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August 5, 2019 MINNLAWYER.COM Vol. 93 No. 21 I ·ss.oo

Ford must·
face trial in
Minnesota,
court says
By Barbara L. Jones
bjones@minnlawyer.com

What the majority called "target-

ing Minnesota" to sell cars and what
lJ\ the dissent called "suit-irrelevant"
forum contacts meant that the state

1
c-'
could exercise specific jurisdiction
in a motor vehicle accident/products
liability claim against Ford Motor
Company, the Supreme Court ruled
on July 31, 2019.
~
The accident in question involved a

~ 1994 Ford Crown Victoria owned and

driven by Minnesota residents that
rear-ended a Minnesota county snow
plow, causing brain injury to the plain-
tiff. The car's air bag failed to deploy.
Ford argued that because the car
involved in the accident was not de-
signed, manufactured, or originally
sold in Minnesota, Ford cannot be
subject to personal jurisdiction in
Minnesota on this claim. Three courts
have now disagreed with Ford. The
District Court refused to dismiss the
case and the Court of Appeals affirmed
in Adam Bandemer v. Ford Motor Co.
et al.
"Because the·re is
a substantial con -
nection between the
defendant Ford, the
forum Minnesota,
and the claims
brought by [plain-
tiff], Ford's contacts
with Minnesota
Justice Anne McKeig
suffice to establish
specific personal jurisdiction over
the company regarding [plaintiff's]
claims," wrote Justice Anne McKeig
for the 5-2 court. Justice G. Barry
Anderson dissented, joined by Chief ·

Ford I Page 7 DEPOSIT PHOTOS

Activists sue to overturn false-endorsement ban

Statute contains 'content-based'
restraint on free speech, suit contends
By Kevin Featherly
kfeatherly@minnlawyer.com
Several GOP activists and political groups are suing
four Minnesota county attorneys out of fear they will
be prosecuted if they exercise their free-speech rights
during the 2020 election.
That is because plaintiffs either have or want to
engage in political activity that, under Minnesota
Statutes Section 211B.02, is prosecutable. ·
Section 211B.02 bars false claims that a candidate
has endorsement from a major political party, party
unit or organization. It also applies to false endorse-
ment claims about ballot initiatives. Violators can be
punished by up to 90 days in jail or a $1,000 fine.
The suit, filed July 24 in Minnesota's U.S. District
Court, challenges the law as an unconstitutional "con-
tent-based restriction" on what people can say about
candidates or causes. STAFF PHOTO: KEVIN FEATHERLY
"The plaintiffs fear that, as a result of the plaintiffs' Chanhassen rancher and Republican activist Bonn Clayton, foreground,
speech or expressive activities, at least one of the de- is a plaintiff in a lawsuit that challenges Minnesota Statutes Section
211B.02 as an unconstitutional "content-based restriction on political
Free speech I Page 26 speech:'
 26 I MINNESOTA LAWYER I August 5, 2019 I MINNLAWYER.COM

