Appendix — Minnesota v. Clover Leaf Creamery Co.

APPENDIX

In THE

Supreme Court of the GQnited States

October Term, 1979

No. 79-1171

STATE OF MINNESOTA,

Petitioner,

vs.

CLOVER LEAF CREAMERY COMPANY, PHILLIPS

PETROLEUM COMPANY, MARIGOLD FOODS, INC.,

UNILOY DIVISION OF HOOVER UNIVERSAL, INC.

WEBER & BARLOW STORES, INC., THE SOCIETY OF

THE PLASTICS INDUSTRY, INC., WELLS DAIRY, INC.,

AND M-H PACKAGING SYSTEMS, INC.,

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF MINNESOTA

PETITION FOR CERTIORARI FILED JANUARY 29, 1980

CERTIORARI GRANTED MARCH 31, 1980

224-7631 $$— Review Publishing Co., 287 E. 6th St., St. Paul, Minn. 55101 — 224-7631

INDEX

Chronological List of Relevant Docket Entries........

Complaint, Filed Nov. 23, 1977 ....................

Defendant’s Notice of Motion and Motion to Dismiss,

ec cect tees

Order and Memorandum Denying Motion to Dismiss,

cc ee cet eee eee

Defendant’s Answer to Complaint,

ee ccc eee ees

Findings of Fact, Conclusions of Law and Order

for Judgment, Filed April 6, 1978 ...............

Judgment, Entered April 7, 1978 ..................

Notice of Appeal, Filed April 12, 1978

Decision of the Minnesota Supreme Court and

Dissent of Wahl, J., Filed Sept. 7, 1979

Motion for Extension of Time to Petition for

Rehearing, Filed Sept. 19, 1979

Notice of Order and Order Denying Petition for

Rehearing, Filed Oct. 31, 1979

Ceres te Co. = 2 ee we 6S o e «

Judgment of Affirmance, Entered Oct. 31, 1979

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APPENDIX

CHRONOLOGICAL LIST OF RELEVANT DOCKET

ENTRIES

STATE OF MINNESOTA, COUNTY OF RAMSEY,

SECOND JUDICIAL DISTRICT

File No. 423258

Oct. 27, 1977 — Affidavit of service, Notice and Motion to

Dismiss filed.

Nov. 22, 1977 — Defendant’s memorandum in support of

motion to dismiss filed, service admitted.

Nov. 23, 1977 — Affidavit of service, summons and com-

plaint filed.

Dec. 6, 1977— Defendant’s supplemental memorandum

filed.

Dec. 22, 1977-— Order and memorandum denying defen-

dant’s motion to dismiss filed. Abramson, J.

Jan. 5, 1978 — Defendant’s answer and affidavit of service

filed.

Jan. 6, 1978 — Court note of issue and affidavit of service

filed.

Mar. 15, 1978 — Trial by the court commenced.

Mar. 21, 1978 — Case taken under advisement, Marsden, J.

April 6, 1978 — Findings, conclusions and order of Mars-

den, J. and notice of entry of findings filed.

April 7, 1978 — Judgment roll made and filed. Judgment

entered and served.

April 12, 1978 — Affidavit of service, notice of appeal filed.

Return to Supreme Court.

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STATE OF MINNESOTA, SUPREME COURT

File No. 48827

April 11, 1978 — Date of service of notice of appeal.

May 4, 1978 — Letter of Otis, J. filed. No preconference.

Time for transcript and briefs shall run from 5-2-78.

Aug. 11, 1978 — Certificate of delivery of transcript on

8-7-78 filed.

Sept. 12, 1978 — Order filed permitting Minnesota Public

Interest Research Group to file Amicus Curiae brief.

Oct. 10, 1978— Appellant’s (State of Minnesota) Briefs

and appendices filed with service.

Oct. 12, 1978 — Briefs of Amicus Curiae (Minnesota Pub-

lic Interest Research Group) filed with service.

Nov. 20, 1978 — Respondents’ Briefs filed with service.

Dec. 8, 1978 — Appellant’s reply briefs filed with service.

Mar. 5, 1979 — Hearing En Banc — Calendar No. 111.

Sept. 7, 1979 — Opinion and syllabus filed. Affirmed. Peter-

son, J. Dissenting, Wahl, J.

Sept. 19, 1979 — Motion, recommendations and order filed

extending time to serve and file petition for rehearing to Oct.

5, 1979.

Oct. 5, 1979 — Petition for rehearing filed with service.

Oct. 31, 1979 — Petition for rehearing denied; judgment

of affirmance entered; Judgment roll made and filed; remit-

titur to clerk below; original files and exhibits returned to

clerk below.

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STATE OF MINNESOTA DISTRICT COURT

County of Ramsey Second Judicial District

CLOVER LEAF CREAMERY COMPANY,

PHILLIPS PETROLEUM COMPANY,

MARIGOLD FOODS, INC.,

UNILOY DIVISION OF

HOOVER BALL AND BEARING COMPANY,

WEBER & BARLOW STORES, INC.,

THE SOCIETY OF THE PLASTICS INDUSTRY, INC.,

DENNIS JOHNSON, d/b/a JOHNSON STAR MARKET,

WELLS DAIRY, INC., AND

M-H PACKAGING SYSTEMS, INC.

Plaintiffs,

vs.

STATE OF MINNESOTA,

Defendant.

COMPLAINT

Plaintiffs, for their Complaint against the defendant, al-

lege as follows:

INTRODUCTION

1. This is an action for declaratory and injunctive relief

whereby plaintiffs seek to have the Court declare invalid

and enjoin enforcement of Laws of Minnesota 1977, Chap-

ter 268. Said statute purports to ban the retail sale of milk

and fluid milk products in ronreturnable, nonrefillable plas-

tic milk containers in the State of Minnesota. Laws of Minne-

sota 1977, Chapter 455, Section 96 provides that Chapter 268

is effective July 1, 1978.

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PARTIES

2. Plaintiff Clover Leaf Creamery Company (Clover Leaf)

is a corporation organized and existing under the laws of

the State of Minnesota. It is engaged, inter alia, in the pack-

aging and distribution of milk and milk products in the

State of Minnesota and in interstate commerce. Its principal

place of business is Minneapolis, Minnesota.

3. Plaintiff Phillips Petroleum Company (Phillips) is a

corporation organized and existing under the laws of the

State of Delaware. It is engaged, inter alia, in the business

of manufacturing and distributing resin used in the pro-

duction of plastic milk containers. It distributes such resin in

Minnesota and in interstate commerce. Its principal place

of business is Bartlesville, Oklahoma.

4. Plaintiff Marigold Foods, Inc. (Marigold) is a cor-

poration organized and existing under the laws of the State

of Minnesota. It is engaged, inter alia, in the packaging and

distribution of milk and milk products in the State of Minne-

sota and in interstate commerce. Its principal place of busi-

ness is Minneapolis, Minnesota.

5. Plaintiff Uniloy is a division of Hoover Ball and Bear-

ing Company, a corporation organized and existing under

the laws of the State of Michigan. It is engaged, inter alia, in

the business of manufacturing and distributing machinery

for the production of plastic milk containers in Minnesota

and in interstate commerce. Its principal place of business is

Saline, Michigan.

6. Plaintiff Weber & Barlow Stores, Inc. (Barlow) is a

corporation organized and existing under the laws of Minne-

sota. It is engaged in the retail sale of milk and milk products

in Rochester, Minnesota, Minot, North Dakota and Cedar

Rapids, Iowa. Its principal place of businss is Rochester, Min-

nesota.

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7. Plaintiff The Society of the Plastics Industry, Inc.

(SPI) is a nonprofit corporation organized and existing un-

der the laws of the State of New York. It is the principal trade

association for the plastics industry in the United States. It

represents approximately 1200 members, which account for

95% of the plastics materials and machinery produdgd and

about 75% of the plastics processing volume in the United

States. Most of its members are engaged in interstate com-

merce. Necessarily included in the plastics market is the State

of Minnesota, and SPI’s members include plaintiffs Phillips,

Uniloy, and Packaging Systems. SPI’s main offices are in New

York City.

8. Plaintiff Dennis Johnson (Johnson) is a resident of the

State of Minnesota and is engaged in the retail sale of milk

and milk products. He does business under the name John-

son Star Market, and his principal place of business is Anoka,

Minnesota.

9. Plaintiff Wells Dairy, Inc. (Wells) is a corporation or-

ganized and existing under the laws of the State of Iowa. It

is engaged, inter alia, in the packaging and distribution of

milk and milk products in the State of Minnesota and in in-

terstate commerce. Its principal place of business is Le Mars,

Iowa.

10. Plaintiff M-H Packaging Systems, Inc. (Packaging

Systems) is a corporation organized and existing under the

laws of the State of Minnesota. It is engaged, inter alia, in

the business of manufacturing and distributing plastic milk

containers in Minnesota and in interstate commerce. Its prin-

cipal place of business is Little Canada, Minnesota.

COUNT ONE

11. Each plaintiff and numerous members of plaintiff

SPI presently are directly or indirectly engaged in, and have

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a direct economic interest in, the manufacture, distribution,

use and sale of plastic milk containers within the State of

Minnesota and between Minnesota and other states.

12. The plaintiffs and numerous members of plaintiff SPI

have substantial amounts of money, plant, equipment and per-

sonnel involved in the manufacture, distribution, use and sale

of plastic milk containers within the State of Minnesota

and between Minnesota and other states. Their activity results

in substantial quantities of raw materials, equipment, fin-

ished products and milk being transported in interstate com-

merce.

18. Plaintiffs Clover Leaf, Marigold and Wells presently

package and distribute milk in plastic containers in Minne-

sota and adjoining states. Each has invested a substantial

amount of money in equipment and improvements in order to

market milk in such containers, and a substantial portion of

the revenues of each is derived from the sale of milk in such

containers.

14. Plaintiffs Barlow and Johnson presently sell at retail

milk which is packaged in plastic containers and derive rev-

enues from such sales.

