Paskert and Kenneh the ‘Severe Or Pervasive’ Harassment Standard in 2020

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

Paskert and Kenneh The ‘severe or pervasive’ harassment standard in 2020

Lillehaug’s lasting legal legacy

A federal misstep on Minn. Stat. §549.191

Covid-19, Trump, and employment immigration A FREE WEEK OF WEBINARS FOR MSBA MEMBERS!

AUGUST 24 - 27

Free! CLE PROGRAM LINE-UP

MONDAY, AUGUST 24 TUESDAY, AUGUST 25 WEDNESDAY, AUGUST 26 THURSDAY, AUGUST 27

8 AM 8 AM 8 AM 8 AM Free and Low-Cost Easy-to-Learn Easy Document Legal Business Resources from Advanced Legal Assembly as Usual the MSBA Research Strategies and Automation (Topic, TBD)

Noon Noon Noon Introduction to Noon Live Replay: Internet Legal Research Unbundled Free and Low-Cost Security Basics (Using the New Tools) Legal Services Resources from the MSBA

® Welcome Anthony S. niedwiecki PRESIDENT AND DEAN

“I’m thrilled to be joining Mitchell Hamline. This school is one of the leading innovators in legal education, and I admire its focus on real-world preparation, commitment to students, and connection to community. I look forward to helping us continue to be a force for justice.”

mitchellhamline.edu/dean OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVII NUMBER VII AUGUST 2020 www.mnbar.org

ON THE COVER PASKERT AND KENNEH 24 The ‘severe or pervasive’ standard in 2020 Minnesota moves forward on workplace harassment; the 8th Circuit doubles down

By SHEiLa EngELmEiEr anD HEatHEr taBEry

4 President’s Page “Ordinary equality” By Dyan Ebert 14 History: The Minnesota LILLEHAUG’S LASTING LEGAL LEGACY Woman Suffrage Association Departed from the state Supreme Court after By Eric W. Weber seven years, Justice David Lillehaug has made a deep and long-lasting mark on Minnesota law. 6 Professional Responsibility By Marshall H. Tanick Challenging clients in challenging times By Susan Humiston

8 Law & Technology Is your data retention policy helping or hurting? 18 By Mark Lanterman A MISSTEP ON §549.191 Why recent federal courts in Minnesota are 10 New Lawyers wrong in refusing to apply Minn. Stat. §549.191 Dear managing partner: The to punitive-damages claims in federal court. view from an associate’s desk By Jeffrey P. Justman, Tom Pryor By Lynae Tucker and Joshua N. Turner

12 Colleague Corner Meet Kyle Willems

33 Notes & Trends Landmarks in the law 30 47 People & Practice COVID-19, TRUMP, AND Member announcements EMPLOYMENT IMMIGRATION 2020 has been a year like no other for 48 Opportunity Market employers and their lawyers. Classified ads By Robert P. Webber and Candelario Arredondo

2 Bench&Bar of Minnesota s August 2020 www.mnbar.org WHEN PERFORMANCE COUNTS

Official publication of the Minnesota State Bar Association Repl Indemnity T www.mnbar.org | (800) 882-6722 Guardianship ff rustees evin Rece ers T Judgment iv SupersedeaO Repl Sheri Indemnity TR Editor Guardianship ff Rece rustees Steve Perry Certiorari evin ers T Judgment iv SupersedeaO [email protected] Repl Sheri Indemnity R Guardianship ff T Art Director atorshipCertiorari evin Rece ers Jennifer Wallace Judgment iv SupersedeaO With over 40 yearsRepl experienceSheri PJT has beenIndemnity Minnesota’s TR Advertising Sales Guardianship ff atorshipCertiorari evin Rece ers Pierre Production & Promotions, Inc. surety bonding specialist. WithJudgment the knowledge, experienceiv Supersedea (763) 497-1778 Repl Sheri Indemnity and guidanceGuardianship law ﬁ rms expect from a bondingff company. T atorshipCertiorari evin Rece ers MSBA Executive Council Judgment iv Supersedea Attachment • Supersedeas • Appeals • CertiorariSheri • ReplevinIndemnity • President Repl f atorshipCertiorari• InjunctionGuardianship • Restrainingvin Order • Judgmentf Rece • Dyan J. Ebert v e Judgment vers Attachment • License Bonds • Trust • PersonalSheri Representative • i President-elect Repl f Indemnity Jennifer A. Thompson Conser • ConservatoratorshipCertiorari •Guardianship Professional Liabilityvin • ERISA f• FidelityRece • v e Judgment v Treasurer Attachment i Repl Sheri Indemnity Paul D. Peterson Conser Locallyatorship ownedCertiorari and operated.Guardianship Same day service with in house fauthf ority!Rece v evin Judgment Secretary Attachment Sheri Paul Floyd Repl f Indemnity Conser 121atorship SouthCertiorari Eighth StreetGuardianship Suite 980, Minneapolis,vin MN 55402 f rustees New Lawyers Chair v e Judgment T Kyle Willems AttachmentIn St. Paul call (651) 224-3335 or Minneapolis (612) 339-5522Sheri O Repl TR Supersedea ConserFax: (612) atorship349-3657Certiorari • [email protected] • www.pjtagency.com Chief Executive Officer v evin ers Cheryl Dalby Attachment iv Repl Publications Committee Conser atorshipCertiorariGuardianshipRece Indemnity Chairperson Attachment 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 August 2020 s Bench&Bar of Minnesota 3 President’sPage | BY DYAN EBERT

“Ordinary equality”

ugust 2020 marks the 100th anniversary of a historic change to the U.S. Constitu- tion, the ratification of the A19th Amendment. The substance of the amendment—a mere 28 words— provides “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” As Carrie Chapman Pratt, a prominent figure in the women’s suffrage movement, noted, “The vote is the emblem of your equality, women of America, the guarantee of your liberty.” While the battle for the right to vote actually began many years before, the 1848 Seneca Falls convention marked a turning point in the women’s suffrage movement. The convention resulted in the adoption of the “Declaration of Sentiments,” which called for equality Minnesota Woman Suffrage Group at Headquarters, 1917 – Library of Congress, Harris & Ewing Collection between the sexes, including the right to vote. Over the next seven decades, suffrage supporters tirelessly lectured, What is often overlooked about this ing the importance of protecting this wrote, marched, lobbied, and practiced historic event, however, is that while the “emblem of equality.” civil disobedience in an effort to secure amendment opened the door for women One way lawyers can help protect that right.1 The 19th Amendment was to share their voices in the political pro- the right to vote is to volunteer as elec- officially certified by the Secretary of cess, the harsh reality is that it did little tion judges. According to the Secretary State on August 26, 1920. With its to advance this same opportunity for of State’s Office, Minnesota requires ratification, the face of the American women of color in our country. After the approximately 30,000 election judges electorate was forever changed. In the amendment’s passage, a number of voter to work at the roughly 3,000 polling November 1920 elections, more than 8 suppression measures persisted or were places for each statewide election. Elec- million women newly implemented across the coun- tion judges perform many functions, in the United try—particularly in the south, which from greeting and registering voters to States voted for limited Black women’s access to ballot distributing ballots and helping with vote the first time.2 boxes by means that included poll taxes, tabulation. The need for election judges The impor- literacy requirements, and grandfather in 2020 is anticipated to be greater than tance of the clauses. Indigenous women and Latinas ever due to the challenges created by 19th Amend- met a similar fate. The struggle for voter covid-19. Many individuals who have ment has not equality for these citizens persisted for previously served as election judges are been forgotten. decades despite the passage of the 19th retirees. Because individuals in this age In fact, a Gallup Amendment, and similar although less group are more vulnerable to covid-19, it DYAN EBERT poll conducted overt efforts aimed at limiting poll access is likely to affect their ability to serve in is a partner at the at the end of the for people of color persist today. the upcoming primary election in August central Minnesota 20th century re- As we look toward the 2020 election, and the general election in November. firm of Quinlivan & vealed that pas- I firmly believe that as lawyers we have If you are able and willing to serve as Hughes, P.A., where sage of the 19th a unique opportunity to play an impor- an election judge, I encourage you to she served as CEO Amendment was tant role in protecting, advocating for, contact the Secretary of State’s Office from 2003-2010 and observed to be and highlighting the significance of the for more information. The MSBA is cur- 2014-2019. She also “one of the most right to vote, not just for women but for rently exploring options for securing CLE served on the board of important events all eligible voters. While lawyers clearly credit for special training that may be of- directors of Minnesota in the century,” have divergent positions on political fered to attorneys interested in this role; CLE from 2012-2019. second only to issues and candidates, there is (or should please watch for additional information World War II.3 be) a universal interest among us regard- on this issue in the coming weeks.

4 Bench&Bar of Minnesota s August 2020 www.mnbar.org As lawyers we have HISTORY: a unique opportunity to The Minnesota Woman play an important role in Suffrage Association protecting, advocating By Eric W. Weber for, and highlighting the

significance of the rom 1881 to 1920, the Min- session ended. Even if it had passed right to vote, not just nesota Woman Suffrage Asso- the House, however, the voters of ciation (MWSA) struggled to Minnesota would have had to approve for women but for secure women’s right to vote. it before it became law. FIts members organized marches, wrote After the failure of the 1893 amend- all eligible voters. petitions and letters, gathered signa- ment, the movement continued. How- tures, gave speeches, and published ever, the MWSA was unable to build pamphlets and broadsheets to force on its earlier success. The MWSA and the Minnesota Legislature to recognize its ally, the Political Equality Club, Even if CLE credit is not an option, their right to vote. Due to their ef- placed women’s suffrage before the please consider serving in this impor- forts, the legislature approved the 19th state Legislature every session. Each tant role. Amendment in 1919. time, the bill either died in committee Alice Paul, another instrumental In the 1870s, women across Minne- or was defeated. leader in the women’s suffrage sota organized local women’s suffrage During the 1910s, the move- movement, observed that while groups. In 1875, the Minnesota Leg- ment picked up momentum again. In “[m]ost reforms, most problems islature recognized women’s right to 1914, Clara Ueland organized a parade are complicated... there is nothing vote in school board elections. Many through Minneapolis of over 2,000 complicated about ordinary equality.” women, however, wanted to vote in suffrage supporters. Ueland became By all accounts, the effort required all elections. Seeing the need for a MWSA president that same year. This to secure passage of the 19th statewide agency, 14 women formed event gave the movement renewed Amendment took an extraordinarily the MWSA. Among the founders attention. During this period, the long time and was extremely were Harriet Bishop and Sarah Burger MWSA had to contend with a rival complicated. I must admit that, like Stearns. Stearns became the organi- organization, a Minnesota branch of Paul, I find it odd that it would take zation’s first president. By 1882, the the National Women’s Party (NWP). so long to achieve such “ordinary MWSA had grown to 200 members. The NWP was more radical than the equality” for women. Similarly, it In 1885, MWSA president Martha Ri- MWSA. It was much more likely to troubles me that there remain so pley convinced the American Woman take direct action, such as hunger many other ways in which our society, Suffrage Association (AWSA) to hold strikes, than the MWSA. Even though including the legal profession, is still their annual convention in Minnesota. they disagreed on tactics, the two or- lacking in equality for women. But This national event demonstrated the ganizations often worked together. I am encouraged by the significant importance of the MWSA. It also drew By 1919, 30,000 women across the strides that have been made in the attention of Minnesota’s male law- state officially belonged to local suf- this regard and the clear desire of makers. The MWSA eventually be- frage associations. They joined the many individuals and organizations, came a chapter of the National Ameri- MWSA, the NWP, and other organi- including the MSBA, to continue to can Woman Suffrage Association zations. Their numbers and continued work toward gender equity. s (NAWSA), which formed in 1890. activities convinced lawmakers to act. In 1893, the MWSA convinced In 1919, the Minnesota Legislature the Minnesota Senate to take up recognized women’s right to vote Notes women’s suffrage. President Julia in presidential elections. The same 1 If you are interested in learning more Bullard Nelson worked with Ignatius year, the Legislature ratified the 19th about the women’s suffrage movement, Donnelly, a Populist state senator. Amendment. It did not take effect un- I highly recommend the 2004 HBO film The Populists regularly supported a til 1920, however, when the required Iron Jawed Angel. Albeit historical fiction, women’s suffrage plank. Nelson herself two-thirds of the states approved it is very informative and demonstrates the was a Populist school superintendent it. With their right to vote secured, great sacrifices made by supporters of the candidate in 1894. Nelson and the MWSA became the Minnesota movement to secure passage of the 19th Donnelly initially sought the vote League of Women of Voters. On the Amendment. for women in municipal elections. lawn of the Minnesota State Capitol is 2 See https://www.history.com/topics/womens- However, the Senate went further. a memorial to the MWSA. s history/19thAmendment-1 (last accessed Its members voted to remove the 7/9/2020); https://www.archives.gov/exhibits/ word “male” from the state’s voting Editor’s note: This piece is reprinted featured-documents/amendment19 requirements. The bill passed 32-19. from the Minnesota Historical Society’s (last accessed 7/9/2020). However, this change did not pass the MNopedia (mnopedia.org), an online 3 https://www.gallup.com/poll/3427/most-im- House. That chamber did not have encyclopedia of state history, under a Cre- portant-events-century-from-viewpoint-people. time to take it up before the legislative ative Commons license. aspx (last accessed 5/27/2020). www.mnbar.org August 2020 s Bench&Bar of Minnesota 5 ProfessionalResponsibility | BY SUSAN HUMISTON

Challenging clients in challenging times

e all know these are not the typical halcyon days n When a matter is likely to involve litigation, it may be nec- of summer. Between the continuing covid-19 essary to inform the client of forms of dispute resolution that pandemic, community wounds from George might constitute reasonable alternatives to litigation. Floyd’s death, and the economic recession, n Where consultation with a professional in another field is peopleW are struggling in many ways. Recently I was talking with something a competent lawyer would recommend, the lawyer Joan Bibelhausen, the executive director of Lawyers Concerned should make such a recommendation. At the same time, a for Lawyers, and she suggested an article on a topic she knows lawyer’s advice at its best often consists of recommending a some lawyers find particularly challenging these days: clients course of action in the face of conflicting recommendations and boundaries. Joan approaches this topic from a wellbeing from experts. perspective; I will address it from an ethics perspective. The preamble to the Minnesota Rules of Professional Con- Boundary issues duct (MRPC) identifies four main representational functions All this probably seems straightforward enough. Because performed by attorneys. Most people understand that lawyers we are problem solvers at heart, however, our role as advisor act as advocates for their client’s interests and negotiators on can lead to blurred lines and boundary issues with clients. This their client’s behalf, and these are two of the four roles set out may be particular true in times of upheaval. It’s very difficult to in the preamble.1 Lawyers also act as evaluators of their client’s give candid advice that may be unpalatable to someone who is legal affairs. The fourth function that lawyers are expected already struggling. Perhaps this means you put off that difficult to perform is to serve as counselor or advisor to their clients. conversation. Time passes and it becomes even more difficult Often overlooked is Rule 2.1, MRPC, which provides good to have that conversation, because you also have to acknowl- guidance regarding this role. edge your lack of diligence in not calling sooner. No matter how many times we tell ourselves that bad news does not get The advisor’s duty better with age, the self-talk does not make it easier to pick up What does it mean to be an advisor consistent with the the phone. While most clients appreciate your candor, some do ethics rules? Rule 2.1 provides that “[i]n representing a client, not—a fact that should not deter you from your ethical obliga- a lawyer shall exercise independent professional judgment and tion to give that candid advice. Nothing good comes from render candid advice. In rendering advice, a lawyer may refer attempting to shelter a client from news they may not like. not only to the law but to other considerations such as moral, Challenging times lead to other forms of boundary issues. economic, social and political factors Sometimes lawyers, when business slows down, take on matters that may be relevant to the client’s they know in their heart they should not undertake. Good cli- situation.” The comments to Rule 2.1 ent screening remains as important today as at any time. Listen expand on what this looks like. to those internal warning signs. Are you lawyer number three? Is the main complaint about prior counsel fee-related? Are you n In general, a lawyer is not expected to having a difficult time getting enough information to really give advice until asked by the client. understand the status of the matter? Even though business may n A lawyer ordinarily has no duty be slow, think very carefully before you ignore your instinct just to initiate investigation of a client’s because someone is willing to pay you. SUSAN HUMISTON affairs or give advice that the client has Another boundary issue is the urge to discount your services is the director of the indicated is unwanted. in challenging times. So many people are struggling, and of Office of Lawyers n A lawyer should not be deterred from course it is difficult to afford a lawyer. I have been fortunate to Professional giving candid advice by the prospect make a good living and I would hate to have to pay any rate Responsibility and that the advice will be unpalatable to I have ever charged for my legal services. While you may be Client Security the client. tempted to discount your fees, think twice before doing so. A Board. Prior to her n Advice couched in narrow legal bad financial arrangement between a lawyer and client can end appointment, Susan terms may be of little value to a client, poorly, and all too often proves the maxim that no good deed worked in-house especially where practical considerations goes unpunished. This is not to say that financial adjustments at a publicly traded such as cost or effects on other people should not be made as a courtesy, given the extraordinary times company, and in are predominant. in which we find ourselves; just be careful. private practice as a n When a request is made by a cli- Zealous advocacy has its own boundary challenges. Some- litigation attorney. ent inexperienced in legal matters, the times in discipline cases we see lawyers who are so invested in

SUSAN.HUMISTON lawyer’s responsibility as advisor may their client’s matter that they forget their own role, as stated in @COURTS.STATE.MN.US include indicating that more may be in- Rule 2.1, MRPC: to exercise independent professional judg- volved than strictly legal considerations. ment. Should you really be supporting your client’s desire to

6 Bench&Bar of Minnesota s August 2020 www.mnbar.org leave no stone unturned and only rubble behind you? As the to deliver bad news, or nothing can really be done to help. comments to Rule 2.1 suggest, have you discussed with your If you are losing money on the deal, it becomes even more client reasonable alternatives? I know it’s nice to have someone challenging. If you have not established good boundaries, it paying you to turn over all those stones, but is that consistent can be particularly difficult. Each time I speak on this topic, with the exercise of your independent judgment? And have you my advice is to pick up the file you hate that sits on the corner provided your candid advice on the topic? The first comment of your desk and just face it, warts and all. Sometimes, if to Rule 1.3, MRPC, reminds us that “[a] lawyer is not bound… boundaries are really an issue, the best thing you can do for to press for every advantage that might be realized for a client.” yourself and your client is to withdraw, provided you can do so Pursuing a matter with “commitment and dedication” does not consistent with Rule 1.16, MRPC. mean no holds barred, and it certainly does not include offen- We have an ethical duty as advisors to exercise independent sive tactics or preclude courtesy and respect toward all. professional judgment and render candid advice. This is not This is always true, but it takes on particular import in these an easy task, and can be particularly hard in challenging times. times when almost everyone is struggling in some manner. Please make sure you are taking care of your own well-being Do not forget to afford others the courtesies you hope will and maintaining good client boundaries. If you need assistance, be afforded to you. Your opposing counsel may be caring for be sure to check out the resources of Lawyers Concerned for stir-crazy minor children, bad-tempered teens, or parents who Lawyers at www.mnlcl.org. (And remember, all communications are not taking the care they should. Or your opposing counsel with Lawyers Concerned for Lawyers are confidential, and Rule may be alone, sad, and feeling disconnected. I know your client 8.3(c), MRPC, exempts communications with lawyer assistance might not care, but you have professional discretion. Are you programs from the duty to report professional misconduct.) exercising it wisely and appropriately? They have several resources related to covid-19 and well-being. Boundaries are necessary not only to manage our own You also can always call our ethics hotline at 651-296-3952. well-being but as a precaution against complaints and We are here to help you navigate these boundaries ethically. s discipline. Each year the most frequently violated rules are Rule 1.3, MRPC, on diligence, and Rule 1.4, MRPC, on Notes communication. This makes sense. It’s hard to force yourself 1 See also Martin Cole, The Lawyer as Advisor, Minnesota Lawyer, at to work on a file where the client is a challenge, you have lprb.mncourts.gov/articles

Conventional wisdom says, “Don’t put all your eggs in one basket.” MLM thinks otherwise.

Lawyers’ professional liability insurance is all we do. As a result of doing one thing, we do that one thing well.

At MLM “here today, here tomorrow” is more than just a motto and our financial strength is your best defense.

Get a no-obligation quote today! Chris Siebenaler, Esq. 612-373-9641 [email protected] ExclusivEly EndorsEd by thE MsbA www.mlmins.com

Protecting Your Practice is Our Policy.® www.mnbar.org August 2020 s Bench&Bar of Minnesota 7 MN Bench and Bar 2020 Law&Technology | BY MARK LANTERMAN START SAVING TIME AND Cyber risk: MONEY NOW Is your data retention policy WITH FASTCASE helping or hurting?

his past June, tell the client they are several U.S. welcome to pick up law enforce- their file, in its entirety, ment agencies before a certain date wereT the victims of a and that failure to do largescale data breach so will result in the file resulting in 296 GB of being destroyed. It is data being stolen. The also a good practice to National Fusion Center include a ‘consent to Association stated that destroy’ form.”2 This “dates of the files in measure provides an the leak actually span added layer of caution nearly 24 years—from in executing a firm’s August 1996 through data retention policy June 19, 2020.” The while still working to statement went on to minimize the amount Smarter Legal Research. say that personally iden- of data that a firm tifying information was leaked along with Within the legal community, attor- retains on behalf of its clients. other types of files.1 The incident was an neys are held to a high standard when It should also be noted that the digital Free for MSBA Members. act of hacktivism and purportedly sought it comes to protecting client data. And destruction of files is more complex to reveal internal government workings one size does not fit all: It’s complicated than pressing the ‘delete’ button. Best to the public, including details relating knowing when it is appropriate to discard practices should be followed in forensi- Fastcase is the leading next-generation legal research service that puts to its covid-19 response. old client files, especially given ethical cally destroying data, and any files that a comprehensive national law library and powerful searching, sorting, This incident reveals a critical piece requirements and the possibility you’ll are deleted should be recorded for future of cybersecurity strategizing that some- need certain case files in the future. reference. and data visualization tools at your fingertips. times gets overlooked—the value of the Depending on the jurisdiction, retention While regularly reviewing stored data retention policies. Data retention policies—and the length of time at- data and creating a record retention policies outline what types of data are torneys are required to hold on to files— policy is important in mitigating the risks actively being may vary. Furthermore, different types of associated with data breaches, it remains As a member of the MSBA stored, how long cases and circumstances require different true that firms are often required to that data should approaches to file retention. A records store large amounts of data even for you have free access to fastcase. LEARN MORE ABOUT FASTCASE be stored, and retention schedule may spark fears that cases that have closed. The key steps in Login at: www.mnbar.org/fastcase how it should be files will be deleted or discarded before creating a cybersecurity culture focused Live Webinars destroyed or relo- it’s appropriate to do so. But law firms on protecting client data include: access cated at the end are also likely to run the risk of holding controls to sensitive data; encryption; fastcase.com/webinars of that time. Part on to more information than necessary, and employee education and training of the severity of and for an indefinite period of time. about social engineering and the threats On-Demand CLE mnbar.org/fastcase/on-demand-cle MARK LANTERMAN this attack stems Creating a legally sound records associated with the Internet of Things. ® is CTO of Computer from the fact that retention and destruction policy better Appropriate physical security measures Forensic Services. these agencies protects clients from having their infor- should be enacted to best secure physical practicelaw videos A former member were retaining so mation compromised. Essentially, the files and storerooms. While data is a mnbar.org/practicelaw/fastcaseVSgoogle of the U.S. Secret much old data— less data a law firm houses on its servers critical asset in any organization, the mnbar.org/practicelaw/fastcaseLegalResearch Service Electronic data that should (or in their storerooms, in the case of legal community is especially tasked with Crimes Taskforce, have been peri- paper copies), the more able they are to safeguarding its data and managing it Mark has 28 years odically audited manage and secure that data. Commu- with the utmost care. Implementing a Find What You Need, Fast. of security/forensic and reviewed. nicating the records retention policy to data retention policy is an important part experience and While data is a clients helps to protect against prema- of that effort. s has testified in over critical asset, only turely deleting client information. In the 2,000 matters. He is retaining what is File Retention booklet distributed by Notes a member of the MN absolutely neces- Minnesota Lawyers Mutual, it is recom- 1 https://thehackernews.com/2020/06/law-enforce- Lawyers Professional sary mitigates the mended that a letter notifying the client ment-data-breach.html Responsibility Board. risks associated be sent prior to its scheduled deletion 2 https://www.mlmins.com/Library/File%20Reten- with a breach. or destruction date: “The letter should tion%20Booklet.pdf Questions? Contact Mike Carlson at the MSBA at 612-278-6336 or [email protected]

8 Bench&Bar of Minnesota s August 2020 www.mnbar.org

0819 fastcase.indd 1 2/12/20 1:50 PM START SAVING TIME AND MONEY NOW WITH FASTCASE

Smarter Legal Research. Free for MSBA Members. Fastcase is the leading next-generation legal research service that puts a comprehensive national law library and powerful searching, sorting, and data visualization tools at your fingertips.

