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

Adieu to Justice Anderson

The retirement in May of Justice Paul Anderson, from the Minnesota Supreme Court, upon reaching the mandatory retirement age of 70, caps a remarkable and revelatory judicial career.

A graduate of Macalester College in 1965 and the University of Minnesota Law School, Justice Anderson was an attorney for VISTA, on the staff of the Minnesota Attorney General, and then in the private practice of law until he was appointed to the court of appeals in 1992 by Gov. Arne Carlson, whose gubernatorial campaign he had chaired two year earlier, and he served as chief judge of that tribunal until elevated to the supreme court, where he has been an associate justice since July 1994.  During more than two decades, Justice Anderson wrote hundreds of decisions, mostly in the majority, but occasionally as concurrences or dissents, which helped shape the law in this state.  But his impact was felt in many other ways than in his legal rulings, which cut a broad swath across the law from “A” (Antenuptial Agreements) to “Z” (Zoning).

He was actively involved in bringing the law to the people, an indefatigable promoter of the concepts of legal system and justice throughout the state.  Occasionally, he would do so in ways that were somewhat unconventional, such as dressing up in mid-19th century garb to help celebrate the Minnesota Sesquicentennial.  He also served on many other bodies, serving on and chairing the board of Independent School District 199 (Inver Grove Heights), chairing the Minnesota News Council, and working with judicial colleagues to launch the Minnesota Supreme Court Historical Society, among other activities.

Justice Anderson’s decisions reflect a keen mind, recognition of the limitations of equities and courts, an appreciation for history, and care and craftsmanship in writing second only and maybe equal among recent Minnesota jurists to the late Justice John Simonett.

Justice Anderson, whose successor on the court is former U.S. Attorney David Lillehaug, was far from a household name, for hardly any judge in Minnesota reaches that stature.  Nonetheless, his name was well-known for simply being an “Anderson,” one of three with that surname who sat on the supreme court for four years in the middle of the past decade, when they comprised more than 40 percent of that bench.

His name and his work are well-known to lawyers who, upon his retirement, have an opportune time to examine some of the myriad decisions he issued in his venerable career.

Appellate Advance

While on the court of appeals, prior to his appointment to the supreme court, Justice Anderson passed upon a number of significant cases.

In State v. Jones, 518 N.W.2d 67 (Minn. App. 1994), rev den’d (Minn. July 27, 1994), he held that the state failed to make a showing of “critical impact” in challenging the exclusion of evidence submitted by the defense in an aggravated robbery prosecution.  The case articulated standards for analysis of “critical impact” allowing the state to appeal a pretrial criminal order.  Under that framework, the state must identify the critical impact in a statement of the case or otherwise make a “preliminary showing of critical impact.”  In this case, the state’s showing was insufficient to overturn the exclusion of evidence of a robbery a few days before the incident in question.

A lawsuit for defamation against the University of Minnesota and some of its employees, coupled with claims of violation of the Government Data Practices Act, was not actionable due to the “absolute immunity” of the officials making the challenged statements in Board of Regents of the University of Minnesota v. Reid, 522 N.W.2d 344 (Minn. App. 1994), rev. den’d. (Minn. Oct. 27, 1994).  The lawsuit, brought by a University of Minnesota professor, alleged that various university officials defamed him and wrongfully disclosed information deemed nonpublic under the Government Data Practices Act in a press release.  The release described a university investigation concerning alleged misappropriation by a pair of professors of technology that should have been assigned to the school.  The statements were not actionable because of the university’s “absolute immunity,” grounded in its constitutional autonomy dating from the adoption of the Minnesota Constitution in 1857.  Recognizing the need for a “sensitive balancing of the public’s right to know against a defamed individual’s right to sue for compensation,” Judge Anderson struck the balance in favor of “absolute immunity” for the university and its personnel.

Another media-related case, Austin Daily Herald v. Mork, 507 N.W.2d 854 (Minn. App. 1993), rev den’d (Minn. Dec. 14, 1993), involved the trial of a juvenile on charges of criminal sexual misconduct. This came before the appellate court after members of the public were barred from portions of the trial while the media were admitted on condition that they not report certain information about the juvenile.  Media representatives attempting to overturn the order by the Mower County District Court were rebuffed by Justice Anderson, who ruled that exclusion of the public and conditions placed upon the media were properly supported by the “need to preserve the confidentiality of juvenile records.” But Justice Anderson was explicitly aware of the concerns of the media regarding restrictive orders of this type and pointed out, in his conclusion, that upholding restrictions on reporting juvenile court proceedings, “should not be construed as encouraging courts to permit partial media access in other cases.”

