Hail the departing chief: Gildea’s legacy includes 13 cases for 13 years

By Cathy E. Gorlin and Marshall H. Tanick

There will be a new look at the Minnesota Supreme Court this fall due to the October retirement of Chief Justice Lorie Gildea after 13-plus years at the helm. The lawyer turned Hennepin County District Court judge, and later the second woman state Supreme Court chief, was succeeded on October 1 by her colleague Natalie Hudson. Hudson, the Minnesota Court’s first Black chief, is being replaced by Karl Procaccini, a lawyer and former chief legal aide to Gov. Tim Walz, who unilaterally made the pair of appointments.

During her tenure leading the Court, the outgoing chief justice navigated a tumultuous era, beginning with emergence from the recession of 2007-09 and encompassing the subsequent economic rebound; a narrow, partial-recount gubernatorial election; the scourge of covid; the fall-out from the George Floyd murder; and narrow defeats of a couple of constitutional amendments (seeking to require photo ID for voters and to bar same-sex marriages).

Chief Justice Gildea presided over more than 1,000 appeals and wrote more than 100 decisions — mostly majority rulings, though occasionally dissents. Her departure provides an opportune occasion to review 13-plus of them in chronological order.

Absentee appeal

One of the chief’s first written rulings came in response to an appeal by a criminal who challenged his conviction for first-degree criminal sexual conduct after absenting himself from the second-to-last day of his trial due to a failed drug-overdose suicide attempt in State v. Finnegan (2010).[1] The trial court’s determination was upheld on the grounds that the defendant was “absent voluntarily without justification” from the proceeding, which deprived him of any right to be present at trial under the Sixth Amendment of the U.S. Constitution.

Chief Justice Gildea also wrote the majority opinion in another criminal case, State v. Cox (2011),[2] answering in the negative a certified question on an equal protection challenge to a charge under the dishonored check statute (Minn. Stat. §609.835) on grounds of its overlap with the theft-by-check statute (Minn. Stat. §609.835). The claim was rejected because the defendant did not establish differential treatment from “similarly situated” defendants.

Initial impression

An environmental case raised an issue of first impression concerning liability for a pesticide produced by a cooperative that provides farm parts and services to neighboring farmers in Johnson v. Paynesville Farmers Union Co-Op Oil Co. (2012).[3] The chief justice, a native of the tiny rural town of Plummer in northwestern Minnesota, went to great lengths to describe the process of organic farming and the accompanying compliance issues with regulations under the Federal Organic Foods Protection Act of 1990.[4]

The lawsuit, brought by organic farmers in west central Minnesota, asserted trespass against the cooperative for allowing its pollutants to drift over their land. Construing regulations under the Act, she held that the claim was not actionable. But she reversed the lower court’s dismissal of nuisance and other claims in remanding the case.

Drawing upon her rural upbringing, she reflected her familiarity with agricultural practices, while pointing out that dismissal of the trespass claim was “consistent with the traditional formulation of trespass when a person or tangible object enters [adjoining] land” without authorization of that landowner, while allowing the other claims to proceed.

Statutory interpretation also was central to her majority decision reversing a man’s conviction for attempted first-degree sexual assault by transferring a communicable disease while infected with the HIV virus in the 2013 case State v. Rick.[5] The decision turned on an interpretation of the sexual assault statute under which the case was brought, Minn. Stat. §609.2241, subd. 3(2). In the absence of any “applicable statutory definition,” she gave the assault term “its common meaning,” which warranted overturning the jury verdict.

The following year, the chief justice wrote a majority decision upholding voluntary termination of a mother’s parental rights due to her record of prostitution and abuse of drugs. Rejecting an equal protection challenge in In re Welfare of Child of R.D.L. (2014),[6] she noted the “government’s compelling interest in its role… promoting the relationship among those in recognized families in order to protect the general welfare of children.”

Criminal cases

In the criminal case State v. Bernard (2015),[7] Chief Justice Gildea upheld the Minnesota statute providing for automatic revocation of a driver’s license for failing to take a sobriety test. Rejecting a due process challenge under both the federal and state Constitutions, she wrote that the breath test constituted a search incident to an arrest and, therefore, did not violate any “fundamental Fourth Amendment right against improper search and seizure.”

A challenge to jury instructions in a premeditated murder case based upon a theory of accomplice liability yielded a determination that the instructions were wrong but did not affect the outcome and, therefore, did not warrant reversal in State v. Onyelobi (2016).[8] Although the language used by the judge in instructing the jury was erroneous, the conviction was nonetheless upheld because the charge given to the jury was not so misleading as to “leave room [for] it to convict” the defendant, who claimed that she merely intended to aid in some crime other than murder.

