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06.21 Season Pass.indd 1 6/15/2021 8:10:59 AM OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVIII NUMBER VIII SEPTEMBER 2021 www.mnbar.org

ON THE COVER 12 FIXING A HOLE The Fritz defense: Eliminating the unconstitutional “pay-to-defend” barrier in Minnesota eviction actions

By James Poradek and Luke Grundman

4 President’s Page Trigger warning: Reply all email chains By Jennifer Thompson 10 DISCOVERY 6 Professional Reinventing the request for admissions Responsibility By Eliot T. Tracz Pandemic legal ethics, part 2 By Susan Humiston

8 Law & Technology The NSA advisory 18 on brute force attacks MARITIME LAW? By Mark Lanterman IN MINNESOTA? YES. Why it pays to know maritime law in 27 Notes & Trends cases involving water-related accidents Landmarks in the law By Vince C. Reuter

37 People & Practice Member announcements 22 38 Opportunity Market Classified ads JOURNEY TO THE CENTER OF MY MIND Notes on meditation practice and wellness By Senior Judge Susan R. Miles

2 Bench&Bar of Minnesota s September 2021 www.mnbar.org Official publication of the Minnesota State Bar Association www.mnbar.org | (800) 882-6722

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© 2021 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 September 2021 s Bench&Bar of Minnesota 3 President’sPage | BY JENNIFER THOMPSON

TRIGGER WARNING Reply all email chains an we talk about July 29, 2021? It’s been a few weeks now, and while the afternoon (and the early evening, and the night) were certainly, um, prolific, it’s also true Cthat time heals and by now the wound isn’t quite as fresh. So, let’s unpack the day. You remember July 29, right? That’s the day that the MSBA Members News & Notes Community clogged up and bogged down some large portion of over 13,000 member email inboxes. It started as a note to members advising of important job postings, which was followed by a comment responding to directly to your Deleted Items the post that was (probably unintentionally) sent to all. And folder? You’re a perfect candidate then, slowly, but eventually coming on at a fast and furious for the Technology Committee and the work pace, hundreds, maybe thousands of follow up responses—to they do to study and make recommendations EVERYONE! There were lots of emotions expressed and “tips” relating to the use of technology in the practice of law. offered. It was entertaining and exasperating at the same time. It happened because of a mistake (similar to ones that we n Did you offer assistance to your fellow members on how to have all made) and sincere apologies were given. I hope you stop the continuing emails, possibly even inserting screenshot extended grace, as well. Goodness knows we can all use some snips for all the visual learners? Sounds like you’re a problem- of that—these days especially. solver, looking to do good and help others. The Access to Now that #replyallgate is in our collective rearview mirror, Justice Committee is for you! are there any insights to be gained? Yes, most surely there are. Here’s what the responses to the never-ending email chain say n Did you use all CAPS or the phrase “for the love of…” and about member relationships with the MSBA. plead for everyone to stop replying all (while you replied all)? Sounds like you might have a knack for coaching. The MSBA’s n Are you a former MSBA president who used your top-secret renowned Mock Trial program could be a great fit for you. access to staff cell phones and personal email addresses to plead for the flurry of emails to stop? You’re still a mover and a n Did you reply all just to watch how others replied, to jokingly shaker helping the MSBA serve as a connector and convener. register your choice of the fish entrée sans dessert, or because This episode will let you regale all your your inbox hadn’t seen that much activity in a while? You colleagues with evidence of the (very, appreciate comedy and connection, two important components very) many touchpoints that MSBA of lawyer wellness. Make sure to check out the MSBA Lawyer membership provides! Well-Being Committee.

n Did you reply all to ask to be n Did you have no idea that #replyallgate was even removed from the email exchange? happening? You are under-utilizing your membership! You You might enjoy the on-your-own- should schedule a one-on-one meeting with MSBA staff schedule and at-your-own-pace MSBA about member services and resources, including specifically On-Demand CLE library. MSBA offers the MSBA communities. In the communities, you may chat, JENNIFER THOMPSON hundreds of hours of On Demand CLE share and build documents, and access other resources (like is a founding partner of programming each year, covering over the practicelaw library). There’s a community for every MSBA the Edina construction 25 practice areas. You get the critical section. If you’re a member of a section, you’re already a law firm Thompson updates and developments in the law member of that section’s community. Plus, there are dozens of Tarasek Lee-O’Halloran on your schedule… and without any- other working groups and committees already operating online. PLLC. She has one interfering with your inbox. also served on the The MSBA has much to offer all its members. Even in the Minnesota Lawyer n Did you take to social media to alert wake of a frustrating professional moment, hopefully, with time Mutual Insurance your network of the situation? Did you passed and a lens of humor, we can all see that perhaps the best Company board of add pictures of the size of your inbox? part of what the MSBA offers its members is community—a directors since 2019. Or did you quickly set up a rule to community that shared a wild afternoon one Thursday in July route all messages on the thread and now, together, can laugh about it. s

4 Bench&Bar of Minnesota s September 2021 www.mnbar.org ®

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my.mnbar.org ProfessionalResponsibility | BY SUSAN HUMISTON

Pandemic legal ethics, part 2

n the May/June 2020 issue of this publication, I wrote savings, competing schedules, or something else. Vaccination about legal ethics in a pandemic.* More than a year status is no different. Can you competently represent the later, we remain in a pandemic that not only presents client using available alternatives, such as the many secure continuing personal safety and well-being challenges; communication technology options we have been required professional challenges also remain. Lots of guidance has to learn? Most likely the answer is yes. Of course this can Ibeen issued from various sources and I want to make sure you be complicated, because not all clients have access to a lot have information to help you continue to navigate these issues of technology. This just means we must think about how to in our new normal. communicate effectively with clients or prospective clients First, remember: All ethics rules remain in full force and given the particulars of their circumstances and what we need effect. The rules, particularly those that are nondiscretion- to know to represent them. ary, generally do not have exigent circumstance exceptions. The ethics rules do not tell you specifically how to do Even those rules that incorporate the word “reasonable” refer this, but again provide the framework. Can you competently to “a reasonably prudent and competent lawyer.” The rules represent the client with the information you have under Rule do not expect you to simply do your best under difficult and 1.1, Minnesota Rules of Professional Conduct (MRPC)? Can challenging circumstances, but rather set minimum standards you keep the client reasonably informed about the status of the of conduct for lawyers irrespective of the circumstances. As matter under Rule 1.4(a)(3), MRPC? Can you promptly com- attorneys, we must embrace the challenge of ensuring that our ply with reasonable requests for information under Rule 1.4(a) legal practice remains ethically compliant—notwithstanding (4), MRPC? Can you explain a matter to the extent reason- the changes to our practice made necessary by the seemingly ably necessary to permit the client to make informed deci- never-ending spread of covid-19. The good news is that the sions regarding the representation under Rule 1.4(b), MRPC? rules provide a framework to help you navigate changing cir- Chances are pretty good that no matter what type of law cumstances and the application of those rules to your practice you practice, you can find a way to do most if not all of these can help you competently handle many pandemic-related situ- things (short of a criminal jury trial) without physically being ations. As an example, let’s consider the issue of vaccinations. in the same room with your client if you are comfortable with technology—an essential requirement of modern practice. Implications of vaccination status Similarly, regarding the question of in-person versus remote Vaccination status has become a contentious and hearings, remember as a starting point that the rules address emotional subject. A client’s vaccination status can have allocation of authority between client and lawyer. Rule 1.2(a), implications for how you approach MRPC, provides “a lawyer shall abide by a client’s decisions a representation. For example, how concerning the objectives of the representation and, as comfortable are you meeting with a required by Rule 1.4, shall consult with the client as to the client in person? Can you refuse to means by which they [the objectives] are to be pursued.” meet in person with an unvaccinated What is the purpose of the hearing that you want to attend client? What about hearings? Say your remotely? Have you discussed with your client the available unvaccinated client wants an in-person options as they relate to your client’s objectives? Is the court hearing but you think the remote offering a remote option and can you effectively present your hearing option the court is also offering case through that means? Through consultation, can you SUSAN HUMISTON is better since you don’t want to sit find a mutually available resolution if there is a disagreement is the director of the next to your unvaccinated client even between you and your client? If not, is withdrawal warranted Office of Lawyers with required masks. The ethics rules and can you do so ethically under Rule 1.16, MRPC? Professional of course do not mention vaccination Lawyers call our hotline hoping the ethics rules will afford Responsibility and status, but they can help you answer them specific and unambiguous answers to the problem at Client Security such questions ethically. hand. While the rules provide several prohibitions—for Board. Prior to her You may or may not know if your example, don’t lie—what I find most rewarding about working appointment, Susan client is vaccinated. Can you ethically with the ethics rules is they give you the tools to address a worked in-house ask? Sure. Can they decline to tell you? lot of challenging and dynamic situations. They are logical at a publicly traded Sure. What you do with the answer or and client-centered, and through their interplay, help you company, and in lack thereof is then up to you. Lawyers effectively and ethically navigate all kinds of difficult and private practice as a make determinations all the time unprecedented situations. As usual, this statement comes with litigation attorney. regarding whether they are comfortable the caution that there may be other substantive laws or court

SUSAN.HUMISTON or available to meet in person with a rules that also bear on a particular topic, so do not forget those @COURTS.STATE.MN.US client or prospective client, whether considerations. it’s a question of physical safety, cost

6 Bench&Bar of Minnesota s September 2021 www.mnbar.org TWIN CITIES CARDOZO SOCIETY Twenty-first Annual Dinner October 26, 2021 | Marriott City Center, Minneapolis BARI WEISS, FEATURED SPEAKER (coming to us virtually) Resources Journalist and the author of “How to Fight Anti-Semitism” As lawyers, we know the answer is of- ten “it depends.” But we also know that HONORING knowledge is power. And that asking the ANDY LUGER & JON PARRITZ right questions often provides the neces- Sidney Barrows Lifetime Commitment Award sary clarity to navigate difficult times. BARRY LANDY In addition to my prior article, we have Arthur T. Pfefer Memorial Award prepared a list of frequently asked ques- Melissa Weiner, Karen Schanfield, and Barry Landy, Dinner Chairs tions related to covid. That list can be found on our website, www.lprb.mncourts. THANK YOU TO OUR EVENT SPONSORS (AS OF 08.10.2021) gov. The American Bar Association has also published two opinions you might PREMIER SPONSOR PRESENTING SPONSORS find relevant: ABA Formal Opinion 495, “Lawyers Working Remotely” (December 2020) and Formal Opinion 498, “Virtual Practice” (March 2021). The first looks at working remotely through the lens PARTNER SPONSORS of the unauthorized practice of law; the second examines ethics rules typically implicated by remote or virtual practice. Even if you are not a member of the PILLAR SPONSORS PATRON SPONSORS CBIZ & Mayer Hoffman McCann P.C. Bank of America Private Bank American Bar Association, the ABA Chestnut Cambronne P.A. Bassford Remele, P.A. makes its copyrighted ethics opinions Dorsey & Whitney LLP Benchmark Reporting Agency Faegre Drinker Biddle & Reath LLP Phillip Gainsley, Attorney at Law available free of charge for one year fol- First Trust Company, LLC Bruce A. Gershman P.A. lowing issuance, so download them now Greene Espel PLLP Roy S. Ginsburg, J.D. Larkin Hoffman Gurstel Law Firm, P.C. if this is a topic of interest to you. Messerli Kramer, P.A. Gustafson Gluek PLLC Milavetz Gallop Milavetz, P.A. JND eDiscovery Minnesota Lawyers Mutual Mairs & Power Conclusion Parker Daniels Kibort, LLC Nilan Johnson Lewis P.A. I’m pleased to report that we have Robins Kaplan LLP Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Tuft Lach Jerabek O’Connell PLLC Amy Rotenberg, Rotenberg Associates not seen a spike in discipline due to Zamansky Professional Association Schwebel, Goetz, & Sieben P.A. Siegel Brill, P.A. pandemic-related ethics mistakes. The Teplinsky Law Group, Ltd. complaints we see now are the same ones we have always seen, although To sponsor a table, place an ad in the program, make a donation in recognition of the honorees, or it’s fair to say that the pandemic has reserve your place at the dinner, please contact Tslil Shtulsaft: [email protected] exacerbated already challenging situa- jewishtwincities.org/cardozodinner tions for some lawyers, especially those THANK YOU TO OUR CORPORATE PARTNERS related to substance use and mental health issues. The pandemic has also taken its toll on civility, from anecdotal reports I have received. The practice of law has always been challenging, and the profession continues to be challenged by this pandemic. Taking time to review your practices against the ethics rules is always time well spent, and that remains true as we continue to navigate day-to- day changes in the world necessitated ERISA DISABILITY CLAIMS by the pandemic. Please call our ethics hotline (651-296-3952) if you have a ERISA LITIGATION IS A LABYRINTHINE MAZE OF question about how to ethically handle a REGULATIONS AND TIMELINES. LET OUR EXPERIENCE HELP. particular client situation or let us know if there is something else the Office can do to help you in the ethical practice of law. Take care. s

* Susan Humiston, Legal Ethics in a Pandemic, ROB LEIGHTON DENISE TATARYN Bench & Bar (May/June 2020). https://www. 952-405-7177 952-405-7178 mnbar.org/resources/publications/bench-bar/col- umns/2020/05/27/legal-ethics-in-a-pandemic www.mnbar.org September 2021 s Bench&Bar of Minnesota 7 Law&Technology | BY MARK LANTERMAN

The NSA advisory on brute force attacks

n July the National Security Agency (NSA), in The NSA recommendations partnership with the CISA, FBI, and NCSC, issued In a recent interview on the Compliance & Ethics podcast, I a cybersecurity advisory regarding global brute force discussed the importance of organizations carefully reviewing and campaigns titled, “Russian GRU Conducting Global assessing their compliance with the list of recommendations put BruteI Force Campaign to Compromise Enterprise and forth by the NSA in its report.3 In addition to addressing how the Cloud Environments.” Though it’s difficult to assign a nation-state threat actors are conducting their attacks, the report specific timeline (or start date) to the activities of the GRU, provides straightforward guidelines for improving cybersecurity Russia’s military intelligence agency, the report explains posture and counteracting the preferred methodologies of attack- that these activities likely have been going on at least since ers. Multifactor authentication, time-out and lock-out features, the middle of 2019 and up until the start of 2021. network segmentation, and careful access control monitoring are A variety of organizations, companies, and businesses all effective strategies in staying as secure as possible. in both the private and public sectors have been targeted; Toward the end of the interview, I was asked a very important these incursions are largely successful in part because they question that’s often brushed aside. “I often see people working in use a number of different methods of attack in tandem. The public places—at the coffee shop, on airplanes. How should these nature of the cyberattacks is described in the July 1 release: low-tech issues be addressed?” It’s a great question, not only for the logistical and security issues that often come about as a result This brute force capability allows the [] actors to ac- of careless remote work policies, but also because it gets to the cess protected data, including email, and identify valid heart of a very easy to ignore security issue—the human element. account credentials. Those credentials may then be We all know that cybercriminals are always going to seek the easi- used for a variety of purposes, including initial access, est route. In many cases, hacking the human element of security persistence, privilege escalation, and defense evasion. is much easier than looking for technological vulnerabilities. To The actors have used identified account credentials in put it another way, strong technological controls alone are never conjunction with exploiting publicly known vulner- enough, as they can always be defeated by one sticky note with a abilities, such as exploiting Microsoft Exchange serv- username and password stuck to a laptop in a public place. In our ers.… After gaining remote access, many well-known current age of remote work, known vulnerabilities, and rampant tactics, techniques, and procedures (TTPs) are com- spear-phishing campaigns, we must strive to balance investment bined to move laterally, evade defenses, and collect in security technologies with strong training and threat awareness additional information within target networks.1 programs. Finally, let’s also remember that verification is just as impor- The United States is among tant as documentation. Time and again, organizations point to a number of countries that have documentation as evidence of their current cybersecurity posture. been working recently to curb the Unfortunately, there is often a substantial gap between writ- damage brought about by nation- ten documentation (which is ultimately a record of how things state threats, including this Russian are supposed to be) and the reality. When your organization is campaign. Following several large- reviewing the NSA’s report and assessing its recommendations, scale breaches, and the issuing of the temptation might be to check off items based on written an executive order on improving procedures and protocols. But it’s vital to make sure that the right MARK LANTERMAN the nation’s cybersecurity, President questions are being asked. How are these procedures actually be- is CTO of Computer Biden will be meeting with several ing implemented, and are they being applied across the organiza- Forensic Services. private sector cybersecurity experts tion? Where is our data stored, and how does our organization A former member to discuss the future of combatting monitor its cloud usage and third-party vendor relationships? of the U.S. Secret cyber risk in an increasingly aggres- Are employees using multi-factor authentication, and how is 2 Service Electronic sive cyber landscape. compliance assessed? Documentation is essential, but frequent Crimes Taskforce, With vigilance in mind, the NSA verification is also necessary to manage cybersecurity posture and Mark has 28 years report concludes by providing recom- efficiently counteract risk. s of security/forensic mendations and mitigation strategies experience and for organizations to employ. Given Notes has testified in over the scope and nature of the attacks, 1 https://media.defense.gov/2021/Jul/01/2002753896/-1/-1/1/CSA_GRU_GLOB- 2,000 matters. He is both the private and public sectors AL_BRUTE_FORCE_CAMPAIGN_UOO158036-21.PDF a member of the MN need to combine their efforts to 2 https://abcnews.go.com/Politics/wireStory/biden-meet-month-private-sector-cyber- Lawyers Professional address global cyber threats and al- issues-78966697 Responsibility Board. leviate the potential for catastrophic 3 https://complianceandethics.org/mark-lanterman-on-brute-force-attacks-and- damage. corporate-cyber-defenses-podcast/

8 Bench&Bar of Minnesota s September 2021 www.mnbar.org Minnesota State Bar Association Come build with us!

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Wow us! Our lawyer judges will evaluate your team’s pitch for its creativity and viability. Note, you’re not bound by the current rules so long as you can justify a rule change as part of your pitch. This is your chance to impress us with your innovative ideas and forward thinking. The conference will conclude with a shark-tank style presentation. Prizes will be awarded.

