But few Minnesota claimants are able to pass this test.
Their low rate of success is reflective of the antipathy of
courts in this state to finding implied civil causes of action.
While repeatedly invoking the Flour
Exchange standard, Minnesota tribunals almost invariably find that the
particular claim at issue fails to pass the test. This record of failure is reflected in several
recent rulings.
On two occasions, in unpublished opinions,
the Minnesota Court of Appeals held that no implied causes of action
exist under the state Patients’ Bill of Rights, Minn. Stat. §144.651
et seq., which prohibits, among other matters, unauthorized divulgence
of confidential medical data about patients.
The court, in J.T.P.
v. St. Paul Ramsey Med. Ctr., 1997 WL 65511 (Minn. App. Feb. 18,
1997), rejected an implied cause of action claim by a man who asserted
that a hospital employee wrongfully and mistakenly disclosed that
he had aids. It ruled that,
although the claimant was within the protected class, the claim did
not satisfy the other two Flour
Exchange prongs, and further that statutory enforcement is exclusively
within the purview of the state Department of Health.1
Six years later, in McDeid v. O’Keefe, 2003 WL 21525128 (Minn. App. July 8, 2003), the court reiterated its rationale in
a case brought by a patient at an institution for sexual offenders
who asserted a number of statutory transgressions.
The court stated that there was “no language in the statute
indicating an intent to create a private cause of action.”2
A worker’s compensation insurer cannot be
sued for failing to inspect the workplace through a private cause
of action under the Worker’s Compensation Act.
In Buck v. Freeman, 619 N.W.2d 793 (Minn.
App. 2003), rev. denied
(Feb. 21, 2001), heirs of a deceased employee, who was killed in an
explosion at work, sued under the Minnesota Workers Compensation Assigned
Risk Plan, maintaining a breach of statutory duty to conduct on-site
safety inspections that would have prevented the incident.
But the appellate court ruled that the action could not be
maintained because compensation insurance carriers are immune from
liability under the exclusive remedy provision of the act, Minn. Stat.
§176.031, which generally immunizes employers from common law injury
claims by their employees.
In addition to asserting this statutory
immunity, the court determined that the insurer could not be sued
under Minn. Stat. §79.253 subd. 2,
which requires compensation carriers to perform “on-site surveys …
and recommend practices and equipment to employers designed to reduce
the risk of injury to employees.”
This provision applies to insurers under the assigned risk
plan, which is aimed at employers who are unable to secure insurance,
but does not create a private cause of action.
The appellate tribunal pointed out that
there is generally “a reluctance on the part
of the court to imply a private right of action.”3
The injured employee did not satisfy the Flour Exchange three-part test because he was not the intended beneficiary
of the statute, since the goal of the statute is to provide uninsured
businesses with “compensation insurance should an accident occur,”
and “not to establish safety standards or to protect employees from
harm.”4 The court noted that
the Legislature did not “expressly or clearly imply a private cause
of action,” and that allowing a private remedy would be “inconsistent
with the purpose of the statute.”5
The reluctance of Minnesota courts to find
implied causes of action was also reflected in Kuelbes v. Williams, 609 N.W.2d 10 (Minn. App. 2000) rev. denied (June 27, 2000). The
target of a child abuse investigation sued government agencies and
officials and alleged bad faith investigation, among other claims. The claimant’s assertion that the investigation
violated the Reporting of Maltreatment of Minors Act, Minn. Stat.
§626.556, did not yield a private cause of action because there was
no “civil cause of action for bad faith reporting and investigating
child maltreatment” under the statute.6
The claimant further asserted that the statutory immunity
for investigations conducted in “good faith” implies a civil cause
of action for bad faith conduct. But
the court rejected this argument, noting that if the Legislature wanted
to create a private cause of action for bad faith reporting and investigation
of maltreatment claims, it could have done so explicitly, as it did
in creating liability for knowingly or recklessly making a false report
under §626.55 subd. 5.