15. Plaintiff Phillips has derived and will continue to de-

rive substantial revenues from the sale of resin for the manu-

facture of plastic milk containers to customers in Minnesota

and other states.

16. Plaintiff Uniloy has derived and will continue to derive

substantial revenues from the sale of machinery for the blow-

molding of plastic milk containers to customers in Minnesota

and other states.

17. Plaintiff Packaging Systems has a manufacturing

facility in Little Canada, Minnesota, where it manufactures

plastic milk containers. It has derived and will continue to de-

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rive substantial revenues from the sale of such containers to

customers in Minnesota and other states.

18. In 1977 the Minnesota Legislature enacted Laws of

Minnesota 1977, Chapter 268, which provides as follows:

“Section 1. [116F.21] [Milk Packaging, Statement

of Policy.] The legislature finds that the use of nonre-

turnable nonrefillable containers for the packaging of

milk and other milk products presents a solid waste man-

agement problem for the state, promotes energy waste

and depletes natural resources. The legislature therefore,

in furtherance of the policies stated in Minnesota Stat-

utes, Section 116F.01, determines that the use of nonre-

turnable, nonrefillable containers for the packaging milk

and other milk products should be discouraged and that

the use of returnable and reusable packaging for these

products is preferred and should be encouraged.

Section 2. [116F.22] [Prohibitions.] Subdivision 1.

No person shall sell at retail or offer for sale at retail in

this state any milk or fluid milk product as defined in

Minnesota Statutes, Section 32.291, other than sour

cream, cottage cheese, and yogurt, in a nonreturnable,

nonrefillable rigid or semi-rigid container at least 50 per

cert of which is plastic.

Subd. 2. A violation of subdivision 1 is a misdemeanor

and each day of violation is a separate offense.

Sec. 3. This act is effective July 1, 1977.”

19. In 1977 the Minnesota Legislature also enacted Laws

of Minnesota 1977, Chapter 455, Section 96 of which provides

as follows:

“Sec. 96. [Plastic Milk Bottles.] Notwithstanding

any law to the contrary, no prohibition on the retail sale

or the offer for retail sale of milk in nonreturnable, non-

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refillable plastic containers shall be effective prior to July

1, 1978. This section is effective the day following final

enactment.”

20. In directing its effective proscription solely to non-

returnable, nonrefillable, rigid or semi-rigid plastic milk con-

tainers, said Chapter 268 discriminates invidiously and with-

out rational basis between said containers and other types of

containers and is therefore violative of plaintiffs’ entitlement

to equal protection of the laws guaranteed by Amendment XIV

to the United States Constitution.

COUNT TWO

21. Reallege paragraphs 1 through 19.

22. Said Chapter 268 is arbitrary and unreasonable and

denrives plaintiffs of due process of law in violation of

Araendment XIV to the United States Constitution and Article

I, Section 7 of the Minnesota Constitution.

COUNT THREE

23. Reallege paragraphs 1 through 19.

24. The provisions of Chapter 268 are so vague, indefinite

and ambiguous that its applicability and enforceability are

left to arbitrary and whimsical determination, in violation of

the due process guarantees of Amendment XIV to the United

States Constitution and Article I, Section 7 of the Minnesota

Constitution.

COUNT FOUR

2h. Reallege paragraphs 1 through 19.

26. Chapter 268 constitutes an unreasonable burden upon

interstate commerce to the detriment of plaintiffs and their

customers, contrary to the provisions of Article I, Section 8,

of the United States Constitution.

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RELIEF SOUGHT

27. By reason of all of the foregoing, there exists a jus-

ticiable controversy between plaintiffs and defendant which

must be resolved by decree of this Court and plaintiffs are

entitled to a declaration of their rights respecting the validity

and enforceability of Chapter 268.

28. Unless a temporary injunction is issued by this Court

enjoining defendant from implementing and enforcing Chap-

ter 268 until final determination of this action, each plaintiff

will suffer irreparable injury and damage for which it has no

adequate remedy at law.

29. Issuance of a temporary injunction enjoining defen-

dant from implementing and enforcing Chapter 268 will cause

no injury to defendant and will maintain the status quo during

the pendency of this action.

WHEREFORE, plaintiffs pray for judgment and decree

of this Court as follows:

a. Declaring that Laws of Minnesota 1977, Chapter 268,

is null and void and unenforceable.

b. Temporarily and permanently enjoining defendant and

any agency, political subdivision or individual acting or pur-

porting to act on behalf of the defendant, from implementing

or attempting to enforce, by civil or criminal action, or other-

wise, the provisions of Chapter 268.

c. Granting to plaintiffs such other relief as may be just

and equitable, including their costs.

BRIGGS AND MORGAN

By LEONARD J. KEYES

DOUGLAS L. SKOR

Attorneys for Plaintiffs

2200 First National Bk. Bldg.

Saint Paul, Minnesota 55101

(612) 291-1215

(Summons and Affidavit of Service Omitted in Printing)

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STATE OF MINNESOTA DISTRICT COURT

County of Ramsey Second Judicial District

(Title Omitted in Printing)

DEFENDANT’S NOTICE AND MOTION TO DISMISS

To: All Plaintiffs and their attorneys, Briggs and Morgan,

Leonard J. Keyes, Esq. and Douglas L. Skor, Esq., 2200

First National Bank Building, St. Paul, Minnesota 55101.

PLEASE TAKE NOTICE that on the 29th day of Novem-

ber, 1977, at 9:30 a.m. or as soon thereafter as counsel may

be heard, in room 1109 of the Ramsey County Courthouse, St.

Paul, Minnesota, respondents will move for an order dismiss-

ing the Complaint for Declaratory Judgment herein. The

grounds for this motion are:

1. The Complaint fails to state a claim upon which relief

may be granted;

2. Plaintiffs, and each of them lack proper legal status or

standing to assert or maintain the purported claims in their

complaint;

3. There exists no justiciable case or controversy between

plaintiffs and defendant. Rather the Complaint, on its face,

amounts to no more than a petition for an advisory opinion

of the Court; and

4. The Court lacks jurisdiction over the subject matter

of this action.

This motion is made pursuant to Rule 12.02 of the Minne-

sota Rules of Civil Procedure and is based upon all of the files

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and records of the proceeding herein including a memorandum

of law to be hereinafter submitted.

Dated : October 18, 1977

WARREN SPANNAUS

Attorney General

State of Minnesota

By BYRON E. STARNS

Chief Deputy

Attorney General

and

KENNETH E. RASCHKE, Jr.

Assistant Attorney General

102 State Capitol

Saint Paul, Minnesota 55155

Telephone: (612) 296-2351

Attorneys for Defendant

State of Minnesota

(Affidavit of Service Omitted in Printing)

STATE OF MINNESOTA DISTRICT COURT

County of Ramsey Second Judicial District

(Title Omitted in Printing)

ORDER

The above matter came on for hearing before the under-

signed Judge of the District Court at a Special Term on No-

vember 29, 1977.

Byron E. Starns, Esq., Chief Deputy Attorney General, and

Kenneth E. Raschke, Jr., Assistant Attorney General, ap-

peared on behalf of the State. Leonard J. Keyes, Esq., and

Douglas L. Skor, Esq., of Briggs & Morgan, appeared on be-

haif of Plaintiffs. Thomas V. Bender, Esq., of Peterson, Popo-

vich, Knutson & Flynn, appeared amicus curiae.

a

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The parties appeared on the State’s motion to dismiss the

complaint for failure to state a claim upon which relief can

be granted.

The matter was duly argued on behalf of the Petitioner and

Respondents. Memoranda were submitted by the parties, in-

cluding amicus curiae. The Court, having in mind the argu-

ments of counsel, bases the following order on all proceedings,

files and records herein. Now, therefore,

IT IS ORDERED the State’s motion to dismiss is hereby

denied.

SYDNEY P. ABRAMSON

Judge of District Court

Dated: December 20, 1977.

MEMORANDUM

To withstand the State’s motion to dismiss, Plaintiffs need

only state a claim upon which relief can be granted. MRCP

12. Plaintiffs allege that the statute in question lacks a ra-

tional basis and should be declared unconstitutional. As as-

sumptions and inferences to be drawn from the allegation

must be viewed in favor of the Plaintiffs, nothing more is re-

quired. Abbariao v. Hamline University School of Law, ——

Minn. , 258 N.W.2d 108 (1977); Northern States Power

Co. v. Franklin, 265 Minn. 391, 122 N.W.2d 26 (1963).

The remarks of the State and amicus as to the scope and

presumptions of a statute’s rational basis are not within the

consideration of the Court under this motion.

SPA

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STATE OF MINNESOTA DISTRICT COURT

County of Ramsey Second Judicial District

(Title Omitted in Printing)

DEFENDANT’S ANSWER

The State of Minnesota for its Answer to the Complaint

in the above captioned matter:

A. Denies every allegation contained in the Complaint

except as otherwise herein admitted or otherwise qualified.

B. Admits the allegations contained in paragraphs 1, 18

and 19.

C. With respect to paragraphs 2, 4, 6 and 10, admits that

the corporations named therein are organized and exist un-

der Minnesota law; and alleges that it is without knowledge

or information sufficient to form a belief as to the truth of

the remaining allegations contained in those paragraphs.

D. With respect to paragraph 3, admits that Phillips is

a Delaware corporation, and alleges that it is without knowl-

edge or information sufficient to form a belief as to the truth

of the remaining allegations of that paragraph.

E. With respect to paragraph 5, alleges that it is with-

out knowledge sufficient to form a belief as to the truth of the

allegations contained therein and further alleges that it be-

lieves that Hoover Ball and Bearing Company does not have

a certificate of authority to do business in the State of Minne-

sota pursuant to Minn. Stat. ch. 303 (1976).

F. With respect to paragraph 8, alleges that it is without

knowledge or information sufficient to form a belief as to

the allegations contained therein and alleges further that it

is informed and believes that no trade name of “Johnson Star

Market” has been filed with the Clerk of District Court in

Anoka County pursuant to Minn. Stat. §§ 333.01-333.06

(1976).

