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

Dietzen’s Legacy

Justice Dietzen Retirement Reception
Join us as we celebrate Justice Chris Dietzen’s tenure
on the Minnesota Supreme Court
Wednesday, August 24, 2016 • 5:30-7:30 PM
Windows on Minnesota, Minneapolis

Supreme Court jurist retiring after nearly a dozen years on appellate tribunals

dietzen-chrisThe announcement by Justice Christopher Dietzen this spring that he will resign from the Minnesota Supreme Court at the end of August precipitated diverse feelings.

Some observers were surprised that he was stepping down eight months before reaching the mandatory retirement age of 70 next March. Some partisans were upset, while others were pleased, that the departure of Justice Dietzen—generally a member of the Court’s conservative bloc—gave DFL Gov. Mark Dayton the ability to select his replacement. The governor took advantage of that opportunity early this summer by naming Hennepin County District Court Judge Anne McKeig to the opening. The head of that tribunal’s Family Court, she will be the first Native American to serve on the state Supreme Court. Her appointment will also create a four-woman majority on that bench for the first time since the early 1990s.

McKeig’s is the fifth appointment made by Dayton to the seven-member tribunal (though one of his appointees has since been elevated to the federal bench) and as a result Dayton appointees now comprise a majority of the current Court.

But Dietzen, after eight years on the Supreme Court that followed a stint of slightly more than three years on the Minnesota Court of Appeals, is comfortable with his “early” retirement. He explained that he chose the timing because he felt that allowing the governor to “exercise [his] constitutional authority to appoint [the] successor best serves the judicial branch and the citizens of Minnesota.” He may have been seeking to avert the type of rancorous, partisan judicial elections that have characterized some other states, including neighboring Wisconsin.

Justice Dietzen’s upcoming departure provides an opportune occasion to look back at a potpourri of some of his most notable judicial decisions.

Career Cases

Justice Dietzen began his judicial career in 2004, when he was appointed to the appellate court by Gov. Tim Pawlenty, for whom he served as legal counsel during Pawlenty’s successful 2002 election campaign. Before then, Dietzen was in private practice for 26 years with the Bloomington-based law firm of Larkin, Hoffman, Daly & Lindgren. A native of Yakima, Washington, he graduated from Gonzaga Law School in that state, where he also received his undergraduate degree. That was followed by a four-year spell with a law firm in Spokane.

Prior to ascending to the bench, the jurist-to-be was a skillful litigator with emphasis on land-use planning matters. Although many were resolved out of court, several notable ones made their way to the appellate courts on which he later sat.

He prevailed in defending the City of Afton against an action brought by St. Paul-based Hubbard Broadcasting challenging the denial of a special use permit to construct a satellite tower or seeking compensation for the taking of private property in Hubbard Broadcasting, Inc. v. Afton.1 The determination by the Washington County District Court was upheld on grounds that denial of the permit did not constitute a compensable taking because the broadcaster’s property was not deprived of all reasonable uses.

But he was unsuccessful a decade later in convincing the court of appeals to allow a company that entered into agreements to erect billboards on land in Lakeville to be compensated because the land owner removed the signs after the lessors expressed some interest in developing the land pursuant to a city ordinance requiring removal of nonconforming billboards as a condition for land development. In Naegele Outdoor Advertising Co. v. City of Lakeville,2 the court affirmed a ruling of the Dakota County District Court, holding that the city was entitled to summary judgment. The claim of unlawful taking under the U.S. Constitution, and a parallel provision of Article 1, §13 of the Minnesota Constitution, was not maintainable because the property owners had terminated the company’s leasehold interest, which deprived the company of any compensable interest.

A month later, he suffered a setback before the Minnesota Supreme Court in another land use case involving a challenge to a tax deficiency imposed against all taxable property within the city of Shorewood after the owner refused to pay the entire amount for which it was billed for certain sewage disposal costs by the Metropolitan Waste Control Commission in City of Shorewood v. Metropolitan Waste Control Commission.3 Affirming a ruling of the court of appeals, the Supreme Court held that the lawsuit could not be brought because a writ of certiorari was the “exclusive mechanism” for obtaining judicial review of the city’s claims against the formula used to calculate the sewage disposal costs and the deficiency tax levy against the municipality because the decision-making process constituted a “quasi-judicial action,” reviewable only through certiorari.

