On Dec. 15, 2021, the 8th Circuit held oral arguments in a case questioning the constitutionality of a Minnesota Law known as Alec’s Law. Under the law, qualified insulin users can get a 30-day supply of insulin for $35 or less. The law is named after a Minneapolis man named Alec Smith. Smith was just 26 years old when he died in 2017. A diabetic, Smith was unable to afford his insulin and testing strips. It was costing him $1,300 every month.
One in four Americans ration insulin due to its high cost. Those in lower socioeconomic classes are most likely to ration, but it also occurs at much higher rates in communities such as racial and ethnic minorities, LGBTQ persons, and those who are not American citizens.
The lawsuit was brought by Pharmaceutical Research and Manufacturer of America (PhRMA) just before the law went into effect in 2020. PhRMA claims that the act violates the Takings Clause of the U.S. Constitution. The act requires manufacturers who make over $2 million in insulin sales each year, and sell it for over $8 per milliliter in Minnesota, to provide insulin to pharmacies for the $35 monthly price.
While PhRMA has insisted in its filing that no one with diabetes should be forced to go without insulin due to their inability to afford it, they argue that the current program is unconstitutional and should be enjoined. It claims that its members have already provided significant resources for those needing insulin, from giving discounts to donating insulin either directly or through charitable organizations. In its initial suit, PhRMA referred to this attempt to provide cheaper insulin as “draconian.”
From when the law took effect — July 2020 — to March 2021, when the Minnesota Board of Pharmacy release a report about the program, 465 Minnesotans had obtained access to insulin because of the program. It found that 222 of those individuals were using the program at a time of urgent need, which could have resulted in saving their lives.
At the time of the lawsuit, Gov. Tim Walz said of PhRMA, “I gotta be honest, they did something that I didn’t think was possible — they’re more hated than COVID-19.” That sentiment certainly has not died down, as diabetic advocates have continued to decry the suit. It has also been one of the few issues to provide some unity in a divided Legislature. Those on both sides of the aisle have expressed disappointment in the lawsuit.
The lawsuit was dismissed in March by U.S. District Judge David Doty. Judge Doty held that his court lacked subject-matter jurisdiction. Now, PhRMA has appealed to the 8th Circuit. The three-judge panel will decide whether the state action constitutes a taking. Joseph Guerra, representing PhRMA, asserted that “manufacturers are deprived of the right to use, possess and dispose of their property, that’s a per se physical taking.” Minnesota Assistant Attorney General Sarah Krans denied that state action constituted taking, arguing that the act “requires manufacturers to reduce the nuisance that they caused.”
Regardless of the outcome, Minnesota (and the rest of the country) has a problem to contend with that is only on the rise. According to the Minnesota Department of Health, almost 8% of Minnesota adults have been diagnosed with diabetes. As one in ten people are unaware that they have the disease, health officials conjecture that the true number of Minnesotans with diabetes is close to 10%.
The Minneapolis police union will be allowed to intervene in a lawsuit filed by the ACLU on behalf of a group called Minnesota Coalition on Government Information. The suit was brought after the city denied request for information about police coaching. Coaching refers to when a police officer is required to undergo training or interact with a supervisor. While the city maintains that coaching occurs for minor things like speeding, the organization is concerned that police officers are being coached when there are more serious allegations such as the use of excessive force. Currently, complaints against police officers can only be made public if those cases result in discipline. The organization contends that, because coaching is not considered disciplinary action, the city has referred officers to coaching for the purpose of keeping those records private. The ACLU is contending that more than two-thirds of complaints against police officers go to coaching. Judge Karen Janisch ruled on Dec. 1 that the union can join the suit, asserting that the union has an interest in the release of coaching information and may need to evaluate options to protect employee identities if so.
In 2019, a 14-year-old McDonald’s employee was sexually assaulted by a manager at a Maple Grove McDonald’s. The employee and her mother filed a civil lawsuit against Hyder Investments Inc. — operating a dozen McDonald’s in the state — in Hennepin County court on Dec. 10, 2021. The manager, Andrew Otero Albertorio, pleaded guilty to criminal sexual misconduct in January 2020. He was sentenced to 10 years in prison. The girl’s case has received added support by the Minnesota Department of Human Rights, which has filed to join the lawsuit. The department alleges that sexual harassment was permitted in the workplace, ultimately failing to protect their employees and led to the sexual assault. Specifically, employees were told that they could report sexual harassment but were provided a bogus telephone number that was just “X.”
Lisa Hanson is an Albert Lea business owner operating The Interchange Wine and Coffee Bistro. On Dec. 9, 2021, she was found guilty of six counts of violating emergency powers when she refused to shut her restaurant down during the second round of COVID-19 business shutdowns. She has been sentenced to 90 days in jail and a $1,000 fine after a week-long trial. Hanson represented herself in the case. The restaurant will be permanently closing. Keith Haskell — who is a private investigator with the National Action Task Force — pledged to file a federal lawsuit. On Dec. 14, a writ of habeas corpus was filed in the U.S. District Court of Minnesota. In the case, Melissa Hanson v. Sheriff Kurt Freitag and Sheriff Lon Thiele, Hanson claims that she was immediately remanded into custody without due process of a presentence investigation. Hanson asks the court to vacate the judgment and disbar the prosecutors involved in the case.
