Happy Fathers’ Day From the U.S. Supreme Court

father and childThe U.S. Supreme Court has struck down a federal immigration law that favors mothers over fathers in determining the citizenship of a child.  The law in question, 8 U.S.C.§ 1409, created an exception which automatically granted citizenship to the child of an unwed mother if said mother resided in the U.S. for at least a year. In contrast, 8 U.S.C. §1401 requires the unwed father of a child to live in the U.S. for 5 years for the child to be granted U.S. citizenship. As Justice Ginsburg wrote for the Court, this difference violates the Constitution’s guarantee of equal protection of the law. (She was joined by justices Kennedy, Breyer, Sotomayor, Kagan, and Chief Justice Roberts, with Justices Thomas and Alito filing a separate concurring opinion.)

You can read the entire opinion in the case of Sessions v. Morales-Santana, wherein Luis Ramón Morales-Santana was born abroad to unwed parents. His mother was from the Dominican Republic and his father was a U.S. citizen who had previously worked on a construction project there.  Morales-Santana’s father fell 20 days short of the U.S. residency requirement for Morales-Santana to receive automatic citizenship at birth. Morales-Santana later came to the U.S. with his parents as a permanent resident, but the government sought to deport him in 2000 after he was convicted of several felonies. Morales-Santana challenged the citizenship law as unconstitutional sex discrimination, and Supreme Court agreed: The child of an unwed American mother cannot be granted automatic citizenship more quickly than the child of an unwed American father.

This post might just as appropriately be named “[U]nhappy Mothers’ Day from the U.S. Supreme Court.” The Court’s recent decision is not a boost to fatherhood per se, but more specifically one to gender equality.  As this article explains, the Court’s temporary fix was to strike down the special exception law for mothers, since it was not at liberty to establish the “exception to the rule.”  Congress may opt to resolve this unconstitutionality in a way that is unfavorable for those in circumstances like Morales-Santana’s.  And since the Court is only requiring that the corrected law treat mothers and fathers equally, resolution might mean extending this citizen-residency requirement for mothers, shortening it for fathers, or doing away with it completely.  You might recall the old 1971 case of Palmer v. Thompson, wherein the Supreme Court held that closing public swimming pools altogether was a constitutionally-acceptable alternative to racially segregating them.  The result was a long, hot summer for all.

 

Appellate briefsAny lawyer writing a brief will consult relevant case opinions, but the most inspirational tool for the job is often other briefs (especially those that inspired past favorable opinions.) And we all know that those briefs are not as quickly and easily obtained as the opinions.  Our patrons may be afraid to ask us about briefs, for fear of being taken to that huge microfiche viewer in the back. Fortunately, the electronic age is slowly making inroads in this much-requested area, and access to the brief you need may be at your fingertips.

  1. First, users might be surprised that both appellate and district court briefs can be accessed via public access computers in any Minnesota state courthouse. (In the main Ramsey County courthouse, go to Room 72 in the basement.) So long as they are not sealed or confidential, briefs are available from January 2015 on, and include both published and unpublished cases.  The familiar drawback is that the MNCIS and MACS interfaces only allow searching by case numbers or names, with no option for subject matter searching.
  2. Second, be aware of the Minnesota State Law library’s online archive for briefs and oral arguments, with coverage beginning with volume 705 of the Northwestern Reporter 2d series (2005). Though not as sleek as a Westlaw interface, the search blank can be filled with statute numbers, terms like “limine”, or with Northwest Reporter citations. Criminal opinions are only available for the Supreme Court, and not the Court of Appeals, and appendices and exhibits are not electronically available.   Are you looking for an appellate brief that is very new and not yet on MACS?  You can send an email to the State Law Library to request it.  For more assistance in locating briefs, see also the State Law Library’s excellent page on finding briefs and oral arguments.
  3. Third, our expanded Westlaw subscription now allows access to many (but not all) briefs.   The “briefs” link on the Minnesota page allows access to selected briefs or petitions filed with a federal or supreme or appellate court, beginning with 2001.  (Briefs for other states can be accessed from their respective pages.)  A limited number of district court briefs are also available through the “Minnesota trial court documents” links.  You may not be able to find exactly the case brief you need, but the advanced interface lets you search for briefs in certain subject areas, such as “motion to quash” or “motion to dismiss.” (Be aware that few Ramsey District briefs are available through this source.)
  4. The old-fashioned brief options are hardcopy and ….microfiche.  The Minnesota State Law Library keeps hardcopy briefs for published opinions back to 1917 Those of the 300 NW2d Reporter series onward may be borrowed.  (A money deposit may be needed.)  And yes, we still have briefs on microfiche here at the Ramsey County Law Library for published cases, going back to the 300 NW2d Reporter volume forward (roughly 1981 and after.)  You can at least use the microfiche to see if a brief is helpful, and either print it or go to the State Law Library to borrow it.

