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40 Years of 8th Circuit Jurisprudence: Highlights in the Career of Judge Gerald Heaney

Judge Gerald Heaney’s retirement from the 8th Circuit Court of Appeals last August placed the capstone on his 40 years of service on the appellate court, an era in which his decisions shaped the law governing interstate commerce, public education, freedom of expression, and discrimination, among other matters.

The recent retirement of Judge Gerald Heaney of Duluth from the 8th Circuit Court of Appeals, after nearly 40 years on the appellate tribunal, marks the end of an era.

He was nominated for a newly created seat on the appellate tribunal by President Lyndon B. Johnson and confirmed on October 20, 1966, after a distinguished career as a lawyer in Duluth and also serving as a member of the University of Minnesota Board of Regents, along with numerous other civic activities. Judge Heaney is one of eight Minnesotans who have served on the 8th Circuit. Three currently remain on that tribunal: Judge Donald Lay, who also joined the tribunal in 1966, Judge Diana Murphy, a former federal district court judge and, before that, a Hennepin County district court jurist, who has been on the 8th Circuit since 1994, and Judge James Loken, who has served on the 8th Circuit since 1990, and as chief judge since 2003.

A native of Goodhue, Minnesota, Judge Heaney was an active jurist on the 8th Circuit for 22 years, until he took senior status at the beginning of 1989. However, he remained quite active in that capacity, continuing to carry out his duties, until he officially stepped down at the end of August 2006 at age 88, completing his long tenure.

During his four decades on the bench, he authored hundreds of opinions for the court, along with occasional concurrences and dissents. A short retrospective of his career cannot do him the type of justice that he furnished to litigants and lawyers coming before him during his four decades on the bench. But here’s a synopsis of a few of the more notable cases highlighting his 40 years of service on the 8th Circuit.

Supreme Situations

A number of situations that Judge Heaney faced on the bench ultimately reached the Supreme Court. Several of his opinions were upheld, including some dissents, while others were overturned by the high court.

One of his rulings confirmed by the Supreme Court was a landmark Commerce Clause case, Consolidated Freightways Corp. of Delaware v. Kassel, 612 F.2d 1064 (8th Cir. 1979), aff’d 450 U.S. 662 (1981). The case was a challenge by a motor carrier to an Iowa law that barred use of particularly long trucks on interstate highways in that state. Because of the limitation, the carrier was required either to divert some shipments around the state or to shuttle them across the state using multiple vehicles.

Judge Heaney found that the law impermissibly burdened interstate commerce under Article I, §8 of the Constitution. The state’s justification for the law, enhancing highway safety, was “illusory” and not supported by the evidence in the record, despite the Iowa Legislature’s determination to the contrary. While “some burdening of interstate commerce will be tolerated,” to advance safety interests, the Iowa measure was violative of the interstate commerce clause because it both “burdens interstate commerce and fails to directly protect a state safety interest.”

The Supreme Court affirmed, in a plurality opinion written by Justice Lewis Powell, agreeing substantially with Judge Heaney’s reasoning. It explained that “the incantation of a purpose to promote the public health or safety does not insulate a state law from Commerce Clause attack,” concluding that the restriction was defective because it furthered safety marginally, while interfering substantially with interstate transportation. The high court ruling endorsing Judge Heaney’s reasoning is considered a leading Commerce Clause case, often reprinted in law school textbooks.

He also was affirmed in an education case, holding in Chess v. Widmar, 635 F.2d 1310 (8th Cir. 1981), aff’d sub nom. Widmar v. Vincent, 454 U.S. 263, that a state university could not bar student religious organizations from using public facilities for worship and religious teaching. Because the university permitted the facilities to be used for a variety of political, cultural, educational, social and recreational purposes, prohibiting use for religious purposes had the impermissible primary effect of inhibiting religion, “clearly hinder[ing] the constitutional rights” of the religious adherents.

The Supreme Court agreed, by a margin of 8-1, in a decision written, again, by Justice Powell. He concurred with Judge Heaney that the school’s policy “offended the 1st Amendment right of freedom of religion.”

