• March 2, 2018

Bubble by Don McCrady

Update (March 2, 2018): A man cannot seem to keep his distance from an ex-spouse (and the mother of his daughter), notwithstanding a court’s “no contact” orders.

The district court, undoubtedly aware of the serious threat to the ex-wife by the man’s inability to stay away, noting his “alarming behavior,” extended the “no contact order,” ordering him to stay a mile away from the ex-spouse’s home (rather than 100 feet) for 50 years (rather than 2 years). The ex-husband appealed the temporal and geographic expansion of the court’s order.

The Court of Appeals, in reviewing this decision, referred repeatedly to a “two-mile bubble” (i.e., the diameter of a circle with a one-mile radius).

The statute that the trial court was to follow allows the district court to exclude someone “from a reasonable area surrounding the dwelling or residence.” Who decides what “reasonable” is, the trial court or the court of appeals?

The Court of Appeals, over a dissent from Judge Renee L. Worke, decided that “this extraordinary expansion” was unreasonable. The court seems to have been particularly bothered by the expansion because the ex-wife lives near the center of Minneapolis and, therefore, the order could pose significant transit challenges for the ex-husband. Further, the order would “follow” the ex-wife so, if she moved, she could displace the man from a two-mile diameter circle from wherever she moved to.

We reverse only the portion of the district court’s order that extends the 100-foot radius of exclusion surrounding [the ex-wife’s] home to one mile. We remand with instructions for the district court to reduce the size of the restriction and to define the zone of exclusion around [the ex-wife’s] residence in a manner that both tracks the reasons supporting the extension and that does not unreasonably interfere with [the ex-husband’s] mobility.

We note that the trial judge and the dissenting judge at the court of appeals are women. This could be random coincidence or this could reflect that judges’ gender might correlate between how they  “strike a rational balance between the competing interests at stake: the protected person’s safety and the restricted person’s liberty” in cases like this one?

Would it be surprising if the balancing of those interests (safety vs. liberty) might change if one tends to identify more with the person seeking safety than the person seeking liberty, or vice-versa? And, if so, is this not a compelling argument for gender balance in our courts and for decision-makers and policy-makers generally?

Update (May 23, 2015) (under the headline: More On Gender & Judging: Rasmussen v. Two Harbors Fish Company): In the case described below, a stinging opinion, dissenting in part and concurring in part with the Court’s majority opinion, from soon-to-be-retired Minnesota Supreme Court Justice Paul A. Anderson:

The unfortunate consequence of the majority’s opinion may well be that offensive and repulsive sexual misconduct in the workplace, like Zapolski’s verbal and physical misconduct, will be much more difficult to curtail in Minnesota and that many victims of similar misconduct will be left without a remedy under the law…I view the majority’s conclusion, whether explicit or implicit, to be extraordinary—even incogitable.  Its conclusion is difficult to explain….The district court made a very serious error in judgment in its findings when it was confronted with behavior that constitutes classic sexually motivated misconduct in the workplace. The majority compounds this serious error in judgment by allowing the views that inform the error to be applied not only to conduct in Lake County, but to conduct in the entire State of Minnesota.   The majority has in essence used our standard of review as a shield, behind which to abdicate our responsibility to review the district court’s findings for error…[A]s my service as an appellate judge draws to a close, I am concerned that the opinion the majority renders today signifies a step backwards on what I once believed was a one-way path toward ending sexual harassment in the workplace.

Alas, social progress never seems to be a one-way path but rather more like an arduous climb up steep terrain in which we slide back a bit, advance a bunch, slide back a bunch, advance a bit and so on and on.  We can, at a minimum celebrate that reversal of the district court’s decision adverse to the plaintiffs was affirmed.

Update (March 15, 2013):  Earlier this week, Duluth attorney Joseph J. Roby, Jr. argued the appeal to the Minnesota Supreme Court of defendants in Rasmussen v. Two Harbors Fish Company and Brian Zapolski, a case of alleged sexual harassment.  The defendants’ defense appears to be that they concede they engaged in horrible, lewd, sexist conduct but the plaintiffs, they seem to suggest, are very tough women unfazed by the environment of verbal filth they were required to work in.


