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.

*******

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.

 

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.