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G. Alleges that it is without knowledge or information

sufficient to form a belief as to the truth of the allegations

contained in paragraphs 7, 9, 11, 12, 13, 14, 15, 16 and 17.

H. With respect to paragraphs 21, 23 and 25, realleges its

answer contained in paragraphs A. through G.

SEPARATE DEFENSES

In addition, Defendant asserts the following separate de-

fenses :

I. The Complaint fails to allege facts sufficient to state a

claim upon which Relief may be granted.

J. There exists no justiciable case or controversy between

plaintiffs and defendant. Rather the Complaint, on its face,

amounts to no more than a petition for an advisory opinion

of the Court in the face of an upcoming legislative session.

K. Neither Uniloy nor Hoover Ball and Bearing Com-

pany is entitled to maintain an action in Minnesota without a

certificate of authority to transact business therein.

L. Dennis Johnson d/b/a Johnson Star Market is not en-

titled to maintain an action with respect to such business

unless and until a certificate and proof of publication there-

of are filed as required by Minn. Stat. §§ 333.01-333.06

(1976).

M. Plaintiffs, and each of them, lack standing to assert

or maintain the purported claims in their complaint.

N. Plaintiff The Society of the Plastics Industry, Inc.

is not a real party in interest to this action nor a person au-

thorized to seek declaratory relief pursuant to Minn. Stat.

§ 555.02 (1976).

O. Minn. Laws 1977, Ch. 268 is in all respects constitu-

tional and enforceable.

P. Plaintiffs have failed to join parties necessary to the

granting of the relief sought in the Complaint.

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WHEREFORE, defendant prays that the Court enter its

judgment:

1. Dismissing Plaintiffs’ Complaint;

2. Declaring that Minn. Laws 1977, ch. 268 is in all re-

spects valid and enforceable;

3. Denying Plaintiffs all relief prayed for in their Com-

plaint;

4. Granting Defendant its costs and disbursements herein.

Dated: January 4, 1978.

Respectfully submitted,

WARREN SPANNAUS

Attorney General

State of Minnesota

By BYRON E. STARNS

Chief Deputy

Attorney General

and KENNETH E. RASCHKE, Jr.

Assistant Attorney General

and STEPHEN SHAKMAN

Special Assistant

Attorney General

102 State Capitol Building

St. Paul, Minn. 55155

Telephone: (612) 296-6196

Attorneys for Defendant

(Affidavit of Service Omitted in Printing)

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STATE OF MINNESOTA DISTRICT COURT

County of Ramsey Second Judicial District

CLOVER LEAF CREAMERY COMPANY,

PHILLIPS PETROLEUM COMPANY,

MARIGOLD FOODS, INC.,

UNILOY DIVISION OF

HOOVER UNIVERSAL, INC.,

WEBER & BARLOW STORES, INC.,

THE SOCIETY OF THE PLASTICS INDUSTRY, INC.,

WELLS DAIRY, INC., and

M-H PACKAGING SYSTEMS, INC.

Plaintiffs,

vs.

STATE OF MINNESOTA,

Defendant.

FINDINGS OF FACT, CONCLUSIONS OF

LAW AND ORDER FOR JUDGMENT

This matter was tried by the Court without a jury commenc-'

ing March 15 and concluding March 21, 1978. Plaintiffs ap-

peared by their attorneys, Leonard J. Keyes, Esq., and Doug-

las L. Skor, Esq.; defendant, by its attorneys, Byron E.

Starns, Esq., Deputy Attorney General and Kenneth E. Rasch-

ke, Jr., Esq., Assistant Attorney General.

Upon the evidence adduced at the trial and all of the files

and records herein, including the memoranda submitted by

counsel, the Court makes the following as

FINDINGS OF FACT

1. The Court has jurisdicvion over the parties and the

subject matter; a justiciable controversy exists.

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2. Plaintiff Clover Leaf Creamery Company (“Clover

Leaf’’), a Minnesota corporation, is engaged in the packaging

and distribution of milk and milk products within Minnesota

and in interestate commerce. It owns equipment which blow-

molds plastic milk containers which are not intended to be re-

turned to the retailer for refilling with milk (“nonreturnable,

nonrefillable’”’). It utilizes these containers for marketing of

Clover Leaf products, including milk, and also sells them to

other dairies for marketing their respective products, includ-

ing milk.

8. Plaintiff Marigold Foods, Inc. (“Marigold”), a Minne-

sota corporation, is engaged in the packaging and distribution

of milk and milk products within Minnesota and in interstate

commerce. It is the lessor of equipment which blow-molds non-

returnable, nonrefillable plastic milk containers for marketing

its products, including milk. It has packaged and distributed

milk in such containers in Minnesota and elsewhere since 1973.

4. Plaintiff Phillips Petroleum Company (“Phillips”), a

Delaware corporation, manufactures polyethylene resin and

distributes it in interstate commerce to Minnesota customers,

including Clover Leaf. This resin is the material used for the

blow-molding of nonreturnable, nonrefillable plastic milk con-

tainers. :

5. Plaintiff Hoover Ball & Bearing Company has recently

changed its corporate name to Hoover Universal, Inc. Plain-

tiff Uniloy Division of Hoover Universal, Inc. (“Uniloy’’), a

Michigan corporation, manufactures and sells blow-molding

equipment and assessories for the production of nonreturn-

able, nonrefillable plastic milk containers. It is engaged exclu-

sively in interstate commerce in its Minnesota activities. It

has manufactured and sold all of the blow-molding equipment

presently utilized in Minnesota for the fabrication of non-

returnable, nonrefillable milk containers.

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6. Plaintiff The Society of the Plastics Industry, Inc.,

(“SPI’’), a New York nonprofit corporation, is the principal

trade association for the United States plastic industry. It

includes in its membership corporation engaged in the produc-

tion of polyethylene resins, the manufacture and sales of blow-

molding equipment and the fabrication of nonreturnable, non-

refillable plastic milk containers. Its members are principally

engaged in interstate commerce.

7. Plaintiff Wells Dairy, Inc. (“Wells”), an Iowa corpora-

tion, is engaged in the distribution of milk and milk products

in interstate commerce in Minnesota and elsewhere. It owns

equipment in Iowa which blow-molds nonreturnable, nonrefill-

able plastic milk containers for such distribution. It has dis-

tributed milk in Minnesota in such containers since 1973.

8. Plaintiff M-H Packaging Systems, Inc., (‘““M-H’’), a

Minnesota Corporation, has a plant in Ramsey County, Minne-

sota. In that plant it owns equipment which blow-molds non-

returnable, nonreiillable plastic milk containers for sale to

dairies in Minnesota and in interstate commerce.

9. Plaintiff Weber & Barlow Stores, Inc., (“Barlow”), a

Minnesota corporation, is engaged in the retail grocery busi-

ness in Rochester, Minnesota and in outlets in Iowa and North

Dakota. Among its products for retail sale is milk packaged

in nonreturnable, nonrefillable plastic containers.

10. Plaintiff Dennis Johnson, d/b/a Johnson Star Market

(“Johnson’’) has sold his retail grocery business since this ac-

tion has been filed and is no longer a real party in interest.

11. In 1977, the Minnesota Legislature enacted a criminal

statute, Laws of Minnesota 1977, Chapter 268 (coded as

Sections 116F.21 and 22, MSA). Chapter 268 provides:

“Section 1. (116F.21) (Milk packaging, statement

of policy.) The legislature finds that the use of nonre-

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turnable, nonrefillable containers for the packaging of

milk and other milk products presents a solid waste man-

agement problem for the state, promotes energy waste

and depletes natural resources. The legislature, therefore,

in furtherance of the policies stated in Minnesota Stat-

utes, Section 116F.01, determines that the use of nonre-

turnable, nonrefillable containers for the packaging of

milk and other milk products should be discouraged and

that the use of returnable and reusable packaging for

these products is preferred and should be encouraged.

Section 2. (116F.22) (Prohibitions) Subdivision 1.

No person shall sell at retail or offer for sale at retail in

this state any milk or fluid milk products as defined in

Minnesota Statutes, Section 32.291, other than sour

cream, cottage cheese, and yogurt, in a nonreturnable,

non-refillable rigid or semi-rigid container at least 50 per-

cent of which is plastic.

Subd. 2. A violation of subdivision 1 is a misdemeanor

and each day of violation is a separate offense.”

Laws of Minnesota 1977, Chapter 455, Section 96, provid-

ed that the effective date of Chapter 268 is July 1, 1978.

12. Despite the purported policy statement published by

the Legislature as its basis for enacting Chapter 268, the ac-

tual basis was to promote the economic interests of certain

segments of the local dairy and pulpwood industries at the ex-

pense of the economic interests of other segments of the dairy

industry and the plastics industry.

18. In enacting Chapter 268, the Legislature’s published

purpose was to discourage the use of nonreturnable, nonre-

fillable milk containers and encourage the use of returnable

milk containers.

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14. Chapter 268, if implemented, would not encourage the

use of returnable milk containers. It would increase the use

of a more expensive and environmentally harmful nonreturn-

able, nonrefillable paperboard container.

15. In enacting Chapter 268, the Legislature purported

to find that the use of nonreturnable, nonrefillable plastic milk

containers:

. a Presents a solid waste management problem.

b. Promotes energy waste and depletes natural resources.

16. There is no basis in fact for these findings in the light

of Chapter 268’s effect of promoting the greater use of paper-

board milk containers because:

a. The nonreturnable, nonrefillable plastic milk contain-

ers in use today present fewer solid waste management prob-

lems than do paperboard containers. Their quantitative con-

tribution to the solid waste stream is miniscule.

b. The plastic milk containers constitute a stable, inert

contribution to the landfills. They incinerate almost com-

pletely with nonnoxious emissions. They provide approxi-

mately 20,000 BTU’s of heat during incineration and permit

total combustion of other waste products. On the other hand,

paperboard milk cartons decay in landfills and contribute

to landfill instability, permit seepage of leachate into under-

ground water supplies and produce inflammable and explosive

methane gas. They provide approximately 7,000 BTU’s of

heat during combustion’ and emit a small —- of noxious

gases into the atmosphere.

c. As long as there is petroleum, there will be polyethy-

lene, a petroleum by-product which is used for many purposes

in addition to the manufacture of milk containers. Both pe-

troleum and wood are natural resources subject to depletion

from innumerable sources, one of the least being milk contain-

ers.

