THE TROUBLE with EYEWITNESS TESTIMONY TOWARD a MODEL JURY INSTRUCTION on WITNESS ACCOUNTS ONE Profession

OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVII NUMBER I JANUARY 2020 www.mnbar.org

THE TROUBLE WITH EYEWITNESS TESTIMONY TOWARD A MODEL JURY INSTRUCTION ON WITNESS ACCOUNTS ONE Profession

Mnnoa One Profession. a Bar Aoaon

One Day. Upcoming 2020 One Profession Events

Coming Your Way. DULUTH 6TH JUDICIAL DISTRICT January 23, 2020 The MSBA’s One Profession events bring together judges ROCHESTER 3RD JUDICIAL DISTRICT and lawyers for one day each year to discuss the issues January 31, 2020 and opportuniti es facing the legal profession around Minnesota. These programs are open to all lawyers— WILLMAR 8TH JUDICIAL DISTRICT March 13, 2020 MSBA members and non-members alike. BEMIDJI 9TH JUDICIAL DISTRICT Join your colleagues for presentati ons, panel discussions, March 27, 2020 and conversati ons with att orney thought leaders. Each One Profession event is unique—tailored to reﬂ ect the WADENA 7TH JUDICIAL DISTRICT May 8, 2020 interests and concerns of its regional consti tuents. COON RAPIDS 10TH JUDICIAL DISTRICT July 9, 2020

MANKATO 5TH JUDICIAL DISTRICT September 24, 2020

LAKEVILLE 1ST JUDICIAL DISTRICT October 30, 2020

CLE credits are available. For more informati on visit: www.mnbar.org/one-profession

“Facing our profession’s toughest challenges

Watch Chief Justi ce Gildea’s video at www.mnbar.org/one-profession takes all of us, no matt er what part of Minnesota you call home.” – Chief Justi ce Lorie Skjerven Gildea, MN Supreme Court

1119 One Profession Ad.indd 1 10/22/19 8:42 AM OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVII NUMBER I JANUARY 2020 www.mnbar.org ONE Profession

Mnnoa One Profession. a Bar Aoaon

One Day. Upcoming 2020 One Profession Events 2 President’s Page 20/20 Foresight Coming Your Way. DULUTH 6TH JUDICIAL DISTRICT By Tom Nelson January 23, 2020 The MSBA’s One Profession events bring together judges 4 MSBA in Action ROCHESTER 3RD JUDICIAL DISTRICT North Star Lawyers and lawyers for one day each year to discuss the issues January 31, 2020 and opportuniti es facing the legal profession around 6 Professional ON THE COVER Minnesota. These programs are open to all lawyers— WILLMAR 8TH JUDICIAL DISTRICT Responsibility March 13, 2020 Ethical fee agreements THE TROUBLE WITH EYEWITNESS TESTIMONY MSBA members and non-members alike. By Susan Humiston Toward a model jury instruction on witness accounts By Julie Jonas, Jevon Bindman, and David Herr BEMIDJI 9TH JUDICIAL DISTRICT 16 Join your colleagues for presentati ons, panel discussions, March 27, 2020 8 Law & Technology and conversati ons with att orney thought leaders. Each Beyond compliance: Effective security training WADENA 7TH JUDICIAL DISTRICT One Profession event is unique—tailored to reﬂ ect the By Mark Lanterman May 8, 2020 20 interests and concerns of its regional consti tuents. HEALTHY LAWYERS ARE COON RAPIDS 10TH JUDICIAL DISTRICT PRODUCTIVE LAWYERS July 9, 2020 The business case for promoting lawyer well-being MANKATO 5TH JUDICIAL DISTRICT Lawyers who are impaired—whether because of September 24, 2020 substance use, diagnosed mental health issues, or 10 Colleague Corner simply garden-variety stress—are more likely to commit legal malpractice or violate ethical rules. LAKEVILLE 1ST JUDICIAL DISTRICT ‘There is incredible October 30, 2020 value in membership’ By Patty Beck and Alice M. Sherren meet Sarah Soucie Eyberg CLE credits are available. 12 Bonus! 2020 Buyers’ Guide For more informati on visit: Products & Services www.mnbar.org/one-profession for Lawyers 27 33 Notes & Trends WORKERS’ COMPENSATION Landmarks in the law FOR MEDICAL MARIJUANA? Not So Fast. “Facing our profession’s toughest challenges 47 People & Practice

Watch Chief Justi ce Gildea’s video at www.mnbar.org/one-profession takes all of us, no matt er what part of Member announcements Think the Minnesota Department of Labor Minnesota you call home.” and Industry has settled the issue? Think again. 48 Opportunity Market By Sue Conley and Jeff Markowitz Classified ads – Chief Justi ce Lorie Skjerven Gildea, MN Supreme Court

www.mnbar.org January 2020 s Bench&Bar of Minnesota 1

1119 One Profession Ad.indd 1 10/22/19 8:42 AM President’sPage | BY TOM NELSON

20/20 Foresight

ou’re right, of course, those numbers (20/20) often (6) Lawyer health and wellness: January 13 conference, and accompany the term “hindsight.” So here’s a brief look a spring summit. Be there and be well. “It’s safe to seek help to back, and a longer look forward. get well.” OK, Cheryl Dalby, you’ve been CEO of our (7) Health insurance: We’re developing an association-based combinedY bar associations for a year now. You’re on: and affordable health insurance program for solo or small “Thanks, Tom. During 2019 we created new ways for the multi-employee law firms. Hopefully, a June 2020 launch. bars to collaborate and become more efficient. We’ve combined (8) On-demand CLE: Coming to a screen near you? It’s staff and our physical offices; we’ve integrated our databases, already at 15 hours of the required 45 hours over three years. phone systems, accounting systems, and personnel policies A pending petition to the Supreme Court would allow for all 45 and benefits packages. We’re looking at new ways the bars can hours to be “on demand.” collaborate even more on programming, while maintaining the (9) 2020/2021: Legislative and budget sessions and ABA distinct identity of each organization.” priorities: Civil Legal Aid funding and attorney salaries. Dyan Ebert, you’ll be taking up the presidential baton next Student loan forgiveness initiative. Housing and evictions. June. What think ye? “Civil Gideon,” anyone? “We will continue to reach out to the legal profession in (10) Hate crimes: Legislation? Attorney General initiative? Greater Minnesota, to better understand and assist with their First Amendment? strengths and struggles. We will also address the declining (11) Uninsured attorneys representing clients? Professional number of attorneys practicing outside of the wider Twin responsibility and ethics issues, and potential rules? Insurance Cities area. We will mark and celebrate the 100th anniversary availability? Disclosure to clients or the Court? of the ratification of the 19th amendment, which guaranteed (12) Diversity and inclusion: A professional obligation. women the right to vote. I look forward to continuing and New strategic plan for MSBA Diversity and Inclusion Council. strengthening our work on access to justice, lawyer well-being, Continuing support for marvelous and important affinity bar and member support, engagement, and retention.” associations. Great. Two terrific leaders. Looking forward to Jennifer (13) Potential MSBA amicus positions: Transgender rights. Thompson’s and Paul Peterson’s continuing and emerging Family law and custody matters. leadership, as well. So here’s s’more about what’s on our minds. (14) What to do with dues? Simplify? Lower? (15) Specialists: Certification? Advertising restrictions? Twenty topics for 2020 First Amendment. (1) “One Profession.” All-day gatherings in each of our (16) Solo/small/suburban/Greater Minnesota: Great recent districts— CLE credits; with the district court judges, private edition of Bench & Bar. Practice management and legal research practitioners, and public service lawyers alike. tools. Substantive sections. Duluth MN/CLE solo/small summit. (2) Commemoration of the Duluth Lynchings. In June it’ll (17) New and “vintage” lawyers: New and creative ways to be 100 years since the murders of Elias Clayton, Elmer Jackson, collaborate across generations. and Isaac McGhie. Remembrances on June 15 in Duluth, (18) Large, national and international law firms coming to and June 16 at the Minneapolis Hilton. Guest speaker: Bryan Minnesota. Invasions or evolutions? Non-lawyer ownership Stevenson of the Equal Justice Initiative, author of Just Mercy, of law firms? and much more. Stay tuned and please plan on attending. (19) Courthouse security: Lawyer access and parity. (3) Minnesota Supreme Court Paraprofessional Pilot (20) And more: Immigration; Native American law and life; Implementation Committee: We have Mock Trial. to figure out how to serve the tsunami All of which reflects our continuing view that our bar associa- of pro se litigants coming to our courts. tion is A Great Idea and A Good Deal. It’s a good deal in light of Our current reality is not sustainable, the benefits and all of the “free stuff” that comes with member- either from an access to justice or ship. A good investment—from robust practice tools to a con- a court capacity perspective. Chief stant stream of substantive resources and timely programs. And Justice Gildea has confirmed that it’s a great idea because of our unique opportunity to lead, speak we can no longer just “admire the for, support, connect—and protect—our profession. Whether in problem.” I agree. Minnesota or U.S. legislative hallways, or in our Supreme Court (4) Mandatory reporting of and District Court conference rooms and social gatherings. pro bono publico hours and financial Put another way, there is value that you “get” and there are TOM NELSON is a contributions? Has the time come? values that you support—like excellence and ethics even in the partner at Stinson LLP Add your voice and views. FYI: I said course of zealous representation; dignity and decency; profession- (formerly Leonard, “yes” in my December column. alism and civility; diversity and inclusion. There will no doubt be Street and Deinard). (5) Access to justice: Continuing new and maybe even surprising issues that come our way in 2020. He is a past president collaboration with the Minnesota As Yogi Berra explained: “It’s difficult to predict things, especially of the Hennepin County Supreme Court and the Judicial Branch about the future.” But this is our 20/20 vision: optimistic; leaning Bar Association. on LawHelpMN and a potential and looking forward; trying to see and seize the bright side of our coalition or “commission.” future together. Happy New Year, and welcome to 2020. s

2 Bench&Bar of Minnesota s January 2020 www.mnbar.org Official publication of the Minnesota State Bar Association www.mnbar.org | (800) 882-6722

Editor Steve Perry [email protected] Design & Production Jennifer Wallace Advertising Sales Pierre Production & Promotions, Inc. (763) 497-1778

MSBA Executive Council President Tom Nelson President-elect Dyan J. Ebert Treasurer Jennifer A. Thompson Secretary Paul D. Peterson New Lawyers Chair Blair Harrington Chief Executive Officer Cheryl Dalby Publications Committee Chairperson Carol K. Lee

Steven P. Aggergaard Emily K. Cooper Holly A. Fistler Wood Foster June Hoidal Bethany Hurd Henry D. Long Malcolm P.W. Whynott

© 2020 Minnesota State Bar Association Bench & Bar of Minnesota (ISSN 02761505) is published Monthly, except Bi-Monthly May/June by the Minnesota State Bar Association, 600 Nicollet Mall STE 380, Minneapolis, MN 55402- 1641. Periodicals postage paid at St Paul, MN and additional mailing offices. Postmaster: Send address changes to Bench & Bar of Minnesota, 600 Nicollet Mall STE 380, Minneapolis, MN 55402-1641. Subscription price: $25.00 for members which is included in dues. Nonmembers $35.00 per year. Some back issues available at $5.00 each. Editorial Policy: The opinions expressed in Bench & Bar are those of the authors and do not necessarily reflect association policy or editorial concurrence. Publication of advertisements does not constitute an endorsement. The editors reserve the right to accept or reject prospective advertisements in accordance with their editorial judgment.

WE’D LIKE TO HEAR FROM YOU: To query potential articles for Bench & Bar, or to pass along your comments on matters related to the profession, the MSBA, or this magazine, write to editor Steve Perry at [email protected] or at the postal address above. www.mnbar.org January 2020 s Bench&Bar of Minnesota 3 MSBAinAction | BY STEVE MARCHESE

Keeping the Fire Going MSBA North Star Lawyers talk about pro bono service, commitment, and practice

he Minnesota State Bar Association Why is pro bono service I have worked on cases that are launched North Star Lawyers, its first important to you? outside of my tax practice, in areas individual recognition program for Woodbury: “The number of un- such as Social Security disability, members who provided 50 or more hours represented clients demonstrates consumer credit, and criminal ex- ofT pro bono service, in 2012. Since that time, the that the answers are beyond the pungements.“ program has provided an opportunity for MSBA to resources of non-profit organiza- Pham: “Given my upbringing, I recognize the many members who have been meeting tions and government to fill.” have a soft spot for working with the aspirational standards set in Minnesota Rules of Podpeskar: “The need for rep- inner-city youth, so much of my Professional Conduct Rule 6.1. resentation can be seen in legal pro bono work relates to serving Last year the MSBA recognized 934 members clinics where folks present a range that group, which includes, among who certified they met the program requirements. of family law issues clearly beyond other things, a pro bono class ac- These members provided over 110,500 hours of total their capacity to address on their tion lawsuit against St. Paul Public service, with an estimated value of $27.6 million. I own in court. Even half an hour Schools; representing children in recently contacted a few of those 2018 North Star of service can make a difference in need of protective services through Lawyers in order to find out a little more about their the success of a case.” the Children’s Law Center of Min- pro bono work as well as their tips for incorporating Pasternak: “Pro bono work is nesota; and volunteering at the pro bono into one’s practice. important because access to jus- YouthLink Legal Clinic.” They included the following individuals: tice cannot be solely based upon Pasternak: “Most of my pro one’s income. While one would bono work is through legal servic- Carole Pasternak, Klampe Law Firm, Rochester be appointed a criminal defense es groups—LAOC, SMRLS, and Pasternak has been a licensed attorney attorney if one could not afford a most recently, an asylum case I since 1999. About 80 percent of her private attorney, there are many obtained through The Advocates work is in family law, 20 percent in other areas of law that impact a for Human Rights.” family immigration. She has been a person’s life as dramatically as a Podpeskar: “I only take refer- partner since 2008 and serves on the criminal action.” rals from my local provider—cur- board of Legal Assistance of Olmsted County. Pham: “Doing pro bono service rently LASNEM, formerly the is important to me because I be- Volunteer Attorney Program—as Chris Pham, Fredrikson & Byron, PA, Minneapolis lieve in personal community re- I do not want to pick and choose Pham is a shareholder who works in his sponsibility, which I view as similar between clients that come to me firm’s business litigation department to corporate social responsibility. I through my regular practice. I and also co-chairs the firm’s sports & grew up in a low-income, single- meet clients at a sponsored legal entertainment practice group. parent household in north Minne- aid clinic for brief half-hour ser- apolis, so I can relate to many of vice and take some of them on as Lauren Pockl, Briggs and Morgan, Minneapolis the obstacles and adversities that extended representation cases.” Pockl is an associate in her firm’s en- underrepresented individuals face Pockl: “I seek opportunities ergy group, where she focuses primarily on a regular basis.” that align with the interests that on regulatory matters, as well as envi- Pockl: “As a lawyer, I believe I I am not able to live out through ronmental and natural resource issues. have a professional responsibility my everyday professional work, to provide legal services to those like criminal matters, courtroom Tracy Podpeskar, Trenti Law Firm, Virginia that are unable to pay for those appearances, and various other Podpeskar is a partner in her firm, services, thereby providing ser- areas and aspects of the law that where she focuses exclusively on family vices for the greater public good.” interest me.” law and serves on the board of the Legal Aid Society of Northeastern How do you connect with How do you incorporate Minnesota. pro bono opportunities? pro bono representation Woodbury: “I want to take cas- into your practice? Allison Woodbury, Stinson, LLP, Minneapolis es where the client has the great- Pockl: “I make time to ensure Woodbury has been a partner in est need. My firm’s Deinard Legal that I am able to fully engage in her firm’s income tax practice since Clinic provides some of my case the pro bono work that I perform 2012 and does almost exclusively referrals, in addition to Southern as much as I make time to ensure transactional practice, providing Minnesota Regional Legal Servic- that I fully engage with my day-to- support to the firm’s corporate lawyers. es (SMRLS) and the Minnesota day legal work. The relationships Volunteer Lawyers for the Arts. that I have built, the skills that I

4 Bench&Bar of Minnesota s January 2020 www.mnbar.org have harnessed, and the wide Woodbury: “Consistency is up a pro bono file in an area of it makes. Most cases are not variety of legal areas that I the key. I always have some- law that is of interest to you. It terribly time-consuming. And have covered as a result of my thing active in my pro bono does not need to be anything reaching the 50 hour pro bono pro bono work have all con- caseload. It is a practice man- complex or time-consuming, annual hours is likely only 2-3 tributed to me being a better agement skill to manage my but something that is mean- cases per year.” corporate attorney and firm workload. If I waited for the ingful. Experiencing firsthand Woodbury: “Find a lawyer employee.” ‘right’ time to take a case, it that pro bono service can be you know who is active as a Pasternak: “I always have would never happen and that performed alongside the daily volunteer. Ask him or her how at least one full representa- time would be eaten up by demands of an attorney’s prac- they choose activities, balance tion pro bono case on my other matters.” tice is important when decid- responsibilities in practice and active case list. I also pro- Pham: “Two things: experi- ing if or how much pro bono got started. There are varying vide short consultations for ence and networking. By do- work to take on.” levels of commitment. The LAOC’s Family Law Clinics ing pro bono work, I’ve gained Podpeskar: “Pro bono is a point is to get started and not and Father’s Project—each is significant experience in the good opportunity for new law- put it off.” a 30-45-minute consultation. courtroom and in front of cer- yers starting out to get their Pham: “Just jump in! I I believe that the clinic is not tain judges/magistrates. And feet wet and find out what know a lot of lawyers may be income based, just a signup. I networking goes hand-in- they are interested in. Volun- hesitant because the legal area serve on the LAOC board as hand with that experience— teer attorney programs can may be unfamiliar, or if they’re the vice chair, and help with additional opportunities to connect new lawyers to volun- transactional lawyers, then the fundraising efforts to keep meet lawyers, judges, and oth- teer opportunities and provide hesitancy is because they’ve LAOC in the black.” er professionals.” support by connecting them never been to court, have no Podpeskar: “I treat every to more experienced mentors. experience ‘litigating,’ etc. But pro bono advice client like any What advice do you have In greater Minnesota, rela- so much is learned through other client. The local provid- for lawyers interested in, tionships matter a lot and it’s hands-on experience in any er staff knows my limits and but not currently doing, hard to say no to someone you event, so jump in and keep in spreads out referrals. I have pro bono service? know in your community.” mind that although you may never felt burdened by refer- Pockl: “For those who Pasternak: “For those who be inexperienced, nervous, rals from legal aid and, occa- are interested but concerned may not be sure about pro and/or uncomfortable, imag- sionally, I will say no if I can’t about time management, I bono, I would say take one ine how the pro bono clients handle the matter.” would advise simply picking case and see what a difference feel.” s

The New Referral Service You Oughta Know

The Hennepin and Ramsey county bar associations are merging their existing referral services into a new and enhanced program, the Minnesota Lawyer Referral and Information Service (MNLRIS). The creation of this program allows us to consider new, innovative ways to meet the needs of modern legal consumers. Now is the time to get involved!