As a member of the MSBA

you have free access to fastcase. LEARN MORE ABOUT FASTCASE Login at: www.mnbar.org/fastcase Live Webinars fastcase.com/webinars

On-Demand CLE ® mnbar.org/fastcase/on-demand-cle

practicelaw videos mnbar.org/practicelaw/fastcaseVSgoogle mnbar.org/practicelaw/fastcaseLegalResearch Find What You Need, Fast.

Questions? Contact Mike Carlson at the MSBA at 612-278-6336 or [email protected]

0819 fastcase.indd 1 2/12/20 1:50 PM NewLawyers | BY LYNAE TUCKER

Dear managing partner: The view from an associate’s desk

became a lawyer because I didn’t The other side of the bench want to be another millennial living One chief judge saw my potential. I in my parents’ basement. When became a judicial law clerk for five judges I graduated with my bachelor’s across 11 counties. The chief judge helped degree,I journalism was thought to be a shape my expectations of the legal pro- dying art and my journalism degree wasn’t fession and encompassed what I wanted going to help me pay off my private school from a mentor. He taught me about court- student debt. room decorum, forming legal arguments, My experience in private practice and buying a house. Thanks to him, I now began September 4, 2019. Since then I know, rural Iowa has a yacht club. have seen children lose their siblings, at- Every judge who hires a law clerk bears torneys fail to know the nuances of the the cross of direct impact on the quality of applicable law, parents triumph over their the legal profession. Law clerks go on to be addictions, and courts decide the fate of ideal law firm hires. Their skills set them the families. I wasn’t sitting second chair apart from those colleagues who have only observing a partner with the knowledge been in front of the bench. They have and skill-set to prepare me for these re- been behind it. The person a judge hires alities. I was the attorney. Professional ups will see the good, the bad, and the ugly of and downs experienced while represent- legal practice. Law clerks mimic what they ing heartbroken parents were a reality of know and what they see. If informality and my first court-appointed contract. bare bones filings are commonly accepted, Looking to the end of my law school the law clerk and soon-to-be new lawyer career, I applied for nearly 20 clerkships, is shoved down an embankment of low most of which did not want me. Trial team expectations, lack of knowledge, and un- and law review were not on my resume. professional informality. My first clerkship Thankfully, my clerkship experience interview required taught me high expectations of practice. I me to travel to learned how to choose my weapon—pen Hawaii. After my or speech. When both are ripe for appli- arrival, the judge cation, timing is key. The expectations of told me his sole a judge directly model the quality of ad- interest in me vocacy in the room, whether it’s in cham- was curiosity. He “A good lawyer bers or a courtroom. Stiff black suits and wanted to know a level demeanor at counsel table are not LYNAE TUCKER what a girl from knows the law; just formalities; sometimes they are the is an associate South Dakota only thing that persuades clients to trust attorney at Costello, wanted from a a clever one takes their lawyer. Carlson, Butzon clerkship in a state In my year as a law clerk, strong legal & Schmit, LLP in so far from home. I the judge to lunch.” arguments often crossed my desk. I wrote Jackson, Minnesota. did not know how rulings addressing multiple issues of con- She practices estate to tell him I would — Mark Twain stitutional law. The chief judge corrected planning, real estate, clerk anywhere me when I was wrong. He encouraged me elder law and civil that would see me when I was right. This law review reject litigation. as an asset rather left her post having written over 500 pag-

[email protected] than a law review es in one year. reject.

10 Bench&Bar of Minnesota s August 2020 www.mnbar.org Moving on Samantha Berglin, a public defender in Clay County, found her It was not long until the sun set on my days as a law clerk. passion for public defense prior to attending law school and attri- An “outstate” firm found me. At the advice of the judge who butes her passion in part to the mentorship she has received from mentored me, and with the support of the partners at my small the chief public defender and the intern supervisor in her office. firm, I took a county contract as a parents’ attorney. “Supervisors have to try to get to know the people they in- On my first day of practice, I had six open files and a high terview or hire and avoid ‘cookie cutter’ interview questions,” number of court dates. During my first week of practice, I was Berglin notes. “Ask questions like ‘who is your hero and why?’, in court on two matters. In the first month, I appeared in court or ‘what motivates you or what do you do when you are not at two days a week. work?’” According to Berglin, the happiness of a new lawyer— Clerking taught me two things: (1) attorneys must respond and the employer’s best chance of retaining them—comes from to the unpredictable, and (2) attorneys should not be afraid of a supervisor who shows they are interested in the new lawyer the courtroom. first, and in filling office space second. Child protection law is an area characterized by unpredict- Kelsey Knoer is an associate at Boyce Law Firm. Prior to go- ability and instability. The platform on which these parents ing into private practice, she clerked for the United States Dis- stand moves like tectonic plates under the earth’s crust. Case trict Court in South Dakota, and worked for the United States law, statutes, administrative rules, and bench books intersect Department of Defense, Office of General Council in Arlington, with chemical dependency, poverty, mental illness, illiteracy, Virginia as a legal extern. Asked what advice she would give law and heartbreak, causing earth-shattering results. Each day in firms about hiring associates, she states, “Don’t just tell me what court there is a surprise. to do. Tell me why you do it.” One thing my clerkship did not teach me was how to utilize Knoer suggests that partners redline the changes they make staff, manage phone calls, and console clients all while learning a before walking a new associate through each change with an complex, always changing area of the law. Court-appointed work explanation. “Don’t just change them and ship the documents was baptism by fire, and it worked. off,” said Knoer. “Explain ‘is it about style or is it about what you Just as a judge paints the landscape of decorum, a law firm think the judge or the client will like?’ partner sculpts zealous advocacy and workplace competency. “So many upper-level attorneys take the decisions they make The ideal associateship straddles the fine line between depen- for granted,” she goes on, “because they’ve been making them dency and autonomy. for so long. But unless I know why they’re making a decision, I will never know when to make that decision again.” Some advice for not-new lawyers Abbie Olson, an attorney at the Maschka, Riedy, Ries and If I could write a letter to managing partners across Minnesota, Frentz law firm, says, “Hiring managers should take into con- it would begin: sideration that many new associates do not have networking or marketing experience and may have issues adhering to the Dear Managing Partner, old standards.” The old standards include things such as being If you hire me, you will set the standard of what I expect expected to attend a firm- or bar association-sponsored happy from my profession. How you prepare a case, what cases hour or events that happen after hours or on weekends. you let me work on, whether you look at the rules or rely “It was always very difficult for me to attend happy hour or on your memory. I am taking note. I will practice like you. evening events,” she notes, “because it meant I had to find and Would you retain you? then pay for a babysitter. I think firms could do a better job of supporting associates in identifying individual marketing and I asked a few other local associate attorneys to offer their two networking possibilities that will work for them. Especially for cents as well. those of us practicing outstate.” s

www.mnbar.org August 2020 s Bench&Bar of Minnesota 11 ColleagueCorner | MEET KYLE WILLEMS

‘Being an advocate for others was extremely appealing’

KYLE WILLEMS is a litigation attorney with Why did you go to law school? We also expanded our diversity com- the law firm Bassford Remele. He practices I always had a fascination with the mittee and are putting together a new tort, business, and construction litigation. He practice of law, but it wasn’t until I pro bono initiative that better connects received his undergraduate degree from the saw the movie A Civil Action that I lawyers with pro bono needs. This is an University of Minnesota and his JD from the knew I wanted to be a litigator. The effort I’m particularly excited about. University of St. Thomas School of Law. Mr. Willems was recently elected chair of the idea of making a career out of being One concern I have is the pan- MSBA’s New Lawyers Section. He has been a an advocate for others was extremely demic’s impact on our ability to remain member of the section since he graduated law appealing. Looking back 10 years a place for students and new lawyers to school and has held various positions, including later I’m happy to report that I love feel comfortable networking and get- social committee co-chair, publications litigating as much as I thought I would. ting a foothold in the legal community. committee co-chair, treasurer, and vice-chair. We’re going to have to get creative [email protected] What’s it been like for you with virtual social engagements and practicing in the pandemic? other things. Fortunately our social Like many of us, I’ve been mostly committee is more than up to the task working from home. Thankfully, of handling this problem. modern technology has made the transition to working from home fairly You’ve been actively involved in easy. Further, the courts and opposing volunteering at the MSBA for a few counsel’s willingness to have things years now. How does bar membership like depositions and hearings remotely serve you in your career? has been extremely helpful. However, The MSBA has been a great I miss the energy of downtown resource and I’ve made a lot of great Minneapolis in the summer and being friendships through it. First and able to interact in person with my foremost, I’ve enjoyed participating in colleagues at Bassford Remele. I also various sections to advocate for issues miss being in the courtroom. I think are important. I’ve also used CLEs and the MSBA’s various legal re- Congratulations on your election as search tools, and I enjoy the network- chair of the New Lawyers Section ing events the MSBA puts on. for 2020-21. Tell us a little about the section’s plans for the year. What’s the best professional advice Thank you. The section doesn’t kick you ever received? into gear until August, but we’ve A law school professor use to already been hard at work to hammer home the point that your address the impact the reputation an attorney is everything. pandemic is having As I continue to grow in my career, I on law students realize truer words have never been and recent spoken. The legal community is small graduates. I and people are not quick to forget anticipate when an attorney makes bad-faith there will be arguments, acts unethically, or is a jerk. broad con- sensus that How do you like to spend your time we continue when you’re not working? to put our I’m currently training for the Twin resources to- Cities “virtual” marathon. It will be ward helping my first marathon, and the training is the members taking up a good amount of time. I also most affect- enjoy going up north, playing hockey, ed by the and pretty much anything else I can do pandemic. outdoors. s

12 Bench&Bar of Minnesota s August 2020 www.mnbar.org MSBA MEMBERSHIP Members Adding value to your career and the profession

15,406 MSBA members come together to learn, to share, to teach, and to advocate for the profession.

Online Sections Legislation Communities 37 practice areas with 90 bills monitored or hundreds of opportunities for actively lobbied at the 4,800 professional development. Minnesota State Legislature. new discussions posted in MSBA online communities. Publications Pro Bono 97,500 20,000+ hours of pro bono services by attorneys and legal thought-leaders read 884 Bench & Bar of Minnesota MSBA North Star members = magazine each month. $24.3 million market value.

Mock Directory Trial Savings $2,000+ 10,000 2,400 estimated annual savings searches per month for members and high through MSBA membership. legal representation on school students participate in MN Find a Lawyer directory. the MSBA Mock Trial program.

Certi cation CLE 12,000+ 425 CLE 125 hours of 695 attendees at Section CLE, hours oered, On Demand CLE. MSBA Board Certi ed networking and social events. including... Legal Specialists.

Reects 2019-20 data

Membership Value = a number that can’t be crunched ustice David Lillehaug’s appointment to the Minnesota Supreme Court by Gov. Mark Dayton in June 2013 set the capstone to a distinguished legal career. Born in Waverly, Iowa, Lillehaug grew up J in Sioux Falls, South Dakota, and later graduated from that city’s Au- gustana University (where his father was a distinguished music professor and band leader) and Harvard Law School. His achievements included working as a top aide to former Vice President Walter Mondale in his unsuccessful campaign for the presidency in 1984, serving about four years as a U.S. Attorney for the District of Minnesota under President Bill Clin- ton, and a solid 15 years in private practice, highlighted by his representation of political figures in contested election recounts—most famously Al Franken in his squeaking recount victory in the 2008 U.S. Senate election, and later Gov. Day- ton in his arduous gubernatorial recount win two years later. Although a staunch DFLer before his elevation to the bench, Justice Lillehaug carved out a reputation there for non- partisan judicial craftsmanship, authoring a number of major decisions that involved a wide variety of issues, along with a smat- tering of concurrences and some notable dissents. His opinions are characterized by clarity, fidelity to the language of statutes and other provisions, deference to legislative and administrative agencies, and aversion to hyper-technicality. He has also used his position on the bench as a bully pulpit, taking a leadership role in confronting stress and burnout in the legal profession. Lillehaug’s Lasting In recognition of his lifelong contribu- tions to the legal community and support for legal scholarship and the profession, Legal Legacy this spring the student-run Law Review at Mitchell Hamline Law School established a Justice David Lillehaug Service Award for significant lifetime achievements. Departed from the state Supreme Court after Stepping down from the bench at the end of July, following his Parkinson’s seven years, Justice David Lillehaug has made a Disease diagnosis about a year ago, the Edina resident, who turned 66 in May, deep and long-lasting mark on Minnesota law plans to continue being active in civic, community, legal, and possibly political activities, along with spending more time with his family—wife Winifred Smith By Marshall H. Tanick and daughter Kara, an attorney herself.

14 Bench&Bar of Minnesota s August 2020 www.mnbar.org His departure this summer provides an held in “good faith” as evidence by the Civil cases opportune occasion to review some of his police. While searching an attorney’s Justice Lillehaug also authored a num- eclectic body of work on that tribunal, office raises “many concerns,” it was not ber of significant decisions in civil cases. although space limitations prevent doing necessary to announce guidelines for such One of the best-known was his ruling complete justice to the scope of his con- occasions because the expedited process this spring upholding the Department tributions. in the lower court, coupled with the lim- of Natural Resources’ (DNR) renaming ited factual record, does not provide an of Lake Calhoun, the largest body of wa- Criminal cases “appropriate occasion” to do so. ter in Minneapolis, to its original Native As a former prosecutor, Justice Lille- The Court, therefore, limited its deci- American appellation of Bde Maka Ska, haug is well-versed in criminal law, a sion to the propriety of the seizure under in Save Lake Calhoun v. Strommen.4 trait he displayed in his decisions for the Minn. Stat. §626.04, which authorizes Writing for the five-member majority, he Court. police to seek an ex parte hearing in co- rejected the claim that a nearly century- Some unusual issues arose in one of ordinating an ongoing investigation. The old law, Minn. Stat. §83A.05 subd. 1, the criminal cases decided by Justice decision was without prejudice to issues bars renaming after more than 40 years. Lillehaug. In State v. Curtis,1 where the that may arise “in the pending criminal That measure only applies to counties, defendant was convicted of first-degree case,” or, for that matter, with respect to not the state, due to a 1937 amendment murder in Ramsey County District Court, potential civil claims. giving the DNR “the power to name and the defendant appealed on two grounds: Another search warrant issue arose rename (bodies of water), places, and 1) a juror who realized during the trial in a non-criminal context in City of geographic figures regardless of the age of that she knew a witness should have Golden Valley v. Wiebesick,3 which their names.” been removed for bias; and 2) the trial involved a question under the search The issue stemmed from requests by court improperly excluded evidence un- and seizure provision of Article 1, §2 of Native American and community activ- der the Spreigl doctrine of an alternative the Minnesota Constitution, regarding ists to replace the designation because its perpetrator who allegedly participated in whether administrative search warrants namesake, John C. Calhoun, was a viru- an unsolved shooting shortly before this for a city to inspect a rental unit lent racist and a slaveholder in the 19th murder occurred. for housing code violations must be century. The case attracted international Writing for a unanimous court, Justice supported by “individualized suspicion” of attention in conjunction with other simi- Lillehaug rejected both claims. While a code violation or can be done on a more lar renaming controversies around the the trial court “could have done more generic basis. Writing for the majority, U.S. The majority decision rejected a extensive questioning” of the juror and Justice Lillehaug deemed the issuance of challenge by a group of more than 300 made specific findings, the absence in the warrant and its ensuing search proper nearby homeowners. Justice Lillehaug the record of any actual bias warranted because the municipality’s housing dismissed concerns by a pair of dissent- upholding the trial court’s discretion code contained reasonable standards in ers—Chief Justice Gildea and Justice G. not to remove the juror. Excluding the establishing the minimum standards for Barry Anderson, the two Republican ap- alternative perpetrator evidence despite issuance of a search warrant to detect pointees on the tribunal—that the deci- the Spreigl doctrine, which permits evi- housing code violations. He rejected the sion would open a floodgate of proposed dence of prior crimes, was not erroneous proposition that a warrant could not be lake name changes by noting any such is- because the defendant “did not show by issued unless there was “individualized sue could be curbed by legislative action clear and convincing evidence that the suspicion” regarding the facility to be restricting “excessive name-changing.” [alternative perpetrator] participated in searched—which, he wrote, would make One of his most notable opinions in that shooting,” which preceded the inci- it more difficult to get such a warrant its effects on the practice of law was his dent in question by about a month. Since for ”routine” inspections and, therefore, decision for a unanimous court in Walsh it was not “‘highly probable’ or even more endanger the public’s health and safety. v. U.S. Bank, N.A.,5 which addressed the likely than not” that the claimed alterna- Because the U.S. Supreme Court has proper pleading standard for civil cases in tive perpetrator was involved in the prior interpreted the search provision of Minnesota. The case involved a default on shooting, the trial court did not abuse its the 4th Amendment to allow for such a mortgage issued for residential property discretion in barring that evidence. searches, Justice Lillehaug felt that there in Minneapolis, which precipitated a One of his final criminal case rulings was no “principled basis to depart from non-judicial foreclosure by the bank occurred in another odd case, involving [that] legal framework” and construe the holding the mortgage. The mortgagor the seizure under a search warrant of the state constitution differently “to protect had brought an action against the bank files of an attorney who represented a pair the privacy, health and safety” of citizens seeking to vacate the foreclosure sale, of clients in an investigation for controlled of the state. which the Hennepin County District substances. In that case, In re K.M. Chief Justice Lorie Gildea and Justice Court dismissed on grounds that its v. Burnsville Police Department,2 he David Stras saw it differently, viewing the lack of specificity warranted dismissal upheld a ruling of the Dakota County search as violating “both the warrant and for failure to state a claim under Rule District Court regarding the seizure of the reasonable requirement of the state 12.02(e) of the Minnesota Rules of Civil the evidence on grounds that it was being constitution.” Procedure.

www.mnbar.org August 2020 s Bench&Bar of Minnesota 15 Rejecting the “plausibility” standard cause the Legislature did not include one. protected from access under the “plain of the U.S. Supreme Court as articulat- The decision drew a dissent from Chief language” of the state election law, Minn. ed in a pair of cases known as Twombley Justice Gildea, joined by Justice Ander- Stat. §201.091, whose specific provisions and Iqbal, Justice Lillehaug wrote that son, who would have required that an on voter privacy trump the general the “standard announced” in those two unfair labor practice “be motivated by position of access under the General cases does not apply to civil proceedings anti-union animus,” which the dissenters Data Practices Act, Minn. Stat. §§13.01, in Minnesota state court because, under deemed lacking in the record. 13.607. He concluded that under those the “plain language” of Rule 8 of the Min- Good faith complaints by tenants statutory provisions, access is only nesota Rules of Civil Procedure, “Min- concerning a landlord’s failure to comply available to data contained in “public nesota is a notice-pleading state,” which with state or local laws or the terms of the information lists” and that other data reflects a “preference for non-technical, lease constitute defenses to an eviction is not accessible unless furnished at the broad brushed pleadings.” On the merits, action, according to Justice Lillehaug’s discretion of the Secretary of State, who the complaint satisfied the “traditional ruling in Central Housing Associates v. had restricted the broad-based requests in interpretation” of the prior case law and Olson.8 The Hennepin County District this case. warranted overturning the dismissal. Court had ruled in favor of the tenants, But the decision had a potential par- Justice Lillehaug also wrote the ma- barring their eviction because the land- tisan hue, as the four other Democratic jority decisions for the Court in a pair of lord retaliated following their “good faith” appointees to the Court, all placed there significant public sector employment law complaints about defects in the housing, by ex-Gov. Dayton, joined in the major- cases resolving issues of first impression. but the appellate court had reversed. ity decision over the dissenting opinion of In Ford v. Minneapolis Public Schools,6 Writing for the majority, Justice Lillehaug two Republican appointees, Chief Justice he held that the Minnesota whistleblower held that Minn. Stat. §504B.441, which Gildea and Justice Anderson, who would statute, Minn. Stat. §181.932, is subject establishes a statutory retaliation defense, have affirmed the lower court decisions to a six-year statute of limitations. He is “ambiguous,” but a retaliation defense under the “central tenet” of accessibility reasoned that the limitations period un- exists under common law. Its applicability in the Data Practices Act. der Minn. Stat. §541.05, subd. 1(2) for under common law sustained the jury’s causes of action for a liability created by verdict of improper eviction. Commitment & consequences statute is applicable, rather than the two- Chief Justice Gildea, joined again by Like his colleagues, Justice Lillehaug year limitation period under §541.07 (1) Justice Anderson, dissented, declining occasionally differed from the reasoning for personal injury torts. The basis of his to recognize a common law retaliation of the other jurists in concurrent opinions ruling was that because the whistleblower defense because the Legislature had not or argued for a different outcome in cause of action was not recognized in chosen to create one by statute. dissent. common law, it was a creature of statute. As one who knows his way around the One instance came in Binkley v. Allina He dispensed with considering the merits political arena, Justice Lillehaug authored Health System,10 a medical malpractice of policy arguments for a lesser limitations the majority decision for the court this action brought by a mother for her son’s period, which, he noted, is for the Legisla- April in Cilek v. Office of the Secretary death, after he was refused admittance ture to consider, “not the judiciary.” of State,9 holding that the Secretary of to an inpatient mental health treatment In Firefighters Local 4725 v. City State may withhold various data about facility. The Court, in a decision by Justice of Brainerd,7 he held that the abroga- voters from the public. The decision re- Anderson, held that the hospital was tion by the City of Brainerd of a collec- versed a ruling of the Minnesota Court of entitled to immunity for its decision not tive bargaining agreement with the city’s Appeals, which had affirmed a decision to admit the son to the facility, under the firefighters union in the early stages of a of Ramsey County Judge Jennifer Frisch Minnesota Commitment and Treatment three-year contract constituted an unfair (who, coincidentally, had been named to Act, Minn. Stat. §253B.23 subd. 4. labor practice under the Public Employ- the appellate tribunal by Gov. Walz ear- While agreeing grudgingly with the ment Labor Relations Act (PELRA), lier the same week). decision, Justice Lillehaug noted that the Minn. Stat. §179A.13 (2). Affirming the The case involved requests for access statutory terminology granting immunity decision of the Minnesota Court of Ap- by a conservative interest group to a bevy from any “civil or criminal liability under peals, which overturned a ruling of the of information about the status of some this chapter, (emphasis supplied)” does Crow Wing County District Court, he 5.4 million persons in the statewide data not contain an “express abrogation” of stated that a “plain reading” of the statute base, as well as reasons for challenges to common law claims regarding medical does not turn on whether the city acted their registration, and information about malpractice. Since that issue had not to “intentionally interfere” with the rights voters not currently registered. been argued by either party, and the of its labor union, and he declined to read Writing for the five-member majority, opinion of the Court does not foreclose a “motive element” into the statute be- Justice Lillehaug held that the data was such an argument, he joined the majority,

