Notes & Trends – August 2024

Criminal Law

JUDICIAL LAW 

• Affirmative defense: Prima facie evidence of mental illness requires the district court to allow the defendant to present mental illness defense. Appellant stole a vehicle from a garage before starting a fire that damaged the garage and a nearby home. Before trial, appellant submitted multiple reports from a psychologist regarding his mental health and chemical use issues, but the district court rejected appellant’s request to assert a mental illness defense, finding that appellant offered insufficient evidence. He was ultimately convicted of arson, burglary, and motor vehicle theft. The Minnesota Court of Appeals affirmed his convictions.

When a defendant raises the mental illness defense, they must first present prima facie evidence of mental illness before being permitted to assert the defense at trial. What amounts to prima facie evidence of mental illness has not yet been established by the courts, but the Supreme Court clarifies that prima facie evidence in the mental illness defense context is evidence “sufficient to establish, without consideration of contradictory evidence, that because of mental illness or cognitive impairment, the defendant, at the time of committing the alleged criminal act, was laboring under such a defect of reason as to not know the nature of the act or that it was wrong.” Under this standard, while the district court may consider claims by the state that the evidence does not meet the standard, the court should not weigh evidence presented by each party. Consideration of disputed issues of competency and conflicting expert opinions is for the jury.

In this case, the Court finds that appellant satisfied this prima facie standard and the district court erred by depriving him of the opportunity to establish the mental illness defense at trial. As the state did not prove the error had no impact on the verdict, the matter is reversed and remanded. State v. Hinckley, A22-1206, 5 N.W.3d 680 (Minn. Sup. Ct. 5/1/2024).

• Probation: District court may grant demand to execute a sentence even if the probationary terms are less onerous. Appellant received stayed sentences on two DWI cases from two counties and was placed on probation for each. Upon his second probation violation, both district courts granted appellant’s demands to execute his sentence. On appeal, appellant argues the district courts erred in granting his demands as the terms of the probationary sentences were less onerous than the conditions of the executed sentences. The Minnesota Court of Appeals first determines the proper standard of review is plain error, as appellant invited the claimed errors made by the district courts.

Next the court finds the district courts did not commit plain error here, because, as a threshold matter, appellant failed to establish that the district courts made any errors at all. Prior case law established that a defendant has a right to demand execution of a presumptive sentence when the probationary sentence is more onerous. This rule, however, does not prohibit a district court from granting a demand to execute a sentence that carries more onerous conditions than a probationary sentence. The district courts are affirmed. State v. Bogonko, A23-1342, A23-1547, 6 N.W.3d 481 (Minn. Ct. App. 5/6/2024).

• Immunity: Good Samaritan Act provides immunity from prosecution for one who acts in good faith when seeking medical assistance. Appellant was convicted of two counts of fifth-degree controlled substance crimes but argues on appeal that he was immune from prosecution under the Minnesota Good Samaritan Act (MGSA), which provides for overdose medical assistance. The district court held that appellant failed to satisfy the good faith requirement of the MGSA and rejected appellant’s request to submit the immunity claim to the jury as an affirmative defense. While the court of appeals agrees that the MGSA provides immunity from prosecution, not an affirmative defense, the court reverses the district court’s immunity decision.

Appellant called 911 to report his friend was “blue” and not breathing. While waiting for police, appellant attempted CPR. He met police at the door and helped them move his friend from the couch to the floor. He also answered questions posed by police and told them his friend had consumed alcohol and cocaine. Marijuana and a compound containing heroin and fentanyl were later found in appellant’s truck. His friend’s autopsy revealed he had died from the effects of fentanyl, heroin, ethanol, and cocaine.

The MGSA provides that “[a] person acting in good faith who seeks medical assistance for another person who is experiencing a drug-related overdose may not be charged or prosecuted for the possession, sharing, or use of a controlled substance…, or possession of drug paraphernalia,” if “(1) the evidence for the charge or prosecution was obtained as a result of the person’s seeking medical assistance for another person; and (2) the person seeks medical assistance for another person who is in need of medical assistance for an immediate health or safety concern, provided that the person who seeks the medical assistance is the first person to seek the assistance, provides a name and contact information, remains on the scene until assistance arrives or is provided, and cooperates with the authorities.” Minn. Stat. §604A.05, subd. 1.

The district court found that appellant did not act in good faith because he delayed telling police that his friend had ingested cocaine until specifically asked about drug use, did not share the extreme amount of alcohol consumed until after his friend had already died, and did not mention the potential that his friend had ingested heroin. 

The Minnesota Court of Appeals holds that the MGSA’s use of the phrase “may not be charged or prosecuted” clearly indicates that it establishes immunity rather than an affirmative defense. The question turns, then, to whether appellant acted in good faith and whether he cooperated with authorities. The court agrees with appellant’s argument that the “good faith” requirement applies only to the act of seeking medical assistance, and not to any other requirements of the MGSA. “A person acting in good faith who seeks medical assistance” is interpreted by the court to mean “a person acting with an honesty in belief or purpose who tries to locate medical assistance.” The phrase does not, as the district court held, require the immediate disclosure of all known or possibly known intoxicants ingested by the overdose victim.

The court also holds that “acting in good faith” does not modify the cooperation requirement of the MGSA. The criteria in subparagraphs (1) and (2) of Minn. Stat. §604A.05, subd. 1, including the duty to cooperate, “are to be judged objectively, independent of the subjective lens of whether the defendant was acting in good faith.” Affirmed in part, reversed in part, and remanded. State v. Borquist, A23-0685, 7 N.W.3d 145 (Minn. Ct. App. 5/6/2024). 

• Evidence: District court erred by admitting evidence of anonymous, threatening phone calls to a witness. Appellant was convicted of second-degree unintentional murder after he struck the victim with a car following an interaction at a bar earlier that night. At trial, the district court permitted the state to question the victim’s friend, B.A., who was present when the victim was struck, about multiple threatening phone calls from unknown callers, finding the evidence probative of B.A.’s credibility. B.A. testified he had no reason to believe the calls were from appellant but that the calls told him not to testify. The court of appeals affirmed appellant’s conviction. The Supreme Court finds that the threatening phone call evidence’s potential for unfair prejudice to appellant substantially outweighed any probative value. Appellant’s conviction is nonetheless affirmed, as there is no reasonable probability the evidence significantly affected the jury’s verdict.

The court notes that, in prior cases upholding the admission of threat evidence, the evidence was elicited to explain inconsistencies in a witness’s testimony or the witness’s reluctance to testify. The record here does not show either with respect to B.A., making the probative value of the phone calls minimal. It is also well established that threat evidence may be extremely prejudicial, as it carries the potential for the jury to wrongly assume the defendant or his associates made the threats. This risk was not mitigated in appellant’s case.

The district court’s error in admitting the threat evidence, however, was harmless. The evidence was only briefly presented to the jury, was not mentioned more than once by the state, and was vague. B.A. was also thoroughly cross-examined by appellant’s counsel. Moreover, the evidence of appellant’s guilt was strong. Affirmed. State v. Maye, A22-0316, 6 N.W.3d 103 (Minn. Sup. Ct. May 8, 2024).

• Evidence: Alternate perpetrator evidence must be allowed where the evidence clearly has an inherent tendency to connect the alternate perpetrator to the commission of the crime. Appellant was found guilty of the first-degree murder of N.D. in 1986. B.E., who had a sexual relationship with N.D., was initially the primary focus of the investigation. The BCA determined B.E. was a potential source of pubic hairs found in N.D.’s bedroom. In 2019, DNA from the crime scene, including semen and N.D.’s fingernail scrapings, was analyzed. But a different suspect (appellant) was identified as the likely source of the DNA found at the scene. Later samples from appellant matched the crime scene DNA profile. He was indicted for first-degree murder. He moved to admit evidence that B.E. was an alternate perpetrator and to suppress evidence of his DNA analysis. Both motions were denied. 

Under State v. Hawkins, 260 N.W.2d 150, 159 (Minn. 1977), alternate perpetrator evidence is admissible if (1) the defendant proffers foundational evidence that has an inherent tendency to connect the alternate perpetrator with the actual commission of the crime, and (2) the evidence satisfies the ordinary rules of evidence. The Supreme Court finds the district court erred in excluding the alternate perpetrator evidence due to the evidence showing B.E. was with the victim the night she was killed, B.E. drove a vehicle physically consistent with one seen in the victim’s driveway when screaming was heard from her house, pubic hair at the scene could have come from B.E., and B.E. told police during an interview he often wondered if he woke in the middle of the night and killed the victim without remembering. This evidence is sufficient to satisfy the first step of the Hawkins test. The Court emphasizes that this test does not require establishing a definite and unequivocal connection to the crime, but instead requires an inherent tendency to create a connection. 

Not only did the district court err in excluding the alternate perpetrator evidence, but this error was also not harmless beyond a reasonable doubt. If the jury had heard this evidence, the Court cannot say beyond a reasonable doubt that a reasonable jury would have reached the same verdict. Reversed and remanded. State v. Carbo, A22-1823, 6 N.W.3d 114 (Minn. Sup. Ct. 5/8/2024).

• 4th Amendment: Procedure adopted to safeguard privileged materials during the search of a law office of an attorney suspected of a crime. During an investigation into alleged theft by appellant, an attorney, from a client, police searched appellant’s law office and electronic devices seized from her office. Appellant was convicted of theft by swindle. The court of appeals affirmed her conviction. She argues before the Supreme Court that the warrants to search her office and electronic devices were insufficiently particular and the execution of the warrants was unconstitutionally unreasonable because the police did not safeguard attorney-client and work-product privileges.

