OFFICIAL PUBLICATION OF THE STATE BAR ASSOCIATION VOLUME LXXVI NUMBER V MAY/JUNE 2019 www.mnbar.org

The Guns Aren’t Illegal. But Sometimes the Owners Are. Understanding Minnesota’s private-transfer exception suggests the best path to reducing gun violence

Your smartphone and the 5th Amendment

Lessor beware: Tenant trademark infringement

Lessons learned from the Lunds shareholder litigation

Only 2019 MSBA CONVENTION $125 June 27 & 28, 2019 • Mystic Lake Center • www.msbaconvention.org for MSBA Members EXPERIENCE THE BEST 12:15 – 12:30 p.m. 4:00 – 5:00 p.m. 9:40 – 10:40 a.m. THURSDAY, JUNE 27 Remarks by American Bar Association President ED TALKS BREAKOUT SESSION D OF THE BAR Bob Carlson 7:30 – 8:30 a.m. • Making the Case for Sleep 401) Someone Like Me Can Do This – CHECK-IN & CONTINENTAL BREAKFAST 12:30 – 12:45 p.m. Dr. John Parker; Sleep Performance Institute; Stories of Latino Lawyers and Judges What do lawyers, judges, academics, activists, technologists and business leaders in Minnesota Passing of the Gavel Ceremony have in common? They will all be at the 2019 MSBA Convention engaging in a rich, 7:45 – 8:30 a.m. • Transformational Metaphors 1.0 elimination of bias credit applied for Paul Godfrey, MSBA President Madge S. Thorsen; Law Offices of Madge S. Thorsen; rewarding educational experience. Aleida O. Conners; Cargill, Inc.; Wayzata SUNRISE SESSIONS Tom Nelson, Incoming MSBA President Minneapolis Roger A. Maldonado; Faegre Baker Daniels LLP; This year’s convention combines thoughtful presentations on the legal profession Minneapolis and “critical conversations” about timely issues with important legal updates and • Cheers and Jeers: Expert Reviews of 12:45 – 1:15 p.m. • Restoring Waldmann, Saint Paul’s Oldest Marcos Ramirez; Nexum Legal; Saint Paul Legal Tech Products and Trends in 2019 German Lager House MODERATOR: Judge Peter M. Reyes provocative “ED TALKS”. State of the Judiciary Address Minnesota Court of Appeals; Saint Paul Joe Kaczrowski; Minnesota State Bar Association; Minneapolis Thomas S. Schroeder; Faegre Baker Daniels LLP; Todd Scott; Minnesota Lawyers Mutual; Minneapolis Minneapolis Attendees will enjoy their choice of two sunrise sessions each day, plus lunch and the ; Saint Paul 402) How to Keep the Cabin in the Family President’s Reception, along with other fun activities. The MSBA Convention provides • How to Avoid 7 Common Legal Writing Mistakes * MSBA Assembly Meeting, continued J. Steve Nys; Fryberger, Buchanan, Smith & numerous opportunities to network with your colleagues in new ways. Frederick, P.A.; Duluth Karin Ciano; Karin Ciano Law PLLC; Saint Paul 1:30 – 2:30 p.m. Packed with stimulating presentations, numerous networking opportunities and BREAKOUT SESSION B 10:40 – 10:50 a.m. 5:00 – 6:00 p.m. special events, the MSBA Convention is an amazing opportunity to experience the 8:30 – 8:45 a.m. EXHIBITORS & NETWORKING BREAK 201) Minnesota State Bar Association at its best! ANNOUNCEMENTS Critical Conversation: Lawyer Safety in the PRESIDENT’S RECEPTION Law Office and the Courtroom Enjoy music, drinks and conversation with your colleagues! Daniel Adkins; North Star Criminal Defense; Saint Paul 10:50 – 11:50 a.m. 8:45 – 9:00 a.m. Sponsored by John Lillie III; Kelsey Law Office; Forest Lake R PRESIDENTIAL WELCOME & AWARDS Randy McAlister; Cottage Grove Police Department; BREAKOUT SESSION E Paul Godfrey; MSBA President Cottage Grove MODERATOR: Samuel J. Edmunds 501) Important Lessons from Recent Sieben Edmunds Miller PLLC; Mendota Heights FEATURED SPEAKERS 9:00 – 10:00 a.m. 6:00 – 7:00 p.m. Attorney Discipline Cases 1.0 ethics credit applied for Breaking Hate: A Journey Into and Out of 202) 2019 Minnesota Appellate Case Law Update BAGS TOURNAMENT – Justice G. Susan M. Humiston; Office of Lawyers Professional America’s Most Violent Hate Movement Minnesota Supreme Court; Saint Paul Big Prizes, Big Fun! Responsibility; Saint Paul CHRISTIAN PICCIOLINI STEVE CROSSLAND Christian Picciolini; Free Radicals Project; Chicago, Illinois Justice Margaret H. Chutich Sponsored by the New Lawyers Section Minnesota Supreme Court; Saint Paul 502) Books about Bias and Diversity: Becoming Christian Picciolini is an American Steve Crossland is the Chief Judge Edward J. Cleary and The Loudest Duck: Moving Beyond Diversity Minnesota Court of Appeals; Saint Paul author and activist who is the co- Chair of Washington State’s 10:00 – 10:45 a.m. While Embracing Differences to Achieve Success founder of a nonprofit peace advocacy Limited License Legal Judge Kevin G. Ross ED TALKS Minnesota Court of Appeals; Saint Paul at Work organization called Life After Hate. He Technician Board. He also has MODERATOR: Justice David L. Lillehaug wrote two books: White American Youth a solo practice in Cashmere, Minnesota Supreme Court; Saint Paul 1.0 elimination of bias credit applied for and Romantic Violence: Memoirs of an Washington. • All Square: Civil Rights and Neon Lights FRIDAY, JUNE 28 Sarah Lynn Oquist; Sapientia Law Group; Minneapolis Athena Hollins; Minnesota State Bar Association; Minneapolis American Skinhead, which detail his Emily Hunt Turner; All Square Café; Minneapolis 203) The Top 10 Mistakes Lawyers Make When time as a leader of the American white Working with Scientific 7:30 – 8:30 a.m. 11:50 a.m. – 12:00 p.m. power movement and his journey out. • The Importance of Bonding Christine Funk; Attorney at Law; Saint Paul CONTINENTAL BREAKFAST CHIEF JUSTICE LORIE Mindy Mitnick; Uptown Mental Health Center; Minneapolis EXHIBITORS & NETWORKING BREAK SKJERVEN GILDEA 2:30 – 2:45 p.m. 7:45 – 8:30 a.m. Chief Justice Gildea has served 10:45 – 11:00 a.m. BOB CARLSON EXHIBITORS & NETWORKING BREAK as the Chief Justice of the EXHIBITORS & NETWORKING BREAK SUNRISE SESSIONS 12:00 – 1:00 p.m. Bob Carlson, a shareholder with Minnesota Supreme Court BREAKOUT SESSION F the Butte, Montana, law firm of since 2010. Prior to that she • How to Avoid Getting Caught in the 2:45 – 3:45 p.m. Corette Black Carlson & Mickelson, served as an associate justice Dark Web 11:00 a.m. – 12:00 p.m. 601) The Intersection of Ethics, P.C., is president of the American from 2006 to 2010 and as a BREAKOUT SESSION C Mark Lanterman; Computer Forensic Services; Minnetonka Bar Association, the world’s largest district judge in the Fourth BREAKOUT SESSION A Inclusion, and Professionalism: voluntary professional organization Judicial District from 2005 to 301) Critical Conversation: • Marketing a Small-Town Legal Practice The New Model Rule 8.4(g) 101) with more than 400,000 members. 2006. Critical Conversation: Lawyer Well-Being in The Future of Legal Representation Vincent Stevens; Miller & Stevens Law; Forest Lake 1.0 ethics credit applied for Minnesota and Nationally in MN – LLLTs and More Kristine Kubes; Kubes Law Office PLLC; Minneapolis Bob Carlson; Corette Black Carlson & Mickelson, P.C.; Mary Schwind; Kubes Law Office PLLC; Minneapolis Steve Crossland; Washington State Limited License Legal Butte, Montana Technician Board Chair; Cashmere, Washington 8:30 – 9:30 a.m. Ivan Fong; 3M; Saint Paul 602) Sam Glover; Lawyerist.com; Minneapolis The Complete Lawyer: Quick Answers to Justice David L. Lillehaug; Minnesota Supreme Court; Judge John R. Rodenberg; Minnesota Court of Appeals; ED TALKS Saint Paul Questions Across 4 Practice Areas Special Thanks to Convention Sponsors Saint Paul MODERATOR: Joan Bibelhausen MODERATOR: Eric T. Cooperstein Lawyers Concerned for Lawyers; Saint Paul • On Becoming a Judge: Things to INTELLECTUAL Law Office of Eric T. Cooperstein; Minneapolis James L. Young; Westman, Champlin & Koehler; Consider Before You Apply, When You Apply, Minneapolis 102) 2019 U.S. Supreme Court Update PLATINUM 302) Ethics Issues for Retiring Lawyers and If You Get an Interview Aaron D. Van Oort; Faegre Baker Daniels LLP; Minneapolis EMPLOYMENT LAW 1.0 ethics credit applied for Lola A. Velazquez-Aguilu; Medtronic, Inc.; Fridley SPONSOR Nicholas J. Nelson; Faegre Baker Daniels LLP; Minneapolis Leonard B. Segal; SeilerSchindel, PLLC; Minneapolis R Reception Paul M. Floyd; Wallen-Friedman & Floyd, P.A.; Minneapolis • How to Have a More Dementia-Friendly Law FAMILY LAW 103) How to Protect Children from Online sponsor Jack Setterlund; Duluth; Minnesota Practice R. Leigh Frost; R. Leigh Frost Law, Ltd.; Minneapolis Binh T. Tuong; Office of Lawyers Professional Recruitment by Hate Groups Jean M. Gustafson; Attorney at Law; Brainerd Christian Picciolini; Free Radicals Project; Chicago, Illinois Responsibility; Saint Paul WORKERS’ COMPENSATION LAW MODERATOR: Roy S. Ginsburg Kathryn Hipp Carlson; Hipp Carlson Law PLLC; Long Lake Attorney at Law; Minneapolis • Courageous Connections: GOLD SILVER Every Heart Matters 12:00 – 1:30 p.m. 1:00 p.m. SPONSOR SPONSOR * MSBA Assembly Meeting Kelly D. Holstine; 2018 Minnesota Teacher of the Year; CONVENTION LUNCHEON Shakopee Public Schools; Shakopee ADJOURN Day 1 Lunch Lanyard sponsor sponsor 3:45 – 4:00 p.m. 9:30 – 9:40 a.m. EXHIBITORS & NETWORKING BREAK EXHIBITORS & NETWORKING BREAK Sponsorship opportunities are still available. Call Katie Ward at 651-227-8266 for details.

May.June.Convention.indd 1 4/17/2019 10:33:07 AM Only 2019 MSBA CONVENTION $125 June 27 & 28, 2019 • Mystic Lake Center • www.msbaconvention.org for MSBA Members EXPERIENCE THE BEST 12:15 – 12:30 p.m. 4:00 – 5:00 p.m. 9:40 – 10:40 a.m. THURSDAY, JUNE 27 Remarks by American Bar Association President ED TALKS BREAKOUT SESSION D OF THE BAR Bob Carlson 7:30 – 8:30 a.m. • Making the Case for Sleep 401) Someone Like Me Can Do This – CHECK-IN & CONTINENTAL BREAKFAST 12:30 – 12:45 p.m. Dr. John Parker; Sleep Performance Institute; Minneapolis Stories of Latino Lawyers and Judges What do lawyers, judges, academics, activists, technologists and business leaders in Minnesota Passing of the Gavel Ceremony have in common? They will all be at the 2019 MSBA Convention engaging in a rich, 7:45 – 8:30 a.m. • Transformational Metaphors 1.0 elimination of bias credit applied for Paul Godfrey, MSBA President Madge S. Thorsen; Law Offices of Madge S. Thorsen; rewarding educational experience. Aleida O. Conners; Cargill, Inc.; Wayzata SUNRISE SESSIONS Tom Nelson, Incoming MSBA President Minneapolis Roger A. Maldonado; Faegre Baker Daniels LLP; This year’s convention combines thoughtful presentations on the legal profession Minneapolis and “critical conversations” about timely issues with important legal updates and • Cheers and Jeers: Expert Reviews of 12:45 – 1:15 p.m. • Restoring Waldmann, Saint Paul’s Oldest Marcos Ramirez; Nexum Legal; Saint Paul Legal Tech Products and Trends in 2019 German Lager House MODERATOR: Judge Peter M. Reyes provocative “ED TALKS”. State of the Judiciary Address Minnesota Court of Appeals; Saint Paul Joe Kaczrowski; Minnesota State Bar Association; Minneapolis Thomas S. Schroeder; Faegre Baker Daniels LLP; Chief Justice Lorie Skjerven Gildea Todd Scott; Minnesota Lawyers Mutual; Minneapolis Minneapolis Attendees will enjoy their choice of two sunrise sessions each day, plus lunch and the Minnesota Supreme Court; Saint Paul 402) How to Keep the Cabin in the Family President’s Reception, along with other fun activities. The MSBA Convention provides • How to Avoid 7 Common Legal Writing Mistakes * MSBA Assembly Meeting, continued J. Steve Nys; Fryberger, Buchanan, Smith & numerous opportunities to network with your colleagues in new ways. Frederick, P.A.; Duluth Karin Ciano; Karin Ciano Law PLLC; Saint Paul 1:30 – 2:30 p.m. Packed with stimulating presentations, numerous networking opportunities and BREAKOUT SESSION B 10:40 – 10:50 a.m. 5:00 – 6:00 p.m. special events, the MSBA Convention is an amazing opportunity to experience the 8:30 – 8:45 a.m. EXHIBITORS & NETWORKING BREAK 201) Minnesota State Bar Association at its best! ANNOUNCEMENTS Critical Conversation: Lawyer Safety in the PRESIDENT’S RECEPTION Law Office and the Courtroom Enjoy music, drinks and conversation with your colleagues! Daniel Adkins; North Star Criminal Defense; Saint Paul 10:50 – 11:50 a.m. 8:45 – 9:00 a.m. Sponsored by John Lillie III; Kelsey Law Office; Forest Lake R PRESIDENTIAL WELCOME & AWARDS Randy McAlister; Cottage Grove Police Department; BREAKOUT SESSION E Paul Godfrey; MSBA President Cottage Grove MODERATOR: Samuel J. Edmunds 501) Important Lessons from Recent Sieben Edmunds Miller PLLC; Mendota Heights FEATURED SPEAKERS 9:00 – 10:00 a.m. 6:00 – 7:00 p.m. Attorney Discipline Cases 1.0 ethics credit applied for Breaking Hate: A Journey Into and Out of 202) 2019 Minnesota Appellate Case Law Update BAGS TOURNAMENT – Justice G. Barry Anderson Susan M. Humiston; Office of Lawyers Professional America’s Most Violent Hate Movement Minnesota Supreme Court; Saint Paul Big Prizes, Big Fun! Responsibility; Saint Paul CHRISTIAN PICCIOLINI STEVE CROSSLAND Christian Picciolini; Free Radicals Project; Chicago, Illinois Justice Margaret H. Chutich Sponsored by the New Lawyers Section Minnesota Supreme Court; Saint Paul 502) Books about Bias and Diversity: Becoming Christian Picciolini is an American Steve Crossland is the Chief Judge Edward J. Cleary and The Loudest Duck: Moving Beyond Diversity Minnesota Court of Appeals; Saint Paul author and activist who is the co- Chair of Washington State’s 10:00 – 10:45 a.m. While Embracing Differences to Achieve Success founder of a nonprofit peace advocacy Limited License Legal Judge Kevin G. Ross ED TALKS Minnesota Court of Appeals; Saint Paul at Work organization called Life After Hate. He Technician Board. He also has MODERATOR: Justice David L. Lillehaug wrote two books: White American Youth a solo practice in Cashmere, Minnesota Supreme Court; Saint Paul 1.0 elimination of bias credit applied for and Romantic Violence: Memoirs of an Washington. • All Square: Civil Rights and Neon Lights FRIDAY, JUNE 28 Sarah Lynn Oquist; Sapientia Law Group; Minneapolis Athena Hollins; Minnesota State Bar Association; Minneapolis American Skinhead, which detail his Emily Hunt Turner; All Square Café; Minneapolis 203) The Top 10 Mistakes Lawyers Make When time as a leader of the American white Working with Scientific Evidence 7:30 – 8:30 a.m. 11:50 a.m. – 12:00 p.m. power movement and his journey out. • The Importance of Bonding Christine Funk; Attorney at Law; Saint Paul CONTINENTAL BREAKFAST CHIEF JUSTICE LORIE Mindy Mitnick; Uptown Mental Health Center; Minneapolis EXHIBITORS & NETWORKING BREAK SKJERVEN GILDEA 2:30 – 2:45 p.m. 7:45 – 8:30 a.m. Chief Justice Gildea has served 10:45 – 11:00 a.m. BOB CARLSON EXHIBITORS & NETWORKING BREAK as the Chief Justice of the EXHIBITORS & NETWORKING BREAK SUNRISE SESSIONS 12:00 – 1:00 p.m. Bob Carlson, a shareholder with Minnesota Supreme Court BREAKOUT SESSION F the Butte, Montana, law firm of since 2010. Prior to that she • How to Avoid Getting Caught in the 2:45 – 3:45 p.m. Corette Black Carlson & Mickelson, served as an associate justice Dark Web 11:00 a.m. – 12:00 p.m. 601) The Intersection of Ethics, P.C., is president of the American from 2006 to 2010 and as a BREAKOUT SESSION C Mark Lanterman; Computer Forensic Services; Minnetonka Bar Association, the world’s largest district judge in the Fourth BREAKOUT SESSION A Inclusion, and Professionalism: voluntary professional organization Judicial District from 2005 to 301) Critical Conversation: • Marketing a Small-Town Legal Practice The New Model Rule 8.4(g) 101) with more than 400,000 members. 2006. Critical Conversation: Lawyer Well-Being in The Future of Legal Representation Vincent Stevens; Miller & Stevens Law; Forest Lake 1.0 ethics credit applied for Minnesota and Nationally in MN – LLLTs and More Kristine Kubes; Kubes Law Office PLLC; Minneapolis Bob Carlson; Corette Black Carlson & Mickelson, P.C.; Mary Schwind; Kubes Law Office PLLC; Minneapolis Steve Crossland; Washington State Limited License Legal Butte, Montana Technician Board Chair; Cashmere, Washington 8:30 – 9:30 a.m. Ivan Fong; 3M; Saint Paul 602) Sam Glover; Lawyerist.com; Minneapolis The Complete Lawyer: Quick Answers to Justice David L. Lillehaug; Minnesota Supreme Court; Judge John R. Rodenberg; Minnesota Court of Appeals; ED TALKS Saint Paul Questions Across 4 Practice Areas Special Thanks to Convention Sponsors Saint Paul MODERATOR: Joan Bibelhausen MODERATOR: Eric T. Cooperstein Lawyers Concerned for Lawyers; Saint Paul • On Becoming a Judge: Things to INTELLECTUAL PROPERTY LAW Law Office of Eric T. Cooperstein; Minneapolis James L. Young; Westman, Champlin & Koehler; Consider Before You Apply, When You Apply, Minneapolis 102) 2019 U.S. Supreme Court Update PLATINUM 302) Ethics Issues for Retiring Lawyers and If You Get an Interview Aaron D. Van Oort; Faegre Baker Daniels LLP; Minneapolis EMPLOYMENT LAW 1.0 ethics credit applied for Lola A. Velazquez-Aguilu; Medtronic, Inc.; Fridley SPONSOR Nicholas J. Nelson; Faegre Baker Daniels LLP; Minneapolis Leonard B. Segal; SeilerSchindel, PLLC; Minneapolis R Reception Paul M. Floyd; Wallen-Friedman & Floyd, P.A.; Minneapolis • How to Have a More Dementia-Friendly Law FAMILY LAW 103) How to Protect Children from Online sponsor Jack Setterlund; Duluth; Minnesota Practice R. Leigh Frost; R. Leigh Frost Law, Ltd.; Minneapolis Binh T. Tuong; Office of Lawyers Professional Recruitment by Hate Groups Jean M. Gustafson; Attorney at Law; Brainerd Christian Picciolini; Free Radicals Project; Chicago, Illinois Responsibility; Saint Paul WORKERS’ COMPENSATION LAW MODERATOR: Roy S. Ginsburg Kathryn Hipp Carlson; Hipp Carlson Law PLLC; Long Lake Attorney at Law; Minneapolis • Courageous Connections: GOLD SILVER Every Heart Matters 12:00 – 1:30 p.m. 1:00 p.m. SPONSOR SPONSOR * MSBA Assembly Meeting Kelly D. Holstine; 2018 Minnesota Teacher of the Year; CONVENTION LUNCHEON Shakopee Public Schools; Shakopee ADJOURN Day 1 Lunch Lanyard sponsor sponsor 3:45 – 4:00 p.m. 9:30 – 9:40 a.m. EXHIBITORS & NETWORKING BREAK EXHIBITORS & NETWORKING BREAK Sponsorship opportunities are still available. Call Katie Ward at 651-227-8266 for details.

May.June.Convention.indd 1 4/17/2019 10:33:07 AM OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVI NUMBER V MAY/JUNE 2019 www.mnbar.org

FEATURES 5 President’s Page It was a very good year By Paul Godfrey

16 6 MSBA in Action MORE THAN A RULE OF THUMB Welcome, new lawyers! Your smartphone and the 5th Amendment By Adam T. Johnson 8 Professional Responsibility Business transactions with clients By Susan Humiston

ON THE COVER 10 Law & Technology 22 “Papers and effects” THE GUNS AREN’T ILLEGAL. in a digital age, pt II By Mark Lanterman and BUT SOMETIMES THE OWNERS ARE. Judge James Rosenbaum Understanding Minnesota’s private-transfer exception suggests the best path to reducing 12 New Lawyers gun violence Eminent Domain: By Aaron Edward Brown Damages to contiguous tracts in Minnesota By Benjamin Tozer 27 LESSOR BEWARE Courts are increasingly willing to hold commercial landlords liable for their tenants’ trademark infringement By Bryan Huntington 14 Colleague Corner ‘Never forget where you came from’ meet Jessie Nicholson

35 Notes & Trends 30 Landmarks in the law DON’T BE THE NEXT LUNDS & BYERLYS 50 People & Practice Lessons learned from the Lunds Member announcements shareholder litigation By Janel Dressen 52 Opportunity Market Classified ads

2 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org Do you know why Official publication of the thousands of law firms Minnesota State Bar Association www.mnbar.org | (800) 882-6722 see their retirement plan in a different light? Editor Steve Perry [email protected] Design & Production Jennifer Wallace Advertising Sales Pierre Production & Promotions, Inc. (763) 497-1778

MSBA Officers President Because they’ve chosen a different Paul W. Godfrey kind of 401(k) provider. Getting started is easy. Contact us today! President-elect The ABA Retirement Funds Program (“the Tom Nelson Program”) is an employer-sponsored 401(k) plan uniquely designed for the legal community. For Treasurer over 55 years, we have been committed to our Dyan J. Ebert mission of providing the tools necessary for all Secretary law professionals to achieve retirement security. Jennifer A. Thompson A different kind of retirement plan What makes us so different? Chief Executive Officer Oversight: Highest level of fiduciary Cheryl Dalby oversight allowable through ERISA, 800.826.8901 Publications Committee saving your firm time and reducing your fiduciary risk. www.abaretirement.com Chairperson Investments: Steven P. Aggergaard Investment platform with [email protected] options to allow for optimal choice and Emily K. Cooper flexibility for your participants. Holly A. Fistler Service: Fully bundled service model, June Hoidal custom designed to meet the unique Bethany Hurd needs of the legal community. Carol K. Lee The Program is structured to provide affordable Henry D. Long pricing whether you are a Solo Practitioner or a Malcolm P.W. Whynott large corporation.

The ABA Retirement Funds Program is available through the Minnesota State Bar Association as a member benefit. Please read the Program Annual Disclosure Document (April 2018), as supplemented (March 2019), carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: [email protected]. Securities offered through Voya Financial Partners, LLC (member SIPC). Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya, the ABA Retirement Funds, and the Minnesota State Bar Association are separate, unaffiliated entities, and not responsible for one another’s products and services. CN700696_0121-2019

© 2019 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 Digital Evidence Specialists mailing offices. Postmaster: Send address changes to Bench & Bar of Minnesota, 600 Nicollet Mall STE 380, Minneapolis, MN • Expert Witness Testimony that jurors will understand 55402-1641. Subscription price: $25.00 for members which is • Preservation, Analysis & Presentation of Electronic Evidence included in dues. Nonmembers $35.00 per year. Some back issues available at $5.00 each. Editorial Policy: The opinions expressed • Liaison with Law Enforcement in Bench & Bar are those of the authors and do not necessarily • Incident Response reflect association policy or editorial . Publication of advertisements does not constitute an endorsement. The editors • Complementary CLE Training reserve the right to accept or reject prospective advertisements in accordance with their editorial judgment. 601 Carlson Parkway, Suite 1250 WE’D LIKE TO HEAR FROM YOU: To query potential articles for Minnetonka, MN 55305 Bench & Bar, or to pass along your comments on matters related (952) 924-9920 to the profession, the MSBA, or this magazine, write to editor Steve Perry at [email protected] or at the postal address above. www.compforensics.com • [email protected] www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 3 LAWPAY IS FIVE STAR!

In our firm, it's actually fun to do our billings and get paid. I send our bills out first thing in the morning and more than half are paid by lunchtime. LawPay makes my day!

– Cheryl Ischy, Legal Administrator Austin, Texas

Trusted by more than 35,000 firms and Rated ‘5-Star’ on

PAYMENT INBOX

INVOICE PAID $775.00 [email protected]

INVOICE PAID $1,500.00 [email protected]

INVOICE PAID $900.00 [email protected] THE #1 PAYMENT SOLUTION FOR LAW FIRMS PAY LAWYER Getting paid should be the easiest part of your job, and with LawPay, it is! However you run your firm, LawPay's flexible, easy-to-use system can work for you. Designed specifically Now accept check payments online for the legal industry, your earned/unearned fees are at 0% and only $2 per transaction! properly separated and your IOLTA is always protected against third-party debiting. Give your firm, and your clients, the benefit of easy online payments with LawPay. Proud Member Benefit Provider 888-515-9108 or visit lawpay.com/mnbar

LawPay is a registered agent of Wells Fargo Bank N.A., Concord, CA and Citizens Bank, N.A., Providence, RI. President’sPage | BY PAUL GODFREY

It was a very good year

uring the years leading up to my time as president of the MSBA, several people asked me to describe my plan for the year.D Since I wasn’t sure, and, because I knew from talking to past presidents that any plan can be derailed by events, I told them I needed to wait and see. As my term approached, events dictated my plan. Tim Groshens announced his retirement and we had made a decision to have One Profession conferences 2018 in every judicial district in greater – Minnesota. Hence the plan: Hire a new executive director and implement the 2019 One Profession program. I am excited to report we were able to accomplish both goals.

Achieving greater efficiencies As our executive director, Tim Groshens did an excellent job of taking times in summer and fall of 2018. All The program is aptly named. Lawyers us from the era of paper billing to online three boards approved Cheryl Dalby as and judges are all part of one profession. dues payments. He also helped lead the the new leader of the combined staff in These meetings have been an oppor- discussions about merging the staffs of November 2018. Cheryl started her new tunity for lawyers and judges in each the HCBA, the RCBA, and the MSBA. role as chief executive officer on January judicial district to come together and In early 2018 all three boards agreed on 2, 2019. She is already making strides discuss issues facing the district. Every a plan to merge staffs. Tim’s retirement to make sure our members are served as meeting has included presentations by provided an excellent opportunity to efficiently as possible. the Supreme Court and the Court of find a new executive director to lead the For example, the communications Appeals. They also include a state of the merged staff. I am staffs from all three organizations are district presentation by the chief judge happy to report now one team. They are all able to or a panel discussion of issues facing that all three specialize in what they do best, whether the court. At every meeting there was bar associations it be writing, photography, graphic time for questions and answers. This is collaborated design, or social media. Rather than how the bench and bar collaborate: We to make this having three groups communicating with get together, discuss issues, and look for process work three separate but overlapping groups, solutions. The attendance at these meet- smoothly. We we have one team getting the messages ings has been fantastic. I am proud that formed a Joint out to the right audiences. we were able to bring these meetings to Coordinating our members. PAUL GODFREY is the Committee Bringing together The MSBA is doing good things for Managing Attorney to decide the legal professionals our profession. Much of what we do for the Twin Cities scope of the The other goal for the year was to depends on strong support from our staff. Branch Legal Office search, choose a serve our members as a convener. We I want to publicly thank the staffs from for Farmers Insurance. search firm, and have a statewide reach, so we are well all three organizations. They continued He is a trial attorney. determine the positioned to address issues that face the to produce quality work during times of He has tried more hiring timeline. entire bar. Through the One Profession uncertainty and have worked together than 40 cases to jury The committee program we were able hold day-long on the staff merger. verdict, with issues was made up meetings in six of the eight judicial I also want to thank everyone for the ranging from claims for of three mem- districts in greater Minnesota during my opportunity to serve as president of the whiplash to claims for bers from each year as president. The other two meet- MSBA. It has been a wonderful opportu- wrongful death. association. We ings are scheduled to take place early in nity to work with talented staff and attor- met multiple Tom Nelson’s term. neys to make our justice system better. s www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 5 MSBAinAction Welcome, new lawyers! ongratulations to the director of MBLE, introduced 75 new lawyers granted the new lawyers to the Court, Cadmission to the Chief Justice Gildea admin- Minnesota bar during a series istered the oath, and MSBA of swearing-in ceremonies President Paul Godfrey wel- held in the Supreme Court comed them to the Minnesota Chambers at the Minnesota legal community. State Capitol Building on May Chief Justice Gildea— 10. Chief Justice Lorie Gildea who initiated a return of the presided over the four morn- admissions ceremony to the ing sessions and was joined on Supreme Court Chambers in a the bench by Justice G. Barry trial run last spring—welcomed Anderson, Justice David Lille- the new admittees to “one of haug, Justice , the most beautiful rooms, in Justice Anne McKeig, and Justice . one of the most beautiful buildings, in the country.” (For many The ceremony featured an address by Justice Hudson, who years, the swearing-in ceremonies had been held at St. Paul’s recounted her own experience as a newly admitted lawyer RiverCentre.) Chief Justice Gildea also reinstated the signing of helping a pro se petitioner, and the gravity she felt with that the Minnesota attorneys roll book as a part of the new lawyers’ new responsibility. John Koneck, board member of the Min- admission experience. This practice dates back to 1858, the nesota Board of Law Examiners (MBLE), and Emily Eschweiler, year that Minnesota gained statehood.

