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

Notes & Trends – July 2018


• Data Practices Act; ‘substantial evidence’ standard of review. In an important case under the Minnesota Government Data Practices Act, the Minnesota Supreme Court held that the ‘substantial evidence’ standard of review applies to data practices disputes heard by administrative law judges and clarified the act’s requirement that data requests be handled promptly.

Webster requested emails and other data on Hennepin County’s plans to use biometric identification technology in law enforcement and other settings. Webster and the county went back and forth on his request for several months, until Webster finally filed a data practices complaint with the Office of Administrative Hearings. After a hearing, the administrative law judge (ALJ) found that the county failed to respond to the request promptly and did not store its email in an arrangement and condition making them convenient to use. The court of appeals reversed on these points but agreed with Webster that the statute did not create an exception for “unduly burdensome” data requests, as the county had argued. Webster then appealed to the Minnesota Supreme Court. 

At the outset, the Court held that it would review the ALJ’s order under the substantial evidence standard in the state administrative procedure act, Minnesota Statutes section 14.69(e). The Court rejected Webster’s argument that the ALJ’s conclusions of law were entitled to deference, noting that the ALJ’s order in a data practices dispute is “not a routine administrative law dispute” because it did not involve a decision by a “board, committee or commissioner.” On the other hand, the Court said that it would not engage in a pure de novo review as urged by the county. Instead, the Court held, the appropriate standard is whether the ALJ’s decision was supported by substantial evidence in view of the entire record, as provided in the administrative procedure act. 

Applying this standard, the court found substantial evidence to support the ALJ’s finding that the county’s procedures failed to “insure ‘requests for government data are received and complied with in an appropriate and prompt manner.’” The Court rejected the county’s argument that a single violation of this nature should not be actionable, observing that nothing in the act requires evidence of a “pattern or practice” to establish a violation.

However, the Court found that there was not substantial evidence in the record to support the ALJ’s conclusion that the county failed to maintain email in an arrangement and condition making them easily available and convenient to use. The Court noted that the Microsoft email system used by the county was configured normally and that county officials could conduct keyword searches of the system responsive to data requests. 

On the issue of whether the act includes an implicit exception for “unduly burdensome” requests, the Court found that it lacked jurisdiction to address the question because Webster (as appellant in the Supreme Court) lacked standing to appeal an issue on which he prevailed below. This portion of the Court’s opinion prompted a partial dissent from Justice Chutich, who argued that the county’s filings raised the issue in a manner sufficient for the Court to exercise jurisdiction. Webster v. Hennepin County, 910 N.W.2d 420 (Minn. 2018).

Mehmet Konar-Steenberg

Mitchell Hamline School of Law



• Sentencing: Defendant must prove inaccuracy of criminal history score upon motion to correct sentence after time for direct appeal has passed. Appellant pleaded guilty to first-degree aggravated robbery in Otter Tail County. In a promoting prostitution case in Hennepin County, it was agreed that he would plead guilty in exchange for a joint recommendation that his sentence be 96 months, concurrent to his Otter Tail County sentence. Appellant’s guilty plea was entered in Hennepin County in November 2012, and he was sentenced to 96 months. A pre-sentence report calculated his criminal history score at six, including 2.5 points for three prior Illinois convictions. He was sentenced in Otter Tail County in January 2013. The pre-sentence report included criminal history points for his Hennepin County conviction, three Indiana convictions (1.5 points), and two Illinois convictions (2.5 points). The court found the bottom of the presumptive range to be 92 months based on appellant’s criminal history, not the 84 months contemplated in the plea agreement, and sentenced appellant to 92 months, concurrent to his Hennepin County sentence. Appellant did not contest his criminal history score calculations before either district court, nor did he directly appeal either sentence. Later, however, he filed a motion to correct both sentences, which the district courts denied. 

The Supreme Court notes that this case is its first occasion to determine which party has the burden of proving the accuracy of a criminal history score in a post-appeal motion to correct a sentence. Here, the specific issue is which party has the burden to prove appellant’s Illinois convictions would have been felonies in Minnesota and sentenced as such, so that they were properly included in his criminal history score calculations. Minn. R. 27.03, subd. 9, permits a district court to correct a sentence not authorized by law at any time. A sentence based on an incorrect criminal history score is not authorized by law, but the rule is silent as to who is required to prove the accuracy of the criminal history score upon a motion under the rule. 

The Supreme Court notes that the burden of proof is generally placed on the defendant in a postconviction context, and that a Rule 27.03, subd. 9, motion, like a postconviction petition, is akin to a collateral attack on a final judgment. Because the burden is on the defendant in a postconviction context, the Court finds that the burden should similarly be placed on the defendant in a Rule 27.03, subd. 9, context. This conclusion is bolstered by cases interpreting the federal rule on which Minnesota’s Rule 27.03, subd. 9 is based, which place the burden of proof on the defendant to prove the illegality of his sentence. Tramayne Colfred Williams v. State, 910 N.W.2d 736 (Minn. 4/25/2018). 

• Sentencing: Probable cause standard applies to determination of whether aggravating sentencing factor should be submitted to jury. In respondent’s drug case, the state provided notice of its intent to seek an aggravated sentence based on two factors: commission of the drug offenses in the presence of a child and respondent’s two or more prior violent crime convictions, and asked the court to determine if the law and proffered evidence supported presenting aggravating factors to the jury. The district court did not allow aggravating factors to be presented to the jury, and the state appealed, arguing the district court applied the incorrect standard. 

If, as here, the state provides sufficient notice of its intent to seek an aggravated sentence, Minn. R. Crim. P. 11.04, subd. 2(a), requires the district court to determine whether the law and proffered evidence support an aggravated sentence. The rule, however, does not provide a standard for the court to apply. Because probable cause is required for every element of an offense, the court of appeals reasons that the standard should be extended to factors used to enhance a sentence. 

The court reverses the district court’s conclusion that the state failed to present sufficient evidence to present both aggravating factors to the jury, finding the proffered evidence satisfied the probable cause standard as to each aggravating factor. State v. Donyale Damon Gayles, 2018 WL 1998330 (Minn. Ct. App. 4/30/2018).