The Supreme Court agrees with the lower courts that the warrants were sufficiently particular, so the court of appeals is affirmed. However, the Court takes this opportunity to exercise its supervisory authority to establish rules governing searches of the offices of attorneys suspected of crimes in order to safeguard attorney-client privileged material. The Court has previously held that documents from an attorney’s office must be obtained via a subpoena duces tecum, rather than a warrant, where the attorney is not the target of the investigation. The Court determines that a subpoena is not appropriate when the attorney is the target. 

The Court holds that all documents obtained from the search of a law office are presumed privileged and the state carries the burden of proving they are neither privileged nor work product. The Court emphasizes that initial review of files should be as limited as possible during the search process, that the initial screening for privilege and work product must be completed by an entity other than the investigation and prosecution team, and that the state must take precautions regarding data access and retention for evidence obtained in the search of a law office. These rules apply prospectively.

Although these safeguards may not have been followed in this case, the Court finds the potential error harmless beyond a reasonable doubt, given the overwhelming evidence of appellant’s guilt independent of any evidence seized from appellant’s office. State v. McNeilly, A22-0468, 6 N.W.3d 161 (Minn. Sup. Ct. 5/8/2024).

• Procedure: No violation of the UMDDA to continue trial beyond statutory six-month period for good cause. After being charged with first-degree criminal sexual conduct, appellant made a formal request under the Uniform Mandatory Disposition of Detainers Act (UMDDA) for his trial to commence within six months. The request was filed 3/8/2021. Thereafter, appellant changed counsel multiple times. On 8/16/2021, the district court found good cause under the UMDDA to begin trial in October, beyond the UMDDA’s six-month period. Specifically, the court found the delay was necessary to allow defense counsel to prepare for trial. Ultimately, a jury found appellant guilty, and the Minnesota Court of Appeals affirmed.

The UMDDA takes jurisdiction to hear a case from the district court if a trial does not begin by a required date. The Act requires a trial to occur “[w]ithin six months after the receipt of the request… or within such additional time as the court for good cause shown in open court may grant…” Minn. Stat. §629.292. Here, the district court found good cause for a continuance on the record at the 8/16 hearing and the delay, approximately one month beyond the Act’s deadline, was reasonable. The court of appeals is affirmed. State v. Letourneau, A22-0570, 6 N.W.3d 73 (Minn. Sup. Ct. 5/8/2024).

• MIERA: Petitioner is not exonerated if a conviction is reversed because evidence from an unconstitutional search should have been suppressed. Appellant’s conviction for drug possession was reversed on appeal after the court found a search that revealed the drugs in his pocket violated the Constitution and that the drugs should have been suppressed. The district court thereafter denied appellant’s petition for an order declaring him eligible for compensation under the Minnesota Imprisonment and Exoneration Remedies Act (MIERA). 

A petitioner may be entitled to compensation under MIERA if they were exonerated. Minn. Stat. §§611.362-.368. “Exonerated” is defined in section 590.11 and, as is relevant here, means that a court “reversed” the conviction “on grounds consistent with innocence.” “Grounds consistent with innocence” means the petitioner was exonerated through a pardon or commutation based on factual innocence or exonerated because their conviction was vacated or reversed, or a new trial ordered, and there is evidence of factual innocence. Here, appellant’s conviction was reversed but not because of his factual innocence—“the reversal was based on an issue of legal significance.” He was not, therefore, exonerated for purposes of the MIERA. Aery v. State, A23-1329, 2024 WL 2264166 (Minn. Ct. App. 5/20/2024). 

• Confrontation clause: Witness is not unavailable if they could have testified at some point during trial. Respondent’s first trial for second-degree unintentional felony murder ended in a mistrial. A state witness was potentially exposed to covid at the time of the second trial. The district court found the witness was unavailable and allowed the transcript of her testimony to be read into the record during the second trial. Respondent was found guilty after the second trial. The Minnesota Court of Appeals reversed, finding that potential exposure to covid-19 did not make the witness unavailable.

The confrontation clause guarantees a defendant’s face-to-face meeting with witnesses against him or her. However, where a witness is unavailable and the defendant has had a prior opportunity for cross-examination, in-person testimony may not be required. Here, the witness was subject to cross-examination during her testimony at the first trial, but the Supreme Court finds she was not unavailable. The state bears the burden of proving a witness is unavailable and must make good faith efforts to obtain the witness’s presence at trial. The Court holds that a witness’s unavailability must be assessed throughout trial—that is, the “district court should consider not only whether the witness is unavailable on the day that the State desires to call the witness, but also whether the witness will be unavailable at any reasonable point in time during the trial…” 

Here, the witness was exposed to covid-19, but the record does not show if she ever tested positive. The district court never inquired into the witness’s symptoms, level of contact with the covid-positive individual, etc., and county public health officials advised the witness could appear at trial with certain precautions. The state failed to prove witness was unavailable for the entirety of trial, that she could not testify at any point during trial, and the district court’s finding that she was unavailable was error. However, the Court holds that the error was harmless beyond a reasonable doubt. State v. Trifiletti, A21-1101, 6 N.W.3d 79 (Minn. Sup. Ct. 5/8/2024).

Samantha Foertsch
Bruno Law PLLC
samantha@brunolaw.com

Stephen Foertsch
Bruno Law PLLC
stephen@brunolaw.com

Employment & Labor Law

JUDICIAL LAW 

• Unemployment compensation; not actively “seeking” employment. An employee who was not available for suitable work and not actively seeking it because she was caring for her aged mother was denied unemployment benefits. The Minnesota Court of Appeals affirmed a determination by an unemployment law judge (ULJ) with the Department of Employment & Economic Development (DEED) of the employee’s ineligibility under Minn. Stat. §268.035, subd. 23a. In re White, 2024 WL 1364356 (Minn. App. 4/1/2024) (nonprecedential). 

• Unemployment compensation; no “good reason” to quit. An employee of a residential facility for disabled individuals was denied unemployment benefits after she quit her job because she felt that management did not respond to her reports of suspected abuse of a vulnerable resident. The court of appeals affirmed a decision by DEED that she lacked “good reason” to quit because she should have followed the facility’s policy in reporting her concerns to a supervisor and continued employment there. Scott v. Phoenix Residence, Inc., 2024 WL 1613412 (Minn. App. 4/15/2024) (nonprecedential).

•  Covid-19 religious challenge allowed. Former employees of the Mayo Clinic are entitled to pursue a claim of failure to accommodate religious beliefs because they were terminated for refusing to comply with the institution’s vaccination and testing policies during the covid-19 pandemic. Reversing and remanding a ruling of U.S. District Court Senior Judge John Tunheim in Minnesota, the 8th Circuit Court of Appeals held that the claimants adequately pled that their religious beliefs prohibited them from complying and they had adequately exhausted their administrative remedies before the Equal Employment Opportunity Commission (EEOC) before initiating the lawsuit. Ringhofer v. Mayo Clinic, 2024 WL 2498263 (Minn. 2024) (unpublished).

•  Race, gender claims; white male case dismissed. A white man’s claims of race and gender discrimination, along with claims of a hostile workplace and retaliation, were dismissed based upon his allegations of harassing behavior by a female Black co-worker. The 8th Circuit affirmed summary judgment due to failure to establish an inference of discrimination or retaliation or to establish that the co-worker’s conduct was sufficiently severe or pervasive, despite a dissent regarding the retaliation claim. Meinen v. Bi-State Development Agency, 101 F.4th 947 (8th Cir. 2024).

• Tortious interference; misappropriation claims rejected. Claims of tortious interference and misappropriation of confidential information were dismissed on grounds that there was no enforceable consideration for restrictive agreements supported by the ex-employee and failure of his former company to take “reasonable steps” to protect confidential information. The 8th Circuit upheld dismissal of the lawsuit as well as his new employer’s counterclaim for tortious interference. Jacam Chemical Co., LLC v. Shepard, 101 F.4th 954 (8th Cir. 2024).

• Discrimination, retaliation dismissed. Another employee’s lawsuit for discrimination and retaliation also was dismissed after a request for a default was denied. The 8th Circuit deemed the claimant’s evidence insufficient to warrant retaliation and hostile environment claims. Turner v. Shogan, 2024 WL 2290147 (Minn. 2024) (unpublished).

• Worker’s compensation; direct claim allowed. An injured employee is entitled to bring a direct claim for unpaid medical expenses, notwithstanding the failure by a medical provider to intervene in a pending worker’s compensation case. Reversing a ruling of the Workers Compensation Court of Appeals, the state Supreme Court held that the worker could bring the claim directly without participation by the medical provider, and it upheld the determination that the worker sustained a compensable permanent injury. Johnson v. Concrete Treatments, Inc., 2024 WL 2743472 (Minn. 2024) (unpublished).

LEGISLATIVE ACTION 

•  Minnesota law changes 2024. A law requiring employers with 30 or more employees to include salary ranges in job postings was enacted during the state Legislature’s recently concluded session. The measure, which goes into effect next year, requires a “good faith estimate” of minimum and maximum annual salary or wages along with summary of all benefits and other compensation. It’s intended to help close the gender wage gap for job seekers.

Another new law modifies the state Earned Sick and Safe Time law by increasing potential penalties, including enhanced damages and an equal amount of liquidated damages.

Other new workplace measures included updating the state paid leave law and authorizing increased funding; prohibiting the misclassification of employees; standardizing state minimum wage requirements; and updating the State Human Rights Act with enhanced penalties and a new, less stringent determination of “disability.”