All three prongs of the Flour Exchange test were not satisfied
here. The subject of the investigation
was not “among the class of persons [the statute] intends to benefit,”
namely, abused children.7 The
Legislature did not intend a cause of action, and the provision allowing
a civil suit for knowingly or recklessly making false reports constitutes
an intention “to limit” civil liability rather than to encourage inference
of other claims. Additionally, the statutory purpose of “protecting
the children from maltreatment” would be thwarted if those investigated
for abuse could pursue civil claims, as persons may be “discouraged”
from reporting abuse, conducting necessary investigations, or reaching
findings of maltreatment.8
A student suspended for misconduct was not
entitled to pursue a civil cause of action against the school district
under the Pupil Fair Dismissal Act, Minn. Stat. §121.A.40-121A.56. In Eason v. Indep. Sch. Dist. No. 11,
598 N.W.2d 414 (Minn. App. 1999), an Anoka High School sophomore who was suspended for improper
verbal remarks to a female student sought injunctive relief and a
private cause of action under the Dismissal Act.
Reversing the Anoka County District Court’s decision, the appellate
court held that the student was not entitled to injunctive relief.
The impetus for denying the injunction was
the unlikelihood of success on the merits in light of the absence
of any “valid claim” under the Pupil Fair Dismissal Act.9 The court determined that the statute
does not contain any “explicit language creating a cause of action
to challenge an alleged violation of the act’s suspension provisions,”
including written notice of suspension, which was not given to this
student. Although the school officials may not have abided
by the act, they were not subject to civil liability because “the
structure of the act belies an implicit intent to create a cause of
action.” The act specifically
provides an appellate procedure, which “demonstrates that inclusion
of such a [private civil] remedy was not the Legislature’s purpose.”10
The absence in the statute of any “consequence
for failure to comply with the suspension provisions,” indicates that
the law is “directory, rather than mandatory,” and that “noncompliance
with the directory provision does not invalidate the action.”11 The court reasoned, therefore, that allowing
an implied cause of action would be inconsistent with the statute’s
directory purpose. This conclusion
followed a similar ruling by the federal court in Achman v. Chisago
Lakes
Indep. Sch. Dist. No. 2144, 45 F. Supp. 2d 664
(D. Minn. 1999). In
Achman,
as in Eason, a student claimed that the school district violated the
Pupil Fair Dismissal Act by failing to give written notice of suspension. The court held that the statute did not authorize
a private cause of action and refused to infer an implied cause of
action; a conclusion that the appellate court in Eason found to have “significant persuasive effect” in its interpretation
of the statute.12
These four cases are illustrative of the
disinclination of Minnesota courts to find implied civil causes of
action. Claimants who take the Flour Exchange test are almost always destined to fail it and are
left not only with no private cause of action, but generally no civil
remedy at all.13
Slight Success
One of the rare litigants who succeeded
in claiming an implied cause of action was the claimant in Prestressed Concrete, Inc. v. Blandholm Bros. Culvert Co.,
498 N.W.2d 274 (Minn. App. 1993).
A manufacturer of concrete bridge girders sued a competitor
and an unnamed defendant, alleging that they conspired to monopolize
Minnesota’s bridge girder market in violation of the state Antitrust
Law of 1971, Minn. Stat. §§325D.51-.52.
The Court of Appeals held that the claimant could sue under
the state statutes even though the statutes did not expressly prohibit
monopolistic conspiracies. While the court did not follow the Flour Exchange test, the language and reasoning
of the court in reversing summary judgment reflected an implied cause
of action. It reached its conclusion
by relying upon an interpretation of the federal antitrust law, the
Sherman Act, which provided the “model” for the state statutes. Since the federal measure “expressly outlaws
conspiracies to monopolize,” the state law must “implicitly [provide]
a cause of action … for conspiracy to monopolize.”14
This rare ruling in favor of an implied
cause of action is unusual in several respects.
It represents one of the few instances in which a claimant
has convinced a tribunal to infer that a cause of action is implied. The court did so, however, without using the
conventional considerations under state law, relying instead upon
an interpretation of analogous federal law. But Prestressed Concrete is the exception that seems to prove the general rule: claimants
of implied causes of action are likely to find their litigation hopes
dashed much more often than fulfilled.
Recent Rulings
The Minnesota Court of Appeals has issued
three rulings over the past couple of years that have continued this
trend.
