Perspectives: The top 23 appellate cases of 2023

Listen to this article

“23 skidoo … To leave, particularly quickly or at an advantageous time.”

Wiktionary (2023)

The passage of another year, 2023, marks the occasion to review some of the top cases decided by the federal and state appellate courts during the past 12 months affecting Minnesota lawyers, parties and jurisprudence. 

As usual, they represent an eclectic group of rulings of the 8th U.S. Circuit Court of Appeals, the Minnesota Supreme Court and the state Court of Appeals, with an added twist this year of multiple cases decided by the U.S. Supreme Court involving Minnesota matters. 

The compilation is accompanied by the customary disclaimer: It’s not an exhaustive collection of all of the most interesting or important decisions of the past 12 months. But it does represent nearly two dozen of the most intriguing ones. 

So, as the bench and bar, judges, lawyers and litigants alike say “23 Skidoo” to the past year, without further ado, here is the top 23 of 2023.  

Supreme suits 

The U.S. Supreme Court issued decisions in 59 cases this year, and five of them, nearly 8.5%, had distinct Minnesota roots, a remarkably high percentage. Here is a look at the quintet.  

The Mall of America was the subject of a complex bankruptcy case in MOAC Mall Holding, LLC v. Transform Holdco, LLC, 143 S.Ct. 81 917 (2023). The litigation arose out of the bankruptcy of Sears Roebuck, one of the original anchor tenants of the mall when it opened in 1992. The store received a “sweetheart” $1-a-year, 100-year lease as an inducement at the opening of the mall. 

The issue before the court was whether that extremely favorable arrangement survived bankruptcy and could be maintained by an assignee of the bankruptcy entity, which the Mall opposed.  

Reversing a ruling of the bankruptcy court, which declined to exercise jurisdiction, the high court unanimously held that the bankruptcy court had jurisdiction to hear the case and remanded it to that court to determine what “relief” is available to the mall. 

The process used by Hennepin County for tax foreclosure of real estate was deemed unconstitutional in Tyler v. Hennepin County, 143 S.Ct. 1369 (2023). The case arose when Hennepin County foreclosed on a 90-year-old woman’s condominium due to back taxes and penalties that had amounted to $15,000. After selling the property for $40,000, the county kept the profits of about $25,000 under a state law, Minn. Stat. S. 281.18, allowing the sum to be split between counties and the local school district. It was one of about 900 sales in a seven-year period under that law, similar to measures in a dozen states, which amounted to about $8 million for local and county governments in recent years. 

But the court, in a unanimous decision, ruled that keeping the profit violated the “just compensation” clause of the Fifth Amendment of the U.S. Constitution, an argument that had been rejected by lower federal and appellate courts in Minnesota. The decision sparked class actions around the country addressing similar issues and seeking large refunds to homeowners who forfeited properties due to unpaid taxes, as well as changes in the law in Minnesota and other states that have similar statutes. 

A copyright dispute involving an iconic photograph of Minnesota’s native son, Prince, against the foundation of the late artist Andy Warhol, was addressed in Warhol Foundation v. Goldsmith, 442 S.Ct. 1258 (2023). The photographer sued for copyright infringement arising out of Warhol’s use of the photograph in one of his uniquely styled drawings based upon a claim of “fair use” under the copyright law. 

But the court, in a 7-2 ruling, upheld the photographer’s infringement claim on grounds that “commercial use” of the photograph trumps the “fair use” defense, a decision that has significant potential for other intellectual property matters, including emerging artificial intelligence (AI).  