The drug and alcohol testing law has been expanded by allowing fluid (saliva) as a source for drug, cannabis, and alcohol testing of employees and job applicants. 

Another new statute bars nonsolicitation restrictions in employee service contracts, expanding the prohibition from last year of most employee noncompete agreements under Minn. Stat. §181.988. 

The longstanding dispute over minimum wage levels for Uber and Lyft drivers was resolved with statewide standards, preempting local laws and keeping the companies from making good on their threats to leave the state, which prompted a veto last year by Gov. Tim Walz of a statewide pay measure, his only veto in six years in office. 

But another equally high-profile measure did not make it through the session. A proposed state Equal Rights Amendment to the state Constitution that would have been placed before the voters this fall a measure barring discrimination based on gender and many other attributes was not enacted. The measure would have added to the Constitution some of the provisions of the Minnesota Human Rights Act regarding employment; those provisions remain intact in the statute.

Marshall H. Tanick
Meyer, Njus & Tanick
mtanick@meyernjus.com 

Environmental Law

JUDICIAL LAW 

• Supreme Court orders unprecedented stay of EPA rule. In late June a 5-4 majority of the U. S. Supreme Court granted a request for a stay of the Environmental Protection Agency’s imposition of its federal implementation plan (FIP) against more than 20 states that failed to meet their “good neighbor” obligations to decrease ozone-causing nitrogen oxide emissions within their borders under the Clean Air Act. The Court’s order in Ohio, et al., v. Environmental Protection Agency, et al., stayed an EPA rule through the Court’s “shadow docket” before any lower court had a chance to consider the merits of the many challenges to the rule. This unprecedented action raises the question of whether a stay so early in the process is a one-off action or just the first in future such challenges that EPA and other federal agencies may face in the future. 

The ozone FIP and subsequent challenges: On 10/1/2015, EPA lowered its eight-hour health-based ozone NAAQS standard to 70 parts per billion (ppb). 80 Fed. Reg. 65292 (10/26/2015). This triggered a three-year deadline for every state to submit state implementation plans (SIPs) to EPA for how they planned to meet the new standard. By October 2018, EPA had received SIPs from virtually every state and Washington, D.C. On 1/31/2023, EPA fully disapproved 19 SIPs and partially disapproved two others for their failure to address adequately how to reduce ozone-forming NOx emissions that were negatively affecting downwind states’ ability to comply with the new ozone standard, i.e., for violating the “good neighbor” provision of the 2015 ozone NAAQS. 88 Fed. Reg. 9336 (2/13/2023). 

Less than two months later, EPA issued its “Good Neighbor Plan,” which was a federal implementation plan (FIP) for 23 states (the 21 states with inadequate SIPs and the two that did not submit SIPs) to reduce NOx emissions at power plants, industrial facilities, or both within those states. 88 Fed. Reg. 36654 (6/5/2023). The FIP went into effect on 8/4/2023. In January 2024, EPA partially approved and partially disapproved SIP submittals for five more states and proposed including those states within the FIP beginning in 2025. 89 Fed. Reg. 12666 (2/16/2024).

Several states and industry groups filed challenges to the SIP denials, the FIP, or both in several U.S. District Courts of Appeals. The 4th, 5th, 6th, and 8th Circuit Courts of Appeal granted motions throughout 2023 and early 2024 to stay EPA’s disapproval of the SIPs for the 12 states, bringing challenges within their jurisdictions until the courts could rule on the merits. Meanwhile, by mid-February 2024, the 6th, 7th and 10th Circuit Courts of Appeal had granted EPA’s motions to transfer the challenges before them to the D.C. Circuit Court of Appeals for consolidation and consideration there because the cases before them involved a nationally applicable rule, which is typically the province of the D.C. Circuit. 

The D.C. Circuit Court of Appeals’ stay denial and the “shadow docket” application: Meanwhile, a number of states, industry groups, and corporations filed a separate challenge to the FIP with the D.C. Circuit and soon afterward requested that the court stay the FIP’s implementation until the court made its decision on their challenge. The D.C. Circuit denied the stay request in September 2023. Petitioners then asked the Supreme Court—via its emergency (or “shadow”) docket—to stay implementation of the FIP while the challenge in the D.C. Circuit played out. The bases for the stay request included these claims: (1) The control measure cost-effectiveness determination in the FIP no longer made sense or would not achieve its purpose with application of the FIP to 12 of the original 23 states stayed by several appellate courts and (2) the states would be injured if they were forced to begin complying with the FIP while the federal appellate courts were considering the various challenges to the FIP and the SIP denials. In its first unprecedented step in this matter, the Supreme Court agreed to hear oral argument on this shadow document request, despite the fact that none of the federal appellate courts had yet ruled on the merits of the challenges. The Court ordered the parties to do expedited briefing on the applicants’ stay request and heard oral arguments (for only the third time on an emergency docket matter) on 2/21/2024.

The majority’s grant of the stay and the dissent’s criticisms of that decision: Five justices, in an opinion written by Justice Neil Gorsuch, found the applicants are likely to prevail on their claim that the FIP was arbitrary and capricious. Specifically, the Court found that EPA failed to give an adequate response to commenters’ concern that the FIP’s control measure cost-effectiveness determinations did not account for how those determinations may shift if the FIP is not applied to all the “upwind” states originally subject to the FIP. As such, EPA did not “reasonably explain” the FIP and ignored “an important aspect of the problem” before it. The majority concluded that the applicants met their burden and ordered the FIP stayed until the D.C. Circuit disposed of the challenge or, if the matter is timely appealed to the Court, until resolution of the matter there. 

Justice Amy Coney Barrett, in a dissent joined by the Court’s three liberal justices, criticized the majority’s decision as granting “emergency relief in a fact-intensive and highly technical case without fully engaging with both the relevant law and the voluminous record.” One of the dissenters’ main critiques was that the majority ignored the fact that EPA used a “state-agnostic methodology” in its cost-effectiveness analyses and resultant emissions controls—that is, EPA calculated cost-effectiveness thresholds based on national, industry-wide data that was not dependent on the number of states covered by the FIP. The dissenting justices concluded the Court should not have granted the application because the applicants had failed to meet the high standard that warrants a stay.

Implications: The biggest question arising from this decision is not specific to this FIP. Eventually, the appellate court(s)—and perhaps even the Supreme Court—will decide the merits of this specific challenge. Oral arguments, in fact, are expected this fall in the D.C. Circuit. Rather, the most important question that lingers from this decision is whether the unprecedented steps the Court took to consider and grant this stay will remain unique to this case or whether the Court, through this decision, is signaling a willingness to use its emergency docket more frequently to intervene early in challenges not just to future EPA actions but those of other federal agencies, as well. That question will not be resolved by monitoring the progress of a single case but instead by watching how and when the Court uses its “shadow docket” in the years to come in response to similar requests.  Ohio v. Environmental Protection Agency, 603 U.S. ___ (2024).

• Nineteen states ask the U.S. Supreme Court to exercise original jurisdiction to enjoin state-led climate-change lawsuits against oil companies. On 5/22/2024, 19 states, led by Alabama’s Attorney General (plaintiff states), filed a motion for leave to file a bill of complaint in the United States Supreme Court against five states that have brought prominent climate-change suits (defendant states). See Mot. For Leave to File a Bill of Compl., Alabama. v. California, (5/22/2024) EFC No. 220158. The additional 18 plaintiff states are Alaska, Florida, Georgia, Idaho, Iowa, Kansas, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming. Claiming the defendant states’ actions discriminate against energy sources favored and promoted by plaintiff states, the plaintiff states are asking the Court to declare unconstitutional and enjoin defendant states’ attempts to impose fossil fuel-related climate-change liability in plaintiff states. 

By way of brief background, in recent years, numerous states, counties, and cities have brought climate-focused state-court actions against fossil fuel companies alleging violations of state tort and consumer protection laws. See California ex rel. Bonta v. Exxon Mobil Corp., No. CGC-23-609134 (S.F. Super. Ct. filed 9/15/2023); Connecticut v. Exxon Mobil Corp., No. HHD-CV-20-6132568-S, (Conn. Super. Ct. filed 9/14/2020); Minnesota v. Am. Petroleum Inst., No. 62-CV-20-3837 (Minn. Dist. Ct. filed 6/24/2020); Platkin v. Exxon Mobil Corp., No. MER-L-001797-22 (N.J. Super. Ct. filed 10/18/2022); Rhode Island v. Chevron Corp., No. PC-2018-4716 (R.I. Super. Ct. filed 7/2/2018). These suits broadly allege that fossil fuel companies engaged in market strategies that deceived the public about the risk of their products’ contribution to climate change. Furthermore, these states allege that this deception led to environmental damage and left the taxpayers of those states to bear the burden of trillions of dollars in infrastructure repairs and climate-control expenses. These costs, the states assert, should be borne by the fossil fuel companies through significant compensatory and punitive damages, restitution, and equitable and injunctive relief imposed by state-court judges.