16 Bench&Bar of Minnesota s August 2020 www.mnbar.org with the understanding that this “issue under the applicable statute, Minn. Stat. Notes awaits another case.” §609.13 (1), §609A.02 (3)(a)(3). The 1 905 N.W.2d 609 (Minn. 2018). The recurring issue of advising crimi- majority reasoned that the underlying 2 940 N.W.2d 164 (Minn. 2020). nal defendants of the potential immigra- burglary offense was “not one of the 3 899 N.W.2d 152 (Minn. 2017). tion consequences of a criminal convic- felonies” listed in the statute that allows 4 2020 WL 2465541 (Minn. tion, including deportation, attracted a for expungement and the treatment of 5/13/2020). concurrence from Justice Lillehaug in his conviction as a misdemeanor does not 5 851 N.W.2d 598 (Minn. 2014). Sanchez v. State.11 The Court, in a deci- yield a different result. 6 874 N.W.2d 231 (Minn. 2016). sion by Justice Stras, affirmed a decision But Justice Lillehaug, joined by Justices 7 934 N.W.2d 101 (Minn. 2019). by the court of appeals, which had upheld Chutich and McKeig, viewed the matter 8 929 N.W.2d 398 (Minn. 2019). a Rice County District Court ruling that differently. He would have interpreted 9 941 N.W.2d 411 (Minn. 2020). denied a post-conviction effort to with- the statute to allow for expungement and 10 877 N.W.2d 547 (Minn. 2016). draw a guilty plea to a third-degree crimi- for redacting the conviction, noting that 11 890 N.W.2d 716 (Minn. 2017). nal conduct sexual charge due to alleged “[b]y shutting the door to expungement 12 891 N.W.2d 602 (Minn. 2017). failure of counsel to advise the defendant for people like S.A.M. in these circum- 13 877 N.W.2d (2016). of the immigration consequences. stances, the court reduces opportunities The majority held that the general for rehabilitated offenders to become pro- warning given to the immigrant of pos- ductive members of society.” This was, MARSHALL H. sible immigration consequences did not he felt, a “harsh result” that ought to be TANICK is an amount to ineffective assistance of coun- clarified by the Legislature in order to “re- attorney with the sel—a decision in which Justice Lillehaug open this door.” Twin Cities law concurred, “but on a different ground.” He also dissented in Pfeil v. St. Mat- firm of Meyer The defendant’s guilty plea to the third- thew’s Evangelical Lutheran Church,13 Njus Tanick. degree offense made it “clear as a bell” a libel action arising from the ouster of a He is certified that he would be deported, a process that couple from church in Worthington that as a Civil Trial started the very same day that he was sen- led the Court to invoke the “ecclesiasti- Specialist by the Minnesota State tenced. This invoked an “obligation” on cal abstention” doctrine, which bars in- Bar Association, and frequently the part of counsel to advise him of the quiry into religious doctrines. The tenet argues cases before the Minnesota consequence. However, the trial court’s invoked by Justice Anderson’s majority Supreme Court, including finding that the defendant had been opinion warranted upholding dismissal of representation of the prevailing union advised by counsel that he “would be the lawsuit by the Nobles County District in one of the decisions, Firefighters deported” as a result of his plea was not Court, which had been affirmed by the Local 4725 v. City of Brainerd, referred clearly erroneous and, therefore, satisfied appellate court. to in this article. He would like to upholding the denial of the post-convic- But Justice Lillehaug, joined by Chief thank his colleague, Teresa J. Ayling, tion petition. Justice Gildea, disagreed, bemoaning that who worked on that case with him the majority’s decision “creates what is, and conducted research in preparing Dissenting decisions essentially, an absolute privilege to de- this article. Justice Lillehaug fell a vote short fame” in church disciplinary proceedings, [email protected] of convincing the Court to allow regardless of “how false and malicious” expungement of a second-degree the statements are, and “no matter how burglary conviction in State v. S.A.M.12 much the victim is damaged.” He and the The applicant’s conviction was for a chief justice would have allowed some of felony but deemed to be a misdemeanor the defamation claims to proceed, based because the imposition of the sentence upon “neutral principles of law” that do was stayed and the applicant was not lead to “excessive entanglement” released from probation. The Olmsted with religious precepts. County District Court nonetheless denied a request for expungement, Conclusion and the appellate court affirmed, as These decisions are but a few of those did the Supreme Court in a decision authored by Justice Lillehaug in his seven written by Justice Anderson, holding years on the Court. They do, however, re- that the circumstances did not make flect the variety of cases he encountered the applicant eligible for expungement and the vibrancy of his work. s

www.mnbar.org August 2020 s Bench&Bar of Minnesota 17 18 Bench&Bar of Minnesota s August 2020 www.mnbar.org A MISSTEP ON §549.191

Why recent federal courts in Minnesota are wrong in refusing to apply Minn. Stat. §549.191 to punitive-damages claims in federal court

By Jeffrey P. Justman, Tom Pryor and Joshua N. Turner

n 1986, the Minnesota Legislature applied in federal court. If federal courts laws that would create incentives for dif- passed an important tort reform in Minnesota continue to read Shady ferent results between federal and state law that limited abusive pleading Grove otherwise, the 8th Circuit should courts within the same state. practices like frivolous demands take the opportunity to correct them. Erie’s framework requires courts to ap- for punitive damages. The statute ply a two-part test. First, courts examine thatI accomplishes this goal, Minn. Stat. The legal case for applying §549.191 whether a given state law (like §549.191) §549.191, prohibits pleading punitive directly conflicts with any federal law or damages in an initial complaint, and re- For over 30 years, section 549.191 has rule.8 If the state and federal laws may quires a motion for leave to add them lat- applied in federal courts in Minnesota be reconciled, federal courts should ap- er, upon a heightened showing. For over under the Erie doctrine. ply them both. If they are incompatible, 30 years, federal courts in Minnesota ap- Since 1986, a party seeking punitive however, the court will apply the federal plied the requirements of this statute to damages in Minnesota cannot do so in its law or rule so long as it does “not abridge, cases brought in federal court—just as initial pleading.3 Instead, only later may enlarge or modify any substantive right” Minnesota state courts (obviously) ap- that party move to amend the pleading created by state law.9 plied the statute to punitive-damages re- to claim punitive damages, and when she For nearly three decades, federal dis- quests made in state court. does, she must make out a prima facie case trict courts in Minnesota have applied Remarkably, however, this well-settled for punitive damages.4 Passed as part of Erie’s two-part test to hold that §549.191 rule has come into question in recent a major tort reform law, §549.191 creates applies to punitive-damages claims in years. Beginning in 2017, some judges common-sense gatekeeping rules that federal court, just like it does to the same have held that §549.191 does not apply help prevent frivolous and abusive plead- claims in state court.10 One of the first in federal court and thus that a party ing practices. and most persuasive district court deci- seeking punitive damages in federal court Since §549.191 was enacted, those sions came from Minnesota’s longest- need not satisfy the additional require- faced with punitive damages in Minne- tenured federal judge, Edward Devitt. In ments the Minnesota Legislature com- sota state courts have universally received Kuehn v. Shelcore, Inc., Judge Devitt deter- manded must be applied in state court. the protection §549.191 affords. And for mined that there was no “direct conflict” The basis for this about-face? A fractured, nearly 30 years, those faced with punitive between section 549.191 and any Federal 4:1:4 Supreme Court decision in a case damages in Minnesota federal courts en- Rule of Civil Procedure, because all po- called Shady Grove Orthopedic Assocs., joyed the same protections. The reason tentially conflicting rules could “peace- P.A. v. Allstate Ins. Co.1 But Shady Grove is simple, and hearkens back to a near- fully co-exist” with section 549.191, just did not even purport to change how to century-old line of cases known as the as the substantially identical Minnesota decide whether state laws should apply in Erie doctrine. Rules of Civil Procedure do with sec- federal court under what is known as the As most lawyers learn in law school, tion 549.191.11 Further, not applying Erie doctrine. the Erie doctrine grew out of Erie Railroad section 549.191 in federal court would Now there is a growing class of Min- Co. v. Tompkins, 304 U.S. 64 (1938), and encourage forum-shopping. Judge Devitt nesota cases holding that §549.191 does holds that “federal courts sitting in diver- persuasively applied the Erie doctrine to not apply in federal court; within the last sity apply state substantive law and federal conclude that the “accident of diversity few months, other judges have joined this procedural law.”5 Of course, “classif[ying] of citizenship” would not permit a plain- chorus, such that one court described a law as ‘substantive’ or ‘procedural’ for tiff to achieve a result in federal court the “large majority” of Minnesota federal Erie purposes is sometimes a challenging that would otherwise be unavailable to it judges as refusing to apply §549.191 in endeavor,” and the application of the Erie in Minnesota state court.12 federal court.2 These courts are wrong. doctrine has thus presented difficulties The 8th Circuit, while not directly an- Nothing in Shady Grove changed the Erie for the Supreme Court and lower federal alyzing §549.191 under Erie, has implicitly analysis, which federal courts in Minne- courts.6 But the fundamental purposes approved the analysis from Kuehn and the sota have faithfully applied for decades. of the doctrine have remained constant: decisions that followed it. In both Gam- This article explains why federal courts discouraging “forum-shopping” and en- ma-10 Plastics v. American President Lines, should buck the recent trend and go back suring equitable “administration of the Ltd.13 and Bunker v. Meshbesher,14 the 8th to faithfully applying the decades of prec- laws.”7 Thus for example, the Erie doc- Circuit concluded that §549.191 applied edent holding that §549.191 should be trine frowns upon interpretations of state in federal court and affirmed lower court www.mnbar.org August 2020 s Bench&Bar of Minnesota 19 decisions that denied leave to amend to class actions seeking statutory penalties court under Erie. Magistrate Judge Noel, add punitive damages claims because could be applied in federal court. Justice for example, seized upon language in the movants in those cases did not sat- Scalia, writing for four justices, applied Shady Grove and explained that §549.191 isfy §549.191.15 Bunker, for example, held the “familiar” two-step framework from and Federal Rule 15 “both address the that the “clear and convincing” standard the Court’s Erie decisions, asking whether same subject matter,” i.e. amending a of proof under §549.191’s sister statute, the “federal and state rules can be recon- complaint.29 Citing language from both §549.20, is “implicitly incorporated into ciled” and if they cannot, “whether the Justice Scalia’s and Justice Stevens’s opin- the requirement that the movant pres- Federal Rule runs afoul of §2072(b)[, the ions, Magistrate Judge Noel concluded ent a prima facie case of willful indiffer- Rules Enabling Act].”24 Justice Scalia’s that Rule 15 “answers the question in ence” set forth in §549.191.16 Gamma-10 plurality concluded that Rule 23 and the dispute,”30 and is “sufficiently broad to analyzed the “policy considerations” in New York law could not be reconciled be- control the issue before the court.”31 And §549.191—to “prevent frivolous punitive cause Rule 23 created a “categorical rule he concluded that Rule 15 and §549.191 damage claims by allowing a court to de- entitling a plaintiff whose suit meets the “conflict because the Minnesota proce- termine first if punitive damages are ap- specified criteria to pursue his claim as a dural rule would not allow for the amend- propriate”—and held that federal courts class action,” while the New York law on ment absent affidavits establishing prima “may not allow an amendment [to add the other hand categorically prohibited a facie evidence of deliberate disregard for punitive damages] where the motion and class action if the plaintiff sought a cer- the rights and safety of others, where the supporting affidavits do not reasonably al- tain type of remedy, even if all of Rule 23’s federal rule has no such procedural re- low a conclusion that clear and convinc- criteria were otherwise satisfied.25 quirement.”32 Other courts have followed ing evidence will establish the defendant Magistrate Judge Noel’s analysis, relying acted with willful indifference.”17 Neither on similar language from Shady Grove.33 Bunker nor Gamma-10 expressly cited the Still others, however, have hewed to “Erie doctrine,” but their analysis implic- Notably, none of the decades-old understanding that itly applied it. §549.191 and Rule 15 can peacefully co- What Bunker and Gamma-10 did Shady Grove’s three exist.34 These conflicting decisions have implicitly, other federal courts applying led to “uncertainty in the law governing analogous statutes from other states have opinions purported to the pleading of punitive damages in fed- done expressly. That is, §549.191 has eral cases in this District.”35 analogs in other states, and most federal be a sea change in The Minnesota district courts that courts addressing these analog statutes have characterized Shady Grove as modi- also apply them in federal court under how courts apply the fying the Erie doctrine, and that refuse to Erie. For example, federal courts in Colo- apply §549.191 in federal court—includ- rado, Florida, Idaho, and North Dakota Erie doctrine. ing the “large majority” of recent deci- have held that statutes materially similar sions36 —are wrong. to §549.191 are substantive under Erie, and therefore apply in federal court.18 The other two opinions in Shady Federal courts refusing to apply Only a minority of federal courts have Grove—Justice Stevens’s concurrence §549.191 after Shady Grove are wrong. gone the other way.19 To date, there are and Justice Ginsburg’s dissent—employed The opinions refusing to apply no published federal appellate decisions the same framework as Justice Scalia’s §549.191 to punitive-damages requests from these states that are on point.20 opinion but more strongly emphasized a in federal court are wrong, for five rea- federal court’s responsibility to be sensi- sons. Only recently have a handful of federal tive to important state interests and regu- First, they incorrectly assume that decisions in Minnesota refused to latory policies.26 Justice Stevens agreed Shady Grove changed the two-part Erie apply §549.191 in state court, and they that New York’s class action statute di- test for determining when a state law have done so based on an incorrect rectly conflicted with Rule 23, whereas may be applied as “substantive” in federal reading of Shady Grove. Justice Ginsburg would have limited court. All three opinions in Shady Grove, Despite the weight of authority sup- Rule 23 to governing procedural aspects by their own terms, applied the Supreme porting the application of §549.191 in of class litigation while leaving room for Court’s long-established Erie analysis, not federal court, recent Minnesota district New York’s statute to control the size of a new test or standard.37 There has there- court cases have held that Erie precludes a class-action monetary award.27 Notably, fore been no change in law that would the application of §549.191 to punitive- none of Shady Grove’s three opinions pur- justify a departure from longstanding damages requests in federal court.21 Ac- ported to be a sea change in how courts precedent in the District of Minnesota. cording to these cases, §549.191 conflicts apply the Erie doctrine. Instead, they Second, these courts incorrectly ap- with the requirement in Federal Rule simply disagreed about how the familiar, ply Erie’s “direct conflict” test that Judge of Civil Procedure 15(a) that motions two-part test should resolve the interplay Devitt first applied 30 years ago, and that for leave to amend should be “liberally” between Rule 23 and the New York law. each opinion embraced in Shady Grove. granted “when justice so requires.”22 Shady Grove was not viewed as a Judge Devitt was right then, and is right These cases have justified their departure landmark decision in federal practice or today: nothing in Federal Rule of Civil from the district’s historical approach to procedure at the time. Not surprisingly, Procedure 8 or 15 directly conflicts with §549.191 by casting Shady Grove Ortho- therefore, Minnesota decisions immedi- §549.191. pedic Assocs., P.A. v. Allstate Ins. Co.23 as ately following it continued to apply sec- As to Rule 8, which simply requires a recent “change” in Erie jurisprudence. tion 549.191 in federal court.28 a pleading to contain “a short and plain They are incorrect. But that all changed in 2017, when statement of the claim” and “a demand As mentioned, Shady Grove is a frac- some judges began to hold that Shady for the relief sought,” section 549.191 tured, 4:1:4 decision; it dealt with whether Grove changed the landscape and re- allows the pleading of punitive damages a New York law that altogether prohibited quired that §549.191 not apply in federal but prescribes the manner and timing

20 Bench&Bar of Minnesota s August 2020 www.mnbar.org of pleading them. Nothing in Rule 8 re- state laws and federal rules where none good law. Cohen considered whether a quires the initial pleading to state a claim exists, especially in matters involving New Jersey statute that imposed height- for punitive damages if punitive dam- “important state interests and regulatory ened pleading requirements for share- ages will be sought. Moreover, §549.191 policies.”39 Federal Rule 15(a)(2) and sec- holder derivative cases could be applied is not unique among state laws imposing tion 549.191 can peacefully coexist. in federal court. Even though then Rule burdens on pleading certain claims. Min- Third, as these courts interpret Shady 23 (now Rule 23.1) “deal[t] with plain- nesota Statute §544.42, for example, re- Grove, it would silently overrule many tiff’s right to maintain such an action in quires “an affidavit of expert review” be- other of the Supreme Court’s Erie deci- federal court”—and thus under a literal fore a professional malpractice claim can sions, without so much as a word ac- reading of Justice Scalia’s test, would have be pleaded, and both the 8th Circuit and knowledging that sea change. The deci- “answered the question in dispute”—the Minnesota district courts apply §544.42’s sions holding that §549.191 cannot apply Supreme Court held there was no “con- requirement in federal court.38 The result in federal court reach that conclusion by flict with the statute in question” such under Rule 8 should be no different for using the “does it answer the same ques- that both Rule 23 and the statute “all may punitive-damages claims. tion” test from Justice Scalia’s opinion in be observed by a federal court.” 337 U.S. As to Rule 15, which states that Shady Grove. They reason that because at 556. If the recent Minnesota decisions amendment shall be allowed when “jus- §549.191 purportedly “answers the same were correct in how broadly to interpret tice so requires,” §549.191 allows amend- question” as Rule 15, it cannot apply in Justice Scalia’s “does the rule answer ment of pleadings to add punitive dam- federal court. But almost every rule would the question in dispute” test, then Shady ages when certain requirements are answer a question implicated by a related Grove’s plurality opinion would have satisfied; it can peacefully coexist with state statute or law, including some that implicitly overruled Cohen and years of Rule 15. It takes no leap of imagination the Supreme Court has long concluded do other longstanding precedent, without a to conclude that the Minnesota Legis- not conflict with related state rules. Courts word. Shady Grove should not be inter- lature found that justice would require must not give such a literal reading to Jus- preted in that way.40 amendment only when the requirements tice Scalia’s test, lest it implicitly overrule Fourth, these courts ignore the dispa- of §549.191 are satisfied. Federal Rule 15 some of the Supreme Court’s most long- rate results created by finding a “direct governs the amendment of pleadings gen- standing Erie cases. conflict” between §549.191 and Federal erally; it does not answer the much nar- As but one example, consider the Su- Rules 8 and 15, when there is no con- rower and more specific question of what preme Court’s opinion in Cohen v. Ben- flict between §549.191 and the identical a plaintiff must do to satisfy a motion for eficial Indus. Loan Corp., 337 U.S. 541, language of the Minnesota Rules of Civil leave to amend. Courts should not be too 555 (1949), a preeminent Erie opinion Procedure. Like its federal counterpart, eager to find a direct conflict between authored by Justice Jackson that is still Minnesota Rule 8.01 also requires a

IS YOUR MEDICAL “TEAM” FAILING TO PROVIDE YOUR FIRM THE SUPPORT NEEDED FOR YOUR CLIENTS’...?

National Dizzy and Balance Center is a unique outpatient clinic system specializing in the Evaluation & Treatment of patients that were involved in a Automobile or Work Related Accidents with: • Mild Traumatic Brain Injury (TBI) or Concussion • Whiplash related problems and/or cervical vertigo issues • Dizziness & Balance Problems and/or a fear of falling We provide a Multidisciplinary Approach with a TEAM of: • Medical Doctors • Audiologists • Physical Therapists • Occupational Therapists And... Because our clinics are an Independent Outpatient Based Health System, our charges are 50% less then similar procedures done at a Hospital Based one!

At NDBC, we understand the importance of good documentation, efficacy based medicine supported with research and normative data, and are willing to; write narratives, court appearances, and provide your firm support for the benefit of your firms clients.

For more information about our clinics or our services, please BLAINE BURNSVILLE EDINA WOODBURY visit our website, or call our Marketing Represenative Teresa P: 952-345-3000 F: 952-345-6789 Standafer at 952-800-8951, or [email protected] www.NationalDizzyandBalanceCenter.com www.mnbar.org August 2020 s Bench&Bar of Minnesota 21 pleading to contain “a short and plain be unable to obtain a different result in JEFF JUSTMAN is a partner statement of the claim” and “a demand federal court than they otherwise would at Faegre Drinker. He is for the relief sought.” Minnesota Rule of be able to reach in state court. Erie has a Chambers-recognized Civil Procedure 15.01 also requires the long sought to eliminate the possibility appellate litigator, court to permit amendments “when jus- of “[un]equal administration of justice in representing clients in tice so requires.” Minnesota courts have coordinate state and federal courts sitting appellate courts throughout never struggled to enforce these liberal side by side.”42 The only way of achieving the country. He also defends pleading and amendment standards and that result is to continue the longstanding public companies, and their §549.191’s requirements. Neither should practice of applying §549.191 in federal officers and directors, in securities litigation. federal courts. court. By contrast, if the “large majority” [email protected] Finally, these courts ignore the ob- of recent Minnesota decisions continues vious implications of refusing to apply not to apply §549.191 in federal court, TOM PRYOR is an associate section 549.191 in federal court: forum- we can only expect savvy plaintiffs to file and member of Faegre shopping and inequitable administration frivolous punitive-damages claims in fed- Drinker’s business litigation of the laws. Many years ago, Judge Devitt eral court, hoping those claims will exert practice in Minneapolis. recognized that applying §549.191 ad- undue pressure on defendants to settle. He represents clients on a vances the twin aims of the Erie doctrine: range of matters, including discouragement of forum-shopping and Conclusion resolving complex litigation avoidance of inequitable administration Shady Grove did not reflect a sea disputes, navigating administrative proceedings of the laws.41 Holding plaintiffs to the change in the Erie doctrine, but recent and pursuing appeals. same requirements in both federal and federal courts refusing to apply §549.191 [email protected] state court means that there is no tacti- in federal court have incorrectly cal advantage to choosing one forum concluded otherwise. Federal district JOSH TURNER is a litigator over the other where punitive damages courts in Minnesota should continue to at Faegre Drinker, practicing are concerned. Plaintiffs will be unable to follow the long-established precedent in courts across the game the system by filing frivolous claims rather than the new outliers.43 To the country at both the trial and for punitive relief in federal court, know- extent that federal courts in Minnesota appellate level. He works ing that they cannot evade Minnesota’s continue the recent trend of not applying with clients on a variety of common-sense limitations on such prac- §549.191 in federal court, the 8th Circuit matters, from commercial tices. Applying section 549.191 in fed- should take up an appropriate case and and transactional disputes to mass tort defense. eral court also means that plaintiffs will correct them. s [email protected]

On Demand CLE.

Now Streaming. ON DEMAND CLE Hundreds of hours of CLE. Over 25 practice areas.