Judge Heaney also was overturned in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), another education-related case. Writing for the appellate court, he held that a public school principal could not remove from a high school newspaper two pages that he felt unduly impinged on the privacy rights of pregnant students. 795 F.2d 1368 (8th Cir. 1986). But the Supreme Court reversed, reasoning that because the school newspaper did not constitute a “public forum,” school officials could impose “reasonable restrictions” on the contents of the newspaper. It upheld the right of the principal.

Another ruling by Judge Heaney, which was affirmed by his own 8th Circuit, was later reversed by the Supreme Court in Smith v. Arkansas State Highway Employees Local 1315, 441 U.S. 463 (1979). Sitting by designation as a federal trial judge in Arkansas, Judge Heaney held that a state agency’s refusal to allow unions to pursue grievances on behalf of members in the absence of a written complaint submitted by a union member to management violated the union’s 1st Amendment right to pursue a grievance on behalf of its members. 459 F. Supp. 452 (1978).

The 8th Circuit affirmed, 585 F. 2d 876 (1978), before the Supreme Court, in a 7-1 ruling, reversed. It held that the agency’s refusal to permit a union to pursue a grievance, without a written complaint from a member, does not “prohibit or discourage union membership or association”; rather, its conduct “is simply to ignore the union,” which the state government “is free to do.” Justice ThurgoodMarshall, a sole dissenter, agreed with Judge Heaney and lamented that the Court “so cavalierly disposed of the substantial 1st Amendment issues.”

Another trial court decision authored by Judge Heaney regarding labor unions and 1st Amendment rights also was overturned by the U.S. Supreme Court in Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271 (1984). Writing for a three-judge panel, acting as a trial court under then-existing procedures, Judge Heaney found the “meet and confer” provision of the Minnesota Public Employment Labor Relations Act (PELRA), Minn. Stat. §179.61, unconstitutionally infringed on the 1st Amendment rights of nonunion faculty members at state colleges, requiring the school administrators to engage in official discussions only with the faculty’s union. 571 F. Supp. 1 (1982).

But the Supreme Court reversed, holding that the statute did not infringe upon any 1st Amendment rights of faculty members who were not represented by unions, nor did it violate the Equal Protection Clause of the 14th Amendment. The high court reasoned that the measure does not violate any “[c]onstitutional right [of faculty] to force the government to listen to their views” because they do not have any “such right as members of the public, as government employees, or as instructors in an institution of higher education.”

Constitutional Conundrums

Judge Heaney addressed a number of other constitutional conundrums that did not reach the Supreme Court level.

In another education-related case, Pratt v. Ind. Sch. Dist. No. 831, 670 F.2d 771 (8th Cir. 1982), he upheld the ruling of District Court Judge Miles Lord in Minnesota enjoining the Forest Lake School District from prohibiting the showing of a movie entitled “The Lottery” to students after parental complaints about the content of the film caused the school board to withdraw it from circulation. Although the movie, which was an allegory about bigotry, was “not a comforting film,” Judge Heaney declared that “students had a fundamental 1st Amendment right … to be exposed to controversial ideas” and the school authorities did not establish a “substantial governmental interest for interfering with the students’ right to receive [such] information.”

One of his significant constitutional decisions arose outside of the 1st Amendment in Geiger v. City of Eagan, 618 F.2d 26 (8th Cir. 1980). In this case Judge Heaney ruled that a city ordinance in Eagan prohibiting the “possession, sale, transfer or display for sale or transfer” of drug-related devices was unconstitutionally vague under the Due Process Clause of the 14th Amendment. The definition of “drug-related devices” in the ordinance was so vague, conflicting, and not susceptible to common understanding that it did not “provide notice to the ordinary person of what is prohibited” and also impermissibly failed to “provide standards to law enforcement officials to prevent arbitrary and discriminatory enforcement.”

Judge Heaney addressed a constitutional conflict between the provisions of the Social Security Act and the Railroad Retirement Act in Yost v. Schweiker, 699 F.2d 438 (8th Cir. 1983). The claimant had been collecting divorced spouse benefits under the Social Security Act based upon the work record of her husband, who was fully covered under both that measure and the Railroad Retirement Act. After her exhusband remarried, and then died, his second wife began receiving survivor’s benefits under the Railroad Retirement Act.