A-21

17. In enacting Chapter 268, the Legislature purported

to rely on a number of policy goals found in Section 116F.01,

M.S.A.:

a. To encourage the reduction of the amount and type of

materials entering the solid waste stream.

b. To encourage the reuse and recycling of materials.

c. To encourage the design and implementation of regional

programs for materials conservation which take into account

the variations in solid waste generation in Minnesota.

18. Chapter 268, if implemented, will not succeed in effect-

ing the Legislature’s published policy goals because nonre-

turnable, nonrefillable plastic milk containers will be substan-

tially replaced on the market by nonreturnable, nonrefillable

paperboard milk containers. The effects of this replacement

on the published goals are: :

a. Reduction of the amount and types of materials en-

tering the solid waste system is not encouraged. Gallon paper-

board containers weigh almost twice as much as gallon plastic

containers and have a greater volume; they occupy substan-

tially the same amount of landfill space after compaction and

are coated with polyethylene.

b. Reuse and recycling of materials is not encouraged.

Nonreturnable, nonrefillable plastic milk containers are re-

cyclable. Nonreturnable, nonrefillable paperboard milk con-

tainers are neither reusable nor recyclable.

c. Chapter 268 does not address the subject of encouraging

the design and implementation of regional programs for ma-

terials conservation which take into account the variations in

solid waste generation in Minnesota.

19. Chapter 268 does not serve a public purpose.

20. The means chosen by Chapter 268 bear no rational

relation to the public purpose purported to be served.

A-22

21. Chapter 268 is an unreasonable, arbitrary and ca-

pricious interference with the production, marketing and con-

sumption of milk and milk products to the detriment of each

of the plaintiffs and many members of plaintiff SPI.

22. Chapter 268 bans only nonreturnable, nonrefillable

plastic containers of milk and certain milk products. It does

not affect any other milk container or any package of any

other substance whatsoever. This classification is unreason-

able and arbitrary. It bears no rational relationship to the

purported objects of Chapter 268.

23. Despite the purported policy reasons published by the

Legislature as bases for enacting Chapter 268, actual bases

were to isolate from interstate competition the interests of

certain segments of the local dairy and pulpwood industries.

The economic welfare of such local interests can be promoted

without the remedies prescribed in Chapter 268.

24. The substantial burdens imposed on interstate com-

merce by Chapter 268 are impermissible. For example, Chap-

ter 268, if implemented, would effectively prevent:

a. Plaintiff Wells and all out of state dairies who market

milk in Minnesota in interstate commerce from marketing it

in Minnesota in nonreturnable, nonrefillable plastic contain-

ers.

b. Plaintiff Clover Leaf from marketing milk interstate in

nonreturnable, nonrefillable plastic containers or marketing

such containers interstate.

ce. Plaintiff M-H from marketing such containers inter-

state.

d. Plaintiff Uniloy and all other out of state manufactur-

ers and distributors of blow-molding equipment in interstate

commerce from selling such equipment in Minnesota for the

purpose of fabricating nonreturnable, nonrefillable plastic

milk containers.

A-23

e. Plaintiff Phillips and all other out of state suppliers

of polyethylene resin in interstate commerce from selling

their product in Minnesota for the purpose of fabricating non-

returnable, nonrefillable plastic milk containers.

From the foregoing Findings of Fact, the Court makes the

following as

CONCLUSIONS OF LAW

1. Chapter 268 deprives each of the plaintiffs and many

members of plaintiff SPI of substantive due process of law

in contravention of Amendment XIV to the United States

Constitution and Article I, Section 7 of the Minnesota Con-

stitution.

2. Chapter 268 deprives each of the plaintiffs and many

of the members of plaintiff SPI of the equal protection of the

laws guaranteed by Amendment XIV to the United States

Constitution.

3. Chapter 268 constitutes an unreasonable burden on in-

terstate commerce conducted by plaintiffs and many members

of plaintiff SPI in contravention of Article I, Section 8,

United States Constitution.

4. If Chapter 268 becomes effective, each plaintiff and

many members of plaintiff SPI will suffer irreparable injury

and harm for which none has an adequate remedy at law.

5. ‘Laws of Minnesota, 1977, Chapter 268, is null, void and

unenforceable.

6. Defendant State of Minnesota and its agencies, political

subdivisions and individuals acting or purporting to act on

its behalf are permanently enjoined from implementing or

attempting to enforce by civil or criminal action or otherwise

the provisions of Laws of Minnesota, 1977, Chapter 268.

7. Plaintiffs are entitled to recover from defendant their

costs and disbursements.

A-24

8. The attached Memorandum shall be deemed to be a part

of the Findings of Fact and Conclusions of Law herein.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: This 5th day of April, 1978.

DAVID E. MARSDEN

Judge of District Court

MEMORANDUM

The standards by which constitutionality of the statute

must be determined are well settled.

Chapter 268 is clothed with a presumption of validity and

may not be struck down unless its infirmity has been estab-

lished beyond a reasonable doubt.

Likewise, a Court may not substitute its judgment for that

of the legislature as to the wisdom or desirability of the act.

The plaintiffs have satisfied the burden imposed upon them.

No other jurisdiction in the entire country has enacted legis-

lation comparable to Chapter 268.

New York City enacted a city ordinance imposing a tax sole-

ly on plastic containers. That gave rise to Society of Plastics

Industry v. New York City, 3 ERC 1870 (1971) where the

trial court, in a comprehensive opinion, held the ordinance

unconstitutional.

No controlling appellate decision exist.

The relevant legislative history of Chapter 268 support a

conclusion that the real basis for it was to serve certain eco-

nomic interests (paper, pulpwood, and some dairies) at the

expense of other competing economic groups (plastic and cer-

tain dairies) by prohibiting the plastic milk bottle.

If, indeed, there were substantial environmental factors

favoring the use of the paper milk carton, an entirely differ-

ent situation would be presented. Such is not the case.

A-25

Despite the laudable purposes to which the statute purports

to address itself, the evidence overwhelming establishes that

the enunciated goals will not be achieved.

The history of the use of returnable bottles, both nationally

and locally, is revealing. The trends of public acceptance clear-

ly establish a marked preference for nonreturnable forms of

packaging.

The evidence presented in this case requires the conclusion

that banning plastic containers will only increase the use of

paper containers. Defendant has offered no credible evidence

showing that an increased use of returnables would be

realized.

Thus, reliance on compared superiority of returnables ver-

sus nonreturnables, as it affects the problems of post con-

sumer solid waste, as a means of justifying the statute, is

without persuasive effect.

Considerable testimony was presented as to the relative

merits of plastic versus paper containers. Certain expert wit-

nesses appeared for the plaintiffs and defendant. Numerous

exhibits were received.

The Court, as fact-finder, is obliged to weigh and evaluate

this evidence, much of which was in sharp conflict. The opin-

ions of witnesses appearing for the plaintiffs are deemed to

be entitled to great weight. They were supported by impartial

indepth studies done by the Midwest Research Institute for

the United States Environmental Protection Agency.

Defendant’s experts, on the other hand, expressed opinions

which were not persuasive. The foundation for those views

was weak and inconclusive. Indeed, “qualitative” factors

were emphasized beyond the “quantitative” factors. They

were acknowledged to be more judgmental in nature. The

opinions ignored certain relevant factors and placed undue

A-26

emphasis on other factors, and thus lacked convincing quality.

In Federal Distillers, Inc. v. State, 304 Minn. 28, 229 N.W.

2d 144, 157-158 (1975), our Supreme Court set out the sub-

stantive process requirements of a statute as follows:

“(1) That the act serve to promote a public purpose;

(2) that it not be an unreasonable, arbitrary or capri-

cious interference; and (3) that the means chosen bear a

rational relation to the public purpose sought to be

served.”

Mere assertions in the preamble of the statute will not save

its constitutionality, when as here, its effects are arbitrary

and unreasonable. The additional requirements of “rational

relation” .is likewise absent.

Plaintiffs have established a violation of their constitu-

tionally protected due process rights.

For similar reasons the statute violates equal protection

rights which require that affected classifications be reason-

able, not arbitrary, and based upon differences having a fair

and substantial relation to the object of the legislature.

Reed v. Reed, 404 U.S. 71, 76 (1971)

Plaintiffs have argued as follows: |

“The State has singled out the plastic milk container. It has

done nothing to reduce or eliminate the use of the other non-

returnable container of the same product which is more en-

vironmentally harmful. It has done nothing to regulate the

use of containers of other products which pose more immedi-

ate problems, such as littering, and which contribute huge

volumes to the solid waste stream. It has done nothing about

the use of the very same plastic container, by the very same

dairies and stores, for fruit juices. It has done nothing about

the myriad nonreturnable, nonrefillable plastic containers

used to package non-food products. With no rational basis for

A-27

its action, it has simply deprived the dairy industry and the

consumer of the best container ever devised for milk.”

I concur.

Finally, the statute impedes the flow of interstate commerce

without providing adequate offsetting local benefits. This is

especially true as respects the wholesalers and distributors

of milk and ultimately the dairy farmers who sell their prod-

uct to plaintiffs such as Clover Leaf, Marigold and Wells. They

are placed in a disadvantaged position in the market. The

highly competitive nature of the milk industry must be ac-

knowledged and taken into account.