Appellate Authorship

On the appellate court, Dietzen authored decisions in a wide range of cases.

The grounds for asserting various negligence employment claims were narrowed by a decision he wrote in Johnson v. Peterson.4 Affirming a ruling of the Beltrami County District Court, he wrote that a claim of negligent training was not actionable under Minnesota law and claims of negligent hiring and negligent supervision also failed because the complaint did not include allegations of actual or threatened physical injury. An allegation of emotional distress (the employee claimed that he suffered emotional distress due to embezzlement by an insurance agent from an insurance carrier) was not maintainable because emotional distress was not the type of physical injury for which relief could be granted in those types of claims.

The subject of ticket scalping triggered a split decision authored by Judge Dietzen for the appellate court in State v. Gabbert,5 a case that arose from the reselling of tickets for a grandstand show at the State Fair. The charge in Ramsey County District Court of scalping advance sale tickets in excess of their face value of $7 was not actionable because the tickets were available at the fairgrounds box office for $8 after the advance sale period ended. As a result, the scalping was not illegal, which was defined as charging a price greater than the tickets issued under Minn. Stat. §609.805, subd. 2(4).

But a charge of violating another portion of the statute—selling a ticket in violation of a condition restricting its transfer—was maintainable, and the court reversed the dismissal of that portion of the complaint. Two years later the case served as a spur for repeal of a 1913 statute barring ticket scalping.

Although he was usually part of unanimous panels on the appellate court, Dietzen occasionally dissented, as in State v. Campbell,6 a criminal case that challenged a conviction in Anoka County District Court for first-degree assault. The appellate court reversed on grounds that the prosecutor committed prejudicial misconduct in closing arguments by “manufacturing” an explanation for the lack of the victim’s blood on an object, even though there was no medical evidence supporting the premise that the item could have caused the injuries. Dietzen’s dissent pointed out that there was no objection to the admission of the item nor to the prosecutor’s statements about it in closing argument. He reasoned that because it was unlikely that the prosecutor’s speculation about the absence of blood had a significant effect on the verdict, it was not prejudicial and the conviction should be upheld.

First Forays

Justice Dietzen’s first forays into the law on the Supreme Court involved criminal actions. In State v. Shriner,7 he authored the decision of the Court allowing the warrantless blood test of a suspected drunk driver.

In his first written decision, Justice Dietzen set aside—over two dissents—rulings of the Dakota County District Court and the court of appeals barring the warrantless extraction of blood. He reasoned that “exigent circumstances” justified the procedure due to the “rapid, natural dissipation of alcohol in the blood.” The issue that the High Court is now considering includes a case from Dakota County. Meanwhile, Justice Dietzen and his state Supreme Court colleagues are revisiting the validity of warrantless DWI testing in a pair of cases heard in early June in which the Minnesota Court of Appeals late last year ruled the process a violation of due process.8

Meanwhile, the U.S. Supreme Court this June re-examined the issue of holding in a North Dakota case, Birchfield v. North Dakota,9 that warrantless breath testing is permissible, but further held that a warrant is needed to subject the driver to a blood test because of its more “intrusive” nature in Bernard v. Minnesota.10

Two months later Justice Dietzen wrote another opinion for a unanimous tribunal, upholding a high-profile first-degree murder conviction in State v. Jones.11 He rejected claims of various types of professional misconduct that were not subject to objection at the trial in Sherburne County District Court. The failure to allow “alternative perpetrator evidence” led to reversal of the first conviction for murder during a sexual assault of a neighbor four years earlier in State v. Jones12 (Jones I). But this time, after a second trial and conviction, the Court affirmed on grounds that the claimed episodes of misconduct did not rise to the level of “plain error” warranting appellate review and the matters were all “harmless” because they “did not prejudice [any] substantial rights.”

Several recurring issues in gang-related criminal litigation under Minn. Stat. §669.229, subd. 2, were addressed by Judge Dietzen for the court in State v. Yang.13 The case arose out of a murder that occurred at a pool hall in Columbia Heights. The conviction was challenged on several grounds, including the admission of expert witness testimony and exhibits regarding gang activity to support six statutory counts of crimes committed for the benefit of a gang under Minn. Stat. §669.229, subd. 2.