Trained members of the MNLRIS staff communicate with over What you can expect: 1000 legal consumers a month connecting them with vetted Expanded Marketing to member attorneys or other appropriate resources. In previous Attract Clients years, our referral services have delivered over 1.5 million dollars in Pre-screened Referrals business. Our enhanced new program will only continue to expand. Delivered by Trained Staff Your business cannot afford to miss out. An Expanded Reduced Fee Program with an Updated Fee Schedule New Opportunities for Unbundled Services More Narrowly Tailored Client Referrals Client Line: 612-752-6699 Attorney Line: 612-752-6660 Online Opportunities for Self-Referrals mnlawyerreferral.org

www.mnbar.org January 2020 s Bench&Bar of Minnesota 5 ProfessionalResponsibility | BY SUSAN HUMISTON

Ethical fee agreements

he start of a new year is a good lecting an unreasonable fee. The agree- signed by the client notify the client time to dust off your standard ment for an unreasonable fee can itself of five specific things.7 The required fee agreement to ensure it be an ethics violation, even if it’s unpaid. notifications are set forth in the rule, and complies with the ethics rules. Describing any fee as nonrefundable you must include all five. Please review EveryT year attorneys receive discipline or earned upon receipt is expressly the text of the rule to ensure your flat fee for noncompliant fee agreements. prohibited by the ethics rules.5 This rule agreement is compliant. And—hint!— Let’s make sure it doesn’t happen to has been in place since 2011, yet every watch your language: Telling a client you in 2020. year discipline is imposed for flouting it. they “might” receive a refund if all of the Please help us spread the word. If you see work is not performed is inconsistent The basics anyone with such agreements, remind with the required notification that the The ethics rules require you to have them of the rules. You do not need to client “will” receive a refund if all of the a written fee or retainer agreement report them to this Office; just help work is not performed. Please do not signed by the client in three situations: out your fellow bar member. It would try to mislead your clients by needlessly contingency fee cases, flat fee cases in be deeply gratifying if 2020 was the wordsmithing the notifications required which you place the advance fee in your year that no one received discipline for by the rule. business account rather than your trust violating this rule. If you wish to charge an availability account, and cases in which you charge fee, please consult the rule,8 and do an availability fee.1 In all other cases, yourself the favor of consulting experi- written fee agreements are strongly FLAT FEE HINT! enced ethics counsel. I have yet to see encouraged but not expressly required by a compliant availability fee agreement the ethics rules. Watch your language: that someone is willing to pay; too often If you do not have a written fee they are just impermissible attempts to agreement, you still must communicate Telling a client they “might” designate a portion of a flat fee as non- to your client the scope of the refundable. Remember, if you agree to representation and the basis or rate of receive a refund if all of represent someone on a particular matter the fee and expenses for which the client that is pending, you are already agreeing will be responsible.2 Under the rules, the the work is not performed to be available for representation. Avail- client must sign the agreement in the ability fees are separate and apart from cases where written fee agreements are is inconsistent with the any compensation for legal services to be required—not a family member or friend, performed, which is why they are rarely but the client. And a “signed” writing required notification that valuable to a client. can “include[] If you use a contingency fee agree- an electronic the client “will” receive a ment, make sure to specify the kinds of sound, symbol or expenses that will be deducted from any process attached refund if all of the work is recovery, and whether the expenses will to or logically be deducted before or after the contin- associated with not performed. gent fee is calculated.9 Most contingency a writing and fee agreements we see have the first re- executed or quirement covered, but attorneys some- adopted by a In the case of a flat fee, you may times omit the second. I’m sure it will SUSAN HUMISTON person with the ethically describe the advance fee not surprise you that clients expect you is the director of the intent to sign the payment as the lawyer’s property to deduct expenses from the award, and Office of Lawyers writing.”3 subject to refund, but it cannot be then calculate your percentage recovery Professional earned upon receipt, unless the client is on the lower remaining sum, but that is Responsibility and The content actually paying after all work has been rarely how you plan to do the math. Client Security The rules also completed. Ordinarily, all fees paid in The rule requires you to be specific. Board. Prior to her establish content advance of legal services being performed If you plan to charge clients for the appointment, Susan requirements and must be placed in trust, and only cost of copying or retrieving their files, worked in-house prohibitions. Of withdrawn as earned with notice to the remember that a client must agree to at a publicly traded course, fees must client.6 In order to treat a flat fee paid in that in writing prior to termination, so company, and in be reasonable.4 advance as the lawyer’s property subject your fee agreement is a good place to private practice as a And this rule is to refund (and thus eligible to be placed secure your client’s agreement to this litigation attorney. expansive—it in a business account and spent rather expense.10 You also cannot ask your

SUSAN.HUMISTON prohibits making than placed in a trust account until work client to prospectively limit liability for @COURTS.STATE.MN.US an agreement for, is complete), Minnesota’s ethics rules your malpractice unless the client is charging, or col- require that the written fee agreement independently represented.11

6 Bench&Bar of Minnesota s January 2020 www.mnbar.org (The rule does not say you should Notes tell your client to consult another 1 Rule 1.6(c), Minnesota Rules of Professional lawyer; it expressly requires that the Conduct (MRPC) (“A contingent fee client be represented by someone else in agreement shall be in a writing signed order to make a prospective agreement by the client….”); Rule 1.5(b)(1), MRPC of this kind.) (“If agreed to in advance in a written fee James C. Erickson, Sr. You should also take care if you plan agreement signed by the client, a flat fee to insert an arbitration provision in your shall be considered to be the lawyer’s 30+ YEARS OF EXPERTISE fee agreement. In 2002, the ABA opined property upon payment of the fee, subject that it is permissible to require a client to refund as described in Rule 1.5(b)(3).”); Fire & Property Damage to arbitrate fee disputes or malpractice Rule 1.5(b)(2), MRPC (“Such an availability Policy Appraisals claims, but to be ethical, such a provision fee shall be reasonable in amount and Personal Injury/Death should apprise the client of the advan- communicated in a writing signed by the Mediations/Arbitrations tages and disadvantages of arbitration client.”). Minnesota/Wisconsin to ensure informed consent.12 Whether 2 Rule 1.5(b), MRPC. an arbitration provision that does not do 3 Rule 1.0(o), MRPC. so is rendered unenforceable or pre- 4 Rule 1.5(a), MRPC; see also ABA Formal Erickson, Bell, Beckman & Quinn empted by the Federal Arbitration Act, Opinion 93-379 providing guidance on 1700 Highway 36 West, Suite 110 if applicable, is a subject for another day, ethically reasonable fees and expenses. Roseville, MN 55113 but I do recommend that you familiarize 5 Rule 1.5(b)(3), MRPC. 651-223-4999 | [email protected] www.ebbqlaw.com yourself with the law and ethics opinions 6 Rule 1.15(c)(5), MRPC (“except as specified in this area if you wish to include an en- in Rule 1.5(b)(1) and (2), deposit all fees forceable and ethical arbitration clause received in advance of the legal services in your fee agreement. being performed into a trust account and Also take care in attempting to obtain withdraw the fees as earned”); Rule 1.15(b), security for payment of fees in your fee MRPC (requiring withdrawal of earned fees TRADEMARK agreement (or otherwise). The conflict within a reasonable time of being earned Copyright & Patent Searches rules have specific requirements for as well as written notice of the withdrawal “Experienced Washington office the manner in which you can acquire a from trust). security interest adverse to your client.13 7 Rule 1.5(b)(1), MRPC. for attorneys worldwide” You should follow those rules to avoid an 8 Rule 1.5(b)(2), MRPC. unethical business transaction with your 9 Rule 1.5(c), MRPC. FEDERAL SERVICES & RESEARCH: client. Nor can you acquire a proprietary 10 Rule 1.16(f), MRPC. Attorney directed projects at all Federal agencies in Washington, DC, including: USDA, TTB, EPA, 11 interest in the cause of action or subject Rule 1.8(h), MRPC. Customs, FDA, INS, |FCC, ICC, SEC, USPTO, matter of the litigation, except for an 12 ABA Formal Opinion 02-425 (2/20/2002) and many others. Face-to-face meetings with Gov’t attorney’s lien authorized by the law or a (“It is permissible under the Model Rules officials, Freedom of Information Act requests, copyright deposits, document legalization @ State 14 to include in a retainer agreement with a reasonable contingent fee. Dept. & Embassies, complete trademark, copyright, Finally, double-check if you plan to client a provision that requires the binding patent and TTAB files. charge interest on your accounts receiv- arbitration of disputes concerning fees and able. You must comply with state usury malpractice claims, provided that the client COMPREHENSIVE: U.S. Federal, State, Common Law and Design searches, and lending laws regarding the interest has been fully apprised of the advantages INTERNATIONAL SEARCHING you charge, because an illegal fee is an and disadvantages of arbitration and has EXPERTS: Our professionals average unreasonable fee.15 given her informed consent to the inclusion over 25 years experience each of the arbitration provision in the retainer FAST: Normal 2-day turnaround with 24-hour and 4-hour service available Conclusion agreement.”) Fee agreements are central to the at- 13 Rule 1.8(a), MRPC; see also Rule 1.8(a), torney-client relationship. Done well, they Cmt. [4] (“a fee paid in property instead of provide great clarity to clients and counsel money may be subject to the requirements alike. The ethics rules include a lot of of Rule 1.8(a) because such fees often information on how you may, or in some have the essential qualities of a business 200 N. Glebe Rd., Suite 321, Arlington, VA 22203 cases must, structure your fee agreement. transaction with a client.”) Ph: 703-524-8200, Fax: 703-525-8451 Do not be so focused on contract law that 14 Rule 1.8(i), MRPC. Minutes from USPTO & Washington, DC you forget the ethical rules that also apply. 15 See Patrick R. Burns, Interest on Legal Fees: TOLL FREE:1-800-642-6564 Happy 2020, and as always, please call our Usury is Illegal, Unreasonable, and Just Plain www.GovernmentLiaison.com Bad, Minn. Lawyer, 8/27/2001, available at advisory opinion service at 651-296-3952 [email protected] if you need ethics advice. s http://lprb.mncourts.gov/articles/Articles. www.mnbar.org January 2020 s Bench&Bar of Minnesota 7 Law&Technology | BY MARK LANTERMAN

Beyond compliance: Effective security training

he importance of education and training in striving for the best possible cybersecurity out- comes can’t be overestimated. WithinT organizations, management looks to these initiatives as a way to inform employees about an ever-evolving cyber- threat landscape replete with risks and the potential for losses. Regularly sched- uled training also provides a method for documenting employee compliance and a “checked box” for security efforts. But staying compliant with regulations, laws, and internal policies is not a guarantee of perfect security. I often think that we’d all like to believe that completing that 15-minute module three weeks ago on how to spot an email scam (the one that really only took five minutes to finish) is enough to ensure Compliance with Payment Card new technologies—as well as an orga- our organization’s security. Everyone who Industry (PCI) standards would have nization’s incorporation of the Internet was assigned the training has completed had upper management feeling pretty of Things—should always be provided it—that’s enough, right? This false good about their security. While the Pay- across departments. sense of security frequently weakens ment Card Industry Security Standards Attorneys are held to an especially the culture of security that training and Council has set forth these standards high standard when it comes to the education are supposed to support. as a minimum baseline by which an information they protect. According In 2013, Target fell victim to a massive organization should abide, I think it’s to the American Bar Association’s breach that left millions of customers’ fair to say that a large majority of PCI- Formal Opinion 477R, “a lawyer may data vulnerable to hackers. The attack compliant organizations take a passing be required to take special security continues to cost Target even now, as the audit as an A+ for security, “set it and precautions to protect against the organization has decided to pursue legal forget it” until the next audit, and pat inadvertent or unauthorized disclosure action against its themselves on the back when they pass of client information when required by insurer for $74 again. The fact is, Target’s compliance an agreement with the client or by law, million, alleging meant little in providing an overall view or when the nature of the information that it was not re- of its security posture; PCI compliance requires a higher degree of security.”3 imbursed for issu- could not predict that when technical The reasonable efforts required by ing new payment controls alerted Target to an intrusion, the legal community to prevent data cards to custom- they would be ignored. breaches necessitate thorough education ers.1 Substantial Compliance with technical control that takes the firm’s specific needs, and reputational and standards can never override the human types of data, into account. Compliance MARK LANTERMAN financial damages element of security. In Target’s case, with policy is only worthwhile when is CTO of Computer ensued as a result compliance with PCI standards did not upheld by a culture of security that Forensic Services. of the breach, and have any impact on day-to-day security acknowledges the unpredictability of a A former member clearly, Target is practices. Organizations can support changing threat landscape. s of the U.S. Secret not completely out security, budget appropriately, pursue Service Electronic of the woods. The compliance, assure customers and clients Crimes Taskforce, scary thing? As a of their attention to latest requirements Notes Mark has 28 years recent journal ar- and best practices—and still be insecure. 1 http://www.startribune.com/target-sues- of security/forensic ticle pointed out, Accounting for the human element insurer-for-at-least-74-million-in-2013-data- experience and “In 2013, Target requires interactive, regular training breach-costs/565169292/ has testified in over was certified PCI that considers each employee’s unique 2 https://www.csiac.org/journal-article/compliant- 2,000 matters. He is DSS compliant role in contributing to an organization’s but-not-secure-why-pci-certified-companies-are- a member of the MN weeks before security culture. While every employee being-breached/ Lawyers Professional hackers installed is responsible for security, different roles 3 https://www.americanbar.org/content/dam/aba/ Responsibility Board. malware on the re- and responsibilities require personalized administrative/professional_responsibility/aba_ tailer’s network.”2 education. Additionally, training for formal_opinion_477.authcheckdam.pdf

8 Bench&Bar of Minnesota s January 2020 www.mnbar.org To help our members better serve this segment of the market, the MSBA recently added basic estate planning to its 60% of adults in the U.S. don’t document assembly have a will or living trust. product, mndocs. For Millennials that figure jumps to 78% without an estate plan. 93% of American households have a net worth of less than $1 million.

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THE cloud-based, ecommerce marketplace for automated legal document creation ColleagueCorner | MEET SARAH SOUCIE EYBERG

‘There is incredible value in membership’

What I like about Social Security disability is that I am helping people with really serious physical or mental health problems navigate a complex system. My clients are often unsophisticated, or otherwise SARAH SOUCIE EYBERG vulnerable, most often because of the is a 2011 graduate of impact of their health conditions on William Mitchell College their functioning. of Law. The winner of the MSBA New You’ve done an extraordinary Lawyers Section 2018-19 amount of volunteer work for the bar, Outstanding New Lawyer including service as chair of the of the Year Award, MSBA General Policy Committee Sarah practices Social and as a member of the MSBA Security disability law Assembly and MSBA Council. as a solo practitioner. What led you to get so involved? As a member of the I have been an MSBA member MSBA since she was a since law school. To me, it is a no- law student, Sarah has held leadership roles brainer. There is incredible value in in numerous sections, membership. I care passionately about including New Lawyers, the organization and its mission, and Practice Management I have a hard time not volunteering and Marketing, and when there is work to be done. Social Security Disability Law. She served as What have you gained professionally chair of the New from your bar volunteer service? Lawyers Early Bar Exam I think the number one value that Committee, and saw I get from bar volunteer service is the that special project sense of giving back to the greater through approval by the good, or having an impact on the legal Why did you go to law school? NLS Council and the profession greater than the service I can MSBA Assembly and a When I was growing up, I had the great fortune to petition to the Minnesota provide to my clients. A lot of the work watch my father practice law. And from a very young age Supreme Court. She now we do at the bar has a direct impact on I wanted to be a lawyer. I also wanted to be a rock star serves on the Board of practitioners’ practices, well-being, and and a ballerina and a cowgirl. But I stuck with being a Law Examiners Early success. I love being a part of that. lawyer. Definitely not because I wasn’t extremely talented Bar Exam Committee, in all those other areas. representing the What do you like to do when MSBA. Sarah is also you’re not working? How did you come to focus your practice on Social the chair of the MSBA When I am not working, I am likely Security disability work? Assembly General shuffling between MSBA meetings, I came up on Social Security disability work because Policy Committee and Girl Scouts, Boy Scouts, and wrestling/ that was the type of law practiced in the first law firm was recently re-elected gymnastics/softball practices. We also that hired me. I had no prior experience in Social to another term on the love spending time at the cabin as a Security disability, nor did I ever take any administrative MSBA Council. She lives family. I like to run, and knit, though in Coon Rapids with law classes in law school. When I was in law school I her husband and four usually not at the same time. And thought I might be a legal aid attorney and help people wonderful children. occasionally I get to spend time with with their family law issues. After doing some work like SOUCIEEYBERGLAW my handsome (and equally busy) that, I realized quickly that was not the place for me. @GMAIL.COM husband. s

10 Bench&Bar of Minnesota s January 2020 www.mnbar.org BLENDED LEARNING AT MITCHELL HAMLINE SCHOOL OF LAW

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In 2015, Mitchell Hamline became the first ABA-approved law school in the nation to offer a law degree through a blend of online and on-campus instruction.

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www.mnbar.org Buyers’ Guide January 2020 s Bench&Bar of Minnesota 15 THE TROUBLE WITH EYEWITNESS TESTIMONY TOWARD A MODEL JURY INSTRUCTION ON WITNESS ACCOUNTS

By Julie Jonas, Jevon Bindman, and David Herr

ne of the most gripping mo- These recommendations are essential not included in Minnesota’s jury instruc- ments in any trial occurs when to the justice system’s efforts to ensure tion that may be helpful in weighing the an eyewitness identifies the that the correct person is held responsible credibility of a testifying eyewitness, and defendant as the perpetrator for the wrong committed. But the justice offers a sample jury instruction that ad- Oof a crime in open court. But what the system has been slow to incorporate these dresses those factors. jury doesn’t know is this is primarily for recommendations, and jurors are often show; the “real” identification occurred uninformed about critical factors that af- Brathwaite: The unintended months earlier in a police lineup, photo fect the reliability of eyewitness identifi- jury instruction array, or other identification procedure. cation. It is important to understand that Like most states, Minnesota follows Dozens of factors affect what the eyewit- these issues do not arise only on “one the constitutional standard for admission ness observed, the witness’s ability later side of the v” in criminal cases—nor, for of eyewitness testimony set by the U.S. to recall that information to make the that matter, only in criminal cases. Any Supreme Court in Manson v. Brathwaite.1 identification, and the witness’s confi- party proffering or challenging eyewitness Under that standard, if an identification dence in the identification. And even the (or “earwitness”) testimony may need to procedure is unnecessarily suggestive, the best-intentioned law enforcement officer have the testimony put in proper per- evidence should be excluded unless the or investigator can unintentionally bring spective so that the factfinder can assess prosecutor can show through the total- bias to the procedure. it fairly. ity of the circumstances that the iden- Recent scientific advances have led One solution, consistent with how tification is still reliable. In determining to a greater understanding of how the we handle other matters of guidance to whether the evidence is admissible, a circumstances under which witnesses juries, is a more detailed jury instruction court may consider the opportunity of the observe something affect their ability to that provides useful information regard- witness to view the perpetrator, the wit- recall that information later. Events that ing the science behind identification and ness’s degree of attention, the accuracy occur between the initial observation recall. A well-crafted jury instruction of the witness’s description, the witness’s and the identification can also affect a is a cost-effective way to educate jurors degree of certainty, and the time elapsed witness’s memory. As a result, research- about best practices for obtaining a cred- between the crime and the identification. ers have advanced numerous recom- ible identification, particularly since the In the decades since 1977, the Supreme mendations to educate all stakeholders pertinent research is so broadly accepted. Court has provided little additional guid- on methods to ensure greater certainty This article describes the current jury ance regarding factors that make a lineup in eyewitness identifications and greater instruction used in Minnesota, its origins, unnecessarily suggestive. understanding of their sometimes-coun- and recent attempts by Minnesota courts Brathwaite provides a standard for terintuitive limitations. to address this issue. It identifies factors judges to exclude unreliable eyewitness

16 Bench&Bar of Minnesota s January 2020 www.mnbar.org identification evidence. But it does not identification or more susceptible to sug- Like the factors discussed in Brath- inform jurors how to weigh such evidence gestion from other witnesses or interested waite, some of these additional consid- when it is admitted, and was never in- parties. erations are easy to understand given tended to do so. Nevertheless, Minnesota the expected knowledge of most jurors, and many other states use Brathwaite as Cross-racial effect: Differences in whereas others are either unfamiliar or the foundation for their standard criminal 2 race or ethnicity between the witness maybe even counterintuitive. For ex- jury instruction on eyewitness testimony. and the person being identified affect ample, most jurors will appreciate that a For example, Minnesota’s instruction the reliability of an identification. People witness who is intoxicated will be less able (CRIMJIG 3.19) states: are worse at identifying individuals with to make a reliable identification. But the an ethnic or racial background different witness’s memory may also be affected by Testimony has been introduced from their own. the actor’s race or ethnicity, the presence tending to identify the defendant of a weapon, or multiple perpetrators, as the person observed at the time Intoxication: Intoxication can inhibit all of which tend to call into question of the alleged offense. You should 3 a witness’s ability to focus on an event the identification rather than bolster it. carefully evaluate this testimony. as it occurs. It can also prevent the forma- Other factors, such as degree of certainty, In doing so, you should consider tion of a clear and detailed memory. may correlate with reliability—but that THE TROUBLE WITH such factors as the opportunity of depends on whether the witness was ex- the witness to see the person at Complexity: The presence of multiple posed to other opinions or identification the time of the alleged offense, the 4 actors can limit the witness’s ability to results that artificially bolstered his or her length of time the person was in the focus on specific people. confidence. EYEWITNESS TESTIMONY witness’s view, the circumstances of Educating the jury regarding these that view, including light condi- Confidence statements: A confidence factors is obviously of paramount im- tions and the distance involved, 5 statement made at the time of the portance to criminal defendants, but the stress the witness was under initial identification is more reliable than prosecutors may also need to explain at the time, and the lapse of time one made at a subsequent identification factors that affect witness memory when between the alleged offense and or at trial. Additionally, the very act of confronting a defendant’s alibi witness. the identification. (If the witness telling a witness that the suspect they These issues may likewise be implicated has seen and identified the person chose was the “correct” one can make in civil cases, such as products liability before trial and after the alleged of- the witness feel more certain about the (what product did the witness use and fense, you should also consider the identification even when it is incorrect. when?) and personal injury (who was at circumstances of that earlier iden- fault for the automobile accident?), or tification, and you should consider Exposure to extraneous informa- any situation where a party must prove a whether in this trial the witness’s 6 tion: Opinions, descriptions, or other specific person is responsible for an action memory is affected by that earlier identifications provided to a witness may that gives rise to damages. Proper instruc- identification.)2 affect the independence of the witness’s tion on eyewitness testimony is therefore identification or the witness’s confidence a problem that involves both the criminal The jury instruction identifies some of in the identification. and civil bars. the factors considered under the Brath- waite test, such as the witness’s stress Procedure for out-of-court identifica- Moving beyond Brathwaite level, opportunity to observe, and lapse in 7 tion: The procedure for the out-of- In its 2014 report on the problems with time, but not others. And even for those court identification also may affect the eyewitness identification, the National factors that are mentioned, CRIMJIG witness’s memory of the encounter. Fac- Academy of Sciences recommended that 3.19 does not explain how those factors tors include (1) whether the lineup “fill- courts give specific jury instructions that affect the reliability of a witness’s identifi- ers” match the description of the suspect; go beyond Brathwaite: cation. For example, a juror might plausi- (2) whether the lineup is “double blind” bly believe that increased stress sharpens (i.e., did the administrator know which Jury instructions should explain, a witness’s ability to form a clear memory, person in the line-up was the suspect and in clear language, the relevant when in fact the opposite is true. thereby intentionally or unintentionally principles [of assessing eyewitness More concerning, CRIMJIG 3.19 bias the procedure?); (3) the quality and identification].... [T]he instruc- ignores many additional factors not in- specificity of instructions given to the wit- tions should allow judges to focus cluded in Brathwaite that we now know ness, including whether the witness is told on factors relevant to the specific affect a witness’s ability to make a reliable that the suspect may be absent from the case, since not all cases implicate identification, including the following: lineup; (4) whether the witness sees the the same factors.... [J]ury instruc- suspect in more than one identification tions have tended to address only Weapons focus: The presence of a procedure; and (5) whether the lineup certain subjects, or to repeat the 1 weapon during the event may focus administrator gives confirmatory or post- problematic Manson v. Brathwaite the witness’s attention toward the weap- identification feedback, which may afford language, which was not intended on and away from the actor’s face. This the witness a false sense of confidence in as instructions for jurors.3 may make the witness prone to a false the identification.

