Bench + Bar of Minnesota

Notes & Trends – October 2023

Criminal Law


• Juveniles: District court lacks jurisdiction over EJJ case for a felony before the defendant turned 14 years old. Appellant was convicted as an adult of second-degree criminal sexual conduct for an offense committed when he was 12 or 13 years old but for which he was not charged until he was 21 years old. By statute, the juvenile court has jurisdiction over proceedings concerning any child alleged to be delinquent, and that jurisdiction can continue until the child turns 19, or, if the child is convicted as an extended jurisdiction juvenile (EJJ), until the child turns 21. However, a proceeding involving a child alleged to have committed a felony may only be designated an EJJ prosecution if the child was 14 to 17 years old at the time of the offense. The juvenile court can certify a proceeding for adult prosecution, but only if the alleged offense would be a felony if committed by an adult and was allegedly committed by the child after turning 14 years old. The criminal code further provides that children under the age of 14 are incapable of committing crime.

The Minnesota Court of Appeals finds that these statutory provisions “demonstrate a clear legislative intent to limit district court criminal jurisdiction over a felony-level offense committed by a child to those cases in which the child is allege to have committed the offense after becoming 14 years of age.” This purpose is undermined by Minn. Stat. §260B.193, subd. 5(d), which provides that “[t]he district court has original and exclusive jurisdiction over a proceeding (1) that involves an adult who is alleged to have committed an offense before the adult’s 18th birthday, and (2) in which a criminal complaint is filed before expiration of the time for filing under section 628.26 and after the adult’s 21st birthday.” To resolve this conflict, the court gives effect to the legislative intent reflected in the minimum age requirement for adult certification and EJJ jurisdiction, and specifically holds “that the grant of district court jurisdiction in Minn. Stat. §260B.193, subd. 5(d), does not apply if the alleged offense occurred before the offender became 14 years of age.” 

Because the offense here occurred before appellant turned 14, the district court lacked jurisdiction and is reversed. State v. Thompson, A22-1669, 2023 WL 5339997 (Minn. Ct. App. 8/21/2023).

• 6th Amendment: Defendant must waive right to counsel before proceeding pro se at a felony sentencing hearing. Appellant entered into a plea agreement under which he agreed to plead guilty to first-degree sale of a controlled substance and possession of ammunition by an ineligible person in exchange for a specified sentence. Under the agreement, however, the state reserved the right to seek a longer sentence if appellant failed to appear for sentencing. After he was apprehended for failing to appear at two sentencing hearings, appellant informed the district court he wished to discharge his attorney. At the sentencing hearing, appellant’s attorney moved to withdraw, appellant again expressed his desire to discharge his attorney, and the district court ultimately discharged the attorney. The district court then denied appellant’s motion to withdraw his plea and sentenced him to longer than was originally contemplated in the plea agreement.

The court of appeals agrees with appellant that he did not validly waive his right to counsel. The right to counsel is protected by the 6th Amendment and, to waive the right, the Minnesota Rules of Criminal Procedure require a “voluntary and intelligent written waiver” of the right be entered on the record. Minn. R. Crim. P. 5.04, subd. 1(4). Absent a written waiver, the district court must make a record of the defendant’s waiver, which must include an advisory to the defendant of the nature of the charges, all offenses included within the charges, the range of allowable punishments, the fact that there may be defenses and mitigating circumstances may exist, and “all other facts essential to a broad understanding of the consequences of the waiver of the right to counsel.” Id. at 1(4)(a)-(f). 

Here, the district court did not obtain a written waiver of appellant’s right to counsel, did not make a record of his waiver, and did not advise appellant as required by Minn. R. Crim. P. 5.04. While, despite these waiver requirements, the circumstances of a case may demonstrate a defendant knowingly, voluntarily, and intelligently waived his right to counsel, that is not the case here. Appellant’s sentence is reversed and the district court is directed to conduct a new sentencing hearing. State v. Gant, A22-1333, 2023 WL 5340023 (Minn. Ct. App. 8/21/2023).

• Self-defense: “Offense against the person” refers to offenses threatening bodily harm. At appellant’s trial for felony domestic assault, the court instructed the jury on self-defense, specifically, that appellant could use reasonable force to resist an “assault against the person.” Appellant argues the court should have informed the jury he could use reasonable force to resist “any offense against the person.” The jury found him guilty. While the court of appeals held the district court’s instruction was erroneous, it found the error was not plain and that the evidence was sufficient to support appellant’s conviction.

The Supreme Court agrees the evidence is sufficient to support appellant’s conviction but, unlike the Court of Appeals, finds the district court’s self-defense instruction was not error. The Court finds that Minn. Stat. §609.06, subd. 1(3), permits the use of self-defense to resist an offense carrying a threat of bodily harm. Section 609.06 codifies the common law self-defense doctrine, which required, as a trigger for a claim of self-defense, force carrying the threat of bodily harm. Prior cases have reinforced the threat-of-bodily-harm requirement.

Here, under the facts of the case, the only “offense against the person” carrying the threat of bodily harm that appellant arguably acted to resist was assault. Thus, the district court’s instruction was merely a tailoring of the self-defense instruction to the facts of the case, which is proper. Appellant’s conviction is affirmed. State v. Lampkin, A20-0361, 2023 WL 5419184 (Minn. 8/23/2023).

• Restitution: Life insurance proceeds paid to victim’s family should not be considered in determining amount of economic loss sustained. Appellant appealed the district court’s restitution order following his second-degree intentional murder conviction. First, the court of appeals finds that, although appellant failed to file his restitution challenge within the required time and failed to file the required affidavit before the restitution hearing, the district court still had jurisdiction over appellant’s restitution challenge. The court finds the procedural and timing requirements of section 611A.045, subd. 3, are claim-processing rules, not subject matter jurisdiction rules. As such, even when untimely, the district court had subject matter jurisdiction over appellant’s restitution challenge.