Justice Dietzen wrote that the gang-related testimony was properly admitted. Although testimony about gang activity was not relevant, its admission by the Anoka County District Court was harmless because it did not substantially influence the jury’s decision.

Dietzen also authored a unanimous decision upholding the certification of a juvenile to be tried as an adult in connection with the gang-related rape of a 14-year old girl in Minneapolis in In re Welfare of J.H.14 Overruling the appellate court, he wrote that the Hennepin County District Court did not err in concluding, after a three-day hearing, that the youth failed to overcome the statutory presumption in favor of certification under Minn. Stat. §260B.125, subd. 4 by the requisite “clear and convincing” evidentiary standard. The trial court “did not obfuscate discretion” in its assessment of the “public safety” factors included in the severity of the offense.

Civil Cases

Land use, a major focus of Justice Dietzen’s pre-judicial private practice, was the topic of a ruling he authored in Big Lake Association v. St. Louis County Planning Commission,15 involving a challenge to a planning commission’s decision allowing conversion of an existing resort into communal housing as well as the addition of 11 new cabins to the facility. Affirming a decision of the court of appeals, he rejected a challenge by property owners on the lake adjoining the resort, reasoning that the opposition to the zoning determination was waived because it was not timely raised for consideration by the landowners before the planning commission. Even if not waived, the commission had a reasonable basis to regard the proposal as a Commercial Planned Unit Development (CUP), which was permissible, rather than an impermissible residential facility not susceptible to CUP treatment.

Failure to give proper written notice barred a product liability claim by a supplier against a paint manufacturer for damages arising out of defective paint supplies in his decision in Valspar Refinish, Inc. v. Gaylord, Inc.16 The case was brought by Minneapolis-based Valspar, the supplier, seeking damages for defective materials it purchased from the manufacturer. Valspar recovered damages as well as achieved summary judgment against a counterclaim by the manufacturer,  which refused to continue purchasing product from Valspar under a five-year contract on grounds that the paint materials were defective.

But Justice Dietzen affirmed the ruling of the appellate court, upholding summary judgment for Valspar on the counterclaim because the manufacturer failed to give written notice of default as required by the contract and, therefore, breached the agreement when it stopped purchasing products under the supply agreement. There was insufficient evidence that Valspar, the supplier, had waived its right to receive written notification of various alleged defects in the product. Although Valspar was aware of the problem and tried to solve it, there was no indication that it intended to surrender its rights under the contract requiring written notice of defects.

The standard for tortious interference with prospective advantage was addressed by Justice Dietzen in Gieske v. IDCA, Inc.17. Reaffirming that the doctrine constitutes a “viable claim” under Minnesota law, he set a high bar with a five-part test that the claimant failed to satisfy, resulting in reversal of a $230,000 verdict in a bitter internecine business dispute. The five elements required to be established by the Court consist of: a reasonable expectation of economic advantage; defendant’s knowledge of the expectatation;  intentional interference; reasonable probability of economic harm; and actual damages. He found that the “damages were speculative” because of inability “to specifically identify any third parties” who had been the subject of the claimed interference.

Dissenting Decisions

Justice Dietzen was an occasional dissenter in both civil and criminal cases.  Of the 167 decisions he participated in  from 2008 through 2015,  Justice Dietzen was in the majority 134 times,  dissenting only 33 times, according to a study by Marquette University professor Alan Ball. His voting with the majority 80 percent of the time was virtually the same as Chief Justice Lori Gildea, compared to a majority rate of 89 percent for Justice G. Barry Anderson, the other member of the current trio of jurists who have served during that entire period.

One of his notable dissents involved the Court’s allowing a “loss of chance” claim in a medical malpractice case for failure to diagnose cancer in Dickhoff v. Green.18 The court overturned summary judgment, reasoning that an expert affidavit in support of the claim stated that improper diagnosis caused additional medical treatments, increased the likelihood of the cancer’s recurrence, and decreased the chance of survival by at least 20 percent, giving rise to a lost opportunity claim of negligence. The case was remanded for trial.

But Justice Dietzen, joined by Chief Justice Lori Gildea, disagreed. He cited two prior cases rejecting the loss-of-chance doctrine and opined that the majority’s decision undermined
traditional principles of causation and violated fundamental fairness by holding physicians liable for harms not caused by their own negligence.

