Lillehaug’s Lasting Legal Legacy

Departed from the state Supreme Court after seven years, Justice David Lillehaug has made a deep and long-lasting mark on Minnesota law

By Marshall H. Tanick

Lillehaug_300Justice David Lillehaug’s appointment to the Minnesota Supreme Court by Gov. Mark Dayton in June 2013 set the capstone to a distinguished legal career. Born in Waverly, Iowa, Lillehaug grew up  in Sioux Falls, South Dakota, and later graduated from that city’s Augustana University (where his father was a distinguished music professor and band leader) and Harvard Law School. His achievements included working as a top aide to former Vice President Walter Mondale in his unsuccessful campaign for the presidency in 1984, serving about four years as a U.S. Attorney for the District of Minnesota under President Bill Clinton, and a solid 15 years in private practice, highlighted by his representation of political figures in contested election recounts—most famously Al Franken in his squeaking recount victory in the 2008 U.S. Senate election, and later Gov. Dayton in his arduous gubernatorial recount win two years later.

Although a staunch DFLer before his elevation to the bench, Justice Lillehaug carved out a reputation there for non-partisan judicial craftsmanship, authoring a number of major decisions that involved a wide variety of issues, along with a smattering of concurrences and some notable dissents. His opinions are characterized by clarity, fidelity to the language of statutes and other provisions, deference to legislative and administrative agencies, and aversion to hyper-technicality. He has also used his position on the bench as a bully pulpit, taking a leadership role in confronting stress and burnout in the legal profession.

In recognition of his lifelong contributions to the legal community and support for legal scholarship and the profession, this spring the student-run Law Review at Mitchell Hamline Law School established a Justice David Lillehaug Service Award for significant lifetime achievements.

Stepping down from the bench at the end of July, following his Parkinson’s Disease diagnosis about a year ago, the Edina resident, who turned 66 in May, plans to continue being active in civic, community, legal, and possibly political activities, along with spending more time with his family—wife Winifred Smith and daughter Kara, an attorney herself.
His departure this summer provides an opportune occasion to review some of his eclectic body of work on that tribunal, although space limitations prevent doing complete justice to the scope of his contributions.

Criminal cases

As a former prosecutor, Justice Lillehaug is well-versed in criminal law, a trait he displayed in his decisions for the Court.

Some unusual issues arose in one of the criminal cases decided by Justice Lillehaug. In State v. Curtis,1 where the defendant was convicted of first-degree murder in Ramsey County District Court, the defendant appealed on two grounds: 1) a juror who realized during the trial that she knew a witness should have been removed for bias; and 2) the trial court improperly excluded evidence under the Spreigl doctrine of an alternative perpetrator who allegedly participated in an unsolved shooting shortly before this murder occurred.

Writing for a unanimous court, Justice Lillehaug rejected both claims. While the trial court “could have done more extensive questioning” of the juror and made specific findings, the absence in the record of any actual bias warranted upholding the trial court’s discretion not to remove the juror. Excluding the alternative perpetrator evidence despite the Spreigl doctrine, which permits evidence of prior crimes, was not erroneous because the defendant “did not show by clear and convincing evidence that the [alternative perpetrator] participated in that shooting,” which preceded the incident in question by about a month. Since it was not “‘highly probable’ or even more likely than not” that the claimed alternative perpetrator was involved in the prior shooting, the trial court did not abuse its discretion in barring that evidence.

One of his final criminal case rulings occurred in another odd case, involving the seizure under a search warrant of the files of an attorney who represented a pair of clients in an investigation for controlled substances. In that case, In re K.M. v. Burnsville Police Department,2 he upheld a ruling of the Dakota County District Court regarding the seizure of the evidence on grounds that it was being held in “good faith” as evidence by the police. While searching an attorney’s office raises “many concerns,” it was not necessary to announce guidelines for such occasions because the expedited process in the lower court, coupled with the limited factual record, does not provide an “appropriate occasion” to do so. 

The Court, therefore, limited its decision to the propriety of the seizure under Minn. Stat. §626.04, which authorizes police to seek an ex parte hearing in coordinating an ongoing investigation. The decision was without prejudice to issues that may arise “in the pending criminal case,” or, for that matter, with respect to potential civil claims. 