www.mnbar.org January 2020 s Bench&Bar of Minnesota 17 Although other states have adopted sionals throughout the state and directed JULIE JONAS is the legal more extensive jury instructions based on additional training for judges, but neither director for the Innocence this recommendation, Minnesota courts the Supreme Court nor the District Court Project of Minnesota. She also have continued to grapple with how bet- Judges Association, which promulgates teaches classes on wrongful ter to educate juries on issues surrounding standard jury instructions, has adopted convictions and supervises eyewitness identification. In one recent any of the specific recommendations. clinical students working case, the district court was asked to pro- In its report, the committee agreed on innocence cases at the vide a more detailed jury instruction on that CRIMJIG 3.19 is inadequate and University of Minnesota Law eyewitness identification that included should be “updated and modernized,” but School and Mitchell Hamline School of Law. additional factors shown to affect reliabil- could not reach consensus on the details [email protected] ity. The lower court, holding that expert of an appropriate jury instruction.8 Some testimony was required before it would members preferred to simply add a list of JEVON BINDMAN is an give an instruction in those areas, denied criteria to the current rule, which would attorney at Maslon LLP and the instruction. The Minnesota Court provide a measure of brevity, but would focuses his practice on of Appeals affirmed this result.4 Several not explain the counterintuitive nature construction and appellate months later, another district court de- of certain factors. Others preferred an ap- litigation. He is a member of nied a defense request for an expert to tes- proach that would explain the prevailing the Minnesota Supreme Court tify about the eyewitness identification is- science regarding the factors. This ap- Rules of Evidence Advisory sues that were present in that case. Again, proach would provide the jury with more Committee and a contributor to Minnesota CLE’s the court of appeals affirmed, citing earlier useful information, but it is longer and Minnesota Courtroom Evidence Deskbook. Minnesota Supreme Court decisions that some of the factors may be better dealt [email protected] give district courts wide discretion in de- with by expert testimony than jury in- termining the admissibility of expert tes- structions. DAVID HERR is an attorney timony.5 The Minnesota Supreme Court at Maslon LLP and is an denied review of both cases. Example jury instruction9 experienced appellate lawyer. In 2019, another eyewitness identifica- The example jury instruction appended He is co-author of Minne- tion case came before the court of appeals to this article attempts to address the pri- sota Handbook of Courtroom on the issue of jury instructions. The de- mary issues surrounding eyewitness iden- Evidence and Minnesota Trial fense requested the standard jury instruc- tification while acknowledging that a very Objections, both published by tion with additional cautionary language detailed instruction runs the risk of losing West/Thomson Reuters. on the procedures used by the police in jurors’ attention and being rendered inef- [email protected] obtaining the identification, cross-racial fective. The content is highly dependent identification, and weapons-focus dis- on the facts of the particular case, and it traction. The district court denied the would be a rare case that would present Notes instruction, the court of appeals affirmed, all the issues covered by the instruction. 1 Manson v. Brathwaite, 432 U.S. 98 (1977). and the Supreme Court denied review.6 Accordingly, the instruction would be tai- 2 Minn. Practice Series, Jury Instruction Guide— These decisions illustrate a perplexing lored to include only the factors that are Criminal 3.19. Catch-22 for litigants. A district court potentially implicated in each identifica- 3 Nat’l Acad. of Sciences, Identifying the Culprit: decision to disallow expert testimony on tion. We hesitate to claim that it is a model Assessing Eyewitness Identification 112 (2014). eyewitness identification will not be over- instruction, but there is no reason it, or a 4 State v. Thomas, 890 N.W.2d 413 (Minn. Ct. turned on appeal absent abuse of discre- comparable counterpart, should not be App. 2017), rev. denied (Minn. 3/28/2017). tion, and a district court decision to deny regularly available for trial where eyewit- 5 State v. Anderson, No. A16-0565, 2017 WL a more case-specific jury instruction may ness testimony is received. Other states 1157882 (Minn. Ct. App. 3/27/2017), rev. be affirmed because an expert is required have also adopted more extensive instruc- denied (Minn. 6/20/2017). to support such an instruction. tions that may provide useful language in 6 State v. Davis, No. A18-0758, 2019 WL In 2017, the Minnesota Supreme appropriate Minnesota cases.10 2262225 (Minn. Ct. App. 5/28/2019), rev. Court issued an order that recognized We hope this example instruction denied (Minn. 8/20/2019). the unique challenges presented by eye- provides a starting point for practitioners 7 Report of the Minnesota Supreme Court witness identification evidence. The and judges to open a dialogue and to craft Rules of Evidence Advisory Committee Court asked its Rules of Evidence Ad- an instruction that provides jurors with (10/1/2018), available at http://www.mncourts. visory Committee to review studies and useful information, yet does not confuse gov/mncourtsgov/media/PublicationReports literature in the area of eyewitness iden- or overwhelm them. Jurors need this /Publications-Reports-Rules-of-Evidence-Adviso- tification and to recommend potential information in order to understand the ry-Committee-Summary-Report.pdf. reforms. The committee published its complex factors that affect identification 8 Id. at 29. report on October 1, 2018, and made rec- and memory. A jury instruction is the 9 The example jury instruction was drafted by ommendations related to police practices simplest and most economical way to Connie Iversen, a managing attorney in the Sec- in identification procedures, admissibility impart this information. Ultimately, ond Judicial District Public Defender’s Office. It standards for identification evidence, the this is an issue that the judiciary should has been modified slightly by the authors. use of eyewitness identification experts, address to ensure that juries uniformly 10 See, e.g., Mass. Model Eyewitness Identifica- jury instructions, and appellate standards have the tools to evaluate eyewitness tion Instruction (11/16/2015), available at of review.7 The Supreme Court distrib- identifications and to minimize the risk of https://www.mass.gov/files/documents/2016/11/ uted the report to criminal justice profes- incorrect identifications. s sk/model-jury-instructions-on-eyewitness-identification-november-2015.pdf; N.J. Model Crimi- nal Jury Charges (rev. 7/192012), available at https://www.innocenceproject.org/wp-content/ uploads/2017/06/NJ-Jury-Instruction.pdf.

18 Bench&Bar of Minnesota s January 2020 www.mnbar.org Instruction on

Eyewitness The amount of time the Whether or not 3 eyewitness had to observe 10 “unconscious transfer- the event may affect the ence” affected the eyewitness’s Identification reliability of an identification. A identification. “Unconscious brief or fleeting contact is less transference” occurs when an likely to produce an accurate eyewitness unconsciously iden- Testimony identification than a more tifies a person as a perpetrator prolonged exposure. because they may have seen the person in another situation The circumstances of the or context. 4 event, including the distance he burden is on the between the perpetrator and The circumstances of the state to prove beyond a the eyewitness and the lighting 11 out-of-court identification T reasonable doubt each conditions. Greater distance by the eyewitness to law and every element of the crime between an eyewitness and the enforcement, including: charged. This burden includes perpetrator and/or poor lighting the burden of proving beyond conditions can diminish the a. whether the identification a reasonable doubt the identity reliability of an identification by was administered in a double- of the defendant as the person the eyewitness. blind or blind fashion. Double- who [insert activity observed]. blind administrators do not Identification testimony Any intoxication impairing know who the actual suspect is. is an expression of belief or 5 the eyewitness’s ability to Blind administrators are aware impression by an eyewitness. later recall persons and events. of who the suspect is but shield The value of identification themselves from knowing testimony regarding the The lapse of time between where the suspect is located in defendant depends on the 6 the alleged offense and the the lineup or photo array; opportunity the eyewitness identification. Delay between b. the quality and specificity had to observe whether or not the commission of the crime of the instructions given to the the defendant was in fact the and the time an identification eyewitness before viewing the person who [insert activity is made by an eyewitness photo lineup; APPENDIX observed] and to make a can affect the reliability of the c. whether law enforcement reliable identification of the identification. gave confirmatory or post- Defendant requests defendant on a later occasion. identification feedback to the the following special In appraising the The ability of the eyewitness. Confirmation can instruction in lieu of identification testimony of an 7 eyewitness from one ethnic/ reduce doubt and engender a CRIMJIG 3.19 eyewitness you may consider cultural group to effectively false sense of confidence in an —Identification the following: recognize distinguishing eyewitness, and feedback can Testimony. Defendant features of a person of a falsely enhance an eyewitness’s requests a cautionary The level of stress the different ethnic/cultural group. recollection of the quality of his instruction before 1eyewitness was under at the or her view of an event; testimony by time the eyewitness viewed the The accuracy of the d. the composition of the eyewitness(es) and at person. High levels of stress 8 eyewitness’s prior photo lineup shown to the the close of the case. can diminish an eyewitness’s description of the perpetrator. eyewitness, including whether ability to recall and make an the defendant stood out from accurate identification. Whether the eyewitness other members of the lineup or 9 was exposed to opinions, photo array; Whether a weapon descriptions, or identifications e. whether the lineup was 2 was present during the given by other witnesses properly administered by law commission of the offense. or any other information enforcement to the eyewitness; When a visible weapon is used or influence that may have and during a crime, it can distract affected the independence of f. any statements or conduct an eyewitness and draw the identification. Eyewitness by law enforcement after the their attention away from the memories can be altered identification was made that perpetrator. “Weapon focus” when other eyewitnesses may have influenced the iden- can impair an eyewitness’s share information about what tification or the eyewitness’s ability to make a reliable they observed. Statements confidence in the identification. identification and to describe and/or conduct of another what the perpetrator looks witness can also affect the Any other factors given like if the crime is of a short eyewitness’s confidence in their 12 to you to assess the duration. identification. credibility of a witness.

www.mnbar.org January 2020 s Bench&Bar of Minnesota 19 HEALTHY LAWYERS ARE PRODUCTIVE LAWYERS

By Patty Beck and Alice M. Sherren

20 Bench&Bar of Minnesota s January 2020 www.mnbar.org The business case for promoting lawyer well-being

Lawyers who are hen considering malpractice and ethics risks, lawyers tend to focus on complying with ethical rules, impaired—whether meeting deadlines, maintaining attorney-client relationships, and monitoring client trust accounts. ButW many overlook the most impactful factor in risk management because of substance use, for lawyers: personal well-being. diagnosed mental health Movies and books have glamorized the caricature of the over- worked lawyer billing around the clock with little time for any- issues, or simply garden- thing outside the office. The problem is that this narrative has been internalized by too many lawyers and has led some to believe variety stress—are more the only way to be successful is to prioritize work above all else. As a result, many lawyers worry that taking time away from their likely to commit legal work for family or personal interests—or even for their physical or mental health—will jeopardize their financial and professional malpractice or violate goals. Lawyers who assume (correctly or not) that their firms demand ethical rules. such devotion from them may neglect their individual well-being. This is dangerous for the lawyer personally and professionally, but also costly for their law firm. Impaired lawyers and their law firm face an increased risk of ethical and malpractice claims.1 The financial and reputational consequences to a law firm when its lawyers neglect their personal well-being can include negative publicity when a lawyer is disciplined or disbarred, lost clients, costly lawyer and staff turnover, and adverse verdicts or settlements that can cripple a law firm’s viability. It may seem counter-intuitive to those who want to maximize firm profits, but it’s a business necessity for law firms to make the personal well-being of their lawyers and staff a priority.

www.mnbar.org January 2020 s Bench&Bar of Minnesota 21 Although managing What’s the big deal? their office chairs. Many lawyers struggle Statistics paint a bleak picture of law- to find the time to tend to their physical yer well-being. The American Bar As- well-being, which can further compound and reducing lawyers’ sociation (ABA) Hazelden Betty Ford the challenges otherwise inherent in the Foundation Study released in 2016 profession. workloads may have an showed that nearly one in three of the The practice of law is by nature stress- lawyers who responded struggle with de- ful. Lawyers routinely face demands from acute negative impact pression, about one in five struggle with clients and colleagues, and there is a per- anxiety, and just over one in five identify ception that we should be available at on firm revenue, it will as problem drinkers.2 As acknowledged in all times—even when we are not in the the study, even more lawyers grapple with office. The adversarial nature of resolv- likely save money in the such issues and either did not respond to ing disputes or negotiating contracts can the study or did not want to admit their make “professional courtesy” seem like long run by avoiding struggles. While some lawyers have diag- a fantasy. And of course, many of the nosed chronic mental health issues such people drawn to the practice of law are turnover caused by as bipolar disorder or clinical depression, perfectionists who hold themselves—and others struggle with situational depression others—to sometimes unreasonably high or anxiety. Similarly, lawyers who don’t standards, terrified of falling short. burnout and reducing identify as struggling with alcoholism or It is easy for lawyers to get caught up in substance use may have unhealthy rela- competing with other firms or even other stress-induced errors… tionships with mind-altering substances. lawyers within their firm to work the most But it is not just substance use or men- hours, charge the highest billable rate, Importantly, addressing tal health struggles that can negatively and attract the most sophisticated clients. affect a lawyer’s ability to function at his Lawyers often feel guilty when they take lawyer well-being also or her best. The sedentary nature of the time for family, friends, or hobbies be- profession can exacerbate health hazards cause they believe they will be perceived reduces the financial in ways akin to the effects of obesity or as uncommitted to the firm or their work. smoking. Many lawyers neglect their Scheduling a vacation can seem impos- and reputational costs of physical well-being with irregular meal- sible when a simple work-free weekend is times due to long hours in the office, an rare. Many lawyers become disillusioned malpractice and ethics overabundance of caffeine and junk food that the actual practice of law differs so to get them through the day, and little radically from what they imagined when regard for proper nutrition. For some, they decided to go to law school. But they violations. physical activity is limited to the steps often see no way to change their status they take walking between their cars and quo, which can compound already existing stress. And while the threats to lawyer well- being might change in the course of a career, they do not seem to ebb with years in practice. Young lawyers may experience stress and anxiety because they are afraid to make a mistake, but also afraid to admit they do not know something. Lawyers seeking partnership may struggle with developing a book of business when they have no experience doing so and feel a lack of support from their firms. Lawyers taking on supervisory or managerial roles may fear taking on seemingly overwhelming responsibility for the livelihoods of their partners, employees, and clients. Lawyers nearing retirement may be anx- ious about losing their identities when they are no longer spending the majority of their days in the office. Regardless of the particular circumstances causing lawyer stress, ignoring mental and physical health can lead to devastation of personal and professional lives.

Why should we care? Lawyers struggling with impairments face a conundrum. If we ask for help, will we be perceived as weak? Will we be risking our professional reputation?