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4.0 CLE credits will be applied for November 8-12th CLEs: 8:30-9:30 am the week’s sessions. Teamwork on your schedule, with coaching available each afternoon. Law students (Register for FREE!) DISCOVERY Reinventing the request for admissions

By Eliot T. Tracz

ritten discovery can lowed to stand on their own. To that end, the party to admit or deny. elicit different reac- I suggest that RFAs work best when re- It is here that service of RFAs after tions from different served until after depositions. There are depositions really yields fruit. Where an people. Some may find three reasons for this approach: (1) the RFA served early in discovery may result it tedious, others in- way the rules of civil procedure—state in a denial or a statement that the party teresting.W Regardless, it is an inevitable and federal—structure RFAs; (2) the upon whom the request was served lacks part of the litigation process. Often, the ability to fill holes from depositions; and information, RFAs tailored to deposition process for written discovery—inter- (3) the opportunity to set your case up for testimony can set up a strong motion for rogatories, requests for productions, and summary judgment. summary judgment. Once you’ve built requests for admissions (RFAs)—follows Federal Rule of Civil Procedure 36 and your story, and put the story to the oppos- a predictable pattern: All of the written Minnesota Rule of Civil Procedure 36 ing party one piece at a time, you can nail discovery is bundled together and served govern RFAs in federal and state court re- down specific facts that help your case on the opposing party; the responses spectively. In some ways they are similar: one at a time—and under oath! contain some documentation, routine Neither limits the number of RFAs that Imagine, for example, that you are de- objections, and denials of some facts that may be propounded during the course of posing the CEO for a company alleged to will later prove true. While this process discovery; both require an answer within have violated a commercial lease which is commonly followed, and is mandatory 30 days or the matter of which an admis- included a personal guaranty. Naturally, in cases assigned to Expedited Litigation sion is requested is deemed admitted; and your questions would seek to elicit testi- Track, there are alternatives that allow a both limit the use of the admissions solely mony that there was a lease, that the lease more strategic use of discovery tools. to the matter at issue.1 Another benefit was breached, that there was a personal Nearly every young litigator knows is that, in both state and federal court, guaranty, and that the CEO understood that RFAs are a tool used to narrow the party upon whom the RFAs have what the personal guaranty was. the number of disputed issues in a case. been propounded may only assert lack of Once the deposition is completed, it While that can certainly be done when knowledge if that party asserts that a rea- is time to tailor those RFAs to the sub- bundled with other written discovery, the sonable inquiry has been made and the stance of the deposition. The specific ma- inherent versatility of RFAs really comes information available or readily obtain- terial facts that you have managed to nail through when they are unbundled and al- able by the party is insufficient to enable down are ripe for admissions because the

10 Bench&Bar of Minnesota s September 2021 www.mnbar.org answering party must admit to items that The second reason to reserve RFAs eliminate issues, follow up on or address- are true, or face sanctions if they deny until after depositions are over is to ad- es issues with discovery, and ultimately, to claims that are proved true.2 Every ques- dress possible deficiencies in discovery. tee up a summary judgment motion that tion of material fact that is admitted is Using RFAs to addresses these mistakes is airtight. Since RFAs can be wielded conclusively established unless the court is particularly effective for two reasons: broadly (to capture information) or sur- permits withdrawal or amendment, some- first, by asking a question in the form of gically (to eliminate specific issues and thing that is less likely to happen when a request for admission, you not only get move a case towards resolution), perhaps the admission is supported by deposition to ask the question that you might have when the opportunity arises you will con- testimony. missed earlier—you also get to frame the sider unbundling them, and using them From there, the path to summary judg- answer through the wording of the re- to their full potential. s ment is clear. The standard for summary quest. If you know the answer you want, judgment is the same both in Minnesota the language of the RFA can prompt the Notes and in federal court: There are no genuine admission that you are looking for. Sec- 1 Fed. R. Civ. P. 36; Minn. R. Civ. P. 36.01. issues of material fact, and the movant is ond, in the event that you have discov- 2 Minn. R. Civ. P. 37.03(b); Fed. R. Civ. P. 37(c) entitled to judgment as a matter of law.3 It ered a hole in your discovery, an RFA (2). is easier to show the court that there are could be coupled with interrogatories so 3 Minn. R. Civ. P. 56; Fed. R. Civ. P.56. no genuine issues of material fact when that if the RFA is denied, the interroga- 4 Minn. R. Civ. P. 36.01; Fed. R. Civ. P. 36(a) you can argue that the opposing party tories may help direct you to the informa- (1)(A). agrees with your position and then cite tion that you need. the applicable admission. But that’s not Because a party may issue an unlimit- ELIOT T. TRACZ is a litigation all; RFAs can also be used to elicit admis- ed number of RFAs, a submission of RFAs associate at Dunlap & sions as to opinions regarding the appli- may serve multiple purposes without lim- Seeger, P.A., former judicial cation of law to fact.4 Well-crafted RFAs iting the opportunity of the party pro- clerk, and adjunct professor can also place you in a strong position to pounding the RFAs to pursue answers. at Mitchell Hamline School argue that the opposing party even agrees Waiting until depositions are finished to of Law. with your application of the law. serve RFAs allows them to be used to [email protected]

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www.mnbar.org September 2021 s Bench&Bar of Minnesota 11 12 Bench&Bar of Minnesota s September 2021 www.mnbar.org The Fritz defense revisited Eliminating the unconstitutional “pay-to-defend” barrier in Minnesota eviction actions

By James Poradek and Luke Grundman

ith state and federal moratoriums on evictions one-way street that entitles only the landlord to the aid of the for nonpayment of rent coming to an end, it will law.”2 But that is exactly what has happened in Minnesota be essential that those Minnesota tenants who housing courts. The pay-to-defend requirement has turned have been forced to live in poorly maintained Minnesota eviction actions into a one-way street flowing rentalW housing during the pandemic be allowed to exercise straight toward eviction; due process has become a meaningless their legal rights to defend themselves before they are evicted promise to the poor. from their homes by Minnesota courts. But Minnesota courts have erected a draconian procedural barrier that makes it im- Minnesota’s unconstitutional possible for many tenants to have their day in court: a “pay to “pay to defend” requirement defend” requirement that forces eviction defendants to deposit In theory, Minnesota law is among the most robust in the unpaid back rent with the court as a precondition for trial on United States at protecting tenants from being evicted from the defense that the landlord has violated its legal obligation their homes for nonpayment when landlords have breached to maintain the property in habitable condition. their side of the rental bargain. In the early 1970s, the Min- This article addresses why Minnesota’s “pay-to-defend” re- nesota Legislature passed remedial legislation—now set forth quirement is a fundamental violation of procedural due pro- at Minn. Stat. §504B.161—that implies into every residential cess. The U.S. Supreme Court has made it clear that such pro- lease “covenants of habitability” in which the landlord promis- cedures are antithetical to the due process rights of low-income es “to maintain the premises in compliance with the applicable litigants: “Surely no one would contend that either a State or health and safety laws.” the Federal Government could constitutionally provide that In 1973, the Minnesota Supreme Court issued the landmark defendants unable to pay court costs in advance should be de- decision Fritz v. Warthen,3 in which it held that the covenants nied the right to... defend themselves in court... Notice, the of habitability were a “statutory right” and “statutory mandate” right to be heard, and the right to counsel would under such that impose on landlords the affirmative duty to “maintain the circumstances be meaningless promises to the poor.”1 premises in compliance with applicable health and safety laws.” Likewise, the Minnesota Supreme Court recently declared In Fritz, the Court recognized an affirmative defense to in Central Housing Associates v. Olson that “[a] lease is not a eviction, now commonly known as the “Fritz defense”: www.mnbar.org September 2021 s Bench&Bar of Minnesota 13 The Fourteenth Amendment draws no bright lines around three-day, 10-day, or 50-day deprivations of property. Any significant taking of property by the State is within the purview of the Due Process Clause. Moreover, defendants are deprived of their money at the exact moment their lives are being disrupted by court proceedings and they face the possibility of having to find new housing that requires a security deposit.

“The legislative objective in enacting FRITZ defense, then you need to have Ten- n “[f]irst, the private interest the implied covenants of habitability is ant deposit rent owed into court and sched- that will be affected by the official clearly to assure adequate and tenantable ule a hearing.” (Emphasis added.) The action”; housing within the state. That objective Benchbook makes clear at page 57 that n “second, the risk of an errone- is promoted by permitting breach of the the consequence of failing to prepay back ous deprivation of such interest statutory covenants to be asserted as a rent into court is eviction without trial: through the procedures used, and defense in unlawful detainer actions.”4 “The order setting the hearing states that the probable value, if any, of addi- Thus, Fritz created a powerful eviction if Tenant does not deposit the money or- tional or substitute procedural safe- defense for tenants who have been forced dered into escrow that the hearing shall guards”; and to live in poorly maintained buildings by a be cancelled and a Writ to be issued.” n “finally, the Government’s inter- landlord who now seeks to remove them The Benchbook then provides com- est, including the function involved from their homes for nonpayment of rent. mentary that raises an obvious constitu- and the fiscal and administrative In practice, however, most Minnesota tional red flag at page 57: “Sometimes, the burdens that the additional or courts have set up in eviction actions ex- real problem is that Tenant simply does substitute procedural requirement actly the “one-way street” condemned by not have the money to pay the rent owed, would entail.”8 the Minnesota Supreme Court in Central and the deposit requirement will resolve Housing, imposing a “pay to defend” re- the issue. Often, when Tenants under- Here, application of the three Mathews quirement before an eviction defendant stand this will happen, they are more factors leaves no question that the pay- can raise a Fritz defense. Because most willing to settle out the case and work ei- to-defend procedure violates procedural low-income tenants sued for eviction ther on a payment agreement or they will due process. based on nonpayment of rent do not have agree to move out at some agreed date.” First, automatic back rent posting has the money to prepay back rent, their Fritz In other words, the Benchbook embraces a devastating effect on the private inter- defenses are never heard. Instead, regard- the use of back rent prepayment orders to ests of Minnesota renters. Eviction defen- less of the merits of their Fritz defenses, “resolve” eviction actions before trial by dants who cannot pay the back rent into these tenants are either promptly evicted forcing poor tenants who cannot prepay court are deprived of their ability to assert under a court-ordered writ of recovery or back rent to either “settle out the case” their statutory habitability rights as a Fritz forced to settle their cases unfavorably. or be evicted from their apartments—no defense at the exact moment they need This due process crisis will only expand matter what the merits of their Fritz de- them most. The U.S. Supreme Court has in the wake of the vast economic disrup- fenses. made clear that “a cause of action [and a tions of the pandemic. defense] is a species of property protected Alarmingly, statements contained in Failing the procedural by the due process clause of the Four- the Minnesota Housing Court Benchbook due process test teenth Amendment.”9 “The hallmark of (2d. ed 2020) suggest that Minnesota Obviously, this is not how the Min- property, the Court has emphasized, is an courts are knowingly putting expediency nesota court system is supposed to work. individual entitlement grounded in state ahead of due process in conditioning Fritz “Due process requires that there be an law, which cannot be removed except ‘for defenses on back rent prepayment. The opportunity to present every available de- cause.’”10 Accordingly, the U.S. Supreme Benchbook’s back cover describes itself fense.”5 In Olson v. One 1999 Lexus MN Court has long held that the concept of as “a guide to help Judges in Minnesota License Plate,6 the Minnesota Supreme “property” imposes “constitutional limi- work through Housing Court cases that Court set forth in detail the legal test for tations upon the power of courts, even in come before them,” and it has been wide- analyzing procedural due process under aid of their own valid processes, to dismiss ly circulated among judicial officers in “[b]oth the United States and Minnesota an action without affording a party the Minnesota. The Benchbook explicitly in- Constitutions,” relying on the three-fac- opportunity for a hearing on the merits of structs at page 59 that “If Tenant alleges a tor analysis in Mathews v. Eldridge:7 his cause.”11

14 Bench&Bar of Minnesota s September 2021 www.mnbar.org Even worse, the resulting eviction person is entitled to procedural due pro- court—much less the constitutionally “deprive[s] [defendants] of a significant cess.”15 mandated “opportunity to be heard at interest in property: indeed, of the right Further, even when eviction defen- a meaningful time and in a meaning- to continued residence in their homes.”12 dants are able to deposit back rent before ful way” on their Fritz defenses. As (Emphasis added.) “These constitution- trial, the property deprivations are signifi- Mathews itself made clear, the “right to ally based interests are further threatened cant. Money is a core property interest.16 be heard before being condemned to suf- when the limitation that forces a And the fact that the defendants may fer grievous loss of any kind... is a prin- person to leave a [] home renders him lose their money “only temporarily [does] ciple basic to our society.”18 (Emphasis homeless.”13 And a court-ordered evic- not put the seizure beyond scrutiny un- added.) At the heart of the due process tion greatly increases both the short- der the Due Process Clause. The Four- clause is the “root requirement that an term and long-term risks of homeless- teenth Amendment draws no bright individual be given an opportunity for ness, because it becomes places a black lines around three-day, 10-day, or 50-day a hearing before he is deprived of any mark on the defendant’s rental history deprivations of property. Any significant significant property interest, except for that often leads to a future of shelters taking of property by the State is within extraordinary situations where some and encampments for the defendant and the purview of the Due Process Clause.”17 valid governmental interest is at stake defendant’s family. The Minnesota Su- Moreover, defendants are deprived of that justifies postponing the hearing until preme Court itself has recognized that their money at the exact moment their after the event.”19 (Emphasis added.) “[e]viction of tenants” can “result[] in lives are being disrupted by court pro- Such a pre-deprivation hearing does not homelessness” that is “inimical to pub- ceedings and they face the possibility of take place here. Worse still, there is no lic health, safety, and welfare.”14 “Not having to find new housing that requires post-deprivation hearing on the Fritz de- only are [defendants’] property inter- a security deposit. fenses of those tenants who do not post ests involved, but the courts have also Second, erroneous deprivation of pri- back rent. recognized that if a person’s good name, vate interests is inevitable here because Third, any procedure that impedes reputation, honor, or integrity is at stake there is no pre-deprivation hearing at tenants in asserting their habitability rights because of governmental action, the all before back rent has to be paid into is contrary to the government’s interest to www.mnbar.org September 2021 s Bench&Bar of Minnesota 15 “assure adequate and tenantable housing itability concerns: “There is a compelling Fritz does not approve the draconian back within the state,” as explained in Fritz: reason to recognize this defense: the pro- rent prepayment system that has become “The legislative objective in enacting tection of the health, safety, and welfare standard practice in Minnesota courts. the implied covenants of habitability is of tenants and their families.”22 Just the opposite: Fritz discusses the idea clearly to assure adequate and tenantable In sum, the back rent prepayment of depositing “future rent” and “rent to be housing within the state.... If a landlord requirement plainly fails all three of the withheld” or some other “adequate security is entitled to regain possession of the Mathews factors and thus violates pro- therefor if such a procedure is more suit- premises in spite of his failure to fulfill cedural due process under both the U.S. able under the circumstances” (empha- the covenants, this purpose would be and Minnesota Constitutions. ses added)—not the prepayment of total frustrated.”20 back rent. Moreover, Fritz emphasizes It is for this reason that the Minnesota The misguided assumptions that “[i]n the majority of cases, the final Supreme Court recently rejected the ar- behind prepayment requirements determination of the action will be made gument that the 14-day notice require- How did we get to this point? Ironi- quickly and this procedure will not have ment in the rent escrow statute applies to cally, it appears that Fritz itself has been to be used.” Finally, Fritz cautions that the tenant’s ability to assert a Fritz defense misinterpreted to justify the pay-to-de- “[w]e also expect that, as experience dic- during eviction proceedings: “[R]equir- fend deposit of back rent in nonpayment tates, additional rules may be adopted to ing written notice before a tenant can cases. The confusion springs from the meet any problems encountered.”24 Ob- raise a common-law habitability defense statements toward the end of the Fritz viously, the procedural due process viola- would frustrate the Legislature’s goals and opinion endorsing limited rent escrow tion that has become standard practice in impose a procedural barrier for tenants during eviction proceedings when there is Minnesota housing courts qualifies as a defending against improper evictions.”21 a risk that “the landlord may prevail and problem that needs to be addressed with It is also for this reason that the Minne- may not then be able to collect the rents additional rules. sota Supreme Court last year provided due and yet would have been unable to Likewise, Minnesota General Rule of a common law defense when a landlord dispossess the tenant during the delays Practice 608 does not authorize auto- retaliates against a tenant for raising hab- occasioned by court proceedings.”23 But matic back-rent prepayment.25 Rule 608