Guidelines promulgated by the Metropolitan
Council for cities’ compliance with the Metropolitan Land Use Planning
Act, Minn. Stat. §473.851, did not give rise to an implied cause of
action for citizens to challenge the agency’s action in Alliance
for Metro. Stability v. Metro. Council,
671 N.W.2d. 905 (Minn. App. 2003). A
declaratory judgment action was brought by three organizations that
advocated affordable housing, alleging that the Metropolitan Council’s
guidelines did not comply with the act.
The organizations claimed the guidelines impaired the development
of affordable housing in the Twin Cities metropolitan area, but they
were not allowed to maintain a cause of action for several reasons.
The claimants eschewed a claim under the
Land Use Planning Act because it does not contain a private right
of action. Rather, they asserted
that they were entitled to sue under the Uniform Declaratory Judgment
Act, Minn. Stat. §555.01, et seq.
The court, however, rejected the claimants’
contention, holding that the statute does not give rise to a private
right of action. The statute
is intended to “settle uncertainty and is to be liberally construed
and administered … [it] is not an express independent source of jurisdiction.”15 In order to pursue an action under the
declaratory judgment statute, a claimant “must have an independent
underlying cause of action based on a common-law or statutory right.”16
Since the statute does not “create a cause
of action that does not otherwise exist,” the lawsuit could not be
sustained under that statute. The
court held that the Land Use Planning Act also cannot give rise to
an implied cause of action under the Flour
Exchange test. The claimants did not belong to a “special class,”
and were not the intended beneficiaries of the statute because the
statutory directive did not develop guidelines for planning in Minnesota as a “directive to the [agency].”17
The court noted that the Legislature apparently
did not intend to create a cause of action because the “plain language
of the statute does not indicate a private cause of action was intended.”
It was “unclear” whether a private cause of action claim would
interfere with the statutory purpose, but because the other two Flour
Exchange considerations weighed against inferring a private cause
of action, no claim could be asserted under the statute.
The court also held that there was no common law cause of action
for the challengers to seek judicial review of the agency’s guidelines,
which left them without any remedy altogether.
In Meyer
v. Lindala, 675 N.W.2d 635 (Minn. App.
2004) a pair of young girls sued the local congregation of the Jehovah’s
Witnesses religious organization and its national supervisory group
for sexual abuse committed against them by a son of a family of congregants. They alleged that the local and national organizations
were negligent in not taking action to prevent the abuse and failed
to report it to the law enforcement authorities, as required by the
Child Abuse Reporting Act (CARA), Minn. Stat. §626.556, which obligates
those who have knowledge of sexual abuse to apprise law enforcement
personnel of the misconduct, and imposes a misdemeanor for failure
to do so.
Affirming a ruling by the Hennepin County
District Court, the appellate court upheld dismissal of the lawsuit. It determined that the local and national religious
organizations were not negligent because they did not owe a “duty”
to the youths since the abuse did not occur at the church facilities
or church functions.18 It also
rejected, based upon Minnesota precedent, the contention that the
failure to report gave rise to an implied civil cause of action under
CARA.
The court noted that prior case law, Valatkis v. Putnam, 504 N.W.2d 264 (Minn. App.
1993), held that a failure to comply with the statute does not establish
a civil cause of action under it.
The court then reiterated that the measure “does not create
a private cause of action for violation of its reporting requirements.”19 Moreover, the court stated that a lack
of fidelity to the statute does not “create a duty which could be
enforced through a common law negligence action.”
A couple of weeks later, the appellate court
reached the same conclusion in a lawsuit brought by a father against
Freeborn County for failure of social workers to detect child abuse
committed by the boyfriend of the child’s mother, who was divorced
from the father and had custody of the infant child.
Radke v. County of Freeborn,
676 N.W.2d 295 (Minn. App. 2004). Although
the child was subjected to horrific abuse, it was not reported by
the authorities. After the
child died, the father sued the county under the CARA law, Minn. Stat.
§626.556.
The appellate court affirmed the ruling
of the Freeborn County District Court dismissing the lawsuit, albeit
with ambivalence. Although
the court expressed that it was not “unsympathetic” to the plight
of the father, it ruled that the county was not negligent.20 It also rejected an implied cause of
action under the statute. Pointing
to case law that refused to find an implied cause of action under
the parallel Vulnerable Adults Reporting Act, §626.557, the court
found that although CARA is “not clear cut, …
[it] does not contain a legislatively-established civil cause of action.”