Second, the court holds that life insurance proceeds are not an economic benefit conferred by appellant on the victim’s mother and, thus, it was proper for the district court to refuse to consider the proceeds in determining the amount of the victim’s mother’s economic loss. A restitution award must account for any benefits received by a victim from the defendant or his offense in determining the aggregate economic loss. Life insurance proceeds are benefits conferred by the payor of the insurance premiums, not the defendant who murdered the insured.

Finally, the court holds that the district court did not abuse its discretion by awarding restitution to the victim’s mother for expenses that post-dated the victim’s funeral, as the district court was well within its discretion to find those expenses were directly related to the victim’s death. State v. White, A23-0126, 2023 WL 5519379 (Minn. Ct. App. 8/28/2023).

•  Distracted driving: Picking up a cell phone to view caller ID information is not reading an electronic message or engaging in a phone call. Appellant veered off the road and tipped his semitruck after picking up his ringing cellphone to check the caller identification, which showed he was receiving a spam call. He was convicted of driving with a suspended license and operating a motor vehicle while using a cellular device. The court of appeals agrees with appellant that his conduct does not satisfy the requirements of Minn. Stat. §169.475, subd. 2 (operating a motor vehicle while using a cellular device).

While appellant was charged with violating section 169.475, subd. 2(a)(1) (prohibiting the use of a cell phone to compose, read, send, etc. an electronic message while driving), the jury was instructed on the subd. 2(a)(2) (prohibiting making a call while driving). However, the evidence is insufficient to support a conviction under either subdivision. Section 169.475, subd. 1(b), includes a definition of “electronic message” that specifically excludes “data transmitted automatically without direct initiation by a person.” The caller ID information that appeared on appellant’s phone falls within this exception. The evidence also does not indicate appellant initiated a call, talked or listened on a call, or participated in a video call. By glancing at the caller ID information, he also did not “engage” in a phone call, but was merely acting to determine whether to engage in the call. Thus, appellant neither sent or received an electronic message or engaged in a phone call while driving, and his conviction under section 169.475, subd. 2, is reversed. State v. Gutzke, A22-1444, 2023 WL 5519380 (Minn. Ct. App. 8/28/2023).”

•  Ineffective assistance of counsel: Attorney’s failure to challenge a defendant’s competence is deficient representation if a reasonably skilled attorney would have doubted the defendant’s competence. Appellant entered a guilty plea to a charge of violating a DANCO and was sentenced. He argues his plea was invalid, his attorney should have challenged his competency to proceed, and the district court should have sua sponte ordered a competency evaluation. 

The Minnesota Court of Appeals finds support in the record for the district court’s decision not to order a competency evaluation. Appellant admitted his guilt, confirmed he understood the plea agreement and his rights, and responded appropriately to all questions asked of him. His responses and comments showed he had consulted with an attorney and understood the proceedings. While he had been found incompetent in the past, this information was not available to the sentencing court. Even if it had been, the most recent competency evaluation in 2015 had deemed appellant competent, and his attorney, his probation officer, and the prosecutor all expressed not having any concerns about his competence.

The 6th Amendment entitles criminal defendants to the assistance of counsel. This right is violated if ineffective assistance is provided. Minn. R. Crim. P. 20.01, subd. 3, requires a defense attorney to challenge a defendant’s competence if the attorney doubts the defendant’s competence. Failure to follow this rule is ineffective assistance. That is, “a defendant’s attorney’s failure to challenge a defendant’s competence to proceed is deficient representation if a reasonably skilled attorney would have doubted the defendant’s competence under the circumstances.” Under these facts, however, appellant’s attorney did not render deficient representation. State v. Epps, A21-0938, 2023 WL 5519405 (Minn. Ct. App. 8/28/2023).

Samantha Foertsch
Bruno Law PLLC 

Stephen Foertsch
Bruno Law PLLC

Enviromental Law



• Youth-led climate litigation victorious in Montana; application elsewhere uncertain. In August a Montana state court issued a ruling in favor of 16 youth plaintiffs, declaring that the state of Montana violated the youth’s constitutional rights to a clean and healthful environment. The plaintiffs in Held v. Montana were represented by attorneys with Our Children’s Trust (OCT), an Oregon-based nonprofit organization representing youth plaintiffs in similar constitutional climate legal actions against state and federal government agencies. 

The plaintiffs, ranging in age from two to 18 when the complaint was filed, challenged provisions of Montana’s state energy policy, which explicitly promotes the use of fossil fuels, and an amendment to the Montana Environmental Policy Act, which forbids the state and its agents from considering the impacts of greenhouse gas (GHG) emissions or climate change when permitting large energy projects that require environmental reviews, including coal mines and power plants. The plaintiffs alleged that the state’s fossil fuel-based state energy system causes and contributes to climate change in violation of their constitutional rights as guaranteed under the Montana Constitution and the public-trust doctrine. 

The Montana Constitution includes unique environmental protection provisions. Article IX, Section 1 of the Montana Constitution provides that “the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” Article IX, Section 3 of the Montana Constitution guarantees “the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways.” The public-trust doctrine is a long-standing legal principle that establishes certain natural resources as common property which the government must preserve and maintain for public use, and is codified in Article IX, Section 3 of the Montana Constitution.

In the ruling, the court affirmed the plaintiffs’ claim that a stable climate is included in the right to a “clean and healthful environment” guaranteed in Montana’s constitution. The court also found unconstitutional the provision in Montana’s Environmental Policy Act prohibiting the state from considering climate impacts when permitting energy projects.

Although the ruling in Held is narrowly focused on provisions of Montana’s state energy policy, the decision illustrates how state constitutional law may provide a foundation for climate legal actions and provides a framework for overcoming procedural hurdles such as standing, causation, and redress. 