Court rules on MSBA petition to amend MRPC n May 3, the Minnesota Supreme Court issued an order in response to an MSBA petition proposing amend- Oments to rules 1.6 and 5.5 of the Minnesota Rules of Professional Conduct. The Court rejected a proposed amend- ment to Rule 1.6 that would have permitted lawyers to disclose limited confidential client information to respond to a client’s public criticism of if the client had first disclosed confidential information. The Court stated the proposed change could have unforeseen effects on the lawyer-client relationship. The Court accepted a proposed amendment to Rule 5.5(d) to permit a non-Minnesota lawyer to continuously practice in Minnesota the law of a jurisdiction in which the lawyer is admitted, provided that lawyer notifies clients that the lawyer 2019 Becker Award is not admitted to practice Minnesota law. The Court reasoned that this is a logical extension of the current Rule 5.5 exemp- winners announced tion permitting a non-Minnesota lawyer to practice in other limited areas of non-Minnesota law. he Access to Justice Committee has conferred its The Court amended Rule 5.5(c)(3) to permit a non-Min- annual Bernard P. Becker honors for outstanding nesota lawyer to provide legal services in Minnesota that are Tlegal work for low-income clients. The awards were reasonably related to the lawyer’s recognized expertise in an presented at the MSBA Assembly to five honorees; the area of law developed through regular practice in a jurisdiction committee recommended two recipients for the Legacy of in which the lawyer is lawfully admitted. Excellence because the strength of the nominations in this Finally, the Court agreed with a proposed amendment to category made it impossible to select just one winner. Rule 5.5(c)(3) permitting a non-Minnesota lawyer to provide n A dvocate: Georgia Sherman, Southern Minnesota representation in Minnesota to a family member. The Court Regional Legal Services recognized that this change responds to the Court’s invitation n Emerging Leader: Jocylyn Poehler, Southern Minnesota to the MSBA in In Re Panel File No. 49402, 884 N.W.2d 661 Regional Legal Services (Minn. 2016) to suggest amendments to the rule if the bar felt n Legacy of Excellence: Steve Wolfe, Southern Minnesota that the court’s ruling in that case unnecessarily affected the Regional Legal Services ability of lawyers to meet client needs. But the Court rejected n Legacy of Excellence: Michele Garnett McKenzie, language that would have extended the exemption to close Advocates for Human Rights personal friends and existing clients. n Law Student: Kim Boche, University of St. Thomas

6 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org Affordable employer-provided health insurance, anyone? aw firms of all sizes face significant challenges in providing affordable Lhealth insurance for their employees. And we have heard from MSBA members that there is a growing interest in exploring possible solutions by pooling together the purchasing power of MSBA employers and their employees to obtain affordable health insurance coverage. Developing an association health plan (AHP) will allow smaller A delegation of five MSBA officers and former officers attended ABA Day 2019 in Washington D.C. employers to obtain coverage on terms to advocate for funding of Legal Services Corporation and the Public Service Loan Forgiveness similar to those currently available only program. Shown here with Representative Tom Emmer, who is a strong advocate for Legal Services to large employers. Corporation, are President-Elect Tom Nelson, President Paul Godfrey, and Judge Cara Lee Neville. The MSBA has engaged with Mercer, a national employee benefit consulting firm with a division that focuses exclu- sively on offering association benefit programs. The first step in this venture is to collect information about you and your employees that will be used exclu- sively for obtaining a competitive health care and benefits program from select insurance carriers and evaluating the feasibility of an AHP offering. Providing this information does not obligate you or your organization to participate in any eventual AHP sponsored by the MSBA. A comprehensive response from you and your peers will help the MSBA obtain the most competitive offering possible while accurately gauging the possibility of offering an AHP. To help in this process, please visit https://census.mercer.com/msba/ as soon as you can. Our data collection effort will end June 30, 2019. The URL has complete instructions on providing the information, and the process should take you no more than 10 minutes. You will be required to enter the Association ID of MSBA1234 and your Membership ID. If you do not have a Membership ID, or it is not readily available, you can enter the Association ID in the field instead. If you have questions regarding the sub- mission of data using the Mercer Data collection tool, please contact Mercer's Help Desk at MercerMarketplace365+Cu [email protected]. www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 7 ProfessionalResponsibility | BY SUSAN HUMISTON

Business transactions with clients

awyers frequently have an oppor- A lawyer shall not enter into a business What does compliance look like? tunity to do business with clients transaction with a client or knowingly First, remember Rule 1.8(a) is beyond the straightforward mon- acquire an ownership, possessory, conjunctive—all three prongs must etary payment for legal services security or other pecuniary interest be satisfied. Second, note that each rendered.L Sometimes clients wish to offer adverse to a client unless: prong contains additional requirements. their lawyer an ownership interest in a Specifically, Rule 1.8(a)(1) requires that start-up business as payment for some (1 ) the transaction and terms the terms of the transaction be (i) “fair or all of the legal services provided, or on which the lawyer acquires the and reasonable,” and (ii) requires that lawyers wish to acquire an interest in interest are fair and reasonable to the terms be disclosed in writing and (iii) property owned by the client to secure the client and are fully disclosed disclosed in a manner that can be reason- payment for future legal fees. Sometimes and transmitted in writing in a ably understood by the client. Accord- a client would like to partner with their manner that can be reasonably ingly, depending on the sophistication lawyer to pursue a new business opportu- understood by the client; level of your client, the written agree- nity, or sometimes a client simply cannot (2) the client is advised in ment effectuating the transaction may pay a bill and wishes to trade property writing of the desirability of need to be separately summarized in an the client owns or barter professional seeking and is given a reasonable understandable manner. You should also services for payment. Each of these situ- opportunity to seek the advice of spend time establishing for yourself how ations is permissible, but all present a independent legal counsel on the the terms are “fair and reasonable” to the potential concurrent conflict of interest transaction; and client. What factors are available to show with a client. How to ethically navigate (3) the client gives informed the current value of the transaction? If these conflicts is specifically regulated by , in a document signed the transaction is in lieu of payment of professional responsibility rules. by the client separate from the fees, how is the value “reasonable” in transaction documents, to the es- light of Rule 1.5(a), which requires that The rules sential terms of the transaction and lawyers charge fees that are reasonable Rule 1.8, the lawyer’s role in the transac- under the circumstances? As with much Minnesota Rules tion, including whether the lawyer in the law, what these elements look like of Professional is representing the client in the will depend on the particular facts and Conduct, is help- transaction.1 circumstances presented. fully entitled The second prong, Rule 1.8(a)(2), “Conflicts of As written, the rule is expansive in contains two requirements: The client Interest: Current its application, and applies to everything is advised in writing of the desirability of Clients: Specific except standard commercial transactions seeking counsel and the client is given SUSAN HUMISTON Rules.” There are with clients of the kind and on the same a reasonable opportunity to obtain is the director of the 11 main subparts terms as the client markets to the public, such advice. Again, what is reasonable Office of Lawyers to Rule 1.8 that and ordinary fee arrangements between will depend on the particular facts and Professional cover a gamut a client and lawyer, including applying circumstances. Requiring the client to Responsibility and of situations whenever a “lawyer accepts an interest execute the documents on the same Client Securities from business in the client’s business or other nonmon- day they are given to the client, or Board. She has transactions with etary property as payment for all or a shortly thereafter, is likely unreasonable. more than 20 clients to finan- part of a fee.”2 Providing the client with several weeks years of litigation cial assistance to The requirements of the rule are to seek separate counsel and to consult experience, as well clients to sex with strictly enforced from a disciplinary per- with same is likely reasonable. as a strong ethics clients (expressly spective but more importantly, lawyers The third prong, Rule 1.8(a)(3), in- and compliance prohibited unless should view them as important risk man- corporates one of the most important as- background. Prior that relationship agement tools. Because of the trust and pects of conflict law—informed consent. to her appointment, predated the confidence that clients place in counsel, Rule 1.0(f) defines “informed consent” as Susan worked in- lawyer-client re- business transactions with clients can an “agreement by a person to a proposed house at a publicly lationship). Let’s be easy targets for claims of overreach- course of conduct after the lawyer has traded company, and start with the ing and breach of fiduciary duty. Taking communicated adequate information in private practice as main rule on busi- pains to comply with the requirements of and explanation about the material risks a litigation attorney. ness transactions: the rule provides an effective counter to of and reasonably available alternative to Rule 1.8(a): such claims. the proposed course of conduct.”3

8 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org In addition, the informed consent must have a contingency fee agreement on ethically do business with your client, be in a document separate from the trans- damages arising from a patent infringe- 651-296-2963 or 1-800-657-3601. s action, must be signed by the client, must ment case, you cannot acquire an owner- discuss the essential terms of the transac- ship interest in the patent that is the Notes tion, and must disclose the lawyer’s role subject of the infringement case. 1 Rule 1.8(a), MRPC. in the transaction vis-à-vis the client. 2 Rule 1.8, MRPC, Comment [1]. Remember, it is generally insufficient Conclusion 3 Rule 1.0(f), MRPC. just to use the words “informed consent.” Clients often look to us as trusted 4 Rule 1.8(b), MRPC. Rather, as the definition states, you must business advisors in addition to legal 5 Rule 1.8(c), MRPC. give your client information about the advisors, and it may make perfect sense 6 Rule 1.8(k), MRPC, “While lawyers are asso- material risks and alternatives available to do business with clients. Before ciated in a firm, a prohibition in the foregoing in order for the consent to the transac- engaging in business with a client (be- paragraphs (a) through (i) that applies to any tion to actually be informed. Think about yond standard commercial transactions one of them shall apply to all of them.” this from your client’s perspective—if with your client of the kind your client 7 Rule 1.8(e), MRPC. someone asks them, “What were the risks markets to the general public),9 however, 8 Rule 1.8(i), MRPC. of the transaction,” what do you think please review the rules so that you are 9 See Rule 1.8, MRPC, Comment [1], excluding they will say? What about, “What were familiar with the conflicts of interest that from Rule 1.8(a) “standard commercial trans- the alternatives available to you?” Having such transactions create, the specific actions between the lawyer and the client for a written document that sets forth this steps needed to address those conflicts, products or services that the client generally information, signed by the client, demon- and times when there is a per se prohibi- markets to others, for example, banking or strates compliance with the rule and is a tion on the type of transaction you are brokerage services, medical services, products good risk management strategy. contemplating. As always, you can call manufactured or distributed by the client, and our ethics hotline for advice on how to utilities services.” Other things to keep in mind In addition to the black-letter law required to do business with clients, Rule 1.8 contains a lot of other rules on spe- WHEN COURAGE MEETS EXPERTISE. cific client conflicts, such as specific re- Helping whistleblowers navigate their options. strictions that usually cannot be papered over, including that a “lawyer shall not use information relating to representa- tion of a client to the disadvantage of the client unless the client gives informed consent.”4 This rule generally prohibits lawyers from usurping client opportuni- ties. Lawyers cannot draft an instrument that gives the lawyer or a member of the lawyer’s family a substantial gift unless I have learned valuable the lawyer is related to the donee.5 truths over time. This rule would, for example, prohibit a lawyer from drafting sale documents Integrity transcends power, for a below-market transaction with a and justice can prevail. client meant as a gift to the lawyer for exceptional services. While a lawyer can I am proud to represent qui accept a gift from a client, neither the tam whistleblowers across the lawyer, nor the lawyer’s law firm, can United States. draft the transaction documents.6 Law- yers cannot provide financial assistance to clients in connection with pending or contemplated litigation except in lim- 7 ited, specified circumstances. This pro- Susan M. Coler, Partner hibition applies to loan advances against Chair, Qui Tam Whistleblower Practice Group settlement proceeds. Further, lawyers Selected to the 2018 Minnesota Super Lawyers List cannot acquire a proprietary interest in the cause of action or subject matter of the litigation, except by statutory lien or reasonable contingency fee agreement.8 Accordingly, for example, while you can www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 9 Law&Technology | BY MARK LANTERMAN & JUDGE JAMES ROSENBAUM “Papers and effects” in a digital age, pt II

odern information technologies are testing the the seizure of a cellphone. Instead the Court found that, in United States Constitution’s protection against considering digital devices, “a search of digital information on a government intrusion. In our article “‘Papers and cellphone… implicates substantially greater individual privacy effects’ in a digital age,” published here in January interests than a brief physical search[.]” 2019,M we looked at the impact of smartphones and the chal- lenges they pose for search warrants and government investiga- tors. We concluded that as our technological landscape rapidly The law is properly recognizing that expands and evolves, so too do courts need to adjust to main- tain the degree of privacy afforded by the 4th Amendment. our digital world requires a new level of Our digital age has forced courts to reevaluate the balance between privacy concerns and the government’s legitimate in- warrant specificity. terests when digital devices are seized during investigations. Just as the founders sought to bar Britain’s writs of assistance and The Court further held that the threat of evidence the Crown’s ability to indiscriminately search private homes or destruction, either by remote wiping or encryption, was offices, we again face the need to establish acceptable boundar- not substantial enough to merit a warrantless search. Many ies for warrant-authorized searches. Modern digital telephones investigators argue that warrants hold up investigations, and electronic devices regularly contain vast amounts of their making it difficult if not impossible to properly examine digital owners’ personal information. This new reality means that gov- evidence. However, investigators can take immediate action ernment investigators must have carefully defined limits when to secure digital devices for future analysis, including turning they seek to review these items or locate electronically stored off the devices and using Faraday bags, which help to protect evidence. Courts are responding to these concerns. against the threat of remote tampering.

Case in point: Riley v. California A unique information source In 2014, the United States Supreme Court considered the Even the most basic smartphone has significant storage capac- case Riley v. California (573 U.S. __ (2014)). Mr. Riley had been ity and often holds information spanning the course of several arrested for a traffic violation. His cellphone was seized incident years. Cloud computing and the existence of data stored on re- to the arrest. Police officers, without a warrant, examined infor- mote servers that can be easily accessed via smartphones further mation stored on the phone; they discovered photos and videos complicates the search process, since the accessible data techni- that suggested involvement. This stored information led cally extends beyond the physical confines of the phone itself. to Riley’s being charged in connection with a shooting that In spite of these issues, the Court emphasized that “the occurred weeks earlier. He challenged Court’s holding is not that the information on a cellphone is the digital search, raising the question of immune from search; it is that a warrant is generally required what investigators are allowed to search before a search[.]” The nature of our digital world justifies the on digital evidence. The lower courts need for warrant specificity. found that the digital search incident to The law is properly recognizing that our digital world Riley’s arrest allowed the evidence. requires a new level of warrant specificity. For the majority of The Supreme Court reversed. It Americans, these devices contain private details about almost recognized that, historically, officers every, if not every, aspect of our lives. The fact that technol- were permitted to examine objects seized ogy now enables an individual to carry such information in his MARK LANTERMAN incident to a lawful arrest. But in 2014, hand does not make the information any less worthy of the is CTO of Computer the Supreme Court held that a modern protection for which the founders fought. Our answer to the Forensic Services. digital phone was not just another ob- question of what police must do before searching a cellphone A former member ject; its ability to store vast amounts of seized incident to an arrest is accordingly simple—specify what of the U.S. Secret data called for a deeper consideration of you are searching for and get a warrant. Service Electronic the effect of its seizure. In today’s tech- The Supreme Court’s emphasis on the need for a warrant Crimes Taskforce, nological landscape, the average person should not unduly impede the competent investigator. Any is- Mark has 28 years stores a huge amount of data about their sues posed by needing to wait to obtain a warrant can be readily of security/forensic daily lives. This reality is unprecedented; mitigated. Indeed, the same kinds of electronic access can be experience and even in the rare event that an officer used to obtain warrants electronically. Many states and fed- has testified in over found a personal diary on a person eral procedures provide for electronic warrant application and 2,000 matters. He is incident to an arrest, that diary would authorization. This is an area where the law is fast developing, a member of the MN contain a limited amount of informa- as the courts apply timeless principles to evolving situations. As Lawyers Professional tion. The Court set aside issues of officer illustrated by the Riley case, digital devices have vastly expanded Responsibility Board. safety or evidence destruction, neither the scope of information which may be available in seized of which was materially implicated in objects. The law is beginning to consider these new factors. s

10 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org Sit Investment Associates

A global asset management firm serving institutional and individual investors

Offering global growth equity and fixed income products

Custom separately-managed portfolios Private investment funds Mutual funds Collective investment trust funds

Our products are available in an array of investment strategies. We provide individualized services to tailor our strategies to our clients’ investment objectives.

www.sitinvest.com www.sitfunds.com 612-359-2565

Sit Full Page Bleed Ad for Bench and Bar.indd 1 5/9/19 11:07 AM NewLawyers | BY BENJAMIN TOZER

Eminent Domain Damages to contiguous tracts in Minnesota

minent domain is an “awesome” power: the ability In December 2017, the court of appeals ruled, in County of of the state, or its delegates, to take an individual’s Anoka v. Ramsey-Arbor Properties, LLC,7 on an issue related to Eproperty without that individual’s consent.1 Under the the so-called “larger parcel” test. Anoka County acquired a United States and Minnesota Constitutions, that “awesome” portion of land known in the court proceedings as Parcel 20. power comes with a corresponding responsibility: to pay “just The landowner owned Parcel 20 along with a contiguous tract compensation” to the owner of the property.2 In cases where adjoining the eastern boundary of Parcel 20, known in the not all of an owner’s property is acquired, just compensation proceedings as Tract A. includes compensation not just for the property taken, but also lost value to the owner’s remaining land—an element of damages known as severance damages.3 To this end, Minnesota follows the “before” and “after” rule, comparing the value of the property before the taking with the value after the taking in order to determine the property compensation.4 Often, a property owner or investor will hold contiguous properties in different single-purpose entities. There are potential tax advantages and development advantages to holding property in smaller or separate economic units. The owner can decide to develop the properties together or to sell off one of the economic units. The owner may also decide to develop the property in phases, based on market conditions and forces. An important condemnation issue is whether or not these economic units may be considered as a single property or must be considered as multiple properties. Assume Acme, LLC owns both Green Acres and Blue Acres. A condemning authority takes only a portion of Green Acres, but the project will interfere with the use, access, or BENJAMIN TOZER some other development potential of The landowner purchased Parcel 20 and Tract A together practices in the Blue Acres as well. Is Acme entitled to and had planned a single, phased development involving the areas of litigation damages caused to Blue Acres as well property. At the time of the taking, Tract A was improved with and real as Green Acres? The answer, as in so a commercial structure leased to a bank and Parcel 20 was work, with particular many legal issues, is that it depends. mostly unimproved, though the two shared parking, sanitary expertise related to Primarily, it depends on whether in the sewer, storm sewer, lighting, fire protection, zoning, and litigation and advice marketplace, Blue Acres and Green guidance. on issues pertaining Acres are considered part of the same At the district court level, the county moved for partial to condemnation larger parcel. summary judgment to exclude a claim for any damages to Tract and regulatory The “larger parcel” rule considers A, arguing that because the parcels were separate tax parcels processes. Ben is three factors: unity of ownership, unity and because Tract A was improved while Parcel 20 was not, focused on assisting of use, and physical unity, also known as that the larger parcel test was not met in the case and that landowners and contiguity.5 The use considered is one damages to Tract A could not be found. The district court taking authorities of highest and best use.6 For properties granted the county’s motion. in condemnation. that are not contiguous, Minnesota law The landowner appealed to the court of appeals, which He has substantial provides a specific rule in Minn. Stat. overturned the district court opinion. The court of appeals held experience in §117.086, subd. 1. A recent unpublished that the required question was whether the “physically distinct eminent domain Minnesota Court of Appeals case helps tracts [were] adaptable to, and actually and permanently used work. spell out the rule in Minnesota for as, a single unitary tract” and that that question was a question contiguous properties. for the jury unless the evidence was conclusive.8

12 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org Minnesota follows the “before” and “after” rule, comparing the value of the property before the taking with the value after the taking in order to determine the property compensation.

In this case, the court overturned the district court because the evidence was not conclusive and genuine issues of material fact existed as to whether property was a single unitary tract. Disputes identified by the court of appeals included facts related to the shared driveway, lighting, utilities, and storm water systems; differing appraisers’ opinions; and the intent of the owner with respect to the development, irrigation, landscaping, and zoning, among other issues. In condemnation cases where the issue involves contiguous land, if there are disputed facts then the question of what land must be considered and compensated for will be a decision for the jury. It is vital in such cases that condemnation counsel closely follows the disputed facts and issues that may demonstrate a sufficient connection to claim damages. s

Notes 1 Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 875 (Minn. 2010). 2 U.S. Const. Amend. V; Minn. Const. art. I, § 13. 3 Victor Co. v. State, 290 Minn. 40, 44, 186 N.W.2d 168, 171–72 (1971). 4 State v. Strom, 493 N.W.2d 554, 558–59 (Minn. 1992). 5 J.D. Eaton, Real Estate Valuation in Litigation, 76 (2nd ed., Appraisal Institute 1995). 6 See Id.; Minneapolis – St. Paul Sanitary Dist. v. Fitzpatrick, 201 Minn. 442, 277 N.W.2d 394, 399 (1937). 7 County of Anoka v. Ramsey-Arbor Properties, LLC, No. A17-1060, 2017 WL 6567697 (Minn. Ct. App. 12/26/2017) (unpublished). 8 Id. at 2 (citing Victor Co. v. State, 290 Minn. 40, 41, 186 N.W.2d 168, 170–72 (1971)).

www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 13 ColleagueCorner | MEET JESSIE NICHOLSON

Why did you decide to go to law school? ‘Never forget Law school was not something that was on my radar as a child growing up, nor was it something I gave serious consid- eration to until much later. I had been teaching Spanish at where you the University of Northern Iowa in Cedar Falls for a couple of years when my husband announced that he was being asked to relocate to Sioux City, Iowa, by the company he was working came from’ at. Because that was not something he wanted to consider, he instead elected to see if there were openings in the same indus- try in Minnesota. He landed on his feet in the Twin Cities. But that left me without a job. So, after careful consideration and deciding not to pursue a doctorate that would have enabled me to be marketable at the university teaching level, I decided to switch careers. And the law seemed like an interesting option.

What brought you to legal aid work? One of the pastors at our church happened to also be the only African American judge on the district court bench in Black Hawk County, Iowa. He gave a sermon one Sunday to a group of us who were graduating from high school. And I will never forget his admonition to us: “For those of you out there who are fortunate enough to be heading to college, I want you to never forget where you came from. Whatever you do with your lives, always remember to give something back.” Though I didn’t do that in my first career as a Spanish teacher, Judge Parker’s words somehow reentered my mind and heart once I entered law school. I knew that I wanted to use my law degree to work on behalf of those who, in my mind, had historically limited access to our system of justice. I thought about pursuing a career as a public defender but ultimately decided on the civil side.

What’s the most rewarding facet of your work? The most frustrating? Having a staff of lawyers, paralegals, and other professionals who truly embrace the mission of legal aid brings me great joy. It is a privilege to work on their behalf to help SMRLS maintain its role as a respected provider of legal aid services to the disadvantaged. And I cannot really identify any single frustration other than the obvious frustrations faced by any non-profit: having adequate resources to meet the needs of the eligible client community.

What advice do you have for law students or newer lawyers thinking of working for legal aid? I think the best advice I can offer law students and new lawyers is to seek out opportunities to volunteer or intern with a legal aid provider. It is critically important that they develop a good understanding of the work as well as an understanding of the challenges faced by the client community.

What are the resources/opportunities that you’ve valued most as a member of the MSBA? JESSIE NICHOLSON has served as the chief executive officer of The networking opportunities. This allows me to be an effec- Southern Minnesota Regional Legal Services (SMRLS) since 2007 after tive ambassador for SMRLS. Another benefit I derive from be- having been employed as a staff attorney in various practice areas and ing a member of the association is the exposure to a broad array in an administrative capacity under SMRLS’s pioneer director, Bruce of CLE opportunities at a discount. As a public sector attorney, Beneke. She has devoted her entire legal career, since 1985, in service this is very important. Additionally, I have served on various to the disadvantaged in addressing their critical civil legal needs. committees and this has allowed me to help shape the direction of the association for the betterment of all its members. s

14 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org Memer Aatae as

Say hello to your benefi ts As an MSBA member you can receive substantial savings on MSBAdvantage programs aimed at helping you and your practice.

Start saving at: marorsots

0519 MSBA-Advantage flyer.indd 1 5/21/19 2:16 PM MORE THAN A RULE OF THUMB Your smartphone and the 5th Amendment

By Adam T. Johnson

ccording to the Pew Research Center, 77 percent apothegm—a line-up, a measurement of the body, and a hand- of Americans own a smartphone.1 These devices writing exemplar are all incapable of decrypting a device like a employ encryption technology when not in use, smartphone. Additionally, a line-up, a body measurement, and a and require a user’s passcode or other biometric hand-writing exemplar do not constitute acts of production that feature to unlock them. Encryption, though a may betray the contents of a person’s mind, and much, much Ablessing for domestic harmony, poses significant barriers to law more. So Diamond does bring us into new and important (and enforcement investigations.2 These barriers can be overcome, unsettled) territory. Diamond also begs a series of important ques- but it is not only technological barriers that prevent access to tions: If the 5th Amendment is not offended by the compulsory these devices. The courts, outpaced by technology—and that’s process of a thumbprint or fingerprint, is it also constitutional to fine, it’s not a knock—are grappling with applications of the 4th require a defendant to provide his smartphone passcode, either and 5th Amendments to a wide variety of searches and com- orally or in writing? If not why, why not? If so, how come? Was pulsory processes in the ever-evolving technological landscape. Diamond correctly decided? What lies ahead? It is the answers to Last year in State v. Diamond, the Minnesota Supreme Court these questions that I to take up presently. held as a matter of first impression that it is not a violation of the 5th Amendment for a district court to order a criminal The 5th Amendment defendant to provide a fingerprint or thumbprint so that his The clause from the 5th Amendment germane to this article smartphone may be unlocked.3 On the one hand, Diamond was is the one prescribing that no person shall be “compelled in any not a watershed case. Some might say Diamond presents as a criminal case to be a witness against himself.”5 The Minnesota somewhat conventional restatement of established Minnesota Constitution contains an identical clause in its Bill of Rights.6 law allowing for the compulsory production of some kind of In short, this clause bars the government from (1) compelling non-testimonial evidence, such as appearing in a line-up, having a defendant (2) to make a testimonial communication to the one’s body measured, or requiring a defendant to produce a state (3) that is incriminating.7 The constitutional foundation hand-writing exemplar.4 In this regard, Diamond is not all that underlying the privilege is the respect a government must ac- significant; it is not a cloudburst in 5th Amendment law. cord to the dignity and integrity of its citizens.8 The privilege On the other hand—and there are only two hands in this also helps to ensure the appropriate state-individual balance by