In Hunt v. Washington State Apple Advertising Comm’n.,

432 U.S. 333, 97 S.Ct. 2434, 2446 (1977), the U.S. Supreme

Court said

“When discrimination against commerce of the type we

have found is demonstrated, the burden falls on the State

to justify it both in terms of the local benefits flowing

from the statute and the unavailability of nondiscrimina-

tory alternatives, adequate to preserve the local interests

at stake.”

Here the “local benefits” have been shown to be illusory

or insubstantial, except for the economic advantages provided

the paper and pulpwood industry.

In addition to these claims, plaintiffs have also asserted the

statute is so vague, indefinite and ambiguous that its applica-

tions and enforcement are left to arbitrary determinations.

In view of the determinations as set forth herein, it is un-

necessary to reach or determine the vagueness argument.

D.E.M.

A-28

STATE OF MINNESOTA DISTRICT COURT

County of Ramsey Second Judicial District

CLOVER LEAF CREAMERY COMPANY,

PHILLIPS PETROLEUM COMPANY,

MARIGOLD FOODS, INC.,

UNILOY DIVISION OF

‘ HOOVER UNIVERSAL, INC.,

WEBER & BARLOW STORES, INC.,

THE SOCIETY OF THE PLASTICS INDUSTRY, INC.,

WELLS DAIRY, INC., AND

M-H PACKAGING SYSTEMS, INC.

Plaintiffs,

vs.

STATE OF MINNESOTA,

Defendant.

JUDGMENT ROLL

Pursuant to the Findings Of Fact, Conclusions Of Law and

Order For Judgment, Marsden, J., dated and filed April 5,

1978 which states the following:

1. Chapter 268 deprives each of the plaintiffs and many

members of plaintiff SPI of substantive due process of law in

contravention of Amendment XIV to the United States Con-

stitution and Article I, Section 7 of the Minnesota Constitu-

tion.

2. Chapter 268 deprives each of the plaintiffs and many of

the members of plaintiff SPI of the equal protection of

the laws guaranteed by Amendment XIV to the United States

Constitution.

A-29

3. Chapter 268 constitutes an unreasonable burden on in-

terstate commerce conducted by plaintiffs and many members

of plaintiff SPI in contravention of Article I, Section 8,

United States Constitution.

4. If Chapter 268 becomes effective, each plaintiff and

many members of plaintiff SPI will suffer irreparable injury

and harm for which none has an adequate remedy at law.

5. Laws of Minnesota, 1977, Chapter 268, is null, void and

unenforceable.

6. Defendant State of Minnesota and its agencies, politi-

cal subdivisions and individuals acting or purporting to act

on its behalf are permanently enjoined from implementing

or attempting to enforce by civil or criminal action or other-

wise the provisions of Laws of Minnesota, 1977, Chapter 268.

7. Plaintiffs are entitled to recover from defendant their

costs and disbursements.

Now, on motion of Leonard J. Keyes, said Attorney, IT IS

HEREBY ADJUDGED that judgment is entered in favor of

the Plaintiffs in the manner as stated above (Plaintiffs waive

costs and disbursements)

Signed this 7th day of April A.D. 1978

HAZEL G. ARTH

Clerk

By NELL M. MONTGOMERY

Deputy Clerk

A-30

STATE OF MINNESOTA DISTRICT COURT

County of Ramsey Second Judicial District

(Title Omitted in Printing)

NOTICE OF APPEAL

To: Leonard J. Keyes and Douglas L. Skor, Attorneys for

Plaintiffs:

PLEASE TAKE NOTICE, that the defendant, State of

Minnesota, appeals to the Supreme Court of the State of

Minnesota from the Judgment of the District Court entered

on April 7, 1978 in the above-captioned matter.

Dated April 10, 1978.

WARREN SPANNAUS

Attorney General

State of Minnesota

By BYRON E. STARNS

Chief Deputy

Attorney General

and KENNETH E.

RASCHKE, JR.

Assistant Attorney General

102 State Capitol

St. Paul, Minn. 55155

Telephone: (612) 296-2351

Attorneys for Defendant

State of Minnesota

(Affidavit of Service Omitted in Printing)

A-31

STATE OF MINNESOTA

IN SUPREME COURT

No. 48827

CLOVER LEAF CREAMERY COMPANY, et al.,

Respondents,

vs.

STATE OF MINNESOTA,

Appellant.

Peterson, J.

Dissenting,

Wahl, J.

Endorsed

Filed September 7, 1979

John McCarthy, Clerk

Minnesota Supreme Court

SYLLABUS

Laws 1977, c. 268, which creates a statutory classification

whereby plastic nonrefillable milk containers are banned and

paper milk containers are preserved, violates the equal pro-

tection clause of the Fourteenth Amendment to the United

States Constitution, because the classification is not rationally

related to a legitimate state interest:

(a) The evidence conclusively demonstrates that in the

categories of solid waste management, energy waste, and

depletion of natural resources (matters of specific concern

in the Act), the environmental effects of paper milk contain-

ers are not less harmful than the environmental effects of

plastic nonrefillable milk containers; and

(b) The evidence further establishes that the classifica-

tion will not promote the Act’s stated goal of encouraging the

use of refillable milk containers.

A-32

Affirmed.

Heard, considered, and decided by the court en banc.

OPINION

PETERSON, Justice.

Defendant, state of Minnesota, appeals from the trial

court’s judgment in favor of plaintiffs,! holding L. 1977, c.

268 (the Act), to be unconstitutional.2 We affirm the trial

court’s judgment and hold that the Act violates the equal pro-

tection clause of the Fourteenth Amendment to the United

States Constitution, because it establishes a classification

which is not rationally related to a legitimate state interest.

The Act, approved on May 26, 1977, provides:

“Section 1. The legislature finds that the use of non-

returnable, nonrefillable containers for the packaging of

milk and other milk products presents a solid waste man-

agement problem for the state, promotes energy waste

and depletes natural resources. The legislature therefore,

1 Plaintiffs generally may be divided into two categories—those in-

volved in the packaging and sale of milk; those involved in the

production and sale of plastic goods and associated equipment.

The first category includes:

1. Clover Leaf Creamery Company.

2. Marigold Foods, Inc.

3. Wells Dairy, Inc.

4. Weber & Barlow Stores, Inc.

The second category includes:

1. The Society of the Plastics Industry, Inc.

2. Phillips Petroleum Company

3. Hoover Universal, Inc., formerly Hoover Ball and Bearing

Company

4. M-H Packaging Systems, Inc.

2 The trial court held L. 1977, c. 2€8, to be unconstitutional on three

grounds:

(1) The act deprives plaintiffs of equal protection of the law

in contravention of U. S. Const. Amend. XIV;

(2, The Act deprives plaintiffs of substantive due process of

law in contravention of U. S. Const. Amend XIV and Minn. Const.

art. 1, § 7; and

(3) The act constitutes an unreasonable burden upon inter-

state commerce in contravention of U. S. Const. art. I, § 8.

A-33

in furtherance of the policies stated in Minnesota Stat-

utes, Section 116F.01, determines that the use of nonre-

turnable, nonrefillable containers for packaging milk and

other milk products should be discouraged and that the

use of returnable and reusable packaging for these prod-

ucts is preferred and should be encouraged.*

“Sec. 2. Subdivision 1. No person shall sell at retail

or offer for sale at retail in this state any milk or fluid

milk product as defined in Minnesota Statutes, Section

32.391, other than sour cream, cottage cheese and yogurt,

in a non-returnable, nonrefillable rigid or semi-rigid con-

tainer at least 50 percent of which is plastic.

Subd. 2. A violation of Subdivision 1 is a misdemean-

or and each day of violation is a separate offense.‘

“Sec. 3. This act is effective July 1, 1977.”5

We note three specific aspects of this unique statute :& (1)

The Act does not, under any circumstances, permit the use

of nonrefillable’ plastic containers for milk;® (2) milk/is the

8 Laws 1977, c. 268, § 1, codified as Minn. St. 116F.21.

4 Laws 1977, c. 268, § 2, codified as Minn. St. 116F.22.

5 Laws 1977, c. 455, § 96, superseded L. 1977, c. 268, § 3, and pro-

vided, in part: “Notwithstanding any law to the contrary, no

prohibition on the retail sale or the offer for retail sale of milk

in nonreturnable, nonrefillable plastic containers shall be effective

prior to July 1, 1978.”

6 Minnesota is the only state that has legislatively banned nonre-

fillable plastic milk containers. Ontario, Canada, has banned both

plastic and paper nonrefillable milk containers by executive action.

™The Act mentions “nonreturnable, nonrefillable containers.” A

container can be returnable without being refillable. For example,

the plastic milk bottle banned by the Act can be returned for re-

cycling, but it cannot be used again to package milk. The term

“nonrefillables” is therefore used throughout this opinion to de-

scribe milk containers which cannot be used again for the same

purpose.

8 The container referred to is a high density polyethylene plastic

container which cannot be returned to the dairy to be refilled

with milk for sale to consumers. For the remainder of the opin-

ion, these containers will be referred to as “plastic nonrefillables,”

A-34

only commodity affected by the Act, plastic containers are

not banned unless they are filled with milk; and (38) only

plastic nonrefillable milk containers are affected by the Act,

paper nonrefillable milk containers are not affected. °®

Plaintiffs contend the Act violates the equal protection

clause of the Fourteenth Amendment because it creates a

classification in which paper containers are to be preserved

while plastic nonrefillables are to be banned. Because the pres-

ent statute involves economic regulation, the relevant test

is whether the classification is rationally related to a legiti-

mate state interest. New Orleans v. Dukes, 427 U. S. 297,

96 S. Ct. 2518, 49 L. ed. 2d 511 (1976). Plaintiffs argue that

a rational classification is not established because, from an

environmental standpoint, paper containers are not superior

to plastic nonrefillables, and a ban on plastic nonrefillables

will serve to encourage the use of paper containers instead

of serving to encourage the use of refillable milk containers.

The Act is intended to further the policies stated in Minn.