We hope your brief searching is itself brief and painless.  When you are ready to start writing your own, consider borrowing our copy of A Brief Guide to Brief Writing: Demystifying the Memorandum of Law.

 

Legislative Chapter 184 from 1949You might have missed it, but county law libraries made a surprise appearance in the Minnesota legislative session this spring.  You can read the original Senate File 1113 here, which would have allowed for the diversion of county law library funds for construction of a courthouse.  This legislation passed both the Senate and the House, but was vetoed by Governor Dayton.  But bills  concerning county law libraries could always come up again at the capitol.

Without examining now-vetoed bill, this occurrence presents an opportunity to consider some history behind county law libraries in Minnesota. Their modern incarnation formally came into existence with what became Minnesota Statute §134A.  You can read in the 1949 Session Laws wherein the Legislature laid out the specifics for the establishment, operation, and function of county law libraries.  This original text reveals that amazingly little has changed to the county law library statute over the years, such as which sectors must be represented on governing boards, how funding is to be provided, and who must be allowed to use the libraries.  Keep in mind that this was all back in 1949, predating modern “access to justice” efforts.  Of course, what might have been casually called a ”county law library” existed in Minnesota prior to this statute, often growing from local bar association libraries.  (This was how the Hennepin County Law Library got its start way back in 1883.)  But the original statute overwhelmingly set the standards for our modern county law libraries.

Today you can find county law libraries throughout the state, and this brochure from the Minnesota Coalition of County Law Libraries (MCCLL) lists those which offer professional staff to assist users.  But history-wise, its not easy to determine when Minnesota’s various county law libraries come to be.  Public law libraries existed in St. Paul, Minneapolis, and Duluth back in 1955, as evidenced in this article in the Law Library Journal about the founding of the Minnesota Association of Law Libraries (MALL).  Since this sort of historical information can be elusive, we would like to know more about the history of your county law library (including this library).  If you have any such  inside knowledge, please share it with us.  And- if you have found the services and resources of your county law library helpful, by all means tell your legislator!

 

Scales of JusticeAs we appreciate the historical significance of the Fourteenth Amendment throughout May, we can consider two lesser-known figures.  This is first the story of a man named John born in Kentucky in 1833 to a slaveholding family. His father was a loyal Whig political leader and lawyer, who served both in Congress and as Kentucky’s attorney general. The father wished the same political stature for his sons, and named this particular son for his favorite Supreme Court justice. This son indeed followed in his father’s footsteps, even attending law school before it was standard to a legal career. It wasn’t long thereafter that he himself was elected attorney general of Kentucky. Although John strongly supported efforts to keep Kentucky in the Unionleading up to the Civil War, he was staunchly opposed to the Emancipation Proclamation. But since the Proclamation only applied to rebel states and not Kentucky, he continued to be responsible for his family’s slaves after his father’s death. His pro-Union, pro-slavery position was politically precarious, and he lost his bid for the US Senate in 1867, as well as his bid to remain attorney general of Kentucky.

John retreated from politics into his law practice, but he was quietly undergoing a philospical metamorphosis. Specifically, he began championing ideas of racial equality which he had previously scorned.  Now affiliating himself with the Republican party, he soon embraced both the Thirteenth and Fourteenth Amendments.  His passionate campaign speeches helped bring about the election of Rutherford B. Hayes in 1876, which led to his appointment by President Hayes to the Supreme Court in 1877. Thus began the epic high court career of John Marshall Harlan, with his reputation as the Court’s “great dissenter.” His famous dissents included the lone ones in both the Civil Rights Cases (1883) and Plessy vs. Ferguson (1896). We may see his opinions as heroic in our age, and indeed, his Plessy dissent was later regarded by a young Thurgood Marshall as his “bible” as he argued the case that led to the historic Brown vs. Board of Education decision.  But Harlan was considered by his peers and contemporaries a contrary and eccentric  justice.

