Former Vikings legend leaves a rich tradition of Minnesota Supreme Court decisions and dissents
The departure of Associate Justice Alan Page from the Minnesota Supreme Court last month ends the latest, but certainly not the last, chapter of an extraordinary career.
Oddly, perhaps, he is not the only former Vikings stand-out to transition from professional football to the legal profession. Others—including linebacker Fred McNeil, a prominent class action attorney, and offensive tackle Tim Irwin, now a juvenile court judge in Tennessee—have also made that transition. But Justice Page is the only NFL Most Valuable Player to sit on a state supreme court, as he has done for the past 22 years. In so doing, he became the seventh-longest serving member in that tribunal’s 157-year history.
A native of Canton, Ohio—the site of the Professional Football Hall of Fame, into which he was inducted in 1988—Page was an All-American football player at Notre Dame prior to embarking on a lengthy pro career in 1967. He began his career with the Vikings, helping to lead the franchise to four Super Bowls (albeit losing ones) before a spat with Vikings management led him to conclude his playing days with the rival Chicago Bears. In the meantime, he earned a law degree from the University of Minnesota in the off-season and worked for the Attorney General’s office before his election to the Supreme Court in 1992. (Justice Page will be replaced on the Court by Natalie Hudson, appointed by Governor Mark Dayton from the Minnesota Court of Appeals, where she has served since 2002.)
Page’s compulsory, age-70 retirement from the court offers a fitting occasion to look back at some of his notable decisions on the bench. They range from cutting edge workplace-related litigation to dissents in some notable civil and criminal cases.
Ironically, Page made his way to the court by winning a battle before that tribunal in Page v. Carlson.1 That litigation challenged an action by then-Gov. Arne Carlson extending the term of office of one of the current justices, ostensibly to allow him to qualify for full retirement benefits. The court held that the statutory authorization upon which the governor acted violated the “clear and unambiguous” language of Article VI, §9 of the state constitution, which requires popular election of judges, noting as well that the sitting justice already was entitled to full benefits anyway. Following his election that fall, Justice Page was resoundingly re-elected by the voters three times at six-year intervals.
The first legal battle he addressed on the Court came less than 90 days after mounting the bench. In Bruegger v. Fairbault County Sheriff’s Department,2 he rejected a tort claim by parents of a child abuse victim against a sheriff’s department in southern Minnesota for failing to notify them of their rights under the Crime Victims Reparations Act. Writing for a unanimous tribunal in his maiden matter, Justice Page held that the statute does not create civil liability, noting that “no common law duty required” the sheriff to notify the parents, and the law does not “by its express terms or by implication create a statutory cause of action for such failure to inform.”
Another basic tort doctrine, proximate cause, was addressed by Page a couple of years later. In a case involving a multi-vehicle collision between snowmobile riders on the St. Louis River, the question at hand concerned the liability of the fourth rider in the caravan to the seventh of 11 snowmobilers in the pack.3 Writing for the entire court, he said liability did not exist because the claimant’s “but for” analysis improperly created “a convoluted series” of events necessitating impermissible “speculation and conjuncture” about the “link” between the culpability of one participant and the injuries sustained by another.
In yet another tort case nearly two decades later, Page came down on an online defamation claimant. In a case that overturned the Court of Appeals, he wrote a unanimous decision holding that a Duluth doctor who was the subject of six disparaging online comments by a patient’s son, including one reference to the doctor as a “real tool,” could not sue for libel because the remarks were not actionable false statements of fact, but rather subjective opinions.
Justice Page confronted a number of employment enigmas in his years on the bench.
In Sysdyne Corp. v. Rousslong. he authored a unanimous decision holding that a suburban Hennepin County company sued for interference with contracts for hiring a nearby competitor’s employee was not culpable because of its reasonable, good-faith reliance upon the advice of outside counsel.4 The company was not liable because it made a “reasonable inquiry” and “honestly believed” the attorney’s opinion that the employee’s non-compete agreement was “probably not” enforceable due to overbreadth, even though that advice was wrong.
But Justice Page was not always in the majority on employment issues. In Cummings v. Koehnen, he alone dissented from the Court’s imposition of liability upon a company for “same-sex” harassment by male employees against a male co-worker.5 While agreeing with the report that the Minnesota Human Rights Act extends to same-sex harassment, Page wrote that the offensive behavior, which he labeled “rude and crude,” was not sufficiently severe to create liability. He lamented the decision’s likelihood for generating a “flood of sexual harassment claims” by individuals entitled to “less protection than for those… whom the legislature clearly intended to protect”—that is, women and victims of opposite sex gender bias.
