S.O.S. for Sexual Violence

file1801281015946Sexual violence awareness was never just for college campuses. The school’s-out days of summer, in fact, are when sexual assault numbers peak. Now is the time to become aware of Ramsey County’s own resource against sexual violence. A service of Ramsey County Public Health, S.O.S. Sexual Violence Services provides “free and confidential services for victims of sexual violence, their partners, families, friends and other concerned persons.” Their phone ( 651.266.1000) is answered 24 hours a day, seven days a week. Services include support groups, counseling, assistance with medical and legal issues, plus medical and legal advocacy for victims. Could your organization benefit from some education in this important area? They also provide informational workshops for both children and adults. (See brochure.)

Working closely with S.O.S. is the Ramsey County Sexual Assault Protocol Team (RCSAPT) This team provides trainings for member agencies, including Ramsey County’s first county-wide sexual assault investigator training and sexual assault nurse examiner training. They also develop written professional protocols for the handling of sexual assault cases, including that for police officers.

For more resources pertaining to sexual violence, see the Minnesota Department of Health Sexual Violence Prevention Program.  For more specific information plus statistics on sexual violence in Minnesota, see also their legislative report released earlier this year.

 

Royden S. Dane

Royden Dane 002

Royden Smith Dane was born on December 24, 1893 in the Minnesota Iron Range town of Biwabik.  He spent his youth working in logging and mining camps.    Here he learned to operate steam shovels and fire locomotives, and even held a boiler operator license for years.   Through his life he remained proud of his humble beginnings.

He entered the University of Minnesota, but left to join the Army when World War I began. After serving in this capacity for 18 months, he returned and entered the St. Paul College of Law.  He graduated in 1926 and was admitted to the bar that same year.  He spent 17 years in private practice before he was appointed as Municipal Court Judge in 1943.  He was elected to the Ramsey District bench in 1946 to fill the vacancy created by the resignation of Judge Hugo Hanft.  In 1956 he married Roseville teacher Fern Nelson.  Judge Dane suffered a heart attack in his chambers on February 4, 1959 and died four days later at St. Joseph’s Hospital.  He was 64 years old.

Judge Dane was a colorful storyteller, plus an avid horse trainer and conservationist.  He kept a duck farm between Lexington and Victoria Avenues, between County roads E and F (present day Shoreview).  He was also active in the American Legion and the Veterans of Foreign Wars.  Shown in the painting wearing a fresh flower and a friendly smile, Judge Dane just might be the most handsome image in the judge portrait collection.  Having died in office, Judge Dane wouldn’t have posed for a traditional portrait as part of a judicial retirement. The Law Librarian speculates that his portrait might have been based on a snapshot taken at his wedding three years earlier.

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SOURCES:

Bar Indorses Dane for Judge, St. Paul Dispatch, Oct. 1943

District Judge R.S. Dies, St. Paul Dispatch, Feb. 7. 1959.

Just How Does a Judge Relax?  St. Paul Pioneer Press, May 17, 1953

 

 

UNCONSTITUTIONAL!

file000704919536The Law Librarian would be amiss in not acknowledging the huge decision handed down by U.S. District Court Judge Donovan Frank in the case of Karsjens et al. vs. Minnesota Department of Human Services et al. today, better known as the Minnesota Sex Offender Program case. This case involved 700+ committed sex offenders who had essentially been locked up indefinitely under the veil of “treatment,” which the program residents claimed was neither adequate nor appropriate. They key factor is that their “incarceration” was never criminal, in fact, most of them had already completed criminal sentences.

This case has been observed by the Law Librarian before, but now Judge Frank has ruled that that Minnesota’s Sex Offender Program is in fact unconstitutional, stating that “there is something very wrong with this state’s method of dealing with sex offenders.” Over time, he has warned the Legislature that they must change the draconian program, or expect a court-ordered to do so. (It’s probably no accident that this ruling came shortly after the Minnesota Legislature had ended its last session.) Predictably, legislators have been in no mood to change the program, lest risking their electability. Read the MPR article about this ruling, plus the Judge’s Order.