Start Streaming at: www.mnbar.org/on-demand

22 Bench&Bar of Minnesota s August 2020 www.mnbar.org Notes ism, to prevent forum substantive in nature and 7/27/2017) (hereinafter 10/15/2018) (Bowbeer, 1 559 U.S. 393 (2010). shopping”); Sec. Sav. Bank thus governs in diversity “Bair Hugger”); Selective Mag. J.), aff’d, 329 F.R.D. 2 E.g., The Orange Rabbit, v. Green Tree Acceptance, cases in Kansas”); McHugh Ins. Co. of S.C. v. Sela, 353 610 (D. Minn. 2019). Inc. v. Franchoice, Inc., Inc., 739 F. Supp. 1342 v. Jacobs, 450 F. Supp. F. Supp. 3d 847, 859 (D. 34 Order Dated 3/8/2018, In- 2020 WL 2191947, at 3 (D. Minn. 1990); Zeeland 2d 1019, 1021 (D.N.D. Minn. 2018) (analyzing line Packaging, LLC v. (D. Minn. 5/6/2020) (cit- Indus., Inc. v. de Zeeuw, 2006) (N.D. Cent. Code the analogous require- Graphic Packaging Int’l, ing cases). 706 F. Supp. 702, 705 (D. §32–03.2–11(1) “provides ments for pleading bad- LLC, No. 15-cv-3183 3 See Minn. Stat. §549.191. Minn. 1989) (MacLaugh- a substantive right and, faith denial of insurance (ADM/LIB) (D. Minn.) 4 Id. lin, J.) (“the failure of therefore, applies to this benefits under Minn. Stat. [Doc. No. 534] (Brisbois, 5 Gasperini v. Ctr. for Hu- courts to apply Minn. federal court action”). §604.18). Mag. J.) manities, Inc., 518 U.S. 415, Stat. §549.191 in federal 19 See, e.g., Metcalf v. Beverly 22 See Fed. R. Civ. P. 15(a) 35 Benner v. Saint Paul Public 416 (1996). diversity actions has the Health and Rehab. Servs., (2) (noting that the “court Schools, I.S.D. #625, 407 6 Id. potential to significantly 32 F. Supp. 2d 1307, should freely give leave [to F. Supp. 3d 819, 825 (D. 7 Hanna v. Plumer, 380 U.S. influence choice of forum,” 1307-08 & n.1 (N.D. amend] when justice so Minn. 2019). 460, 468 (1965). and thus applying it in Fla. 1999) (not applying requires”). 36 Supra note 2. 8 See Burlington N. R. Co. federal court). Florida Statute §768.72); 23 Supra note 1. 37 There is some debate v. Woods, 480 U.S. 1, 11 Kuehn v. Shelcore, Inc., Belkow v. Celotex Corp., 24 559 U.S. at 398, 410. regarding whether Justice 4–5 (1987) (explaining 686 F. Supp. 233, 234 (D. 722 F. Supp. 1547, 1551 25 Id. at 398. Scalia’s plurality or Justice that the court must first Minn. 1988). (N.D. Ill. 1989) (interpret- 26 Id. at 422 (Stevens, J., Stevens’s concurrence “determine whether, when 12 See Klaxon Co. v. Stentor ing Ill. Rev. Stat. ch. 110, concurring); id. at 437 controls. Under the Marks fairly construed, the scope Elec. Mfg. Co., 313 U.S. §2–604.1 as procedural (Ginsburg, J., dissenting). doctrine, most federal of a Federal Rule… is 487, 496 (1941); see also and not applying it); Pruett 27 Id. at 446. courts have found that Jus- sufficiently broad to cause Kuehn, 686 F. Supp. at v. Erickson Air-Crane Co., 28 Bhatia v. 3M Co., 323 tice Stevens’s concurrence a direct collision with the 234 (holding that the 183 F.R.D. 248, 250-252 F. Supp. 3d 1082, 1103 controls. See Davenport v. state law or, implicitly, to substantial variation in (D. Or. 1998) (reading (D. Minn. 2018) (Frank, Charter Commc’ns, LLC, control the issue before the tactical choices “must be the Federal Rules of Civil J.); Target Corp. v. LCH 35 F. Supp. 3d 1040, 1050 court, thereby leaving no eliminated by applying Procedure as “sufficiently Pavement Consultants, 960 (E.D. Mo. 2014) (col- room for the operation of Section 549.191 in this broad” enough “to cause F. Supp. 2d 999, 1010 (D. lecting cases and quoting that law” (internal quota- federal diversity action”). a direct collision with” Or. Minn. 2013) (Keyes, J.), McKinney v. Bayer Corp., tion marks and citation 13 32 F.3d 1244, 1254-55 Rev. Stat. §18.535 and aff’d, 2013 WL 12320416 744 F. Supp. 2d 733, 747 omitted)). (8th Cir. 1994). thus not applying it). (D. Minn. 10/30/2013); (N.D. Ohio 2010), for the 9 28 U.S.C. §2072(b); see 14 147 F.3d 691, 696 (8th Cir. 20 There are at least two Freeland v. Fin. Recovery proposition that “Justice also Hanna, 380 U.S. at 1998). federal appellate courts Servs., Inc., 790 F. Supp. Stevens’ opinion is the 463–65. 15 A third 8th Circuit deci- outside the 8th Circuit to 2d 991, 994 (D. Minn. narrowest and, thus, con- 10 A representative sample sion agreed in dicta that have addressed this issue 2011) (Leung, J.); Healey v. trolling opinion”). of such cases includes: section 549.191 applies in in unpublished or oth- I-Flow, LLC, 853 F. Supp. 38 Sandhu v. Kanzler, 932 F.3d Bhatia v. 3M Co., 323 federal court. See Popp Tele- erwise vacated opinions. 2d 868, 87273 (D. Minn. 1107, 1116 (8th Cir. 2019) F. Supp. 3d 1082, 1103 com, Inc. v. Am. Sharecom In Cohen v. Office Depot, 2012) (applying §549.191 (“Glow’s failure to comply (D. Minn. 2018) (Frank, Inc., 361 F.3d 482, 491 Inc., 184 F.3d 1292 (11th in federal court prevents with Minn. Stat. §544.42. J.); Target Corp. v. LCH n.10 (8th Cir. 2004). Cir. 1999), vacated in part a plaintiff from “brandish- mandates dismissal of Pavement Consultants, 960 16 147 F.3d at 696 (citing on other grounds, 204 F.3d ing” a claim for punitive this claim.”); Afremov F. Supp. 2d 999, 1010 (D. Swanlund v. Shimano Indus. 1069 (11th Cir. 2000), damages “as a tool for v. Sulloway & Hollis, Minn. 2013) (Keyes, J.), Corp., 459 N.W.2d 151, the 11th Circuit held that promoting an advanta- P.L.L.C., 922 F. Supp. 2d aff’d, 2013 WL 12320416 154 (Minn. App. 1990)). Florida Statute §768.72, geous settlement”); 800, 817 (D. Minn. 2013) (D. Minn. 10/30/2013); 17 32 F.3d at 1255 (citation which prohibits the plead- 29 In re Bair Hugger Forced (Schiltz, J.) (“Afremov’s Freeland v. Fin. Recovery omitted). ing of punitive damages in Air Warming Devices failure to comply with Servs., Inc., 790 F. Supp. 18 See, e.g., Jones v. Krautheim, an initial complaint, did Prod. Liab. Litig., No. §544.42 means that all of 2d 991, 994 (D. Minn. 208 F. Supp. 2d 1173, not apply in federal courts MDL152666JNEFLN, Afremov’s claims against 2011) (Leung, J.); Healey v. 1174-80 (D. Colo. 2002) because it conflicted with 2017 WL 5187832, Harrington and Lonergan I-Flow, LLC, 853 F. Supp. (surveying cases and Federal Rule of Civil Pro- at *3–4 (D. Minn. must be dismissed.”). 2d 868, 87273 (D. Minn. concluding that Colorado cedure 8(a)(3). In Native 7/27/2017). 39 Gasperini v. Ctr. for Hu- 2012) (applying §549.191 Statute §13–64–302.5(3) American Services, Inc. v. 30 Id. (quoting Shady Grove, manities, Inc., 518 U.S. 415, in federal court prevents should be applied in Givens, 213 F.3d 642 (9th 559 U.S. at 393 (Scalia, 428 n.7 (1996). a plaintiff from “brandish- federal court); Wilson v. Cir. 2000) (unpublished J.)). 40 See Fargo Women’s Health ing” a claim for punitive Edenfield, 968 F. Supp. table opinion), however, 31 Id. (quoting Shady Grove, Center v. Schafer, 18 F.3d damages “as a tool for 681, 683-84 (M.D. Fla. the 9th Circuit affirmed 559 U.S. at 421 (Stevens, 526, 539 (8th Cir. 1994) promoting an advanta- 1997) (Florida Statute § an order denying leave J.)). (refusing to interpret one geous settlement”); Berczyk 768.72 is “substantive and to amend under Idaho 32 Id. at 4. Supreme Court decision v. Emerson Tool Co., 291 can therefore be applied Code §6-1604(2), because 33 See, e.g., Rogers v. Mentor “as having overruled sub F. Supp. 2d 1004, 1008 to federal court in federal it found “no fault” with Corp., No. 12-CV-2602 silentio longstanding Su- (D. Minn. 2003); Hern v. actions”); Windsor v. Guar- the determination that a (SRN/SER), 2018 WL preme Court precedent”). Bankers Life Cas. Co., 133 antee Trust Life Ins. Co., party had failed to comply 2215519, at *6 (D. Minn. 41 Kuehn, 686 F. Supp. at F. Supp. 2d 1130, 1134-35 684 F. Supp. 630, 633 (D. with §6-1604(2). Judge 5/15/2018) (Rau, Mag. 235; see also Hanna v. (D. Minn. 2001); Olson Idaho 1988) (Idaho statute Devitt noted that this J.), aff’d sub nom. Urbieta Plumer, 380 U.S. 460, 468 v. Snap Prods., Inc., 29 F. §6-1604(2) “is substantive Idaho statute is “virtually v. Mentor Corp., No. CV (1965). Supp. 2d 1027, 1034 (D. in nature and therefore identical” to Minn. Stat. 13-1927 ADM/LIB, 2018 42 Klaxon Co. v. Stentor Elec. Minn. 1998); Ulrich v. City controlling in federal court §549.191. Kuehn, 686 F. WL 3475484 (D. Minn. Mfg. Co., 313 U.S. 487, of Crosby, 848 F. Supp. in a diversity case”); Ruiz Supp. at 235. 7/19/2018) (Montgom- 496 (1941). 861, 866 & n.5 (D. Minn. v. Quiktrip Corp., 826 F. 21 See, e.g., In re Bair Hugger ery, J.); Shank v. Carleton 43 See, e.g., Rilley v. Money- 1994) (applying §549.191 Supp. 1284, 1285 n.1 Forced Air Warming Devices Coll., No. 16-CV-1154 Mutual, LLC, 2018 WL addresses the “need under (D. Kan. 1993) (Kansas Prod. Liab. Litig., 2017 WL (PJS/HB), 2018 WL 6920764, at *5-*7 (D. the precepts of Federal- Statute § 60-3702 “is 5187832, at *4 (D. Minn. 4961472, at *4 (D. Minn. Minn. 12/13/2018).

www.mnbar.org August 2020 s Bench&Bar of Minnesota 23 Paskert and Kenneh: The ‘severe or pervasive’ standard in 2020

Minnesota moves forward on workplace harassment; the 8th Circuit doubles down

By Sheila Engelmeier and Heather Tabery

24 Bench&Bar of Minnesota s August 2020 www.mnbar.org bout two years had passed since the launch of the #MeToo movement when the Minnesota Su- preme Court heard oral arguments in Kenneh v. Homeward Bound in late 2019. Since then a great many observers have awaited the Court’s pivotal Adecision in the case, which posed the question of how the “severe or pervasive” standard applies to harassment claims under the Minnesota Human Rights Act (MHRA). Generally, to be actionable under either the MHRA or federal anti-discrimination law (Title VII), harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment or create an abusive working environment. The severe or pervasive standard has been a topic of debate in Minnesota and elsewhere for years, never more so than in the wake of #MeToo. Some other states, most notably New York, have statutorily abandoned or adjusted the standard, which allows judges to dismiss harassment cases even when the workplace misconduct is egregious.1 Although the phrase “severe or pervasive” does not appear in the MHRA,2 the requirement that workplace misconduct be severe or pervasive before it creates an actionably hostile environment developed in federal case law and seeped into Minnesota common law. (A detailed history of the “severe or pervasive” standard is set forth in our previous Bench & Bar Online article, “Severe or Pervasive: Just How Bad Does Sexual Harassment Have to Be in Order to Be Actionable?”3) By comparing the facts considered on summary judgment or a motion to dismiss to the facts of previously dismissed cases, the courts over time set an extremely high bar for plaintiffs to prove a hostile work environment. The plaintiff’s attorneys in Kenneh argued the Minnesota Supreme Court should lower that bar or eliminate the severe or pervasive standard entirely for harassment claims under the MHRA. The defense argued, among other things, that any change to the standard was not the prov- ince of the Court and required legislative action. As we waited for the Kenneh decision, the 8th Circuit Court of Appeals decided Paskert v. Kemna-ASA Auto Plaza, Inc.4 on February 13, 2020, doubling down on the notion that the severe or pervasive standard sets a tremendously “high threshold,” at least in federal courts applying federal law in this jurisdiction. The severe or pervasive (Notably, Paskert also dismissed an Iowa statutory harassment claim.) standard has been a topic In its June 3 Kenneh decision, the Minnesota Supreme Court did not eliminate the severe or pervasive standard, but in stark of debate in Minnesota contrast to Paskert, it effectively lowered the standard applied to the MHRA, stating it must evolve to meet societal expectations. and elsewhere for years, The Minnesota Supreme Court also cautioned courts against taking jury trials away from those making harassment claims un- never more so than in the der the MHRA and noted that the federal jurisprudence does not bind courts interpreting Minnesota law. Two jurisdictions wake of #MeToo. with two very different results means the difficulties with the severe or pervasive standard may live on.

www.mnbar.org August 2020 s Bench&Bar of Minnesota 25 A brief history of the severe or pervasive standard 5 an employee’s work performance.”9 Almost 35 years ago, the 8th Circuit Court of Appeals not- Courts, over the years, have borrowed from the federal ju- ed that making the prima facie case for a hostile environment risprudence interpreting Title VII when analyzing harassment harassment claim under Title VII requires the employee plain- claims under the MHRA. The federal jurisprudence in the 8th tiffs to prove: (1) they belong to a protected group; (2) they Circuit, and the Minnesota cases borrowing from that case law, were subject to unwelcome sexual harassment; (3) the harass- became more and more restrictive about what was enough to ment was based on sex; (4) the harassment affected a “term, be severe or pervasive. We have reached the point in federal condition, or privilege” of employment; and (5) the employer jurisprudence where conduct meeting the elements of crimi- knew or should have known of nal sexual assault may not be the harassment in question and enough. Over the last two de- failed to take proper remedial cades, most hostile environment action.6 (The fifth element now The federal jurisprudence in the cases in the 8th Circuit and in differs depending on whether Minnesota state courts end when the alleged perpetrator is a peer, 8th Circuit, and the Minnesota the employer wins a motion for supervisor, or alter ego of the summary judgment. (Remark- employer.) cases borrowing from that case law, ably, some cases were dismissed Courts have long acknowl- on the pleadings.) edged that anti-discrimination became more and more restrictive laws exist to protect employees What do courts say is from unlawful discrimination about what was enough to be not enough to be severe (and unlawful harassment), but or pervasive? the U.S. Supreme Court cau- severe or pervasive. We have Boorish behavior, horseplay, tioned that they are not meant teasing, bad taste and flirting are as a “general civility code.” In reached the point in federal not sufficiently severe or perva- 1986 the Court declared that sive. Squeezing an employee’s in order to prove the fourth el- jurisprudence where conduct nipple while stating “this is a ement (that the harassment af- form of sexual harassment” is not fected a “term, condition, or meeting the elements of criminal enough. A manager asking an privilege” of employment), the employee to watch pornographic harassment must be “sufficiently sexual assault may not be enough. movies and masturbate is not severe or pervasive ‘to alter the enough. And so much more.10 conditions of [the victim’s] em- In Duncan v. General Motors ployment and create an abusive working environment.’”7 (Em- Corp.,11 the jury had awarded plaintiff a seven-figure verdict. phasis added.) To meet the standard, the plaintiff must prove The allegations the jury credited involved 10 incidents over a the harassment was both objectively and subjectively unreason- three-year period wherein she was propositioned; made to work able, meaning that a reasonable person would find the conduct on a male employee’s computer with a screen saver of a naked offensive and that the plaintiff actually did so.8 woman; unnecessarily touched on the hand; and asked to type Since Meritor, courts have struggled to articulate what the a document entitled “He-Men Women Hater’s Club,” includ- severe or pervasive standard means. In 1993 the U.S. Supreme ing statements such as “sperm has a right to live” and “all great Court attempted to clarify and admitted the standard “is not, chiefs of the world are men.” A co-worker kept a pacifier shaped and by its nature cannot be, a mathematically precise test…. like a penis in his office.12 The 8th Circuit Court of Appeals [W]hether an environment is ‘hostile’ or ‘abusive’ can be de- overturned the jury verdict, concluding that the plaintiff failed termined by looking at all the circumstances.… These may in- to show the alleged harassment was so severe or pervasive as to clude the frequency of the discriminatory conduct; its severity; alter a term, condition, or privilege of her employment.13 whether it is physically threatening or humiliating, or a mere A plaintiff alleging a greater number of harassing incidents offensive utterance; and whether it unreasonably interferes with generally is more likely to survive summary judgment than one

26 Bench&Bar of Minnesota s August 2020 www.mnbar.org who alleges a smaller number of specific instances, even if they I could have you… You’d be mine… I’m a closer.” Both Paskert are severe.14 In theory, even a single incident of extremely severe and Bjorkland reported Burns’s behavior to management, and, conduct should be enough to support a hostile work environ- thereafter, Burns assigned Paskert a different job title and pay ment claim.15 Indeed, multiple courts have stated a single act of structure, which Paskert understood to be a demotion. Paskert sexual assault can be actionable harassment.16 To state a claim accepted the changes, and three days later she was fired for in- based on a single incident, the conduct generally must involve subordination and “refus[ing] to discuss what was bothering her violence or a serious threat of violence. Even then few cases on Friday, November 6th.” Burns further justified the termina- resolve in favor of the plaintiff. tion by criticizing Paskert’s sales record and use of profanity at In Paugh v. P.J. Snappers, a female went to a restaurant/bar work. to apply for a job and consumed alcohol given to her by a male Paskert filed a complaint with the Iowa Civil Rights Commis- manager.17 The facts presumed as true in Paugh are these. The sion (ICRC) alleging a hostile work environment and later sued male manager made advances on her and rubbed her shoulders in federal district court alleging a hostile work environment and as she drank. The applicant went to the restroom and returned retaliation. The district court granted summary judgment for to the bar to continue drinking. Her next memory was waking the defendant, finding in part that Paskert failed to show defen- up the following morning in the male manager’s bedroom. A dant’s conduct was sufficiently severe or pervasive to constitute rape kit revealed more than one man’s semen inside her. The a hostile work environment under Title VII or the Iowa Civil court considered the applicant an employee for purposes of sum- Rights Act. Paskert appealed. mary judgment, but held the plaintiff failed to establish the male The 8th Circuit Court of Appeals, citing Meritor and Harris, manager’s conduct in making advances and rubbing her shoul- noted, “Although the Supreme Court’s precedent is clear that ders at the restaurant qualified as sufficiently severe or pervasive ‘Title VII comes into play before the harassing conduct leads to to affect the terms, conditions, or privileges of her employment. a nervous breakdown,’… our Eighth Circuit precedent sets a high It also determined that, since the rape took place off-premises, it bar for conduct to be sufficiently severe or pervasive in order was outside the scope of his employment. to trigger a Title VII violation.” (Emphasis added.) The court In Anderson v. Family Dollar Stores of Ark., Inc.,18 the plaintiff relied on its precedent, noting that some conduct well beyond alleged the following. Over the course of a five-week training the bounds of respectful and appropriate behavior is nonetheless period, her supervisor rubbed her shoulders, back, or hands; insufficient to violate Title VII because it is not severe or per- cupped her chin in his hand; tried to flirt with her; and on one vasive enough, including graphic sexual propositions and even occasion told her, “I can make or break you.” After the training incidental unwelcome sexual contact. period was over, he continued to harass her. She called him to Specifically, “In light of these precedents, Burns’s alleged discuss a workplace issue and he told her she ought to be with behavior, while certainly reprehensible and improper, was not him where he was, in a Florida motel room, “in bed with me with so severe or pervasive as to alter the terms and conditions of a Mai Tai and kicking up.” During another work call he told her, Paskert’s employment.” The court noted Paskert “only” alleged “I’ll deal with it, baby doll,” and on another occasion referred one instance of unwelcome physical conduct and one or two to her as “honey.” Finally, when she complained to him about statements by Burns that he could “have Paskert.” The court a workplace injury, the supervisor “grabbed her arm, pulled her said “all of this behavior is inappropriate and should never be back to the storeroom, pushed her, and in a mean tone asked, tolerated in the workplace, but is not nearly as severe or perva- ‘Are you going to work with me? Are you going to be nice? Are sive as the behavior found insufficient in Duncan… [Employer] you going to fit into my group? ... [N]ow you’re telling me your and Burns should both be embarrassed and ashamed for how back is hurt?... [Y]ou’re just nothing but trouble... You’re just not they treated her. Nevertheless, we may only ask whether their going to be one of my girls, are you?’” and then fired her. The 8th behavior meets the severe or pervasive standard applied by this Circuit Court of Appeals held the supervisor’s conduct, while circuit, and it does not.” The 8th Circuit Court of Appeals af- “ungentlemanly,” was not severe or pervasive. firmed summary judgment. In the current social climate, it is fair to say that any of the Paskert suggests the 8th Circuit Court of Appeals is unfazed aforementioned examples would be considered sexual harass- by social norms and that #TimesUp has not yet found its way ment in casual conversation among most people. If someone into the federal jurisprudence. tweeted the facts of any of these cases, the bad actor would likely be fired or at least intensely shamed on social media. Kenneh v. Homeward Bound Assata Kenneh worked as a program resource coordinator Paskert v. Kemna-Asa Autoplaza, Inc. at Homeward Bound, a nonprofit organization that operates Paskert was a female used car sales associate in Iowa. The fol- residential care facilities for people with disabilities. In her case, lowing facts were presumed true. Paskert was hired to sell cars, the following facts were presumed true. Shortly after she started complete collections work, and prepare cars for sale. She could working she met the maintenance coordinator, Anthony John- not complete her training because when she tried to shadow son, who worked at multiple sites and was not at her location ev- superiors, Burns and Bjorkland, while selling cars on the lot, ery day. Between February and June 2016, Kenneh experienced Burns would send her back inside to answer the phone. Burns multiple incidents of sexualized or intrusive behavior. The first frequently lost his temper, ridiculed and screamed at employees, time they met, Johnson complimented Kenneh on her haircut, referred to female customers using derogatory names, and threw asked her who cut her hair and where she lived, and offered to objects in the office. Burns’s treatment of women was demean- cut her hair at her home or his, which alarmed Kenneh. Not ing, sexually suggestive, and improper. Burns said he “never long afterward, Johnson walked up to Kenneh as she struggled should have hired a woman” and wondered aloud if he could to open her desk drawer and offered to help. As she started make Paskert cry. Burns openly bragged at work about his pur- to move out of his way, he told her she did not need to move ported sexual conquests. On one occasion, Burns attempted to because he “likes it pretty all day and all night” and he liked rub Paskert’s shoulders and said he was going to hug her. “beautiful women and beautiful legs.” Kenneh got out of her On another occasion, Paskert criticized the way Burns treat- chair anyway, and while he was working on her desk, Johnson ed women and wondered how his wife tolerated such behavior. began talking to her in a seductive tone and licked his lips in a Burns replied, “Oh, if you weren’t married and I wasn’t married, suggestive manner. www.mnbar.org August 2020 s Bench&Bar of Minnesota 27 About a month later, Johnson blocked Kenneh’s office door conduct alleged by Kenneh was sufficiently severe or pervasive with his body. She made the excuse that she was going to get a for a reasonable juror to find the work environment to be hostile drink from the gas station in order to leave her office to avoid or abusive. The Court, however, declined to discard the severe him. In a sexually suggestive voice, Johnson insisted on taking or pervasive precedent “because the [standard] continues to her to the onsite vending machine instead. She complied and provide a useful framework for analyzing the objective compo- on their way back she suggested he take home some cake from nent of a claim for sexual harassment under the [MHRA].” a party that day. Johnson said, “I don’t eat any of this.” Kenneh The Court’s decision lowered the severe or pervasive stan- asked what he meant; he said, “I will eat you—I eat women.” dard as applied to the MHRA. It further specifically acknowl- Kenneh quickly walked back to her office alone. A week later, edged that the MHRA provides greater protection than the fed- Johnson drove up alongside Kenneh’s car while she was buying eral law. Thus, Kenneh means that what is “severe or pervasive” gas, asked her where she was going, and left immediately after under the MHRA is a less stringent standard than set forth in her without putting gas in his car. the federal jurisprudence. The next day, Kenneh told her supervisor about Johnson’s actions and conduct. Her supervisor asked her to make a written The nuance complaint and she complied. Human Resources conducted an Unlike Title VII, the MHRA defines sexual harassment as investigation, but Johnson denied each incident, so Homeward “unwelcome sexual advances… or communication of a sexual Bound informed Kenneh the investiga- nature when… that conduct or com- tion was inconclusive, but assured her munication has the purpose or effect that he would receive additional sexual of substantially interfering with an in- harassment training and be instructed dividual’s employment… or creating not to be alone with Kenneh. Thereaf- Paskert suggests the an intimidating, hostile, or offensive ter, Johnson began to stop by Kenneh’s employment… environment.”19 In de- office more frequently. He would block 8th Circuit Court of Appeals clining to abandon the severe or perva- her door, make gestures with his tongue sive standard entirely, the Court cited simulating oral sex, and call her “sexy,” is unfazed by social norms its earlier decision in Goins v. W. Grp.,20 “pretty,” or “beautiful” every time he which quoted Meritor: “We have held saw her despite her requests that he and that #TimesUp has not that discriminatory conduct ‘is not ac- stop. He would stand in her doorway tionable unless it is “so severe or perva- watching her, and although Kenneh yet found its way into the sive” as to “alter the conditions of the tried to ignore him, he simulated oral [plaintiff’s] employment and create an sex with his tongue when she made eye federal jurisprudence. abusive working environment.’” Yet, contact. Kenneh complained on two the Court acknowledged that the se- more occasions, but nothing was done. vere or pervasive standard originated One day, she arrived late to work and in federal case law involving harass- was unprepared for a meeting. She told her supervisor that she ment claims under Title VII. did not want to go to work because of Johnson and asked to be The Kenneh Court also pointed out that its reliance on fed- transferred so she could avoid interactions with him. Homeward eral law in interpreting the MHRA has not been absolute, rec- Bound denied her request and terminated her employment. ognizing “significant differences” between the MHRA and Title Kenneh sued Homeward Bound for sexual harassment in vio- VII—among them that the MHRA defines sexual harassment. lation of the MHRA. The district court granted summary judg- Kenneh and amici argued that the severe or pervasive standard ment to Homeward Bound, concluding Kenneh failed to allege is notorious for being inconsistently applied and lacking clarity, conduct sufficiently severe or pervasive to support a claim for arguing the federal courts tend to interpret “severe or pervasive” sexual harassment. The Minnesota Court of Appeals affirmed. archaically, which is directly at odds with Minnesota’s statutory The Minnesota Supreme Court found the evidence offered directive to construe the MHRA liberally.21 The Court cited by Kenneh sufficient to withstand summary judgment on her stare decisis and the Legislature’s ability to alter what the courts claim for harassment under the MHRA, and concluded that the have done as reasons why it chose not to overturn precedent,