John Marshall Harlan’s dramatic political turnabout may be cause for speculation, but this Smithsonian article presents an interesting theory. John grew up in the presence of a “light-skinned, blue-eyed” slave named Robert, who was believed to be John’s half-brother. Indeed, John’s father treated Robert as his son, which he likely was. Robert grew up to have a keen business sense, operating both a barbershop and a grocery store in the 1840’s. The proceeds of these ventures allowed him to buy his own freedom when he was thirty-two. Robert traveled from place to place after the war, amassing a fortune in real estate and other ventures. He also became involved in Republican politics, and President Chester A. Arthur appointed him to the U.S. Treasury as a special agent. In 1886 he was elected a state representative. He and John stayed in contact throughout his life. It’s plausible that Robert’s quiet but dramatic success may have inspired John’s evolution into an early champion of racial equality. Robert James Harlan died one year after the Plessy decision. Justice John Marshall Harlan remained on the Supreme Court until his death in 1911.

 

Does this Outfit Make Me Look Guilty?

Woman poses in dressThe Law Librarian has blogged about courtroom etiquette before, but this post looks at dressing for the occasion. Think this is a shallow concern that doesn’t apply to you? If you were spending hundreds of dollars on an attorney to represent you at your DWI trial, and he or she showed up dressed for yoga class, you wouldn’t appreciate it.  And you might just feel that you weren’t getting your money’s worth.   Further, the Rules of General Practice require attorneys to wear appropriate courtroom attire Most attorneys in any jurisdiction instinctively get this, but fashion history has given us some unfortunate exceptions.

The attire of litigants themselves is just as key. Jurors, being human, might easily pick up a guilty vibe from obvious lockup attire. In 1976, the U.S. Supreme Court basically held in Estelle v. Williams that orange would NEVER be the new black (or navy or charcoal gray) in that a defendant could not be compelled to stand trial before a jury while dressed in identifiable prison clothes. The Minnesota Rules of Criminal Procedure 26.03, subd. 2(b) thus state that “[a]n incarcerated defendant or witness shall not appear in court in the distinctive attire of a prisoner.”

For these reasons, it is probably the non-inmate that needs to take the most care in dressing for court.  If you have a lawyer, they’ll likely remind you to dress conservatively.   If you don’t, the Courts’ webpage advises you to “dress conservatively” with “shorts, T-shirts, plunging necklines, and torn clothing” NOT being appropriate Also, rare is the juror or judge that will be impressed by your tattoos or underwear.  For more detailed guidelines, consult this dress code ordered by the Judges of Kent County, Delaware for what to avoid.  Also, the Teen Court of Crowley, Texas offers a great visual guide to court-appropriate attire for younger litigants.  And one last factor to keep in mind:  Even if you outfit isn’t “inappropriate,” bored jurors may become distracted from the merits of your case by the bold details of an unusual outfit.  So play it safe by keeping it simple and understated!

 

PencilsIt was big news earlier this year when Harvard Law School announced that it would no longer require applicants to submit LSAT scores, but would also accept GRE scores as well. The Law School Admissions Test (LSAT) has long been a mainstay of law school applications alongside the undergraduate transcript. In acknowledging that many students already take the GRE (Graduate Record Exam), Harvard’s position is that accepting the GRE  scores reduces the financial burden on applicants who would otherwise be required to prepare and pay for an additional test would be alleviated.   It is too early to know whether or not other schools might follow this example, for the LSAT is still mandated by the bulk of US law schools.

An interesting history of the LSAT can be found here.  Obviously there was once a time when even law school itself unnecessary for a successful career in law. (See this prime example!)  Even after law school became standard, greater social stratifications before World War II managed to keep applicants to a minimum,  with less need to evaluate them against each other.  But the war and the GI bill made educational dreams much more achievable for many, so the selection process had to be sharpened. Schools also wanted a tool to address to the wide variation in college records of their applicants.  This led to administration of the first LSAT in 1948.