St. 116F.01; therefore, it is intended to promote the state in-

terests of encouraging the reuse and recycling of materials

and reducing the amount and type of material entering the

solid waste stream. L. 1977, c. 268, § 1. Specifically, the stated

legislative finding of the Act is that nonrefillable milk con-

tainers present solid waste management problems, promote

energy waste, and deplete natural resources ; the stated legis-

lative goal is that use of returnable milk containers should be

®The container referred to is a plastic coated, paperboard con-

tainer which cannot be returned to the dairy to be refilled with

milk for sale to customers. The container is composed of bleached

kraft paper coated with low density polyethylene, a plastic related

to that used in plastic nonrefillable milk containers. Low density

polyethylene comprises about 10 percent of the weight of the con-

tainer. For the remainder of the opinion, these containers will be

referred to as “paper containers.”

A-35

encouraged. L. 1977, c. 268, § 1. The Act, undoubtedly, deals

with legitimate state interests. The crucial question is whether

the classification separating paper containers from plastic

nonrefillables is reasonably related to these state interests.

We are aware of the deference that is accorded to the legis-

lature when the present type of statute is analyzed on equal

protection grounds. Nevertheless, our inquiry into the consti-

tutional propriety of the present classification separating pa-

per containers from plastic nonrefillables is dependent upon

facts. Based upon the relevant findings of fact by the trial

court, supported by the record, and upon our own independent

review of documentary sources, we believe the evidence con-

clusively demonstrates that the discrimination against plastic

nonrefillables is not rationally related to the Act’s objec-

tives. Considering only the specific areas of solid waste man-

agement, energy waste, and depletion of natural resources, it

is clear that the environmental effects of paper containers

are not less harmful than the effects of plastic nonrefillables.

It is also apparent that the classification will not further the

Act’s stated goal of encouraging the usc of refillable milk con-

tainers.

The record supports the trial court’s finding that plastic

nonrefillables present fewer solid waste management prob-

lems than paper containers. The major method of solid waste

disposal is by landfill deposit. The evidence at trial established

that plastic nonrefillables are superior to paper containers

for landfill disposal.

Defendant’s expert witnesses agreed that the principal en-

vironmental hazards posed by landfill disposal are pollution

of underground water, which is caused by leaching, and the

creation and escape of methane gas. Both of these environ-

mental hazards are created by waste decomposition. Bacterial

A-36

and other chemical reactions, combined with percolation of

water and other liquids, create leachates which seep into the

ground and ultimately into underground water. The same re-

actions create methane gas, which is both noxious and ex-

plosive. Paper milk containers contribute to these environ-

mental hazards because they begin to decompose as soon as

the plastic coating on the exterior of the container is punc-

tured or torn. Plastic nonrefillables are essentially inert and

therefore do not contribute to the creation of leachates and

methane gas.

Maintaining landfill stability is important in landfill dis-

posal for two reasons, First, stability minimizes cracking of

the final landfill cover. Such cracking results in the generation

of leachates. Second, landfill stability encourages productive

use of the landfill site after the landfill project is completed.

Because waste decomposition creates landfill instability, plas-

tic nonrefillables contribute to landfill stability while paper

containers do not.

The trial court’s finding that plastic nonrefillables and

paper containers occupy substantially the same amount of

landfill space is also justified by the evidence. Plastic non-

refillables contain less raw material and have greater density

than paper containers. If total compaction (no void spaces left

in containers) is achieved, plastic nonrefillables will occupy

less landfill space. The evidence at trial demonstrated that

during collection waste is typically compacted to a fraction

of its original volume, that it is compacted further when de-

posited at the landfill, and that it has continual pressure exert-

ed upon it as other layers of waste are deposited. Under these

conditions, there is no basis for asserting that plastic nonre-

7" 2 wu a! oy wy

A-37

fillables occupy more landfill space than paper containers.!°

Data in a 1977 final report by Midwest Research Institute

(MRI) and the United States Environmental Protection

Agency (EPA)!! supports defendant’s argument that plastic

nonrefillables take more landfill space than paper containers;

however, accuracy of the figures in the MRI report was per-

suasively attacked by plaintiffs’ expert witnesses. Highly sig-

nificant was the testimony of Richard Welch, a chief investi-

gator involved in the MRI report. Welch indicated that in the

first draft of the {RI report it was assumed, based upon con-

versations with experts, that plastic nonrefillables and paper

containers would compress to within 10 percent of their origi-

nal volume. The American Paper Institute then provided MRI

with a study prepared by the Weyerhaeuser Corporation in-

volving the compressibility of milk containers. The test used

in the Weyerhaeuser study indicated that paper was superior

to plastic. MRI incorporated the Weyerhaeuser finding in its

final report because no other written documentation was

available. Welch criticized the test conducted by Weyerhaeuser

because it neglected to specify the weights of the containers

10 Plaintiffs provided a relevant demonstration of compaction dur-

ing the cross-examination of defendant’s solid waste expert,

Harold Samtur. Counsel for plaintiff crushed samples of both

containers with his bare hands. Samtur estimated that the crushed

volume of each container was between 10 and 20 percent of its

original volume. He further acknowledged that there was vir-

tually no springback of the plastic nonrefillable after it had been

crushed and released and that the springback which did occur

could be eliminated by squeezing the container between thumb

and forefinger.

11The report, entitled “Resource and Environmental Profile Anal-

ysis of Five Milk Container Systems,” was an objective quantifica-

tion of resource and environmental impacts associated with five

milk container systems, including paper containers and plastic

nonrefillables, and was the primary source of documentary evi-

dence at trial on the environmental effects of paper containers

and plastic nonrefillables. For the remainder of this opinion, the

report will be referred to as the “MRI report.”

A-38

used and because the test was conducted in a laboratory, not

under conditions approximating those found in a landfill.‘

William E. Ades of the EPA testified that he too was less con-

fident of compressibility figures in the MRI report than of

figures in other categories of container comparison. Welch

further testified there was insufficient evidence to conclude

that either type of container would consume more landfill

space than the other. The contrary conclusion of defendant’s

solid waste expert, Harold Samtur, was based upon a weak and

inconclusive foundation'* and, as the trial court indicated,

lacked convincing quality.

Solid waste disposal is also achieved by incineration, a

method of disposal in which plastic nonrefillables are superior

to paper containers, Although currently not widespread, in-

cineration will become more prevalent as technology advances

and the energy value of the heat generated by it can be eco-

nomically utilized. Both plastic nonrefillables and paper con-

tainers burn, but plastic nonrefillables have a much higher

Btu value, which results in the recovery of more energy than

12In this test, the volume of a container was measured after the

container was crushed with a laboratory device and the device

was totally released, with no continual pressure exerted upon the

container. The evidence at trial indicated waste is compacted to a

fraction of its original volume during collection, is compacted

even further when deposited at a landfill, and has continual

pressure exerted upon it as other layers of waste are deposited.

13 Harold Samtur relied upon three sources for his conclusion: One,

the MRI report. (Samtur accepted the compressibility figures of

the MRI report without examining their derivation, in spite of

Welch’s testimony about their inadequacy.) Two, a 1972 report

prepared by a milk packaging working group for the Ministry of

the Environment in the Province of Ontario, Canada. (The On-

tario researchers estimated the compaction ratio for a refillable

plastic milk container and then assumed that the much lighter

plastic nonrefillable would consume the same space. The group

also used a nonrefillable plastic milk container incomparable to

the container now used in Minnesota, because it was almost 50

percent heavier and was more difficult to crush.) Three, a 1969

study, the “Eggshell Report,” on the disposable characteristics of

containers. (The study did not include samples of milk containers.)

A-39

can be recovered from burning paper containers. Moreover,

plastic nonrefillables incinerate completely and do not emit

noxious gases into the atmosphere, while paper containers

leave residue and emit small amounts of noxious gases.

Recycling is yet another method of solid waste disposal. One

of the express purposes of Minn. St. c. 116F is to encourage

the reuse and recycling of materials. Plastic nonrefillables

are recyclable because they can be ground and used to make a

large number of polyethylene products.'* Paper containers

are not recyclable because the paperboard and the plastic coat-

ing cannot be separated.

“Source reduction” is a further aid in solid waste manage-

ment and is similarly an express goal of Minn. St. c. 116F. In

the present case, the major relevant source-reduction factor

is the constantly declining weight of plastic nonrefillables.

Plastic nonrefillables weigh a fraction more than half the

weight of paper containers and therefore generate less waste.

While the unit weight of gallon paper containers has remained

at 115 grams or more for at least the past 5 years, improve-

ments in resin, production machinery, and container design

have brought about substantial reduction in the weight of

plastic nonrefillables.'5 Such a reduction in weight causes a

14The evidence indicates that plaintiff Clover Leaf Creamery Com-

pany has a voluntary plastic milk container recycling program.

Clover Leaf picks up plastic milk containers that are returned to

retail stores, grinds them, and sells the plastic material to a sal-

vage dealer.

15In 1964, gallon plastic nonrefillables made on blow-molding ma-

chines manufactured by plaintiff Hoover Universal, Inc. weighed

100 grams per unit. By 1973, plastic nonrefillables generally used

in the dairy industry weighed 70 grams each, the weight used in

the MRI report. Blow-molding machines are currently manufac-

tured to mold 60-gram bottles. The average weight used through-

out the country, including Minnesota, is currently 65 grams. One

Hoover dairy customer presently uses 57-gram containers.

A-40

proportional decrease in the amount of raw material used and

the amount of waste generated, along with lessened impacts

in other environmental categories.‘

The evidence conclusively demonstrates that plastic nonre-

fillables present fewer solid waste problems than paper con-

tainers.