16 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org requiring the government to “shoulder stated by a federal district court in Illinois, Bard Tjoflat, U.S. Circuit Judge for the the entire load” in building and bringing a “[w]ith the touch of a finger, a suspect is 11th Circuit Court of Appeals, in In re criminal case.9 As stated by the Supreme testifying that he or she has accessed the Grand Jury Subpoena Duces Tecum Dated Court in Estelle v. Smith, “[t]he essence of phone before, at a minimum, to set up March 25, 2011 (In re Grand Jury Subpoe- this basic constitutional principle is the the fingerprint password capability, and na Duces Tecum herein). requirement that the [s]tate which pro- that he or she currently has some level of In Fisher, the Court considered two poses to convict and punish an individual control over or relatively significant con- Internal Revenue Service investiga- produce the evidence against him by the nection to the phone and its contents.”16 tions, one in the 5th Circuit and one in independent labor of its officers, not by It is unclear from the Minnesota Su- the 3rd Circuit, where the IRS sought to the simple, cruel expedient of forcing it preme Court’s opinion in Diamond what obtain voluntarily prepared documents from his own lips.”10 And so we can all evidence existed to connect Diamond that certain taxpayers had given to their remain silent, kind of.11 to the seized cellphone prior to his un- attorneys.22 In each investigation, the Over the course of our nation’s his- locking it. The opinion states only that IRS issued a summons requiring the tax- tory—but mostly during the 20th centu- the “police lawfully seized a cellphone payer's attorney to hand over the docu- ry—the 5th Amendment has been con- from [Diamond], a burglary suspect, ments, “which included an accountant's tinually revisited by jurists and scholars and attempted to execute a valid war- work papers, copies of the taxpayer's in innumerable contexts. It is a frequent rant to search the cellphone.”17 On the returns, and copies of other reports and guest in the case law, and it is only natu- topic of evidence connecting Diamond to correspondence.”23 In response, attor- ral that it would be. People, both defen- the phone, the court of appeals opinion neys refused to comply, invoking both the dant and officer, are wont to gab. In cases states that Diamond “was booked at the attorney-client privilege and their clients’ where the government seeks to compel Scott County jail, where staff collected 5th Amendment privilege against self- some kind of process (say, the production and stored his property, including his incrimination. The IRS then brought an of documents by way of a subpoena), the shoes and cellphone.”18 It may have been enforcement action in district court. physical act itself may implicate the pro- the case that Diamond’s possession and Turning to the question that matters tections of the 5th Amendment. This is control of the phone were undisputed— for our purposes here, the Supreme Court so because a physical act is deemed tes- or, stated differently, that police already treated the taxpayers as retaining pos- timonial when the act is a communica- knew that the phone belonged to Dia- session of the documents.24 The Court tion that “itself, explicitly or implicitly, mond, making any testimonial aspect in held that the taxpayers' act of production relate[s] a factual assertion or disclose[s] his unlocking it a “foregone conclusion.” could qualify as testimonial if conceding information.”12 In other instances, an act In any event, the Minnesota Supreme the existence, possession and control, may not be testimonial where the act pro- Court did not discuss this doctrine.19 In- and authenticity of the documents tend- vides “real or physical evidence” that is stead the Court stated that there was not ed to incriminate them.25 However, in “used solely to measure physical proper- “any communicative testimony inherent the cases before it, the Court concluded ties,” or where the act is used to “exhibit in providing the fingerprint.” This is a that the act of providing the subpoenaed physical characteristics.”13 potential crack in Diamond’s foundation, documents would not involve testimonial In these examples, a distinction exists which will be discussed more fully below. self-incrimination because the IRS was in between the testimonial act of producing “no way relying on the truth telling of the documents as evidence and the nontes- The “foregone conclusion” doctrine taxpayer.”26 This reasoning took root as timonial act of producing the body as The Supreme Court has marked out the foregone conclusions doctrine, which evidence. This is the distinction that led two ways in which an “act of production” the Court went on to explain as follows: our own to hold in is considered not testimonial. The first, Diamond, rightly or wrongly, that there as briefly identified above, exists where It is doubtful that implicitly admit- was nothing “testimonial” in requiring the act of production does not betray the ting the existence and possession the defendant to supply his fingerprint. contents or processes of a person’s mind of the papers rises to the level of As stated by the court in Diamond, there (their knowledge, thoughts, or beliefs). testimony within the protection of was not “any communicative testimony This is the theory that drove the decision the Fifth Amendment.... Surely the inherent in providing the fingerprint,” in Diamond. The second class of cases fall Government is in no way relying on and the act did not “reveal the contents into what has been coined the “foregone the ‘truth telling’ of the taxpayer of [the defendant’s] mind.”14 This is only conclusion” grouping. Under this doc- to prove the existence of or his partially true, which is a variant on say- trine, an act of production is not testimo- access to the documents. The ex- ing this may not be true at all. You see, nial, even if the act conveys a fact regard- istence and location of the papers Diamond provided his fingerprint directly ing knowledge, thoughts, or beliefs—say, are a foregone conclusion and the onto a seized phone during a court pro- the existence or location of subpoenaed taxpayer adds little or nothing to ceeding after being held in civil contempt materials, or ownership over a passcode- the sum total of the Government's and warned about the consequences of protected device—if the government can information by conceding that he criminal contempt. show with “reasonable particularity” that, in fact has the papers. Under these In providing his fingerprint onto the at the time it sought to compel the act of circumstances by enforcement of seized device, Diamond committed an production, it already knew of the mate- the summons ‘no constitutional “act” that was testimonial in nature: His rials, thereby making any testimonial as- rights are touched. The question is unlocking of the phone with his finger pect a “foregone conclusion.”20 not of testimony but of surrender.’27 established that the phone, in fact, be- There are two seminal Supreme Court longed to him. In other words, the act cases that gave rise to, and solidified, the Twenty-four years after Fisher and sev- conceded that the phone was at one foregone conclusion doctrine: Fisher v. en years before the first iPhone, the Court time in his possession and control, and United States and United States v. Hub- decided Hubbell.28 In Hubbell, a grand jury authenticated either ownership or access bell.21 Both of these cases are excellently investigating the activities of the White- to the phone and all of its contents.15 As summarized by the Honorable Gerald water Development Corporation issued www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 17 a subpoena duces tecum requiring Hub- stand on his 5th Amendment right to not nial act of production. What matters for bell to provide certain documents. In re- incriminate himself through the testimo- the nonce is the court’s second conclu- sponse, Hubbell invoked his 5th Amend- nial act of producing documents the gov- sion—that the government fell short in ment privilege, so the government did ernment was not privy to. its knowledge base, thereby placing In re him the kindness of obtaining a district Judge Tjoflat discussed both of these Grand Jury Subpoena Duces Tecum outside court order granting him immunity.29 decisions in In re Grand Jury Subpoena the “foregone conclusion” class of cases. Hubbell then complied with the subpoe- Duces Tecum. There, as revealed in part Persuasive to the court was the fact na and turned over 13,120 pages of docu- by its name, a grand jury investigating that the government could not articulate, ments.30 Not long after that, Hubbell was child pornography issued a subpoena at least to the court’s satisfaction, that it indicted for several federal crimes. duces tecum to an individual (the target knew whether any files were located on Hubbell moved to dismiss the indict- of the investigation, referred to as “John the hard drives, and what’s more, whether ment, arguing that the government could Doe”) requiring him to produce the de- Doe was capable of accessing the encrypt- not convict him without the documents crypted contents of his laptop computers ed portions of the drives (a curious finding, that had been provided after the grant and external hard drives.34 After Doe as- as it was undisputed that the hard drives of immunity. The district court held a serted his 5th Amendment privilege, the belonged to Doe).41 The problem for the hearing, determined that the government government sought, and the district court court, therefore, was principally that the could not show that it had knowledge of granted, Doe “act-of-production immu- government did not know what, if any- the contents of the documents from a nity.”35 This immunity was said to “con- thing, was held on the encrypted drives. source other than the documents them- vey immunity for the act of production This hang-up by the court was likely a selves, and dismissed the indictment.31 of the unencrypted drives, but [did] not result of reading too much into certain On review, the Supreme Court concluded convey immunity regarding the United language from Hubbell, where the govern- that Hubbell's act of production was suffi- States’ [derivative] use” of the decrypted ment was asking a person to retrieve and ciently testimonial to trigger 5th Amend- contents of the drives.36 Doe was later produce to the government documents ment protection because knowledge of incarcerated for contempt when he ap- the government was unaware of entirely. the implicit testimonial facts associated peared before the grand jury and refused But the provision of a passcode and with his act of production was not a fore- to decrypt the drives. the physical retrieval of documents are gone conclusion.32 In this way, the Court In In re Grand Jury Subpoena Duces Te- two very different things. In Professor in Hubbell distinguished Fisher. As stated cum, Doe was tracked by police to a hotel Orin Kerr’s estimation, the 11th Circuit’s by the Court: room in California as part of a child por- error was in “applying language from cas- nography investigation. A search warrant es compelling disclosure of broad classes Whatever the scope of this ‘fore- issued allowing law enforcement to seize of documents to the very different case gone conclusion’ rationale, the all digital media, as well as any encryp- of an order to enter a password to unlock facts of this case plainly fall outside tion devices or codes necessary to access a computer.”42 Professor Kerr went on to of it. While in Fisher the Govern- such media. Officers seized two laptops state that the error is subtle, but critical, ment already knew that the docu- and five external hard drives. The FBI writing, “[i]t’s subtle because both cases ments were in the attorneys' pos- analyzed the digital media, but was un- involve steps that lead to the government session and could independently able to access portions of the hard drives. accessing a lot of documents. If you look confirm their existence and au- Later, a grand jury issued a subpoena du- at the cases from 30,000 feet, they look thenticity through the accoun- ces tecum requiring Doe to produce the kind of similar. But the error is critical tants who created them, here the “unencrypted contents” of the digital because the testimonial aspects of pro- Government has not shown that it media, and “any and all containers or duction in the two cases are vastly differ- had any prior knowledge of either folders thereon.”37 Interestingly, and of ent.”43 Professor Kerr goes on to illustrate the existence or the whereabouts importance, the fact that the hard drives this distinction in the foregone conclu- of the 13,120 pages of documents belonged to Doe was not in dispute.38 In- sion cases as follows: ultimately produced by respondent. stead of arguing that his act of production The Government cannot cure this would establish ownership, Doe argued In particular, the idea that the deficiency through the overbroad that by decrypting the hard drives, he government must have some idea argument that a businessman such would be testifying that he, as opposed to about what files exist and where as respondent will always possess someone else, placed the contents onto they are located makes sense when general business and tax records the hard drives, encrypted the contents, the government has an order re- that fall within the broad categories and could retrieve them. Thus, the ques- quiring the suspect to hand over a described in this subpoena.33 tion before the court was “whether Doe’s described set of files—but it makes act of decryption and production would no sense when the government Beyond paper documents have been testimonial.”39 is requiring the suspect to enter a So far, I have examined two act-of- In answering this question, the court password to access those files itself. production cases in which the govern- looked to both Fisher and Hubbell, and When the government is relying on ment sought physical documentary re- ultimately concluded that “(1) Doe’s de- the target to go through his stuff cords either in the possession of a person cryption and production of the contents and say which files are responsive or thought to be in the possession of a of the drives would be testimonial, not to a request, the government is person. In Fisher, the documents were merely a physical act; and (2) the explicit obtaining the suspect’s testimony known to exist, and the taxpayer’s testi- and implicit factual communications as- about what files exist and which monial act of providing the documents sociated with the decryption and pro- files are responsive. The suspect added nothing to the government’s case. duction are not foregone conclusions.”40 has a Fifth Amendment privilege In Hubbell, conversely, the existence of The first conclusion is of little debate, unless that testimony about exis- the documents was not a foregone con- as everyone can agree that the physical tence and location of the sought- clusion, and the defendant was able to act of producing a passcode is a testimo- after files is a foregone conclusion.

18 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org When the court order only compels Computer was not a retrenchment from the password to an encrypted electronic the suspect to enter a password, on the 11th Circuit’s framework. Instead, device is that the defendant knows the the other hand, the government is the 3rd Circuit simply found that the password, and can therefore access the not obtaining the suspect’s testi- government provided “evidence to show device.”47 The court in Jones, consistent mony about what documents ex- both that files exist on the encrypted por- with Professor Kerr’s analysis, deemed ir- ist, where they are, and whether tions of the devices and that Doe [could] relevant whether the government knew they comply with the court order. access them.”45 Thus, while the 3rd Cir- what the contents of the phone were The only implicit testimony is, “I cuit did in fact look to the testimonial act because the only testimonial act was know the password.” What files of production inherent in the decryption whether the defendant knew the pass- exist, where, and what they say is itself, the court was persuaded by the fact code. Thus, under Jones, the government distinct from that. The government that the government had a significant in Massachusetts needs only to establish has to find that out on its own. knowledge base of what was contained “that a defendant knows the password to The government has to search the on the hard drives in question. This fact decrypt an electronic device before his computer and look for the records drove the outcome. or her knowledge of the password can described in the warrant. It isn’t re- be deemed a foregone conclusion under lying on the defendant’s testimony The present state of things the Fifth Amendment….”48 Under Mas- about what is on the computer be- The analysis from the 11th and 3rd sachusetts law, to succeed in compelling cause entering in the password does Circuits was not followed earlier this a defendant to decrypt a device, the gov- not imply any testimony about that. year, when the Supreme Judicial Court of ernment must show that the defendant Massachusetts decided Commonwealth v. knows the password beyond a reasonable In his 2016 article, from which I have Jones, in line with the analysis advocated doubt. In deciding on this evidentiary quoted above, Professor Kerr voiced his for in Professor Kerr’s article.46 In Jones, standard, the court in Jones concluded hope that “courts faced with this issue the government was interested in viewing that using any lower standard of proof don’t just assume that the 11th Circuit’s Jones’s lawfully seized cellphone for evi- would create a “greater risk of incorrectly analysis was correct.” At the time, there dence in his prosecution for human traf- imputing knowledge to those defendants was a case with a similar question pend- ficking and prostitution-related offenses. who truly do not know the password.” ing in the 3rd Circuit. In that case, U.S. v. In resolving the 5th Amendment ques- A survey of courts reveals a divide Apple MacPro Computer, the 3rd Circuit tion, the Supreme Judicial Court of Mas- on whether, and to what extent, the affirmed the district court’s order compel- sachusetts held that “[i]n the context of 5th Amendment is implicated in an as- ling decryption—a disparate result from compelled decryption, the only fact con- sortment of situations involving the the 11th Circuit.44 And yet, Apple MacPro veyed by compelling a defendant to enter compelled production of passcodes and

Lemon Law Consumer Rights Lawyers

Thank you for your referrals over the last 19 years

All products handled – cars, trucks, motor homes and others. Please continue to call on us if you know of someone with a lemon vehicle.

o ate

1 11 www.lemonlawminnesota.com • www.gadtkelawfi rm.com

www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 19 biometric unlocking features for the pur- various means of decryption. Addition- conclusion in Diamond, but the Court pose of decryption. For example, a fed- ally, this framework has proven both its should have recognized the inherent tes- eral district court in Illinois ruled that wisdom and its functionality over time, timonial qualities associated with the act the 5th Amendment bars the compelled as technology evolves. This framework of production. Looking ahead, under Dia- production of an individual’s fingerprint imposes a two-part test of asking (1) mond, the 5th Amendment is no bar to for the purpose of unlocking a device whether the given act is testimonial or the police entering a home with a search (this was the opposite of the conclu- non-testimonial; and (2) if the act is tes- warrant to seize all devices, and then sion reached by our own state Supreme timonial, whether the testimony inherent requiring all occupants, whether two or Court in Diamond).49 In the Illinois case, in the act is a foregone conclusion. 20 in number, to place their thumbs and the court stated that it did “not believe Our own state Supreme Court did fol- fingers on the devices seized to establish that a simple analogy that equates the low this framework in the Diamond case, ownership (earlier this year, a federal dis- limited protection afforded a fingerprint but concluded that the provision of a fin- trict court in California held that the 5th used for identification purposes to forced gerprint is a non-testimonial, physical act Amendment bars this precise activity by fingerprinting to unlock an Apple elec- per se. It may well have been that, had our police).52 At the time Diamond was de- tronic device that potentially contains Court concluded that the production of cided, the Minnesota Supreme Court ob- some of the most intimate details of an Diamond’s fingerprint constituted a tes- served that neither the Supreme Court of individual's life (and potentially provides timonial act, the same result would have the United States nor any state Supreme direct access to contraband) is supported been reached. After all, the fact that Dia- Court had addressed the issue present- by Fifth Amendment jurisprudence.”50 In mond’s smartphone belonged to him may ed.53 In the one year and some months another case, a federal district court in have been a foregone conclusion, thus since Diamond, several courts have cast the District of Columbia ruled that the voiding any claim that Diamond’s 5th doubt on Minnesota’s rule, including the 5th Amendment is no bar to the govern- Amendment right was violated. Supreme Judicial Court of Massachusetts, ment securing a warrant to search and Diamond was incorrectly decided, in the Indiana Court of Appeals, and the seize devices in a home and at the same my estimation, because the Court failed federal district courts mentioned above.54 time compelling a specific person therein to appreciate the testimonial qualities in- The United States Supreme Court has to supply their fingerprints, face, and iris- herent in the act of production, namely, yet to resolve the debate. es to unlock devices seized.51 the production of one’s fingerprint. The The decision in Jones imposes the This article has focused primarily on testimony in the act is, “my fingerprint dual testimonial act/foregone conclusion the dual testimonial act/foregone con- decrypts or ‘unlocks’ this device,” and “I framework, and supplies a high clusion framework because it appears to previously set up this encryption.” Again, evidentiary standard of proof before the be best suited for application across the this testimony may have been a foregone government may compel some form of

R

You can trust over 35 years of experience protecting lawyers.

There is a reason MLM is the only professional liability insurance carrier endorsed by the MSBA.

Put your trust in the carrier • Works exclusively with lawyers professional created by lawyers, liability insurance • Specializes in solo to mid-size firms run by lawyers, • Returned over $60 million in profits to exclusively serving lawyers. policyholders since 1988 • Offers an array of services to mitigate risks

Get a fast quote today! www.mlmins.com Protecting Your Practice is Our Policy.® or contact Chad Mitchell-Peterson 612-373-9681 or [email protected]

20 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org MN Bench and Bar 2019 decryption process. But the problem with Jones is that it involved compelled Notes decryption by requiring the defendant to actually enter his passcode, rather 1 Mobile Fact Sheet, Pew Research Ctr.: Inter- 25 Id. at 410. than supply his finger or thumbprint. net & Tech. (2/5/2018). 26 Id. at 411. The former seems to require a person 2 Orin Kerr & Bruce Schneier, Encryption 27 Id. (quoting In re Harris, 221 U.S. 274, 279 to disclose the contents of their mind, Workarounds, 106 Georgetown Law Journal (1911)). whereas the latter does not. This is not an 989 (2018). 28 United States v. Hubbell, 530 U.S. 27 insignificant distinction. In Hubbell, the 3 State v. Diamond, 905 N.W.2d 870 (2000). Supreme Court analogized the assembly (Minn. 2018). 29 United States v. Hubbell, 530 U.S. at 31. of subpoenaed documents to “telling an 4 Minn. R. Crim. P. 9.03, subd. 2(1). 30 Id. inquisitor the combination to a wall safe,” 5 U.S. Const. amend. V. 31 Id. at 31-32. rather than “being forced to surrender 6 Minn. Const. art. I, §7. 32 Id. at 44-45. the key to a strongbox.”55 In conveying 7 Fisher v. United States, 425 U.S. 391, 408 33 Id. the combination to a wall safe, rather (1976). 34 In re Grand Jury Subpoena Duces Tecum, 670 than surrendering a key to a strongbox, a 8 Schmerber v. California, 384 U.S. 757, 762 F.3d at 1337. person must use the “contents of [their] (1966). 35 Id. at 1338. own mind.”56 Once the contents of a 9 Miranda v. Arizona, 384 U.S. 436, 460 36 Id. person’s mind are involved, it should be (1966). 37 Id. at 1339. axiomatic that the 5th Amendment 10 Estelle v. Smith, 451 U.S. 454, 462 (1981). 38 Id. prevents those processes, in the absence 11 See e.g. State v. Borg, 806 N.W.2d 535 39 Id. at 1342. of immunity, from being compelled into (Minn.2011) (holding, as a matter of first 40 Id. at 1346. oral or typewritten existence.57 Even impression, that the 5th Amendment privi- 41 Id. if ownership of the device is a foregone lege against compelled self-incrimination 42 Orin Kerr, “The Fifth Amendment Limits conclusion, compelling a person to did not prevent the state from presenting on Forced Decryption and Applying the reveal the contents of their mind and evidence during its case in chief of a defen- ‘Foregone Conclusion’ Doctrine,” Wash. supply their passcode from the mind’s dant's failure to respond to a letter sent by a Post, 6/7/2016 (https://www.washingtonpost. inner sanctum runs afoul of the Supreme police sergeant). com/news/volokh-/wp/2016/06/07/ Court’s pronouncement in Estelle v. 12 Doe v. United States, 487 U.S. 201, 209-10 the-fifth-amendment-limits-on-forced-decryp- Smith—that the state cannot resort to (1988) (Doe II). tion-and-applying-the-foregone-conclusion- the expedient of forcing evidence from a 13 United States v. Dionisio, 410 U.S. 1, 7 doctrine/) (last visited 4/8/2019). person’s lips. (1973); United States v. Wade, 388 U.S. 218, 43 Id. In the end, I conclude that the 5th 222 (1967). 44 U.S. v. Apple MacPro Computer, 851 F.3d Amendment should provide an unquali- 14 Diamond, 905 N.W.2d at 875-76. 238 (3rd Cir. 2017). fied bar, in the absence of a grant of im- 15 In the Matter of the Search of a Residence in 45 Id. at 248. munity, to the government compelling a Oakland, California, 354 F.Supp.3d 1010 46 Commonwealth v. Jones, 117 N.E.3d 702 person to provide a decryption password (N.D. Cal. 1/10/2019). (Mass.2019). or passcode, irrespective of whether the 16 In re Application for a Search Warrant, 236 47 Jones, 117 N.E.3d at 705. testimonial act of production is a foregone F.Supp.3d 1066, 1073 (N.D. Ill. 2/16/2017). 48 Id. conclusion. If one is protected from telling 17 Diamond, 905 N.W.2d at 871. 49 In re Application for a Search Warrant, 236 an inquisitor the combination to a wall 18 State v. Diamond, 890 N.W.2d 143, 145-46 F.Supp.3d 1066 (D. N.D. Ill.) (2/16/2017). safe, one should also be protected from (Minn.App.2017). 50 Id. at 1073-1074. telling an inquisitor the combination to a 19 In a footnote, the court in Diamond cited to 51 Matter of Search of [Redacted] Washington, smartphone. In both instances, the con- a foregone conclusion case, but did so paren- District of Columbia, 317 F.Supp.3d 523 (D. tents of the person’s mind are revealed, thetically and without application to the case D.C. 6/26/2018). and that should be the end of the debate. before it. Diamond, 905 N.W.2d at 878, n. 1. 52 In the Matter of the Search of a Residence in In other cases—those involving bio- 20 In re Grand Jury Subpoena Duces Tecum Oakland, California, 354 F.Supp.3d 1010 metric features like fingerprints, thumb- Dated March 25, 2011, 670 F.3d 1335, 1346 (N.D. Cal. 1/10/2019). prints, iris scanning, and facial recogni- (11th Cir. 2012). 53 Diamond, 905 N.W.2d at 871. tion—the dual testimonial act/foregone 21 Fisher, supra; United States v. Hubbell, 530 54 Seo v. State, 109 N.E.3d 418 (Ind. Ct. App. conclusion framework, coupled with U.S. 27 (2000). 2019). the evidentiary standard from the Jones 22 Fisher, 425 U.S. at 393–94 55 Hubbell, 530 U.S. at 43. case, strikes the right balance. To begin, 23 In re Grand Jury Subpoena Duces Tecum, 670 56 Id. it creates a straightforward 5th Amend- F.3d at 1342 (citing Fisher, 425 U.S. at 394). 57 Schmerber v. California, 384 U.S. 757 (1966). ment rule. Additionally, it tends in the 24 Fisher, 425 U.S. at 405. direction of requiring the government to “shoulder the entire load” in building and bringing a criminal case. It also avoids of technological development, it should the tendency, witnessed in some judicial not be bent and forged anew. It remains decisions of late, to bend the 5th Amend- to be seen what the Minnesota Supreme ment ever closer to the 4th, with argu- Court will do—assuming the question is ments grounded in well-meaning, but in not first answered by the United States ADAM T. JOHNSON the end constitutionally elusive, privacy Supreme Court—when presented with is an attorney at concerns. The 5th Amendment either the same facts as Diamond but where the Lundgren & Johnson fits, or it does not fit. And while it should government seeks a passcode rather than in Minneapolis. be flexible in order to meet the exigencies a fingerprint. s [email protected] www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 21 The Guns Aren’t Illegal. But Sometimes the Owners Are.

Understanding Minnesota's private-transfer exception suggests the best path to reducing gun violence

By Aaron Edward Brown

22 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org ast October, Kanye West was are many categories of ineligible persons there were transfer affidavits in only 119 asked during a meeting with for purposes of our federal laws, instances. Although some of these now- President Trump and former NFL and even more categories if individual prohibited individuals ended up relin- legend Jim Brown how to fix the states’ ineligibility categories are parsed quishing or disposing of their now “illegal” gunL violence problem in Chicago. Kanye out.6 Broadly, though, it is illegal for all without filing the requisite affida- responded by saying, “The problem is il- individuals to sell or transfer7 a firearm to vit, many of them simply end up holding legal guns. Illegal guns is the problem, anyone who on to their firearms until a different inter- not legal guns. We have the right to bear vening event occurs (one that typically arms.” Bradley Buckles, the former direc- 1) has been convicted of (or is involves an arrest after a violent crime).13 tor of the Bureau of Alcohol, Tobacco, currently indicted for) a felony; Private transfers: The private-trans- and Firearms (ATF), made a subtly dif- 2) is a fugitive from justice; fer exception (also commonly referred to The Guns Aren’t Illegal. ferent point almost two decades earlier, 3) is an unlawful user or addict of as the gun-show loophole or the private- when he noted that “[v]irtually every gun a controlled substance;8 sale loophole) allows for a non-licensed [used in a crime] in the United States 4) has been committed to a mental individual to transfer (give, sell, lend) fire- starts off as a legal firearm.” (Emphasis institution or adjudicated mentally arms to a different individual in the same But Sometimes the added.) Essentially all the research over defective; state without going through the normal the past three decades supports Buckles’s 5) is an alien; requirements that would apply to a fed- statement that firearms become illegal 6) has been dishonorably erally licensed firearm dealer (formally because an individual who eventually ob- discharged from the Armed Forces; known as a Federal Firearms Licensee, tains the firearm is an ineligible possessor 7) has renounced their United or FFL)—requiring the transferee to fill Owners Are. of the firearm and not because the firearm States citizenship; out an ATF form 4473 and submit to a itself was per se illegal. 8) is subject to a qualified order for background check.14 A “non-licensed” But what about Kanye and his “illegal protection; or seller under federal law is someone who gun”? Is it one that is illegal because the 9) has been convicted of a does not “engage in the business of selling Understanding Minnesota's private-transfer exception possessor is ineligible under federal, state, misdemeanor crime of domestic firearms.”15 or local law? Or is it one that would be violence. These sellers will not face criminal re- suggests the best path to reducing gun violence illegal for anyone to possess regardless of percussions under federal law as long as their status under the law? This distinc- Minnesota, for example, includes the seller does not know, or does not have tion is the first step in understanding many of the federal firearm prohi- a reasonable basis to know, that the buyer By Aaron Edward Brown which policy options have an opportunity bitions in its state law dealing with is prohibited under federal, state, or lo- to successfully reduce gun violence in ineligible firearm possessors,9 but cal law from possessing firearms.16 Pri- Minnesota and the United States. Minnesota has also expanded the pro- vate transfers represent a big problem in In the United States we have what hibitory statuses in many areas, includ- affording ineligible individuals access to some might call a patchwork of firearm ing an expanded category of misde- firearms. Many states have experimented laws. Although the federal government meanor crimes and certain drug crimes.10 with ways to curb unauthorized transac- has passed firearm laws that apply to the tions via the private-transfer exception, country as a whole, most states also have Access to firearms by ineligible such as enacting statewide universal their own laws regulating firearms. Under possessors background checks or, in the case of Min- federal law, there are several statutes that As the foregoing suggests, there are nesota, by establishing criminal penalties attach specifically to firearms, as opposed many categories of ineligible people for for firearm sales when the purchaser later to the possessor of the firearm. For exam- purposes of Minnesota and federal fire- uses the firearm in a violent crime.17 ple, firearms manufactured without serial arm laws. In fact, the number of ineligible Straw purchases: A straw buyer is a numbers1 or firearms with altered or oblit- persons for purposes of our federal firearm person who purchases a firearm on behalf erated serial numbers are “illegal” firearms laws is well into the tens of millions.11 So of another person. Straw purchases at a regardless of their possessor’s status.2 It is the question now becomes, how do these federally licensed firearm dealer (FFL) also illegal to possess or manufacture cer- ineligible people get access to firearms? violate federal law because firearm pur- tain types of , such as fully auto- The answer is by exploiting loopholes in chases, in general, require the “buyer” to matic firearms (commonly referred to as our laws. answer—among other things—whether “machine guns”),3 sawed-off shotguns, Intervening events: Some people buy they are “the actual transferee/buyer of and sawed-off rifles, as well as certain ac- a firearm while they are eligible and then, the firearm(s) listed on [the] form.”18 If cessories such as firearm suppressors, un- during the time they own that firearm, the “buyer” answers no on this question, less you fall under certain limited excep- do something that makes them ineligible. then the FFL is precluded from selling to tions.4 Another example of federal firearm Many states have no process in place for that buyer. Of course, this question—like law that applies to the firearm—regardless requiring firearm relinquishment, which all of the other questions on the ATF of the status of the possessor—is the ban means that the now-ineligible person will form 4473—is not asked during private on manufacturing, importing, selling, or keep their firearm indefinitely until they transactions because federal law does not possessing any firearm not detectable by have an interaction with police or volun- require form 4473 or a background check airport security devices.5 tarily relinquish the firearm(s). This hap- for a private transfer, and many states But most of the federal firearm crimes pens frequently in the state of Minnesota. don’t have a background check or ATF- committed and charged do not involve One common intervening event involves form 4473-like requirement for private machine guns, sawed-off shotguns, or the issuance of an order for protection.12 transactions. Straw purchases represent firearms with defaced serial numbers. In- One investigative report found that in a big problem, with one ATF study from stead, at least a bare majority—if not sub- 2016 alone, there were 2,937 orders for the turn of the century concluding that stantially more—of these crimes are com- protection cases in Minnesota that re- the most common channel for illegal traf- mitted by guns that are “legal” firearms quired firearm relinquishment as a mat- ficking of firearms was through straw pur- possessed by an “ineligible person.” There ter of law. Yet of those nearly 3,000 cases, chases.19

www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 23 Stolen firearms: Firearms are fre- quently stolen from both private individ- uals and gun stores, and these weapons make up an estimated 10-15 percent of all guns used in crimes.20 In fact, from the beginning of 2012 to the end of 2015, it was estimated that approximately 1.2 mil- lion firearms (worth nearly half a billion dollars) were stolen.21 Stolen guns pose a significant risk to society, as they usually end up on the underground market— where they spend years being transferred between people until the web of trans- fers ends with someone who commits a violent crime with the stolen firearm.22 One potential problem that muddies the stolen-firearm statistics is that many individuals who have firearms stolen do not report the ; when they are later contacted by police, after the firearm has been traced, they are unable to identify when or where the firearm was stolen. The frequency with which this happens has caused many experts to infer that after-the-fact claims of theft are a com- mon way for straw buyers to try to avoid criminal liability.23 Also worth mentioning are black-mar- ket sales and illegally imported or manu- factured firearms. The prevailing thought is that both of these occurrences are customary ways for criminals to obtain firearms—but they aren’t. Illegally im- ported or manufactured firearms are not that common; a vast majority of firearms begin their life being sold legally from an FFL, incuding almost all of the firearms that will eventually end up in a criminal’s hand.24 So too with black-market sales, which is defined as a sale that the seller knows is illegal under federal law.25 Although the vast majority of firearms originally enter the stream of commerce with an FFL selling it to an individual af- ter a background check and paperwork, these firearms are simply too easy to di- vert out of the legal stream through straw purchases, private transfers, or theft. Al- recent survey of 1,613 gun owners found sent to a local FFL—in compliance with though any firearm being transferred to a that 42 percent had acquired their most federal law—where he would fill out the prohibited person is deeply concerning, recent firearm without a background required paperwork and take possession perhaps the most worrisome method em- check.27 Suffice it to say a large number of the firearms. Within days he would ployed is the private-transfer exception of people—people with good intentions then turn around and sell those firearms because of the volume of firearms and and people with bad intentions—use the on Armslist.com without a background lack of regulation at the federal level. A private-transfer exception to acquire fire- check or evidence of a permit from the 2012 study published in the peer-reviewed arms. transferee. Feldman engaged in over 40 journal Injury Prevention found that 96 Almost three years ago, Eitan Benja- separate transactions during the three percent of inmates who were convicted min Feldman was indicted by the United years preceding his indictment, and at of firearm-related offenses obtained their States Attorney for the District of Min- least three of the firearms he sold were firearms through an unlicensed private nesota.28 His crime, one that had been used in violent crimes—some just days seller.26 This should come as little sur- charged only twice in the preceding after being transferred. If Feldman had prise: Private firearms purchases are fairly decade by all of the United States At- just sold a few guns over the same time common amongst all gun owners, with torney’s Offices combined, was illegally period, he would likely not have been one 2017 study concluding that 22 per- selling firearms without a license. Feld- charged under federal law. cent of current U.S. gun owners who ac- man committed this crime by purchasing In Minnesota, unlike many other states quired a firearm within the past two years firearms through online-licensed auction that allow the private-transfer exception, did so without a background check, and a sites. He would then have those firearms certain private transfers can be a little

