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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Lay Leaves Lasting Legacy

Within the last year not one, but two Minnesota jurists have stepped down after long service and significant contributions to the jurisprudence of the 8th Circuit Court of Appeals. Here we remember and salute the contributions of the late Judge Donald Lay.

The death on April 29th of 8th Circuit Judge Donald Lay marked the conclusion of a noteworthy 40-year judicial career. Judge Lay was the second Minnesota-based jurist to step down recently after a lengthy career with the 8th Circuit Court of Appeals.  After nearly four decades, Judge Gerald Heaney of Duluth retired last September. See “40 Years of 8th Circuit Jurisprudence,” 64 Bench & Bar of Minnesota 3 (March 2007), at 18.

A few months later, Judge Heaney was followed by Judge Lay, his colleague of four decades, who took permanent retirement status at age 80 at the beginning of 2007, four months before he passed away at the end of April.  Judge Lay served on the 8th Circuit from July 1966, including a 12-year stint as chief judge from 1980-1992, and then continued in senior status through 2006.

Although he practiced law primarily in Nebraska before appointment to the bench, Judge Lay had Minnesota connections, too. He moved to Minnesota from his home in Omaha following the opening of the 8th Circuit divisional facility in St. Paul in 1982, and he continued to reside in the Twin Cities area until his retirement. He also served on the faculty of both William Mitchell College of Law and the University of Minnesota Law School during his tenure on the tribunal.

Criminal Cases

Like Judge Heaney, Judge Lay authored hundreds of opinions, many involving monumental matters.  He was dedicated to upholding the constitutional rights of criminal defendants, especially in matters involving due process rights and capital punishment.

His predilection against hasty conviction and execution of defendants in capital murder cases, tempered with fidelity to the law, was reflected in Mercer v. Armontrout, 864 F.2d 1429 (8th Cir. 1988), which was before the court for a second time after it initially upheld a stay of execution. Responding to criticism of the stay by the Missouri state court, Judge Lay had opined that “the legal process in a civilized society must not rush to judgment and therefore rush to execute a person found guilty of taking the life of another.” But, writing for a unanimous panel, Judge Lay ultimately agreed with the state, after “reflective study and analysis,” that the stay petition failed to raise any issues which would undermine the legality of Mercer’s conviction.  However, he admonished the lower court for rebuking the appellate court’s diligence, asserting that “[t]o suggest that a life or death decision can be made simply by reading a petition is to advocate dereliction of judicial duty.”

In Morrissey v. Brewer, 443 F.2d 942 (8th Cir. 1971), the en banc 8th Circuit, over Judge Lay’s dissent, held that a state parole board is not required to provide a parolee with a due process hearing before revoking the parole.  But the U.S. Supreme Court agreed with Judge Lay, reversing by an 8-1 vote and requiring that parolees be furnished a revocation hearing, known as a Morrissey hearing, which must comply with the minimum requirements of due process, including the ability to present favorable evidence to cross-examine adverse witnesses before a “neutral and detached hearing body.”Morrissey v. Brewer, 408 U.S., 471 (1972).

Civil Concerns

Judge Lay’s concerns for the rights of individuals in civil litigation were reflected in a number of cases, including some very high profile ones. The most prominent may have been Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997), the sexual harassment class action case brought by women mining employees on The Iron Range which formed the basis for the 2005 movie “North Country” starring Charlize Theron, Frances McDormand and Woody Harrelson.

Referring to the “long, tortured, and unfortunate history” of the decade-long litigation, Judge Lay’s majority decision remanded the case for a new ruling on damages for the harassed employees. In so doing, he blamed the defense counsel for delaying the case by “exercising senseless and irrelevant discovery, and by making endless objections at trial.”  But he also blamed the “judicial system [which] allowed the lawyers to do what they did” and urged “better treatment” of civil litigants.  Following remand, the case was settled at Judge Lay’s urging, with claimants receiving a total of $3.5 million.

In Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904 (8th Cir. 1997), Judge Lay affirmed five prior rulings of U.S. District Court judges Diana Murphy and Michael Davis in Minnesota upholding the hunting and fishing rights of an Indian band derived from an 1837 treaty with the United States.  In so doing Judge Lay rejected a number of claims to invalidate or restrict the treaty, including the contention that it was abrogated by the legislation in 1858 by which Minnesota became a state.  After detailed and insightful analysis of the issues, he paid homage to all of the lawyers in the complex litigation for “their work in presenting the important and complex issues” in a decision that was affirmed by the U.S. Supreme Court. 526 U.S. 172 (1999).

Judge Lay upheld punitive damages for a defamed employee in Burger v. McGilley Memorial Chapels, Inc., 856 F.2d 1046 (8th Cir. 1988).  At trial, the jury awarded the plaintiff, a former employee of a funeral parlor, $1 in nominal damages and $85,000 in punitive damages for slanderous comments the facility had made regarding the employee after he had been fired.  The trial court entered judgment notwithstanding the verdict, denying recovery of the punitive damages award.  On appeal, Judge Lay, writing for the court, reversed the lower court and reinstated the punitive damages award.  He reasoned that when the employer’s personnel made the slanderous statement they “either knew the statement was false or … they acted out of reckless disregard as to its truthfulness,” and that they “acted out of malice in trying to prevent the ex-employee from getting another job with a competitor.

In later years, as the ideological base of the court shifted, Judge Lay was often cast as the dissenter, particularly in cases upholding discharges of employees.  In Chambers v. Omaha Girls Club, Inc., 840 F.2d 583 (8th Cir. 1988), a gender discrimination case, he dissented from the majority’s ruling upholding termination of a teacher, finding that her discharge “because of her pregnancy is the most blatant form of sex discrimination that can exist.”  Similarly, in a retaliatory discharge case, Melvin v. Car-Freshener Corp., 453 F.3d 1000 (8th Cir. 2006), where the court granted summary judgment to the employer, Judge Lay dissented, lamenting that “[t]oo many courts in this circuit … are utilizing summary judgment in cases where issues of fact remain” and further bemoaned that summary judgment “should be the exception, not the rule” in workplace discrimination cases.

Judge Lay leaves a long legacy of law, like his Minnesota-bred colleague Judge Heaney.  Their departures leave a void — and some would say vacuum — on the 8th Circuit tribunal, which still has two remaining Minnesota jurists, Judge Diana Murphy and Chief Judge James Loken.  Judge Lay, like Judge Heaney, will be missed by many Minnesotans and others concerned about equality and justice for all.


MARSHALL H. TANICK is an attorney with the Twin Cities law firm of Mansfield, Tanick & Cohen, PA, in Minneapolis and St. Paul.  He has written several biographies of Minnesota federal and state court judges.  Brock Specht, a law clerk with the firm, assisted him in this article.

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