The preference given in the federal Indian Child Welfare Act (ICWD) for Native Americans to adopt Native American children was upheld in a 7-2 decision of the court in Haaland v. Brackeen, 123 S.Ct. 1609 (2023). The court felt the racial preference given in the law for Native American families, which had been challenged by a couple from Minnesota and two couples from other states is within the lawful authority of the Congress in connection with its constitutional right to regulate relations with Native American tribes. Not addressing any racial preference issues while preferring to rest its decision on the constitutional authority of Congress drew a dissent from Justice Clarence Thomas. He opined that Congress was lacking historic power on this issue. So did Justice Sam Alito, who wrote in a separate dissent that, while “sympathetic” to Native American concerns, Congress “lacks authority” for the legislation, which happens to parallel a similar Minnesota law, the Indian Family Preservation Act (MIFPA), Minn. Stat. § 260.751, et seq. 

Another case with a Minnesota linkage involved the refusal of a woman to provide web design services for a gay marriage in 303 Creative, LLC, v. Elenis, 143 S.Ct. 2298 (2023). In a 6-3 decision, the high court treated the matter as one of freedom of expression under the First Amendment, rather than addressing religious issues. It held that the determination by a Colorado Human Rights Commission that the woman’s refusal constituted a violation of the state anti-discrimination law was impermissible because government cannot require someone “to speak what they do not believe,” which drew a dissent from Justice Sonya Sotomayor, joined by two others, lamenting that “we are “taking steps backward” from recognition of LGBTQ+ rights.  

The case is similar to one that had passed through the Minnesota federal court system, arising out of a similar refusal by a couple in St. Cloud, on religious grounds, to provide photographic services for a gay wedding. Proclaiming its refusal on its website violated the Minnesota Human Rights Act, according to a ruling by Judge John Tunheim in Minnesota in Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019). His ruling was overturned and stayed by a decision of the 8th U.S. Circuit Court of Appeals, pending the determination of the high court in the 303 Creative litigation.  

Appearing again 

Making a rare encore appearance in the end-of-year listing is Ringsred v. City of Duluth, 995 N.W.2d 146 (Minn. 2023), a case out of Duluth brought by a physician and historic preservation advocate who sought to block the City’s Tech Village project to revamp a portion of the “old Duluth area.” The case was cited here last year after the Court of Appeals permitted his claim to proceed on First Amendment retaliation grounds against the city for various adverse conduct that he deemed constituted reprisals due to his advocacy efforts regarding property he had owned near that site including the historic “Kozy Bar” that was slated for demolition after a fire.  

But the state Supreme Court held that the physician/preservationist’s First Amendment claim, dating back to alleged improprieties in the 1990’s, was untimely under the six-year limitations period for actions under the federal Civil Rights Act, 42 U.S.C. § 1983, which formed the jurisdictional basis for the litigation. It rejected the appellate court’s indulgence under a “continuing violations” theory, holding instead that the doctrine did not apply because the lawsuit alleged a “series of discreet acts of retaliation, each of which would have been actionable when committed.” The claimant could not “aggregate those discreet acts into a continuing violation of his First Amendment rights.”  

Another reappearance, dating to the final decade of the previous millennium, occurred in Mast v. County Of Fillmore, 993 N.W.d 895 (Minn. Ct. App. 2023) in which the Court of Appeals held that members of an Amish community in southeastern Minnesota need not comply with a local zoning requirement to install a septic tank system.  

Invoking the Religious Land Use And Institutionalized Person Act (RLUPIA), 42 U.S.C. § 2000 (cc), et seq., the appellate court reversed a lower court decision on grounds that the county, along with the state Pollution Control Agency, did not establish a “compelling state interest” in enforcing the land use regulation against the Amish, who objected on the basis of their religious beliefs.  

The lawsuit was a throwback to the landmark case of State v. Hershberger, 462 N.W.2d 393, 398 (Minn. 1990) three decades ago, which held that state-required warning signage on the back of a slow moving Amish buggies driven by them, rather than automobiles, cannot be the basis for prosecuting the Amish vehicle drivers under the Minnesota “freedom of conscience” provision of Article I, § 16 of the Minnesota Constitution, which was construed to be broader than the parallel purposes of the First Amendment. 