24 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org more difficult when the purchaser wishes Universal background check: Min- background option. So while legal guns to find a handgun or semiautomatic mili- nesota also has the option to pass a may not be the problem, the ease with tary-style assault . This is because universal background check, like those which anyone, including those with the the transferor will risk some backend already enacted in New Jersey, Connecti- worst of intentions, can obtain a “legal criminal liability29 if a handgun or assault cut, and a few other states.34 This type of firearm” certainly is. It is long past time weapon is transferred privately without legislation would require a background that we require, at the very least, that a verification that the transferee was legally check for all transfers involving firearms, seller who does not know their potential able to purchase the handgun or assault regardless of the type of firearm or the buyer perform, or ask a governmental weapon.30 As a consequence, finding peo- terms of the transfer. entity to perform, a cursory due diligence ple in Minnesota willing to sell a handgun Universal permit to purchase: Min- check to ensure the transferee is not or assault weapon without verifying the nesota might also consider requiring per- prohibited before transferring them transferee’s permit to purchase or permit mits to purchase instead of background a lethal weapon. Transferors may not to carry can be somewhat burdensome.31 checks. A permit-to-purchase regime feel responsible to protect society, but would operate in essentially the same forgoing any sort of verification of status Policy options fashion, because in order to receive a is a stunning example of gross negligence, With federal inaction leaving the pri- permit to purchase, the licensing author- which will likely continue to contribute vate-transfer exception firmly in place,32 ity would perform a background check to increasing fatalities (and injuries) due it is up to states to decide for themselves on the individual.35 In Minnesota, we al- to gun violence—a statistical category how to modify the private-transfer excep- ready have this requirement to a certain that now accounts for more deaths in tion to ensure the exception is not being degree.36 To buy either a handgun or as- Minnesota than either traffic crashes or abused by ineligible persons. The follow- sault weapon from an FFL, the individual opioid overdoses.39 s ing are several ideas on how the state of must have either a permit to purchase or Minnesota could proceed in shoring up a permit to carry (which acts as a de facto the private-transfer exception. permit to purchase as long as it is active). Armslist and gun show background But no permit is required for a private checks: Minnesota has the option of tak- sale, even if the firearm is a handgun or ing key provisions from the almost suc- assault weapon.37 cessful federal legislation known as the Mandatory FFL facilitation: Finally, Manchin-Toomey Public Safety & 2nd perhaps the most stringent option Amendment Rights Protection Act— Minnesota could consider is a mandatory which, in relevant part, mandated that FFL facilitation bill. Such a law would sales at gun shows and through online require all transfers (including private platforms like Armslist would require a transfers) to proceed through an FFL, AARON EDWARD BROWN background check.33 But the bill contin- which would then require the transaction is an associate in Ballard ues to exempt friends, family members, to comply with all of the federal laws for Spahr’s business and neighbors, etc. from a background check. FFL transfers, including a background finance department. He This approach represents a compromise check, completion of ATF form 4473, advises public and private that tried to recognize the importance of and having the FFL keep certain records entities in connection with stopping the abuse of the private-transfer regarding the transaction.38 mergers, acquisitions, and exception while allowing people to re- In assessing these options, Minnesota sales. His past legal schol- tain the right to transfer firearms to their could decide to include and exclude arship has explored issues including domestic friends and acquaintances—which is infi- certain weapon classes (e.g., rifles or violence, firearm regulation, and public policy nitely more reasonable than transferring shotguns) and certain relationships issues. Questions or comments can be directed to a firearm to some random person you just (parent-child, grandparent-grandchild, 612-371-3221 or via email. met on the internet. sibling, etc.) from any permit or [email protected]

www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 25 Notes

1 There remains an exception for registering 16 See 18 U.S.C. §922(d) (“It shall be unlawful brought against St. Paul man accused of il- and placing a serial number on a firearm that for any person to sell or otherwise dispose legally selling guns online” (2/18/2016) http:// you manufactured under federal law. of any firearm or ammunition to any person www.startribune.com/federal-charges-brought- 2 See 18 U.S.C. §922(k); 26 U.S.C. §5861(i). knowing or having reasonable cause to be- against-st-paul-man-accused-of-illegally-selling- 3 26 U.S.C. §5861(d). lieve that such person [is prohibited].”) guns-online/369301451/ . 4 To be owned by an individual, that individual 17 In Minnesota, when someone other than 29 See infra note 17. It is possible that Feldman must apply for approval from the ATF, pass a federally licensed firearm dealer transfers could have been charged under this statute, several fairly involved background checks, a pistol or semiautomatic military-style if the following conditions were met: 1) The register the weapon in the National Firearms assault weapon to another without comply- transferee was prohibited at the time of trans- Registration and Transfer Act, and pay for the ing with the transfer requirements of Minn. fer; 2) the transferee committed a qualifying corresponding tax stamp. Stat. §624.7132, they are guilty of a gross violent crime within a year of the transfer; 5 18 U.S.C. §922(p). misdemeanor if the transferee possess or uses and 3) the weapon transferred was a handgun 6 For example, Minnesota generally prohibits the weapon within one year after the transfer or assault weapon. many of the same categories as the federal law in furtherance of a felony crime of violence, 30 This verification process will commonly but also includes additional categories like as long as the transferee was prohibited from consist of either a permit to purchase or a being on the “gang list.” possessing the weapon under Minn. Stat. permit to carry because either one of these 7 It is also a crime for a buyer to purchase a §624.713 at the time of the transfer, or it verify that the transferee is able to purchase a firearm when they are ineligible to possess or was reasonably foreseeable at the time of the handgun or assault weapon at the time of the receive the firearm under a similar version of transfer that the transferee was likely to use or transfer. Minnesota law also requires that the these categories. 18 U.S.C. §922(g)(1)-(9). possess the weapon in furtherance of a felony transferor verify the identity of the transferee. 8 And unfortunately for Minnesotans—and crime of violence. Minn. Stat. §609.66. Minn. Stat §624.7132. residents of 29 other states—that means 18 For an example of Form 4473 see https:// 31 The author of this article reached out to anyone who uses medical marijuana. www.google.com/search?q=form+4473&s around eight people on Armslist.com before 9 Minn. Stat. §624.713, subd. 1(10)(i)-(viii). ourceid=ie7&rls=com.microsoft:en-US:IE- he found someone willing to sell him a hand- 10 See Minn. Stat. §624.713, subd. 1 (11) (those Address&ie=&oe=. gun without evidence of a permit to purchase, convicted of gross-misdemeanor level crimes 19 Department of Justice Bureau of Alcohol, carry, or a background check and within 24 that were crimes committed for the benefit Tobacco, Firearms and Explosives, A Progress hours after initial contact was made. The of a gang, assaults motivated by bias, false Report: Gun Dealer Licensing and Illegal Gun transfer was for a Springfield XD 45 pistol imprisonment, neglect or endangerment of a Trafficking (1997). and 150 rounds of ammunition for the very child, burglary in the fourth degree, setting a 20 Dan Noyes, “How Criminals Get Guns,” reasonable price of $345. spring gun, , and stalking—but they are Center for Investigative Reporting, PBS.com, 32 The last meaningful attempt was made in eligible again if it has been more than three https://www.pbs.org/wgbh/pages/frontline/shows/ the shadows of the Sandy Hook Massacre, years since the conviction and they have not guns/procon/guns.html. and the bill was six votes short of getting the been convicted of any of these crimes again. 21 Chelsea Parsons & Eugenio Weigend required 60 votes to beat a filibuster. Aaron See Minn. Stat. §624.713, subd. 1 (some- Vargas, Stolen Guns in America, Center for Blake, “Manchin-Toomey gun amendment one convicted of a misdemeanor or gross American Progress (7/25/2017), https://www. fails,” Washington Post (4/17/2013) https:// misdemeanor drug crime under Minn. Stat. americanprogress.org/issues/guns-crime/re- www.washingtonpost.com/news/post-politics/ §152.01-.37, unless three years has elapsed ports/2017/07/25/436533/stolen-guns-america/. wp/2013/04/17/manchin-toomey-gun-amend- without an additional conviction under Minn. 22 See, e.g., Keith Allen, Jessica Suerth, and Eric ment-fails/. Stat. §152.01-.37). Levenson, “New York Police Officer Fatally 33 Molly Moorhead, “A summary of the 11 In 2010, it was estimated that at least 19 Shot in ‘Unprovoked Attack’,” CNN 7/5/2017 Manchin-Toomey gun proposal,” PolitiFact million Americans had a felony record. Sarah https://www.cnn.com/2017/07/05/us/nypd-offi- (4/30/2013) https://www.politifact.com/truth-o- K. S. Shannon, et al., “The Growth, Scope, cer-shooting/index.html. (Detailing how a police meter/article/2013/apr/30/summary-manchin- and Spatial Distribution of People with officer was executed with a revolver that was toomey-gun-proposal/. Felony Records in the United States, 1948- stolen four years prior in West Virginia.) 34 See, e.g., 37.R.I. Gen. Laws §§11-47-35 – 2010,” 54:5 Demography 1795 (9/11/2017), 23 Max Siegelbaum, Only 11 States Require Gun 11-47-35.2; 28.Conn. Gen. Stat. §§29-33(c), https://link.springer.com/article/10.1007%2 Owners to Report Stolen Weapons to Police, 29-36l(f), 29-37a(e)-(j). 2013 Ct. ALS 3; Fs13524-017-0611-1. The felony numbers The Trace (11/20/2017), https://www.thetrace. 35.Or. Rev. Stat. §166.435; Or. Rev. Stat. (added together with all of the people who org/2017/11/stolen-guns-reporting-requirements/ §166.436 (At gun shows, Oregon law allows a have been convicted of a misdemeanor crime 24 Phillip Cook, How dangerous people get their transferor who is not a licensed dealer to con- of domestic violence, are subject to a current guns in America, CBSNews.com (10/3/2017), tact the Department of State Police directly order for protection, use medical cannabis, https://www.cbsnews.com/news/gun-sales-how- to conduct the background check). or are an alien) would yield a substantially dangerous-people-get-weapons/ 35 See, e.g., 41.Haw. Rev. Stat. Ann. §§134-2, higher total than simply focusing on the at 25 For example, an FFL selling a firearm “under 134-13; 47.N.J. Stat. Ann. §2C:58-3; 46.Neb. least 19 million felons in the United States. the table” without any sort of paperwork or Rev. Stat. Ann. §§69-2404, 69-2407, 69-2409 12 As discussed above, federal and Minnesota background check. (applying to handguns only). law both make it illegal for someone subject 26 Katherine Vittes et al., “Legal status and 36 Minn. Stat. §624.7131. to a qualifying order for protection to possess source of offenders’ firearms in states with the 37 Minn. Stat. §624.7131, subd. 12 (noting a firearm while the order is active. Under least stringent criteria for ,” 19 that a permit is not required for private sales, Minnesota law, unlike federal law, those Injury Prev. 26-31 (2013). but that an individual can still be criminally under an order for protection are required 27 Matthew Miller, et al., Firearm Acquisition prosecuted if a handgun or assault weapon to turn over their firearms within days of the Without Background Checks, 166 Annals was transferred to a prohibited person without order issuing. of Internal Medicine 233, 233 (2/21/2017), evidence of a permit who then goes on to 13 Sometimes the new intervening event will http://annals.org/aim/fullarticle/2595892/ commit a violent felony within one year of have deathly consequences. See, e.g., Man firearm-acquisition-without-background-checks- the transfer). Gets 35 Years For Girlfriend’s Shooting Death results-national-survey; “What works to reduce 38 See, e.g., 26.Cal. Penal Code §§27545, Outside Aurora Legion, WCCO 4 CBS gun deaths,” The Economist (3/22/2018), 27850-28070; Minnesota (1/30/2017) https://minnesota. https://www.economist.com/news/united- 39 Pat Kessler, “Reality Check: Gun Deaths in cbslocal.com/2017/01/30/aurora-legion-shooting- states/21739193-washington-dithers-and-argues- Minnesota,” CBS Minnesota (2/28/2018) sentencing/. some-states-show-way-what-works-reduce-gun- https://minnesota.cbslocal.com/2018/02/28/ 14 18 U.S.C. §922(s). deaths. reality-check-gun-deaths/. 15 18 U.S.C. §923(a). 28 Stephen Montemayor, “Federal charges

26 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org COUNTERFEIT BAGS SOLD IN MARKET.

ecent federal court decisions reflect a trend in favor of expanded liability for commercial landlords premised LESSOR upon the unlawful conduct of their tenants. The theory of liability applied against landlords, known as “contributory”R liability, derives from the federal trademark laws, 15 U.S.C. §1051, et seq. (the Lanham Act). Plaintiffs in these BEWARE cases are the manufacturers and holders of trademarks. Federal judges are upholding jury verdicts awarding millions in damages against landlords predicated on their tenants’ trademark infringement. Where Lanham Act liability is established, damage Courts are increasingly willing awards can be devastating. Lanham Act plaintiffs have the option to elect treble damages or minimum statutory damages to hold commercial landlords (ranging from $1,000 up to $2,000,000 per counterfeit sale) and attorneys’ fees. Furthermore, officers of the landlord can be liable for their tenants’ held individually liable for violations. This article analyzes the theory of contributory liability in the landlord-tenant context trademark infringement and concludes by offering five lessons for commercial landlords.

Origins and elements of contributory trademark infringement Contributory trademark infringement is a judicially created By Bryan Huntington cause of action that originates from the of . The theory was established by the United States Supreme Court in Inwood Lab., Inc. v. Ives Labs, Inc., wherein the Court concluded that: www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 27 BUNCH OF FAKE BRAND SHOES AT MARKET.

Demonstrating a landlord’s willful blindness to a tenant’s trademark’s infringement satisfies the knowledge requirement. To be “willfully blind, a person must suspect wrongdoing and deliberately fail to investigate.”7 Landlords cannot close their eyes to trademark infringement. The willful blindness standard is subjective: Of consequence is what the landlord knew and what the landlord did with the information. The extent and nature of the infringement bears upon the landlord’s knowledge: “‘If the infringement is serious and wide- spread, it is more likely that’ the defendant ‘knows about and condones’ the infringing activity.”8 A landlord’s receipt of com- plaints regarding alleged infringement may be used as evidence to establish the knowledge requirement. Furthermore, law en- forcement activity on the leased premises (e.g., stings, arrests, execution of search warrants) is relevant to the landlord’s knowledge.9 Even if a manufacturer does not directly control others in the chain of distribution, it can be held responsible for Remedial steps to stop infringement their infringing activities under certain circumstances. Where the knowledge factor is satisfied, a landlord must Thus, if a manufacturer or distributor intentionally in- prove it took genuine and concrete actions to eradicate infringe- duces another to infringe a trademark, or if it continues to ment. Landlords may be required to exercise contractual rem- supply its product to one whom it knows or has reason to edies such as default and eviction of tenants violating the law. know is engaging in trademark infringement, the manu- Two recent federal cases—Omega SA v. 375 Canal, LLC and facturer or distributor is contributorially responsible for Luxottica Grp., S.P.A. v. Airport Mini Mall—show that courts are any harm done as a result of the deceit.1 strongly inclined to let juries decide the reasonableness of the landlord’s efforts. Federal circuit courts have ruled that contributory trademark In Omega SA v. 375 Canal, LLC, the landlord moved for sum- infringement extends to service .2 Neither the Supreme mary judgment arguing that it took reasonable remedial steps Court nor the 8th Circuit has had occasion to consider landlord as a matter of law, including: (1) language in its leases prohibit- contributory liability, so the Minnesota practitioner must look to ing tenants from selling counterfeit merchandise and prohibit- foreign authority to understand the mechanics of such a claim ing subleasing; and (2) after landlord learned of an instance of where a landlord is the defendant. Case law generally considers counterfeit sales, landlord served a notice of default, followed by four factors, including whether the landlord: a notice of termination, and then initiated legal action against its tenant. Despite all this, the court denied summary judgment and 1. had sufficient control over the instrumentality used the jury held the landlord liable for $1.1 million. to infringe; Similarly, in Luxottica Grp., S.P.A. v. Airport Mini Mall, the 2. possessed the requisite knowledge of trademark landlord argued in a post-trial motion that the following circum- infringement activity; stances absolutely barred contributory liability: 3. continued to supply its service despite said knowledge; and 1. Landlord’s inclusion of provisions in its leases 4. took sufficient remedial steps to stop the infringing prohibiting the sale of counterfeit goods; activity.3 2. landlord’s receipt of assurances from tenants that merchandise was legitimate; The first factor (sufficient control over the instrumentality) 3. landlord’s agents’ warnings to tenants that landlord and third factor (continued supply of services) are easily would evict if there was evidence of counterfeit sales; established in landlord-tenant cases because of the landlord’s 4. landlord’s distribution of fliers informing tenants that ongoing provision of physical space, utilities, parking, advertising, the distribution of counterfeit goods was prohibited; or customers to its tenant(s). Ac cordingly, court decisions in 5. landlord’s direction to tenants that certain products this context focus upon the second (knowledge of infringement) should not be sold unless tenants could prove that and fourth (remedial steps) factors. These are analyzed in further they were authorized dealers of those products; detail below. 6. landlord’s request for assistance from the plaintiff trademark holder’s investigator to identify tenants Knowledge of trademark infringement engaged in the sale of counterfeit goods; and Courts have found a duty for landlords to “avoid providing 7. landlord’s attempt to secure information from law spaces to counterfeiters who the owner knows or has reason to enforcement regarding the sale of counterfeit goods. know are selling counterfeit goods.”4 A landlord’s knowledge that a particular counterfeit good is being sold at a particular loca- Despite these precautions and remedial measures, the jury re- tion may satisfy the knowledge requirement.5 Establishing that a turned a verdict of $1.9 million against the landlord and individu- landlord is merely negligent with respect to ongoing trademark als associated with the landlord. The landlord’s motion for judg- infringement is insufficient as a matter of law.6 Absent a land- ment notwithstanding, the verdict was rejected because the court lord’s actual or constructive knowledge of infringement, a land- ruled the jury could reasonably conclude the landlord had “de- lord has no affirmative duty to take precautions against the sale liberately failed to take serious, corrective action in light of what of counterfeit goods. was known from the various notice letters and law enforcement

28 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org raids.”10 The court also affirmed the jury’s 5. The potential for individual conclusion that individuals associated liability for persons associated with the landlord were individually liable with the landlord is greatly for contributory trademark infringement. increased compared to other Publications The court observed that the standard contexts. The Lanham Act for individual liability in this context is plaintiff need not prove the el- 20,000+ attorneys and legal whether the person “actively participated ements associated with pierc- thought-leaders read Bench & Bar of as a moving force in the decision to engage ing the corporate veil in order Minnesota magazine each month. in the infringing acts, or otherwise caused to recover against related the infringement as a whole to occur.”11 individuals and officers.

Lessons for commercial landlords Commercial landlords can expect Court decisions sustaining substantial to see the number of contributory jury verdicts against commercial land- infringement claims grow as news of the lords for contributory infringement hold victories achieved against landlords is five significant lessons for landlords: disseminated around the bar. Landlords with reason to believe infringing activity is 1. Unlike in other contexts, occurring should take swift and deliberate Legislation the lease agreement will not action to stomp it out. s absolutely shield the landlord 125 bills monitored or from liability. Even if the lease Notes actively lobbied at the 2019 Minnesota State Legislature. expressly prohibits the sale 1 456 U.S. 844, 854 (1982). of counterfeit goods, such 2 See Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d a clause has been held not 93, 103-104 (2d Cir. 2010); Hard Rock Café sufficient for the landlord to Licensing Corp. v. Concession Svcs., Inc., 955 secure an early exit from this F.2d 1143, 1149 (7th Cir. 1992) (holding that type of suit. Lanham Act applied to owner of flea market). 2. If a landlord has contractual 3 Omega SA v. 375 Canal, LLC, No. 12-civ- power to default or terminate 6979, 2016 WL 7439359, at *2 (S.D.N.Y. Membership a tenant based upon the 12/22/2016). tenant’s sale of counterfeit 4 Louis Vuitton Malletier v. Eisenhauer Road Flea Value = goods, failure to exercise that Market, Inc., No. SA-11-CA-124-H, 2011 a number that can’t be crunched power will be used against the WL 13237799, at *4 (W.D. Tex. 12/19/2011) landlord. A landlord’s renewal (emphasis in original). of a tenant with a history of 5 Omega SA, 2016 WL 7439359, at *2. trademark infringement will 6 Hard Rock Café Licensing Corp., 955 F.2d at be used as evidence of the 1149. landlord’s willful blindness to 7 Id. (citation omitted). Mock trademark infringement. 8 Luxottica Grp., S.P.A. v. Airport Mini Mall, 3. Courts expect landlords to LLC, 287 F.Supp.3d 1338, 1342 (N.D. Ga. Trial take remedial steps to counter 2017) (appeal pending) (citation omitted). members and high infringement that are propor- 9 See id. at 1342 (observing that “[a] landlord’s 2,400 school students participate in the tional to the infringement. If knowledge of infringing conduct by its ten- MSBA Mock Trial program. infringement is widespread ants may come from raids by law enforcement and continuing over a lengthy agencies[.]”); Coach, Inc. v. Gata Corp., No. period of time, the landlord 10-cv-141, 2011 WL 2358671, at *8 (D.N.H. may have exposure no matter 6/9/2011) (determining that raids on the Pro Bono the remedial steps taken. premises, arrests of licensees and confiscation Landlords must not permit of counterfeit goods was sufficient to establish 110,500 these situations to fester. willful blindness). hours of pro bono 4. A landowner granting leases 10 Luxottica Grp., S.P.A., 287 F.Supp.3d at 1345. services by to multiple tenants operating 11 Luxottica Grp., S.P.A., 287 F.Supp.3d at 1348. 934 in a common space need not MSBA North Star members = know which particular tenant is engaged in infringement for $27.6 million the landlord to be liable for market value. contributory infringement. BRYAN HUNTINGTON Instead, it may be sufficient represents landlords and if the landlord knew that a tenants in both commercial Renew your MSBA membership particular counterfeit product and residential disputes for 2019-20 was being sold at a particular throughout Minnesota. location. BHUNTINGTON@ www.mnbar.org/renew LARKINHOFFMAN.COM www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 29 Don’t Be The Next LUNDS & BYERLYS

Lessons learned from the Lunds shareholder litigation By Janel Dressen

n March 27, 2019, the Min- engage in charitable and philanthropic advising Minnesota private businesses nesota Supreme Court denied pursuits). The Lund family worked on and business owners, the legal genesis of review in the Lunds litigation developing an exit plan without any in- this family business dispute is important. that spanned more than four dication that Kim could not get out as an The heart of the Lunds case turned on the Oyears and resulted in the largest reported owner or that the family wealth equally “reasonable expectations” doctrine as de- fair value buyout award to a minority gifted to her by her grandparents and fa- fining the “unfairly prejudicial” conduct shareholder in Minnesota under Minn. ther would have to remain invested in the that led the district court to order a fair Stat. §302A.751 (Section 751).1 The his- Lund’s enterprise indefinitely. Kim’s ex- value buyout award to Kim Lund under tory leading to the litigation, the litiga- pectations, as well as her siblings’ and the Section 751, subd. 1(b)(3). tion itself, and the courts’ decisions in the companies’ support of those expectations, Minnesota does not stand alone in the case offer many important lessons for all were confirmed in numerous documents, adoption of the reasonable expectations private company business owners, busi- many of which included the words of her doctrine. More and more jurisdictions are ness lawyers, and business litigators.2 siblings and company management. Ulti- adopting a reasonable expectations stan- In December 2014, Kim Lund, as a 25 mately, after 18 months of discovery, the dard in business separation and dissension percent beneficial owner, commenced a district court granted Kim Lund’s buyout cases. In fact, about one-half of U.S. juris- Section 751 case based upon the frustra- motion, ordering that she was entitled to dictions apply a “reasonable expectations” tion of her reasonable expectations of li- a fair value buyout because her brother, approach to oppression, unfair prejudice, quidity and financial independence from Tres Lund, and the companies frustrated and/or breach of fiduciary duty claims.4 the Lunds and Byerlys grocery store busi- her reasonable expectations to financial While the Minnesota Legislature has nesses. She commenced a lawsuit against independence and liquidity.3 not defined what constitutes “unfairly the companies and her brother, Tres prejudicial” conduct, judicial authorities Lund—who was in control of the busi- Lesson 1: Business owners need and the Reporter’s Notes to Section 751 nesses—after 20 years of clearly articulat- to understand the reasonable dictate that the phrase “unfairly prejudi- ing her expectation of an exit plan (spe- expectations doctrine. cial” as used in Section 751 is to be in- cifically, that her beneficial ownership In order to fully appreciate the les- terpreted liberally.5 The Lunds courts em- interests in the companies be separated sons to be learned from the Lunds litiga- phasized this tenet of Section 751 law in from the family business so she could tion as a business owner or an attorney their decisions.6

30 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org Certi cation 735 MSBA Board Certi ed The heart of the Legal Specialists. Lunds case turned on the “reasonable CLE expectations” doctrine 10,000+ attendees at Section CLE, as defining the networking and social events. “unfairly prejudicial” conduct that led the district court to order a fair value buyout award to Kim Lund. 350 CLE hours o ered, including...

100 hours of On Demand CLE.

Membership The Minnesota Supreme Court first other Lund siblings/shareholders to meet Value = 10 applied the reasonable expectations doc- their reasonable expectations.” a number that can’t be crunched trine—previously adopted by the Min- Defendants argued that Kim’s expec- nesota Court of Appeals in several de- tations of liquidity and financial inde- cisions—in 2011.7 The Court affirmed pendence were not reasonable because that acting in an unfairly prejudicial the companies did not “freeze” her out of manner “includes conduct that violates the companies, and her “personal desires” Savings the reasonable expectations of the minor- were counter to the reasonable expecta- ity shareholder.”8 While the “reasonable tions Minnesota law recognizes. But the $1,800+ expectations” doctrine was not new law district court rejected defendants’ argu- estimated annual savings applied in the Lunds case, the doctrine ments and aptly noted that varying fact through MSBA membership. was applied to a set of facts not previously patterns were “anticipated when section presented in any published or unpub- 751 was amended so as to include broader lished Minnesota decision.9 remedial flexibility than the previous ver- One mistake many lawyers make in sions” and the only prerequisite to appli- Section 751 cases is to assume that the cation of Section 751 is the existence of a section applies only to a “freeze-out” of closely held corporation.11 Minnesota law a minority shareholder. That assumption does not establish the reasonable expec- is not correct. Neither Section 751 nor tations; the conduct, words, and actions Minnesota jurisprudence have held that of the parties do. any particular expectations are per se un- So how do reasonable expectations de- reasonable. Businesses, therefore, need velop? Importantly, reasonable expecta- to understand the development of share- tions are not the “mere subjective hopes Renew your MSBA membership holder expectations and manage those of a shareholder, but must be determined for 2019-20 expectations. Indeed, the district court objectively, based on review of written and held that Tres Lund and the companies oral agreements among shareholders, as www.mnbar.org/renew “have an ongoing obligation toward the well as the conduct of the parties. The www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 31 The reasonable expectations of a minority shareholder contributed to Kim’s belief that an exit strategy was in the works, wherein she “frequently include understandings which are not would gain liquidity and financial inde- pendence from the Lund Entities.”15 articulated in the corporate documents.” In analyzing the TRAs and other cor- porate documents, the court of appeals highlighted the fact that the documents did not prohibit transfers and, in the case of the TRAs, actually authorized a sale of interests by a shareholder. Thus, the district court had to assess the commu- nications and conduct of the parties to determine if Kim’s liquidity expectations were reasonable.16 In order to dictate “reasonable expec- tations,” any agreements between the shareholders need to expressly eliminate the expectation at issue in order to govern the analysis. And it is not enough to have an agreement in place if the shareholders do not follow it and their conduct dem- reasonable expectations of a particular be considered in the determination of onstrates a course of conduct and dealing shareholder will vary depending on the reasonable expectations. inconsistent with the agreements entered circumstances and the nature of the cor- into. In such circumstances, the statutory poration... Those expectations are not Lesson 2: Written agreements are presumption of the written agreements limited to traditional shareholder rights not dispositive of expectations in all may be overcome. such as notice, information, voting, and circumstances. dividends.”12 Section 751 subd. 3a provides that in Lesson 3: Minority shareholders have In this regard, the district court and the determining whether to order equitable rights and may need protection by court of appeals rejected defendants’ argu- relief to a shareholder, including a fair the courts if the company and its ments that Kim could not have a reason- value buy-out, “any written agreements, shareholders have not implemented able expectation to liquidity because: (1) including employment agreements and planning to address the rights of the the dominant characteristic of a closely buy-sell agreements, between or among minority. held business is the lack of a public market shareholders or between or among one Throughout the litigation, the Lunds for its shares; and (2) a buy-out remedy to or more shareholders and the corporation companies and Tres Lund continuously Kim would discourage close corporations are presumed to reflect the parties' rea- emphasized Kim’s role as a minority share- from accommodating or even discussing a sonable expectations concerning matters holder as though that meant she had lim- shareholder’s request for liquidity because dealt with in the agreements.” ited expectations and virtually no rights. any consideration could later be found The Lunds shareholders entered into Businesses and controlling owners should to establish the shareholder’s reasonable Transfer Restriction Agreements (TRAs) not make the same mistake. “Minor- expectations. Both of these arguments providing that all shareholders had to ity shareholders are in a vulnerable posi- reflect a misunderstanding of Section 751 consent to the transfer of shares by a tion.”17 The district court stressed that the and in particular the reasonable expecta- shareholder. Defendants argued that the defendants’ emphasis on Kim’s “limited tions doctrine. TRAs made Kim’s liquidity expectation role as a minority shareholder” was wrong: As to the first argument, there is noth- unreasonable as a matter of law because “Defendants are wrong to rely on Kim’s ing in the Minnesota Business Corpora- all shareholders did not agree that her vulnerabilities in making their argument tions Act or in the law providing that a shares should be purchased by the com- that, essentially all is well at Lunds. Em- private company cannot purchase shares panies. The district court and the court phasizing the limitations of Kim’s voting from a shareholder.13 The second argu- of appeals rejected defendants’ argument. rights, Defendants highlight the necessity ment ignores that Section 751 gives the The reasonable expectations of a minor- of an equitable remedy in this situation. district court the authority and discretion ity shareholder “frequently include un- Minority shareholders in a closely-held to evaluate and balance the equities be- derstandings which are not articulated company are the exact persons section fore it, and determine, based upon all of in the corporate documents.”14 The dis- 751 was created to protect...”18 the facts and circumstances, whether an trict court considered the TRAs, as well The district court further observed expectation to liquidity was reasonable. as the companies’ bylaws and the share- from the evidence that: (1) “the relation- Lunds did not turn on a simple discussion holder trust agreements, and held that ship among the Lund siblings had steadily among the shareholders about purchasing “the words, conduct, and history of the and sadly deteriorated;” (2) “Family dis- Kim’s shares; rather, the district court’s parties shed more light on Kim’s reason- cussions, which once appeared candid determination was based on the decades- able expectations than do the trust and and collegial, have devolved into an long conduct of the parties and the de- corporate governance documents. Tres, entrenched legal battle;” and (3) “for at fendants’ decades-long assurances to Kim in particular, as well as [the chief admin- least 15 years, Tres and Kim have been that an exit plan would be provided. The istrative officer, secretary and treasurer unable to effectively address their diver- conduct of the parties is key and should of the Lund Entities], have continuously gent expectations as beneficial owners,

