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.

 

Law Day 2016 – Miranda: More than Words

 

Leslie J. Rosenberg

Leslie J. Rosenberg
Minnesota Assistant
Appellate Defender

Once again National Law Day will soon be upon us. Sponsored by the American Bar Association (ABA), this annual event highlights the role of law and justice in our society, while giving attention to the special role of courts in our democracy. Congress designated May 1 as the official date for celebrating Law Day in 1961. This year’s theme, which is Miranda: More than Words highlights the 50th anniversary of the well-known U.S. Supreme Court case, Miranda v. Arizona. The theme explores Miranda rights as they traditionally apply to police interrogation, but also shines light on all the procedural protections afforded by the Constitution, how these rights are safeguarded by the courts, and why the preservation of these principles is essential to our liberty.

Be sure to attend our own upcoming Law Day event, to be held on Wednesday, May 4 in conjunction with the Ramsey County Bar Association.  We will feature a talk by Leslie J. Rosenberg, “The Making of Justice – The Role of Miranda in the ‘Making a Murderer’ Series.” Ms. Rosenberg will explore the origin and meaning behind Miranda case law, and how it gets maneuvered by police and prosecutors. She will highlight the application of Miranda to juvenile defendants, and specifically to the teenaged Brenden Dassey that we all remember from  “Making a Murderer.” (This is a can’t-miss event if you enjoyed the Netflix documentary series.) Besides being an Assistant Appellate Defender with the Minnesota Public Defenders’ Office, Ms. Rosenbeg is also an expert in the field of international juvenile justice, and recently served as a volunteer public defender in China. The event, which is free and open to the public, will take place Wednesday, May 4 in the Training Room of the First National Bank Building. The event will commence at 9:00 a.m., with registration beginning at 8:30. One standard CLE credit is available.  (Teleconference and on-demand available for $10.)

If juvenile justice or Miranda rights are of special interest to you, consider reading one of these books which we have in the library:

  • Kids, Cops, and Confessions: Inside the Interrogation Room by B. Feld (New York University Press 2013)
  • Burning Down the House: The End of Juvenile Prison by N. Bernstein (The New Press 2015)
  • The Privilege of Silence: Fifth Amendment Protections Against Self-Incrimination by P. Hynes Jr. and S. Salky (ABA 2nd)
 

file5721298196911The entire legal community was shook by last week’s tragic event that took place in a local law office. Mistaking the office receptionist/clerk for his attorney, a disgruntled client marched into the office and shot him dead, leading to this criminal complaint.  We extend our deepest sympathies to the members of this law practice, and also to the victim’s family.

Attorneys may not always consider law office disasters beyond the context of missed deadlines or document production mishaps. In truth, the legal profession is pitted alongside people at their most emotionally fragile and volatile moments, creating actual threats to physical safety.  Tragic events over the past years have made us all aware of the need for courthouse security, both in the Twin Cities metro area and outstate Minnesota. We may not always realize that the need for safety might go beyond the courthouse doors. At the same time, it is impossible to predict all the ways that one’s safety might be compromised. It is unlikely that most lawyers would have expected a disaster like last week’s event in their own offices.

So what could or should attorneys do to prevent such situations? (Does a law office really need a SuperAmerica-style plexiglass service window?) Unfortunately, it is impossible to predict and prepare for every possible emergency. (Read “Is Safety an Illusion?” from this issue of the Montana Lawyer.)  At the same time, it’s still worth considering the possibilities and discussing them with colleagues and staff. (The agitated gunman scenario is fresh in mind, but also consider a fire, tornado, or security breach.) You may want to review your client relations policy to make sure it addresses clients who may become angry and violent.   Also check out the chapter “Office Security and Emergency Procedures,” in Law Office Policy & Procedures Manual  (CLE 2011).  Here are some additional suggestions from the New Hampshire Bar Association.

 

Youth and Justice

Teenaged boyThis spring our attention turns to those in the spring of their lives, specifically juveniles caught up in the justice system.  The early part of the last century was a time of growing awareness of juveniles, recognizing that while they were no longer babes in the nest, nor did they have the full facilities of adulthood. (Individualized Justice by Samuel H. Popper) Many of the judges represented in the portrait collection were active in the development of our district’s existing juvenile justice tools. Judge Orr presided over Ramsey’s first juvenile court in 1905. He was known for his commitment to youth and their legal issues until his retirement in 1930. Judges McNally, Loevinger, Walsh, and K.G. Brill also presided over the juvenile court in their terms.

