STATE June 7, 2017 OF MINNESOTA IN SUPREME COURT A16-1283 ____________________________________________________ Jane Doe, Appellant-Petitioner, v. Empire Entertainment, L.L.C., d/b/a The Pourhouse, Respondent. MINN. R. CIV. APP. P. 117 PETITION FOR REVIEW OF APPELLANT JANE DOE, BY THE SUPREME COURT OF THE STATE OF MINNESOTA ____________________________________________________ Peter J. Nickitas, MN Att’y #212313 Attorney for Appellant-Petitioner 431 S. 7th St., Suite 2446 Minneapolis, MN 55415 651.238.3445/FAX 1.888.389.7890 [email protected]

Jeffrey M. Markowitz, MN Att’y #391959 Colby B. Lund, MN Att’y #129495 Attorneys for Respondent 500 Young Quinlan Building 81 South Ninth Street Minneapolis, MN 55402-3214 612.339.3500/FAX 612.33.7655 [email protected] [email protected]

ATTORNEY FOR APPELLANT

ATTORNEYS FOR RESPONDENT

TABLE OF CONTENTS Item

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Petition for Review Title Page

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Table of Contents

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Summary

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Statement of Legal Issues

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Review Criteria

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Statement of the Case

3

Argument in Favor of Review

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Conclusion

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Certificate as to Word Count

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Addendum Cover Addendum Table of Contents

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Summary Pourhouse security officer Joshua Colvin viewed Jane Doe in the nude on a hidden camera without Doe’s knowledge or consent as Doe changed costumes and bathing suits in a freezing, dirty makeshift changing room during Doe’s Polynesian dance performance for a Pourhouse-hosted company party on 29 January 2016. Doc.#14¶¶31-32, #15¶¶45-46. The district court refused to address this critical, unchallenged fact, did NOT exercise its discretion, or go beyond Rule 10.01. The Court of Appeals declined to adopt a new rule “as beyond our proper role”, Opinion/9. The facts show Doe a civil litigant and sex crime victim under Minn. Stat. §§609.746 subd. 1(d) and 609.341 subd. 5.

Doe, seeking tort relief for an act so contrary to

Minnesota public policy that it a crime, is a victim similar to pseudonymous Does in cases the Court of Appeals cited or decided. Since 1952, unchanged Minn. R. Civ. P. 10.01 required pleadings to bear parties’ names, unchanged Rule 8.06 authorized rule interpretation to do “substantial justice,” and this Court condoned pseudonyms repeatedly, to protect vulnerable adults and numerous sex crime victims. The Court of Appeals invited further review and declined to act, deferring to the Minnesota Supreme Court’s supervisory authority to act, notwithstanding Judge Stauber’s calling this case a “matter of basic decency”.. Opinion/9. But Doe cannot wait, nor can she reasonably be expected to wait, for this Court to convene a pseudonymity task force to revise rules over two years, and clarify that which it already allows. Otherwise, Doe will lose her anonymity at Doe’s November trial, and suffer the reputational harm that Doe, a licensed attorney, came to court to prevent. The Court must grant review now, exercise its supervisory authority, reverse the lower courts, and grant pseudonymity.

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Statement of Legal Issues 1. Whether the Court of Appeals erred in failing to find the district court abused its discretion in refusing to grant pseudonymity to Jane Doe.

Court of Appeals

opinion (opinion)/1,9-10. The Court of Appeals held the district court did not abuse its discretion by inflexible application of Rule 10.01. 2. Whether the Court of Appeals erred in failing to find the Minnesota Rules of Civil Procedure already granted authority to lower courts to grant pseudonymity to the victims of an act comprising a sex crime. Opinion/9-10. The Court of Appeals held that it lacked authority to announce a new rule, or to interpret Minn. R. Civ. P. 10.01, which does not define “name”. Review Criteria Per Minn. R. Civ. App. P. 117 subd 2(a), Doe’s petition for review presents an important issue in application of Rules 10.01, 8.06, and 26.03 to current use of pseudonyms in Minnesota, upon which the Supreme Court must rule, in view of the Court of Appeals’ invitation. Ruling on Doe’s pseudonymity motion will clarify and harmonize statewide law allowing pseudonymity for survivors of acts comprising sex crimes and other vulnerable individuals worthy of pseudonymous privacy protection, per Minn. R. Civ. App. P. 117 subd. 2(d)(2). Per Minn. R. Civ. App. P. 117 subd. 2(d)(3), without the Court’s action now, Doe will suffer irreparable harm, and the pseudonymity issue will recur again. The district court disregarded the undisputed fact, pleaded and affirmed by Doe, Doc.#8¶¶45-46, Doc.#15¶¶45-46 (affidavits of Plaintiff), and Doc#14¶¶31-32, that Joshua Colvin, a Pourhouse employee, viewed Doe in the nude on a hidden camera without her knowledge or consent as she changed costumes and bathing suits in a freezing, dirty