The plaintiff states’ proposed complaint, which is attached to their motion, accuses defendant states of seeking to regulate out-of-state carbon emissions under the guise of state tort and consumer protection lawsuits (“[A] small gas station in rural Alabama could owe damages to the people of Minnesota simply for selling a gallon of gas.”). The complaint seeks declaratory relief on three counts: (1) By attempting to use their laws to regulate activity wholly within plaintiff states, the defendant states are violating the horizontal separation of powers doctrine; (2) the defendant states’ actions are infringing upon the federal government’s exclusive authority to regulate interstate air emissions; and (3) by attempting to use their laws to impose liability for emissions by or wholly within plaintiff states, with no direct connection to defendant states, defendant states are violating the commerce clause of the United States Constitution. The plaintiff states’ proposed complaint asks the Court to issue declaratory relief regarding the three counts and to enjoin attempts by defendant states to (a) impose liability for emissions by or in plaintiff states, or (b) enjoin the promotion, sale, and/or use of traditional energy sources in or to plaintiff states. 

Plaintiff states’ motion asks the court to invoke its “original and exclusive jurisdiction of all controversies between two or more States,” 28 U.S.C. §1251(a); U.S. Const. art. III, §2. Noting that the Court “honors its original jurisdiction by making it obligatory only in appropriate cases” (citations omitted), plaintiff states, in their accompanying brief, set forth reasons why this is an “appropriate case” for the Court’s original jurisdiction. The brief advances two central arguments. First, plaintiff states argue that the Court should exercise its original jurisdiction because of the great “seriousness and dignity” of the claims. In support of this argument, the plaintiff states contend, among other things, that defendant states are asserting “the power to enact disastrous nationwide energy policy via state tort law” and attempting to impose a “global carbon tax on the traditional energy industry.” But as the five defendant states assert this power, plaintiff states argue, “every other State’s power within its borders must wither,” an outcome that circumvents the notion of federalism and equal sovereignty among states and violates the prohibition on extraterritorial regulation embodied in the commerce clause. 

The plaintiff states’ second central argument regarding why the Court should exercise its original jurisdiction in this case is that no alternative forum is available. Nearly every federal court to consider the issues has remanded to state court, plaintiff states argue; and in state court, they are left to “hope their interests are protected by private parties litigating against Defendant States in their own courts under their own laws.” These fora, the plaintiff states maintain, are neither available to them nor fair. 

The plaintiff states conclude the brief by stating that if the court does not find that the controversy at issue meets the factors for granting the motion to file a bill of complaint, then the Court should reexamine and overrule its precedent holding that its exclusive jurisdiction over disputes between states is discretionary. In accordance with the plain language of section 2 of Article III and 28 U.S.C. §1251, the plaintiff states conclude, the Court’s jurisdiction over disputes between states is mandatory, unqualified, and exclusive. 

The Court granted defendant states’ motion seeking an extension and gave defendant states until 8/21/2024 to file a response. Mot. For Leave to File a Bill of Compl., Alabama, et al. v. California et al. (U.S. Sup. Ct., 5/22/2024).

• D.C. Circuit upholds FERC’s evaluation of climate impacts for gas infrastructure projects. On 6/14/2024, the United States Court of Appeals for the District of Columbia Circuit held that the Federal Energy Regulatory Commission (FERC) lawfully issued a certificate for a natural gas pipeline expansion project. The case is Food & Water Watch v. FERC. The petitioner, Food & Water Watch, alleged that FERC overlooked environmental issues when it allowed the Tennessee Gas Pipeline Company to expand natural gas service into the New York metropolitan area. Administrative findings are subject to review for arbitrariness, which is a standard of review highly deferential to the agency’s actions.  

Food & Water Watch argued that FERC’s environmental impact statement (EIS) impermissibly failed to (1) quantify upstream emissions; (2) quantify downstream ozone emissions; and (3) categorize greenhouse gas (GHG) emissions as either significant or insignificant.

The National Environmental Policy Act (NEPA) requires federal agencies, in this case FERC, to prepare an EIS for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. §4332(C) (2018); NEPA imposes procedural requirements; it does not direct particular outcomes. Its purpose is to demonstrate that FERC has considered and that the public is aware of the significant environmental impacts of a project. An EIS must include direct effects of a project and indirect effects that are “later in time or farther removed in distance, but are still reasonably foreseeable.” 40 C.F.R. §§1502.16(a), (b), 1508.8(a), (b) (2019). For example, drilling for additional gas and drilling new wells to supply a pipeline expansion project causes indirect upstream environmental effects ranging from increased traffic to GHG emissions.

Here, the D.C. Circuit held that upstream gas emissions that will indirectly result from the pipeline project are not “reasonably foreseeable” because FERC does not know the number and location of new wells that will be drilled as a result of the project and could not have discovered that information through requests for information to Tennessee Gas. Tennessee Gas operates a pipeline; it will not control where or whether new wells will be drilled. FERC therefore cannot, and is not obligated to, assess upstream environmental effects caused by the uncertain possibility of new wells in an EIS concerning the construction of a pipeline because these impacts are not reasonably foreseeable under NEPA. 

Similarly, the D.C. Circuit concluded that FERC is not required to quantify ozone chemicals released when natural gas is combusted downstream. Predicting the ozone level depends on many variables, such as the season, atmospheric conditions, and whether the natural gas is used for commercial or residential purposes. Attempting to quantify the ozone levels would require complex modeling, ultimately producing uncertain forecasts that would not prove useful to decisionmakers. The court observed that FERC discussed these factors when explaining its decision not to conduct modeling. 

FERC is also not required to label the GHG emissions as “significant” or “insignificant.” The court recognized that FERC had labelled project’s carbon emissions as either “significant” or “insignificant” in the past, but FERC withdrew these labels pending further study about what threshold might warrant such classification. The court permitted this change in course. NEPA regulations only require a “discussion of the ‘significance’ of environmental impacts.” Here, FERC provided ample “discussion” and went beyond its obligations by quantifying GHG emissions and comparing the emissions to national and state totals. 

Separate from its NEPA arguments, Food & Water Watch also argued that FERC impermissibly issued a certificate of public convenience and necessity. Food & Water Watch argued that FERC erroneously found the pipeline expansion necessary without adequate consideration of a recently enacted New York statute and New York City ordinance that requires a reduction in carbon emissions. The court observed that the statute does not prescribe a particular way of achieving the required reductions, nor does it prohibit providing natural gas to meet demand. The court upheld FERC’s necessity determination, observing that FERC relied on sufficient evidence to issue the certificate, including evidence of a shortage of natural gas in the New York metropolitan area. 

In sum, the D.C. Circuit rejected Food & Water Watch’s attempts to block the expansion of a natural gas pipeline or to require further investigation of upstream and downstream carbon emissions associated with the project. No appeal has been filed as of this writing; the deadline for an appeal is 90 days from 6/14/2024. Food & Water Watch v. FERC, No. 22-1214, 2024 WL 2983833 (D.C. Cir. 2024).

Jeremy P. Greenhouse, Cody Bauer, Ryan Cox, Bill Hefner, Vanessa Johnson, Molly Leisen, and Shantal Pai, Fredrikson & Byron P.A.; Abdi Ali, Danielle Heine, and Ellen Stojak, Fredrikson & Byron P.A. (summer associates); and Jake Beckstrom, Vermont Law School 2015

Federal Practice

JUDICIAL LAW 

• Whether arbitration clause is superseded by subsequent agreement is for the court and not the arbitrator. The Supreme Court unanimously held that where litigants were parties to multiple contracts, the first of which contained an arbitration agreement with a so-called “delegation” clause, and the second of which contained a California forum selection clause, the issue of whether claims brought under the second contract were subject to arbitration was to be decided by the court rather than the arbitrator. Coinbase, Inc. v. Suski, 144 S. Ct. 1186 (8th Cir. 2024). 

• Post-removal deletion of federal question claims; multiple cases; certiorari granted. In October 2023, this column noted the 8th Circuit’s decision in Wullschleger v. Royal Canin U.S.A., Inc., in which it held that a post-removal amended complaint that omitted references to federal law “superseded” the original complaint and divested the federal courts of federal question jurisdiction over the action. 

The Supreme Court recently granted certiorari to address whether a plaintiff can defeat federal question jurisdiction by amending a complaint in this manner. According to the petitioners, the 8th Circuit is the only federal circuit that allows plaintiffs to amend their way out of federal question jurisdiction. Wullschleger v. Royal Canin U.S.A., Inc., 75 F.4th 918 (8th Cir. 2023), cert. granted, 144 S. Ct. 1455 (2024). 

While acknowledging the Supreme Court’s grant of certiorari in Wullschleger but also describing Wullschleger as “controlling,” Judge Tunheim recently permitted a pro se plaintiff to amend his complaint to omit any references to federal law and have his previously removed action remanded to the Minnesota courts. Smith v. Allstate Ins., 2024 WL 2728524 (D. Minn. 5/28/2024). 

• Fed. R. Civ. P. 23(c)(1)(C); no abuse of discretion in granting renewed motion for class certification. While ultimately reversing a district court’s certification of a plaintiff class, the 8th Circuit found that the district court did not abuse its discretion in considering plaintiffs’ renewed motion for class certification on an unchanged record. Cody v. City of St. Louis, 103 F.4th 523 (8th Cir. 2024). 

• Trade secrets; standard of review; intra-circuit split resolved. Acknowledging an “intra-circuit split” and “conflicting precedent about the proper standard for reviewing the existence of a trade secret,” the 8th Circuit followed its “older cases” and held that trade secret-related findings are subject to review for clear error. Cigna Corp. v. Bricker, 103 F.4th 1336 (8th Cir. 2024). 

• Mandate; law of the case; proceedings following remand. Where the 8th Circuit previously had reversed a joint and several award of punitive damages against two defendants and remanded for a trial to “separately assess” punitive damages against those defendants, one defendant then settled, the district court held that the other defendant could not be liable for punitive damages, and the plaintiff appealed, the 8th Circuit found that its previous mandate required a new trial on punitive damages for the non-settling defendant, and again remanded the case for trial. Bader Farms, Inc. v. Monsanto Co., 100 F.4th 944 (8th Cir. 2024). 