Lately we have also seen two institutions of juvenile reform in the news: Ramsey’s own Totem Town has come under the scrutiny of the 2nd Judicial District. Specifically, judges are currently not referring juvenile defendants to this facility until further notice. Totem Town has a special local history of its own. The Minnesota Legislature enacted authorization for a boys detention home in Ramsey in 1907, and the original facility opened in 1908. It was later renamed Totem Town to lose some it its perceived institutional stigma. (Individualized Justice) It was only a few years back that it celebrated its 100th anniversary.  But even before the recent news development, many voices were saying that it needed to change to meet modern needs.

It is also the 125th anniversary of Minnesota Correctional Facility at Red Wing.  The Red Wing facility has a storied history within juvenile justice all its own.  (It was even immortalized with a Bob Dylan song.)  Judge Gingold was known to gently tease juvenile defendants with the warning that the “bus to Red Wing” was parked outside the courthouse and waiting.  Despite this long history and its striking building, the Red Wing facility has also had its detractors.  Read one man’s memory, which paints the picture of a rather draconian place. The Red Wing facility is also examined extensively in Burning Down the House: The End of Juvenile Prison by Nell Burnstein (available at our library).

Identifying and applying the right tools to juvenile justice remains a subject of much discussion, so expect to see more in this blog regarding such.  In particular, we are happy to announce that our Law Day speaker this year will be focusing on juveniles as they relate to Miranda warnings.

 

 

 

57-DSC_6403Our law library proudly promotes local criminal expungement resources to our patrons or others who might benefit from them. We are in partnership with the Second Judicial District, Volunteer Lawyers Network (VLN), and the Saint Paul Public Library to bring criminal expungement workshops to the public. Thus we were interested in the recent the Minnesota Court of Appeals decision in the case of State v. S.A.M, which involved a Rochester man seeking expungement of his 2003 felony conviction.  The Court held that his record could not be expunged because his previous guilty plea was to a charge not included in the list of expungible felonies under Minn. Stat. §609A.02.  It didn’t matter that the conviction in this case was subsequently “deemed a misdemeanor” per plea bargain terms.  Further, the Court declined to apply the language of sentencing statute Minn. Stat. §609.13 in order to make the appellant’s felony a misdemeanor for expungement purposes, because the original judgment was entered as a felony and not a misdemeanor.   This case is examined in this week’s issue of Minnesota Lawyer.

It’s not unusual for criminal defendants to plead guilty to a different charge in order to reach a quicker (and legally affordable) resolution to their prosecutions.  According to the U.S. Department of Justice90 to 95 percent of all criminal cases nationwide are resolved through plea bargains.  The expungement law does not specifically address situations where petitioners might have received a stay on a felony charge which was then converted to a misdemeanor. This gap in the law potentially leaves hundreds of expungement petitioners without the second chance remedy heralded by the 2014 expungement overhaul.  Indeed, the Court noted with some sympathy that its ruling  reveals a distinct hole in the expungement net, but held that it was up to the legislature to provide any needed clarification.

Does this ruling leave you with questions on if or how your expungement petition might be affected? Don’t reach any conclusions before discussing your case with an attorney.  If you are just starting to consider expungement, try a VLN seminar at a local public library. If you are preparing your petition paperwork, come to the Second Judicial District’s criminal expungement workshop which meets on the second and fourth Thursdays of each month here in the law library.

 
Bedroom door

You unlock this door with the key of accommodation…

Suppose you are a homeowner living peacefully in your own abode.  You get along well with your neighbors.  Your property taxes are up to date and you keep your sidewalks clear.   You and your home have no plans of winding up in court.  You certainly never give thought to landlord-tenant law because you aren’t leasing out your home. And yet you might find yourself in in situation that could leave you legally obligated as a landlord.  Here are but a few examples:

  • Months ago you let your significant other move into your home to save money.  You now regret this move as your relationship has gone downhill.  If you break up with him or her, can’t you simply show them to the door?  Maybe not.  They may now have the rights of a legal tenant, in which case you the landlord would have to legally evict them.
  • Your nephew lost his job and could no longer afford his apartment.  You let him stay in your your basement until he found another job.  He has since overstayed his welcome and is not looking for a job. So now it’s adios sobrino, right? Not necessarily.  He may no longer be simply a guest, but a bona fide legal tenant.
  • You hired a local college student to help take care of you and your home in exchange for room and board. Now you think she is stealing from you and you’ve decided fire her.  After you can her she is out the door, right?  This may not be a simple business employee relationship wherein termination automatically removes her from your home.  You may have to take more extensive legal steps.