• Sentencing: Minn. Stat. §617.247’s 10-year conditional release term required only if conviction and sentence for qualifying offense prior to commission of present offense. Appellant committed child pornography and first- and second-degree criminal sexual conduct offenses. In August 2009, he committed criminal sexual conduct, and entered a plea to second-degree criminal sexual conduct in January 2010. Adjudication on the criminal sexual conduct charge was stayed in April 2010, but a sentence was eventually executed in January 2012 after two probation violations. The child pornography offense was committed first, in June 2009, but he did not plead guilty to and was not sentenced for that offense until October 2012. As part of that sentence, the court imposed a 10-year conditional release term, which appellant argues was unlawful.

Minn. Stat. §617.247, subd. 9, mandates a 10-year conditional release term if a defendant “has previously been convicted of a violation of this section.” Otherwise, the conditional release term is five years. “Has previously been convicted” is not defined in the statute, and the court finds it is ambiguous because it lacks “temporal precision”—that is, it does not indicate the point in time at which the qualifying conviction must have existed to constitute a previous conviction that triggers imposition of the 10-year conditional-release term. 

Applying the canon in pari materia, the court looks to Minn. Stat. §609.3455, subd. 1(f), which defines “previous sex offense conviction” in the dangerous sex offender statute. The court holds that a sentencing court must impose the 10-year conditional release term under §617.247, subd. 9, only if the offender has been convicted and sentenced for a qualifying offense before the commission of the present offense. Appellant was not convicted and sentenced for a qualifying offense (here, the criminal sexual conduct offense) before he committed the child pornography offense. As such, the 10-year conditional release period was not permitted by statute. State v. Everett Overweg, 2018 WL 1996958 (Minn. Ct. App. 4/30/2018). 

• Sentencing: “Merged” or “combined” conviction not permitted. Appellant pleaded guilty to two counts of illegal possession of a firearm. The presumptive disposition was a 72-month commitment. At his plea hearing, appellant admitted to possessing a pistol on or about 3/7/2016, so he could benefit or further the efforts of a gang, when he knew he was prohibited from possessing firearms. The district court sentenced appellant to 72 months on count 1, stating that “[c]ount 2 will merge with count 1.” The warrant of commitment indicated convictions for both illegal possession of a firearm in furtherance of gang activity and illegal possession of a firearm, and stated the sentence for count 2 was “combined with count 1.” 

The court of appeals finds the district court erred in entering a conviction on count 2. A defendant cannot be convicted of one offense and a lesser-included offense on the basis of the same criminal act. Where a crime is committed for the benefit of a gang, the underlying crime is an included crime. The district court erred in entering convictions on both counts on the warrant of commitment. The sentencing transcript shows the court speaking of convictions or counts “merging” and of sentences “combining,” but these are not legally recognizable terms. Appellant pleaded guilty to both counts, but the court should have entered a conviction only on count 1. So, while appellant is entitled to have his conviction on count 2 vacated, he is not entitled to have the underlying finding of guilt vacated. Resentencing is not necessary, because appellant was sentenced only on count 1. State v. Ohagi Charles Walker, 2018 WL 2187036 (Minn. Ct. App. 5/14/2018).

• Physician-patient privilege: Seizure of patient’s blood pursuant to warrant not a violation of physician-patient privilege. Law enforcement found respondent bleeding from his head, lying in the street following an ATV accident, and smelled alcohol on his breath. A deputy also smelled alcohol on respondent’s breath before he was taken to a hospital, where he received a blood transfusion. The deputy learned the first hospital stored a vial of respondent’s blood in the lab, and he obtained a search warrant to seize it for testing. Testing later revealed respondent’s blood alcohol concentration was 0.155. Prior to his trial for fourth-degree DWI, the district court granted respondent’s motion to suppress the blood sample and test results as “information” subject to the physician-patient privilege. 

The privilege prohibits a physician from disclosing “any information or any opinion based thereon… acquired in attending the patient in a professional capacity, and which was necessary to enable the professional to act in that capacity,” without the patient’s consent. Minn. Stat. §595.02, subd. 1(d). The court of appeals finds statements from prior cases regarding the scope of the privilege in the context of physical articles, such as bottles of pills and a blood sample, to be mere dicta and not binding. Because “information” is not defined in section 595.02, the court looks to dictionary definitions, which indicate that “information, by nature, is not physical and is about something.” A blood sample, instead, is material and does not, by itself, provide information, so is not covered by the physician-patient privilege. The district court is reversed. State v. Heath Allen Atwood, 2018 WL 1998326 (Minn. Ct. App. 4/30/2018).

• Implied consent: Due process violation only if driver submits to test after relying on inaccurate advisory. Respondent was arrested for driving under the influence of a controlled substance. The implied consent advisory was read to respondent, which stated that refusal to submit to a urine test was a crime. Respondent refused both urine and blood tests, and his license was revoked. The district court and court of appeals both held respondent’s license revocation should be rescinded, agreeing that the implied consent advisory was misleading, because it incorrectly stated that refusal to submit to a urine test was a crime, relying on McDonnell v. Commissioner of Public Safety, 473 N.W.2d 848 (Minn. 1991). 

On appeal, the Commissioner argues that, because respondent refused testing, he did not rely on the advisory to his detriment and no due process violation occurred. Respondent argues the violation occurred when the legally inaccurate advisory was read. The Supreme Court clarifies that McDonnell recognized a due process violation under these circumstances only when (1) the person whose license was revoked submitted to a chemical test, (2) the person prejudicially relied on the advisory in deciding to undergo testing, and (3) the advisory did not accurately inform the person of the legal consequences of refusing to submit to testing. Because respondent did not submit to chemical testing, the first two elements are missing here. Respondent is not entitled to a rescission of his license revocation. Tyler Lee Johnson v. Comm’r Pub. Safety, 911 N.W.2d 506 (Minn. 5/2/2018).

