF MINNESOTA

IN SUPREME COURT

C1-98-2388

State of Minnesota,

Respondent,

vs.

Wesley Brooks, petitioner,

Appellant.

O R D E R

Upon this court's own motion and based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED:

1. The paragraph beginning on page 3 and ending on page 4 of the slip opinion filed on January 13, 2000, is hereby modified with regard to the fourth, fifth, and sixth sentences in that paragraph, which sentences read as follows:

As a result, Brooks moved to strike from the state's brief those facts not contained in the district court record submitted to the court on appeal. The court of appeals granted Brooks' motion before receiving a response from the state even though the state's response time had not expired. In its response, which was timely submitted but not considered, the state argued that if the motion to strike was granted, then the court of appeals did not have jurisdiction to consider the appeal.

That paragraph shall now read as follows:

Brooks filed a notice of appeal with the court of appeals arguing that cash only bail is unconstitutional. Both Brooks and the state submitted informal briefs to the court. Although the only transcript ordered and relied on by Brooks was from the December 9 hearing before the second judge, the state's brief contained references to the two hearings before the first judge. Brooks moved to strike from the state's brief those facts not contained in the district court record submitted to the court on appeal. The court of appeals then granted Brooks' motion before receiving the state's response although the period in which a timely response could have been received had not elapsed. See generally Minn. R. Civ. App. P. 125.01, 125.03, 126.01, 127. In its response, the state argued that if the motion to strike was granted, then the court of appeals did not have jurisdiction to consider the appeal. More particularly, the state argued that because the order being appealed was issued by the first judge and because the second judge refused to reconsider that order, the appeal was not perfected unless it included the first judge's order setting cash only bail and that judge's subsequent order declining to reconsider bail.

2. The paragraph beginning on page 17 of the slip opinion filed on January 13, 2000, is hereby modified by deleting that paragraph, which paragraph reads as follows:

A final comment on the procedural history in this case is appropriate. In its brief to the court of appeals, the state referenced the first two district court hearings when bail was set and when Brooks' request for reconsideration was denied. Before receiving the state's response to Brooks' motion to strike these references, the court of appeals granted Brooks' motion. The state's response, which was timely, raised important jurisdictional issues. Ruling against a party without first allowing that party the complete opportunity to respond as allowed by the appellate rules creates the potential of prejudicing that party's interests. See Minn. R. Civ. App. P. 125.01 & 127; Minn. R. Civ. P. 6.01 & 6.05. We recommend that the court of appeals take the precautions necessary to avoid similar procedural problems in the future.

Dated: March 15, 2000.

BY THE COURT:

Paul H. Anderson
Associate Justice