Another search warrant issue arose in a non-criminal context in City of Golden Valley v. Wiebesick,3 which involved a question under the search and seizure provision of Article 1, §2 of the Minnesota Constitution, regarding whether administrative search warrants for a city to inspect a rental unit for housing code violations must be supported by “individualized suspicion” of a code violation or can be done on a more generic basis. Writing for the majority, Justice Lillehaug deemed the issuance of the warrant and its ensuing search proper because the municipality’s housing code contained reasonable standards in establishing the minimum standards for issuance of a search warrant to detect housing code violations. He rejected the proposition that a warrant could not be issued unless there was “individualized suspicion” regarding the facility to be searched—which, he wrote, would make it more difficult to get such a warrant for ”routine” inspections and, therefore, endanger the public’s health and safety. Because the U.S. Supreme Court has interpreted the search provision of the 4th Amendment to allow for such searches, Justice Lillehaug felt that there was no “principled basis to depart from [that] legal framework” and construe the state constitution differently “to protect the privacy, health and safety” of citizens of the state. 

Chief Justice Lorie Gildea and Justice David Stras saw it differently, viewing the search as violating “both the warrant and the reasonable requirement of the state constitution.” 

Civil cases

Justice Lillehaug also authored a number of significant decisions in civil cases. One of the best-known was his ruling this spring upholding the Department of Natural Resources’ (DNR) renaming of Lake Calhoun, the largest body of water in Minneapolis, to its original Native American appellation of Bde Maka Ska, in Save Lake Calhoun v. Strommen.4 Writing for the five-member majority, he rejected the claim that a nearly century-old law, Minn. Stat. §83A.05 subd. 1, bars renaming after more than 40 years. That measure only applies to counties, not the state, due to a 1937 amendment giving the DNR “the power to name and rename (bodies of water), places, and geographic figures regardless of the age of their names.” 

The issue stemmed from requests by Native American and community activists to replace the designation because its namesake, John C. Calhoun, was a virulent racist and a slaveholder in the 19th century. The case attracted international attention in conjunction with other similar renaming controversies around the U.S. The majority decision rejected a challenge by a group of more than 300 nearby homeowners. Justice Lillehaug dismissed concerns by a pair of dissenters—Chief Justice Gildea and Justice G. Barry Anderson, the two Republican appointees on the tribunal—that the decision would open a floodgate of proposed lake name changes by noting any such issue could be curbed by legislative action restricting “excessive name-changing.”

One of his most notable opinions in its effects on the practice of law was his decision for a unanimous court in Walsh v. U.S. Bank, N.A.,5 which addressed the proper pleading standard for civil cases in Minnesota. The case involved a default on a mortgage issued for residential property in Minneapolis, which precipitated a non-judicial foreclosure by the bank holding the mortgage. The mortgagor had brought an action against the bank seeking to vacate the foreclosure sale, which the Hennepin County District Court dismissed on grounds that its lack of specificity warranted dismissal for failure to state a claim under Rule 12.02(e) of the Minnesota Rules of Civil Procedure. 

Rejecting the “plausibility” standard of the U.S. Supreme Court as articulated in a pair of cases known as Twombley and Iqbal, Justice Lillehaug wrote that the “standard announced” in those two cases does not apply to civil proceedings in Minnesota state court because, under the “plain language” of Rule 8 of the Minnesota Rules of Civil Procedure, “Minnesota is a notice-pleading state,” which reflects a “preference for non-technical, broad brushed pleadings.” On the merits, the complaint satisfied the “traditional interpretation” of the prior case law and warranted overturning the dismissal.

Justice Lillehaug also wrote the majority decisions for the Court in a pair of significant public sector employment law cases resolving issues of first impression.

In Ford v. Minneapolis Public Schools,6 he held that the Minnesota whistleblower statute, Minn. Stat. §181.932, is subject to a six-year statute of limitations. He reasoned that the limitations period under Minn. Stat. §541.05, subd. 1(2) for causes of action for a liability created by statute is applicable, rather than the two-year limitation period under §541.07 (1) for personal injury torts. The basis of his ruling was that because the whistleblower cause of action was not recognized in common law, it was a creature of statute. He dispensed with considering the merits of policy arguments for a lesser limitations period, which, he noted, is for the Legislature to consider, “not the judiciary.” 