In a case raising similar arguments, the Supreme Court again refused to rescind appellant’s driver’s license revocation. Following his DWI arrest, appellant’s driver’s license was revoked after a blood test showed his alcohol concentration was over the legal limit. Prior to the test, he was read the implied consent advisory, which appellant argues was inaccurate, necessitating the rescission of his license revocation. Relying on Johnson v. Comm’r Pub. Safety, 911 N.W.2d 506 (5/2/2018), the Supreme Court finds that appellant’s license revocation was not improper. Appellant fails Johnson’s 3-part test, because, although he did submit to a chemical test, he did not show he prejudicially relied on the advisory in deciding to submit to the test. Mitchell Edwin Morehouse v. Comm’r Pub. Safety, 911 N.W.2d 503 (Minn. 5/2/2018).

• Confrontation clause: No contact order violates confrontation clause if it prohibits defendant from cross-examining witness. The district court issued a no contact order in appellant’s domestic assault case, prohibiting contact with the alleged victim, including in court. Appellant represented himself and declined to cross-examine the alleged victim following her testimony at trial, to avoid violating the court’s order. The jury found appellant guilty of domestic assault.

The no contact order prohibited appellant from having contact with the victim even when “at the courthouse for a court appearance,” and contained no exception for cross-examination. When the district court became aware that appellant interpreted this to mean he could not cross-examine the victim or he would face additional punishment, the district court was obligated to expressly allay appellant’s stated burden on his cross-examination. The court of appeals finds that this error was not harmless and that appellant is entitled to a new trial. State v. Anton Leo Schloegl, III, 2018 WL 2090400 (Minn. Ct. App. 5/7/2018).

• Controlled substances: Second-degree controlled substance conviction requires proof of unlawful possession. After transporting appellant to jail, police found a baggie containing methamphetamine in the back seat of the squad car. Prior to being placed in the car, appellant and the squad car had been thoroughly searched. Appellant was charged with and convicted of second-degree controlled substance crime. He argues on appeal the state did not prove beyond a reasonable doubt he unlawfully possessed methamphetamine. 

By statute, a person is guilty of second-degree controlled substance crime if he unlawfully possesses methamphetamine. Minn. Stat. §152.022, subd. 2(a)(1). The state argues possessing methamphetamine is always illegal. However, possession of a physician-prescribed methamphetamine is lawful. Thus, unlawfulness is an element of second-degree controlled substance crime and must be proved by the state beyond a reasonable doubt. Here, the court of appeals finds that the state presented ample circumstantial evidence of appellant’s unlawful possession of methamphetamine and affirms appellant’s conviction. State v. Jeremy Jake Clarin, 2018 WL 2187179 (Minn. Ct. App. 5/14/2018).

• DWI: Pre-test right to counsel not triggered unless implied consent advisory read. Appellant was arrested for DWI and taken to jail, where he was asked to submit to a urine test without police reading to him the implied consent advisory. He consented and the urine test revealed controlled substances. He was charged with second-degree DWI. The district court granted appellant’s motion to dismiss the test results, finding that, by failing to read the implied consent advisory, the police failed to allow appellant to vindicate his right to counsel prior to testing, under Friedman v. Comm’r Pub. Safety, 473 N.W.2d 828 (Minn. 1991). The court of appeals reversed.

The Supreme Court holds that the limited right to counsel before deciding whether to submit to chemical testing, recognized in Friedman, applies only in implied consent cases—that is, when the implied consent advisory is actually read, “because of the unique decision and consequences that come with the reading of the advisory” (possibly providing the police with evidence, license revocations, possibly more severe criminal consequences for refusal). Thus, it was error for the district court to suppress the urine test results in this case. State v. Scott Ross Hunn, 2018 WL 2223746 (Minn. 5/16/2018). 

• Search and seizure: Applying three-factor Winston v. Lee test to procedure used to remove narcotics from rectum does not violate 4th Amendment. At the police station after his arrest following a controlled buy, appellant was observed attempting to insert something in his rectum and a strip search revealed plastic coming from appellant’s anus. Police obtained a warrant authorizing hospital staff to use any medical/physical means necessary to retrieve the item from appellant’s anus. Appellant refused a liquid laxative and other less-invasive measures. Appellant was then sedated and an anoscopy was performed, during which a baggie containing crack cocaine was removed. Appealing his fifth-degree drug conviction, appellant argues the procedure by which the cocaine was removed violated his right against unreasonable searches and seizures.

Winston v. Lee, 470 U.S. 753 (1985), articulated three factors to consider when determining whether a medical procedure search is reasonable, assuming threshold probable cause and search warrant requirements are met: (1) the extent to which the procedure may threaten the safety or health of the individual; (2) the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity; and (3) the community’s interest in fairly and accurately determining guilt or innocence. The court of appeals finds the record shows that an anoscopy poses minimal health risks and is not a complicated procedure. However, the procedure is an extreme infringement on appellant’s dignitary interests. Finally, though, the court finds that drugs found during the anoscopy were the only direct evidence of appellant’s crack cocaine possession, and the community has a strong interest in prosecuting those who sell illegal drugs. Although a search warrant or applicable exception is a separate, threshold requirement, it also informs the reasonableness analysis under the third Winston factor. Here, there was a warrant issued. 

Balancing the three Winston factors, the court affirms the district court’s decision to deny appellant’s motion to suppress the evidence obtained as a result of the anoscopy, holding that the procedure was reasonable under these circumstances. State v. Guntallwon Karloyea Brown, 2018 WL 2407195 (Minn. Ct. App. 5/29/2018).

• Murder: State must prove “without intent to effect the death of any person” element of third-degree murder. Appellant was charged with third-degree murder, criminal vehicular homicide, and criminal vehicular operation after she crashed her vehicle into a city maintenance vehicle, killing one occupant and seriously injuring the other. After a stipulated facts trial, the district court found appellant guilty on all counts, finding appellant’s conduct was a suicide attempt, but that there was no evidence she intended to kill anyone else. On appeal, appellant argues that the district court erred in finding she had not established a mental illness defense and that the state did not prove she acted “without intent to effect the death of any person.”