Stay tuned for the next exciting development of this legal-political drama. Its next season will commence on August 10, when the Judge has scheduled a conference to begin planning suitable remedies for the situation. State officials, including Governor Dayton, have quickly assured Minnesotans that the state would defend its law and the sex offender program. Questions remain unanswered. Can any of these offenders be rehabilitated? Released? Which ones? What will the Minnesota Sex Offender Program look like in the future? Will the locked up “inmates” seek civil damages? We must wait and see.

 

Legislating Biology?

DSC06157As warm weather settles in, people are predictably taking walks, riding bikes, and enjoying other outdoor public activities. Of course, nature will eventually call on people as they enjoy her summer gifts. So this blog entry is about public restrooms. Not about the correct number of women’s facilities to men’s, or about where baby changing tables should be located, or about which restroom a transgender person should use, but about the simple availability of public restrooms.

In short, public restrooms seem to be in short supply in the places and times they are needed, especially if they are locked during certain time spans. This can leave people with few or no options when they desperately need to use them. The Minnesota Legislature sort of recognized this problem when it passed the Restroom Access Act, which essentially requires retail establishments to allow customers access to employee restrooms provided they have an “eligible medical condition.” This doesn’t help the medically ineligible, plus it holds businesses responsible for meeting a basic human need. (Restaurants provide restrooms for customers, of course, but you might not need it until 30 minutes AFTER you ate their blistering curry.)

If you are out walking your dog, Fido might conveniently opt to relieve himself on the spot (backed up by your baggie please), but don’t be tempted to follow suit. In Minnesota, one who relieves oneself publicly can be charged under the state indecent exposure statute (MN Stat.§617.23). St. Paul also has a municipal ordinance against public urination. No numbers are available as to how many people are so charged under these laws, but it would be interesting to see if there is any relationship between the proximity of public restrooms and the cases that were fully charged.

Perhaps there is a relationship between limited public restroom availability and possible Fourth Amendment implications. The old Katz vs. US 389 US 347 (1967) case was about the expectation of privacy in an enclosed phone booth with a door. (…Public phone stations then evolved to be doorless.)  In State v. Bryant 177 N.W.2d 800 (1970), the Minnesota Supreme Court extended Katz and held that this expectation of privacy extends to public restrooms, so perhaps there is concern that public restrooms encourage criminal activity by creating constitutionally-protected privacy zones.   There is also the concern that public restrooms may encourage the congregation of homeless and transient people, with Denver being a good example of one municipality’s struggle with this real-life problem.  But the leaders there discovered that when they opted out of public restrooms and all of their perceived problems (including drug use and prostitution), they were faced with a new problem in that areas without restrooms predictably got turned into restrooms.

Concerned citizens wishing to see more public restrooms may simply have to pressure their own local leaders, but also be aware of the mission and activities of the American Restroom Association.

 

Revenge a la Porn

Hand Holding Cracked SmartphoneIt appears that a Minnesota criminal statute from the 1890’s is obsolete for certain modern prosecution needs. In this age of smart phones, Minnesota’s criminal defamation law has been ruled overbroad and unconstitutional by the Minnesota Court of Appeals.

The appellant in State v. Turner (A14-1408) had posted sexually explicit solicitation ads of his girlfriend (and her teenage daughter) on Craigslist, which he admitted to doing out of retaliation. When charged with criminal defamation in the District Court of Isanti County, Turner filed a motion to dismiss said charges, asserting that the statute was unconstitutionally overbroad and vague. The Court denied Turner’s motion, and found him guilty of criminal defamation. But the Court of Appeals reversed, holding that the defamation statute was indeed overly broad and vague. So even though it described Turner’s conduct as “reprehensible and defamatory,” the Court did not uphold his conviction.

