OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVIII NUMBER III MARCH 2021 www.mnbar.org

DEMOCRACY GOES TO COURT

Litigating voting rights and election administration

Examining high-profile complaints against election attorneys

OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVIII NUMBER III MARCH 2021 www.mnbar.org

2 President’s Page Defending the rule of law By Dyan Ebert 14 It only sounds like common sense 5 Professional Why repealing the seat belt evidence rules Responsibility serves no public purpose. Private discipline in 2020 By Genevieve M. Zimmerman, Patrick Stoneking, By Susan Humiston & Joel D. Carlson 6 Law & Technology Ransomware and federal sanctions By Mark Lanterman 17 TODD: A game-changer from the 8th Circuit In early February the 8th Circuit Court of Appeals issued an opinion that should horrify anyone who has prepared a transfer-on-death deed for a client. By Sam Calvert 8 Colleague Corner Meet Anu Chudasama

10 New Lawyers Covid-19 and force majeure: What every 18 attorney ought to know Democracy goes to court By Rachel D. Zaiger Litigating voting rights and election administration in Minnesota in 2020. 12 Construction Law Section By George W. Soule & Anna Veit-Carter Writing Contest Winner Covid-19 forces contractors to examine AIA agreements By Taylor Stemler

33 Notes & Trends Landmarks in the law 26 What would a discipline office do? 43 People & Practice Examining the high-profile complaints Member announcements against election attorneys from a lawyer regulatory perspective. 45 Opportunity Market By William J. Wernz Classified ads

www.mnbar.org March 2021 s Bench&Bar of Minnesota 1 President’sPage | BY DYAN EBERT

Defending the rule of law

have been fortunate to practice on popular participation and support to re-invigoration of the MSBA’s Fair my entire career with a firm that maintain their authority.” (Minn. R. Prof. Response Committee. I am also excited recognizes the importance of Conduct, Preamble ¶6.) to share that former MSBA Presidents lawyers taking on leadership roles The rule of law is the bedrock of our Susan Holden and Paul Godfrey have andI giving back to the communities democracy. It permeates our society; it is agreed to serve as co-chairs of this in which we live and work. The firm part of our social compact and it ensures important committee. encourages—and I dare say even a fair and just society. John Adams wrote The Fair Response Committee’s expects—lawyers to lend their time and that a republic is “a government of laws, purpose is to encourage the legal profes- talent to organizations that are dedicated and not of men.” The fundamental sion to promote public confidence in to enhancing the community, addressing proposition behind this statement is that the administration of justice by fostering social and economic injustices, and no one is above the law and everyone public understanding and appreciation of improving the legal profession and the must be treated the same under law. the judicial system. As lawyers, we must legal system. I am proud to say that The American Bar Association do more than pay mere lip service to the throughout the last 27 years, I have had explains the rule of law as rule of law; we must recognize that this the honor of working with colleagues obligation necessarily involves a duty to who have served as state, district, and [A] set of principles, or ideals, defend and preserve the independence of local bar presidents; industry association for ensuring an orderly and just the judiciary. The Fair Response Com- board members and presidents; and society. Many countries through- mittee is one small way that the MSBA nonprofit board members and presidents. out the world strive to uphold the can assist our members in fulfilling this I know that my firm is not unique in rule of law where no one is above important obligation. this regard. Lawyers are often regarded the law, everyone is treated equally As former U.S. Supreme Court Justice as leaders in their communities and are under the law, everyone is held Sandra Day O’Connor wrote, “Commit- tapped to take on significant leadership accountable to the same laws, ment to the rule of law provides a basic positions with various organizations. there are clear and fair processes assurance that people can know what to for enforcing laws, there is an expect whether what they do is popular A civic duty independent judiciary, and human or unpopular at the time.” We need to The events of the last year, however, rights are guaranteed for all.1 hold true to this commitment as we hear have taught me that the most important reports of the trial of the officer accused leadership role that a lawyer has in One of my favorite ways to think of murdering George Floyd. We need to our society does not bring with it a of the rule of law is found in the U.S. be strong in our support of the people formal title or appointment. The most Constitution, and is known as “the great working in that courtroom—the judge, important professional obligation we promise:” Every man, woman, and child the lawyers, the clerks, and the court have is to defend should be judged by the same legal rules reporter and bailiffs. We also need to the rule of law. and have access to the same public encourage people in our various commu- To be sure, benefits, no matter the color of our skin, nities who raise questions about the trial the obligation national origins, or gender. process to be respectful and appreciate to defend the the work of the people in that court- rule of law is The Fair Response Committee room. We need to uphold the rule of law embedded in our Of course, an independent judiciary that is playing out on this very visible, Rules of Profes- is key to preserving the rule of law. To highly charged, stage. sional Conduct, be truly independent, the judiciary must Please also commit to educating the which provide be free of undue influence and must people in your circles about the rule of DYAN EBERT that “a lawyer remain committed to the protection of law. Talk about your experiences as a is a partner at the should further individual rights and liberties. Given the lawyer, and share stories of how justice central Minnesota the public’s significant role the courts and judges prevailed. Think about the reasons you firm of Quinlivan & understanding of play in the administration of justice, it is went to law school, as this may reinvigo- Hughes, P.A., where and confidence not surprising that they are often subject rate your passion for your profession. To- she served as CEO in the rule of law to criticism. But when criticism of judges’ gether let’s rebuild trust and confidence from 2003-2010 and and the justice rulings crosses the line into personal at- in this ideal we hold so dear, and without 2014-2019. She also system because tacks or intimidation, or proves to be in- which our society would crumble. s served on the board of legal institutions accurate and unjust, the public’s respect directors of Minnesota in a constitu- for our system of justice is undermined 1 https://www.americanbar.org/groups/public_ CLE from 2012-2019. tional democ- and it is our obligation to speak out. education/resources/rule-of-law/ (last accessed racy depend To that end, I recently announced the 2/7/21).

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

Editor Steve Perry [email protected] Art Director W E A R E P L E A S E D T O A N N O U N C E Jennifer Wallace O U R N E W E S T P A R T N E R Advertising Sales Pierre Production & Promotions, Inc. (763) 497-1778

MSBA Executive Council President Dyan J. Ebert President-elect J A R E D M . R E A M S Jennifer A. Thompson Treasurer Paul D. Peterson Secretary Paul Floyd 8 0 0 L U M B E R E X C H A N G E B U I L D I N G , 1 0 S O U T H F I F T H S T R E E T New Lawyers Chair M I N N E A P O L I S , M N 5 5 4 0 2 ∙ P H O N E : 6 1 2 . 2 3 6 . 0 1 6 0 Kyle Willems E C K L A N D B L A N D O . C O M Chief Executive Officer Cheryl Dalby Publications Committee Chairperson: Carol K. Lee Steven P. Aggergaard Emily K. Cooper Holly A. Fistler Wood Foster Bethany Hurd Malcolm P.W. Whynott

© 2021 Minnesota State Bar Association Bench & Bar of Minnesota (ISSN 02761505) is published Monthly, except Bi-Monthly May/June by the Minnesota State Bar Association, 600 Nicollet Mall STE 380, Minneapolis, MN 55402- 1641. Periodicals postage paid at St Paul, MN and additional mailing offices. Postmaster: Send address changes to Bench & Bar of Minnesota, 600 Nicollet Mall STE 380, Minneapolis, MN 55402-1641. Subscription price: $25.00 for members which is included in dues. Nonmembers $35.00 per year. Some back issues available at $5.00 each. Editorial Policy: The opinions expressed in Bench & Bar are those of the authors and do not necessarily reflect association policy or editorial concurrence. Publication of advertisements does not constitute an endorsement. The editors reserve the right to accept or reject prospective advertisements in accordance with their editorial judgment.

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www.mnbar.org March 2021 s Bench&Bar of Minnesota 3 ProfessionalResponsibility | BY SUSAN HUMISTON

Private discipline in 2020

n 2020 the Director’s Office closed than usual of no-contact rule violations No-contact rule 82 complaints with admonitions—a (Rule 4.2) and confidentiality violations In 2020, four attorneys received ad- form of private discipline issued for (Rule 1.6). Let’s look at a few specific monitions for violating Rule 4.2, MRPC. violations of the Minnesota Rules of rules and situations that tripped up Rule 4.2 is seemingly straightforward: ProfessionalI Conduct (MRPC) that are lawyers in 2020. isolated and nonserious. This number In representing a client, a lawyer was down substantially from 2019, when Safekeeping client property shall not communicate about the 107 admonitions were issued. Overall, As I wrote in my December 2020 subject of the representation with approximately 8 percent of file closings column, safekeeping client property a person the lawyer knows to be in 2020 were due to the issuance of an is an important obligation, and it is represented by another lawyer in admonition. Another 20 complaints particularly important that fees paid in the matter, unless the lawyer has were closed with private probation, a advance of being earned and filing fees the consent of the other lawyer or stipulated form of private discipline be held in trust. (Rule 1.15(a), MRPC; is authorized to do so by law or a approved by the Lawyers Board chair. Rule 1.15(c)(5), MRPC.) Clients will court order. Private probation is generally appropri- frequently pay advance fee retainers and ate where a lawyer has a few nonseri- expense deposits by credit card. If you As one would expect, the ous violations in situations that suggest have not already done so, make sure you circumstances surrounding the Rule supervision may be of benefit. More files are using a credit card service provider 4.2 admonitions in 2020 were distinct. resulted in private probation disposi- that allows you to deposit advance fees One involved a father-in-law repeatedly tions in 2020 than in 2019, when 14 files and filing fees directly into your trust contacting a represented soon-to-be ex- closed with private probation. Notably, account, while separately withdrawing daughter-in-law regarding a dissolution, the pandemic was generally not a mate- any service fees or disputed fees from as he assisted his son, on and off, with rial factor in admonitions from 2020. your operating account. LawPay comes the divorce. When one is personally The rule violations that lead to to mind, but there are numerous other involved, it is easier than you might private discipline run the gamut, and a solutions, many of which integrate with think to fail to remember rules that table of admonition violations by rule other client management software solu- you would ordinarily never disregard. can be found in the annual report issued tions you might use already. Other Rule 4.2 cases involved lawyers each July. Generally, the most violated If you do not use such a service, you attempting to narrowly define the matter rules are Rule 1.3 can deposit credit card advances in your in issue in order to contact the opposing (Diligence) and operating account and then transfer party, when they know full well that Rule 1.4 (Com- then over to trust—see Rule 1.15(h), counsel is involved. This is an area that munication), Appendix 1(I)(10)—but you then really bothers both opposing counsel with commu- need to have good internal processes to and opposing parties, so it frequently nication viola- make sure that happens “immediately” draws complaints. Sometimes Rule 4.2 tions being more as referenced in the appendix. If you violations occur when civil proceedings frequent in 2020 don’t have a good process, you can arise out of facts that also give rise to than diligence. inadvertently leave money that belongs criminal actions. Four in one year is a SUSAN HUMISTON Other frequently in trust in your operating account. This lot of admonitions for Rule 4.2, MRPC. is the director of the violated rules, is what happened to one attorney who Please take note. Office of Lawyers particularly in the received an admonition in 2020. While Professional private discipline on vacation, the attorney accepted a Prejudicial conduct Responsibility and context, involve new engagement, and the client paid an Rule 8.4(d), MRPC, makes it Client Security declining or advance retainer by credit card. Because professional misconduct for a lawyer to Board. Prior to her terminating rep- she was on vacation, however, the engage in conduct that is prejudicial appointment, Susan resentation (Rule attorney did not transfer that advance to the administration of justice. This is worked in-house 1.16), making fee into her trust account though it a broad rule with various applications. at a publicly traded fee arrangements remained unearned, and through a One action that the Office has company, and in (Rule 1.5), and continued oversight, the advance fee consistently found to fall within this private practice as a safekeeping client remained in her business account for a provision is a prosecutor’s failure to litigation attorney. property (Rule fair amount of time. Because the funds comply with victim-notification statutes.

SUSAN.HUMISTON 1.15), although were not in trust, the lawyer failed to Minnesota law places special obligations @COURTS.STATE.MN.US 2020 also saw a safekeep client funds and received an on prosecutors, particularly in domestic higher number admonition for Rule 1.15(a), MRPC. abuse cases.

4 Bench&Bar of Minnesota s March 2021 www.mnbar.org a nt e y ed me ers i rs p a Judg er t emnit e Su s p n nd iv O ede i Sh me I e y TR rs tee nsh in ff s e rus s WHENev PERFri O tR RecM ANCEer CuOp UNT T Sa s ia pl Judg e n demnitiv S O ard ip Sh In e y R ede tee Re n me f T ers Gu ri nsh vi if Rec rs Trus as a ia le Judg er t emnit e Sup s or rd p p n nd iv O ede rti a Re i Sh me I e y TR rs tee Gu i nsh in dg ff s e rus Ce p ar ev ri t Rec er T a s Only about 20 percent i or ia pl Ju he n emnitiv Sup O rsh ti rd ip S Ind e y R ede tee r ua Re sh n gme f T ers of complaints to theato Ce G ri vi d if Rec rs Trus a ip ra ian le Ju r t emnit e Sup rd p p he n nd iv O ede OLPR result in any rtio a Re hi S me I e it y TR rs orsh Gu i in dg ff n s e at Ce p ar ns ev ri t Rec er a t i r ia pl Ju he n dem iv Sup O discipline, and private Withtio overa rd40 years experienceip S PJT has beenIn Minnesotae y ’s R ede hmen orsh r Re n gme f nit T rs at Ce Gu ri nsh vi d if Rec rs pe a discipline is far morettac t suretyip bondingra specialist.ia le WJuith the knowledge,r t experiencee Su A rd p p he n ndem iv ede men rtio a Re hi S me I e it y R rs h orsh Gu i in g ff n s T e prevalent than public vat Ce ar ns v d ri Rec r ttac t ip ia le Ju nt dem ve Sup A • Supetirorsedeasrd • Apppeals •p CertSioherari • Replevin •e i y discipline. men orsh r Re hi n me In it h at Ce• InjunGuctionr •i Restrainis ngi Orderd g• Juidfgmentf Rec • n s v t p a ian ev Ju r t em er ttac er i or rd l he iv A ns • License ti Bondsa • Trust • Peprsonal S ReprmenesentatIndive • e y hmen orsh r Rep shi in g f nit Co • Catonse rCevator • Gu Profersisional Liabiliv ty • EdRISAi f• Fid eReclity • ttac rv t ip a ian le Ju r nt em v For example, Minn. Stat. A e ti or ard ip She ei y ns men orsh r Rep n gme f Ind it §611A.0315, subd. 1(a), provides that Co hLocallyat ownedCe and operated. Gu rSamei daynsh servicevi with ind housei fauthority!Rec n prosecutors shall make every reasonable rv t p ra ia le Ju r t em s ttac e hi rd p he n effort to notify victims in domestic A men rs rtio S me Ind tee a ons h ua i Rep hi in g f assault cases of a decision not to file C 121ato South Ce Eighth Street G Suiter 980, Minneapolis,ns v MN d55402rif rus ede ttac rv t ip ra dia le Ju e T ers charges or to dismiss pending charges. A e (612) 339-5522tio • Fax:r (612) 349-3657p Sh O In 2020, a prosecutor received an ns men rsh r ua Rep hi n TR Sup Co h atoemail@pjtagencCe yG.com • r wwi w.pjtagencns y.comvi s y admonition under this rule, affirmed ttac rv t p a le er it by a panel of the Board, for failing to A e hi or rdia iv n ns men rs rti Rep e notify the victim—a minor child and h Gua i dem Co ato Ce ar Rec In her custodial parent—of dismissal of ttac or misdemeanor assault charges against A rti the non-custodial parent. In prior years, Ce there has been a push from various ERISA DISABILITY CLAIMS stakeholders to amend Rule 3.8, MRPC, to include reference to prosecutors’ ERISA LITIGATION IS A LABYRINTHINE MAZE OF victim-notification obligations due to a REGULATIONS AND TIMELINES. LET OUR EXPERIENCE HELP. concern about uneven compliance. The response has historically been that Rule 8.4(d), MRPC, covers such conduct and that a more specific rule is not needed. For new prosecutors or those who are unaware, please note. ROB LEIGHTON DENISE TATARYN 952-405-7177 952-405-7178 Conclusion Only about 20 percent of complaints to the OLPR result in any discipline, and private discipline is far more prevalent than public discipline. As I noted in my column on this same subject last year, most attorneys care deeply about compliance with the ethics rules but it is important to remember that ethical conduct involves more than refraining from lying or stealing. You cannot go wrong by taking a few minutes each year to re-read the Minnesota Rules of Professional Conduct. They can be found on our website, and are in the Minnesota Rules of Court. You will find the time well spent. And, remember, we are available to answer your ethics questions: 651-296-3952. s www.mnbar.org March 2021 s Bench&Bar of Minnesota 5 Law&Technology | BY MARK LANTERMAN

Ransomware and federal sanctions

ansomware, as most of us or sold regardless of whether the know by now, is a type of victim pays. Paying ransoms fuels malware that takes data or cyberterrorism internationally and devices hostage, with cyber puts the victim, and others, at attackersR demanding the payment greater risk. of a ransom in exchange for restored access. Preparation OFAC guidelines is the critical factor when it While the penalties for violating comes to handling a ransomware sanctions laws are steep and contribute attack. Strong backup policies to the legal, reputational, financial, are essential for mitigating data and operational risks that accompany loss; adhering to best security practices, ransomware attacks, OFAC provides such as the use of encryption, also better guidelines for appropriate response enables organizations to respond to cyber procedures and ways to potentially miti- threats. While attackers may still have Individuals who assist gate the repercussions of inadvertently the ability to threaten the publication committing a violation. If a violation is of data, it is always advisable to not or facilitate payments identified, “the existence, nature, and pay ransoms. Paying a ransom puts an adequacy of a sanctions compliance organization at greater risk of repeat on behalf of a victim— program is a factor that OFAC may con- attacks. But paying a ransom is also sider when determining an appropriate ultimately risky for another reason—it including attorneys, enforcement response.”2 A Framework may be a violation of U.S. sanctions laws. for OFAC Compliance Commitments Given the increased reliance on insurance companies, has been published to assist organiza- remote work capabilities in 2020, tions in creating this type of program.3 ransomware attacks abounded. This and security vendors— Having this in place reduces the risk of a added threat led the U.S. Department of violation to begin with, and potentially the Treasury’s Office of Foreign Assets may also be at risk of improves the outcome in the event of a Control (OFAC) to issue an advisory violation. The five key categories identi- in October detailing the additional sanctions violations. fied by OFAC as primary components of compliance a risk-based program are similar to the risks associated necessary factors contributing to a strong with paying a violation if they pay a ransom to security culture. Proper response proce- ransoms. On a a sanctioned individual or entity. dures at the time of an attack also reflect national level, Furthermore, individuals who assist favorably on an organization, including “ransomware or facilitate payments on behalf of a contacting OFAC and appropriate law payments made victim—including attorneys, insurance enforcement agencies. to sanctioned companies, and security vendors—may In assessing the potential risks associ- persons or to also be at risk of sanctions violations. ated with ransomware, it is important to MARK LANTERMAN comprehensively When confronted with a ransomware consider the possibility of violating sanc- is CTO of Computer sanctioned attack, organizations become panicked tions laws. Cyberattacks often come with Forensic Services. jurisdictions and want the incident to be resolved at a web of risks; preparation and adher- A former member could be used to any cost. Many of them rush to pay the ence to best practices help to offset the of the U.S. Secret fund activities cyber terrorist. The risk of losing access uncertainty. Developing a strong compli- Service Electronic adverse to the to data can be preventively managed ance culture and establishing a strong Crimes Taskforce, national security with a strong data backup policy, along incident response plan are important to Mark has 28 years and foreign with the implementation of strong proactively address risk. s of security/forensic policy objectives information security controls. In some experience and of the United instances, organizations may still feel the Notes 1 has testified in over States.” Even need to pay cyber attackers in the hope 1 https://home.treasury.gov/system/files/126/ofac_ 2,000 matters. He is if the identity that doing so will prevent publication of ransomware_advisory_10012020_1.pdf a member of the MN of the attacker their data. But paying the ransom does 2 https://home.treasury.gov/system/files/126/ofac_ Lawyers Professional is unknown, not guarantee that the attacker will ransomware_advisory_10012020_1.pdf Responsibility Board. a victim may actually do what they say; it remains a 3 https://home.treasury.gov/system/files/126/frame- still commit possibility that the data will be posted work_ofac_cc.pdf

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‘I like to get involved’

posting by a plaintiffs’ personal injury firm in Eau Claire, Wisconsin. The next thing I knew, I was accompanying my soon-to-be boss to court during my interview process and getting a tour of the town from his delightful wife. (Talk about ANURADHA (ANU) a personal touch!) Some years later, my practice CHUDASAMA is a litigation expanded to include medical malpractice claims attorney at Bassford Remele, on behalf of plaintiffs, and later, on behalf of practicing primarily in the defendants. I now defend physicians, hospitals, areas of medical and legal and long-term healthcare facilities and love the malpractice, personal injury, insurance coverage, and work, as it is a marvelous marriage of my inter- general liability. She is chair est in science and medicine and the practice of of the MSBA’s Professional law. In my professional malpractice work, I also Regulation Committee, defend lawyers, which I find similarly rewarding. a Minnesota No-Fault Standing Committee member, You chair the MSBA’s Professional president of the State Bar Regulation Committee. Tell us a little of Wisconsin’s (SBW) about that body’s work. Nonresident Lawyers Division, The committee is a think tank of a governor on SBW’s Board professionals with knowledge and experience of Governors, and chair of its in professional regulation—some with decades Governance Committee. of it. We study and recommend changes to [email protected] the Rules of Professional Conduct, Rules on Lawyers Professional Responsibility, Rules for Bar Admission, Client Security Board, and Why did you go to law school? policies and administration of the Office of While growing up in the Middle East in Bahrain and then Lawyers Professional Responsibility, Lawyers Board, and Board in Toronto, Canada, my parents instilled in me a drive for of Law Examiners. For example, one of our charges is to keep higher education. My mother, a brilliant woman, ranked first apprised of rule changes to the Model Rules of Professional in her Master of Science program and was the first female to Conduct, examine whether to recommend the same or similar receive a PhD in chemistry in her community in India. My changes in Minnesota, and make recommendations. father, an electronics engineer, was a distinguished CEO of two software companies in Bahrain. They set remarkable examples What do you get professionally or personally out of for me. For a career, doctor and lawyer were at the top of my being involved in the MSBA and other bar groups? list, but after a few science classes and occasional visits to the As far back as I can recall, I’ve been someone who signs up sterile environment of hospitals and clinics, I dispelled the for different clubs and organizations and volunteers. I like to idea of becoming a doctor. I found science and medicine quite get involved and help others. The legal community provides intriguing, but couldn’t imagine spending every day in the work ample opportunity for this, given all the committees and bar setting. On the other hand, I loved my high school law classes associations it takes to regulate, facilitate, and improve the and had fun leading a class-wide mock trial, and decided being profession for lawyers and those we serve. My involvement with a lawyer would better suit my abilities. Following a rigorous the MSBA, No-Fault Standing Committee, and State Bar of undergraduate international business program and a short Wisconsin, among others over the years, have enabled me to detour in the financial sector, I set my sights on law school. contribute and, hopefully, make a difference. Also, a fantastic “side-effect” is getting to work with extraordinary individuals What led you to focus your practice on professional who are similarly invested and share values like furthering malpractice and personal injury issues? diversity, inclusion, and belonging. My keen interest in personal injury law emerged when I interned at a Minneapolis products liability defense firm during What do you do to feel rejuvenated when you aren’t working? law school. The issues were fascinating and each case was In my work, I naturally tend to go-go-go, but I cherish unique. That internship, coupled with my enjoyment of torts downtime. For getaways, my husband, Jason, and I love classes, catapulted me into the personal injury world. Before traveling overseas, but during the pandemic, relaxing has I graduated in 2010, the market had crashed and there were included lake life at his parents’ cabin and visiting my parents in widespread hiring freezes. Chicago, where we’re always greeted with a feast of my mother’s Back then, I didn’t distinguish between plaintiffs’ versus delicious, savory Indian cooking. Overall, anything involving defense work or even appreciate the differences; I only knew family and friends is a guaranteed serotonin boost—I’m I wanted to practice personal injury law. I applied to a job fortunate to have them, as well as my career. s

