Government and constitutional litigation is a cornerstone of Greene Espel’s practice. We proudly represent cities, counties, airports, school districts and regional authorities—often in high-profile conflicts where fundamental public policies are at stake or where the outcome carries significant financial implications. We also represent individuals and private businesses where their actions raise constitutional issues.
Our attorneys frequently are called on to educate other attorneys, judges, and law students at seminars on government and constitutional practice. We are honored to represent our clients in matters with great significance to the public.
Land Use and Zoning
We defend land-use decisions made by cities, counties, and other public bodies. We assist local governments to respond effectively to various challenges, including growth control, infrastructure costs created by new development, and the need to plan for long-term public interests while responding appropriately to short-term demands. We obtain judicial enforcement of zoning ordinances. We defend against claims against government bodies arising from land use regulation. Many of these cases involve constitutional challenges, such as “takings,” free speech and association, and substantive and procedural due process rights. As the legal landscape changes through court rulings and legislation, our public-sector clients look to us for insight, guidance, and defense.
A developer applied for a conditional use permit to build a Home Depot mega store in White Bear Lake. The City amended its zoning ordinances before reviewing the application. The City refused the developer’s permit, as the intended use would violate the newly-amended ordinance. The developer claimed that the City’s decision was arbitrary and capricious. We successfully defended the City’s refusal in Acorn Invest, Inc. v. City of White Bear Lake, No. C0-00-1055, 2001 WL 32769 (Minn. Ct. App. 2001).
Waste Disposal Facility
A developer wanted to construct two waste-disposal facilities in Monroe County, Iowa, against the County’s best interests. The County denied the developer’s application. The developer sued the County, seeking a multimillion-dollar damages judgment on constitutional and tort theories. We obtained summary judgment on behalf of the County, which the Eighth Circuit affirmed in Iowa Coal, Inc. v. Monroe County, Iowa, 257 F.3d 846, (8th Cir. 2001).
A mobile home seller sold and stored homes in a mobile home park in Dayton, Minnesota. The City saw this as unlawful under its nonconforming use ordinance. After the City ordered the seller to cease, the seller sued the City to challenge enforcement. We brought a counterclaim against the seller, defeated the challenge, and won declaratory and injunctive relief for the City in Northgate Homes, Inc. v. City of Dayton, 126 F.2d 1095 (8th Cir. 1997).
A paving contractor sought to expand its asphalt plant in Rice County. Residents expressed concerns about road and environmental damage, traffic, safety, and noise. The County limited the operations at the asphalt plant, and the contractor sued. We defeated dormant Commerce Clause and substantive and procedural due process claims at summary judgment in Bituminous Materials v. Rice County, 126 F.3d 1068 (8th Cir. 1997).
Referendum and Initiative
The Minnesota Court of Appeals has endorsed an independent legal opinion prepared by Greene Espel addressing the impropriety of enacting land use legislation by referendum and initiative. We had advised the City of Richfield that Minnesota land use statutes requiring municipal planning and mandating inter-jurisdictional coordination would preempt efforts to enact land use-related ordinances via direct popular vote. In a precedent-setting decision, the Minnesota Court of Appeals affirmed the City’s refusal to hold an election for the proposed ballot measures. Nordmarken v. City of Richfield, 641 N.W.2nd 343 (Minn. Ct. App. 2002).
Public Finance and Municipal Securities
Our attorneys represent Minnesota cities in tax-increment financing litigation cases. We defend claims for violations of federal and state securities fraud statutes brought by purchasers of municipal bonds as well as claims for consumer fraud and breach of contract.
A high-yield income fund purchased $5 million in revenue bonds to finance the construction of rental housing projects in northern Minnesota cities. To the disappointment of investors, the cities refused to pay deficits connected with the housing projects. The fund sought to represent 350 investors in a class action against the cities. We represented the cities and defeated class certification in Franklin Fund v. City of Roseau, et al., 98-CV-1576 (D. Minn. 2000).
We have successfully represented several cities defending challenges to public support for private enterprise, including the creation of a tax increment financing district for redevelopment, refusal to create a tax increment financing district for a senior housing project in Hastings, and an attack on the use of public funds to retain a business in Roseville. See e.g., Nielson, et al. v. City of Roseville, No. 98-1625 (D. Minn. 1999 and 2000), and 2001 WL 1640040 (D. Minn. 2001).
Taxation / Impact Fees
The City of Eagan imposed a road unit connection charge as a condition for the issuance of all building permits within the City. Building contractors sued, arguing that the charge was illegal and seeking a refund for those who had paid the charge. On our defense of the City, the district court found that even though the charge was illegal, the building contractors had no basis for recovery in Country Joe, Inc. v. City of Eagan, No. C4-98-618, 1998 WL 713481 (Minn. Ct. App. 1998).
Disciplinary Investigations and Labor
We provide various Minnesota cities regular representation in complaint, investigation, and discipline matters. We counsel department heads in their own employment investigations and discipline decisions. We litigate employment discipline decisions at arbitration and directly investigate more complex employment complaints. Our cases range from addressing alleged misconduct of entry-level employees to department heads.