In Firefighters Local 4725 v. City of Brainerd,7 he held that the abrogation by the City of Brainerd of a collective bargaining agreement with the city’s firefighters union in the early stages of a three-year contract constituted an unfair labor practice under the Public Employment Labor Relations Act (PELRA), Minn. Stat. §179A.13 (2). Affirming the decision of the Minnesota Court of Appeals, which overturned a ruling of the Crow Wing County District Court, he stated that a “plain reading” of the statute does not turn on whether the city acted to “intentionally interfere” with the rights of its labor union, and he declined to read a “motive element” into the statute because the Legislature did not include one. The decision drew a dissent from Chief Justice Gildea, joined by Justice Anderson, who would have required that an unfair labor practice “be motivated by anti-union animus,” which the dissenters deemed lacking in the record.

Good faith complaints by tenants concerning a landlord’s failure to comply with state or local laws or the terms of the lease constitute defenses to an eviction action, according to Justice Lillehaug’s ruling in Central Housing Associates v. Olson.8 The Hennepin County District Court had ruled in favor of the tenants, barring their eviction because the landlord retaliated following their “good faith” complaints about defects in the housing, but the appellate court had reversed. Writing for the majority, Justice Lillehaug held that Minn. Stat. §504B.441, which establishes a statutory retaliation defense, is “ambiguous,” but a retaliation defense exists under common law. Its applicability under common law sustained the jury’s verdict of improper eviction.

Chief Justice Gildea, joined again by Justice Anderson, dissented, declining to recognize a common law retaliation defense because the Legislature had not chosen to create one by statute. 

As one who knows his way around the political arena, Justice Lillehaug authored the majority decision for the court this April in Cilek v. Office of the Secretary of State,9 holding that the Secretary of State may withhold various data about voters from the public. The decision reversed a ruling of the Minnesota Court of Appeals, which had affirmed a decision of Ramsey County Judge Jennifer Frisch (who, coincidentally, had been named to the appellate tribunal by Gov. Walz earlier the same week).

The case involved requests for access by a conservative interest group to a bevy of information about the status of some 5.4 million persons in the statewide data base, as well as reasons for challenges to their registration, and information about voters not currently registered.

Writing for the five-member majority, Justice Lillehaug held that the data was protected from access under the “plain language” of the state election law, Minn. Stat. §201.091, whose specific provisions on voter privacy trump the general position of access under the General Data Practices Act, Minn. Stat. §§13.01, 13.607. He concluded that under those statutory provisions, access is only available to data contained in “public information lists” and that other data is not accessible unless furnished at the discretion of the Secretary of State, who had restricted the broad-based requests in this case.

But the decision had a potential partisan hue, as the four other Democratic appointees to the Court, all placed there by ex-Gov. Dayton, joined in the majority decision over the dissenting opinion of two Republican appointees, Chief Justice Gildea and Justice Anderson, who would have affirmed the lower court decisions under the “central tenet” of accessibility in the Data Practices Act.

Commitment & consequences

Like his colleagues, Justice Lillehaug occasionally differed from the reasoning of the other jurists in concurrent opinions or argued for a different outcome in dissent.

One instance came in Binkley v. Allina Health System,10 a medical malpractice action brought by a mother for her son’s death, after he was refused admittance to an inpatient mental health treatment facility. The Court, in a decision by Justice Anderson, held that the hospital was entitled to immunity for its decision not to admit the son to the facility, under the Minnesota Commitment and Treatment Act, Minn. Stat. §253B.23 subd. 4. While agreeing grudgingly with the decision, Justice Lillehaug noted that the statutory terminology granting immunity from any “civil or criminal liability under this chapter, (emphasis supplied)” does not contain an “express abrogation” of common law claims regarding medical malpractice. Since that issue had not been argued by either party, and the opinion of the Court does not foreclose such an argument, he joined the majority, with the understanding that this “issue awaits another case.”

