Bernard Comes down to Breath vs. Blood

Man driving vehicleLast week the 8-member U.S. Supreme Court released its opinion in the much-watched Birchfield v. North Dakota, which the Court heard in a consolidation with two other cases, including Minnesota’s own Bernard v. Minnesota. Remember that Bernard started as a 2012 police encounter on the river bank in Dakota County wherein the intoxicated-appearing defendant refused the breathalyzer test.   It is significant because of Minnesota’s implied consent statute criminalizes the refusal to take a DWI test (instead of mere grounds for license revocation).  (Minnesota adopted this more punitive law in 1989.  See 1989 Minnesota Laws, Ch. 290, Art 10.) Minnesota’s statute also states that one who drives in the state consents to chemical testing of breath, blood, or urine.

In its opinion, the Court (Justice Alito and four of his colleagues) held that the breathalyzer was not an intrusive test, and therefore its administration can be part of a legitimate search incident to a lawful arrest.  The Court drew the line at blood tests, holding that they were too invasive to be part of a lawful search incident to a lawful arrest, and thus required a warrant. So, Minnesota’s implied consent statute still stands, at least as far a breath testing as concerned. Three of the justices disagreed that there was a difference in blood and breath tests for Fourth Amendment purposes.  Justice Sotomayor (joined by Justice Ginsburg) dissented, pointing out that most breath tests in Minnesota are performed about 45 minutes after a person is detained, with plenty of time to get a warrant. Arguing the reverse, Justice Thomas’ dissent objected to “splitting hairs” between breath tests and blood tests, proposing that neither tests require warrants.  The Court did not analyze the constitutionality of testing urine in this context, which one might guess falls somewhere between breath and blood in the Court’s Birchfield analysis.

So what does this ruling mean for Minnesota and other states?  Expect to continue seeing this gadget in the criminal justice arena, despite challenges to its accuracy and effectiveness.

(Legal history buffs who enjoy this blog should read the Birchfield opinion for the information treats provided by the Court.  For instance, the opinion in State v. Noble (1926), 119 Ore. 674, 250 P. 833 is from an early case analyzing early drunk driving laws on Oregon.)

 

Elderly womanMost of us missed the fact that World Elder Abuse Awareness Day was last week.  And when it comes to elder abuse, financial abuse is the most common and fastest-growing form of it.  Whether it’s because they’ve accumulated more assets than other age groups, or perhaps it’s simply because our population is getting older, financial crimes against the elderly continue to grow at an alarming rate.   Victims might hesitate to report crimes due to embarrassment of not remembering something, or the desire to not be seen as a vulnerable adult. But one big reason for not reporting relates to the perpetrators.  The biggest category of financial abusers is not unscrupulous financial advisors, nor is it phony mail offer schemes or shady home contractors.  For many such seniors, the financial abuse is coming from a relative or loved one.  (Similarly, read this list of the top ten scams that target seniors, with special attention to the closely-related ”grandparent scam.”)

There are some state-specific resources to help, including the Minnesota Elder Justice Center, and a statewide elder abuse reporting hotline – (844) 880-1574.  There are also the Seniors Legal Rights handbook and the Seniors Guide to Fighting Fraud from the Minnesota Attorney General’s office.   Federal resources include Money Smart for Older Adults from the Consumer Financial Protection Bureau, where you can also submit a complaint.  There are tools to help prevent seniors from falling victim to fraud such as trusts and powers of attorney, but the simplest might be to keep seniors connected in family and social loops.  Seniors who aren’t isolated are less vulnerable to scams, and their friends and relatives can tell if something in granny’s life that seems off, such as a sudden and new “best friend” or “handyman.”  If you suspect you or another senior has been financially scammed, Minnesota’s Vulnerable Adult Act spells out how to report incidents of elder abuse, including financial exploitation.  The Minnesota Attorney General also urges you to submit a fraud report.