• Fed. R. Civ. P. 26(a)(2); exclusion of “expert” testimony from fact witnesses affirmed. Affirming a district court’s rejection of the plaintiff’s attempt to offer testimony it described as “expert in nature” from three fact witnesses who had not made expert disclosures, the 8th Circuit also affirmed the district court’s grant of summary judgment to the defendants. Koko Devel., LLC v. Phillips & Jordan, Inc., 101 F. 4th 544 (8th Cir. 2024). 

• Dismissal for lack of personal jurisdiction reversed. The 8th Circuit reversed a Nebraska district court’s dismissal of an action against an Iowa county for lack of personal jurisdiction, finding that a county deputy’s chase of a speeding car that crossed the border into Nebraska meant that defendants had “purposefully availed” themselves of Nebraska’s laws. Wade v. Pottawattamie Cnty., 100 F.4th 991 (8th Cir. 2024). 

• Waiver; argument not listed in statement of issues and appearing only in footnote. Where the appellant failed to identify a choice of law argument in its statement of issues, raised it only in a footnote in its opening brief, and then failed to mention the argument in its reply brief or at oral argument, the 8th Circuit “decline[d] to address” that argument because it was not “properly presented.” Jacam Chem. Co. 2013, LLC v. Shepard, 101 F.4th 954 (8th Cir. 2024). 

• Dismissal of federal claim; exercise of supplemental jurisdiction. The 8th Circuit found no abuse of discretion in a district court’s denial of a motion to remand state law claims and its resolution of those claims even after dismissing the plaintiffs’ single federal claim, finding that doing so was within the district court’s “broad discretion.” Hunter v. Page Cnty., 102 F.4th 853 (8th Cir. 2024). 

• Leave to amend properly denied; failure to offer proposed amended complaint. Affirming a district court’s grant of summary judgment to the defendants on RICO claims, the 8th Circuit found no abuse of discretion in a district court’s denial of the plaintiffs’ request for leave to amend their complaint, where that request was made in a footnote in their summary judgment opposition brief and was not accompanied by a proposed amended complaint. SBFO Oper. No. 3, LLC v. Onex Corp., 101 F.3d 551 (8th Cir. 2024). 

• Motion to remand granted; federal question not “necessarily raised.” Where the plaintiffs filed opioid-related claims in the Minnesota courts; defendants then removed the action, asserting that the action “necessarily” raised a federal claim under the Controlled Substances Act; and the plaintiffs moved to remand, Judge Menendez granted the motion to remand, finding that the plaintiffs’ invocation of federal law was not “substantial” for purposes of the so-called “Grable” doctrine (Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005)). Avera Gettysburg v. Teva Pharms. Indus., Ltd., 2024 WL 2012412 (D. Minn. 2024). 

• Redaction of hearing transcripts; multiple decisions. In two opinions in the same case, Magistrate Judge Micko granted in part and denied in part the plaintiff’s motion to redact hearing transcripts, found that courts “rarely review transcripts for confidential information,” and rejected requests to redact references to a settlement agreement, portions of a privilege log, and the plaintiff’s “patent strategy,” but granted a request to redact references to specific provisions of an agreement that had been designated “highly confidential” and previously filed under seal. Hutchinson Tech. Inc. v. Suncall Corp., 2024 WL 2956508 (D. Minn. 6/12/2024). Hutchinson Tech. Inc. v. Suncall Corp., 2024 WL 3043323 (D. Minn. 6/18/2024). 

• Previously noted order denying motion to substitute plaintiff affirmed. In April 2024, this column noted Magistrate Judge Docherty’s denial of a motion to substitute a plaintiff under Fed. R. Civ. P. 25(a). Judge Tunheim recently affirmed that order, finding that it was “based on valid policy concerns and [was] therefore not clearly erroneous.” In Re: Pork Antitrust Litig. and In Re: Cattle & Beef Antitrust Litig., 2024 WL 511890 (D. Minn. 2/9/2024), aff’d, 2024 WL 2819438 (D. Minn. 6/3/2024). 

Josh Jacobson
Law Office of Josh Jacobson 
joshjacobsonlaw@gmail.com 

Immigration Law

JUDICIAL LAW 

•  SCOTUS: U.S. citizen has no constitutionally protected interest in husband’s visa application. On 6/21/2024, the Supreme Court remanded the 9th Circuit Court of Appeals’ decision that U.S. citizen Muñoz had a constitutionally protected interest in her husband’s visa application. The Court held, in its reversal, that a U.S. citizen does not have a fundamental liberty interest in a noncitizen spouse’s admission into the country and, as a result, is not constitutionally entitled to a review of the denied visa. Under the doctrine of consular nonreviewability, an executive officer’s decision “to admit or to exclude an alien” [sic] “is final and conclusive,” and not subject to judicial review in federal court, citing United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 547. The Court did concede, however, that there is a slight exception “when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen,” citing Trump v. Hawaii, 585 U.S. 667, 703. In the instant case, Muñoz argued that the State Department abridged her fundamental right to marriage by its denial of her husband’s visa. The Court observes that Muñoz is not asserting a right to marriage but rather her right to live in the United States with her husband here. The Court finds her argument muddled and dismisses her claim out of hand.  “Muñoz invokes the ‘fundamental right of marriage,’ but the State Department does not deny that Muñoz (who is already married) has a fundamental right to marriage. Muñoz claims something distinct: the right to reside with her noncitizen spouse in the United States. That involves more than marriage and more than spousal cohabitation—it includes the right to have her noncitizen husband enter (and remain in) the United States.” Finding Muñoz’s claim muddled—“it is neither fish nor fowl”—the Court dismisses it while adding extensive language that the U.S. Government’s sovereign authority to establish the rules for admission and exclusion of noncitizens is “deeply rooted in this Nation’s history and tradition.” Department of State et al., v. Munoz et al., 602 U.S. ___, No. 23-334, slip op. (2024). https://www.supremecourt.gov/opinions/23pdf/23-334_e18f.pdf

• SCOTUS: No problem if first notice doesn’t include time or place of hearing, provided second one does. On 6/14/2024, the Supreme Court found against the noncitizen respondents in these consolidated cases (one from the 5th Circuit, and two from the 9th) who sought to rescind their in absentia orders of removal on the ground that they did not receive proper notice of a removal hearing. According to the Court, one scenario providing for the rescission of an in absentia removal order, occurs when a noncitizen “demonstrates that [he] did not receive notice in accordance with paragraph (1) or (2)” of INA §1229(a). In each of these three cases, the government provided an initial notice to appear (NTA), but failed to specify the time and place for the respondents’ removal hearings. However, the government later provided them with notices under §1229(a)(2), setting out the specific time and place of their respective removal hearings. None of the respondents appeared for their scheduled hearings, and they were consequently ordered removed in absentia by an immigration judge. They then sought to rescind their removal orders, arguing that proper NTAs were not issued under INA 1229(a)(1). The 5th Circuit considered and denied one of the petitions, and the 9th Circuit granted the other two.

The Court ruled that since the respondents later received proper §1229(a)(2) notices spelling out the time and place for their hearings—hearings they missed, which resulted in issuance of removal orders—they could not now seek rescission of those in absentia removal orders on the basis of defective notice under §1229a(b)(5)(C)(ii). Campos-Chavez v. Garland, 602 U.S. ___, No. 22-674, slip op. (2024). https://www.supremecourt.gov/opinions/23pdf/22-674_bq7d.pdf

• Iowa conviction did not amount to sexual abuse of a minor; no aggravated felony here. On 5/28/2024, the 8th Circuit Court of Appeals granted the petition for review, holding the petitioner’s Iowa conviction for knowingly purchasing or possessing visual depiction of a minor engaging in a prohibited sexual act or the simulation of a prohibited sexual act did not qualify as sexual abuse of a minor and was hence not an “aggravated felony” under INA §101(a)(43)(A). Huynh v. Garland, No. 23-1318, slip op. (8th Circuit, 5/28/2024). https://ecf.ca8.uscourts.gov/opndir/24/05/231318P.pdf

•  Lack of nexus to protected ground in denial of asylum. On 5/20/2024, the 8th Circuit Court of Appeals upheld the Board of Immigration Appeals’ determination that the petitioners failed to show a nexus between their protected ground and the persecution they suffered, concluding they had been targeted by Serbian criminals for police informant activities, rather than for being Bosnian Muslims (known as Bosniaks). Durakovic v. Garland, No. 23-2430, slip op. (8th Circuit, 5/20/2024). https://ecf.ca8.uscourts.gov/opndir/24/05/232430P.pdf

• Reinstatement of removal order for petitioner fearing return to Mexico on account of cartel violence. The 8th Circuit Court of Appeals held that substantial evidence supported the immigration judge’s finding that the petitioner failed to show a reasonable fear of persecution or torture, for purposes of removal proceedings under INA §241, with a return to Mexico on account of cartel violence. Accordingly, the court upheld the reinstatement of the petitioner’s prior removal order. Galvez-Vicencio v. Garland, No. 23-3018, slip op. (8th Circuit, 5/6/2024). https://ecf.ca8.uscourts.gov/opndir/24/05/233018P.pdf