28 Bench&Bar of Minnesota s August 2020 www.mnbar.org but noted stare decisis is a guiding policy, not an inflexible rule or Notes a shield for errors of law. 1 See, e.g., A08421 https://nyassembly.gov/leg/?default_fld=&leg_video=& The Court said the severe or pervasive standard reflects a bn=A08421&term=0&Summary=Y&Memo=Y. Similarly, Minne- “common-sense understanding that, to alter the conditions of sota judges have advocated for a reduced standard when interpreting employment and create an abusive working environment, sexu- MHRA harassment claims for years (see, e.g., Justice Page’s dissent al harassment must be more than minor: the work environment in LaMont v. Ind. Sch. Dist. #728, 814 N.W.2d 14, 24 (Minn. 2012) must be both objectively and subjectively offensive in that a rea- and Justice Wright’s dissent in Rasmussen v. Two Harbors Fish Co., 832 sonable person would find the environment hostile or abusive N.W.2d 790, 804 (Minn. 2013)). and the victim in fact perceived it to be so.” But the Court used 2 The word “harassment” appears nowhere in Title VII, unlike the Kenneh as an opportunity to “clarify how the severe-or-pervasive MHRA. The concept arose in the case law interpreting Title VII’s standard applies to claims arising under the [MHRA].” prohibition of gender discrimination. The Court made clear that its continued use of a more flex- 3 Bench & Bar Online, March 2020. https://www.mnbar.org/archive/ ible, fact-sensitive severe or pervasive standard does not mean msba-news/2020/01/21/severe-or-pervasive-just-how-bad-does-sexual- that courts are bound to the conclusions of federal courts when harassment-have-to-be-in-order-to-be-actionable. deciding cases under the MHRA. Instead, “For the severe-or- 4 950 F.3d 535 (8th Circuit, 2020). pervasive standard to remain useful in Minnesota, the standard 5 For a detailed history of state and federal law on this issue, see must evolve to reflect changes in societal attitudes towards what 4/26/2018 testimony before the Minnesota House Civil Law and Data is acceptable behavior in the workplace. As we recognized 30 Practices Committee regarding HF4459. https://www.youtube.com/ years ago, the ‘essence’ of the [MHRA] is ‘societal change’; watch?v=GDQtCudBZl8 ‘[r]edress of individual injuries caused by discrimination is a (Co-author Sheila Engelmeier’s main testimony, starting at the 6:00 means of achieving that goal.”” minute mark and ending at 34:00, describes the relevant law; later, In addition to criticizing federal case law such as Duncan, the other employment law experts also testified). Minnesota Supreme Court was critical of the Minnesota Court 6 Moylan v. Maries Cnty., 792 F.2d 746, 749 (8th Cir. 1986). of Appeals’ decision in Geist-Miller v. Mitchell,22 noting that the 7 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). court “brushed aside” unacceptable behavior as “an unsuccessful 8 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). pursuit of a relationship.” This suggests that, under the severe or 9 Harris at 22-23. pervasive standard now applicable to the MHRA, such conduct 10 Supra note 3. would be actionable. This is a significant departure from the fed- 11 300 F.3d 928 (8th Cir. 2002). eral jurisprudence, where courts have not adjusted the severe 12 Id. at 931-932. or pervasive standard to reflect social attitudes toward what is 13 Id. at 933-934. acceptable behavior in the workplace. In fact, they have done 14 Supra note 3, pp. 25-33. the opposite: Over the course of 30 years, as more and more 15 Id., pp. 12, 20-23. behaviors became socially unacceptable in the workplace, the 16 See, e.g., Moring v. Ark. Dep’t of Corr., 243 F.3d 452, 456–57 (8th Cir. federal courts defined more and more narrowly the conduct that 2001); Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F. Supp. 2d 953, can reach severe or pervasive’s “high threshold.” 969–70 (D. Minn. 1998) (collecting cases). 17 No. 2004-T-0029, 2005 WL 407592 (Ohio App. 2/18/2005). The Kenneh Court directed courts interpreting the MHRA thus: 18 579 F.3d 858, 860 (8th Cir. 2009). 19 Minn. Stat. §363A.03, subd. 43(3). n “Each case in Minnesota state court must be considered 20 635 N.W.2d 717 (Minn. 2001). on its facts, not on a purportedly analogous federal decision.” 21 See Minn. Stat. §363A.04. n “[W]e caution courts against usurping the role of a jury 22 782 N.W.2d 197 (Minn. App. 2010). when evaluating a claim on summary judgment.... If a reason- 23 944 N.W.2d 222 (Minn. 2020). able person could find the alleged behavior objectively abusive or offensive, a claim is sufficiently severe or pervasive to Over her 30+ years practicing law, SHEILA survive summary judgment (emphasis added).”23 ENGELMEIER has handled the full panoply of employment litigation and counseling matters, In short, Kenneh reminds factfinders that they must consider from shareholder disputes and non-competes the context in which the behavior occurred, the totality of the to discrimination or employee theft. She circumstances, and the case’s particular facts; it cautions against has developed and facilitated many training courts making credibility determinations. Further, the Kenneh programs on a variety of workplace issues decision reminds judges interpreting the MHRA that summary such as diversity and inclusion, and avoiding judgment is inappropriate when reasonable minds might differ. harassment and discrimination, including development of the premier training tool, RESPECT EFFECT™ (www.respect-effect.com). Conclusion Sheila also regularly mediates employment matters and investigates Although the Kenneh decision is nuanced in its lowering of allegations of misconduct in the workplace. the severe or pervasive standard, it amounts to a significant shift [email protected] for hostile environment claims under the MHRA. How long it will take for a similar sentiment to reach the 8th Circuit or other HEATHER TABERY’s employment law practice federal circuits—or whether it ever will—remains unknown. at Engelmeier & Umanah includes representing The Minnesota Legislature and Congress still have the ability to employers and employees in cases involving provide additional clarity or guidance on the severe or pervasive sex discrimination, sexual harassment, and hos- standard. For now, the bar remains high in federal court inter- tile work environment. The scope of her prac- preting Title VII. But in cases under the MHRA, there is a new tice consists of advising clients pre-litigation, paradigm, designed to evolve in step with societal changes and during settlement negotiations, mediations, and less stringent than the federal courts’ historical view of severe or through litigation, including the appellate level. pervasive. s [email protected] www.mnbar.org August 2020 s Bench&Bar of Minnesota 29 COVID-19, Trump, and Employment Immigration 2020 has been a year like no other for employers and their lawyers

By Robert P. Webber and Candelario Arredondo

n flexibility in I-9 documentation compliance; n authorization to use scanned sig- natures for petition and application filings; n use of ‘digital’ approval notices for PERM labor certification applications; n flexibility on deadlines to respond to requests for evidence; and n waiver of biometrics (finger- prints) and in some instances waiver of interviews for cases where such things were previously required.

On the specific issue of I-9 documentation compliance flexibility, in March the Immigration and Customs Enforce- ment (ICE) agency announced flexibility for employers inspecting documents for I-9 compliance. That flexibility was extended all the way into mid-July and allows for the remote inspection of identity and employment eligibility documents required for new hire I-9s. There are strings attached, but this accommodation works well for businesses operating remotely. The altered I-9 rules also provided flex- he July 4 weekend is traditionally viewed as the middle of summer and ibility in responding to E-Verify tentative the middle of the calendar year. This year, though, looking back to Janu- non-confirmations. ary is like looking back on another world. It’s been a year of unprec- edented challenges, and those challenges have extended to employers Policy-related changes andT their lawyers trying to navigate U.S. immigration law matters. So much has Despite some positive flexibility by occurred, both in response to the pandemic and as a result of the Trump Admin- the Trump administration, as mentioned istration’s strongly held policy positions on limiting immigration, that it would be above, the year has mainly been marked nearly impossible to provide a comprehensive review of the many changes in im- by negative policy developments consis- migration law and policy so far in 2020. This article focuses on employment-based tent with the president’s restrictive at- immigration—issues related to the ability of U.S. employers to hire and retain for- titude toward immigration. Early in the eign national workers. We seek to highlight some of the major changes and forecast year, the major developments in employ- where things may go from here. ment-based immigration involved the new electronic registration process for the Covid-19 related changes H-1B cap lottery and the rollout of Form Somewhat surprisingly, many of the changes in immigration law related specifi- I-944 for immigrants seeking to establish cally to covid-19 provided additional flexibility in view of the complex new realities that they will not become public charges. thrust upon the U.S. workforce (both employers and employees) by the pandemic The H-1B cap electronic registration and the related shutdown and stay-at-home orders. While there were significant process was not without problems, but negative changes in the spring, like closing U.S. consulates worldwide (something overall it seems to have functioned and that continues to a large extent now), shuttering U.S. Immigration Services offices served its purpose—or, perhaps more nationwide, and closing the U.S./Canada and U.S./Mexico borders for non-essen- accurately, its flaws were overshadowed tial travel, there were also developments that were generally considered positive by the all-encompassing concerns for and demonstrated the Trump Administration’s understanding of the temporary the pandemic this spring throughout new reality. Among the positive developments: the United States. H-1B cap cases are

30 Bench&Bar of Minnesota s August 2020 www.mnbar.org in process now and employers should relationships. Specifically, the June 17 n Because of budget challenges at US- be hearing more in the coming weeks memorandum rescinded USCIS policy CIS, we expect to see slow processing on whether the administration has once guidance on third party placements going across the board. This will create compli- again tightened adjudication standards. back to 2010 and also rescinded a con- cations for people who need receipts and The new Form I-944 did face a court tracts and itinerary requirement created approvals to extend driver’s licenses or to challenge, but the Trump administration by USCIS in February 2018. be eligible to travel or seek new employ- has prevailed (so far) and Form I-944 now While the ITServe Alliance class action ment. Delays in processing receipts, peti- must be submitted with all I-485 adjust- provided positive visibility on some is- tions, and applications have already been ment of status applications. Form I-944 sues, H-1B employers still face challenges occurring for months but as of early July, is intense and burdensome. (Some might on the administration’s novel interpreta- USCIS plans a major furlough of thou- say this is a feature, not a bug.) Form tions of what constitutes a “specialty oc- sands of employees nationwide in early I-944 is an 18-page form with 15 pages of cupation,” including the aggressive use August that will clearly further exacer- detailed instructions. The form covers a of the U.S. Department of Labor’s Oc- bate the existing delays and backlogs. wide range of issues, seeking information cupational Outlook Handbook (OOH) on an immigrant’s income, assets, debts, to designate some positions as not eligible While the year so far has been unprec- credit score/credit rating, history of public for H-1B classification. Individual, single- edented and challenging, there is sadly no benefits (if any), health insurance, educa- plaintiff lawsuits have made progress and reason to believe that we are done. More tion, language ability, and skills, among pushed back on the “specialty occupa- change in immigration law is likely com- other things. This new form has been tion” issue and there is one class action ing. Employers and their lawyers will need required since February and as of July 4, pending for market research analysts, but to stay attentive to the changes and plan very few (if any) I-485 applications sup- it remains to be seen whether USCIS will ahead. Filing renewals and extensions ported by Form I-944 have actually been back down from its recent approach to early for existing employees and using adjudicated. The second half of this year what constitutes a specialty occupation. premium processing whenever available will tell us much more about how USCIS will hopefully minimize distress. And in- will interpret Form I-944. What may be coming creasingly, positioning cases for litigation The most recent policy development, Looking ahead, there are still three may be an important aspect of responsible as of early July, is the June 22 White months until the election and five immigration practice. s House proclamation limiting work vi- months until a new president is sworn sas. The proclamation implicates nearly in. There is no indication that President all new H-1B, H-2B, J-1, and L-1 visas Trump’s administration will let up on its through the end of this calendar year. policy agenda to restrict immigration. The Trump administration’s theory is Our predictions for the remainder of that with the U.S. unemployment rate so 2020 include: high, foreign workers should not be admitted into the country to compete with n In the area of temporary work visas, ROBERT P. WEBBER is the domestic workforce. While there are including H-1B and L-1 visas, because a partner at Dorsey & some narrow (and ill-defined) exceptions of the June 22 proclamation limiting visa Whitney LLP. Bob has 20+ to the June 22 proclamation, it will prove stamping at U.S. consulates, we expect years of experience han- to be a major challenge for employers in more challenges from USCIS in process- dling employment-based a wide range of industries for the rest of ing extension petitions for people already immigration matters, the year. in the United States, including many including H-1B, TN, L-1, more RFEs (requests for evidence). This O-1, and other non-immi- The role of courts will be particularly relevant, and frustrat- grant visa categories, as well as PERM labor Plaintiffs challenging the Trump ad- ing, to large employers that would tradi- certification and PERM-exempt processing for ministration have been active in the tionally rely on blanket L petition pro- both large and small employers in a variety of courts this year. Perhaps the most high cessing directly at U.S. consulates abroad. industries. profile U.S. immigration law case poten- [email protected] tially involving employers was the DACA n There will likely be more interest in case, DHS v. Regents of the University of O-1 visas, since O-1 visas are not sub- CANDELARIO ARRE- California, in which the U.S. Supreme ject to the June 22 proclamation limit- DONDO, a senior attorney Court ruled 5-4 that DACA should re- ing work visas. These visas are available at Dorsey & Whitney LLP, main in place as the Trump administra- to people who can demonstrate they are advises organizations tion failed to comply with the appropriate extraordinary in their field—a high stan- and individuals through- rulemaking to end the DACA program. dard, to be sure. out the United States and In the more narrow area of H-1Bs, a at U.S. consulates abroad class action lawsuit, ITServe Alliance v. n In the area of PERM labor certification on U.S. immigration law Cissna, was settled favorably for the plain- processing, it is definitely possible that the matters with a particular focus on efficient tiffs. The settlement led to an important U.S. Department of Labor will institute and successful processing of immigrant and USCIS policy memorandum on June 17 new and burdensome requirements for non-immigrant visas, adjustment of status, and that creates more certainty for H-1B peti- testing the local labor market, including naturalization matters. tioners (employers) on the issues of third possible supervised recruitment, to obtain [email protected] party placement and employer/employee PERM approvals. www.mnbar.org August 2020 s Bench&Bar of Minnesota 31 Find the Right Practice Management Fit for Your Firm

Law ﬁ rms that use legal case management software can experience a $22,000 increase in yearly revenue per attorney.*

Not all fi rms are the same, so why should they use the same practice management system? With this in mind, MSBA Advantage brings you discounts from seven practice management partners, each with a different set of practice tools and resources. Whether it’s Clio, AbacusLaw, AmicusAttorney, CosmoLex, MyCase, PracticePanther, or TimeSolv, fi nd the option that’s the best fi t for your fi rm...and SAVE!

Learn more at: www.mnbar.org/Advantage

* Based on median hourly rate; Blue Hill Research study “Building a Case for Law Practice Management”

0720 practice management.indd 1 6/29/20 8:47 AM 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.

CRIMINAL LAW n DWI: Proof that operator knew controlled substance was in his body is not JUDICIAL LAW required. Appellant was convicted of n Privilege: Order for subpoena is driving under the influence of a con- necessary to obtain privileged records trolled substance after entering a guilty from rape crisis counseling center. plea. However, on appeal, he argues his Respondent was charged with criminal plea was inaccurate and invalid, because 33 sexual conduct for allegedly engaging in he did not admit he knew or had reason CRIMINAL LAW nonconsensual sexual penetration and to know his body contained a schedule I by Samantha Foertsch contact with two women while working or II controlled substance. When enter- & Stephen Foertsch as a massage therapist. The Program to ing his plea, appellant admitted amphet- Aid Victims of Sexual Assault (PAVSA) amine was present in his body when 36 assisted the women in reporting the he operated a motor vehicle, but said EMPLOYMENT incidents to the police and respondent nothing about whether he was aware of & LABOR LAW moved for an in camera review of all its presence in his body at that time. by Marshall H. Tanick PAVSA’s records relating to the women, Minn. Stat. §169A.20, subd. 1(7), under Minn. R. Crim. P. 9.01, subd. criminalizes driving, operating, or being 37 2(3). The court ordered PAVSA to in physical control of a motor vehicle ENVIRONMENTAL LAW produce the records for in camera review, with any amount of a schedule I or II by Jeremy P. Greenhouse, and PAVSA petitioned for a writ of controlled substance, including amphet- Jake Beckstrom, Erik Ordahl prohibition preventing enforcement of amine, in the body. Section 169A.20, & Audrey Meyer the order. subd. 1(7), does not contain a mens rea The court of appeals notes that Rule element, requiring only a general intent 39 9.01, subd. 2, requires the state to assist to do the act described therein. Gener- FEDERAL PRACTICE a defendant in obtaining access to dis- ally, strict liability crimes—those that by Josh Jacobson covery in the possession of governmental dispense with mens rea—are generally agencies not within the prosecutor’s disfavored, and courts interpret statutes 40 control, upon the defendant’s motion silent on intent to contain a mens rea re- INDIAN LAW and showing of good cause. However, quirement. However, in section 169A.46, by Leah K. Jurss PAVSA is not a governmental agency, subd. 2, the Legislature provided an affir- so the state is under no obligation to mative defense to drivers charged under 41 produce PAVSA’s records. section 169A.20, subd. 1(7), which the INTELLECTUAL PROPERTY Instead, to obtain PAVSA’s records, court of appeals takes to mean that the by Joe Dubis & respondent was required to obtain a absence of a specified mens rea require- Gabrielle Kiefer court order for a subpoena, as required ment in section 169A.20, subd. 1(7), was by Minn. R. Crim. P. 22.01, subd. 2(c). not an inadvertent omission. 41 Respondent did not comply with Rule Moreover, the court finds that a viola- TAX LAW 22.01, subd. 2(c), nor did the district tion of section 169A.20, subd. 1(7), is a by Morgan Holcomb court issue a subpoena. As such, the public welfare offense, an offense that is & Sheena Denny district court’s order requiring PAVSA not subject to the presumption that the to produce records was unauthorized by Legislature intended a mens rea require- 45 law. The court of appeals grants PAVSA’s ment. The court concluded that the State TORTS & INSURANCE writ of prohibition, but “express[es] no is not required to prove that the operator by Jeff Mulder opinion… on whether the district court of a motor vehicle knew or had reason to should grant a subpoena for the records, know that a controlled substance was in if presented with a proper motion, or on his body to prove a charge under section the possible outcome of any in camera 169A.20, subd. 1(7). The court finds ap- review, if ordered.” In re Program to Aid pellant’s guilty plea is supported by a suf- Victims of Sexual Assault, 943 N.W.2d ficient factual basis, and his conviction is 673 (Minn. Ct. App. 4/13/2020). affirmed.State v. Schwartz, 943 N.W.2d 411 (Minn. Ct. App. 4/13/2020).

