J. Paul Robinson, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1620

J. Paul Robinson,
Relator,

vs.

University of Minnesota,
Respondent.

Filed September 17, 2018
Affirmed
Reyes, Judge

University of Minnesota Office of
Executive Vice President and Provost

Ryan L. Kaess, Kaess Law, L.L.C., St. Paul, Minnesota; and

James C. W. Bock, Minneapolis, Minnesota (for relator)

Douglas R. Peterson, General Counsel, Timothy J. Pramas, Senior Associate General
Counsel, University of Minnesota, Minneapolis, Minnesota (for respondent)

Considered and decided by Reyes , Presiding Judge; Worke, Judge ; and Hooten,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this certiorari appeal, relator argues that respondent Univ ersity of Minnesota’s
hearing panel appointed pursuant to the University Conflict Res olution Procedure to
conduct an evidentiary hearing (1) violated his constitutional right to a jury trial to grieve

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his termination by the University; (2) was biased; (3) applied an incorrect evidentiary
standard; (4) relied solely on hearsay evidence; and (5) violated his Fifth Amendment right
against self-incrimination. Relator also argues that the Unive rsity was constitutionally
estopped from disciplining relator and that his conduct was consistent with the Minnesota
Government Data Practices Act and the University’s drug policy. We affirm.
FACTS
Relator J. Paul Robinson had been a head wrestling coach for the University of
Minnesota (the university) for over 30 years. In early 2016, relator heard rumors about his
student-athletes using and selling drugs; relator asked the wrestling team trainer to conduct
drug testing on the entire team. After the drug testing was co nducted, relator held a team
meeting, told the student-athletes that he knew everything, and asked them to individually
come to his office if they needed to tell him about any drugs. Relator promised to keep the
student-athletes’ confessions confidential and to give them amnesty if they decided to come
forward.
After the drug-testing results came out, 12 student-athletes i ndividually came to talk
to relator about their use of the drug Xanax, which drug testin g could not screen. After
these meetings, relator gave a list of these student-athletes to the trainer, but did not disclose
what they had told him or the extent of their use and sales of drugs.
A student who did not come to talk to relator filed a complaint with the university.
The student alleged in part that relator promised confidentiali ty and amnesty to student-
athletes who came forward, all of which was outside of his authority, and then he took the
Xanax pills that the student-ath letes turned over to him and di s p o s e d o f t h e m . T h e

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university suspended relator and a ppointed an investigator. Th e investigator met with
relator in July 2016, and provided an “anti- Garrity” warning, which indicated that relator
would not be disciplined or term inated for refusing to provide information. During the
meeting, relator did not provide complete answers to the investigator’s questions.
In August 2016, the investigator met with relator again. Befor e this meeting, the
investigator gave relator a Garrity warning, requiring relator to answer the investigator’s
questions and promising that relator’s answers to the questions would not be used against
him in criminal proceedings. During this meeting, relator again did not provide complete
answers to the investigator’s questions.
In September 2016, the university formally terminated relator f or cause based on
his misconduct and his failure to cooperate with the university ’s investigation. Relator
filed a petition pursuant to the University Conflict Resolution Procedure (the procedure),
alleging that the university fai led to establish “just cause” f or termination of his
employment and therefore breached the employment contract and w rongfully discharged
him.
Pursuant to the procedure, thr ee panel members were appointed t o hold an
evidentiary hearing, which occurred in June 2017. After the hearing, the panel found that
relator violated the University of Minnesota Student Code of Co nduct, the University of
Minnesota Department of Intercollegiate Athletics Student-Athle te Alcohol and Drug
Education and Drug Testing Program, and the university’s Drug F ree University policy
(the policy). The panel concl uded that relator’s petition was unsubstantiated and that the
university’s decision to terminate him was valid. This certiorari appeal follows.

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D E C I S I O N
Our review in certiorari proceedings is limited. Chronopoulos v. Univ. of Minn. ,
520 N.W.2d 437, 441 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). This court
may only question “whether jurisdiction was proper, whether the proceedings were regular
and fair, and whether the decisions below were arbitrary, oppre ssive, unreasonable,
fraudulent, made under an incorrect theory of law, or without a ny evidence to support
[them].” Deli v. Univ. of Minn. , 511 N.W.2d 46, 49 (Minn. App. 1994), review denied
(Minn. Mar. 23, 1994).
I. Relator does not have a right to a jury trial.

