“[L]et us resolve to continue embodying the American spirit that no act of terror can ever extinguish.”
President Barack Obama, Sept. 10, 2015
It has, remarkably, been 15 years since the horrific terrorist attacks of Sept. 11, 2001.
Claiming nearly 3,000 lives, the terrorism changed the country and the world in ways that are still being felt today. The multitude of lawsuits arising out of those actions is now drawing to a close, centered mostly in New York City, where most of the fatalities and economic damages occurred. But the litigation extended to Minnesota, which also has experienced impact from that date.
The 15th anniversary of the day that will long be remembered by the simple designation of “9/11” provides an opportunity to look at how that cataclysmic event has affected the law in Minnesota.
Rules adopted after 9/11 by the Minnesota Department of Public Safety (DPS) to prevent prospective terrorists from establishing phony identities were challenged in Jewish Community Actions, et al. v. Commissioner of Public Safety, 657 N.W.2d 604 (Minn. App. 2003). The rules were motivated by concerns that misuse of the identification cards, known as “gateway documents,” could allow terrorists to establish ostensibly legitimate identities, allowing them to blend into society while concocting sabotage schemes. The DPS protocols required new applicants for a driver’s license or state identification card to present a primary document, such as a birth certificate and a secondary document with a photo ID; prove Minnesota residency, U.S. citizenship or lawful presence in the country; and to allow a full face photo image with head and face unobscured and uncovered, regardless of religious objections.
A St. Paul-based community action organization claimed that the regulations were invalid because the DPS did not follow the normal rule-making process; the department eschewed public review, comments, and a hearing. The chief judge of the office of administrative hearings agreed, reversing a decision of another administrative law judge, and declared the DPS rules invalid. It rejected the claim by DPS that good cause existed to bypass the usual procedures.
The court agreed that the desire to act swiftly after 9/11 was consistent with the public interest because of the seriousness and the “immediacy of the threat” of clandestine terrorism. Id., at 609. The rules were generally “tailored to address a problem of public safety” by helping to identify and avoid criminal behavior.Id.
But bypassing the regular rule-making process was not permissible because following the standard procedures would not be inimical to the public interest: DPS failed to show how long the delay would take; how the public specifically would be harmed by this delay; and how speeding up the process would better serve the public interest, Id., at pp. 610-11.
Therefore, DPS was required to redo the process, following the normal rule-making steps. The rules were subsequently published in the state register on Sept. 16, 2003.
The 9/11 terrorist attacks were the gist of a pair of cases involving governmental actions.
A month after the attacks, a police officer at the University of Minnesota suffered a career–ending back injury while moving a suspicious looking television near the entrance to a campus building. His claim for disability benefits was allowed, but the Public Safety Officers Benefits Eligibility Panel denied his request for continuation of paid health insurance on grounds that lifting the items was not an occupational duty “unique to the job,” as it deemed was required for continuing of insurance under Minn. Stat. § 299A.495, subd. 1(c)
The appellate court reversed, holding that the officer’s actions satisfied the statutory standard, in In re Claim for Benefits by Sloan, 729 N.W.2d 625 (Minn. App. 2007). The officer moved the set after he checked it internally and found no explosives. Moving the item was reasonable under the circumstances to alleviate anxiety of bystanders who, after 9/11, might be concerned about the unusual presence of the set. The panels’ reliance on the unique to the job standard was not covered in the statute, was unsupported by case law and was found to be arbitrary and capricious.
Two campaign-related statutory claims cited to 9/11 by a victorious campaign for mayor in Forest Lake failed in State ex rel. Singmer v. Smth, 2008 WL 2967011 (Minn. App. 2008)(unpublished). After being described in statements by his opponent’s supporters as linked to al-Qaida, and portrayed as a Muslim terrorist, he sued his unsuccessful political foe for violation of the state statutes barring dissemination of “false” campaign materials, Minn. Stat. § 211B.05, 6, and proscribing undue influence of voters under Minn. Stat. § 211B.07.
Affirming a ruling of the administrative law judge, the appellate court deemed the lawsuit not actionable. The campaign materials statute was not violated because the oral remarks were not literature or publications covered by the law. The undue influence charge also was not maintainable because there were no claims of any threats or retaliatory action directed against specific voters, which is necessary to activate that measure.
Airports, not surprisingly, have been the sites of 9/11 litigation here. In Guma v. Globe Security Screeners,2004 WL 1965851 (Minn. App. 2004)(unpublished), privately employed security screeners at the Metropolitan Airport who were laid off after 9/11 were denied temporary extension of unemployment compensation benefits for displaced airport workers after exhaustion of their regular compensation benefits.
Upholding denial by the Department of Employment Economic Development (DEED), the appellate court deemed the workers ineligible for the extended benefits. The screeners were let go after the federally created Transportation Security Administration (TSA) took over most airport security functions. While they were entitled to initial benefits, they did not qualify for the extended benefits allowable for displaced post 9/11 airport employees attributable to reduction in air carrier service after the attacks. Although 9/11 led them to be laid off, the immediate cause was the federal takeover of airport security which was outside the scope of the temporary measure extending unemployment benefits.
A Muslim pilot of Indian descent lost his post-9/11 discrimination claim before the 8th Circuit Court of Appeals in EEOC v. Trans Sate Airlines, Inc. 462 F.3d 987 (8th Cir. 2006). Shortly after 9/11, he was fired due to tips from other pilots that he was drinking while in uniform at a hotel bar and making anti-American comments relating to the attacks.
A claim on his behalf by the Equal Employment Opportunity Commission (EEOC) for discrimination under Title VII of the Federal Civil Rights Act based on religious, ethnicity and international origin was dismissed by the trial court in Missouri, and the appellate court affirmed. The proffered reason by the airline for his termination was his violation of company policy by drinking in public while in uniform. The pilot argued that he was fired because his name was Mohammed Hussein, was regarded as Muslim and Arab. This argument was rebuffed because he was from India and was not an Arab, and so there was insufficient evidence of any discriminatory intent to the discharge.
The date of Sept. 11, 2001, was the date of a rape that spawned a guilty plea withdrawal litigation in neighboring Wisconsin in State v. Nelson, 282 Wis. 2d 602, 701 N.W.2d 32 (2005). The defendant pleaded guilty to multiple charges relating to a sexual assault in the wee hours of 9/11, shortly before the terrorist attacks took place. His subsequent effort to withdraw his plea on the grounds that he could be civilly committed as a sexually violent individual after serving his time for the crime was partially reversed by the state Supreme Court.
The defendant could abrogate his plea to three counts of first-degree sexual assault because doing so would not substantially prejudice the state. However, because the evidence was so strong, conviction would be had relatively easily. His pleas to two other felonies arising from the same incident remained intact.
These cases reflect the indelible impact that 9/11 has made on Minnesota law, still felt 15 years later.
As published in Minnesota Lawyer.