Discipline Arbitration: Sexual Harassment
A female police supervisor was accused of sexually harassing a male subordinate officer. The department applied its new, mandatory termination policy for two-time offenders, and therefore terminated the sexually harassing supervisor. The supervisor’s union challenged the discipline, which was the first termination for sexual harassment in the police department’s history. We represented the City and sustained the discipline at arbitration.
A male police officer was suspected of improper contact with a female middle school student while serving as the school liaison officer. The City sought our assistance in overseeing the administrative investigation and in initiating discipline. We helped to remove the officer from law enforcement without arbitration.
Conflict of Interest Investigations
An administrative department head was assigned to contract with private vendors. Others accused the department head of selecting a contractor with whom the department head had a private business relationship, allegedly to benefit personally. We investigated the accusation for the City.
Discipline Arbitration: Misconduct During Investigation
A City’s maintenance employee found a loaded police shotgun in the City’s service garage near an unattended police car. The employee approached the shotgun, raised it, and remarked about walking into the supervisors’ office with the weapon. The City disciplined the employee for falsely denying this conduct. We represented the City at arbitration and sustained a thirty-day suspension.
Consultation, Investigation, and Training
We have provided various Minnesota cities regular representation in counseling their own employment investigations, litigating employment discipline decisions at arbitration, and directly investigating complex employment discipline cases. Our cases range from addressing alleged misconduct of entry-level employees to heads of major departments. We have helped to develop employment policies, trained employees, and taught internal investigators and attorneys the complex constitutional and statutory framework of public sector investigations.
Our governmental employment practice dovetails with our business employment practice. We litigate employment cases in federal and state court and in federal and state agencies. We represent clients accused of making decisions on the basis of gender, disability, race, religion, and other protected classes. We navigate the complicated constitutional and statutory issues that arise in the intersection of employment law and government liability. We advise public-sector clients about legal issues arising from state restrictions on the authority of local government to fully compensate their most valued executives.
“Public policy” warrants judicial reversal of arbitrator’s reinstatement of discharged employee. In a highly publicized case establishing legal precedent, the Minnesota Court of Appeals invalidated an arbitrator's decision reinstating a police officer who had been discharged for engaging in a pattern of inappropriate conduct toward women. The Court of Appeals ruled that courts are obligated to intervene and disturb arbitration awards when the enforcement of an award would compromise an overriding public policy, City of Brooklyn Center v. Law Enforcement Labor Services, Inc., 635 N.W.2d 236, 168 L.R.R.M. (BNA) 2593 (Minn. App. 2001).
Hiring Practices and Remedies
A trial court found that the written examination used by 36 Minnesota cities to screen police officer candidates had a disparate impact on racial minorities. The trial court then ordered various remedies, including injunctive relief and punitive damages, and also awarded complete attorneys fees to the plaintiffs. The cities and the testing organization asked us to handle the appeal of these remedies. We did so, obtaining a holding that the trial court had improperly ordered race-based hiring as an injunctive remedy, improperly ordered a $300,000 penalty contingent on future violations, improperly ordered punitive damages, and improperly awarded complete attorneys’ fees. Fields v. Minnesota Police Recruitment System, No. C1-97-517, 1998 WL 40507 (Minn. Ct. App. Feb. 3, 1998).
The first female police officer for the City sued the City and officers for violations of federal and state gender discrimination laws after she was dismissed during her probationary period. The officer sought to amend her complaint to seek significant punitive damages against the City and officers. We defended the attempt, securing a finding in federal court that “the Plaintiff’s claim is not deserving” of punitive damages. We then brought the case to a reasonable settlement. See Ulrich v. City of Crosby, 848 F. Supp. 861 (D. Minn. 1994).
A former volunteer firefighter claimed to have been fired in violation of the state whistleblower statute. We represented the City and obtained summary judgment after minimal discovery in Boever v. Oakdale Volunteer Fire Department (10th Jud. Dist. Ct. 1998).
A part-time firefighter was passed over for promotion to a full-time position. She also felt that the department was selective in the allocation of equipment. She brought a formal administrative charge, accusing the City of making decisions based on gender. We represented the City and obtained the rejection of these claims before the Minnesota Department of Human Rights, in Sabo-Clegg v. Winona (MDHR 1999).
Immunities and Special Defenses
Our attorneys have litigated matters that have been instrumental in developing case law in areas central to governmental liability. Among other areas, our cases have helped shape state and federal judicial policy concerning immunities and related defenses for governments and their officials.
Failure to Protect
The University sponsored a cultural immersion program in Mexico. A taxi driver sexually assaulted a student in the program when the student left her host family to meet friends at a local bar. The student sued the University on the theory that the University had failed to protect her. We represented the University and secured a holding that the University enjoyed qualified immunity in Bloss v. University of Minnesota, No. C4-93-163, 1993 N.W. 2d 661 (Minn. July 6, 1999).