22 Bench&Bar of Minnesota s January 2020 www.mnbar.org Ironically, if we don’t ask for help, we are Lawyers concerned about money for standing the type of help they need, or actually far more likely to put our law whatever reason may overbill or churn fear what will happen if seeking help does firms, clients, and law licenses at risk. files to increase their revenue. Some law- not resolve the issue. While these are val- Lawyers who are impaired—whether yers might deal with their personal stress id concerns, it is far better to take action it’s because of substance use, diagnosed by focusing solely on work, and others by toward regaining well-being than simply mental health issues, or simply garden- not being productive at all. Some lawyers to allow one’s personal and professional variety stress—are more likely to commit feel so overwhelmed by stress that they life to deteriorate. legal malpractice or violate ethical rules. lie to their clients, opposing counsel, and Furthermore, in a society that seems to the court in an attempt to cover up their What can we do? demand excellent results in the cheapest mistakes or inaction in handling a matter. When lawyers are unsure how to ad- and shortest amount of time, clients can Failing to appropriately identify and dress a complicated legal issue, it is com- be very unforgiving of errors and delays address impairments like substance use, mon sense to research applicable case law caused by lawyers who are not taking anxiety, or even general stressors can neg- and talk with other lawyers or experts care of themselves, which can have costly atively affect a lawyer facing a disciplinary with experience in the practice area. We impacts to law firms by way of negative matter. Of course, each disciplinary mat- should feel empowered to do the same online reviews, non-repeat business, and ter is handled on a case-by-case basis, but when we face uncertainty about the stress costly malpractice lawsuits. the core factors that guide the imposition in our professional and personal lives. Minnesota Rules of Professional Con- of discipline are the nature of miscon- Thus, best business practices include re- duct Rule 1.3 requires lawyers to act with duct, cumulative weight of disciplinary ducing the stigma of admitting personal reasonable diligence and promptness in violations, harm to the public, and harm and professional stressors, and increasing representing a client, and Rule 1.4 re- to the profession.3 The goal of attorney awareness of and access to tools for law- quires lawyers to communicate promptly discipline is not to punish the attorney, yers to improve their overall well-being. and effectively with their clients. Rules but to protect the public and the judicial For legal employers, we recommend con- 3.3, 3.4(b), and 4.1 prohibit lawyers from system, and to deter future misconduct by sulting the Well-Being Toolkit for Lawyers lying to anyone involved in the legal pro- the disciplined attorney and others.4 and Legal Employers, a resource created cess. Impaired lawyers are far more likely Lawyers who acknowledge their prob- last year by Anne M. Brafford for use by to fail to meet these basic ethical obliga- lems and are proactive in addressing them the American Bar Association. tions than lawyers who make well-being (and, in appropriate cases, seeking treat- The first step in managing our per- a priority. ment) are better able to regain personal sonal well-being is to do a self-evaluation And it’s not just the impaired lawyers and professional well-being. While it is to determine the sources of our discom- whose behaviors implicate professional important to note that the mere existence fort. One way to do this is to write out a rule violations. Rule 5.1 imposes respon- of, for example, overwhelming stress, or list of everything in your current job or sibilities on partners and lawyers in super- a substance use problem, is not itself an career path that causes you stress and visory roles to ensure that other lawyers excuse or defense to professional miscon- then look for common themes for guid- in their firm are meeting their ethical duct, a willingness to admit and address ance on change. Is it a specific case—or obligations to their clients and the legal such issues may be considered a mitigat- working with certain clients/colleagues— profession. Rule 5.3 addresses responsibil- ing factor in the imposition of discipline.5 that causes you stress? Is it the pressure ities relating to non-lawyers. Ignoring the Lawyers are held to the same ethical stan- of making a final recommendation to a well-being of those around us can put our dards regardless of their personal struggles, client? Are you frustrated at the lack of firm’s reputation and our own law licenses but those who actively address their situ- control over your schedule or your level on the line. ation head-on may have a better chance of passion for your work?6 The potential for malpractice and eth- of returning to the practice of law after a Once these stressors are identified, we ics violations skyrockets when lawyers disciplinary matter than lawyers who are can make necessary changes. For some, endure work-related stress in addition to uncooperative and refuse to acknowledge a frank discussion with firm partnership regular personal stress. A lawyer working or take responsibility for their actions. could alleviate anxiety about perfor- 50-60 hours per week for months on end Research indicates that those who ad- mance issues. Others may benefit from is likely to burn out, even if everything dress their problems are at a significantly moving out of highly stressful areas of else in his or her life is going well. The reduced risk of ethical and malpractice practice, such as criminal law, family law, mental exhaustion associated with prac- claims. In 2001, the Oregon Attorney or child protection. Some may decide ticing law is difficult to manage without Assistance Program conducted a study that the culture or expectations at a dif- taking adequate time for the brain to rest, involving 55 lawyers in private practice ferent firm or company are a better fit for and the chance of making a mistake due who sought treatment for alcohol use them. Still others might decide to leave to fatigue increases. If that same lawyer and measured the malpractice and ethics the practice of law altogether to pursue also faces personal relationship or money complaints reported against these lawyers an in-house, teaching, or other non-prac- problems, or is struggling with substance during the five-year periods before and af- ticing role. Some lawyers may come to use or depression, his or her malpractice ter seeking treatment. The study revealed the realization that they need treatment and ethics risk can careen into the dan- a 30 percent annual malpractice rate dur- for alcohol or substance use, medication ger zone. It can be extremely difficult for ing the five years prior to seeking treat- for mental health issues, or counseling to even a highly skilled lawyer to thoroughly ment, and only an 8 percent rate after work through personal problems. analyze a complex legal matter for a client seeking treatment. Unfortunately, many lawyers suffer when their brain is fraught with thoughts Unfortunately, many lawyers feel in silence because they hope things will of a recent argument with their spouse, or paralyzed with respect to their personal get better on their own. They won’t. The the devastating news that they or a loved well-being due to general stigma and the decision to seek help can be scary for one has been diagnosed with a terminal fear of losing the esteem of their clients lawyers who believe they are supposed to illness, or worry about their aging parents and colleagues if their struggles become be tough and able to handle everything or troubled children. known. Others may struggle with under- on their own. This thinking is wrong. www.mnbar.org January 2020 s Bench&Bar of Minnesota 23 Everyone needs assistance at some point, Firm management may understand- and it takes a tremendous amount of ably be reluctant to take steps that shift courage to make the decision to seek help. focus away from firm revenue, since all For work-related concerns, this might law firms are at their core businesses. But be as simple as talking with a mentor or from a business perspective, such reluc- another lawyer. Other times, and espe- tance could hurt the firm’s bottom line cially when personal stress, anxiety, sub- far more than, for example, billing fewer stance use, or serious mental health issues hours. Lawyers and firms who prioritize are in play, it can be more difficult to talk well-being are likely to be rewarded with with people we know. Lawyers might be happier and healthier work environments concerned that their confidences will be and better results for clients. Although breached, or that their jobs might be in managing and reducing lawyers’ work- jeopardy, based on something they share loads may have an acute negative impact with their firm. Lawyers with such con- on firm revenue, it will likely save mon- Notes cerns are encouraged to seek help from a ey in the long run by avoiding turnover 1 See G. M. Filisko, Disbarred Lawyers Who mental health professional. Whether this caused by burnout and reducing stress- Seek Reinstatement Have a Rough Road to Re- is a therapist, a psychiatrist, or a similar induced errors. Firms that encourage demption, ABA J., Aug. 2013 (citing Sarah specialist, many lawyers are relieved to lawyers to take time off to recharge create Krauss, then-chair of the ABA Commission share their struggles with someone who is positive morale that permeates the entire on Lawyer Assistance Programs, who said not a colleague, spouse, family member, practice; lawyers who are rested and fo- in 2013 that mental health or substance or friend, and who is there to help rather cused are generally better able to provide abuse issues may be a factor in more than than judge. Certain mental health profes- clients with excellent representation. Fi- half of lawyer discipline cases), available at sionals believe the hardest part is getting nally, addressing lawyer well-being also http://www.abajournal.com/magazine/article/ lawyers through the front door, but once reduces the financial and reputational disbarred_lawyers_who_seek_reinstatement_ they’re in, they tend to stick with it be- costs of malpractice and ethics violations. have_a_rough_road_to_redemption. cause it is in their nature to want to suc- 2 Krill, Patrick, Ryan Johnson, and Linda ceed at everything they do. Conclusion Albert, “The Prevalence of Substance Use Many lawyers will wish to privately A focus on lawyer well-being can help and Other Mental Health Concerns Among consult with a specialist or group of their reduce malpractice and ethics violations, American Attorneys.” Journal of Addiction choice. Another fantastic option is Law- can prevent turnover, and can make the Medicine 10, no. 1 (January/February 2016): yers Concerned for Lawyers (LCL), which practice of law more rewarding for lawyers 46-52. provides free, confidential support and and their clients. Prioritizing lawyer well- 3 In re Nett, 839 N.W.2d 716, 721 (Minn. services to Minnesota lawyers, judges, being is necessary for the betterment of 2013). law students, and their immediate family the profession, and can have long-range 4 In re Koss, 611 N.W.2d 14, 16 (Minn. 2000). members on any issue that causes stress or positive impact on the financial health of 5 See generally, In re Bosman, 876 N.W.2d 308, distress. (You can contact LCL through its the firm. For additional ideas about how 309 (Minn. 2016). website—www.mnlcl.org—or by phone: to promote well-being at your firm, con- 6 On the flip side, make a list of everything in 651-646-5590 in the metro area and 866- sult the materials published by the ABA life both personally and professionally that 525-6466 for greater Minnesota callers.) Working Group to Advance Well-Being makes you happy. Circle everything that Being engaged with others through in the Legal Profession,7 the report pub- your current lifestyle allows you to experi- professional organizations and events also lished by the ABA National Task Force ence, at a minimum, on a bi-weekly basis. promotes lawyer well-being. Getting to on Lawyer Well Being entitled The Path to If over half the list is not circled, something know other lawyers on a personal level Lawyer Well-Being: Practical Recommenda- needs to change. Also, mark the top 10 can alleviate a sense of isolation. The tions for Positive Change,8 and information things most important to your happiness, realization that other people experience available on the MSBA Well-Being Com- and if those are not already circled, that self-doubt and stress in their personal and mittee website.9 is an even bigger indicator that change is professional lives might be what a person You can also contact your malpractice needed. There is no reason why you should who is struggling needs to enable tangible carrier for guidance. Be well! s not be able to experience the things in life steps to improve their situation. that bring you the most joy at least twice per month! 7 For information published by the ABA Working Group to Advance Well-Being in the Legal Profession, please visit the fol- ALICE M. SHERREN is PATTY BECK is a claim lowing website: https://www.americanbar.org/ a claim attorney with attorney with Minnesota groups/lawyer_assistance/working-group_to_ Minnesota Lawyers Mutual Lawyers Mutual Insurance advance_well-being_in_legal_profession/. Insurance Company where Company where she 8 Please visit the following website to learn she directs the defense of manages litigation involving more about the National Task Force on legal malpractice claims legal malpractice claims, Lawyer Well Being: https://www.american- and advises attorneys facing advises attorneys facing bar.org/groups/professional_responsibility/ ethical or disciplinary ethical dilemmas, and task_force_lawyer_wellbeing/ complaints. Alice frequently develops and resolves complex pre-suit malpractice claims on 9 Please visit the following website to learn presents continuing legal education presentations behalf of MLM insureds. She is co-chair of the more about the MSBA Well-Being Commit- and writes articles for various publications on MSBA Well-Being Committee. tee: https://www.mnbar.org/about-msba/leader- risk management and ethics matters. [email protected] ship/msba-committees/life-the-law. [email protected]

24 Bench&Bar of Minnesota s January 2020 www.mnbar.org JANUARY 16 & 17, 2020 Attend As Much As Your Schedule The 2020 Allows New Lawyer Experience Real-World Practice Tips for New Lawyers

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MN Bench and Bar 2020 IS YOUR MEDICAL “TEAM” FAILING TO PROVIDE YOUR FIRM THE SUPPORT NEEDED FOR YOUR CLIENTS’...?

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here are times in the law when Marijuana? everyone thinks you’re wrong but you just can’t shake the feeling that you’re right. It is aT bit jarring, and it can make you (quite reasonably) second-guess yourself. But Not So Fast. you double- and triple-check your facts and the law, take a deep breath, and conclude, yes, I got this right. We respectfully suggest that we are in that situation when it comes to whether, through the 2015 promulgated opioid rules, the Minnesota Department of La- bor and Industry (MDOLI)—by defining medical marijuana that is used consistent with Minnesota law as not an “illegal substance”—made such medical marijuana reimbursable through Minnesota workers’ compensation. Many attorneys in the workers’ compensation claimant bar, and some workers’ compensation judges, have concluded that MDOLI’s 2015 opioid rules authorized workers’ compensation reimbursement for medical marijuana.1 They point solely to Minnesota Rule 5221.6040, subpart 7a, which defines “illegal substance” as “a drug or other substance that is illegal under state or federal controlled substances law,” but excludes from that definition’s scope “a patient’s use of medical cannabis permitted under Minnesota Statutes, sections 152.22 to 152.37.” They conclude that, in so defining “illegal substance,” MDOLI was approving of courts requiring employers and their insurers to pay workers’ compensation benefits to cover such medical marijuana. That conclusion is incorrect. The term “illegal substance” that Minn. R. 5221.6040, subp. 7a defines exists nowhere in the Minnesota Workers’ Com- pensation Act (WCA).2 It exists in only three places in the workers’ compensation treatment parameters, all of which appear in one rule—Minn. R. 5221.6110—that governs long-term use of opioids. The gist of “illegal substance” as defined in that context means that use of medical marijuana consistent with Minnesota law www.mnbar.org January 2020 s Bench&Bar of Minnesota 27 “[t]he drug or other substance has a high potential for abuse”; and (3) “[t]here is a lack of accepted safety for use of the drug or other substance under medical super- vision.”18 In the DEA’s most recent denial of a petition to reschedule marijuana— the August 12, 2016 denial—the DEA expressly found that marijuana “continues to meet the criteria for schedule I control under the CSA.”19 The United States Supreme Court, in Oakland Cannabis and Raich, has made clear that marijuana’s Schedule I place- ment leaves no wiggle room for medical marijuana. In Oakland Cannabis (2001), a cooperative of medical-marijuana dispensaries opened up shop to sell medical marijuana, consistent with a Cali- fornia medical-marijuana statute that “create[d] an exception to California laws prohibiting the possession and cultivation of marijuana.”20 will not disqualify someone from receiv- same penalties as those prescribed for the The district court issued an injunc- ing workers’ compensation benefits for offense” to any person who “conspires to tion that enjoined the dispensaries from opioids—an exception to the general dis- commit” the offense, when the offense distributing medical marijuana, even for qualifying effect of using illegal substanc- was the conspiracy’s “object.”7 The CSA medical marijuana that was, according to es while taking opioids. is also subject to the general aiding-and- the cooperative, “medically necessary.”21 Even if MDOLI had intended by that abetting statute, under which, whoever “Marijuana is the only drug, according to rule to authorize reimbursement for medi- “aids, abets, counsels, commands, induc- the Cooperative, that can alleviate the cal marijuana under workers’ compensa- es or procures [an offense’s] commission, severe pain and other debilitating symp- tion—it did not—such a rule would none- is punishable as a principal.”8 toms of the Cooperative’s patients.”22 theless be invalid. It would be beyond “In enacting the CSA, Congress clas- The district court concluded that MDOLI’s rulemaking authority, given that sified marijuana as a Schedule I drug.”9 “[a]lthough recognizing that ‘human suf- possession of medical marijuana generally Marijuana has remained on Schedule I, fering’ could result,... a court’s ‘equitable remains a federal crime under the Con- notwithstanding seven petitions to the powers [do] not permit it to ignore feder- trolled Substances Act (CSA),3 and be- Drug Enforcement Agency (DEA)10 to real law.’”23 Disagreeing, the Ninth Circuit cause the Minnesota Legislature—which schedule it to a less restrictive schedule.11 reversed, concluding that the cooperative gave MDOLI its rulemaking authority— The DEA most recently denied such a had a legally cognizable medical-necessi- cannot require others to aid, abet, or con- petition on August 12, 2016.12 The only ty defense that permitted it to distribute spire in criminal violations of the CSA. qualifier to marijuana’s Schedule I place- medical marijuana.24 In this article, we will first address the ment came on December 20, 2018, when The Supreme Court reversed. The federal landscape, under which marijua- Congress added the hemp exception Court concluded that “a medical neces- na—even medical marijuana—is illegal through the Agriculture Improvement sity exception for marijuana is at odds for any purpose except for federal govern- Act of 2018 (a.k.a. the 2018 Farm Bill).13 with the terms of the Controlled Sub- ment-approved research. Second, we will As amended, CSA Schedule I substances stances Act.”25 The cooperative argued discuss the impact of Minnesota’s 2014 include “[t]etrahydrocannabinols, except that “use of schedule I drugs generally— medical marijuana amendment. Third, for tetrahydrocannabinols in hemp (as whether placed in schedule I by Congress we will explain why MDOLI did not in- defined under section 1639o of title 7).”14 or the Attorney General—can be medi- tend to—and did not actually—make “By classifying marijuana as a Schedule cally necessary, notwithstanding that medical marijuana reimbursable through I drug, as opposed to listing it on a lesser they have ‘no currently accepted medical the WCA. schedule, the manufacture, distribution, use.’”26 The Court “decline[d] to parse or possession of marijuana became a the statute in this manner.”27 “It is clear Federal background criminal offense, with the sole exception from the text of the Act that Congress Congress enacted the CSA in 1970 being use of the drug as part of a Food has made a determination that marijuana “to conquer drug abuse and to control the and Drug Administration preapproved has no medical benefits worthy of an ex- legitimate and illegitimate traffic in con- research study.”15 In other words, “there ception.”28 “[W]e have no doubt that the trolled substances.”4 The CSA does so is but one express exception, and it is Controlled Substances Act cannot bear a by imposing harsh criminal penalties.5 It available only for Government-approved medical necessity defense to distributions punishes even first-time possession done research projects.”16 of marijuana.”29 The Court concluded “knowingly or intentionally,” with a po- Federal law prohibits doctors from pre- likewise as to “the other prohibitions in tential prison term of one year minus one scribing medical marijuana.17 the Controlled Substances Act.”30 day; a fine of at least $1,000; or both.6 For all substances on Schedule I of Raich (2005) further closed the door Of particular concern to employ- the CSA, Congress expressly found three on medical marijuana under federal law in ers and workers’ compensation insur- things: (1) “[t]he drug or other substance the context of California’s medical-mari- ers, those penalties are not reserved for has no currently accepted medical use juana law, but this time dealing with (seri- principal actors. The CSA extends “the in treatment in the United States”; (2) ously ill) users rather than dispensaries.31

28 Bench&Bar of Minnesota s January 2020 www.mnbar.org Two Californians (Raich and Monson) funds made available by the most recent life expectancy of less than one year.58 The suffered from “a variety of serious medical appropriations act to prosecute manu- amendment also gave the Commissioner conditions,” and used medical marijuana, facturers, dispensers, or users of medical authority to add qualifying conditions.59 consistent with California law.32 Their marijuana, if compliant with state law.45 The Commissioner has added seven: licensed, board-certified medical provid- The currently applicable rider was sched- (1) intractable pain; (2) post-traumatic ers concluded that “marijuana is the only uled to expire on September 30, 2019, stress disorder; (3) autism; (4) obstruc- drug available that provides effective but Congress passed stop-gap continuing tive sleep apnea; (5) Alzheimer’s Dis- treatment.”33 “Raich’s physician believe[d] resolutions to extend it and other appro- ease;60 and, most recently—announced that forgoing cannabis treatments would priations provisions through November on December 2, 2019, effective August certainly cause Raich excruciating pain 21, 2019,46and then again through De- 2020—(6) chronic pain and (7) age-re- and could very well prove fatal.”34 cember 20, 2019.47 lated macular degeneration.61 Raich and Monson moved for a prelim- Such temporary riders—although they Worth noting is the way in which inary injunction to enjoin enforcement of generally have been added to appropria- the 2014 amendment “legalized” medi- the CSA against them.35 The district court tions bills since December 201448—do cal marijuana. It did not remove mari- denied the motion; the Ninth Circuit re- “not provide immunity from prosecution juana from Schedule I of Minnesota’s versed and ordered the district court to for federal marijuana offenses.”49 “The own controlled-substance statutes and enter the injunction.36 The Ninth Circuit federal government can prosecute such rules—marijuana remains there today.62 concluded that the CSA, as applied to offenses for up to five years after they Nor did the amendment permit doctors Raich and Monson, was “an unconstitu- occur.”50 As the Ninth Circuit pointedly to prescribe marijuana; Minnesota doctors tional exercise of Congress’s Commerce observed in McIntosh, “Congress could still cannot legally do so under state law.63 Clause authority.”37 It reasoned that “in- restore funding tomorrow, a year from Notably, shortly after the amendment’s trastate, noncommercial cultivation and now, or four years from now, and the approval, the Minnesota Court of Ap- possession of cannabis for personal medi- government could then prosecute indi- peals concluded in Thiel that “a defense of cal purposes as recommended by a pa- viduals who committed offenses while medical necessity is [still] not available in tient’s physician pursuant to valid Califor- the government lacked funding.”51 “The Minnesota for a defendant charged with a nia state law” is beyond the CSA’s scope.38 Rohrabacher–Farr Amendment... did not controlled-substance crime.”64 The court The Supreme Court reversed, con- repeal federal laws criminalizing the pos- cited with approval its Hanson opinion cluding that “[t]he CSA is a valid exer- session of marijuana, 21 U.S.C. §844.”52 (1991), in which it concluded, by placing cise of federal power, even as applied to Congress appeared likely to include such marijuana on Minnesota’s own Schedule I, the troubling facts of this case.”39 “[W]e a rider in the appropriations bill for 2020, the Legislature “implie[d] a determination have no difficulty concluding that Con- when the authors of this article finalized that marijuana has ‘no currently accepted gress had a rational basis for believing that it on December 17, 2019. medical use in the United States.’”65 failure to regulate the intrastate manufac- Rather, the Minnesota Legislature “le- ture and possession of marijuana would Minnesota background galized” medical marijuana by codifying leave a gaping hole in the CSA.”40 “[T]he The THC Therapeutic Research Act various back-end protections.66 For ex- mere fact that marijuana—like virtually (THC Act)53 was enacted in 1980.54 ample, the Legislature made “use or pos- every other controlled substance regu- When originally enacted, the THC Act session of medical cannabis or medical lated by the CSA—is used for medicinal did not authorize the use of medical mari- cannabis products by a patient enrolled in purposes cannot possibly serve to distin- juana. Rather, the Minnesota Legislature the registry program” “not [a] violation[] guish it from the core activities regulated authorized that use by amendment in under” Minnesota’s controlled-substanc- by the CSA.”41 “[L]imiting the activity to 2014. Through the 2014 amendment, the es statutes in Minnesota Statutes Chap- marijuana possession and cultivation ‘in Legislature created a patient registry pro- ter 152.67 In a similar vein, the Legislature accordance with state law’ cannot serve gram, through which qualifying patients essentially immunized State of Minnesota to place respondents’ activities beyond could apply to the Minnesota Commis- personnel from civil and criminal liabil- congressional reach.”42 sioner of the Department of Health for ity for their roles in the program, and it Moreover, at least two out-of-state authorization to buy medical marijuana,55 protected “health care practitioner[s]” courts have concluded that federal aid- from one of two registered manufacturers and Minnesota Department of Health ing-and-abetting liability may arise even in Minnesota, LeafLine Labs or Minne- personnel from civil or disciplinary penal- from an employer’s or insurer’s payment sota Medical Solutions.56 ties based solely on their program partici- of workers’ compensation benefits for A central requirement for a successful pation.68 In related fashion, the Legisla- medical marijuana authorized by state medical-marijuana application is that the ture guaranteed that nothing in “sections medical marijuana law, in Maine (Bour- patient provide a “certification” from his 152.22 to 152.37” of the THC Act would goin) and Massachusetts (Wright).43 No health-care provider, stating she has been “require medical assistance and Minneso- federal courts or Minnesota appellate “diagnosed with a qualifying medical con- taCare to reimburse an enrollee or a pro- courts have squarely addressed the issue. dition.”57 The 2014 amendment codified vider for costs associated with the medi- On November 13, 2019, a Minnesota nine qualifying conditions: (1) glaucoma; cal use of cannabis.”69 workers’ compensation judge rejected (we (2) HIV and AIDS; (3) Tourette’s syn- The 2014 amendment included believe erroneously) the criminal-liability drome; (4) amyotrophic lateral sclerosis; no such protection for employers or concerns of an employer and insurer in (5) seizures, including those characteris- their workers’ compensation insurers. Musta.44 She appeared to rely solely on a tic of epilepsy; (6) severe and persistent Nor, however, did it purport to require temporary budgetary rider (known as the muscle spasms, including those charac- employers or their insurers to reimburse Rohrabacher-Farr/Rohrabacher-Blume- teristic of multiple sclerosis; (7) inflam- employees for medical marijuana, through nauer amendment). At the moment, the matory bowel disease, including Crohn’s workers’ compensation or otherwise. rider (as interpreted by some courts) pro- disease; and, with some qualifiers that The amendment was silent on the issue. hibits the United States Department of require additional symptoms, (8) cancer That brings us to the heart of this Justice (DOJ) from using Congressional and (9) terminal illnesses with a probable article: Minn. R. 5221.6040, subp. 7a. www.mnbar.org January 2020 s Bench&Bar of Minnesota 29 August 2015 FOR WORKERS' COMPENSATION PROFESSIONALS

Workers' compensation rule update: opioid medications, ICD-10-CM

(Adjustments to the relative value fee schedule conversion factors and the independent medical examination fees are described on page 10.)