The main issue of defendants’ appeal that the Minnesota Supreme Court appears to be grappling with is the standard of review of the trial court’s “boys will be boys” decision on whether certain admitted conduct rises to the level of sexual harassment.  Is this a “factual determination” to which reviewing courts defer to the trial court?  Or is this a legal determination subject to a more critical standard of review?  It’s a little tricky.

The applicable law provides that sexual harassment must be “must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim did in fact perceive to be so.”  The key words there are “subjectively” and “did in fact perceive…”  These would seem, by necessity, to be a factual questions: the plaintiffs must prove that they were personally offended.  In turn, this would seem to suggest that the trial court’s determination warrants deference as the trial court is obviously in the best position to consider a witness’ demeanor, which would presumably be a key piece of evidence on the issue of whether a victim found the treatment to which she was subjected “hostile” and “abusive.”

Thomas Andrew argued on behalf of plaintiffs.  Plaintiffs had a cross-appeal regarding a claim for aiding and abetting by which plaintiffs hope to tag defendant Brian Zapolski, personally.  One cannot aid or abet oneself, however, which is plaintiffs’ theory for Zapolski’s personal liability, and it seemed very clear from argument that Mr. Andrew will lose on his cross-appeal.

Original Post (September 24, 2012):  Two weeks ago, Minnesota Litigator slipped off the guise of neutrality that we often but not always try to adopt in our posts, and we took a position on a matter of current public interest, the lack of women on the United States Court of Appeals for the Eighth Circuit.

This was one of the most widely read and widely liked posts in Minnesota Litigator’s 4+ year history.  (One reader highlighted that this is not a new concern and there is an active effort, The Infinity Project, to recalibrate the scales of justice.)

This past week the Minnesota Supreme Court granted a petition for review of a fairly remarkable case touching on the same issues (that is, sexual harassment, gender, and judging).

From the sound of it, to be a woman working at Lou’s Fish House in Two Harbors, Minnesota is to be subjected to repulsive, offensive, sexist, porn-talk, graphic sexual images, unwelcome sexual banter and unwelcome physical contact with some regularity (or at least it was, according to the allegations, prior to a lawsuit brought by several women employees).  (Could this explain in part the restaurant’s rather spare “fan page”? [linked website taken down after initial post])

Nevertheless,  after a trial in which Lake County Judge Michael J. Cuzzo believed the complainants (accepting their testimony as “totally true”) and found Defendant Zapolski’s to be untruthful, Judge Cuzzo tossed out plaintiffs’ case, concluding, “even if totally true,” the allegations did not rise to the “level of unwelcome sexual harassment actionable under the Minnesota Human Rights Act.”

The Minnesota Court of Appeals, and, specifically a three-judge panel composed of two women and one man, concluded unanimously that:

the district court erred in determining that [Defendant] Zapolski’s conduct was not actionable sexual harassment under the Minnesota Human Rights Act, [and] we [therfore] reverse the judgment of the district court, direct the court to enter judgment in favor of each of the appellants, and remand for the district court to determine compensatory and punitive damages, and to undertake any further proceedings consistent with this opinion that the district court deems appropriate.

And here is where things get interesting.  It would seem that the Minnesota Supreme Court (currently six men, one woman (and another on the way)) granted defendants’ petition for review of the Minnesota Court of Appeals adverse decision.

Really?? Really??  Are we back still making some fine distinction between “boorish, chauvinistic, and decidedly immature” conduct and “an objectively hostile work environment permeated with sexual harassment”?

“Whatever,” as my teenage daughter says.  But I would prefer that she grow up and work in a state (and with a judiciary) that fully appreciates and understands that behavior that may have been tolerated if not enjoyed by many Minnesotans years ago has no place in Minnesota workplaces today or ever again.

A final note: it is clear from the Minnesota Supreme Court website that Defendant Two Harbors sought review but it is not clear on what grounds.  The grounds for appeal and the precise issue(s) to be decided remain to be seen for now…

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