COVID concerns 

The upsurge of COVID this fall raised more health-related concerns. Although the worst of the pandemic has passed, the Minnesota courts addressed a number of COVID-related cases during the past year.  

Even though Governor Tim Walz’s emergency COVID orders expired, the Supreme Court kept alive a challenge to the governor’s authority to make those edicts in Snell v. Walz, 985 N.W.2d 277 (Minn. 2023). It remanded to the Court of Appeals a challenge to the mask mandate issued by Walz on several grounds, including constitutional grounds as well as the Minnesota statute criminalizing the wearing of masks to conceal identity.  

But a coffee shop that violated the gubernatorial order, staying open despite a closure mandate was properly fined in State by Cunningham v. The Iron Waffle Company, LLC, 990 N.W.2d 513 (Minn. Ct. App. May 8, 2023). Reviewing substantial penalties imposed because the facility was in constructive civil contempt, the appellate court held that the penalty costs assessed by the Crow Wing County District Court were appropriate for defying the governor’s emergency directive.  

The use of remote technology due to COVID did not constitute a violation of a criminal defendant’s constitutional right under the Sixth Amendment to confront witnesses in State v. Tate, 985 N.W.2d 277 (Minn. 2023). The claim that the case should be delayed during the pandemic in order to allow the defendant to face his accusers was rejected by the Supreme Court because the trial court did not know when the unpredictable COVID-19 crisis would ameliorate or end, a decision that drew an objection from Justice Paul Thissen, who regarded that decision as one that did “throw out the basic constitutional principles by which our criminal justice system operates” simply by invoking the pandemic. He wrote that COVID 19 “is not a universal justification for ignoring a criminal defendant’s constitutional rights.”  

But in another COVID-related case, the Supreme Court, in a decision written by Justice Thissen, remanded a determination of whether one-way video streaming in a robbery case in Carver County was sufficient to guarantee a right to a “public trial” under the Sixth Amendment in State v. Bell, 993 N.W.2d 418 (Minn. 2023). 

A Minnesota hospital that incurred substantial economic damages due to the COVID pandemic was denied first-party insurance coverage by the 8th U.S. Circuit Court of Appeals in Olmstead Medical Center v. Continental Casualty Company, 65 F.4th 1005 (8th Cir. 2023). The court reasoned that coverage was lacking for business interruption because there was no “physical loss” as required under the insurance policy. 

In another health-related COVID case, the court revived a Fifth Amendment “Takings” claim brought by a pharmaceutical company against the state in Pharm. Research v. Williams, 64 F.4th 932 (8th Cir. 2023). Overturning a lower court ruling, the 8th Circuit held that companies had standing to bring their claims challenging the state’s “Alec’s Law,” a 2020 statute that requires insulin manufacturers to provide low-cost supplies for insulin to people of low incomes or in emergency. Overruling a decision of U.S. District Court Judge David Doty in Minnesota on grounds of lack of standing, the 8th Circuit held that allowing the case to proceed would prevent a multiplicity of future “Takings” lawsuits likely to “occur under the Act’s requirements.”  

Criminal cases 

A trio of unusual state criminal cases occurred during the past year.  

The disassembled parts of a gun in a driver’s car constituted a firearm for purposes of the state’s felon-in-possession statute in State v. Stone, 995 N.W.2d 617 (Minn. 2023). The Supreme Court, in a 4-3 decision written by Justice Margaret Chutich, held that the pieces of a shotgun found in the backpack of an Onamia man, who had a prior felony conviction, warranted a conviction under Minn. Stat. § 609.165, Subd. 1 b (a) because the felon had “the integral parts unique to a firearm in an unassembled state, in the same container, even though a panel is missing, astutely analogizing the item to an “unassembled clarinet.” Minn. Stat. § 609.165, subd. 1 b (a). 