Rules governing long-term treatment with opioid analgesic medication The rules governing long-term treatment with opioid analgesic medication for workers' compensationAugust 2015 FOR WORKERS' COMPENSATION PROFESSIONALS at . The following are answers to several frequently asked injuriesquestions have about been the adopted. opioid rules. The rules are codified as Minnesota Rules, part 5221.6110, and are available Workers'www.revisor.mn.gov/rules/?id=5221.6110 compensation rule update: opioid medications, ICD-10-CM (AdjustmentsWhat is the effective to the relative date value of the fee rules? schedule conversion factors and the independent medical examination fees are described on page 10.) The rules became effective July 13, 2015. If a health care provider is not in compliance with the rules, Rules governing long-term treatment with opioid analgesic medication Thesubpart rules 9 governingrequires the long-term payer, before treatment denying with payment, opioid analgesic to send the medication patient and for prescribingworkers' compensation health care provider a copy of the rules and give the provider whoat least were 30 already days to receivinginitiate a planlong-term to become treatment compliant. with The Minnesota WCA; the 2015 at . TheopioidsSubpart following when 10 are governs the answers rules application becameto several effective.of frequentlythe rules That to asked subpartpatients opioid rules; and the definition of injuriesquestions have about been the adopted. opioid rules. The rules are codifiedrequires as Minnesota the prescribing Rules, part health 5221.6110, care provider and are availableto comply “illegal substance” in MDOLI’s rule www.revisor.mn.gov/rules/?id=5221.6110 August 2015 What is the effective date of the rules? after the provider and patient receive written notice of A question that Minnesota workers’ thewith rules specific from partsFOR the WORKERS' payer.of the rules COMPENSATION within three PROFESSIONALS months compensation lawyers and judges have been struggling with (in recent and active Workers'The rules became compensation effective July 13, 2015. rule If a update:healthWhere care provider can opioid I find is the notmedications, model in compliance treatment with contract ICD-10-CM the rules, between subpart 9 requires the payer, before denying payment,the patient to send and the provider patient and described prescribing in subpart health 7? care litigation) is whether the general duty to provider(Adjustments a copy to the of relative the rules value and fee give schedule the providerconversion Thewhoat factors least ruleswere and30 requirealready daysthe independent to thereceivinginitiate commissioner medicala planlong-term toexamination become to treatmentdevelop compliant. fees a are formwith pay workers’ compensation benefits im- described on page 10.) foropioidsSubpart a model when 10 governscontract the rules application that became includes effective.of the provisionsrules That to subpartpatients 70 requires the prescribing health care provider to comply posed by the WCA extends to require Rules governing long-term treatment with opioid analgesic medication specified in subpart 7. If a prescribing health care employers and their workers’ compensa- The rules governing long-term treatment with opioidafter analgesic the provider medication and patient for workers' receive writtencompensation notice of provider uses this model contract, it is deemed to meet the requirements of the rules once completed and tion insurers to reimburse an employee for commissioner’s model contract. The commissionerthewith may rules specific revise from theparts the model payer.of the contract rules within from threetime to months time to addressmadeat a part new of issues the patient’s or information. medical The record. current However,. The model following a contract health are care is answers available provider to on severalis thenot Departmentrequired frequently to useaskedof Labor the medical marijuana that she buys and uses injuries have been adopted. The rules are codified as Minnesota Rules, part 5221.6110, and are available questions about the opioidwww.dli.mn.gov/WC/Pdf/opioid_model_contract.pdf rules. Where can I find the model treatment. contract between in a manner compliant with Minnesota www.revisor.mn.gov/rules/?id=5221.6110 the patient and provider described in subpart 7? law (even though it is otherwise federally andWhatDo the Industry is rules the effective provide website datethat at treatmentof the rules? of workers’ compensationThe rules require injuries the with commissioner medical cannabis to develop is now a form illegal). Nowhere in the WCA does the permitted in Minnesota? for a model contract that includes the provisions Legislature mention medical marijuana The rules became effective July 13, 2015. If a health care provider is not in compliance with the rules, or the THC Act’s 2014 amendment that subpartNo, a few 9 onlinerequires articles the payer, have beforemade that denying incorrect payment, specifiedstatement to send in by subpart the misapplying patient 7. If anda prescribinga newprescribing definition health health of care "illegal care substance," which was added in response to public comment about the opioid rules. The definition of commissioner’sprovidercircumstances: usesa copy this ofmodel modelthe rules contract. contract, and giveThe it iscommissionerthe deemed provider to whoatmeet may least were the revise 30 requirements already days the to model receivinginitiate ofcontract thea planlong-term rules fromto becomeonce time treatment completed to compliant. time with to and permitted medical marijuana for qualify- "illegal substance" was added only for purposes of the opioid rules, where it is used in three addressmade a part new of issues the patient’s or information. medical The record. current However, modelopioidsSubpart a contract health when 10 governs care isthe available providerrules application became on is thenot effective. ofDepartmentrequired the rules That to to use of subpartpatients Labor the ing conditions. requires the prescribing health care provider to comply However, MDOLI mentioned both www.dli.mn.gov/WC/Pdf/opioid_model_contract.pdf. Rule1. update A provider, continued must ... determine that the patient is not using illegal substances before initiating a plan when it promulgated the 2015 opioid rules. andDo the Industry rules provide website that at treatment of workers’ compensationafter the provider injuries and with patient medical receive cannabis written is now notice of for long-term treatment with opioids (Minnesotawith specific Rules 5221.6110,parts of the subp.rules 4).within Rule three update months, continues ... That caught the attention of a number of permitted in Minnesota? the rules from the payer. Minnesota workers’ compensation law- Department2. A patient of Labor receiving and Industry long-term • 443 Lafayette treatment Road N. •with St.Where Paul, opioids MN can 55155 mustI find • (651) agreethe 284-5005 model to abstain •treatment 1-800-342-5354 from contract all • illegal www.dli.mn.gov between yers—and at least a few judges. MDOLI No, a fewsubstances online articles (Minn. have R. 5221.6110, made that subp.incorrect 7). thestatement patient by and misapplying provider described a new definition in subpart of 7?"illegal circumstances:substance," which was added in response to publicThe comment rules require about thethe opioidcommissioner rules. The to definitiondevelop a ofform did so in the newly added definition of “il- 3. Opioids must be discontinued if urine drug-testing shows the presence of an illegal substance "illegal substance" was added only for purposes offor the a opioidmodel rules,contract where that it includes is used inthe three provisions (Minn. R. 5221.6110, subp. 8). legal substance.” That definition led some legal observers to (mistakenly) conclude prescribing opioids by the above three rules to a patient who is legally using medical cannabis under that this was MDOLI approving of employ- The1. new A providerdefinition must of "illegal determine substance" that the means patient onlyspecified is thatnot usinga healthin subpart illegal care substances 7. provider If a prescribing is before not prohibited initiatinghealth care froma plan commissioner’sprovidercompensable for uses long-term underthis model model the treatment contract. workers' contract, with The compensation it isopioidscommissioner deemed (Minnesota to law. meet may the reviseRules requirements 5221.6110,the model ofcontract subp. the rules 4). from Rule once time update completed to, continuestime to and ... ers and insurers reimbursing an employee addressmadeMinnesota a part new Statutes of issues the patient’s ch.or information.152. medicalThe opioid The record. rules current However, do notmodel address a contract health whether care is available provider treatment on is thenot with Departmentrequired medical to cannabis use of Labor the is for her purchase of medical marijuana, as ICD-10-CMDepartment rules of Labor and Industrywww.dli.mn.gov/WC/Pdf/opioid_model_contract.pdf • 443 Lafayette Road N. • St. Paul, MN 55155 • (651) 284-5005 • .1-800-342-5354 • www.dli.mn.gov long as the employee’s use complied with 71 andDo the Industry rules provide website that at treatment of workers’ compensation injuries with medical cannabis is now the THC Act’s 2014 amendment. permittedThe commissioner in Minnesota? is required to amend workers' compensation rules to replace references to ICD-9-CM In our view, this popularized view can- codes with equivalent ICD-10 codes when ICD-10 codes are required for federal health care programs. not be sustained by the plain text and InThe the General opioid Equivalence rule, “illegal Mappings substance” established by the CentersWhether for Medicare the and WCAMedicaid Servicescompels (CMS) such mustNo, a fewbe used online to determinearticles have code made equivalence that incorrect (Minn. statement Stat. § 176.135, by misapplying subd. 7(b)). a new definition of "illegal context of Minn. R. 5221.6040, subp. 7a. appearscircumstances:substance," three which times: was inadded Rule in response 5221.6110, to public commentreimbursement about the opioid is, rules. at The least, definition an of open 77 Further, MDOLI itself refuted this view in Subparts According"illegal substance"4(F), to CMS, 7(I)(2), healthwas added care onlyprovidersand for 8(F)(1).purposes must use of ICD-10 the question.opioid codes rules, for serviceswheres it providedis used in on three or after Oct. 1, August 2015, shortly after promulgating The 2015.gist Therefore,is that, thegenerally, workers' compensationuse of illegal rules will be amended to reflect theState ICD-10 Register codes in for services provided on or after Oct. 1, 2015. The rules will be adopted using the exempt rule procedures in Minn. R. 5221.6040, subp. 7a, effective substancesMinn. 1. Stat.A providerwill § 14.386 disqualify must (a). determineThe amendeda patient that rules the frompatient are expected is not usingto be illegalpublished substances in the before initiating a plan on July 13, 2015. opioids,September exceptfor long-term 2015. if the treatment illegal with substance opioids (Minnesota is Rules 5221.6110, subp. 4). Rule update , continues ... Minnesota Rule 5221.6040, subpart medical marijuana.74 . ExtensiveDepartment information of Labor and Industry about •conversion 443 Lafayette toRoad ICD-10 N. • St. Paul,coding MN is55155 on the• (651) CMS 284-5005 website, • 1-800-342-5354 available at• www.dli.mn.gov Working alongside insurers, 7a, simply defines “illegal substance.” MDOLIwww.cms.gov/Medicare/Coding/ICD10/Medicare-Fee-For-Service-Provider-Resources.html explained the matter fully in This information below was updated Aug. 28, 2015. Definitions do nothing, apart from the its August 2015 issue of COMPACT, in employers, and self-insuredKimber joins ADR unit terms that they define, when used. The whichDepartment it refuted the seeksview that medical the defi consultant- entities, SUE CONLEY Mediator Kenneth Kimber has joined rule defines “illegal substance” as “a drug nition of “illegal substance” in Minn. R. works to resolvethe workers’ Department of Labor and Industry's or other substance that is illegal under 5221.6040,from eligible subp. physicians 7a, and to serve the as itsopioid medical rules consultant compensationthrough June andAlternative general Dispute Resolution (ADR) The Minnesota Department of Labor and Industry (DLI) seeks proposals unit. He has more than 10 years state or federal controlled substances made medical marijuana reimbursable liability cases, andexperience has done as a workers' compensation law,” but excludes from that definition’s through2016, Minnesotawith an annual optionworkers’ to renew compensa for up to four- additionalso for years. more The than attorney.25 years. He obtained his bachelor's scope “a patient’s use of medical cannabis tion.75DLI No medical pre-2016 consultant issue works primarilyof COMPACT with: DLI's Workers' She has a specialdegree interest at Colgate University in Compensation Division, Research and Statistics unit and Minnesota OSHA Hamilton, New York, and his juris permitted under Minnesota Statutes, sec- is availableunits; the Specialthrough Compensation MDOLI’s Fund; online and the Medical ar- Servicesin complex Review issues doctor involving from Washington medical University marijuana, tions 152.22 to 152.37.” But the term “il- chives.Board.76 Thus The medical we consultantinclude assists a screen DLI in developing, shot implementingoccupational exposure,School of Lawtraumatic in St. Louis, brain Missouri. injury, legal substance” appears nowhere in the from andthe theevaluating August development the 2015 effective and issue,monitoring delivery which of of workers' treatment refut compensation guidelines.- and complexbenefits, medical claims. the regulation of medical services currently provided to injured workers, ADR seeks early intervention in workers' WCA. Moreover, Subpart 1 of that same ed the erroneous view that the July 2015 [email protected] disputes through conference and mediation. It handles Rule 5221.6040 (Scope) states that the opioid rules made medical marijuana. calls from the workers' compensation definitions set forth in Rule 5221.6040 reimbursable.The request for proposals (RFP) is available on the DLIJEFF website MARKOWITZ at hotline has and a responds to questions from www.dli.mn.gov/MedConsultantRFP.pdf serve to define “[t]he terms used in parts In short, contrary to seemingly popu- special interest ininjured helping workers, employers, health http://supplier.swift.state.mn.us care providers, attorneys and qualified 5221.6010 to 5221.6600.” lar belief,Those interestedthe opioid in submitting rules aare proposal just must about first becomeclients a registered navigate rehabilitationtough consultants. To speak The term “illegal substance” opioids.vendor They with the did state not, of Minnesota nor did at MDOLI issues, including. If with those an ADR mediator/arbitrator, call you need assistance obtaining a vendor I.D. or completing the (651) 284-5032 or 1-800-342-5354; implicated by medical appears in only one of those rules: intendregistration them to, process, address call (651) whether 201-8100 employ and choose- option 1. press 3 and then press 1. Minn. R. 5221.6110—the opioid rule— ers and insurers must reimburse a Minne- marijuana. He focuses which “govern[s] long-term opioid sota-law-compliantThe2 • COMPACT RFP closes • August Sept. 2015 employee 15, 2015, at 4for p.m. medical his practice primarily on www.dli.mn.gov/WorkComp.asp medication.”72 Rule 5221.6110 provides marijuana, where such reimbursement business and employment “detailed substantive and procedural (at least arguably) compels the employer law, as well as a busy appellate practice. He requirements that physicians must and insurer to commit federal crimes by clerked for the Minnesota Court of Appeals, and follow in treating workers’ compensation aiding, abetting, and conspiring to further enjoys guest judging mock arguments. patients with opioid pain medications.”73 possession of marijuana. [email protected]

30 Bench&Bar of Minnesota s January 2020 www.mnbar.org cannot be legally prescribed un- 46 H.R.4378 Continuing Appro- 7(1)). Notes 66 1 der federal law.”); 21 U.S.C. 829 priations Act, 2020, https://www. Minn. Stat. §152.32, subd. 2. See, e.g., Jirak, Laurie, “DLI NOT 67 BLOWING SMOKE: MEDICAL (“Prescriptions,” listing Schedul- congress.gov/bill/116th-congress/ Minn. Stat. §152.32, subd. 2(a) ing II, III, IV, and V substances, house-bill/4378/text?q=%7B%22 (1). MARIJUANA VALID WORK- 68 ERS’ COMP EXPENSE,” 25 No. but not Schedule I substances). search%22%3A%5B%22H.R.+4 Minn. Stat. §152.32, subd. 2(c)- 18 21 U.S.C. §812(b)(1). 378%22%5D%7D&r=1&s=10, (d). 7 Minn. Emp. L. Letter 1 (Sept. 19 69 2015) (“Medical marijuana is Denial of Petition, 81 FR 53767- last visited 12/3/2019. Minn. Stat. §152.23(b). 01, at *53767. 47 H.R.3055, Further Continu- 70 Johnson v. Darchuks Fabrica- now a permissible and reimburs- 20 able treatment for workplace Oakland Cannabis, 532 U.S. at ing Appropriations Act, 2020, tion, Inc., 926 N.W.2d 414, 420 486. https://www.congress.gov/ (Minn. 2019) (quoting Minn. injuries, according to the Min- 21 nesota Department of Labor Id. at 488. bill/116th-congress/house-bill/3055/ Stat. §176.021, subd. 1); Gamble 22 Id. at 487. text?r=25&s=3, last visited v. Twin Cities Concrete Prod., 852 and Industry (DLI).”); Farrish 23 Johnson Law Office, “Medical Oakland Cannabis, 532 U.S. at 12/3/2019. N.W.2d 245, 248 (Minn. 2014) 487-88. 48 McIntosh, 833 F.3d at 1169. (quoting Minn. Stat. §176.135, Marijuana in a Workers’ Com- 24 49 pensation Case,” https://www.far- Id. Id. at 1179 n.5. subds. 1a, 6). 25 Id. at 491. 50 Id. (citing 18 U.S.C. §3282). 71 Supra, note 1. rishlaw.com/medical-marijuana-in- 26 51 72 a-workers-compensation-case/, last Id. at 493. Id. Tina Castro, Employee/respondent, 27 Id. 52 United States v. Tote, No. No. WC16-5958, 2017 WL visited 12/3/2019; Puechner, Nic., 28 Larkin Hoffman, “Minnesota Id. 1:14-MJ-00212-SAB, 2015 357246, at *4 (Minn. Work. 29 Id. at 494. WL 3732010, at *2 (E.D. Cal. Comp. Ct. App. 1/9/2017). Worker’s Compensation Claims 30 73 Involving Medical Marijuana Id. at 495 n.7. 6/12/2015); see Coats v. Dish Net- Johnson, 926 N.W.2d at 418. 31 Raich, 545 U.S. at 5. work, LLC, 350 P.3d 849, 853 n.2 74 See Minn. R. 5221.6110, https://www.employmentandlabor- 32 lawblog.com/2019/02/minnesota- Id. at 6-7. (Co. 2015) (Rohrabacher-Farr subps 4.F. (requiring prescribing 33 Id. at 7. rider did not change fact that health-care provider to ensure workers-compensation-claims- 34 involving-medical-marijuana/, last Id. “medical marijuana use remains that a qualitative urine drug 35 Id. at 7-8. prohibited under the CSA”). test confirms that the opioid visited 12/3/2019. 36 53 2 Id. at 8 & n.8. Minn. Stat. §§152.21-.37. patient is “not using any illegal Minn. Stat. §§176.001-.862. 37 54 3 Id. at 8 (quotation omitted). See Minn. Stat. §152.21, subd. 7; substances”), 7(I)(2) (opioid 21 U.S.C. §§801-904. 38 4 Gonzales v. Raich, 545 U.S. 1, 12 Id. (quotation omitted). 1980 Minn. Laws, ch. 614, §93. patients must enter into a written 39 Id. at 9. 55 Minn. Stat. §152.27. treatment contract in which they (2005). 40 56 5 Id. at 22. Minnesota Department of agree to “abstain from all illegal 21 U.S.C §841(b) (potential 41 sentences of 10 to 20 years and Id. at 28. Health, “Medical Cannabis Man- substances”); 8(F)(1) (opioid 42 Id. at 29. ufacturers/Laboratories,” https:// patient fails urine drug testing “if stiff fines). 43 6 21 U.S.C. §844(a). See Bourgoin v. Twin Rivers Paper www.health.state.mn.us/people/can- it shows the presence of an illegal 7 Co., LLC, 187 A.3d 10 (Maine nabis/manufacture/index.html, last substance”). 21 U.S.C. §846. 75 8 18 U.S.C. §2(a). 2018); Daniel Wright, Employee visited 12/3/2019; see Minn. Stat. COMPACT is a quarterly publi- 9 Pioneer Valley, Employer Cent. §§152.25, subd. 1(a), 152.30(c). cation for workers’ compensation Raich, 545 U.S. at 14. 57 10 Mut. Ins. Co., Insurer, No. 04387- Minn. Stat. §152.27, subd. 3(4). professionals, published by MDO- The CSA gave authority to 58 reschedule drugs to the U.S. At- 15, 2019 WL 3323160 (Mass. Minn. Stat. §152.22, LI’s Workers’ Compensation Dept. Ind. Acc. 2/14/2019). But subd. 14(1)-(9). Division. https://www.dli.mn.gov/ torney General, and the Attorney 59 General delegated that authority see Appeal of Panaggio, 205 A.3d Minn. Stat. §152.22, business/workers-compensation/ 1099 (N.H. 2019); Lewis v. Amer- subd. 14(10). work-comp-compact-newsletter- to the head of the DEA. Washing- 60 ton v. Barr, 925 F.3d 109, 115 n.3 ican General Media, 355 P.3d 850 Minnesota Department of archive, last visited 12/3/2019. (N.M. Ct. App. 2015); Vialpando Health, “Medical Cannabis 76 See id. (2d Cir. 2019) (citing 21 U.S.C. 77 §811(a); 28 C.F.R. §0.100(b)). v. Ben’s Auto. Servs., 331 P.3d 975 Qualifying Conditions,” https:// So too is the closely related ques- 11 (N.M. Ct. App. 2014). www.health.state.mn.us/people/can- tion of whether the federal CSA Washington v. Sessions, No. 44 17 CIV. 5625 (AKH), 2018 Susan K. Musta, Employee v. nabis/patients/conditions.html, last and aiding-and-abetting laws Mendota Heights Dental Center visited 12/3/2019. would preempt—and thereby su- WL 1114758, at *2 (S.D.N.Y. 61 2/26/2018) (quoting Raich, 545 and Harford Insurance Group, Minnesota Department persede and displace—any state U.S. at 15), appeal held in abey- Employer/Insurer, OAH Case No. of Health, News Release law that purported to require ance sub nom. Washington v. Barr, 7750318-MR-2327 (11/13/2019) (12/2/2019), https://www.health. employers and insurers to pay (J. Kirsten Tate). state.mn.us/news/pressrel/2019/ workers’ compensation benefits 925 F.3d 109 (2d Cir. 2019). 45 12 Denial of Petition To Initiate Pro- PL 116-6, H.J.Res.31, 133 Stat cannabis120219.html, last visited to reimburse an employee for 13, Consolidated Appropria- 12/3/2019. medical marijuana. That would ceedings To Reschedule Marijuana, 62 81 FR 53767-01, 2016 WL tions Act, 2019, Div. C, Title II, Minn. Stat. §152.02, Schedule be the case, in our opinion, 4240243 (F.R. 8/12/2016). §537. https://www.congress.gov/ I(h); Minn. R. 6800.4210, Sched- as we have written on previ- 13 AGRICULTURE IMPROVE- bill/116th-congress/house-joint- ule I(C)(17), (C)(25); State v. ously. Conley, Susan K.H., and MENT ACT OF 2018, PL 115- resolution/31/text?q=%7B%22s Thiel, 846 N.W.2d 605, 613 n.2 Markowitz, Jeffrey M., “Pot for 334, 12/20/2018, 132 Stat 4490, earch%22%3A%5B%22H.J.Res (Minn. App. 2014), review denied Pain: A Courtroom Conundrum .31%22%5D%7D&r=1&s=1, (Minn. 8/5/2014). in Workers’ Compensation,” For §12619(b). 63 14 21 U.S.C. §812, Schedule I(c) last visited 12/3/2019; see United Minn. Stat. §§152.11-.12 (not the Defense, DRI (Oct. 2019), (17). States v. McIntosh, 833 F.3d 1163, authorizing Schedule I prescrip- https://www.arthurchapman. 15 Raich, 545 U.S. at 14 (citing 1169 (9th Cir. 2016) (rider tions); Thiel, 846 N.W.2d at 613 com/files/original/2019-10%20 21 U.S.C. §§823(f), 841(a)(1), barred prosecutions of medical- n.2 (“Even under the legislation A%20Courtroom%20Conun- 844(a); United States v. Oakland marijuana users); Marin All. for recently approved by the state drum%20in%20Workers’%20 Cannabis Buyers’ Cooperative, 532 Med. Marijuana, 139 F. Supp. legislature, medical cannabis is Compensation%20Article%20 U.S. 483, 490 (2001)). 3d 1039, 1044-45 (N.D. Cal. not prescribed by health care FTD-1910-Conley-Markowitz. 16 2015) (rider barred prosecutions practitioners.”). pdf, last visited 12/3/2019. If the Oakland Cannabis, 532 U.S. at 64 490. of dispensaries); see also United Thiel, 846 N.W.2d at 613 n.2, Legislature lacks the authority to 17 Oakland Cannabis, 532 U.S. at States v. Jackson, 388 F. Supp. 615 (citing State v. Hanson, 468 compel others to aid, abet, and 491; United States v. Evans, 892 3d 505, 510-14 (E.D. Pa. 2019) N.W.2d 77, 78-79 (Minn. App. conspire to further federal crimes F.3d 692, 699 (5th Cir. 2018) (rider barred DOJ involvement in 1991), review denied (Minn. through statutes, so does MDOLI prosecuting criminal defendant 6/3/1991)). through its rules, which have no (“Schedule I drugs... are deemed 65 to have no medical use and thus for violating terms of supervised Hanson, 468 N.W.2d at 78 (quot- more authority than that which release). ing Minn. Stat. §152.02, subd. the Legislature delegated to it. www.mnbar.org January 2020 s Bench&Bar of Minnesota 31 Our duty to Diversity & Inclusion is not satisfied by aspirations alone; it is a duty of action and results.