R

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16 Bench&Bar of Minnesota s September 2021 www.mnbar.org MN Bench and Bar 2020 provides only that “[i]n any eviction ac- n Pre-deprivation hearing: Such a JAMES PORADEK is a tion case where a tenant withholds rent rent prepayment order would happen tenant rights litigator at in reliance on a defense, the defendant “only upon motion of the landlord Housing Justice Center shall deposit forthwith into court an and after notice and opportunity for in St. Paul, MN. Before amount in cash, money order or certified oral argument by both parties.” joining HJC in 2020, check payable to the District Court equal Jim was a litigation to the rent due as the same accrues or such n Ongoing rent payments deposited: partner at Faegre Baker other amount as determined by the court to Prepayment orders would “requir[e] Daniels. Jim graduated be appropriate as security for the plaintiff, only future payments falling due after from University of Minnesota Law School given the circumstances of the case.” (Em- the date the order is issued to be paid and clerked for the Honorable David S. Doty phasis added.) As in Fritz, Rule 608 re- into the court registry.” at Minnesota federal court. fers to the deposit of ongoing “rent as the [email protected] same accrues” or “other” “appropriate n Back rent payments not deposited: security”—not the deposit of back rent. “Any inclusion of back rent alleged LUKE GRUNDMAN has And as in Fritz, Rule 608 requires the to be due would depart from this defended the rights court to make this determination “given protective purpose, since the landlord of homeowners and the circumstances of the case,” which di- cannot recover back rent in a suit tenants with Mid- rectly indicates that the court must have for possession, and would be in the Minnesota Legal Aid a meaningful hearing to evaluate those nature of a penalty on the tenant.” since law school, circumstances. beginning in 2007. He n Burden on landlord to demonstrate started as an Equal The constitutionally permissible need for prepayment: “[I]t may issue Justice Works fellow, spent five years alternative only when the landlord has dem- fighting foreclosures and predatory lending, Under the Mathews due process test, onstrated an obvious need for such and then staffed a medical-legal partnership the court must evaluate the “probable protection.”29 clinic at Hennepin County Medical Center. value, if any, of additional or substitute He has served as managing attorney of Legal procedural safeguards.”26 Fortunately, a Bell provides a clear blueprint for Aid’s Housing Unit since 2016. constitutionally permissible substitute Minnesota courts to fix their pay-to- [email protected] procedure already exists, and was specifi- defend due process problems. The cally praised by Justice Douglas in Lindsey Bell procedures align closely with the The authors wish to thank Larry McDonough, v. Normet27 as “an excellent protective procedures indicated by Fritz and Rule Shana Tomenes, and Muria Kruger for their procedure”: the process established by 608. They conform to the procedural thoughtful contributions to the article. the D.C. Circuit in Bell v. Tsintolas Realty due process requirements of Mathews. Co.28 The Bell court set forth the follow- And they begin to transform eviction ing criteria for ordering limited rent es- proceedings into the “two-way streets” crow when a tenant asserts a habitability that the Minnesota Supreme Court has defense like the one recognized by Fritz: declared they must be. s

Notes (1982). Comm. v. McGrath, 341 U.S. 123, 168 (Frank- 1 Griffin v. Illinois, 351 U.S. 12, 17 (1956). 13 Doe v. Police Comm’r of Boston, 951 N.E.2d furter, J., concurring)). 2 929 N.W.2d 398, 409 (Minn. 2019). 337, 342 (Mass. 2011). 19 Boddie v. Connecticut, 401 U.S. 371, 377-80 3 213 N.W.2d 339, 342-43 (Minn. 1973). 14 Central Housing, 929 N.W.2d at 409. (1971). 4 Id.; see also id. at 342. (“[T]he rent, or at least 15 Fosselman v. Commissioner of Human Servs., 20 213 N.W.2d at 342. part of it, is not due under the terms of the 612 N.W.2d 456, 461 (Minn. Ct. App. 2000) 21 Ellis v. Doe, 924 N.W.2d 258, 265 (Minn. lease when the landlord has breached the (citing Wisconsin v. Constantineau, 400 U.S. 2019). statutory covenants.”). 433, 437 (1971)). 22 Central Housing, 929 N.W.2d at 409 (citations 5 Lindsey v. Normet, 405 U.S. 56, 66 (1972) 16 Board of Regents of State Colleges v. Roth, 408 omitted). (citations omitted). U.S. 564, 572-73 (1972) (stating that “prop- 23 213 N.W.2d at 343. 6 924 N.W.2d 594, 601 (Minn. 2019). erty interests protected by procedural due 24 Id. at 343 n.5. 7 424 U.S. 319 (1976). process” include ownership of “money”). 25 The 600 series in the General Rules of 8 Supra note 7 at 602 (quoting Mathews, 424 17 N. Ga. Finishing v. Di-Chem, Inc., 419 U.S. Practice formally applies only to the Housing U.S. at 335). 601, 606 (1975); see also Fuentes v. Shevin, Courts in Ramsey and Hennepin Counties. 9 Logan v. Zimmerman Brush Co., 455 U.S. 422, 407 U.S. 67, 84-85 (1972)(“[I]t is now well 26 424 U.S. at 335. 428 (1982). settled that a temporary, nonfinal depriva- 27 405 U.S. at 88 (concurrence/dissent). 10 Id. at 430. tion of property is nonetheless a ‘depriva- 28 430 F.2d 474, 483-84 (D.C. Cir. 1970). 11 Id. at 429 (citing Societe Internationale v. Rog- tion’ in the terms of the Fourteenth Amend- 29 Id. at 483-84. ers, 357 U.S. 197, 209 (1958)). ment.’ ”). 12 Greene v. Lindsey, 456 U.S. 444, 450-51 18 424 U.S. at 333 (quoting Joint Anti-Fascist

www.mnbar.org September 2021 s Bench&Bar of Minnesota 17 MARITIME LAW? IN MINNESOTA? YES.

ew Minnesota litigators would involved. Admiralty jurisdiction matters Why it pays to be surprised to field a call in- in Minnesota. volving an accident on one This article will explain the origins know maritime of our state’s lakes or rivers. and confines of federal admiralty and In doing so, the attorney un- maritime jurisdiction and look at how law in cases Fdoubtedly begins internally checking the these rules pertain to the waterways in legal boxes: Cause of action? Causation? and around Minnesota. Second, the arti- involving Damages? Statute of limitations? But one cle will address federal maritime law itself, important box may unfortunately get ig- explaining some key features that may ex- water-related nored: jurisdiction. This is a mistake. clusively apply and that would potentially Accidents involving millions of acres affect a typical personal injury case. accidents of waterway in and around Minnesota are not subject to Minnesota law. And Admiralty and maritime the importance of this fact is not merely jurisdiction: An overview academic. The impact of federal admi- The Constitution grants the federal By Vince C. Reuter ralty jurisdiction can, for example, create judiciary with power over “all Cases of a cause of action where one does not ex- admiralty and maritime Jurisdiction.”1 ist under Minnesota law, or allow for con- Congress implemented this power by tributory negligence that Minnesota law statute, providing that “district courts precludes; it can also arbitrarily limit po- shall have original jurisdiction, exclusive tential damages to the value of the vessel of the courts of the States,” in “any civil

18 Bench&Bar of Minnesota s September 2021 www.mnbar.org Boats on the St. Croix River

commerce in its “ordinary condition.”4 through, for example, the renting of boats Navigability is susceptible to change. For for fishing or other pleasure cruises. With example, a dam may prevent boats from respect to rivers, the St. Croix River, the passing beyond a certain point, thus strip- Minnesota River, and the Red River (ei- ping admiralty jurisdiction for a portion ther independently or through the Mis- (or all) of that waterway.5 Conversely, sissippi) all have interstate and interna- admiralty jurisdiction can be expanded tional access. Hundreds of other smaller through artificial bodies of water like ca- rivers and streams also flow into these nals or other man-made reservoirs.6 four major rivers (or a navigable lake) Congress expanded the locus analysis and thus may also be subject to maritime in 1948 through a causation test. The jurisdiction. Extension of Admiralty Act provides that In the end, because navigability de- admiralty jurisdiction “extends to and pends on the potential for actual mari- includes cases of injury or damages, to a time commerce, admiralty jurisdiction in person or property, caused by a vessel on Minnesota may depend on where in each navigable waters, even though the injury river or lake an accident occurred. This or damages is done or consummated on analysis may also apply to the Mississippi land.”7 This statute may lead to interest- itself. In 2015, the Army Corps of Engi- ing scenarios for litigants. For example, a neers, through an act of Congress, closed car accident may fall within admiralty ju- the Upper St. Anthony Falls Lock & risdiction if that accident resulted from a Dam (the lock by the Stone Arch Bridge drunk driver who has left a “booze cruise” in Minneapolis), which means that boats on Lake Superior.8 can no longer travel from, say, St. Cloud Second, with the “nexus” test, ad- to St. Paul.13 Thus, an accident occur- miralty jurisdiction applies to torts that ring near Elk River—unlike one near Red have a “potentially disruptive impact on Wing on the Mississippi River—may now maritime commerce” and where the tort fall entirely within Minnesota’s law and had a “substantial relationship to tradi- jurisdiction. tional maritime activity.”9 The test is in- The nexus analysis should also suggest terpreted broadly. For example, accidents the importance of recognizing admiralty on pleasure boats often trigger admiralty jurisdiction in Minnesota. A core aspect jurisdiction because they can affect other of maritime commerce is the leasing of boats engaged in maritime commerce.10 vessels. Thus, any time a resort or other And importantly, this potential impact is establishment rents a boat for temporary examined through “its general character,” use, they are engaging in maritime com- and not on any actual effects to maritime merce. Maritime commerce is similarly commerce.11 Likewise, “traditional mari- implicated when a business operates its time activity” is usually associated with own vessel for fishing or pleasure cruises. case of admiralty and maritime jurisdic- a vessel on applicable waters. Accidents These types of vessels may also include a tion, saving to suitors in all cases all other involving airplanes on navigable water- crew, which itself triggers distinct mari- remedies to which they are otherwise ways, for example, would not likely fall time rights and obligations. And in the entitled.”2 Neither the Constitution nor within admiralty jurisdiction.12 end, the operation of a pleasure boat, “no Congress specifically defined the param- matter what its size or activity, is tradi- eters of admiralty and maritime juris- Admiralty and maritime tional maritime activity to which the ad- diction. That task has been left largely jurisdiction: Minnesota’s miralty jurisdiction of the federal courts to courts, who interpret its limits in the lakes and rivers may extend.”14 context of historical meaning, U.S. geog- The locus analysis may bring a few of raphy, and (more recently) technological Minnesota’s lakes or rivers immediately to Maritime law: Why it matters changes involving maritime commerce. mind. The two big ones are of course Lake Admiralty jurisdiction brings with it Admiralty jurisdiction for torts pres- Superior and the Mississippi River—two “the application of substantive maritime ents a two-part “locus” and “nexus” test. of the largest and most significant bodies law.”15 This body of law has two sources: First, for locus, it applies to accidents of water in the United States. But there first, federal statutes like the Jones Act16 occurring upon the “navigable waters of are many more. Regarding lakes, two that or the Longshore and Harbor Workers the United States,” a designation that most likely fall within admiralty jurisdic- Compensation Act,17 both of which apply generally means waterways that act as tion are Lake of the Woods and Rainy to injured employees engaged in maritime interstate or international “highways for Lake, along with hundreds of smaller commerce; second, general maritime law, commerce.”3 A key component is that it lakes that also border Canada or even a which consists of court-fashioned rules must be “navigable in fact,” which means neighboring state. Many of these lakes and remedies similar to the common law that the waterway could support such have established maritime commerce— adopted and maintained by state courts.18 www.mnbar.org September 2021 s Bench&Bar of Minnesota 19 Notes 1 U.S. Const. Art III, Sec. 2, ¶ 1. 2 28 U.S.C. §1333(a). 3 The Daniel Ball, 77 U.S. 557, 563, 19 L. Ed. 999 (1870). Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995). 4 Id. 5 Livingston v. United States, 627 F.2d 165, 170 (8th Cir. 1980). 6 In re Boyer, 109 U.S. 629, 632 (1884). 7 Jerome B. Grubart, 513 U.S. at 532; U.S.C. §30101. 8 Duluth Superior Excursions, Inc. v. Makela, 623 F.2d 1251, 1254 (8th Cir. 1980). 9 Blake Marine Group v. CarVal Investors LLC, 829 F.3d 592, 597 (8th Cir. 2016) (quoting Jerome B. Grubart, 513 U.S. at Examples of general maritime law Act—which, despite strong criticism, re- 534). claims include unseaworthiness and mains in effect today.27 The thrust of the 10 Foremost Ins. Co. v. Richardson, 457 U.S. maintenance and cure, both of which law provides that a vessel owner can limit 668, 675 (1982); see also Sisson v. Ruby, also apply to injured employees.19 Where its liability against any claim up to “the 497 U.S. 358, 363 (1990). there is no applicable federal statute or value of the vessel and pending freight.”28 11 Id. general maritime law rule, state law can This is as meaningful at it sounds. If a 12 Exec. Jet Aviation, Inc. v. City of Cleveland, supplement any claim or defense.20 But severely injured passenger sues a vessel Ohio, 409 U.S. 249, 271 (1972). state law can never “defeat or narrow any owner in a multi-million-dollar negli- 13 Public Law No. 113-121, §2010 substantial admiralty rights of recovery,” gence claim, the owner could limit its po- (6/10/2014) (“No Later than 1 year whether from federal statute or general tential liability, regardless of fault, to the after the date of enactment of this Act, maritime law.21 arbitrary amount the boat is worth on the the Secretary shall close the Upper St. In personal injury cases, the imposi- open market—and there is no freight on Anthony Falls Lock and Dam”). tion of maritime law matters because it is a pleasure craft. The draconian nature of 14 St. Hilaire Moye v. Henderson, 496 F.2d often fundamentally different from Min- this defense is lessened by a significant ex- 973, 979 (8th Cir. 1974). nesota law. An employee injured while ception. The act only applies if the loss or 15 Yamaha Motor Corp., U.S.A. v. Calhoun, serving food in a restaurant, for example, damage occurred “without the privity or 516 U.S. 199, 206 (1996). is limited to bringing a workers’ compen- knowledge of the owner.”29 In summary, 16 46 U.S.C. §30104. sation claim against his employer.22 But any time the defense is raised, it presents 17 33 U.S.C. §901 et seq. if that same person is instead injured at least (a) significant procedure ob- 18 The Dutra Grp. v. Batterton, 139 S. serving drinks on a vessel during a din- stacles before any opportunity to litigate Ct. 2275, 2278 (2019) (“Thus, where ner cruise, he is entitled to bring a neg- the merits, and (b) a preliminary hurdle Congress has not prescribed specific rules, ligence claim against his employer, and regarding the vessel owner’s fault.30 federal courts must develop the amalgam unseaworthiness and maintenance-and- In conclusion, every Minnesota liti- of traditional common-law rules, modifica- cure claims against the boat owner, who gator should recognize the potential ap- tions of those rules, and newly created might also be his employer.23 The latter is plication and impact of admiralty juris- rules that forms the general maritime particularly important, because an unsea- diction in and around Minnesota’s lakes law.”) (cleaned up). worthiness claim is based on strict liabil- and rivers. Indeed, upon receiving any 19 Britton v. U.S.S. Great Lakes Fleet, Inc., ity, which provides an historically strong water-related personal injury call, the 302 F.3d 812, 815-18 (8th Cir. 2002). remedy for injured seafarers.24 first thoughts in any attorney’s mind 20 St. Hilaire Moye, 496 F.2d at 980. Injured passengers also have increased should be (1) where is this lake or river 21 Id. rights under general maritime law. For ex- located, and (2) what are its full and final 22 Minn. Stat. §176.001 et seq. ample, a restaurant patron who is injured boundaries? The attorney’s next thoughts 23 Britton, 302 F.3d at 815-18. in Minnesota can only recover damages should be how the injury relates to this 24 The Dutra Grp., 139 S. Ct. at 2281. for negligence if a jury finds that her own waterway and maritime commerce. This 25 Minn. Stat. § 604.01, subd. 1. fault is not proportionally greater than 50 initial analysis can be the most significant 26 Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, percent.25 But if that same passenger is in the entire case. s 409 (1953). instead injured aboard a vessel on navi- 27 46 U.S.C. §30501-30512. gable waters, general maritime law allows 28 46 U.S.C. §30505. for damages if the jury finds that she is VINCE C. REUTER is a 29 Id. anything less than 100 percent at fault.26 partner and proctor in 30 While ultimately unsuccessful because of This distinction may significantly impact admiralty at Eckland & issues related to privity or knowledge, a the risk analysis for Minnesota litigators Blando in Minneapolis, vessel owner sought to limit its liability in assessing high-value claims. where he practices maritime a tragic wrongful death action involving A third example highlights a par- law, government contracts, an accident on Rainy Lake. In re Com- ticularly strong defense that is unique to and commercial litigation. plaint of Rainy Lake Houseboats, Inc., ex rel. admiralty jurisdiction and its underlying Mr. Reuter has an LL.M. in Exoneration from, or Limitation of, Liab., substantive law. Over 200 years ago, Con- admiralty law from Tulane University Law School. 14-cv-1373, 2015 WL 3795786 (D. Minn. gress passed the Limitation of Liability 6/18/2015).