8 Bench&Bar of Minnesota s March 2021 www.mnbar.org R

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Covid-19 and force majeure What every attorney ought to know

ovid-19 has been dubbed a the restaurant at full capacity unfeasible, duty where: (1) the contracting party’s whole host of things: a global and the individual is still obliged to make principal purpose for entering into the pandemic, a national health full rental payments despite the sub- contract has been frustrated; (2) due to emergency, the novel corona- stantial decline in gross revenues. Even no fault of the party; (3) by the occur- Cvirus, unprecedented, Rona, the list goes more problematic are situations in which rence of an event, the “non-occurrence on. Another phrase that has frequently the applicable contract does not even of which was a basic assumption on been thrown into the mix? Force majeure. contain a force majeure provision, or the which the contract was made.”5 At its core, the effect of a force ma- provision does not extend to covid-19. Parties seeking to use this defense jeure clause is to excuse performance of In situations such as these, a party may should pay particular attention to wheth- one party to a contract in the event an need to turn to the defenses of impos- er the frustration temporarily suspends unforeseen circumstance occurs.1 Min- sibility/impracticability and frustration the party’s contractual duty to perform nesota law is clear that the clause itself is of purpose to temporarily suspend the or discharges the party’s performance determinative of the performance to be performance of its contractual obliga- altogether. Indeed, where a frustration excused, and courts applying Minnesota tions or abandon its contractual obliga- is only temporary, a party’s contractual law are reluctant to read a force majeure tions altogether. obligation is, similarly, temporarily sus- clause broadly.2 Clauses that explicitly pended. A party’s contractual obligation cover pandemics/epidemics and acts Impossibility/impracticability is discharged only where performance of of governmental authorities are likely Under Minnesota law, the defenses of a contract would be considerably more triggered by covid-19 and any resulting impossibility and impracticability have burdensome after the frustration con- government mandate. While some force been used interchangeably to excuse a cludes than it would have been had no majeure clauses may allow one party to party’s performance of a contractual duty frustration occurred;6 the same applies terminate the contract after a specified where: (1) due to the existence of a fact equally to the application of impossibil- amount of time wherein performance or circumstance; (2) of which the promi- ity/impracticability. has been suspended due to the unceasing sor at the time of making the contract force majeure event, the majority of such neither knows nor has reason to know; Key takeaway clauses only provide for the temporary (3) performance become impossible, or Whether a party was (or is) justified in suspension of performance until the force becomes “impracticable in the sense that excusing performance under a contract, majeure event is no longer a constant. performance would cast upon the promi- or abandoning a contract altogether, due Moreover, such clauses often express- sor excessive or unreasonable burden, to covid-19 may be the key issue flooding ly carve out payment obligations under hardship, loss, expense or injury.”3 the courts in 2021. In order to protect the contract. Stated differently, while a While there are many nuances to the clients now and in the future, it is best contractual party defense of impossibility/impracticability, practice to ensure that any contract may have the this defense has been notably recognized includes a well-drafted force majeure ability to tem- as suitable for circumstances in which provision, so that the unprecedented will porarily suspend a “prevention of law” occurs—that is, not also prove the party’s undoing. s performance due where an unforeseen act of governmen- to a force majeure tal authority renders a party’s perfor- Notes event, any pay- mance of a contractual duty impossible 1 See Melford Olsen Honey, Inc. v. Adee, 452 F.3d ment obligations or impracticable.4 In light of Gov. Tim 956 (8th Cir. 2006) (applying Minnesota law). under the con- Walz’s numerous executive orders 2 See, e.g., id. RACHEL D. ZAIGER tract still remain concerning covid-19 (imposing restric- 3 Powers v. Siats, 70 N.W.2d 344, 348 (Minn. is an associate at intact. This can tions on essential and non-essential 1955). Dady & Gardner, (and indeed, has) businesses), parties may find themselves 4 See, e.g., Automatic Alarm Corp. v. Ellis, 99 P.A., where become problem- using the defense of impossibility/imprac- N.W.2d 54 (Minn. 1959); Vill. of Minnesota she represents atic in situations ticability more frequently. v. Fairbanks, Morse & Co., 31 N.W.2d 920 franchisees, dealers, where, for exam- (Minn. 1948); Meier v. First Commercial Bank, and distributors ple, an individual Frustration of purpose No. A12-146, 2012 WL 3101290, at *3 throughout the is locked into a The defense of frustration of purpose, (Minn. Ct. App. 7/30/2012). United States in 10-year lease to on the other hand, focuses on a party’s 5 City of Savage v. Formanek, 459 N.W.2d 173, their relationships operate a restau- principal purpose in entering a contract, 176 (Minn. Ct. App. 1990). with franchisors, rant, the appli- rather than a party’s ability to perform 6 enXco Dec. Corp. v. N. States Power Co., 758 manufacturers, and cable governor’s a contract. The defense of frustration F.3d 940, 945 (8th Cir. 2014) (citing the suppliers. mandate has ren- of purpose excuses, in whole or in part, Restatement (Second) of Contracts §269 and dered operating a party’s performance of a contractual applying Minnesota law).

10 Bench&Bar of Minnesota s March 2021 www.mnbar.org Minnesota State Bar Association Do you know a dedicated and New Lawyers hardworking new lawyer? Section Nominate a new lawyer for Outstanding this year’s award! New

The MSBA New Lawyers Section is now accepting nominations for the 2020-21 Outstanding New Lawyer of the Year Award. Lawyer of the All licensed attorneys are eligible to submit a nomination. To be eligible, a nominee must be a licensed attorney under 36 years of age or in practice less than six years who has shown Year outstanding dedication to the Minnesota State Bar Association or a local bar affiliate. Consideration will also be given to the nominee’s pro bono work, community service, contributions to diversity, and professional achievement. Award recipients will be announced in the summer or fall of 2021.

Nominations are due May 1, 2021. KYLE KROLL > 2019-20 Outstanding Email Abby Ward for nomination form: New Lawyer of the Year [email protected]

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1 11 www.lemonlawminnesota.com • www.gadtkelawfi rm.com Construction law Covid-19 forces contractors to examine AIA agreements

By Taylor Stemler

mplied in contract law is the as- problematic in the construction industry, The AIA termination and sumption that the world will re- as supply chain and workforce issues slow suspension clauses main the way the contracting operations to a halt.2 Under the AIA General Conditions parties imagined at the time of Fortunately, contract attorneys have form, contractor delays due to unusual de- formation. This principle origi- learned from situations like the burned lays in deliveries, unavoidable casualties, Inated from an early English case, where down music hall and have developed or other causes beyond the contractor’s a venue owner was excused from renting contractual devices to assign unforeseen control may provide a basis for contractor out a music hall unexpectedly destroyed risks to parties. These force majeure claus- time extensions.5 Due to the deaths, sup- by fire.1 The covid-19 pandemic has es are now common and variants have ply chain issues, and stay-at-home orders sparked many “fires” of its own—not only even made their way into the American caused by the covid-19 pandemic, it seems for parties left unable to fulfill contractual Institute of Architects industry standard likely that related contractor delays would obligations, but also for lawyers attempt- contract form.3 Whether covid-19 is cov- be excused under the AIA form. The AIA ing to determine their client’s exposure ered under these clauses depends largely form also allows a contractor to termi- under these agreements. The cumula- on their terminology and the yet-to-be- nate the contract if the work is stopped tive effects of the pandemic are especially understood effects of the pandemic.4 for 30 consecutive days due to “an act of

12 Bench&Bar of Minnesota s March 2021 www.mnbar.org Conversely, project owners may ter- Notes minate or suspend the contract for con- 1 Taylor v. Caldwell, 122 Eng. Rep. 309 (1863). venience. Thus, there is no requirement 2 James P. Chivilo et al., “A Look at COVID-19 that the pandemic have any adverse effect Impacts on the Construction Industry,” on the project. However, should an owner Holland & Knight, https://www.hklaw.com/ decide to terminate or suspend, they are en/insights/publications/2020/05/a-look-at- responsible for compensating the contrac- covid19-impacts-on-the-construction-industry tor.9 Additionally, the amount of time the (last visited 11/21/2020). owner is permitted to suspend the con- 3 Am. Inst. Architects, A201-2017 tract may be limited by the contractor’s General Conditions of the Contract for ability to terminate, which arises after the Construction §8.3 [hereinafter A201]. owner’s suspensions for convenience ex- AIA contracts are the most widely used ceed a predetermined number of days.10 standard form contracts in commercial Again, in this case, the contractor is per- construction. Contract Documents, AIA mitted to collect payment from the owner N.Y., https://www.aiany.org/resources/contract- for work done as well as profits and ex- documents/ (last visited 11/21/2020). penses on the work yet to be completed.11 The A201-2017 contract sets for the obligations between the owner and Likely outcomes and contractor. Although the termination and available recovery suspension clauses are not labeled as force So far, where long-term stay-at-home majeure clauses, they have a similar effect of orders have exempted the construction assigning risk to parties due to unforeseen industry, widespread terminations of contingencies. construction contracts are unlikely. This 4 Dealing With The Construction Impacts Of is due to the relatively limited ability of COVID-19, supra note 3. contractors to terminate their contracts 5 A201 §8.3.1. (absent a government mandated shut- 6 A201 §14.1.1.2. down), and the lack of motivation for 7 A201 §14.1.1.3. 12 project owners to do so. 8 See e.g., Minn. Exec. Dept., Executive Order The more probable scenario will be No. 20-20 § 6.x. for contractors to suspend performance 9 A201 §14.3-4. of the contract due to material and per- 10 A201 §14.1.2. sonnel shortages. Under the AIA form, 11 A201 §14.1.3. it is the contractor’s responsibility to 12 See e.g., A201 §14.4.3. (mandating owners to provide adequate materials and person- pay costs to contractors for owner-initiated nel to ensure timely completion of the terminations). project. If contractors are unable to ful- 13 A201 §14.2.1.1. fill this responsibility, they will be forced 14 A201 §8.3.1. Although section 8.3 does not to suspend performance or face potential preclude damages for delay, available damages uncompensated termination by project do not include those caused by COVID-19. Editor’s note: This essay was the owners.13 Although the contractor is Tony Flesor, “COVID-19 and the AIA first-place winner in the MSBA technically excused for these pandemic- A201 – 2017: Anatomy of a Delay Analysis,” Construction Law Section’s induced delays, under the AIA form, the L. Week Colo., https://lawweekcolorado. 2020 writing competition. owner need not compensate the contrac- com/2020/04/covid-19-and-the-aia-a201-2017- tor for additional expenses incurred by anatomy-of-a-delay-analysis/ (last visited these delays.14 These expenses may be 11/21/2020). substantial and include terminating ex- 15 Chivilo, supra note 2. isting subcontracts as well as performing 16 See e.g., S&B/BIBB Hines PB3 Joint Venture preventative maintenance on previously v. Progress Energy Fla., Inc., 365 F. App’x 202 completed work.15 Despite the covid-19 (11th Cir. 2010) (dismissing suit for damages emergency, it is unlikely that courts will due to increased construction costs due to permit recovery of damages incurred by hurricanes where the contract unambiguously government, such as a declaration of na- contractors where the contract provides precludes additional damages). tional emergency, that requires all work only for time extensions—and not addi- to be stopped.”6 Should this occur, the tional compensation.16 contractor may terminate the contract Contractors may still be able to and recover compensation for work ex- recover for pandemic-related delays ecuted, termination costs, and a reason- under business interruption clauses TAYLOR STEMLER is a 3L at able overhead and profit on work yet to be embedded within their insurance policies. Mitchell Hamline School of performed.7 Although so far Minnesota’s Unfortunately, however, these policies Law and is planning to start shelter-in-place orders have generally ex- often require physical loss or damage as an attorney at Merchant empted the construction industry,8 if this to initiate coverage. Alternatively, & Gould, P.C. in the fall of should cease to be the case, the clause contractors may collect government aid 2021, representing clients in might also allow contractors to terminate provided under the federal CARES Act intellectual property matters. their contracts and recover compensation. or Disaster Loan Program. s [email protected]

www.mnbar.org March 2021 s Bench&Bar of Minnesota 13 Crashes are caused by many preventable and careless behaviors, including distracted driving, speeding, chemical and alcohol use, and simply failing to pay attention, among other violations of the rules of the road. Crashes are not, however, caused by seat belts. 14 Bench&Bar of Minnesota s March 2021 www.mnbar.org It only sounds like common sense Why repealing the seat belt evidence rules serves no public purpose

By Genevieve M. Zimmerman, Patrick Stoneking, & Joel D. Carlson

n 80,636 traffic crashes were lessness of others. By definition, because reported to DPS; the seat belt evidence has nothing to do these crashes involved 148,774 with assigning blame for the crash, the vehicles and 174,422 people; introduction of seat belt evidence only n these crashes caused 364 deaths serves to allow a careless driver to tell and injured 27,260; the victim of their negligence that their n 4,000 crashes were alcohol- injuries are their own fault. This is a dan- related, resulting in 114 deaths gerous rule that leads to awful and unjust and 2,176 injuries; and outcomes—all of which are directly ben- n none of the crashes were eficial to the insurance industry. reported to have been caused by The suggestion that juries should hear anyone’s failure to wear a seat belt. seat belt evidence may seem to make sense, which is part of the reason other In view of these facts, the Legisla- states have given in to the insurance in- ture has rightly decided that the public dustry’s demands to put such evidence is better served by a civil justice system before a jury whenever possible. After all, that puts responsibility for crashes on jurors would likely think it is very relevant those who caused the crashes in the first that an injured person was not wearing liminating Minnesota’s long- place. Crashes are caused by many pre- his or her seat belt when a crash occurred. standing seat belt evidence ventable and careless behaviors, includ- But the rules of evidence always face a rule, as recently promoted ing distracted driving, speeding, chemical difficult balancing act: Is this evidence re- in one Bench & Bar article,1 and alcohol use, and simply failing to pay ally as important as it would seem to be? would result in the largest attention, among other violations of the Does this evidence need further explana- windfallE to negligent drivers and their rules of the road. Crashes are not, how- tion for the jury to understand it? And insurance companies that lawmakers ever, caused by seat belts. even with such an explanation, will the could ever give them. Over the last 25 Of course, it goes without saying that jury ever interpret this evidence the way years, there have been multiple efforts by people should wear seat belts—which, in the law thinks it should? This analysis is the insurance and trucking industries to 94 percent of cases, Minnesotans do. The familiar to any attorney and is the reason repeal this law. Each time, policymakers National Highway Transportation Safety that courts keep all sorts of interesting in- have weighed the benefits of repeal (there Administration (NHTSA) has studied formation from the jury. are none) and the harm to injured motor- seat belt use and determined the best way In fact, the rules of evidence almost ists (it’s extensive) and they have rightly to increase compliance is to make fail- always prevent the jury from getting to rejected this unfair money grab by the in- ure to use a seat belt a primary offense, hear the juicy details that it might want surance industry. something Minnesota has already done. to know in deciding a case. For example, First, despite a record number of Min- Legislative efforts to allow the use of seat you cannot tell the jury that the defense nesotans buckling up, our state continues belt evidence in civil cases often claim to attorney is really an employee of the in- to suffer tremendous devastation from have a similar effect, but in fact they have surance company and that the defen- the actions of careless drivers. Specifical- nothing to do with safety and everything dant will not pay one penny of his own ly, according to the Department of Public to do with shifting liability away from money to compensate the plaintiff. Some Safety’s (DPS) annual Crash Facts Re- those who cause crashes and onto those states allow that evidence, but Minnesota port in 2019:2 who are innocently injured by the care- does not.

www.mnbar.org March 2021 s Bench&Bar of Minnesota 15 Seat belt evidence is both very powerful and very likely to be misunderstood, so it is exactly the type of information judges are careful with.

The jury might also like to hear that Insurance companies know that in prac- the plaintiff’s extensive injuries would tice, the mere prospect of hiring biome- make her completely dependent on the chanical engineers to testify is likely to taxpayers for care because her health in- keep many plaintiffs with serious but rela- surance would not cover the extensive tively minor injuries out of the courtroom support that she requires to live. That altogether. Insurers know that this would type of information might make a jury less lead to windfall profits for their compa- likely to let a culpable defendant’s insur- nies, as they could comfortably deny such ance company off the hook, but Minne- claims on a wholesale basis regardless sota courts would not allow such a discus- of merit. sion to occur at trial either. So when we The Legislature has examined talk about introducing seat belt evidence evidence about repealing the seat belt as evidence a person is to blame for his evidence rule many times over the past or her own injuries, it has nothing to do 25 years. Whenever they start peeling with giving the jury all the facts because the onion to look at the real evidence, what the jury actually sees and hears is it is clear who really benefits from this the subject of a huge number of carefully was in jail for the accident. The insurance change: insurance companies. Given the crafted rules. company’s lawyer was able to convince potentially devastating losses to their Seat belt evidence is both very pow- the jury at trial that Nye was completely constituents, the response of our elected erful and also very likely to be misunder- responsible for his own injuries. His estate representatives has repeatedly been a stood, so it is exactly the type of evidence recovered nothing, despite the jailed of- correct and resounding NO. We hope judges are careful with—even in states ficer having significant insurance cover- that continues in 2021 and well into the where they allow it as evidence. Allow- age. Is that fair or just? future. s ing highly prejudicial and easily misun- These are exactly the type of windfalls derstood evidence is dangerous as it re- that Minnesota truckers and insurers are Notes sults in unjust outcomes. To illustrate, in looking for. They are hoping to avoid pay- 1 “Click it or Zip It: It’s Time to Rethink the one newsworthy case, a Walmart driver ing on behalf of their drunk, distracted, Seat Belt Gag Rule,” Michael T. Burke and who had not slept for over 24 hours fell or negligent drivers and leave somebody Brandon D. Meshbesher, Bench & Bar of asleep at the wheel before ramming his else—anybody else—holding the bag. Minnesota, January 2021. 80,000-pound 18-wheeler into the back As noted above, the seat belt evidence 2 Crash Facts, Minnesota Department of Public end of a limo bus carrying comedian rule would not even come up in the vast Safety 2019 edition. Tracy Morgan and four others. Evidence majority of cases because so many Min- 3 Jones v. Alayon, 162 So. 3d 360 (Fla. Dist. showed that the driver was traveling over nesotans follow the law. But whenever it Ct. App. 2015). 20 miles per hour above the speed limit at came up, it would become such a tremen- the time of the crash. Morgan and three dous can of worms that the Legislature others sustained serious and life-threat- has wisely opted to leave that can sealed. ing injuries, and passenger Jimmy Mack For one thing, the seat belt defense would GENEVIEVE M. ZIMMERMAN was killed. become an expensive proposition for ev- (Meshbesher & Spence) is the Walmart’s response? Morgan and the erybody involved, because it hinges on president of the Minnesota others were at fault for their own injuries complicated issues of biomechanics and Association for Justice. because they were not wearing seat belts. medicine. Whenever such a defense is [email protected] This is truly an absurd argument and no raised, a defendant and insurance compa- sound policy is served by allowing it. De- ny would need to hire scientific experts to PATRICK STONEKING (Jeff spite the ridiculous defense of the claim, support their affirmative defense that the Anderson and Associates) is the Morgan settled with Walmart, but others lack of seat belt use was to blame for all or legislative chair of the Minnesota have not been so lucky. part of the injury. Perversely, this battle of Association for Justice. The state of Florida allows seat belt experts would be more significant in small- [email protected] evidence without limitation. In 2015, er cases because the insurance company Ryland Nye was rear-ended by a drunk could always defend the case by arguing JOEL D. CARLSON (Joel Carlson off-duty police officer, who fled the scene (regardless of merit) that its driver may Legal Research) is the chief after the crash.3 Nye was ejected from his have caused the crash but that the injured lobbyist for the Minnesota car and killed. The officer could not at- person would have been perfectly fine if Association for Justice. tend the Nye estate’s civil trial because he he or she had been wearing a seat belt. [email protected]

16 Bench&Bar of Minnesota s March 2021 www.mnbar.org TODD A game-changer from the 8th Circuit

By Sam Calvert

n early February the 8th Circuit Strope-Robinson argued that “[t]he Court, State Farm’s counsel quite reason- Court of Appeals issued an opinion Transfer on Death is not an immediate ably countered that the advice he would that should horrify anyone who has transfer under applicable law such as a give to a client considering executing a prepared a transfer-on-death deed Quit Claim Deed and/or Warranty Deed TODD would be to contact his or her (TODD) for a client. or other forms of immediate transfer. The insurance provider and try to add their IBriefly, the facts in Strope-Robinson Transfer on Death is only effective upon intended grantee as an additional in- v. State Farm Fire & Cas. Co.1 are these. death, it can be revoked at will like a Will, sured to their current policy or to advise David Strope owned a the future grantee to obtain house. He was dying. He their own personal cover- signed and recorded a age independently. With transfer-on-death deed to such options available to his house on August 11, individuals planning to use 2017. The transfer-on- such an instrument, it does death deed provided that not follow that Minnesota’s upon his death that the TODD statute is inherently house would go to his niece, flawed or that the result in Dawn Strope-Robinson. this case runs afoul of the He died three days later. A legislative intent behind it.” few days after David Strope Unfortunately, the died, his ex-wife allegedly course of action suggested burned down the house. by State Farm counsel may Dawn Strope-Robinson not work, at least with was appointed as special respect to some insurance administrator of David carriers. My independent Strope’s estate and made a agent tells me that neither claim against State Farm for Western National nor any of the value of the house. State the many other companies Farm turned her down and they represent would add refused to pay for the house. such a grantee-beneficiary (They did pay the estate for to an in-force policy. The the personal property loss.) grantee-beneficiary would She then sued State Farm have to get their own policy naming herself as special as soon as the grantor- administrator of David owner dies. Next I phoned Strope’s estate and herself, a State Farm agency and individually, as plaintiffs; the case was re- it can be nullified if the owner alienates was told that State Farm would add the moved to federal court. the property transferred under the TODD grantee-beneficiary as “as additional State Farm’s legal argument was that just like a Will, and it can convey prop- insured” but not as a “named insured.” ownership of the house passed to Dawn erty to a different beneficiary at will…. In But the real concern is that following this Strope-Robinson at the instant that Da- fact, all property vests in the legatee(s), decision, many people who have executed vid Strope died, and therefore the estate heir(s), beneficiar(ies) and devisee(s), and recorded a transfer-on-death deed did not have an insurable interest in the etc., immediately upon death—no differ- now face a risk of which they are not even house. And because Dawn Strope-Robin- ent than the way a TODD works.” aware. s son, the niece, was not a named insured The argument was obviously under the policy, she also did not have an unavailing. This is a scary case to 1 8th Circuit Court of Appeals Case insurable interest in the house. contemplate. Who knows how many No. 20-1147 (2/5/2021). Citing Closuit v. Mitby,2 the court transfer on death deeds have been issued 2 56 N.W.2d 428, 431 (Minn. 1953). wrote that “in the absence of assignment over the years with no thought at all or express stipulation of the parties...[,] about adding the grantee beneficiary to policies of insurance do not attach to or the insurance policy? SAM CALVERT is an attorney run with the property insured... [and] The U.S. district court thought it had in St. Cloud, Minnesota, who [i]n case of a conveyance or assignment an answer, because in his summary judg- is trying to stay inside and of the property, they do not go with it as ment decision, Judge Donovan Frank stay warm. an incident thereto....” said: “However, when questioned by the [email protected] 18 Bench&Bar of Minnesota s March 2021 www.mnbar.org DEMOCRACY GOES TO COURT