A Business Case for Diversity & Inclusion www.mnbar.org/diversity

1218 D&I Business Case.indd 1 12/17/19 3:10 PM Notes&Trends

Landmarks in the Law Current developments in judicial law, legislation, and administrative action together with a foretaste of emergent trends in law and the legal profession for the complete Minnesota lawyer.

ADMINISTRATIVE LAW ment. In re Minnesota Living Assis- tance, Inc., No. A17-1821 (9/18/2019). JUDICIAL LAW n Rules and “litigation positions.” The MEHMET K. KONAR-STEENBERG Minnesota Supreme Court has held that Mitchell Hamline School of Law an agency is not required to go through [email protected] 33 rulemaking in order to take a position on ADMINISTRATIVE LAW a question of statutory or regulatory in- by Mehmet K. Konar-Steenberg terpretation in an enforcement proceed- CRIMINAL LAW ing, but that such “litigation positions” 33 are not entitled to the judicial deference JUDICIAL LAW CRIMINAL LAW normally accorded to rules. n Manslaughter: First-degree man- by Samantha Foertsch The issue arose in the context of slaughter predicated on fifth-degree & Stephen Foertsch an enforcement action against a home assault does not require proof that death health care provider for failure to pay or great bodily harm was reasonably 34 overtime as required under Minnesota foreseeable. Appellant was convicted of EMPLOYMENT Statutes section 177.25 and related first-degree manslaughter predicated on & LABOR LAW regulations. The commissioner of Labor an underlying fifth-degree assault after by Marshall H. Tanick and Industry took the position that the he was involved in an altercation outside statute and regulations required over- of a bar. Appellant acted aggressively 36 time payments for all hours worked by toward the victim’s friend, after which ENVIRONMENTAL LAW an employee after the first 48 hours in a the victim came out of the bar and began by Jeremy P. Greenhouse, given workweek. The provider disagreed poking, pushing, and yelling at appel- Jake Beckstrom, Erik Ordahl with this interpretation and argued lant. Appellant then punched the victim & Audrey Meyer that the agency’s interpretation should once in the face, and the victim fell to be disregarded because it was not the the ground, hit his head, and became un- 38 product of rulemaking under the Min- responsive. The victim later died at the FEDERAL PRACTICE nesota Administrative Procedure Act hospital as a result of blunt force head by Josh Jacobson (MAPA). However, the Court held that trauma and his elevated blood alcohol an agency’s interpretation of a statute concentration. At trial, the district court 38 outside of MAPA rulemaking does not denied appellant’s request to instruct IMMIGRATION LAW preclude the agency from asserting the the jury that first-degree manslaughter by R. Mark Frey interpretation as a litigation position. predicated on a fifth-degree assault The Court stated, “Like any other requires that death or great bodily harm 40 party, the Department may argue that be reasonably foreseeable. Minn. Stat. PROBATE & TRUST LAW its regulations should be interpreted in a §609.20(2) identifies two ways that first- by Casey D. Marshall particular way; that the agency did not degree manslaughter may be committed: choose to proceed with further rule-mak- a person “violates section 609.224 [fifth- 42 ing under the Minnesota Administra- degree assault] and causes the death of TAX LAW tive Procedure Act means only that we another or causes the death of another by Morgan Holcomb interpret the regulation de novo, without in committing or attempting to commit & Sheena Denny deference to the agency’s interpretation.” a misdemeanor or gross misdemeanor In this case, the Court reviewed the stat- offense with such force and violence that 44 ute and regulations de novo and agreed death of or great bodily harm to any person TORTS & INSURANCE with the commissioner’s interpretations. was reasonably foreseeable…” The court of by Jeff Mulder Justice Anderson, joined by Chief appeals held that the “reasonably foresee- Justice Gildea and Justice Thissen, able” modifier (italicized above) applies dissented. The dissenters argued that to only the misdemeanor-offense clause. the majority’s approach encouraged The Supreme Court agrees with the rulemaking-by-adjudication and could district court and court of appeals. The deprive regulated parties of adequate plain language of section 609.20(2) notice of an agency’s views on enforce- makes clear that the modifier does not www.mnbar.org January 2020 s Bench&Bar of Minnesota 33 Notes&Trends | CRIMINAL LAW | EMPLOYMENT & LABOR LAW apply to the fifth-degree assault clause. ally wearing a seat belt. However, the and there was no other contractual basis The statute lists two predicate offenses, officer testified that he believed ap- under Minn. Stat. §181.13, the prompt and the Legislature repeats the harm pellant’s seat belt was off while he was payment law, in “the absence of an language (“causes the death of another”) driving and that, when he approached independent substitute legal right.” Hall for each, clearly articulating two separate the vehicle, he observed a vehicle part v. City of Plainview, 2019 WL 6695142 forms of first-degree manslaughter. The hanging down, which could have led (8th Cir. 12/9/2019) (unpublished). reasonably foreseeable modifier comes af- the officer to believe appellant’s seat ter only the misdemeanor-offense clause. belt was unfastened. Thus, even if the n Final wages; timely payment made. If that language applied to both forms officer’s observation that the seat belt An employee’s claim of late payment of of manslaughter, the Court reasons, the was off was mistaken, the mistake was final wages under Minn. Stat. §181.14, Legislature would not have included the objectively reasonable under the totality subd. 4, was denied. The court of appeals harm language twice in the statute. This of the circumstance. Appellant’s convic- held that the dismissal of the case by the conclusion is further supported by the tions are affirmed. State v. Poehler, No. Hennepin County District Court was last-antecedent rule of grammar, which A18-0353, 2019 WL 6334370 (Minn. proper because the final payment com- states that “a limiting phrase ordinarily 11/27/2019). plied with the 10-day post-termination modifies only the noun or phrase that it grace period for the claimant, whose immediately follows.” SAMANTHA FOERTSCH job involved collection, disbursement, Thus, the Court holds that when Bruno Law PLLC and handling of money or property. Ka fifth-degree assault is the crime underly- [email protected] v. Lonvigson’s Service Center, Inc., ing a first-degree manslaughter charge, STEPHEN FOERTSCH 2019 WL 5691820 (Minn. Ct. App. section 609.22(2) does not require the Bruno Law PLLC 11/4/2019) (unpublished). state to prove that death or great bodily [email protected] harm was a reasonably foreseeable result n FELA claim reversed, causation issue of the defendant’s conduct. Appellant’s remanded. An employee’s negligence conviction is affirmed. State v. Stay, 935 EMPLOYMENT & LABOR LAW claim under the Federal Employers N.W.2d 428 (Minn. 11/13/2019). Liability Act (FELA) was revived. The JUDICIAL LAW court of appeals reversed and remanded n 4th Amendment: Reasonable sus- n Dismissal reversed; discovery dismissal by the St. Louis County District picion for stop when officer observes sanction improper. The dismissal of an Court in order to determine whether the driver not wearing seat belt. Appellant employee’s discrimination claim as a dis- employer’s negligence may have been was charged with DWI and violating a covery sanction was overturned. The 8th a “contributing” cause of the injury, driver’s license restriction after being Circuit Court of Appeals held that the which also was attributable, in part, to pulled over for a cracked windshield and dismissal by the trial court with prejudice the employee’s own negligence. Wallace not wearing a seat belt. Before trial, he was improper because the claimant did v. BNSF Railway Company, 2019 WL moved to suppress evidence, arguing not wrongfully depart from his deposi- 6112446 (Minn. Ct. App. 11/18/2019) there was no reasonable suspicion for tion before it was completed. Akins v. (unpublished). the stop of his vehicle. The district court Southern Glazers Wine & Spirits of addressed only the cracked windshield, Arkansas, 2019 WL 4071876 (8th Cir. n Retaliatory discharge; no require- finding it provided the officer with a 8/29/2019) (unpublished). ment to alter job. An employee who sufficient basis to stop appellant. After claimed retaliatory discharge following a stipulated facts trial, appellant was n Whistleblowing; DNR claim rejected. her termination two years after suffer- convicted of both offenses. The Minne- A whistleblower claim by a seasonal em- ing a workplace injury lost her case. The sota Court of Appeals found the officer ployee of the Minnesota Department of appellate court affirmed a ruling of the was not justified in stopping appellant for Natural Resources (DNR) was rejected Brown County District Court that the his cracked windshield, but concluded because the concern he expressed about employer was not required to alter her that the officer had sufficient reasonable conversion of his job from a temporary job or create a new one to accommodate suspicion that appellant was not wearing seasonal to a pair of emergency appoint- her physical inabilities due to the injury. his seat belt. ments did not “implicate” a violation of Conn v. Bic Graphic USA Manufactur- Driving without a seat belt is a crime, law. The Minnesota Court of Appeals ing Co., Inc., 2019 WL 4694673 (Minn. but the officer must be able to articulate affirmed a ruling of the Lake County Ct. App. 9/23/2019) (unpublished). facts that support the conclusion that District Court that neither Minn. Stat. the officer observed the driver not wear- §43A.15, subd. 2 or an accompanying n Police officer reinstatement; arbitra- ing a seat belt. The Supreme Court finds rule requires explicit approval of the tion award upheld. A Duluth police that the officer here articulated sufficient appointments by the DNR commis- officer discharged for excessive use of facts showing he observed appellant not sioner. Steffens v. State DNR, 2019 WL force was entitled to reinstatement due wearing a seatbelt: he told appellant 5884570 (Minn. Ct. App. 11/12/2019) to an arbitration award overturning the more than once he was stopped for the (unpublished). discharge. The court of appeals held cracked windshield and not wearing a that, even though the officer’s use of seat belt, his incident report indicated n Accrued PTO; city need not pay. The force was contrary to “public policy,” the the reason for the stop was appellant’s City of Plainview is not obligated for St. Louis County District Court did not failure to wear a seat belt, and he testi- accrued but unpaid paid-time-off (PTO) err in confirming an arbitrator’s ruling fied that he pulled appellant over for not following termination of an employee’s reinstating the officer without back pay. wearing a seat belt. job. The court of appeals held that the City of Duluth v. Duluth Police Officer’s After appellant was pulled over, provision in the municipal handbook call- Union, 2019 WL 4165031 (Minn. Ct. the officer observed appellant actu- ing for payment contained a disclaimer, App. 9/3/2019) (unpublished).

34 Bench&Bar of Minnesota s January 2020 www.mnbar.org | EMPLOYMENT & LABOR LAW n Unemployment compensation; improper use of force bars claim. A prison guard who was terminated for excessive use of force on an inmate was denied unemployment benefits. The court of appeals, affirming a ULJ decision, ruled that the officer’s behavior constituted Group Insurance Plans disqualifying misconduct. Casey v. INSURANCE YOU sponsored by the Minnesota Minnesota Department of Corrections, CAN TRUST State Bar Association 2019 WL 6112713 (Minn. Ct. App. 11/18/2019) (unpublished). MSBA Group Insurance n Unemployment compensation; quit Program Plans: due to failure to show up. An employee who failed to report to work or notify his You know insurance is a • Cyber Privacy Liability Insurance employer of his absence was denied un- vital part of doing business • 10-Year Simplified Issue Group employment compensation benefits. The Term Life Insurance appellate court upheld a determination —and protecting your by an unemployment law judge (ULJ) family’s financial future. • 10- or 20-Year Group Level Term with the Department of Employment Life Insurance and Economic Development (DEED) What you may not always • Annual Renewable Group of disqualifying misconduct. Mitzuk v. know is where to turn for Term Life Insurance Davlyn, Inc., 2019 WL 4164896 (Minn. Ct. App. 9/3/2019) (unpublished). this important coverage. • Group AD&D Personal w Accident Insurance n Unemployment compensation; The Minnesota State Bar Association • Auto/Home Insurance Program misconduct due to improper remarks. (MSBA)-Sponsored Group Insurance • Business Owners Package An employee who made inappropriate Plans are designed for the professional and Workers’ Compensation remarks to employees and guests at a hospitality site was properly denied un- and personal needs of members. • Long-Term Care Insurance employment compensation benefits. The These plans offer competitive • Senior Group Term Life appellate court upheld a determination coverage negotiated specifically Insurance by a ULJ that the employee’s behavior constituted disqualifying misconduct. for MSBA members. Singh v. Grand Casino Hinckley, 2019 WL 5885074 (Minn. Ct. App. 11/12/2019) (unpublished). Learn more today!* LOOKING AHEAD n Visit MSBAinsure.com or call 800-501-5776 SCOTUS and LGBTQ. A ruling is *For more information including costs, exclusions, limitations, eligibility, renewability, expected soon by the U.S. Supreme reduction of benefits and terms of coverage. Court on a trio of consolidated cases concerning LGBTQ discrimination. The Program Administered by Mercer Health & Benefits Administration LLC high court heard them on the second day of its term in October and will AR Insurance License #100102691 • CA Insurance License #0G39709 decide early this year if the prohibition In CA d/b/a Mercer Health & Benefits Insurance Services LLC on sex discrimination by employers in 88885 (1/20) Copyright 2020 Mercer LLC. All rights reserved. Title VII of the Federal Civil Rights Act extends to LGBTQ employees, which is not explicitly addressed in the statute. 88885 MSBA AP Ad (2020) Bostock v. Clayton County, No. 16- DIGITAL EVIDENCE PROFESSIONALSAd size: 4.625” x 7.375” 1628; Altitude Express, Inc. v. Zarda, Folds to: N/A Perfs: N/A No. 17-1623, Harris Funeral Homes v. • Preservation, Analysis & Presentation Colors:• CLE &4/C Cybersecurity = CMYK Training EEOC, No. 18-107. Minnesota is one Stock: N/A Postage: N/A Misc: N/A of Electronic Evidence • Former State/Federal Law Enforcement of about two dozen jurisdictions that bar • Expert Witness Testimony (FBI, IRS, US Secret Service) such discrimination under state or local Jurors Will Understand • Certifications to Include; CCEP, laws (see Minn. Stat. §363A.03, subd. • Incident Response & Network Intrusion GIAC Forensic Examiners, ISO27001, 44), but periodic efforts to amend the • Full Investigative Support Available PCIP, SCERS federal statute have failed dating back nearly three decades. Pence Building 800 Hennepin Avenue, 5th Floor MARSHALL H. TANICK Minneapolis, MN 55403 (952) 924-9920 Meyer, Njus & Tanick www.compforensics.com [email protected] MSBA All Plans Ad.indd 1 [email protected] 12/9/19 7:47 AM