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By Senior Judge Susan R. Miles

22 Bench&Bar of Minnesota s September 2021 www.mnbar.org Whatever the task at hand, a meditation practice builds your capacity to clear your mind of detritus collected and recycled over a lifetime.

n its surface, you might regard the practice of medi- not at hand, then a straight-backed chair or stool suffices as tation as mysterious at best, and utterly boring at long as my feet can reach the floor or a rung. Physical torture is worst. But what appears to be doing nothing is not to be avoided. that at all. Once seated, I close my eyes and align my posture: creat- OThe title of Don’t Just Do Something—Sit There, a book by ing a small hollow in my back, chest slightly lifted, shoulders Sylvia Boorstein, at first blush may suggest that meditation is a relaxed, chin lowered enough to allow the vertebrae in the cer- practice of disengaging and doing nothing. Far from it. As Dr. vical spine to open and relax. Hands resting in my lap, fingers Boorstein explains, the emphasis is on the word “just,” meaning lightly touching. that “sitting there” is an active practice yielding specific benefits, As I begin, I form an intention, such as noticing whether my most notably a greater capacity for resiliency. Whatever the task thoughts, feelings, or bodily sensations are pleasant, unpleasant, at hand, be it fighting for racial justice and police reform, get- or neutral. Settling in, I purposely travel to each of my sense ting the kids back in school, or preparing for trial, a meditation doors, observing if any sight sensations are happening (a little practice builds your capacity to clear your mind of detritus col- difficult with your eyes closed, but you would be surprised), lected and recycled over a lifetime, through the act of bringing sounds (quite common if you are within earshot of an HVAC awareness to your ingrained thoughts, emotions, and physical system), smell (lingering odors from breakfast), taste, or touch sensations. (fabric contacting the skin on my shoulders). The final sense Awareness is another name for mindfulness. Not any kind door, my mind, I save for later. of generalized awareness, but an intention to pay attention to Next I select an anchor for my awareness, usually my breath, what is arising in your mind in real time. Development of mind- and I hone in on the belly, chest, or nostrils as a locus to ob- ful awareness is, like riding a bike, a skill that looks deceptively serve it. In my early days of meditation, I often switched affini- simple but doesn’t just happen overnight. It takes practice. Fol- ties between these three focal points, unable to decide which I lowing a daily formal meditation practice will, in a few short preferred. With the benefit of experience I have settled into a weeks, build your capacity to recognize and harness thoughts monogamous relationship with my belly. Its up and down move- and emotions before you react to your personal triggers in anger ment, the empty spaces between inhalations and exhalations, or avoidance. Who wouldn’t want to reason with our spouse, differences in length and temperature, smoothness and rough- child, opposing counsel, or even a judge instead of blowing up ness, are all fodder for my concentration. at them and having to repair the damage afterward? A minute passes and I’m still with my breath. Minute num- To a casual observer, meditation may look about as fun ber two arrives and my mind has wandered off into plans for as watching paint dry. If you tend to be impatient, watching the day ahead, and by minute number three, I am aware that someone meditate for more than a moment may be agony, and I’m working on a shopping list and trying to fit a grocery run imagining yourself sitting with your own eyes closed a fate worse between the end of court and a date with a friend. That’s just than being stuck in rush hour traffic when there are a thousand what minds do. I note “thinking; neutral,” then let go of the things demanding your immediate attention. “After all,” you thought and, without punishing myself, gently guide my aware- might think to yourself, “I’ve got more pressing needs than to ness back to my breath. Three or four breaths pass by before the waste my time doing nothing.” But that would be based on the next thought comes galloping into view. I have an opinion due erroneous assumption that the meditator is just checked out. next week in an acrimonious divorce and I still haven’t decided Let me invite you to journey into my mind, for better or for who gets the Elvis lamp. Unlike the banal planning thought I worse, on a reality-based meditation session, with all its twists had moments ago, this one is cloaked in a veil of anxiety, which and turns, moments of being lost, and, on a good day, an oc- I detect by feeling a quiver in the area just below my sternum. casional insight. I label the feeling unpleasant. So I note “worry,” let go of the thought, and gently redirect my attention to my breath. So far, My practice so good. I begin by finding a quiet spot—my home office, or in nice Eons ago, I took to heart some advice given by Sharon Salz- weather, my deck. My phone, which doubles as a meditation berg, a founder of the Insight Meditation Society in Barre, Mas- timer, is set to Do Not Disturb. My preferred posture is kneel- sachusetts. She counsels, “The heart of skillful meditation is the ing on the floor, supported by a small wooden bench. Lacking a ability to let go and begin again, over and over again. Even if younger person’s capacity to sit cross-legged atop a little cush- you have to do that thousands of times during a session, it does ion, I find kneeling to be my ticket to comfort. If my bench is not matter.” www.mnbar.org September 2021 s Bench&Bar of Minnesota 23 With patience, I await the next event. It could be a sensation in my body or a noise from outside. Noting whatever has hap- pened as, say, itching or hearing, and without getting lost in a story, I might even decide to shift temporarily to the new sound or sensation as an object of awareness in place of my breath. Other times I may decide to devote the entire session to concen- trating only on my breath, guiding myself through distractions by counting the length of each inhalation and exhalation, or whispering to myself “inhaling” and “exhaling.” Even a meteor shower of thoughts can be tempered by softly repeating “one, two, three, four.” On days when I am less distracted by everyday thoughts, I practice “choiceless awareness.” Sitting quietly, a vivid thought about a person or event in my distant past might show up with- out warning, much like a dream. These complex thoughts of- ten are accompanied by emotions and physical sensations, war- ranting further investigation with a gentle curiosity. Does this thought of my mother make me feel sad? Where am I feeling the emotion in my body? Is this a familiar feeling? Learn more The power of this deeper practice is the discovery of long- held, latent perceptions affecting my self-view and resulting be- MEDITATION RESOURCES havior. For example, anger over my spouse’s failure to put out the garbage bins leads to an insight that I have a deep insecurity NY Times Wellness Guide: How to Meditate (www.nytimes.com/ that no one ever takes care of me. And that insecurity can be guides/well/how-to-meditate): Simple and comprehensive, with triggered by the person who pushes my patience a bit too far, guided meditations and lots of tips on establishing a practice. causing an angry rebuke. The trick, however, is that after realiz- I love the tips on how to deal with the wandering mind. The Times ing a particular thought or emotion is profound, I remind myself also has a separate guide on applying mindfulness at work: to set it aside to reflect upon after the end of the session. Don’t How to be More Mindful at Work (www.nytimes.com/guides/well/ get wrapped up in identifying with your thoughts, my teachers be-more-mindful-at-work) advise. Nor is every day a struggle. Sometimes my mind has the airi- Insight Timer app (Insight Network, Inc.) (for Apple and Android ness of a fluffy cotton blanket hanging from the clothesline and devices): “Learn How to Meditate in Seven Days” is a free waving in the breeze. My upper body feels porous, my arms al- introductory course taught in 12-minute increments. Thousands of most weightless, vivid splotches of lapis and army green floating courses, guided meditations, music and networking opportunities; inside my eyelids. No thoughts arising, other than regret when easy-to-use filters. Particularly helpful: talks and music for falling the bell signals an end to my session and my momentary sense asleep. of peace.

Mindfulness in Law Society (www.mindfulnessinlawsociety.org): Coda Holds 30-minute on-line meditation sessions every Monday and Remember Forrest Gump sitting on a park bench offering to Wednesday afternoon; no experience necessary. Also sponsors share with a stranger a piece of chocolate? “My momma always retreats and conferences for lawyers, judges, and law students. said, life was like a box of chocolates. You never know what you gonna get.” That’s what meditation is like. When I sit down to University of Minnesota Center for Spirituality and Healing meditate, I have no idea what is going to show up. The point is (www.csh.umn.edu): Offers eight-week Mindfulness Based Stress watching each event arrive, observing its qualities, and bidding Reduction course online and on campus; also a six-week online it farewell, building neural pathways to exercise throughout the Mindfulness at Work program. Free online guided sessions in rest of my day. I can observe thoughts and emotions with greater meditation and mindful movement offered at noon on Mondays. discernment rather than being sucked into old conditioned sto- Just click the For the Community link on the CSH home page to ries. And the next time I feel angry with my husband for not reach a calendar that includes the Mindful Monday link. taking out the garbage, I can take a deep breath and realize that it’s just not a big deal. s The Anxious Lawyer, Cho, Jeena and Gifford, Karen (ABA Publishing, 2016). Very clear advice on starting a meditation practice and the benefits of sustaining that practice, plus tips on applying mindfulness to professional tasks. Senior Judge SUSAN R. MILES was a judge in the 10th Judicial District from 1997 to 2018 and served as Wherever You Go, There You Are, Kabat-Zinn, Jon (Hyperion, assistant chief judge of the 10th District, as well as 1994). A comprehensive, concise primer on applying mindfulness president of the Minnesota District Judges Association meditation in everyday life, by the creator of the Mindfulness and Minnesota Women Lawyers. She teaches Based Stress Reduction program taught throughout the West. mindfulness-based stress reduction at the University of A YouTube search of the author yields hundreds of videos of his Minnesota and is founder of the TheSettledMind.com. guided meditations. [email protected]

24 Bench&Bar of Minnesota s September 2021 www.mnbar.org advertisement WORLD CHAMPIONS! Mitchell Hamline’s Austyn Boothe and Daniel Sheikhan claim first place in the 2021 International Negotiation Competition

BY TOM WEBER

fter prepping for and competing in an international “Although the competition was virtual, it was one of the A competition for more than a week without much sleep, most enjoyable and best learning experiences of law school,” Mitchell Hamline School of Law students Austyn Boothe added Sheikhan. “I am extremely grateful for the amazing and Daniel Sheikhan decided to stay up until 4 am in early training and support of our coaches and the dedication and July to watch the results. It was the right call. skills that my negotiation partner brought to our team.” The duo won first place in the 2021 International Negoti- The team was coached by Mitchell Hamline Dean of ation Competition. It’s the second time in Mitchell Hamline’s Students Lynn LeMoine ’11, and Adjunct Professor Patrick six-year history one of its teams has won top prize. Zitek ’10, and Hamline University Professor Ken Fox. Boothe and Sheikhan represented the United States as one A native of Toronto, Canada, Sheikhan ’21 is one of Mitchell of 28 teams from around the world taking part in a series of Hamline’s newest alums, graduating this spring with a certificate negotiation sessions over five days. Each day featured simulated from the school’s Dispute Resolution Institute along with his international negotiation sessions judged by a panel of legal J.D. He works with Reece Law and also holds positions at experts from across the globe. This year’s sessions related to Donate Northern, The Northern Express Minnesota, and the space law. real estate and investment firm he started in Toronto, Danmar They admit the wee-hours announcement didn’t fully Empire Group. register at first. “We just saw team USA flash across the screen Boothe, who is in her final months at Mitchell Hamline, and started cheering,” said Boothe. “Given the sheer talent is the first person in her family to earn a college degree. of the other teams, I was genuinely shocked.” She’s also an AmeriCorps alum and has been active in Mitchell “Austyn and Daniel deserve so much credit for this Hamline’s Student Bar Association as cohort representative and accomplishment, especially having competed online during parliamentarian. She is student liaison for the New Lawyers a pandemic,” said President and Dean Anthony Niedwiecki. Section of the Hennepin County Bar Association. “And we’re thrilled this world championship is back at The International Negotiation Competition is a competition Mitchell Hamline.” for law students to engage in the resolution of international In 2017, Mitchell Hamline students Brian Kennedy and disputes or transactions. The Mitchell Hamline team was Briana Al Taqatqa took first at the same competition, which invited to the international contest after placing second in a was held in Norway that year. national negotiation competition sponsored by the American This year’s competition was hosted remotely by the National Bar Association earlier this year. University of Singapore and Singapore International Mediation Institute.