The Turner decision may be simplified as follows: In Minnesota, “revenge porn” cases are typically charged under criminal defamation statute MN Stat. § 609.765, which was drafted in the 1890’s and last revised in 1963. The problem is that the U.S. Supreme Court decided New York Times Co. v. Sullivan in 1964, which established the well-known “actual malice” standard for defamation suits.  That same year, the Supreme Court also established truth as a defamation defense in the case of Garrison v. Louisiana. Now the Turner facts have seemingly little to do with “truth,” and definitely much to do with “malice,” but unfortunately,  MN Stat. § 609.765 was never updated to reflect the standards of these groundbreaking Supreme Court decisions.

Does this recent decision leaves Minnesota without necessary tools for prosecuting this predictable sort of offense made possible by smartphones, Skype, Craigslist, YouTube, etc.? (It was suggested that Turner should have been prosecuted for disorderly conduct.) One Minnesota legislator is making it his project to usher in a new criminal legislation for these particular twenty-first century offenses. If successful, Minnesota would join 16 other states in having  specific statutes against “revenge porn.” The timing seems rather unfortunate, with the legislature is unlikely to take up this new issue in its special session. Still, its also unlikely to take another 52 years before Minnesota gets legislation to prosecute such modern misdeeds of the digital age. Read more about revenge porn law in this detailed Wake Forest University Law Review article.

 

DSCN3343Before we arrive at wedding season’s summer peak, people might as well know what resources exist for their divorce.  It is easy to find the official divorce forms on the Courts webpage.  Filling them out is even quicker and easier with the I-CAN! online interactive forms.  The language of the forms has been updated for gender neutrality. Likewise, it is easy to work with the Family Self-Help Center to have your forms reviewed, or to speak to a volunteer lawyer about your situation.  If people still have questions, they are more than welcome to check the information resources we have at the law library.  After all, divorce can be complicated, especially where children or real estate are involved.

One modern trend might come with unique complications of its own.  Here I speak of the growing trend of senior divorce (commonly known as “gray divorce”).  Even as divorce rates have stabilized or declined for other age groups, the  rate among people 50 and older has doubled since 1990.  This increase is due to numerous reasons, but is mostly just an evolution away from a time when an unhappy older couple automatically stayed legally married regardless of marital satisfaction or circumstances.   Regarding the complications, senior divorce is likely to involve more assets to divide and more health and retirement issues to account for.

Whether you are a senior facing divorce in your  near future, you may as well know that your divorce is less likely to be quick and simple.  Read Nolo’s Special Issues in Late-Life Divorce to get an idea of what you may face.   We also have Divorce after 50: Your Guide to the Unique Legal & Financial Challenges  (Nolo 2013) by Janice Green.  If you are an attorney that works with older divorce clients, valuing the couple’s unique assets may not be a simple task.  There is always the trustworthy Family Law Financial Deskbook (MN CLE 2d Ed. 2014) for your convenience, but be aware of some of the other resources we have available to help:

  • Valuation and Distribution of Marital Property (LexisNexis) by J. McCahey & B. Aldeman. (Three-volume set - annually updated.)
  • Valuation of Divorce Assets (ThompsonWest Rev. Ed. 2005) by B. Goldberg.  (Two-volume set – annually updated.) 
  • Valuation of Pensions in Divorce (Wolters Kluwer 5th Ed.) by M. Altschuler.  (One volume - annually updated.)

 

 

file0001179129151Mental Health Awareness Month isn’t just about those who might accidentally land in the criminal justice system. It is also a time to consider the mental health of lawyers. For those legal practitioners seeking to grow their own professional happiness and satisfaction, it turns out that money and prestige aren’t on the list of essential ingredients. A New York Times article recently showcased a Yale Law School study which revealed that it was those lawyers making the least money that scored highest on a happiness survey. These included most notably public defenders and Legal Aid attorneys. The findings of this study were similarly echoed in a Minnesota Lawyer blog.