The Social Security Administration decided that the former divorced spouse was no longer eligible for benefits under the Social Security Act because §202(l) of that act provided that if “any person” is entitled to survivor’s benefits under the Railroad Retirement Act, then no survivor’s benefits shall be paid to “any person” on the basis of the earnings of an employee insured under both acts.  Her ineligibility prompted a class-action challenge to the operation of this provision under the Equal Protection and Due Process clauses.

Judge Heaney disagreed, upholding the agency’s determination and dismissing the case. Although “struck by the unfairness of the operation of the statute,” he felt its inequity “does not rise to the level of a constitutional violation” because the statute “advances the legitimate goal of preventing dual payment of survivor’s benefits on the basis of the same wage-earner’s record.”

Criminal Cases

Judge Heaney authored numerous decisions regarding criminal law matters during his 40 years on the bench.

He reached different conclusions in a pair of privacy-related cases. In United States v. Barry, 853 F.2d 1479 (8th Cir. 1988), he affirmed a decision of U.S. District Court Judge Paul Magnuson of Minnesota, suppressing stolen goods found in a warrantless search of a suitcase in a locker at the Twin Cities airport. Agreeing with the lower court, he determined that the owner of the luggage had a “reasonable expectation under the 4th Amendment of privacy” that proscribed searching the seized suitcase without a warrant.

But Judge Heaney rejected a privacy claim in United States v. Lemons, 697 F.2d 832 (8th Cir. 1983), upholding a man’s conviction under a state sodomy statute. He rebuffed claims of equal protection and violation of the right to privacy for the incident that occurred in a public rest room at a national park. Applying “judicial self-restraint,” he found that no “[c]onstitutional right to privacy extends to … oral sex in a public restroom within the confines of a national park.” The decision preceded the ruling of the U.S. Supreme Court in Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld a state sodomy law, and Lawrence v. Texas, 539 U.S. 558 (2003), which overruled Bowers with respect to private homosexual conduct between consenting adults.

He also addressed the rights of prisoners. In Salaam v. Lockhart, 905 F.2d 1168 (8th Cir. 1990), he held that a prison policy refusing to allow an inmate, following his conversion to Islam, to use a religious name on his records, clothing, and for mail constituted an unconstitutional restriction on the prisoner’s 1st Amendment rights because the spiritual importance of the new name outweighed the “minimal” burden that would be required to update prison records.

He also struck down the state’s refusal to let an inmate’s son visit him in prison, where the son was on the institution’s approved visitor list, in Taylor v. Armontrout, 894 F.2d 961 (8th Cir. 1990). The list created a “liberty interest” protected under the 14th Amendment.

One of Judge Heaney’s most significant, and notable, criminal rulings upheld the cause célèbre conviction of Leonard Peltier. United States v. Peltier, 800 F. 2d 772 (8th Cir. 1986). The Native American activist was convicted of murdering two FBI agents in connection with tensions on the Pine Ridge Indian Reservation in South Dakota. Following remand, the 8th Circuit, in a decision written by Judge Heaney, held that the withholding by the government of favorable evidence that may have assisted in the cross-examination of certain government witnesses did not create a reasonable probability of acquittal and, thus, did not warrant a new trial. Although he accepted that favorable evidence had been withheld that “would have allowed [the defendant] to cross-examine certain government witnesses more effectively,” he concluded that the evidence was not “material in the sense that its nondisclosure undermines confidence in the outcome of the trial.” Judge Heaney’sexamination of the evidence led him to conclude that, while there was a “possibility that the jury would have acquitted” had the improperly withheld evidence been available to the defendant, under prevailing law Peltier was unable to meet the standard for a new trial that “the jury probably would have reached a different result,” which warranted denial of the appeal.

Five years later, Judge Heaney, who also was on the panel on Peltier’s earlier appeal, 731 F. 2d 550 (8th Cir. 1984), wrote a letter supporting the president’s authority “to commute or otherwise mitigate the [life] sentence” imposed in the case. He pointed out several improprieties in the way the case was handled, ranging from the way the government “over-reacted at Wounded Knee” to “improper tactics” used by the prosecution. Calling for the government to “treat Native Americans more fairly,” he called for a “healing process,” but no presidential action has been taken in the 20 years since JudgeHeaney’s post-conviction call for “[f]avorable action” on behalf of the convicted Native American activist.

