Perspectives: Columbus Day cases discover vexing issues

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“In 1492, Columbus sailed the ocean blue…

Popular Children’s Rhyme

* * * * * * * * * * * * * * * * *

“We discovered Columbus, lost on our shores, sick, destitute, and wrapped in rags. We nourished him to health, and the rest is history.”

 Native American Lakota Leader Bill Means (April 2014)

Minnesotans will join most of the rest of this nation this next Monday, Oct. 9, in commemorating the holiday whose very name is steeped in controversy — and litigation.

It formerly was known traditionally as Columbus Day, honoring the Italian-born explorer credited with “discovering America.”  But others lay claim to that designation, too.  To compound matters, the designation of the day itself is not without dispute. The day is recognized as a federal holiday, officially known as Indigenous Peoples Day, pursuant to a proclamation issued over the past couple of years by President Joe Biden. That same appellation exists in Minnesota, where it is also recognized as a holiday, pursuant to a proclamation in 2019 by Gov. Tim Walz, which was antedated five years earlier by a determination by the Minneapolis City Council.

Those actions reflect a change in name that is now reflected in approximately 12 jurisdictions, along with more than 130 cities, dating back to the adoption of that name by South Dakota in 1990, which came more than a decade after a United Nations agency urged the changing of that name, as recognized at that time.

The name “Columbus” also has raised vexing legal issues here in Minnesota in a variety of contexts. The day set aside for commemorating the upcoming holiday, whatever it is called, provides an opportune occasion to review some of the lawsuits that have been inspired by that name.

Columbus case

Seventeen years ago, the Minnesota Supreme Court said “Hello, Columbus” — not to be confused with the Phillip Roth’s “Goodbye, Columbus,” the prize-winning 1969 semi-autobiographical novella about his youth in Newark, New Jersey, which established him as a major writer and author. The state tribunal breathed new life into a civil lawsuit that had been dismissed on grounds of untimeliness because it was filed a day after a holiday, then known as Columbus Day.

In Commandeur LLC v. Howard Hartry,  Inc., 274 N.W.2d 508 (Minn. 2006) the Supreme Court reversed a ruling of the Court of Appeals that had dismissed the lawsuit because the 60-day time limit for appeal had expired on Columbus Day a day before the appeal was filed. Because judgment was entered by the Hennepin County District Court on Aug. 10, 2005, the appellate time period expired on Sunday, Oct. 9, 2005.  Since Saturdays, Sundays and legal holidays are not counted in computing the tine period under Rule 6.01 of the Minnesota Rules of Civil Procedure, the appeal deadline was the following day, Monday, Oct. 10, 2005, which was Columbus Day.

While recognized as a holiday at the federal level and the U.S. Postal service does not operate, it was not an official holiday in Minnesota at that time. Even though the courts were open, the appellant waited until the day after the Columbus commemoration, Tuesday, Oct. 11, to file the appeal. The Court of Appeals dismissed the appeal on grounds that it was untimely since the 60 day time period had expired on Monday, Columbus Day, which it noted was “not a holiday for the appellate courts” at that time. The decision relied upon a 1979 Minnesota law, Minn. Stat. § 645.44, subd. 5, which gave a judicial branch the option of declaring either Columbus Day or the Friday following Thanksgiving as a non-business holiday. Since the courts selected the Friday after Thanksgiving as a holiday, Columbus Day was not one and it counted as a day for filing.

The appeal filed the next day was untimely, according to the appellate court, but the Supreme Court overturned that ruling. It reasoned that since there is no mail service on that day, litigants may be confused about the proper time period for service by mail for initiating an appeal. The court clarified that confusion by holding that the day is considered as a holiday and does not count as a day for purposes of the appellate deadline, salvaging the appeal before it.

Holiday holdings

The Commandeur case is not the first time the Supreme Court has considered the effect of Columbus Day.

In Kantack v. Kreuer, 158 N.W.2d 842 (1968), a mortgage foreclosure sale of property in Blue Earth County conducted on Columbus Day was upheld, despite Minn. Stat. § 645.44, subd. 5, which prohibits “public business … on any holiday,” which at the time included Columbus Day.