The court of appeals holds that the phrase in Minn. Stat. § 609.195(a) “without intent to effect the death of any person” is an element of third-degree murder. The court finds the lack of intent integral to the definition of third-degree murder, which was intended to cover cases involving reckless and wanton acts committed without special regard to their effect on any particular person. The state argues that the statute is unclear as to whether “any person” includes the defendant—that is, here, whether appellant’s intent to kill herself qualifies as an intent to effect the death of “any person”—rendering the statute ambiguous. However, the court concludes that the plain meaning of “any person” extends to any and all persons, including the actor, so the statute is not ambiguous. 

The record in appellant’s case contains insufficient evidence to prove appellant acted without the intent to effect the death of any person, because the district court found the evidence proved appellant intended to effect her own death. Thus, the court finds the district court did not err in finding appellant did not establish a mental illness defense, but reverses appellant’s third-degree murder conviction. State v. Marie Jessica Hall, 2018 WL 2407194 (Minn. Ct. App. 5/29/2018).

• Electronic solicitation of a child: Direct communication with minor not required. A sheriff’s deputy posed as a 16-year-old girl and texted appellant in a response he left on the deputy’s 17-year-old daughter’s car while she was at work. During the text exchange, appellant sent sexually explicit messages relating to a planned meeting between appellant, the fictitious 16-year-old, and her fictitious 15-year-old friend. Appellant was arrested driving to the meeting and eventually convicted of electronic solicitation of a minor and fifth-degree possession of a controlled substance.

The court of appeals considers for the first time whether a person may solicit a child through an intermediary. A child is defined as a person 15 years or younger, and appellant argues he did not solicit a child because he never directly contacted the fictitious 15-year-old. To “solicit” includes attempting to persuade someone. The statute at issue, Minn. Stat. §609.352, subd. 2a(1), does not require that the person persuade a child through direct communication. Also, the court of appeals previously found that electronic solicitation of a child may be committed through a defendant’s contact with an undercover police officer, and federal courts interpreting a similar federal statute have found that a person can persuade or induce a child to engage in sexual activity through an intermediary. Thus, the court holds that an individual who makes statements to an intermediary with the objective of getting a child to engage in sexual conduct is guilty of violating Minn. Stat. §609.352, subd. 2a(1). State v. Gary Stephen Gundy, 2018 WL 2407191 (Minn. Ct. App. 5/29/2018).

Samantha Foertsch

Stephen Foertsch

Bruno Law



With the 2018 regular session of Minnesota’s 90th Legislature in the rearview mirror, we wanted to take the opportunity to highlight notable bills related to environmental law that passed both the House and Senate and were either signed into law or vetoed by Gov. Dayton (and there were plenty in the second category!). The following list identifies, in no particular order, first those that were signed into law and then those that were vetoed. 


• H.F. No. 2802: Effluent Limitations; Compliance. This bill allows for postponement of compliance for additional new or modified effluent limitations by municipalities that have begun construction of a publicly owned treatment works facility in order to comply with previous new or modified effluent limitations. The bill is designed to postpone the additional capital investment required by the municipalities for a period of 16 years from the date the facility begins operations. The justification for the bill is to provide municipalities with certainty that the investment they make in in constructing new publicly owned treatment works facilities won’t require additional updates for a set number of years. This law has a retroactive effective date of 8/1/2017.

• H.F. No. 3232: Solar Energy Incentive Program. This bill allows the amending of Xcel Energy’s Solar Rewards program, providing incentives for the installation of solar energy systems. The bill accomplishes two things: first; it increases the maximum capacity of one or more solar energy systems operating at the same location from 20kW to 40kW; second, it allows Xcel Energy to include systems up to 40kW to be counted toward Xcel’s solar energy standard.

• S.F. No. 3182: Fugitive Emission Standards for Agricultural Commodity Facilities. This bill exempts storage facilities that temporarily store grain (like grain bins, silos, and bunkers) located at commercial dry bulk agricultural commodity facilities (such as grain elevators) from the Minnesota Pollution Control Agency’s (MPCA) prohibited dust emission standards (measured in percentage of atmospheric opacity). However, the grain storage facility must be made of asphalt, concrete, or similar material. Furthermore, the portable equipment directly associated with the storage facilities, like augers and conveyors, are also exempt from MPCA’s prohibited dust emission standards. However, the equipment must be freely movable and not fixed to any one spot. The bill was enacted to address the determination that there was no applicable specific standard of performance.

• H.F. No. 3819: Ramsey Soil and Water Conservation District Discontinued. This bill authorizes the dissolution of the Ramsey Soil and Water Conservation District. The Ramsey County Board of Commissioners will inherit all the duties, authorities, and assets of the Conservation District. Furthermore, the Board of Commissioners will be substituted for the Conservation District’s current contracts with other parties. The bill allows for the Soil and Water Conservation District to be reestablished if the Board of Commissioners petitions the Minnesota Board of Water and Soil Resources to do so.  

• H.F. No. 3660: Terms of Settlement Between the State and 3M Company. This bill establishes the account and codifies the terms of agreement between Minnesota and 3M for the 2/20/2018, settlement over water contamination in the east metropolitan area. The $720 million fund will be appropriated by the Commissioner of MPCA and Commissioner of the Department of Natural Resources (DNR). The bill requires the commissioners to implement a plan detailing how the priorities of enhancing the quality, quantity, and sustainability of drinking water for the east metro residents will be met and to work with local stakeholders to identify projects to be funded by this account. The bill requires annual reporting to the Legislature of how the money is spent. The MPCA must test private wells in the area and report the results to a webpage to provide east metro residents information on well advisories and trends in pollutant contamination in the wells.

• H.F. No. 3423: Natural Resources Department Policy Provisions Modifications. This bill modifies four policy provisions as recommended by DNR. The first modification allows DNR Commissioner to appoint attorneys or outside counsel to represent the state in proceedings related to road vacations, or the transferring of right-of-way of a public road to a private property owner. The second modification exempts forest officers and wildland firefighters from training, education, and certification requirements related to general firefighter certification. The third modification allows any licensed DNR attorney to represent the Commissioner in district court as well as small claims court in proceedings related to misdemeanor violations of the Wildfire Act. The last modification removes a provision that subjects a firewood dealer to a $100 penalty for each sale of non-approved firewood sold for use on land controlled by DNR.