Lawyers don’t necessarily score high points for happiness compared to other professions, given their high incidence of suicide and alcohol abuse. This negative mental state might also be built into the occupation itself, as lawyers must always be aware of that half-empty glass in the form of possible worst-case-scenarios. Our legal system is adversarial by nature where one party’s win must mean another’s loss. Also, a Westlaw search of lawyer disciplinary cases before the Minnesota Supreme Court reveals that clinical depression is often packed in the baggage of the disciplinee. (In case you’re wondering, Minnesota case law allows psychological afflictions to be a mitigating factor in disciplinary proceedings. See In re Wayhrich, 339 N.W. 2d 274 (1983)).  This lawyer predelection against happiness also appears to start early.  The Yale study concluded that 70 percent of the law school students were affected by mental health issues.  Additionally, this article from the Journal of Legal Education showcased a different study that revealed increasing levels of depression among law students as they progressed toward graduation. Basically, only eight percent of students showing signs of clinical depression upon entry, but 32 percent did by the end of first year, and 40 percent by graduation. (Here’s another provocative theory: The growing student debt load that students accumulate during law school might leave them increasingly susceptible to depression, especially as they face an iffy job market.)

If your mental state has deteriorated to the point that your work quality could be affected, see about getting some help through an organization like Lawyers Concerned for Lawyers.  Are you a law firm associate on the fast track to partnership hoping that true happiness will finally enter your life when you make partner?  An author of the Yale study believes that this likely won’t prove true. His conclusion from the findings is that prestigious firm jobs simply do not provide the “feelings of competence, autonomy or connection to others—three pillars of self-determination” that public service-oriented jobs do. But you don’t have to leave the firm partner track to take advantage of these happiness factors. For an afternoon of public service, consider volunteering for our Housing and Conciliation Court clinic. Our volunteer lawyers find that the offering answers and advice to our community’s residents who need it most to be an immediately rewarding and satisfying experience.

 

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May is National Mental Health Awareness Month.  If people don’t make an automatic connection between mental illness and law, perhaps they should.  A study by the U.S. Department of Justice’s Bureau of Justice Statistics (BJS) from 2006 showed that 64% of local jail inmates, 56% of state prisoners and 45% of federal prisoners had symptoms of serious mental illnesses. According to NAMI Minnesota (National Alliance on Mental Illness), about 25% of the men and 65% of the women in Minnesota state prisons receive treatment for mental illnesses.  These numbers would indicate that jails and prisons have become the default landing place for those with mental illnesses.  This is further demonstrated by this state-by-state survey from the National Sheriffs’ Association.

Ideally, people with mental illnesses get the help they need outside of the court system, but too often this is not the case.  The end result is that people frequently wind up in the criminal justice system directly or indirectly as a result of untreated (or inadequately treated) mental illness.  It is fortunate that our justice system is becoming more aware of this reality, and that these cases need more than traditional criminal justice and penal tools.  Ramsey County’s Mental Health Court Program (RCMHC) is one of 3 mental health courts in the state of Minnesota, and was created so that the 2nd Judicial District could deliver “more specialized and individualized” justice to mentally ill criminal defendants.   For an inside look, see this recent William Mitchell Law Review article written by Ramsey District Judge John Guthmann about the RCMHC and mental health courts in general.

Are you an attorney working with a mentally ill client and need to know how best to advocate with their special needs in mind?  There are some great resources online, especially from NAMI Minnesota.  These include ”Advocating for People with Mental Illnesses in the Criminal Justice System”  and “Juvenile Justice: Advocating for a Child with a Mental Illness.”  Here in the law library we now have the Mental Disability Law: Civil and Criminal (Lexis 2nd Ed.) treatise set by Michael Perlin.  We also have the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders: DSM-5 for your convenience, as well as books that address the legal uses and interpretations of the Minnesota Multiphasic Personality Inventory (MMPI).  Finally, you might find this simple issue spotting list helpful.

 

file2801302980272The subject of adoption typically conjures the image of a childless couple facing the lengthy administrative ordeal in order to become parents of an infant or small child. The less visible reality is often an adult who wants to step up and be the official parent to a child they already know, or of an adult who marries a parent and wants to legally adopt the step-child.