The statute did not bar the sale conducted by the sheriff because the legislative purpose was to “prohibit the service of process on a holiday [but] did not prohibit the transaction of other business” other than that “in which the public is interested.” The public did not share in the proceeds or have any financial interest, which made the foreclosure “clearly private business” and not subject to the statutory prohibition.

But the proscription against serving process on holidays, including Columbus Day, prompted dismissal of an appeal served on Columbus Day in Andrusick v. City of Apple Valley, 258 N.W.2d 766 (Minn. 1977).

An appeal of a special assessment for street improvement from the Dakota County District Court was served on Columbus Day by handing the appellate papers to the city clerk, who happened to be working rather than celebrating Columbus Day, even though the city hall was not open that day. Because the appeal was a “civil action,” it was improperly served under Minn. Stat. § 645.44, subd. 5, which bars service of process on Columbus Day, which was at the time “a legal holiday” proscribed by the statute.

School teachers in Cass Lake were lawfully required to work on Columbus Day, and those who refused were not entitled to be paid in Skeim v. Indep. Sch. Dist. No. 115, 234 N.W.2d (1975).

The court upheld the policy of the Cass Lake School District requiring teachers to work on Columbus Day and not paying those who refused, along with the board’s subsequent denial of salary increases for the ensuing year because the teachers refused to work on Columbus Day. Although Minn. Stat. § 645.44 prohibits any “public business” on Columbus Day, another statute, § 126.13, authorizes school boards to require that school be conducted on Columbus Day. It also obligates teachers to teach on that day if there is a “clause to that effect … in the teachers’ contract,” as there was.

Racetrack rulings

Numerous other geographic locations are named after Columbus, ranging from the nation’s capital to the capital of Ohio. Minnesota has a few of them, including Columbus Township in Anoka County, which has been the focal point of heated litigation challenging the construction of a harness racing track. Some residents of the community, distraught at the action by the state racing commission to approve construction of a harness-racing track in the township, challenged the commission’s action after it initially denied an applicant’s request for a racetrack and then reopened the proceeding, reconsidered and changed its mind.

In In Re North Metro Harness, Inc., 711 N.W.2d 129 (Minn. Ct. App. 2006), the Court of Appeals upheld the authority of the commission to reconsider the application, which did not violate the “due-process rights” of the complaining citizens.

Undaunted, the challengers sued for violation of the Open Meeting law, Minn. Stat. § 13D.01, et seq., asserting that the commission’s eight members engaged in impermissible ex parte discussions among themselves and with representatives of the applicant in reversing its prior decision.

In Columbus Concerned Citizens, Inc. v. Minnesota Racing Commission, 2006 WL 1529494 (Minn. Ct. App. June, 2006) (unpublished), the Court of Appeals affirmed a ruling by a Ramsey County District Court judge that the statute was not violated because the ex parte contacts did not constitute meetings of a “quorum or more of members of the governing body,” and even if a violation occurred, the case law proscribes “invalidation of actions of a governing body” transgressing the law.

Columbus Lake, also in Anoka County, was the site of environmental litigation by property owners to bar the public from access to their private property or, in the alternative, for payment of compensation for taking of their property in Bronczyk v. State, 1996 WL 706852 (Minn. Ct. App. 1996) (unpublished).

The homeowners contended that because the unusually high water level of Columbus Lake, a public lake, intersected with wetlands on their property, the public would be able to obtain access to their land, and they should be paid for losing their exclusive right to their property.

The Court of Appeals, affirming a ruling by a Ramsey County District Court judge, held that “there was no justiciable controversy” since the Department of Natural Resources was not contesting the right of the property owners to exclude the public from their property. Since the “precise facts” upon which others could be excluded was “not now known,” any judicial ruling would be too speculative and “hypothetical.”

The re-christening of the day has not been without dispute from the Italian community, whose members were “somewhat offended,” including the president of the Minneapolis City Council at the time because Columbus as an Italian, hailing from Genoa. Some Scandinavians credit Leif Erickson with “discovering” the new world. Traditionalists are not enamored with that view as “political correctness” gone too far.

So, like just about everything these days, the celebratory day is now one of controversy well beyond the Columbus-related October that dots the annals of Minnesota law.

PERSPECTIVES POINTERS

Indigenous people  in Minnesota

• Total:  Approximately 60,000
• Percentage of population: 1.2%
• In Twin Cities:  Approximately 35,000
• Number of tribal nations: 11

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.

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