Since 2011, OCT has filed actions against the federal governments and all 50 states, alleging that these governmental entities violated the common law public-trust doctrine by failing to limit GHG emissions that contribute to climate change. OCT’s claims are rooted in the public-trust doctrine, which was first formally recognized by the United States Supreme Court in Illinois Central Railroad Co. v. State of Illinois, 146 U.S. 387, 435 (1892). The doctrine has historically been applied to protect the public’s right to use navigable waterways for fishing, commerce, and navigation. A minority of states have expanded their public-trust doctrines to protect public lands, parks, shoreland and beaches, the atmosphere, animals, and plant species.

Some state legislatures have enacted laws reflecting common law public-trust doctrine principles. In 1971, the Minnesota Legislature enacted the Minnesota Environmental Rights Act (MERA). MERA grants any private party, state, or local government the right to sue for declaratory or equitable relief to protect “the air, water, land, or other natural resources located within the state, whether publicly or privately owned, from pollution, impairment, or destruction.” (Minn. Stat. §116B.03, subd. 1).

In 2011, OCT sued the state of Minnesota, Gov. Mark Dayton, and the Minnesota Pollution Control Agency (collectively, the state), on behalf of Reed Aronow, a 25-year-old Minnesota resident. Aronow alleged that the state failed to carry out its duties under the public-trust doctrine and MERA to adequately reduce Minnesota’s GHG output and thus preserve the atmosphere for the benefit and protection of present and future generations of Minnesotans. Aronow requested a declaratory judgment confirming that the atmosphere is protected by the public-trust doctrine and that the state violated the public-trust doctrine by failing to preserve and protect the atmosphere for the use of present and future generations. 

The trial court granted the state’s motion to dismiss for failure to state a claim upon which relief can be granted. The trial court held that the public-trust doctrine applies only to navigable waters, and that Aronow failed to plead a viable claim under MERA. Aronow appealed the trial court’s ruling and requested that the Minnesota Court of Appeals expand the common law public-trust doctrine to include the atmosphere. In an unpublished opinion, the Minnesota Court of Appeals affirmed the trial court’s order and held that held as an intermediate appellate court, it was an error-correcting court and thus without authority to change the law. Aronow v. State, No. A12–0585, 2012 WL 4476642 (Minn. Ct. App. 10/1/2012). Accordingly, at least for the time being, Minnesota’s common law public-trust doctrine applies only to navigable waters and not to the climate.

OCT is aggressively litigating a series of lawsuits invoking the public-trust doctrine against state governments for failure to implement policies that adequately address climate change. In addition to bringing legal actions on behalf of children, OCT has petitioned nearly every state environmental agency to enact rules that would reduce statewide GHG emissions to a level consistent with scientific projections for the global emissions reductions needed to achieve climate stability. Held v. Montana made history when it became the first-ever constitutional climate case to go to trial. As noted, however, Held involves a narrow holding under a state-specific constitutional provision, so its application in other jurisdictions may be limited. Nonetheless, the case provides a striking example of the public-trust doctrine being used to support existing environmental protection statutes and regulations in climate litigation. Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont., 8/14/2023).

• 8th Circuit affirms dismissal of farmer’s wetland certification claims. The 8th Circuit Court of Appeals recently affirmed a South Dakota District Court’s grant of summary judgment that dismissed a farmer’s claims against the United States Department of Agricultural (USDA) and Natural Resources Conservation Service (NRCS). Foster, the farmer, sought to set aside NRCS wetland certification of his land and alleged violations of the Swampbuster Act, Congressional Review Act, and the Administrative Procedure Act. 

The Swampbuster Act permits the Secretary of Agriculture to “delineate, determine, and certify all wetlands.” Relevant here, the act precludes farmers who convert wetlands or produce crops on converted wetlands from receiving certain farm-related benefits. Foster’s land was certified as a wetland in 2004. Foster requested review of the NRCS’s determination in 2011, and then again in 2017 and 2020. The NRCS recertified the land following the 2011 request, but did not conduct additional reviews in 2017 or 2020, reasoning that Foster did not provide new information the NRCS had not previously considered. Foster then commenced action in district court, arguing that the NRCS improperly refused to consider new information, and that his land was outside the scope of the Swampbuster Act. 

The 8th Circuit affirmed the district court’s dismissal of Foster’s claims. As it related to the Swampbuster Act claim, Foster argued that when a farmer requested review of prior wetland certifications, any such certifications were void until the NRCS issued a new certification. The court recognized that this interpretation of the Act would lead to farmers’ ability to “unilaterally nullify wetland certifications” by “filing vague and facially-meritless review requests.”  

Foster next argued that the district court erred in finding the Congressional Review Act was not reviewable through litigation. The 8th Circuit examined the language of the Congressional Review Act and affirmed the district court’s finding based on “broad and unambiguous” language of the Act that precludes “judicial review of all omissions under the [Congressional Review Act], including those of agencies such as the USDA,” and therefore Foster’s CRA claim could not be reviewed. 

Finally, Foster argued the NRCS’s decisions to deny his 2017 and 2020 review requests were arbitrary and capricious, in violation of the Administrative Procedure Act. The 8th Circuit affirmed the dismissal of this claim as well. Foster did not provide evidence that a natural event altered the wetland or that an error existed in the NRCS’s current wetland certification of his land. Nothing in the record indicated that the NRCS acted arbitrarily or capriciously in violation of the APA. Foster v. United States Department of Agriculture, 68 F.4th 372 (2023).


• EPA amends WOTUS rule to conform with Supreme Court Sackett decision. On 8/29/2023, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers issued a final rule amending the definition of “waters of the United States” (WOTUS), prescribed under the Clean Water Act (CWA), in response to the U.S. Supreme Court decision issued in Sackett v. EPA, 598 U.S. __ (2023). Prior to this conformance, the latest definition of WOTUS (the January 2023 rule) was published on 1/18/2023, as the “Revised Definition of ‘Waters of the United States’.” 88 Fed. Reg. 3004 (2023).