Free speech The statute could also impact

Beaudette's plans to run in 2020, the
complaint states.
Continued from page 1 The suit names Hennepin County
Attorney Mike Freeman, Carver County
fondants will prosecute at least one of Attorney Mark Metz, Winona County
the plaintiffs for violating §211B.02," the Attorney Karin Sonneman and Dakota
complaint states. County Attorney Jim Backstrom as re-
"Our position," said plaintiffs' attorney spondents.
Erick Kaardal, "is that the chilling effect It contends plaintiffs have suffered
of these people being fined is affecting "an injury-in-fact" directly traceable
how people communicate about endorse- to the named prosecutors, because the
ments." plaintiffs propose to offer endorsements
next year and the four county attorney
Law's language could prosecute them for it.
"Therefore," the suit continues, "the
The statute's first sentence reads: "A plaintiffs and each of them have had
person or candidate may not knowingly their political speech deterred and
make, directly or indirectly, a false claim chilled."
stating or implying that a candidate or David Schultz, the Hamline
ballot question has the support or en- University political science professor and
dorsement of a major political party or STAFF PHOTO: KEVIN FEATHERLY
attorney, said he does not rule out that
party unit or of an organization." Three-time state Supreme Court candidate Michelle MacDonald, foreground, and attorney Erick Kaardal attend
the suit might succeed. "Especially with
That sentence, the complaint asserts, a July 24 Capitol press conference announcing the lawsuit challenging Minnesota Statutes Section 2118.02. this U.S. Supreme Court, which is tak- .
exposes people to charges that truthful olating a different part of the statute, Crystal, said the group adopted the ing a very aggressive First Amendment
endorsement claims are false. 211B.06, which was later struck down name because the DFL has abandoned stance in protection just about every
"Indeed, the sentence makes discuss- as unconstitutional. its farm and labor constituencies. claim,'' he said.
ing politics legally precarious because Another OAH panel fined MacDonald "It's important to point out the hypoc- On the other hand, Schultz said, he
of the risk that something that one says $500 after finding she had falsely risy of the DFL,'' Munson said. ''And so doubts it will prevail. He sees the case as
will be characterized as falsely'implying' claimed endorsement from the "GOP why should the DFL have some kind of different from Minnesota Voters Alliance
support or endorsement," the complaint Judicial Selection Committee 2016," lock on the words 'farmer' and 'labor?"' v. Mansky, in which the U.S. Supreme
says. The sentence also violates the First while running for state Supreme Court. "The DFL will claim, as it already has, Court overturned Minnesota's polling
Amendment right to "expressive associa- MacDonald had been the party's en- that 'Farmer Labor' is their exclusive po- place political-apparel ban. Kaardal was
tion," plaintiffs contend. ------. dorsed candidate for Supreme litical brand," Clayton said at the press on that case's legal team.
In its second sentence, Court in 2014. She contin- conference. "Which is a far-out idea." Overturning 211B.02 wouldn't just
the statute reads: ''Aper- d\Gf,f
. ·~ ues to insist her 2016 make someone strip off a T-shirt, Schultz
son or candidate may .., ,- endorsement claim
Proximate cause

L
said, but it could also allow people to
not state in written also was legitimate.
Kaardal said Nauen's cease-and-desist falsely claim endorsement from a major
campaign material Don Evanson, a
party without recourse.
that the candidate Winona GOP ac- letter to the RFL was the genesis of the "That would mean you basically be-
or ballot question .· . tivist, is another suit. During the course of researching
lieve the parties are powerless to be able
has the support plaintiff in the it, he said, he pulled in o_tber plaintiffs
to protect their brand or their na-me,"
or endorsement • suit. So is Vincent similarly affected '
Schultz said.
of an individ- Beaudette, who by Section 211B.02.
If the statute
ual without first
getting written
permission from
',,
..Y~
*·* * .
·. . 0~ .
<,
was endorsed in