Page’s dissent notwithstanding, the Court’s ruling proved a precursor to a U.S. Supreme Court decision the following year holding that “same-sex” harassment is covered by the Title VII of the Federal Civil Rights Act.6
Justice Page adjudicated a couple of Big Tobacco cases, opining twice for claimants, once in the majority and once in dissent.
In Health Plan, Inc. v. Philip Morris, Inc.7, he answered certified questions from U.S. District Court Judge Paul Magnuson in St. Paul and in misrepresentation litigation by health organizations seeking to recover medical expenses attributable to smoking cigarettes. Page held that a claimant need not be a tobacco purchaser to sue under the state consumer fraud statutes; it is not necessary to plead individual reliance; and that the requisite “causal nexus” has a “component of reliance” between the alleged misrepresentations and damages that may be established in other ways than direct consumer reliance (though he did not specify how to do so).
But Big Tobacco antagonists were disheartened nearly a decade late when, following the lead of the overwhelming majority of jurisdictions, the Court dismissed an individual consumer class action claiming misrepresentation of the safety of “light” cigarettes.8 The majority’s view was that the case was precluded by releases entered into in 1998 in the Big Tobacco national class action litigation, including a portion in Minnesota. But Justice Page, joined by Justice Christopher Dietzen, saw it differently. Dissenting, he wrote that he would have allowed the lawsuit to proceed because its claim of fraudulent and deceptive marketing practice occurred after the settlement and “were not released” in the dispositive documents ruling the historic litigation.
As the state Supreme Court’s first African-American and, for many years, its only such member, Justice Page was vitally concerned with issues of racial discrimination, a matter underscored in some of his decisions.
In State v. Bowles, Page authored the Court’s unanimous ruling in reversing and remanding to the Hennepin County District Court a highly charged first-degree murder case involving the killing of a Minneapolis police officer by a black man.9 The case was sent back to determine whether certain “extraneous prejudicial” features affected the verdict, including allowing testimony by jurors of any “race-based pressure” they may have felt. But in so doing, he upheld the use of an anonymous jury due to potential threats, praising the “adequate precautionary measures” taken by the trial judge to avoid infringing on the defendant’s “presumption of innocence.”
In a similar vein, he reversed and remanded, again for all of his colleagues, in State v. Varner, a Ramsey County District Court case involving the conviction of a black man for ineligible possession of a firearm by a felon.10 The defendant’s conviction was overturned and sent back for re-trial because a racial joke told by one juror to other jurors created “potential prejudicial impact,” warranting a new trial.
Justice Page’s concern about racial inequity was not limited to criminal cases. He dissented in part, along with two women colleagues, Justices Esther Tomljanovich and Sandra Gardebring, in Hasnudeen v. Onan Corp.11 In that case, the Court upheld a judgment for a Fridley employer in a case brought by two ethnic-minority employees alleging that their discharges were racially discriminatory because the employees were engaged in an interracial dating relationship and subjected to harassment due to a hostile environment.
The majority, reversing the Court of Appeals, reinstated the Anoka County District Court ruling for the company on grounds that the terminations were not for any “improper reasons” and that the claimants “made no showing of discretion.” But Justice Page, concurring with denial of the termination charges, opined that the harassment claims were actionable because the trial court’s failure to address the merits of case claims “fosters the perception in communities of color across the state… that the [judicial] system is flawed and stacked against them.”
Justice Page’s dissents in the Cummings same-sex harassment case and the Curtis consumer tobacco case were two of the many he authored on the court, a trend that seemed to increase, particularly in criminal actions, as the tribunal’s ideology shifted away from his liberal-moderate views over the course of the past decade.
In League of Women Voters v. Ritchie12, Page authored a blistering dissent, joined by Justice Paul Anderson, objecting to the majority’s rejection of proposed modifications by the Secretary of State to legislative language describing two ballot questions seeking to amend the state constitution. (One would have prohibited same-sex marriage; the other would have required a photo ID for voting.) . Page wrote that the legislature’s chosen language “deceives and misleads” the voters, terming it “classic bait and switch.” Both measures were ultimately placed before the voters with the terminology composed by the legislature, which Justice Page deemed “Orwellian,” but both were subsequently defeated at the polls, leading to legislation allowing a same-sex marriage the following year.