32 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org Members shareholders, and co-trustees, and the shareholder has limited rights. That kind relationships and dealings among the sib- of thinking is a mistake under Minnesota lings have become increasingly acrimoni- law. It would be equally prudent for close- ous as the years have passed.”19 ly held companies to understand, plan The district court also addressed the for, and address the varying differences 15,556 need for family business planning. “In a in shareholder expectations rather than MSBA members come together family setting such as this, it is also pru- treating a shareholder who holds differing to learn, to share, to teach, and dent corporate planning, as has been rec- views as “standing alone.” to advocate for the profession. ognized over the years by [professionals], to ensure the wellbeing of the Lund En- Lesson 4: Transparency, not tities in the face of aging grandchildren/ appeasement, should be the shareholders and to properly prepare for objective. any life changes that could trigger addi- The Lund defendants made a number tional liquidity needs. A court-ordered of poor decisions before Kim commenced buyout—which will provide necessary litigation. Had they avoided such deci- closure to the parties and will galvanize sions and actions, the parties may have the development of a clear plan to ad- been able to resolve their differences by dress the long-term needs of the com- a negotiated resolution, rather than a Sections pany and its remaining beneficial owners/ forced resolution dictated by Hennepin practice areas with shareholders—is an appropriate equitable County District Court Chief Judge Ivy 37 20 hundreds of opportunities for remedy under the circumstances.” Bernhardson. For example, before the professional development. Rather than implementing planning litigation was commenced, defendants that incorporated Kim’s reasonable ex- implemented a partial redemption plan pectations as defendants assured Kim providing that the Lund siblings could they would do, the defendants instead elect to sell a limited portion of their focused on the “divide” between Kim and shares in the entities for a total of up to her siblings, repeatedly arguing to the $8,000,000 for all four owners. Such a district court that on every issue, “Kim partial, limited redemption offering, to- stands alone.” The district court found gether with the manner in which it was Membership this to be another basis upon which equi- implemented, had many flaws—resulting table relief was appropriate: in Kim’s concluding that she had no other Value = viable option but to commence litigation. a number that can’t be crunched “[S]eeking to bolster their claim The district court addressed the that Kim’s expectations are unrea- shortcomings of the offering: “[t]he sonable, Defendants overstate the partial redemption offer was inconsistent divide between Kim and her sib- with what Kim had reasonably desired lings, implying an unequivocal “us” since at least the early 1990s—full versus “her” situation. *** The rea- divestiture of her trust assets from the sonableness of Kim’s expectations Lund Entities, at a fairly valued price.”22 does not hinge on whether her The court of appeals also weighed in on Communities siblings have the exact same objec- the partial, limited redemption offering tives for themselves as shareholders and held that it did not create a disputed 4,000+ members participate in and beneficial owners of the Lund fact requiring a trial: “[o]ffering a single, one or more of the MSBA Entities. The conduct and words of partial redemption over a 20-year online communities. the parties define what of Kim’s ex- period when all parties understood that pectations are “reasonable” in this Kim would achieve complete liquidity case, and the evidence indicates established frustration of her reasonable that all individuals involved were expectations as a matter of law.”23 well versed in and, to varying de- Second, to make matters worse, when grees at various times, supportive implementing the single, partial redemp- of Kim’s desire for independence tion offering, the companies refused to Directory and liquidity. The fact that Kim is allow Kim to attend a board meeting the only sibling pursuing complete during a discussion about the offering 10,000 independence from the family busi- and refused to give her communications searches per month for ness does not make her expecta- containing the valuation of profession- legal representation on tions unreasonable.”21 als employed by the companies to value MN Find a Lawyer directory. the company stock for the redemption If there is dysfunction and disharmo- offering. This lack of transparency by the ny among shareholders in a closely held companies served to heighten the lack of Renew your MSBA membership business, it is prudent to consider, plan trust by Kim in the companies’ treatment for 2019-20 for, and address those matters proactively, of her as a shareholder, and to under- rather than ignore such matters by em- mine any confidence that the redemption www.mnbar.org/renew ploying internal reasoning that a minority would be fair to her. www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 33 Had the Lund Entities and Tres Lund acted with transparency, rather than in- Notes see also Minn. Stat. §302A.751, subd. 3a, sincere appeasement, the parties may 1 Lund v. Lund, 924 N.W.2d 274, 2019 WL which states that the Court “shall take have been able to resolve the matter 178461 (Minn. Ct. App. 1/14/2019), review into consideration the duty which all without litigation and without suffering denied (3/27/2019). shareholders in a closely held corporation the negative consequences of damage to 2 There are many legal and business lessons owe one another to act in an honest, fair, the family relationships and to the repu- that can be learned from the Lunds litigation, and reasonable manner in the operation tation of the business in the public eye. not all of which can be covered in the space of the corporation and the reasonable limitations of this article. For example, this expectations of all shareholders as they exist Lesson 5: Family business disputes article does not address any of the lessons at the inception and develop during the get resolved by making a compromise learned on valuation and matters, course of the shareholders’ relationship with business deal and setting aside egos which were the subject of a trial, or the the corporation and with each other.” and emotions. award of attorneys’ fees, which is currently 8 Cold Spring Granite Co., 802 N.W.2d at One of the most fascinating, yet tragic, on remand before the district court. 378-79. facts about the Lunds case is that the par- 3 Lund v. Lund, 10/4/16 Buy-Out Order (Dist. 9 It is important to note that violation of a ties did not engage in a single settlement Ct.) at 23. shareholder’s “reasonable expectations” discussion after Kim commenced litiga- 4 See 2 Close Corp and LLCs: Law and Practice is not the sole source of determining “un- tion. In business litigation, that is virtu- §9:18 (Rev. 3d. ed.) (Nov. 2018 Update), fairly prejudicial conduct.” The Cold Spring ally unheard of. However, because Kim O’Neal and Thompson’s Close Corporations Granite court left open the possibility that Lund was requesting liquidity and de- and LLCs, Statutory and judicial alternatives for “conduct other than conduct violating the fendants were solely focused on keeping closely held entities wracked by dissension. reasonable expectations of the shareholder Kim Lund captive as a shareholder, the 5 U.S. Bank N.A. v. Cold Spring Granite Co., may also be unfairly prejudicial.” Cold Spring parties were at a standstill. Very rarely is 802 N.W.2d 363, 378 (Minn. 2011); Minn. Granite, 802 N.W.2d at 379, n.10. it beneficial to the company and its other Stat. §302A.751, Reporter’s Notes (1982- 10 Lund v. Lund, 10/4/16 Buy-Out Order (Dist. shareholders to insist that a shareholder 1984) (“This change altered the grounds for Ct.) at 22. wanting separation remain a shareholder, involuntary dissolution or buy-out on motion 11 Id. at 6-7. particularly when the company and/or its to include circumstances when the direc- 12 Id. at 11. shareholders are in a financial position to tors or those in control of the corporation 13 Lund, 924 N.W.2d at 281. fund, on terms and conditions, a separa- (a deliberately vague term not necessarily 14 Lund v. Lund, 10/4/16 Buy-Out Order (Dist. tion. In that respect, it is not much differ- referring only to majority shareholders) act Ct.) at 11. ent from spouses seeking a divorce. in an ‘unfairly prejudicial’ manner towards 15 Lund v. Lund, 10/4/16 Buy-Out Order (Dist. Avoiding litigation when a shareholder any shareholder in that person’s capacity as Ct.) at 12. dispute arises, or resolving a shareholder a shareholder, director, officer, or employee. 16 Lund, 924 N.W.2d at 280-81. dispute after litigation has commenced, This is a more liberal rule than ‘persistently 17 Id. at 282. undoubtedly requires compromise by unfair,’ which required repeated adverse 18 Lund v. Lund, 10/4/16 Buy-Out Order (Dist. everyone, and most importantly, a rec- results before a shareholder could sue. Now Ct.) at 24. ognition that the parties are making a only one instance is required.”) 19 Lund v. Lund, 10/4/16 Buy-Out Order (Dist. business deal. With family businesses in 6 Lund, 924 N.W.2d at 280; Lund v. Lund, Ct.) at 25. particular, that means the parties must set 10/4/16 Buy-Out Order (Dist. Ct.) at 5. 20 Id. at 24, 26. aside their emotions and their desire for 7 Id.; Berreman v. W. Publ’g Co., 615 N.W.2d 21 Id. at 20. control to reach a deal that results in a 362, 374 (Minn. Ct. App. 2000); Gunderson 22 Lund v. Lund, 10/4/16 Buy-Out Order (Dist. permanent separation. v. Alliance of Computer Prof’ls, Inc., 628 Ct.) at 23. The benefits of a negotiated resolu- N.W.2d 173, 184 (Minn. Ct. App. 2001); 23 Lund, 924 N.W.2d at 281. tion in these cases are significant, as are the risks of a failure to compromise. A compromise resolution avoids the parties fighting over and wasting their own assets as well as the collateral damage to fam- ily relationships and the distraction and reputational harm to the business and business owners. To state the obvious, JANEL DRESSEN and her one side of the equation cannot make a law firm, Anthony Ostlund, business deal. It takes all hands on deck represented Kim Lund in to compromise—and in these cases, com- the Lunds litigation. Janel promise can mean the difference between brings both courtroom and saving and permanently losing important negotiating experience and relationships and between protecting common sense to the table and causing undue harm to a successful to resolve business disputes, business. The stakes are high. Employing spending a significant amount of her time counsel and advisors who understand this resolving closely held business disputes. She can area of the law, and the risks involved, is be reached at 612-349-6969 or by email. therefore imperative. s [email protected]

34 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org Notes&Trends

Landmarks in the Law

Current developments in judicial law, legislation, and administrative 34 action together with a foretaste of emergent trends in law and the COMMERCIAL & CONSUMER LAW legal profession for the complete Minnesota lawyer. by Fred Miller 34 CRIMINAL LAW* COMMERCIAL & CONSUMER LAW in the seller’s control, if they declined as by Samantha Foertsch alleged, had experienced a substantial & Stephen Foertsch JUDICIAL LAW change in their condition during the n Do not sit on your rights. Assume delay before the attempted revocation, 41 you have just received ordered goods, and that precluded revocation. See UCC EMPLOYMENT & LABOR LAW* inspected them, and found the goods are §2-608(2). by Marshall H. Tanick seriously deficient. Extremely upset, you Such a ruling, however, does not 42 vow never to deal with the seller again preclude a recovery of damages, only the ENVIRONMENTAL LAW* and throw the goods out. That is exactly remedy of revocation. See UCC §§2- by Jeremy P. Greenhouse, what not to do—you now can owe the 714 and 2-607(3)(a). Unfortunately the Jake Beckstrom & Erik Ordahl purchase price! Why? buyer also lost here, since the soybeans The applicable law, Article 2 of the had tested at a germination rate above 43 Uniform Commercial Code, affords a 80% when in the seller’s control, and if FAMILY LAW remedy here even if the seller provided the rate was lower after the buyer had by Michael Boulette no express warranty; you can reject the been in control for three months and goods for breach of the implied war- the goods had been in unknown storage 43 ranty of merchantability, or fitness for a and transport, any decrease could not be FEDERAL PRACTICE* particular purpose if applicable, and if attributable to the seller. by Josh Jacobson neither are disclaimed. See UCC §§2- 44 601 – 2-607 (unless there is a limitation FRED MILLER INDIAN LAW of remedy—UCC §§2-718 and 2-719), Ballard Spahr by Jessica Intermill and UCC §§2-314, 2-135, and 2-316. [email protected] & Peter J. Rademacher In SunOpta Grains and Foods Inc. v. JNK Tech Inc., 97 U.C.C. Rep. Serv. 2d 279, 45 2018 WL 6045261 (D. Minn. 2018), CRIMINAL LAW INTELLECTUAL PROPERTY* the buyer sought to avoid payment for a by Tony Zeuli, Joe Dubis shipment of soybeans allegedly for hav- & Ryan Borelo JUDICIAL LAW ing germination rates of less than 85% n : Jury need not agree which 46 as required by , which assert- alternative means was used to com- PROBATE & TRUST edly substantially impaired their value. mit first-degree aggravated robbery. by Casey D. Marshall The buyer had received the soybeans in Appellant was convicted of first-degree August, but the buyer did not raise the aggravated robbery after a jury trial. The 46 alleged too-low germination rate until evidence at trial showed appellant hit REAL PROPERTY* November. At that point the soybeans the victim in the head with a baseball bat by Joseph P. Bottrell had been in the buyer’s possession for before taking a pocket knife from the vic- three months. That would be too late for tim. The district court instructed the jury 47 rejection and instead constituted accep- they could find appellant guilty of first- TAX LAW* tance of the shipment, and therefore an degree aggravated robbery either because by Morgan Holcomb, Jessica Dahlberg & Matthew Wildes obligation to pay for the shipment. See he was armed with a dangerous weapon UCC §§2-606(b), 2-607(1). or because he inflicted bodily harm upon 49 Even so, a buyer may have another the victim while committing a robbery. TORTS & INSURANCE chance to avoid payment if the buyer has Appellant argues the jury should have by Jeff Mulder a right to revoke acceptance, and the unanimously decided whether he was buyer in the case asserted that right. See armed with a dangerous weapon or in- * MORE ONLINE UCC §2-608. However, revocation of flicted bodily harm upon the victim. The online version of this section acceptance must occur before any sub- Jury verdicts in criminal cases must be contains additional case note stantial change in the condition of the unanimous. However, “the jury need not content: www.mnbenchbar.com goods not caused by their own defects. always unanimously decide which of sev- The court held the soybeans’ germina- eral possible means [a] defendant used to tion rates, which tested above 80% when commit [an] offense in order to conclude www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 35 Notes&Trends | CRIMINAL LAW that an element has been proved beyond Minn. Stat. §609.24 states: “Who- allowed to withdraw a plea at any time a reasonable doubt.” State v. Ihle, 640 ever… takes personal property from the to correct a manifest injustice. Appellant N.W.2d 910, 918 (Minn. 2002). Minn. person or in the presence of another and argues neither plea withdrawal standard Stat. §609.245, subd. 1, provides that uses or threatens the imminent use of should apply, as his withdrawal request “whoever, while committing a robbery, force against any person to overcome was made before the court accepted his is armed with a dangerous weapon…, the person’s resistance or powers of plea. He argues that, when he made or inflicts bodily harm upon another, is resistance to, or to compel acquiescence his request, he had an absolute right to guilty of aggravated robbery in the first in, the taking or carrying away of the withdraw his plea. degree…” The issue here is whether this property is guilty of robbery…” Appel- In State v. Tuttle, 504 N.W.2d 252 statute, specifically the phrase “is armed lant argues she did not overcome the (Minn. Ct. App. 1993), the court of with a dangerous weapon…, or inflicts employee’s resistance or compel his ac- appeals stated that Rule 15.04, subd. bodily harm upon another,” defines quiescence in the carrying away, because 3(1) “gives the district court authority to separate elements of the offense and, the employee took the wine and appel- reserve acceptance of a plea pending a therefore, separate crimes of first-degree lant left emptyhanded. PSI; it does not give a defendant an ab- aggravated robbery, or defines alterna- The court of appeals notes that simple solute right to withdraw a plea pending tive means of committing first-degree robbery requires only that use of force or acceptance by the court.” Id. at 257. The aggravated robbery. threats precede or accompany either the question still remains, however, whether The court of appeals finds the plain taking or the carrying away, which means an absolute right to withdraw a guilty language of the statute manifests a legis- the “taking” and the “carrying away” plea prior to its acceptance exists outside lative intent to establish one crime that are separate acts. “Carrying away” is not the rules of . can be committed in alternative ways. defined in Minn. Stat. §609.24, but the The court of appeals holds that such The aggravated robbery statute clearly court deciphers its plain and ordinary a right does not exist. The court rejects states what the offense is, and, before meaning from dictionary definitions, appellant’s argument that this absolute that, in one sentence, lists the acts or al- concluding that “carrying away” is the right can be inferred from a defendant’s ternative circumstances that result in the act of moving personal property from trial rights, including the presumption commission of the crime. Thus, the court the location of the taking. The record in of innocence, and the idea that those holds that the jury was not required to this case shows appellant’s threats and rights are not waived until a valid guilty specifically or unanimously agree which attempt to bite the store employee dur- plea is accepted. The Supreme Court has of the alternative means of commit- ing the struggle overcame his resistance, previously held that “[o]nce a guilty plea ting first-degree aggravated robbery was allowing appellant to carry some of the is entered, there is no absolute right to employed by appellant, and the district wine outside of the store, which was withdraw it.” Shorter v. State, 511 N.W.2d court’s instructions were proper. the location of the taking. Thus, the 743, 746 (Minn. 1994). The court of Next, the court considers whether the evidence was sufficient to sustain appel- appeals holds that a guilty plea is entered Legislature’s articulation of alternative lant’s conviction. State v. Townsend, 925 once it has been “put formally before means of committing first-degree aggra- N.W.2d 280 (Minn. Ct. App. 3/11/2019). the court.” At that point, a defendant vated robbery violates due process. The has no absolute right to withdraw it. court finds that the alternative means n Criminal procedure: No absolute right In this case, appellant’s guilty plea was are not distinct, dissimilar, or inherently to withdraw valid guilty plea after “put put formally before the district court at separate. The court also notes that the formally before the court.” At his plea appellant’s plea hearing. Thus, he had breadth of possible conduct embodied hearing, appellant pleaded guilty to vio- no absolute right to withdraw it at his in the first-degree aggravated robbery lating an OFP. The district court deferred sentencing hearing prior to the district statute is narrow and includes behaviors accepting his plea until sentencing. At court’s acceptance of his plea. that have similar degrees of seriousness. the sentencing hearing, appellant sought The court of appeals also finds that The court ultimately concludes that the to withdraw his guilty plea because, as district court did not err in denying alternatives in the first-degree aggra- his attorney informed the court, “[his appellant’s request to withdraw his vated robbery statute are consistent with attorney] threatened him to do so.” plea under the fair and just standard. fundamental fairness. Appellant’s con- However, because appellant denied on Appellant argued he should have been viction is affirmed. State v. Lagred, 923 the record at his plea hearing that any- permitted to withdraw his plea under N.W.2d 345 (Minn. Ct. App. 2/11/2019). one made any threats to him, his friends, this standard because the OFP was or his family to coerce him into accept- not in effect when he was accused of n Robbery: “Carrying away” is act of ing the plea agreement, the district court violating it. An ex parte OFP was issued moving personal property from location denied appellant’s motion. Later in the on 12/8/2016, and appellant was served of “taking.” A wine shop employee ob- sentencing hearing, appellant explained on 12/9/2016. Appellant requested a served appellant and another woman put he did not feel threatened by his attor- hearing on 12/12/2016, and one was bottles of liquor in their handbags. The ney and agreed with the district court’s scheduled for 12/16/2016. The hear- employee and appellant struggled and characterization that “he felt coerced ing was rescheduled by the court due one bottle fell out of her handbag, break- by the situation because [he was] facing to the victim’s pregnancy and health ing on the floor. The struggle continued some bad consequences.” The district to 1/5/2017. Appellant was accused outside the store. The employee was able court then formally accepted appellant’s of violating the OFP on 12/21/2016. to remove the remaining bottles of wine guilty plea and sentenced appellant. The court rejects appellant’s argument from appellant’s handbag, after which Under the Minnesota Rules of Crimi- that the OFP expired the moment the appellant ran away. Appellant was found nal Procedure, a district court may allow district court continued the hearing and guilty of simple robbery and she chal- a defendant to withdraw a plea prior to rescheduled it outside of the 10-day lenges the sufficiency of the evidence to sentencing if it would be fair and just to statutory time frame. The court con- sustain her conviction. do so. Additionally, a defendant must be cludes that the statutory language makes

36 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org clear that an ex parte OFP expires once the time frame runs without a hearing. Here, appellant violated the OFP within 10 days of his request for a hearing. At that time, the OFP was undoubtedly still in effect. State v. Nicholas, 924 N.W.2d 286 (Minn. Ct. App. 2/11/2019). Group Insurance Plans INSURANCE YOU sponsored by the Minnesota n Criminal procedure: Guilty plea CAN TRUST State Bar Association entered in consideration of unlawful sentence is coerced. Appellant was charged with a second-degree controlled MSBA Group Insurance substance offense and the state notified Program Plans: him of its intent to seek an aggravated You know insurance is a sentence based on appellant’s status as • Cyber Privacy Liability Insurance a career offender and a dangerous of- vital part of doing business • 10-Year Simplified Issue Group fender. Appellant subsequently entered Term Life Insurance a guilty plea under a plea agreement that —and protecting your provided for a 100-month sentence. If family’s financial future. • 10- or 20-Year Group Level Term the district court found appellant to be Life Insurance a career or dangerous offender, it could What you may not always • Annual Renewable Group have sentenced appellant to the 25-year know is where to turn for Term Life Insurance statutory maximum. However, appellant qualified as neither a dangerous nor ca- this important coverage. • Group AD&D Personal reer offender. The state’s threat to have Accident Insurance appellant sentenced as such induced ap- The Minnesota State Bar Association • Auto/Home Insurance Program pellant’s guilty plea. The court of appeals (MSBA)-Sponsored Group Insurance • Business Owners Package concludes that the state’s threat of an ag- Plans are designed for the professional and Workers’ Compensation gravated sentence that was unauthorized and personal needs of members. by law coerced appellant’s plea. Because • Disability Income Insurance Plan a coerced plea is involuntary, appellant’s These plans offer competitive • Long-Term Care Insurance plea was invalid. Johnson v. State, 925 coverage negotiated specifically • Senior Group Term Life N.W.2d 287 (Minn. Ct. App. 3/11/2019). for MSBA members. Insurance n Sentencing: Out-of-state probation- ary sentence reserving right to revoke probation and impose prison sentence is equivalent to stay of imposition. Ap- Learn more today!* pellant argues the district court erred Visit MSBAinsure.com or call 800-501-5776 in denying his motion to correct his *For more information including costs, exclusions, limitations, eligibility, renewability, sentence for aiding and abetting second- reduction of benefits and terms of coverage. degree unintentional based on an incorrect criminal history score. The Program Administered by Mercer Health & Benefits Administration LLC district court assigned one-half of a point AR Insurance License #100102691 • CA Insurance License #0G39709 for appellant’s prior Illinois conviction In CA d/b/a Mercer Health & Benefits Insurance Services LLC for possessing 1.7 grams of cocaine. The 85481 (5/19) Copyright 2019 Mercer LLC. All rights reserved. court of appeals holds that the district court did not abuse its discretion. Under the sentencing guidelines, a prior out- of-state felony conviction can be used in 85481 MSBA AP Ad (2019) calculating a criminal history score, and Ad size: 4.625” x 7.375” an out-of-state conviction is considered a Folds to: N/A Perfs: N/A felony if the offense would be defined as Colors: 4/C = CMYK a felony in Minnesota and the defendant Stock: N/A Postage: N/A Misc: N/A received a felony-level sentence, includ- ing the equivalent of a stay of imposition. Here, the Illinois offense would be a felony under Minnesota law and the court of appeals agrees with the district court’s conclusion that the sentence ap- pellant received in Illinois, 24 months of probation, is functionally equivalent to a stay of imposition. The Illinois sentenc- ing order85481 MSBAstates All thatPlans Ad.indd“failure 1 to follow the 4/9/19 8:42 AM conditions of this sentence or probation www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 37 Notes&Trends | CRIMINAL LAW

could result in a new sentence up to the rights. The court of appeals found Minn. The Court then considers the driver’s maximum penalty for the offense which Stat. §169A.63, subd. 9(d), constitu- and owner’s as-applied challenges to the is before this Court,” which is consistent tional on its face but unconstitutional as DWI forfeiture statute, addressing each with the court of appeals’ description of applied to both the vehicle driver and of the three factors laid out in Mathews. the characteristics of a stay of imposition owner. The Supreme Court ultimately As to the driver, the Court finds the in State v. C.P.H., 707 N.W.2d 699, 702 agrees with the court of appeals that the statute constitutional as applied. That (Minn. Ct. App. 2006): “By staying the statute is constitutional on its face, but is, the Court determines the driver’s PJT feb 08 1/9/08 10:16 AMimposition Page 1 of the sentence, the district finds it constitutional as applied to the right to due process was not violated by court reserves the right, in the event the driver and unconstitutional only as ap- the 18-month delay before her demand defendant does not meet certain condi- plied to the owner. for judicial determination was heard, tions, to vacate the stay and impose a In its analysis, the Supreme Court because the driver does not own the sentence.” The district court is af- first affirms that the framework outlined vehicle and has a limited private interest firmed.State v. Watson, No. A18-1187, in Mathews v. Eldridge, 424 U.S. 319 in keeping the vehicle. The state, on 2019 WL 1233383 (Minn. Ct. App. (1976), applies to determine whether the other hand, has a significant fiscal, 3/18/2019). the delay in this case, driven by the DWI functional, and administrative interest in forfeiture statute’s mandate that no ju- protecting the public and not conducting n Forfeiture: Due process requires dicial hearing on the demand for judicial pre-seizure hearings, and the pre-seizure prompt hearing on innocent owner determination occur until after the re- process for determining whether forfei- defense. The driver of a 1999 Lexus lated criminal proceedings are concluded ture is authorized is reliable. was arrested for first-degree DWI and (“the central question in [the] case”), However, the Court’s balancing of the vehicle, owned solely by the driver’s violated due process. the Mathews factors as to the owner mother, was seized. Both the driver and The Supreme Court concludes that lead the court to hold that due pro- her mother challenged the forfeiture of section 169A.53, subdivision 9(d), is cess requires a prompt hearing for the the vehicle, arguing the DWI vehicle facially constitutional, “[b]ecause we vehicle owner. Even though she cannot forfeiture statute was unconstitutional can conceive of a circumstance where drive the vehicle because her license for violating their due process rights. The the legitimacy of the forfeiture (and the was cancelled, she still has a significant driver’s mother also asserted the inno- demand for judicial determination) can financial interest in the vehicle. She also cent-owner defense. The district court be resolved in a constitutionally prompt was not driving the vehicle and had an agreed that the statute violated both manner following the swift resolution of innocent owner claim, which received the driver and the owner’s due process the underlying criminal proceedings…” no pre-seizure consideration. The scope of a hearing would be limited to consid- ering her innocent owner defense, and Sheriff IndemnityIndemnity Supersedeas SupersedeasTRO Appeal Receivers TRO Trustees rusteesAppeal Appealthis would not pose a substantial burden WHEN Judgment PERFORMANCE Receivers TRO TrusteesSupersedeas COUNTS Appeal on courts and . Thus, the Indemnity Supersedeas 18-month delay between the seizure of Replevin rustees Appealher property and the hearing on her de- mand for judicial determination violated Replevin Sheriff her right to procedural due process. To rustees remedyAppeal this violation, the Court orders that the defendant vehicle be returned Replevin Sheriff to its owner. Olson v. One 1999 Lexus, Conservatorship Guardianship GuardianshipT HE Judgment PA TJudgmentRICK Receivers J TRO T H TrusteesOMAS Appeal AGENCY rustees Appeal Supersedeas 924 N.W.2d 594 (Minn. 3/13/2019). Attachment Certiorari SURETY BONDING and INSURANCE Conservatorship Guardianship Guardianship Judgment Receivers n Physician-patient privilege: Blood Supersedeas Trusteessample drawnAppeal during medical emer- Attachment CertiorariWith over 40 years experience PJT has been Minnesota’s gency not “information” covered Conservatorship Certiorari Guardianship Replevin SheriffJudgment Indemnity Receivers TRO T by physician-patient privilege. Law surety bonding specialist. With the knowledge, experienceSupersedeas Attachment Certiorari RO Trusteesenforcement Appeal found appellant bleeding from his head, lying in the street fol- Conservatorshipand guidance law firms expect from a bonding company. Certiorari Replevin Sheriff Indemnity Supersedeas Supersedeaslowing an ATV accident, and smelled Attachment alcohol on his breath before he was Conservatorshipatorship• GuardianshipSupersedeas • AppealsJudgment • Certiorari Receivers • Repl TROevin T • taken to the hospital. A deputy learned Certiorari Replevin Sheriff Indemnity Supersedeas ers TROthe Trustees hospital took Appeal a sample of appellant’s Attachment • Injunction • Restraining Order • Judgment • blood prior to giving a blood transfusion. Conserv vatorship• Certiorari Guardianship Replevin• Judgment •Sheriff ReceiversIndemnity TRO T• The deputy obtained a search warrant to License Bonds Trust Personal Representative ers TROseize the Trustees blood sample Appeal for testing, which Attachment Indemnity Supersedeas • Conservator • Professional Liability • ERISA • Fidelity • later revealed appellant’s blood alcohol Conser vatorship Certiorari Guardianship Replevin Judgment Sheriff ReceiversIndemnity TRO T concentration was 0.155. Prior to his trial for fourth-degree DWI, the district court AttachmentLocally owned and operated. Same day service with in house authority!Indemnity edeas Conservatorship Conser rustees Appealgranted appellant’s Attachment motion to suppress Judgment Receiv the blood sample as “information” subject Attachment121 South Eighth Street Suite 980, Minneapolis, MN 55402 to the physician-patient privilege. The Replevin Sheriff Supersedeas ConservatorshipIn St. Paulvatorship call (651) GuardianshipCertiorari Guardianship 224-3335 Guardianship Replevin or JudgmentMinneapolis Judgment SheriffJudgment (612) Receivers 339-5522ReceiversIndemnity Receiv TRO T court of appeals reversed, and the Su- AttachmentFax: (612) 349-3657 Certiorari• [email protected] Replevin Sheriff • www.pjtagency.comIndemnityivers TRO T preme Court affirms, finding that a blood Replevin Sheriff sample is not “information” within the Conser 38 Bench&BarAttachment of Minnesota s May/June 2019 www.mnbar.org Conservatorship Attachment Certiorari Conservatorship Guardianship Attachment Certiorari Guardianship Judgment Rece Certiorari Replevin Sheriff Indemnity | CRIMINAL LAW scope of the physician-patient privilege. appellant’s argument that the plain to procedural due process. The district The Supreme Court first clarifies that language of Minn. Stat. § 609.582, subd. court and court of appeals disagree. No its statements regarding “information” as 1(b), requires the victim to be present, statutory provision or case requires law used in the physician-patient privilege noting that the statute “requires the item enforcement to inform a driver that statute in State v. Staat, 192 N.W.2d 192 be ‘fashioned in a manner to lead the vic- they may refuse field sobriety testing or (Minn. 1971), and State v. Heaney, 689 tim,’ not a victim, to reasonably believe a preliminary breath test. Such tests are N.W.2d 168 (Minn. 2004), which ap- the item is a dangerous weapon.” By also not considered searches or custodial pellant argues supports his position that requiring a specific person, “the victim,” interrogations, so there are no constitu- a blood sample is “information,” were to have the reasonable belief, the statute tional obligations to support appellant’s merely dicta. Thus, the court examines requires that person to be present. argument. Appellant’s license revoca- the question of whether a blood sample is Because the victim in this case was not tion is affirmed. Otto v. Comm’r Pub. “information” as an issue of first impres- physically present during the burglary, Safety, 924 N.W.2d 658 (Minn. Ct. App. sion. Based on the plain and common the evidence is insufficient to support 3/25/2019). meaning of the word “information,” and appellant’s conviction for first-degree keeping in mind the court’s observation burglary. State v. Rogers, 925 N.W.2d 1 n Entrapment defense: Defendant need that “[t]here probably is no privilege… so (Minn. 3/20/2019). only show inducement by state, not that abused as the physician[-]patient privi- state’s conduct actually induced him. lege” and the need to ensure it does not n Implied consent: Deputy has no duty An acquaintance introduced H.F. to “become [a] vehicle[ ] for the suppression to notify driver that field sobriety and appellant, and they ran into each other of evidence which is not privileged,” the preliminary breath tests are optional. at a party a year later. Appellant saw Court concludes that a blood sample is Appellant was arrested for DWI after H.F. with Walker, who H.F. described not “information.” Quoting the diction- failing field sobriety tests and a PBT as her drug source. A couple of months ary definition of “information” published revealed his blood alcohol concentration later, H.F. contacted appellant through the same year the New York statute upon was 0.096. A subsequent breath test re- social media, asking him to help her which Minnesota’s physician-patient ported a blood alcohol concentration of obtain drugs from Walker, because her privilege statute is based, the Court 0.09, and appellant’s driver’s license was boyfriend would beat her out of jealousy explains that “[a] blood sample [itself] is revoked. Appellant argues the deputy if she contacted Walker herself. Appel- not ‘intelligence; notice, news, or advice had an obligation to inform him he could lant refused and H.F. offered him $500 communicated by word or writing.’” The refuse all field sobriety tests and that the to help. Appellant again refused. H.F. statute covers information itself, not deputy’s failure to do so violated his right contacted appellant multiple times in the objects that contain or carry information. State v. Atwood, No. A17-1463, 2019 WL 1142420 (Minn. 3/13/2019). n Burglary: Victim must have been present for first-degree burglary based on defendant’s possession of article victim believed was dangerous weapon. While J.T. was away, appellant burglar- ized J.T.’s home. A neighbor observed the burglary and notified police. When police arrived, they approached appellant in an alley behind the house and saw appellant drop what they believed was a gun. After arresting appellant, police discovered the item was a BB gun. After a court trial, appellant was convicted of first-degree and second-degree burglary. Appellant appealed his first-degree burglary convic- tion under Minn. Stat. §609.582, subd. 1(b), which elevates burglary to a first- degree offense if “the burglar possesses, when entering or at any time while in the building,… any article used or fashioned in a manner to lead the victim to reason- ably believe it to be a dangerous weapon.” Appellant argues the statute requires the victim be physically present and reason- ably believe the item is a dangerous weapon. The court of appeals affirmed his conviction, concluding the statute’s plain language requires only “that the article’s appearance supports an objective belief that it is a dangerous weapon.” The Supreme Court agrees with www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 39 Notes&Trends | CRIMINAL LAW following weeks, but he did not answer manded. State v. Juan Neil Garcia, No. Minnesota Correctional Facility. Thus, her calls. Eventually, he answered one of A18-0343, 2019 WL 1757995 (Minn. the conditional release imposed under the calls. H.F. asked if Walker would be Ct. App. 4/22/2019). Minn. Stat. §169A.276, subd. 1(d), at a party appellant planned to attend begins when a Challenge Incarceration and asked Appellant to hand his phone n Conditional release: Phase II of Chal- Program participant enters phase II and to Walker so H.F. could buy drugs from lenge Incarceration Program is “re- begins living in the community. Heilman Walker. Appellant agreed to let Walker lease from prison.” Appellant received v. Courtney, No. A17-0863, 2019 WL use his phone at the party. At the party, a 51-month sentence and five-year 1781483 (Minn. 4/24/2019). Walker used appellant’s phone to arrange conditional release term for first-degree a drug exchange with H.F. Walker told test refusal in June 2007. In July 2008, n Confrontation clause: Direct or appellant to go to the meeting loca- he moved into phase II of the Challenge circumstantial evidence may be used to tion to look for H.F. Appellant ended Incarceration Program, which allowed prove defendant caused unavailability up walking a bag of methamphetamine him to reside at home. He entered phase of witness. Appellant was convicted of from Walker’s car to H.F. in her car and III in January 2009, but was returned violating a domestic abuse no contact or- walking cash from H.F. to Walker in his to phase II in April 2009 for failing to der (DANCO). During trial, jail-record- car. He did not use any of the drugs or remain sober. A few months later, he was ed phone calls between appellant and take any of the money. H.F. had been returned to custody for again failing to the victim, the contact that violated the working the entire time as an informant remain sober. He was released in Decem- DANCO, were played for the jury. How- making controlled drug purchases. After ber 2010 and remained on supervised ever, the victim did not appear pursuant being charged with first-degree sale of a release until he was taken into custody to the state’s subpoena. The state had controlled substance, appellant raised an again in March 2014 for failing to satisfy jail-recorded phone calls by appellant entrapment defense. However, the dis- treatment requirements. He was released during which he was looking for some- trict court rejected the defense, finding again in May 2014. one to seek out the victim and make appellant failed to show that the govern- Appellant argues that entering phase sure she did not appear in court. The ment induced him to participate in the II triggered the start of his conditional district court allowed the detective to transaction. After a stipulated facts trial, release term, which would have then testify that, during an interview with the the district court found appellant guilty. expired in July 2013. Therefore, when the victim, the victim confirmed she was the To initiate the entrapment defense state revoked his conditional release in female voice in the recorded calls played procedures, the defendant notifies the March 2014, his conditional release term for the jury. Appellant testified that he of the facts supporting the de- had already expired, and his subsequent was the male voice in the recordings, but fense and whether he chooses the jury or incarceration was unlawful. The court of that the female voice was not the victim. court to decide the issue of entrapment. appeals found that both appellant’s condi- The jury found appellant guilty of four If he elects to have the court decide the tional and supervised release terms began counts of violating the DANCO. issue, a hearing is held and the court at the same time, in December 2010. The court of appeals holds the district addresses (1) whether the defendant has The Supreme Court reverses the court did not err in applying the forfei- first shown by a preponderance of the court of appeals, concluding that ap- ture by wrongdoing exception to permit evidence that the government induced pellant’s conditional release term began the victim’s out-of-court statements to him to commit the crime, and (2) when he entered phase II of the Chal- be admitted as substantive evidence, whether the state can then prove beyond lenge Incarceration Program. The Court because appellant procured the victim’s a reasonable doubt that the defendant notes that “[f]unctionally, conditional unavailability. Appellant does not chal- was predisposed to commit the crime. release is identical to supervised re- lenge that the victim was unavailable, The court of appeals concludes that lease.” However, while supervised release that he engaged in wrongful conduct, or the district court “conflated the two el- occurs with most felony sentences, an that he intended to procure the victim’s emental steps of the entrapment analysis additional conditional release period is unavailability for trial, but argues he or into one, loading Garcia with an expand- imposed for a certain classes of offend- his family members did not cause the ed burden of proof.” The defendant has ers. For first-degree DWIs, Minn. Stat. victim to be unavailable, because the the burden of showing inducement, not §169A.276, subd. 1(d), provides that af- state did not present evidence as to why that the inducement was his motivating ter the offender “has been released from exactly the victim did not appear. force. The first step focuses on the state’s prison the commissioner [of corrections] In concluding that appellant’s wrong- actions, while the second step focuses shall place the person on conditional ful conduct actually caused the victim’s on the defendant’s predisposal to com- release for five years.” The plain meaning failure to appear, the district court relied mit the offense. The court clarifies that of “release” was recently defined by the on circumstantial evidence: The victim the defendant’s burden is to prove not court as “to set free from confinement or met with the detective on the first day that the government’s conduct actually bondage.” State ex rel. Duncan v. Roy, 887 of trial, she called appellant’s attorney to induced him but to make a showing from N.W.2d 271, 277 (Minn. 2016). For both say she would testify the next day, and the evidence that the state’s conduct supervised and conditional release, the then she failed to appear after appellant demonstrated inducement. “release” begins when the offender is “set sent his family to tell her not to come. The record shows appellant did meet free from confinement.” In Minnesota, direct and circumstantial his burden of production. However, the Under the Challenge Incarcera- evidence carry the same weight. Thus, district court never reached the second tion Program, confinement is required the court holds that a district court “may step in the entrapment defense analysis, for phase I, but not phase II. In phase draw reasonable inferences from circum- and the state must be afforded the op- II, participants are subject to intense stantial evidence in determining whether portunity to prove beyond a reasonable supervision and surveillance and house a defendant’s wrongdoing procured the doubt that appellant was predisposed arrest conditions, but they live in the unavailability of a witness.” Here, the to commit the crime. Reversed and re- community and are not confined in a record supports the inferences drawn by