• CAT relief denied to petitioner fearing harm by cartel in Mexico. On 5/3/2024, the 8th Circuit Court of Appeals held that the Board of Immigration Appeals (BIA) did not abuse its discretion when it denied the petitioner’s motion for reconsideration of the board’s reversal of the immigration judge’s grant of convention against torture (CAT) relief. The petitioner argued that if returned to Mexico, the Sinaloa Cartel would kill or capture him because he lost their drugs at the time the police arrested him. The court found the board correctly applied its standard of review and did not engage in independent fact-finding. The record did not support a finding of probable future torture should the petitioner be removed to Mexico. Rosas-Martinez v. Garland, Nos. 21-3880, 22-2474 slip op. (8th Circuit, 5/3/2024). https://ecf.ca8.uscourts.gov/opndir/24/05/213880P.pdf

ADMINISTRATIVE ACTION 

• Notice extending and redesignating Haiti for TPS. On 7/1/2024, the U.S. Department of Homeland Security (DHS) announced the extension of the designation of Haiti for temporary protected status (TPS) for 18 months, beginning on 8/4/2024 and ending on 2/3/2026. Those wishing to extend their TPS must re-register during the 60-day period running from 7/1/2024 through 8/30/2024. The secretary also redesignated Haiti for TPS for an 18-month period, allowing Haitians to apply who have continuously resided in the United States since 6/3/2024 and been continuously physically present in the United States since 8/4/2024. The registration period for these new applicants, under the redesignation, begins on 7/1/2024 and ends on 2/3/2026. 89 Fed. Reg. 54484-96 (2024). https://www.govinfo.gov/content/pkg/FR-2024-07-01/pdf/2024-14247.pdf

• Extension of DED for Liberians. On 6/28/2024, President Biden issued a memorandum extending deferred enforced departure (DED) and eligibility for employment authorization to those Liberians who have been continuously present in the United States since 5/20/2017, and were previously eligible for DED under the 6/27/2022 memorandum. “Providing protection from removal and work authorization to these Liberians, for whom we have long authorized TPS [temporary protected status] or DED in the United States, honors the historic close relationship between the United States and Liberia and is in the foreign policy interests of the United States.” 89 Fed. Reg. 55017-19 (2024). https://www.govinfo.gov/content/pkg/FR-2024-07-03/pdf/2024-14756.pdf

• Rape never to be construed a lawful sanction under CAT. On 6/20/2024, the Board of Immigration Appeals held that rape is a sufficiently severe form of abuse to constitute torture and can never be construed as a lawful sanction under the convention against torture (CAT). “While incarceration is a lawful sanction, rape by fellow inmates is not.” The board remanded the respondent’s case to a different immigration judge based on the appearance of bias on the part of the previous judge. Matter of H–C–R–C–, 28 I&N Dec. 809, 813 (BIA 2024). https://www.justice.gov/d9/2024-06/4077.pdf

• President Biden announces new measures to keep families together. On 6/18/2024, President Biden announced efforts to further his agenda of keeping families together with a proposed parole-in-place program allowing certain noncitizen spouses (and their children) of U.S. citizens to pursue permanent residence inside the United States and thus avoid years-long waits abroad for an immigrant visa. 

Key aspects of the proposed program known so far:

• The noncitizen must have been present in the United States without admission or parole and continuously present for 10 or more years as of 6/17/2024;
• The noncitizen has a legally valid marriage to a U.S. citizen as of 6/17/2024;
• The noncitizen must satisfy all applicable legal requirements for permanent residence processing in the United States;
• Those individuals approved under the program will be given a three-year period to pursue permanent residence while also eligible for work authorization for up to three years.

At the same time, President Biden announced expedited work visa processing for individuals, including DACA recipients and other Dreamers, who have earned a degree at an accredited U.S. institution of higher education in the United States and received an offer of employment from a U.S. employer in a field related to their degree. “It is in our national interest to ensure that individuals who are educated in the U.S. are able to use their skills and education to benefit our country.” More details to follow in the coming weeks.

White House, “President Biden Announces New Actions to Keep Families Together.” Fact Sheet. (6/18/2024). https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/18/fact-sheet-president-biden-announces-new-actions-to-keep-families-together/

Department of Homeland Security, “DHS Announces New Process to Promote the Unity and Stability of Families.” Fact Sheet. (6/17/2024). https://www.dhs.gov/news/2024/06/17/fact-sheet-dhs-announces-new-process-promote-unity-and-stability-families

• Securing the southern border. On 6/4/2024, President Biden announced measures to go into effect on 6/5/2024 that bar migrants from receiving asylum who unlawfully cross the southern border between ports of entry. 

Key aspects of the announcement include the following:

• Noncitizens who unlawfully cross the southern border between ports of entry will generally be ineligible for asylum, absent exceptionally compelling circumstances, and unless they meet an exception mentioned in the president’s announcement. 
• Noncitizens who unlawfully cross the southern border between ports of entry and are processed for expedited removal while the limitation is in effect will be referred solely for a credible fear screening with an asylum officer if they affirmatively ask for protection by expressing a fear of return to their country or country of removal, a fear of persecution or torture, or an intention to apply for asylum.  
• The U.S. will continue screening those individuals who express a fear, as noted above, and fail to qualify for an exception under the president’s announcement solely for the relief of withholding of removal and convention against torture at a “reasonable probability of persecution or torture standard”—a new, substantially higher standard than currently applied under the Circumvention of Lawful Pathways rule that went into effect on 5/11/2023.
• These measures will remain in effect until 14 calendar days after there has been a seven-consecutive-calendar-day average of less than 1,500 encounters between the ports of entry. The measures will again go into effect, or continue, as appropriate, when there has been a seven-consecutive-calendar-day average of 2,500 encounters or more.

White House, “President Biden Announces New Actions to Secure the Border.” Fact Sheet. (6/4/2024). https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/04/fact-sheet-president-biden-announces-new-actions-to-secure-the-border/

89 Fed. Reg. 48710-72 (2024). https://www.govinfo.gov/content/pkg/FR-2024-06-07/pdf/2024-12435.pdf

R. Mark Frey
Frey Law Office
rmfrey@cs.com

Indian Law

JUDICIAL LAW 

• The ISDEA requires the Indian Health Service to pay contract support costs incurred by tribes in the administration of third-party-payer revenue. The Indian Self-Determination and Education Assistance Act (ISDEA) allows tribes to contract with the Indian Health Service (IHS) to self-administer health care programs normally operated by IHS. In addition to the congressionally appropriated amount of funding for the healthcare programs themselves, and third-party-payer funds from Medicare, Medicaid, and private insurers, Congress amended the ISDEA to include payment to tribes of contract support costs, such as the administrative and overhead expenses required to operate the programs. Two tribes sued the United States, arguing that the contract support costs must include the overhead and administrative expenses incurred in collecting and spending third-party-payer funds. The Supreme Court reviewed the text of the ISDEA and held that if a tribe must collect and spend such third-party-payer funds to comply with its self-determination contract, contract support costs must be provided for those activities. Becerra v. San Carlos Apache Tribe, 602 U.S. ___, 144 S.Ct. 1428 (2024).

Leah K. Jurss
Hogen Adams PLLC
ljurss@hogenadams.com

Intellectual Property

JUDICIAL LAW 

• Trademark: Agreements discussing right to exclude establish ownership of mark. Judge Magnuson recently granted defendant Delta Dental of Minnesota’s motion to dismiss. Plaintiff Direct Benefits sued Delta Dental for false designation of origin under the Lanham Act as well as for common-law trademark infringement, tortious interference, equitable and promissory estoppel, and unjust enrichment related to Dental Dental’s use of the trademark Pathfinder. Delta Dental moved to dismiss the Lanham Act claim, contending that if that claim was dismissed, there would be no federal jurisdiction over the remainder of the claims, and the auxiliary claims would need to be dismissed without prejudice. The dispute arose between Delta Dental and Direct Benefits based on agreements Delta Dental entered into with third party DBI, Inc., of which Direct Benefits acquired substantially all the business and operational assets in April 2021. Ownership of a mark is a prerequisite to a claim of infringement of that mark in violation of the Lanham Act. Direct Benefits argued that the court must accept as true the allegation in the complaint that DBI owned the mark. 

Delta Dental asserts that the agreements quoted in the complaint and thus “necessarily embraced by” the complaint demonstrate that Direct Benefits’ allegations are not plausible. Because the agreements allowed Delta Dental to revoke DBI’s role distributing Pathfinder plans at any time, the only plausible inference is that DBI did not own any rights in the Pathfinder name. Without any allegation that DBI had the authority to exclude others from use of the Pathfinder trademark, Direct Benefits’ pleading evidenced that Delta Dental controlled access to the mark. Direct Benefits failed to plausibly state a claim for violation of the Lanham Act. The court noted the usual practice is to dismiss pendent claims when the federal claims are dismissed before trial. Finding no reason to vary from the usual practice, the court dismissed the Lanham Act claim with prejudice and dismissed the remaining claims without prejudice. Direct Bens. v. Delta Dental of Minn., No. 24-252 (PAM/DLM), 2024 U.S. Dist. LEXIS 84298 (D. Minn. 5/9/2024).