• H.F. 3210: Modifications to County Authorization for Storm and Sanitary Sewer Systems. Minn. Stat. §444.075, subd. 1a, authorizes municipalities to construct and maintain waterworks, sanitary sewer, and storm sewer systems. The statute extends the same authorization to all counties (in county areas other than municipalities or sanitary districts) except for those counties in the seven-county metropolitan area. H.F. 3210 removed the exception for counties in the seven-county metropolitan area, such that all counties in the state are now treated equally under section 444.075, subd. 1a.    

• S.F. 3596: Modifications to Minimum Biodiesel Content of Diesel Fuel. Subdivision 2 of Minn. Stat. §239.77 establishes a minimum percentage of biodiesel (currently 20%) that must be included in diesel fuel sold from April through September. During the rest of the year, the minimum biodiesel content is 5%. S.F. 3596 alters the minimum biodiesel content for the first half of April only, reducing it from the current 20% to 10%.


• H.F. No. 3759: Pipeline Certificate of Need/Route Permit. This bill proposed to terminate the ongoing review process being conducted by the MN Department of Commerce and the MN Public Utilities Commission concerning the need and justification for the Enbridge Energy pipeline traversing northern Minnesota. With the termination of the review process, Enbridge Energy would have been given the sole discretion to construct the pipeline along the route Enbridge originally proposed in its application.

• H.F. No. 4133: Omnibus Agriculture Policy Bill. This proposed omnibus bill would have expanded eligibility for the Agricultural Best Management Practices (AgBMP) loan program to include public drainage ditch authorities. Additionally, this bill would have set rules requiring the MPCA, for purposes of any construction, discharge, or other permits issued by the agency, to classify saltwater aquatic farms and facilities in Minnesota that process saltwater aquatic life as agricultural operations. Additionally, the bill proposed to prevent the MN Department of Agriculture from using the Groundwater Protection Act to authorize the adoption of mandatory rules or water resource protection requirements for nitrogen fertilizer.

• H.F. 3280 & 3422: Wild Rice and Sulfate. Both of these bills sought to clarify the regulation of sulfate affecting wild rice waters after an ALJ rejected MPCA’s proposed rule on sulfate and wild rice earlier this year and MPCA subsequently withdrew the rule. H.F. 3422 was a revised and simplified version of H.F. 3280. Among other things, H.F. 3422 would have limited MPCA’s ability, pending another round of rulemaking, to impose sulfate treatment requirements in NPDES/SDS permits based on the current numeric sulfate standard in Minn. R. 7050.0224 or to list wild rice waters as impaired for sulfate. The bill also would have tasked a wild rice working group with preparing a report on the regulation and protection of wild rice in Minnesota. Concurrent with his veto of H.F. 3422, Gov. Dayton issued Executive Order 18-08, establishing the Governor’s Task Force on Wild Rice, which must deliver a report on various wild rice issues by 12/15/2019.  

• H.F. 2940: Legislative Approval of Water Pollution Fees. This bill would have required legislative approval before MPCA could establish various types of water pollution fees authorized under Minn. Stat. §115.03, subd. 1.

• H.F. 390: Increased Penalties for Obstructing Trunk Highway, Airport, or Transit Traffic. Minn. Stat. §609.74 provides that anyone who intentionally “interferes with, obstructs, or renders dangerous for passage, any public highway or right-of-way, or waters used by the public” commits a public nuisance and is guilty of a misdemeanor. H.F. 390 would have established in addition that it is a gross misdemeanor for a person to “interfere with or obstruct traffic that is entering, exiting, or on a freeway or entering, exiting, or on a public roadway within the boundaries of airport property with the intent to interfere with, obstruct, or otherwise disrupt traffic.” Groups such as the ACLU of Minnesota objected to H.F. 390, claiming it was designed not to improve public safety, but to squelch dissent through imposition of an outsized criminal penalty.

• S.F. 6356. Omnibus Supplemental Budget Bill. This bill contained many provisions related to environmental law. sAmong other things, S.F. 6356 would have:

  • established an exemption from the MPCA’s NPDES permit requirement for water transfers between waters of the state that do not introduce pollutants to the waters transferred. This bill aimed to address a Minnesota Court of Appeals holding that the federal NPDES exemption for water transfers is not applicable in Minnesota; 
  • prohibited MPCA from requiring a sugar beet company that has a NPDES permit or SDS permit to install a liner for a sugar beet storage site runoff pond unless the MPCA confirms that there is a significant effect on groundwater;
  • directed the MPCA to have peer review conducted on all new and revised numeric water quality standards;  
  • expanded eligibility for loans under the MPCA-administered Small Business Environmental Improvement Loan Program;
  • required the EQB to adopt rules to exempt certain recreational trails from mandatory EAW requirements;
  • established a claims award process, overseen by the Office of Administrative Hearings, to compensate businesses negatively affected by the sale and closure of a biomass plant located in the city of Benson;
  • clarified that the exemption to the prohibition on taking endangered plant species on roadways extends to the full public right-of-way;
  • established the Red River Basin Commission in statute; and
  • provided that wetland banking credits are an acceptable mitigation measure for adverse effects on rare natural communities.

Jeremy P. Greenhouse
The Environmental Law Group, Ltd.

Jake Beckstrom Vermont Law School, 2015

Erik Ordahl Flaherty & Hood, P.A. 



• Disability discrimination; accommodation denied. A request by a UPS driver for a disability accommodation of an 8-hour workday without overtime was rejected. The 8th Circuit Court of Appeals, in a decision written by Judge James Loken of Minnesota, ruled that working overtime was an “essential function” of the package delivery position, which precluded an accommodation under the Americans with Disabilities Act. Faidley v. United Parcel Service of America, Inc., 889 F.3d 993 (8th Cir. 5/11/2018).

• Unemployment compensation; misconduct upheld. An employee was deemed ineligible for unemployment compensation benefits due to failure to report an absence from work and stealing tools from the workplace. The court of appeals held that “substantial evidence” supported the employee’s disqualifying misconduct. Teslow v. Mag Mechanical, LLC, 2018 Minn. App. WL 2187180 (8th Cir. 05/14/2018).