40 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org | EMPLOYMENT & LABOR LAW the district court from the circumstantial evidence that the claimant was “deliber- employee’s claim for temporary total evidence. The district court did not vio- ately” exaggerating his symptoms, which disability (TTD) benefits under the late appellant’s constitutional rights in barred his claim for disability. Johnston v. Workers’ Compensation Act cannot admitting the victim’s statements to the Prudential Insurance Company, 916 F.3d be offset by the benefits paid to the detective. State v. Shaka, No. A18-0778, 718 (8th Cir. 2/25/2019). employee for the same time period of 2019 WL 1890550 (Minn. Ct. App. disability under the employer’s self- 4/29/2019). n Repudiation of union agreement; en- funded, self-administered, short term forcement order granted. The National disability (STD) plan. Affirming a ruling SAMANTHA FOERTSCH Labor Relations Board (NLRB) obtained of the Workers’ Compensation Court Bruno Law PLLC an order adopting an administrative of Appeals, the state Supreme Court [email protected] law judge’s decision that the company held that an employer may not offset STEPHEN FOERTSCH violated the National Labor Relations the TTD benefits by amounts previously Bruno Law PLLC Act by repudiating its relationship with paid by it for STD benefits. Bruton v. [email protected] a contract and the local union. The 8th Smithfield Foods, Inc. 923 N.W.2d 661 Circuit upheld a determination by the (S.Ct. 2/27/2019). NLRB that the employer’s conduct was EMPLOYMENT & LABOR LAW unlawful and directed it to cease and ADMINISTRATIVE LAW desist, rejecting the employer’s claim n BMS dismissal upheld. The dismissal JUDICIAL LAW that the underlying charge was not filed by the Bureau of Mediation Services n At-will employment; loss of security within the required six months of the (BMS) of a petition seeking to de-certify clearance. An employee who refused to termination of the business relationship. a union purporting to represent certain participate in a debriefing in connection NLRB v. Westrum, 2019 WL 856597 personal care assistants was upheld by with his government security clearance (8th Cir. 2/22/2019) (unpublished). the Minnesota Court of Appeals in was properly terminated from his job. Certain Employees of State of Minnesota The 8th Circuit Court of Appeals, affirm- n Workers’ compensation; exclusivity v. SEIU Health Care MN, 2019 WL ing a lower court ruling, held that the no bar to disability claim. The exclusiv- 661660 (Minn. Ct. App. 2/19/2019) claimant could not pursue an action for ity provision of the Minnesota Work- (unpublished). The court rejected the wrongful termination because he was an ers’ Compensation Act, Minn. Stat. contention that legislation authorizing at-will employee, which is not overcome §176.031, does not bar claims for disabil- the collective bargaining agreement by his refusal to violate the law or any ity discrimination for failure to provide a violated the Article 4, Section 17, “title “public policy” in connection with the reasonable accommodation to a disabled and single subject provision” of the loss of a security classification necessary employee under the Minnesota Human Minnesota Constitution. The court held for his work. Dubuque v. Boeing Com- Rights Act, Minn. Stat. §363A.01 et that the legislation, which provided pany, 917 F.3d 666 (8th Cir. 2/2/2019). seq. Reversing a ruling of the court of funding to the Department of Human appeals, the state Supreme Court held Services to implement this collective n Discrimination and retaliation; failure that the exclusivity provision does not bargaining agreement, which had been to exhaust bars claim. A lawsuit for con- prevent claimant, a firefighter with the approved by Minnesota Management & structive discharge based upon discrimi- city of Minneapolis, from proceeding Budget (MMB) and authorized by it, was nation and retaliation failed because with a discrimination claim for failure to “broadly related” to state government the claimant did not exhaust some of accommodate his disability by allowing and the DHS budget and operation his claims before pursuing the litigation. him to wear tennis shoes at work. Daniel and, therefore, did not violate the The 8th Circuit, affirming a lower court v. City of Minneapolis, 932 N.W.2d 637 constitutional requirement. ruling, held that the failure to include (S.Ct. 2/27/2019). in a preceding charge before the Equal MARSHALL H. TANICK Employment Opportunity Commission n Workers’ compensation offset; Meyer, Njus & Tanick (EEOC) the adverse acts that the claim- self-funded plan inapplicable. An [email protected] ant now asserts forced him to resign barred his claim, as well as his at-will employment status, depriving him of any due process claim. Voss v. Housing Authority of City of Magnolia, Arkansas 917 F.3d 618 (8th Cir. 2/25/2019). ERISA DISABILITY CLAIMS n ERISA; insufficient evidence of continuing disability. An employee’s SA itiation is a arintine challenge to a determination by his ae o reations an tieines insurance carrier, terminating long-term et or eerience e disability benefits as part of his ERISA benefits, was dismissed on grounds of insufficient evidence. The 8th Circuit, NOLAN, THOMPSON, LEIGHTON & TATARYN, PLC upholding a decision of the trial court, held that even though the employee Rob Leighton Denise Tataryn presented “some evidence” of disability (952) 405-7177 952-405-7178 from medical providers, the insurer did not abuse its discretion because it had www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 41 Notes&Trends | ENVIRONMENTAL LAW

ENVIRONMENTAL LAW Bear Lake and violated both MERA and tion Association v. Minn. Dept. Nat. the public trust doctrine. Res., No. A18-0750, (Minn. Ct. App., JUDICIAL LAW The appellate court’s MERA hold- 4/22/2019). n Court of appeals rejects claims that ing focused on the interplay between DNR violated MERA and public trust sections 116B.03 and 116B.10 of MERA. n Minnesota Supreme Court finds drain- doctrine in permitting groundwater Section 116B.03, subd. 1 establishes a age system reestablishment proceed- pumping near White Bear Lake. The cause of action that any person resid- ings are subject to certiorari review. Minnesota Court of Appeals issued an ing in the state can bring against “any The Supreme Court of Minnesota issued opinion overturning the Ramsey County person” for the protection of natural re- an opinion that an order by a drainage District Court and rejecting claims that sources; to a successful plaintiff, the court authority reestablishing drainage-system the Minnesota Department of Natural can grant direct equitable relief necessary records under Minnesota Statutes, Resources (DNR) had violated both the to protect the natural resources. Minn. Section 103E.101, subd. 4a is a quasi-ju- Minnesota Environmental Rights Act Stat. §116B.07. Section 116B.10, on the dicial decision subject to certiorari review. (MERA) and the public trust doctrine in other hand, establishes a cause of action The Chippewa/Swift Joint Board of its handling of groundwater appropria- against a state agency that has issued an Commissioners had received a request tions affecting water levels of White Bear environmental quality permit where the from landowners for repairs to be made Lake in the northeast area of the greater plaintiff claims the permit is inadequate to Chippewa and Swift Ditch No. 9. Twin Cities. to protect natural resources. However, While considering the request, the board Plaintiffs initiated the lawsuit in 2013 under section 116B.10, subd. 3, the only determined that the original records as lake levels in the relatively shallow available relief for a successful plain- establishing the drainage system had and groundwater-fed White Bear Lake tiff (apart from emergency temporary been lost, destroyed, or were otherwise reached historic lows. Plaintiffs claimed injunctive relief) is for the court to remit incomplete and that it was necessary to DNR permitted an unsustainable and the matter to the agency to for further reestablish the records before proceeding increasingly large volume of groundwater administrative proceedings. with any repairs. As part of reestablishing to be pumped in the northeast metro In this case, plaintiffs asserted their the record, the board submitted a report area, which relies almost exclusively on MERA claim against DNR over the to the Minnesota Department of Natural groundwater for municipal water sup- inadequacy of its water appropriation Resources (DNR) for their review. In a ply. DNR’s conduct, plaintiffs argued, permits not under the agency-permit written response and at a public hearing, directly led to the drawdown of White provisions of section 116B.10 but under the DNR expressed concerns that the the more general provisions of section board's reestablishment proposal would 116B.03. The district court held that have the effect of lowering the water this was permissible and proceeded to levels of nearby wetlands and recom- grant direct relief, right down to dictat- mended specific changes. Subsequently, ing the times of year that residents in the board issued its order reestablishing the northeast metro area could operate the drainage system’s records, without lawn sprinklers. On appeal, the court incorporating the changes recommended of appeals held that this interpretation by the DNR. The DNR then petitioned of MERA effectively rendered section the Minnesota Court of Appeals for a 116B.10 of no effect, contravening writ of certiorari. The board moved to principles of statutory interpretation, dismiss the appeal for lack of jurisdic- and would authorize courts to “issue tion. The court of appeals found that the remedies outside of the ordinary ad- board’s order was not a quasi-judicial de- ministrative process established by the cision and thus was not subject to review legislature.” Because plaintiffs had stated by certiorari and dismissed the appeal for a claim under section 116B.10, however, lack of jurisdiction. the court reversed and remanded to the On review, the Supreme Court reiter- district court to “remit the parties to the ated and applied the three indicia for DNR to institute appropriate administra- determining whether a decision is quasi- tive proceedings.” judicial, all of which must be present With regard to the public trust for certiorari review: (1) investigation doctrine—which provides that the state, into a disputed claim and weighing of in its sovereign capacity, holds absolute evidentiary facts; (2) application of those title to all navigable waters and the soil facts to a prescribed standard; and (3) a under them for common use—the court binding decision regarding the disputed of appeals followed its prior decision in claim. Both the DNR and the board Aronow v. State, 2012 Minn. Dist. LEXIS agreed that the first two indicia were 171 (Minn. Ct. App. 2012), holding satisfied; accordingly, the court focused that the doctrine had only been applied on the third factor—whether the board’s in Minnesota to navigable water and order was a binding decision. The Court that only the Minnesota Supreme Court first found that the plain language of sec- could create a new common law cause tion 103E.101, subdivision 4a indicates of action by extending the doctrine to that the record-reestablishment order resources other than navigable water, e.g. at issue was a binding order regarding groundwater. White Bear Lake Restora- the disputed claim at hand, i.e., whether

42 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org | ENVIRONMENTAL LAW | FAMILY LAW | FEDERAL PRACTICE the drainage-system records were party introduced such evidence (at least FEDERAL PRACTICE reestablished correctly. Next, the Court as to wife) and the court could not be concluded that because many of the es- expected to “divine new evidence” from JUDICIAL LAW sential procedures for the establishment of the record. Husband appealed, arguing n Classwide arbitration; ambigu- a drainage system, which the court noted the trial court committed error by calcu- ous agreement. A divided Supreme is “undisputedly a quasi-judicial proceed- lating spousal maintenance based on his Court held 5-4 held that an ambiguous ing,” are also found in the procedures gross income. arbitration agreement does not establish for reestablishment of a drainage system’s While acknowledging the inadequacy the contractual “consent” necessary to records, record-reestablishment proceed- of the record presented to the lower provide for class arbitration. ings should similarly be deemed quasi- court, the court of appeals still reversed Four separate dissenting opinions judicial. Finally, the Court found that and remanded. Stressing the importance either questioned the Court’s subject the reestablishment of drainage-system of husband’s ability to pay, the appel- matter jurisdiction and/or criticized the records had a significant binding effect late court observed that husband’s tax majority’s decision on the merits. Lamps on the rights of the adjacent landowners liability “could significantly affect the Plus, Inc. v. Varela, ___ S. Ct. ___ and other interested parties. Accord- amount of income available to pay a (2019). ingly, the Court held that an order by a spousal maintenance award,” and thus drainage authority reestablishing drain- must be factored either into the calcula- n Cy pres settlement; standing; Spokeo. age-system records is a quasi-judicial tion of husband’s income or as part of Where plaintiffs brought class action decision subject to quasi-judicial review. his expenses. Here, the lower court did claims against Google alleging violations The Court reversed and remanded to neither. Accordingly, the court of appeals of the Stored Communications Act, a the court of appeals with instructions remanded the case, instructing the lower settlement agreement was reached which to reinstate the appeal. Minn. Dep’t of court to reopen the record to receive provided for payments to counsel and cy Nat Res. v. Chippewa/Swift Joint Bd. evidence as to both parties’ net incomes. pres recipients but no payments to absent of Comm’rs, 2019 Minn. LEXIS 189 Wood v. Wood, No. A18-0722, 2019 WL class members, a number of class mem- (Minn., 4/3/2019). 1591767 (Minn. Ct. App. 4/15/2019). bers objected to the proposed settlement, the district court approved the settle- JEREMY P. GREENHOUSE MICHAEL BOULETTE ment and the 9th Circuit affirmed, the The Environmental Law Group, Ltd. Barnes & Thornburg LLP Supreme Court, in a per curiam opinion, [email protected] [email protected] avoided the issue of the validity of the JAKE BECKSTROM Admitted to MN bar 2017 ERIK ORDAHL Flaherty & Hood, P.A. FAMILY LAW “Cottrell does Mediation JUDICIAL LAW n District Court must calculate spousal maintenance using net incomes, even for a reasonable fee” if the parties don’t provide them. After 35 years of marriage, husband and wife divorced following a two-day bench trial on the issue of spousal maintenance. At the time of trial, the trial court imputed $2,860 in gross income to wife (then unemployed) and found her expenses to be $5,825 per month. By comparison, the trial court found husband earned gross income of $7,478.44 per month, with expenses of only $4,655. Comparing just gross income and expenses, Husband thus enjoyed a $2,800 monthly income surplus while wife suffered a deficit of $2,900 per month. Accordingly, the trial William G. Cottrell Andrew A. Green court awarded wife spousal maintenance [email protected] [email protected] of $2,700 per month. In post-trial motions, husband sought amendments to the court’s findings, • Consumer Collections on Contingent Fee • Debt Recovery observing that his income net of taxes • Experienced in Business Litigation • Construction Litigation was only $3,875 per month—resulting in a maintenance award which consumed 70% of his take-home pay. The court denied husband’s motion, observing Cottrell Green PA cottrelllawfirm.com that while findings regarding net income 2287 Waters Dr., Mendota Heights, MN 55120 Call Us 651-905-0496 would normally be appropriate, neither www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 43 Notes&Trends | FEDERAL PRACTICE | INDIAN LAW cy pres settlement, vacating and remand- “other forms of government actions” than $50,000 in damages, and the ing the case for consideration of whether did not apply to bylaws adopted by the defendant removed the action only after plaintiffs have standing following Spokeo, Minnesota State High School League, the plaintiff served its initial disclosures, Inc. v. Robins, 136 S. Ct. 1540 (2016). because those bylaws were not based which also asserted that it incurred more Justice Thomas dissented, finding on “presumptively reasoned democratic than $3,000,000 in damages, Judge Doty that the plaintiffs had standing, and de- processes.” D.M. ex rel. Xiong v. granted the plaintiff’s motion to remand, termining that cy pres payments are not Minnesota State High School League, finding that the pre-litigation demand a form of relief to absent class members, 917 F.3d 994 (8th Cir. 2019). constituted “other paper” sufficient and did not otherwise comply with Fed. to put the defendant on notice of the R. Civ. P. 23. Frank v. Gaos, ___ S. Ct. n Punitive damages; due process. amount in controversy. Judge Doty did ___ (2019). Where a jury awarded the plaintiff in deny the plaintiff’s motion for an award an employment discrimination case $1 of costs and expenses under 28 U.S.C. n Successive motions to intervene; in compensatory damages and $250,000 §1447(c), finding that the defendant’s timeliness of appeal. The 8th Cir- in punitive damages, the 8th Circuit position was not “objectively unreason- cuit found an appeal by prospective rejected a due process challenge to the able.” Repco, Inc. v. Flexan, LLC, 2019 intervenors to be untimely where the punitive damage award, “declin[ing] to WL 1170667 (D. Minn. 3/13/2019). intervenors filed successive motions to place undue weight on the mathematical Judge Tostrud granted the plaintiff’s intervene on virtually identical grounds, ratio between compensatory and puni- motion to remand an action that had and the intervenors filed a motion to tive damages.” Bryant v. Jeffrey Sand been removed on the basis of federal appeal only after the denial of the second Co., 919 F.3d 520 (8th Cir. 2019). question jurisdiction, finding that the of their motions. The 8th Circuit found plaintiff’s reference to federal regulations that “[t]he denial of a second motion n Appeal from denial of motion underlying her Minnesota whistleblower to intervene covering the same grounds to remand moot following entry of claims was “not substantial” enough to as the first motion... does not reset the summary judgment. In an unpublished support federal question jurisdiction. clock for purposes of an appeal [because] opinion, the 8th Circuit declined to rule Martinson v. Mahube-Otwa Commu- holding otherwise would defeat the on the plaintiff’s post-summary judgment nity Action Partnership, Inc., 2019 WL statutory timeliness requirement.” Smith appeal from the denial of his motion to 1118523 (D. Minn. 3/11/2019). v. SEECO, Inc., ___ F.3d ___ (8th Cir. remand premised on the defendant’s Judge Brasel granted two motions to 2019). alleged untimely removal of the action, remand, finding in both cases that the finding that once the case had proceeded complaints did not allege claims arising n Americans with Disabilities Act to summary judgment, it would not under federal law, and that no exception claims; mootness. Affirming Judge address a non-jurisdictional procedural to the well-pleaded complaint rule ap- Doty’s grant of a motion to dismiss ADA defect. Shelby v. Oak River Ins. Co., ___ plied. General Mills, Inc. v. Retrobrands claims, the 8th Circuit agreed with Judge F. App’x ___ (8th Cir. 2019). USA, LLC, 2019 WL 1578689 (D. Doty that he lacked subject matter Minn. 4/12/2019). City of Cambridge jurisdiction over the claims once the n 28 U.S.C. §1782; orders on motions v. On Love Housing, LLC, 2019 WL defendant remedied the alleged ADA for discovery for use in a foreign 1499724 (D. Minn. 4/5/2019). violations. Davis v. Morris-Walker, Ltd., proceeding. Magistrate Judge Rau ___ F.3d ___ (8th Cir. 2019). granted two recent requests under 28 JOSH JACOBSON U.S.C. §1782. Law Office of Josh Jacobson n Denial of motion to disqualify attorney In the first case, a Czech court [email protected] treated as harmless error. While finding requested assistance in obtaining that a district court should have granted information from a bank headquartered the defendant’s motion to disqualify a in Minnesota, and its “narrowly tailored” INDIAN LAW large Twin Cities law firm from repre- request was granted. In Re: Request for senting the plaintiff, the 8th Circuit Judicial Assistance from the Municipal JUDICIAL LAW found that the failure to disqualify Court in Brno, Czech Republic, 2019 n No jurisdiction under the Indian constituted “harmless error” absent any WL 1513897 (D. Minn. 4/8/2019). Tucker Act. The Indian Tucker Act evidence that the law firm had improp- One day later, a motion was granted allows Indian tribes to bring certain erly used the defendant’s confidential allowing “narrowly tailored” discovery statutory claims for monetary damages information and the defendant failed to from the same bank in aid of litigation against the United States. The plaintiff establish any other harm arising from the pending in Brazil and Singapore, as well sued the United States for title to land conflict.Cedar Rapids Bank & Trust as a Brazilian arbitration. In Re: Appli- based on the United States’ common- Co. v. Mako One Corp., 919 F.3d 529 cation of CA Investment (Brazil) S.A. law trust responsibility. The Court of (8th Cir. 2019). for an Order to Take Discovery for Use Claims dismissed for lack of jurisdiction. in Foreign Proceedings Pursuant to 28 The Federal Circuit Court of Appeals n Preliminary injunction; relevant U.S.C. §1782, 2019 WL 1531268 (D. affirmed, holding that the Indian Tucker standard; state action. Reversing Judge Minn. 4/9/2019). Act does not provide jurisdiction for Magnuson’s denial of the plaintiffs’ claims brought by individuals or for motion for a preliminary injunction n Numerous motions to remand granted. claims brought based on the United allowing them to compete in high school Where the defendant had received a States’ common-law trust responsibility. competitive dance, the 8th Circuit pre-litigation demand asserting that Cloud v. United States, ___ Fed. App’x held that the “heightened standard” the plaintiff had suffered more than ___, 2019 WL 1579599 (Fed. Cir. applicable to preliminary injunction $3,000,000 in damages, the plaintiff’s 4/12/2019). motions aimed at “state statutes” and state court complaint demanded more

44 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org | INDIAN LAW | INTELLECTUAL PROPERTY TRADEMARK n Tribal-court exhaustion and immunity copyrightable and denied Coaster’s Copyright & Patent Searches apply to §1983 claims. A pro se non- motion. The court agreed with the view Indian plaintiff sued a tribe and tribal that registration of a collective work “Experienced Washington office law-enforcement officers for allegedly covers its component works where the for attorneys worldwide” violating his federal constitutional rights. registrant has rights to the component The district court dismissed the claims works, and found that this view aligned FEDERAL SERVICES & RESEARCH: against the tribe and official-capacity with “the spirit of the Copyright Act.” Attorney directed projects at all Federal agencies in Washington, DC, including: claims on immunity grounds, and the 8th The court also held that FDN had USDA, TTB, EPA, Customs, FDA, INS, Circuit Court of Appeals affirmed, con- plausibly stated its DMCA claim, which FCC, ICC, SEC, USPTO, and many others. firming that 42 U.S.C. §1983 does not was based on Coaster intentionally Face-to-face meetings with Gov’t officials, Freedom of Information Act requests, abrogate tribal immunity. The district removing or altering copyright manage- copyright deposits, document legalization court separately dismissed the individ- ment information from FDN’s protected @ State Dept. & Embassies, complete ual-capacity claims against the officers works. FDN alleged that it placed a trademark, copyright, patent and TTAB without prejudice for failure to state notice on each of its webpages informing files. a claim. The 8th Circuit affirmed, but the viewer of its rights in the content COMPREHENSIVE: U.S. Federal, on other grounds. It applied the tribal- and prohibiting reproduction without State, Common Law and Design searches, court exhaustion doctrine and held that permission. Although Coaster argued INTERNATIONAL SEARCHING the tribal court should determine first that the notice should not apply to the EXPERTS: Our professionals average over 25 years experience each whether the plaintiff can maintain im- SEO text on the website, the court re- FAST: Normal 2-day turnaround plied federal claims against the officers. jected Coaster’s arguments and followed with 24-hour and 4-hour service available It also applied Pullman abstention—pre- case law holding that such designations viously limited to cases involving state extend to individual contributions from GOVERNMENT LIAISON SERVICES, INC. law and state courts—noting that the a collective work and to copies of an 200 N. Glebe Rd., Suite 321 tribal court may grant adequate relief original work. FurnitureDealer.Net, Inc. Arlington, VA 22203 under the Indian Civil Rights Act and v. Amazon.com, Inc., No. CV 18-232 Ph: 703-524-8200, Fax: 703-525-8451 tribal law and moot the federal claims. (JRT/HB), 2019 WL 1207011 (D. Minn. Minutes from USPTO & Washington, DC Stanko v. Oglala Sioux Tribe, 916 F.3d 3/14/2019). 694 (8th Cir. 2019). TOLL FREE:1-800-642-6564 n Trademark: Goodwill belongs to www.GovernmentLiaison.com JESSICA INTERMILL licensor, not licensee. Judge Wright [email protected] Hogen Adams PLLC recently denied a motion for tempo- [email protected] rary restraining order and preliminary PETER J. RADEMACHER injunction in a franchisee-franchisor Hogen Adams PLLC dispute. Izabella HMC-MF, LLC, owns [email protected] and operates the Radisson Menominee Falls Hotel in Menominee Falls, Wiscon- sin. In January 2019, Radisson Hotels INTELLECTUAL PROPERTY International, Inc., informed Izabella that it allegedly breached the parties’ JUDICIAL LAW licensing agreement due to unauthor- n Copyright: Court holds copyright ized renovations of the hotel. Radisson and DMCA claims may remain. Judge informed Izabella that failure to cure the Tunheim recently denied a defendant’s breach would result in termination of the motion to dismiss claims for copyright agreement and loss of the Radisson mark infringement and violation of the Digital for its hotel. Izabella sued to prevent ter- Millennium Copyright Act (DMCA). mination of the license and moved for a FurnitureDealer.net (FDN) creates and temporary restraining order and prelimi- manages websites and associated content nary injunction. In considering whether for furniture retailers. Coaster entered a temporary restraining order or prelimi- into an agreement with FDN to create nary injunction is warranted, courts con- and maintain a website for selling Coast- sider four factors: (1) the probability that er’s furniture and to create search-en- the movant will succeed on the merits, gine-optimized (SEO) text to maximize (2) the threat of irreparable harm to the the website’s search prominence. The movant, (3) the balance between this SEO text was part of FDN’s database, harm and the injury that the injunction registered as a copyrighted collection, will inflict on other parties, and (4) the and FDN also retained exclusive rights public interest. The court focused ex- to the text under the agreement. FDN clusively on the irreparable harm factor. sued Amazon and Coaster for copyright Izabella argued termination of the licens- and DMCA violations after finding the ing agreement would result in a reduced SEO text on several Amazon webpages number of bookings and substantial loss featuring Coaster furniture. Coaster of revenue. These injuries, however, moved to dismiss the claims under Rule are compensable by monetary damages 12(b)(6). and do not represent irreparable harm. The court held the SEO text was Izabella next argued termination of the www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 45 Notes&Trends | INTELLECTUAL PROPERTY | PROBATE & | REAL PROPERTY licensing agreement would cause harm the controller. The patent statute only incurred in good faith.’” (Emphasis in to Izabella’s reputation and goodwill if it requires drawings “where necessary for original.) On the other hand, the court lost its Radisson branding. While the loss the understanding of the subject matter held that Minn. Stat. §501C.1004, of intangible assets such as reputation sought to be patented.” The court de- as supplemented by the common law, and goodwill can constitute irreparable termined that a drawing of an electronic controls awards of beneficiary attorneys’ injury, the goodwill arising from a li- controller would not have been required fees. Specifically, the court held that censed brand belongs to the licensor, not for prosecution of the patent application. “beneficiary fees are subject to a justice- the licensee. As the licensing agreement Danfoss Power Sols. Inc. v. DeltaTech and-equity analysis” and that district states that Radisson owns the Radis- Controls, No. 16-CV-3111 (NEB/DTS), courts are required to conduct the son marks and goodwill associated with 2019 U.S. Dist. LEXIS 59915 (D. Minn. analysis outline in In re Atwood, 35 them, Izabella cannot demonstrate that 4/8/2019). N.W.2d 736, 740 (Minn. 1949). Because its loss of the Radisson branding will ir- the district court did not apply the reparably harm any goodwill that belongs TONY ZEULI proper standard, the court of appeals to Izabella. Izabella Hmc-Mf v. Radis- Merchant & Gould reversed and remanded. In re Schauer, son Hotels Int’l, Case No. 19-cv-1147 [email protected] No. A18-0969, 2019 WL 1510698 (WMW/ECW), 2019 U.S. Dist. LEXIS JOE DUBIS (Minn. Ct. App. 4/8/2019). 79073 (D. Minn. 5/10/2019). Merchant & Gould [email protected] CASEY D. MARSHALL n Patent: Term in preamble is a claim RYAN BORELO, Merchant & Gould Bassford Remele limitation. Judge Brasel recently issued a [email protected] [email protected] claim construction order and found that a term in the patent claim’s preamble was also a claim limitation. Danfoss ac- PROBATE & TRUST LAW REAL PROPERTY cused DeltaTech of infringing a patented joystick device used to control heavy JUDICIAL LAW JUDICIAL LAW machinery. The disputed term “main n Trustee and beneficiary attorneys’ n Partition; settlement; royalties. In electronic controller” appeared in the fees. Following the settlement of disputes a family partition action, the parties patent claim preamble, which generally between the trustee and a beneficiary, settled the matter in a stipulated introduces the claimed invention, and in the district court held that attorneys’ fees judgment. Leland conveyed his interest the patent claim body, which defines the incurred by both the trustee and benefi- in a gravel pit to Randy, and reserved claimed invention. The parties disputed ciary were payable from the trust. The an interest in royalties. Believing he was whether the term in the preamble fur- district court awarded the beneficiary at- underpaid, years later Leland obtained ther defined the invention. Judge Brasel torneys’ fees based primarily on the fact post-judgment discovery and a contempt noted federal circuit precedent holds that the trustee was awarded attorneys’ order against Randy. The Minnesota that a phrase found in both a patent fees for the same dispute. Supreme Court reversed the district claim’s preamble and body can limit the The Minnesota Court of Appeals court and the court of appeals, holding claim. The court found that the claim reversed and remanded on the basis that that the creation of an unaccrued royalty depended on the preamble phrase “a re- the district court failed to conduct the interest at the time of the stipulation and motely located main electronic control- proper analysis with respect to whether conveyance is a real property interest, ler” because the phrase was required to trustee and beneficiary attorneys’ fees and does not create a judgment debt. understand the term “a main electronic are payable from a trust. The court Leland was therefore not entitled to controller” as used in the claim body. held that Minn. Stat. §501C.0709, post-judgment discovery. The Supreme The court rejected Danfoss’s arguments as supplemented by the common law, Court further held that the district that the claim was not limited by the controls awards of trustee attorneys’ court abused its discretion in issuing the phrase “main electronic controller” be- fees and that “trustees are entitled to contempt order because the court of cause the patent drawings did not show fees when ‘the fees are reasonable and appeals reversed a necessary finding of fact as unsupported by the record, and that contempt would be inappropriate in any event since a writ of execution was available. It is not obvious, however, why the Supreme Court would suggest such a course of action after previously holding that no judgment debt existed in the case. Sehlstrom v. Sehlstrom, ___ N.W.2d ___ (Minn. 2019).

