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Lay
Leaves Lasting Legacy The
death on April 29th of 8th Circuit Judge Donald Lay marked the conclusion
of a noteworthy 40-year judicial career.
Judge Lay was the second Minnesota-based jurist to step down
recently after a lengthy career with the 8th Circuit Court of Appeals. After nearly four decades, Judge Gerald Heaney
of Duluth retired last September.
See “40 Years of
8th Circuit Jurisprudence,” 64 Bench
& Bar of Minnesota 3 (March 2007), at 18. A
few months later, Judge Heaney was followed by Judge Lay, his colleague
of four decades, who took permanent retirement status at age 80 at
the beginning of 2007, four months before he passed away at the end
of April. Judge Lay served on the 8th Circuit from July
1966, including a 12-year stint as chief judge from 1980-1992, and
then continued in senior status through 2006.
Although
he practiced law primarily in Nebraska before appointment to the bench,
Judge Lay had Minnesota connections, too.
He moved to Minnesota from his home in Omaha following the
opening of the 8th Circuit divisional facility in St. Paul in 1982,
and he continued to reside in the Twin Cities area until his retirement.
He also served on the faculty of both William Mitchell College
of Law and the University of Minnesota Law
School during his tenure on the tribunal. Criminal
Cases Like
Judge Heaney, Judge Lay authored hundreds of opinions, many involving
monumental matters. He was
dedicated to upholding the constitutional rights of criminal defendants,
especially in matters involving due process rights and capital punishment. His
predilection against hasty conviction and execution of defendants
in capital murder cases, tempered with fidelity to the law, was reflected
in Mercer v. Armontrout,
864 F.2d 1429 (8th Cir. 1988), which was before the court for a second
time after it initially upheld a stay of execution.
Responding to criticism of the stay by the Missouri state court,
Judge Lay had opined that “the legal process in a civilized society
must not rush to judgment and therefore rush to execute a person found
guilty of taking the life of another.”
But, writing for a unanimous panel, Judge Lay ultimately agreed
with the state, after “reflective study and analysis,” that the stay
petition failed to raise any issues which would undermine the legality
of Mercer’s conviction. However, he admonished the lower court for rebuking
the appellate court’s diligence, asserting
that “[t]o suggest that a life or death decision can be made simply
by reading a petition is to advocate dereliction of judicial duty.” In
Morrissey v. Brewer, 443 F.2d 942 (8th
Cir. 1971), the en banc
8th Circuit, over Judge Lay’s dissent, held that a state parole board
is not required to provide a parolee with a due process hearing before
revoking the parole. But the U.S. Supreme Court agreed with Judge
Lay, reversing by an 8-1 vote and requiring that parolees be furnished
a revocation hearing, known as a Morrissey
hearing, which must comply with the minimum requirements of due
process, including the ability to present favorable evidence to cross-examine
adverse witnesses before a “neutral and detached hearing body.”
Morrissey v. Brewer, 408
U.S., 471 (1972). Civil
Concerns Judge
Lay’s concerns for the rights of individuals in civil litigation were
reflected in a number of cases, including some very high profile ones.
The most prominent may have been Jenson
v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997), the sexual
harassment class action case brought by women mining employees on
The Iron Range which formed the basis for the 2005 movie “North Country”
starring Charlize Theron, Frances McDormand and Woody
Harrelson. Referring
to the “long, tortured, and unfortunate history” of the decade-long
litigation, Judge Lay’s majority decision remanded the case for a
new ruling on damages for the harassed employees.
In so doing, he blamed the defense counsel for delaying the
case by “exercising senseless and irrelevant discovery, and by making
endless objections at trial.” But he also blamed the “judicial system [which]
allowed the lawyers to do what they did” and urged “better treatment”
of civil litigants. Following
remand, the case was settled at Judge Lay’s urging, with claimants
receiving a total of $3.5 million. In
Mille Lacs Band of
Chippewa Indians v. Minnesota, 124 F.3d 904 (8th Cir. 1997), Judge
Lay affirmed five prior rulings of U.S. District Court judges Diana
Murphy and Michael Davis in Minnesota upholding the hunting and fishing
rights of an Indian band derived from an 1837 treaty with the United
States. In so doing Judge Lay rejected a number of claims
to invalidate or restrict the treaty, including the contention that
it was abrogated by the legislation in 1858 by which Minnesota became
a state. After detailed and insightful analysis of the
issues, he paid homage to all of the lawyers in the complex litigation
for “their work in presenting the important and complex issues” in
a decision that was affirmed by the U.S. Supreme Court. 526
U.S. 172 (1999). Judge
Lay upheld punitive damages for a defamed employee in Burger v. McGilley Memorial Chapels, Inc.,
856 F.2d 1046 (8th Cir. 1988). At
trial, the jury awarded the plaintiff, a former employee of a funeral
parlor, $1 in nominal damages and $85,000 in punitive damages for
slanderous comments the facility had made regarding the employee after
he had been fired. The trial court entered judgment notwithstanding
the verdict, denying recovery of the punitive damages award. On appeal, Judge Lay, writing for the court,
reversed the lower court and reinstated the punitive damages award. He reasoned that when the employer’s personnel
made the slanderous statement they “either knew the statement was
false or ... they acted out of reckless disregard as to its truthfulness,”
and that they “acted out of malice in trying to prevent the ex-employee
from getting another job with a competitor. In
later years, as the ideological base of the court shifted, Judge Lay
was often cast as the dissenter, particularly in cases upholding discharges
of employees. In Chambers
v. Omaha Girls Club, Inc., 840 F.2d 583 (8th Cir. 1988), a gender
discrimination case, he dissented from the majority’s ruling upholding
termination of a teacher, finding that her discharge “because of her
pregnancy is the most blatant form of sex discrimination that can
exist.” Similarly, in a retaliatory discharge case,
Melvin v. Car-Freshener Corp., 453 F.3d
1000 (8th Cir. 2006), where the court granted summary judgment to
the employer, Judge Lay dissented, lamenting that “[t]oo
many courts in this circuit ... are utilizing summary judgment in
cases where issues of fact remain” and further bemoaned that summary
judgment “should be the exception, not the rule” in workplace discrimination
cases. Judge
Lay leaves a long legacy of law, like his Minnesota-bred colleague
Judge Heaney. Their departures
leave a void — and some would say vacuum — on the 8th Circuit tribunal,
which still has two remaining Minnesota jurists, Judge Diana Murphy
and Chief Judge James Loken. Judge Lay, like
Judge Heaney, will be missed by many Minnesotans and others concerned
about equality and justice for all. MARSHALL H. TANICK is an attorney with the Twin Cities law firm of Mansfield,
Tanick & Cohen, PA, in Minneapolis and
St. Paul. He has written several
biographies of Minnesota federal and state court judges. Brock Specht, a law
clerk with the firm, assisted him in this article. |