In a November article, Minnesota Lawyer covered the ongoing tension between state court reporters and state court administration. It was a result of the IFP (in forma pauperis) transcript pilot program, which outsourced certain transcription services to an Arizona company. The state court reporters have overwhelmingly voted to authorize a strike. Ten judicial districts would be affected by a strike. There are 275 state court reporters in Minnesota. In a press release, the union argues that the strike is not about pay and benefits but is instead focused on preserving the integrity of the official court record.
Judge Leonardo Castro has dismissed all criminal charges against Michael Forcia. Forcia is an American Indian Movement Activist who tore down the Christopher Columbus statue at the Minnesota State Capitol in 2020. In June 2020, Forcia was charged with felony criminal damage to property. He was sentenced to community service instead. Forcia has spent the last year working to heal rifts in the community that were stirred up by his actions. At the hearing, Castro said, “It would have been simple to charge, convict, and punish. But the more difficult road towards reflection, learning and healing was taken, and the result will bear fruit forever. I congratulate you all for your wisdom and courage.” Jack Rice, who represented Forcia, argues that restorative justice instead of punishment was a “historic step in the right direction.”
Canada lynx may have a greater shot at survival in Minnesota. The Center for Biological Diversity sent notice to sue the U.S. Fish and Wildlife service in October 2021. It has agreed to analyze how wolf trapping has resulted in the inadvertent killing of Canada lynx. The U.S. Department of Agriculture’s Wildlife Service program is a federal program designed to “resolve wildlife conflicts,” which, according to the center resulted in the death of 5,000 Minnesota native animals. The center sued the Minnesota Department of Natural Resources in 2020. Back then, the lynx population in the state was as low as 50, making it the rarest carnivore in the state. It alleges that state and federal agencies have trapped 16 lynx, resulting in the deaths of six of them.
Law School Excellence
Mitchell Hamline’s Reentry Clinic helped win client Maurice Banks a pardon extraordinary. Banks had previously spent 4½ years in prison for two drug offenses that were committed more than 25 years ago. With the pardon, Banks intends to become a substance abuse counselor and youth mentor. The case was presented by Elana Dahlager, who also supervised law student Madison Marchus, responsible for preparing the pardon application.
University of Minnesota Law School students Luyi Song and Nathan Webster, along with Professor Caleb Smith, are responsible for state policy changes that will benefit low-income Minnesotans at tax time. Smith is the faculty director of the Ronald M. Mankoff Tax Clinic. Last year, Song and Webster submitted a Minnesota Government Data Practices Act request. Although they were somewhat skeptical about where it would go, it was taken seriously and will help tremendously. The department now does not require individuals to show that they cannot get personal loans before settling tax debt. Previously, those individuals were unable to get them, and the process of trying to obtain them would negatively impact their credit scores. Additionally, those hoping to settle for less than they owe will be more aware of the filing fee waiver they can request. At $250, the fee is more than what many of the applicants are even able to offer to settle.
Law Professors in the News
University of St. Thomas professor Rachel Moran was featured on PBS News Hour on Dec. 8, 2021. Moran commented on the trial of former Brooklyn Center police officer Kim Potter, musing that the trial would come down to if the state could characterize Potter’s actions are completely beyond the pale of what reasonable officers would do.
Distinguished Service to the Profession
The 8th Circuit recently awarded the Richard S. Arnold Award for Distinguished Service. This year’s award went to Dan Gustafson. Gustafson is a founding member of litigation firm Gustafson Gluek PLLC. The firm focuses on prosecuting complex and class action litigation in cases of antitrust, product defect, and consumer fraud violations. Notably, Gustafson organized the Minnesota Chapter of the Federal Bar Association’s Pro Se Project. This helps to coordinate volunteer lawyers with pro se litigants in the District of Minnesota. He regularly represents pro bono clients at a state and federal level. Previously in 2019, Gustafson was awarded with a Lifetime Achievement Award for his work on the Pro Se Project by the Minnesota Federal Bar Association.
Improving the Profession
Minnesota law firms are continually behind other firms nationally when it comes to diversity and inclusion. Solutions will not occur overnight, but one Minneapolis firm has recently taken action to promote diversity in the legal profession. On December 6, 2021, Bassford Remele announced that it has established a new scholarship at the University of Minnesota Law School, Mitchell Hamline School of Law, and the University of St. Thomas Law School. Scholarships are available to students in a diverse or underrepresented group within the legal field who are interested in civil litigation. In a press release, Bassford Remele’s Chief Executive Officer Mark R. Whitmore said, “As part of Bassford Remele’s numerous efforts to improve diversity in the profession, while promoting inclusion and assisting in eradicating bias, the firm feels it is important to invest resources at the law school level.” He also noted that, “These remain difficult times and there is a great deal of ground to cover. Hopefully, this program will help narrow the gap.”
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