The January 2023 rule codified aspects of both Justice Scalia’s and Justice Kennedy’s jurisdictional tests for WOTUS from the Supreme Court decision in Rapanos v. United States. 547 U.S. 715 (2006). In Rapanos, Justice Scalia set forth, in a plurality opinion, that WOTUS includes only waters that are “relatively permanent, standing or continuously flowing” or to wetlands that are immediately adjacent to such waters. And Justice Kennedy, in a partially concurring opinion, established that federal “jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” Keeping this portion of text focused on wetlands, the January 2023 rule defined WOTUS to include: wetlands adjacent to traditional navigable waters, interstate waters, and the territorial seas; wetlands adjacent to and with a continuous surface connection to relatively permanent impoundments and tributaries that meet either the relatively permanent standard or the significant nexus standard; and interstate wetlands that meet either the relatively permanent standard or the significant nexus standard.

But on 5/25/2023, the Supreme Court issued the Sackett decision, significantly curtailing the jurisdictional reach of the CWA over wetlands. Notably, the Court unanimously rejected the “significant nexus” test as a basis for CWA jurisdiction. And the majority held that “waters of the United States” refers only to (i) “geographical features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’” and (ii) adjacent wetlands that are “indistinguishable from those bodies of water due to a continuous surface connection.” Furthermore, the Court stated that to prove jurisdiction over an “adjacent” wetland under the CWA, the party must show that the adjacent body of water constitutes WOTUS (i.e., is a “relatively permanent body of water connected to interstate navigable waters”); and that the wetland has a “continuous surface connection with that water, making it difficult to determine where the water ends in the wetland begins.”

The Sackett decision only invalidated certain portions of the January 2023 rule, and kept intact others, so the amendments (the conforming rule) only revised the portions of the January 2023 rule that were deemed invalid under the Sackett decision. Specifically, the conforming rule removes altogether the “significant nexus” standard, removes “interstate wetlands” from the text of the interstate waters provision, removes wetlands and streams from the list of additional interstate waters, and amends the definition of “adjacent” for wetlands.

No longer will “adjacent” wetlands be considered WOTUS solely because they are “bordering, contiguous, or neighboring… [or] separated from other ‘waters of the United States’ by man-made dikes or barriers, natural river berms, beach dunes and the like.” Under the conforming rule, “adjacent” wetlands will only be considered WOTUS if they have a “continuous surface connection” to jurisdictional waters.

Notably, the conforming rule definition only includes a portion—i.e., “having a continuous surface connection”—of the Sackett decision’s test for adjacent wetlands, which, condensed here, requires adjacent wetlands to be “indistinguishable” from jurisdictional waters due to a continuous surface connection that makes it difficult to determine where the water ends and the wetland begins.

The conforming rule became effective on 9/8/2023, when it was published in the Federal Register. Revised Definition of “Waters of the United States”; Conforming, 88 FR 61964 (9/8/2023).  

• EPA TSCA framework for new PFAS and PFAS uses. In June 2023, the United States Environmental Protection Agency (EPA) announced a framework for evaluating new per- and poly-fluoroalkyl substances (PFAS) and new uses of existing PFAS. Currently, new PFAS or new uses require notice to the EPA under the Toxic Substances Control Act (TSCA) Section 5.  EPA then has 90 days to conduct an evaluation to determine if the new PFAS or new use presents an unreasonable risk of injury to health or the environment. If the EPA finds such risk, it will issue a Section 5(e) order prohibiting or limiting the manufacture, processing, distribution in commerce, use, or disposal to the extent necessary. 

This process under TSCA will now be conducted according to EPA’s planned approach as described in the new framework. This will involve an extensive evaluation EPA has deemed necessary because of the challenge new PFAS and new uses present when there is often insufficient information to quantify the risk. The process will normally include testing requirements for any PFAS that are likely to be persistent, bioaccumulative, and toxic (PBT) chemicals. If test results indicate potential risks, EPA will require additional testing and risk mitigation. If additional testing and risk mitigation fail to address the concern, EPA would prohibit the manufacture or new use. EPA, Framework for TSCA New Chemicals Review of PFAS Premanufacture Notices (PMNs) and Significant New Use Notices (SNUNs) (6/28/2023).

• MN PFAS remediation guidance. Minnesota also acted recently to address PFAS. The Minnesota Pollution Control Agency (MPCA) released a draft PFAS remediation guidance for public review and comment. The guidance outlines the approach MPCA will take to identify, investigate, evaluate, and remediate PFAS contamination at sites in the MPCA remediation program. The remediation program includes Superfund sites (sites remediated under the Minnesota Environmental Response and Liability Act at the state level and under the Comprehensive Environmental Response, Compensation, and Liability Act at the federal level) and Brownfield sites (sites remediated under the voluntary investigation and cleanup (VIC) program). The guidance includes direction to assess these sites for current and historical use of PFAS and proximity to potential PFAS sources to determine whether PFAS sampling is necessary. For Brownfield sites, additional consideration is given to whether the site activities will create an exposure pathway relative to potential PFAS contamination and whether the VIC applicant wants PFAS to be included in the assurance letter. 

The PFAS remediation guidance also includes a summary of risk-based values (RBVs) currently available in Minnesota for assessing risks to human and ecological health. The guidance states that the RBVs should not be interpreted as default cleanup factors and additional lines of evidence should be considered. Public comment on the PFAS remediation guidance will be accepted until 10/5/2023. MPCA Remediation Division PFAS Guidance (draft) (August 2023).

Jeremy P. Greenhouse, Cody Bauer, Vanessa Johnson, and Molly Leisen
Fredrikson & Byron P.A. 

Jake Beckstrom
Vermont Law School, 2015  


Federal Practice


• No standing; future harm not “real and immediate;” no reputational harm. Where the plaintiff challenged the NTSB’s brief suspension of her pilot’s license, the 8th Circuit, distinguishing “standing” from “mootness,” found that her claim that the suspension would harm her prospects for future employment was not “real and immediate,” and further found that she lacked standing to challenge the expired suspension absent a claim of a future injury “with a high degree of immediacy.” Accordingly, the 8th Circuit panel also rejected the plaintiff’s claims of reputational harm. McNaught v Nolen, ___ F.4th ___ (8th Cir. 2023). 