A similar result was reached, though on
different grounds, in another child abuse case decided by the appellate
court a few weeks later in D.E.L.
v. Blue Earth County, 2004 WL 728090, (Minn. App. Apr. 6, 2004)
(unpublished). Parents of a child who was sexually abused by
a foster youth who was living in their home sued Blue Earth County for negligence in the foster child’s placement.
The appellate court, affirming the ruling of the Blue Earth
County District Court, held that the claim was not actionable.
It reasoned that the county was not negligent because the perpetrator
had not shown any proclivities for abuse.
Additionally, the court ruled that the lawsuit
would be barred by the doctrine of “discretionary immunity” which
proscribes lawsuit against governmental entities engaged in discretionary
decision-making. The court
considered the county’s determination in regards to the youth’s placement
in the foster home to be discretionary and thus covered by the immunity
doctrine.
The absence of an implied cause of action
was also reflected in a ruling of the 8th Circuit Court of Appeals
last summer. In Leach v. Mediacom, 2004 WL 1432285 (8th
Cir. June 28, 2004) (unpublished), the court rejected a claim under
the Cable Communications Policy Act, 47 U.S.C. §521, et
seq., brought by a cable television program provider against a
cable system organization for refusing to show controversial antiabortion
footage. The lawsuit could not be maintained because
the law provides “no implied private right of action.”21 Since the statute gives civil enforcement authority
to cable franchise holders, the absence of any similar grant to program
producers suggested that “Congress intended to preclude” them from
pursuing statutory claims of this type.
Supreme Solutions
These recent Minnesota court rulings parallel the unwillingness
manifested in recent years by the U.S. Supreme Court to find implied
civil causes of action. The
high court’s solution to questions posed by claimants asserting implied
cause of action under federal statutes that are silent on civil remedies
has been, under the literalist reading of those laws, to reject the
claims. In Gonzaga Univ. v. Doe,
536 U.S. 273 (2002), the Supreme Court held that the Family Educational
Privacy Rights and Privacy Act (FEPRA), 20 U.S.C. §1232g, does not
give rise to a civil cause of action for wrongful disclosure of private
educational data. The case was brought by a former university
student who claimed that his school, which is subject to the law because
it receives federal funding, violated the provision. He contended that school officials transgressed
the measure by conveying to state officials that he engaged in sexual
harassment, which precluded him from obtaining a teaching certificate.
The Court ruled that FEPRA could not form
the basis of the lawsuit because it lacks a private cause of action
for damages. Noting that its
prior rulings on implied causes of action “may not be models of clarity,”
the high court sought to “resolve … any ambiguity in our own opinions.”22
It did so under FEPRA because “the text
and structure of [the statute] provides no indication that Congress
intends to create new individual rights.”23
The Court based this determination on the absence of any “rights-creating
language,” which is “critical” to showing that an implied cause of
action was intended.24 Its
clarion conclusion was that for a civil cause of action to flow from
the federal statute, Congress must legislate “in clear and unambiguous
terms,” a rebuke to those seeking to find implied private rights and
remedies.25
The dilution of implied civil causes of
action was reiterated by the high court in its 2004 term in Sosa v. Alvarez Machain,
124 S. Ct. 2739 (2004), a case arising under the Alien Tort Claims
Statute, a 1789 law authorizing federal court jurisdiction over claims
by aliens for certain torts committed by other natives.
The measure, 28 U.S.C. §1350, was invoked by a Mexican national,
who sued the federal government, drug enforcement agents, and Mexican
police officials and civilians for wrongfully abducting him from his
homeland and transporting him to this country where he was tried and
acquitted of murder. The statute,
which allows federal courts to preside over tort claims by aliens
for human rights violations committed outside the country — referred
to as violations of “The Law of Nations” — was construed narrowly
as a jurisdictional grant, but not as an independent source of any
causes of action for aliens.