Another peculiar one was State v. Gutzke, 996 N.W.2d 219 (Minn. Ct. App. August 28, 2023), in which the state appellate court dismissed a petty misdemeanor charge against a vehicle driver who picked up his cell phone to glance at a “spam” call, without answering it, causing him to be distracted, drive off the road, and crash into a ditch. 

Reversing the conviction by a McCleod County District Court under Minn. Stat. § 169.475, subd. 2 (a) (i), the tribunal held that the driver did not violate the statute that, at the time, proscribed using a cellular device to “initiate, compose, send, retrieve, or receive or read an electronic message.” However, the driver, a farmer hauling soybeans from his farm, had his 25-day jail sentence upheld for driving with a suspended license for an unpaid traffic ticket.  

The venerable Dying Declaration Doctrine was invoked by the Supreme Court in State v. Buchan, 993 N.W.2d 614 (Minn. Ct. App. August 2, 2023), as an exception to the Confrontation Clause under the Sixth Amendment. A dying man being aided by a pair of Minneapolis police officers called out the name of the culprit shortly before he died. The statement, the court held, was admissible under the long-established exception to the right of confrontation, leading to a first-degree murder conviction of the identified assailant. 

A pair of similar search cases yielded different results. In State v. Torgerson, 995 F.3d 164 (8th Cir. 2023), the Supreme Court held that the mere smell of marijuana was not enough to establish probable cause to conduct a warrantless search of a vehicle. That ruling came a week after the court in State v. Mosley, 994 F.3d 883 (8th Cir. 2023) reversed the Court of Appeals and held that the Minneapolis police had probable cause to search a man’s vehicle after an informant told them that he had a gun, which led to an unlawful-gun-possession charge. The tip established probable cause because of the informant’s past reliability, personal observations, and police corroboration of some of the details. 

Although not a criminal case, a decision by the state Supreme Court on the Ides of March to expand audio and video access to courtrooms brought Minnesota closer to the vast majority of jurisdictions that allow such access. The edict, issued by Chief Justice Lorie Gildea, an Order Promulgating Amendments to the General Rules of Practice, ADM. 10-8049, 09-8009, will have its biggest impact in criminal cases, where audio and visual recordings have been long sought, but almost always denied, except in a couple of the high-profile police-murder cases in recent years.  

The chief justice’s directive was based upon the court’s view that greater access “will promote transparency and confidence in the basic fairness that is an essential component of our system of justice in Minnesota” while protecting the “constitutional rights and safety of all participants in criminal proceedings.” 

Defamation decisions 

The #metoo movement underlay a major defamation ruling in the same court in Johnson v. Freborg, 995 N.W.2d 374 (Minn. 2023). The case involved a social media post by a woman who claimed that her dance instructor had sexually assaulted her. Reversing the Court of Appeals and remanding, the Supreme Court held because the assault issue was a matter of “public concern,” it invoked the higher “actual malice” evidentiary standards of requiring “knowing falsity or reckless disregard for the truth” under the New York Times doctrine in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) for a defamation claimant to prevail, making it harder for those subject to #metoo accusations or other allegations as well to prevail.  

There is no qualified privilege for defamatory statements made while furnishing unsolicited career advice, according to a ruling of the court of appeals in Abdul-Haqq v. LaLiberte, 985 N.W.2d 357 (Minn. Ct. App. 2023). Defamatory statements arising out of correspondence between former business associates were not subject to a qualified privilege because they were not made on a proper occasion, by proper means, for a proper motive, and with proper terminology.  

Unions & usury 

Union members do not have a right to avoid paying union dues during the course of a collective bargaining agreement, according to a ruling of the 8th U.S. Circuit Court of Appeals, affirming a decision of a U.S. District Court Judge Donovan Frank in Burns v. SEIU Local 284, 2023 WL 5928066 (8th Cir. 2023)(unpublished). The court rejected a contention that there is a First Amendment right to avoid paying union dues, although the union members may, under prevailing Supreme Court precedent, refuse to pay dues after their collective bargaining agreement expires, even if they continue to work under a union shop arrangement. 