Dental decision

Chief Justice Gildea authored the majority opinion for the court in LaPoint v. Family Orthodontics, P.A. (2015),[9] overturning the Minnesota Court of Appeals and upholding a determination by the Hennepin County District Court that a children’s orthodontic dental clinic did not discriminate against a prospective employee because of pregnancy, after the facility rescinded a job offer when it learned that the aspiring dental aide was expecting a child.

The trial court found, and Justice Gildea affirmed, that the decision against hiring the employee was not “actually motivated” by her pregnancy. That determination was based upon other considerations, including the applicant’s refusal to abide by the clinic’s limited sick leave policy.

‘Multiple’ matter

The conviction of a man for murdering his ex-wife and kidnapping their three children did not violate the statutory prohibition against “multiple punishments” arising out of a “single behavioral incident” in Munt v. State (2018).[10] That proscription, as the chief justice wrote, “does not apply when a defendant commits a separate crime against more than one individual in a single episode, as in this gruesome case.” Since the behavior harmed multiple victims, rather than a single one, the statutory restriction on multiple punishments was deemed inapplicable.

Disband dissent

The chief was in dissent, joined by Justice G. Barry Anderson, her frequent dissent-mate, in a case brought by a union, challenging the disbanding of the union and disposition of jobs of their members in Firefighters Local Union No. 4725 v. City of Brainerd (2019).[11] The Court, in a 5-2 decision, held that the action by the Brainerd City Council violated the Public Employer Labor Relations Act (PELRA), Minn. Stat. §179A.13, which prohibits interference with labor union activities, or discriminating against labor unions or their members, which the majority opinion by Justice David Lillehaug viewed as an issue of “first impression.”

Chief Justice Gildea, in her dissent, would have answered the question differently. She viewed the city’s decision to replace the permanent, full-time firefighter force with “paid on call” volunteers as a “permissible exercise of managerial prerogative” under the collective bargaining agreement between the union and the city.

The failure of a putative father to timely join the Minnesota Fathers’ Adoption Registry did not bar his claim to paternal registering n T.G.G. v. H.E.S. (2020).[12] Although the father, who was not wed to the mother, did not sign the registry within 30 days of the child’s birth as required by Minn. Stat. §259.52, subd. 8(1), Chief Justice Gildea, writing for the majority, held that he could nonetheless challenge the procedure because the 30-day filing period does not begin until “an adoption petition is filed,” which occurred after the father had already signed the registry.

A murky ballot question in the City of Minneapolis regarding changing the City Charter to remove language requiring a police department and replace it with a “public service” unit, part of the so-called “defund the police” movement, was deemed sufficiently clear to warrant its inclusion in a referendum in Samuels v. City of Minneapolis (2021).[13] While the language of the ballot proposition did not highlight the “dramatic, massive, and extensive” changes that could occur if the measure were to be approved, the terminology was adequate to warrant proceeding with the election rather than reframing the issue. The eventual referendum resulted in a defeat of the measure.

On the related issue of the number of police officers in the City of Minneapolis, Chief Justice Gildea wrote the decision in Spann v. Minneapolis City Council,[14] holding that the mayor has a “clear legal duty” under §7.3 of the City Charter to hire more police officers to fill vacancies arising in the wake of the George Floyd murder to reach the requisite number of 731 sworn personnel. But she noted that because the city council is “meeting” the obligation “to fund” that number of officers, a mandamus directive could not be issued, pending further trial court proceedings.

Finally, in the exercise of her administrative duties overseeing the state judicial system, the chief justice wrote the decision by the Court expanding the reach of “cameras in the court room” in Minnesota. In Adm. 10-8049, ADM 09-8009, Promulgating Amendments to General Rules of Practice for the District Court (March 15, 2022), she wrote the order removing some restrictions on audio and visual recordings in trial courts, including allowing greater latitude for those devices in criminal cases. The edict noted that Minnesota had been one of the relatively few holdouts in a growing movement across the country. Allowing televised proceedings, she reasoned, would beneficially create “more transparency, greater public trust and broader accessibility.”

This slice of decisions reflect the breadth, diversity, and acumen of the outgoing chief’s work heading Minnesota judicial system for the past 13-plus years.

Cathy E. Gorlin is a family law attorney with the law firm of Best & Flanagan LLP, Minneapolis.

Marshall H. Tanick is an attorney and a certified senior civil trial specialist with the Twin Cities law firm of Meyer Njus Tanick. He has frequently appeared before the Minnesota Supreme Court and Chief Justice Gildea and was counsel for the prevailing parties in two of the cases discussed in the article.

The authors wish to thank Sara J. (S.J.) Welch, a summer associate with Best & Flanagan. for her valuable assistance in connection with this article.