Minnesota Cities Magazine

From the Bench: Group Objects to Ten Commandments in City Plaza

CONSTITUTIONAL LAW
Ten Commandments monument

Ten CommandmentsIn 1958, the Fraternal Order of Eagles donated a Ten Commandments monument that sits on the city’s civic plaza and displays the Ten Commandments alongside other symbols such as the American flag and an “all-seeing eye” within a pyramid. The Red River Freethinkers sued, claiming the monument’s location violates the First Amendment’s Establishment Clause, which prohibits the government from making any law “respecting an establishment of religion.” The federal district court granted summary judgment in the city’s favor. The 8th U.S. Circuit Court of Appeals affirmed, holding that the monument does not violate the Establishment Clause. The Court of Appeals reasoned that the “monument makes passive—and permissible—use of the text of the Ten Commandments to acknowledge the role of religion in our nation’s heritage.” Red River Freethinkers v. City of Fargo, F.3d (8th Cir. 2014).

WORKERS’ COMPENSATION LAW
No offset for PERA retirement benefits

While working for the county, Sharyn Hartwig was permanently and totally disabled because of a work injury. She sued, challenging the decision by the Minnesota Counties Intergovernmental Trust to offset her workers’ compensation benefits by the amount of Public Employees Retirement Association (PERA) retirement benefits she was receiving. The offset provision in state statute provides that after $25,000 in compensation has been paid, the compensation for permanent total disability benefits shall be reduced by benefits paid by “any government disability benefit pro¬gram” and by “any old age and survivor insurance benefits.” The Minnesota Supreme Court held that PERA retirement benefits are not subject to the offset, reasoning that the term “any old age and survivor insurance benefits” should be interpreted to refer only to “federal social security benefits received by an injured worker pursuant to the Social Security Act.” The Supreme Court also held that the offset does not apply to the receipt of Teachers Retirement Association retirement benefits in a separate appeal. Hartwig v. Traverse Care Center, N.W.2d (Minn. 2014).

DATA PRACTICES ACT
Challenge to performance review

Schwanke, a county employee, challenged his performance evaluation under the Minnesota Government Data Practices Act, claiming that it was “inaccurate and incomplete.” The county sheriff responded that the evaluation was correct, and Schwanke appealed to the Minnesota Department of Administration (DOA). The DOA dismissed Schwanke’s appeal, concluding that he was challenging his employer’s subjective opinions rather than the “accuracy and completeness” of government data. The Minnesota Court of Appeals ruled in Schwanke’s favor, and the Minnesota Supreme Court affirmed.

The Supreme Court held that the DOA must order a contested case hearing before an administrative law judge when a public employee challenges the accuracy and completeness of data in a performance review and the DOA is unable to resolve the dispute. The Supreme Court reasoned that mere dissatisfaction with a subjective judgment or opinion cannot support a challenge to a performance evaluation, but that an employee can challenge facts in a performance evaluation that can be proven “incomplete or inaccurate.” The Supreme Court also held that, although an employee cannot raise new challenges to a performance evaluation in an administrative appeal, an employee can introduce new evidence that has not previously been presented to the government employer. Schwanke v. Minnesota Department of Administration, N.W.2d (2014).

LAND USE
Trespass claim

In 2005, several property owners sued the city for trespass and ejectment based on the location of a public gravel road that the city constructed in 1962 and rebuilt in 1971 that deviated from the platted path onto their private property. The district court dismissed the property owners’ claims. The Minnesota Court of Appeals affirmed in part and reversed in part. The Court of Appeals reasoned that the city’s actions of constructing a gravel road constituted a permanent and not a continuing trespass; therefore, the applicable six-year statute of limitations prevented the property owners from bringing a trespass claim. But the Court of Appeals also held that the city’s argument that the property owners’ ejectment claim was barred by the doctrine of laches should be remanded to the district court for additional proceedings. The Court of Appeals reasoned that the district court had misapplied the doctrine and had failed to consider and make findings regarding whether the property owners’ delay in suing the city was reasonable and whether the city suffered any prejudice from the delay. Hebert v. City of Fifty Lakes, No. A13-0311 (Minn. Ct. App. Jan. 13, 2014) (unpublished opinion).