Relator first argues that he has a right to a jury trial to grieve his termination by the
university. We are not persuaded.
Whether relator has a right to a jury trial is a legal question requiring interpretation
and application of the Minnesota Constitution, which we review de novo. United Prairie
Bank-Mountain Lake v. Haug en Nutrition & Equip., LLC , 813 N.W.2d 49, 53 (Minn.
2012).
“The right of trial by jury shall remain inviolate, and shall extend to all cases at law
without regard to the amount in controversy.” Minn. Const. art. I, § 4. A party is not
constitutionally entitled to a trial by jury if a party raising “that same type of action” was
not entitled to “a jury trial at the time the Minnesota Constitution was adopted.” Olson v.
Synergistic Techs. Bus. Sys., Inc., 628 N.W.2d 142, 149 (Minn. 2001). However, the right

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to a jury trial is not limited to only those causes of action t hat existed in 1857. 1 United
Prairie Bank-Mountain Lake, 813 N.W.2d at 53. To determine whether the right to a jury
trial exists, we analyze “current causes of action and pleading practices in the context of
the theories of relief” that existed in 1857. Id. at 53-54. Thus, we analyze whether the type
of action is an action at law, for which the constitution guarantees a right to a jury trial, or
an action in equity, for which there is no constitutional guarantee to a jury trial. Olson, 628
N.W.2d at 149. We also analyze the “nature of the relief” bein g sought. United Prairie
Bank-Mountain Lake, 813 N.W.2d at 54. In order to have a right to a jury trial, a plaintiff
must seek legal remedies, not equitable remedies. Id.
Relator is not entitled to a jury trial because he seeks equit able remedies. Relator
requested as remedies either reinstatement as the head wrestling coach or front pay in full
of the remaining four years on his employment contract. Under Minnesota caselaw,
reinstatement is an equitable remedy. See Sanchez v. Dahlke Trailer Sales, Inc. , 897
N.W.2d 267, 273 n.4 (Minn. 2017) (“Indeed, the equitable remedy for improper discharge
in other contexts is reinstatement, which is a revival of the employment relationship.”)
Although relator is seeking mone tary recovery as an alternative r e m e d y t o
reinstatement, “the mere fact that monetary relief is sought does not automatically create a
right to a jury trial.” Olson, 628 N.W.2d at 154. When the plaintiff seeks both equitable
and legal relief as part of a single cause of action, the actio n is not strictly legal in nature,
and neither party is entitled to a jury trial. Indianhead Truck Line, Inc. v. Hvidsten Transp.

1 Minnesota adopted its constitution in 1857. Abraham v. County of Hennepin, 639 N.W.2d
342, 348 (Minn. 2002).

6
Inc., 268 Minn. 176, 194, 128 N.W.2d 334, 347 (1964). Moreover, front pay is generally
considered an equitable remedy rather than legal damages. In Hukkanen v. Int’l Union of
Operating Eng’rs., the Eighth Circuit noted that “[t]he calculation of front pay . . . is a
matter of equitable relief within the district court’s sound discretion.” 3 F.3d 281, 286 (8th
Cir. 1993). In the context of the federal civil-rights laws, the United States Supreme Court
has held that front pay is an equitable remedy like reinstateme nt. Pollard v. E.I. du Pont
de Nemours & Co., 532 U.S. 843, 853-54, 121 S. Ct. 1946, 1952 (2001). Therefore, relator
is not entitled to a jury trial in this case.2
II. The panel memb ers were not biased.

Relator argues that he was deprived of procedural due process b e c a us e a bi a s e d
panel of faculty members, all employed and paid by the universi ty, held the hearing. We
disagree.
We construe relator’s argument as challenging “whether the proc eedings were
regular and fair.” See Deli, 511 N.W.2d at 49. We presume that administrative proceedings
are conducted honestly and regularly. Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456,
1464 (1975). In order to overcome this presumption of regulari ty, the party claiming
otherwise has the burden of proving that a decision was made im properly by showing a

2 Relator also argues that the p rocedure is unconstitutional because it does not afford him
the right to a jury trial. The university argues that the only method available for judicial
review of a university’s decision is by writ of certiorari to t his court, and therefore the
district court does not have jurisdiction to conduct a jury tri al, and the procedure was
constitutional. We need not add ress this issue because appella nt is not entitled to a jury
trial even if the district court has jurisdiction. See Rickert v. State, 795 N.W.2d 236, 240
(Minn. 2011) (“Generally, we will not address a constitutional issue if there is another basis
upon which the case can be decided.”)