Similarly, in the category of energy waste, the evidence

establishes that paper containers are not superior to plastic

nonrefillables. While the figures in the MRI report on energy

consumption support defendant’s position that less energy is

required to produce paper containers, the accuracy of the fig-

ures was successfully eroded by plaintiffs. Computed in the

MRI report were two values for the amount of energy con-

sumed in the production of paper containers. The higher fig-

ure included, while the lower figure excluded, the energy value

of the wood waste (wood bark and sawdust) generated by

the paper manufacturing process. When MRI included the

energy value derived from burning wood waste (resulting in

a higher figure and a higher level of adverse environmental

impact), paper containers were slightly superior to plastic

nonrefillables. When MRI did not include the energy value

derived from burning wood waste (resulting in a lower figure

and a lower level of environmental impact), paper contain-

ers were superior. )towever, MRI’s figures for plastic non-

refillables did not take into consideration the effect of the

energy value of the waste gases produced in making high

density polyethylene. Welch, a chief investigator in the MRI

report, testified that a meaningful comparison between plastic

16 Defendant argues that some reduction will occur under the Act,

because use of refillable milk containers will be encouraged. As

discussed later in this opinion, the evidence conclusively demon-

strates that increased use of refillable milk containers will not be

the result of a ban on plastic nonrefillables.

A-41

nonrefillables and paper containers in the category of energy

consumption requires inclusion of wood waste energy in com-

puting the amount of energy consumed in producing paper

containers. Welch’s testimony was properly credited by the

trial court.'7 In its tests, MRI used plastic nonrefillables

weighing 70 grams. The average weight of plastic nonrefill-

ables now used in Minnesota is 65 grams. If 65-gram plastic

nonrefillables are used and the energy value derived from

burning wood waste is included in energy consumption figures

for paper containers, the figures demonstrate that production

of plastic nonrefillables requires less energy than production

of paper containers.'®

The evidence introduced at trial therefore demonstrates

that production of plastic nonrefillables does not require more

energy than production of paper containers. The evidence also

establishes that the amount of oil and natural gas consumed

in the production of high density polyethylene for plastic non-

refillables is negligible and that banning plastic nonrefillables

will not increase the volume of natural gas or oil presently

marketed for heating or fuel purposes. Thus, drawing a dis-

tinction between plastic nonrefillables and paper containers

17 The evidence at trial indicated that the petroleum industry has,

for years, used waste gases to fuel or power various processes.

However, it is difficult to pinpoint what amount of energy used

in petrochemical processing represents waste energy. The plastics

industry generally does not break down the sources of energy

used in these processes, because it would be extremely difficult

to engage in such an inquiry.

18 Furthermore, the evidence demonstrates that if the energy value

of raw material in each container is excluded or included in deter-

mining the amount of energy needed to produce the container,

plastic nonrefillables are environmentally superior to paper con-

tainers.

Richard Welch, a chief investigator for MRI, concluded that the

energy impact of plastic nonrefillables and paper containers is

virtually the same.

A-42

is not reasonably related to the state’s interest in preventing

energy waste.

Furthermore, drawing a distinction between plastic non-

refillables and paper containers is not reasonably related to

the state’s interest in conserving natural resources. In spite of

the fact that timber is considered to be a renewable resource

and oil and natural gas are considered to be nonrenewable re-

sources, the evidence demonstrates that banning plastic non-

refillables will not result in lower consumption of natural re-

sources. The amount of crude oil and natural gas used for

producing plastic nonrefillables is so small that a ban on

plastic nonrefillables will not alter the volume of resources

consumed for non-fuel purposes. If any container is likely to

have the potential for reducing depletion of natural resources,

it is the plastic nonrefillable. The record establishes that the

weight of plastic nonrefillables is continually being reduced

and that plastic nonrefillables are recyclable.'®

The evidence conclusively establishes that the stated goal

of the Act, to encourage or promote a return to the use of

refillable milk containers, will not be furthered by banning

plastic nonrefillables. In 1977, plaintiff Clover Leaf Creamery

Company made an effort to revive refillable milk containers

in Minnesota and found that consumers would not purchase

milk in refillable bottles, even when the only alternatives in

some instances were paper containers. Clover Leaf was forced

1® When other environmental factors are considered, the superiority

of plastic nonrefillables is more evident. For example, the MRI

report analyzed factors in addition to energy and compressibility.

Using 70-gram plastic nonrefillables, the study demonstrated that

production of paper containers (1) consumes more water; (2) gen-

erates more water-borne waste; (3) consumes greater quantities

of raw materials; and (4) generates more industrial solid waste

than plastic nonrefillables. However, the MRI report indicated

that paper containers are environmentally superior in the cate-

gory of atmospheric emissions.

A-43

to take back large quantities of milk and finally sold several

thousand unused refillable containers at a loss. The rejection

of refillable containers occurred even though the cost to re-

tailers was 4 cents less per gallon for returnable containers

than for nonrefillable containers and even though thousands

of dollars were spent in promoting refillable milk containers.

The evidence also indicated that in Ontario, where both plas-

tic nonrefillables and paper containers were administratively

banned in 1972, consumers have turned to a third nonrefill-

able container, the “plastic pouch,” as an alternative to refill-

able containers. Whereas 47 percent of the milk containers

used in Ontario in 1971 were refillable, in 1977, the percen-

tage was 19.7.

' The evidence demonstrates that convenience is an impor-

tant factor for consumers and that consumers will therefore

use paper containers instead of refillables if plastic nonrefill-

ables are banned. The environmental effects of producing,

using, and disposing of paper containers are not less harm-

ful than the environmental effects associated with plastic non-

refillables.

Defendant argues that even if it is assumed that paper con-

tainers are not environmentally superior to plastic nonrefill-

ables, the classification drawn in the Act is rationally related

to another legitimate state interest — prohibiting the use of

plastic nonrefillables before a significant foothold is acquired

in the Minnesota milk market.

Defendant argues that the Act was initiated in response to

a move in late 1976 by major Minnesota dairies to a long term

commitment to packaging milk in plastic nonrefillables. De-

fendant reasons that the undoubted consumer convenience of

plastic nonrefillables combined with the capital investment in

machinery designed to produce plastic nonrefillables and the

A-44

economic gains to be made by maximizing production would

have effectively eliminated any likelihood that the Minnesota

dairy industry would later voluntarily turn to refillable con-

tainers. Defendant also argues that because nationwide

trends indicate plastic nonrefillables dominate in any milk

market, it may have been the legislature’s concern that if it

failed to ban plastic nonrefillables, future regulation against

plastic nonrefillables would become too disruptive economi-

cally and therefore impossible to achieve. In other words, de-

fendant asserts that the legislature may have believed that if

action was not taken to limit the introduction of plastic non-

refillables, they would become immovably entrenched in Min-

nesota. The evidence indicates, however, that in the early

1970’s use of plastic nonrefillables had been established in

many areas of Minnesota, excluding the Twin Cities metro-

politan area.

The state interest asserted by defendant is, on this record,

speculative and illusory. The gravamen of defendant’s argu-

ment is that by presently banning plastic nonrefillables, the

legislature will, in the future, be better able to promote en-

vironmentally sound milk packaging, such as refillable con-

tainers. However, the evidence at trial indicates that the Min-

nesota Pollution Control Agency does not presently plan to

take or propose further action on the subject of milk contain-

ers. Similarly, action by the Minnesota Legislature is uncer-

tain, if not highly doubtful. The original version of the Act

included a provision banning paper containers, but that pro-

vision was eventually removed from the Act. There is no evi-

dence, therefore, that paper containers will cease to be used

in the Minnesota milk market. Because paper containers are

not environmentally superior to plastic nonrefillables, any

A-45

asserted environmental benefit in preventing plastic nonrefill-

ables from being widely used in Minnesota is illusory.

Defendant nevertheless contends that the Act should be

upheld as a first step toward solving the overall problem of

milk container waste. We do not doubt that legislatures may

implement economic programs step by step, adopting regu-

lations that only partially ameliorate a perceived evil and de-

ferring complete elimination of the evil to future regulations.

See, e.g., Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717,

16 L.ed 2d 828 (1966); Williamson v. Lee Optical Co. 348

U.S. 483, 75 S.Ct. 461, 99 L.ed 563 (1955). However, such a

step must, at the very least, have a rational relationship to

achievement of a legitimate state interest. In the present case,

the result of the Act, at best, will not be a step toward amelio-

ration of a perceived evil. The evidence is conclusive that pa-

per containers are not environmentally superior to plastic

nonrefillables.

We hold that the Act violates the equal protection clause

of the Fourteenth Amendment to the United States Constitu-

tion because it establishes a classification which is not ra-

tionally related to a legitimate state interest.?°

Affirmed.

WAHL, Justice (dissenting).

While I am persuaded by the evidence cited by the majority

which indicates that plastic nonrefillables are no worse, from

20The trial court treated plaintiffs’ equal protection and substan-

tive due process attacks as separate questions; but under substan-

tive due process analysis, the means chosen by the challenged

legislation similarly must bear a rational relation to the public

purpose sought to be served. See, e.g., Federal Distillers, Inc. v.

State, 304 Minn. 28, 46, 229 N. W. 2d 144, 158 (1975). The trial

court also concluded that the Act constitutes an unreasonable

burden on interstate commerce in contravention of art. I, § 8,

of the United States Constitution; but because of our decision on

equal protection grounds, we do not consider that issue.

8

A-46

an environmental standpoint, than paper nonrefillables, I can-

not agree that the plastic nonrefillables ban, struck down to-

day, is not “rationally related to a legitimate state interest.”

I view it as a constitutionally permissible “first step” in a pro-

environmental effort on the part of the legislature.

The Court in New Orleans v. Dukes, 427 U.S. 297, 303, 96

S.Ct. 2518, 49 L.ed 511 (1976), upheld, per curiam, the

constitutionality of a New Orleans ordinance prohibiting the

sale of foodstuffs from pushcarts, except by vendors who had

continually operated such a vending business within the

French Quarter for 8 years. That classification effectively

operated to disqualify all food vendors except two, and there

was no reason to believe the two were more likely than any

others to “‘preserve the traditions” of the French Quarter, the

ordinance’s alleged purpose. To the charge that the classifica-

tion was “a totally arbitrary and irrational method of achiev-

ing the city’s purpose,” the Supreme Court answered:

“* * * rather than proceeding by the immediate and

absolute abolition of all pushcart food vendors, the city

could rationally choose initially to eliminate vendors of

more recent vintage. This gradual approach to the prob-

lem is not constitutionally impermissible.” 427 U.S. at

305, 96 S.Ct. at 2517.