The state Supreme Court validated the use of litigation financing for contingency lawsuits, holding in Maslowski v. Prospect Funding Partners, LLC, 994 N.W.2d 293 (Minn. 2023) that the arrangement is not subject to the Minnesota usury laws. But the matter was remanded to the trial court to address a challenge based upon the common law doctrine of unconscionability, which is more subjective than the objective fixed usury rate.  

Profile pair 

A pair of high-profile cases were decided by the state Supreme Court in the last quarter of the year after Natalie Hudson took over as chief justice following the retirement of Lorie Gildea. 

The Minnesota Supreme Court declined to prevent former President Donald Trump from being eligible in the primary this spring on grounds that his placement on the ballot is “an internal party” matter in Growe v. Simon, 997 N.W.2d 81 (Minn. 2023). The case, one of several brought around the country, turns on the “insurrection” clause of the 14th Amendment to the U.S. Constitution, which bars office-holding by one who has “engaged in an insurrection” or aided others in doing so. The decision, written by the chief, held the eligibility issue is premature because he has yet to be nominated by the Republican Party to be on the ballot next fall, leaving open the possibility of another challenge at that time, depending upon whether the U.S. Supreme Court addresses and resolves that issue in an appeal by the former president from a recent ruling by the Colorado Supreme Court adopting the “insurrection” argument by a 4-3 vote and banning him from the primary ballot in that state. 

Chief Justice Hudson dissented when the latest iteration of the long-standing litigation concerning racial segregation of public schools in the Twin Cities area was addressed by the Supreme Court in Cruz-Guzman v. State, 2023 WL 8613511 (Minn. Dec. 13, 2023). This time, the court, answering a modified certified question in a decision written by Justice Margaret Chutich, ruled that unintentional racial segregations is not per se violative of the “adequate” education provision of the Minnesota Constitution, Article XIII, § 1, unless it is proven that racial imbalance is a “substantial factor” in lower academic achievements by students of color. The chief, the only Black justice currently on the court, would have deemed “that a system of de facto segregated schools is an inadequate education” regardless of intent. The 6-1 ruling sent the case back to the Hennepin County District Court for further proceedings. 

These nearly two dozen eclectic matters reflect the breadth of Minnesota appellate court litigation and Minnesota cases during the past year, a diversity that is likely to continue in 2024 and the years ahead. 

PERSPECTIVES POINTERS 

 Ten more ‘top’ cases of the Year 

• R.J. Reynolds Tobacco Co. v. City of Edina: 8th Circuit Court upholds a municipal ban on the sale of flavored tobacco products.
• Brosnahan v. City of St. Peter: 8th Circuit affirms dismissal of Black Lives Matter lawsuit over arrests of protesters.
• In re Air Emissions Permits: Minnesota Supreme Court reinstates appeal of issuance of emissions permit to Polymet.
• Beck v. State: Minnesota Supreme Court rejects “remuneration” for dismissed criminal charges if not based on evidence of “actual innocence.”
• State v. Cloutier: State Supreme Court holds that prosecutors need not prove ability to pay for restitution.
• Underhill v. Commissioner: Minnesota Court of Appeals upholds suspension of a Minnesota driver’s license due to DUI in Wisconsin.
• In Re Otto Bremer Trust: State appellate court upholds judicial removal of one trustee from board of a charitable trust.
• Cook v. Trimble (In Re Cragg): Court of Appeals upholds attorney-client and work product privileges after pre-filed complaint given to reporter.
• State v. Bogatz: Court of Appeals reverses criminal conviction due to denial of “ambiguous” Miranda warning.
• In re Welfare of Children of F.E.N.M.: Disruptive mother’s removal from courtroom upheld by appellate court in parental rights termination case.

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

RELATED: More Perspectives columns