The Harvard move now begs the question of how useful is the LSAT is for modern purposes.  Does it serve to broaden the applicant pool or constrict it?   The underlying rationale for the use of the LSAT is to avoid the biases that come with more arbitrary methods of selection, and yet the biggest criticism against the LSAT is that it is likewise biased.  There is also assertion that LSAT scores do not accurately predict a law student’s grades.   And even though the test costs $180, preparatory classes to maximize one’s score can easily reach into the thousands.  Yet opponents of the Harvard decision assert that law school is already is seen as a default choice by undergraduates uncertain of their next career-building step.  Thus, the LSAT presents a purposeful obstacle, requiring the potential student to consider carefully if law school is a worthwhile investment of their time and money.

 

 

 

Our Law Day Event is Coming Up – Save the Date!

Law Day 2017 - The 14th Amendment - Transforming American Democracy

Be aware that our annual Law Day CLE event is coming up, which you will want to attend.  The theme of this year’s ABA-inspired event is The Fourteenth Amendment – Transforming American Democracy.”  Our event, held in partnership with the Ramsey County Bar Association, will be held at 3:00 PM on Thursday, May 4 in the Ramsey County Court House.  We are proud to have Minneapolis attorney Donald M. Lewis as our speaker for this event!  He will be sharing his knowledge and experience with us in his presentation “Equal Protection of the Laws: The Journey from Jim Crow to Gay Marriage.” His presentation will consider the Fourteenth Amendment’s promise of equality and a “top ten” review of such U.S. Supreme Court decisions.  It will also consider the shortcomings of those decisions in improving social, economic and political outcomes. Historic applications of the clause in Minnesota cases will also be noted.  This presentation is free to attend and open to the public.  (Read here for more details about attorney CLE fees for this program.)

For a little background, the Fourteenth Amendment contains the Citizenship Clause, the Privileges and Immunities Clause, The Due Process Clause, the Enforcement Clause, and the Equal Protection Clause.   One of the three Reconstruction Amendments, its first section was drafted by Representative John Bingham of Ohio.  After its passage through Congress, President Johnson made a speech stating that submission of this groundbreaking amendment to the states for ratification was “purely ministerial.”  He seemingly sought to reassure Americans and their state legislatures that they were under no pressure from him to act on the amendment.  Enough states did act however, and it was ratified on July 9, 1868.  Nearly 150 years later, the amendment has become one of the most litigated parts of the Constitution, forming the basis for landmark decisions such as Brown v. Board of Education (1954), Roe v. Wade (1973), Bush v. Gore (2000), and Obergefell v. Hodges (2015).   Check out this fascinating timeline from the ABA website detailing the events leading up to the ratification of Fourteenth Amendment and its subsequent ”transformation on American democracy.”

 

This Week is National Library Week!

NLW

This week the Ramsey County Law Library joins with libraries all across the nation in celebrating National Library Week. The purpose of this event is to celebrate the contributions of libraries and librarians everywhere, as well as to promote library use and support. National Library Week is a brainchild of the American Library Association (ALA), and our library is committed to the principles established in the ALA’s Library Bill of Rights.

Please come visit our library this week. Besides picking up a free pocket Constitution, you can register to win one of these three excellent legally-inspired books (links below)  We will draw the winners at the end of the day Friday (April 14), so register win this week!

Just Mercy: A Story of Justice and Redemption by Bryan Stevenson

Separate is Never Equal: Sylvia Mendez and Her Family’s Fight for Desegregation by Duncan Tonatiuh

Hillbilly Eulegy by J.D. Vance

 

Police officer writes traffic citationWe are proud of our local involvement with local criminal expungement resources, but expungement is not the last word in ”second chances.” For instance, you may have recently watched HBO’s Rock and a Hard Place, a documentary about Miami-Dade County offenders facing long prison sentences who get the chance to participate in a 16-week bootcamp-style regimen instead.  Each of the cadets on this show has been given a choice by their judge: incarceration or rehabilitation. From crew-cuts to pushups, this correction program is modeled on a tough, military-style code of discipline and order, which later includes anger-management instruction and vocational skills training. Creator Dwayne Johnson based this documentary on his own run-ins with the law as a youth.  See this excellent review of the show.