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CRIMINAL LAW of criminal sexual conduct against two of his girlfriend’s minor daughters, between JUDICIAL LAW January 2004 and March 2018, and n Controlled substances: Chemical test between January 2006 and June 2018. The of marijuana not required to establish jury was not asked to determine the dates probable cause. After police found or date ranges for the offenses. The district nearly 60 grams of suspected marijuana court sentenced appellant in accordance in appellant’s vehicle, he was charged with the sentencing guidelines in effect 27 with fifth-degree possession. He moved after 8/1/2006, finding no evidence that CRIMINAL LAW to dismiss the charge for lack of probable the offenses occurred in 2006 or earlier. by Samantha Foertsch cause, arguing the field test performed on The court of appeals agreed with appel- & Stephen Foertsch the suspected marijuana merely detected lant that the district court violated Blakely the presence of THC, but did not test the v. Washington, 542 U.S. 296 (2004), by 28 THC concentration to determine if the finding the earliest offense occurred after ENVIRONMENTAL LAW substance was illegal marijuana or legal 8/1/2006, but found the error harmless. by Jeremy P. Greenhouse, hemp. The district court granted appel- Blakely protects a criminal defendant’s Jake Beckstrom, Erik Ordahl lant’s motion, finding that, as a matter of 6th Amendment right to be sentenced law, chemical testing to establish that the solely upon factual findings made by a jury. 30 THC concentration in plant material ex- A Blakely violation “occurs when a court FEDERAL PRACTICE ceeds the legal limit is required to establish determines any disputed fact essential to by Josh Jacobson probable cause. The state appealed. increase the ceiling of a potential sen- The court of appeals reverses, rejecting tence, including factual findings related 31 a bright-line rule that a chemical test of a to offense dates, without the defendant INDIAN LAW suspected controlled substance is required waiving the right to a jury’s determination by Leah K. Jurss to establish the substance’s identity. Cer- of that issue.” The parties here agree that tainly, proof of the actual identity of the the district court’s determination that the 32 substance is required, but circumstantial offenses occurred after 8/1/2006 violated INTELLECTUAL PROPERTY evidence and officer testimony may be Blakely. Because a Blakely violation does by Joe Dubis used to prove the identity of the substance not rise to the level of a structural error, it at trial and to show probable cause exists is subject to the harmless error standard. 33 to believe the substance is what the state Despite the date ranges alleged in the REAL PROPERTY claims it to be. The record here showed complaint, no evidence was presented at by Zack Armstrong police stopped appellant for a traffic viola- trial of any criminal sexual conduct acts tion, smelled marijuana in his vehicle, against either victim before 2009. Ap- 34 discovered appellant’s multiple prior con- pellant also did not argue that he would TAX LAW trolled substance convictions, recovered present evidence relating to the timing by Morgan Holcomb substances they suspected to be marijuana of the offenses. Thus, there is no reason- & Sheena Denny after field testing, and obtained a post- able doubt that the result would have Miranda admission from appellant that been different if the Blakely violation had 36 he possessed marijuana in the vehicle. If not occurred, and the error was harmless. TORTS & INSURANCE proven at trial, a jury could reasonably in- State v. Reimer, A19-1801, 962 N.W.2d by Jeff Mulder fer from these facts that the plant material 196 (Minn. 2021). in appellant’s vehicle was marijuana. As such, these facts are sufficient to support a n Right to a public trial applies to finding of probable cause. State v. Dixon, Schwartz hearings. After a jury trial, ap- A21-0205, 2021 WL 2908645 (Minn. Ct. pellant was found guilty of second-degree App. 7/12/2021). intentional murder for shooting a man at a gas station. After trial, the district court n 6th Amendment: Failure to have jury received evaluation forms from the jurors, determine dates of sex offenses was a on which one juror reported sharing with Blakely violation, but harmless error. A other jurors during deliberations informa- jury found appellant guilty of two counts tion on what is taught during conceal and www.mnbar.org September 2021 s Bench&Bar of Minnesota 27 Notes&Trends | CRIMINAL LAW | ENVIRONMENTAL LAW carry permit classes, information that ENVIRONMENTAL LAW than 250 tpy of any regulated pollutant was not presented as evidence at trial. and thus issued a minor air emissions The district court granted appellant’s JUDICIAL LAW permit. The permit challengers argued motion for a Schwartz hearing to deter- n MN Court of Appeals remands that MPCA’s conclusion was belied by, mine if the juror’s conduct in presenting PolyMet air permit to MPCA. In July the among other things, an investor report extraneous information during delibera- Minnesota Court of Appeals remanded PolyMet’s Canadian parent company filed tions affected appellant’s right to a fair to the Minnesota Pollution Control with Canadian regulatory authorities 10 trial. After a prehearing conference, a Agency (MPCA) an air emissions permit days after the comment period closed on newspaper published the reason for the MPCA issued to Poly Met Mining Inc. the proposed NorthMet air permit. The upcoming Schwartz hearing. The district for its NorthMet mine. If built, North- report provided a preliminary economic court bifurcated the Schwartz hearing Met would be the first copper-nickel- analysis of scenarios where NorthMet to allow two jurors who had travel plans platinum mine in Minnesota. would increase its ore-processing rates to to attend early. To prevent the newspa- This dispute arose in December 2018, levels that would result in major-level air per from “contaminating” the second when several environmental groups and emissions. This, the challengers alleged, hearing, the district court closed the first the Fond du Lac Band of Lake Superior constituted evidence that NorthMet was hearing to the public. After both sessions Chippewa raised concerns that the pro- likely to exceed the emissions threshold of the hearing, the court concluded the duction capacity of the existing facilities such that MPCA wrongly issued the extraneous information did not affect at the NorthMet mine site were higher permit as a minor permit. the jury’s verdict. than the rate stipulated in the company’s Addressing these issues on remand, Among other arguments, appellant application for a minor air permit. When the court of appeals concluded MPCA argued on appeal that the closure of the this issue first reached the court of ap- had failed to meet its obligation to courtroom during the first Schwartz hear- peals, the court concluded MPCA had consider pertinent documents and make ing session violated his 6th Amendment failed to take a “hard look” into the evi- reflective findings on whether NorthMet right to a public trial. The public trial dence of the possible “sham” permitting. was likely to comply with the minor right applies to all phases of trial, includ- In re Issuance of Air Emissions Permit No. permit or had knowingly submitted false ing pretrial suppression hearings and 13700345-101 for PolyMet Mining Inc., or misleading information. MPCA’s voir dire, but not including the court’s 943 N.W.2d 399, 409 (Minn. App. 2020). limited efforts to address the Canadian tending to administrative matters. A In February of this year, the Minnesota report and related evidence, the court Schwartz hearing is not merely adminis- Supreme Court reversed, holding that held, amounted to conclusory statements trative, as it involves questioning jurors while a permitting agency may investi- that inadequately explained the reasons under oath to obtain information to gate sham permitting at the synthetic for MPCA’s decisions on these issues. In determine whether a party was denied a minor source permit application stage, it remanding to MPCA for additional find- fair trial. Such a hearing could result in a is not required to do so. In re Issuance of ings and a revised decision on the permit, legal determination that undermines the Air Emissions Permit No. 13700345-101 the court emphasized that its holding result of an entire trial and, the court of for PolyMet Mining Inc., Nos. A19-0115 was not that the record couldn’t support appeals concludes, is a substantive phase and A19-0134, 2021 WL 710490 (Minn. a reasoned decision by MPCA to issue of the criminal trial, implicating the right 2/24/2021). However, the Supreme Court a permit, but that the agency so far had to a public trial. remanded to the court of appeals two failed to make such a reasoned decision. In this case, the closure of the first other arguments asserted by the environ- In re Issuance of Air Emissions Permit Schwartz hearing to the public was im- mental groups that the court of appeals No. 13700345-101 for PolyMet Mining proper, as the district court did not con- had not addressed. These included Inc., Nos. A19-0115 and A19-0134, sider alternatives to closure or narrowly assertions that the permit should have 2021 WL 710490 (Minn. 7/19/2021). tailor the closure to address its concern been denied because (a) evidence in the over media “contamination.” An im- record did not support MPCA’s conclu- ADMINISTRATIVE ACTION proper closure is a structural error, but a sion that PolyMet “will... comply with n MPCA adopts Clean Cars Minnesota new trial is not automatically required. all conditions of the permit,” Minn. R. rule. In late July, the Minnesota Pollution Here, a limited remand is deemed the 7007.1000, subp. 1(G), and (b) PolyMet Control Agency (MPCA) published no- appropriate remedy, given that the allegedly “failed to disclose fully all facts tice of its final adoption of amended air improper closure was of only a small seg- relevant” to the permit and “knowingly rules to reduce the state’s vehicle green- ment of the post-trial Schwartz hearing. submitted false or misleading information house gas emission standards, known as The matter is remanded for the district to the agency.” Id., subp. 2(C). “Clean Cars Minnesota.” The MPCA court to conduct a new, public Schwartz Under the Clean Air Act, a source published its notice of intent to adopt the hearing involving the first two jurors. must seek permitting based on its ton- Clean Cars Minnesota rule in December State v. Jackson, A20-0779, 2021 WL nage per year of pollution. A facility that 2020. 45 Minn. Reg. 663 (12/21/2020). 3027204 (Minn. Ct. App. 7/19/2021). emits over 250 tons per year (tpy) of any The Clean Air Act (CAA) authorizes regulated pollutant constitutes a major the Environmental Protection Agency SAMANTHA FOERTSCH stationary source, triggering various to set federal vehicle emission standards Bruno Law PLLC requirements under the Clean Air Act, that states must follow. 42 U.S.C. §7521. [email protected] including the requirement to implement However, Section 177 of the CAA grants STEPHEN FOERTSCH best available control technology mea- states the power to adopt vehicle emis- Bruno Law PLLC sures. 40 C.F.R. §52.21(b)(12). The re- sion standards that are more stringent [email protected] view process and permit requirements for than the federal standard, so long as the major source permits are more rigorous standards are identical to California’s than for minor source permits. MPCA standards, and the emission standards concluded NorthMet would emit fewer are adopted at least two years before

28 Bench&Bar of Minnesota s September 2021 www.mnbar.org | ENVIRONMENTAL LAW commencement of such vehicle model year. 42 U.S.C. §7507. Section 116.07, subdivision 2, of the Minnesota Statutes authorizes MPCA to adopt standards Help protect of air quality, including the maximum your family from allowable standards of emission of air contaminants from motor vehicles; the unexpected and subdivision 4 of the same section authorizes MPCA to adopt, amend, and With the MSBA Simplified Issue rescind rules for the prevention, abate- Group 10-Year Level Term Life ment, or control of air pollution. Minn. Insurance Plan Stat. §116.07 subd. 2, 4 (2020). The Clean Cars Minnesota standards implement two components of reduced vehicle emissions standards for light-duty and medium-duty vehicles. First, the Without you, the lives of your loved ones low emission vehicle standard requires would change greatly. But some things This plan available exclusively vehicle manufacturers to deliver for sale would stay the same—having a mortgage to MSBA members and within Minnesota only vehicles that payment, car payments, monthly bills or spouses includes: meet California’s more stringent tailpipe covering any other basic necessities, not emission standards for greenhouse gases to mention an occasional luxury. • Benefit amounts available: (GHGs) and other air pollutants. Sec- —$150,000 under age 50 ond, the zero-emission vehicle standard But as the future is uncertain, preparing —$100,000 under age 55 requires auto manufacturers to provide your family for the unexpected doesn’t —$50,000 under age 60 for sale within Minnesota a certain need to be. And now it’s even easier to • Locked in benefit for a full percentage of vehicles with zero tail- get level term life insurance coverage. 10 years* pipe emissions, such as battery electric • No medical exam required With simplified application procedures vehicles, plug-in hybrid electric vehicles, • Pay no premiums if disabled and hydrogen-fueled vehicles. you can apply for coverage up to $150,000 The Clean Cars Minnesota standards in benefits without submitting to a full medical exam. do not apply to off-road vehicles or Call: 1-800-501-5776 heavy-duty equipment like farm machin- ery. The standards do not require anyone A gap in your current life insurance Visit: www.MSBAinsure.com to give up their current vehicle or to coverage could expose your loved purchase an electric vehicle, and they ones to financial risk. And with today’s do not apply to existing vehicles or used rates, having your premium remain vehicles up for sale. level during a 10-year period* is a smart As required under the CAA, two full way to protect their future. vehicle model years must occur before *The initial premium will not change for the first 10 years unless the insurance Clean Cars Minnesota may be enforced, company exercises its right to change premium rates for all insureds covered so the earliest date the Clean Cars Min- under the group policy with 60 days’ advanced written notice. Group Level Term Life Insurance underwritten by ReliaStar Life Insurance nesota rule could take effect is 1/1/2024, Company, Minneapolis, MN. for vehicles built under the model year 2025. However, the rule also includes an Program Administered by Mercer Health & Benefits Administration LLC incentive system to encourage manufac- In CA d/b/a Mercer Health & Benefits Insurance Services LLC turers to bring electric vehicles to the AR Insurance License #100102691 • CA Insurance License #0G39709 state sooner, beginning with model year 92598 (7/21) Copyright 2021 Mercer LLC. All rights reserved. 2022. Minnesota is the 15th state to adopt California’s more stringent vehicle omis- 92598 (7/21) MSBA LTL Ad sion standards, and the first state in the Trim Size: 4.625" x 7.375" Bleed: N/A Live: N/A Midwest. Adopted Permanent Rules DIGITAL EVIDENCEColors: PROFESSIONALS 4c-CMYK Stock: N/A

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www.mnbar.org September 2021 s Bench&Bar of Minnesota 29 Notes&Trends | FEDERAL PRACTICE FEDERAL PRACTICE lacked standing. The 8th Circuit rejected n Attorney’s fee award of over $1.1 mil- that argument and denied the motion to lion affirmed. Rejecting the defendants’ JUDICIAL LAW dismiss, finding that it was “not appropri- contention that the district court had n Fed. R. Civ. P. 54; preliminary injunc- ate for the [defendant] to work backward abused its discretion by failing to specifi- tion; attorney’s fees; timing of applica- in seeking to disrupt subject matter juris- cally address each of their objections to tion. In a decision that is likely to have diction based on the district court’s post the plaintiffs’ attorney’s fees application, major implications when plaintiffs prevail trial order on the merits of this case.” the 8th Circuit found that the district on a request for a preliminary injunction Quiles v. Union Pac. R.R. Co., ___ F.4th court had “closely scrutinized Plaintiffs’ and when attorney’s fees are available to ___ (8th Cir. 2021). billing records” and affirmed an award prevailing parties, the 8th Circuit held of more than $1.1 million in attorney’s that the entry of an order granting a pre- n CAFA; local controversy exception; fees. League of Women Voters of Mo. v. liminary injunction constitutes the “entry remand; appealable order. Reaffirming Ashcroft, ___ F.4th ___ (8th Cir. 2021). of judgment” that triggers a 14-day dead- that a remand order relying on the local line to move for attorney’s fees under Fed. controversy exception to CAFA is a final n Trial witness barred due to untimely R. Civ. P. 54. The court recognized that order appealable under 28 U.S.C. §1291 disclosure. Where the plaintiff filed an the advisory committee notes indicated even where the 8th Circuit had previ- amended witness list that attempted to that the deadline for motions for attor- ously denied permission to appeal under add a witness more than two months ney’s fees should be 14 days after entry of 28 U.S.C. §1453(c), the 8th Circuit after the deadline for disclosing trial the final judgment, but found that it was determined that the local controversy witnesses, and the defendants requested bound by the plain language of the rule. exception did not apply and reversed the that the witness be barred from testify- Acknowledging the absence of con- district court’s remand order. Kitchin v. ing, Judge Nelson found that the plaintiff trolling authority directly on point, the Bridgeton Landfill, LLC, 3 F.4th 1089 had not established the “good cause” 8th Circuit found no abuse of discretion (8th Cir. 2021). required to support the amended witness in the district court’s alternative hold- list. Judge Nelson also found that the ing that the plaintiffs had established n Forum selection clause; removal; re- plaintiff’s offer to produce its new witness excusable neglect for their failure to seek mand. Where a forum selection clause in for a deposition on the eve of trial “would attorney’s fees within Rule 54’s deadline. a contract required litigation in a county not cure the prejudice to Defendants” However, in light of this decision, future where no federal court was located and caused the by late addition. Asset Mktg. litigants who obtain preliminary injunc- that clause contained an anti-removal Servs., LLC v. JAM Prods., Inc., 2021 tions may find courts far less understand- provision, the 8th Circuit affirmed the WL 3137497 (D. Minn. 7/23/2021). ing if they fail to seek attorney’s fees district court’s dismissal of a federal court within 14 days of entry of a preliminary action. Smart Commc’ns Collier Inc. v. n Motions to intervene denied due to injunction. Spirit Lake Tribe v. Jaeger, Pope Cty. Sheriff’s Office, ___ F.4th ___ untimeliness. Where proposed interve- ___ F.4th ___ (8th Cir. 2021). (8th Cir. 2021). nors did not seek to intervene until after Judge Ericksen had entered summary n Subject matter jurisdiction on appeal; n Appeal from striking of expert wit- judgment, and the parties opposed the standing. After the defendant appealed ness under Daubert; waiver of argu- motions to intervene, Judge Ericksen the district court’s rulings on the parties’ ment. Affirming a district court’s striking found that all four of the relevant factors motions for judgment as a matter of law of the plaintiff’s witness under Daubert, weighed against intervention and denied and its partial award of attorney’s fees to the 8th Circuit found that the plaintiff the motions. United Food & Com- the plaintiff, and briefing in the 8th Cir- had waived one of his design defect mercial Workers Union v. United State cuit had been completed, the defendant arguments when he argued that his Dept. of Ag., 2021 WL 2010779 (D. moved to dismiss the appeal for lack of expert “cited other numerous alterna- Minn. 5/20/2021). subject matter jurisdiction, arguing that tive designs,” but did not “meaningfully the district court’s determination that the advance his argument.” McMahon v. n Patent litigation; motions for sum- plaintiff had failed to establish his right to Robert Bosch Tool Corp., ___ F.4th ___ mary judgment and sanctions denied damages or equitable relief meant that he (8th Cir. 2021). as “premature.” Where the defendant moved for summary judgment and Fed. R. Civ. P. 11 sanctions prior to substan- tial discovery and claim construction, SOCIAL SECURITY DISABILITY Chief Judge Tunheim denied both mo- INITIAL APPLICATION THROUGH HEARING tions without prejudice as “premature.” Halverson Wood Prods., Inc. v. Classi- fied Sys. LLC, 2021 WL 3036883 (D. Minn. 7/19/2021).

n Motion to strike deposition errata sheet granted in part. Where the plain- tiff’s Fed. R. Civ. P. 30(b)(6) designee listed a number of substantive changes 612-825-7777 to her deposition testimony on her errata www.livgard.com sheet and the defendant moved to strike Paul Stephanie the errata sheet, Magistrate Judge Thor- Successfully pursuing benefits since 1993 Livgard Christel son applied the prevailing “flexible” ap- proach, found that a few of the proposed