www.mnbar.org August 2020 s Bench&Bar of Minnesota 33 Notes&Trends | CRIMINAL LAW n DWI: License revocation may be used revocation has been judicially reviewed is a motive to falsely recant, whether to enhance DWI charge once judicial re- and sustained or the right to review has there is an inconsistency in the recanted view has occurred or right to review has been waived. version of the statement itself, and been waived. Appellant was arrested In this case, appellant’s license whether the prior hearsay statements for DWI on 10/2/2016, and 12/18/2016. revocation was present in October 2016, are strongly corroborated. Some of L.P.’s A week after his October arrest, appel- when he received notice of the revoca- original statements were corroborated lant was notified that his driver’s license tion, which was before he committed the by other evidence, her recantation came was revoked, and the revocation was test refusal offense in December 2016. only after urging from a friend, and L.P. sustained in April 2017, after he waived He waived review of the revocation in had a prior intimate relationship with judicial review. For his December DWI April 2017, at which point the state appellant. These facts are not enough arrest, appellant was charged with, could use the revocation to enhance the for the Supreme Court to conclude that among other offenses, second-degree test charge relating to his December 2016 the district court erred in determining refusal in August 2017. The charge was conduct. The Court concludes that the that L.P.’s recantation did not render her enhanced due to appellant’s October state properly used appellant’s license prior statements untrustworthy. license revocation. Appellant moved revocation as an aggravating factor. State The Supreme Court finds the district to dismiss the second-degree charge, v. Anderson, 941 N.W.2d 724 (Minn. court properly balanced all of the arguing the license revocation cannot 4/15/2020). relevant circumstances of the trust- be used as an aggravating factor unless worthiness of L.P.’s statements to law judicial review has occurred or has been n Evidence: Post-arrest statement to enforcement and, therefore, properly waived by the time of the subsequent police about purchase of drugs from admitted them into evidence under offense. The district court denied ap- defendant is admissible under residual Rule 807. When admitting evidence pellant’s motion. After a stipulated facts exception to hearsay rule. After receiv- under Rule 807, a district court should trial, the court found appellant guilty on ing a tip, police observed appellant sell- make findings regarding the enumerated both counts. The Minnesota Court of ing methamphetamine to L.P. Appellant requirements of Rule 807, including: (1) Appeals affirmed, holding that “a prior and L.P. were arrested, after which L.P. “the statement is offered as evidence of license revocation is present as an ag- submitted to a recorded interview and a material fact;” (2) “the statement is gravating factor to enhance a subsequent made several statements regarding the more probative on the point for which DWI offense after a driver receives drug transaction. At appellant’s trial, the it is offered than any other evidence” notice of the revocation.” district court admitted L.P.’s statements procurable “through reasonable efforts” A person is guilty of second-degree as substantive evidence under Minn. R. by the proponent; and (3) the general test refusal if they refuse to submit to Evid. 807, the residual exception to the purpose behind the rules of evidence a chemical test and one aggravating hearsay rule. At appellant’s trial, L.P. and the interests of justice are served factor was present when the violation recanted her statements to police and by the admission of the statement. The was committed. Minn. Stat. §§169A.20, testified she did not purchase meth- district court here made findings as to subd. 2; 169A.25, subd. 1(b). A prior amphetamine from appellant. The jury requirements (1) and (2), but not (3). driver’s license revocation may qualify found appellant guilty of first-degree sale However, this failure does not automati- as an aggravating factor, under Minn. of a controlled substance and second-de- cally require reversal, as the appellate Stat. §169A.03. Various subdivisions of gree possession of a controlled substance, courts can independently evaluate the section 169A.03, when read together, and the court of appeals affirmed. record. Here, the Supreme Court finds provide that a driver’s license revocation Rule 807 allows for the admission that admission of L.P.’s statements serves under the implied consent law (sections of hearsay not specifically covered in the purpose of Rule 807 and the interests 169A.50 to 169A.53) can be used as an other hearsay exceptions “but having of justice. State v. Vangrevenhof, 941 aggravating factor for purposes of section equivalent circumstantial guarantees N.W.2d 730 (Minn. 4/15/2020). 169A.25, subd. 1(b), if the revocation of trustworthiness.” The totality of the was “present when the violation was circumstances surrounding a proffered n Evidence: The content of an excerpt committed.” statement must be examined to deter- of a writing or statement must be Reviewed or not, a license revocation mine whether the statement is trustwor- examined to determine if contempora- under the implied consent law comes into thy. The district court here balanced the neous admission of additional material existence as of its effective date, which is following relevant circumstances: Some is necessary to clarify inaccuracies. when the commissioner notifies the per- of the investigator’s questions to L.P. Respondent went to trial on a charge of son of the intent to revoke their license. were leading or suggestive, but the inter- second-degree criminal sexual conduct Minn. Stat. §169A.52, subd. 6. Nothing view as a whole was not “entirely leading arising from allegations that he sexually in the implied consent law suggests that a or suggestive;” although L.P. admitted to abused his child. Prior to being charged, revocation must be reviewed by the time just having used drugs and the recording respondent was interviewed by police a subsequent offense is committed to be was difficult to hear clearly, she was not and repeatedly denied the allegations, used as an aggravating factor. obviously impaired; L.P.’s statement was asserting his children’s mother fabri- The Supreme Court previously held, against her penal interest; and L.P. was cated the allegations. At trial, the state in State v. Wiltgen, 737 N.W.2d 561 available for cross-examination at trial. requested to play a limited portion of (Minn. 2007), that using license revoca- The Supreme Court agrees with the dis- the hour-long interview, specifically, the tions that were unreviewed at the time trict court’s assessment of these factors. portion during which the state alleged of charging as aggravating factors violated Additionally, while a recantation may respondent lied about the living arrange- due process. Thus, a license revocation lessen the trustworthiness of a statements with his children, to “show[] con- under the implied consent law is “pres- ment, the court must determine whether sciousness of guilt.” Respondent asked ent” upon its effective date and may be “other uncontroverted evidence dis- that the entire recording be played. used to enhance a DWI charge once the credits the recantation,” whether there The district court allowed the state to

34 Bench&Bar of Minnesota s August 2020 www.mnbar.org | CRIMINAL LAW play the short portion of the recorded to that topic. Thus, admitting the entire judgment of conviction was vacated or interview. Respondent testified about interview was not necessary to give the reversed or a new trial was ordered, and his repeated denials of the allegations jury a full understanding of what respon- there is any evidence of factual innocence during his police interview, and he was dent said in the excerpt or to clarify a whether it was available at the time of cross-examined about the interview. The misimpression created by the excerpt. investigation or trial or is newly discov- jury found respondent guilty. His post- State v. Dolo, 942 N.W.2d 357 (Minn. ered evidence.” Minn. Stat. §590.11, conviction petition was denied, but the 4/29/2020). subd. 1(c) (emphasis added). The court court of appeals reversed and remanded of appeals holds that, by its plain terms, for a new trial, finding that the entire n MIERA: “Any evidence of factual the phrase “any evidence of factual inno- interview should have been played. innocence” does not include evidence cence” means any evidence that shows The Supreme Court, however, about victim’s prior dishonesty that is some fact establishing the absence of the reverses the court of appeals. The Court unrelated to underlying crime. After petitioner’s guilt. addresses the analytical approach to a jury trial, appellant was convicted of Here, appellant received a new trial be used when applying Minn. R. Evid. criminal sexual conduct charges related for ineffective assistance of trial. Prov- 106, which provides: “When a writing to reports made by appellant’s daughter. ing ineffective assistance of counsel did or recorded statement or part thereof is His post-conviction petition was granted not require appellant to establish his introduced by a party, an adverse party and his convictions were vacated due factual innocence. However, in finding may require the introduction at that time to ineffective assistance of counsel. appellant’s trial counsel was ineffective, of any other part or any other writing The state did not retry the case and the district court noted that his trial or recording which ought in fairness to dismissed the charges. The district court counsel failed to procure testimony and be considered contemporaneously with denied appellant petition for an order documents that related to the victim’s it.” As to the fairness requirement, the declaring him eligible for compensation character for untruthfulness. Appellant Supreme Court concludes “that Rule 106 under the Minnesota Imprisonment and argues this evidence goes beyond mere applies when the proposed additional Exoneration Remedies Act (MIERA), impeachment evidence and makes it material (1) relates to the facts offered and he appealed. more likely that he did not commit the in an excerpt of a recorded statement or After being released from incarcera- offenses. The court of appeals finds, writing and (2) is necessary to correct tion following a reversal or vacation of however, that evidence showing the a misleading or distorted impression of his conviction, a person may seek victim’s pattern of past dishonesty does facts created by the admitted excerpt or exoneration compensation by first peti- nothing to show appellant’s lack of guilt, writing.” The district court must examine tioning the court for an order declaring but, instead, goes only to her credibility the content of the excerpt or writing ad- them eligible for compensation based on as a witness. mitted, rather than the purpose for which exoneration. “Exonerated” means that “a The court of appeals notes that a peti- it was admitted. If the substance of the court… ordered a new trial on grounds tioner may still be able to meet MIERA’s excerpt so inaccurately or unfairly dis- consistent with innocence and the exoneration requirement through torts the evidentiary facts that it requires prosecutor dismissed all felony charges impeachment evidence. For example, if immediate correction of its content, fair- against the petitioner arising from the a witness explained the victim told them ness requires that additional material be same behavioral incident.” Minn. Stat. the victim had fabricated the entire contemporaneously admitted. §590.11, subd. 1(b)(1)(ii). The issue claim, this is impeachment evidence but The Court determines that the here is whether appellant received a also represents “any evidence of factual district court’s consideration under Rule new trial “on grounds consistent with innocence.” Here, however, the victim 106 was appropriate and that it did not innocence.” never recanted her accusations and the abuse its discretion in admitting only the “On grounds consistent with inno- accusations were corroborated by other excerpt of respondent’s interview. The cence” is defined to mean either: “(1) witness testimony. Thus, appellant does excerpt covered only limited information exonerated through a pardon or sen- not meet MIERA’s threshold exonera- about sleeping arrangements, and the tence commutation, based on factual in- tion requirement, and the district court remainder of the interview was unrelated nocence; or (2) exonerated because the properly denied his petition. Freeman

www.mnbar.org August 2020 s Bench&Bar of Minnesota 35 Notes&Trends | CRIMINAL LAW | EMPLOYMENT & LABOR LAW v. State, A19-1247, 2020 WL 1983227 These four counts arose from the same following a complaint regarding racial (Minn. Ct. App. 4/27/2020). behavioral incident. Thus, the case is discrimination. The 8th Circuit, in a remanded to the district court to vacate ruling written by Judge David Stras of n Homicide: Depraved-mind murder one of each of the DWI and criminal Minnesota, held that the claimant did requires the defendant’s awareness vehicular operation convictions. State v. not show that the discharge was pretex- that his conduct creates a substantial, Coleman, A19-0708, 2020 WL 1982274 tual and was thus barred from pursuing a unjustifiable risk to human life. While (Minn. Ct. App. 4/27/2020). claim of race discrimination or retalia- intoxicated, appellant collided with an tion. Couch v. American Bottling Co., eight-year-old child and his father while SAMANTHA FOERTSCH 955 F.3d 1106 (8th Cir. 4/16/2020). driving a snowmobile at a high rate of Bruno Law PLLC speed on a frozen lake. The child later [email protected] n Race, gender claims; dismissal died. Appellant was convicted of seven STEPHEN FOERTSCH affirmed. Claims of racial and gen- offenses but sentenced only on one Bruno Law PLLC der discrimination by a supervisor of count of third-degree murder and one [email protected] government services for the needy was count of gross misdemeanor criminal dismissed. The 8th Circuit affirmed per vehicular operation. curiam summary judgment based on First, the court of appeals finds that EMPLOYMENT & LABOR LAW the trial court’s ruling that the claim- the district court erred in its instructions ant failed to exhaust administrative to the jury as to the mens rea element of JUDICIAL LAW remedies by not filing a race bias claim third-degree murder, but that the error n Untimely claims; doctor’s case with the Equal Employment Opportunity was not plain. Third-degree murder dismissed. The dismissal of a race and Commission (EEOC) and that there was requires the state to prove the defendant national origin wrongful termination insufficient evidence of a hostile work- (1) caused the death of another, (2) lawsuit by a doctor was upheld because place. Reddix v. Arkansas Dept. of Work committed an act that was eminently his claims were untimely under fed- Force Services, 2020 WL 1651629 (8th dangerous to others, and (3) evinced a eral and state laws. The 8th Circuit Cir. 4/3/2020) (unpublished). depraved mind without regard for human confirmed partial summary judgment life. The “depraved mind” element is the on grounds that the physician’s claims n Pregnancy bias; combination claim equivalent of a reckless standard, and the under the federal equal pay act and the rejected. A woman’s claims against Hen- recklessness definition the court adopts state discrimination law were not filed nepin County under the state pregnancy here comports with the most common le- within the statutorily required deadlines. and parental leave act and whistleblower gal usage of “reckless.” The district court Mukherjee v. The Children’s Mercy law were rejected. The Minnesota Court did not define “reckless” for the jury, a Hospital, 2020 WL 1813769 (8th Cir. Of Appeals, affirming a ruling of the term for which the ordinary definition 4/9/2020) (unpublished). Hennepin County District Court, held differs from the legal definition. Without that she was not a covered “employee” the legal definition, the jury would have n Discrimination and harassment; phy- under Minn. Stat. §181.94, subd. 2, been allowed to find appellant guilty if he sician’s claims dismissed. A wrongful at the time she requested a pregnancy acted in a careless manner and knew only termination lawsuit by a physician for ra- accommodation and that both of her that his conduct may result in someone cial discrimination retaliation failed. The claims were preempted by the “exclusiv- being killed, which is not enough to sat- 8th Circuit affirmed dismissal on grounds ity” provision of the Minnesota Human isfy the elements of third-degree murder. that the doctor’s poor relationship with Rights Act. Hinrichs-Cady v. Hennepin However, the court of appeals finds that co-workers warranted his discharge by County, 2020 WL 1909355 (8th Cir. this error by the district court was not the clinic where he worked and was not 4/20/2020) (unpublished). plain. The district court’s instruction was pretextual, and that a state law claim for a verbatim rendering of the third-degree a mandatory buyout of his shares in the n Human Rights Act; jurisdiction over murder model instruction and it did not clinic also was not viable. Bharadwaj v. nonprofit. The Minnesota Human Rights contravene existing case law. As the error Mid Dakota Clinic, 954 F.3d 1130 (8th Act extends to employment discrimina- was not plain, it does not require rever- Cir. 4/3/2020). tion claims by a Native American against sal of appellant’s third-degree murder a nonprofit organized by a member of conviction. n Whistleblower claim; retaliation the White Earth Band of Ojibwe. The Next, the court determines that the rejected. A wrongful termination retalia- appellate court affirmed a determination district court did not abuse its discretion tion claim by a mortgage underwriter by the Becker County District Court by admitting Spreigl evidence of appel- under the Federal False Claims Act was that a federal law known as Public Law lant’s prior alcohol-related offense. The rejected. Affirming dismissal by the trial 280 does not preclude state subject court also finds the evidence was suffi- court, the 8th Circuit Court of Appeals matter jurisdiction because the claimant cient to support appellant’s third-degree held that there was sufficient evidence was a Minnesota citizen and the former murder conviction, and that appellant of poor job performance and inability to employer was a Minnesota nonprofit cor- failed to demonstrate that the cumula- get along with co-workers that prompted poration. Campbell v. Honor The Earth, tive effect of any alleged prosecutorial the termination. Sherman v. Berkadia 2020 WL 1909717 (8th Cir. 4/20/2020) errors deprived him of his right to a fair Commercial Mortgage, LLC, 956 F.3d (unpublished). trial. 526 (8th Cir. 4/14/2020). Finally, the court holds the district n Unemployment compensation; deliv- court erred by entering two convictions, n Racial discrimination; retaliation ery man’s refusal bars claim. A refusal rather than one, for each of the following dismissed. The manager of a bottling by an employee to make deliveries as offenses: two counts of criminal vehicu- plant had his claim of retaliatory firing required by his employer precluded his lar operation and two counts of DWI. dismissed after he had been terminated claim for unemployment compensation

36 Bench&Bar of Minnesota s August 2020 www.mnbar.org | EMPLOYMENT & LABOR LAW | ENVIRONMENTAL LAW benefits. The court of appeals upheld the Title VII of the Federal Civil Rights in this column last month), setting up a denial of benefits because his refusal to Act in Bostock v. Clayton County, 140 S. circuit-court split that could stamp this is- perform the work was based on a dispute Ct. 1731 (2020); Horton v. Midwest Ge- sue’s ticket to the U.S. Supreme Court. with his employer over a bill he had riatric Management, 2020 WL 3636336 Title I of the CAA, passed in 1977, submitted, and not, as he claimed, due (8th Cir. July 6, 2020) (per curiam). establishes the new source review (NSR) to his health. Rahn v. Midway Farm program, which requires operators to Equipment, Inc., 2020 WL 1671693 (8th MARSHALL H. TANICK obtain a preconstruction permit before Cir. 4/6/2020) (unpublished). Meyer, Njus & Tanick building a new facility or modifying [email protected] an old one. States issue NSR permits n Untimely appeal; revenue recapture through EPA-approved state implemen- allowed. A six-year delay in appealing tation plans (SIPs). Title I establishes the determination of the Department ENVIRONMENTAL LAW significantly more stringent NSR permit of Employment & Economic Develop- requirements for sources classified as ment (DEED) that an employee must JUDICIAL LAW “major” (having the potential to emit pay back wrongfully received unemploy- n 10th Circuit rejects EPA’s position 100 tons per year or more of any air ment benefits was time-barred. The ap- limiting the scope of Title V reviews. pollutant) compared to those that pellate court affirmed the determination A three-judge panel of the U.S. Court are “minor.” In 1990, Congress added that DEED could recapture the revenue, of Appeals for the 10th Circuit rejected Title V to the CAA; it was designed to because the applicant failed to comply the position recently adopted by the U.S. provide each source a single operating with the applicable 30-day deadline Environmental Protection Agency (EPA) permit that consolidates all the various for appealing the determination. In re: that when reviewing Clean Air Act requirements from the source’s other air Abdirahaman, 2020 WL 1673722 (8th (CAA) Title V air emission permits, the permits, including NSR preconstruction Cir. 4/6/2020) (unpublished). agency is not required to reevaluate the permits as well as applicable state-only substantive validity of underlying Title I requirements. Generally, Title V permits n LGBTQ firing; remand due to preconstruction permits or states’ deter- do not add any new substantive require- Bostock. The dismissal of a discrimina- minations regarding whether a source was ments beyond those included in the tion lawsuit by an employee who claimed properly classified as “major” or “minor.” source’s underlying permits. he was discharged because he is gay was The decision is in marked contrast to a It’s relevant to this case that the reversed. The 8th Circuit reversed and recent decision by the 5th Circuit that CAA requires Title V permits to include, remanded based on the decision of the deferred to EPA’s new policy, Environmen- among other things, emissions limits, U. S. Supreme Court this June holding tal Integrity Project (EIP), et al. v. EPA, No. monitoring requirements, and “such oth- that LGBTQ status is protected under 18-60384 (5th Cir. 5/29/2020) (discussed er conditions as are necessary to assure

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 August 2020 s Bench&Bar of Minnesota 37 Notes&Trends | ENVIRONMENTAL LAW compliance with applicable requirements unless it was plainly erroneous or incon- legal obligations during the covid-19 of this chapter, including the require- sistent with the regulation. See Auer v. pandemic. ments of the applicable [SIP].” 42 U.S.C. Robbins, 519 U.S. 452, (1997). But the On 3/26/2020, EPA had announced §7661c(a) (emphasis added). EPA has court also noted that Auer deference is that it would exercise enforcement dis- defined the key term “applicable require- only appropriate when the regulation is cretion for noncompliance that resulted ments” to mean, in relevant part, “all of genuinely ambiguous. Here, the court from the pandemic. The temporary the following as they apply to emissions found that §70.2 “unmistakably requires policy directed entities to make every units in a part 70 source...: (1) Any stan- that each Title V permit include all effort to comply with their environmen- dard or other requirement provided for requirements in the state implementa- tal compliance obligations. But under in the applicable implementation plan tion plan, including Utah’s requirements circumstances where compliance was approved... by EPA…” 40 C.F.R. §70.2. for major NSR.” This was clear not only not reasonably practicable, the tempo- In 2017, EPA, in denying a petition to from the language of §70.2(1) (”any rary policy directed entities to identify object to a Title V permit for a Utah standard or other requirement provided and document the specific nature and power plant, announced that it now con- for in the applicable implementation dates of noncompliance and identify and strues §70.2 such that the requirements plan”) but also by §70.2(2), which document how covid-19 was the cause described by subsection (1) are merely includes as part of “applicable require- of the noncompliance. Furthermore, those contained in the facility’s existing ments” any “term or condition of any the temporary policy directed entities of Title I permit; if the requirements from preconstruction permits issued pursuant noncompliance to document the deci- the underlying permit(s) are included to regulations approved or promulgated sions and actions taken in response to in the facility’s Title V permit, EPA, as through rulemaking.” the noncompliance, including the best part of its review of a Title V permit, will This language, the court held, “clari- efforts to comply with their environ- not question the validity of the require- fies that terms in the preconstruction mental obligations and the steps taken ments. EIP v. EPA 7. As noted, the 5th permits supply additional requirements” to come into compliance at the earliest Circuit in EIP v. EPA deferred to EPA’s (and not the only requirements, as opportunity. interpretation. EPA argued). The court also rejected Where EPA agreed that covid-19 was The 10th Circuit did not. The case EPA’s arguments that the introductory the cause of noncompliance, the agency at hand, Sierra Club v. EPA, involved language “as they apply” in §70.2 limits would not seek penalties for violations the renewal of a Title V permit for an the scope of “applicable requirements” of routine compliance activities such as industrial plant in Utah. Previously, the to only those conditions contained in monitoring, integrity testing, sampling, state had granted the plant a minor NSR earlier NSR permits. Likewise, the court laboratory analysis, training, and report- permit to make certain modifications. was unconvinced by EPA’s references to ing or certification. The temporary policy Utah incorporated the provisions of the rulemaking history. EPA’s interpretation did not apply to any criminal violations minor NSR permit in the proposed Title of “applicable requirements,” the court or activities carried out under Superfund V permit. EPA did not object to the held, “conflicts with the unambiguous or RCRA Corrective Action enforce- proposed permit. Sierra Club then filed regulatory definition.” Accordingly, ment instruments. a petition to compel the EPA to object, the court remanded to EPA for further The termination of the temporary arguing in part that the earlier modifica- consideration of Sierra Club’s petition. policy will take place at 11:59 PM EST, tions should have triggered major NSR Sierra Club v. EPA, No. 18-9507 (10th 8/31/2020. After 8/31, EPA will not base requirements. EPA argued that, consis- Cir. 7/2/2020). any exercise of enforcement discretion tent with the agency’s 2017 policy, it was on the temporary policy for any noncom- inappropriate to reevaluate the state’s ADMINISTRATIVE ACTION pliance. In its 6/29 memo, EPA said that decision of whether major or minor NSR n EPA ending covid-19 enforcement it may terminate the temporary policy requirements applied. discretion policy. In late June the U.S. prior to 8/31/2020, either nationally or at On review, the court applied “Auer Environmental Protection Agency (EPA) a more local level, depending on chang- deference,” stating that it would consider gave notice that it will be terminating ing conditions across the country, the EPA’s interpretation of its own regula- its temporary policy allowing for discre- lifting of “stay at home” orders in a state, tion, i.e., 40 C.F.R. §70.2, controlling tionary enforcement of environmental and the status of federal and/or state covid-19 public health emergency guidelines. If it does terminate the temporary policy early, the agency will provide to the public at least seven days advance notice before official termination of the policy. EPA Memorandum, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program: Adden- dum on Termination (6/29/2020).

n Line 3 contested case hearing scheduled. On 6/3/2020, the Minnesota Pollution Control Agency (MPCA) announced it would be granting a contested case hearing on its draft 401 Water Quality Certification for Enbridge’s Line 3 replacement project. The MPCA’s announcement came in response to