 

John William Graff (1903-1977)

Judge John William Graff

Judge John W. Graff

John William Graff was born in 1903 at New Ulm, Minnesota. He received his B.A. degree from the College of St. Thomas in 1925 and his law degree from the University of Minnesota in 1930. In 1936 he received a doctorate of jurisprudence from Georgetown University. He  in 1934. He practiced law in New Ulm until 1934, when he married his high school sweetheart Thelma Rinke and joined the Agricultural Adjustment Administration.  In 1939 he became assistant U.S. District Attorney. In 1948 he was appointed U.S. District Attorney for Minnesota by President Harry Truman, where he served for a little over a year. He then practiced with the St. Paul law firm of Hoffman and Donahue, which later became Graff, Schultz & Springer.  until he was named to the Ramsey County District Bench.

Graff was appointed to the Ramsey County District Bench on May 5, 1949 by Governor Orville Freeman, succeeding the late Judge Carlton F. McNally.  Graff served 15 years on the Ramsey County District Court Bench, and was Chief Judge when he retired from the bench on May 5, 1974. He stayed on as a “senior judge” until he was stricken with illness shortly before his passing.

John W. Graff died on April 28, 1977 at the age of 73. He was survived by wife Thelma and their three daughters, Teresa, Joan, and Constance.

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Sources:

“Hon. John W. Graff” obituary, The Bench and Bar of Minnesota, July 1977 p. 80

“Thelma Graff” obituary, Saint Paul Pioneer Press, June 16, 2004

(NOTE:  Information sources for the life of Judge John W. Graff were surprisingly scarce.  Please feel free to share any memories or information you might have on his life and career.)

 

 

Borrowing Against Payday

loan business sign

The Consumer Financial Protection Bureau (CFPB) proposed a rule last week aimed at curbing predatory payday lending by requiring lenders to take steps to ensure that consumers can repay said loans, and also to cut off repeated debit attempts that rack up fees against the borrower.  The CFPB referred to such loans as ”debt traps,” due to the fees and penalties that users may not be aware of.  Fees can be assessed for either extending the loan or defaulting on it.  Since the loans are recouped directly from bank accounts, bank overdraft penalties are another common result.  These fees add insult to the injury in that such lenders may be charging interest fees of 300% or more.  The CFPB proposal brought attention to the plight of the vulnerable consumers that take out these payday loans and get caught in the debt cycle, but it also highlights the plight of those who decide to use such loans in the first place.  Opponents of this proposal pointed out that these loans serve people that might have few if any alternatives otherwise, so the question becomes whether or not these loans are a helping hand or “predatory quicksand.”  Read the entire CFPB report here.

The issue of payday loans is not new in Minnesota.  Minnesota’s payday loans statute requires lenders to check the credit history of their customers, and limits such loans to only four per customer within a year.  Last fall the Minnesota Supreme Court upheld the state’s payday lending law, which curbs high-interest, short-term loans.  In State of Minnesota vs. Integrity Advance LLC, the Court held in a suit brought by the Minnesota Attorney General that MN Statutes §47.60 and §47.601 are not violations of the commerce clause, because they only regulate commerce within the state.  Here is how Minnesota law compares to that of other states in the regulation of payday loan services.

If you are considering taking out a payday loan, read this fact sheet from the Minnesota Attorney General’s office first. If you have found yourself ensnared in a “debt trap” that started with a payday loan, there are some legal resources you might turn to. Pro bono organizations like Volunteer Lawyers Network (VLN) can offer debt collection defense for qualified individuals.  If you are currently facing collection efforts brought against you in Conciliation Court, you may be eligible to speak to an attorney through our Housing and Conciliation Court clinic.

 

 

Is this Subsidized Housing for White People?

Tilsner Artist LoftsThe Twin Cities arts community surfaced in the news lately, but not for the sake of art. It was because last month the Institute on Metropolitan Opportunity at the University of Minnesota Law School released its report The Rise of White-Segregated Subsidized Housing,” which examined the makeup of local artist lofts and their tax credit system in comparison to more conventional subsidized housing.  The study found that subsidized artist housing in the Twin Cities is overwhelmingly occupied by white populations, in stark contrast to other local public housing.  As an example, the Tilsner Artists Cooperative in the heart of Lowertown is 92% white, according to the report.  These findings made headlines in publications including The Atlantic as well as this week’s Minnesota Lawyer.

