“Anything different is good.”
—Bill Murray as Phil Clark in
“Groundhog Day” (1993)
Friday, Feb. 2, marked the 132nd celebration of Groundhog Day, when “Punxsutawney Phil” emerges from his burrow heralding the continuation of winter or the onset of spring within six weeks, depending upon whether the rodent sees his shadow.
Monday, Feb. 12, marks the 25th anniversary of the movie “Groundhog Day,” a 1993 classic movie that has achieved a cult-like status. The film features Bill Murray, playing a TV weatherman named Phil Clark, who continuously repeats the same events of a particular day, aided by co-star Andie McDowell. Its title has come to connote endless repetition of an event, often in a mindless manner. Seeing his shadow, the legendary Punxsutawney Phil supposedly heralded that winter has six more weeks to run its course.
The federal and state appellate courts in Minnesota occasionally find themselves in a similar predicament, reviewing the same case on multiple occasions, although hopefully meaningfully, rather than mindlessly. The U.S. Supreme Court is weathering a pair of do-overs this term, which provides an opportune occasion to look at multiple appellate reviews of the same litigation in this jurisdiction.
The pair of repeat cases on the docket of the U.S. Supreme Court this year both raise issues addressed specifically in prior high court suits.
In Encino Motorcars, LLC v. Navarro, No. 15-415, the justices will re-examine the validity of changes in regulatory interpretations by the U.S. Department of Labor whether certain car dealership employees known as “service advisers,” who provide guidance on vehicle repairs, are exempt from Federal overtime compensation requirements under the Fair Labor Stands Act, (FLSA) 29 U.S.C. § 213(b) (10) (A), which exempts most vehicle dealership sales personnel. The Court remanded the case to the 9th Circuit two year ago for re-evaluation of the Department’s vacillating regulatory interpretations, Encino Motorcars v. Navarro, 136 S.Ct. 2117 (2016). The case has now bounced back before the justices following the circuit court’s decision that had, for the second time, held that the employees are not exempt, 845 F.3d 925 (2017), a ruling conflicting with rulings of two other federal appellate courts, the 4th and 5th Circuits.
The case is of modest significance for wage and hour litigations and their lawyers, but it’s even more important for giving that court another opportunity to expound on the standards for regulating interpretations by administrative agencies and judicial review of that process.
In Janus v. AFCSME Council 3, No. 16 — 1466, the Court will revisit a major issue that yielded an inconclusive 4-4 deadlock vote two years ago in Friedrichs v. California Teachers Assn., 136 S.Ct. 1083 (2016), following the death of Justice Antonin Scalia shortly after the High Court hearing but before a ruling was rendered. The question is whether public sector employees required by law to join labor unions under “union shop” contracts, which are in effect in about two dozen states, including Minnesota, may refuse to pay union dues if they disagree with union policies or practices or simply do not want to support the unions to which they must belong. The First Amendment challenge seeks to overturn the High Court’s ruling 41 years ago in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which established a two-tier model for payment of full or partial dues by union objectors. The Janus case is of enormous significance to public sector unions and their members, who fear an adverse ruling could eviscerate them and also of concern to government entities as well, and the outcome could have reverberations in the private sector, too.
The Minnesota Supreme Court had its most recent “Groundhog Day” experience last spring in Leiendecker v. Asian Women United of Minnesota, 895 N.W.2d 623 (Minn. 2017). Addressing the fifth lawsuit in extremely contentious litigation, the Court ruled that the provision of the anti-SLAPP law allowing pretrial dismissal by judges, under Minn. Stat. § 554.02 is invalid because it deprives parties to challenge a right of a jury trial for pretrial motions. This time, the jurists unanimously concluded that the measure “is unconstitutional as applied to … torts.”
The ruling came three years after the Court had previously remanded the case for the trial court to determine if there were sufficient facts produced to defeat statutory immunity. 848 N.W.2d 224 (Minn. 2014).