Litigating voting rights and election administration in Minnesota in 2020

By George W. Soule & Anna Veit-Carter

he 2020 elections were hard- which candidates are to be placed on the undue burden on the right to vote as well fought, high-stakes affairs presidential nomination primary ballot as the right to political association in vio- that drew intense scrutiny. for that party.” The Republican Party of lation of the First and Fourteenth Amend- The covid-19 pandemic Minnesota submitted only one name for ments to the United States Constitution.” greatly influenced campaign the March 3 Republican ballot: Donald Pavek v. Simon, No. 19-cv-3000 (SRN/ Tmethods, voting, and election adminis- Trump. (Minnesota’s DFL Party designat- DTS), 2020 U.S. Dist. LEXIS 103989 (D. tration, and the government’s response ed 15 candidates for its primary ballot.) Minn. 6/15/2020). On plaintiffs’ motion to the pandemic created major political The Republicans also elected to place a for preliminary injunction, U.S. District issues. It is no surprise that in this elec- write-in option on their ballot, as autho- Judge Susan Richard Nelson found that a toral tinder box, parties resorted to courts rized by the statute. Roque De La Fuente, “primacy effect” that advantaged the first to press their concerns over voting and who claimed he was a Republican candi- candidate listed on a ballot burdened the election issues. While the candidates’ po- date for president, petitioned the Min- plaintiffs’ constitutional rights and that sitions and personalities dominated cam- nesota Supreme Court to get his name interests asserted by the state in support paign news, reports of election litigation on the ballot, arguing that excluding him of the statute—“(1) encouraging political made plenty of headlines as well. Parties per the statute violated the Minnesota diversity; (2) countering the ‘incumbent’ litigated voting and election procedures Constitution’s special-privileges clause, effect; and (3) discouraging sustained heavily in the presidential swing states, the U.S. Constitution’s presidential eligi- single-party rule”—were not legitimate. but most states experienced significant bility clause, and the First Amendment’s The court granted a preliminary injunc- election litigation. right to freedom of association. In De La tion “barring enforcement of the statute, Minnesota was no exception. Min- Fuente v. Simon, 940 N.W.2d 477 (Minn. and [requiring] the implementation of a nesota political parties, voter organiza- 2020), the Supreme Court found that the nondiscriminatory ballot ordering system tions, voters, and election officials fought statute’s burden on De La Fuente’s asso- under which the State does not discrimi- in court over many aspects of voting and ciational rights were “de minimis” and the nate on the basis of party affiliation,” a elections. The lawsuits continued after political parties’ associational interests procedure in which parties’ positions on the election, contesting the results of sev- were “legitimate,” and concluded that a ballot are assigned by lot. eral Minnesota races. This article will re- the Secretary of State’s acceptance of the The Secretary of State did not appeal view the key Minnesota legal battles over Republican Party candidate list (of one) the preliminary injunction but intervenor voting and elections in 2020. did not violate constitutional provisions. Republican Committees appealed and re- quested a stay of the injunction pending BALLOT ACCESS AND ORDER Ballot order of candidates appeal. In Pavek v. Simon, 967 F.3d 905 The second ballot case focused on (8th Cir. 2020), the 8th Circuit granted Presidential primary ballot access the order of the major party candidates the motion to stay. The court noted that The first ballot case arose from Min- on general election ballots. Minn. Stat. the statute “does not in any way restrict nesota’s 2020 presidential primary elec- §204D.13, subd. 2, requires that such voting or ballot access,” but did promote tion—the state’s first since 1992. The candidates be listed on the ballot in re- political diversity and counter the “in- results of the primary (rather than the verse order of the parties’ average number cumbent effect” and predominant party state’s caucus and convention system) of votes received in the last general elec- rule. The court found no constitutional would bind the Republican and DFL’s tion. Democratic Committees and voters violation; rather, the statute “articulates election of delegates to their national sued to strike down the statute, contend- one of the few ways Minnesota can orga- conventions. Minn. Stat. §207A.13, ing that the law disadvantages their can- nize its ballots without either favoring pre- which was signed into law in 2016, pro- didates—who would appear last on 2020 dominant parties or abandoning the task vides that “[e]ach party must determine general election ballots—and “places an of ballot-organizing to random choice.” www.mnbar.org March 2021 s Bench&Bar of Minnesota 19 VOTING RIGHTS FOR PERSONS Ultimately, however, this is an issue to be ness their absentee ballot, and thereby be CONVICTED OF FELONIES addressed by the legislature.” Plaintiffs disenfranchised. The complaint asked the appealed the court’s order. court to enjoin enforcement of the wit- In October 2019, a group of plain- ness requirement (Minn. Stat. §203B.07, tiffs sued Minnesota’s Secretary of State CHALLENGES TO ABSENTEE subd. 3) on the ground that it would bur- to challenge Minnesota’s restrictions on (OR MAIL) BALLOT REQUIREMENTS den the right to vote in violation of the voting rights for persons convicted of fel- Minnesota and United States Constitu- onies. Schroeder v. Minn. Secy. of State, In a year in which the pandemic tions. On June 16, the parties joined in No. 62-CV-19-7440, 2020 Minn. Dist. placed in-person voters at risk, many a consent decree, which was promptly LEXIS 269 (Ramsey Cnty. 8/11/2020). voter advocates went to courts nation- approved by the court, in which the sec- Pursuant to Article VII, §1 of the Minne- wide to expand voting opportunities, es- retary agreed not to enforce the witness sota Constitution, persons who have been pecially for absentee (including mail) bal- requirement in the August 11 primary convicted of felonies are not “entitled or lots. Minnesota organizations challenged election. LaRose v. Simon, No. 62-CV- permitted to vote at any election in this enforcement in the 2020 elections of sev- 20-3149 (Ramsey Cnty.). The parties en- state… unless restored to civil rights.” eral statutory provisions: those requiring tered a second consent decree on July 17, Minn. Stat. §609.165 restores civil rights that a registered voter or notary public providing the same relief in the general and the right to vote to persons convicted verify that the absentee voter marked the election. of felonies when their conviction is dis- ballot in the witness’s presence (witness The Republican Party of Minnesota charged “(1) by order of the court follow- requirement); mandating that election moved to intervene to oppose the consent ing stay of sentence or stay of execution decree. The party argued that Minnesota of sentence; or (2) upon expiration of the had “implemented a host of safeguards sentence.” to protect voters who vote in-person or The plaintiffs in Schroeder had been The court stated it was by absentee ballot during the COVID-19 convicted of felonies, served their term pandemic” and plaintiffs had not dem- of incarceration, and were on probation, “aware of, and troubled onstrated that suspending the witness parole, or supervised release; therefore requirement for all voters was needed. their sentences had not expired. They by, the fact that the The party also argued that Minnesota’s argued that Section 609.165 violated the “legitimate interests in deterring fraud, in equal protection and due process clauses criminal justice system maintaining public confidence in the in- of the Minnesota Constitution because tegrity of its elections, and in ensuring the their voting rights should be restored disproportionately impacts orderly administration of its elections” “when they return to live in their com- Black Americans and supported the statutory witness require- munities… rather than at the end of their ment, and thus its enforcement did not felony sentence.” other communities of violate constitutional rights. While noting that “[i]n Minnesota The parties in a similar case assigned voting is a fundamental right,” Ramsey color in Minnesota, and to Judge Grewing also entered a consent County Judge Laura Nelson found that decree enjoining enforcement of the wit- this “right is explicitly limited by the the subsequent effect ness requirement. Nat’l Assoc. for the text of the Minnesota Constitution” and Advancement of Colored People Minne- therefore “a person who has been con- this impact has on those sota-Dakotas Area State Conference v. victed of a felony does not have a funda- Minnesota Sec’y of State, 62-C-20-3625, mental right to vote in Minnesota until communities’ ability to vote. order dated 8/3/2020 (Ramsey Cnty.). restored to civil rights.” The court thus While the Ramsey County cases were applied a rational basis review to plain- Ultimately, however, this is pending, parties also litigated the witness tiffs’ constitutional claims, and concluded requirement in federal court. League of that the Minnesota Legislature “demon- an issue to be addressed Women Voters of Minnesota Education strated a clearly legitimate policy goal” Fund v. Simon, Case 0:20-cv-01205 (ECT- for Section 609.165: “to promote the by the legislature.” TNL) (D. Minn.). The League alleged rehabilitation of the defendant and his that enforcement of the witness require- return to his community as an effective ment during the pandemic would unduly participating citizen by automatically re- officials receive absentee ballots by Elec- burden the right to vote in violation of storing civil rights to persons convicted of tion Day to be counted (ballot receipt the First and Fourteenth Amendments felonies after their sentence has ended.” deadline); prohibiting an individual from to the U. S. Constitution. As in LaRose, Judge Nelson found that Section 609.165 assisting more than three voters in either the secretary joined in a consent decree was a rational means to achieve this goal, marking or returning their ballots; and not to enforce the witness requirement and therefore did not violate equal pro- providing that absentee ballots be mailed in the August primary election. State and tection or due process. The court granted only to voters who had requested them. national Republican organizations and the defendant’s summary judgment mo- the Trump campaign intervened and op- tion and dismissed plaintiffs’ claims. Witness requirement posed the consent decree. In a fairness In its conclusion, the court stated it On May 13, the Minnesota Alliance hearing on June 23, Judge Eric Tostrud was “aware of, and troubled by, the fact for Retired Americans Educational Fund considered whether the “proposed decree that the criminal justice system dispropor- and others sued Secretary of State Steve is fair, reasonable, and faithful to the ob- tionately impacts Black Americans and Simon in Ramsey County District Court. jectives of the governing law.” He ruled other communities of color in Minnesota, Plaintiffs alleged that many voters may from the bench, declining to enforce the and the subsequent effect this impact has be deterred by the pandemic from voting consent decree because it “goes well be- on those communities’ ability to vote. in person or safely finding a voter to wit- yond remedying the harm Plaintiffs allege

20 Bench&Bar of Minnesota s March 2021 www.mnbar.org to suffer in support of their as-applied challenge….” “The harms established by Plaintiffs here are risk of exposure to COVID-19 owing to health conditions and personal circumstances that give one a reasonable fear that complying with the witness requirement will risk one’s health and safety. That’s not everyone…. Plaintiffs have not with their as-applied challenge shown a justification for the Secretary’s blanket refusal to enforce the witness requirement.” On July 31, Judge Sara Grewing heard the Republican Party’s motion to inter- vene and the request to grant, and oppo- sition to, the consent decree in LaRose. On August 3, Judge Grewing—in a 25- page order—granted the motion to inter- vene, found the consent decree “fair and appropriate,” and entered the decree. In her order, Judge Grewing acknowledged Judge Tostrud’s order and stated she was “deeply concerned about two courts in Minnesota reaching opposite conclu- sions, especially on something so essen- demic and mail delivery may be delayed, could extend the period for receipt and tial to a functioning government as the resulting in disenfranchisement of voters counting of mail ballots. Plaintiff also right to vote.” Judge Grewing concluded whose ballots were not received by Elec- claimed that the extension for mail bal- that “this Court is not bound by the same tion Day. In the parties’ initial consent lots changed the date of the election in overbreadth reasoning that drew the fed- decree, the secretary agreed to accept and violation of U.S. Constitution, Article II, eral court to the opposite conclusion” be- count mail ballots received within two §1, cl. 4, and 3 U.S.C. §1 (“The electors cause the state case “relies both on claims days of the primary election. In their sub- of President and Vice President shall be raised under the Minnesota Constitution sequent general election consent decree, appointed, in each State, on the Tuesday and the U.S. Constitution” and the court the secretary agreed that election offi- next after the first Monday in November, was bound by Erlandson v. Kiffmeyer, 659 cials would count absentee ballots if they in every fourth year succeeding every N.W.2d 724 (Minn. 2003), in which the were postmarked on or before Election election of a President and Vice Presi- Minnesota Supreme Court broadly con- Day and received by 8 p.m. on Novem- dent.”). On October 16, Judge Nancy strued the right to absentee ballots. Judge ber 10, seven days after Election Day. As Brasel denied plaintiffs’ motion for pre- Grewing also entered the consent decree explained above, Judge Grewing granted liminary injunction, finding that plaintiffs in the NAACP case. the consent decree regarding the general lacked standing. Carson v. Simon, No. The Republican Party appealed the election over Republican Party objec- 20-CV-2030 (NEB/TNL), 2020 U.S. Dist. LaRose and NAACP injunctions, but on tions. The Republican Party appealed but LEXIS 191445 (D. Minn. 10/16/2020). August 18 agreed to dismiss its appeal and dismissed its appeal. Plaintiffs appealed to the 8th Circuit “waive the right to challenge in any other Republicans mounted two later chal- Court of Appeals. In a 2-1 decision issued judicial forum the August 3, 2020 Orders lenges to the one-week extension of the on October 29, the 8th Circuit panel re- and the August 3, 2020 Stipulations and ballot receipt deadline for mail ballots. versed the district court’s order. Carson Partial Consent Decrees ….” Thus, Judge On September 22, two Republican elec- v. Simon, 978 F.3d 1051 (8th Cir. 2020). Grewing’s order remained standing and tors brought suit against the Secretary The 8th Circuit majority found that “the Minnesota’s election officials did not en- of State in federal court, seeking an in- Electors have standing as candidates” force the witness requirement in the 2020 junction forbidding the counting of bal- and concluded that “the Secretary’s ac- elections. lots “received in violation of Minnesota tions in altering the deadline for mail-in law.” The complaint alleged that the ballots likely violates the Electors Clause Ballot receipt deadline “Consent Decree is nothing but a con- ….” “[O]nly the Minnesota Legislature, Minnesota statutes require that ab- tract between the Secretary of State and and not the Secretary, has plenary au- sentee ballots may be counted only if certain voters prohibiting the Secretary thority to establish the manner of con- received by Election Day—by 3:00 p.m. of State from enforcing Minnesota law.” ducting the presidential election in Min- if delivered in person, or by 8:00 p.m. if Plaintiffs claimed that the consent de- nesota. Simply put, the Secretary has no delivered by mail or a package delivery cree’s one-week extension for receipt of power to override the Minnesota Legisla- service. Minn. Stat. §203B.08, subd. 3, mail ballots violated the U. S. Constitu- ture.” The court also noted that “[t]here and §204B.45, subd. 2. The ballot receipt tion’s electors clause, Article II, §1, cl. 2 is no pandemic exception to the Consti- deadline was heavily litigated in Minneso- (“Each State shall appoint, in such Man- tution.” The court ordered the secretary ta, as were similar provisions nationwide. ner as the Legislature thereof may direct, to segregate the ballots received after the Plaintiffs in LaRose, supra, challenged en- a Number of Electors, equal to the whole statutory deadlines to allow such votes forcement of the Election Day deadline Number of Senators and Representatives for presidential electors “to be removed for receipt of mailed absentee ballots. to which the State may be entitled in the from vote totals in the event a final order Plaintiffs alleged that many more voters Congress.”) and that only the Legislature, is entered… determining such votes to be may use mail ballots because of the pan- not the Secretary of State or state court, invalid or unlawfully counted.” www.mnbar.org March 2021 s Bench&Bar of Minnesota 21 While awaiting the results of the Car- sistance and three-voter limit were pre- with a few exceptions. 52 U.S.C. §10508 son appeal, the Trump campaign filed a empted by the Voting Rights Act, and (emphasis added). The Court concluded petition in the Minnesota Supreme Court Judge Thomas Gilligan entered the con- “that Minnesota’s three-voter limit on under Minn. Stat. §204B.44, seeking an sent decree on April 21, 2020. Thao v. marking assistance can be read to stand as order requiring the Secretary of State to Minn. Sec’y of State, No. 62-CV-20-1044 an obstacle to the objectives and purpose segregate mail ballots received after the (Ramsey Cnty.). of section 208 because it could disqualify statutory deadlines. Donald J. Trump On January 17, 2020, Democratic a person from voting if the assistant of for President, Inc. v. Simon, A20-1362 Committees filed a separate lawsuit choice is, by reason of other completed (Minn. 11/3/2020). On November 2, challenging Minnesota’s restrictions on assistance, no longer eligible to serve as after the Carson opinion was issued, the the number of voters an individual may the voter’s ‘choice.’” Trump campaign withdrew its petition. assist in marking and delivering their The Supreme Court found no such After the 8th Circuit opinion was absentee ballots. The Democratic Com- conflict between Minnesota’s limit on filed, the Secretary of State mounted a mittees moved to enjoin enforcement of the number of voters whose ballots an campaign to inform Minnesota voters to these statutes, arguing that they “directly individual may return and federal law. return their ballots so that they would contradict federal law, unduly burden the Minnesota’s limit was not “an obstacle to be received on or before Election Day. fundamental right to vote, and infringe accomplishing” the purposes of Section According to the Secretary of State, 1.9 on the core political speech and associa- 208 because Minn. Stat. §203B.08 was million Minnesota voters cast absentee tional rights of organizations and citizens not limited to “voters with disabilities or ballots. Only 2,500 ballots arrived after that work to increase voter turnout.” language impairments” like Section 208, the Election Day deadline. Those late- Judge Thomas Gilligan granted the Dem- and the Minnesota statute provided mul- arriving votes were included in the count ocratic Committees’ request for a tempo- tiple options for returning an absentee for presidential electors (the Carson opin- rary injunction against enforcement of ballot. The Supreme Court also rejected ion only applied to the presidential race) the three-voter assistance and delivery the Democratic Committees’ arguments but were also segregated. There were no that the delivery restriction unduly bur- further court orders on the subject, so the dened their First Amendment free speech votes received after Election Day remain According to the and associational rights. The Court found in the final counts. The Carson case was that the burden placed on the commit- dismissed by stipulation on December 9. Secretary of State, tees by the “three-voter limit on collect- ing and delivering marked ballots is not Assistance to absentee voters 1.9 million Minnesota severe.” The Court also acknowledged Minn. Stat. §204C.15, subd. 1, pro- the “State’s important regulatory inter- vides that “[a] voter who claims a need voters cast absentee ests” such as preventing “one person or for assistance because of inability to read a group of people from tampering with or English or physical inability to mark a ballots. Only 2,500 ballots mis-delivering a large number of ballots.” ballot” may “obtain the assistance of any individual the voter chooses.” The stat- arrived after the Election Mail ballots for all ute provides that “a candidate for elec- In addition to seeking suspension of tion” may not provide such assistance, Day deadline. Those the witness requirement for absentee and that an individual who provides ballots, plaintiffs in the NAACP lawsuit, assistance cannot “mark the ballots of late-arriving votes were supra, sought an order to require Minne- more than three voters at one election.” sota’s election officials to mail absentee Under Minn. Stat. §203B.08, subd. 1, an included in the count for ballots to all registered voters regardless individual voting by absentee ballot “may of whether they had requested them. On designate an agent” to deliver or mail the presidential electors ... August 3, Judge Grewing approved the sealed absentee ballot envelope to elec- consent decree enjoining the witness re- tion officials, but an individual cannot but were also segregated. quirement but denied plaintiffs’ motion deliver or mail completed ballots of “more for a preliminary injunction to require than three voters in any election.” that absentee ballots be mailed to all vot- St. Paul City Council member Dai restrictions, DSCC & DCCC v. Simon, ers. The court concluded that “it is dif- Thao and others challenged Minn. Stat. No. 62-Cv-20-585, 2020 Minn. Dist. ficult to imagine the application process §204C.15’s restrictions on assisting voters LEXIS 2020 (Ramsey Cnty. 7/28/2020), [for an absentee ballot] being any easier in marking their ballots, contending that and the Minnesota Supreme Court than as currently provided for in state federal law preempted the restrictions. granted accelerated review. The Supreme law” and “the very modest restriction im- (Ramsey County had criminally charged Court affirmed the injunction against en- posed by the absentee ballot application Thao under Minn. Stat. §204C.15 for forcement of the voter-assistance limit does not rise to the level of an undue re- unlawfully marking a voter’s ballot in the and reversed the injunction against the striction on a constitutional right.” The 2017 mayoral election. State v. Thao, No. ballot-collection limit. In re DSCC, 950 court acknowledged that some voters may 62-CR-18-927 (Ramsey Cnty.). District N.W.2d 280 (Minn. 2020). “want to go to the polls to vote in person” Judge Nicole Starr found that Section The Supreme Court agreed with the and found that requiring that ballots be 208 of the Voting Rights Act, 52 U.S.C. district court that Section 208 of the Vot- mailed to such voters may create chaos §10508, preempted Section 204C.15’s ing Rights Act conflicted with and pre- and unnecessary expense. Later, the Sec- prohibition against a candidate assisting empted the three-voter assistance limit. retary of State reached a settlement with a voter and found Council member Thao Under Section 208 a voter “who requires plaintiffs in which the secretary agreed to not guilty.) In the civil case, plaintiffs and assistance to vote” due to a disability or mail an application for absentee ballot in the Secretary of State entered a consent “inability to read or write may be given the general election to all registered vot- decree, agreeing that the candidate as- assistance by a person of the voter’s choice” ers who had not already requested one.