30 Bench&Bar of Minnesota s September 2021 www.mnbar.org | FEDERAL PRACTICE | INDIAN LAW orene aw irm mmigration aw changes to the transcript were sufficient- B L F – i L ly justified, but struck the majority of the proposed changes, finding no “sufficient justification.”Willoughby II Homeown- ers Assoc. v. Hiscox Ins. Co., 2021 WL Work Visas for Professionals 3077070 (D. Minn. 7/21/2021). Premium Processing Now Available for Many Categories of U.S. Work Visas n Fed. R. Civ. P. 41(a)(1); request for con- ditions on dismissal denied. Where the plaintiffs moved to dismiss their claims with prejudice, and the defendants op- • Engineers, Computer & IT posed that motion unless the plaintiffs Professionals were also ordered to pay the defendants’ • Physicians & Allied Health attorney’s fees, costs, and disbursements, Judge Frank denied the defendants’ re- Professionals quest and granted the plaintiffs’ motion • Financial, Legal & Accounting to dismiss “without condition.” Iglesias Professionals de Castro v. Castro, 2021 WL 1600482 (D. Minn. 4/23/2021). • Key Managers and Executives n Fed. R. Civ. P. 15(d); supplemental Scott Borene complaint; applicable standard. Grant- [email protected] ing the plaintiffs’ motion pursuant to Fed. R. Civ. P. 15(d) to supplement their Named 2022 Lawyer of the Year complaint, Magistrate Judge Leung ap- in Immigration Law in Minnesota by plied the same “liberality” that applies to motions to amend under Fed. R. Civ. P. Best Lawyers in America 15(a). Dekker v. Cenlar FSB, 2021 WL a 2950143 (D. Minn. 7/14/2021). nt e y ed 3950 IDS Center me Minneapolis www.borene.come rs 612.321.0082 n Request for expedited discovery ri rs up a granted in part and denied in part fol- Judg e nt emnitve S s ip Sh nd ei y RO ede tee lowing grant of motion for preliminary n me I T rs nsh i iff Rec s pe rus s injunction. Granting the plaintiff’s mo- iaWHENev JudgPERFr O tR M ANCEemnit er CuO UNT T Sa s tion for a preliminary injunction, Judge pl e n d iv S O ard ip Sh In e y R ede tee Wright found that the plaintiff could not Re n me f T ers Gu ri nsh vi if Rec rs Trus as establish “good cause” for its “extremely a ia le Judg er nt emnitve Sup s broad” discovery requests, but did grant or rd p p nd i O ede rti a Re i Sh me I e y TR rs tee its motion for expedited discovery, lim- Gu i nsh in dg ff s e rus Ce p ar ev ri t Rec er T a s ited to “communications that may self- i or ia pl Ju he n emnitiv Sup O destruct.” Powerlift Door Consultants,rsh ti rd ip S Ind e y R ede tee r ua Re sh n gme f T ers Inc. v. Shepard, 2021 WL 2911177ato (D. Ce G ri vi d if Rec rs Trus a ip ra ian le Ju r t emnit e Sup Minn. 7/12/2021). rd p p he n nd iv O ede rtio a Re hi S me I e y R rs orsh Gu i in g ff nit T e JOSH JACOBSON at Ce r ns v d i Rec rs a t ip ra ia le Ju r t em e Sup Law Office of Josh Jacobson rd p p he n d iv O men Writhtio overa 40 years experiencei S PJTme has beenIn Minnesotae y ’s R ede [email protected] h orsh Re n g f nit T rs at Ce Gu ri nsh vi d if Rec rs pe a ttac t suretyip bondingra specialist.ia le WJuith the knowledge,r t experiencee Su A rd p p he n ndem iv ede men rtio a Re hi S me I e it y TR rs INDIAN LAW h orsh Gu i in dg ff n s e vat Ce p ar ns ev ri t Rec er ttac t i or ia pl Ju he n dem iv Sup A • Supetirsedeasrd • Appeals •p CertSiorari • ReplInevin •e y JUDICIAL LAW hmen orsh r Re shi n gme f it n Tribal police officer has authority to at Ce• Injun Guctionr •i Restraininvgi Orderd • JuidfgmentRec • n rs rv t ip a ian le Ju r t em e temporarily detain and search non-IndiAttac- e • License Bondsor rd• Trust • Peprsonal Rheepresentative • iv ns men rti a Rep hi S men Ind e y an individuals traveling on public right- h orsh Gu i s in g ff nit of-way on Indian reservation for posCo- • Catonse rCevator • Proferssional Liabiliv ty • EdRISAi • Fid eReclity • ttac rv t ip a ian le Ju r nt em v sible violations of state or federal lawA. e ti or ard ip She ei y ns men orsh r Rep n gme f Ind it An officer working for the Crow Tribal Co hLocallyat ownedCe and operated. Gu rSamei daynsh servicevi with ind housei fauthority!Rec n Police Department approached a vehicle rv t p ra ia le Ju r t em s Attac e hi rd p he n parked on a public right-of-way within men rs rtio ua Rep hi S me Ind tee a the boundaries of the Crow Reservation, ons h 121 South Eighth StreetG Suitei 980, Minneapolis,in MN 55402g ff C vato Ce p ar ns ev d ri Trus ede and saw an individual who appeared ttac er t i r dia l Ju e ers A (612) 339-5522tio • Fax:r (612) 349-3657p Sh RO to be non-Indian with indicia of drug ns hmen rsh r ua Rep hi n T Sup use and firearms in the vehicle. Fearing Co atoemail@pjtagencCe yG.com • r wwi w.pjtagencns y.comvi s y rv t p a le er it violence, the tribal officer conducted a Attac e hi or rdia iv n ns men rs rti ua Rep e Co h G i dem www.mnbar.org ato Ce a Septemberr Rec 2021 s InBench&Bar of Minnesota 31 ttac or A rti Ce Notes&Trends | INDIAN LAW | INTELLECTUAL PROPERTY

pat-down search and called for additional vested property rights or interest in pay- officers before seizing the contraband. ments are created by the plan controls. The Supreme Court held that the tribal In re Musel, No. 20-42761, 2021 WL officer’s temporary detention and search 2843847 (Bkr. Ct. D. Minn. 7/7/2021). of the non-Indian was allowable under the Crow Tribe’s inherent sovereign au- n 6th Amendment fair representation thority over the conduct of non-Indians claim fails where defendant did not on the reservation where that conduct establish underrepresentation of Native threatens the health or welfare of the Americans in jury pool. Following his tribe. In doing so, it rejected the 9th convictions for several firearms and drug Circuit’s restrictive standards that a tribal distribution offenses, Native American officer be required to attempt to ascertain defendant who was tried in the Central the Indian status of the stopped individ- Division of South Dakota moved for a ual, and if non-Indian, only be allowed new trial due to the absence of Native James C. Erickson, Sr. to temporarily detain the individual if Americans on his jury panel. The 8th the violation of state or federal law was Circuit Court of Appeals held that the “apparent.” United States v. Cooley, 141 use of voter registration rolls to compile 30+ YEARS OF EXPERTISE S.Ct. 1638 (2021). the master jury pool withstands consti- tutional scrutiny, absent a showing of Fire & Property Damage n Tribal activities and lands exemption systematic exclusion of Native Ameri- Policy Appraisals in Gov. Walz’s emergency executive cans from the jury selection process, and Personal Injury/Death order restricting on-premises consump- that the 6th Amendment’s fair cross- Mediations/Arbitrations tion of food and beverages not an equal section requirement applies only to the Minnesota/Wisconsin protection violation. The Minnesota composition of the jury pool, not the Commissioner of Health filed a civil jury ultimately chosen. United States v. Erickson, Bell, Beckman & Quinn complaint, motion for temporary re- Erickson, 999 F.3d 622 (8th Cir. 2021). 1700 Highway 36 West, Suite 110 straining order, and temporary injunction Roseville, MN 55113 against Havens Garden restaurant for LEAH K. JURSS 651-223-4999 | [email protected] violation of Emergency Executive Order Hogen Adams PLLC www.ebbqlaw.com No. 20-99, which restricted on-premises [email protected] consumption of food and drink from 11/20/2020 – 12/18/2020. In response, the restaurant argued that the executive INTELLECTUAL PROPERTY order’s exemption for tribal restaurants TRADEMARK violated the equal protection clauses JUDICIAL LAW Copyright & Patent Searches of the Minnesota and United States n Copyright: No presumption of validity Constitutions. The Minnesota Court of when registered more than five years “Experienced Washington office Appeals rejected this argument, finding after first publication. Judge Magnuson for attorneys worldwide” that rational-basis security applied to this recently denied plaintiff MPAY Inc.’s question of classification based on tribal motion for summary judgment of copy- FEDERAL SERVICES & RESEARCH: membership in state laws that promote right infringement. MPAY sued defen- Attorney directed projects at all Federal agencies the congressional policy of tribal self- dants Erie Custom Computer Applica- in Washington, DC, including: USDA, TTB, EPA, Customs, FDA, INS, |FCC, ICC, SEC, USPTO, governance; and, the executive order tions, Inc., Payroll World, Inc., PayDay and many others. Face-to-face meetings with Gov’t met this standard by furthering the abil- USA, Inc., Proliant, Inc., Proliant officials, Freedom of Information Act requests, ity of sovereign tribal authorities to self- Technologies, Inc., and Kevin Clayton copyright deposits, document legalization @ State Dept. & Embassies, complete trademark, copyright, govern their members on public health over disputes involving software code patent and TTAB files. issues. Minnesota v. Sw. Sch. of Dance, for payroll systems. MPAY asserted that LLC., No. A20-1612, 2021 WL 2794654 defendants’ providing of source code and COMPREHENSIVE: U.S. Federal, (Minn. Ct. App. 7/6/2021). allegedly improper sublicensing breached State, Common Law and Design searches, INTERNATIONAL SEARCHING the parties’ contracts and constituted EXPERTS: Our professionals average n Tribal member per capita payments copyright infringement. To prove a claim over 25 years experience each received from Indian tribe not subject of copyright infringement, a plaintiff FAST: Normal 2-day turnaround to turnover in Chapter 7 bankruptcy. must prove ownership of a valid copy- with 24-hour and 4-hour service available Following her Chapter 7 bankruptcy right. Despite owning the source code filing, debtor and enrolled member at issue for more than 20 years, MPAY of the Pokagon Band of Potawatomi did not register any copyrights in the Indians continued to receive an appor- code until weeks or days before filing tioned monthly payment of the band’s the lawsuit. The Copyright Act creates 200 N. Glebe Rd., Suite 321, Arlington, VA 22203 net gaming revenues on a per capita a presumption of validity where works Ph: 703-524-8200, Fax: 703-525-8451 basis. The bankruptcy court rejected are registered within five years of first Minutes from USPTO & Washington, DC the trustee’s motion to turn over those publication. 17 U.S.C. §401(c). Because TOLL FREE:1-800-642-6564 payments as property of the estate, MPAY did not register the source code holding that because the band’s revenue within five years of first publication, no www.GovernmentLiaison.com [email protected] allocation plan complied with all federal presumption of validity attached. The law requirements, its language that no court further found that at the summary

32 Bench&Bar of Minnesota s September 2021 www.mnbar.org | INTELLECTUAL PROPERTY | REAL PROPERTY judgment stage, MPAY had not estab- exists. The court then found irreparable it concluded that the second interpreta- lished the validity of its copyrights. The harm, that the balance of factors favored tion was more reasonable: The subdivi- court concluded that merely establishing Powerlift, and that the public was not sion applies only to those types of civil that the parties acted as if the copyrights disserved by injunctive relief. Thus, the actions seeking to enforce or challenge were valid is insufficient to establish the court enjoined defendants from using watershed district actions. Applying that validity of copyrights. MPAY Inc. v. Erie Powerlift’s registered trademarks. Pow- interpretation and reviewing the plead- Custom Comput. Applications, Inc., No. erlift Door Consultants, Inc. v. Shepard, ings, motions, and district court orders 19-704 (PAM/BRT), 2021 U.S. Dist. No. 21-cv-1316, 2021 U.S. Dist. LEXIS throughout the case’s 15-year history, the Lexis 116634 (D. Minn. 6/22/2021). 129189 (D. Minn. 7/12/2021). Court concluded that the plaintiffs did not seek to enforce the watershed rule n Trademark: Likelihood of confusion JOE DUBIS at issue; instead, they sought only to en- when licensee continues use of trade- Merchant & Gould force the relevant county ordinances. A mark after termination of license. Judge [email protected] “stray” assertion of a watershed district Wright recently granted Powerlift Door violation is not sufficient to fall within Consultants, Inc.’s motion for prelimi- the scope of Minn. Stat. §103D.545, nary injunction against defendants Lynn REAL PROPERTY subd. 3. The Court, however, declined to Shepard, Rearden Steel Manufactur- establish a bright line rule as to whether ing LLC, Rearden Steel Inc., and ABC JUDICIAL LAW a private party may recover fees under Corporation. Powerlift sued defendants n Attorney fee recovery in watershed this statute. The other issue before alleging breach of contract and trade- district actions and appealing on sepa- the Court was whether the plaintiffs mark infringement related to the parties’ rate and distinct issues after accepting were barred from appealing from the distribution agreement for Powerlift’s hy- a remittitur. One issue before the Min- final judgment after accepting a remit- draulic lift doors. Powerlift moved for a nesota Supreme Court in a case span- titur of a jury’s future damages award temporary restraining order, preliminary ning over 15 years was the interpretation in lieu of a new trial. The Minnesota injunctive relief, and expedited discovery of Minn. Stat. §103D.545, subd. 3, a Supreme Court adopted the “separate seeking to enjoin defendants from using provision governing watershed districts. and distinct rule” permitting a party who Powerlift’s trademarks and confidential The subdivision read: “In any civil action accepts a remittitur to appeal from the information. To establish a claim for arising from or related to a rule, order, or final judgment on issues unrelated to federal trademark infringement, Power- stipulation agreement made or a permit the remittitur. The Court did not define lift is required to show (1) it has a valid, issued or denied by the managers under the scope of this rule, but clarified that protectable trademark and (2) the un- this chapter, the court may award the legal determinations made by the district authorized use of that trademark creates prevailing party reasonable attorney court that were never presented to or a likelihood of confusion. Powerlift estab- fees and costs.” The Court determined considered by the jury are issues separate lished a five-year period of continuous that the statute was susceptible to two and distinct from a remittitur, including use of its registered trademarks rendering reasonable interpretations: (1) fees awards of statutory interest and attorney the marks incontestable and establishing are authorized in any civil action with fees. Roach v. County of Becker, No. a likelihood that Powerlift would prove any connection, association, or logical A19-2083, ___ N.W.2d. ___, 2021 WL valid and protectable trademarks. The relationship to a watershed rule; and (2) 3073286 (Minn. 7/21/2021). court found that continued trademark fees are authorized only in those types of use by one whose trademark license civil enforcement actions outlined in the n Conditional use permit for solar has been cancelled satisfies the likeli- other subdivisions of Section 103D.545: installation on agricultural land wrong- hood of confusion test and constitutes criminal prosecution, injunction, action fully denied by county. The McLeod trademark infringement. As defendants to compel performance, restoration, County Board acted arbitrarily and did not contest Powerlift’s assertions of abatement, or other appropriate action. capriciously when it denied a conditional continued use of Powerlift’s trademarks After reviewing the legislative history, use permit to build solar panels on leased after termination of the distribution consequences of each interpretation, agricultural property in the county. The agreement, a likelihood of confusion and interpreting the statute as a whole, board rejected the permit for two rea-

www.mnbar.org September 2021 s Bench&Bar of Minnesota 33 Notes&Trends | REAL PROPERTY | TAX LAW sons: (1) “concern for the preservation TAX LAW because the court limited the award to and protection of land values,” and (2) costs associated with the tax dispute, and the “property is considered prime agricul- JUDICIAL LAW not the bankruptcy proceeding. Morreale tural soil.” In support of the underlying n Holistic inquiry required to decide if v. Comm’r, T.C.M. (RIA) 2021-090 (T.C. application, the relators submitted two commissioner’s position was substan- 2021). reports—one from Chisago County and tially justified for purpose of awarding another from an expert appraiser—in- costs to prevailing party. Mr. Morreale n Joint challenge permissible in dicating that such an installation would operated hotels and restaurants in the “passport case.” Taxpayers with seriously not impact neighboring property values. Denver area. He was in a tax dispute delinquent tax debt are at risk of having Additionally, McLeod County’s director with the Service, and simultaneously their passports revoked (or not issued). of environmental services testified that was involved in bankruptcy proceedings. Section 7345 gives the commissioner the no public data suggested that install- One of the issues in the tax dispute was authority to certify to the Secretary of ing a solar array decreases neighboring whether Mr. Morreale’s pass-through State that an individual has a “seriously property values. The only evidence in entity was a cash or accrual method tax- delinquent tax debt,” which then prompts the record supporting the conclusion payer. Ultimately, Mr. Morreale prevailed the Secretary of State to revoke the that property values could be diminished on the cash versus accrual question and delinquent’s passport. That same section was neighbor statements opposed to the the commissioner conceded that Mor- also gives taxpayers a right to petition solar installation, but those statements reale was the prevailing party. Prevailing the tax court if the taxpayer believes the were not buttressed by expert opinion or parties are entitled to costs in certain certification was erroneous and/or when other “concrete information.” On this situations. IRC §7430. However, costs the commissioner has failed to reverse the record, the Minnesota Court of Appeals are not awarded if the commissioner’s certification. held that the record did not support the position was “substantially justified.” See In this case, the married taxpayers first reason for the county board’s denial. Section 7430. owed more than half a million dollars Moreover, after reviewing the county’s A recent 10th Circuit opinion in unpaid tax liability. The taxpayers zoning ordinance, the court of appeals changed how the court approached the challenged the IRS’s certifications in a concluded that the second rationale substantial justification question. The joint petition in which they claimed that for denying the permit application was tax court has in the past applied an the IRS failed to consider an offer-in- not a valid rationale under the county’s item-by-item analysis, whereby “[t]he compromise (OIC) they had previously zoning ordinances. The court further justification for each of U.S.’s positions submitted. Acknowledging the outstand- concluded that the second rationale was must be independently determined.” ing OIC, the IRS subsequently reversed not supported by the record either, as the However, the 10th Circuit called this the taxpayers’ certification and notified owner of the land to be leased testified item-by-item analysis “erroneous” and the State Department that the taxpayers that the parcel of property was off the instead held that the proper inquiry is were certified in error. main tillable area, near a gas regulator a singular, holistic inquiry to determine The court first took up the issue of that created problems for farming, and the government’s position rather than whether a joint challenge is permissible was not prime farming land. The court multiple itemized contentions. United when taxpayers receive individual notices of appeals reversed and remanded with States v. Johnson, 920 F.3d 639 (10th Cir. under Section 7345. Noting that this instructions to approve the conditional 2019). The tax court discussed how it was a threshold question and one of first use permit. Matter of United States would apply the holistic Johnson stan- impression, the court reasoned by analogy Solar Corp., No. A20-1043, 2021 WL dard. Construing the Johnson standard to to other instances in which joint filing is 2909044 (Minn. Ct. App. 7/12/2021). permit an inquiry into whether the gov- permitted and held it to be likewise appro- ernment acted reasonably in causing the priate here. In addition to the analogous ZACK ARMSTRONG litigation, the court found that the IRS’s reasoning, the court noted that a contrary DeWitt LLP position was not substantially justified. decision would waste judicial resources [email protected] Despite clearing both of these and could create hardship for taxpayers. hurdles, Morreale recovered only a small Although the joint petition was permis- fraction of the amount he requested, sible, no relief was appropriate because the case was moot since the IRS reversed its certification and informed the State Department. (Mr. Garcia died before the GBR INTERPRETING tax court heard the case. It was not Mr. Garcia’s death, but the IRS’s reversal, that & Translation Services rendered the case moot as to Mr. Garcia.) The tax court rejected the invitation to reach the merits of the Garcia’s offer-in- If it sounds like GiBeRrish – get help from GBR! compromise because the court “lack[s] authority in a passport case such as this to WE OFFER INTERPRETING AND TRANSLATION SERVICES IN OVER 150 LANGUAGES afford the relief petitioners seek.” Gar- Client Meetings | Depositions | Arbitrations cia v. Comm’r, No. 7612-20P, 2021 WL 3029555 (T.C. 7/19/2021). Mediations | Social Services | Immigration Interviews n Small clientele, big tax problems. A family-owned Oklahoma childcare 763-241-0002 | [email protected] | www.gbrinterpreting.com center with several centers ran afoul of numerous tax provisions over a number of