www.mnbar.org January 2020 s Bench&Bar of Minnesota 35 Notes&Trends | ENVIRONMENTAL LAW ENVIRONMENTAL LAW included numerous conditions in the The CWA prohibits the discharge of permit requiring Minntac to comply with a pollutant from any point source into JUDICIAL LAW the Class 1 standard for sulfate in ground- navigable waters without a permit. 33 n Minnesota Court of Appeals decides water. U. S. Steel argued, and the court U.S.C §§1251, et seq. In this case, the two water law issues of first impres- concurred, that chapters 7050 and 7060 defendant, the Wychmere Beach Club sion. The Minnesota Court of Appeals unambiguously do not classify groundwa- Hotel, is located on the Wychmere Har- issued a published decision reversing ter as Class 1 waters and that therefore bor estuary that connects to the ocean and remanding a National Pollutant MPCA erroneously imposed permit at Nantucket Sound. The Beach Club Discharge Elimination System (NPDES)/ conditions requiring compliance with the treats its sewage and wastewater on the State Discharge System (SDS) permit Class 1 sulfate standard in groundwater. property and stores the treated sewage that the Minnesota Pollution Control In addition to these issues of first in 22 concrete leaching pits meant to Agency (MPCA) reissued to U. S. Steel impression, the court also concluded convey the treated sewage from the treat- Corporation on 11/30/2018 for U. S. that MPCA had not identified substan- ment facility into the ground. Plaintiff Steel’s Minntac taconite tailings basin tial evidence supporting its decision that filed suit claiming that the resulting facility in Mountain Iron, Minnesota. there were no discharges to surface water discharge of nitrogen into the groundwa- The court’s decision addressed two from the tailings basin, and only seep- ter subsequently reached the navigable water-law issues of first impression. The age discharges to groundwater. Minntac water of Wychmere Harbor estuary, and first issue involved the regulation of has constructed systems around the that the Beach Club failed to obtain a seepage discharges from the tailings ba- tailings basin to intercept aboveground National Pollutant Discharge Elimination sin to groundwater that is hydrologically discharges from the basin before they System (NPDES) permit under CWA connected to, and transports pollutants reach surface waters and pump the water prior to the discharge. However, the to, certain surrounding surface waters. back to the basin pond. Based on these Beach Club has an Individual Groundwa- Specifically at issue was whether these systems, MPCA determined there were ter Discharge Permit issued by the Mas- groundwater-to-surface-water discharges no surface water discharges from the sachusetts Department of Environmental (GSWDs) constitute discharges to basin and thus did not impose permit Protection. Defendant argued that it is “waters of the United States” under the limits based upon surface water quality not liable under the CWA because it Clean Water Act (CWA) and are thus standards. However, the court held that discharges the nitrogen into groundwater, subject to NPDES permitting require- MPCA failed to base this decision upon rather than directly into the harbor. ments such as the requirement to meet substantial evidence. The court held that the 22 leach pits surface water quality standards—or, Finally, the court mostly side-stepped were in fact point sources within the as MPCA and U. S. Steel contended, arguments regarding the applicability meaning of the CWA. However, in April GWSDs are properly regulated under of the “wild rice rule,” a Class 4 water 2019, after full notice and comment pro- state law only (i.e., MPCA’s SDS permit- quality standard for sulfate related to cedures, EPA published an Interpretive ting program). This issue has been the surface waters used for wild rice produc- Statement concluding that discharges of subject of numerous conflicting federal tion. Environmental and tribal appellants pollutants from point sources to ground- appellate court opinions, one of which, argued that MPCA wrongly failed to water are categorically excluded from li- Hawai’i Wildlife Fund v. County of Maui, include permit conditions based upon the ability under CWA’s NPDES permit pro- 886 F.3d 737 (9th Cir. 2018), is cur- wild rice rule. However, because the court gram. 84 Fed. Reg. 16810 (4/23/2019). rently being reviewed by the Supreme remanded the permit to MPCA to make Thus, the court followed the Chevron Court of the United States. However, further factual findings on the presence of deference test to determine that EPA’s no Minnesota state or federal court had surface water discharges, the court held it interpretation of CWA was not unrea- yet ruled on the issue. The court of ap- would be premature to rule on the appli- sonable to exclude discharges through peals applied the analytical framework cability of the wild rice rule. The court did groundwater from the NPDES program. established by In re Cities of Annandale & clarify, however, that with regard to the In making this determination, the court Maple Lake NPDES/SDS Permit Issuance SDS portion of the permit, the wild rice recognized that Congress deliberately for Discharge of Treated Wastewater for rule “cannot, under current law, be the opted to leave groundwater protection to determining when to show deference to basis for conditions requiring the expen- the states under the CWA. a state agency’s interpretation of a stat- diture of funds.” The court thus reversed Similar cases from the 4th, 6th, and 9th ute it is charged with administering. 731 MPCA’s decision reissuing the permit and Circuits were decided prior to the April N.W.2d 502, 516 (Minn. 2007). Here, remanded the permit for further proceed- 2019 EPA Interpretive Statement, leading the court sided with MPCA and U. S. ings consistent with its decision. Matter to a split in the circuits. Sierra Club v. Vir- Steel, holding that the relevant language of NPDES/SDS, A18-2094, 2019 WL ginia Elec. & Power Co, No. 17-1895, (4th in the CWA was ambiguous regarding 6691515 (Minn. Ct. App. 12/9/2019). Cir. 2018); Upstate Forever v. Kinder Mor- GWSDs and that MPCA’s interpreta- gan Energy Partners, 887 F.3d 637 (4th Cir. tion of that language as not bringing n District court defers to EPA, rules 2018); Kentucky Waterways All. v. Kentucky GWSDs within the scope of the CWA— groundwater discharge does not violate Utilities Co., No. 18-5115, (6th Cir. 2018); “regardless of any hydrological connec- Clean Water Act. On 11/26/2019, the Tennessee Clean Water Network v. Tennessee tion to surface waters”—was reasonable. U.S. District Court for the District of Valley Auth., No. 17-6155, (6th Cir. 2018); The second issue of first impression Massachusetts held that discharges Hawai’i Wildlife Fund v. County of Maui, was whether groundwater is subject to of pollutants into groundwater that 886 F.3d 737 (9th Cir. 2018). MPCA’s Class 1 water quality standards subsequently reach surface waters are On 11/6/2019, the U.S. Supreme in part 7050.0221, which incorporate by not subject to liability under the Clean Court heard oral argument on the same reference EPA’s drinking water standards. Water Act (CWA). The court deferred question in the 9th Circuit case Hawai’i Based on its position that groundwater is to the EPA’s recent interpretation of the Wildlife Fund v. County of Maui. No. subject to the Class 1 standards, MPCA CWA under the Chevron deference test. 18-260. Until the Supreme Court issues

36 Bench&Bar of Minnesota s January 2020 www.mnbar.org | ENVIRONMENTAL LAW a decision in Hawai’i Wildlife Fund, it is WHEN PERFORMANCE COUNTS most likely other courts will withhold judgment on similar cases. See also the Minnesota Court of Appeals’ decision Repl Indemnity on this issue in the Minntac NPDES/ Guardianship ff T rustees evin Rece ers T SDS permit decision outlined above. udgment iv SupersedeaO Conservation Law Foundation Inc. v. Repl Sheri Indemnity R Guardianship ff T rustees Longwood Venues and Destinations Inc. Certiorari evin Rece ers T et al., No. 18-11821-WGY; 2019 WL udgment iv SupersedeaO 6318530 (D. Mass. 2019). Repl Sheri Indemnity TR atorshipCertiorariGuardianship ff Rece evin udgment ers ADMINISTRATIVE ACTION iv SupersedeaO With over 40 yearsRepl experienceSheri PJT has beenIndemnity Minnesota’s R n EPA releases final guidance on Guardianship ff T atorshipCertiorari evin Rece ers “adjacency” for new source review surety bonding specialist. Withudgment the knowledge, experienceiv Supersedea permitting. The Environmental Protec- and guidance lawRepl ﬁ rms expect Sherifrom a bondingIndemnity company. T tion Agency (EPA) issued guidance on atorshipCertiorariGuardianship ff Rece evin udgment ers 11/26/2019 to clarify use of adjacencyAttachment as • Supersedeas • Appeals • Certiorari • Replevin • iv Supersedea a factor in determining whether station- Repl Sheri Indemnity atorshipCertiorari• InjunctionGuardianship • Restraining Order • Judgmentff Rece • ary sources in close proximity may be v evin udgment ers combined under Clean Air Act “majorAttachment • License Bonds • Trust • Personal Representative • iv Repl Sheri Indemnity source” permits in nonattainment areas.Conser • ConservatoratorshipCertiorari •Guardianship Professional Liability • ERISA f•f FidelityRece • The agency’s New Source Review (NSR) v evin udgment Attachment iv program regulates new sources of air Repl Sheri Indemnity emissions in geographic areas that do Conser Locallyatorship ownedCertiorari and operated.Guardianship Same day service with in house fauthf ority!Rece v evin udgment not attain EPA’s National Ambient Air Attachment Quality Standards (NAAQS). Major Repl Sheri Indemnity Conser 121atorship SouthCertiorari Eighth StreetGuardianship Suite 980, Minneapolis, MN 55402 ff rustees sources—stationary source(s) located v evin udgment T within a contiguous area under common AttachmentIn St. Paul call (651) 224-3335 or Minneapolis (612) 339-5522Sheri O control that emit ten tons per year of any Repl TR Supersedea ConserFax: (612) atorship349-3657Certiorari • [email protected] • www.pjtagency.com one hazardous air pollutant, or 25 tons v evin ers Attachment iv per year of a combination of pollutants— Repl trigger the requirement for an NSR Conser atorshipCertiorariGuardianshipRece permit. 42 U.S.C. §7412(a)(1). Indemnity In order to reach the “major source” Attachment level and trigger NSR permitting requirements, multiple sources within close proximity may be aggregated. But sources may be aggregated only when they (1) are under common control, (2) fall under the same major standard industrial classifica- tion (SIC) code, and (3) exist on contiguous or adjacent properties. 40 C.F.R. §70.2. The meaning of “adjacent” has been debated among federal appellate courts. See e.g. Summit Petroleum Corp. v. United States EPA, 690 F.3d 733 (5th Cir. 2012). EPA’s new guidance clarifies that physical proximity is the sole determinative factor of adjacency. If the properties do not share a common border or are not physically touching, EPA concluded, they will be deemed “adjacent” only if “the properties are nevertheless nearby, side-by-side, or neighboring.” EPA’s position terminates the agency’s former practice of grouping more widely spaced related industrial sources into a single “major” facility.

JEREMY P. GREENHOUSE The Environmental Law Group, Ltd. [email protected] JAKE BECKSTROM Vermont Law School, 2015 ERIK ORDAHL Flaherty & Hood, P.A. AUDREY MEYER University of St. Thomas School of Law, J.D. candidate 2020 www.mnbar.org January 2020 s Bench&Bar of Minnesota 37 Notes&Trends | FEDERAL PRACTICE | IMMIGRATION LAW

FEDERAL PRACTICE tive defendants if the amendment was n Multiple decisions relating to costs. allowed. Brewster v. United States, 2019 Where the parties discussed the formats JUDICIAL LAW WL 6318613 (D. Minn. 11/26/2019). in which ESI would be produced, but n Appellate jurisdiction; appeal from did not reduce an agreement to writing denial of motion for temporary restrain- n Duplicative counterclaim dismissed. or include any agreement in their Rule ing order. Rejecting defendants’ argu- Where a law firm that represented the 26(f) report, Judge Tostrud held that ment that it lacked jurisdiction over plaintiff in a personal injury action defendant was nevertheless entitled to one plaintiff’s appeal from the denial of sought a quantum meruit recovery, Judge recover more than $3,300 for the costs the plaintiffs’ motion for a temporary Montgomery denied that request, the of producing ESI as single-page TIFFs restraining order, the 8th Circuit found law firm’s appeal was pending in the with OCR under 28 U.S.C. §1920(4). that the district court’s order “had the 8th Circuit, the law firm was sued for Wing Enterprises, Inc. v. Tricam Indus., practical effect of denying a preliminary malpractice in a separate action by the Inc., 2019 WL 5783485 (D. Minn. injunction.” Wise v. Dept. of Transporta- same plaintiff, and the law firm asserted 11/6/2019). tion, ___ F.3d ___ (8th Cir. 2019). a counterclaim seeking a quantum meruit Rejecting the plaintiff’s argument recovery, Judge Montgomery granted the that the cost of a hearing transcript or- n Sanctions order vacated pending plaintiff’s motion to dismiss the coun- dered by the defendants in conjunction reconsideration. Last month this column terclaim, finding that the counterclaim with his appeal was not taxable because noted the imposition of sanctions against was “duplicative” of the law firm’s claim “no evidence was presented at the hear- a qui tam defendant by Magistrate Judge in the first litigation. Judge Montgom- ing,” Judge Nelson affirmed the clerk’s Rau. The defendant appealed the order, ery also rejected the law firm’s request taxation of costs for the transcript. and Judge Ericksen subsequently vacated that she stay—rather than dismiss—the Kushner v. Buhta, 2019 WL 5677869 the order and sent the dispute to Mag- counterclaim. Trice v. Napoli Shkolnik (D. Minn. 11/1/2019). istrate Judge Leung, with instructions to PLLC, 2019 WL 6324867 (D. Minn. Judge Nelson found that an award reconsider the motion for sanctions “in 11/26/2019). of costs to the defendants in an ADA light of Defendant’s objections and with action was “inappropriate” where the the benefit of oral argument.” United n Fed. R. Civ. P. 45(f); “exceptional cir- action was dismissed for lack of jurisdic- States ex rel. Higgins v. Boston Scientific cumstances;” motion to quash subpoena tion and no judgment was entered in Corp., 2019 WL 6328135 (D. Minn. transferred. Magistrate Judge Menendez favor of the defendants, meaning that 11/25/2019). transferred a motion to quash a sub- the defendants were not the “prevail- poena to the district where the underlying party.” Dalton v. Simonson Station n Sanctions; informal collection of ing action is pending pursuant to Fed. Stores, Inc., 2019 WL 5566712 (D. documents after discovery deadline. R. Civ. P. 45(f), noting that a number Minn. 10/29/2019). Where the plaintiffs obtained releases of other subpoena-related disputes had In contrast, Judge Tostrud found that from members of the plaintiff class, already been transferred, and finding “a ADA defendants were prevailing parties sought documents from third parties significant risk of inconsistent decisions” where the action was dismissed for lack “long after” the close of fact discovery if the motion was not transferred. Pete of subject matter jurisdiction and judg- and the filing of dispositive motions, v. Big Picture Loans, LLC, 2019 WL ment was entered, and also rejected the and then produced 10,000 documents 6250715 (D. Minn. 11/22/2019). plaintiff’s argument that the clerk’s cost to the defendant, Magistrate Judge judgment should be vacated based on his Thorson rejected plaintiffs’ arguments n Fed. R. Civ. P. 30(b)(6); irrelevant inability to pay. Smith v. Bradley Pizza, that they had merely supplemented their topics. Reversing an order by Magis- Inc., 2019 WL 6650475 (D. Minn. document production as Fed. R. Civ. P. trate Judge Rau, Judge Brasel granted 12/6/2019). 26(e) requires and that their “informal” a defendant’s motion for a protective document collection was not governed order, finding that three topics listed in JOSH JACOBSON by deadlines in the scheduling order. the plaintiff’s Fed. R. Civ. P. 30(b)(6) Law Office of Josh Jacobson Instead, the magistrate judge determined deposition notice were not relevant to [email protected] that “[f]act discovery is fact discovery,” the plaintiff’s claims. Kroening v. Del found that sanctions were warranted, Monte Fresh Produce N.A., Inc., 2019 and prohibited all parties from utilizing WL 6524893 (D. Minn. 12/4/2019). IMMIGRATION LAW the documents in the litigation. Murphy ex rel. Murphy v. Harpstead, 2019 WL n Attempt to amend allegations in op- JUDICIAL LAW 6650510 (D. Minn. 12/6/2019). position to summary judgment motion n Applications for asylum by those who rejected. Granting defendants’ motions travel through a third county without n Motion to amend to add additional for summary judgment, Judge Magnuson first seeking relief there. As previously parties; standing to oppose. Where the rejected the plaintiff’s attempt to raise noted in the November 2019 edition of plaintiffs sough to amend their complaint new allegations in her opposition to the Bench & Bar, the U.S. Supreme Court to add additional parties, Magistrate motions, finding that “[a] plaintiff may issued an order on 9/11/2019 staying the Judge Menendez found that the existing not amend a complaint in briefs or in U.S. District Court’s injunction (enjoin- defendant had standing to oppose the oral argument, but must file an amended ing the government from implementing motion on the basis of futility, where it complaint.” Uradnik v. Inter Faculty As- its 7/16/2019 rule barring asylum eligibil- was “virtually certain” that the same ar- sociation, 2019 WL 6608784 (D. Minn. ity for individuals entering or attempt- gument would be raised by the prospec- 12/5/2019). ing to enter the United States through

38 Bench&Bar of Minnesota s January 2020 www.mnbar.org | IMMIGRATION LAW

the southern border while traveling through a third country without first seeking relief in that country) during the pendency of the court litigation on the mandatory bar to asylum eligibility. Barr, el al. v. East Bay Sanctuary Covenant, et al., 588 U.S. ____ (2019). https://www. supremecourt.gov/opinions/18pdf/19a230_ k53l.pdf Since then, the U.S. District Court for the Southern District of California has granted plaintiffs’ motions for provisional class certification and a preliminary injunction enjoining the government from relying on the 7/16/2019 rule to deny asylum eligibility to those non-Mexican asylum seekers who were “metered” at the United States-Mexico border before the ban went into effect. “Metering” is a procedure employed by the U.S. Department of Homeland Security restricting the number of asylum seekers accepted for inspection and processing at U.S. ports of entry—leaving them to thus wait and stay in Mexico. “[A] lthough the regulation clearly states that it applies only to aliens who entered, attempted to enter, or arrived on or after July 16, 2019, the Government is now attempting to apply the Asylum Ban beyond its unambiguous constraints to cap- ture the subclass of Plaintiffs who are, by definition, not subject to this rule. The Government’s position that the Asylum Ban applies to those who attempted to enter or arrived at the southern border seeking asylum before July 16, 2019 contradicts the plain text of their own regulation.” Al Otro Lado, Inc., et al. v. McAleenan, et al., No. 3:17-cv-02366- BAS-KSC (S.D. Cal. 11/19/2019). https://www.americanimmigrationcouncil. org/sites/default/files/litigation_documents/ litigation_aol_order_granting_plantiffs_mo- tion_for_professional_class_certification.pdf n Willful injury causing bodily harm is a “crime of violence” and hence an aggravated felony. The 8th Circuit Court of Appeals held that the petitioner’s conviction for willful injury causing bodily harm in violation of Iowa

Code §708.4(2) was indeed a “crime of violence” under 18 USC §16(a) and thus qualified as an aggravated felony under INA §101(a)(43)(F), rendering the petitioner ineligible for asylum and with- holding of removal. It further held the