22 Bench&Bar of Minnesota s March 2021 www.mnbar.org COUNTING ABSENTEE BALLOTS In re Minn. Voters Alliance, Nos. 62- every even-number year (2 U.S.C. §7). CV-20-4124, 27-CV-20-9085, 69DU- Craig v. Simon, No. 20-cv-2066 (WMW/ In July 2020, the Minnesota Voters CV-20-1252, 55-CV-20-4446, 2020 TNL), 2020 U.S. Dist. LEXIS 187996 (D. Alliance, Republican Party of Minnesota, Minn. Dist. LEXIS 282 (Ramsey Cnty. Minn. 10/9/2020). Judge Wright rejected and others filed petitions for writs of man- 9/24/2020). The plaintiffs have appealed the secretary and Kistner’s argument that damus against the City of Duluth, City the order. the election was to “fill a vacancy,” for of Minneapolis, Olmsted County, and which a different federal statute (2 U.S.C. Ramsey County, contending that Minn. ELECTION DAY FOR SECOND §8(a)) permitted an election at a time Stat. §203B.121 required them to appoint CONGRESSIONAL DISTRICT set by state law. Judge Wright also found only partisan-balanced election judges that potential harms to voters who might and not city or county employees (who Adam Weeks, Legal Marijuana Now have to vote twice during a pandemic, to were not partisan election judges) to ab- Party’s (LMNP) congressional candidate Second District residents who would be sentee ballot boards. Such boards are re- in Minnesota’s Second District, died on unrepresented in Congress for more than sponsible for taking possession of absen- September 21, 2020—43 days before the one month, and to Rep. Craig, who had tee ballot return envelopes and accepting election. Because LMNP is a “major po- “expended resources and structured her or rejecting the envelopes according to litical party” under Minnesota law, his campaign” in reliance on the November 3 statutory standards. The respondents death triggered the Minnesota Nominee election date, favored an injunction. stated that they had appointed, or would Vacancy Statute, Minn. Stat. §204B.13. Kistner appealed the injunction to the appoint, partisan election judges to the Under the statute, if a candidate of a ma- 8th Circuit Court of Appeals and request- boards, but contended that the statute jor political party dies less than 79 days ed a stay. The 8th Circuit concluded that authorized them also to appoint city or before the general election, the election federal law permitted a state to cancel an county employees (who had not disclosed is postponed until the following February. election only based on “exigent circum- partisan affiliation) to the boards. After Mr. Weeks’s death, the Secretary of stances” not present in this case. The The Minnesota Supreme Court con- State issued a statement that the Second court relied principally on the fact that, solidated the actions and assigned them District Congressional race would still ap- even though the LMNP met Minnesota’s to Judge Thomas Gilligan in Ramsey pear on the November 3 ballot, but the standard for a major political party, the County. Minn. Stat. §203B.121 provides: votes in that race would not be counted. party was not a major player in Minne- “The [absentee ballot] board must con- Second District Representative An- sota elections. “Even if the death of a sist of a sufficient number of election gie Craig sued the secretary, seeking an Republican or Democratic-Farmer-Labor judges trained in the handling of absentee injunction against enforcement of the candidate could qualify as an exigent cir- ballots and appointed as provided in sec- Minnesota vacancy statute that would cumstance that would allow the State to tions 204B.19 to 204B.22. The board may establish a special election for the seat on cancel an election and trigger a vacancy include deputy county auditors or deputy February 9. Republican candidate Tyler in office, we think it unlikely that the ra- city clerks who have received training in Kistner moved to intervene in the case tionale would extend to the death of a the processing and counting of absen- and opposed the injunction. Represen- third-party candidate from a party with tee ballots.” Judge Gilligan denied peti- tative Craig claimed, and U.S. District the modest electoral strength exhibited tioners’ requests for writs of mandamus, Judge Wilhelmina Wright concluded, to date by the Legal Marijuana Now Par- concluding that cities and counties may that the vacancy statute was preempted ty in Minnesota.” The 8th Circuit denied appoint their trained employees to absen- by federal law, which requires elections the request for a stay, Craig v. Simon, 978 tee ballot boards and that both partisan for members of the United States Rep- F.3d 1043 (8th Cir. 2020), and affirmed election judges and the city or county resentatives to be held on the Tuesday the district court’s order, Craig v. Simon, employees may review absentee ballots. after the first Monday in November in 980 F.3d 614 (8th Cir. 2020). www.mnbar.org March 2021 s Bench&Bar of Minnesota 23 ACTIVITIES AT POLLS scribed in each State by the Legislature into an “Assurance of Discontinuance” thereof…” Art. I, §4, cl. 1) because it was with Atlas, in which Atlas agreed not to Mask mandate not adopted by the Legislature and vio- provide any protective services or intimi- On July 22, 2020, Gov. Tim Walz is- lated the First Amendment because the date voters during the upcoming general sued Executive Order 20-81, requiring mandate “does not permit them to enter election. U.S. District Judge Nancy Bra- Minnesotans to “wear a face covering in indoor public spaces without face cover- sel found that the assurance did not ren- indoor businesses and indoor public set- ings as a way to protest the requirement der plaintiffs’ request moot because the tings” to prevent the spread of covid-19. that they wear face coverings when they agreement applied only to Atlas (not its Minnesota Voters Alliance and other ac- enter indoor public spaces.” Judge Schiltz chairman) and “lack[ed] complete over- tivists sued the governor and other gov- found that the mask mandate did not reg- lap with the requested relief.” The court ernment officials to prohibit enforcement ulate the “manner of holding elections” then granted a preliminary injunction of the executive order. Minn. Voters Alli- and that the mandate “did not implicate to protect plaintiffs’ interests under the ance v. Walz, Case No. 20-CV-1688 (PJS/ the First Amendment at all or, at most, Voting Rights Act, enjoining defendants ECW), 2020 U.S. Dist. LEXIS 183108 has an incidental and trivial impact on from “deploying armed agents within (D. Minn. 10/2/2020). “Plaintiffs… First Amendment freedoms.” In January, 2,500 feet of Minnesota polling places,” framed [their] action as primarily relating Judge Schiltz dismissed plaintiffs’ claims. threatening to deploy armed agents, or to the impact of Executive Order 20-81 Minn. Voters Alliance v. Walz, 2021 U.S. “otherwise intimidating, threatening, or on their right to vote.” Plaintiffs’ princi- Dist. LEXIS 4770 (D. Minn. 1/11/2021). coercing voters in connection with vot- pal argument was that the mask require- ing activities in Minnesota.” ment directly conflicted with Minn. Stat. Voter intimidation §609.735, which prohibits an individual On October 6, 2020, Atlas Aegis, a POST-ELECTION CHALLENGES from concealing her identity “in a public private security company, posted a job place by means of a robe, mask, or other listing “for former special forces person- Supreme Court petition disguise.” Plaintiffs argued that the con- nel to ‘protect election polls, local busi- On November 24, three weeks after flict prevented them from entering “an nesses and residences from looting and the election, and hours before the State indoor public place—such as a polling destruction’ in Minnesota.” Council on Canvassing Board was to meet to cer- place, or a meeting hall, or even a gro- Am.-Islamic Relations-Minn. v. Atlas tify Minnesota’s election results, certain cery store—without committing a crime.” Aegis, LLC, No. 20-CV-2195 (NEB/ Republican candidates, legislators, and U.S. District Judge Patrick Schiltz denied BRT), 2020 U.S. Dist. LEXIS 201288 voters filed a Petition to Correct Errors plaintiffs’ motion to enjoin enforcement (D. Minn. 10/29/2020). The Council on and Omissions Under Minnesota Stat- of the mask mandate, concluding that, American-Islamic Relations of Minne- ute §204B.44 in the Minnesota Supreme based on the statute’s legislative history sota and the League of Women Voters of Court. Kistner v. Simon, No. A20-1486 and language, Section 609.735 “is violat- Minnesota sued Atlas and its chairman, (Minn. 2020). The 56-page petition fo- ed only when someone wears a face cov- Anthony Caudle, in federal court seek- cused on (1) the consent decree that ering for the purpose of concealing his or ing an injunction to prevent Atlas from waived the witness requirement and her identity.” Therefore, wearing a mask placing armed agents at polling places. (2) on alleged irregularities in counties’ pursuant to the executive order would Plaintiffs argued that Atlas’s plan to hire postelection reviews (PER) required by not violate the statute. and deploy armed ex-soldiers to polling Minn. Stat. §206.89 (i.e., a manual count Plaintiffs also argued that the mask sites constituted illegal voter intimidation of ballots in a small number of precincts mandate violated the U.S. Constitution’s under Section 11(b) of the Voting Rights to verify the Election Day vote totals). elections clause (“The Times, Places and Act of 1965, 52 U.S.C. §10307. The petition also referenced newsworthy Manner of holding Elections for Sena- Before plaintiffs’ motion was heard, claims made in post-election challenges tors and Representatives, shall be pre- the Minnesota Attorney General entered in other states: “In the past two weeks,

24 Bench&Bar of Minnesota s March 2021 www.mnbar.org the entire world has been following the grounds of deliberate, serious, and mate- testee Phillips’s more than 50,000-vote news about the alleged tampering with rial violations of the Minnesota Election victory, Contestee McCollum’s more Dominion voting machines. Minnesota Law.” Minn. Stat. §209.02. “When a con- than 133,000-vote victory, and Contest- has many areas that use these machines. test relates to the office of senator or a ee Omar’s more than 153,000-vote vic- There are many examples of similar vote member of the house of representatives tory.” Judge Castro further noted that the count anomalies in Minnesota as well as of the United States, the only question to contestants conceded that their claims issues with systems being down or expe- be decided by the court is which party to were “’not necessarily about particularly riencing unexplained ‘glitches’ during the contest received the highest number who won,’” but were more about the the night allowing for alteration of vote of votes legally cast at the election….” post-election process, which was fatal to counts.” The petition requested that the Minn. Stat. §209.12. their Chapter 209 claims. In the contest Supreme Court enjoin the State Canvass- The contestants’ arguments were simi- over the U.S. Senate race the panel found ing Board from certifying the November lar to those made in the Supreme Court that, while the contestants noted a num- 3 election, issue an injunction to “en- petition in Kistner, supra; they focused on ber of irregularities, they “failed to allege sure that every county has completed a the waiver of the witness requirement for that Senator Smith did not receive the PER in full compliance with MN Stat. absentee ballots and alleged irregularities highest number of votes legally cast be- §206.89,” and order the county canvass- in counties’ post-election reviews. The cause of these claimed irregularities.” ing boards “to complete a full canvass contests also included allegations about [recount] of all the elections.” Petitioners the delivery of a “new 520-pound Domin- CONCLUSION requested that the “statewide recount… ion voting machine” to Dakota County be conducted using Minnesota election after the election, an alleged “ballot har- In 2020, the covid-19 pandemic af- law,” presumably disallowing mail bal- vesting scandal” in the Fifth Congressio- fected many aspects of campaigns and lots received without witness verification. nal District, and delivery of “a stack of elections, and Minnesota political par- Alternatively, petitioners sought “a new ballots… in a large white purse by some ties, voter organizations, voters, and elec- statewide election.” employee of the City of Hastings.” tion officials litigated many voting and The Supreme Court dismissed the peti- In orders issued in Clay County (Judge election issues in the Minnesota courts. tion on December 4. The Court conclud- Timothy Churchwell), in Dakota County In several of the cases, the courts upheld ed that petitioners’ complaints about sus- (Judge Timothy McManus), in Ramsey application of Minnesota statutes. The pension of the witness requirement were County (Judge Leonardo Castro), in St. courts declined to apply other provi- barred by laches. The Court noted that Louis County (Judge Eric Hylden), and sions—notably, the three-voter limit on “suspension of the witness requirement by a three-judge panel for the U.S. Sen- assisting voters in marking ballots and was publicly announced in Minnesota ate contest (as required by Minn. Stat. postponement of an election for U.S rep- well before voting began on September §209.045 for statewide races), the courts resentative when a vacancy in nomina- 18, 2020.” “[P]etitioners had a duty to act dismissed each of the contests. See Hahn tion occurs close to Election Day. well before November 3, 2020, to assert v. Simon, No. 14-CV-20-433 (Clay Some cases highlighted issues for claims that challenged that procedure; as- Cnty. 12/14/2020); Kistner v. Simon, consideration by the Legislature. Other serting these claims 2 months after voting No. 19AV-CV-20-2183 (Dakota Cnty. cases will be seen as a relic of this difficult started, 3 weeks after voting ended, and 12/15/2020); Jensen et al. v. Simon et year. While a pandemic may not plague less than 24 hours before the State Can- al., No. 62-CV-20-5599 (Ramsey Cnty. future elections, the increasing partisan vassing Board met to certify the election 12/18/2020); Bergstrom v. Nilsen, et al., divide may assure that Minnesota courts results is unreasonable. We must also con- No. 69DU-CV-20-2162 (St. Louis Cnty. will be an important and constant sider the impact of petitioners’ requested 1/5/2021); Quist et al. v. Steve Simon & fixture in managing future elections in relief on election officials, candidates, Tina Smith, No. 62-CV-20-5998 (Ramsey Minnesota. s and voters who participated in the 2020 Cnty. 12/29/2020). In contests in which general election knowing that the witness contestants complained about the con- requirement was suspended.” The Court sent decree’s suspension of the witness re- GEORGE W. SOULE is a also dismissed complaints about counties’ quirement for absentee ballots, the courts partner at Soule & Stull LLC post-election reviews because petitioners relied on the Minnesota Supreme Court’s in Minneapolis. He is a civil did not serve the petition “on the election finding that laches barred that claim. The trial lawyer, tribal court official[s] charged with a wrongful act”— courts also found that the contests were judge, and Rule 114 qualified county auditors or other local officials. procedurally deficient, including that the neutral. He has worked on contests were not timely filed and were campaigns and elections District court contests not adequately served on the contestees. for five decades. George is Republican candidates and voters The courts also found that the con- a former chair of the Minnesota Commission on filed election contests in Ramsey, Dakota, testants had not adequately pleaded how Judicial Selection. Clay, and St. Louis Counties under Min- any alleged irregularities in voting or [email protected] nesota Statute §209.12 against successful counting votes, or in conducting post- DFL candidates for United States Sen- election reviews, changed “who received ANNA VEIT-CARTER is an ate, for Second, Third, Fourth, and Fifth the largest number of votes legally cast.” associate at Soule & Stull District Congress, and for 14 Minnesota For example, Judge Castro in Ramsey LLC. Anna has extensive legislative seats. A Chapter 209 contest County concluded that the contests over litigation experience in “may be brought over an irregularity in congressional elections were facially in- state and federal courts in the conduct of an election or canvass of adequate because they alleged errors of multiple states. She served votes, over the question of who received a “relatively small number of ballots, but as a law clerk to Judge the largest number of votes legally cast, do not allege that the identified errors Margaret Chutich at the over the number of votes legally cast in would be enough to reverse Contestee Minnesota Court of Appeals. favor of or against a question, or on the Craig’s almost 10,000-vote victory, Con- [email protected] www.mnbar.org March 2021 s Bench&Bar of Minnesota 25 t’s no surprise that a presidential election as bitterly fought as last November’s should also yield a lot of litigation— and a striking volume of complaints from lawyers regarding the conduct of WHAT other lawyers. Although many lawyers wereI involved in the electoral challenges, the spotlight here is on complaints regarding four WOULD A prominent lawyers. n Thousands of law students and lawyers signed a petition to disbar U.S. Sen. Josh Hawley for his objections to certified pres- DISCIPLINE idential election results.1 Hawley was the first member of the Senate to announce he would object on January 6 to certification OFFICE DO? of electoral college results. n The Lawyers Defending American De- mocracy (LDAD), a large group of promi- nent lawyers, filed a lengthy complaint against Rudolph Giuliani, centering on his allegedly false claims of widespread voter fraud. In addition to serving as President Trump’s lead litigation attorney, Giuliani Examining the also spoke frequently in the media and to high-profile state legislatures. n Courts in several jurisdictions are delib- complaints erating whether to sanction or discipline lawyers who sued to invalidate presiden- against election tial election results. One of these lawyers is Sidney Powell, who represented several attorneys from a groups in electoral challenges and was, for a time, a member of the Trump-Giuliani lawyer regulatory litigation team. perspective n L. Lin Wood is under investigation by the Georgia bar discipline agency for numerous extraordinary and incendiary By William J. Wernz statements regarding John Roberts, Mike Pence, Antonin Scalia, and others, at ral- lies, on social media, and in interviews.2 The agency is also investigating Wood’s conduct both as a lawyer and as a party in several litigation challenges to election results.

How would a discipline agency handle these complaints? Having reviewed complaints against lawyers and judges for 40 years, I offer one lawyer’s expectations.

26 Bench&Bar of Minnesota s March 2021 www.mnbar.org www.mnbar.org March 2021 s Bench&Bar of Minnesota 27 Fairness, consistency, and adherence to constitutional con- lations of an attorney’s oath or of the general norms stated in the straints are the most important hallmarks of a properly run rules’ preamble are not a basis for discipline, although they may discipline agency. They are crucial where the setting is politics be considered along with other general norms in determining verging on warfare. Because it is not fair to reach conclusions the degree of discipline. on discipline issues without hearing the accused lawyers’ side A century after Pfaender and Martin, a discipline agency of the story, the focus here is on how discipline agencies would would also be mindful of discipline and bar admission cases in approach the allegations in the complaints. which proponents sought to exact penalties for political purpos- es. For example, authorities in the American South tried to block Precedents civil rights progress by disciplining attorneys and commencing The precedents for professional discipline of lawyers act- defamation actions.8 In evaluating complaints against election ing in political settings show both the propriety of some disci- lawyers, an agency would consider whether discipline charges plines and the danger of being caught up in popular passions. would unduly stretch constitutional theories and interpretations Thirty years ago, the Minnesota Supreme Court disciplined of discipline rules, and would prove to be short-sighted. U.S. Senator David Durenberger and two of his lawyers for backdating and falsely notarizing documents supporting U.S. Criminal, civil, and discipline procedural relationships Senate reimbursements for rental payments that Durenberger For several reasons, a discipline agency normally awaits the had not yet made.3 outcome of a civil or criminal case against a lawyer before con- Conversely, two cases from a century ago show how disci- sidering disciplinary action: Resources are conserved; the agen- pline systems can be misused. In 1917, the Minnesota State Bar cy may lack the resources to investigate alleged crimes; inconsis- Association commenced disbarment proceedings against Albert tent outcomes are avoided; and it may be unfair to the lawyer to Pfaender, a state senator. Pfaender’s alleged offense was speaking demand candor and cooperation that are not required in crimi- out against United States entry into World War I. Gov. Joseph nal investigations. The Minnesota Office of Lawyers Profes- Burnquist removed Pfaender from his position as New Ulm City sional Responsibility advises would-be complainants, “Examples Attorney, finding “malfeasance in office.” Under great pressure, of complaints that are often dismissed without investigation in- Pfaender apologized and recanted. clude:... most matters pending in court, unless the misconduct is On the same basis, Burnquist removed from office Dodge clear and serious.”9 However, a discipline agency may not await County Probate Judge James Martin. outcomes in other forums where misconduct is flagrant. The Minnesota Supreme Court found Judge Martin’s public Disciplinary allegations must be proved by “clear and con- statements to be “clearly at variance with good citizenship, and vincing evidence.” The normal civil standard of proof is the low- contrary to the obligations every citizen owes to the government er one of “preponderance of the evidence.” Therefore, civil find- of his country.” Nonetheless, the Court wisely based its holding ings, including those supporting sanctions, are not preclusive in on a broader perspective: “But we are clear that scolding the discipline proceedings, but they may be considered.10 Because President of the United States, particularly at long range, con- the “beyond a reasonable doubt” standard of criminal proceed- demning in a strong voice the war policy of the federal authori- ings is higher than its disciplinary counterpart, a criminal con- ties, expressing sympathy with Germany, justifying the sinking of viction is preclusive in a discipline proceeding. the Lusitania, by remarks made by a public officer of the juris- diction and limited authority possessed by the judge of probate Did Hawley commit a criminal act? under the Constitution and laws of this state, do not constitute Rule 8.4(b) forbids a lawyer to “commit a criminal act that malfeasance in the discharge of official duties, and therefore fur- reflects adversely on the lawyer’s honesty, trustworthiness, or nish no legal ground for removal.”4 Today a discipline agency fitness as a lawyer in other respects.” The petition alleges that would likewise separate the issue of whether lawyers’ conduct Hawley “flagrantly” violated ethics rules, including that he was consistent with good citizenship from the issue of whether “potentially” committed “a criminal act.” Combining “fla- lawyers violated disciplinary rules. If rule violations were found, grant” and “potential” reveals a rush to accuse that impairs the issues such as whether the conduct was inimical to democracy or petition’s credibility. the rule of law could be considered in determining the severity A later, more formal complaint against Hawley alleges “po- of discipline. tential” crimes, including inciting a riot. But the complaint’s specification of the elements of the potential crime raises more Constitutional protections questions than it answers. How would Hawley’s December 30 Today we would regard Pfaender’s and Martin’s statements announcement of intent to object to certification of the election as protected by the First Amendment. The highest standard of on January 6 satisfy the First Amendment imminence standard? review protects speech whose content is the basis for penalty. How could Hawley’s auto-scheduled fundraising message—cit- The First Amendment allows robust free speech when advocates ed in the complaint, but disseminated after rioters had already call for public demonstrations against perceived governmental invaded the Capitol—cause the invasion? Would any of the in- misconduct. The leading case requires that to sustain a charge surrectionists testify that Hawley incited them? Is a raised fist of “inciting a riot,” there must be proof of (1) intent to incite; not a ubiquitous gesture with a variety of meanings, riotous and (2) imminence of a riot; and (3) likelihood the statement will otherwise? How and why should Missouri disciplinary counsel incite a riot.5 investigate alleged criminal incitement of a riot in Washington The protection of due process of law applies to lawyer dis- D. C., rather than await the outcome of any criminal investiga- cipline proceedings.6 Due process requires fair notice of the al- tion by U.S. and D.C. authorities? Although the LDAD com- leged basis for discipline. Fair notice includes specific allegations plaint against Giuliani cites his invitation on January 6 for the of violation of one or more Rules of Professional Conduct. A crowd to engage in “trial by combat,” the complainants—per- tribunal may not impose discipline for violation of a rule whose haps recognizing the barriers to investigation and proof—do not violation was not alleged in the operative pleading.7 Alleged vio- allege a Rule 8.4(b) violation.