A number of Page’s strongest dissents occurred in criminal cases. A pair of 2003 cases, near the mid-point of his tenure on the Court, are illustrative.
The Court’s reversal of an assault conviction in State v. Reiners drew a sharp rebuke from Justice Page.13 The defendant, a Caucasian man, was convicted in Hennepin County District Court of assaulting a Hispanic employee for speaking Spanish in the workplace. The Supreme Court reversed the conviction, holding that the district court erred in allowing a peremptory challenge to an African American juror, resulting in a remand of the case. The six-member majority reasoned that the removal of the prospective juror by the prosecution was predicated on impermissible racial grounds.
But Justice Page dissented, opining that the conviction should have been upheld. He analyzed 14 prior rulings of the tribunal involving peremptory challenges to prospective racial or ethnic minority jurors, pointing out that the Court had “deferred to the tribunal court in every previous case.” He bemoaned the Court’s departure from past practice in deciding to “decline to give the trial court any deference whatsoever.” Page lambasted that majority ruling for reflecting “an extremely troublesome trend… that evinces a hostility towards jurors of color.”
Justice Page issued another strongly worded dissent a few months later in State v. Colosimo.14 The case involved the conviction of a fisherman for refusing to allow a warrantless search—without probable cause—of the open area of a boat that was appended to a trailer on dry land. A conservation officer with the Department of Natural Resources (DNR) sought to inspect the boat pursuant to Minn. Stat. §97A.251, subd. 1(3), which allows inspections by DNR officers to determine compliance with fishing laws. Rebuffed by the driver of the vehicle, an Iron Range attorney, the officer cited him with three charges, including failure to allow an inspection at Voyageur’s National Park.
The defendant was convicted in a bench trial, but the conviction was reversed by the Court of Appeals.15 The Supreme Court overturned that ruling, however, and reinstated the lower court conviction holding that fishermen lack a “reasonable expectation” of privacy. The Court declined to impose a probable cause requirement in the inspection statute or to require it under the search and seizure provision of the 4th Amendment.
Justice Page issued a strong dissent. He criticized the court for departing from its ruling in a case from the previous year in, that required DNR officers to have warrants to search ice fishing houses.16 He went further, asserting that the ruling “turns our court’s search and seizure law on its head.” He lamented that the “historic protection of an individual’s right to be free from unreasonable searches” was “effectively eliminated” by the ruling. He closed by expressing fear that the “sweeping decision… has now opened the door for warrantless searches… upon the mere suspicion that an individual is, has been, or will in the future engage in hunting or fishing.”
As his longevity on the Court increased, so did Page’s tendency to use more pointed, vivid rhetoric in some of his dissents.
In State v. Nissalke, he authored a three-member dissent critical of upholding a first-degree murder conviction after a Winona County District Court judge interacted with deliberating jurors.17 Joined by Justices Helen Mayer and Paul Anderson, he quoted from Hamlet to point out that the majority opinion “doth protest too much, methinks” in departing from existing case law holding that such judicial conduct “constitutes reversible error.”
Last year, in Axelberg v. Commissioner of Public Safety, Page was again one of three dissenters objecting to revocation of the driver’s license of a woman arrested for DWI as she fled her abusive husband.18 He sternly criticized the majority for failing to follow the “constitutional mandate to do justice,” along the way consoling the defendant “that losing the privilege to drive is a small price to pay for saving your life.”
Fittingly, Justice Page retired with a flourish, issuing a few striking dissents in his final weeks on the Court. In one of his final acts, Page dissented from a decision relaxing long-standing restrictions on the use of audio and video broadcasting devices in state courtrooms.19 He deemed the approved pilot program for cameras in the courtroom to be devoid of empirical evidentiary support, lamenting the “unfair coverage” of court proceedings and cautioning that “the judiciary shouldn’t play a role in facilitating such coverage.” Echoing his earlier objections to expansion of media coverage, particularly because of its tendency to aggravate racial bias, Page wrote that the “purported benefits of allowing cameras in our courtrooms are, at best, speculative and, at worst, nonexistent.”