The recurring issue of advising criminal defendants of the potential immigration consequences of a criminal conviction, including deportation, attracted a concurrence from Justice Lillehaug in Sanchez v. State.11 The Court, in a decision by Justice Stras, affirmed a decision by the court of appeals, which had upheld a Rice County District Court ruling that denied a post-conviction effort to withdraw a guilty plea to a third-degree criminal conduct sexual charge due to alleged failure of counsel to advise the defendant of the immigration consequences. 

The majority held that the general warning given to the immigrant of possible immigration consequences did not amount to ineffective assistance of counsel—a decision in which Justice Lillehaug concurred, “but on a different ground.” The defendant’s guilty plea to the third-degree offense made it “clear as a bell” that he would be deported, a process that started the very same day that he was sentenced. This invoked an “obligation” on the part of counsel to advise him of the consequence. However, the trial court’s finding that the defendant had been advised by counsel that he “would be deported” as a result of his plea was not clearly erroneous and, therefore, satisfied upholding the denial of the post-conviction petition. 

Dissenting decisions

Justice Lillehaug fell a vote short of convincing the Court to allow expungement of a second-degree burglary conviction in State v. S.A.M.12 The applicant’s conviction was for a felony but deemed to be a misdemeanor because the imposition of the sentence was stayed and the applicant was released from probation. The Olmsted County District Court nonetheless denied a request for expungement, and the appellate court affirmed, as did the Supreme Court in a decision written by Justice Anderson, holding that the circumstances did not make the applicant eligible for expungement under the applicable statute, Minn. Stat. §609.13 (1), §609A.02 (3)(a)(3). The majority reasoned that the underlying burglary offense was “not one of the felonies” listed in the statute that allows for expungement and the treatment of his conviction as a misdemeanor does not yield a different result. 

But Justice Lillehaug, joined by Justices Chutich and McKeig, viewed the matter differently. He would have interpreted the statute to allow for expungement and for redacting the conviction, noting that “[b]y shutting the door to expungement for people like S.A.M. in these circumstances, the court reduces opportunities for rehabilitated offenders to become productive members of society.” This was, he felt, a “harsh result” that ought to be clarified by the Legislature in order to “reopen this door.”

He also dissented in Pfeil v. St. Matthew’s Evangelical Lutheran Church,13 a libel action arising from the ouster of a couple from church in Worthington that led the Court to invoke the “ecclesiastical abstention” doctrine, which bars inquiry into religious doctrines. The tenet invoked by Justice Anderson’s majority opinion warranted upholding dismissal of the lawsuit by the Nobles County District Court, which had been affirmed by the appellate court. 

But Justice Lillehaug, joined by Chief Justice Gildea, disagreed, bemoaning that the majority’s decision “creates what is, essentially, an absolute privilege to defame” in church disciplinary proceedings, regardless of “how false and malicious” the statements are, and “no matter how much the victim is damaged.” He and the chief justice would have allowed some of the defamation claims to proceed, based upon “neutral principles of law” that do not lead to “excessive entanglement” with religious precepts.


These decisions are but a few of those authored by Justice Lillehaug in his seven years on the Court. They do, however, reflect the variety of cases he encountered and the vibrancy of his work. 

MARSHALL H. TANICK is an attorney with the Twin Cities law firm of Meyer Njus Tanick. He is certified as a Civil Trial Specialist by the Minnesota State Bar Association, and frequently argues cases before the Minnesota Supreme Court, including representation of the prevailing union in one of the decisions, Firefighters Local 4725 v. City of Brainerd, referred to in this article. He would like to thank his colleague, Teresa J. Ayling, who worked on that case with him and conducted research in preparing this article.


1 905 N.W.2d 609 (Minn. 2018).

2 940 N.W.2d 164 (Minn. 2020).

3 899 N.W.2d 152 (Minn. 2017).

4 2020 WL 2465541 (Minn. 5/13/2020).

5 851 N.W.2d 598 (Minn. 2014).

6 874 N.W.2d 231 (Minn. 2016).

7 934 N.W.2d 101 (Minn. 2019).

8 929 N.W.2d 398 (Minn. 2019).

9 941 N.W.2d 411 (Minn. 2020).

10 877 N.W.2d 547 (Minn. 2016).

11 890 N.W.2d 716 (Minn. 2017).

12 891 N.W.2d 602 (Minn. 2017).

13 877 N.W.2d (2016).