n Annexation. Nonparties to an orderly annexation agreement may annex real property within the designated area by ordinance. Midway Township and the City of Duluth entered into an orderly annexation agreement governing annexation of property by Duluth. The city of Proctor lies between Midway and Duluth. Owners of property within the

46 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org | REAL PROPERTY | TAX LAW designated area desired to have Proctor §515B.3-103, if the unit owners do not those tax years, and failed to cooperate annex their property, which Proctor did call a meeting to vote in a new board with the Director’s investigation was by ordinance. Annexations by ordinance under Minn. Stat. §515B.3-103(d)(3), suspended indefinitely with no right are governed by Minn. Stat. §414.033, the board and its actions remain valid. to petition for reinstatement for 120 orderly annexations by Minn. Stat. KGK, LLC v. 731 Bielenberg Ass’n, No. days. In re Disciplinary Action Against §414.0325. The Supreme Court held A18-1265, 2019 WL 1510846 (Minn. Converse, No. A18-2077, 2019 WL that Minn. Stat. §414.0325 does not Ct. App. 4/8/2019). 2024863 (Minn. 5/6/2019). preempt annexations by ordinance by non-parties to the orderly annexation. In JOSEPH P. BOTTRELL n Minnesota still has taxing authority. re Annexation of Certain Real Property Meagher & Geer, PLLP A Minnesota resident filed 2014, to City of Proctor from Midway [email protected] 2015, and 2016 Minnesota tax returns Township, ___ N.W.2d ___ (Minn. reporting taxable income from wages 2019). and distributions. In 2017, after reading TAX LAW “various acts of Congress and court n Foreclosure. In a quiet title action, cases” the taxpayer “realized” that he is sheriff certificates of sale, assignments JUDICIAL LAW “not a taxpayer” and that the state (and of the certificate, and underlying n State tax pre-empted by 1855 treaty federal government) lacked authority to mortgages may be reformed by a district between the United States and Yakama tax him. He filed amended tax returns court to conform to the mortgaging Nation. In a 5-4 decision, the Supreme for all three years claiming no income. parties’ intent and to protect subsequent Court upheld the treaty rights of the The Minnesota Department of Revenue purchasers. The borrowers owned two Yakama nation in a dispute with the disagreed with the individual’s reading parcels of land. Their home was situated state of Washington. The Court held of the relevant authority. Further, after on only one parcel. In a refinancing, that the state could not impose its fuel reviewing the taxpayer’s returns for the the borrowers stated that the property import tax on fuel importers who are years at issue, the department assessed was their primary residence and their members of the Yakama nation because additional taxes for the years at issue. Mr. purpose for refinancing was home an 1855 treaty between the United Feliciano appealed this determination, improvement. Only one legal description States and the Yakama Nation forbids stating he “was not given a reason as to was included in the mortgage and the such a tax. Justice Breyer announced the where the Department of Revenue was subsequent sheriff’s certificate—the judgment and was joined in his opinion granted authority to tax [his] wages even parcel not including the home. Neither by Justices Sotomayor and Kagan. Justice after presenting evidence of who is liable the district court nor the court of appeals Gorsuch concurred in the judgment for taxes of compensation.” Mr. Feliciano were convinced that a failure to include and was joined in his opinion by Justice claimed that only the occupations listed the legal description of the house parcel Ginsburg. The Chief Justice’s dissent was within Public Salary Tax Act of 1939 can in the foreclosure process caused the joined by Justices Thomas, Alito, and be taxed. The Minnesota Department foreclosure to fail on a theory of strict Kavanaugh. Justice Kavanaugh also filed of Revenue sought a dismissal of Mr. compliance. The court of appeals held a separate dissent, which was joined by Feliciano’s action for failure to state that because both parcels shared the Justice Thomas. Washington State Dep't a claim. The tax court converted the same street address and because the of Licensing v. Cougar Den, Inc., 139 S. motion to dismiss to a motion for underlying mortgage also lacked a Ct. 1000 (2019). summary judgement because the tax legal description of the house parcel, court considered additional documents the foreclosure substantially complied. n Attorney’s failure to file Minnesota Mr. Feliciano submitted to oppose the Moore v. Mortgage Elec. Registration tax returns results in indefinite department’s motion. Mr. Feliciano’s Sys. Inc., No. A18-1370, 2019 WL suspension. An attorney who failed to arguments were without merit and the 1434232 (Minn. Ct. App. 4/1/2019). file Minnesota individual income-tax tax court granted the summary judgment returns for several years, failed to pay motion. Pereira v. Comm’r, Nos. 9232-R n MCIOA. The Minnesota Court of Minnesota tax obligations for two of & 9251-R (4/9/2019). Appeals recently affirmed a grant of summary judgment in a case concerning a dispute between a non-residential condominium unit owner and the association that touched on several MCIOA statutes. First, the court of appeals held that even when an association fails to approve a budget and levy assessments, resulting in the declarant becoming responsible for all common expenses under Minn. Stat. §515B.3-1151, the statute does not preclude the declarant from seeking reimbursement from unit owners, nor does payment by a unit owner to a declarant create a debt owing from the association to the unit owner. Second, even if a declarant-controlled board holds over in violation of Minn. Stat. www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 47 Notes&Trends | TAX LAW n Property tax cases; prevailing party’s required information includes financial Car Rental LLC v. Hennepin Co., No. costs and disbursements within discre- statements and other similar informa- 27-CV-17-04683, 2019 WL 1768464 tion of court. In a property tax appeal, tion. Minn. Stat. §278.05, subd. 6(a) (Minn. Tax 4/12/2019). See also Enter- prevailing party costs and disburse- (2018). Minnesota statute also provides prise Leasing Co. of Minnesota v. Hen- ments are governed by specific statutory that failure to provide the information nepin Co., No. 27-CV-17-04682, 2019 language, which provides that “Judgment “shall result in the dismissal of the peti- WL 1768442 (Minn. Tax 4/12/2019) shall be for the amount of the taxes for tion.” Minn. Stat. §278.05, subd 6(b) (dismissing nearly identical challenge on the year as the court shall determine (2018) (emphasis added). same grounds). the same, less the amount paid thereon, Minnesota case law establishes that if any.... If the tax so determined is the duty to disclose the required infor- n WWII airplane, business or hobby? decreased from the amount originally mation is strictly enforced, even if there Students in introductory income tax levied, the court may, in its discretion, is no prejudice to the county by the classes learn that business expenses are award disbursements to the petitioner, omission. In this dispute, Avis provided (generally) deductible, while hobby which shall be taxed and allowed and be extensive financial information to the expenses (generally) are not. The divid- deducted from the amount of the taxes county. In addition, the county received ing line between whether an activity is as determined.” Minn. Stat. §271.06, information from the MAC about the one entered into for profit (as required subd. 1 (2018) (emphasis added). In value of Avis’s property. However, the for expenses attributable to the activity the instant case, the court awarded county claimed, and the tax court to be fully deductible from income tax) $2,164.50 of the $6, 652 requested by agreed, that a piece of required informa- is a subjective one. The taxpayer must the prevailing property taxpayer. Fol- tion was not timely disclosed. Although show that she undertook the challenged lowing established norms, the court did the county may have received sufficient activity with an actual and honest objec- not award fees requested for the expert's information from other sources, and tive of making a profit. The expectation appraisal or for the time the expert spent despite Avis’s strenuous argument that of a profit does not have to be reason- preparing for court. Fees were awarded, the county was not prejudiced by the able, but it must be genuine. In this however, for the two hours the expert purported failure to provide the infor- dispute, the tax court was called upon to spent testifying. Podany v. Hennepin mation, the tax court determined that determine whether accomplished airline Co., No. 27-CV-16-05625, 2019 WL since the statutory disclosure provision pilot Edward Kurdziel had the requisite 1560856 (Minn. Tax 4/5/2019). in Minn. Stat. §278.05 is mandatory, profit motive when he purchased and failure to comply required the tax court then painstakingly (and expensively) n Property tax: Dismissal for failure to to dismiss Avis’s petition. On this same restored a vintage, two-seater World comply with disclosure requirements. rationale, the court reasoned that “The War II airplane. The tax court, applying Avis Budget Car Rental (Avis) leases County cannot waive compliance with the 9-factor test for determining intent space from the Metropolitan Airports the statute, either explicitly or implic- as set out in the regs, held that Mr. Commission (MAC). Although the Min- itly” and rejected Avis’s argument that Kurdziel did not have an actual and hon- neapolis-St. Paul airport itself is exempt the county waived compliance with the est objective of making a profit. He was from taxation, when the MAC makes statute. Avis’s equity-based argument not permitted to use his personal hobby its property available for use in conjunc- fared no better: The court rejected an expenses to offset the income he earned tion with a business associated for profit, equitable estoppel argument, finding as a commercial airline pilot. that for-profit entity incurs property tax insufficient evidence of wrongful con- The extensive and entertaining obligations. Avis petitioned the tax court duct. Finally, the court rejected a laches opinion authored by Judge Holmes challenging the county’s assessment of argument, noting that the Minnesota begins by recognizing Mr. Kurdziel’s the value of Avis’s interests. Minnesota Tax Court sits as a court of law, not skill and experience as both a pilot and statute requires that challengers to equity, and that “Avis points to nothing mechanical engineer. Mr. Kurdziel had a property tax assessments provide certain that would allow us to perpetuate, on distinguished career flying for the military information to the county assessor by equitable grounds, a petition that the and continues to work as a commercial August 1 of the taxes-payable year. The law requires be dismissed.” Avis Budget airline captain. He purchased the plane at issue—a vintage Fairey Firefly—for $200,000. When he purchased the plane, it was not airworthy. He spent years, and over $1 million, to get the plane ready to fly (the opinion does not report total restoration costs, but Kurdziel claimed a basis of $1.6 million in the restored plane). He achieved an airworthiness certificate and became licensed to fly the plane. He remains “the only man in America licensed to fly a Fairey Firefly.” Mr. Kurdziel claimed significant losses on his Firefly-related activities. Independent technical expertise, In fact, his Schedule C losses offset analysis and laboratory testing more than half of his income from other ISO 17025 AccredItAtIOn sources. Kurdziel’s plan to take pas- sengers up in the airplane turned out 320.253.7968 – www.engelmet.com to be a nonstarter, so Kurdziel took the restored plane to air shows. The plane

48 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org | TAX LAW | TORTS & INSURANCE was a hit with plane enthusiasts, but legislative history, the court held that for agreement that called for a determina- Kurdziel did not make much money. the purposes of determining taxpayer eli- tion of damages through binding arbitra- Instead, he generated six-figure losses, gibility for a §36B credit, MAGI includes tion. Appellant appeared at the arbitra- which the commissioner denied—a all Social Security benefits received in tion hearing but did not participate. The denial the tax court upheld. Kurdziel’s year at issue, including the nontaxable arbitrator valued damages at $510,000. motive in purchasing and restoring the portion of any lump sum payment In November 2016, plaintiff and her plane, according to the Tax Court, was attributable to prior year even if the family filed a motion in district court not to make a profit. Noting, however, taxpayer made a IRC §86(e) election. to approve and enter judgment on the that there is “no outright victor” in this Johnson v. Comm'r, No. 1394-16, 2019 settlement agreement. Appellant filed a dispute, the tax court disallowed the WL 1125865 (T.C. 3/11/2019). motion to intervene and asked the district negligence penalty the commissioner court to continue the settlement-approval imposed. The commissioner established MORGAN HOLCOMB hearing until after the intervention mo- that Kurdziel failed to make a reasonable Mitchell Hamline School of Law tion was resolved. The district court went attempt to comply with the provisions of [email protected] forward with the settlement-approval the internal revenue laws by misrepre- JESSICA DAHLBERG hearing and declined to hear appellant’s senting his not-for-profit activities as an Grant Thornton argument on the merits. In its order ap- “airplane leasing” business. This report- [email protected] proving the settlement and ordering entry ing position allowed Kurdziel to achieve MATTHEW WILDES of judgment against defendant, the dis- large, income-offsetting deductions that Mitchell Hamline School of Law trict court found that the settlement was were “too good to be true.” The com- [email protected] reasonable and prudent and “dismissed” missioner, however, failed to produce appellant’s motion to intervene. evidence that the penalties at issue here The Minnesota Court of Appeals were “personally approved (in writing) TORTS & INSURANCE affirmed. The court held that appellant by the immediate supervisor of the indi- failed to satisfy the third requirement vidual making such determination.” Sec. JUDICIAL LAW for intervention as a matter of right: 6751(b)(1). Thus, the commissioner did n Insurance; ability of insurer to inter- “circumstances demonstrating that the not meet his burden of production, and vene in underlying action. Plaintiff, a disposition of the action may as a practi- the accuracy-related penalties were not four-year-old, sustained injuries from a cal matter impair or impede the appli- upheld. Kurdziel v. Comm’r, T.C. Memo dog bite while in the care of defendant’s cant’s ability to protect” an interest in 2019-20 (3/21/2019). in-home childcare center. The childcare the subject matter of the litigation. The center was insured under a childcare court reasoned that because appellant n Matter of first impression: Social insurance policy issued by a non-party “has the opportunity to challenge the Security income included in modified insurer, which provided a defense and characterization of the settlement and its adjusted gross income for purposes tendered its policy limits. Defendant reasonableness in an action to recover of premium tax credit. As part of the was insured under a homeowner’s policy under the settlement in a separate ac- Patient Protection and Affordable Care issued by appellant insurer, which con- tion, the third factor for intervention Act (ACA), Congress provided that tained an exclusion for bodily injury aris- as a matter of right in this matter is not certain taxpayers were eligible to receive ing out of business pursuits. Appellant satisfied.”Daberkow v. Remer, No. A18- a subsidy to reduce the cost of that denied coverage for the claim and re- 0472 (Minn. Ct. App. 2/19/2019). http:// taxpayer’s health insurance premiums. fused to provide a defense for defendant. www.mncourts.gov/mncourtsgov/media/ The subsidy is administered through the Between July 2013 and October 2014, Appellate/Court%20of%20Appeals/Holi- tax code, and is referred to as a pre- plaintiff and defendant each notified day%20Opinions/OPa180472-021919.pdf mium tax credit (PTC). During the tax appellant of their intent to enter into a years at issue, the PTC was available to Miller-Shugart settlement agreement. In JEFF MULDER taxpayers whose household income was July 2016, plaintiff informed appellant Bassford Remele at least 100% but not more than 400% that they had finalized a Miller-Shugart [email protected] of the federal poverty line. Household income, in turn, was defined as the sum of the taxpayer’s modified adjusted gross income (MAGI) plus the MAGI of certain family members (the question of SOCIAL SECURITY DISABILITY family members was not relevant to this InITIAL AppLICATIOn ThROUgh hEARIng taxpayer’s situation). The question of first impression faced by the tax court in this appeal was the treatment of Social Security benefits when received in a lump sum. The tax court held that MAGI includes all Social Security benefits a taxpayer receives in a particular tax year, including nontaxable portion of lump sum payment attribut- able to prior year for which he made 612-825-7777 | www.livgard.com Code Sec. 86(e) election. Relying on paul Successfully pursuing benefits since 1993 what the tax court read as unambigu- Livgard ous language, bolstered by its reading of www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 49 People&Practice | MEMBER ANNOUNCEMENTS

Greenberg Traurig, LLP has expanded its Benjamin Bauer joined Nichols Paul Grinde and Kris Dicke announced new Minneapolis office with the addition Kaster in the ERISA litigation the opening of their new law firm, of intellectual property & technology practice group, where he is handling Grinde & Dicke Law Firm PA, in shareholders Stephen R. Baird, Tiffany class actions involving the imprudent Rochester, MN. Jennifer Shabel has A. Blofield, and Craig S. Krummen. management of employee 401(k) funds joined the firm as an associate attorney. by employers. Allen J. Peterson has joined the Red Anna M. Koch has joined Wing law office of Vogel & Gorman, Trepanier MacGillis PLC, handling matters of municipal Battina PA as an associate prosecution, child protection, civil attorney practicing in litigation, and criminal defense. the areas of business, employment, and real Matthew estate litigation. KOCH urton R. B ANDREASEN KIRK STECKLER and Scott Gov. Walz appointed S. Payzant Creig Andreasen, Benjamin J. Kirk, Rebekka Stumme as a have joined and Jon Steckler have joined the Cole- district court judge in Morrison man Law Firm. Andreasen is an MSBA Minnesota’s 6th Judicial BURTON PAYZANT Sund Certified Real Property Specialist and District. Stumme will be PLLC. focuses his practice in banking, real replacing the Hon. Mark Burton will continue to practice in the estate, and corporate law. Kirk’s prac- A. Munger and will be field of bankruptcy law, and Payzant will tice is focused on construction and real chambered at Carlton in STUMME focus his practice on employment law estate, with particular focus on construc- Carlton County. Stumme is an assistant and general business law. tion defect litigation. Steckler’s practice county attorney in the St. Louis County focuses on commercial law and litigation Attorney’s Office. Katie plus insurance coverage and defense, real Eisler and estate, franchise, and business litigation. Gov. Walz appointed Matthew Mallie Pharaoh as a district court judge in Minnesota’s Lewis have Kaleb E. Rumicho was 9th Judicial District. He will be joined appointed to the board replacing Hon. Earl E. Maus and will be Nilan of trustees of Wallin chambered at Brainerd in Crow Wing EISLER LEWIS Johnson Education Partners, County. Mallie is a solo practitioner Lewis as associates. Eisler joins the a college-completion at Mallie Law Offices, PA, where he corporate and transactional services program. Rumicho is an maintains a general practice. practice. Lewis joins the product associate at Fredrikson & RUMICHO liability/mass and business litigation Byron practicing in the Stuart Deuring was practices. bank & finance, mergers & acquisitions, honored as Cancer Legal and corporate governance groups. Care's 2019 Volunteer Attorney of the Year at the Mark W. Ostlund has joined organization's Legal Care Huemoeller, Gontarek, & Cheskis, PLC, Affair Celebration and in Prior Lake, as a partner practicing in Fundraiser on May 8. DEURING the areas of real estate, municipal, and estate law. Andrea Derby Workman has been elected a shareholder at Henschel HOROSHAK CYPULL PEDEN Bob Koneck has joined Moberg, PA, a boutique law firm with a Kain & Scott announced the addition Maslon LLP in the singular focus on family law. of three associate attorneys. Dr. Jesse litigation group. He Horoshak joined the firm in October focuses his practice on Travis 2017. He is a graduate of Mitchell Ham- business litigation. Adams and line School of Law and practices out KONECK Amber of the Maple Grove office.D r. Clara Thomas Brock was Donley Cypull joined the firm in June 2018. elected a shareholder at joined She is a graduate of University of St. Erickson, Zierke, Kuderer Melchert Thomas School of Law and practices out & Madsen, PA. Brock Hubert ADAMS DONLEY of the Maple Grove office. Finally,D r. represents clients on Sjodin PLLP Jake Peden joined the firm in December matters ranging from per- as associate attorneys at the firm’s Waco- 2018. He is a graduate of University of BROCK sonal injury and profes- nia office. Donley will focus her practice St. Thomas School of Law and practices sional liability to insur- mainly in family law. Adams joins the out of the Brainerd office. ance coverage and business disputes. personal injury and litigation team.

50 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org The MSBA hosted the annual Certifi ed Specialist eception

BRANDT KAISER WIELAND on April , 19 at The Womans of Minneapolis. Than you to our sponsors for maing this event possible. Moss & Barnett announced the expansion of the firm with the arrival of lawyers Craig A. Brandt, Peter J. Kaiser, and Jeffrey A. Wieland. Thank You! Benjamin C. Neitzel has joined Fredrik- son & Byron as an associate in the firm’s mergers & acquisitions and corporate governance groups.

R

Kelly Keegan has R been elected the 2019 president of the Minnesota Association of Criminal Defense Lawyers. KEEGAN

Andrew Christoffel has joined Christoffel & Elliott, PA in the firm’s real estate, banking, business, and finance practice. He previously was working as an associate at a firm in New York.

IN MEMORIAM

GLENN A. FROBERG, age 92 of Chanhassen, passed away WILLIS “BILL” FORMAN passed away at age 93 on March on April 8, 2019. He worked for Motorola for 20 years in 19, 2019. He spent 40 years at Paper, Calmenson & Co. as engineering before entering William Mitchell College of Law. president, treasurer, and CEO, retiring in 1999. Glenn earned his JD in 1972 and subsequently established a private legal practice in Minnetonka, MN. Before retiring GARY A. DAVIS, age 77 of White Bear Lake, passed away on from the law at age 80, Glenn served as attorney for the city March 22, 2019. Gary retired in 2012 after a challenging and of Shorewood, MN, and referee for the Hennepin County satisfying legal career of 41 years serving the Ramsey County's Conciliation Court. Glenn was also mayor of Tonka Bay for Attorney's Office Civil Division. two terms. JOHN R. 'BUD' CARROLL, 93, prominent long-time real estate JAN MARIE ZENDER passed away on October 4, 2018. She attorney, passed away on February 23, 2019. In 1974, his firm graduated from the University of Minnesota School of Law in merged Maloney, Carroll & Olson with Best & Flanagan, 1985 and practiced law in St. James, MN. where Bud continued to practice law and mentor young law- yers until his retirement in 2001 at the age of 76. MARTIN N. KELLOGG, age 88 of St. Paul, passed away on March 21, 2019. Kellogg attended evening classes to obtain BERT J. MCKASY, age 77 of Mendota Heights, passed away a degree from the William Mitchell College of Law. In 1983, on February 8, 2019. He was a retired partner at Lindquist he joined UFE Incorporated, an international manufacturer & Vennum LLP (now Ballard Spahr). McKasy was active in of precision molded plastics, where he eventually became government and served three terms in the Minnesota House president, CEO, and co-owner. of Representatives.

WILLIAM B. BARTE, age 85, of St. Paul, passed away January JOHN GIBLIN, age 68 of Plymouth, passed away on January 8, 2019. Barte was a long-time 3M employee and a graduate 30, 2019. Giblin graduated from William Mitchell College of of William Mitchell College of Law. Law and was a long-time Minneapolis attorney.

www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 51 OpportunityMarket

Classified Ads For more information about placing classified ads visit: www.mnbenchbar.com/classifieds

ATTORNEY WANTED lations. The group focuses on class action plaintiffs’ side litigation; Admission to the cases involving discrimination, , and MN bar, or eligibility for admission within LIES, BULLIS & Hatting, PLLP, a general other unfair business practices in employ- six months; Superior analytical skills and practice firm based in Wahpeton, ND, ment, government and private contracts, in- excellent research and writing skills; Ex- has an immediate opening for an associ- surance, healthcare, housing, schools, pris- cellent oral communication and advocacy ate attorney. Compensation will be com- ons, and the environment. The Civil Rights skills; Ability to juggle multiple responsibili- mensurate with experience and qualifica- and Impact Litigation practice group seeks ties, work independently, and meet strict tions. Excellent academic credentials and applicants for an associate attorney position deadlines under pressure. Apply online at: writing skills required. Ideal candidate will in its Minneapolis, MN office. We are look- https://www.nka.com/careers.html have one to two years of experience, have ing for creative, motivated, and socially-con- sssss gained admission to ND and/or MN bar, be scious attorneys who want to use the law to willing to litigate complex matters, handle fight injustice and make change. Associates BEST & FLANAGAN is seeking a trans- a wide variety of matters at once, and have take an active role in managing their own actional attorney to join its business law the ability/willingness to cultivate relation- cases, writing, responding to, and arguing team. Candidates should have experi- ships with existing and new clients. Con- motions, taking and defending depositions, ence in entity formation, structure and fidential inquiries, including a resume and and participating in trials. We staff our cases governance, contract negotiation, tax and cover letter, should be directed to: Brittany efficiently, giving new lawyers the opportu- regulatory compliance, M&A, succession Hatting, Lies, Bullis & Hatting, PLLP, at nity to gain valuable experience early on planning or tax-exempt entities. While [email protected]. in their careers. Our associates are on the you must be licensed in Minnesota, no sssss front lines of active litigation and find the minimum number of years of practice is practice both challenging and rewarding. required. Judgment, intelligence, curiosity, ASK LLP, a nationally recognized law firm At Nichols Kaster, we believe that diversity creativity, accountability and fit are more involved in major commercial bankruptcy in all forms improves every workplace and important than years of experience. We cases throughout the U.S., is looking for makes every organization better. Nichols believe that smart people working as a an associate attorney with at least three Kaster is committed to creating an equi- team can advance the goals of our clients years’ experience. We value excellent aca- table and inclusive work environment for and our firm. If you are interested in join- demic credentials, writing and negotiation our employees and to bringing a diversity, ing our team, please visit our website at: skills and ability to manage a large case equity, and inclusion lens to our work. Roles www.bestlaw.com/Current-Opportunities. load. We expect impeccable references and responsibilities: Litigate class action sssss and a strong work ethic. Prior bankruptcy cases in federal and state courts; Conduct law experience a plus. This is a unique op- legal research and write legal memoranda; BOSSHARD | PARKE LTD, a leading law portunity to gain national bankruptcy and Draft pleadings and briefs, argue motions firm based in La Crosse, Wisconsin, is litigation experience. Our attorneys are in court; Maintain client relationships; Take seeking associates. Candidates should given front line experience and the oppor- and defend depositions; Travel as required have strong academic credentials, excel- tunity to interact with the top bankruptcy for nationwide litigation and conferences; lent written and oral communication skills, professionals both in court and at major Work with industrial-organization psychol- self-motivation, and the ability to build cli- bankruptcy conferences. We provide ex- ogy, economics, and other experts; Develop ent relationships. We offer competitive cellent benefits, opportunity for travel, and new cases and conduct pre-suit investiga- compensation and benefits in a collegial continuing education. Please send resume tions; Develop relationships with other attor- and family-friendly environment. Our asso- and cover letter along with salary expecta- neys in the plaintiffs’ bar; Engage in public ciates take substantial responsibility and tions to: [email protected]. speaking, including at conferences, CLEs, ownership over individual client matters, sssss and on panels; Work closely with and su- while working collaboratively on complex pervise paralegals, assistants, interns, and issues. Interested candidates should sub- ASSOCIATE ATTORNEY – Civil Rights and clerks. Experience and qualifications: JD de- mit a cover letter and resume via email to: Impact Litigation. Nichols Kaster PLLP, one gree - Candidates with zero to three years [email protected]. of the nation’s largest class action firms, is of litigation experience are encouraged to sssss growing its Civil Rights and Impact Litiga- apply and responsibilities and compensa- tion practice. The firm’s Civil Rights and Im- tion will be adjusted accordingly; Desire to CIVIL LITIGATION Associate Attorney. pact Litigation Group takes on large-scale work on class action and multi-plaintiff cas- Northwest-suburban law firm has an im- injustices that threaten protected groups es; Self-motivated, entrepreneurial, collab- mediate opening for an associate attor- and the country’s most vulnerable popu- orative, and diligent, with a commitment to ney in its growing, defense-oriented civil