Civil Cases

On the Minnesota Supreme Court, Justice Anderson’s decisions continued to reflect his recognition of the need to balance various interests and public policies to achieve just results.

Writing for a sharply divided, 4-3 court, Justice Anderson held in Antone v. Mirviss, 720 N.W.2d 331 (Minn. 2006), that a legal malpractice claim for drafting an antenuptial agreement that failed to protect the client’s interest in premarital property “accrued at the time of the marriage, not at the time of the divorce” and so was barred by the statute of limitations. Reversing the court of appeals, Justice Anderson reasoned that the claim was actionable when “some damage” first occurred, when the marriage was entered into, rather than at the time of the divorce, more than six years after the marriage, when the defect in the antenuptial agreement was manifested.

Employees suffered setbacks in a pair of decisions Justice Anderson wrote.  In Lee v. Fresenius Medical Care, Inc., 741 N.W.2d 117 (Minn. 2007), overturning a decision of the court of appeals, the supreme court held that an employee’s claim under Minn. Stat. §5181.13(a) for paid time-off that was earned prior to the end of employment could not be collected under the terms of the employee handbook.  The handbook, which constituted an enforceable employment contract under the Pine River doctrine, stated that an employee who is terminated for misconduct is not entitled to accrued paid time-off.  That language, Justice Anderson reasoned, created a binding contract to which the employee had consented by accepting the terms of employment.  He recognized, however, that the result “may appear to be unfair” to employees who believe that they have earned wages prior to an employer’s “unilateral decision to terminate [the] employment.”  The remedy for this unfairness, he stated, cannot be found by interpreting Minn. Stat. §181.13(a), which requires the prompt payment of wages, because that measure “is a timing statute narrowly tailored to that purpose” and does not create any substantive right to payment.

Employees who worked as personal fitness trainers were barred from receiving overtime compensation under the Minnesota Fair Labor Standards Act because the way they were paid rendered them “exempt” in Erdman v. Life Time Fitness, Inc., 788 N.W.2d 50 (Minn. 2010).   The case, brought as a class action, sought overtime compensation under the state’s “mini-FLSA,” Minn. Stat. §177.21-.35.  But Justice Anderson, writing for a unanimous court, affirmed the ruling of the court of appeals that the employees were exempt because they were guaranteed a predetermined wage for each work week, even though deductions were made from their pay to recover bonus overpayments. The fact that the employees received “a set amount of compensation for each week they worked [that] … did not depend on how many hours they worked,” invoked the exemption.

Modernity mixed with nostalgia characterized Justice Anderson’s decision upholding the process for recording mortgages under the mortgage electronic registration system (MERS) in Jackson v. Mortgage Electronic Registration Systems, Inc., 770 N.W.2d 487 (Minn. 2009).  The system, created in the aftermath of the savings-and-loan crisis of the early 1990s, served as the nominal mortgagee for loans made by its members, which included originators, lenders, servicers and investors, allowing them to assign homeowners’ loans without having to record each transfer in the local recording office serving the location of the real estate that secured the mortgage.

In this particular case, mortgagors sued the nominal mortgagee and a Hennepin County sheriff, seeking to prevent nonjudicial foreclosure sales on grounds of failure to comply with the statutory requirement to record all assignments of mortgages and give notice of each assignment to the mortgagee.  The class action suit was brought in U.S. District Court in Minnesota, which certified the question of the validity of MERS to the Minnesota Supreme Court.

Writing for a six-member majority of the court, Justice Anderson upheld the MERS system, ruling that the mortgagee was not required to record the assignment of the underlying indebtedness as a condition to commencing foreclosure by advertisement.  Tracing the history of mortgage law in Minnesota, he upheld the simplified recording system, which departed from the past practice of requiring the recording of assignment of mortgages.  Although he expressed “some nostalgia for earlier times,” he recognized that in contemporary practice, a “George Bailey no longer sits in the corner office of the Building & Loan Association in Bedford Falls,” a reference to the renowned movie “It’s a Wonderful Life.”  Because a more simplified system was needed to facilitate transactions without additional recordation, the court observed that underlying problems of equity and notice to mortgagees “are beyond the scope of the issue” before the court and, therefore, “beyond our decision-making authority.”