• Trademark: Names clause does not violate 1st Amendment. The Supreme Court of the United States recently issued an opinion holding that the Lanham Act’s names clause does not violate the First Amendment. Steve Elster sought to register as a trademark the phrase “Trump too small” and an accompanying hand gesture for use on apparel. The Trademark Office refused registration on the basis of the Lanham Act’s “names clause,” which prohibits trademarks that include the name of a living person without their consent. The Trademark Trial and Appeal Board upheld the examiner’s decision and rejected Elster’s argument that the names clause violated his 1st Amendment rights. The federal circuit reversed, holding the names clause failed under both strict scrutiny and intermediate scrutiny.  The Supreme Court granted certiorari to resolve whether the Lanham Act’s names clause violates the 1st Amendment. The Supreme Court reversed. The Court confirmed its recent trademark holdings that viewpoint-based trademark restrictions, including bans on disparaging or offensive marks, violate the 1st Amendment. The names clause, however, was held to be a content-based rule, not a viewpoint-based rule. The Court declined to offer a framework for assessing other content-based trademark restrictions. Vidal v. Elster, No. 22-704 (U.S. 6/13/2024).

Joe Dubis
Merchant & Gould
jdubis@merchantgould.com

Probate & Trust Law

JUDICIAL LAW 

• Transfer of interest by intestate succession is a breach of a consent-to-transfer clause. The appellants entered into a contract for deed with their son that contained language prohibiting the sale, assignment, or “otherwise transfer” of the son’s interest in the property without the written consent of the appellants. The appellants’ son died intestate a few years after executing the contract for deed. The personal representative of the son’s estate later informed the appellants that he intended to sell some of the property that was subject to the contract for deed. The appellants responded by cancelling the contract for deed. The district court found that the intestate transfer of the son’s interest to his own young child violated the consent-to-transfer provision in the deed and materially breached the contract for deed. The Minnesota Court of Appeals reversed. The Supreme Court, however, agreed with the district court. The parties did not dispute whether a “transfer” occurred when the son died. The dispute related to whether the contract for deed required an affirmative action by the son in order to be considered a transfer. The Supreme Court indicated that there was nothing in the consent-to-transfer provision that limited the word “transfer” to only transfers resulting from the son’s purposeful acts. Therefore, the Supreme Court held that the word “transfer” encompassed both voluntary and involuntary transfers, including those that occurred by operation of law. For this reason, the Supreme Court found that the consent-to-transfer provision was breached when the son’s interest in the farm passed to his own young child by intestate succession. Kuhn v. Dunn, ___ N.W.3d ___, No. A22-1298, 2024 WL 3168349 (Minn. 6/26/2024).

• Testimony of second attesting witness not required to probate will. A charity petitioned to formally probate a decedent’s will, which left everything to charity and specifically excluded the decedent’s daughter. The decedent’s daughter objected on the basis that the will was not validly executed. Specifically, the will was not self-proved and contained only the decedent’s signature, the notary’s signature, and an indecipherable signature from an unknown third party. At the hearing, a second charity presented testimony from the notary who confirmed that he signed and notarized the will. The daughter presented testimony from a handwriting expert who testified that she did not know whether the indecipherable marking was a signature, but that it could be a stylized signature. The district court admitted the will to probate and found that the charity fulfilled the evidentiary requirements for a contested proceeding relating to a will that was not self-proved. The daughter appealed. The court of appeals affirmed the district court and held that the district court did not misapply the law by admitting the decedent’s will to probate without extrinsic evidence about the second witness. In re Estate of Abrahamson, No. A23-1127, 2024 WL 2131696 (Minn. Ct. App. 5/13/2024).

LEGISLATIVE ACTION

• Statutory change in immunity for guardians. On 5/24/2024, Gov. Tim Walz approved legislation that significantly changes prior law relating to immunity for guardians. Prior to the enactment, Minn. Stat. §524.5-313(c)(2) provided that if a guardian were to fail to meet their duty to provide for the care, comfort, and maintenance needs of the person subject to guardianship, such failure shall constitute grounds for removal. Despite being grounds for removal, “the guardian shall have no personal or monetary liability…” Now, however, that language has been removed. Instead, new language exists in Minn. Stat. §524.5-315(e) that provides that, while the same failure shall constitute grounds for removal, “the guardian shall not be held liable for acts or omissions made in the discharge of the guardian’s duties except for acts or omissions that result in harm to the person subject to guardianship and that constitute reckless or willful misconduct, or gross negligence.” This change in liability is effective 8/1/2024 and “applies to causes of action accruing on or after that date.”

Jessica L. Kometz
Bassford Remele
jkometz@bassford.com

Tax Law

JUDICIAL LAW 

• SCOTUS defers on realization requirement; holds mandatory repatriation tax constitutional. In a closely watched opinion, Moore v. United States, the Supreme Court upheld the constitutionality of the 2017 Mandatory Repatriation Tax (MRT). The Court did not, however, address whether Congress may tax unrealized income. 

Charles and Kathleen Moore invested in an American-controlled foreign entity. While the corporation generated income, the income had not been distributed to any American shareholders. In compliance with the MRT, at the end of the 2017 tax year the Moores declared just over $130,000 in income, paid the taxes due on that amount and then sued for a refund. The Moores framed the MRT as taxing unrealized income. Such an effort, the Moores argued, is unconstitutional. The Court rejected this framing: “the MRT does tax realized income—namely, income realized by the corporation.” The Court articulated a narrow question: “whether Congress may attribute an entity’s realized and undistributed income to the entity’s shareholders or partners, and then tax the shareholders or partners on their portion on that income.” Id. at 1688–89. 

Through a line of cases prior to 1938, the “Court’s precedents had established a clear rule that directly contradicts the Moores’ argument in this case.” Id. at 1690. These cases established without serious question by either Congress or the federal courts that “Congress can attribute the undistributed income of an entity to the entity’s shareholders or partners, and tax the shareholders or partners on their pro rata share of the entity’s undistributed income.” The Moores did not seek to overrule any of the precedents, and instead sought to differentiate the MRT from the taxes in those cases. Id. at 1693. 

The Moores first argued that “partners can be taxed on a partnership’s income only because as of the time that the Sixteenth Amendment was ratified in 1913, partnerships were not seen as legal entities separate from the partners.” Id. at 1694. The Court was not persuaded, reasoning that while in certain contexts the Court has “declined to recognize partnerships as separate entities,” when the “Sixteenth amendment was ratified, the courts, Congress, and state legislatures treated partnerships as separate entities in many contexts.” 

The Moores’ second argument sought to “distinguish S corporations by saying that shareholders’ choice to become an S corporation necessarily means that the S corporation’s income is truly the shareholders’ come.” The theory, however, “does not explain Congress’s authority to tax the shareholders of S corporations directly on corporate income,” but rather is “another example of Congress’s authority to either tax the corporation itself on corporate income or attribute the undistributed income to the shareholders and tax the shareholders.” Id. at 1695. 

The Moores’ third argument attempted to distinguish the history of taxing closely held foreign corporations by arguing the “doctrine of constructive realization” applied. The Court, however, failed to find any use of the phrase “constructive realization” in code or case law, instead finding it “to be a one-off label woven out of whole cloth by the Moores to allow them to sidestep any existing tax… that does not accord with their proposed constitutional rule.” Even if the Court had accepted “constructive realization” as a theory, the Moores within their own arguments make concessions that “would necessarily mean that the MRT likewise” (that is, along with subpart F taxes which are not unconstitutional) “imposes taxes on constructively realized income.” 

The Court found that the “Moores’ set of ad hoc distinctions d[id] not undermine the clear rule established by th[e] Court’s precedents.” Id. at 1694. Instead, the Court held, without deciding whether realization is a constitutional requirement, that MRT “falls squarely within Congress’s constitutional authority to tax.” Id. at 1696. Moore v. United States, 144 S. Ct. 1860 (2024). 

• Claims processing rule vs. jurisdictional requirement. Is the 90-day deadline for filing a petition for determination of employment status a jurisdictional requirement? The petitioner in Belagio Fine Jewelry, Inc., v. Comm’r of Internal Revenue failed to file employment tax returns. Following an audit, the commissioner issued a notice of employment tax determination. Recipients of such determinations have 90 days to file a petition for redetermination. Petitioner mailed his petition for redetermination four days before the 90-day period expired, but petitioner mailed the petition via a service that was not a designated private delivery service. The petition arrived one day after the 90-day deadline. 

The court first determined that the petition was untimely filed. Petitioner argued, however, that despite this untimeliness, the court retained “jurisdiction because the 90-day deadline is a claim-processing rule, subject to equitable tolling.” 

The court distinguished jurisdictional requirements from claim-processing rules. The claim-processing rule directs the “parties [to] take certain procedural steps at certain specified times without conditioning a court’s authority to hear the case on compliance with those steps.” Boechler, P.C. v. Comm’r of Internal Revenue, 142 S. Ct. 1493, 1497 (2022). “Because of the vast consequences of a determination as to whether a procedural requirement is jurisdictional… the Supreme Court has endeavored to bring some discipline to the classification of requirements as jurisdictional.” Belagio at *5 (internal quotations omitted). Therefore, a procedural requirement is “jurisdictional only if Congress clearly states that the deadline is jurisdictional.”  “Traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences.” U.S. v. Wong, 135 S. Ct. 1625, 1632 (2015). Using those tools, the Court held that the 90-day deadline was not jurisdictional and denied the commissioner’s respondent’s motion to dismiss. Belagio Fine Jewelry, Inc., v. Comm’r of Internal Revenue, 162 T.C. o. 11 (T.C. 2024). 

