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Marshall's Law

Top 10 Cases of 2007 Reviewed
By Marshall H. Tanick, Attorney at Law

The Federal and State courts ruled upon a number of diverse subjects in 2007. As usual, their decisions covered a breadth of topics, ranging from criminal law to whistleblowing.

As in any year, it's difficult to identify the most important or interesting court decisions. But, consistent with past practice, here's a look at 10 of the more significant and scintillating rulings of the Federal and State appellate panels in Minnesota during the past 12 months.

Marshalls top 10 cases include confrontation cases, defamation decisions, expressive enigmas, unemployment undulations and whistleblower woes.

Confrontation Cases
The Minnesota Supreme Court addressed the vexing issues of the right of criminal defendants to cross-examine witnesses against them under the Confrontation Clause of the Sixth Amendment of the U.S. Constitution.

In State v. Wright, 726 N.W.2d 464 (Minn. Jan. 25, 2007), statements made by victims in a 911 emergency call, including those made after the suspect was in custody, did not violate the Confrontation Clause when the victims were unavailable as witnesses. Use at trial of statements made to the 911 operator were not unconstitutional because they were "non-testimonial" within the meaning of prior Supreme Court rulings, and the primary purpose of using the statements at trial was "not to establish or prove past events potentially relevant to later criminal prosecution." But, an assault conviction was reversed and remanded because of the inadmissibility of other statements, made by the victims to the police after the emergency ended and the suspect was in custody, which "fall squarely within the category of statements . . . deemed barred by the Confrontation Clause."

In State v. Krasky, 736 N.W.2d 636 (Minn. August 9, 2007), statements made by a child to a nurse of alleged sexual abuse were admissible at trial without testimony by the child. The statements were permissible because the objective of the nurse was to "assess and protect the [child's] health and welfare" and, thus, not "testimonial" and inadmissible.

Defamation Decisions
A couple of defamation decisions this year by the Court of Appeals were noteworthy.

In Longbehn v. Schoenrock, 727 N.W.2d 153 (Minn. App. 2007), a false statement referring to a police officer as a "pedophile" was actionable without proof of special damages. Reversing a St. Louis County District Court jury verdict of more than $500,000, including $250,000 in punitive damages, the Court held the claim was defamatory per se, thereby entitling the claimant to special and punitive damages. But it reversed and remanded the verdict due to a lack of "causal relationship" between the offensive remark and general damages, and it also upheld the post-trial determination by the judge to set aside punitive damages.

Being called a "Communist lackey" and supportive of Communist causes yielded a slander verdict of more than $400,000 in Tuan J. Pham v. Thang Dihn Le, 2007 WL 2363853 (Min. App. 2007) (unpublished). The dispute arose among members of the Vietnamese community living in the Twin Cities. The Appellate Court upheld a verdict by the Ramsey County District Court, reasoning that the comments were actionable because they "went beyond normal loose, figurative language to specific statements" and did not constitute "political speech protected by the First Amendment."

But, the Court scaled back the damages by about 12 percent, dismissing a clam for tortious interference with prospective advantage, along with $54,000 in damages due to a business boycott related to the defamation. The boycott was part of a "political" protest held for "a lawful purpose."

Expressive Enigmas
The Eighth Circuit Court of Appeals late in the year addressed a pair of enigmas regarding freedom of expression under the First Amendment; keeping Bibles out of public schools and maintaining baseball statistics in the public domain.

Public school officials were barred from allowing the distribution of Bibles to fifth-grade students in Doe v. South Iron R-1 School District, 498F.3d 878 (8th Cir. 2007). A lower court injunction was upheld because the practice "very likely" violated the Establishment Clause of the First Amendment, and did not infringe the freedom of expression of the organization sponsoring the distribution program, which raised "far graver" First Amendment concerns than some other religious-related activities.

In C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 2007 WL 2990366 (8th Cir. 2007), the Court, by a 2-1 vote, upheld a lower court ruling allowing an on-line server to use, without charge, the names and statistics of major league baseball players in "fantasy" baseball games. The "right of publicity" and of Major League Baseball and its players to control the names and identities of the ball players "must give way" to the First Amendment rights of "fantasy" participants to use statistics that are "in the public domain."

Unemployment Undulations
The undulations of unemployment compensation law were reflected in a pair of Appellate Court cases dealing with the revived "single incident" doctrine, which allows discharged employees to receive unemployment compensation benefits if they are fired for an isolated event "that is not substantially detrimental," under Minn. Stat. § 268.095, subd. 6(a).

In Hendren v. Allina Medical Group, 2007 WL 900450 (Minn. App. 2007) (unpublished), an employee of a medical clinic who changed her own medical records to make corrections in them, despite a clinic policy prohibiting such conduct, was entitled to unemployment benefits after she was fired for her transgression. Because her conduct was an isolated event and "did not have a significant adverse impact on her employer," she was allowed unemployment benefits under the "single incident" principle.

But, an employee who refused on multiple occasions to take an employer-mandated ethics examination was denied unemployment benefits under the "single incident" tenet in Storbeck v. ACS Enterprise Solutions, Inc., 2007 WL 92824 (Minn. App. Jan. 16, 2007). Because she twice wrote letters stating she would not take the exam, her repeated "refusal to take the ethics exam" did not constitute a "single incident" of employment misconduct warranting benefits.

Whistleblower Woes
Whistleblowers experienced woes in a pair of setbacks by the Minnesota Court of Appeals when their complaints of anticipated future wrongdoing did not materialize.

In Borgeson v. Cardiovascular Systems, Inc., 729 N.W.2d 619 (Minn. App. 2007), the Court rejected a claim of a whistleblower who was fired after expressing doubts about the safety of a device manufactured by his company. Questioning whether management would report a failed safety test to regulators fell short of a whistleblower claim under Minn. Stat. § 181.932, subd. 1, because the conduct was not "illegal" at the time of the Complaint.

Similarly, in Grundtner v. University of Minnesota, 2007 WL 11971718 (Minn. App. 2007) (unpublished), a University of Minnesota employee who was terminated after he told his bosses it would be unlawful to accept a specific bid for a construction project at the Crookston campus was denied whistleblower protection. His claim was not actionable because the University refrained from accepting that particular bidder, which negated an essential element for a whistleblower claim of reporting an "actual or suspect" violation of law.

The past year has witnessed a number of rulings on diffuse topics by the Federal and State appellate tribunals in Minnesota. These decisions reflect the diversity of those rulings and their impact upon the practice of law in this state.

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Marshall H. Tanick is an attorney with the law firm of MANSFIELD, TANICK & COHEN, P.A. He is certified as a civil trial specialist by the Minnesota State Bar Association (MSBA) and represents employers and employees in a variety of workplace-related matters.