The troublesome evidentiary issue of spoliation—the loss or destruction of evidence in civil cases—led to the development of standards by Justice Anderson in Miller v. Lankow, 801 N.W.2d 120 (Minn. 2011).  The case was brought by purchasers of a home against the seller and home contractor on grounds that the contractor had failed to repair mold and moisture problems and the sellers had misled the purchasers about the problems.  The buyer had removed and repaired stucco on the home without giving the other parties an opportunity to independently inspect the home, which led the Wright County District Court, in a decision affirmed by the court of appeals, to grant summary judgment on grounds of spoliation.

But Justice Anderson, writing for a unanimous court, viewed it differently.  He reasoned that the homeowners had a “legitimate” need to repair the moisture-related problems, and their failure to preserve evidence could be absolved by providing sufficient notice and full and fair opportunity to the other parties to inspect the home before the repairs were undertaken.  The case was remanded in order for the trial court to “consider the totality of the circumstances in determining whether [a] notice given was sufficient to satisfy [the] custodial party’s duty to preserve evidence.”

Justice John Roberts famously equated the role of a judge to that of a baseball “umpire” in his confirmation hearing for appointment as Chief Justice of the United States.  Justice Anderson, however, refused to umpire an outright dispute between the state and the Minnesota Twins when the club, dissatisfied with the Metrodome, was thinking to leave the state.  In Minnesota Twins Partnership v. State of Minnesota, 592 N.W.2d 847 (Minn. 1999), he rejected a civil antitrust investigation of the Twins and Major League Baseball by the attorney general under Minn. Stat. §8.31, subd. 1, on grounds that professional baseball is exempt from antitrust laws.  The court, he observed for a unanimous tribunal, was “offered the choice between either a narrow or broad reading of professional baseball’s antitrust exemption.”  Reviewing nearly a century of case law dealing with the “judicially created” exemption, Justice Anderson chose the latter, deeming the exclusion from scrutiny to be compelled by precedent.

Switching to professional football in Stringer v. Minnesota Vikings Football Club, 705 N.W.2d 746 (Minn. 2005), Justice Anderson rejected the high-profile action for wrongful death of Minnesota Vikings football player Corey Stringer, who died of heat stroke during the Vikings’ preseason training in Mankato.  The suit, against three medical personnel for the team, could not be pursued because the tort action was barred under the exclusivity provision of the workers compensation statute, Minn. Stat. §176.011, which generally bars tort actions by employees.  An exception that allows tort claims against fellow employees for “gross negligence,” which formed the predicate of the lawsuit, was inapplicable because none of the three personnel owed a “personal duty” to the football player to negate the exclusivity clause.

Criminal Cases

Criminal cases, naturally, played a big role in Justice Anderson’s decision making on the supreme court.

In State v. Brooks, 604 N.W.2d 345, Minn. 2000, he held that a “cash only” bail order of the Scott County District Court, which was upheld by the court of appeals, was unconstitutional.  He reasoned that the “cash only” provision violates Article I, §7 of the Minnesota Constitution, which allows for bail by “sufficient sureties.”  Tracing the “history of bail” to colonial times, Justice Anderson concluded that the bail clause “mimics government power to detain and accuse prior to trial,” and its protection is intended to safeguard “the accused rather than the courts.”  This “broader purpose” of the bail clause under the state constitution allows it to be interpreted more broadly than the parallel provision of the 8th Amendment of the U.S. Constitution, and negates a “cash only” bail requirement.

Justice Anderson reversed a conviction for first-degree premeditated murder and a sentence of life imprisonment without possibility of release in State v. Ferguson, 804 N.W.2d 586 (Minn. 2011), on grounds that the Hennepin County District Court improperly excluded alternative perpetrator evidence presented by the defendant.  The case centered on eyewitness testimony, which the defendant tried to refute by calling an expert witness to show the defects in that form of identification.  Justice Anderson ordered a new trial because of the improper exclusion of alternative perpetrator evidence.

But he went even further, writing a concurrence to his own majority opinion, a procedure that is rare, but not unique, in Minnesota jurisprudence.  In the concurrence, Justice Anderson discussed the defects in eyewitness identification based upon a “compelling argument” derived from “social science … studies that indicate that several factors affecting the reliability of eyewitness identification are not necessarily understood by jurors.”  In the wide-ranging concurrence to his own majority decision for the court, he urged trial courts to provide more safeguards in connection with the use of eyewitness testimony, including “alternative approaches to educating jurors on the variables” that can lead to erroneous eyewitness identification.