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risk of actual bias. Kennedy v. L.D., 430 N.W.2d 833, 837 (Minn. 1988). “Absent a factual
basis establishing the [decisionmaker]’s partiality as to the s pecific issues . . ., this court
cannot conclude that the [agency] breached its clear duty to se lect a fair and impartial
decision-maker . . . .” Chanhassen Chiropractic Ctr., P.A. v. City of Chanhassen , 663
N.W.2d 559, 563 (Minn. App. 2003).
Relator has not shown a risk of actual bias. Relator bases hi s argument on the fact
t h a t t h e p a n e l m e m b e r s a r e a l l e m p l o y e e s o f t h e u n i v e r s i t y w i t hout showing a specific
factual basis establishing the panel members’ partiality. Noth ing in the record indicates
that the panel members have a pecuniary interest in the outcome or have been the target of
personal abuse or criticism from relator. See Withrow , 421 U.S. at 47, 95 S. Ct. at 1464
(identifying situations where probability of actual bias on the decisionmaker is too high to
be constitutionally tolerable). Moreover, pursuant to the procedure, the panel member who
led the hearing was selected from relator’s employee group, and relator even had the option
to reject that panel member once. Between the two remaining pa nel members, relator
appointed one, and the university appointed the other. Relator fails to show actual bias and
overcome the presumption of regularity of the proceeding.
III. The panel applied the co rrect evidentiary standard.
Relator argues that the panel should have applied the clear-and-convincing-evidence
standard instead of the preponde rance-of-evidence standard in w eighing evidence at the
hearing and concluding that relator’s termination by the university was valid. Appellant’s
argument is misguided.

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Relator relies on Deli, 511 N.W.2d 46, in which this court applied the clear-and-
convincing-evidence standard. However, the Deli court applied the clear-and-convincing-
evidence standard because the app licable procedure in that case mandated that standard.
See Deli, 511 N.W.2d at 52 (“ Under the Rules,3 the university had the burden of proving
just cause by clear and convincing evidence.” (emphasis added)).
The applicable rule here under the procedure explicitly sets o ut that “the respondent
has the burden of demonstrating, by a preponderance of information presented, that the
discipline was warranted . . . .” (Emphasis added.) Relator p rovides no other support for
his argument that the clear-and-convincing-evidence standard applies. Therefore, the panel
correctly applied the preponderance-of-evidence standard at the hearing.
IV. Substantial evidence supp orts the panel’s findings.
Relator argues that insubstantial evidence supports the panel’s findings because they
are primarily based on hearsay evidence. We are not persuaded.
A reviewing court may reverse th e university’s decision if it f inds a lack of
substantial evidence to support the ruling. Chronopoulos, 520 N.W.2d at 441. “Substantial
evidence” means “1) such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion; 2) more than a scintilla of evidence; 3) more than some evidence;
4) more than any evidence; and 5) evidence considered in its en tirety.” Reserve Mining
Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977) (quotations omitted).

3 This rule refers to the University of Minnesota Academic Professional and Administrative
Personnel Rules of Procedure for Grievance Appeals.

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Hearsay “is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R.
Evid. 801(c). Although hearsay is admissible in administrative proceedings, Carter v.
Olmsted Cty. Hous. & Redev. Auth. , 574 N.W.2d 725, 731 (Minn. App. 1998), “an
administrative agency cannot, at least over objection, rest its findings of fact solely upon
hearsay evidence which is inadmissible in a judicial proceeding,” In re Expulsion of E.J.W.,
632 N.W.2d 775, 782 (Minn. App. 2001) (emphasis added) (quotation omitted).
Here, the panel did not rest its findings solely upon hearsay evidence. The panel
found in part that relator violated relevant policies by refusi ng to disclose information to
the investigators, being uncooperative with the investigation, and promising student-
athletes confidentiality and amnesty for self-reporting. The p anel based these findings in
part on the investigator’s testi mony that relator did not answe r his questions during the
investigation and was not coope rative, and partly on relator’s own testimony that he did
not disclose information of the students possessing drugs and promised them amnesty. The
testimony of the investigator and relator is not hearsay, and i s substantial evidence
supporting the findings. Therefore, the university did not imp roperly base its findings
solely on hearsay evidence.
V . R e l a t o r ’ s F i f t h A m e n d m e n t p r i v i l e g e a g a i n s t s e l f - i n c r i m i n a t io n w a s n o t
violated.

Relator asserts that the univers ity violated his Fifth Amendmen t privilege against
self-incrimination by not giving him a proper Garrity warning, which we construe as

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challenging the regularity and fairness of the proceeding. See Deli, 511 N.W.2d at 49.
Appellant’s argument is without merit.
Whether a witness’s Fifth Amendm ent privilege against self-incr imination is
violated is a question of law, which we review de novo. In re Contempt of Ecklund , 636
N.W.2d 585, 587 (Minn. App. 2001).
Under the Fifth Amendment to t he U.S. Constitution, “[n]o perso n . . . shall be
compelled in any criminal case to be a witness against himself . . . .” In Garrity v. New
Jersey, 385 U.S. 493, 500, 87 S. Ct. 616, 620 (1967), the United States Supreme Court held
that the “use in subsequent criminal proceedings of statements obtained under threat of
removal” from employment violates the Fifth Amendment. As a result, in Minnesota, the
employer must give an employee a Garrity warning acknowledging that the statements
compelled by the employer will not be used in subsequent criminal proceedings but that he
is required to cooperate and truthfully answer all questions di rected to him. City of
Minneapolis v. Johnson, 450 N.W.2d 156, 158 (Minn. App. 1990).
Here, although the investigator did not give a proper Garrity warning before or
during the July 2016 meeting,4 he remedied it by giving a proper written Garrity warning
before the August 2016 meeting. Relator read and signed it, but failed to answer questions
and cooperate with the investigation as required under the warn ing. This supports the

4 The university called the warnin g that they gave relator in Ju ly 2016 an “anti- Garrity”
warning. However, no caselaw indicates that such a warning exi sts or is permissible.
Therefore, we deem it to be an improper Garrity warning.