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makeshift changing room during her family-rated, Polynesian dance performance for a company holiday party at the Pourhouse on 29 January 2016. In spite of Doe’s citing numerous cases granting pseudonymity to similar survivors of “Peeping Tom” sex crimes – with and without videos -- the district court cursorily cited nonprecedential Luckett, infra, which lacked analysis of factors to balance sex crime survivors’ privacy rights favoring pseudonymity, against Minn. and Fed. R. Civ. P. 10 naming requirements, and dismissed her nudity as mere “changing clothes”. Acknowledging its condonation of pseudonyms in past cases for other survivors of acts comprising sex crimes, the Court of Appeals nevertheless affirmed. In so doing, the lower courts departed from the accepted, usual course of justice as to require exercise of the Supreme Court's supervisory powers, justifying Minn. R. Civ. App. P. 117 subd. 2(c) review. Statement of the Case Pourhouse security employee Joshua Colvin, tasked with entertainers’ dressing room, put Doe in a room with a hidden camera, and, without her knowledge or consent, viewed her in the nude as she changed costumes and bathing suits in a freezing, dirty makeshift changing room during her dance performance for a company holiday party at the Pourhouse on 29 January 2016. Doe, a licensed attorney, lifelong family show musician and entertainer, has worked with her father since childhood. Doc.15¶¶1-9, supra (attorney status found by name input into mncourts.gov). Doe

sued

Empire

Entertainment,

L.L.C.,

d/b/a

The

Pourhouse,

and

metroConnections, Inc., the agency that hired Doe and her fellow performer to entertain the company party, for invasion of privacy by intrusion into seclusion, negligence, and negligent infliction of emotional distress.

Submitting an affidavit of her identity and

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appearing before the district court on ex parte motion for temporary relief, Doe proceeded as Jane Doe, and shall do so until appeals exhaustion. Defendants moved to dismiss per Rule 12.02(e); metroConnections separately argued insufficiency of process for Doe’s pseudonym use. The district court denied both motions to dismiss, and yet denied Doe’s pseudonymity motion. Doe appealed the denial as a Minn. R. Civ. App. P. 103.03(j) collateral order. Doe settled with metroConnections last November. On 8 May 2017, the Court of Appeals affirmed. This petition follows. Argument in Favor of Review The Court Should Grant Review, and Pseudonymity Because, Like Other “Does”, Doe Survived Acts Comprising Criminal Inteference with Privacy. Survivors of sex crimes including Doe, violated in an area of “utmost intimacy”, Luckett

v. Beaudet, 21 F.Supp.2d 1029, 1031 (D. Minn. 1998), enjoy pseudonymity in Minnesota.

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Minn. Stat. §609.746 subd. 1(d) punishes as gross misdemeanor interference with privacy, the installation or use of a recording device “in a place where a person would expect privacy and exposes or is likely to expose his or her intimate parts, with the intent to intrude upon that person's privacy.” State v. Sopko, 770 N.W.2d 743, 745-46 (Minn. Ct. App. 2009)(Worke, J.): The occasion and necessity for the law is not merely to prevent an individual from installing a recording device, but to protect an individual's privacy in a place where there is an expectation of privacy. The mischief to be remedied is Opinion/6: Doe 76C v. Archdiocese of St. Paul & Minneapolis, 801 N.W.2d 203 (Minn. Ct. App. 2011) (filed as adult for abuse as a child), rev’d sub nom. Doe 76C v. Archdiocese of St. Paul, 817 N.W.2d 150 (Minn. 2012); Doe 43C v. Diocese of New Ulm, 787 N.W.2d 680 (Minn. Ct. App. 2010) (involving allegations of sexual abuse); Doe v. F.P., 667 N.W.2d 493 (Minn. Ct. App. 2003) (involving sexual conduct between plaintiff and priest), review denied (Minn. Oct. 21, 2003); Does 1-22 v. Roman Catholic Bishop of Fall River, 509 N.W.2d 598 (Minn. Ct. App. 1993) (involving allegations of sexual abuse). 1

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not merely the installation of a recording device, but to prevent invasion or interference into one's privacy. The object to be obtained is not merely to prevent the installation of a recording device, but to prevent one's intrusion into another's privacy. Id. at 546 (conviction aff’d; recording not necessary to complete crime). See City of

Brooklyn Center v. Law Enforcement Labor Services, Inc., 635 N.W.2d 236, 239-40, 242 (Minn. Ct. App. 2001), review denied (Minn. Dec. 11, 2001): It is indisputable that Minnesota's public policy proscribes invasion of privacy, stalking, harassment, and sexual harassment. Minn. Stat. §609.746, subd. 1 (2000), classifies as a misdemeanor acts of gazing or peeping into someone's home with the intent to interfere with an occupant's privacy. (reinstatement vacated to allow Minnesota public policy discharge for officer’s sexual misconduct prohibiting invasion of privacy in areas of utmost intimacy in which one reasonably expects privacy, by violation of Minn. Stat. §609.746 subd. 1; police officer tried and acquitted for stalking; victim of §609.746 subd. 1 violation and other sexual misconduct victims at 239-40, all adults, identified by pseudonymous initials only). Trials or no trials, Officer Bartow’s six sex crime victims enjoyed pseudonymity.