28 Bench&Bar of Minnesota s March 2021 www.mnbar.org Hawley, Giuliani, Powell: Knowingly false statements? will often focus on the marquee attractions—the allegations that Rule 8.4(c) proscribes “dishonesty, fraud, deceit, or misrep- appear most serious and most readily proved or disproved. resentation.” Rule 8.4(c) applies to conduct in or outside the The Giuliani complaint and many commentaries on election practice of law. Minnesota case law is mixed on whether the litigation have said that fraud and other theories have been “de- “misrepresentation” proscribed by the rule requires intent.11 bunked” by many courts. The devil may or may not be in the The Hawley complaint alleges that Hawley repeatedly and details. Fraud was not alleged in many of the cases. Many cases publicly claimed that Pennsylvania failed to follow its own elec- were dismissed on procedural grounds. A discipline authority tion laws. Citing two cases, the complaint alleges, “Sen. Haw- would carefully match the cases in which fraud allegations were ley directly contradicted the rulings of federal and state courts made and rejected on the merits with the fraud allegations made across the country, particularly in Pennsylvania.” In one case, by the respondent attorneys. the Pennsylvania Supreme Court dismissed, as untimely, a suit Dominion Voting Systems (DVS) and Smartmatic have com- that claimed universal mail-in voting was not permitted un- menced defamation suits against Giuliani, Powell, and others. der Pennsylvania law. The case did not reach the merits of the Smartmatic alleges that Guiliani stated on national television claim of plaintiff and of Hawley. In the other cited case, plain- that Smartmatic was founded by Venezuelans close to Hugo tiffs claimed that Pennsylvania officials improperly “let voters Chavez “in order to fix elections.” DVS alleges that Giuliani per- fix technical defects in their mail-in ballots.” In dismissing this sistently stated publicly that the DVS machines were manipulat- claim, the court said, “This case is not about whether those ed so that many votes for Trump were counted for Biden. DVS claims are true.”12 A discipline agency might ask the complain- also alleges that investigations by William Barr, DOJ, DHS, and ants: “The cases you cite are dismissals on procedural grounds. Georgia election officials all found no evidence supporting Gi- Do you still maintain, ‘Sen. Hawley directly contradicted the uliani’s statements but Giuliani nonetheless persisted. These are rulings of federal and state courts... in Pennsylvania?’ Please cite the kinds of important and specific allegations on which a disci- the relevant section of any court opinion that rejects Hawley’s pline agency might well concentrate. A discipline agency might claims regarding Pennsylvania mail-in voting on the merits.” write to DVS, “Please keep this agency advised of developments Complaints by Michigan Gov. Gretchen Whitmer and others in your litigation, and in particular....” The agency might also against Sidney Powell allege that Powell knowingly offered false ask Giuliani to provide all evidence supporting his accusations evidence from pseudo-experts. Revelations of the identities and Heightened constitutional scrutiny applies to content-based lack of qualifications of the purported experts may well lead dis- prohibitions of speech, including prohibitions on false speech. cipline authorities to inquire of Powell what she knew, when she The prohibition must serve a compelling state interest and there knew it, and why she presented as experts persons who lacked must not be a less restrictive alternative. In invalidating the expertise and who made extravagant statements that were read- Stolen Valor Act, the United States Supreme Court found that ily disproved. counter-speech, rather than the prohibition on falsely claiming The LDAD complaint alleges both that Giuliani repeatedly al- to be a Medal of Honor winner, would serve the Act’s purpose. leged a pattern of criminal voter fraud in several states and made On the other hand, a Minnesota statute penalizing intentionally allegations as to specific instances of fraud. A discipline agency false campaign speech was upheld because it served the interest might well notify Giuliani that it was investigating his claims of of an informed electorate. In upholding the statute, the Minne- fraud, both broadly and narrowly made. The agency might well sota Court of Appeals stressed that it penalized only intentional request Giuliani to state whether he made these allegations, false statements. With these standards in mind, the discipline whether he continues to claim the allegations are true, and what agency would ask: Is counter-speech, rather than discipline, a basis he has for his allegations. The agency might cherry-pick sufficiently effective deterrent to post-election false statements any other allegations that appear susceptible to determinations that allegedly undermine voter confidence in campaign results of truth or falsity without unduly complicated investigation. and the election system? Can the statements be proved to be When a complaint alleges many violations, a discipline agency knowingly false?13

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L E G A L T I M E T R A C K I N G & B I L L I N G S O L U T I O N V I S I T U S @ W W W. T I M E S O LV. C O M www.mnbar.org March 2021 s Bench&Bar of Minnesota 29 Heightened constitutional complete for imposing sanctions or making findings that plead- scrutiny applies to content-based ings lack a basis in fact or law? If not, are there nonetheless some allegations that appear obviously frivolous on their face? prohibitions of speech, including If not, is there an undue burden in investigating claims of fact prohibitions on false speech. The or law? prohibition must serve a compelling L. Lin Wood: Attacks on judges and legal officials, fitness state interest and there must not be Rule 8.2(a), R. Prof. Conduct provides, “A lawyer shall not make a statement that the lawyer knows to be false or with a less restrictive alternative. reckless disregard as to its truth or falsity concerning the quali- fications or integrity of a judge....” Three of the statements by Wood under investigation in Georgia are: (1) “Corruption & deceit have reached the most powerful office in our country – the Chief Justice of U.S. Supreme Court. Roberts is reason that SCOTUS has not acted on election cases. Justice John Rob- erts is corrupt & should resign immediately.” (2) “I have linked Rule 1.0(g) defines “knowledge” as “actual knowledge,” Roberts to illegal adoption, Jeffrey Epstein, pedophilia & prior but adds that knowledge may be inferred from circumstances. knowledge of Scalia’s death.” (3) “Pence is on videos captured A lawyer may not claim a lack of knowledge while turning a by FBI. Discussions about murdering judges. [CJ] Roberts was blind eye to the obvious. In determining whether a lawyer knew involved.” Before initiating a discipline inquiry, Georgia authori- a statement was false, an agency would ascertain whether, when, ties requested that Wood undergo a mental health exam, which and how the truth of the matter was clear. If a fact was clearly he declined. established, and the lawyer continued to assert the contrary, the Minnesota attorneys have been suspended for making false, agency would ask for an explanation. baseless allegations about the integrity of judges. The Court In evaluating Rule 8.4(c) complaints, an agency would con- adopted an objective standard for such allegation, because a sider possible ramifications of imposing discipline for false claims false accusation concerning judicial integrity “adversely reflects of voter fraud. What if a lawyer wrote a letter to the editor that on the accuser’s capacity for sound judgment.”17 Wood’s accu- echoed Giuliani’s claims, even after debunking by Barr et al.? sations have a lesser counterpart in Minnesota. A lawyer who What if a lawyer-legislator signed a group petition with simi- made numerous scurrilous statements, including anti-Catholic lar claims? Would they be subject to discipline? To what degree slurs (“Jesuitess”), about judges and court personnel, was sanc- do the Pfaender and Martin cases teach discipline authorities tioned and later suspended from practice.18 to tread lightly in political matters? On the other hand, if on demand the respondent attorneys cannot produce any cred- Pro hac vice revocations ible evidence supporting their claims of fraud, will a discipline After an attorney has been admitted to practice pro hac vice, proceeding aid in demonstrating important truths to the public, the attorney’s right to appear may not be revoked without a thereby helping to restore faith in the electoral process? hearing and a showing of good cause. However, the standards for pro hac revocation often are not as strict or specific as those Frivolous pleadings? for discipline in the lawyer’s home state and revocation pro- Rule 3.1, R. Prof. Conduct and Rule 11, R. Civ. Proc. both cedures move much more quickly than discipline matters. For proscribe frivolous pleadings. Of one election challenge, a fed- example, in Delaware the revocation standard is whether con- eral judge wrote, “Plaintiffs’ theory... lies somewhere between a tinued admission is “inappropriate or inadvisable.” A Delaware willful misreading of the Constitution and fantasy. It is not a judge revoked Wood’s admission because Wood did not show stretch to find a serious lack of good faith here.... Yet even that an “appropriate level of integrity and competence” in election may be letting Plaintiffs off the hook too lightly.... Courts are not challenges in Georgia (which the judge found to be “textbook instruments through which parties engage in such gamesman- frivolous litigation”) and Wisconsin (which the judge found to ship or symbolic political gestures.”14 Numerous courts harshly show Wood as “mendacious or incompetent”).19 Shortly after criticized pleadings they dismissed, as lacking a basis in fact or the Delaware revocation, lawyers opposing Wood in a New York law. Several orders to show cause and sanctions motions are case moved to have his pro hac admission revoked in New York.20 pending. L. Lin Wood attested that one of his pleadings was Lawyers with a national litigation practice, such as Wood and made “under plenty [sic] of perjury,” but he later fixed the typo. Powell, might well face a series of pro hac revocation motions A Rule 3.1 charge is seldom brought without a prior civil and opposition to future pro hac admissions. finding. And the Supreme Court has cautioned, “We are con- cerned that overzealous application of Rule 3.1 may hinder the Interim suspension development of law by discouraging attorneys from bringing is- In the extraordinary circumstance that a lawyer’s continued sues of first impression or good faith arguments for the exten- authority to practice law during discipline investigation and pro- sion, modification or reversal of existing law....”15 On the other ceedings poses a substantial threat of serious harm to the public, hand, the Court has found Rule 3.1 violations that are not pre- the discipline agency may petition the state Supreme Court for ceded by Rule 11 violations, in part because Rule 3.1 does not an immediate suspension. The LDAD complaint seeks Giuliani’s include Rule 11 procedural defenses, such as dismissing a suit suspension during investigation and proceedings. The complaint within a safe harbor period.16 argues, “The Committee already has ‘uncontroverted evidence In evaluating complaints of frivolous litigation, a discipline of professional misconduct’ because Mr. Giuliani has committed agency would likely ask: Are judicial proceedings pending or his violations in the public eye.” A disciplinary agency would

30 Bench&Bar of Minnesota s March 2021 www.mnbar.org question whether the public nature of Giuliani’s statements ren- Notes ders their truth or falsity, or Giuliani’s state of mind, “uncontro- 1 Petition to Disbar Senators Hawley and Cruz. The Petition is considered verted.” A leading commentator endorsed the interim suspen- here only as it applies to Hawley, not Cruz. LDAD’s website has a copy of sion request, but also said that the discipline process “could take the LDAD complaint. https://lawyersdefendingdemocracy.org/statements/. months, or even years,” due to its complexity. The agency would 2 Wood confirmed the complaint on his Telegram account and has uploaded question how key allegations could be at once “uncontrovert- the inquiry on Dropbox. ed,” “complex,” and challenging to investigate and adjudicate.21 3 In re Durenberger, 464 N.W.2d 498 (Minn. 1991); In re Johnson, 462 In contrast, the statements attributed to L. Lin Wood by the N.W.2d 598 (Minn. 1990); In re Mahoney, 474 N.W.2d 598 (Minn. 1991). Georgia bar, regarding John Roberts and others, are so manifest- 4 Minn. State Bar Ass’n, For The Record: 150 Years of Law & Lawyers In ly false and wild that, if Wood admits (or cannot credibly deny) Minnesota 257 (1999); State ex rel. Martin v. Burnquist, 141 Minn. 308, having made the statements, his immediate suspension might 322, 170 N.W. 201, 203 (1918). well be sought. Remorse and reform seem unlikely, as Wood has 5 Brandenburg v. Ohio, 395 U.S. 444 (1969). called for followers to investigate the Georgia bar. 6 In re Ruffalo, 390 U.S. 544, 551 (1968); In re Rerat, 224 Minn. 124; 28 N.W.2d 168 (1947). Rising to the occasion? 7 In re Charges of Unprofessional Conduct in Panel File No. 42735, 2019 WL What if, after all the limits, cautions, and considerations de- 1051406 (Minn. 2019); Minnesota Legal Ethics Blog, Dec. 2016 http:// scribed above, an agency concludes that a lawyer did persistently my.mnbar.org/blogs/williamwernz/2016/12/14/in-re-olson-and-state-v-whit- and knowingly make false public statements, or take litigation po- cup-a-prosecutors-travails-and-vindication?CommunityKey=06b06e45-74ca- sitions not supportable by fact or law, or was convicted of a crime? 4cf9-ae84-fede75b8e1b5&Tab=. Well, then the agency should vigorously seek severe disci- 8 James E. Moliterno, “Politically Motivated Bar Discipline,” 83 Wash. U. pline. Lawyers take an oath to support the truth and the rule of L.Q. 725 (2005). law and those who instead gravely damage these ideals should 9 http://lprb.mncourts.gov/complaints/LawyerComplaintDocs/Complaint%20 lose their licenses. A common theme in discipline opinions is Brochure%20-%20English.pdf whether an attorney’s conduct impaired the public’s faith in the 10 Rule 19(a), R. Law. Prof. Resp. In re Murrin, 821 N.W.2d 195, 205 (Minn. administration of justice or in the legal profession. One of the 2012). first OLPR directors told me that the chief justice told him to err 11 William J. Wernz, Minnesota Legal Ethics (10th Ed. 2020) at 1408 et seq. on the side of zeal, because the Court could temper excess zeal, 12 Kelly v. Commonwealth, 240 A.3d 1255 (Pa. 2020); Donald J. Trump for but could not act where OLPR did not act first. Distinguishing President, Inc. v. Sec’y of Pennsylvania, 830 Fed. App’x 377, 382 (3d Cir. a time to rise to the occasion from a time to pay heed to limits 2020). of a professional responsibility system calls for zeal, balanced by 13 United States v. Alvarez, 567 U.S. 709 (2012); Linert v. MacDonald, 901 wisdom and prudence. N.W.2d 664 (Minn. Ct. App. 2017). An agency also would consider possible challenges in manag- 14 Wisconsin Voters Alliance et al. v. Pence et al., Civ. File No. 20-3791 (JEB), ing a discipline proceeding. Might the respondent turn the pro- U.S. Dis. Ct. D.C., 1/4/2021. ceeding into political theater, in which every purported expert 15 In re Panel Case No. 15976, 653 N.W.2d 452, 457 (Minn. 2002). and witness to voter fraud was called as a defense witness? Or 16 “[A] decision by a district court to not issue sanctions is of limited import exercise discovery rights by deposing various political figures? Or in a disciplinary action because ‘[c]onsiderations for imposing ethical recruit followers who might disrupt proceedings? sanctions differ from considerations of Rule 11 sanctions.’ In re Panel Case No. 17289, 669 N.W.2d 898, 905 (Minn. 2003).” In re Ulanowski, 800 Conclusion N.W.2d 785 (Minn. 2011). Discipline investigations and proceedings often last years, 17 In re Graham, 453 N.W.2d 313, 322 (Minn. 1990); In re MacDonald, 906 especially when stayed to await the results of criminal or civil N.W.2d 238 (Minn. 2018). proceedings. Many disciplinary agencies decline to confirm pen- 18 In re Nett, 839 N.W.2d 716 (Minn. 2013). To make the slurs even odder, dency of an investigation unless and until public charges are the court personnel apparently were not in fact Catholic. made.22 However, complainants and respondents have a consti- 19 Page v. Oath, Inc., 2021 De. Super. LEXIS 27. tutional right to make public their knowledge of the discipline 20 Josh Gerstein, Move Underway to Oust Wood from Libel Suit, Politico, agency’s actions. 1/25/2021. Will any of the attorneys identified above be disciplined? 21 Rule 16(a), R. Law. Prof. Resp. Daniel Slotnik, “Prominent Lawyers Want I cannot say, but a few general expectations may be hazarded. Giuliani’s Law License Suspended Over Trump Work,” N.Y. Times, Jan. Discipline agencies will be reluctant, without prior court find- 22, 2021 at A18. ings, to investigate allegations of complicated facts in distant 22 Minnesota’s system is more open than most, and when the subject of a places. It would be extraordinary, without a prior criminal con- discipline complaint has already been the subject of publicity, OLPR will viction, for a discipline agency to allege that an attorney com- normally confirm that it is investigating the matter. mitted a crime. Any attorneys who are found in criminal or civil proceedings to have engaged in wrongful conduct will likely face follow-on disciplinary charges. In some cases, a discipline agency might borrow from the First Amendment concept of whether “counter-speech,” rather than discipline, is the best remedy to WILLIAM J. WERNZ was director of the Office of allegedly false speech. If an attorney has engaged in flagrantly Lawyers Professional Responsibility and the Client false accusations or meritless litigation, the attorney well be sub- Security Board, and was chair of the Board on Judicial ject to discipline charges even without prior court sanctions. Standards. Bill was Dorsey & Whitney’s ethics partner Finally, we can make one prediction confidently: The disci- for 20 years. Bill is the author of Minnesota Legal plinary aftermath of the 2020 elections will produce surprises, Ethics, a free online treatise hosted by MSBA. controversy, and publicity. How could it be otherwise? s [email protected] www.mnbar.org March 2021 s Bench&Bar of Minnesota 31 Find the Right Practice Management Fit for Your Firm

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CRIMINAL LAW EMPLOYMENT & LABOR LAW JUDICIAL LAW JUDICIAL LAW n Interference with privacy: Interference n Race discrimination, retaliation; with privacy of a minor does not require no animus, reprisal shown. An 33 knowledge of victim’s age. Appellant employee who claimed he was denied CRIMINAL LAW was convicted of interference with the a promotion due to race discrimination by Samantha Foertsch privacy of a minor after using his cell and retaliation and then wrongfully laid & Stephen Foertsch phone camera to view a 15-year-old off as part of a reduction in force was male in a bathroom stall. Minn. Stat. denied relief by the 8th Circuit Court of 33 §609.746, subd. 1(d), makes it a crime to Appeals. Affirming summary judgment, EMPLOYMENT install or use “any device for observing, a panel of the 8th Circuit that included & LABOR LAW photographing, recording, amplifying, or Judge James Loken of Minnesota held by Marshall H. Tanick broadcasting sounds or events… where a that a supervisor’s statement that the reasonable person would have an expecta- claimant was “big and intimidating” did 34 tion of privacy and has exposed or is likely not constitute direct evidence of racial ENVIRONMENTAL LAW to expose their intimate parts… or the animus and there was no showing of by Jeremy P. Greenhouse, clothing covering the immediate area of a prima facie case that the promotion Jake Beckstrom, Erik Ordahl the intimate parts,” if done “with intent to was the result of race discrimination or & Audrey Meyer intrude upon or interfere with the privacy retaliation. Gipson v. Dassault Falcon of the occupant.” The offense is a felony Jet Corp., Inc., 983 F.3d 377 (8th Cir. 35 if done “against a minor under the age of 12/22/2020). FAMILY LAW 18, knowing or having reason to know that by Michael Boulette the minor is present.” Minn. Stat. §609.746, n Denial of tenure; sex discrimination subd. 1(e)(2) (emphasis added). Appel- rejected. A claim by an associate 36 lant argues the italicized phrase requires professor that she was denied tenure FEDERAL PRACTICE proof of knowledge of the victim’s age. by the university where she worked on by Josh Jacobson The court of appeals focuses on the grounds of sex discrimination failed. statutory definitions of “know” and “crimi- The 8th Circuit, affirming summary 36 nal intent.” “‘Know’ requires only that the judgment, held that the claimant did IMMIGRATION LAW actor believes that the specified fact ex- not establish a reasonable inference of by R. Mark Frey ists,” Minn. Stat. §609.02, subd. 9(2), and discriminatory animus, or that her sex “[c]riminal intent does not require proof contributed to the decision to deny 37 of knowledge of the age of a minor even her tenure. Maras v. Curators of the INTELLECTUAL PROPERTY though age is a material element in the University of Missouri, 983 F.3d 1023 by Joe Dubis crime in question.” Id. at subd. 9(6). Be- (8th Cir. 12/29/2020). cause section 609.746, subd. 1(e)(2), does 38 not explicitly require proof of knowledge n Insurance coverage; school district REAL PROPERTY of age, the only reasonable interpretation denied coverage. A claim by a school by Julie N. Nagorski of that section is that “it establishes age as district for coverage under its legal & Patrick C. Summers a material element but requires knowledge liability policy for a lawsuit brought by only of the victim’s presence, not knowl- a teacher was rejected. The 8th Circuit 38 edge of the victim’s age.” State v. Galvan- held that the single claim provision in TAX LAW Contreras, A20-0366, 2021 WL 161982 the policy unambiguously applied to by Morgan Holcomb (Minn. Ct. App. 1/19/2021). the claim and, therefore, the insurer & Sheena Denny was not required to cover it, nor were SAMANTHA FOERTSCH the doctrines of waiver and estoppel Bruno Law PLLC applicable to compel coverage. Pine [email protected] Bluff School District v. ACE American STEPHEN FOERTSCH Insurance Company, 984 F.3d 583 (8th Bruno Law PLLC Cir. 12/28/2020). [email protected] www.mnbar.org March 2021 s Bench&Bar of Minnesota 33 Notes&Trends | EMPLOYMENT & LABOR LAW | ENVIRONMENTAL LAW n Attorney general investigation; com- intervention claim by a medical provider. CWA was ambiguous regarding GSWDs pliance demand too broad. A demand by The Supreme Court is considering three and that MPCA’s interpretation of that the attorney general to compel compli- issues: (1) whether the WCCA erred in language as not bringing GSWDs within ance with a civil investigation arising out determining that the employee sustained the scope of the CWA—“regardless of of complaints of waste by an employer a compensable injury; (2) the propriety any hydrological connection to surface were overbroad. The Minnesota Court of the WCCA’s determinations regarding waters”—was reasonable. Subsequent to of Appeals held that the Ramsey County the arbitrator’s exclusion of the surgeon’s the court of appeals decision, however, District Court abused its discretion in report; and (3) whether the denial of the on 4/23/2020, the U.S. Supreme Court failing to narrow the scope of the discov- intervention claim of the medical provid- issued an opinion in County of Maui v. ery demands to the particular entities er was proper. In Schalock v. Battle Lake Hawai’i Wildlife Fund, 140 S. Ct. 1462 that the attorney general had reasonable Good Samaritan Center, No. A20-0917, (2020), holding that the GSWDs can be grounds to suspect may have engaged in denial by the carrier of a claim asserted within the scope of the CWA where the the improper behavior. Madison Equi- by a nursing assistant at a health care GSWD is the “functional equivalent” ties, Inc., v. Office off Attorney Gen- facility was overturned by the workers of a direct discharge. This decision, the eral, 2021 WL 79337 (Minn. Ct. App. compensation tribunal on grounds that Minnesota Supreme Court held, required 1/11/2021) (unpublished). the injury was “a substantial contribut- reversal of the court of appeals and ing factor” to ongoing symptoms and remand to MPCA to determine whether n Unemployment compensation; policy disabilities, which the employer is chal- seepage from the Minntac tailings basin violation bars claim. An employee lenging before the Supreme Court on the to groundwater met the new “functional who violated an unwritten policy of not basis that the decision was not supported equivalent” test. giving out the names of contactors to by substantial evidence and sufficient The second issue was whether do flooring work was denied benefits. -Af reasoning. groundwater is subject to MPCA’s Class firming a decision of an unemployment 1 water quality standards in Minn. law judge (ULJ) from the Department MARSHALL H. TANICK R. 7050.0221, which incorporate by of Employment and Economic Develop- Meyer, Njus & Tanick reference EPA’s primary and secondary ment (DEED), the appellate court held [email protected] drinking water standards. Based on its that the employee committed “disquali- position that groundwater is subject fying misconduct” when he recommend- to the Class 1 standards, MPCA ed other contractors for certain customer ENVIRONMENTAL LAW included numerous conditions in the needs, contrary to the company’s policy. permit requiring Minntac to comply Braegelmann v. Hansen Flooring Gal- JUDICIAL LAW with the Class 1 standards for sulfate lery, Inc.., 2021 WL 79528 (Minn. Ct. n Minnesota Supreme Court holds and total suspended solids (TSS) in App. 1/11/2021) (unpublished). MPCA’s Class 1 water standards apply groundwater, both of which are based on to groundwater. The Minnesota Su- the corresponding nonmandatory EPA n Unemployment compensation; preme Court issued a decision reversing secondary drinking water standards. quitting employee denied benefits. a decision of the Minnesota Court of The court of appeals held that chapters An employee who turned in his tools Appeals concerning a National Pollutant 7050 and 7060 unambiguously do not and told his boss “I’m done here” was Discharge Elimination System (NPDES)/ classify groundwater as Class 1 waters denied unemployment compensation State Discharge System (SDS) permit and that therefore MPCA erroneously benefits. The appellate court, affirming that the Minnesota Pollution Control imposed permit conditions requiring a ULJ decision, held that the employee’s Agency (MPCA) reissued to U. S. Steel compliance with the Class 1 sulfate and conduct and statements indicated Corporation on 11/30/2018 for U. S. TSS standards in groundwater. that he had quit his job without good Steel’s Minntac taconite tailings basin The Supreme Court disagreed. Apply- cause attributable to the employer and, facility in Mountain Iron, Minnesota. ing the analytic framework for reviewing therefore, was not entitled to unemploy- At issue were two holdings by the an agency’s interpretation of its own ment benefits. Haluzka v. Prime Pork, court of appeals on water-law questions rules set forth in In re Cities of Annandale 2020 WL 7688607 (8th Cir. 12/28/2020) of first impression. The first involved the & Maple Lake NPDES/SDS Permit Issu- (unpublished). regulation of seepage discharges from the ance, 731 N.W.2d 502 (Minn. 2007), the tailings basin to groundwater that is hy- Court first determined that the relevant LOOKING AHEAD drologically connected to, and transports rules and statues were ambiguous as to n Pending workers comp decisions. pollutants to, certain surrounding surface whether groundwater was subject to the The Minnesota Supreme Court began waters. Specifically at issue was whether Class 1 standards; they could support an the year by hearing a pair of workers these groundwater-to-surface-water interpretation either way. On one hand, compensation cases. In Luis Aquilar discharges (GSWDs) constitute dis- neither chapter 7050 nor 7060 expressly Prado v. W. Zintl Construction, Inc., charges to “waters of the United States” states that groundwater is classified Class No. A20-0833, the Workers Compensa- under the Clean Water Act (CWA) and 1, as the rules do for Class 1 surface tion Court of Appeals (WCCA) upheld are thus subject to NPDES permitting waters, and the scope of the “potable” a determination by an arbitrator that requirements such as the requirement to use for which groundwater is protected the claimant’s injury arose out of the meet surface water quality standards— in chapter 7060 is distinct from and course of employment, but erred in not or, as MPCA and U. S. Steel contended, broader than the scope of the Class taking into account a surgeon’s report GSWDs are properly regulated under 1 standards. On the other hand, the of the need for surgery on grounds that state law only—that is, MPCA’s SDS Court held, there are various “textual the surgeon was not on an approved permitting program. The court of ap- clues” that could support a reading that list of physicians for the union and also peals sided with MPCA and U. S. Steel, groundwater is classified Class 1, includ- overturned the arbitrator’s denial of an holding that the relevant language in the ing references to groundwater in part