These are but a few examples of how people might (or might not) accidentally take on landlord status without knowing it.  If you are in any of these situations and aren’t sure exactly where you stand, you should discuss your situation with an attorney.  For Ramsey County residents, this can be as simple as coming to our Tuesday afternoon Housing and Conciliation Court clinic, where you can speak to a volunteer attorney for up to thirty minutes.  Call us or see our flyer for more details.

 

Minnesota CapitolWith the Minnesota Legislature now in session and March being Women’s History Month, its timely to consider how women’s suffrage opened the door to allowing women to hold elected positions. Minnesota granted women the right to vote in 1919, but only in presidential elections. The following year saw the passage of the Nineteenth Amendment, and women’s suffrage became universal in all states.  (Minnesota might have been a tad slow on women’s suffrage, because of its brewing industry. Some camps feared that votes from women would tilt outcomes on questions that involved liquor.)

In the 1922 election, four women were elected as Minnesota’s first female legislators: Mabeth Hurd Paige, Sue Metger Dickey Hough, and Myrtle Cain from Hennepin County, and Hannah Kempfer of Otter Tail County.  Women started to slowly trickle into the Minnesota House of Representatives thereafter, but none would represent a Ramsey County district until 1975 with the election of Margaret Mary “Peggy” Byrne. (Possibly the Ramsey districts were slow to elect women due to the long-held position of the Catholic Church against women’s suffrage and public roles for women in general. )

Mabeth Hurd Paige served the longest of the original four, completing a total of ten terms.  Born in Massachusetts in 1869, she finished high school there before moving to Nebraska to care for her ailing grandmother.  She attended the University of Nebraska at Lincoln before going on to study art at the Academie Julian in Paris, France. Upon returning to the United States, she accepted a job teaching art in the Minneapolis public schools.  She then married University of Minnesota Law School Professor James Paige in 1895. It was at her husband’s urging that she enrolled and obtained a law degree from the University, graduating in 1900. Later she became president of the Women’s Christian Association in Minneapolis, and also founded the Minneapolis chapter of the Urban League.  Upon the passage of universal women’s suffrage in 1920, she successfully ran for the Minnesota House of Representatives in 1922 along with the other-named three.  She retired from the Legislature in 1945 and died in 1961.   Her legislative profile from 1923 presents more information on her.

 

Books and newspaperLast weekend saw the passing of Nancy Davis Reagan, best rememberd as the fiercely loyal and colorful first lady of the Eighties. Less well-known was the challenging life she lived with her late husband, former President Ronald Reagan after they left the White House. Nancy Reagan stated that her toughest battle was being the spouse of a man slowly dying with Alzheimer’s. In an interview she recalled the loneliness of no longer being able to share “remember when” moments with her husband, and referred to these difficult ten years before he died in 2004 as “the long goodbye.”

Consider Ms. Reagan’s difficulties in light of fact that her husband’s case was probably a “best case scenario” where Alzheimer’s is concerned.  As a successful actor and former governor and president, Reagan presumably had better-than-average financial resources and retiree benefits. Nancy was likely assisted by round-clock home health care in tending to her husband. He in turn benefited from a supportive family and a loving partner in Nancy who seldom left his side. He also knew from at least 1994 on that he had Alzheimer’s, which gave him some time to make plans for his fading sunset years. Many (if not most) people facing Alzjeimer’s come up short in at least one of these areas.

Whether you are an attorney or a family member, there is no simple roadmap for dealing with all the issues related to Alzheimer’s (and other dementia-related afflictions). Your situation might call for multiple legal resources and tools. For lawyers, consider starting with Alzheimer’s and the Law: Counseling Clients with Dementia and Their Families by K. Peck and R. Law. There are also multiple resources on the ABA Commission on Law and Aging page. We also have numerous treaties and tools in the library addressing elder care issues.

For laypeople, consider contacting the Minnesota-North Dakota chapter of the Alzheimer’s Association to learn what local services are available. Be aware that your situation may call for legal tools including Power of Attorney, Guardianships/Conservatorships, living trusts, and arrangements that encompass assisted living. Most of all, give yourself the benefit of discussing your situation with an attorney. You can find legal help through resources including Volunteers of America or the Ramsey County Bar Association.

 

CourtroomApparently it was a big deal last week when U.S. Supreme Court Justice Clarence Thomas broke his decade-long silence on the bench and began ask counsel several questions during oral arguments. Maybe Thomas spoke up was because this particular case (involving 2nd Amendment gun rights) was a subject he is passionate about, or maybe he had previously been hiding in “Nino’s” shadow all these years (as the graph might suggest). In any event, this news event raises the subject of addressing the bench, encouraging judges to ask questions, and hopefully providing accurate and persuasive answers in response.

