Minnesota Lawyer
The Minnesota Supreme Court has issued 64 opinions so far this year on matters ranging from attorney-client privilege to pandemic-related shutdowns to the privacy of data stored in the cloud and liability waivers.
Minnesota Solicitor General Liz Kramer and four assistant attorneys general from the Minnesota Attorney General’s Office discussed some three dozen of those opinions, to varying degrees, in summarizing what they deemed the court’s most important decisions to date in a 75-minute webinar on Wednesday, Dec. 14.
The total number of opinions to date this year is down a third from 2020, when the court issued 96 rulings, Kramer said. The decrease reflects a drop in the number of people petitioning for review, which is down by about 70 petitions in the last two years.
Kramer put this year’s opinions into “five buckets” of issues — lawyering, elections and the pandemic, criminal law, statutory interpretation, and constitution and civil cases. Here is a sampling of the opinions discussed during that presentation.
The Supreme Court, in September, recognized the common-interest doctrine, finding that attorney-client privilege may apply to internal communications among attorneys in public law agencies, even if the communication does not involve a client. The ruling came in Energy Policy Advocates v. Ellison.
“The common interest doctrine is an exception to the general rule that a party waives the protection of the attorney-client privilege when it discloses privileged information to a third party,” Assistant Attorney General Pete Farrell said. “It was an open question in Minnesota as to whether the common-interest doctrine applied or was viable, and the Supreme Court answered that question in the affirmative.”
The common-interest doctrine applies, Farrell said, when two or more parties represented by separate lawyers have a common legal interest in litigated or non-litigated matters, and agree to exchange information and make otherwise privileged communications in furtherance of their joint legal strategy. Purely commercial, political or policy interests are not sufficient for the doctrine to apply, but it does extend to attorney work product.
In Buzzell v. Walz, a dispute stemming from pandemic-related executive orders closing bars and restaurants for on-premises dining in 2020, a restaurant and wedding venue owner alleged that the governor commandeered his property and owed him compensation.
The case turned on the meaning of commandeer, Assistant Attorney General Angela Behrens said. The Supreme Court emphasizing that for a property to be commandeered, “the government has to exercise exclusive control, exclusive possession, physically used for an emergency management purpose and denying the owner control or possession of the property.” The Supreme Court remanded to the district court to determine whether the governor’s actions met that definition of commandeer.
Among criminal cases, Assistant Attorney General Ed Stockmeyer reviewed State v. Pauli, in which a defendant moved to suppress evidence of child pornography obtained in a warrantless search of his account with cloud storage provider Dropbox. Dropbox had reported to the National Center for Missing & Exploited Children that the defendant’s account had dozens of images of suspected child pornography.
The center and the Bureau of Criminal Apprehension reviewed two of the images and confirmed their contents, Stockmeyer said. The bureau obtained a warrant and eventually found many such images in the defendant’s possession. The Supreme Court concluded that the warrantless search was lawful under the private search doctrine, which holds that the government does not frustrate a reasonable expectation of privacy by repeating a search a private party already conducted.
The opinion left unresolved the question of whether users have a reasonable expectation of privacy in data stored on the cloud where terms of service warn of potential examination and disclosure. “The court didn’t reach that question because it was able to affirm the district court’s decision under the private search doctrine,” Stockmeyer said. “But that’s an outstanding issue and a significant Fourth Amendment issue going forward.”
In State v. McReynolds, the court focused on interpreting the state’s interference with privacy law in a case in which the defendant admitted using his phone to record video of a nude woman without her consent while he was in a room with her, said Assistant Attorney General Adam Welle.
The interpretive question was whether he recorded “through the window or any other aperture of a house or place of dwelling of another.” The court, applying its plain language test of statutory interpretation, rejected the state’s definition that an aperture could include the camera lens, Welle said.
The court said “you might have a very good policy argument and we think this conduct is reprehensible,” Welle said. “But the court has to apply the plain language. They said they’ve never not applied the plain language in a criminal case. … If there are technological advancements related to how people carry recording devices, that needs to be addressed by the Legislature.”
In Justice v. Marvel, LLC d/b/a Pump It Up Parties, the court held that a mother’s waiver of liability did not preclude her son from pursuing his own negligence claim, Kramer said. The boy, injured when he was 9 years old after falling from an inflatable play item and striking his head on a carpet-covered concrete floor during a birthday party, sued on his own behalf when he turned 18.
“The court clarified that it strictly construes these types of waivers,” Kramer said. “It says both indemnity clauses and exculpatory clauses are subject to strict construction. That means they have to use specific and express language that clearly and unequivocally states the party’s intent to hold up. Because the waiver did not specifically note that Pump It up or Marvel was not liable for its own negligence, that claim could go forward.”