34 Bench&Bar of Minnesota s March 2021 www.mnbar.org | ENVIRONMENTAL LAW | FAMILY LAW

7050.0221 (the rule describing the Class a best interest standard. Father did so, to intervene. But the Court also made 1 category) and language indicating that and mother opposed the motion. The clear that Molloy’s rights only extended the standards in chapter 7050 can apply district court ultimately denied father’s to the proper valuation of the child’s to both surface and groundwater. request for joint legal custody because interest in the accounts. She did not Because the Court thus found the father failed to allege a sufficient change have a right to challenge the enforce- regulatory language ambiguous, it then in circumstances to justify the change. ability of the underlying divorce decree looked, pursuant to In re Annandale, to Father appealed, arguing the parties’ or seek to alter its property division. The whether MPCA’s interpretation that agreement to employ the best interest Court emphasized that children cannot groundwater is classified Class 1 is a standard obviated the need to prove seek an interest in their parent’s prop- reasonable one. The Court held that it changed circumstances. erty in a divorce, and that parties “have is, determining that deference was par- The Minnesota Court of Appeals the right to their own divorce action.” ticularly appropriate here because water affirmed. Citing three nonpreceden- Thus, while recognizing a limited right pollution and classification is a technical tial opinions, the court observed that to intervention in a post-decree enforce- issue. In addition, the Court noted that parents’ stipulation to employ a best ment action, the Court declined to MPCA has made statements in various interest standard does not void the stat- throw the courtroom doors wide open by contexts since at least 1993 (the rules utes’ other requirements for modifica- allowing any third party with an interest were adopted in 1973) that groundwa- tion, including changed circumstances, in marital property to intervene in an ter is subject to the Class 1 standards, which are designed to preserve stabil- attempt to influence how that property is indicating a longstanding interpreta- ity in a child’s environment. Because divided. Miller v. Miller, No. A19-0372, tion. Finally, the Court emphasized that father failed to plead any such change ___ N.W.2d ___ (Minn. 1/20/2021). language in chapter 7060 indicating that in circumstances, the district court ap- parts of chapter 7050 apply to ground- propriately denied his motion without MICHAEL BOULETTE water had been part of the groundwater an evidentiary hearing. Father has since Barnes & Thornburg LLP rules since they were first adopted. Ac- petitioned for review to the Minnesota [email protected] cordingly, the Court held that MPCA’s Supreme Court. Woolsey v. Woolsey, No. interpretation that the Class 1 standards A20-0749 (Minn. Ct. App. 12/28/2020). apply to groundwater is a reasonable one and that the MPCA properly exercised n Third party given limited right to its authority in applying the Class 1 stan- intervene in a divorce proceeding to dards to Minntac’s 2018 NPDES/SDS enforce their interest in property. Miller Permit. In reversing on this issue, the Su- and Spera divorced in 2004 and agreed preme Court also instructed the court of to divide all of their retirement accounts appeals to address several appeal issues equally. In 2018, Miller died, having it had not addressed, including whether never completed the required retire- the MPCA properly denied U. S. Steel’s ment division. At the time of his death, requests for a permit-related contested Miller’s four daughters, including his case hearing and a variance from certain youngest from a later relationship, were groundwater standards, both of which listed as beneficiaries of his retirement the court of appeals concluded it need accounts. To obtain her share of Miller’s not address after it had held the Class 1 accounts, Spera brought a motion in the standards were inapplicable. Matter of divorce action to divide Miller’s retire- NPDES/SDS, A18-2094, A18-2095, ment. The mother of Miller’s youngest A18-2159, A18-2163, ___ N.W.2d ___ daughter (Molloy) sought to intervene (Minn. 2/10/2021). on her daughter’s behalf and objected to Miller’s request, arguing that both laches JEREMY P. GREENHOUSE and the statute of limitations precluded The Environmental Law Group, Ltd. enforcement of the divorce decree. The [email protected] district court denied Molloy’s motion JAKE BECKSTROM Vermont Law School, 2015 to intervene, and the court of appeals ERIK ORDAHL Barna, Guzy & Steffen reversed, holding Molloy (on the child’s AUDREY MEYER University of St. Thomas behalf) had a right to ensure an accurate School of Law valuation. The Minnesota Supreme Court af- firmed the court of appeals holding with FAMILY LAW modifications. On the issue of interven- tion, the Court held Molloy’s motion JUDICIAL LAW met all four elements of Minn. R. Civ. n Modifications of custody require P. 24.01 for intervention as a matter of proof of changed circumstances even right. Namely, the motion was timely, where parties agree to apply the best- Molloy claimed an interest in property interest standard. As part of a 2015 subject to the action, her interest could stipulation, the parents agreed mother be impaired or impeded by the action, would have sole custody of their child, and her interests weren’t adequately provided that father could seek modifi- represented by the existing parties. Thus, cation of legal custody in 2020 based on the Court concluded Molly was entitled www.mnbar.org March 2021 s Bench&Bar of Minnesota 35 Notes&Trends | FEDERAL PRACTICE | IMMIGRATION LAW FEDERAL PRACTICE n Remand following transfer; proce- cal, LLC v. Duff & Phelps Secs., LLC, dures. Where an action was filed in the 2021 WL 168467 (D. Minn. 1/19/2021). JUDICIAL LAW Texas courts, removed to the Southern n Summary judgment; new theory of District of Texas on the basis of diversity n Fed. R. Civ. P. 26(e) AND 37(c)(1); mo- liability not properly before the court. jurisdiction, and then transferred to the tion for sanctions denied. Where the Awarding one defendant summary District of Minnesota, where Judge Bra- plaintiff sought sanctions for one defen- judgment on a claim arising out of that sel rejected some defendants’ partial mo- dant’s alleged untimely ninth supple- defendant’s alleged negligent inspection tion to dismiss for fraudulent joinder and mental interrogatory answer, Magistrate of a car tire, Judge Doty agreed with the determined that diversity was lacking, Judge Schultz found no evidence that defendant that the plaintiff’s attempt to Judge Brasel rejected those defendants’ the defendant had violated its duty to recharacterize her claim in opposition request that the action be “remanded” supplement under Fed. R. Civ. P. 26(e), to the summary judgment motion could to the Minnesota courts, and found that denied sanctions pursuant to Fed. R. Civ. be disregarded where that theory had the only appropriate court for remand P. 37(c)(1), and ordered that the deposi- not been alleged in the complaint. Sage was the Texas court where the case had tion of one witnesses be reopened on a ex rel. Sage v. Bridgestone Ams. Tires been commenced. Monty v. Patterson limited number of topics. Noting that Ops., LLC, 2021 WL 195797 (D. Minn. Dental Supply, Inc., 2021 WL 323868 this was “at least” the seventh request 1/20/2021). (D. Minn. 2/1/2021). for sanctions by the plaintiff, Magistrate Judge Schultz also cautioned both parties n Fed. R. Civ. P. 12(b)(6); pleading the n 28 U.S.C. §1447(c); untimely removal; that any further motions for sanctions factual basis and legal theory for a remand; award of attorney’s fees. Where were likely to result in an award of at- claim. Rejecting plaintiffs’ “startling” ar- the defendant removed an action more torney’s fees to the prevailing party. Fair gument that the pleading of the “factual than 17 months after the action was Isaac Corp. v. Fed. Ins. Co., ___ F.R.D. basis” for their claims was sufficient to commenced, Chief Judge Tunheim re- ___ (D. Minn. 2021). withstand a motion to dismiss pursuant jected the defendant’s argument that the to Fed. R. Civ. P. 12(b)(6), Judge Schiltz removal was timely because the parties n Fed. R. Civ. P. 54(d)(1); costs; prevail- found that a plaintiff must also identify had been involved in related litigation in ing party; dismissal of federal claims. the legal right that was allegedly vio- the Texas courts, found that the removal Where the plaintiff’s federal claims were lated, that a complaint can be dismissed “lacked an objectively reasonable basis,” dismissed on the merits, his supple- when it is based on an “unavailing” legal remanded the action, and awarded the mental claims were remanded, and the theory. Viewpoint Neutrality Now! v. plaintiff attorney’s fees in an amount to defendants filed a bill of costs, Judge Regents of the Univ. of Minnesota, 2021 be determined. Uptime Systems, LLC v. Schiltz rejected the plaintiff’s argument WL 354130 (D. Minn. 2/2/2021). Kennard Law, P.C., 2021 WL 424470 that the defendants were not prevailing (D. Minn. 2/8/2021). parties, finding that the dismissal of the n Class certification; questions relating federal claims was sufficient to make to standing. Noting a split among courts n Behavior by multiple attorneys criti- them prevailing parties, and that the fact “across the United States, including cized; motion for sanctions denied. De- that defendants removed the case from courts within the District of Minnesota” scribing the case as a “mess,” and criticiz- state court did not alter that analysis. regarding “whether and in what circum- ing plaintiff’s counsel for a “kitchen sink Jacobs v. County of Hennepin, 2021 WL stances Article III standing issues may be approach in drafting their complaint,” 509284 (D. Minn. 2/11/2021). postponed until after class certification” Judge Schiltz criticized counsel for both where class certification is “logically sides for their conduct during discovery, JOSH JACOBSON antecedent” to standing, Judge Wright including “bickering like children during Law Office of Josh Jacobson deferred resolution of the question of depositions,” “one lawyer questioning the [email protected] whether the plaintiff had standing until sanity of another,” and one lawyer asking the class-certification stage. Gisairo v. if the other lawyer wanted to “step out Lenovo (United States) Inc., 2021 WL of the room” and “have a fight.” Judge IMMIGRATION LAW 352437 (D. Minn. 2/2/2021). Schiltz admonished counsel for their behavior but denied the defendant’s mo- JUDICIAL LAW n Fed. R. Civ. P. 12(b)(6) AND 9(b); puta- tion for Rule 11 sanctions, finding that n Denial of deferral of removal under tive class action dismissed for lack of both sides had made frivolous arguments. CAT. The 8th Circuit Court of Ap- specificity.Where the plaintiff brought ARP Wave, LLC v. Salpeter, 2021 WL peals affirmed the Board of Immigra- a putative class action including claims 168501 (D. Minn. 1/19/2021). tion Appeals’ (BIA) decision denying for breach of warranty and fraud, but the petitioner’s request for deferral of failed to allege, among other things: n Motion for sanctions denied. Chief removal under the Convention Against where he purchased the product; when Judge Tunheim denied defendants’ Torture (CAT) to Somalia, finding he bought the product; how he had been motion for sanctions under Fed. R. Civ. substantial evidence supported the im- misled; where he was misled; when he P. 11, 28 U.S.C. §1927 and the court’s migration judge’s and BIA’s conclusions was misled; where he was damaged; and inherent powers, finding that sanctions that he was unlikely to be tortured by when he knew or had reason to know he were not warranted even though one of Al-Shabaab due to his minority-clan was damaged, Judge Schiltz found that the plaintiff’s claims “lack[ed] a reason- membership. Furthermore, “the record the plaintiff had not alleged a “single able basis in law and fact,” and another does not show that the Somali govern- plausible claim” and dismissed the ac- claim was “meritless and lack[ed] a ment has willfully turned a blind eye to tion without prejudice. Ehlis v. DAP colorable basis,” finding that all of the Al-Shabaab’s activities. In fact, it shows Prods., Inc., 2021 WL 83269 (D. Minn. plaintiff’s claims were within the bounds the opposite. The Somali government is 1/11/2021). of Fed. R. Civ. P. 11(b). Protege Biomedi- actively fighting to control Al-Shabaab,

36 Bench&Bar of Minnesota s March 2021 www.mnbar.org | IMMIGRATION LAW | INTELLECTUAL PROPERTY has considerably reduced Al-Shabaab’s 1/20/2021, President Biden issued a Immigration Systems and Strengthen- military capacity, and has demonstrated memorandum reinstating and extending ing Integration and Inclusion Efforts a willingness to fight terrorism.” Has- deferred enforced departure (DED) for for New Americans), reaffirming our san v. Rosen, 19-2918, slip op. (8th Cir. Liberian nationals, or persons without nation’s character as one of opportunity 1/15/2021). https://ecf.ca8.uscourts.gov/ nationality who last habitually resided in and welcome. Noting that our nation is opndir/21/01/192918P.pdf Liberia, to 6/30/2022, provided they were “enriched socially and economically by present in the United States and under the presence of immigrants,” the order n DHS allowed to substitute one charge a grant of DED as of 1/10/2021. 86 Fed. declared that the federal government (CIMTs) for another (immigration fraud) Register, 7055-57 (1/25/2021). https:// should develop welcoming strategies in removal proceedings. The 8th Circuit www.govinfo.gov/content/pkg/FR-2021-01- promoting integration, inclusion, and Court of Appeals held that the Depart- 25/pdf/2021-01770.pdf citizenship, while embracing, at the same ment of Homeland Security (DHS) time, full participation of the newest may choose to rely on a charge involv- n Extension and re-designation of TPS Americans in our democracy. The order ing the commission of crimes involving for Syria. On 1/29/2021, Department of directed, among other things, that both moral turpitude (CIMTs) rather than an Homeland Security Acting Secretary Pe- the Departments of State and Homeland alternative one encompassing immi- koske announced an 18-month extension Security review existing regulations, gration fraud. According to the court, and re-designation of Syria’s temporary orders, guidance documents, policies, “[t]he rules of procedure that govern protected status (TPS). Current ben- and other similar agency actions that removal proceedings in the immigration eficiaries under Syria’s TPS designation may conflict with those policy objectives. court allow the government to adjust the were deemed eligible to re-register for 86 Fed. Register, 8277-80 (2/5/2021). charges against an alien [sic] during the an extension of their status while those https://www.govinfo.gov/content/pkg/FR- case. ‘At any time during deportation or Syrians who entered the United States 2021-02-05/pdf/2021-02563.pdf removal proceedings, additional or sub- after 8/1/2016, and were otherwise stituted charges of deportability... may eligible, would also be allowed to register R. MARK FREY be lodged’ by the Department. 8 C.F.R. for the first time. https://www.dhs.gov/ Frey Law Office §1003.30; see also id. §1240.10(e).” news/2021/01/29/acting-dhs-secretary-peko- [email protected] Herrera Gonzalez v. Rosen, 19-2290, slip ske-extends-temporary-protected-status-syria op. (8th Cir. 1/4/2021). https://ecf.ca8. uscourts.gov/opndir/21/01/192290P.pdf n Deferred enforced departure for INTELLECTUAL PROPERTY certain Venezuelans. On 1/19/2021, n Motion to reopen removal proceed- President Trump issued a memorandum JUDICIAL LAW ings on account of changed country directing the Departments of Homeland n Copyright: Disputed ownership rights conditions in Somalia is denied. The Security and State to defer, with certain when works created by independent 8th Circuit Court of Appeals upheld the exceptions, for 18 months the removal of contractors. Judge Tunheim recently Board of Immigration Appeals’ (BIA) any Venezuelan national, or noncitizen granted in part Peakspeed, Inc.’s motion denial of the petitioner’s motion to without nationality who last habitually for preliminary injunction. In 2019, reopen his in absentia order of removal resided in Venezuela, who is present in Timothy Emerson formed EmersonAI to based on changed country conditions in the United States as of 1/20/2021. 86 develop geospatial applications for Field Somalia. Finding the BIA did consider Fed. Register, 6845-46 (1/25/2021). Programmable Gate Arrays (FPGA), in Al-Shabaab’s increase in power and https://www.govinfo.gov/content/pkg/FR- particular the application TrueView. By ISIS-Somalia’s emergence and growing 2021-01-25/pdf/2021-01718.pdf the end of 2019, Emerson’s business ad- violence, the court concluded, however, visor Dave Eaton wanted to create a new that “no reasonable adjudicator” would n Reaffirmation: The United States is company to further develop TrueView. surmise there was any material change in a nation of immigrants. On 2/2/2021, Peakspeed was formed. By mid-2020, conditions from 2011 to 2018. Mo- President Biden issued Executive Order Emerson felt he was being pushed out hamed v. Barr, 19-3356, slip op. (8th Cir. 14012 (Restoring Faith in Our Legal of Peakspeed. Emerson then allegedly 12/23/2020). https://ecf.ca8.uscourts.gov/ opndir/20/12/193356P.pdf ADMINISTRATIVE LAW n Filing period for LRIF-based perma- nent residence applications extended to SOCIAL SECURITY DISABILITY 12/20/2021. On 1/12/2021, the Depart- INITIAL APPLICATION THROUGH HEARING ment of Homeland Security announced that the filing period for certain Liberian nationals and family members to ap- ply for adjustment of status under the Liberian Refugee Immigration Fairness (LRIF) provision had been extended an additional year to 12/20/2021. https:// content.govdelivery.com/accounts/USDHS/ 612-825-7777 bulletins/2b5dc64?reqfrom=share www.livgard.com Paul Stephanie Successfully pursuing benefits since 1993 n Deferred enforced departure for Livgard Christel Liberians extended to 6/30/2022. On www.mnbar.org March 2021 s Bench&Bar of Minnesota 37 Notes&Trends | INTELLECTUAL PROPERTY | REAL PROPERTY | TAX LAW modified the copyright notices of 230 (5) unspecified confidential information JULIE N. NAGORSKI files and locked Peakspeed from the that defendants obtained from in person DeWitt LLP AWS account and the servers, owned by and online seminars, webinars, and/or [email protected] Emerson. Peakspeed filed its complaint training sessions; and (6) its marketing PATRICK C. SUMMERS alleging it was the sole owner and exclu- terminology. ARPwave alleged that each DeWitt LLP sive user of the copyright to TrueView’s component of every device was a trade [email protected] source code and that Emerson violated secret. The court found that that could the Computer Fraud and Abuse Act and not possibly be true. The court found converted Peakspeed property. that ARPwave’s protocols were abstract TAX LAW To succeed on a copyright claim, a and lacked the specificity necessary to be movant must demonstrate a right to own a trade secret. ARPwave’s briefing did JUDICIAL LAW the copyright where ownership vests not discuss the other categories of trade n Property tax: Mandatory disclosure initially in the author or authors of the secrets. Because ARPwave failed to iden- rule strikes again! Petitioners timely work. If there are joint authors, then tify a protectable trade secret, ARPwave filed property tax petitions contesting they are co-owners of the copyright. The could not succeed on its misappropriation the 1/2/2019 assessment (for taxes pay- court found neither party was the sole claim. The court granted defendants’ mo- able in 2020) concerning three separate author of TrueView. The parties agreed tion for summary judgment and dismissed subject properties. The parties agree the Emerson wrote 95% of the FGPA code, the misappropriation of trade secrets properties are leased to third parties, which constituted 10% of the total code. claim with prejudice. ARPWave, LLC thereby making them income-producing. But TrueView required both the FGPA v. Salpeter, No. 18-cv-2046 (PJS/ECW), The county sought a motion to code and the host processing code, 2021 U.S. Dist. LEXIS 9552 (D. Minn. dismiss, alleging that petitioners failed which was created by Oscar Kramer. 1/19/2021). to timely provide complete income and Both parties argue that the other’s con- expense information for the subject prop- tributions were works for hire. Oscar and JOE DUBIS erties. An affidavit by the county’s com- Emerson, however, were independent Merchant & Gould mercial appraiser stated that the county contractors, not employees, and neither [email protected] sent a courtesy letter to petitioner’s had transferred their ownership interests counsel noting their obligation to provide by written conveyance. Accordingly, the necessary information by 8/1/2020. Peakspeed was likely to succeed on the REAL PROPERTY On 8/21/2020, the county received 2018 merits of its claim that it has an undi- and 2019 profit and loss statements and vided ownership interest in TrueView’s JUDICIAL LAW tenant information. Petitioners oppose source code as a joint author. The court n Permitted exception: Purchase agree- the county’s motion, arguing 1) that a enjoined Emerson from interfering with ment. Red Star Group, LLC executed a portion of the information was not avail- or calling into question Peakspeed’s joint purchase agreement on a parcel owned able on 8/1/2020, and 2) the covid-19 right to own and use TrueView’s source by 1933 Lyndale, LLC. 1933 Lyndale ob- pandemic necessitates “‘extended and code. Peakspeed, Inc. v. Emerson, No. tained and provided a title commitment flexible deadlines,’ especially since there 20-1630 (JRT/BRT), 2020 U.S. Dist. to Red Star. The purchase agreement is little, if any, prejudice to the County.” LEXIS 248635 (D. Minn. 12/29/2020). gave Red Star seven days to tender writ- Under Minnesota’s mandatory ten objections. The title commitment disclosure rule, when the valuation of n Trade secrets: Identification of trade excluded a $2.3 million mortgage. Red income-producing property is contested, secrets requires specificity. Judge Schil- Star did not submit an objection. The the petitioner must provide the informa- tz recently granted in part defendants’ day of the closing, Red Star informed tion listed in Minn. Stat. §278.05, subd. motion for summary judgment. ARPwave 1933 Lyndale that it would not ac- 6(a) to the county assessor by August leased to defendant Garrett Salpeter cept title subject to the mortgage. 1933 1 of the taxes payable year. Failure to electrostimulation devices and licensed Lyndale provided a partial release and disclose the required information by Salpeter to operate an ARPwave clinic in assurances that the mortgage would be 8/1/2020 will result in a dismissal, even if Austin, Texas. After a few years, Salpeter satisfied and released at closing. Red Star the county is not prejudiced. See Kmart stopped doing business as ARPwave and refused to close, and commenced an ac- Corp. v. Cty. of Becker, 639 N.W.2d 856, set up his own business using an electro- tion against 1933 Lyndale, asserting that 861 (Minn. 2002); see also BFW Co. v. stimulation device he designed. ARPwave it had breached of the purchase agree- Cty. of Ramsey, 566 N.W.2d 702, 703, sued for patent infringement—previously ment by failing to provide marketable 705 (Minn. 1997). dismissed for improper venue—breach title. 1933 Lyndale moved for summary There are two exceptions for failing of contract, misappropriation of trade se- judgment, arguing that the mortgage was to supply the required information: “1) crets, unfair competition, conversion, and a permitted exception. The district court the failure to provide it was due to the unjust enrichment. To prove misappro- agreed, and granted summary judgment unavailability of the information at the priation of a trade secret, plaintiff must in favor of 1933 Lyndale. The court time that the information was due, or show the defendant acquired the trade of appeals affirmed, holding that the 2) the petitioner was not aware of or in- secret by improper means or disclosed the mortgage was a permitted exception due formed of the requirement to provide the trade secret when under a duty to main- to Red Star’s failure to timely object, and information.” Minn. Stat. §278.05, subd. tain its secrecy or limit its use. ARPwave further that 1933 Lyndale’s obligation 6(b). Petitioners argued that 2020 bud- accused defendants of misappropriating was to deliver marketable title at closing, get information was not available at the the following categories of trade secrets: which Red Star had failed to attend. Red time the information was due, therefore, (1) ARPwave’s devices; (2) its protocols; Star Group, LLC, d/b/a Cheers v. 1933 the case should not be dismissed. (3) its user manuals; (4) its contracts and Lyndale, LLC, 2021 WL 417010 (Minn. The court noted that during the hear- similar business-related documentation; Ct. App. 2/8/2021) (unpublished). ing, petitioners acknowledged that five