Page also objected, along with two colleagues, to recognition of a “good faith” exception to the exclusionary rule in criminal search-and-seizure jurisprudence in State v. Lindquist.20 Disagreeing with the four-member majority’s characterization of the “narrowness” of its holding that law enforcement officials could reasonably rely upon existing, binding appellate precedent in undertaking the warrantless blood test of an apparently inebriated driver, he wrote that the majority’s holding “cavalierly” disregarded the guarantee in Article I, section 8 of the state constitution of a “remedy for all…wrongs.”
A week later, in State v. Taylor, Page found himself dissenting again.21 In that case, six of the Court’s seven justices rejected the contention that a Hennepin County District Court judge had acted impermissibly by requiring all attendees at a highly-charged gang-related murder trial to display a photographic identification. Justice Page, in a solitary dissent, lamented the growing practice by trial judges of closing portions of criminal proceedings and declared it “time to stop the creep” of such closures. In so doing, he pointed out that he had authored two of the leading cases allowing limited closures during closing arguments and the charges to juries.
But the photo ID gambit in this case was “a bridge too far,” Page wrote. He concluded by pointing out, in a closing footnote, the “irony” of the Court expanding media access to court proceedings in the cameras-in-the-courtroom ruling while increasingly permitting trial judges “to lock the courtroom doors” from spectators.
This sampling of decisions cannot do justice to a jurist of so many dimensions and talents. Justice Page’s retirement will not remove him from the public scene or public service. The Page Education Foundation, which he founded with his wife, Diane Sims Page, in 1988, will continue to provide financial assistance to students of color; it has already helped more than 6,000 of them, helping the Pages to earn the Lifetime Achievement Award from the Urban League. He also may keep up his writing, perhaps adding to the two children’s books he has co-authored with his daughter, Kamie; one of his other three children, Justin, is a lawyer with the Minnesota Disability Law Center.
Page has also expressed an interest in a teaching career, which might prove quite fulfilling for a luminary who has been such a positive force on the gridiron, in the community, and in the courts for so many productive years.
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Marshall H. Tanick is an attorney with the law firm of Hellmuth & Johnson in Edina and other Twin Cities locations. He is certified as a Senior Civil Trial Specialist by the Minnesota State Bar Association and frequently writes and lectures about sports, history, and other legal topics. The author wishes to thank Timothy LaCroix, an attorney within the firm, for his research assistance for this article.
1 Page v. Carlson, 488 N.W.2d 274 (Minn. 1992).
2 Bruegger v. Fairbault County Sheriff’s Department, 497 N.W.2d 200 (Minn. 1993).
3 Lubbers v. Anderson, 539 N.W.2d, 398 (Minn. 1995).
4 Sysdyne Corp. v. Rousslong, 860 N.W.2d 347 (Minn. 2015)
5 Cummings v. Koehnen, 568 N.W.2d 418 (Minn. 1997).
6 Oncale v. Sundowner Off-Shore Services, 523 U.S. 75 (1998).
7 Health Plan, Inc. v. Philip Morris, Inc., 621 N.W.2d 2 (Minn. 2001).
8 Curtis v. Altria Group, Inc., 813 N.W. 891 (2012).
9 State v. Bowles, 530 N.W.2d 521 (Minn. 1995).
10 State v. Varner, 643 N.W.2d 298 (Minn. 2002).
11 Hasnudeen v. Onan Corp., 552 N.W.2d 555 (Minn. 1996).
12 League of Women Voters v. Ritchie, 819 N.W.2d 636 (Minn. 2012).
13 State v. Reiners, 664 N.W.2d 826 (Minn. 2003).
14 State v. Colosimo, 669 N.W.2d 1 (Minn. 2003)
15 648 N.W.2d 271 (Minn. Ct. App. 2002).
16 State v. Larsen, 650 N.W.2d 144 (Minn. 2002).
17 State v. Nissalke, 801 N.W.2d 82 (Minn. 2011).
18 Axelberg v. Commissioner of Public Safety, 848 N.W.2d 206 (Minn. 2014).
19 Order Promulgating Amendments to the Minnesota General Rules of Practice, ADM 09-8009 (August 12, 2015).
20 State v. Lindquist, 2015 Minn App. LEXIS 469 (Minn. 8/19/2015).
21 State v. Taylor, No. 14-0942 (Minn. 8/26/2015).