Another aspect of the Wounded Knee fracas came before Judge Heaney in a civil context in Price v. Viking Penguin, Inc., 881 F.2d 1426 (8th Cir. 1989), in which he affirmed the dismissal of a libel action brought by an FBI agent against a book that criticized FBI actions during the incident. Writing for a unanimous panel, Judge Heaney affirmed a ruling of U.S. District Court Judge Diana Murphy dismissing the case. He held that the FBI agent was a “public figure,” and that many of the defamation assertions he made were either legally protected opinion, privileged statements made in judicial proceedings, or otherwise fell short of the high standard of “clear and convincing evidence” that the materials were published with the knowledge of falsity or reckless disregard for the truth, as required under the New York Times v. Sullivan standard for “public” officials and figures. Judge Heaney explained that while it is “difficult to write about controversial events without getting into some controversy … the Constitution requires more speech than less” in order to avoid “the damage done to every American when a book is pulled from a shelf … or when an idea is not circulated.”

In United States v. Bird, 287 F.3d 709 (8th Cir. 2002), he ruled that the 6th Amendment right to counsel attaches following arraignment in tribal court. Because an arraignment constitutes an “adversarial judicial proceeding,” subsequent statements extracted from a defendant in a rape case without the presence of counsel had to be suppressed because of the 6th Amendment infraction.

He also ruled upon the rights of those who help put people in prison — police officers. In Otten v. Schicker, 655 F.2d 142 (8th Cir. 1981), he upheld a police department regulation prohibiting employees from running for elective office. The prohibition was not violative of any constitutional rights of police officers because it “serves important governmental interests” by “guaranteeing job security free from the political arena, and ensuring the impartial execution of the laws.”

Voting Views

In another case involving Native American rights, Cottier v. City of Martin, 445 F.3d 1113 (8th Cir. 2006), Judge Heaney mandated revision of voting districts in a small southwest city adjacent to the Pine Ridge Reservation because the configuration of the city wards diluted votes of candidates preferred by Native Americans and, thus, constituted a probable violation of the Voting Rights Act, 42 U.S.C. §1973(b) as well as the Due Process and Equal Protection clauses of the 14th Amendment. Based upon exit polling and results of eight consecutive elections in which candidates preferred by Native Americans were defeated by those largely supported by white voters, Judge Heaney sent the case back to the trial court to determine whether voter dilution occurred to an extent warranting new voting districts in which “Indian-preferred candidates have a reasonable chance of prevailing.”

Similar views on voting were reflected in Perkins v. City of West Helena, Ark., 675 F.2d 201 (8th Cir. 1982). Judge Heaney overturned an at-large process for electing municipal aldermen on grounds that the arrangement was discriminatory because it limited the opportunity of African-Americans to elect members of their race. The gravamen was that the at-large electoral system “prevent[ed] white aldermen from losing their seats to black candidates.”

Judge Heaney’s outlook in the Cottier and Perkins case paralleled his approach in cases involving racial desegregation of public schools. He was involved in a number of them, including the longstanding litigation in St. Louis, culminating in Liddell v. Special School District, 149 F.3d 862 (8th Cir. 1998), which came before the 8th Circuit for the tenth time, following a number of trips back-and-forth between the trial and appellate courts, with a few denials of certiorari by the Supreme Court. Writing for the 8th Circuit following remand, Judge Heaney held that the educational system in the St. Louis metropolitan area remained, after three decades, racially flawed, stemming from the creation in the mid-1960s of different vocational education systems for the city of St. Louis, which had a large African-American population, and the suburbs, which were Caucasian-dominated. He ordered that a single entity be the “sole provider of high school vocational education for the city and the county,” expressing confidence that the state would “take necessary steps to reach this goal” in order to blot out the remnants of racial discrimination that existed before he mounted the bench.

The issues in the Liddell litigation were not unfamiliar to Judge Heaney. Concerns regarding desegregation of public schools was a theme that spanned his career on the 8th Circuit, beginning as early as his first year on the court in Kelley v. Altheimer, Ark. Public School Dist. No. 22, 378 F.2d 483 (8th Cir. 1967), in which he found numerous discriminatory policies and procedures in the operation of a school district in Arkansas.

Discrimination Decisions

While in private practice for two decades in Duluth, Judge Heaney’s primary focus was labor law. He had ample opportunity to ply that expertise on the 8th Circuit.

