Marshall H. Tanick, BridgeTower Media Newswires
“[D]o not fall in love with me,
For I am falser than vows made in wine.”
W. Shakespeare, As You Like It, Act 3, Scene 5 (1599)
Broken romance is a popular topic of novelists, playwrights, and screen writers. But the subject moves from the pages and stages of fiction and cinema reels to the facts of the real word in Minnesota courtrooms.
The latest manifestation of romance — related litigation occurred last month in State v. Robinson, 2019 WL 138184 (S.Ct. Jan. 9, 2019) (unpublished). The Minnesota Supreme Court there upheld a felony domestic assault conviction of a Moorhead man for assaulting a woman he had met when they were mutual residents of a homeless shelter and then engaged in sexual relations on two occasions. The court rejected the defense argument that the key statutory phrase “significant romantic or sexual relationship” forming the basis of the charge was inadequately defined within the statutory scheme, Minn. Stat. § 509.2242, subd. 2, deeming it not “ambiguous” and applicable in upholding the conviction in this case.
The upcoming celebration of Valentine’s Day, Thursday, Feb. 14, provides an opportune occasion to review some of the real-life federal and state court litigation revolving around love’s labor lost.
—————
Card constitutionality
The inclusion of Valentine’s Day in a school district’s policies regarding observance of religious-related holidays did not violate the religious freedom provisions of the First Amendment of the U.S. Constitution in Florey v. Sioux Falls School Dist., 619 F.2d 1311 (8th Cir. 1980).
Following a controversy about Christmas celebrations in its schools, the district promulgated rules allowing use of religious symbols “as a teaching aid or resource ... [reflecting the] cultural and religious heritage” of particular holidays, which included Christmas, Hanukkah, Easter, Passover, Thanksgiving, St. Patrick’s Day, Halloween and Valentine’s Day.
The 8th Circuit Court of Appeals, in a decision written by Judge Gerald Heaney of Minnesota, upheld the policy as not violative of the First Amendment. The court affirmed the trial court’s determination that the rules do not “unconstitutionally entangle” the school district with religious institutions and that they are permissible under the First Amendment.
A dissenter, Judge Thomas McMillian was particularly disturbed by treating Valentine’s Day on a “religious basis.” He thought that the “religious origin” of the day is “remote ... and its contemporary religious significance minimal.” His “scrupulous” scrutiny of the policy indicated that its official inclusion in the school district’s protocols unconstitutionally infringed on the First Amendment.
—————
Valentines vanquished
The sending of romantic cards is probably the most well-established tradition of Valentine’s Day. This commemorative practice was central to the outcome of three diverse federal and state court cases resulting in the sender of the sentiments vanquished.
The exchange of Valentines sparked a sex harassment claim by a woman against her former employer and foreman in Cram v. Lamson & Ession Co., 49 F.3d 466 (8th Cir. 1995).
The dismissal of the woman’s claims for discriminatory discharge, sex harassment, retaliation and a hostile work environment was affirmed by the 8th Circuit. The key basis for upholding the dismissal was the exchange of Valentine’s Day cards by the employee and her foreman after their “consensual romantic affair” had ended. Giving the foreman a Valentine undermined her claim because it “indicates that whatever non-sexual advances [the foreman] made were not unwelcome.”
Giving a Valentine to a co-worker also was fatal to a claim for unemployment compensation benefits in Harvey v. Wackenhut Corp., 2005 WL 3529197 (Minn. Ct. App. 2005) (unpublished). The employee was fired for engaging in sex harassment and refusing to cooperate in an investigation, which the Department of Employment & Economic Development deemed to constitute disqualifying misconduct, and the Minnesota Court of Appeals affirmed.
The employee was ineligible for unemployment compensation benefits because of his conduct, which included giving a “Valentine and a romantic poem” to a pair of women at his worksite, which led them to file a sex harassment complaint. The employer, pursuant to its policies, instructed him to provide information about the incident, either orally or in writing, but he refused to do so. His “refusal to abide by [the employer’s] request” reflected intentional “disregard for his obligation as an employee and constituted employment misconduct.”
Sending Valentines also got a litigant into trouble in In Re Nadeau, 407 N.W.2d 406 (Minn. Ct. App. 1997). The Court of Appeals upheld the commitment of a mentally ill person based, in part, on stalking activities, which included sending a pair of Valentine cards to a man she met when she worked as a secretary at the school he attended.