• Fed. R. Civ. P. 24(a)(2); denial of motion to intervene affirmed. The 8th Circuit affirmed a district court’s denial of a motion to intervene as of right pursuant to Fed. R. Civ. P. 24(a)(2), relying on the “presumption” that the proposed intervenor’s interests were adequately represented by the government defendant, and finding that the proposed intervenor had not made a “strong showing” to the contrary. Entergy Ark., LLC v. Thomas, ___ F.4th ___ (8th Cir. 2023). 

• Daubert; district court’s exclusion of expert witness affirmed. Reviewing for abuse of discretion, the 8th Circuit affirmed a district court’s exclusion of the plaintiff’s expert and its award of summary judgment to the defendants in a FELA action, finding that the expert’s opinion was “speculative at most” and therefore “unreliable.” Lancaster v. BNSF Rwy. Co., 75 F.4th 967 (8th Cir. 2023). 

• Fed. R. Civ. P. 37(c)(1); no abuse of discretion in excluding expert’s supplemental opinion. Where the plaintiff’s expert’s causation analysis was all of three sentences, defendants moved to strike the opinion, and the plaintiff opposed the motion and submitted a “lengthy specific causation analysis” from the expert seven months after the deadline for expert disclosures, the 8th Circuit found no abuse of discretion in Judge Wright’s refusal to consider the expert’s declaration and the following award of summary judgment to the defendants, finding that Fed. R. Civ. P. 37(c)(1) did not require that Judge Wright consider a lesser sanction where the plaintiff never proposed any alternative sanction. Cantrell v. Coloplast Corp., ___ F.4th ___ (8th Cir. 2023). 

• No waiver of right to arbitration despite delay. Affirming in part and reversing in part, the 8th Circuit agreed with Judge Ericksen that the defendant had not waived its right to compel arbitration despite failing to assert arbitration as an affirmative defense in its answer and waiting more than two years after the action was filed before it brought its motion to compel, where it brought its motion promptly after plaintiffs’ motion for class certification was granted and none of the named plaintiffs were subject to arbitration agreements. H&T Fair Hills, Ltd. v. Alliance Pipeline, L.P., ___ F.4th ___ (8th Cir. 2023). 

• Fed. R. Civ. P. 44.1; foreign law; timing. The 8th Circuit found that a district court did not abuse its discretion when it granted the defendant’s request to apply foreign law to the plaintiff’s claim, finding that the defendant’s request was timely when it was made after the close of discovery, but nine months prior to the trial date. Rey v. General Motors, LLC, ___ F.4th ___ (8th Cir. 2023). 

• No abuse of discretion in district court denying leave for sur-reply brief. The 8th Circuit found that a district court’s refusal to allow the plaintiff to file a sur-reply brief in opposition to the defendants’ motion for summary judgment was “harmless error,” particularly where the plaintiff did not file a motion to reconsider in the district court. Cornice & Rose Int’l, LLC v. Four Keys, LLC, ___ F.4th ___ (8th Cir. 2023). 

• Federal question; removal; remand; voluntary amendment of complaint; remand. Where a putative class action alleging only state law claims was removed and was then dismissed by the district court for lack of jurisdiction; the dismissal was reversed and remanded by the 8th Circuit, which found that the plaintiff’s state law claims would require “explication of federal law,” and after remand the plaintiff amended her complaint and eliminated every reference to federal law; the plaintiff’s motion to remand was denied; and the defendants’ Rule 12(b)(6) motion was granted, the plaintiff appealed, and the 8th Circuit requested supplemental briefing regarding its subject matter jurisdiction; the 8th Circuit ultimately held that the voluntarily amended complaint “superseded” the original complaint and divested the federal courts of jurisdiction over the action, rejecting concerns that this rule could lead to “forum manipulation.” Wullschleger v. Royal Canin U.S.A., Inc., 75 F.4th 918 (8th Cir. 2023). 

• Application to vacate arbitration award; no subject matter jurisdiction. Where an application to vacate arbitration awards failed to plead the parties’ citizenship and the underlying dispute did not involve a federal question, the 8th Circuit vacated the district court’s order vacating the awards and remanded the action with instructions to dismiss for lack of jurisdiction. Prospect Funding Holdings (NY), LLC v. Ronald J. Palagi, P.C., ___ F.4th ___ (8th Cir. 2023). 

• Removal; refusal to identify members of limited liability company; remand. Where the defendant removed the action on the basis of diversity jurisdiction, failed to identify its members or the members of the plaintiff limited liability company, and declined to comply with Magistrate Judge Micko’s order that it identify the citizenship of both parties, Judge Schiltz accepted the defendant’s “stipulation” and remanded the action to Ramsey County. BevSource, LLC v. Innovation Ventures, LLC, 2023 WL 5000262 (D. Minn. 8/4/2023). 

• Attorney-client privilege; ERISA fiduciary exception. Finding that the ERISA fiduciary exception applied, Magistrate Judge Docherty granted the plaintiff’s motion to compel the production of documents listed on the defendant’s privilege log where the defendant was unable to establish that an “adversarial relationship” existed at the time the documents were created. Hardy v. Unum Life Ins. Co. of Am., 2023 WL 4841952 (D. Minn. 7/28/2023). 

• Fed. R. Civ. P. 34(b)(2); defendants required to disclose whether they are withholding documents. Where defendants asserted objections to multiple document requests but were “postponing” disclosing whether they were withholding documents based on those objections, Magistrate Judge Docherty cited Fed. R. Civ. P. 34(b)(2) and ordered defendants to supplement their responses to comply with the rule. Smartmatic USA Corp. v. Lindell, 2023 WL 4882865 (D. Minn. 8/1/2023). 