Public Duty Doctrine
A City inspector evaluated a home that later was destroyed in a fire, killing several occupants. The family of the decedents sued, claiming negligent inspection. We represented the City, and obtained early summary judgment based on the “public duty doctrine.” Canizares v. City of Tracy (9th Jud. Dist. 1996).
Immunities and Privileges
We have shaped and applied traditional legal theories in defending the discretionary decisions and conduct of governments and their officials in many other suits. We have successfully responded to actions in federal and state court by developing the defenses of qualified, official and statutory immunity, as well as absolute and qualified privilege.
Law Enforcement Liability
We represent local governments, departmental officials, and officers in law enforcement liability cases. We handle lawsuits that challenge operational decisions, statutory application and police conduct. Our cases include a range of allegations from complex federal constitutional challenges to allegations of state tort violations.
Excess Force and Discrimination
Police officers patrolling the Mall of America sought to control three patrons who were acting in a disorderly way in a movie theater. The patrons resisted the officers’ arrest attempts. The arrest was captured a videotape that was aired on local news broadcasts. In the arrest, the officers sprayed one patron with a chemical and struck him with a baton. The three patrons sued the officers in federal court, demanding $5 million for constitutional and tort violations. We represented the officers and obtained dismissal, and a public apology, on behalf of the officers. McKinney v. Mall of America, et al., (D. Minn. 2000).
Statutes and Ordinances
The City created a policy incorporating several state statutes to impose impound fees for vehicles seized as evidence of crime. Officers towed and impounded as evidence a vehicle owned by a defendant charged with assault and theft. Months after conviction, the defendant was released, but his car had remained under impound and had accumulated fees in excess of the vehicle’s value. He sued, alleging the scheme effectively deprived him due process of law. We obtained summary judgment for the City, affirming its ordinance as constitutional. Spangler v. Roseville, CIV No. 97-2021 (D. Minn. 1997).
From Early Settlement to Trial
We have represented many officials in law enforcement, and their employers. Our background and experience affords us the opportunity to investigate quickly and to advise local governments early on as to the legal appropriateness of the challenged police conduct. Our assessments have led to early and fair settlement, avoiding significant liability risks and additional media attention. As trial attorneys, where settlement is not the best option, we are prepared to take the matter through full litigation and trial. E.g., Williams v. City of Plymouth (D. Minn. 1996) (sustaining favorable jury verdict for officers accused of unconstitutional excess force and discrimination during an arrest).
Other Governmental Matters
We have considerable experience in other types of government and constitutional litigation as well. These include the areas of defamation, data practices, and governmental contracts and franchise matters. As in other fields of governmental litigation, our attorneys have also taught at seminars on the complexities inherent in these matters.
The then-mayor Jesse Ventura made comments during a city council meeting regarding alleged business improprieties at a municipal golf course. The course’s clubhouse manager took issue with the comments, and accused Mayor Ventura of defamation. We defended the Mayor and secured summary judgment in Anderson v. Jesse Ventura, File No. PI 93-008900 (4th Jud. Dist. Ct. January 5, 1994).
The City of Marshall granted a cable company a cable television franchise. A different company later sought another nonexclusive cable television franchise. The first company objected. The City granted the second franchise, and the first company appealed by certiorari to challenge the second franchise. We represented the City and defended the legality of the second franchise award in In re: Dakota Telecommunications Group, 590 N.W.2d 644 (Minn. Ct. App. 1999).
A City employee obtained the decision of the Minnesota Commissioner of Administration advising that the employee was entitled to documents the City felt should not be disclosed under provisions of the Data Practices Act. We represented the City in court and obtained a decision ordering the destruction of the requested documents in Gill v. City of Mahtomedi, No. C 7-95-3025 (10th Jud. Dist. Ct. 1995).
Housing Class Action
A local public housing authority successfully accommodated the influx of one racial minority, causing another racial minority to claim discrimination based on the disparate impact of the housing authority’s decision. We defended the accommodation, defeating class certification in federal court. Robinson v. Cisneros, Civ. No. 3-95-384 (D. Minn. 1995).
Regulatory Contract Oversight
The Counties of Anoka, Hennepin, and Sherburne considered the transfer of a waste-to-energy facility from Northern States Power to Xcel Energy. We assisted the Counties in evaluating contractual obligations, liability risks, and guarantees and releases, to ensure that the Counties’ interests were protected.
Several townships in Olmsted County, Minnesota, adopted their own zoning ordinances, and one such township then approved a rezoning for a project that conflicted with the County’s zoning laws. The County Recorder refused to record the plat for the proposed development, which caused the developer to sue the County in two different courts. We defended the County in both actions and prevailed before each court. West Circle Properties L.L.C. v. Hall, 634 N.W.2d 238 (Minn. Ct. App. 2001), rev. denied (Minn. Dec. 19, 2001).
Public Utilities and Communications
We have defended a variety of challenges to the authority of local government to regulate the location and operation of cellular phone towers, power lines, and cable television franchises and facilities. These cases often require the application of new and complex statues, including the Telecommunications Act of 1996 and Minnesota statues governing electrical transmission.
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