Indeed, lawyers should pray for a rainstorm of questions from the bench. A judge who has no questions might have already decided on the matter at hand (or not read your brief or memorandum). Probably nowhere should you hope for questions more than when you are presenting and arguing a motion. (After all, you are asking the court to diverge from its otherwise-planned path.) So anticipate those questions and be ready to offer brief-but-enlightening answers with which you can engage the judge in a stimulating informational discourse. To this end, we offer some helpful materials:

  • Motion Practice (6th Ed.) by D. Herr, et al. Its chapter 6.05 on oral argument specifically presents tips for answering the questions a judge is likely to ask.
  • A Checklist Approach to Successful Practice (CLE 2015) contains “8 Ways to Make the Most of Oral Argument,” an excellent three-page tip sheet for communicating successfully with the judge.
  • The end chapters of informal-but-informative McElhaney’s Trial Notebook (4th Ed.) for helpful lessons on set against story narratives on making your points and handling questions from the bench.
  •  Consider reading “[T]he Judge Looks Bored: How to Keep the Judge Interested.” Here, Hennepin District Judge Jay Quam offers his own tips to lawyers for successfully interacting with the judge. (Minnesota Bench and Bar, Dec. 2011)

You may be presenting your argument at the appellate level, which means multiple judges.  If so, consider “[T]he Word on Oral Arguments” by David Ziemer (Minnesota Lawyer, May 25, 2005).   Ziemer reminds you to be confident, considering that your case was taken because the court wants to hear more about it and possibly give it precedential significance. Extensive questions in the appellate setting mean that the judges have not only read your brief, but are considering policy ramifications of their possible decision options.  Ziemer also provides tools to help you focus the attention of the judges. (A recitation of multiple dry details will only have a tranquilizer effect on them.)

All of these suggestions are short and easy reads, so come by the Law Library to check them out.

 

Minnesota and Black History Month

Civil War battalionSince this is the last week of Black History Month, it is appropriate to celebrate historical legal milestones of local black Minnesotans, such as Frederick McGhee, Stephen Maxwell, and Alan Page. But it is equally appropriate to look at some of our region’s less-celebratory milestones. It may surprise many to learn that Minnesota hasn’t always been on what we consider to be the “right side of history.”  It may surprise even more to learn that our local community often stood in the way of what we now consider progress.  Consider these examples:

• Minnesota had a prominent role in the Dred Scott case which ended with the U.S. Supreme Court declaring that the “black man had no rights that the white man is bound to respect.”  Scott had  been the slave of a military surgeon posted at Fort Snelling in the 1840s.  In this historical case, Scott had essentially argued that by virtue of his “master’s” death and of living for years in free states and territories, he become a free man.

That hundreds of Minnesotans died fighting on the Union side of the Civil War is well-known.   Less well-known is the fact that that in 1863, a Missouri steam ship docked at Lowertown carrying a load of escaped slaves. No welcome mat greeted them, but instead the travelers were confronted with a mob of angry white laborers demanding that they return to the South.*

• Minnesota may be free of confederate symbolism on its flag, but a popular lake in Minneapolis immortalizes a slave owner with its name. John Calhoun of South Carolina promoted slavery as a “positive good.” Calhoun is relevant to local history as the founder of Fort Snelling, where we know that military personnel were welcome to keep their slaves at hand.

• It’s easy to think that mob lynchings of black men are just a shameful stain on the history of southern states, and certainly not part of our fair state’s history. Yet on June 15, 1920, three black circus workers were hung in Duluth by a citizen group following allegations of their raping a white resident. The men had not yet been tried, and little evidence was available to back up these allegations.

The City of St. Paul is 15% African American, but had no black legislators until 2010. That was the year that voters elected John Harrington to the Minnesota Senate and Rena Moran to the House of Representatives.  Miinneapolis did better on this measure, by electing Frank Wheaton as the first African American legislator in the state of Minnesota in 1898.

When it comes to history, it is understandable that we might gravitate to the facts which paint our community in its most positive and flattering light.  But our history includes those not-so-positive events as well.  We cannot take lessons from our history unless we confront it entirely, and use it as the blueprint in planning our future.

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*  This event and others are captured in Degrees of Freedom: The Origin of Civil Rights in Minnesota by Dr. William Green.  This, plus Dr. Green’s other book, A Peculiar Imbalance: The Fall and Rise of Racial Equality in early Minnesota are both excellent resources for researching some of the more obscure details of Minnesota’s early history.