No one suggests that there is a deliberate, conscious effort to keep these artist lofts white-occupied.  Yet the report raises questions about the nature of the use of the Low Income Housing Tax Credit (LIHTC) system utilized by the artist housing projects.  Other unspoken forces may be at play.  Neighborhood residents may be more accommodating of “artists” occupying the historic building on their block, rather than “poor people.”  And the application process itself may be subtly unfavorable to artists of color.  To be fair, not all artist housing in the Twin Cities has such racially-skewed numbers.  At the 653 Artist Lofts in Frogtown, only 50 percent of residents are white. But these accommodations are much more modest in comparison to those like the Tilsner.  Indeed, some of the housing illuminated in this report stands out in its luxury factor.  This picture from the Pioneer Press of the rooftop deck of the Schmidt Artists Lofts shows truly stunning living amenities.

Is this an unfair attack on artists lofts?  Developers and housing advocates say that artist housing projects hit a variety of city goals, such as historic preservation and redevelopment of vacant industrial sites in neighborhoods that could sometimes use an economic development boost.  They keep an artistic element in areas that are gradually gentrifying.  They also feature in very public community events like the St. Paul Art Crawl.  Artists lend a vibe to a neighborhood that affluent residents will pay money to have in their backyards, which we might call the ”YIMBY” syndrome.  Also, where do artists and art communities stand in a free market setting without such subsidies as these to keep their work space affordable? The recent fate of the Jax Building gives us an idea.

Here’s a final, provocative question: Do these luxury work-life homes risk depriving artists of contact with a more diverse and representative society, which might inspire them to create more socially visible and relevant artwork?

 

Image - U.S. Supreme CourtMinnesota came into focus last week as part of Donald Trump’s presidential campaign.  Specifically, Minnesota Supreme Court Justice David Stras was part of a short list of potential U.S. Supreme Court appointees that Mr. Trump might pick if he were to be elected.  (Like the late Justice Rosalie Wahl, Stras has his beginnings in Kansas.)  A graduate of the University of Kansas School of Law, Justice Stras clerked for U.S. Supreme Court Justice Clarence Thomas.  Before then he held other clerkships and also practiced white collar criminal and appellate law in the firm of Sidley Austin Brown & Wood.  He became an adjunct professor at the University of Minnesota Law School in 2004, which he held until his appointment to the Minnesota Supreme Court by Governor Tim Pawlenty on July 1, 2010.  He was a popular professor at the “U”, as is reflected in the University of Minnesota Law Review’s tribute to Justice Stras.

In its recent article, the Minnesota Lawyer pointed out that Mr. Trump may be employing political strategy with his short list. (In fairness, what isn’t political when you are running for president?) All the names on his list are not only conservative thinkers in the judicial realm, but also hail from the Midwest.  Mr. Trump’s election game will likely depend on appealing to Midwestern states.  (“Conservative” can be a rather circumstantial concept where justices are concerned.  Stras dissented with Justice Alan Page in the headliner DWI case of State v. Bernard, now awaiting its final fate at the hands of the U.S. Supreme Court.)   Stras was previously named in this blog as the author of this fascinating historical article on Minnesota’s first U.S. Supreme Court Justice, Pierce Butler.  Stras may not have a long judicial record to his name, but check out some of these other articles to learn more about his analytical approach:

Of course, being on a presidential candidate’s short list of possible appointees is not a sure route to the nation’s highest bench.  Not even being an official appointee of a sitting president to an actual vacancy is a sure thing, as Merrick Garland can attest.