• 28 U.S.C. §1292(b); several requests for interlocutory appeals denied. Determining that the plaintiff had not met its “heavy burden” to establish any of the three elements required to justify an interlocutory appeal, Judge Wright denied its requests to have an issue certified for appeal pursuant to 28 U.S.C. §1292(b). Berkley Regional Ins. Co. v. John Doe Battery Manuf., 2023 WL 4864277 (D. Minn. 7/31/2023). 

Judge Tunheim also denied a request to certify a ruling for interlocutory appeal, finding, among other things, that a single intra-district split did not “rise to the level of substantial disagreement” regarding a controlling question of law. Varela v. State Farm Mut. Auto. Ins. Co., 2023 WL 5021182 (D. Minn. 8/7/2023). 

• Ex parte motions to serve third-party subpoenas granted with conditions. Magistrate Judge Foster again granted the plaintiff’s motion for leave to serve subpoenas prior to a Rule 24(f) conference after applying the so-called Arista Records test and finding “good cause,” but also imposed a “limited protective order” intended to protect the rights of the John Doe defendants. Strike 3 Holdings, LLC v. Doe, 2023 WL 4864279 (D. Minn. 7/31/2023).


• Proposed federal rules amendments. Proposed amendments to the Federal Rules of Appellate, Bankruptcy, and Civil Procedure are currently wending their way through the system. 

Of particular interest to federal practitioners are proposed amendments to Fed. R. Civ. P. 16 and 26, which would require the parties to address procedures relating to privilege logs in their Rule 26(f) report, and would similarly require the court to address privilege log procedures in the pretrial scheduling order. 

Written comments on these proposed amendments are due no later than 2/16/2024. 

Josh Jacobson
Law Office of Josh Jacobson

Immigration Law


• Completed Hobbs Act robbery is a “crime of violence” Under INA §101(a)(43)(F). In August the 8th Circuit Court of Appeals held that the petitioner, who pled guilty to one count of Hobbs Act robbery and spent five years in prison, was removable because a completed Hobbs Act robbery is a “crime of violence.” The court noted, “Any [foreign national] ‘convicted of an aggravated felony is removable from the United States.’ Id.; see 8 U.S.C. §1227(a)(2)(A)(iii). The list of qualifying aggravated felonies includes ‘crime[s] of violence’—offenses that have ‘as an element the use, attempted use, or threatened use of physical force against the person or property of another.’ 18 U.S.C. §16(a); see 8 U.S.C. §1101(a)(43)(F).” Green v. Garland, No. 22-2335, slip op. (8th Circuit, 8/16/2023).  

• Motion for reconsideration automatically terminated voluntary departure grant from previous removal proceeding. In July the 8th Circuit Court of Appeals held that the Board of Immigration Appeals (BIA) did not abuse its discretion when it denied the Mongolian petitioners’ motion for reconsideration. According to the court, the filing of their motion to reconsider, prior to the end of their voluntary departure period, automatically terminated the grant of voluntary departure issued in their previous removal proceeding. 8 C.F.R. §1240.26(e)(1). Bekhbat v. Garland, No. 22-2379, slip op. (8th Circuit, 7/27/2023). 

• Nebraska convictions for shoplifting not aggravated felonies. On 7/13/2023, the 8th Circuit Court of Appeals held the Board of Immigration Appeals (BIA) committed error when it found the South Sudanese petitioner was removable for committing a theft offense—constituting an aggravated felony—based upon his Nebraska shoplifting convictions. According to the court, the Nebraska statute of conviction was broader than the generic federal offense and thus rendered the BIA’s decision erroneous. “Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense.” Thok v. Garland, No. 22-2508, slip op. (8th Circuit, 7/13/2023). 

• No actual prejudice shown in motion for reconsideration based on a due process claim. On 7/13/2023, the 8th Circuit Court of Appeals held that the Board of Immigration Appeals (BIA) did not abuse its discretion when it denied the Mexican petitioner’s motion for reconsideration based on a due process claim, given his failure to show actual prejudice. It further found the Board’s application of the wrong legal standard to the petitioner’s motion to reopen was immaterial since it applied a less-stringent standard. Arroyo-Sosa v. Garland, Nos. 22-1334, 22-2593, slip op. (8th Circuit, 7/13/2023).

• Failure to show membership in any of proposed social groups. On 7/6/2023, the 8th Circuit Court of Appeals upheld the denial of asylum and related relief to the Mexican petitioner, finding that the Board of Immigration Appeals (BIA) did not commit error when it concluded none of the petitioner’s 12 proposed particular social groups (PSGs) was cognizable for asylum purposes: (1) cattle ranchers and farmers in Mexico; (2) landowners in Mexico; (3) business owners in Mexico; (4) family of cattle ranchers and farmers in Mexico; (5) family of landowners in Mexico; (6) family of business owners in Mexico; (7) the Uriostegui family; (8) the Uriostegui-Teran family; (9) family of Juan Uriostegui Jimenez; (10) family of gang kidnapping victims; (11) family of gang extortion victims; and (12) deported Americanized Mexicans/ponchos. Uriostegui-Teran v. Garland, No. 22-2472, slip op. (8th Circuit, 7/6/2023). 


• DHS notices extending and redesignating TPS. South Sudan: On 8/21/2023, the U.S. Department of Homeland Security (DHS) announced the extension of the designation of South Sudan for temporary protected status (TPS) for 18 months, from 11/4/2023 through 5/3/2025. Those wishing to extend their TPS must re-register during the 60-day period running from 9/6/2023 through 11/6/2023. The secretary also redesignated South Sudan for TPS, allowing additional South Sudanese to apply who have continuously resided in the United States since 9/4/2023 and have been continuously physically present in the United States since 11/4/2023. The registration period for these new applicants runs from 9/6/2023 through 5/3/2025. 88 Fed. Reg. 60971-79 (2023).