A little over a decade ago, shortly before Groundhog Day in 2006, the repetitive litigation format arose in a decision by the Court of Appeals in Powell v. Powell, 2006 WL 44336 (Minn. Ct. App. Jan. 10, 2006)(unpublished), a matter revisiting a minority shareholder buyout dispute for the third time. On this occasion, the tribunal affirmed a ruling of the Hennepin County District Court upholding a buyout agreement between brother-sister shareholders for the book value of the shares. The court rejected claims by one of the shareholders that she was entitled to a greater percentage of the company due to delay in redeeming her shares, after the date of the siblings father, who started the company, The ruling was a culmination of two prior Court of Appeal’s decisions, sandwiched around a ruling by the Supreme Court, 660 N.W.2d 107 (Minn. 2003), vacating and remanding the Court of Appeals first ruling.
The risk of multiple appellate court rulings in the same case was reflected in the prolonged litigation of Dukes v. State, culminating in a denial of a claim of ineffective assistance of counsel. 660 N.W.2d 804 (Minn. 2003), cert. denied 540 U.S. 1007 (2004).
Convicted in Ramsey county district court of aggravated robbery and two attempted murder charges, the defendants’ first appeal was denied by the Minnesota Supreme Court, 5445 N.W.2d 13 (Minn. 1996). Four years later, the court remanded a petition for post-conviction relief for an evidentiary hearing on claims of ineffective assistance of counsel and recantation of an accomplice’s testimony 621 N.W.2d 246 (Minn. 2001).
After relief was denied, the Supreme Court revised the case for the third time, affirming denial of an evidentiary hearing on an ineffective-assistance claim based upon statements made by defense counsel during closing argument that “conceded some obvious facts,” including the acknowledgment that the co-defendants tried to rob someone but that his client was “duped” and not a knowing participant in the incident. These remarks did not amount to an implied concession of guilt warranting relief on grounds of ineffective representation, which requires a high standard of legal bungling.
Another criminal case yielded multiple proceedings before the Supreme Court in State v. Salazar, culminating in a ruling upholding admissibility of hearsay and of out-co-court statements challenged under the Confrontation Clause of the U.S. Constitution, 504 N.W.2d 774 (Minn. 1993). The defendant was convicted in Hennepin County district court of criminal sexual conduct, based largely on out-of-court statement made by a child victim and her brother to their mother, which the mother then reported to medical personnel.
The Supreme Court initially remanded the case for consideration of the trustworthiness of the statements in light of concerns that they may violate the Confrontation Clause and constitute inadmissible hearsay, a pair of intermingled legal principles. 494 N.W.2d 485 (Minn. 1993). After the Court of Appeals again upheld the conviction the Supreme Court, in its second look, affirmed.
The court found that the circumstances surrounding the statements made by the child victim and her brother possessed particular guarantees of trustworthiness and also were admissible under an exception to the hearsay rule for statements made for purposes of medical diagnosis or treatment. Testimony by the mother of her children’s identification of the perpetrator was admissible because the statements were not “unreliable … and the [children] had no apparent motive to fabricate.”
A major case concerning discrimination under the Minnesota Human Rights Act yielded important legal doctrines in repeat rulings by the State Supreme Court in Sigurdson v. Isanti County, 396 N.W.2d 62 (Minn. 1989). The lawsuit involved a female employee of the Isanti County Assessor’s office who sued for gender discrimination for failure to promote.
The Supreme Court initially reversed adverse rulings by an Isanti County District Court judge and the Court of Appeals reasoned that the discrimination claims under the state statute are subject to the same three-pronged standard as parallel claims under Title VII of the Federal Civil Rights Act, derived from the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The second time around, following remand, trial and appeal to the Court of Appeals, the Supreme Court held that the claim was not barred by the one-year statute of limitations under Minn. Stat. § 363.06, subd. 3, because the claim of gender discrimination constituted a “continuing violation” which prolonged the statute of limitations from the date of the last act of discrimination.