 

Labor and Employment LawThe big news this week was a new regulation from the Labor Department on Wednesday, requiring most salaried workers earning up to $47,476 a year to receive time-and-a-half overtime pay when they work more than 40 hours during a week. (The previous cutoff for overtime pay, set in 2004, was $23,660.)  Beyond the predictable storm of controversy this regulation generated, it does reveal something important about employment law in general. Namely, much of it comes not from the traditional statutory or case law sources, but from executive agencies. It may not easily lend itself to your favorite online research tools. This is why we librarians are big fans of analytical treatise materials that take into account different sources of law when examining a particular issue.

Here at the law library, we offer numerous specialized resources for researching your employment law issues. Here are just a few titles available in our collection (all of which are continually updated):

  • State & Local Government Employment Liability, J. Sanchez (Thomson Reuters)
  • Employee Privacy Law, C. Herbert (Clark Boardman Callaghan)
  • Covenants not to Compete, M Fillipp and K. Decker (Aspen 3d.)
  • Employment Discrimination, R. Larson and J. Harkavy (Bender 2d)
  • Employee Dismissal Law and Practice, H. Perritt (Aspen)

A great tool for Minnesota-specific employment law is Employment in Minnesota: A Guide to Employment Laws, Regulations, and Practices, by N. Sautter (Lexis).  For other state-specific research, check out our multi-volume Employment Coordinator (Thomson Reuters). This treatise takes into account the various aspects of employment law against different jurisdictions. So using the index, one can look up a specific subject like “overtime,” or a state like ”Minnesota” to find numerous subheadings within.  With our Westlaw subscription, one can also search the Code of Federal Regulations (CFR) for U.S. Department of Labor regulations, as well as  Employment Law and Practice (Vol. 17, Minnesota Practice Series)

Yes, given that it comes from multiple sources, thoroughly researching employment law can take some time.  You might appreciate spending some time in our bright and comfortable labor and employment room (pictured).

 

Our Modern “Asylum” System is Insane

file000863913766People living with mental illness are disproportionately represented in the criminal justice system. It is estimated that 1 million people with mental illnesses are arrested and booked in the U.S. each year.  This is no surprise to anyone who reads the local news.  Criminal arrests and convictions in our community are frequently revolving around defendants with confirmed mental health issues.  After last month’s law office tragedy, we are only too aware that local attorneys frequently find themselves representing mentally ill clients who can become dangerous.

The bigger problem is that mental illness is an affliction that our society hasn’t found a perfect way to manage.  In the early days of our country, the mentally ill were cared for at home by their relatives, which was easier when people lived in rural communities with open spaces and fewer neighbors.  What became known as the ”insane asylum” became more standard as our society became more urban and mobile.   (Read this interesting article about Minnesota’s history of institutionalizing the mentally ill.) These asylums developed a bad reputation in the 20th Century for their record of human rights violations, and many people understandably cheered the deinstitutionalization movement of the 1970′s.  Unfortunately, the end result was thousands of people needing help in managing their mental conditions, and not getting it.  Instead, their resulting instability often landed them behind bars.  And whereas people might feel safer when the people they consider to be dangerous are locked up,  jails seldom offer the consistent structure and treatment needed for their mental conditions.

It is  step in the right direction that lawmakers are considering the best training for law enforcement in handling mental health calls.  Other positive steps within the criminal justice system for handling the mentally ill include Minnesota’s 48 hour rule and the 2nd Judicial District Mental Health Court.  Albeit positive steps, they are no substitute for ongoing care and maintenance that the mentally ill are likely to need.  Read more about the dilemma in this recent Pioneer Press article.  The New York Times is also featuring an in-depth editorial discussion on this subject.

 

 

Richard Ambrose Walsh (1862-1940)

Richard Ambrose Walsh

The Walsh portrait is unsigned, but its subtle and somber quality are unmistakably Edward Brewer.