He issued another dissent in a criminal case, State v. Koppi,19 disagreeing with his colleagues over their reversal of the conviction of a driver for refusing to chemical testing under Minn. Stat. §169A.20, subd. 2. The majority held that the Hennepin County District Court erred by incorrectly instructing the jury, giving a “purely subjective definition of probable cause.” But Justice Dietzen, joined again by Chief Justice Gildea, dissented, viewing the error in instruction as harmless because there was no “reasonable possibility [the] incorrect instruction had a significant impact on the outcome.” Further, he thought the evidence showed that the officer had “probable cause to believe [the] driver was driving while impaired,” even though the officer did not actually observe erratic driving behavior. Justice Dietzen felt that the probable cause arose after the driver was stopped for speeding and the officer then observed indicia of intoxication, including bloodshot eyes and the smell of alcohol on his breath.

Career Conclusion

The career of Justice Dietzen has come full circle, as he concludes his nearly dozen years on the bench.

In one of his final decisions for the Court this spring, shortly after announcing his resignation, Justice Dietzen returned to his criminal opinion roots. In State v. Huber,20 he wrote the majority opinion overturning a second-degree murder conviction and a 40-year sentence on grounds of accomplice-liability for a man charged with assisting his father in gunning down a teacher on a farm in Kandiyohi County. The son accompanied his father to the site, drove him away from the scene, and drove him back later, giving rise to the conviction on accomplice grounds. But Justice Dietzen wrote that the trial court gave erroneous jury instructions by failing to explain that the prosecution had to prove, beyond a reasonable doubt, that the son “knew his alleged accomplice was going to commit a crime,” and that he “intended his presence [at the scene] or actions to further” the offense. As a result, the incident, which occurred in 2011, will be subject to re-trial in Kandiyohi County District Court.

Justice Dietzen’s long career as a lawyer and jurist is well reflected in these cases, exemplifying the diversity of his work at the bar and on the bench.

MARSHALL H. TANICK is an attorney with the law firm of Hellmuth & Johnson, PLLC, with offices in Edina, Minneapolis, St. Paul, and St. Louis Park. He is certified as a Senior Civil Trial Specialist by the Minnesota State Bar Association and is a member of the State Supreme Court Historical Society. The author wishes to thank Paul Buchel, a law clerk with the firm, for his contribution to this article.


1 Hubbard Broadcasting, Inc. v. Afton, 323 N.W.2d 757 (Minn. 1982).

2 Naegele Outdoor Advertising Co. v. City of Lakeville, 532 N.W.2d 249 (Minn. App. 1995).

3 City of Shorewood v. Metropolitan Waste Control Commission, 533 N.W.2d 402 (Minn. 1995).

4 Johnson v. Peterson, 734 N.W.2d 275 (Minn. App. 2007).

5 State v. Gabbert, 693 N.W.2d 475 (Minn. App. 2005).

6 State v. Campbell, 207 Minn. App. LEXIS 470 (Minn. App. May 22, 2007) (unpublished).

7 State v. Shriner, 751 N.W.2d 538 (Minn. 2008) cert. denied, 2009 U.S. LEXIS 614 (1/21/2009).

8 State v. Trahn, AB-0931 and State v. Thompson, A15-0076.

9 Birchfield v. North Dakota, 195 L.Ed.2d 560 (June 23, 2016)

10 Bernard v. Minnesota, 195 L.Ed.2d 560 (June 23, 2016).

11 State v. Jones, 753 N.W.2 677 (Minn. 2008).

12 State v. Jones, 678 N.W.2d (Minn. 2004).

13 State v. Yang, 774 N.W.2d 539 (Minn. 2009).

14 In re Welfare of J.H., 844 N.W.2d 28 (Minn. 2014).

15 Big Lake Association v. St. Louis County Planning Commission, 761 N.W.2d 487 (Minn. 2009).

16 Valspar Refinish, Inc. v. Gaylord, Inc., 764 N.W.2d 359 (Minn. 2009).

17 Gieske v. IDCA, Inc., 844 N.W.2d 210 (Minn. 2014).

18 Dickhoff v. Green, 836 N.W.2d 121 (2013).

19 State v. Koppi, 798 N.W.2d 358 (Minn. 2011).

20 State v. Huber, 877 N.W.2d 519 (Minn. 2016).

Leave a Reply

Articles by Issue

Articles by Subject