34 Bench&Bar of Minnesota s September 2021 www.mnbar.org | TAX LAW years. In separate opinions, the tax court a theft loss is not permitted if there is a court’s scheduling order. The county addressed the various transgressions. reasonable prospect of recovery, the tax maintained that Cavett’s testimony In the first opinion, Blossom Day Care court held that the taxpayers were not would serve as rebuttal testimony, which Centers, Inc. v. Comm’r, T.C.M. (RIA) entitled to the claimed theft loss deduc- was not subject to the deadlines of the 2021-086 (T.C. 2021), the court agreed tion. The court also upheld the section scheduling order. The county further with the commissioner’s determination 6662(a) accuracy-related penalty. Vennes stated that Cavett’s testimony should that the daycare center had misclassified v. Comm’r, T.C.M. (RIA) 2021-093 not be excluded under the standard set its corporate officers and agreed with the (T.C. 2021). in Dennie v. Metropolitan Medical Center, commissioner’s determination that the 387 N.W.2d 401 (Minn. 1986). Allina center was liable for employment taxes, n “Traditional rules” of summary judg- rebuts that allowing late-noticed expert penalties under section 6656 for failure ment not appropriate in CDP nonliability testimony would be highly prejudicial to deposit tax, and accuracy-related cases. The tax court held that in a and that the “exclusion is warranted penalties under section 6662(a) for neg- collection due process nonliability case, under pertinent Dennie factors.” ligence. In a second, and more extensive the court’s decision turns on whether the The court began its analysis by opinion, Blossom Day Care Centers, administrative record shows an abuse of determining that Cavett’s anticipated Inc. v. Comm’r, T.C.M. (RIA) 2021- discretion. As such, the traditional rules testimony was characterized as part of 087 (T.C. 2021), the court addressed 14 of summary judgment are not appropri- the county’s case-in-chief. As such, it is issues, including failure to report various ate. “Instead, summary judgment serves not rebuttal evidence, and was subject items of income, mischaracterization, im- as a mechanism for deciding, as a matter to the deadlines outlined in the schedul- proper deductions for personal expenses, of law, whether Appeals’ determina- ing order. The court further analyzed and others. The opinion provides a tion is supported by the administrative whether the evidence should be ex- roadmap of what can go wrong when record and is not arbitrary, capricious, cluded and noted that “expert testimony the taxpayer is, as the court character- or without sound basis in fact or law.” should be suppressed for failure to make ized, “sloppy.” Despite the errors, the Belair v. Comm’r, No. 22133-19L, 2021 a timely disclosure” of the expert’s iden- court did not allow penalties for fraud, WL 3284908 (T.C. 8/2/2021). tity only where “counsel’s dereliction is concluding that “respondent has not inexcusable and results in disadvantage met the burden to show that petitioner n County attempts to mask case-in- to the opponent.” Id., at 405. The tax had the fraudulent intent necessary for chief evidence as rebuttal testimony. court noted that the Minnesota Supreme the imposition of penalties under section This matter involves Allina Health Sys- Court previously stated that some factors 6663(a).” Accuracy-related penalties, tem’s property tax petition as of January of the Dennie standard are context- however, were sustained. 2017 on the basis that Allina is a public specific and may warrant tailoring its use hospital and purely public charity. The to the matter presented. See Macy’s Retail n No theft-loss deduction for impris- tax court previously denied a consoli- Holdings, Inc. v. Cnty of Hennepin, 899 oned Petters Ponzi scheme promoter. dation and deadline extension motion N.W.2d 451, 459 (Minn. 2017). Tom Petters masterminded a large and from Washington County, stating that After further examination of the Den- complex Ponzi scheme. In 2009, Petters the county lacked good cause to extend nie factors, the tax court concluded that was convicted in federal court in St. the deadlines. See Allina Health Sys. v. the county sought to introduce expert Paul and sentenced to 50 years in prison. Cnty of Washington, No. 82-CV-19-905, evidence after failing to secure an exten- Frank Vennes Jr. “had a close relation- 2021 WL 1288267, at *2 (Minn. T.C. sion on the pretrial deadlines. Allowing ship with Petters that spanned decades.” 4/2/2021). Nearly two months after the the testimony of Cavett would either Mr. Vennes is currently incarcerated court’s denial and long past any pretrial severely prejudice Allina or would war- after he pled guilty to “aiding and abet- deadlines, the county filed an amended rant a continuance, causing a significant ting misrepresentations and omissions witness list noting that it planned to break in trial. As such, the court denied to investors regarding [Petters Co., Inc.] call Gary Cavett as an expert witness. the inclusion of Cavett’s expert testi- note transactions.” Mr. Vennes and his Allina filed a motion to exclude Cavett’s mony. Allina Health Sys. v. Washington spouse claimed a theft loss deduction of testimony, arguing that the notice was Co., 2021 WL 3040976 (Minn T.C. approximately $57 million on their 2008 far beyond the deadline set forth in the 7/13/2021). tax returns. The claimed losses were associated with investments involved in the Petters crimes. The tax court denied the losses. Although Section 165 permits deductions for theft losses, such losses Maximize Your 1031 Exchange must be substantiated, and there must be no reasonable prospect of recovery of the loss. Here, the tax court determined that • Real Property the taxpayers failed to establish the fair market value of their investments in the • Reverse Exchanges scheme during the time in question. The court also concluded that the taxpayers • Construction Build-to-Suit “could not have known in 2008 whether [Petters Co., Inc.] had sufficient assets to allow them to recover their invest- Call Jeff Peterson ments” since the prospect of recovery for 612.643.1031 cpec1031.com investors in the Petters scheme was un- knowable at the close of 2008. Because www.mnbar.org September 2021 s Bench&Bar of Minnesota 35 n Highest and best use analysis not MORGAN HOLCOMB necessary under Rule 8100. Minne- Mitchell Hamline School of Law gasco is petitioning the market value of [email protected] its natural gas distribution pipeline as SHEENA DENNY of 1/2/2018 and 1/2/2019. The parties Mitchell Hamline School of Law exchanged expert appraisal reports and [email protected] were given the opportunity to object to the other’s report. Minnegasco filed a motion to exclude the appraisal report of TORTS & INSURANCE Dr. J.B. Heaton, arguing that the report contains no analysis and determination JUDICIAL LAW of the pipeline’s highest and best use, n Exculpatory clauses signed by parents and is therefore unreliable and inadmis- enforceable. Plaintiff attended a birthday sible. The commissioner argues that party when he was seven years old at a busi- Minn. R. 8100 does not require a highest ness that provided inflatable equipment on and best use determination. which children were allowed to play. Before Minnesota Rules of Evidence applies entering the party, plaintiff’s mother signed a to the tax court. Rule 702 provides that form agreement that included an exculpatory specialized knowledge in the form of an clause that released the business “from and opinion must have foundational reli- against any and all claims, injuries, liabilities ability and the proponent must establish or damages arising out of or related to our that the “evidence is generally accepted participation in... the use of the play area in the relevant scientific community.” and/or inflatable equipment.” During the Minn. R. 8100 governs pipeline valua- party, plaintiff fell off an inflatable obstacle tion in Minnesota and indeed does not course and hit his head on the floor, which require an analysis of the highest and caused a head injury. When plaintiff was 18 best use determination of a pipeline. years old, he sued the business that hosted However, 8100’s silence does not conflict the birthday party alleging it had “negli- with any statute because “no such gently failed to cover the landing surface of statute mandates a highest and best use the fall zone surrounding the inflatable.” The determination.” The tax court is both district court granted the defendant’s motion bound by Rule 8100 and has discretion for summary judgment on the ground that on how to apply the rule in numerous the exculpatory clause signed by plaintiff’s respects. mother is valid and enforceable. In its analysis, the court states that The Minnesota Court of Appeals af- Minnegasco’s emphasis on the impor- firmed. On appeal, plaintiff argued that his tance of a highest and best use analy- parent lacked the authority to execute the sis all pertain to the valuation of real exculpatory clause on his behalf. The court property. Here, the assets being valued rejected this argument, holding that “in the November 18, 2021 are tangible personal property. The Min- absence of any law that either forbids parents nesota Supreme Court recently rejected from entering into contracts on behalf of “an argument that pipeline valuation their minor children or limits their ability to WE NEED YOUR SUPPORT must parallel real property” in Minn. do so, it is clear that a parent generally has Please consider a tax-deductible donation Energy Res. Corp. v. Comm’r of Revenue authority, on behalf of a minor child, to en- to the Amicus Society, on behalf of the (MERC I), 886 N.W.2d 786, 801 (Minn. ter into an agreement that includes an excul- High School Mock Trial program. 2016). In MERC I, the Minnesota patory clause.” The court also rejected the Supreme Court stated that the “Com- argument that Minn. Stat. §184B.20, which missioner’s [of Revenue] administrative provides that exculpatory clauses entered To learn more, visit: regulations reflect the differences be- into on behalf of a minor for injuries arising www.mnbar.org/mocktrial tween valuing tangible personal property from the use of inflatable devices, applied of utilities and other types of property.” because that statute was enacted in 2010, The tax court stated here that Min- three years after the exculpatory clause at negasco has not demonstrated that the issue was signed. Finally, the court rejected highest and best use analysis is critical plaintiff’s argument that the exculpatory to the pipeline valuation, only that its clause was overly broad, and, therefore, absence renders the entire report unreli- unenforceable. While the court agreed it was able and inadmissible. The court did not overly broad as it was not limited to claims find reason that justifies excluding the for ordinary negligence, it was enforceable entire report, and therefore, denied Min- in this case because the claims at issue only The Mock Trial Program is an exciting law-related negasco’s motion in limine to exclude the involved ordinary negligence. Justice v. education program that introduces students to the report of Dr. Heaton. CenterPoint En- Marvel, LLC, A20-1318 (Minn. Ct. App. American legal system through direct participation ergy Resources Corp., dba CenterPoint 7/19/2021). https://mn.gov/law-library-stat/ar- in a simulated courtroom trials. The program Energy Minnesota Gas, aka CenterPoint chive/ctappub/2021/OPa201318-071921.pdf brings together attorneys, judges, students, and teachers from across the state. Energy Minnegasco, Appellant, v. Comm’r of Revenue, Appellee, 2021 WL JEFF MULDER 3477527 (MN Tax Court 8/4/21). Bassford Remele [email protected] 36 Bench&Bar of Minnesota s September 2021 People&Practice | MEMBER ANNOUNCEMENTS

Gov. Walz HKM law firm announced appointed its name change to In Memoriam Rachel HAWS-KM. With a firm- Hughey wide focus on evolution, and the culture of continuous William Alexander “Bill” Colette improvement is exempli- Bierman Jr., age 70 of HUGHEY ROUTEL Routel as BRANDT fied in its new firm name, Eagan, died July 16, 2021. district new office design, and After law school Bierman court judges in Minnesota’s 4th Judicial new energy. The firm also announced worked as minority counsel District. These seats will be chambered the addition of senior attorney Christian for the Minnesota Legislature, in Minneapolis in Hennepin County. Brandt, who will lead the firm’s business eventually going into private Hughey is a partner and shareholder at practice. practice with a colleague. He Merchant & Gould, where she litigates worked for most of his career commercial disputes. Routel is a profes- Joseph at the Minnesota Department sor of law and co-director of the Native P. Bot- of Labor and Industry, Office American Law & Sovereignty Institute trell and of General Counsel, retiring in at Mitchell Hamline School of Law. Veronica 2016. B. Salsbury Gov. Walz appointed have joined Hon. M. Michael Baxter passed Andrew Gordon as BOTTRELL SALSBURY Fredrikson away April 18, 2020. He worked district court judge in & Byron. as an associate at the law firm of Minnesota’s 2nd Judicial Bottrell joins as an associate in the merg- Robin, Kaplan, Miller & Ciresi District. Gordon will be ers & acquisitions group. Salsbury joins for several years, prior to moving replacing Hon. Lezlie as an officer in the mergers & acquisi- into solo private practice and GORDON O. Marek and will be tions and private equity groups. eventually working as a partner chambered in St. Paul in at the firm of Baxter & Engen. In Ramsey County. Gordon is the deputy Roxanne N. Thorelli is the fall of 2008, he was selected director of community legal services at being awarded the Vol- to serve as a Minnesota district the Legal Rights Center. unteer of the Year Award court judge, serving in both La by Volunteer Lawyers Sueur and Hastings. Judge Baxter Howard Tarkow was Network at its Riverfront retired, as required by Minnesota elected to the board of Celebration event on Sep- law, in the month of his 70th directors of MAZON: tember 9, 2021. Thorelli is THORELLI birthday, December 2018. A Jewish Response to an attorney in Fredrikson Hunger. Tarkow is an & Byron’s mergers & acquisitions group. Dawn Christine Van Tassel, of counsel attorney at age 46 of St. Louis Park, died

TARKOW Maslon LLP, focusing unexpectedly on April 7, 2021. his law practice on rep- Aafedt, Forde, Gray, She received her JD from the resenting employers on their workplace Monson & Hager, PA University of California, Berkeley issues and concerns. announced that Brad in 1999. After a long career as Delger has been elected to a business litigator, she formed Maslon LLP announced the firm’s board of direc- her own law practice in 2014. that partner Katie tors. Delger represents She also served as an adjunct Maechler has been employers and insurers in DELGER professor at the William Mitchell appointed to serve as workers’ compensation litigation. College of Law. co-chair of the law firm’s litigation practice group. Samantha Zuehlke has Jane Ellen Else Smith passed Maechler specializes in joined Meagher + Geer as away on May 1, 2021. She put MAECHLER product liability litigation. an associate in the firm’s herself through law school at commercial litigation, William Mitchell College of Masha M. Yevzelman has construction, insurance Law after 22 years of marriage. been awarded the Friend coverage, and products After graduating from law school of the Profession Award liability practice groups. ZUEHLKE she worked at West Publishing by the board of directors Group, where she was able to tie of the Minnesota Society together her fluency in Span- of CPAs. Yevzelman We gladly accept press releases and ish with her passion for law and YEVZELMAN was recognized at the announcements regarding current members cross-cultural work by leading MNCPA annual meeting of the MSBA for publication, without charge. the teams that helped publish the on August 11. Yevzelman is a tax attor- Email: [email protected] law for Puerto Rico and Mexico. ney at Fredrikson & Byron. www.mnbar.org September 2021 s Bench&Bar of Minnesota 37 OpportunityMarket

Classified Ads For more information about placing classified ads visit: www.mnbar.org/classifieds