EMPLOYMENT LAW
Whistleblower claim

Ford began working for the school district in 2006. During the summer of 2007, she reported financial improprieties and budget discrepancies to the school district superintendent and a staff person. Ford claimed that during the next several months, her workload dramatically increased, and her co-workers and supervisor mistreated her. On April 22, 2008, Ford’s supervisor told Ford that her job would be eliminated for the next school year. On May 22, 2008, Ford met with the director of the school district’s Office for Diversity and Equal Opportunity to discuss the reported financial improprieties and alleged harassment. Ford claimed the director stated that she was a neutral party to the dispute and would preserve Ford’s rights and guide her through the process. On May 5, 2009, after not hearing back from the director, Ford contacted the Minneapolis Department of Civil Rights and filed a discrimination charge.

Ford eventually sued the school district on June 29, 2010. Ford argued that the two-year statute of limitations for her whistleblower claim did not begin running until her last day of work on June 30, 2008, and that the school district should be equitably estopped from claiming that Ford failed to file a timely claim because of the director’s representations. The district court held Ford’s claim was barred by the statute of limitations. The Minnesota Court of Appeals affirmed and held that the statute of limitations for a whistleblower claim begins to run on the date that an employee is notified that her job is being eliminated and that the doctrine of equitable estoppel did not apply because, even if the director made a misrepresentation, Ford’s reliance on it was no longer reasonable as of May 5, 2009. Ford v. Minneapolis Public Schools, 845 N.W.2d 566 (Minn. Ct. App. 2014). Note: The Minnesota Supreme Court has granted review of the Court of Appeals’ decision.

TORT LAW
Mere slipperiness rule

Rosen broke his elbow when he fell on a concrete stairway that was icy because of water melting from an overhang at the community center, where he was bringing his daughter to a ballet class. He sued the school district, which owns and operates the center, for negligence. The district court dismissed the case under the mere slipperiness doctrine, which bars slip-and-fall claims against government entities if the fall is solely due to “slipperiness.” This rule does not give municipalities immunity and has several exceptions. The Minnesota Court of Appeals reversed and held that additional proceedings were necessary because at least two of the exceptions to the mere slipperiness rule might apply. The Court of Appeals reasoned that the “for-profit” exception might apply because of the “wide-ranging fees” the center charged, including for the ballet class attended by Rosen’s daughter and the rent it derives from various on-site activities. The Court of Appeals also reasoned that the “artificial conditions” exception might apply because the overhang above the area where the fall occurred had caused ice to accumulate on the stairs before the fall took place. Rosen v. Edina Public Schs. Indep. Sch. Dist. # 273, No. A13-1704 (Minn. Ct. App. Apr. 28, 2014) (unpublished opinion).

HOUSING LAW
HRA late fees

The city’s Housing and Redevelopment Authority (HRA) brought an eviction action against Lee after he failed to pay late fees assessed by the HRA. Lee argued the fees were invalid under a state statute, which generally places a limitation, or cap, on late fees for residential housing tenants at 8 percent of the overdue rent payment. The HRA argued that the late fees, which exceeded the 8 percent limitation, were permissible under federal law, which allows HRAs to impose reasonable late fees. The Minnesota Supreme Court held that federal law does not preempt the state limitation on late fees and that the HRA was subject to the limitation because it had failed to establish that the limitation conflicts with a “federal statute, regulation, or handbook permitting late fees for a tenancy subsidized under a federal program.” Housing and Redevelopment Authority of Duluth v. Lee, N.W.2d (Minn. 2014).

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: snaughto@lmc.org or (651) 281-1232.

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