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panel’s findings. Therefore, the university did not violate re lator’s Fifth Amendment
privilege against self-incrimination, and the proceeding was regular and fair.
VI. The termination of relator’s employment is not barred by th e principle of
entrapment by estoppel.

Relator argues that, because the university misled relator by providing an improper
Garrity warning, the termination of relator’s employment is barred by entrapment by
estoppel. Appellant’s argument is unavailing.
Entrapment by estoppel is a “l ong-established rule that a gover nment may not
officially inform an individual that certain conduct is permitt e d a n d t h e n p r o s e c u t e t h e
individual for engaging in that same conduct.” State v. McKown , 475 N.W.2d 63, 68
(Minn. 1991). A party asserting entrapment by estoppel must establish four elements:
First, there must be “wrongful conduct” on the part of
an authorized government agent. Second, the party seeking
equitable relief must reasonably rely on the wrongful conduct.
Third, the party must incur a unique expenditure in reliance on
the wrongful conduct. Finally, the balance of the equities must
weigh in favor of estoppel.

Nelson v. Comm’r of Revenue , 822 N.W.2d 654, 660 (Minn. 2012) (quotation
omitted).
Here, as noted, although the warning that relator received in July was improper, the
university remedied it by giving a proper Garrity warning before the August meeting.
Therefore, relator failed to establish the first element, and t he principle of entrapment by
estoppel does not bar the termination of relator’s employment.

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VII. Relator’s conduct is not protected by the Minnesota Govern ment Data
Practices Act.

Relator argues that the Minnesota Government Data Practices Act (MGDPA),
Minn. Stat. §§ 13.01-.90 (2016), supports his conduct, as the s tudent-athletes’ suspected
drug possession, use, or sales is “health data,” disclosure of which is prohibited under
MGDPA. This argument is without merit.
This court reviews a question of statutory interpretation de novo. Star Tribune Co.
v. Univ. of Minn. Bd. of Regents , 683 N.W.2d 274, 279 (Minn. 2004). When a statute
provides its own definition to a word, this court considers that statutory definition instead
of its plain meaning. Cocchiarella v. Driggs, 884 N.W.2d 621, 631 (Minn. 2016).
The MGDPA defines “health data” as “data on individuals create d, collected,
received, or maintained by the Department of Health, political subdivisions, or statewide
systems relating to the identification, description, prevention, and control of disease or as
part of an epidemiologic investigation the commissioner designa tes as necessary to
analyze, describe, or protect the public health.” Minn. Stat. § 13.3805, subd. 1(a)(2)
(emphasis added). And it classifies “health data” as private d ata on an individual and
prohibits their disclosure. Minn. Stat. § 13.3805, subd. 1(b) (emphasis added).
The student-athletes’ suspected drug possession, use, or sale is not “health data”
under the MGDPA, section 13.3805, subdivision 1(a)(2), because relator is not the
Minnesota Department of Health, a political subdivision, or a s tatewide system. The
MGDPA defines a political subdivision as “any county, statutory or home rule charter city,
school district, special district, any town . . . , and any boa rd, commission, district or

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authority created pursuant to l aw, local ordinance or charter p rovision.” Minn. Stat.
§ 13.02, subd. 11. A statewide system is defined as “any record-keeping system in which
government data is collected, stored, disseminated and used by means of a system common
to one or more state agencies or more than one of its political subdivisions or any
combination of state agencies and political subdivision.” Minn . Stat. § 3.02, subd. 18.
Therefore, data on student-athlete s’ possession, use, and sales of drugs collected and
maintained by relator is not health data, and the MGDPA is not applicable here.
VIII. Relator’s refusal to disclose information is inconsistent with the university’s
drug-free policy.

Relator argues that his refusal to disclose information on the student-athletes’
possession, use, and sale of drugs was not a violation of the policy because he followed the
“Safe Harbor provision” of the policy. We disagree.
The Safe Harbor provision of the policy provides that any stude nt having a
substance-abuse problem can ente r the Safe Harbor program “pend ing approval of the
Review Board.” Here, it is undisputed that the Review Board ne ver approved the
admittance of the 12 students into the Safe Harbor program. Mo reover, the Safe Harbor
provision provides for the rights of the students, not the obligations of staff such as relator.
Affirmed.