Ukraine: On 8/21/2023, the U.S. Department of Homeland Security (DHS) announced the extension of the designation of Ukraine for temporary protected status (TPS) for 18 months, from 10/20/2023 through 4/19/2025. Those wishing to extend their TPS must re-register during the 60-day period running from 8/21/2023 through 10/20/2023. The secretary also redesignated Ukraine for TPS, allowing additional Ukrainians to apply who have continuously resided in the United States since 8/16/2023 and have been continuously physically present in the United States since 10/20/2023. The registration period for these new applicants runs from 8/21/2023 through 4/19/2025. 88 Fed. Reg. 56872-80 (2023).

Sudan: On 8/21/2023, the U.S. Department of Homeland Security (DHS) announced the extension of the designation of Sudan for temporary protected status (TPS) for 18 months, from 10/20/2023 through 4/19/2025. Those wishing to extend their TPS must re-register during the 60-day period running from 8/21/2023 through 10/20/2023. The secretary also redesignated Sudan for TPS, allowing additional Sudanese to apply who have continuously resided in the United States since 8/16/2023 and have been continuously physically present in the United States since 10/20/2023. The registration period for these new applicants runs from 8/21/2023 through 4/19/2025. 88 Fed. Reg. 56864-72 (2023).

• DHS issues fact sheet: Family reunification parole processes for El Salvador, Guatemala, Honduras, Colombia, Cuba, and Haiti. On 8/7/2023, the Department of Homeland Security (DHS) issued a fact sheet on the new family reunification parole (FRP) processes for El Salvador, Guatemala, Honduras, and Colombia, and the updated family reunification parole processes for Cuba and Haiti. This process makes it easier for eligible individuals to reunite with family in the United States, “the latest example of the U.S. effort to expand lawful pathways and offer alternatives to dangerous and irregular migration.” Key features of this process include the following:

1) Certain nationals of those countries who are beneficiaries of an approved relative petition may be eligible for parole into the United States, provided they are outside the United States, meet all requirements (including screening, vetting, and medical requirements), and not already issued an immigrant visa.

2) They may be considered on a case-by-case basis for a period of up to three years while applying to become a lawful permanent resident on the basis of their approved relative petition.

3) The U.S. government will deliver timely and efficient authorization for those approved and vetted to travel with those paroled into the United States eligible to apply for employment authorization.

4) The process commences with the Department of State issuing an invitation to the U.S. citizen or lawful permanent resident whose relative petition has been approved for a beneficiary (i.e., a family member from Colombia, El Salvador, Guatemala, or Honduras).

5) Only an invited U.S. citizen or lawful permanent resident petitioner may initiate the process by filing a request on behalf of the beneficiary and their eligible family members to be considered for advance travel authorization and parole.

6) Once the beneficiary’s priority date becomes current (i.e., an immigrant visa becomes available), the beneficiary may apply for permanent residence through adjustment of status while in the United States.

7) Noncitizens who fail to use this process or another lawful, safe, and orderly pathway by attempting to enter the United States unlawfully will be subject to severe consequences, including, for example, removal, a minimum five-year bar on admission, and potential criminal prosecution for unlawful reentry.

• USCIS announces new version of Form I-9. On 7/25/2023, U.S. Citizenship and Immigration Services (USCIS) announced the introduction of a new version of Form I-9, Employment Eligibility Verification. Several changes were made to the form, including a checkbox indicating an employee’s Form I-9 documentation was examined using a DHS-authorized alternative procedure. The new version of Form I-9 was made available for use on 8/1/2023. The previous version of Form I-9 (version date: 10/21/2019) will continue to be allowed for use through 10/31/2023. 88 Fed. Reg. 47891-92 (2023). For more on the optional alternatives to the in-person physical document examination method for Form I-9, see 88 Fed. Reg. 47749-54 (2023) and 88 Fed. Reg. 47990-48022 (2023).

R. Mark Frey
Frey Law Office

Indian Law



• The Parental Kidnapping Prevention Act does not apply to Indian tribes.  Following a North Dakota state-court decision granting parents interim shared custody of a child enrolled in the Cheyenne River Sioux Tribe, the tribal-member mother brought the child from North Dakota to the Cheyenne River Indian Reservation in South Dakota without court approval or notification to the non-Indian father. Following the mother’s arrest and detention for parental kidnapping and custody-order violations, the tribal court assumed jurisdiction and placed the child with another relative. The father appealed that decision, arguing that the Parental Kidnapping Prevention Act required the tribal court to recognize the first-in-time North Dakota state custody orders. After a string of remands, appeals, and proceedings in tribal, state, and federal courts, the 8th Circuit reviewed the language of the Act and held, in a matter of first impression in the Circuit, that the Act does not apply to Indian tribes (and thus the tribal court did not need to follow its terms) because it does not specifically reference Indian tribes in the full-faith-and-credit provisions. Nygaard v. Taylor, __ F.4th __,
2023 WL 5211646 (8th Cir. 2023).

Leah K. Jurss
Hogen Adams PLLC

Tax Law


• Hospitalization did not excuse untimely disclosure; experts excluded. The defendant in this property tax dispute failed to disclose several experts by the scheduling order deadline. He claimed an unexpected hospitalization caused the delay and asked the court to serve the experts out of time. The court refused, explaining that under the six criteria laid out in Dennie, the circumstances still warranted suppressing the expert testimony. Dennie v. Metro. Med. Ctr., 387 N.W.2d 401, 406 (Minn. 1986). Notable factors included that defendant did not disclose one expert’s retention until 129 days after the last permissible date for disclosure, and the counsel for the defendant had had their expert witnesses excluded before by this very court, so was already “on notice at the time concerning the importance of timely expert witness disclosures.” Bradley v. Cnty. of Hennepin, No. 27-CV-21-5224, 2023 WL 5340024 (Minn. Tax 8/18/2023).

• Counsel’s unreasonable and vexatious actions justified sanctions. In LakePoint Land II, LLC v. Comm’r of Internal Revenue, both parties submitted motions for reconsideration on the tax court’s previous partial summary judgment order as well as a motion to impose sanctions submitted by the petitioner. 