Richard Ambrose Walsh was born to Irish immigrant parents on January 9, 1862 near Robert Street and Concord Street (now Cesar Chavez St.). This area was then Dakota County, but was later annexed to become part of City of Saint Paul and Ramsey County. As a child, Walsh witnessed James Hill working as a freight clerk in his neighborhood, and recalled Hill purchasing the bankrupt St. Paul and Pacific railroad and transforming it into the Great Northern Railway. His father’s employment with the St. Paul Police Department may have sparked the younger Walsh’s interest in the law.  After he graduated from what was St. Paul’s only high school at the time, young Richard “read law” under Charles D. Kerr in the offices of Kerr, Wilson, and Benton.   (This was the usual means of gaining a legal education then, especially with the nearest law schools being in St. Louis, MO and Ann Arbor, MI.) He was admitted to the bar and began practice in 1883. In 1884 he married Margaret McManus, and they had thirteen children together. It was at the family’s second home in White Bear Lake when tragedy struck on September 9, 1909.  The house burned to the ground and three of their children died in the flames.

Walsh was elected to the Minnesota House of Representatives in 1890, and re-elected in 1893.  At 29, he was the youngest member serving at the time. While serving he introduced and helped pass legislation requiring safety enclosures on the front of streetcars.  After leaving the legislature he became a member of the firm of Walsh, Jackson, Walsh & Yagel, and served as the President of the Scandinavian Bank. He was appointed to the Ramsey District Court bench in 1931 upon the death of Judge Wheeler (who happened to be his cousin).   Judge Walsh was apparently involved in an investigation of coal price-fixing by the Minnesota Bureau of Coal Statistics.  (See James J. Egan entry.)  He continued to be nominated for reelection, but withdrew his candidacy in 1938. He retired from the bench in 1939.

Walsh spent his brief retirement years enjoying his private library and flower garden.  (Family records documents him always wearing a white suit and white gloves while gardening.) which he did while dressed in a white suit. He died the following year in 1940 after a brief illness at the age of 78.

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The Law Library extends its sincere thanks to the Walsh family, which graciously provided us photocopies of personal family records which were invaluable in supplying information for this summary of the life of Judge Richard Walsh.

Additional sources:

History of Ramsey County and the City of St. Paul, Inlcuding the Explorers and Pioneers of Minnesota by E.D. Neill (1881)

History of St. Paul and Vicinity, by H.A. Castle (1912)

“R.A. Walsh, Former Judge, Dies” (Obituary), Pioneer Press Jan 19, 1940

 

Prince’s Purple Probate Puzzle

Purple roseAs the local community recovers from the death its beloved local musical icon, it has come to light that Prince apparently died intestate (failed to leave a will).  Given that his large estate likely includes earnings, royalties, and real estate (plus any unpaid debts), settling it will probably be even more complicated given his extended family.  He apparently had several half-sibs in addition to his sister, and Minnesota succession law makes no distinction between half and whole siblings.  Then dig if you will the (potential) picture of some unknown person stepping forth claiming to be another sibling, or even a child, of Prince.  Given all of these factors, it is understandable that his sister sought appointment of a special administrator in Carver County Probate Court to handle his estate.

Assuming that there is indeed no will, Prince is neither the first nor the last person to die intestate. People might consider wills unnecessary if they have no spouse or dependents, or don’t consider their assets to be worth much.  They might also see themselves too young to be concerned with such worries.  The reality is that roughly two-thirds of people currently have no will.

There is no shortage of online tools to help answer questions about probate.  Start with the Probate and Planning brochure from the Minnesota Attorney General.  The Courts website also offers helpful forms and information on probate court.  Unfortunately, none of these resources offer help for actually making a will.  We offer some resources for those who are ready to make make theirs.  Read this basic fact sheet from Legal Aid for general information regarding wills.  Other useful information tools include The Wills & Trusts Kit (2nd ed. 2006), or Nolo’s Simple Will Book (7th ed. 2007).  From there it’s easy to find various online will forms, but since state probate laws vary, a better alternative might be How to Make a Minnesota Will (2nd ed. 2002).  Besides information, this book offers numerous sample fill-in-the blank forms.  Whatever you choose, it’s best to discuss your personal situation with an attorney so you can prepare a will that accurately states your wishes and sees them carried out under applicable state laws.  The Volunteers of America Estate and Elder Law Services can also assist eligible people with wills and estate planning.