• Unemployment compensation; agriculture exemption inapplicable. An employer of agricultural labor must pay unemployment insurance taxes on wages it pays to workers on H2A and J-1 visas. The court of appeals, upholding a decision of a ULJ, ruled that the federal exemption from withholding taxes for agricultural labor performed by such individuals does not apply to unemployment compensation taxes. Svihel Vegetable Farm, Inc., v. DEED 2018 Minn. App. WL 2090549 (8th Cir. 05/14/2018).

• Unemployment compensation; bread breeds ineligibility. A bread route salesperson was deemed ineligible for unemployment benefits because he discarded and gave away damaged and stale bread. The appellate court upheld a ULJ determination of “misconduct.” Wille v. Pan-O-Gold Baking Co., 2018 Minn. App. WL 2293318 (05/21/2018) (unpublished).


The 2018 Minnesota legislative session was notable for many reasons, most of them negative with respect to both sides of the aisle and the governor’s office. The session saw no significant new employment laws.

A couple of minor bills that were enacted and approved by Gov. Dayton will affect employers and employees only slightly. One of them mandated that all hotel and motel operators provide employees with training on recognizing and reporting sex trafficking on their premises, coupled with a required posting of information on sex trafficking at every facility. Another requires all athletic trainers to obtain licensure from the Board of Medical Practice, an elevation from the prior registration requirement.

The most noteworthy employment law legislative development was what did not happen. Like the dog that didn’t bark in the Sherlock Holmes “Silver Blaze” story, it was the absence of legislation that made the session notable. Although the House passed a bipartisan bill to remove the phrase “severe or pervasive” from the statutory definition of sexual harassment under the Human Rights Act, Minn. Stat. §363A.01, et seq., the measure was not adopted by the Senate. The bill was opposed by some business interests and employers concerned that the modification would facilitate such claims and increase exposure to liability, while advocates for claimants urged enactment to reduce barriers to such claims. 

The proposal may be reintroduced in the next legislative session, when its enactment will depend upon the composition of that body after the fall elections for the Legislature and the governor’s office.

Marshall H. Tanick

Meyer, Njus & Tanick



• Tolling of statutes of limitations; successive class actions. In a case arising under the PSLRA, the Supreme Court held that once class certification is denied, a putative class member cannot rely on the prior tolling of the statute of limitations to commence a new class action if the underlying statute of limitations has run. 

While she concurred in the judgment, Justice Sotomayor would have limited the Court’s holding to actions brought under the PSLRA. China Agritech, Inc. v. Resh, ___ S. Ct. ___ (2018). 

• Fed. R. Civ. P. 44.1; “respectful consideration” of foreign law. The Supreme Court unanimously held that while federal courts should accord “respectful consideration” to a foreign government’s official statement on the meaning of its domestic law, that statement is not entitled to “conclusive effect” under Fed. R. Civ. P. 44.1. Animal Science Prods., Inc. v. Hebei Welcome Pharm. Co., ___ S. Ct. ___ (2018). 

• Request to amend complaint denied; failure to comply with local rules. The 8th Circuit found no abuse of discretion in a district court’s denial of the plaintiff’s informal motion to further amend her complaint, because the plaintiff had failed to submit the proposed amended complaint required by the local rules, and because the amended complaint would have been the plaintiff’s “fourth bite at the apple.” Ryan v. Ryan, 889 F.3d 499 (8th Cir. 2018). 

• “Jane Doe” motion denied; related motion to dismiss also denied. Where the plaintiff filed a pro se “Jane Doe” employment discrimination complaint and promptly brought a motion to proceed in pseudonym, and the defendant sought to dismiss the complaint on the basis that it was improperly brought as a Jane Doe action, Magistrate Judge Noel denied the plaintiff’s Jane Doe motion, finding that similar claims are “routinely” pursued in federal courts with the need for a pseudonym, but gave the plaintiff 60 days to file an amended complaint that complies with Fed. R. Civ. P. 10(a). 

Magistrate Judge Noel also recommended the denial of the defendant’s motion to dismiss without prejudice. That recommendation was subsequently adopted by Judge Nelson. Doe v. Zinke, 2018 WL 1189341 (D. Minn. 2/14/2018), Report and Recommendation adopted, 2018 WL 1189329 (D. Minn. 3/7/2018). 

• Ex parte motions for leave to serve third-party subpoenas granted and denied. Where the owner of a number of adult movies commenced a series of actions in the District of Minnesota against John Does and sought ex parte leave to serve third-party subpoenas, Magistrate Judge Noel denied a motion in one case, Magistrate Judge Thorson granted in part and denied in part a second motion, and Magistrate Judge Bowbeer granted motions in two other cases. Strike 3 Holdings LLC v. Doe, 2018 WL 1924455 (D. Minn. 4/24/2018). Strike 3 Holdings LLC v. Doe, 2018 WL 2078707 (D. Minn. 5/4/2018). Strike 3 Holdings LLC v. Doe, 2018 WL 2278110 (D. Minn. 5/18/2018). Strike 3 Holdings LLC v. Doe, 2018 WL 2278111 (D. Minn. 5/18/2018). 

• Counsel’s motion to withdraw and motion to stay pending appeal denied. Where Magistrate Judge Schultz denied defendants’ counsel’s motion to withdraw without substitution in two related cases, Chief Judge Tunheim overruled counsel’s objections to that order, counsel filed an interlocutory appeal to the 8th Circuit, counsel’s request to Magistrate Judge Schultz for a stay pending the appeal was denied, and counsel appealed that order, Chief Judge Tunheim found that Magistrate Judge Schultz did not clearly err in denying the stay, particularly where it was unclear whether the underlying order was appealable under the collateral order doctrine. 4Brava, LLC v. Sachs, 2018 WL 2254568 (D. Minn. 5/17/2018). 