The case is significant because of the rash
of lawsuits that have appeared over the last two decades under the
previously dormant statute, coupled with the prospect of many more
resulting from the Abu Ghraib prison scandal as well as other incidents of the Iraq war. In
its ruling in Sosa, the Court recognized that some suits could be
maintained under the act, but that the facts in that case did not
transgress the norms of international law, which constitutes the predicate
of a suit under the statute. The
Court’s ruling restricted the scope of the statute to only a few torts
that are “of international character accepted by the civilized world
and defined with specificity,” and expressly disdained any broadened
implied cause of action under the statute.26
Determining that identifying a civil cause
of action is “better left to legislative judgment,” the Court expressed
its reluctance to “provide a private cause of action where the statute
does not supply one expressly.”27
Thus, only a “modest number” of well-recognized violations
of international legal norms may be pursued under the statute, which
does not create any new or implied claims.28
Concluding Causes
These recent rulings demonstrate that courts
share a massive, but not impenetrable, aversion to finding a cause
of action implied in the violation of statutes that are silent regarding
civil rights and remedies. The
rulings do not eviscerate the concept of implied causes of action. They do, however, crimp the ability of claimants
and their lawyers to seek redress in civil litigation for failure
of parties to abide by statutory requirements.
Notes
1 The New Jersey Court of Appeals reached
the same result last summer in Castro v. NYT Television, 851 A.2d
88 (N.J. App. 2004). The court
rejected an implied cause of action by hospital emergency room patients
who claimed that the facility violated the state Patients Bill of
Rights by allowing a television news crew to film a reality television
show.
2 Id. at *4.
3 Buck v. Freeman, 619
N.W.2d 793, 797 (Minn. App. 2003).
4 Id at 798.
5 Id.
6 Kuelbes v. Williams,
609 N.W.2d 10, 17 (Minn. App. 2000)
7 Kuelbes, 609 N.W.2d at 15.
8 Id.
9 Eason v. Indep.
Sch. Dist. No. 11, 598
N.W.2d 414, 417 (Minn. App. 1999).
10 Id.
11 Id. at 417-18.
12 Id. at 418.
13 Grozdanich
v. Leisure Hills Health Ctr., Inc., 25 F.Supp.2d 953 (D. Minn. 1998)
(the Minnesota Vulnerable Adults Act does not encompass a private
right of action to claimants); Pazos v.
Int’l Union of Operating Eng’rs, C6-96-2222, 1997 WL 471324, at *1 (Minn. App. 08/09/97)
(unpublished) (the trial court did not err in concluding that there
is no private cause of action under the Apprenticeship Act, Minn.
Stat. §§178.01-.10); Haage v. Steies,
55 N.W.2d 7 (Minn. App. 1996) (Entertainment Agency Licensing Act,
Minn. Stat. §§184A.01-.20, did not allow for a private cause of action);
Southern Minnesota Grain Inspection, Inc. v. State, C8-94-2542, 1995
WL 311399, at *1 (Minn. App. 05/23/95) (unpublished) (Minnesota Grain
Inspecting, Weighing, and Analysis Act, Minn. Stat. §§17B.01-.29,
did not provide a civil cause of action).
14 Prestressed
Concrete, Inc. v. Blandholm Bros. Culvert
Co., 498 N.W.2d 274, 276-77
(Minn. App. 1993).
15 Alliance for Metro. Stability v. Metro.
Council, 671 N.W.2d. 905, 915 (Minn. App. 2003).
16 Id. at 916.
17 Id.
18 Meyer v. Lindala, 675 N.W.2d 635, 641 (Minn. App. 2004).
19 Meyer, 635 N.W.2d at
641.
20 Radke
v. County of Freeborn, 676 N.W.2d 295, 300 (Minn. App. 2004).
21 Leach v. Mediacom,
2004 WL 1432285 (8th Cir. 06/28/04) (unpublished) at*1.
22 Gonzaga
Univ. v. Doe, 536 U.S. 273, 278 (2002).
23 Id. at 286.
24 Id. at 274.
25 Id. at 290.
26 Sosa v. Alvarez Machain, 124 S. Ct. 2739, 2761 (2004).
27 Id. at 2763-64.
28 Id. at 2761.
The author expresses his appreciation
to Caitlin Ducanson, a law firm clerk with his firm, for assistance
in preparing this article.
MARCHALL H. TANICK is an attorney with the Twin Cities law
firm of Mansfield, Tanick & Cohen, PA. He
is certified as a civil trial specialist by the MSBA.