Dissenting Decisions

Justice Anderson’s concurrence to his own opinion in Ferguson exemplified his growing inclination to depart from the reasoning and ruling of his colleagues, which became more pronounced in his later years on the court.  A self-described “centrist, slightly populist-progressive,” he saw the court around him shift to lean conservative in his later years on the bench.  His inclination to dissent was manifested in Kidwell v. Sybaritic, Inc., 784 N.W.2d 220 (Minn. 2010), a sharply divided 3-1-3 decision, which held that an inhouse lawyer could not proceed with a whistleblowing claim against his employer.  Justice Anderson, leading a trio of dissenters, opined that the plurality conclusion that the employee did not engage in statutorily protected conduct under Minn. Stat. §181.932 was incorrect.  He criticized the plurality for reasoning that the employee’s claim was not actionable because the employee, as an inhouse attorney, had a duty to oversee compliance with legal requirements.  He stated that it should be a “question for a jury to determine” if the employee had the “subjective intent to blow the whistle.”  The trial court’s reversal of the jury’s verdict for the employee, he felt, deviated from the “well-established province of the jury [in] determining mental state.”

Another dissent by Justice Anderson came in Doe v. Archdiocese of St. Paul Minneapolis, 817 N.W.2d 150 (Minn. 2012), which concerned the six-year statute of limitations that the majority held barred a sex-abuse claim for action committed years before.  Although the court of appeals reversed the dismissal of the lawsuit by the Ramsey County District Court, the supreme court reversed and reinstated the dismissal, holding that neither the six-year statute of limitations period for negligence or fraud was tolled by the claimed “repressed memory of the victim,” which was asserted as a disability.

Justice Anderson disagreed with the majority’s reasoning that the evidence of repressed memory “was not sufficiently reliable to warrant” tolling the statute of limitations.  Rather, he felt that the case should not have been categorically dismissed, but should have been analyzed under the standards for “foundational reliability and helpfulness,” as mandated by Rule 702 of the Rules of Evidence.

Zealous Zoning

A pair of zoning-related cases attracted the zeal of Justice Anderson.  In Mendota Golf v. City of Mendota Heights, 708 N.W.2d 162 (Minn. 2006), he reversed a ruling directing a municipality to approve an application for amendment to the city’s comprehensive plan to allow residential development of property.  The writ of mandamus issued by the lower court, requiring the city to amend its comprehensive plan, was erroneous because the city did not have a “clear duty” to modify the comprehensive plan.  Rather, Justice Anderson found that the city had a “rational basis” to deny the proposed amendment to the comprehensive plan and the only remedy available to the property owner was a writ of mandamus directing the city officials to reconcile any conflicts between its comprehensive plan and its zoning ordinance.

City officials were also granted leeway by Justice Anderson when they erroneously approved a swimming pool on a property in North Oaks in City of North Oaks v. Sarpal, 797 N.W.2d 18 (Minn. 2011).  Refusing to apply the doctrine of equitable estoppel, Justice Anderson’s decision reversed a ruling of the court of appeals in a case in which city planning officials erroneously told homeowners that they could build a shed without infringing the city’s zoning setback requirements.  Justice Anderson reasoned that the action could not be brought because the wrong information furnished by city personnel was not “anything other than a simple mistake,” which falls short of the requisite wrongful conduct” to activate estoppels.

Career Conclusion

The breadth of these cases reflects the diversity of the decisions of Justice Anderson over his more than two decades on the Minnesota judiciary, first on the court of appeals and later on the supreme court.

These cases notwithstanding, Justice Anderson’s most famous contribution to the law, at least in the public’s mind, may be his declaration from the bench during the Coleman-Franken recount dispute, in which he lambasted one of the lawyers for trying to equate the situation with the Bush-Gore presidential recount.  His admonition to counsel that “[t]his is not Florida … this is Minnesota, we’ve got a case in Minnesota, argue the case in Minnesota,” constituted the slogan for the court’s decision ultimately upholding Franken’s narrow 312-vote margin.  In re Contest of General Election Held on Nov. 4, 2008, 767 N.W.2d 453 (Minn. 2009).

Justice Anderson’s retirement will be a loss to the bench and bar.  But his rulings for Minnesota’s appellate tribunals, including his concurrences and even dissents, remain long-lasting legacies in the law.

 

Marshall H. Tanick, is an attorney with the law firm of Hellmuth & Johnson, PLLC.  He is certified as a civil trial specialist by the Minnesota State Bar Association and frequently writes, teaches, and speaks on issues relating to legal history. The author thanks Brian Christiansen, an associate with the law firm, for contributing to this article.

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