• Diversity jurisdiction; domicile. Adopting a Report and Recommendation by Magistrate Judge Rau, Chief Judge Tunheim granted a motion to dismiss a purported diversity action for lack of subject matter jurisdiction, rejecting the plaintiff’s argument that he is domiciled in Wisconsin because he carries a Wisconsin driver’s license and intends to eventually return there, finding that the plaintiff could not meet his burden to establish diversity by a preponderance of the evidence where the record showed that he had worked in Minnesota since 2006, resided in Minnesota throughout that period, had a Minnesota phone number and maintained a Minnesota checking account. Johnson v. Muy Pizza Minn., LLC, 2018 WL 2230922 (D. Minn. 5/16/2018). 

• Motion to dismiss for lack of personal jurisdiction; jurisdictional discovery denied. Granting the defendant’s motion to dismiss for lack of personal jurisdiction, Judge Doty found that “bare allegation[s]” and “speculations” were insufficient to grant the plaintiff’s request for jurisdictional discovery. Higgins v. Save Our Heroes, 2018 WL 2208319 (D. Minn. 5/14/2018). 

• Punitive damages; Fed. R. Civ. P. 15(a); Minn Stat. §549.191. Acknowledging the recent split of authority in the District of Minnesota on the issue, Magistrate Judge Rau held that motions to amend to add a claim for punitive damages are governed by Fed. R. Civ. P. 15(a) rather than Minn. Stat. §549.191. Rogers v. Mentor Corp., 2018 WL 2215519 (D. Minn. 5/15/2018). 

Magistrate Judge Menendez recently acknowledged the split of authority, but declined to reach the issue when neither party argued that anything other than Minn. Stat. §549.191 should apply. Soto v. Swift Trans. Servs., LLC, 2018 WL 2193111 (D. Minn. 5/14/2018). 

• Discovery stayed pending motion to compel arbitration. Judge Davis granted the defendant’s motion to temporarily stay discovery pending a decision on its motion to compel arbitration and enforce class action waivers, finding that the defendant had offered “substantial grounds” for its underlying motion, and that the plaintiffs would not be prejudiced by a temporary stay of discovery. In Re CenturyLink Sales Pracs. & Sec. Litig., 2018 WL 2122869 (D. Minn. 5/8/2018). 

• Motion to remand and request for attorney’s fees denied. Where the plaintiff commenced a sex discrimination action against her former employer in the Minnesota courts, her complaint was silent as to the amount of damages, the defendant removed on the basis of diversity jurisdiction, and the plaintiff moved to remand and for an award of attorney’s fees, Judge Schiltz denied that motion, finding that the plaintiff’s claim that she was unemployed for 17 months, combined with evidence that she had earned more than $100,000 a year, meant that the defendant had established by a preponderance of the evidence that the amount in controversy exceeded $75,000. Newbauer v. Hill-Rom Co., 2018 WL 2411617 (D. Minn. 5/29/2018). 

• Request for interlocutory appeal denied. Judge Frank denied the defendants’ request that he certify a choice of law question for interlocutory appeal under 28 U.S.C. §1292(b), finding that the defendants were unable to established any of the elements of the controlling three-part test. Sportsman v. Cal. Overland, Ltd., 2018 WL 2441771 (5/31/2018). 

Josh Jacobson

Law Office of Josh Jacobson 



• Tribal sovereign immunity may extend to in rem lawsuits. The plaintiffs sued a tribe to quiet title to a parcel of land outside of the tribe’s reservation that both they and the tribe claimed to own. The tribe claimed that sovereign immunity barred the lawsuit. Relying on the U.S. Supreme Court’s decision in County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251 (1992), the Washington Supreme Court ruled that tribal sovereign immunity does not apply to in rem lawsuits.

The U.S. Supreme Court vacated that decision, clarifying that Yakima “resolved nothing about the law of sovereign immunity.” The Court declined to rule, though, on a newly raised argument that tribal sovereign immunity cannot extend to cases involving “immovable property located in the territory of another sovereign.” It remanded the case for further proceedings. Upper Skagit Indian Tribe v. Lundgren, ___ S. Ct. ___ (2018).

• Treaty right to take fish blocks state from destroying fish runs. Washington State’s borders encompass numerous Indian tribes that long ago secured the treaty “right of taking fish, at all usual and accustomed grounds.” Salmon, one of the staple fish species for the tribes, migrate up- and downriver between spawning seasons. Over time, Washington built roads across many of these rivers, and installed culverts that allow water to pass underneath the roads, but not salmon. Because the culverts blocked juvenile salmon from migrating to the sea or escaping predators, and blocked mature salmon from returning from the sea to spawn, the salmon population at the tribes’ accustomed grounds diminished significantly. The United States and various Indian tribes obtained an injunction holding that Washington’s culverts interfered with the treaty fishing right and requiring Washington to correct the culverts.

The 9th Circuit rejected Washington’s primary appellate argument that the tribes’ treaty fishing right did not include an obligation that Washington avoid blocking salmon-bearing rivers. Applying the longstanding canon of construction that Indian treaties must be viewed in the manner that Indians would have understood them, the 9th Circuit ruled that the “Indians did not understand the Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs.” They “reasonably understood… not only that they would have access to their usual and accustomed fishing places, but also that there would be fish sufficient to sustain them.” 

The Supreme Court granted certiorari, but Justice Kennedy withdrew from considering the case when he discovered a conflict with his service as a circuit judge. The justices’ 4-4 vote affirmed the 9th Circuit decision without opinion. Washington v. United States, ___ S. Ct. ___ (2018), aff’g 853 F.3d 946 (9th Cir. 2017).

• ICWA and MIFPA “serious-damage” determination must be supported by testimony of a qualified expert witness. The Indian Child Welfare Act requires that a state court make a serious-damage determination “supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses,” before terminating parental rights. The Minnesota Indian Family Preservation Act imposes a similar requirement.

On appeal of a termination of parental rights, the parents argued that a qualified expert must provide specific testimony that “continued custody… is likely to result in serious emotional or physical damage” to the child. The county argued that a qualified expert’s testimony need not support a serious-damage determination. The Minnesota Supreme Court disagreed with both parties, ruling that a qualified expert’s testimony must support a serious-damage determination, but may do so without a “magic phrase.” In the Matter of the Welfare of the Children of: S.R.K. & O.A.K., ___ N.W.2d ___ (Minn. 2018).