• Qualified conservation easement regulation fails under APA. Petitioners in Valley Park Ranch, LLC v. Comm’r of Internal Revenue argued that a Treasury regulation was arbitrary and capricious under the Administrative Procedure Act, and the tax court agreed. Under section 170(h)(5)(A), the Code defines a “qualified conservation contribution” as one that is “protected in perpetuity.” However, if the conservation purpose of the property has to be extinguished at some point in time—by a judicial proceeding or a governmental taking—Treas. Reg. §1.170A-14(g)(6) states that the donee organization “must be entitled to a portion of the proceeds.” Petitioners contended that during the promulgation of this rule, the IRS and Department of the Treasury did not adequately address concerns raised during the rulemaking process about the policy and practical problems of this rule. The tax court agreed, finding that the IRS and Treasury “failed to respond to a significant comment,” and therefore set aside the regulation. 

The court proceeded to evaluate whether the deed in this case was sufficiently restricted in perpetuity by statute, and concluded that it was, since the deed “perpetually prohibited uses and activities” on the entire property and specifically stated the property was to be “retained forever predominantly in its natural, scenic, and open space condition.” Valley Park Ranch, LLC v. Comm’r of Internal Revenue, No. 12384-20, 2024 WL 1328847 (T.C. 3/28/2024).

• Option agreements as a possible economic and factual sham. In Parkway Gravel, Inc. v. Comm’r of Internal Revenue, the court was asked to determine whether petitioner engaged in sham transactions when it entered into an option agreement for the sale of its property.

Petitioner is one of many companies within a parent company network that focuses on construction and retail development. After using the land for many years in the furtherance of their development business, petitioner decided to sell the land. In 2006, petitioner granted an option to V&N, the “development arm” of petitioner’s parent company’s network. Subsequently, in 2007, a sales agreement was reached with a buyer that provided the appraised value of the land at that time to petitioner and the remainder at the time of closing to V&N. The sales agreement obligated all three parties to cooperate in their efforts to rezone land. Over the next five years, the agreement was repeatedly extended, but eventually in 2012 the sale was closed, and petitioner and V&N were paid under the sales agreement. Petitioner used its share of the proceeds to enter a like-kind exchange and attached the required like-kind exchange forms when it submitted its corporation income tax return for its tax year ending in 2013. 

Upon review, the commissioner determined a deficiency in petitioner’s filing, alleging the option agreement between petitioner and V&N was a factual and economic sham. Under the sham transaction doctrine, when a transaction has no substance or economic effect, the IRS can disregard the transaction. Gregory v. Helvering, 293 U.S. 465 (1935). When a transaction does not occur, does not occur as reported, or was performed in violation of background assumptions of fair dealing, it is considered a factual sham (citing In Re CM Holdings, Inc., 301 F.3d 96, 107–8 (C.A.3 (Del.), 2002)). Alternatively, if the transaction “had no independent economic significance aside from its tax implications,” the transaction is an economic sham. Parkway Gravel, at *9 (citing Krumhorn v. Comm’r of Internal Revenue, 103 T.C. 29, 46 (T.C. 1994)).

The commissioner contended petitioner’s and V&N’s common control supported its position that the transaction was a factual sham. For a sham, however, to be factual, a transaction between parties would have never been undertaken. Lerman v. Comm’r of Internal Revenue, 949 F.2d 44, 48 2.6 (C.A.3, 1991). Here the court found sufficient evidence the transaction was not a factual sham. Both petitioner and V&N had obligations under the agreement, which they fulfilled in their efforts to rezone the property. These same actions undertaken by V&N support the court’s determination that the transaction was not an economic sham either. Courts consider in determining if a transaction lacks economic substance “both the ‘objective economic substance of the transactions’ and the ‘subjective business motivation’ behind them.” ACM P’ship v. Comm’r of Internal Revenue,157 F.3d 231, 247 (C.A.3, 1998) (quoting Casebeer v. Comm’r of Internal Revenue, 909 F.2d 1360, 1363 (9th Cir. 1990)). The court found the option agreement was entered into in pursuit of the parties’ motivations to sell the land, took advantage of V&N’s established expertise in real estate development, and was ultimately a successful business agreement for all parties. 

While petitioner and V&N were under the same common control, the court determined there was sufficient evidence to find the option agreement between the parties was neither a factual nor economic sham. Parkway Gravel, Inc. v. Comm’r of Internal Revenue, T.C.M. 2024-59 (T.C. 2024).

• Property tax and procedure: Dismissal with prejudice for failure to secure counsel, unreasonable delay. Individuals are permitted to appear on their own behalf in Minnesota Tax Court. An individual is also permitted to appear as a general partner of a partnership, or as the sole shareholder of a corporation or a single-member limited liability corporation. Individuals may not, however, appear on behalf of not-for-profit organizations. Because the petitioner in this case was not a general partnership nor a sole proprietorship or single-member LLC, and because the petitioner’s actions caused unreasonable and inexcusable delay, the court dismissed the property tax petition with prejudice. TLC Educ. Found. v. Cnty. of Hennepin, No. 27-CV-22-6925, 2024 WL 2166207 (Minn. Tax 5/14/2024).

• Property tax: County’s appraisal “does not inspire confidence,” appeal successful. Petitioner timely filed its challenge to the 1/2/2021 assessment of the subject property, the Cowboy Jack’s restaurant off I-694 in New Brighton. The parties offered competing appraisals, which the court thoroughly reviewed. The court found that the county’s appraisal report lacked support, and in contrast found the testimony of the petitioner’s expert to be credible. The court adopted the petitioner’s position and ordered the assessed value of the subject property to be decreased from $2,273,800 to $1,650,000 for the relevant time period. Lloyd Engelsma 1984 Fam. Tr. v. Cnty. of Ramsey, No. 62-CV-22-1660, 2024 WL 2166940 (Minn. Tax 5/14/2024).

• Estate tax: Life insurance included in value of estate; impact on succession planning. Brothers Michael and Thomas Connelly were the sole shareholders of a building supply corporation. Their succession planning involved a contractual obligation by the company to redeem the shares of one shareholder should that shareholder predecease the other. Michael died, and the company redeemed his shares. When valuing the company, the estate relied on Estate of Blount v. Commissioner, 428 F.3d 1338 (11th Cir. 2005) to exclude the value of the insurance proceeds. A unanimous court held that “life-insurance proceeds that will be used to redeem a decedent’s shares must be included when calculating the value of those shares for purposes of the federal estate tax.” Connelly v. United States, 144 S. Ct. 1406 (2024).

• Income tax: “From any source derived.” Wisconsin resident Christopher Wendell and his spouse filed Minnesota tax returns claiming no taxable income in Minnesota, despite Wendell’s receipt of more than $1 million from Minnesota sources for the two years at issue. Wendell worked as an anesthesiologist with the Plymouth-based Associated Anesthesiologists, from which he received over $500,000 in wages or compensation in each of the two tax years. Wendell also received ordinary business income from other Minnesota sources. In a case decided without argument, the Minnesota Supreme Court affirmed the tax court’s decision that payments received by taxpayers were taxable. The Court upheld the modification of the taxpayer’s reported income and affirmed the imposition of a 25% penalty for filing frivolous returns. The Court rejected the taxpayer’s constitutional challenges to the frivolous filing penalty. Wendell v. Comm’r of Revenue, No. A23-1259, 2024 WL 2837366 (Minn. 6/5/2024).

• Apportionment: Alternative method appropriate. 

E. I. DuPont manufactures and sells a range of products in the fields of pharmaceuticals and health care, agriculture, electronics, and more. This science and technology company does business worldwide, including in Minnesota. The current dispute involved how to apportion DuPont’s multistate income to Minnesota. Specifically, the question involved the treatment of income from a risk-management policy. DuPont adopted a risk management policy to address the risk of fluctuations in foreign currency. The policy relies in part on foreign exchange contracts (FEC). Foreign exchange contracts can result in net income. The question the tax court addressed was whether inclusion of the FECs distorted the regular apportionment formula such that it would be appropriate to use an alternative formula. The court explained that there is sparse guidance in Minnesota case law on the use of an alternative apportionment method. Appellate court decisions in other states, including California and Tennessee, provided examples of how courts have addressed the effect on apportionment of the “so-called ‘treasury functions’” such as the one at issue in this case. The court reasoned that including FEC gross receipts in the Minnesota apportionment factor substantially distorts DuPont’s income arising from taxable business activities in Minnesota. This distortion satisfies the threshold inquiry. The court also agreed with the commission that an alternative method—here, removing the FEEC gross receipts from the calculation of the apportionment factor and substituting net income from FEC transactions—fairly reflected the company’s income in Minnesota. E. I. duPont de Nemours & Co. & Subsidiaries, v. Comm’r, No. 9485-R, 2024 WL 3152928 (Minn. T.C. 6/24/2024). 

• Property tax: Discovery dispute; plain meaning of expert disclosure requirement applicable to expert retained by party. Petitioner College City Beverage filed a motion in limine requesting exclusion of written and oral testimony of two experts. College City argued that the county had failed to timely disclose the experts as required by the scheduling order. Neither expert had been retained by the county. Instead, one expert previously had been retained by College City and another expert had been retained by a lender. The court agreed that the scheduling order, by its plain language, did not require disclosure of these experts because the order required disclosure only of experts retained by a party. These experts were not retained by the county; rather, they were subpoenaed. A temporary stay of proceedings unrelated to the discovery dispute mitigated the impact of the late disclosure on College City’s trial preparation. The motion in limine raised additional grounds for exclusion, which the court declined to rule on at the time of the order. College City Beverage, Inc. v. Rice County, No. 66-CV-22-841, 2024 WL 3049829 (Minn. T.C. 6/18/2024).

Morgan Holcomb, Leah Olm, Adam Trebesch
Mitchell Hamline School of Law