In the previous order, the court granted partial summary judgment in favor of the respondent. Respondent had sought favorable adjudication on compliance with §6751(b)(1), written supervisory approval requirements, for penalties asserted under §6662(a). Section 6751(b)(1) states that “[n]o penalty under this title shall be assessed unless the initial determination of such assessment is personally approved (in writing) by the immediate supervisor.” U.S.C.A. §6751(b)(1). “Furthermore, section 6751(b)(1) does not require approval to be indicated by a wet signature, nor any particular form of signature; rather, respondent need only show written evidence that timely supervisory approval was obtained.” 

The petitioner’s motion for reconsideration was granted, the respondent’s denied, and the previous order was vacated upon review of previously unavailable evidence. The previous order relied in part upon a penalty consideration lead sheet filed in July 2016. The July lead sheet contained all the penalties eventually used in petitioner’s final partnership administrative adjustment. After the order was granted, it was established by the petitioner, and then agreed to by both parties, that the July lead sheet had been backdated. Given that the July lead sheet had demonstrated the requisite supervisory approval, the court concluded it had made its decision on erroneous evidence. 

The petitioner had additionally filed a motion to impose sanctions requesting (1) the court award reasonable expenses incurred as a result of the respondent’s misconduct and (2) for the court to decide adversely against the respondent’s section 6751(b) written supervisory approval of penalties issue. Upon further review of the newly developed record, the court determined that respondent’s counsel was told regarding the July lead sheet that “I am not sure that the typed in date… was accurate.” Upon this development, the court determined that respondent’s counsel knew or should have known his representation lacked candor and previous declarations by the respondent to the court were false. The court stated the respondent’s counsel failed to meet his ongoing obligations to correct misrepresentations under ABA Model Rule 3.3. 

Holding the determination of fees and costs until after trial, the court granted in part the petitioner’s motion to impose sanctions. The court concluded that the respondent’s counsel’s actions unreasonably and vexatiously multiplied the proceedings in the case and the respondent would be liable for the multiplication. The court, however, found that granting the adverse ruling on written supervisory approval penalties requested by the petitioner would be inappropriate in the case. LakePoint Land II, LLC v. Comm’r of Internal Revenue, T.C.M. (RIA) 2023-111 (T.C. 2023).

• Court “unimpressed” with “common practices” arising from covid administrative constraints. A single issue was before the court in Channels, Inc. v. Comm’r of Internal Revenue: “whether the Court should strike the parties’ revised Proposed Stipulated Decision” after the court found discrepancies between the taxpayer’s answer notice and status report notice. Upon an order to explain the discrepancies, the taxpayer’s counselors explained that as a result of the constraints imposed by covid, the counselors did not possess the physical administrative files of the case. They attempted to reconstruct a complete and accurate copy of their client’s notice of deficiency. A counselor used the first page of an incomplete copy of the notice of deficiency, which was stamped as “ORIGINAL,” and a draft version of the notice to create their answer. Counselors contended that “it became a ‘common practice to reconstruct the SNOD [statutory notice of deficiency]’” because of the covid-19 pandemic. The court was altogether unimpressed given the criticality of SNODs in both adjudication and settlement proceedings. 

The court found the “common practices” disconcerting and stated that the “conduct falls woefully short of [its] expectations for practitioners who regularly appear before it.” The taxpayer’s counselors submitted a document labeled as “ORIGINAL” that was purported to be a “complete copy” but was in fact, a byproduct of undisclosed reconstruction. When their first status report failed to inform of the discrepancies, a counselor merely stated, “I was simply hoping that just by attaching a complete copy back with the Status Report it would at least put the correct notice on record.”

Because the “slipshod-cut-and-paste Status Report Notice presented to the Court created doubt as to… the accuracy-related penalty in the notice of deficiency sent to petitioner,” the court concluded that striking the proposed stipulated decision was warranted and ordered the parties to file revised decision options. Channels, Inc. v. Comm’r of Internal Revenue, T.C.M. (RIA) 2023-109 (T.C. 2023).

• Tax court lacks jurisdiction to provide refund. Here, the commissioner prepared a substitute for return (SFR) for the taxpayer after the taxpayer failed to file a timely federal income tax return for 2015. Following the SFR, the commissioner also issued a notice of deficiency that included additions authorized by §6651. The taxpayer then filed a return. After examination, the commission deemed that the taxpayer was not liable for deficiency or additions in the tax year, and in fact that the taxpayer had overpaid his taxes for the year at issue. The commissioner, however, “contend[ed] that any refund of overpaid tax is barred by statute.” Both parties then filed cross-motions for summary judgment to determine if the taxpayer was entitled to a refund for his overpayment.

The court’s jurisdiction to order refunds for overpayment is limited to when either taxes are paid, or when the taxpayer filed their returns. 26 U.S.C.A. §6512 (b)(2)(B). Here, because the taxpayer failed to file a return before a notice of deficiency was issued, the court’s jurisdiction is limited to only a two-year look-back period. 26 U.S.C.A. §6512 (b)(3) (West). The court determined the taxpayer’s payment did not occur within the two-year look-back period because the notice of deficiency was issued in 2021 and the taxpayer’s employment withholdings had applied as payment in 2016.

While the court was sympathetic to the taxpayer’s situation, “[t]he Supreme Court has made clear that the limitations on refunds of overpayments prescribed… shall be given effect… regardless of any perceived harshness to the taxpayer.” Golden v. Comm’r of Internal Revenue, T.C.M. (RIA) 2023-103, at 2 (T.C. 2023). 

Morgan Holcomb
Adam Trebesch
Mitchell Hamline School of Law

Steve Perry
(612) 278-6333


Adverting Manager
Erica Nelson
(763) 497-1778


Classified Ads
Jackie Duvall-Smith
(612) 333-1183

Art Director
Jennifer Wallace
(612) 278-6311