Adoption has an interesting history in Minnesota. There were the orphan trains that brought parentless children from impoverished eastern cities in hopes that they might be adopted by Midwest farm families (that often needed the labor). In 1917 Minnesota enacted legislation closing adoption records to public inspection. This was done in part to protect the biological mother from the era’s “shame” of having a child out of wedlock. (Probably also to protect from shame of BEING born out of wedlock, and the shame of presumed infertility for the adoptive parents.) There was also the fear that biological families might look up adopted children and taint them with their negative influences. Biological fathers were typically bypassed in Minnesota adoption proceedings prior to passage of 1974 legislation that recognized an unmarried father’s interest in the child, with legal rights to be protected. Access to records also became more open over time, corresponding to the social forces that shrank the shame factors as well as the demand for genetic information as it related to health. This interesting look at the evolution of adoption law in Minnesota can be found in this William Mitchell Law Review article by Wright S. Walling.  Also consider the book Family Matters: Secrecy and Disclosure in the History of Adoption (Harvard U. Press 1998) by E. Wayne Carp. (This is available through the St. Paul Public Library.)

If you are considering adoption, either as a biological or as an adoptive parent, there is a wealth of information to aid your research. Start by reading Minnesota Statutes §259.20 – §259.89. Information about completing adoption’s legal processes can be found in this brochure from the Minnesota Department of Human Services.  Be aware that adoption is a serious legal undertaking, however, and one should get the advice of an adoption lawyer if they are considering it. Are you an attorney who doesn’t usually practice adoption law, but has a client in one of the above scenarios that wants to make their parenthood status official? The law library has extensive family and adoption law resources, but the most simple and practical might be Adoption Law: Start to Finish (NBI June 2013). This tool looks at different types of adoption, presents applicable Minnesota statutes and rules, and even offers guidelines for dealing with unexpected obstacles.  Legal forms are also included.

Anyway, Happy Mothers Day to all mothers, regardless of how they got that title.

 

We know that modern habeas corpus law has its roots in the historical Magna Carta, but what is the role of habeas corpus in modern law? Who may petition for such a writ? What tools are available for seeking this writ and where are can they be found?  The writ of habeas corpus is clearly specified in both the U.S. Constitution (Article I Section 9) and the Minnesota State Constitution (Article I, Section 7). Minnesota statutory law specifically outlines the provisions for a writ of habeas corpus under M.S.A. §589. Basically speaking, “[A] person imprisoned or otherwise restrained of liberty, except persons committed or detained by virtue of the final judgment of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon the judgment, may apply for a writ of habeas corpus to obtain relief from imprisonment or restraint.”  Conveniently, M.S.A. §589.05 even provides form language for seeking state habeas corpus relief.

Habeas corpus is probably more commonly  understood in its federal application, as a remedy for  a person in custody pursuant to a state court  judgment to petition the federal courts for relief, and who has exhausted all of their state remedies. This application of habeas corpus as a legal remedy provided under 28 U.S. Code §2254, plus its historical significance, is described in detail by the U.S. Supreme Court  in the case of Fay v. Noia 372 U.S. 391 (1963).  Forms to file for the different federal writs of habeas corpus (including §2254) are available at the website of the U.S. District Court of Minnesota.  This page offers two different habeas corpus petition packets (based on different sections of  U.S. Code), so one should carefully read the enclosed instructions prior to making their final selection.   If you are an attorney embarking on a habeas corpus filing, the library has some additional resources that might help.  April 27 2015 001

  • Allan Ellis’s Federal Prison Guidebook (James Publishing 2015) by Alan Ellis et al. This is a book of programs and policies for 105 prisons, including educational, vocational, and apprenticeship opportunities, UNICOR, counseling and rehabilitation services, fitness and recreation facilities, religious services, telephone policy, accommodations in surrounding area, and much more.  There is an entire chapter providing guidelines for preparing habeas corpus motions.
  •  Federal Habeas Corpus Practice and Procedure (LexisNexis 6th Ed. 2011) by Randy Hertz and James S. Liebman  This is an authoritative and practical 2-volume treatise with practical advice and expert analysis from practitioners and subject matter experts.  The treatise and the accompanying supplement includes the latest habeas corpus case law as well as important statutory changes.

Of course, don’t miss our Law Day event this Thursday (April 30) which will feature a special talk on habeas corpus.