38 Bench&Bar of Minnesota s August 2020 www.mnbar.org | ENVIRONMENTAL LAW | FEDERAL PRACTICE petitions for contested case hearings JEREMY P. GREENHOUSE granted the TRO, but also indicated received by the MPCA from environ- The Environmental Law Group, Ltd. that she would take a longer look at the mental organizations and Tribal Nations [email protected] personal jurisdiction issue in conjunction after the MPCA issued a public notice of JAKE BECKSTROM Vermont Law School, 2015 with the defendant’s motion to dismiss its preliminary determination to issue the ERIK ORDAHL Barna, Guzy & Steffen and the plaintiff’s motion for a prelimi- 401 Certification, along with a National AUDREY MEYER University of St. Thomas nary injunction, and ordered the parties Pollution Discharge Elimination System/ School of Law, J.D. candidate 2020 to meet and confer to address the poten- State Disposal System permit, and a tial need for jurisdictional discovery. 3M capped air emission permit. Co. v. Starsiak, 2020 WL 3566718 (D. In reviewing the petitions received, FEDERAL PRACTICE Minn. 6/26/2020). the MPCA concluded that the requirements to hold a contested case hear- JUDICIAL LAW n Standing; preliminary injunction. ing under Minnesota Rule 7000.1800, n Notice of appeal; specificity. Reject- Where plaintiffs brought an action chal- subpart 2.A were met with regard to the ing the appellee’s argument that the lenging Minnesota’s ballot order statute petition presented jointly by Friends of appellant’s notice of appeal failed to and sought a preliminary injunction, and the Headwaters, Sierra Club, and Honor specifically identify the district court’s an amicus challenged plaintiffs’ standing, the Earth, with the White Earth band of class certification orders, the 8th Circuit Judge Nelson acknowledged a circuit split Ojibwe and the Red Lake Band of Chip- found that a notice of appeal that identi- on the issue of what measure of proof pewa Indians (collectively, the Friends of fied “all previous rulings and orders that applied to the issue of plaintiffs’ standing the Headwaters Petition). The MPCA de- led up to and served as a predicate for at an early stage in the litigation, held termined that the Friends of the Headwa- that final judgment” was sufficient for that plaintiffs were not required to prove ters petition presented five issues of fact the appellant to appeal the class certi- standing at the preliminary injunction that satisfied the criteria for granting a fication orders. Vogt v. State Farm Life stage “with the same degree of proof” contested case. The five issues of fact are: Ins. Co., ___ F.3d ___ (8th Cir. 2020). that would be required at the summary judgment stage, and that plaintiffs had 1. Does Enbridge’s proposed use n Motion for summary judgment; sham provided “ample affidavit evidence” to of trench methods for stream cross- affidavit doctrine. Rejecting the plain- support standing. Pavek v. Simon, 2020 ings have temporary or permanent tiff’s argument that the defendant had WL 3183249 (D. Minn. 6/15/2020). impacts on water quality parameters relied on “sham” affidavits in support of concern? of its motion for summary judgment, n Motion to disqualify counsel; stand- 2. Have Enbridge and the the 8th Circuit found that the affidavits ing; class action opt-outs. In separate MPCA identified the least degrading were not “shams,” and suggested in dicta opinions in the same MDL, Judge Davis crossing method that is prudent and that the sham affidavit doctrine applies first rejected an attempted mass opt-out feasible for each stream crossing? only to affidavits submitted by the party of a class action settlement by thousands 3. Have Enbridge and the opposing summary judgment. Button v. of class members where the opt-out MPCA undercounted the full acreage Dakota, Minn & E. R.R. Corp., ___ documents were signed by counsel rather of the project’s wetland impacts due F.3d ___ (8th Cir. 2020). than each plaintiff as required by the to flaws in wetland delineation and settlement agreement. survey methodologies related to the n Temporary restraining order; per- In the second opinion, Judge Davis seasonality of delineation activities? sonal jurisdiction. Where the plaintiff denied the defendant’s motion to dis- 4. Have Enbridge and the commenced an action and sought a qualify counsel for the opt-out plain- MPCA undercounted the full acreage temporary restraining order, and the tiffs, finding that the defendant lacked of wetlands that are physically altered defendants opposed the TRO motion standing to bring the motion because by trenching? and brought a motion to dismiss for lack it was not a current or former client of 5. Have Enbridge and the of personal jurisdiction, Judge Nelson those attorneys, and it did not allege MPCA incorrectly determined that found that the plaintiff had made a prima that those attorneys had obtained its the impacts to wetlands that are facie case for personal jurisdiction and confidential information, meaning that physically altered by trenching are temporary? 6. Other than these five issues of fact, the MPCA determined that SOCIAL SECURITY DISABILITY there were no other issues presented in the other petitions that satisfied INITIAL APPLICATION THROUGH HEARING the criteria required to grant a contested case.

The contested case hearing is set to take place August 24-28, 2020, with the administrative law judge report due by 10/16/2020, and the final decision regarding the 401 Certification due 612-825-7777 by 11/14/2020. In the Matter of the www.livgard.com Contested Case Hearing Requests on the Paul Stephanie Successfully pursuing benefits since 1993 Draft 401 Certification for the Line 3 Livgard Christel Replacement Project. www.mnbar.org August 2020 s Bench&Bar of Minnesota 39 Notes&Trends | FEDERAL PRACTICE | INDIAN LAW it was the opt-out plaintiffs, rather than should be decided by an arbitrator, Judge the motion without prejudice, finding the defendant, that had been harmed Magnuson held that the issue was to that plaintiff had not produced the by their counsel’s alleged misconduct. be determined by the court, and that required prima facie evidence to support In Re: CenturyLink Sales Practices the defendant had waived any right to each of its claims, and that the requested & Sec. Litig., 2020 WL 3512807 (D. arbitrate by litigating motions to compel discovery was overbroad to the extent Minn. 6/29/2020); In Re: CenturyLink discovery, a motion to stay, appeals of that it sought information beyond the Sales Practices & Sec. Litig., 2020 WL Magistrate Judge’s decisions and a mo- name, contact information, and ISP infor- 3513547 (D. Minn. 6/29/2020). tion for partial summary judgment, and mation for each defendant. NCS Pearson, waiting until “after receiving unfavorable Inc. v. John Does (1 through 21), 2020 n Standing; receipt of text messages; rulings” before attempting to invoke its WL 3249292 (D. Minn. 6/16/2020). injury; motion to compel arbitration. right to arbitrate. Borup v. CJS Solu- Chief Judge Tunheim denied the defen- tions Grp., LLC, 2020 WL 2769143 (D. n Multiple requests for interlocutory dant’s motion to dismiss a putative spam Minn. 5/28/2020). appeal denied. Judge Wright denied text message class action pursuant to plaintiffs’ request for entry of judgment Fed. R. Civ. P. 12(b)(1) and 12(b)(6), n Discovery; failure to respond; waiver pursuant to Fed. R. Civ. P. 54(b) or certi- finding that the “majority” of courts had of objections. Where the defendants fication pursuant to 28 U.S.C. §1292(b), found that the receipt of a single text failed to respond or object to the plain- finding that the relevant factors weighed message caused an “injury” sufficient tiffs’ discovery requests within the against the “extraordinary remedy” of to confer standing and that the plain- deadlines set forth in the Federal Rules of Rule 54(b) relief, and that the plaintiffs tiffs had adequately alleged all of the Civil Procedure, Magistrate Judge Leung had not met their burden on at least two elements of their claim, and also denied rejected defendants’ attempt to establish of the three factors governing Section defendant’s motion to compel arbitra- “good cause” for their failure to respond 1292(b) certification. In Re Polaris Mktg., tion against one plaintiff, finding that and found that their failure to serve Sales Practices and Prods. Liab. Litig., the defendant had not met its burden to timely objections resulted in the waiver of 2020 WL 3530624 (D. Minn. 6/30/2020). demonstrate the existence of a contract any objections, meaning that defendants Judge Frank denied the defendants’ that required arbitration. Pederson v. were required to respond to the discovery motion to certify five questions for Donald J. Trump for President, Inc., requests “in full.” Laughlin v. Stuart, interlocutory appeal under 28 U.S.C. 2020 WL 3047779 (D. Minn. 6/8/2020). 2020 WL 3171326 (D. Minn. 6/15/2020). §1292(b), finding that none of the questions involved controlling issues of law, n Motion to strike jury demand granted. n Denial of motion to compel arbitra- and that further delays in the case, which Affirming an order by Magistrate Judge tion; appeal; stay granted. Acknowledg- has been pending for 12 years, would Schultz, Judge Wright agreed that plain- ing “a well-documented circuit split,” a fail to advance the interests of justice. tiff’s jury demand should be stricken split within the District of Minnesota, United States ex rel. Johnson v. Golden where the plaintiff sought the equitable and the absence of an 8th Circuit deci- Gate Nat’l Senior Care, L.L.C., 2020 remedy of disgorgement under the Copy- sion on point, Judge Tostrud stayed pro- WL 3072315 (D. Minn. 6/10/2020). right Act. Judge Wright also declined to ceedings pending resolution of the defen- determine whether the motion to strike dant’s appeal of the denial of its motion JOSH JACOBSON was dispositive or nondispositive, finding to compel arbitration. Engen v. Grocery Law Office of Josh Jacobson that because the order involved a “pure Delivery E-Services USA Inc., 2020 WL [email protected] question of law,” it was subject to de novo 3072316 (D. Minn. 6/10/2020). review in any event. Fair Issac Corp. v. FDIC, 2020 WL 3446872 (D. Minn. n Motion for leave to conduct expedited INDIAN LAW 6/24/2020). third-party Doe discovery denied. Where the plaintiff sought expedited third-party JUDICIAL LAW n Arbitration; litigation waiver; who discovery from Google relating to the n For purposes of the Major Crimes Act, decides? Rejecting the defendant’s argu- identity of numerous John Doe defen- millions of acres in eastern Oklahoma ment that the issue of litigation waiver dants, Magistrate Judge Wright denied reserved for the Muscogee (Creek) Nation remain Indian country. Following a failure to reach a decision last term in Carpenter v. Murphy due to Justice Gor- such’s recusal, the Supreme Court held in a 5-4 decision that the Muscogee (Creek) ERISA DISABILITY CLAIMS Nation’s Reservation had never been disestablished. Following his criminal ERISA LITIGATION IS A LABYRINTHINE MAZE OF conviction in Oklahoma state court, the REGULATIONS AND TIMELINES. LET OUR EXPERIENCE HELP. enrolled tribal member McGirt argued that because his conduct occurred within the Creek Reservation, the Major Crimes Act divested the state court of jurisdiction over his crimes, and he should have been tried in federal court. The Supreme ROB LEIGHTON DENISE TATARYN Court rejected the state of Oklahoma’s 952-405-7177 952-405-7178 arguments, and held that the United States established a reservation for the Creek Nation in the early 1800s through

40 Bench&Bar of Minnesota s August 2020 www.mnbar.org | INDIAN LAW | INTELLECTUAL PROPERTY | TAX LAW treaties, Congress did not diminish or against Inline alleging infringement of a a confidentiality agreement. The tech- disestablish that reservation through utility patent and design patents. Inline nology in question was disclosed in three any legislative enactments during the brought an inter partes review against of Wilson Wolf’s patent applications and allotment era, and historical practice Graphic’s utility patent, which resulted in a Small Business Innovation Research and demographics are not enough, on in the invalidation of the patent. In July Grant application that Wilson Wolf filed their own, to constitute disestablishment 2015, while the patent infringement case with the National Institute of Health. of an Indian reservation. Justice Gor- was pending, Inline filed suit against On 3/29/2017, the court found that such issued a strongly worded opinion, Graphic alleging antitrust and tortious summary judgment was not proper with refusing to elevate “the most brazen and interference violations. The district court respect to the contract claim because longstanding injustices over the law” granted Graphic’s motion for summary issues of material fact existed regarding and requiring the United States keep judgment, dismissing all of Inline’s claims the misuse of confidential information. its treaty promises. The Supreme Court and denying Inline’s motion for partial On 12/26/2017 the United Stated Pat- made its decision under the definition summary judgment. Inline appealed. ent Office’s Patent Trial and Appeals of “Indian country” used in the Major On appeal, after first dismissing Inline’s Board invalidated Wilson Wolf’s patent. Crimes Act, 18 U.S.C. §1151, but this antitrust claim, the 8th Circuit affirmed Wilson Wolf’s request for rehearing and definition is borrowed and referenced in the district court’s dismissal of Inline’s subsequent appeal to the federal circuit many other criminal and civil statutes. tortious interference claims. The 8th were both denied. Corning then renewed McGirt v. Oklahoma, No. 18-9526, 2020 Circuit noted that federal law preempts its motion for summary judgment. On WL 3848063 (U.S. 7/9/2020). state tort liability when a patent holder, Corning’s renewed motion, the court in good faith, asserts a warning about found that the PTAB’s decision had no n Non-federally recognized tribe must pursuing potential patent infringement effect on Wilson Wolf’s breach of con- exhaust administrative remedies prior litigation. Only if the patent owner acts tract claim. The court reasoned that a to lawsuit. The District Court for the in bad faith does the state claim survive question of fact remained as to whether District of Columbia granted the United federal preemption. The 8th Circuit the information covered in the patent States’ motion to dismiss a complaint concluded that because Inline failed to was considered confidential informa- filed by the Mdewakanton Band of Sioux show that Graphic acted in bad faith, tion (as protected by the confidentiality in Minnesota seeking listing as a federal- the district court properly dismissed agreement) despite the patent being ly recognized Indian tribe in the Federal the claim based on preemption. Inline invalidated. Wilson v. Corning Inc., No. Register. The court rejected arguments Packaging, LLC v. Graphic Packaging 13-210 (DWF/TNL), 2020 U.S. Dist. by the band that the Department of the Int’l, LLC, No. 18-3167, 2020 U.S. App. LEXIS 105942 (D. Minn. 6/17/2020). Interior’s administrative process for rec- LEXIS 19061 (8th Cir. 6/18/2020). ognizing Indian tribes was inapplicable JOE DUBIS due to the band’s unique history, and n Patent: Invalidation of patent does not Merchant & Gould required the band to avail itself of that impact breach of contract adjudication. [email protected] process before filing suit. Mdewakanton Judge Frank recently denied Corning GABRIELLE KIEFER, Merchant & Gould Band of Sioux in Minnesota, No. 19- Inc.’s renewed motion for summary judg- 402 (TJK), 2020 WL 2800615 (D.D.C. ment to dismiss Wilson and Wilson Wolf 5/30/2020). Manufacturing Corp.’s claims of breach TAX LAW of contract, trade secret misappropria- LEAH K. JURSS tion, and correction of inventorship. JUDICIAL LAW Hogen Adams PLLC Wilson is the founder and CEO of Wil- n “Tool plans” face continued scru- [email protected] son Wolf, a biotechnology company that tiny; Section 6700 penalties upheld. For develops and manufactures cell-culture several years, the Service has focused devices. Corning is a multinational tech- enforcement on so-called “tool plans.” INTELLECTUAL PROPERTY nology company that, Wilson alleges, Such plans purport to receive tax-favored developed products using Wilson Wolf’s treatment as “accountable plans” under JUDICIAL LAW technology after obtaining access under Internal Revenue Code §62(c) and the n Patent: Tort claims preempted by patent law. The Court of Appeals for the 8th Circuit recently affirmed the U.S. District Court for the District of Minnesota’s grant of summary judg- ¡ Los Clientes Necesitan ment in favor of Graphic Packaging Int’l, Alguien Que Les Entienda! LLC and against Inline Packaging, LLC. Graphic and Inline compete in the con- Need to refer out or co-counsel with a sumer-packaged-goods industry. In 2014, Spanish-speaking attorney? Nestlé held a one-day auction to select Think of us for your LITIGATION matters. a supplier of susceptor sleeves for three product lines: Kahiki, Croissant Pockets, Civil • Business • Employment and Hot Pockets. Inline was awarded the business for all three products. ¡Gracias! Following Graphic’s cease-and-desist letter to Inline, Nestlé awarded Graphic a three-year contract. In June 2015, Inti Martínez-Alemán, Esq. 651-317-4895 | ceibaforte.com Graphic filed a patent infringement suit www.mnbar.org August 2020 s Bench&Bar of Minnesota 41 Notes&Trends | TAX LAW accompanying regulations. An “account- Ultimately, Mr. Davison was assessed tax court that the $24 million he had able plan” permits employers to reimburse Section 6700 penalties of $36,000 and received from an unrelated business employees without the reimbursement Mr. LeMay faced significantly higher associate was a gift for tax purposes. Mr. being considered income. For a plan to total penalties (around $180,000). Both Kroner did not call the purported giftor be an “accountable plan” and receive this petitioned the tax court for review to testify and did not provide persuasive tax-neutral treatment, the expenses must of their respective penalties. Neither documentary evidence that the multi- be business-related and accounted for succeeded in his challenge, and the million dollar transfer was a gift. The properly, and any amounts paid in excess tax court upheld the penalties. Both failure of the purported giftor to testify is of actual costs must be returned to the petitioners have filed appeals to the 10th significant, since case law dictates that company within a specified timeframe. Circuit. Davison v. Comm’r, TCM 2020- it is the donor’s intent that controls the While many accountable plans are 058 (T.C. 2020); LeMay v. Comm’r, question of whether a transfer proceeds nonabusive, the Service determined that T.C.M. 2020-059 (T.C. 2020). from the requisite “detached and disin- some accountable plans are designed terested generosity” for the transfer to at- only to evade tax and are abusive. The n What’s in a name? Service disputes tain gift status. Mr. Kroner instead relied Service created an enforcement team to taxpayers’ characterizations of transfers on his own testimony, which the court ferret out such abusive plans. At issue as loans or gifts. In our introductory found “self-serving,” and the testimony in these cases are those plans that were income tax classes, we learn that loans of two other witnesses whom the court designed and operated around a struc- are not income. Gifts are not income determined to be “simply not credible.” ture that recharacterized a portion of the either. These are easy rules to recite, but Kroner v. Comm’r, TCM (RIA) 2020- employee’s existing pay as a “reimburse- the dividing line between loans or gifts 073 (T.C. 2020). ment” for the employee’s tools merely on one hand and income on the other is While Kroner explored the line to generate tax savings for both the not always easy to divine, as three recent between gift and income, a different case employer and the employee. cases illustrates. explored whether transfers made over Two such cases recently made their In the first case, a taxpaying couple ar- many years from a mother to an adult way through the tax court. The cases gued that litigation support payments re- child were properly considered loans or were consolidated for trial but were ceived by the taxpayer husband were not gifts. Mary Bolles advanced just over $1 reported separately. Allen Davison and income, but loans. Mr. Novoselsky was million to her son, Peter, during her life- Bruce LeMay had been friends since the a well-known Chicago-area class-action time. To determine the proper character- early ‘90s. In late 1999, the two decided attorney. Under the agreements at issue, ization of the advances, the court applied to work together to promote tool plans. individuals not related to Mr. Novoselsky a multifactor test, including whether: Mr. LeMay had worked as an insurance made an upfront payment to support (1) there was a promissory note or other executive and Mr. Davison was an at- the cost of litigation. If the litigation was evidence of indebtedness, (2) interest was torney and CPA who at the time worked successful, Mr. Novoselsky returned the charged, (3) there was security or collat- as a tax partner at Grant Thornton. (Mr. initial payment plus a premium from Mr. eral, (4) there was a fixed maturity date, Davison’s relationship with GT ended in Novoselsky’s award of attorney’s fees and (5) a demand for repayment was made, 2001.) The pair spent months devising costs. If the litigation was unsuccessful, (6) actual repayment was made, (7) the the tool plans at issue in this dispute. Mr. Novoselsky had no obligation to re- transferee had the ability to repay, (8) Despite advice from several firms that pay. Mr. Novoselsky (and his spouse) did records maintained by the transferor and/ the plans would not be respected by the not report the payments thus received as or the transferee reflect the transaction Service (including advice from Grant gross receipts or income. After an audit, as a loan, and (9) the manner in which Thornton, which eventually disavowed the Service disagreed with Mr. Novosel- the transaction was reported for federal the tool plans at issue in this dispute) the sky’s characterization. To be considered tax purposes is consistent with a loan. pair marketed their tool plans through a a loan for federal income tax purposes, Citing Miller v. Comm’r, T.C. Memo. 1996- company—Cash Management Systems the recipient must have an unconditional 3, aff’d, 113 F.3d 1241 (9th Cir. 1997). (CMS)—created for that purpose. obligation to repay. Since repayment of Since the loan from Mary to Peter CMS had success promoting its tool the litigation support payments was con- was in a family setting, the court also plans. But eventually clients’ returns ditioned on the outcome of the litigation, applied the “longstanding principle that were audited by the IRS in connection the litigation support payments were not an actual expectation of repayment and with their participation in the plans. loans for federal income tax purposes. an intent to enforce the debt are critical In total 24 CMS client-employers had The petitioners were liable for accuracy- to sustaining the tax characterization of returns audited by the IRS, resulting in related penalties of just over $100,000. the transaction as a loan.” In this case, total tax due of $4.5 million. Novoselsky v. Comm’r, T.C.M. (RIA) the court was not persuaded that Mary Although they eventually stopped 2020-068 (T.C. 2020). had an actual expectation of repayment. selling new plans, CMS, Mr. Davison, Just as bona fide loans are not income, The transfers, therefore, were character- and Mr. LeMay continued to provide gifts are not income. Similarly, though, ized as gifts, not loans. Estate of Mary P. advice to existing clients even as Mr. just as calling something a “loan” does Bolles v. Comm’r, T.C.M. (RIA) 2020- Davison faced an action by the United not make it so, labeling a transfer a 071 (T.C. 2020). States to enjoin him from promoting tax “gift” does not make it so. In fact, even shelters. In addition to the injunction ac- transfers that might be common law n Cleaning services workers indepen- tion, the IRS opened a section 6700 pen- “gifts” might not be “gifts” in the statu- dent contractors, not employees. Com- alty examination against CMS, Mr. tory sense, because to be a gift in the paring the petitioner to a “dispatcher,” Davison, and Mr. LeMay regarding the statutory sense the donor must make the the tax court rejected the commissioner’s tool program. Section 6700 authorizes transfer with “detached and disinterested argument that the taxpayer had misclas- the imposition of penalties on those who generosity.” In Kroner v. Commissioner, sified employees as independent contrac- organize and sell abusive tax shelters. a taxpayer was unable to persuade the tors. Ms. Santos owned and operated a