ATTORNEY WANTED portunity to take on substantial responsibility to Office Manager, McGrann Shea Carnival and ownership over individual client matters, Straughn & Lamb, Chartered, 800 Nicollet COUSINEAU, WALDHAUSER & Kiesel- while also working with a team on complex Mall, Suite 2600, Minneapolis, MN 55402 bach is a Tier I, AV-rated workers’ compen- issues. We seek an attorney who shares the or [email protected]. sation and insurance defense firm located firm’s values of honesty, candor, the pursuit sssss in Mendota Heights, Minnesota. We are of excellence, fairness, communication, seeking bright, hard-working, and team-ori- teamwork and innovation. Join Gislason & MEDICAL MALPRACTICE Lateral As- ented candidates for an associate attorney Hunter’s collaborative, hard-working and fun sociate Attorney / Junior Partner. Arthur, position. Legal experience is preferred but team of attorneys. Gislason & Hunter LLP Chapman, Kettering, Smetak & Pikala, PA not required. Judicial clerkship experience is an equal opportunity employer. We offer is a mid-sized defense law firm located is also preferred. Knowledge of the medi- a competitive compensation package and in downtown Minneapolis. This is an op- cal and insurance industries will be help- comprehensive benefits. For consideration, portunity for a hard-working attorney to ful as well.We will consider recent gradu- please send cover letter and resume and law complement a growing medical malprac- ates, and law clerk experience in workers’ school transcript to: [email protected], tice team and integrate into a solid book compensation, personal injury, or a similar www.gislason.com. of existing medical malpractice business. practice area would be a plus. Our associ- sssss This is a great opportunity to ultimately as- ate attorneys have the opportunity for im- sume a book of business. We seek a high- mediate litigation experience, representing PUBLIC FINANCE Attorney. AV-rated mid- ly motivated lateral associate or junior level clients at depositions, administrative hear- sized Minneapolis law firm is seeking a partner with at least three years of medical ings, and Department of Labor and Indus- highly motivated partner-level attorney to malpractice, products liability, and/or pro- try proceedings, quickly in the onboarding practice in the area of public finance and fessional liability law related experience to process. We have a strong team environ- municipal bonds. Ideal candidates will pos- join our growing litigation practice group. ment and a director of professional devel- sess excellent critical thinking, analytical and Preferred experience includes deposition opment who mentors attorneys through- writing skills and sophisticated transactional and trial experience. Candidates should out their careers. All are welcome to apply. experience, with some portable business. A have excellent writing skills and possess Please send a resume and cover letter to: background in public finance and municipal a strong attention to detail. A strong work [email protected]. bond law, including relevant federal tax, se- ethic and the ability to thrive in a team- sssss curities, nonprofit and municipal law, would oriented atmosphere are essential. We are be highly desirable but not required. The motivated to attract and recruit talented FOR MORE THAN 80 years, Gislason & successful candidate will work with the and diverse attorneys. Salary is commen- Hunter’s mission has been to deliver the head of our public finance and municipal surate with experience. If you are interest- very best in service and results. We enjoy a bond practice to transition that practice, ed in joining our team, please send your reputation as one of the premier civil litiga- while augmenting the firm’s other transac- resume, cover letter, writing sample(s), tion and corporate transaction firms in the tional work. The firm was established over and salary expectation in confidence to: upper Midwest, with offices in New Ulm 30 years ago and provides a full range of Arthur, Chapman, Kettering, Smetak & Pi- and Mankato. Gislason & Hunter LLP seeks legal services, with the personal attention kala PA, Human Resources recruiting@ar- an associate attorney with two to five years and adaptability that are the hallmarks of thurchapman.com. www.arthurchapman. of experience to join its civil litigation prac- smaller firms. In our public finance and mu- com, Equal Opportunity Employer tice. Qualified candidates should have a nicipal bond work we represent state and sssss JD from an ABA accredited law school and municipal governments and special authori- strong legal research and writing skills. Can- ties, underwriters, banks and nonprofits ASSOCIATE ATTORNEY – Construction didates must be licensed to practice law in in complex financing transactions, as well Litigation. Arthur, Chapman, Kettering, Minnesota (or be immediately eligible for as more traditional redevelopment and in- Smetak & Pikala, PA is a mid-sized law admission to the Minnesota bar based on frastructure projects. The work is challeng- firm located in downtown Minneapolis. We the candidate’s MBE or UBE score from ing, and impactful in local communities, the seek a highly motivated associate attorney another jurisdiction) and be in good stand- Twin Cities region and the state. We offer a with at least one plus years of construction ing with the bar in each state in which the collegial atmosphere, competitive compen- law related experience to join our growing candidate is licensed to practice law. Ex- sation and an excellent benefits program. construction practice group. Preferred ex- perience with banking, bankruptcy, or se- Compensation is negotiable based upon perience in lien law, bond disputes, proper- cured transactions are a plus. This position qualifications, experience and portable busi- ty development, and contract review. Can- provides a motivated attorney with the op- ness. Please send resume and cover letter didates should have excellent writing skills

38 Bench&Bar of Minnesota s September 2021 www.mnbar.org OpportunityMarket | ATTORNEY WANTED

and possess a strong attention to detail. A tiative, writing ability, and trial experience. 1st or 2nd chair trial experience. Experi- strong work ethic and the ability to thrive in The Firm is looking for candidates who will ence taking and defending fact and expert a team-oriented atmosphere are necessary. continue to build their practice while acting depositions. Experience writing and argu- We are motivated to attract and recruit tal- in a support role for existing clients of the ing dispositive motions. The best candi- ented and diverse attorneys. Salary is com- firm. Portable business is welcomed and date will have a passion to become an ex- mensurate with experience. If you are inter- preferred. The Firm offers a collegial atmo- ceptional trial lawyer and have a thorough ested in joining our team, please send your sphere, competitive compensation, and an knowledge of the rules of civil procedure resume, cover letter, writing sample(s), and excellent benefits program. Compensation and evidence. Please send your cover let- salary expectation in confidence to: Arthur, and Shareholder status negotiable based ter and resume to: [email protected]. Chapman, Kettering, Smetak & Pikala PA upon qualifications, experience, and por- sssss Human Resources Manager: recruiting@ table business. Please send resume and arthurchapman.com, www.arthurchapman. cover letter to Office Manager, McGrann ASSOCIATE ATTORNEY Rajkowski Hans- com. Equal Opportunity Employer. Shea Carnival Straughn & Lamb, Chartered, meier Ltd., a regional litigation firm with sssss 800 Nicollet Mall, Ste 2600, Minneapolis, offices in St. Cloud, MN and Bismarck, MN 55402 or employment@mcgrannshea. ND, has an opening for an associate at- ATTORNEY POSITIONS and offices avail- com. Equal Employment/Affirmative Action torney with two to four years’ experience able to rent from established Golden Val- Employer. to join its team of trial attorneys. Our firm ley Minnesota law firm. Our firm was es- sssss has a regional practice that specializes in tablished in 1993 and has an opportunity the handling of civil lawsuits throughout for attorneys who want to build their own JARDINE, LOGAN & O’BRIEN PLLP is a the State of Minnesota, North Dakota and practice, as well as being part of an expe- midsize law firm in the east metro looking Wisconsin, including a significant volume rienced law firm. Practice areas currently for an Associate Attorney with three to five of work in the Twin Cities. We offer a col- include general business, real estate, em- years of experience in civil litigation and/ legial work place with experienced trial ployment, bankruptcy, general corporate, or workers’ compensation. Excellent com- attorneys who are recognized leaders in civil litigation, tax, transportation and other munication skills and writing skills required. their field of practice. We are seeking an general matters. This is a unique opportu- Insurance defense experience a plus. Our associate who has relevant experience, nity for one or more attorneys who may firm offers an extensive history of providing strong motivation and work ethic along be looking for office space and wish to ex- excellent legal services to our clients. This with excellent communication skills. Our pand their own practices. We have some is an exciting opportunity for a bright and lawyers obtain significant litigation experi- referral work available on a contract basis energetic attorney to work with an estab- ence including written discovery, motion and will consider attorneys with at least lished law firm. Salary commensurate with two or more years of experience. Located experience. Jardine, Logan & O’Brien PLLP in unique office space near intersection of is an Affirmative Action/Equal Employment Highway 100 and Highway 55. Large of- Employer. Please go to https://www.jlolaw. fices with great views of pond and nature com/careers/ to apply. area. If interested, please send resume sssss and inquiries to: [email protected]. sssss PROSECUTING ATTORNEY in Winona, Minnesota. Flaherty & Hood, PA is seeking BUSINESS LITIGATION Attorney. Antho- a prosecuting attorney to join its practice in ny Ostlund Baer & Louwagie PA is look- Winona, Minnesota. The position will pri- ing for an exceptional associate to join its marily prosecute criminal misdemeanors fast-paced business litigation practice in and gross misdemeanors for the City of Minneapolis, Minnesota. Applicants must Winona. Education or some experience in have one to six years law firm experience criminal procedure and prosecuting criminal in business litigation, excellent academic matters is preferred. Flaherty & Hood offers credentials, and superior writing and com- competitive salary and a full range of bene- munication skills. The position offers a fits. Please submit your resume by email to competitive compensation and benefits Chris Hood at: [email protected]. package. Visit the firm website at anthon- More information about the firm is available yostlund.com. Send resume and relevant at: www.flaherty-hood.com. writing sample in confidence to Janel sssss Dressen at: jdressen@anthonyostlund. com. An equal opportunity employer. HUNEGS, LENEAVE & KVAS, PA is seek- sssss ing a trial attorney. We specialize in repre- senting railroad employees asserting claims FAMILY LAW / CIVIL LITIGATION Law- under the Federal Employers Liability Act, yer. Minneapolis law firm (mid-sized & or FELA, for life-changing or even career- AV rated) seeking one or more lawyers to ending injuries. We like the courtroom and make a lateral move to assist with Fam- are looking for an attorney who wants to ily Law and Civil Litigation matters. The try cases and is energized by being in the ideal candidates will possess excellent courtroom. Qualified candidates will have: written and oral communication skills, ini- 5-10 years of litigation experience. Some

www.mnbar.org September 2021 s Bench&Bar of Minnesota 39 OpportunityMarket | ATTORNEY WANTED | FOR SALE | OFFICE SPACE | PROFESSIONAL SERVICES

practice, depositions coverage, trial and the job, and we are committed to promot- OFFICE SPACE FOR SALE. Office space appellate work. We try cases and are com- ing from within. We recognize your contribu- located in north metro for sale (3700 mitted to training our younger attorneys to tions with an exceptional rewards package square feet). Building contains one large provide them with the skills to develop a that includes competitive pay and bonus executive office, eight private offices, successful litigation practice. Competi- programs, incredibly affordable health insur- two conference rooms, and kitchen / tive salary and benefits. Please submit ance, generous pension and 401(k) benefits, lunchroom. Equipped with state-of-the- resume, transcript, and writing sample to: and gift matching and paid volunteer time to art security system, custom furniture and Human Resources Rajkowski Hansmeier support your involvement in the community. other amenities that may be included for Ltd. 11 Seventh Avenue North St. Cloud, Learn more about our Benefits. If California purchase. Questions or more information MN 56302 320-251-1055 humanresourc- Resident, please review Federated’s en- contact: [email protected]. [email protected] EOE hanced Privacy Policy. Apply at: www.Feder- sssss sssss atedinsurance.com/careers. WHITE BEAR LAKE Offices – All Inclusive. STAFF COUNSEL – Home Office Claims. Office space located at 4525 Allendale As a staff counsel in Home Office Claims, FOR SALE Drive. Rent ($700 – $950/month) includes you will provide legal advice, direction, and telephone system, internet, color copier, strategy on property and casualty claims, PRACTICE FOR SALE—The partners in a scanner, fax, conference room, reception- including lawsuits against policyholders general practice with an emphasis in fam- ist, kitchen, utilities and parking. Contact and against Federated Insurance. This role ily law and estate planning are retiring after Nichole at 651-426-9980 or nichole@espe- requires an individual with strong com- a combined 70 plus years of practice. Any- law.com. munication and relationship-building skills, one interested in stepping into the existing sssss serving as a consultant offering strategies operation and office space with equipment and recommendations in a fast-paced, and furnishings in a north suburban area is FLOUR EXCHANGE BUILDING office in customer-focused environment. Additional invited to call 763-780-8262. Serious inqui- Minneapolis for rent with six other law- job duties include: Provide direction and ries only please. yers. On skyway with phone, internet, support to outside counsel and Claims per- sssss copier, fax, reception area, conference sonnel, who are evaluating, litigating and room and kitchen. Good source of refer- resolving property and casualty claims and PRACTICE FOR SALE in Duluth. Enjoyable rals. Ideal for younger lawyer. Contact Rod lawsuits. Serve as a resource to all Feder- active solo practice specializing in the ar- Hale: [email protected]. ated Claims personnel on a wide variety of eas of small business, estate planning and claims-related issues. Manage responses real estate. Owner retiring. Nice office and to subpoenas and litigation discovery di- furnishings. All files scanned and stored on- PROFESSIONAL SERVICES rected to Federated. Evaluate new legisla- line. 218-348-1935. tion, case law and legal issues regarding sssss ATTORNEY COACH / CONSULTANT Roy Claims, and to use this knowledge to up- S. Ginsburg provides marketing, practice date and recommend procedural changes. PRACTICE FOR SALE: Active estate plan- management and strategic / succession Provide guidance, counsel, and training ning, real estate, and probate practice lo- planning services to individual lawyers for Claims personnel to develop and/or cated just north of downtown Saint Paul in and firms. www.royginsburg.com, roy@ maintain technical competence and skills Maplewood. Attorney with forty-year prac- royginsburg.com, 612-812-4500. regarding claims litigation. Provide legal tice retiring. Will assist with smooth transi- sssss review of and assist in preparing training tion. Existing office available for rent. Call materials, manuals, interpretations, bul- Ed at 651-631-0616. MEDIATION TRAINING: Qualify for the letins, policy forms and endorsements, Supreme Court Roster. Earn 30 or 40 and various other documents for Claims CLE’s. Highly-rated course. St. Paul 612- and other functions within the Company. OFFICE SPACE 824-8988, transformativemediation.com. Qualifications Required: Juris Doctorate. sssss Minimum of five years’ work experience MINNETONKA SUITES and Individual Of- demonstrating the ability to successfully fices for Rent. Professional office buildings PROFESSIONAL SERVICES Expert Wit- defend claims against policyholders and by Highways 7 & 101. Conference rooms ness Real Estate. Agent standards of care, insurance companies in coverage-relat- and secretarial support. Furnishings also fiduciary duties, disclosure, damages/lost ed litigation. Private practice experience available. Perfect for a law firm or a solo profit analysis, forensic case analysis, and strongly preferred. About Us: At Feder- practitioner. Office with 10 independent at- zoning/land-use issues. Analysis and distil- ated Insurance, we do life-changing work, torneys. Call: 952-474-4406. minnetonkaof- lation of complex real estate matters. Ex- focused on our clients’ success. For our fices.com. cellent credentials and experience. drtom- employees, we provide tremendous op- sssss [email protected] 612-207-7895. portunities for growth. Over 95% of them sssss believe our company has an outstanding OFFICE AVAILABLE: $650/month Western future. We make lives better, and we’re Midway in St. Paul, on light rail, equal dis- VALUESOLVE ADR Efficient. Effective. looking for employees who want to make a tance between courthouses. Furnished of- Affordable. Experienced mediators and difference in others’ lives, all while enhanc- fice, conference room. Copy service, fax, arbitrators working with you to fit the pro- ing their own. You will have opportunities telephone (including long distance), utilities, cedure to the problem - flat fee mediation to grow in your career. Our employees are storage space, on-site parking all provided. to full arbitration hearings. 612-877-6400 encouraged to ask questions and learn on Call: 651-645-0511. www.ValueSolveADR.org.

40 Bench&Bar of Minnesota s September 2021 www.mnbar.org BACK IN THE SWING OF THINGS

2021 + AND Game-Set-Match

Reserve Your Spot Early. GOLF REGISTRATION: $250 PER GOLFER Guarantee Your Place! Includes green fees, golf cart and lunch 11:00 AM: REGISTRATION & BOX LUNCH A Perfect Day to Spend with Colleagues 12:00 PM: SHOTGUN START and Clients. Join the Fun! Please note: This tournament is scramble format. Golf registration above $190 is a tax deductible contribution to HCBF. Monday, September 27 Oak Ridge Country Club PLAYERS CARD Includes All Add-ons: 700 Oak Ridge Road, Hopkins 2 Mulligans +$25 Players Card Closer shot at one hole Per Person Proceeds benefit the Hennepin Count y Bar Foundation—the One toss out of bunker charitable giving arm of the Hennepin County Bar Association. +$40 per team Since 196 8, HCBF has made a positive impact on the community Putting Contest Bernie Zimpfer Memorial by funding over $3 million in grants to nonprofit legal Cup Challenge organizations that support our mission “Promoting Access to Justice for the People of Hennepin County.”

BIKE OR TENNIS REGISTRATION: $75 PER PERSON Register at www.mnbar.org/hcbf-golf 1:30 PM: REGISTRATION & SNACK 2:30 PM: REGISTRATION & SNACK Call Sheila Johnson at 612-752-6615 regarding 2:00 PM: BIKE RIDE 3:00 PM: TENNIS MIXER sponsorship opportunities or to register/pay by phone.

5:00 PM: DINNER & PRIZES ALL TICKETS INCLUDE BEER TASTING, NOT A GOLFER, BIKER OR TENNIS PLAYER? COOKOUT DINNER AND PRIZES Join us for the beer tasting, cookout dinner and prizes! $50 PER PERSON Register at www.mnbar.org/hcbf-golf

In 2021 your Hennepin Bar Foundation granted $259,500 to justice related nonprofits. Your support provided grants to the following:

HOME Line Missions Inc. 180 Degrees Immigrant Law Center Rainbow Health Cancer Legal Care Lawyers Concerned for Lawyers Restorative Justice Community Action CASA Minnesota LegalCORPS Seward Longfellow Restorative Justice Children's Law Center of Minnesota Legal Rights Center Sojourner Civil Society Loan Repayment Assistance Program Standpoint Conflict Resolution Center Mid-Minnesota Legal Aid The Advocates for Human Rights CornerHouse Minnesota Assistance Council for Veterans Tubman Discapacitados Abriendose Caminos Minnesota Justice Foundation Volunteer Lawyers Network

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