We are sometimes asked if Minnesota has such a boot camp-inspired penal model, and he answer is yes! Minnesota’s Challenge Incarceration Program (CIP) provides a similar military-style boot camp experience for offenders, which can potentially shave years from total time to be served.  Unlike the Miami model, the state Commissioner of Corrections selects these offenders, not all of which are eligible.   A 2006 evaluation showed Minnesota’ CIP to reduce an offender’s chance of reoffending with a new crime by 35%, and also to have reduced costs by over $18 million.

A similar but simpler “second chance” program was featured in last week’s news, this one meant for those with suspended drivers licenses due to unpaid tickets. In these cases, the offenders cannot afford to pay their traffic tickets, which leads to revocation or suspension of licenses. Faced with the choice of not being able to get to work or driving illegally in order to put food on the table, many offenders predictably choose the latter.  This Driver Diversion Pilot Program allows offenders to take special driving classes and schedule a payoff for their fines. In return they get their drivers license and insurance reinstated. This pilot program was launched by the legislature for selected cities in 2008, and there is currently a movement to get this program statewide and permanent. The hope is to keep a single traffic infraction from being the factor that ultimately pulls a person down to the point that they no longer have a job and now have a court record to hold them back. This kind of downward spiral is a significant problem, and was considered a major source of the tension behind the Ferguson riots.

 

DoorwayAnyone familiar with our work knows that we promote local criminal expungement resources. We host the Second Judicial District’s criminal expungement forms clinic and also direct people to VLN’s expungement seminars held throughout the community. By sealing eligible criminal records, expungement allows people get jobs or other opportunities that they couldn’t otherwise.

That is why we took interest in the decision handed down last week by the Minnesota Supreme Court.  In the case of S.A.M.  v. State of Minnesota, the petitioner  plead guilty to second-degree burglary back in 2003, and this felony conviction was deemed a misdemeanor for sentencing under Minn. Stat §609.13.  Petitioner was released from probation less than three years later, having completed all court-ordered conditions.  He petitioned for expungement of this offense in 2015, almost immediately after Minnesota’s expungement law was reformed. (To the casual observer, S.A.M. appeared to be the ideal expungement candidate:  With no other criminal history since the burglary, he had since gotten his bachelors degree, purchased a home, stopped drinking, stepped up to raise his child, and had long ceased contact with his co-burglars.) But the district court denied his petition, stating that he was ineligible under Minn. Stat. §609A.02, since he had not technically been “convicted” of a misdemeanor, and could not apply for expungement under subd. 3(a)(3) of the statute.  (Burglary is not on the list of expungible felonies, so S.A.M. could not petition under subd3(a)(5).)  The Court of Appeals affirmed.

The Minnesota Supreme Court analyzed the expungement statute and Minn. Stat §609.13.  Writing for a tight 4-3 majority, Justice Anderson concluded that the expungement statute and its “was convicted” language requires a court to look at a petititioner’s status at the time he “was convicted.”  S.A.M. was thus not entitled to seek expungement through the misdemeanor option.  It also held that the Legislature could not have intended for its incrementally-listed, successively harsher, expungement options to be upended by stayed impositions that get called misdemeanors only by virtue of Minn. Stat §609.13.  Justice Lillehaug wrote a forceful dissent, asserting that by the plain words of Minn. Stat §609.13,  petitioners felony conviction was “deemed to be for a misdemeanor.”  He further wrote that the expungement statute created multiple “doorways” for seeking expungement, which are not themselves”destinations.”  The law still required district courts to consider the severity of the underlying crime and any mitigating or aggravating factors.  And due to the ambiguity of the expungement statute, “was convicted” could just as easily be read through the lens of the “deemed” language of Minn. Stat §609.13.  Justice Lillehaug concluded with his hope that “the Legislature will clarify the expungement statute to reopen this door.”

The impact of this decision could be huge.  An amicus brief in the case noted that district court judges across the state granted more than 26,000 stays of imposition from 2008 to 2012, but some of these might have involved otherwise-expungible felonies.  If you have ever read the expungement law and found it unclear, this decision shows that you are not alone. If you are interested in seeking expungement and not sure how this decision affects you, it is all the more reason to come to an expungement clinic and discuss your case with a lawyer.