42 Bench&Bar of Minnesota s August 2020 www.mnbar.org | TAX LAW cleaning service that focused on “unit n Petitioner raises constitutional motion to dismiss because the parties turnover cleaning,” which involved clean- defense that evidence of a mailed notice had not argued the case law in detail. ing apartments when they were vacant is not sufficient due process, court is The commissioner opposed Mr. Olson’s between tenants. Ms. Santos had con- unpersuaded. Mr. Olson appealed a tax motion for leave. tracts with numerous apartment complex- order dated 9/6/2017, which assessed Minn. Stat. §271.06, subd. 2 (2018) es and worked with other individuals to him for sales and use taxes from Decem- states that a taxpayer has 60 days to ap- provide the necessary cleaning services. ber 2013 to December 2016. Mr. Olson peal an order of the commissioner. Fail- Ms. Santos considered the other cleaning runs a farming operation and a heavy ure to timely file an appeal deprives providers to be independent contractors. construction business in Thief River the court of subject matter jurisdiction. The Service argued that the providers Falls. Prior to the issuance of the tax See Langer v. Comm’r of Revenue, 773 were in fact employees of Ms. Santos’s order at issue, the commissioner sent Mr. N.W.2d 77, 80 (Minn. 2009). If the court business. Applying well-established com- Olson numerous letters concerning an lacks subject matter jurisdiction, Min- mon law factors, the court agreed with audit for sales and use taxes. After Mr. nesota Rules of Civil Procedure 12.02(a) Ms. Santos. The court found that Ms. Olson did not respond to the preliminary allows for a party to move for dismissal. Santos credibly testified that she lacked audit, the commissioner mailed the dis- In the court’s analysis, the court stated the requisite control over the providers puted tax order. On December 26, 2019, that under Minn. Stat. §270C.33, subd. for the providers to meet the “employee” Mr. Olson filed his appeal of the tax or- 8 (2018), the commissioner need only criteria. Ms. Santos, therefore, was not der, in which he disputed all the amounts to establish that the order was mailed liable for the federal employment taxes determined in the order. Mr. Olson as- with postage prepaid to the taxpayer at as determined by the IRS for the periods serts that he never received the commis- the taxpayer’s last known address, not at issue. Santos v. Comm’r, TCM (RIA) sioner’s tax order and only learned of the actually received. As to Mr. Olson’s con- 2020-088 (T.C. 2020). tax liability when his bank account was stitutional defense, the court noted that levied by the Department. The commis- the Minnesota Supreme Court held that n More conservation easement cases. sioner filed a motion to dismiss, stating within the tax assessment process, “the Last month we reported on several con- that the appeal is untimely, and the tax due process required is ‘notice reasonably servation easement cases, including Oak- court lacked subject matter jurisdiction calculated, under all the circumstances, brook Land Holdings, LLC v. Comm’r, 154 over the appeal. The commissioner’s to apprise interested parties of the T.C. 25 (TC 2020), in which a divided motion included an affidavit from an em- pendency of the action and afford them tax court upheld a regulation setting out ployee who attested to having reviewed an opportunity to present their objec- rules for charitable donations or con- the Department’s electronic and paper tions.’” See Turner v. Comm’r of Revenue, servation easements. Citing Oakbrook records, which showed the tax order 840 N.W.2d 205 (Minn. 2013). Holdings, the tax court again upheld the under appeal was printed on 9/1/2017 at There was no dispute that all the denial of a claimed charitable deduction 11:04 p.m. and postmarked on 9/5/2017, commissioner’s correspondence, includ- for a conservation easement. Lumpkin at 11:10 a.m. Mr. Olson responded to ing the disputed tax order, used the HC, LLC, Hurricane Creek Partners v. the commissioner’s motion, stating that: correct mailing address. Ruling that Comm’r, T.C.M. (RIA) 2020-095 (T.C. 1) the tax order was not mailed, and the commissioner issued her tax order 2020) (finding that “[t]he deed grant- 2) if the court determined that the tax in this case on 9/5/2017, the court ing the conservation easement reduces order was mailed, mailing is not con- stated that the appeal would have been the donee’s share of the proceeds in the stitutionally sufficient due process. On timely if filed no later than Wednesday, event of extinguishment by the value 5/21/2020, Mr. Olson filed a motion for 11/8/2017. Mr. Olson’s appeal was filed of improvements (if any) made by the leave to supplement the factual record, more than two years after the dead- donor” and therefore holding that the and to allow supplemental briefing. In his line. Therefore, the court found the ap- taxpayer “has not satisfied the perpetuity supplements, Mr. Olson states that he peal to be untimely, and the court lacked requirement of section 170(h)(5)(A)” is unable to pay the amount in the tax subject matter jurisdiction. The commis- and thus was not entitled to summary order without substantial personal and sioner’s motion to dismiss was granted. judgment). Several cases involving business hardship, and that the court Olson v. Comm’r of Revenue, 2020 WL charitable contribution deductions for should not grant the commissioner’s 3455828 (Minn. T.C. 6/15/2020). conservation easements were reported this month. See, e.g., Maple Landing, LLC, Effingham Mangers, LLC v. Comm’r, T.C.M. (RIA) 2020-104 (T.C. 2020) (granting commissioner’s motion for summary judgment in a similar conservation easement dispute); Plateau Holdings, LLC, Waterfall Develop- ment Manager, LLC v. Comm’r, T.C.M. (RIA) 2020-093 (T.C. 2020) (holding the IRS property disallowed a claimed $25.5 million deduction and noting that just days prior to the contribution, an investor had acquired, in an arm’s-length transaction, a 98.99% indirect owner- ship interest in Plateau for less than $6 million).

www.mnbar.org August 2020 s Bench&Bar of Minnesota 43 Notes&Trends | TAX LAW n Walmart challenges valuation on mandatory disclosure rule of Minn. claim of unequal assessment first requires several Anoka County properties, raises Stat. section 278.05, subd. 6 (2018) for the taxpayer to establish the overvalu- claims of discrimination. Walmart and income-producing property. Additionally, ation of the subject property and obtain Anoka County are engaged in a series the county alleges that Walmart lacks a reduction of its estimated market value of valuation disputes with respect to standing to bring a chapter 278 petition to the actual market value determined by several properties. In one of the disputes, because Walmart has not established its the tax court. See Chodek v. Cty. of Otter Walmart filed a petition with Anoka interest in the subject property. Walmart Tail, No. 56-CV-13-1038 et al., 2017 WL County on 4/26/2019 for taxes payable contends that it has complied with the 6813397, at 5 (Minn. T.C. 12/4/2017) in 2019 (pay-2019 cases). The petition, mandatory disclosure rule. (citing Anacker v. Cty. of Cottonwood, captioned Chapter 278 Petition, al- Minn. Stat. section 278.01, subd. 1(a) 302 N.W.2d 342, 345 (Minn. 1981)). See, leged 2 counts: 1) the assessed value of provides that “‘[a]ny person having per- also, Weyerhaeuser Co. v. Cty. of Ramsey, the subject property is greater than the sonal property, or any estate, right, title, 461 N.W.2d 922, 924 (Minn. 1990) (cit- property’s market value, and 2) Walmart or interest in or lien upon any parcel ing United Nat’l Corp. v. Cty. of Hennepin, makes statutory and constitutional un- of land’ may file a petition with respect 299 N.W.2d 73, 75-76 (Minn. 1980)). equal assessment claims. Walmart alleges to the claims set forth in the statute. A After this requirement is satisfied, the tax that Anoka County refused to accept lessee who is bound by the terms of a court may address the percentage applied “valid fee-simple sales of like properties” lease has a ‘vital interest’ to protect and by the assessor to the market value of the in violation of Minn. Stat. section 273.12 accordingly has standing.” property involved as compared with the (2018), and that the county’s actions The mandatory disclosure rule speci- percentage applied to other property of violate constitutional rights arising under fies that, in cases where the petitioner the same class in the assessment district the equal protection and the uniformity contests the valuation of income-pro- in arriving at the full and true value for clauses of the U.S. Constitution. ducing property, certain information tax purposes. Walmart filed a motion to transfer all must be provided to the county assessor Relief for constitutional claims of un- the pay-2019 cases pending in Anoka no later than August 1 of the taxes-pay- equal assessment is not available unless County to the district court, stating able year. Failure to submit the required the petitioner can demonstrate statutory Walmart is entitled to judicial relief documentation by the August 1 deadline unequal assessment. See Anacker, 302 concerning the market value of the results in automatic dismissal of the N.W.2d at 344-45. “To make out a case subject property and injunctive relief petition unless an exception applies. See of discrimination in fact, plaintiffs must requiring the county to reassess the Minn. Stat. 278.05, subd. 6. demonstrate unequal assessment and subject property. The county moved Minn. Stat. section 273.11, subd. 1 must demonstrate that inequality exists to dismiss the petition, alleging that (2018), provides that all property shall be within the relevant taxing district.” Id. at Walmart failed to comply with the valued at its market value. A statutory 345 (citing Renneke, 255 Minn. at 248, FULLY AUTOMATE FORMS anytime, anywhere, any device

Minnesota-specifi c legal forms with a cloud-based document assembly system

SUBSCRIPTION OPTIONS: always current continually updated 25 per month OR 249.95 per year olume discounts available for multiattorney fi rms

NOW NEARLY 600 FORMS OTHER PRACTCE AREAS NCLUE AOPTON, CREATE BY THE MSBA FOR MSBA MEMBERS BUSNESS LA, CRMNAL LA, ESTATE PLANNN, PROBATE, AN REAL PROPERTY www.mndocs.com

44 Bench&Bar of Minnesota s August 2020 www.mnbar.org | TAX LAW | TORTS & INSURANCE

97 N.W.2d at 380). one year later, on 12/30/2019, through a MORGAN HOLCOMB In a lengthy analysis, the court holds notice of reinstatement and assigned to Mitchell Hamline School of Law that Walmart failed to disclose informa- Judge Delapena. [email protected] tion required by the mandatory disclo- On 1/17/2020, the county filed a mo- SHEENA DENNY sure act, and therefore, Walmart’s claim tion to renew its motion to dismiss and Mitchell Hamline School of Law of excessive valuation in the petition is requested a telephonic hearing on the [email protected] dismissed. Because a determination of ac- motion. Petitioners opposed the request tual market value of the subject property for telephonic hearing, but subsequently is a prerequisite to a statutory unequal filed a request for hearing continuance assessment claim, and because Walmart’s that included various information unre- TORTS & INSURANCE valuation claim is dismissed pursuant to lated to timeliness of service, requested the mandatory disclosure rule, the court discovery on matters unrelated to JUDICIAL LAW does not address Walmart’s statutory un- timeliness of service, and requested the n Statute of limitations; some damage equal assessment claims. Beet Sugar Coop hearing be continued for “re-briefing.” rule of accrual. In 2009, decedent’s v. Cty. of Renville, 737 N.W.2d 545, 561 Petitioners failed to secure a hearing date pulmonologist informed him that he (Minn. 2007). Additionally, the court did from the tax court administrator. The had calcium deposits on his lungs due to not reach Walmart’s constitutional claims court convened the telephonic hearing asbestos exposure. In December 2011, for unequal assessment. Relief for con- on the county’s motion to dismiss at 9:00 decedent was diagnosed with mesothe- stitutional claims of unequal assessment a.m. on 3/18/2020. Petitioners did not lioma. In January 2012, decedent learned is not available unless the petitioner also attend the hearing. that asbestos exposure had caused his demonstrates statutory unequal assess- A property tax petition must be filed mesothelioma. Decedent died of meso- ment. Walmart’s statutory and constitu- and served “on or before April 30 of the thelioma on 3/1/2015. On 2/23/2018, tional claims of unequal assessment are year in which the tax becomes pay- decedent’s wife filed suit against defen- dismissed. able.” Minn. Stat. §278.01, subd. 1(a), dant alleging that decedent contracted The court also heard motions on (c). To challenge a county’s property tax mesothelioma and died because he was Walmart’s motion to transfer and on the assessment, the petition must be served exposed to asbestos-containing products county’s motion to dismiss. In a sepa- on the county’s auditor, treasurer, attor- sold by defendant’s predecessor. The rate order, the court denied Walmart’s ney, and assessor. district court granted summary judgment motion to transfer, and granted the In April 2018, service by mail was for defendant, concluding that the stat- county’s motion to dismiss. Walmart v governed by Minnesota Rule of Civil ute of limitations barred plaintiff’s claim. Anoka Cty, 2020 WL 3456323 (Minn. Procedure 4.05, which provided in part: The court of appeals affirmed. Tax Court 6/17/20); 2020 WL 3455834 “[A]ny action service may be made by The Minnesota Supreme Court af- (Minn. Tax Court 6/17/20); 2020 WL mailing a copy of the summons and firmed. Relying on precedent, the Court 3455831 (Minn. Tax Court 6/17/20); of the complaint (by first-class mail, held that “because of the unique charac- 2020 WL 3455836 (Minn. Tax Court postage prepaid) to the person to be ter of asbestos-related deaths, wrongful 6/18/20); 2020 WL 3455827 (Minn. Tax served, together with two copies of a death actions brought in connection Court 6/19/20). notice and acknowledgment conforming with those deaths accrue either upon substantially to Form 22 and a return the manifestation of the fatal disease in n Onerous service requirements result envelope, postage prepaid, addressed to a way that is causally linked to asbestos, in dismissal of petitioners’ claims. On the sender….” or upon the date of death—whichever 4/30/2018, petitioners filed a petition A property tax petition must be is earlier.” As a result, plaintiff’s cause of under Minn. Stat. §278.01, subd. 1 served “on or before 4/30 of the year in action accrued in January 2012, the date (2018), setting forth numerous claims which the tax becomes payable. In this decedent was informed that exposure relating to a parcel of real property case, the county auditor and treasurer to asbestos caused his mesothelioma. In located in Hennepin County for taxes did not receive petitioners’ petition until so holding, the Court rejected plaintiff’s payable in 2018. Three days earlier, on 5/1/2018, one day after the statutory contention that plaintiff’s “wrong- 4/27, petitioners deposited in a U.S. Mail service deadline. Therefore, service on ful death claim did not accrue—and box copies of their petition addressed to the auditor and treasurer were untimely. therefore the period of limitations did various Hennepin County officials. The Timely and effective service must be not begin to run—until it was reason- envelopes addressed to the auditor and made to all required parties. See Minn. ably discoverable that [defendant’s] treasurer, respectively, were post-marked Stat. §278.01 (2018). products were the proximate cause of 4/28/2018, and were stamped “Received The court noted that it is unfortunate [decedent’s] mesothelioma.” (Disclosure: May 01, 2018” by county officials. that the Legislature had chosen to make The author’s law firm, Bassford Remele, On 10/11/2018, Hennepin County the service of a property tax petition successfully represented Respondent filed a motion to dismiss for lack of juris- so difficult by requiring service on four Honeywell International, Inc. in this diction, arguing that the petition was not separate county officials. Here, petition- case.) Palmer v. Walker Jamar Co., Nos. timely served. Petitioners opposed the ers mailed their petition to the specified A18-2114; A19-0155 (Minn. 7/1/2020). county’s motion. The Honorable Joanne officials on 4/27/2018 but only two of the https://mn.gov/law-library-stat/archive/ H. Turner heard the county’s motion four received the mailing by 4/30. Be- supct/2020/OPA182114-070120.pdf on 11/19/2018. But before Judge Turner cause petitioners did not timely serve the could rule, she lost jurisdiction to do so, petition, the court lacked jurisdiction to JEFF MULDER because the petition was dismissed by hear the claim and granted the County’s Bassford Remele operation of law due to the petitioners’ motion to dismiss. Johnson v. Hennepin [email protected] failure to pay property tax on the par- Cty, 2020 WL 3456316 (Minn. Tax cel. The case was statutorily reinstated Court 6/18/20). www.mnbar.org August 2020 s Bench&Bar of Minnesota 45 Minnesota State Bar Association

Wherever You Practice. MSBA Works for You.

RENEW YOUR MEMBERSHIP

Minnesota State Bar Association is a diverse and dynamic community that you can rely on to enhance your career. The strength of MSBA lies in the power of member attorneys working together: to learn, to share, to teach, and to advocate for the interests of the profession at the courts and the Legislature.

Your Profession. Your Practice. Your Partner. www.mnbar.org/renew People&Practice | MEMBER ANNOUNCEMENTS

James C. Erickson, Sr. B. Steven Messick has Victoria A. Elsmore has been named formed Messick Law, a Fellow of the American Academy of 30+ YEARS OF EXPERTISE PLLC. Messick law serves Matrimonial Lawyers. Elsmore is an at- clients in civil, trust and torney at Collins, Buckley, Fire & Property Damage estate, family, elder and Sauntry & Haugh. Policy Appraisals special needs, and real Personal Injury/Death estate matters throughout Stuart Williams has been MESSICK Mediations/Arbitrations Southern Minnesota and elected chair of the Min- the Metro area. nesota Drug Formulary Minnesota/Wisconsin Committee. Williams is an Janet G. Stellpflug, attorney at Henson Efron. Erickson, Bell, Beckman & Quinn a veteran of the WILLIAMS 1700 Highway 36 West, Suite 110 Minneapolis legal scene, Gov. Walz appointed Roseville, MN 55113 has founded a new Kellie Charles and 651-223-4999 | [email protected] boutique commercial Edward Sheu as district www.ebbqlaw.com litigation firm, Stellpflug court judges in Min- Law PLLC, focusing nesota’s 2nd Judicial STELLPFLUG primarily on construction District. Both seats will and product liability defense. CHARLES be chambered in St. Paul. Charles’ appoint- Tal A. ment will fill a vacancy Bakke and that occurred upon the Kaitlyn E. retirement of Judge Hennessy Jennifer Frisch. Charles Wherever You Practice. have is currently a senior at- joined torney in the Hennepin BAKKE HENNESSY Bassford SHEU County Public Defender’s Remele as Office. Sheu’s appointment will fill a va- MSBA Works for You. associates. Bakke is a litigator who focus- cancy that occurred upon the retirement es his practice in the areas of commercial of Judge Judith Tilsen. Sheu is currently litigation, products liability, employment a partner at Best & Flanagan LLP. law, and professional liability. Hennessy focuses her practice in the areas of Gov. Walz appointed consumer law defense, professional liabil- Jeanine Brand as a ity, insurance coverage, organizational district court judge in liability, and construction. Minnesota’s 9th Judicial District. Brand will fill Arthur, Chapman, Kettering, Smetak the vacancy occurring & Pikala, PA announced the addition BRAND upon the retirement of of attorneys Roger H. Gross, Marissa the Honorable Paul T. K. Linden, Timothy P. Tobin, and R. Benshoof. Brand currently serves as an Stephen Tillitt. assistant Cass County attorney.

James Lodoen has joined Spencer Fane LLP as JOHN S. HIBBS, age 85, of Edina passed a partner in the firm’s on May 9, 2020. He obtained his JD in bankruptcy, restructur- 1960 at the University of Minnesota Law Your Profession. Your Practice. Your Partner. ing, and creditors’ rights School and practiced tax, corporate, practice group. and heath care law for 40 years before www.mnbar.org/renew LODOEN retiring in 1999.

www.mnbar.org August 2020 s Bench&Bar of Minnesota 47 OpportunityMarket | CLASSIFIED ADS

Furnishings also available. Perfect for a MEDIATION TRAINING: Qualify for the ATTORNEY WANTED law firm or a solo practitioner. Join 10 Supreme Court Roster. Earn 30 or 40 established, independent attorneys. Call CLE’s. Highly-Rated Course. St. Paul 612- COLOPLAST is looking for a Senior (952) 474-4406. minnetonkaoffices.com. 824-8988 transformativemediation.com Legal Counsel position support our sssss sssss growing legal team in North America. To review the full job description and LOOKING for a great community to have PARLIAMENTARIAN, meeting facilitator. apply to the position please visit our your solo or small firm in? Looking for a “We go where angels fear to tread.TM” website - www.coloplast.us - or follow beautiful, well-appointed office? Looking Thomas Gmeinder, PRP, CPP-T: (651) this direct link: https://bit.ly/390gKAn. for virtual services so you can work from 291-2685. [email protected] sssss home or on the go? Look no further - sssss MoreLaw Minneapolis has all that and ROE LAW GROUP is seeking an expe- more. Call Sara at (612) 206-3700 to EXPERT WITNESS Real Estate. Agent rienced litigator with at least six years’ schedule a tour. standards of care, fiduciary duties, dis- experience in commercial litigation. closure, damages/lost profit analysis, This candidate will have strong analyti- forensic case analysis, and zoning/land- cal, research and writing skills and the PROFESSIONAL SERVICES use issues. Analysis and distillation of ability to multi-task in a fast-paced en- complex real estate matters. Excellent vironment. We are a boutique defense VALUESOLVE ADR Efficient. Effective. credentials and experience. drtommu- firm in downtown Minneapolis that Affordable. Experienced mediators and [email protected] (612) 207-7895 offers a wide range of litigation and arbitrators working with you to fit the pro- sssss advice services. Qualified candidates cedure to the problem - flat fee mediation should submit a cover letter and re- to full arbitration hearings. (612) 877-6400 MEDIATION / ARBITRATION Rule sume to: [email protected] www.ValueSolveADR.org 114 Training and Education. Fall 2020 sssss Courses. Innovative courses. Experi- enced faculty. Online and Hybrid co OFFICE SPACE ATTORNEY COACH / consultant Roy S. urses. Kristi Paulson (612) 598-9432. Ginsburg provides marketing, practice www.PowerHouseMediation.com. MINNETONKA Suites and Individual management and strategic / succession sssss Offices for Rent. Professional office planning services to individual lawyers buildings by Highways 7 & 101. Confer- and firms. www.royginsburg.com, roy@ Classified ads can be submitted at: ence rooms and secretarial support. royginsburg.com, (612) 812-4500. www.mnbar.org/classifieds

Looking for referrals? Advertise with Minnesota’s premier law magazine.

Contact: Erica Nelson at 763-497-1778 or [email protected]

48 Bench&Bar of Minnesota s August 2020 www.mnbar.org REGISTER BY AUGUST 31 AND SAVE $75! The 2020 Probate & Trust Law Section Conference Friday - Saturday, October 16 - 17, 2020 LIVE ONLINE 12.25 standard CLE credits applied for; see www.minncle.org for special credit details

NEW Benefits Added to the Online Probate and Trust Law 50+ Sessions Focused on Section Conference: New Developments, Practical

NEW – Ability for Attendees to Watch Recordings of Advice and Best Practices! ALL of the 50+ Conference Presentations for a Whole Year Following the Conference A Conference Unlike Any Other – NEW – Free 5.0 On Demand Credit Bundle, Which an Now Completely Online! Attendee Can Later Use to View 5 Hours from the 550+ The Probate and Trust Law Section Conference is the Programs in Minnesota CLE’s On Demand Classroom must-see event of the year for everyone in the estate planning field. NEW – A Coupon for up to $100 Off Any Single Minnesota CLE Product NEW Format Due to the unique circumstances of this year, the 12.25 Live Credit Hours of Practical Content Conference is being transformed to a completely 3 Free Post-Institute Live Webcasts – Earn 3 Extra CLE online event to guarantee you get the content you credits! need while safeguarding participant safety. All of the Institute’s Session Materials Posted Online Everything New – Legislation, Cases, Trends and Practice Tips 2 Helpful New Legal QuickSheets: Guide to Capacity The Conference is truly one-stop shopping. You’ll be and Guide to Attorneys’ Fees in Probate Court updated on all new developments – from the podium Proceedings, Available Electronically and also in written form. In addition, you’ll get to An InFORMed Annotated Document, Irrevocable Life choose from among 50+ sessions allowing you to create a schedule suited to your practice. You’ll leave Insurance Trusts, Available Electronically the Conference re-energized to tackle the issues you And So Much More! face daily. And So Much More! The Conference is a great investment in your For more information or to register: professional development. You’ll receive electronic www.minncle.org • 800-759-8840 materials, cheat sheets, and more – all designed to make you smarter and your practice easier. Thanks to our Platinum and Gold sponsors:

08.20 Probate & Trust Law Conference_revised.indd 1 7/14/2020 11:40:27 AM POWERING PAYMENTS Trust Payment FOR THE IOLTA Deposit

Amount $ 1,500.00 LEGAL Reference INDUSTRY NEW CASE The easiest way to accept credit, Card Number debit, and eCheck payments **** **** **** 4242 The ability to accept payments online has become vital for all firms. When you need to get it right, trust LawPay's proven solution.

As the industry standard in legal payments, LawPay is the only payment solution vetted and approved by all 50 state bar associations, 60+ local and specialty bars, the ABA, and the ALA.

Developed specifically for the legal industry to ensure trust account compliance and deliver the most secure, PCI-compliant technology, LawPay is proud to be the preferred, long-term payment partner for more than 50,000 law firms.

ACCEPT MORE PAYMENTS WITH LAWPAY 888-515-9108 | lawpay.com/mnbar