Board of Immigration Appeals’ grant of the Department of Homeland Security’s appeal of the immigration judge’s grant of deferral of removal under the Con- www.mnbar.org January 2020 s Bench&Bar of Minnesota 39 Notes&Trends | IMMIGRATION LAW | PROBATE & TRUST LAW vention Against Torture was warranted. ing H-1B lottery. Employers intending for the Northern District of California Jima v. Barr, No. 19-1104, slip op. (8th to file H-1B cap-subject petitions for the in Ramos, et al. v. Nielsen, et al., No. Cir. 11/8/2019). https://ecf.ca8.uscourts. upcoming 2021 cap season, including 18-cv-01554 (N.D. Cal. 10/3/2018) and gov/opndir/19/11/191104P.pdf those petitions eligible for the advanced the U.S. District Court for the Eastern degree exemption, will be required to District of New York in Saget, et al. v. n Immigrants and proof of health cover- first electronically register and pay a Trump, et al., No. 18-cv-1599 (E.D.N.Y. age. On 10/4/2019, the president issued $10 H-1B registration fee. The initial 4/11/2019), and with the order of the Proclamation No. 9945, suspending the registration period for employers (or U.S. District Court for the Northern entry of immigrants who “will financially their authorized representatives) to District Court of California to stay burden the United States healthcare register with basic information about the proceedings in Bhattarai v. Nielsen, No. system,” effective 11/3/2019 at 12:01 employer and each sponsored worker will 19-cv-00731 (N.D. Cal. 3/12/2019), a.m. (EDT). That means any individual run from 3/1/2020 through 3/20/2020. beneficiaries of Temporary Protected applying for an immigrant visa after that The H-1B random selection process Status (TPS) designations for El Salva- date and time must (with certain limited will be applied to the registrations with dor, Honduras, Nepal, Nicaragua, and exceptions) provide evidence to the those selected then eligible to file H-1B Sudan will continue to retain their TPS consular officer at the visa interview that cap-subject petitions. https://www.uscis. status while the preliminary injunction (s)he will be covered by approved health gov/news/news-releases/uscis-announces- under Ramos remains in effect. Benefi- insurance within 30 days of U.S. entry or implementation-h-1b-electronic-registration- ciaries of TPS designation for Haiti will has financial resources to pay for “reason- process-fiscal-year-2021-cap-season retain their TPS status while either of able foreseeable medical costs.” Other- the preliminary injunctions under Ramos wise, the visa application will be denied. n Poland designated a Visa Waiver or Saget remain in effect. As a result, 84 Fed. Reg., 53991-94 (10/9/2019). Program country. On 11/8/2019, the TPS designations for El Salvador, Haiti, https://www.govinfo.gov/content/pkg/FR- acting secretary of the Department of Honduras, Nepal, Nicaragua, and Sudan 2019-10-09/pdf/2019-22225.pdf Homeland Security, Kevin McAleenan, will continue through 1/4/2021. 84 Fed. On 10/30/2019, a complaint was filed published notice that Poland had been Register, 59403-10 (11/4/2019). https:// contending, among other things, that designated for inclusion in the Visa www.govinfo.gov/content/pkg/FR-2019-11- the proclamation seeks to rewrite our Waiver Program, effective 11/11/2019. 04/pdf/2019-24047.pdf nation’s immigration laws by creating a Eligible citizens, nationals, and passport new ground of inadmissibility rejected by holders from designated Visa Waiver R. MARK FREY Congress while imposing requirements Programs may apply for admission to the Frey Law Office that are extremely difficult, if not impos- United States at U.S. ports of entry for a [email protected] sible, to meet. In short, “the Proclama- period of 90 days or less for business or tion contravenes well-established and pleasure without first obtaining a nonim- duly enacted immigration and healthcare migrant visa, provided they are otherwise PROBATE & TRUST LAW laws, exceeds the scope of the President’s eligible for admission. Other countries statutory authority, and violates Consti- included in the Visa Waiver Program are: JUDICIAL LAW tutional separation of powers and equal Andorra, Australia, Austria, Belgium, n Minn. Stat. §524.3-721: Compensa- protection principles.” Doe, et al. v. Brunei, Chile, Czech Republic, Den- tion paid by an estate. The estate of Trump, et al., No. 3:19-cv-01743-SB (D. mark, Estonia, Finland, France, Ger- Prince Rogers Nelson hired appellants Or. 10/30/2019). https://www.courtlistener. many, Greece, Hungary, Iceland, Ireland, NorthStar Enterprises Worldwide Inc. com/recap/gov.uscourts.ord.148990/gov. Italy, Japan, Latvia, Liechtenstein, and CAK Entertainment Inc. to act as uscourts.ord.148990.1.0_2.pdf Lithuania, Luxembourg, Malta, Monaco, entertainment advisors to monetize the On 11/26/2019, in response to the the Netherlands, New Zealand, Norway, estate’s intellectual property. Appellants plaintiffs’ motion, the U.S. District Court Portugal, Republic of Korea, San Marino, entered into an agreement with the for the District of Oregon, Portland Singapore, Slovak Republic, Slovenia, estate whereby they would receive a 10% Division, issued a preliminary injunction Spain, Sweden, Switzerland, Taiwan, and commission on all money paid to the enjoining the defendants from taking the United Kingdom (i.e., British citizens estate pursuant to agreements entered any action to implement or enforce who have the unrestricted right of per- into as a result of services provided by Presidential Proclamation No. 9945 manent abode in the United Kingdom, appellants. Appellants were to receive until the court resolves the case on the consisting of England, Scotland, Wales, the commission “simultaneously with the merits or until such time as the parties Northern Ireland, the Channel Islands, payment to” the estate of any amounts agree to amend, supersede, or terminate and the Isle of Man). 84 Fed. Register, due under such agreements. The estate the preliminary injunction. Doe, et al. v. 60316-18 (11/8/2019). https://www. entered into a contract with Jobu Pres- Trump, et al., No. 3:19-cv-01743-SI (D. govinfo.gov/content/pkg/FR-2019-11-08/ ents LLC to organize and promote a trib- Or. 11/26/2019). https://www.courtlistener. pdf/2019-24328.pdf ute concert and a contract with Univer- com/recap/gov.uscourts.ord.148990/gov. sal Music Group for the distribution and uscourts.ord.148990.95.0.pdf n Continued retention of Temporary marketing of certain of Prince’s record- Protected Status for beneficiaries from ings. Jobu and Universal made initial ADMINISTRATIVE ACTION El Salvador, Honduras, Nepal, Nicara- payments totaling over $33 million and n USCIS announces utilization of H-1B gua, Sudan, and Haiti. On 11/4/2019, the appellants collectively received over $3 electronic registration process for up- U.S. Department of Homeland Security million in commissions. The agreements coming 2021 cap season. On 12/6/2019, announced that in order to continue its with Jobu and Universal ultimately fell USCIS announced the implementation compliance with the preliminary injunc- apart and the estate refunded the entire of a registration process for the upcom- tion orders of the U.S. District Court amount received.

40 Bench&Bar of Minnesota s January 2020 www.mnbar.org | PROBATE & TRUST LAW

A special administrator for the estate of substantial evidence. Section 524.3- tion between the reasonableness of the brought a motion under Minn. Stat. 721 allows an interested person to file a rate agreed to and the reasonableness of §524.3-721 seeking an order requiring motion challenging the reasonableness the actual compensation paid given the appellants to refund the commissions. of compensation paid by an estate to any services provided, and held that it had The district court entered a “temporary” person employed by a personal represen- authority to review the latter pursuant to order requiring appellants to refund the tative, “including any attorney, auditor, Section 524.3-721. commissions, which were to be held investment advisor or other specialized Appellants next challenged the in escrow by the estate until the court agent.” The court of appeals found order on the basis that it was basically could decide the merits of the estate’s that Section 524.3-721 applied because a temporary injunction and the court claim. Appellants appealed arguing, appellants were “specialized agent[s].” had not considered the Dahlberg factors. among other things, that the court Appellants next argued that, given the Since the court of appeals accepted lacked authority under Minn. Stat. complexity of the issues, the special jurisdiction over the appeal on the basis §524.3-721 and that it had erred by administrator’s challenge to their com- that the order had the characteristics of granting what was in reality a tempo- missions must be brought in a plenary a temporary injunction, it held that the rary injunction without considering the action under the rules of civil procedure district court erred by not considering Dahlberg factors. The Minnesota Court rather than on an administrative motion the Dahlberg factors that must be ana- of Appeals determined that the district under Section 524.3-721. The court of lyzed before a temporary injunction can court’s order had the characteristics of a appeals found that Section 524.3-721 be granted. The court of appeals there- temporary injunction and accepted the expressly allows an interested person to fore remanded for consideration of the appeal for immediate review. move the district court to review “the Dahlberg factors and ultimate determina- On appeal, appellants first argued the reasonableness of the compensation” and tion of the reasonableness of appellants’ district court lack authority to proceed to order “appropriate refunds” where commissions. In re Estate of Nelson, No. by motion, under Section 524.3-721, compensation was excessive. Finally, A19-0503, 2019 WL 6258679 (Minn. without filing a formal lawsuit and appellants argued that their compensa- Ct. App. 11/25/2019). serving them with process because that tion was controlled by an agreement statute is generally used for review of with the personal representative and CASEY D. MARSHALL accountants’ and attorneys’ fees, which that the agreement had been approved Bassford Remele doesn’t require testimony or submission by the court. The court drew a distinc- [email protected] mndocs FULLY AUTOMATE FORMS anytime, anywhere, any device

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www.mnbar.org January 2020 s Bench&Bar of Minnesota 41 Notes&Trends | TAX LAW

TAX LAW that the word “tax” in 1937 (the year the missioner. The previous order is reported TIA was passed) did not include “toll.” at YAM Special Holdings, Inc. v. Comm’r, JUDICIAL LAW The court looked to plain language, case Docket No. 9122-R, 2019 WL 2519414 n Tolls are not taxes; 1st Circuit in- law, and Thomas Cooley’s treatise The (Minn. T.C. 6/12/2019). structs district court it has jurisdiction, Law of Taxation to reach its conclusion. YAM Special Holdings, Inc. (YAM), and remands for resolution of Rhode All of these sources pointed the 1st Cir- a nonresident corporation, realized and Island dispute. The Tax Injunction Act cuit to the conclusion that “tolls” are not reported gains on the 2011 sale of a (TIA) provides that federal “district “taxes” for TIA. Further, the broad pur- majority interest in the operations of its courts shall not enjoin, suspend or re- poses of comity and federalism did not Go Daddy business. YAM’s sole share- strain the assessment, levy or collection compel the federal court to refrain from holder, Robert Parsons, received $1.168 of any tax under State law where a plain, exercising jurisdiction. The case was billion of the transaction proceeds and speedy and efficient remedy may be had reversed and remanded to the district although the sale was reported on YAM’s in the courts of such State.” 28 U.S.C. court. Am. Trucking Associations, Inc. v. 2011 Minnesota income tax return, it §1341. Principles of comity—and the Alviti, No. 19-1316, 2019 WL 6606088 was reported as a transaction not subject practical realities of state budgets—ani- (1st Cir. 12/5/2019). to Minnesota tax. The commissioner mate the TIA. As the 1st Circuit noted determined that a portion of YAM’s gain in this dispute between members of the n Tax shelters; partnership tax. Open- on the sale was subject to Minnesota trucking industry and the state of Rhode ing its opinion with the direct statement, tax and assessed YAM. The taxpayer Island, “[a] principal purpose of the “Andrew Beer was in the tax shelter appealed the determination and the par- TIA was to stop taxpayers, with the aid business,” the DC Circuit affirmed the ties moved for summary judgment. The of a federal injunction, from withhold- tax court’s decision that certain at-issue court concluded that the gains realized ing large sums, thereby disrupting state transactions entered into by the defen- by YAM are subject to Minnesota tax. government finances.” (internal citations dant partnership “were shams designed The court therefore denied YAM’s mo- omitted). to look like real world trades without tion for summary judgment and granted The TIA applies by its terms only any of the risk or concomitant opportu- the commissioner’s motion for summary to taxes. If the sums the state seeks to nity for profit.” Since the transactions judgment. collect are not taxes, but some other lacked economic substance, the $144 In a comprehensive opinion, the payment or fee, the TIA does not ap- million in losses generated could not court first explained the parameters of ply. The sum Rhode Island sought to be used to offset the partner’s gain. As Minnesota’s taxation of nonresident collect in this dispute (and continues to the court explained, sham transactions corporations; such corporations are seek to collect) was defined as a “toll” are those that do not possess “(1) any subject to taxation if the corporation in the statutory language. In particular, objectively reasonable potential for profit engages in Minnesota contacts with the the state authorized the Department nor (2) any other legitimate nontax state and those contacts produce gross of Transportation to collect tolls ex- business purposes.” (The transactions at income attributable to sources within clusively from large commercial trucks issue occurred prior to Congress’s 2010 this state. Minnesota taxes nonresi- in an effort to address a problem with establishment of its own test, which dent corporations when that income is the state’s bridges (23% of large Rhode applies only prospectively.) The opinion “derived from the conduct of a trade or Island bridges had been deemed struc- describes clearly the transactions at is- business.” Minn. Stat. §290.17, subd. turally deficient). The Legislature found sue, and a concurring opinion provides 2. “All income of a trade or business is that large commercial trucks, like those even more clarity on the sham nature subject to apportionment [between Min- owned and operated by the plaintiffs in of the deals. Endeavor Partners Fund, nesota and other states] except nonbusi- this case, cause over 70% of the damage LLC v. Comm’r, No. 18-1275, 2019 WL ness income.” Id., subd. 3. Nonbusiness to Rhode Island roads and bridges but 6314276 (D.C. Cir. 11/26/2019). income is assigned depending on the contribute less than 20% of the revenue nature of the income. to fund transportation infrastructure n Nonresident corporation subject to Of particular import for this dispute, under then existing sources. The tolls Minnesota income tax. The Minnesota the statute also provides that “Gain on at issue were designed to eliminate that Tax Court revisited a dispute centered the sale of an interest in a single member funding disparity. on whether gains realized by a nonresi- limited liability company that is disre- The plaintiffs, however, argued that dent taxpayer are subject to Minnesota garded for federal income tax purposes the tolls violate the dormant Commerce corporate income tax. In a previous is allocable to this state as if the single Clause and sued the state and the state’s order, disputed issues of material fact member limited liability company did transportation department in federal prevented the court from ruling on not exist and the assets of the limited district court. The lower court called it a the parties’ cross motions for summary liability company are personally owned “close call” but determined that the TIA judgment. In this opinion and order, by the sole member…. Gain on the sale barred the lower court from hearing the the court found no such obstacle and of goodwill or income from a covenant case. The 1st Circuit disagreed, holding ordered summary judgment to the com- not to compete that is connected with a business operating all or partially in Min- nesota is allocated to this state to the For free access to full text cases summarized in extent that the income from the business ® in the year preceding the year of sale was Notes & Trends, try FASTCASE, MSBA’s members- allocable to Minnesota under [Minn. only online research service available at mnbar.org Stat. § 290.17] subdivision 3.” Minn. Stat. §290.17, subd. 2(c).

42 Bench&Bar of Minnesota s January 2020 www.mnbar.org | TAX LAW HANNOVER CONSULTING Proven Expert Witness After setting out these statutory on Financial Matters parameters, the court explained the definition of nonbusiness income and Over 35 years finance industry experience; testified in 39 cases: discussed constitutional principles • Investment banking/underwriting standards and practices governing apportionment of income to a • Defaulted financings (corporate and municipal) taxing state. Applying these principles, • Shareholder and investor disputes the court concluded that “the December • Financial damages calculations Search “Don Keysser” 2011 sale resulted in gains apportionable • NASD/SEC/MSRB; due diligence and disclosure to Minnesota” and therefore summary judgment for the commissioner was appropriate. YAM Special Holdings, Inc. v. Don Keysser / 612-710-0995 / [email protected] / www.HannoverConsulting.com Comm’r of Revenue, No. 9122-R, 2019 WL 6213168 (Minn. Tax 11/12/2019). n Penalty imposed for continued frivolous position. The taxpayer, an attorney, failed to file federal income tax returns for several years. The taxpayer raised several justifications for this failure, including the frivolous arguments that “there is no constitutional basis for federal taxes on the ordinary labor of a working American,” and that the Service failed to account for the basis value of a person’s labor which “would be valued at near or the same as the value of the gross receipts which that same labor generated.” In previous interactions with the Service, the tax court did not impose penalties but admonished the taxpayer that continued assertion of vexatious arguments would result in sanctions. The court is authorized to impose a penalty of up to $25,000 if the taxpayer’s position in the proceedings is frivolous or ground- less. IRC 6673(a)(1). “A taxpayer’s position is frivolous if it is contrary to established law and unsupported by a reasoned, colorable argument for change in the law.” Worsham v. Comm’r, T.C.M. (RIA) 2019-155 (T.C. 2019) (citing Rad- er v. Comm’r, 143 T.C. 376, 392 (2014) (additional internal citation omitted)). Because the taxpayer continued to make arguments previous rejected by the tax court (and other courts) as frivolous, the court in this case made short work of its opinion: “As we have previously told petitioner: ‘We perceive no need to refute … [frivolous] arguments with somber reasoning and copious citation ERISA DISABILITY CLAIMS of precedent.’ Because petitioner continues to make frivolous arguments despite ERISA LITIGATION IS A LABYRINTHINE MAZE OF numerous warnings, we will require him REGULATIONS AND TIMELINES. LET OUR EXPERIENCE HELP. to pay to the United States a penalty of $3,000 under section 6673.” Worsham v. Comm’r, T.C.M. (RIA) 2019-155 (T.C. 2019) (internal citations omitted).

MORGAN HOLCOMB ROB LEIGHTON DENISE TATARYN Mitchell Hamline School of Law 952-405-7177 952-405-7178 [email protected] SHEENA DENNY, Mitchell Hamline School of Law www.mnbar.org January 2020 s Bench&Bar of Minnesota 43 Notes&Trends | TORTS & INSURANCE

TORTS & INSURANCE The Minnesota Supreme Court duties. Later, the company issued a press affirmed the decision of the court of release accusing plaintiff of breaching his JUDICIAL LAW appeals. The Court began by noting that fiduciary duties and stating that he re- n Joint and several liability; liability Minn. Stat. §604.02, subd. 1 requires signed as a result of his conduct. Plaintiff not reduced by employer’s fault. Plaintiff apportionment of liability according to subsequently sued defendant for defama- suffered injuries during a workplace fault “only when ‘two or more persons tion. While defendant did not author the accident. After plaintiff and his employer are severally liable.’” The Court then press release, plaintiff alleged that it was settled his workers’ compensation rejected defendant’s argument that “both issued at defendant’s direction and with claim, he then brought a common-law [defendant] and the employer were liable his approval, and subsequently re-pub- negligence claim against defendant, at the moment the tort occurred in this lished to the Securities and Exchange alleging that its employee was at fault case—in other words, when [plaintiff] Commission at his direction. The district for his injuries. In response, defendant was injured,” reasoning that “employers court granted defendant’s motion to brought a third-party contribution liable in workers’ compensation and third dismiss, holding that the complaint failed claim against plaintiff’s employer. parties liable in tort are not commonly to state a claim because plaintiff did not Defendant and plaintiff’s employer liable, either jointly or severally, because allege that defendant authored the press settled the contribution claim and the the employer is shielded from tort li- release. The court of appeals affirmed. employer’s possible subrogation claim. ability.” Further, the Court noted that The Minnesota Supreme Court Plaintiff’s lawsuit against defendant then if the phrase “severally liable” included reversed and remanded the case for proceeded to trial. The jury found that employers, then “a severally liable em- further proceedings. The Court noted the injury was caused by plaintiff, his ployer would become a person ‘jointly that while a “corporate officer cannot employer, and defendant, and allocated and severally liable for the whole award’ be held personally liable for a company’s fault 5 percent to plaintiff, 75 percent in tort if its fault were greater than 50 defamatory acts by virtue of job title to the employer, and 20 percent to percent.” Because the Legislature could alone,” “[I]t is the universal rule that an defendant. Post-trial, defendant, citing not have intended such a result, the officer of a corporation who takes part in Minn. Stat. §604.02, subd. 1, argued that Court declined to reduce the judgment the commission of a tort by the corpora- its liability should be proportionate to its by the amount of the employer’s fault. tion is personally liable therefor.” Because 20 percent fault. Plaintiff countered that, Fish v. Ramler Trucking, Inc., No. plaintiff alleged that defendant “person- by its plain language, section 604.02 A18-0143 (Minn. 11/27/2019). https:// ally took part in the commission of a tort did not apply because defendant and mn.gov/law-library-stat/archive/supct/2019/ by directing, authorizing, and approving his employer were not both “severally OPA180143-112719.pdf a defamatory press release,” the district liable.” The district court agreed with court erred in granting defendant’s mo- defendant and applied section 604.02 n Defamation; personal liability of tion to dismiss. DeRosa v. McKenzie, No. to reduce the net damage award by an corporate officer. Plaintiff is a former A18-1171 (Minn. 12/11/2019). http:// amount proportionate to the employer’s director of a company where defendant www.mncourts.gov/mncourtsgov/media/ fault. The court of appeals reversed, serves as chief executive officer. In 2015, Appellate/Supreme%20Court/Standard%20 concluding that it was error to apply plaintiff was accused of sharing defen- Opinions/OPA181171-121119.pdf section 604.02 in these circumstances, dant’s confidential information with a and remanded to the district court for third party. Plaintiff later resigned as di- JEFF MULDER recalculation of the judgment. rector, and the company commenced suit Bassford Remele against him alleging breach of fiduciary [email protected]

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Please submit resume, arbitrators working with you to fit the who is interested in developing a prac- transcript and writing sample to: HR@ procedure to the problem — flat fee me- tice with a well-established law firm but wendlaw.com. diation to full arbitration hearings. (612) will consider an attorney with up to three 877-6400 www.ValueSolveADR.org years of experience desiring to make a sssss lateral move. Please email Wendy Ritchi- OFFICE SPACE son with a cover letter and resume at: EXPERT WITNESS Real Estate. [email protected] BRAINERD OFFICE sharing arrangement Agent standards of care, fiduciary sssss with three other attorneys in historic duties, disclosure, damages / lost downtown building serving clients since profit analysis, forensic case analysis, ASSOCIATE ATTORNEY — Litigation 1978. Near Courthouse and Judicial Cen- and zoning/land-use issues. Analysis and Family Law/Employment Law. Far- ter. 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After three to five and firms. www.royginsburg.com, roy@ work ethic to deliver exceptional ser- years of big law experience, you’re think- royginsburg.com, (612) 812-4500. vice to clients and positively influence ing about leaving but aren’t sure you want sssss our shared goals. You should be per- to practice alone. You love legal work, sonable and confident, comfortable in not so much firm management. We’re a MEDIATION TRAINING: Qualify for the the courtroom, be prepared to manage fast-growing boutique firm with clients Supreme Court Roster. Earn 30 or 40 your own cases while working with an who are owner-operated commercial and CLE’s. Highly rated course. St. Paul (612) experienced team and be committed to residential contractors. We have separate 824-8988 transformativemediation.com establishing and maintaining your legal office space for the person wanting his/ sssss practice. Salary commensurate with ex- her own gig and room for the right per- perience and qualifications. 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