52 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org OpportunityMarket | ATTORNEY WANTED

sssss litigation department. Our nine-attorney business lending and equipment financing, firm offers challenging work representing Stearns has maintained outstanding cus- CORPORATE ASSOCIATE – Fafinski Mark a high-level clientele in a collegial, but pro- tomer service, fast decisions, and custom- & Johnson. We are seeking an associate fessional, small-firm atmosphere. The ideal ized finance solutions to their customers for with at least three years of relevant ex- candidate would have two to five years of decades. Stearns Bank has earned itself a perience to add to our growing Corporate civil litigation experience, but exceptional stellar reputation amongst customers and practice. The candidate should have strong applicants with less experience may ap- competitors alike. This reputation goes be- drafting and communication skills, a pro- ply. Workers’ compensation experience a yond just word-of-mouth, as Stearns has fessional demeanor, experience in manag- plus. Other practice areas in our litigation been recognized by the Independent Com- ing complex and time-sensitive projects, department include employment law, cor- munity Banker’s Association (ICBA) as the and the ability to work both as part of a porate, business, construction litigation, #1 top-performing bank in the nation over team (including cross-office) and inde- real estate, personal injury defense, and a based on the three-year average Return pendently. Candidates with experience insurance litigation. We offer a competi- on Assets for banks $1 billion or more. They in general corporate advising; formation tive, comprehensive benefit package, with have also been recognized by American of business entities; tax; and/or contract substantial opportunity for professional Banker as the #1 top-performing bank in the drafting are preferred. A background in real growth as our litigation practice expands. nation over a three-year period for Return estate would also be beneficial. We offer Candidates must be admitted to the Min- on Equity for banks from $2 billion to $10 excellent benefits, a salary commensurate nesota Bar. Email letter of application and billion. As a 2017 & 2018 recipient of the with experience, performance-based bo- resume to: [email protected]. Minnesota Business Magazine 100 Best nuses, and an opportunity for professional sssss Places to Work in Minnesota award, Stea- growth. Please email resume and cover rns takes pride in their team and holds their letter with salary requirements to employ- CLOQUET LAW firm seeking attorney will- employees in extremely high regard. We of- [email protected] or mail to FMJ-HR, 775 ing to permanently relocate to the Cloquet fer a competitive salary and benefit package Prairie Center Drive, Ste. 400, Eden Prai- area. Strong writing and oral communica- including our Employee Stock Ownership rie, MN 55344. tion skills are required, demonstrable cli- Program-one of the best long-term incen- sssss ent skills and work ethic are important. tive programs in the nation. Prior legal experience preferred but not sssss HALL LAW, PA, a premier plaintiffs per- required. For consideration please for- sonal injury law practice is seeking an ward cover letter and resume to: sandy@ COMMERCIAL LITIGATION & Employ- associate attorney with one to ten years’ rudylawfirm.com. ment Law Associate Attorney (Minneapo- experience to join its practice full-time in sssss lis) – Trepanier MacGillis Battina PA seeks a its St. Cloud, MN office. If you are a law- highly-motivated commercial litigation and yer looking to make a positive difference COME GROW with us! Stearns Bank NA employment law associate with three to six in people’s lives by offering innovative, is seeking a junior level, in-house corpo- years of experience to perform top-quality tenacious and compassionate representa- rate attorney. The ideal candidate has a work in small-firm atmosphere. Work in- tion to your clients, please submit a cover background in corporate law, secured cludes litigating commercial and employ- letter, resume, writing sample (15 pages transactions, commercial transactions ment law disputes (complaints, answers, or less), references and your law school and litigation, collections, creditors’ rights discovery, drafting pleadings and motions, transcript to: [email protected]. Thank and bankruptcy. Banking law experience depositions, mediation, research, trial you in advance for your interest in our firm. and representation of lenders and finan- preparation, and general litigation support); sssss cial institutions a plus. Responsibilities: counseling employer clients on compliance Support General Counsel in managing a with federal, state, and local employment JACKSON LEWIS is looking for an comprehensive range of legal matters. laws and discipline/termination issues; Employment/Litigation Attorney to join Provide direction, guidance and assistance drafting offer letters, employment agree- our Minneapolis team. Ideal candidate will on legal matters to General Counsel and ments, employee handbooks, restrictive have one to five years employment law management. Research legal issues and covenants, and severance agreements; and experience, excellent academic credentials, statutes/regulations, and brief General advising executive clients on employment Minnesota Bar Admission, excellent Counsel and management on research contracts. Candidate must have prior experi- written and oral communication skills, and recommendations. Provide recom- ence handling commercial and employment strong organization, time management and mendations and legal support in potential litigation matters and advising employers on project management skills. Responsibilities litigation and loan documentation, secured HR compliance issues. Candidate should to include defense of agency charges transactions, and lender rights, remedies have strong academic credentials, excellent of discrimination, lawsuits involving a and recourse. Engage and manage out- writing skills, and attention to detail. Com- range of employment related claims; daily side counsel. Qualifications: Juris Doctor petitive wage based on experience; 401(k), advice and counsel to clients regarding (JD) from an accredited law school or Para- PTO, paid holidays, health/dental insurance, various employment and labor law issues; legal Degree. Licensed to practice in Min- and life insurance available. If you have represent employers in court, before nesota (if attorney). For more information a positive attitude and great work ethic, administrative agencies, at mediation, and visit our website: www.stearnsbank.com. please apply to join our team! We offer a ca- in arbitration and in employment matters, The Company Founded in 1912, Stearns sual and friendly work environment. Please including class/collective actions and Financial Services Inc. (SFSI) is a $2 bil- send resume by email only to Joni L. Spratt, discrimination, harassment, retaliation, lion well-capitalized, independent financial Office Manager, at: jspratt@trepanierlaw. employment tort, and non-compete cases. holding company based in St. Cloud, Min- com. More information on the firm can be Email resumes to: MinneapolisRecruiting@ nesota. Specializing in nationwide small found at www.trepanierlaw.com. jacksonlewis.com.

www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 53 OpportunityMarket | ATTORNEY WANTED

sssss JOIN THE #1 Furniture Company – Join The years litigation experience. The position #1 Furniture Brand. The Senior Regulatory MELCHERT HUBERT Sjodin, PLLP, an will involve all aspects of litigation, includ- Counsel is responsible for providing legal established law firm located in the SW ing written discovery, motion practice, de- research and advice, both proactively and Metro, seeks an associate attorney for our position coverage, and trial and appellate reactively, in all assigned subject areas. municipal practice group. This attorney will work. The ideal candidate must be self- This position will focus mainly on regulatory provide legal guidance to municipalities motivated, have excellent communica- compliance, including Consumer Product on issues such as ordinances, land use, tion and writing skills, and be comfortable Safety Commission, OSHA, international easements, eminent domain, and pub- working in a demanding and challenging and similar matters, as well as on general lic finance. Candidates with a minimum work environment. Please submit resume, contract negotiation and review. Qualifica- of three years of experience in munici- transcript, and writing sample: Human tions: Juris Doctorate from an accredited pal law preferred. Please submit resume, Resources, Rajkowski Hansmeier Ltd., ABA law school, required. Seven plus years transcript and writing sample to: 11 Seventh Avenue North, St. Cloud, MN of legal experience including two to three [email protected] 56302, (320) 251-1055, humanresources@ years with significant client contact. Candi- sssss rajhan.com. EOE date with at least four plus years of regula- sssss tory compliance experience at a large law OHNSTAD TWICHELL, one of North Dako- firm or corporation, including CPSC, OSHA ta’s fastest growing full-service law firms, is REAL ESTATE & Corporate Associate At- or international compliance matters, will seeking motivated and qualified candidates torney (Minneapolis) - Trepanier MacGillis also be considered. License to practice law to apply for a position with the firm’s litiga- Battina PA seeks a highly-motivated real and in good standing under the Bar of any tion and real estate practice groups. As an estate and corporate transactional associ- state that enable admission to practice as associate attorney at Ohnstad Twichell, you ate with five to eight years of experience in-house counsel in Wisconsin or Florida, will have the opportunity to learn under the to perform top-quality work in a small-firm required. Send resume to Khara Erickson region’s top attorneys while completing atmosphere. Work includes handling com- at: [email protected]. meaningful, challenging and cutting-edge plex real estate transactions involving the sssss legal work. We hire associates carefully, acquisition, disposition, leasing, and fi- with the expectation that those selected nancing of real property from inception to MALKERSON GUNN Martin LLP will eventually become partners and spend closing; handling corporate transactions in- seeks experienced, partner-level their careers at Ohnstad Twichell. Associate cluding mergers and acquisitions; forming attorneys specializing in a transactional attorneys enjoy the privilege of significant new business entities; drafting a variety of or litigation real estate practice. We flexibility in their work and are expected to commercial contracts; and providing day- enjoy low overhead, almost no law firm be self-motivated, hard-working go-getters to-day advice to corporate clients. Candi- “bureaucracy,” downtown Minneapolis capable of juggling a diverse set of projects date must have prior experience handling offices, sophisticated practitioners and a without constant oversight. In addition to commercial real estate and transactional collegial atmosphere. Please contact Stu forming professional relationships with cli- matters. Candidate should have strong ac- Alger ([email protected]). ents, Ohnstad Twichell strongly encourages ademic credentials, excellent writing skills, sssss and supports active participation in volun- and attention to detail. The ideal candidate teer and networking activities within our will have some existing clients and the MOLINARO DAVIS Law PLLC in Burns- communities. We offer excellent benefits willingness and ability to grow their own ville is seeking an associate attorney with and a great culture that fosters both person- book of business over time. Competitive an interest in estate planning, guardian- al and professional growth. Find out more wage based on experience; 401(k), PTO, ship/conservatorship, probate and/or tax, about us at: www.ohnstadlaw.com. One to paid holidays, health/dental insurance, and including litigation in all areas. Some expe- three years’ experience preferred; 3Ls will life insurance available. If you have a posi- rience with real estate law or business law be considered. Please send resume and tive attitude and great work ethic, please is preferred. Please send a resume, cover cover letter to Joy Knutson at: jknutson@ apply to join our team! We offer a casual letter, transcripts, and writing sample to: ohnstadlaw.com. and friendly work environment. Please [email protected]. All applica- sssss send resume by email only to Joni L. tions kept confidential. Spratt, Office Manager, at: jspratt@trepani- sssss PERSONAL INJURY/Workers’ Compensa- erlaw.com. More information on the firm tion Attorney: McCashin Law Firm in Alex- can be found at: www.trepanierlaw.com. MELCHERT HUBERT Sjodin, PLLP, an andria seeking an associate attorney to rep- sssss established law firm located in the SW resent injured people in fast growing firm. Metro, is seeking an associate attorney for Salary dependent on experience. Contact WELL-ESTABLISHED insurance defense the commercial practice area. Position will Rhonda at: [email protected]. firm in the Southern metropolitan area involve transactional work and litigation. sssss seeking an associate attorney with two Candidates should have a minimum of or more years of experience handling three years practice experience in several RAJKOWSKI HANSMEIER Ltd is a regional Minnesota workers’ compensation claims. of the following areas: commercial finance, litigation firm that specializes in the defense Candidates should be organized, articulate, secured transactions, creditor’s rights of civil lawsuits, including but not limited to possess excellent legal research and and remedies, business transactions and personal injury claims and construction de- writing skills and have strong academic agri-business, and governmental matters. fect cases. We handle lawsuits throughout credentials and work experience. Salary Please submit resume, transcript and writ- Minnesota, including a significant volume will be commensurate with experience. ing sample to: [email protected]. of work in the Twin Cities. We are seek- This position is intended to be a partnership ing an associate attorney with two to four track position with significant opportunity

54 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org OpportunityMarket | ATTORNEY WANTED | OFFICE SPACE | PROFESSIONAL SERVICES

sssss for advancement. Interested applicants nesota Attorney General, Attn: June Walsh, should submit a cover letter and resume 445 Minnesota Street, Suite 1100, St. Paul, BRAINERD OFFICE sharing arrangement to: [email protected]. MN 55101, [email protected]. The Of- with three other attorneys in historic sssss fice of the Minnesota Attorney General is downtown building serving clients since an equal opportunity employer. If you need 1978. Near Courthouse and Judicial Cen- WORKERS’ COMPENSATION Attorney reasonable accommodation for a disability, ter. Private office and secretarial work sta- Wanted for intervention practice. Mini- please call June Walsh at (651) 757-1199 or tion. Rent $600 per month plus share of mum one-year relevant work experience. (800) 627-3529 (Minnesota Relay). overhead. 510 Maple Street. Call Glen or Email resume and salary requirements to: Jim at: (218) 829 1719. [email protected]. OFFICE SPACE sssss PROFESSIONAL SERVICES WORKERS’ RIGHTS Attorney. The Office DOWNTOWN MINNEAPOLIS Offices of Minnesota Attorney General Keith El- available for sublease with a seasoned, in- PARLIAMENTARIAN, meeting facilitator. lison is seeking an experienced lawyer to dependent group of attorneys in the Class “We go where angels fear to tread.TM” build and lead an enhanced effort to enforce A rated Canadian Pacific Plaza. Offices with Thomas Gmeinder, PRP, CPP-T: (651) 291- workers’ rights. The attorney will primarily 20th floor views, furnished if needed. Cu- 2685. [email protected]. be responsible for creating and overseeing bicle available for support staff. Convenient sssss this effort, including identifying enforce- location close to all courthouses and light ment and litigation priorities, developing rail. Full amenities in both our suite and ATTORNEY COACH/consultant Roy S. legal strategies, and determining goals and building. Better than an executive suite! Ginsburg provides marketing, practice metrics for assessing impact. The posi- Please contact Melissa at: (612) 573-3660 management and strategic/succession tion will involve collaboration with worker for further information. minneapolis.craig- planning services to individual lawyers organizations and advocacy groups, other slist.org/hnp/off/d/minneapolis-class-rated- and firms. www.royginsburg.com, roy@ government agencies, and employer as- office-space/6856191866.html royginsburg.com, (612) 812-4500. sociations. This attorney will lead initiatives sssss sssss to improve the working conditions of Min- nesotans by using the office’s authority to MINNETONKA individual offices and large RULE 114 MEDIATION Training, 40 CLE’s protect workers’ wages and ensure lawful suites for rent. Professional, office building for Family Course, 30 for Civil, Family June, treatment of employees. The attorney will by Highways 7/101 with conference rooms. Civil July. See: http://transformativemedia- conduct and supervise investigations and Secretarial support, internet, furnishings tion.com/events. Call: (612) 824-8988. litigation addressing systemic violations also available. Perfect for law firm or solo sssss of workplace rights laws. This position is a practitioner. Can combine spaces. Join 10 rare opportunity to help build a new prior- established, independent attorneys. Call: NAPLES, FLORIDA-based probate, real es- ity area within the Attorney General’s office (952)474-4406. minnetonkaoffices.com tate and estate planning attorney licensed and requires a dynamic individual with ex- sssss in Minnesota and Florida. Robert W. Groth, cellent legal and interpersonal skills as well PA (239) 593-1444; [email protected]. as the ability to work creatively and collab- OFFICE SPACE – NE Metro. Office for sub- sssss oratively. Requirements: We are seeking a lease with other attorneys in New Hope candidate with at least eight (8) years of liti- office building. Includes use of conference MEDIATION TRAINING in St. Paul. Rule gation or prosecutorial experience. Experi- room, reception area and optional cubicle 114 Approved. 30-hour civil course or ence in some or all of the following areas is for support staff. Call: (763) 559-9553. 40-hour family. http://transformativemedia- preferred but not required: affirmative liti- sssss tion.com. gation or investigations of wage and hour sssss and other labor-related violations; develop- OFFICE SPACE available in downtown Min- ment and management of complex inves- neapolis. Two large offices, one standard EXPERT WITNESS Real Estate. Agent tigations; history of working with diverse office and three orkstationsw available. standards of care, fiduciary duties, disclo- workers and communities; supervision of All but one large office furnished. Includes sure, damages/lost profit analysis, forensic other lawyers or staff; prior history of pub- one telephone per office, receptionist, and case analysis, and zoning/land-use issues. lic service. Fluency in Spanish, Hmong, use of two conference rooms, kitchen, ten- Analysis and distillation of complex real Somali or other relevant language for Min- ant lounge and gym. Data T-1, copy machine estate matters. Excellent credentials and nesota workers preferred but not required. and fax machine available for extra charge. experience. [email protected] (612) Public service with this office may qualify Suite currently occupied by six small law and 207-7895. applicants to have part of their student professional firms. Please email Maren, fran- sssss loans forgiven under a federal student loan [email protected], with any inquiries. forgiveness program for state government sssss VALUESOLVE ADR Efficient. Effective. employees. (Visit www.studentaid.ed.gov/ Affordable. Experienced mediators and sa/repay-loans/forgiveness-cancellation/ OFFICE SPACE in downtown St. Paul. One arbitrators working with you to fit the pro- public-service for more information.) Appli- block from district court and three blocks cedure to the problem - flat fee mediation cations: Attorneys may express interest by from the federal courthouse. Includes two to full arbitration hearings. (612 877-6400 submitting a cover letter and resume that large offices, private conference room, www.ValueSolveADR.org. includes relevant litigation experience and reception area. Call (612) 236-5224 for sssss academic credentials to: Office of the Min- questions and pictures.

www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 55 MSBA SECTIONS Construction Law Food, Drug & Device Law Public Law Ryan Hatton, Chair Elizabeth Luoma, Chair Daniel Abelson, Co-Chair Administrative Law Patrick Lee-O’Halloran, Aaron Hage, Treasurer Amelia Jadoo, Co-Chair Cynthia (Cyndi) Jahnke, Chair Vice-Chair Ranelle Leier, Secretary Lynn Belgea, Treasurer Judge LauraSue Schlatter, Thomas Radio, Treasurer Nancy Norman Sommer, Vice-Chair Hugh Brown, Secretary Health Law Secretary Amber Lee, Secretary/Treasurer Jesse Berg, Chair Consumer Litigation Kelsey Brodsho, Vice-Chair Public Utilities Agricultural and Rural Law Todd Murray, Co-Chair Shireen Gandhi, Treasurer Eric Swanson, Chair Jared Peterson, Chair Michael Klutho, Co-Chair Benjamin Garbe, Secretary Phyllis Reha, Vice-Chair Sarah Jewell, Vice-Chair Vildan Teske, Treasurer Benjamin Gerber, Secretary/ Kale Van Bruggen, Treasurer Shawn Wanta, Secretary Immigration Law Treasurer Thank you to our 2018-19 volunteers for providing leadership within the MSBA and to the legal profession. Christopher Roe, Secretary Mirella Ceja-Orozco, Chair Corporate Counsel Satveer Chaudhary, Vice-Chair Real Property The work could not be accomplished without you, particularly those active in sections and committees. Alternative Dispute Resolution Stephen Ringquist, Chair Ana Pottratz Acosta, Treasurer Kevin Dunlevy, Chair Joseph LeBlanc, Chair Rosa Summers, Vice Chair Nysha Cornelius, Secretary Robert Bigwood, Vice-Chair Wendell Bell, Treasurer & Secretary Eric Johnsrud, Treasurer MSBA 2018-19 COUNCIL Elise Chambers, Secretary Mary Dean, Treasurer International Business Law Wayne Anderson, Secretary Karl Procaccini, Chair Paul Godfrey, President Robert Enger, Assembly Representative Animal Law Criminal Law Mindas Juska, Vice-Chair Social Security Disability Law Tom Nelson, President-Elect Paul Floyd, HCBA Representative Kristen Rice, Chair Joe Van Thomme, Chair Patrick Kelly, Treasurer Sarah Soucie Eyberg, Co-Chair Dyan Ebert, Treasurer Eric Larson, Assembly Representative Kathleen Mock, Vice-Chair Anthony Bushnell, Vice-Chair T. Michael Davis, Secretary Adam Spees, Co-Chair Jennifer Thompson, Secretary Sumbal Mahmud, Affinity Bars Representative Timothy Culver, Secretary/ Andrea Palumbo, Treasurer Emily Cooper, Treasurer Michael Boulette, HCBA Representative Ryan McCarthy, New Lawyers Section Chair Treasurer Landon Ascheman, Secretary Labor & Employment J. Asha Sharma, Secretary Sara McGrane, Chair Bryan Browning, Affinity Bars Representative B. Steven Messick, Outstate Representative Antitrust Law Elder Law Daniel Prokott, Vice-Chair Solo and Small Firm Charles Clippert, RCBA Representative Pamela Rochlin, Minnesota Women Lawyers Representative Jaime Stilson, Chair Mary Ebb, Chair Margaret Luger-Nikolai, Susan Mundahl, Chair Samuel Edmunds, Outstate Representative Sarah Soucie Eyberg, Assembly Representative James Long, Vice-Chair Marit Peterson, Vice-Chair Secretary Treasurer James Gempeler, Vice-Chair Michelle Looby, Treasurer Jill Sauber, Treasurer Chad Snyder, Treasurer THANK YOU ASSEMBLY MEMBERS Matthew Piehl, Secretary Genevieve Gaboriault, Secretary Military & Veterans Affairs Karin Ciano, Secretary Johanna Clyborne, Chair Appellate Practice Employee Benefits Sara Sommarstrom, Vice-Chair Sports, Art & Entertainment Law Katie Barrett Wiik, Chair Tim Goodman, Chair Vildan Teske, Treasurer Blake Iverson, Chair Timothy Droske, Vice-Chair Jewelie Grape, Vice-Chair J. Virgil Bradley, Secretary Joshua Schaub, Co-Vice Chair Monte Mills, Secretary/ Lisa Robinson, Treasurer Alexandria Mueller, Co-Vice Chair COMMITTEES Insurance for Members Committee MSBA CERTIFIED Treasurer Theresa Corona, Secretary New Lawyers Section Maxwell Felsheim, Treasurer Angela Sipila, Chair SPECIALIST BOARDS Ryan McCarthy, Chair Daniel Dillon, Secretary Access to Justice Committee Bankruptcy Environmental, Natural Blair Harrington, Vice-Chair Anne Hoefgen, Co-Chair Investment Committee Civil Trial Board Lauri Schmid, Chair Resources, & Energy Law Kyle Willems, Treasurer Tax Law Tom Walsh, Co-Chair Christopher Morris, Chair Candace Dale, Chair Craig Andresen, Vice-Chair Kathryn Hoffman, Chair Qortney McLeod, Secretary Lynn Linné, Chair Abigail McGibbon, Treasurer Elizabeth Henley, Vice-Chair Miriam Sahouani, Vice-Chair Audit Committee Judiciary Committee Criminal Law Board Cynthia Hegarty, Secretary Rachel Kitze Collins, Treasurer Practice Management & Alexander Korzhen, Treasurer Sarah Hunter, Chair Kelly Mitchell, Chair Andrew S. Birrell, Chair Alison Marwitz, Secretary Marketing Kathleen Splett, Secretary Business Law Matthew Ludt, Chair Budget Committee Legislative Committee Labor & Employment Board Marie Feely, Chair Family Law Sarah Soucie Eyberg, Tech Law Dyan Ebert, Chair Gary Hansen, Chair Christopher D. Jozwiak, Chair Jonathan Nygren, Vice-Chair Brad Frago, Chair Vice-Chair Christina Kunz, Chair Jonathan Levy, Secretary Tifanne Wolter, Vice-Chair Chad Snyder, Treasurer Brian Wallenfelt, Vice-Chair Court Rules & Administration Committee Life & the Law Committee Real Property Board Wade Wacholz, Treasurer Ryan Anderson, Treasurer Yolanda Wilson, Secretary Frederik Struve, Treasurer Annamarie Daley, Chair Chase Anderson, Co-Chair Karen Barte Bjorkman, Chair Shannon Wachter, Secretary Mathea Bulander, Secretary Patty Beck, Co-Chair Children & the Law Probate & Trust Diversity & Inclusion Council OTHER GROUPS Wendy Watson, Chair Greater Minnesota Practice Sonny Miller, Chair Bryan Browning, Co-Chair Membership Committee Winter Watson, Vice-Chair Barbara Heen, Chair Jolene Cutshall, Vice-Chair Justin Page, Co-Chair Jennifer Thompson, Chair Minnesota State Bar Foundation Kimberley Woods Vanselow, Jade Rosenfeldt, Vice-Chair Michael Sampson, Treasurer JeriLyn Reinhardt, President Treasurer Joseph Krueger, Secretary/ Jennifer Lammers, Secretary Elections/Appointments Committee Mock Trial Advisory Committee Sally Silk, Vice President Treasurer Samuel Edmunds, Chair Wynne Reece, Chair Landon Ascheman, Secretary Civil Litigation Paul Quast, Treasurer Melissa Stull, Chair General Policy Committee Publications Committee Hon. Ned Wahl, Vice-Chair Sarah Soucie Eyberg, Chair Steve Aggergaard, Chair MSBA Briefs/Arguments Scott Rusert, Treasurer Before the Court Lindsay Keller, Secretary Governance Committee Rules of Professional Conduct Committee Michael Boulette Eric Larson, Chair Fred Finch, Chair Christopher Bowman Communications Law Eric Cooperstein Shannon Heim, Chair Human Rights Committee Technology Committee Jenneane Jansen Milda Hedblom, Vice-Chair Elizabeth Meske, Chair Michael Remington, Chair Ken Jorgensen Jason Topp, Treasurer Samir Islam, Secretary

56 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org MSBA SECTIONS Construction Law Food, Drug & Device Law Public Law Ryan Hatton, Chair Elizabeth Luoma, Chair Daniel Abelson, Co-Chair Administrative Law Patrick Lee-O’Halloran, Aaron Hage, Treasurer Amelia Jadoo, Co-Chair Cynthia (Cyndi) Jahnke, Chair Vice-Chair Ranelle Leier, Secretary Lynn Belgea, Treasurer Judge LauraSue Schlatter, Thomas Radio, Treasurer Nancy Norman Sommer, Vice-Chair Hugh Brown, Secretary Health Law Secretary Amber Lee, Secretary/Treasurer Jesse Berg, Chair Consumer Litigation Kelsey Brodsho, Vice-Chair Public Utilities Agricultural and Rural Law Todd Murray, Co-Chair Shireen Gandhi, Treasurer Eric Swanson, Chair Jared Peterson, Chair Michael Klutho, Co-Chair Benjamin Garbe, Secretary Phyllis Reha, Vice-Chair Sarah Jewell, Vice-Chair Vildan Teske, Treasurer Benjamin Gerber, Secretary/ Kale Van Bruggen, Treasurer Shawn Wanta, Secretary Immigration Law Treasurer Thank you to our 2018-19 volunteers for providing leadership within the MSBA and to the legal profession. Christopher Roe, Secretary Mirella Ceja-Orozco, Chair Corporate Counsel Satveer Chaudhary, Vice-Chair Real Property The work could not be accomplished without you, particularly those active in sections and committees. Alternative Dispute Resolution Stephen Ringquist, Chair Ana Pottratz Acosta, Treasurer Kevin Dunlevy, Chair Joseph LeBlanc, Chair Rosa Summers, Vice Chair Nysha Cornelius, Secretary Robert Bigwood, Vice-Chair Wendell Bell, Treasurer & Secretary Eric Johnsrud, Treasurer MSBA 2018-19 COUNCIL Elise Chambers, Secretary Mary Dean, Treasurer International Business Law Wayne Anderson, Secretary Karl Procaccini, Chair Paul Godfrey, President Robert Enger, Assembly Representative Animal Law Criminal Law Mindas Juska, Vice-Chair Social Security Disability Law Tom Nelson, President-Elect Paul Floyd, HCBA Representative Kristen Rice, Chair Joe Van Thomme, Chair Patrick Kelly, Treasurer Sarah Soucie Eyberg, Co-Chair Dyan Ebert, Treasurer Eric Larson, Assembly Representative Kathleen Mock, Vice-Chair Anthony Bushnell, Vice-Chair T. Michael Davis, Secretary Adam Spees, Co-Chair Jennifer Thompson, Secretary Sumbal Mahmud, Affinity Bars Representative Timothy Culver, Secretary/ Andrea Palumbo, Treasurer Emily Cooper, Treasurer Michael Boulette, HCBA Representative Ryan McCarthy, New Lawyers Section Chair Treasurer Landon Ascheman, Secretary Labor & Employment J. Asha Sharma, Secretary Sara McGrane, Chair Bryan Browning, Affinity Bars Representative B. Steven Messick, Outstate Representative Antitrust Law Elder Law Daniel Prokott, Vice-Chair Solo and Small Firm Charles Clippert, RCBA Representative Pamela Rochlin, Minnesota Women Lawyers Representative Jaime Stilson, Chair Mary Ebb, Chair Margaret Luger-Nikolai, Susan Mundahl, Chair Samuel Edmunds, Outstate Representative Sarah Soucie Eyberg, Assembly Representative James Long, Vice-Chair Marit Peterson, Vice-Chair Secretary Treasurer James Gempeler, Vice-Chair Michelle Looby, Treasurer Jill Sauber, Treasurer Chad Snyder, Treasurer THANK YOU ASSEMBLY MEMBERS Matthew Piehl, Secretary Genevieve Gaboriault, Secretary Military & Veterans Affairs Karin Ciano, Secretary Johanna Clyborne, Chair Appellate Practice Employee Benefits Sara Sommarstrom, Vice-Chair Sports, Art & Entertainment Law Katie Barrett Wiik, Chair Tim Goodman, Chair Vildan Teske, Treasurer Blake Iverson, Chair Timothy Droske, Vice-Chair Jewelie Grape, Vice-Chair J. Virgil Bradley, Secretary Joshua Schaub, Co-Vice Chair Monte Mills, Secretary/ Lisa Robinson, Treasurer Alexandria Mueller, Co-Vice Chair COMMITTEES Insurance for Members Committee MSBA CERTIFIED Treasurer Theresa Corona, Secretary New Lawyers Section Maxwell Felsheim, Treasurer Angela Sipila, Chair SPECIALIST BOARDS Ryan McCarthy, Chair Daniel Dillon, Secretary Access to Justice Committee Bankruptcy Environmental, Natural Blair Harrington, Vice-Chair Anne Hoefgen, Co-Chair Investment Committee Civil Trial Board Lauri Schmid, Chair Resources, & Energy Law Kyle Willems, Treasurer Tax Law Tom Walsh, Co-Chair Christopher Morris, Chair Candace Dale, Chair Craig Andresen, Vice-Chair Kathryn Hoffman, Chair Qortney McLeod, Secretary Lynn Linné, Chair Abigail McGibbon, Treasurer Elizabeth Henley, Vice-Chair Miriam Sahouani, Vice-Chair Audit Committee Judiciary Committee Criminal Law Board Cynthia Hegarty, Secretary Rachel Kitze Collins, Treasurer Practice Management & Alexander Korzhen, Treasurer Sarah Hunter, Chair Kelly Mitchell, Chair Andrew S. Birrell, Chair Alison Marwitz, Secretary Marketing Kathleen Splett, Secretary Business Law Matthew Ludt, Chair Budget Committee Legislative Committee Labor & Employment Board Marie Feely, Chair Family Law Sarah Soucie Eyberg, Tech Law Dyan Ebert, Chair Gary Hansen, Chair Christopher D. Jozwiak, Chair Jonathan Nygren, Vice-Chair Brad Frago, Chair Vice-Chair Christina Kunz, Chair Jonathan Levy, Secretary Tifanne Wolter, Vice-Chair Chad Snyder, Treasurer Brian Wallenfelt, Vice-Chair Court Rules & Administration Committee Life & the Law Committee Real Property Board Wade Wacholz, Treasurer Ryan Anderson, Treasurer Yolanda Wilson, Secretary Frederik Struve, Treasurer Annamarie Daley, Chair Chase Anderson, Co-Chair Karen Barte Bjorkman, Chair Shannon Wachter, Secretary Mathea Bulander, Secretary Patty Beck, Co-Chair Children & the Law Probate & Trust Diversity & Inclusion Council OTHER GROUPS Wendy Watson, Chair Greater Minnesota Practice Sonny Miller, Chair Bryan Browning, Co-Chair Membership Committee Winter Watson, Vice-Chair Barbara Heen, Chair Jolene Cutshall, Vice-Chair Justin Page, Co-Chair Jennifer Thompson, Chair Minnesota State Bar Foundation Kimberley Woods Vanselow, Jade Rosenfeldt, Vice-Chair Michael Sampson, Treasurer JeriLyn Reinhardt, President Treasurer Joseph Krueger, Secretary/ Jennifer Lammers, Secretary Elections/Appointments Committee Mock Trial Advisory Committee Sally Silk, Vice President Treasurer Samuel Edmunds, Chair Wynne Reece, Chair Landon Ascheman, Secretary Civil Litigation Paul Quast, Treasurer Melissa Stull, Chair General Policy Committee Publications Committee Hon. Ned Wahl, Vice-Chair Sarah Soucie Eyberg, Chair Steve Aggergaard, Chair MSBA Briefs/Arguments Scott Rusert, Treasurer Before the Court Lindsay Keller, Secretary Governance Committee Rules of Professional Conduct Committee Michael Boulette Eric Larson, Chair Fred Finch, Chair Christopher Bowman Communications Law Eric Cooperstein Shannon Heim, Chair Human Rights Committee Technology Committee Jenneane Jansen Milda Hedblom, Vice-Chair Elizabeth Meske, Chair Michael Remington, Chair Ken Jorgensen Jason Topp, Treasurer Samir Islam, Secretary

www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 57 All Together Now

15,548 members strong. Thank you for being part of the Minnesota State Bar Association—a diverse and dynamic community that you can rely on to enhance your career. The strength of the association lies in the power of member attorneys coming together: to learn, to share, to teach, and to advocate for the interests of the profession at the courts and the Legislature. Take a moment now to renew your membership online; the new bar year begins on July 1.

Your Profession. Your Practice. Your Partner. www.mnbar.org/renew

Reflects MSBA membership in April 2019.

0519 membership dues.indd 1 5/17/19 3:03 PM