Brooklyn Center, 635 N.W.2d at 240.

The Court of Appeals condoned the

pseudonymous status of 25 sex crime survivors. See n. 2, supra (4 cases; 25 victims). Minnesota’s public policy and courts protect sex crime survivors with pseudonyms. Having been seen nude on a hidden camera without her knowledge or consent by Pourhouse’s Colvin in the midst of costume changes, Doe survived the sex crime of gross misdemeanor interference with privacy under Minn. Stat. §609.746 subd. 1(d). Public policy protecting intimate privacy where one reasonably expects privacy protects her.

Sopko, 770 N.W.2d at 745-46, Brooklyn Center, 635 N.W.2d at 242. The Court should grant review, reverse, and grant Doe’s pseudonymity motion.

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The Power To Grant Pseudonymity to Doe Has Vested in the Supreme Court Since the Court’s Adoption of the Minnesota Rules of Civil Procedure in 1952. Presumably, neither the Legislature passes absurd laws, nor does the Minnesota Supreme Court rule absurdly. How, then, has the Court allowed pseudonymity since 1952, when Minn. R. Civ. P. 10.01, unchanged since 1952, requires parties’ names on pleadings? If the Court of Appeals is correct, and Rule 26.03 , unlike the federal Rule 2

26(c), is not the authority, where lies this Court’s pseudonymity authority? Minn. R. Civ. P. 8.06, unchanged since 1952, stating, “All pleadings shall be so construed as to do substantial justice,” must provide authority. Minn. R. Civ. P. 10.01 requires parties’ names, but does not define “names”. Does this mean married names, unmarried names, or assumed names approved by the Secretary of State? Are stage names like Jesse Ventura or Bob Dylan prohibited? No. Are cases dismissed for misspellings or slight errors in corporate names? No. May cases begin with Doe defendants until Plaintiffs find out the right? Yes. The Rules of Civil Procedure have built-in leniency for pseudonymity, “to do substantial justice,” Rule 8.06, to get the case right on the merits. Rule 10.01 does not bar pseudonymity. Doe came to court to remedy the sexual privacy harm that Pourhouse and Colvin inflicted. If Doe is denied pseudonymity, Doe will suffer irreparable harm to name and professional reputation that Doe came to court to remedy. Sopko, 770 N.W.2d at 544 n. 1 (noting the revictimization of §609.746 victims by court itself, albeit by video). Doe disagrees. Although Rule 26 lies in the rules’ “discovery” section, the plain words of Rule 26.03 do not limit it to discovery processes alone – but do empower courts to issue “any order” to prevent vexation and embarrassment of parties. 2

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Despite Doe’s citation to pseudonym cases of surreptitiously viewed naked women, and unchallenged evidence that Colvin viewed Doe in the nude while Doe changed bathing suits (not mere “changing clothes”), the district court cited Luckett cursorily with no factual or legal balancing between Rule 10.01 and privacy, stopping dead at Rule 10.01. Doc.64/11. The Court of Appeals erred in holding the district court did not abuse discretion, yet it invited Supreme Court review to set pseudonymity rules. Opinion/9. Nine factors identified in Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189-91 (2d Cir. 2008), commended in Patrick Noaker, Using Pseudonyms in Sexual Abuse Cases,

Bench & Bar, February 7, 2012, http://mnbenchbar.com/2012/02/using-pseudonyms/ --inclusive of the option of pseudonymity within open courtrooms, set forth a rule and guide that considers 10.01, affirms current Minnesota pseudonymity for sex crime survivors and vulnerable adults, and incorporates federal criteria derived from Rule 26(c). The Court should review and adopt these Noaker/Sealed Plaintiff factors as guidelines. Conclusion The Court must grant review, reverse, and grant pseudonymity, with directions henceforth to balance Rule 10.01 against Minnesota public policy prohibiting invasion of privacy in cases of sex crime survivors and other vulnerable persons. 7 June 2017

Respectfully: PETER J. NICKITAS LAW OFFICE, L.L.C. /s/Peter J. Nickitas (electronically signed) _____________________________________ Peter J. Nickitas, MN Att’y #212313 Attorney for Petitioner 431 S. 7 St., Suite 2446 Minneapolis, MN 55415 651.238.3445/1.888.389.7890(f) [email protected] th

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Certificate as to Word Count I, Peter J. Nickitas, attorney for petitioner, hereby certify that this petition for review, per Minn. R. Civ. App. P. 117 subd. 3, comprises 1,996 words in 12 point Baskerville Old typeface. 7 June 2017

Respectfully: /s/Peter J. Nickitas (electronically signed) _____________________________________ Peter J. Nickitas, MN Att’y #212313 Attorney for Petitioner

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