• Voter ID; North Dakota law still disproportionately burdens Native Americans. After an initial injunction (discussed in the August 2016 edition of Bench and Bar) against enforcement of “arguably some of the most restrictive voter ID laws in the nation” that the court found disproportionately burdened Native Americans, North Dakota amended the laws to allow supplementation of insufficient IDs. The district court enjoined enforcement of these revised laws. The court reasoned that nearly 50% of the thousands of native voters who could not satisfy the ID requirements also could not satisfy the supplementation requirements and that the supplementation procedures were vague and too time-restrictive. The secretary of state appealed the second injunction and moved the 8th Circuit for a stay. The 8th Circuit denied the motion, based “primarily on the imminent primary election.” The appeal remains pending. Brakebill v. Jaeger, No. 18-1725 (8th Cir. 6/8/2018), rev’g 1:16-CV-008 (D.N.D. 4/3/2018).

Jessica Intermill 

Peter J. Rademacher

Hogen Adams PLLC



• Patents: Personal jurisdiction over alleged infringers in foreign waters. The Court of Appeals for the Federal Circuit recently held that use of a device accused of patent infringement on a U.S.-flagged ship established sufficient contacts to allow the district court to exercise personal jurisdiction over a foreign corporation. M-I, a British company, and its exclusive U.S. licensee sued DAL, a Brazilian corporation, in the District of Minnesota alleging DAL’s use of a drilling waste disposal system on a U.S.-flagged ship off the coast of Brazil infringed five of M-I’s U.S. patents. DAL moved to dismiss the case for lack of personal jurisdiction. 

A foreign plaintiff can sue a foreign company in the U.S. if the foreign company’s contacts with the U.S. satisfy due process. Even though U.S.-flagged ships are U.S. territories, the district court found that the use of the accused device was not due to DAL’s own deliberate contacts with the U.S. but rather was done at the direction of DAL’s Brazilian contractor. Thus, it held that DAL’s contacts were insufficient to satisfy due process and dismissed the case. M-I appealed. The Federal Circuit disagreed. In determining whether the exercise of personal jurisdiction is permissible, the court looks at whether (1) the defendant purposefully directed its activities at the forum, (2) the claim arises out of the defendant’s activities with the forum, and (3) the assertion of personal jurisdiction is reasonable and fair. 

The appellate court found that all three factors favored the exercise of personal jurisdiction. First, DAL’s continued use of the allegedly infringing device after receiving notice of its alleged infringing activity constituted a deliberate presence in the forum. The second factor was undisputed. The third factor also supported jurisdiction because it was reasonable and fair to exercise jurisdiction where a U.S. company, M-I’s exclusive licensee, sued to enforce a U.S. patent for infringement occurring in U.S. territory. Thus, the Federal Circuit reversed, holding that the exercise of personal jurisdiction over DAL satisfies due process. M-I Drilling Fluids UK Ltd. v. Dynamic Air Ltda., 2016-1772, 2018 U.S. App. LEXIS 12497 (Fed. Cir. 5/14/2018).

• Patents: Patents issued after filing of declaratory judgment. Judge Nelson recently lifted a stay and denied a pre-stay motion to dismiss for lack of subject matter jurisdiction after a patent application matured into an issued patent. NCJC sued Rick Lawrence, a former NCJC consultant, seeking a declaratory judgment that NCJC was the rightful owner of a device that Lawrence co-invented with NCJC’s owner. Lawrence’s patent application on the device, naming himself as the sole inventor, was pending when the lawsuit was filed. Lawrence filed a motion to dismiss, arguing that the court lacked subject matter jurisdiction because a court may only review the inventorship of an issued patent, not a pending application. 

Instead, the court stayed the case pending issuance of Lawrence’s application. Following the issuance of the patent, NCJC argued that the court now had subject matter jurisdiction and that the pending motion to dismiss was moot. NCJC asked the court to lift the stay and permit it to file an amended complaint. Lawrence argued that the court could not do so because subject matter jurisdiction must be determined at the time of filing, meaning a subject matter jurisdiction defect at the time of filing will bar the action even if later cured. The court lifted the stay, however, and denied Lawrence’s motion to dismiss, finding that the “time-of-filing” rule is limited to diversity cases. NCJC, Inc. v. Lawrence, No. 17-cv-2385, 2018 U.S. Dist. LEXIS 78325 (D. Minn. 5/8/2018).

Joe Dubis & Elizabeth Harwood

Merchant & Gould



• Retroactive application of Minn. Stat. §524.2-804. Section 524.2-804 states that “the dissolution or annulment of a marriage revokes any revocable… beneficiary designation… made by an individual to the individual’s former spouse.” The impact of this language is that if one spouse has made the other spouse the beneficiary on a life insurance policy, their divorce automatically revokes that beneficiary designation and the contingent beneficiaries automatically become the primary beneficiaries.

In Sveen v. Melin, a husband purchased a life insurance policy in 1998 and named his wife as primary beneficiary and his children from a previous marriage as contingent beneficiaries. Section 524.2-804 was enacted in 2002, and therefore, was not in effect at the time the insurance policy was purchased and the beneficiary designations were made. The husband and wife divorced in 2007 and the husband took no action to change the beneficiary designations. When the husband passed away in 2011, the former wife and his children made competing claims to the insurance proceeds.

The district court awarded the insurance proceeds to the children and the 8th Circuit reversed, holding that the retroactive application of Minnesota law violated the Contracts Clause. The Supreme Court reversed, holding that the Contracts Clause restricts the power of states to disrupt contractual arrangements, but it does not prohibit all laws affecting pre-existing contracts. The Court applied a two-step test and ultimately held that Section 524.2-804 does not substantially impair pre-existing contractual arrangements because it is designed to reflect the policyholder’s intent and therefore supports, rather than impairs, the contractual scheme. Moreover, the Court reasoned that the law supplies only a default rule that can easily be overcome by sending in a new beneficiary form, and laws imposing minimal paperwork burdens do not violate the Contracts Clause. Sveen v. Melin, No. 16-1432, 2018 WL 2767640 (U.S. 6/11/2018).

Casey D. Marshall

Bassford Remele

Comments are closed on this post.

Articles by Issue

Articles by Subject