The Court of Appeals twice passed upon an unusual dog-bite litigation Hyatt v. Anoka Police Dept., twice upholding dismissal of a strict statutory lawsuit brought under Minn. Stat. § 347.22 by a woman bitten by a police dog while observing the apprehension of her husband, 680 N.W.2d 115 (Minn. Ct. App. 2004) and 70 N.W.2d 502 (Minn. Ct. App.) The Court initially refused to apply the statute imposing liability upon the “owner” of any dog that bites someone else without provocation.
After reversal by the Supreme Court, which noted that the “plain language” of the dog bite law could warrant a determination of liability, the Court of Appeals by a 2-1 vote again dismissed, finding that the city was immune under the doctrine of vicarious official immunity because the police were engaged in “discretionary actions … in the course of their official duties,” a principle that often shields law enforcement personnel and their employers from civil liability.
Although federal courts seem to have fewer multiple appeal cases, the 8th U.S. Circuit Court of Appeals has had its share of “Groundhog Day” litigation experiences.
In a Minnesota case, the 8th Circuit twice dealt with the consequences of a protective sweep by law enforcement personnel. Initially, it affirmed a ruling of U.S. District Court Judge James Rosenbaum in U.S. v. Hawkins, upholding a conviction for drug and weapons offenses that were derived from a protective search of the defendant’s premises. 69 F.3d 723 (8th Cir. 1995), cert, granted, judgment vacated, 516 U.S. 1168 (1996). But the case was sent back to the 8th Circuit in light of intervening case law regarding federal sentencing practices.
After Judge Rosenblum denied a downward departure from a 10-year sentence for being a felon in possession of a firearm, the 8th Circuit refused to review the case because his decision not to depart downward constituted a “discretionary decision,” which could not be challenged on appeal.
High-profile litigation involving judicial elections also took on the “Groundhog Day” syndrome. The 8th U.S. Circuit Court of Appeals initially affirmed a refusal by U.S. District Court Judge Michael J. Davis to enjoin a pair of provisions of the Minnesota Board on Judicial Standards prohibiting certain campaign practices for judges under the “announce” clause, which forbids judicial candidates from stating their position on disputed issues, and the “solicitation” provision prohibiting seeking campaign support from political parties.
The court subsequently affirmed by a 2-1 vote, a ruling by Judge Davis on the merits, 247 F.3d 854 (8th Cir. 2010), cert. granted 534 U.S. 1054 (2001). But the U.S. Supreme Court reversed on the “announce” rule, finding that it violates the First Amendment right of freedom of speech of judicial candidates. Republican Party of Minnesota v. White, 356 U.S. 575 (2002).
The 8th Circuit took a third look when it affirmed the limitation on candidates from seeking support from political parties. 361 F.3d 1035 (8th Cir. 2004), but it then reversed en banc, holding that the “solicitation” prohibition violated the First Amendment rights of judges and judicial aspirants because it can “chill, even kill, political speech and associated rights.” 416 F.3d 738 (8th Cir. 2005). The repetitive litigation finally came to a close after the U.S. Supreme Court took another peek at the case and decided not to revisit this penultimate “Groundhog Day” case. 2006 WL 11509 (Jan. 23, 2006).
A lawsuit coming before an appellate tribunal on multiple occasions often bears the shadow of the initial ruling hovering over it. As these cases reflect, the subsequent decisions may follow or divert from their predecessors on the same issue or address new questions as well.
Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.PERSPECTIVE POINTERS
Some Other Key Supreme Court Cases This Term
▪ Masterpiece Cakeshop v. Colorado Civil Rights Commission: Right to refuse to provide
pastry for gay ceremony;
▪ Epic Systems v. Lewis: Validity of mandatory workplace arbitration agreements;
▪ Class v. United States: Whether guilty plea waives constitutional challenges;
▪ Carpenter v. United States: Warrantless search of cell phone records;
▪ Christie v. NCAA: Legality of state-authorized sports gambling.