The court articulated the role of the judiciary with respect

to legislative economic regulations as follows:

“States are accorded wide latitude in the regulation

of their local economies under their police powers, and

rational distinctions may be made with substantially less

than mathematical exactitude. Legislatures may imple-

ment their program step by step, Katzenbach v. Morgan,

384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed. 2d 828 (1966), in

such economic areas, adopting regulations that only par-

A-47

tially ameliorate a perceived evil and deferring complete

elimination of the evil to future regulations. See, e.g.,

Williamson v. Lee Optical Co., 348 U.S. 483, 488-489, 75

S.Ct. 461, 464-65, 99 L.Ed. 563 (1955). In short, the

judiciary may not sit as a superlegislature to judge the

wisdom or desirability of legislative policy determinations

made in areas that neither affect fundamental rights nor

proceed along suspect lines, see, e.g., Day-Brite Lighting,

Inc. v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 407, 96

L.Ed. 469 (1952) ; in the local economic sphere, it is only

the invidious discrimination, the wholly arbitrary act,

which cannot stand consistently with the Fourteenth

Amendment. See, e.g., Ferguson v. Skrupa, 372 U.S. 726,

732, 83 S.Ct. 1028, 1082, 10 L.Ed. 2d 93 (1963).” 427

U.S. at 303-304, 96 S.Ct. at 2517.

Given such instruction by the highest court in the land, I

fail to see how we can distinguish the milk container legisla-

tion struck down here from the pushcart vendor prohibition

upheld in New Orleans v. Dukes. Regardless of the environ-

mental superiority, found by the majority, of plastic over

paper containers, the legislature is free to use a “stepwise”

approach, adopting only a partial solution to the waste prob-

lem. The legislature could rationally conclude that allowing

the plastic nonrefillables to become entrenched in Minnesota

would hinder future efforts to force the dairy industry to

utilize more environmentally acceptable containers.

The majority concludes that “further action on the subject

of milk containers * * * by the Minnesota Legislature is un-

certain, if not highly doubtful,” citing as evidence the fact that

an earlier version of the bill had contained a provision ban-

ning paper nonrefillables as well, which provision was even-

tually removed. However, it is at least arguable that such evi-

A-48

dence leads to precisely the opposite conclusion—the same

conclusion which might be drawn from the following state-

ments made by senators at the debates on the nonrefillables

bill, transcribed and entered in the trial record as Exhibit J:

“Senator Spear: ‘* * * It is true that our alternative

now is not a returnable system in terms of milk bottles.

Hopefully we are eventually going to be able to move to

that kind of a system, but we are never going to move to

a returnable system so long as we allow another nonre-

turnable system with all the investment and all of the

vested interest that is going to involve to begin.’” Full

Senate Floor Discussion, 70th Legislature, May 20, 1977.

“Senator Luther: ‘* * * the real direction that we

should be headed in the state of Minnesota in terms of

packaging, is a returnable system. * * * There will be

arguments made here today about how the paperboard

container is comparable to the throwaway plastic. That

is not the issue that is before us. The issue before us is

whether we should go into another throwaway plastic sys-

tem that will be very, very difficult to convert from.’ ”

Full Senate Floor Discussion, 70th Legislature, May 20,

1977.

The U.S. Supreme Court has frequently observed that a

step-by-step approach in economic regulation is permissible,

see, e.g., New Orleans v. Dukes, supra; Katzenbach v. Morgan,

384 U.S. 641, 86 S.Ct. 1717, 16 L.ed 2d 828 (1966), and cases

cited therein, and has never required actual evidence that a

legislature intends to take a further step in the near future

in the relevant economic area being regulated. Here, however,

it is at least fair to conclude from the legislative history that

the Minnesota legislature indeed intended that the bill banning

plastic nonrefillables would be a “first step” in the environ-

A-49

mental effort. The U.S. Supreme Court’s cautions are well

taken here; it is not for this court “to judge the wisdom or

desirability of legislative determinations” in this area of eco-

nomic regulation.

The majority opinion, in its discussion of the Ontario ex-

perience with a ban on all nonrefillable milk containers, sug-

gests that such a total ban was actually detrimental to envir-

onmental efforts, pointing to evidence that the market share

of refillables has dropped since the ban was enacted. Trial evi-

dence established, however, that the plastic pouch is clearly

superior from an environmental standpoint to both plastic and

paper nonrefillables. Thus, while the measu*e perhivs did not

have precisely the effect intended, it nevertheless had salutary

environmental impact. To suggest that such a total ban would

not benefit the environment is not only contrary to the evi-

dence; it undermines any attempts on the part of the legisla-

ture to proceed with “complete elimination of the evil,” an ef-

fort of which the plastic nonrefillables was but the first step.

Because I believe that Chapter 268, here declared unconsti-

tutional, was precisely the type of regulation which the U.S.

Supreme Court sanctioned in New Orleans v. Dukes, I respect-

fully dissent from this court’s holding that this measure denies

equal protection. Having found that Chapter 268 withstands

the equal protection challenge, I would further hold that it is

not in violation of the commerce clause, Raymond Motor

Transportation, Inc. v. Rice, 454 U.S. 429, 440, 98 S.Ct. 787,

793, 54 L.ed 2d 664, 674 (1978), or the due process clause,

Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-125,

98 S.Ct. 2207, 2213, 57 L.ed 2d 91, 99 (1978) ; Federal Distill-

ers, Inc. v. State, 304 Miun. 28, 38, 229 N.W. 2d 144, 154

(1975), but is a constitutioral exercise of legislative powers.

A-50

STATE OF MINNESOTA

IN SUPREME COURT

(Title Omitted in Printing)

NOTICE OF MOTION AND MOTION FOR EXTENSION

OF TIME TO PETITION FOR REHEARING

To: Clover Leaf Creamery Company, et al Respondents and

their attorneys, Leonard J. Keyes, Esq. and Douglas L.

Skor, Esq., 2200 First National Bank Building, St. Paul,

Minnesota 55101.

Please take notice that the Appellant, State of Minnesota,

hereby moves for an order of the Court granting Appellant

an extension of time until October 5, 1979 to serve and file

any petition for rehearing in the above entitled matter the de-

cision of which was filed on September 7, 1979. This motion is

made pursuant to Rules 126, 127 and 140, Rules of Civil Appel-

late Procedure.

The reason for this motion is to enable the Appellant care-

fully to assess the decision in this case together with that in

Can Manufacturers Institute, Inc., et al. v. State, et al. No.

371, filed therewith, to consider the need to file a petition for

rehearing and properly to prepare a petition which clearly

advises the Court of controlling legal principles, material facts

and material questions which the Court has, in Appellant’s

opinion, failed to consider, misapplied or misconceived.

A-51

It is Appellant’s understanding that Respondents have no

objection to the granting of this motion.

Dated: September 13, 1979.

Respectfully submitted,

WARREN SPANNAUS

Attorney General

By BYRON E. STARNS

Chief Deputy

Attorney General

and KENNETH E.

RASCHKE, JR.

Assistant Attorney General

102 State Capitol

St. Paul, MN 55155

Telephone: (612) 296-6196

Attorneys for Appellant

(Affidavit of Service Omitted in Printing)

STATE OF MINNESOTA

IN SUPREME COURT

(Title Omitted in Printing)

REFEREE’S FINDINGS AND RECOMMENDATIONS

AND ORDER

The above entitled matter came on for hearing before the

undersigned as Referee upon motion made pursuant to the

provisions of Rule 127, Rules of Civil Appellate Procedure,

by Byron E. Starns and Kenneth E. Raschke, Jr., attorneys

for appellant for an extension of time for service and filing of

a petition for rehearing and

A-52

Good cause having been shown, it is recommended that the

time for the service and filing of a petition for rehearing be

extended to include October 5, 1979.

Dated: September 18, 1979

Referee

IT IS HEREBY ORDERED that the time for the service

and filing of a petition for rehearing be extended to include

October 5, 1979.

Dated: September 18, 1979

By the Court:

Associate Justice

(The Petition of the Défendant-Appellant for Rehearing,

filed Oct. 5, 1979, is omitted in printing because, pursuant to

Rule 140 of the Minnesota Rules of Civil Appellate Procedure,

such a petition is in substance a brief or memorandum of

law. The affidavit of service of the petition is similarly omit-

ted in printing.)

A-53

STATE OF MINNESOTA

OFFICE OF CLERK OF SUPREME COURT

ST. PAUL, MINN.

October 31, 1979

CLOVER LEAF CREAMERY COMPANY, et al,

Respondents,

vs.

STATE OF MINNESOTA,

Appellant.

SIR:

You will please take notice that on this date the following

order was entered in the above entitled cause:

ORDERED, that the petition for reargument herein be and

the same hereby is denied and stay vacated.

Yours respectfully,

JOHN McCARTHY

Clerk Supreme Court

A-54

STATE OF MINNESOTA, SUPREME COURT

CLOVER LEAF CREAMERY COMPANY, PHILLIPS

PETROLEUM COMPANY, MARIGOLD FOODS, INC.,

UNILOY DIVISION OF HOOVER UNIVERSAL, INC.,

WEBER & BARLOW STORES, INC., THE SOCIETY OF

THE PLASTIC INDUSTRY, INC., WELLS DAIRY, INC.,

AND M-H PACKAGING SYSTEMS, INC.,

Respondents,

vs.

STATE OF MINNESOTA,

Appellant.

Pursuant to an order of Court heretofore duly made and en-

tered in this cause it is determined and adjudged that the

judgment of the Court below, herein appealed from, to-wit,

of the District Court within and for the County of Ramsey

be and the same hereby is in all things affirmed.

Dated and Signed October 31, 1979

By the Court:

Attest:

JOHN McCARTHY

Clerk

(Clerk’s certification omitted in Printing)