A number of his decisions involving employment and labor law dealt with discrimination claims. In Peterson v. Scott County, 406 F.3d 515 (8th Cir. 2005), he reversed the dismissal by federal Judge Richard Kyle in Minnesota of a lawsuit by a former county corrections officer in Scott County for alleged discriminatory treatment on grounds that the county failed to hire her on a full-time basis and passed her over for promotional opportunities because of her age and sex, along with the claims of hostile environment and reprisal.

While affirming dismissal of the hostile work environment claim, Judge Heaney reversed on the failure to hire, failure to promote, and retaliation claims. Because of the county’s “change in hiring process and fluid standards for applicants, … [and] evolving explanation of its hiring decision,” a reasonable jury could determine that the county engaged in unlawful discrimination because of the applicant’s gender and age. There also was sufficient evidence, although “an admittedly close case,” to warrant a trial on the failure-to-promote claim. The employee’s assertion of unlawful retaliation also warranted trial because there was “sufficient evidence to permit a reasonable fact finder to determine that [the county] retaliated against [the claimant] on the basis of her complaints of discrimination and harassment.”

Judge Heaney also reversed another dismissal of a Minnesota discrimination claim in Maki v. Allete, Inc., 383 F.3d 740 (8th Cir. 2004). Three retired female employees claimed that their private sector employer violated Title VII of the federal Civil Rights Act and the parallel provision under the Minnesota Human Rights Act by adopting a pension plan that failed to credit them for service that had occurred prior to their terminations under old policies that prohibited married or pregnant women from working for the employer. U.S. District Judge Ann Montgomery dismissed the lawsuit, but Judge Heaney reversed and reinstated the case.

The key issue related to timing. The claimants had worked for the employer in the 1950s and 1960s, when they were terminated because of then-existing policies prohibiting married women, and then married pregnant women, from working at the company. The policies were eliminated before passage of antidiscrimination laws, and the claimants were all rehired in the 1980s. Following their retirements, they began collecting pension benefits, but they claimed that they should have been credited with pension payments for the time period that they were not working due to discriminatory policies. Judge Heaney held that they had actionable claims, rejecting the employer’s contention that imposing liability under Title VII would constitute a violation of the constitutional prohibition against ex post facto laws since the federal measure was not enacted until many years after the women had been terminated. The claimants were not seeking “retroactive application of Title VII,” but alleged that provisions of the pension plan, which were adopted after Title VII was enacted, discriminated against them in not allowing them to bridge the time that they were off work for pension purposes. The matter was remanded to Judge Montgomery to sort out whether the claims were barred by any applicable statutory time periods.

Judge Heaney also reversed a pair of lower court rulings regarding equal pay for women. In Schultz v. American Can Company-Dixie Products, 424 F.2d 356 (8th Cir. 1970), a 20-cent wage differential between women machine operators on day shifts and men on night shifts violated the Equal Pay Act, 29 U.S.C. §206(d)(1). Although there were some slight differences in the work performed on the different shifts, the difference in pay between men and women was not the product of any bona fide job classification system. Rather, all the jobs were “equal” for purposes of the statute and the pay disparities constituted an unlawful discrimination based on gender.

Similarly, in Katz v. School Dist. of Clayton, Mo., 557 F.2d 153 (8th Cir. 1977), Judge Heaney held that a female assistant teacher was not deprived of her rights of equal pay when she was not paid the same as two full-time middle school teachers when her job was “equal in skill, effort, and responsibility” to that of the male counterparts. He agreed with the district court that, during her first year of employment, she did not have a viable claim under the Equal Pay Act because she often performed clerical duties and did not spend the majority of her time teaching. But in the ensuing year, although her duties mirrored those of the male teachers, she was not paid as much as they “with the knowledge and acquiescence” of the school district. Although the “job titles of [the] employees are not the same,” the actual duties that they were performing were similar, which warranted a determination of liability under the statute.