47B race last year,

The letter and
the House District the statute re-
strain his clients'
were overturned,
he said, parties'
property interests
the individual to li>1: WE sE-\,.: but lost to cur- free-speech rights That would mean you
do so." _ _ _ rent Rep. Greg during next year's would effectively
Boe, R-Chaska, election, Kaardal be destroyed and
That sentence
is an "imper- This is the Republican Farmer Labor Caucus logo as it ap- in the primary. said. For exam-
basically believe the voters would be left
Beaudette's Vince ple, though it is confused. Schultz
miss i b 1e prior pears on the group's Facebook page.
restraint" that .. for Statehouse an affiliatff of the
P.arties are powerless doubts the courts
will go along with
requires permission for political expres- Committee is another party in the suit. state
Republican
GOP., -t.he
Farmer-
to ,be able to protect that.
sion, the suit contends. And like the first The fifth plaintiff is the Republican
sentence, it fails to discriminate between Farmer Labor Caucus, a group that in- Labor Caucus won't
be endorsing candi-
their brand or their "You under-
mine legitimate,
true and false assertions. "The sentence .· · eludes four GOP House members. Bonn
actually bans truthful political speech,'' · serves as·its campaign committee chair. dates next year for name." investment-backed
the suit alleges. In April, the "RFL" received a cease- fear of prosecution:' expectations," he
Two of the suit's plaintiffs-Carver and-desist letter from DFL counsel Beaudette claims . ShI H . U. . said. "Because if the
- David c u tz, am 1me mvers1ty DFL can no longer
County rancher and GOP activist Bonn Charlie N auen, who said its use of the the statute might professor, attorney pro t ec t 1.t s name
Clayton and three-time state Supreme name and an RFL logo are confusingly have prevented
Court candidate Michelle MacDonald- similar to state Democrats' longstanding him from winning and it no longer has
previously have been fined for violating identity as the "Democratic-Farmer- a House seat i n an ability to defend
the section. Labor Party." 2018. He won 60 percent of delegates itself, then it has lost value in terms of
A three-judge Office of Administrative "If you continue such use despite this at his district's GOP endorsing conven- what that name means."
Hearings panel fined Clayton $600 for notification, we will consider all avail- tion and secured the party's nomination. The lawsuit seeks to declare Section
violating 211B.02 in 2013. able legal means to protect the marks But Beaudette later was prevented 211B.02 unconstitutional under the
It found he had distributed a 2012 vot-· ·and goodwill of the Minnesota DFL from running a general election write-in First and Fourteenth amendments. It
er's guide that falsely claimed the state ·Party,'' the ~etter says. Nauen could not campaign against Boe, the suit claims, also seeks to enjoin respondents from
GOP had endorsed three state Supreme be reached for comment. because he feared Boe would file an OAH enforcing the law. Plaintiffs ask for reim-
Court candidates-Dan Griffith, Tim At a July 24 Capitol press confer- complaint against him for asserting his bursement of court cQsts and attorney's
Tingelstad and Dean Barkley-that year. ence announcing the lawsuit, the RFL's earned status as the party-endorsed can- fees and any other relief the court deems
Clayton was fined another $600 for vi- founder, Rep. Jeremy Munson, R-Lake didate. appropriate.

Notebook similar relationships in time (in other

Continued from page 2
client would be entitled to a refund if the
agreed-upon services were not provided).
Although to my ear it clashes like
plaid and paisley, the will I if formulation
is an accepted way to express a condition.
Some languages actually have a condi-
tional verb mood in which the form of
the verb changes to indicate that we're
talking about something that hasn't hap-
pened yet. English does not. Instead, we
indicate conditions by using a mix of
other verb moods and tenses.
To keep ourselves from getting
hopelessly confused, we use parallel
grammatical structures when discussing
words, keep all the verbs in the same
tense). But occasionally it's necessary
to mix it up-for example to indicate a
conditional clause.
Since no one does conditional clauses
like contract drafters, I turned to Ken
Adams ' Manual of Style for Contract
Drafting for guidance.
Adams advises that the "if/will" forma-
tion is appropriate when-you guessed
it-a certain consequence awaits the oc-
currence of a speculative event. Here's
an example:
If Jones ceases to be employed by
the company, the Option will termi-
nate.
If he is late, the restaurant will
keep his dinner warm.
Adams' Manual devotes six dense
pages to conditional language, field-strip-
ping dozens of sentences to illustrate
precisely how contract drafters can
express exactly what shou~d happen if
something else happ~ns:·If you are ever
in doubt about how to ~~press (or not to
express) conditions, it is worth a close
read.
Takeaways
• Remember that English has distinct
verb moods, and that the subjunctive
mood is usually used to express specu-
lative, hypothetical, and counterfactual
situations. It may or may not be appro-
priate for expressing an event that is
certain to occur if a future condition is
met.
• When trying to express a condition,
prefer the indicative mood, but choose
and sequence your verbs with precision,
and try to keep all the verbs in the same
tense to avoid confusion.
• When in need of guidance on how
to write or understand conditional
sentences, look to contract-drafting re-
sources such as Adams' Manual of Style
for Contract Drafting.
• When you prepare a written flat-fee
agreement to give to your client, consider
including the will I if text of Rule l.5(b)
(l)(v) exactly as it's written: it may not
seem grammatical, but it precisely con-
veys that your client will be entitled to a
refund of part of the flat fee if you don't
finish the job. And if you have any doubts
about whether your flat-fee language
is right, call OLPR's Advisory Opinion
Service at (651) 296-3952.