38 Bench&Bar of Minnesota s March 2021 www.mnbar.org | TAX LAW of the six enumerated pieces of informa- a chance to object to the calculation but concludes that the commissioner’s tion were available as of 8/1/2020. The and gave the commissioner a chance to alternative calculation proposed in her Supreme Court has previously addressed respond to the objection. response to Minnegasco’s objections this situation, concluding “the statute On 8/21/2020, the commissioner reflect the meaning of the rule accurately clearly requires the petitioner to pro- filed a detailed calculation. Minne- defined by Minnegasco. CenterPoint vide any of the required information gasco subsequently filed an objection. Energy Resources Corp. v. Comm’r of within its possession on the date of the Minnegasco argued that the commis- Revenue, 2020 WL 7485163 (Minn. Tax deadline. The unavailability of one type sioner’s calculation deviated from one Court 12/15/2020). of evidence does not render unavailable key requirement of Rule 8100, and that other types of information within the deviation “results in an apportionable n Property tax: Lakefront property ap- possession of the petitioner.” BFW Co., value $24,882,459 higher than that preciates in value. Petitioner David A. 566 N.W.2d at 705 (emphasis in origi- authorized by Rule 8100.” The com- Kent filed a petition in the tax court’s nal). Additionally, the court recognized missioner responded that Minnegasco’s Small Claims Division 4/29/2019 for the pressure placed on businesses during proposed calculation was inconsistent taxes payable in 2019, with respect to real the pandemic but explained that the with Minnegasco’s own interpretation of property located at 12435 State Highway court has no authority to extend dead- Rule 8100 and understated apportion- 29 South, Hudson Township, in Douglas lines found in Minn. Stat. §278.05, subd. able market value. County. The petition alleged the estimat- 6. Finally, the court concluded that the The commissioner assesses pipeline ed market value of the subject property Supreme Court has rejected the argu- property as a whole, using the unit- as of 1/2/2018 exceeded its actual market ment that failure to disclose information rule method. See Comm’r of Revenue v. value. The property is approximately should be forgiven because the county Enbridge Energy, LP (Enbridge I), 923 5.22 acres of land on Maple Lake, with was not prejudiced. The statute gives no N.W.2d 17, 20 (Minn. 2019). Rule two structures—one of them petitioners’ explicit exception for prejudice. Because 8100 details a four-step valuation and residence, and the other a pole shed. the petitioners failed to provide timely allocation process. The parties’ dispute During trial, Mr. Kent testified that information pursuant to the mandatory- focuses on the third step of the process: the subject property was part of a larger, disclosure rule, the petitioners’ tax the subtraction for exempt and non- 6.7 acre parcel he purchased in August appeals are dismissed. Tinos LLC v. formula-assessed property (excludable 2015, for the amount of $500,000, Olmsted Co., 2020 WL 7485179 (Minn. property). See Rule 8100.0500. Minn. R. which he promptly subdivided following Tax Court 12/10/20). 8100.0500, subp. 3 states, “The Minne- purchase—selling the smaller of the two sota portion of the unit value is reduced subdivided parcels to a third party for n Parties disagree over statute by the value included in the unit value $150,000 in 2015. (The smaller parcel interpretation; petitioner’s definition of the company for land, rights-of-way, is not at issue here.) Mr. Kent offered no helps commissioner. This case concerns nonoperating property, and exempt expert testimony, no written appraisal, the market value of Minnegasco’s property. This amount is calculated by nor did he offer any testimony of other natural gas distribution pipeline. The determining the ratio of the unit value fact witnesses concerning the property tax court previously filed findings of computed in part 8100.0300, subpart 5, valuation. Mr. Kent argued that the fact, conclusions of law, and order to the cost less depreciation allowed in property is unique and incomparable to finding that the commissioner’s part 8100.0300, subpart 3. This ratio is other properties. Mr. Kent contended estimated unit value of the subject multiplied by the cost less depreciation of that the only valid basis to determine the property overstated its actual unit value the property to be deducted.” (Emphasis property’s market value is through an ac- as of the assessment date. See CenterPoint added.) The parties disagree over the ap- tual sale of the subject property. Mr. Kent Energy Res. Corp. v. Comm’r of Revenue, plicable meaning of “depreciation.” further opined that the characteristics No. 9125-R, 2020 WL 4045620, at *1-2. In a detailed analysis of Rule 8100 of the home on the property, its modest Minnesota Rule 8100 (2019) governs and the plain meaning of the provisions appearance compared to surrounding the valuation of formula-assessed pipe- surrounding “depreciation,” the court homes, and his knowledge of real estate line property. The rule states in relevant agreed with Minnegasco’s interpretation, leads him to believe the property is part: “After the Minnesota portion of the unit value... is determined, any property which is non-formula-assessed or which is exempt from ad valorem tax, is deduct- ed from the Minnesota portion of the unit value.” Minn. R. 8100.0500, subp. 1. Maximize Your 1031 Exchange This deduction produces apportionable market value. That value is then distrib- uted among the various Minnesota tax- • Real Property ing districts where the pipeline property is located. In the previous case, the court • Reverse Exchanges only determined the Minnesota unit value and instructed the commissioner to • Construction Build-to-Suit calculate the value of the property that is non-formula-assessed or exempt from ad valorem tax to arrive at Minnegasco’s Call Jeff Peterson taxable value. The commissioner was to 612.643.1031 cpec1031.com then serve the calculation no later than 8/21/2020. The court gave Minnegasco www.mnbar.org March 2021 s Bench&Bar of Minnesota 39 Notes&Trends | TAX LAW worth much less than its valuation. existing improvements on the property, that Mr. Kieser intended to adopt Ms. The county moved for dismissal subtracts depreciation to determine the Browne’s appraisal. The county contend- pursuant to Minnesota Rule of Civil Pro- current value of the improvements, and ed that cause existed to amend the sched- cedure 41.02(b), stating that Mr. Kent then adds the value of the land to deter- uling order pursuant to Minn. R. Civ. P. failed to meet his burden to demonstrate mine the market value.” Id. “The court 16.02. JMIR objected to the amendment the estimated market value of the sub- is not required to give weight to all valu- and disputed that Ms. Browne is unavail- ject property was excessive. A party shall ation approaches and may place greater able, stating that the court has the power have the opportunity to offer evidence emphasis on a particular approach.” Eq- to subpoena Ms. Browne. and arguments concerning the assessed uitable Life, 530 N.W.2d at 554. A scheduling order “shall not be value of property, but the burden is on Generally, the tax court is governed modified except by leave of court upon the party appealing the assessment to by the Minnesota Rules of Civil Pro- a showing of good cause.” Minn. R. Civ. show it is excessive. S. Minn. Beet Sugar cedure and the Minnesota Rules of P. 16.02. Factors in determining whether Coop v. Cty. of Renville, 737 N.W.2d 545, Evidence. Minn. Stat. §271.06, subd. 7 a pretrial order should be modified or 557-58 (Minn. 2007). “The taxpayer has (2020). Minn. R. Civ. P. 41.02(b) pro- amended include: “1) The degree of prej- the burden of proof at trial ‘to show that vides that, “after the plaintiff has com- udice to the party seeking modification; [the assessment] does not reflect the true pleted the presentation of evidence, the 2) the degree of prejudice to the party market value of the property.’” Id. at 558. defendant, without waiving the right to opposing modification; 3) the impact of When determining market value, offer evidence in the event the motion is modification at that stage of litigation; the court may consider three traditional not granted, may move for a dismissal on and 4) the degree of willfulness, bad approaches to valuation: cost, income, the ground that upon the facts and law, faith, or inexcusable neglect on the part and sales comparison See Equitable Life the plaintiff has shown no right to relief.” of the party seeking modification.” Assur. Soc’y of the US. v. Cty. of Ramsey, In its analysis, the court noted that JMIR objected to amending the 530 N.W.2d 544, 552 (Minn. 1995). The although Mr. Kent is not required to scheduling order on the grounds the de- sales approach values property “based on offer a written appraisal to rebut the parture of Ms. Browne from city employ- the price paid in actual market transac- county’s property assessment, he must ment does not constitute good cause for tions of comparable properties” Lowe’s present substantial evidence to rebut the amendment. The county asserted it has Home Ctrs., LLC (Plymouth) v. Cty. of prima facie validity of the assessment. shown good cause because without the Hennepin, 938 N.W.2d 48, 54 (Minn. Instead, Mr. Kent contended that the amendment, it would have no appraisal 2020). The cost approach “determines property is unique and must be treated as and, therefore, no expert testimony. the current cost of constructing the such for valuation purposes. Therefore, The county did not request extension of the court found that Mr. Kent did not any deadlines that would delay the trial present credible evidence showing that date; thus the court granted the county’s the estimated market value was incor- motion. JMIR Marquette Hotel LLC rect and granted the county’s motion for v. Hennepin Co., 2020 WL 7688062 TRADEMARK dismissal. Kent v. Douglas Co., 2020 WL (Minn. Tax Court 12/22/20). Copyright & Patent Searches 7682261 (Minn. Tax Court 12/21/2020). n Government not required to sepa- “Experienced Washington office n County may substitute appraisers rately assess tax liabilities of taxpayer for attorneys worldwide” when the previous one ends employ- against owners in order to collect those ment. On 4/28/2018, JMIR Marquette liabilities from owners. The government FEDERAL SERVICES & RESEARCH: Hotel LLC (JMIR) filed a property tax brought action against taxpayer, a C Attorney directed projects at all Federal agencies petition in the tax court as to property corporation, as well as owners of Henco’s in Washington, DC, including: USDA, TTB, EPA, Customs, FDA, INS, |FCC, ICC, SEC, USPTO, taxes due in 2018, for the subject prop- stock who had allegedly received fraudu- and many others. Face-to-face meetings with Gov’t erty located at 710 and 730 Marquette lent transfers from the corporation. The officials, Freedom of Information Act requests, Avenue in Minneapolis, Minnesota. On government sought to reduce Henco’s copyright deposits, document legalization @ State Dept. & Embassies, complete trademark, copyright, 4/1/2019, the court filed a scheduling or- unpaid tax liabilities to judgment, and patent and TTAB files. der, which was subsequently amended on asserted fraudulent transfer claims 4/2/2020. Pretrial submissions from the against the owners. District court dis- COMPREHENSIVE: U.S. Federal, parties included witness and exhibit lists, missed action for failure to state a claim. State, Common Law and Design searches, INTERNATIONAL SEARCHING both of which disclosed Alyssa Browne The 11th Circuit reversed. The circuit EXPERTS: Our professionals average as a trial witness. The scheduling order court held that government was not over 25 years experience each specifies that each written appraisal or required to separately assess tax liabili- FAST: Normal 2-day turnaround expert report will serve as the authoring ties of a taxpayer against the owners in with 24-hour and 4-hour service available expert’s direct testimony at trial. order to collect those liabilities from the On 11/10/2020, the county moved owners. In reaching this conclusion, the to amend the scheduling order again, court parsed Sections 6502, 6502, and seeking modification to substitute Brian 6901. The court reasoned that its inter- Kieser, chief appraiser with the City of pretation of those sections was bounded 200 N. Glebe Rd., Suite 321, Arlington, VA 22203 Minneapolis Assessor’s Office, for Ms. by the Supreme Court’s interpretation as Ph: 703-524-8200, Fax: 703-525-8451 Browne as the county’s expert witness. announced in Leighton v. United States, Minutes from USPTO & Washington, DC The county stated that Ms. Browne has 289 U.S. 506 (1933). The 11th Circuit TOLL FREE:1-800-642-6564 since left her employment with the city opinion is notable for its exhaustive for the private sector, and she contends discussion of Leighton and subsequent www.GovernmentLiaison.com [email protected] that her expert testimony would conflict related cases. The reviewing court also with her new role. The county stated rejected a statute of limitations argu-

40 Bench&Bar of Minnesota s March 2021 www.mnbar.org | TAX LAW ment the court deemed “without merit.” payment from a corporation in which he n “Significant questions” about settle- United States v. Henco Holding Corp., held 75% interest in connection with a ment officer’s actions in CDP case result No. 19-12758, ___ F.3d ___ 2021 WL patent rights transfer. The patent was in remand. In a collection due proceed- 164324 (11th Cir. 1/19/2021). related to Dr. Filler’s development of ing (CDP), the taxpaying couple request- technology related to medical imaging. ed an installment agreement, offering n “Bumper crop” of hobby losses not Because Dr. Filler was “related” to the to pay $1,000 each month toward their permitted. In a colorful opinion, the corporation (as defined in Sec. 1235), tax debt. The couple provided required tax court affirmed the commissioner’s he was not entitled to capital treatment documents, including a specified form conclusion that the taxpayer’s farm- under Sec. 1235. In addition, Secs. 1222 and a pay stub from taxpayer husband. ing activity was not one engaged in and 1231 were unavailable because Dr. Following some additional back-and- for profit. As such, the majority of the Filler had not held the property for the forth, including supplemental requested taxpayer’s $1.5 million in claimed losses requisite holding period and there was no information and documentation from the was not permitted. The taxpayer was a sale or exchange. The court determined taxpayers, the settlement officer rejected successful banker who began to operate Dr. Filler was a “mere middleman” and the taxpayer’s proposal and determined “Sheepdog Farms” while continuing his he did not acquire sufficient ownership the taxpayers had just over $4,000 a banking career. Had the farm been an interest to make his ensuing transfer a month to pay toward their tax debt. The “activity engaged in for profit” as defined sale or exchange for capital gain pur- taxpayers sought review. Review of such by the Code and Regulations, the farm’s poses. The court spent scant time on the a determination is under the familiar losses, which far outpaced gains, would self-employment tax issue because Dr. abuse of discretion standard: The court have been deductible. The “hobby loss” Filler did not brief the issue and the court will uphold the determination unless it is regulation sets out a number of factors to deemed that he had conceded it. The “arbitrary, capricious, or without sound determine whether an activity is engaged NOL matter, in contrast, generated a basis in fact or law.” Despite this gener- in for profit. In this case, Judge Holmes lengthy discussion despite the court’s ul- ous standard of review, the court’s “[m] works through what he characterizes as timate finding that Dr. Filler’s arguments ultiple unanswered questions cast doubt the “goofy” factors but seems to prefer were “illogical” and his position had “no on the settlement officer’s analysis.” One “Judge Posner’s ‘holistic’ approach.” The merit.” Finally, the court upheld the Sec. of the multiple issues the court flagged latter, Judge Holmes notes, “would get us 6662 negligence or substantial under- was that the settlement officer rejected [to the same result] much more quickly.” statement penalties. Dr. Filler’s education the taxpayers’ installment agreement The court noted the taxpayer’s full-time and sophistication, including his law outright rather than giving them the banking career, including 70+ hour work degree, led the court to find he had not opportunity either to accept the amount weeks, and summarized that the tax- satisfied his burden to prove reasonable payer “found this property and bought it. cause and good faith for any portion of This let him work outdoors—something the underpayment. Filler v. Comm’r, that he did as a child and enjoyed. But T.C.M. (RIA) 2021-006 (T.C. 2021). the property was a cattle farm with no cattle during all but part of one year at n Additional tax due on early distribu- issue. It had consistent and substantial tion from qualified retirement plan is not losses which totaled over $1.5 million a “penalty.” Certain tax penalties cannot from 2004-14. Even if he later cut and be imposed unless the IRS personnel sold the timber, he had no chance of obtains their immediate supervisor’s turning a profit; but Sheepdog Farms’ written approval before the penalties are expense, if allowed, would substantially assessed. Section 6751(b)(1) imposes offset his income from other sources. this written approval requirement, which That deduction is just what section 183 generally applies to “deficiency procedure prevents.” Whatley v. Comm’r, T.C.M. penalties” (Secs. 6651-6665). It is not (RIA) 2021-011 (T.C. 2021). clear whether the supervisory approval requirement applies to other categories n Capital gain; self-employment tax; of penalties. In this dispute, a taxpayer NOL; substantial understatement who had taken early distribution from James C. Erickson, Sr. penalty. Accomplished neurosurgeon her pension plan argued that she should and entrepreneur Dr. Aaron Filler (who not be liable for the 10% addition of tax also holds a JD from Concord Law because the Service did not follow the 30+ YEARS OF EXPERTISE School, Kaplan University) challenged a written supervisory approval process $611,367 federal income tax deficiency before assessing the additional tax. (The Fire & Property Damage and $122,273 penalty. The tax court taxpayer’s early distribution was not Policy Appraisals addressed four issues, including whether qualified and therefore Section 72(t)’s Personal Injury/Death Dr. Filler properly reported $100,000 of 10% tax on early distributions was ap- Mediations/Arbitrations income received as capital gain; whether plied.) The court rejected the taxpayer’s Minnesota/Wisconsin he was liable for self-employment tax; argument that approval was required. his entitlement to deduct a net operating Section 6751(b)(1) does not apply to the Erickson, Bell, Beckman & Quinn loss (NOL) carryover; and finally, wheth- section 72(t) exaction on early distribu- 1700 Highway 36 West, Suite 110 er he is liable for a penalty under sec- tions from qualified retirement plans. Roseville, MN 55113 tion 6662(a). The court found for the Grajales v. Comm’r, No. 21119-17, 2021 651-223-4999 | [email protected] commissioner on all issues. The capital WL 242409 (T.C. 1/25/2021). www.ebbqlaw.com gain issue arose after Dr. Filler received www.mnbar.org March 2021 s Bench&Bar of Minnesota 41 Notes&Trends | TAX LAW she believed they were able to pay or to 2017, plaintiff’s counsel sent a letter the written notice must be sufficient to make a counteroffer. Such an outright to Anderson’s insurer, stating that the allow the noticed party to determine rejection has been enough to constitute law firm had been retained to represent ‘its potential liability from a gener- an abuse of discretion in similar cases. respondent in connection with the ally recognized objective standard of These and other questions left the court accident, and sought to “confirm the measurement.’” While the January 2017 was “unwilling to weigh the propriety of existence and amount of coverage.” letter did not demand a specific amount the settlement officer’s determination” The letter also sought the claim number of money, it was sufficient to constitute because the record was insufficient. The and any information that the insur- a notice of claim because it “sufficiently court remanded the case for a supple- ance claims office had in its possession notified the insurer that respondent was mental hearing. Boettcher v. Comm’r, regarding the accident. In August 2018, making a claim for damages as a result of T.C.M. (RIA) 2021-004 (T.C. 2021). plaintiff filed suit against defendant, the the accident and that the insurer, based personal representative of Anderson’s upon the information in the letter and MORGAN HOLCOMB estate. After the jury returned a ver- in its claim file, was sufficiently notified Mitchell Hamline School of Law dict finding plaintiff 25% at fault and of its potential liability to respondent.” [email protected] Anderson 75% at fault, the district court The court went on to affirm the district SHEENA DENNY granted plaintiff’s motion for additur in court’s decision to award pre-verdict Mitchell Hamline School of Law the amount of $15,000 for past pain and interest on additur damages, holding that [email protected] suffering and granted pre-verdict interest they did not fall within the exception for from the date of the January 2017 letter. “other similar items added by the court” The Minnesota Court of Appeals found in Minn. Stat. §549.09, subd. TORTS & INSURANCE affirmed. With respect to what consti- 1(b)(5). Blehr v. Anderson, A20-0691 tutes a “notice of claim,” an issue of first (Minn. Ct. App. 1/11/2021). https:// JUDICIAL LAW impression, the court held: “a written mn.gov/law-library-stat/archive/ctap- n Pre-verdict interest; notice of claim. notice of claim need not identify a pub/2021/OPa200691-011121.pdf Plaintiff was involved in a motor vehicle specific amount of damages to trigger accident with Anderson. The accident preverdict interest under Minn. Stat. JEFF MULDER resulted in serious injuries to plaintiff §549.09, subd. 1(b).” “Instead, to consti- Bassford Remele and the death of Anderson. In January tute a ‘notice of claim’ under the statute, [email protected]

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42 Bench&Bar of Minnesota s March 2021 www.mnbar.org People&Practice | MEMBER ANNOUNCEMENTS