In another labor-related case, during his first year on the bench, Judge Heaney upheld a determination by the National Labor Relations Board (NLRB), requiring an employer to pay Christmas bonuses to employees in the labor union after the employer had previously unilaterally discontinued payment of bonuses to employees in the bargaining unit in American Fire Apparatus Company v. National Labor Relations Board, 380 F.2d 1005 (8th Cir. 1967). Although the employer had not committed any other unfair labor practices and calculation of the bonuses for 15 employees would be “difficult, if not impossible,” the NLRB correctly determined that the company violated the collective bargaining agreement by unilaterally withholding bonuses that had previously been paid. Although the amount is subject to “some discretion” by the company, the bonuses must be paid in some amount, subject to review by the Board.

Dissenting Decisions

Judge Heaney’s views did not always convince his circuit court colleagues, which prompted him to dissent in some significant cases.

In Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir. 1993), he dissented from the decision that a provision in the Civil Rights Act of 1991, which overruled a decision of the Supreme Court barring failure-to-promote claims under 42 U.S.C. §1981, does not apply retroactively to a case that was pending on appeal when the law was enacted. The case was brought by an African-American former employee of a newspaper who claimed that the employer denied promotion due to her race. The majority, in a decision written by Judge James Loken of Minnesota, held that the statute of limitations does not apply retroactively, which drew the dissent of Judge Heaney. He thought the majority decision “strains the bounds of credible statutory interpretation” and was “disingenuous” in concluding that the act was intended to “operate only prospectively.”

But Judge Heaney was eventually vindicated in another discrimination case dissent in Minnesota in U. S. Jaycees v. McClure, 709 F. 2d 1560 (8th Cir. 1983) rev’d sub nom. Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) in which the 8th Circuit majority held that the Jaycees had a 1st Amendment right to bar women, despite a provision in the Minnesota Human Rights Act prohibiting discrimination based on gender in “places of public accommodation.” At the district court level, Judge Murphy upheld the application of the law to the Jaycees, which the majority reversed.

In dissenting from the denial of a petition for rehearing en banc, Judge Heaney wrote that barring women from the “primarily business-oriented” organization had the deleterious “effect … to deprive [them] of an equal opportunity for leadership positions” in the business world. His position was eventually adopted by the U.S. Supreme Court, which unanimously held that the 1st Amendment did not override the state’s prohibition of gender discrimination in public accommodations. Roberts v. U.S. Jaycees, 468 U.S. 609 (1984).

A pair of his other dissents in high-profile litigation, however, were not subject to later approval by the high court. In Perpich v. U.S. Department of Defense, 880 F.2d 11 (8th Cir. 1989), the 8th Circuiten banc rejected the claim of Minnesota Governor Rudy Perpich challenging a federal law restricting the power of state governors to withhold consent to federal deployment of the National Guard. The majority held that the measure was a constitutional exercise of Congress’s exclusive power of control over the military, a view that Judge Heaney felt “cannot be right” because it “contradicts the clear intent of the founding fathers … [and] ignores the unambiguous language of the Constitution,” which gives “state control” over deployment of the National Guard under a pair of clauses in Article 1, §8 of the Constitution.

He also vigorously dissented in a capital punishment case, Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003) cert. denied 540 U.S. 832 (2003), which held that the 8th Amendment prohibition against cruel and unusual punishment and the Due Process clauses do not prohibit the use of forced medication to restore competency to a prisoner as a precursor to the imposition of capital punishment. The claimant, who had been convicted of capital felony murder, asserted that forcibly using an antipsychotic drug to remedy his mental illness in order to allow the state of Arkansas to execute him was impermissible. The majority rejected his contention and ordered the execution to go forward. But Judge Heaney objected, asserting his belief that executing someone “who was severely deranged without treatment and arguably incompetent when treated” constitutes a form of “mindless vengeance.”

Circuit Conclusion

These cases represent only a small taste of Judge Heaney’s work in his four decades of service on the 8th Circuit. They do, however, reflect the flavor of his jurisprudence.

For his four decades of service, he is owed a debt of gratitude by lawyers and litigants throughout Minnesota, the 8th Circuit, and other jurisdictions as well.

MARSHALL H. TANICK is an attorney with the law firm of Mansfield, Tanick & Cohen, P.A., in Minneapolis and St. Paul. He is certified as a Civil Trial Specialist by the Minnesota State Bar Association (MSBA) and represents employers and employees in a variety of workplace-related matters. He wishes to thank Brock Specht, a law clerk with the firm, for his assistance in preparing this article.

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