The woman had been committed as mentally ill on two prior occasions, but the second determination was reversed because of insufficient evidence that she posed a “substantial likelihood of harm to herself or others.” But she continued to have mental difficulties, highlighted by increasing agitation and repeated stalking activities. The most recent incidents included sending two Valentine cards to the man, signed by her in the name of his nonexistent son. The court found that this behavior indicated that she “cannot care for herself ... [may] become dangerous and can no longer live safely in freedom.”
—————
Cupid criminality
An inflammatory closing argument by a prosecutor did not constitute misconduct in a prosecution of a domestic assault that occurred the night before Valentine’s Day in State v. Littlewolf, 2003 WL 22187058 (Minn. Ct. App. 2003)(unpublished).
Affirming a conviction for assault by the Beltrami County District Court, the Court of Appeals examined the prosecutor’s statements, which recounted the origin of Valentine’s Day and apprised the jury of the victim’s feelings about the day. The prosecutor stated that the victim remembers Valentine’s Day when she wakes up every morning and “it’s not just the color of red or pink anymore. It is blood red, ladies and gentlemen, for her.”
Although the prosecutor’s remark “falls in the category of inflaming and prejudicing the jury ... [it] does not require a reversal.” The “Valentine’s Day story” was short, composing only one-half page of the 20-page transcript of the prosecutor’s closing argument. Its brevity reflects “that the state did not dwell on the Valentine’s Day story nor use it as a theme for the closing argument.” Although “the isolated Valentine’s Day story may have been improper” in light of the argument in whole, it did not constitute prosecutorial misconduct, warranting reversal.
A conviction for third-degree sexual conduct with an underage girl, whom the defendant met at a Valentine’s Day dance, was reversed in State v. Boogaard, 2003 WL 897207 (Minn. Ct. App. 2003) (unpublished). A Renville County District Court jury acquitted the defendant of one count of third-degree criminal sexual conduct involving force or coercion, but found him guilty of statutory rape based upon admitted sexual conduct with the underage girl. The defendant challenged his conviction on grounds that the trial court judge failed to instruct the jury on the defense of mistake of age, based upon his belief that the 14-year-old girl with whom he had a sexual encounter was 16 years old.
The Court of Appeals agreed and reversed. There was evidence that the girl had told the defendant that she was 16 years old, which predicated a defense of mistake of age. Although the defendant’s counsel did not request an instruction that mistake of age was a defense, the jury should have been told about the defense because counsel notified the court before trial of the request of mistake of age instruction and because there was testimony at trial that the girl told the defendant and others that she was 16 years old. Due to the testimony that the girl lied about her age, the jury “may have acquitted [the defendant] of statutory rape” had the mistake instruction been given. The trial court judge’s failure to do so was “plain error” because it constituted an affirmative defense and the defendant had given “pre-trial notice of the defense.” Therefore, the conviction was reversed and remanded.
A man who was involved with his wife in a staged robbery at a motel where he worked in Moorhead unsuccessfully asserted spousal privilege derived from the couple’s Valentine’s Day marriage in U.S. v. Gianakos, 415 F.3d 912 (8th Cir. 2005). A few weeks after the incident, the couple got married so that the man could utilize the spousal privilege law in Minnesota in the event they were charged with robbery. He was later tried and convicted for robbery in state court, but the conviction was reversed because the testimony of his Valentine’s Day wife was used against him, which transgressed the spousal evidentiary privilege under Minn. Stat. sec. 595.02, subd. 1(a).
But the man was subsequently prosecuted in federal court for kidnapping and murdering a witness in violation of 18 U.S.C. sec. 1201(c). A jury found him guilty of the federal charge and he was sentenced to life imprisonment. The 8th Circuit affirmed, rejecting the husband’s claim that his testimony in his prior state court trial was improperly admitted. He testified in the state court case in his own defense after his wife, waiving the privilege, testified against him. Although his testimony was inadmissible under state law because of the marital privilege, its later admission in the federal case did not violate his right against self-incrimination under the Fifth Amendment because his testimony in the prior state proceeding was not illegally obtained and hence was not constitutionally suspect. Accordingly, his testimony in the state court case, although improper, was properly used against him in the federal proceeding.
Valentine’s Day is set aside for romance and love. But, as these cases reflect, it also is a day characterized by rancor and litigation.
Have a Happy One!
—————
Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