Matt Loven joined the partnership of Maslon In Memoriam LLP. Loven represents clients in real estate transactions, property Amy Joyce, age 51, of development, and com- Minneapolis, lost her battle LOVEN mercial leasing. LINDQUIST PROCHASKA BJERVA with cancer on February 9, 2021. She was a partner at Anneliese McCahery has Chestnut Cambronne named Erica J. Skolnick & Joyce, PA. She joined Eckberg Lammers Lindquist and Ryan Prochaska partners cared deeply for her clients, as an attorney with the and announced that Eric B. Bjerva has their cases, the practice municipal law group. joined the firm. of law, and the pursuit of She earned her JD from justice. Mitchell Hamline School Tessa McEllistrem has MCCAHERY of Law in 2020. been named partner Sherrill Rae Oman of at Jardine, Logan Minnetonka passed away John C. Redpath has & O’Brien, PLLP. at age 73. She was a joined Winthrop & McEllistrem has been an passionate and pioneering Weinstine, PA as a share- associate at the firm since female attorney and among holder in the corporate & MCELLISTREM 2014 and practices in the the earliest women to be transactions and mergers areas of civil litigation appointed to the board of a & acquisitions practices. defense, government liability, and major Minnesota law firm. REDPATH employment law. Tyler Hartney, an Earl Edwin Maus passed associate in Meagher + Gov. Walz appointed Johnathan Judd away on February 10, 2021 Geer’s mass tort/toxic as district court judge in Minnesota’s at age 67. A lifelong public tort practice, has been 7th Judicial District. Judd will replace servant, his career included admitted to the Illinois Hon. Barbara R. Hanson and will be working as Cass County State Bar. In addition chambered at Fergus Falls in Otter Tail Attorney in Walker for over to Illinois, Hartney is County. Judd is currently the mayor 20 years and then a 9th HARTNEY also licensed to practice of the City of Moorhead, director of Judicial District judge in in Minnesota, Montana, and North equity and inclusion at Minnesota State Brainerd for 11 years. Dakota. Community and Technical College, and an adjunct instructor at Minnesota State James J. Cronin, age Ward & Oehler, Ltd. is now Wagner University-Moorhead. 82, of Minnetonka, passed Oehler, Ltd. as of January 1, 2021. away on February 10, 2021. The firm has served clients throughout Gov. Walz He attended Georgetown Minnesota for over 45 years. appointed University Law School Anna in Washington, D.C. and Jennifer Gumbel has Andow and supported his family by joined Wagner Oehler, Theresa working as a member of Ltd. as an associate Couri as the Capitol Police. He later attorney. She has several ANDOW COURI district moved to Minnesota to years of experience in court work at Felhaber, Larson, the areas of estate judges in Minnesota’s 4th Judicial Fenlon & Vogt, where he GUMBEL planning, probate, and District. These seats are chambered practiced labor law for the real estate law. in Minneapolis in Hennepin County. rest of his career. Andow’s appointment will fill a vacancy Julie N. Nagorski, part- that occurred upon the retirement of ner/co-chair of DeWitt’s Judge Kevin S. Burke. Andow is a child litigation practice group, support magistrate at the Family Law was appointed to the Justice Center in Minneapolis. Couri’s Minnesota State Bar As- appointment will fill a vacancy that sociation’s Real Property occurred upon the retirement of Judge Certification Board. The Mary R. Vasaly. Couri is a managing NAGORSKI board has eight members, county attorney at the Hennepin County each of whom serve a three-year term. Attorney’s Office. www.mnbar.org March 2021 s Bench&Bar of Minnesota 43 People&Practice

Minneapolis office: Tyler J. Bush, The Minnesota Corporate Pro Bono Dalton K. Crum, Devin T. Driscoll, Council announced the board of director Melissa R. Hodge, William M. reappointments of David E. March as Howieson, Aaron J. Hurd, Emily M. chair, Debra L. Hovland as treasurer, McAdam, Sage H. O’Neil, N. Chethana and Janet Lambert as secretary. The Perera, Edward M. Peilen, Aaron Z. council works to increase the level of GROGAN VEDDER ALLEN Stenz, and Thomas Wheeler. pro bono work performed by members of Tanner J. Pearson joined the firm’s corporate law departments and includes Bismarck office. pro bono leaders from 30 Minnesota- based companies. Stinson LLP announced that Minneapolis partner David Crosby Stuart Williams, a will serve as the firm’s next deputy lawyer at Henson Efron, managing partner, alongside Managing was re-elected president ENGEBRETSON MILLER SCHMID Partner-elect Allison Murdock. Their of the Minnesota Board Moss & Barnett announced that Brian term will begin July 2021. of Pharmacy for 2021 and T. Grogan and James J. Vedder were was re-appointed to a elected to three-year terms as members Wilkerson & Hegna, PLLP updated WILLIAMS three-year term on Min- of the firm’s board of directors. Kathy Y. the firm name to Wilkerson, Hegna, nesota’s Drug Formulary Allen, Kelly C. Engebretson, Brittney Kavanaugh & Johnston, PLLP. Gary Committee, where he will continue to M. Miller, John M. Schmid, and Alex Wilkerson and Kyle Hegna founded serve as the committee’s chairperson. R. Schoephoerster have become the firm over 30 years ago. The new firm shareholders in the firm. name highlights the next generation We gladly accept press releases and of partners. Morgan Kavanaugh and announcements regarding current members of Fredrikson & Byron announced the Chris Johnston have been partners and the MSBA for publication, without charge. addition of 12 associates to the firm’s owners of the firm since 2015. Email: [email protected]

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44 Bench&Bar of Minnesota s March 2021 www.mnbar.org OpportunityMarket

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We offer an attractive salary and an ABA accredited law school; three or MN, that provides project-based sup- benefit package commensurate with ex- more years of private practice or cor- port for civil litigation attorneys, nation- perience. Please send a cover letter and porate legal experience; and significant wide and internationally, in all phases of resume to Mark Arndt at: Mark J. Arndt, background and experience in agricul- litigation. This position will focus on legal Evans, Haigh & Hinton, LLP, 101 North tural and commercial lending transac- research and motion drafting. Our ideal Main, Suite 213, P.O. Box 2790, Sioux tions, apply today. Closing Date: March candidate has at least five years of expe- Falls, SD 57101. 605-275-9599, 605-906- 17, 2021 6PM CT. For full details and to rience with litigation work, including re- 8904 (DD), Email: marndt@ehhlawyers. submit your resume, please visit our search and motion practice; exceptional com Website: ehhlawyers.com

www.mnbar.org March 2021 s Bench&Bar of Minnesota 45 OpportunityMarket | ATTORNEY WANTED

FRANKLIN D. AZAR & Associates, PC IMMIGRATION LAWYER — Rare op- fice location outside the downtown core is the largest personal injury plaintiffs portunity to work with the highly experi- at Normandale Lake Office Park for easy firm in Colorado and has represented enced immigration professionals at one access with complimentary parking. If thousands of people entitled to recov- of America’s preeminent immigration law you are interested in joining our team, er damages from injuries in all types firms (Bar Register, 2021) including one please send your resume and cover let- of accidents, from dangerous and de- of the Top 15 “most highly regarded” ter to: [email protected]. fective products, and from employers lawyers in the world in corporate immi- sssss not paying adequate wages. The firm gration law (Who’s Who Legal). Requires maintains a powerful team of, in many Minnesota license and zero to three plus LIVE AND PLAY in the beautiful Brain- cases renown, lawyers. Every attorney years of post-JD law practice experience. erd Lakes Area. Ed Shaw Law Office in our firm benefits from a collegial en- Large firm, corporate, or litigation experi- seeks an Associate Attorney to join our vironment with open access to some ence, journalistic experience as a writer, team to practice in real estate, probate, of the most experienced and reputable reporter or editor, or multiple language wills, business, and family law. While attorneys in Colorado. Requirements: fluencies, (particularly Mandarin or Span- we value experience, it is not required; Demonstrate strong dedication to ish) are pluses. The strongest candidates We believe a solid work ethic and your personal injury law and a passion for will have outstanding communication personal integrity are what is most im- helping people; Possess strong orga- skills (written and interpersonal), a re- portant. We are seeking the right per- nizational and writing skills; Be ener- cord of academic excellence and excep- son to work in a progressive, open and getic, hard-working, and a team-player tional analytic and problem-solving abil- affirming, covid safe, collegial, family Have experience with complex litiga- ity. Please, no phone calls. If interested, friendly atmosphere with 2 dogs! New tion; Two years of experience preferred please email resume/CV with cover letter associate will work from both offices in but all candidates will be considered. to: [email protected], Penny Brainerd and St. Cloud. If you are look- Franklin D Azar & Associates offers a Van Kampen, Director of Client Services, ing for a great place to work with a solid comprehensive benefits package and Borene Law Firm, PA – U.S. & Global Im- opportunity and a potential partnership competitive compensation based on migration, 3950 IDS Center, Minneapolis, track, please send your cover letter and results. Send resumes to: malcolmo@ Minnesota 55402. resume to: [email protected]. Re- fdazar.com sssss sponsibilities include: Initial interviews sssss with potential clients, advise clients on LARKIN HOFFMAN, one of the largest legal situations, prepare and draft le- GUNDERSEN HEALTH System — full-service business law firms in Bloom- gal documents, negotiate settlements Legal Counsel Gundersen Health Sys- ington Minnesota, is seeking a highly when possible, make court appear- tem is looking for a Legal Counsel in motivated attorney with 10+ years of ex- ances and handle all aspects of your cli- La Crosse, WI. Ideal candidates will perience to join our corporate and busi- ent’s case. Benefits package: Competi- have knowledge of employment law ness law team. Candidates should have tive salary, commissions, paid time off, and labor relations. This is an in-house ‎a background and demonstrated experi- health insurance, retirement plan, con- position for an experienced attorney ence in complex corporate and partner- tinuing legal education reimbursement, with five to seven years of experi- ship tax-related and business transac- mal-practice insurance paid. ence handling general health care, risk tions, tax planning, compliance, and tax sssss mitigation, business, employment and driven structural considerations. They labor relations, regulatory and contrac- should also have knowledge in Federal, MARKVE & ZWEIFEL, PLLC, a small tual matters. Reporting directly to the state, local and foreign tax related issues, firm located in Maple Grove, MN prac- Associate General Counsel, the Le- financial transactions tax matters related ticing in the areas of real estate, estate, gal Counsel will work collaboratively to structuring mergers, acquisitions and business planning and probate, seeks an and respectfully across departments reorganizations, and the taxation of real attorney to assist primarily in real estate to anticipate, identify, and manage estate transactions. We are looking for an and probate, including litigation. Please Gundersen’s legal issues. Education: attorney with outstanding academic cre- include a cover letter with your resume REQUIRED; Juris Doctor (JD) degree; dentials, drafting skills, communications and email to: [email protected] Work Experience: REQUIRED five to skills, a dedication to client service and a sssss seven years of experience handling commitment to excellence in the practice general health care, risk mitigation, of law. Candidates with a book of busi- REGULATORY ATTORNEY Winthrop business, and contractual matters; Li- ness is required. Larkin Hoffman offers & Weinstine, an entrepreneurial, full- cense and Certifications: REQUIRED; a collegial and energetic work environ- service law firm, located in downtown Licensed to Practice Law in the State ment with attorneys who are recognized Minneapolis has an excellent opportunity of Wisconsin (LPL) or eligible for in- leaders in their areas of practice. We are for an associate attorney in its fast- house exception. To view the complete motivated to attract and retain talented paced Regulatory and Government job description and apply, please visit: and diverse attorneys into our growing Relations practice. The client base is https://www.gundersenhealth.org/ca- firm and are committed to the training robust and diverse, spanning virtually reers/. Equal Opportunity Employer and professional development of our at- every industry, and ranging from sssss torneys. Working at Larkin Hoffman has individual entrepreneurs to Fortune 100 the benefit of being located in a prime of- companies. Qualified candidates will

46 Bench&Bar of Minnesota s March 2021 www.mnbar.org OpportunityMarket | ATTORNEY WANTED

have one to three years of regulatory law STAFF ATTORNEY. Central Minnesota experience clerking at a workers’ com- experience, with a strong preference Legal Services seeks full-time attorney pensation firm. Forward cover letter, for candidates who have served in the for its St. Cloud office. Family Law; some resume and transcript to Jeff Downes general counsel’s office or as outside work in other poverty law. Licensed in at [email protected]. Early counsel for a state or federal agency. In Minnesota preferred. Post-law school applications encouraged. addition, candidates must have advice poverty law experience, family law or sssss and counseling experience, excellent clinical experience preferred. Spanish or verbal and written skills, a strong work Somali language a plus. Salary $51,000- TOMSCHE, SONNESYN & Tomsche, a ethic and strong academic credentials. $61,218 D.O.E. Excellent benefits. Re- civil litigation defense law firm located Winthrop & Weinstine offers competitive sume with references and writing sam- in Golden Valley, seeks an associate salary and benefits and a team approach ple to CMLS, 110 6th Avenue S, St. Cloud, attorney to work primarily in areas of to providing our clients with top quality MN #205, 56301. Email to: dmorris@cen- personal injury, construction, and pro- service. EOE. Please apply at: https:// tralmnlegal.org deadline: 03/05/21 or un- fessional negligence. Responsibilities bit.ly/3aXMVDx til filled. EOE. of the Associate Attorney: Conduct sssss sssss legal research; Draft reports, motions, and legal memoranda; Prepare and RESPECTED WORKERS’ compensa- THE MINNESOTA DISABILITY Law Cen- respond to written discovery; Com- tion law firm, Mottaz & Sisk Injury Law, ter, a division of Mid-Minnesota Legal municate with clients; Appear for court is looking to add an associate attorney to Aid, is seeking a staff attorney with five to hearings and depositions. Qualifica- their team with one to four years of prac- nine years of disability rights or discrim- tions of the Associate Attorney: Min- tical workers’ compensation experience. ination-related litigation experience. The nesota license required; Wisconsin The firm offers a competitive salary and position is full-time and will be based in license preferred; Minimum of two benefits along with the opportunity to our Minneapolis office. More information years of litigation experience; Strong work with accomplished attorneys and and on-line application process at: www. research and writing skills; Confidence staff in the practice area. Please submit mylegalaid.org/employment. in communicating with clients and op- a cover letter, resume and two referenc- sssss posing counsel; Ability to manage time es to: [email protected]. and prioritize tasks; Comfortable with sssss COUSINEAU WALDHAUSER & Kiesel- technology and understanding of e- bach is an insurance defense firm located discovery process and requirements; SEEKING AN ASSOCIATE General in Mendota Heights, MN. We are seeking Interest in developing a litigation prac- Counsel. This position will provide a an Associate Attorney for a position in our tice. Benefits: Health Insurance, 401(k) full range of legal advice and services Workers’ Compensation group. Associate Profit Sharing. Salary commensurate with an emphasis on providing support Job Duties Include: Prepares legal drafts with experience. Job Type: Full-time. to Optum’s state government business by assembling and organizing information [email protected]. within UnitedHealth Group. Draft and for legal forms and documents, including sssss negotiate complex transaction agree- complaints, declarations, discovery re- ments and associated documents with quests, responses, and other pleadings. MISO (MIDCONTINENT Independent customers, vendors, subcontractors Researches law by studying laws, stat- System Operator). Location: Carmel, and strategic partners. Protect the orga- utes, regulations, court opinions, includ- IN or Eagan, MN or Little Rock, AR As nization’s rights in contract negotiations, ing precedents and reasoning, and trends a Senior Corporate Counsel, you will settlements, bid protests and litigation. using standard print texts and comput- help MISO adapt its markets, products, Acquire deep knowledge of the indus- ers, and then prepares legal memoranda. and services to an evolving energy land- try and the specific business practices Assembles case materials by collecting, scape by providing legal and strategic of the State Government business so organizing, and summarizing information, advice. In this role, you will: Provide as to best advise senior business lead- documents, medical records, reports, and compliance and regulatory support for ers Interact with Optum senior leader- evidence. Assists with litigation action matters subject to the jurisdiction of the ship team and outside counsel on legal plans, conflict checks, initial case sum- Federal Energy Regulatory Commission issues. Juris Doctorate, six plus years maries, and background investigations. and other regulatory authorities; Col- of legal experience, four plus years of Prepares for trial by preparing trial briefs, laborate with internal business partners government contracting experience. exhibits, subpoenas, evidence, and mo- on risk identification and mitigation; and Experience providing advice to senior tions. Maintains calendar by entering identify solutions and paths forward re- business leaders. Experience with state and updating requirements, court dates, lated to challenges facing the electric and/or federal procurements, including and meetings. Updates job knowledge energy industry and MISO’s members. RFP review, proposal preparation and by participating in continuing educational What we are looking for: Juris Doctor review, drafting and negotiating result- opportunities; reading legal publications; degree; License to practice law in any ing prime and subcontracts and bid maintaining personal networks. Experi- US state or the District of Columbia; A protests. Please contact Carla at Carla_ ence preferred but not required; ability to minimum of five years of legal experi- [email protected]. https://careers. thrive in high-volume practice and great ence in the electric or natural gas indus- unitedhealthgroup.com/job/11922568/ organizational skills a must. Will consider tries. At least five years of federal energy associate-general-counsel-remote/ recent graduates, especially those with regulatory practice; strong preference

www.mnbar.org March 2021 s Bench&Bar of Minnesota 47 OpportunityMarket | ATTORNEY WANTED | OFFICE SPACE | POSITION AVAILABLE | PROFESSIONAL SERVICES

to candidates with an extensive history SHARED OFFICE space and shared sup- NEED FOR TAKE CHARGE Billing / in regulatory law. In-depth knowledge port staff available with a successful im- Collections Specialist. Small, high- of the energy industry and regulatory migration and personal injury attorney quality, respected and long-established practice, including FERC/NERC poli- available July 1st, 2021. Modern, attrac- Minneapolis law firm requires a “take cies and procedures and resource plan- tive building at the intersections of High- charge” highly experienced qualified ning. Watch our YouTube video, MISO way 100, 694, and 94 in Brooklyn Cen- person to reestablish law firm client in 90 Seconds, to learn about who we ter twenty (20) minutes away from the billing/collection system. Call Dick: 612- are and what we do. https://www.you- courthouses in Minneapolis and Anoka. 339-1400 (o); or 612-570-4444 (c) tube.com/watch?v=Hx2FMWzFcYI. The office is located at 6160 Summit Apply link: https://www.misoenergy. Drive North, Brooklyn Center. Contact: org/about/careers/ [email protected] Phone: 651- PROFESSIONAL SERVICES sssss 321-4713, and [email protected] Phone: 612-250-2492 ATTORNEY COACH / consultant Roy S. HEACOX, HARTMAN, Koshmrl, Cos- Ginsburg provides marketing, practice griff, Johnson, Lane & Feenstra, PA, is a management and strategic / succes- St. Paul law firm that specializes in the POSITION AVAILABLE sion planning services to individual law- area of workers’ compensation. We are yers and firms. www.royginsburg.com, currently seeking a highly motivated as- BELL BANK is seeking candidates for a [email protected], 612-812-4500. sociate attorney to join our team. Can- Wealth & Fiduciary Advisor in Fargo, ND. sssss didates should be licensed to practice If you like to work with people in a fam- law in the state of Minnesota and pos- ily atmosphere, enjoy great benefits and ADD MEDIATION SKILLS to your tool sess strong research and writing skills, provide unequaled personal service to kit! 40-hour Family Mediation Skills via as well as, the ability to work well un- every customer, consider a career with Zoom June 10-11-12 and 17-18, 2021. der pressure in a fast-paced environ- Bell Bank. The Wealth & Fiduciary Advisor CLE, Rule 114 and CEU credits. For more ment. Our firm is an equal opportunity effectively manages the delivery of high information, contact Janeen Massaros employer that offers a competitive ben- quality personal fiduciary administration at [email protected] or Carl Arnold at efits and compensation package. Inter- services to clientele and to participate in [email protected] Online ested candidates should submit their new business development efforts. This registration and payment information at resume to [email protected] position will have a specialized focus in tinyurl.com/june2021mediation relationship management and fiduciary sssss administration for high net worth clients. OFFICE SPACE Please view full job description and apply MEDIATION TRAINING: Qualify for the online at bell.bank/jobs. Supreme Court Roster. Earn 30 or 40 MINNETONKA SUITES and Individual sssss CLE’s. Highly rated course. St. Paul 612- Offices for Rent. Professional office 824-8988 transformativemediation.com buildings by Highways 7 & 101. Confer- GUNDERSEN HEALTH System is seek- sssss ence rooms and secretarial support. ing a Paralegal in La Crosse, WI. Ideal can- Furnishings also available. Perfect for didates would have familiarity with elec- VALUESOLVE ADR Efficient. Effective. a law firm or a solo practitioner. Office tronic health care records systems. The Affordable. Experienced mediators and with 10 independent attorneys. Call: Paralegal reports to the Associate Gen- arbitrators working with you to fit the 952-474-4406. minnetonkaoffices.com eral Counsel and is responsible for work- procedure to the problem—flat fee me- sssss ing under the supervision of attorneys in diation to full arbitration hearings. 612- the legal department. They provide legal 877-6400, www.ValueSolveADR.org ESTABLISHED LAW Office for lease in advice and assistance to Gundersen sssss Buffalo MN. 1300sq/ft, $2000/m rent. Health System and its key affiliates. In ad- Across the street from Wright County dition, the Paralegal provides assistance EXPERT WITNESS Real Estate. Agent Government Center. Includes: Furni- in compliance, contractual, corporate, standards of care, fiduciary duties, ture, Client Files, Existing Clientele. employment, labor, medical malpractice, disclosure, damages/lost profit analy- Call: 612-701-4436 risk management, and other legal issues sis, forensic case analysis, and zoning/ sssss related to patient care, including consent, land-use issues. Analysis and distilla- termination of care, medical malpractice, tion of complex real estate matters. EDINA OFFICE Space Available. Our and risk management. Education and Excellent credentials and experience. professional, innovative and unique Learning: (Required)Associate degree [email protected], 612-207-7895. office space contains private offices, in Paralegal or Bachelor of Science with sssss office suites, open workspaces, and major in paralegal studies. Work Experi- multiple meeting rooms, all offering ence: (Required)three to four years mini- state-of-the-art technology and en- mum of related work experience. To view PLACE AN AD: hanced safety precautions, along with the complete job description and apply, Ads should be submitted online at: premium amenities. Learn more at please visit: www.gundersenhealth.org/ www.mnbar.org/classifieds. Collaborativallianceinc.com or email: careers/. Equal Opportunity Employer For details call Jackie at: 612-333-1183 [email protected]

48 Bench&Bar of Minnesota s March 2021 www.mnbar.org Monday & Tuesday March 15 & 16, 2021

The 2021 LIVE ONLINE CONFERENCE NO IN-PERSON ATTENDANCE Family See www.minncle.org for details. Law Online Institute

Presented by Minnesota CLE and the MSBA Family Law Section

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03.21 Family Law Inst.indd 1 2/10/2021 9:31:19 AM POWERING PAYMENTS

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