Called to Bear Witness

courtroom witness standAn article in last week’s Pioneer Press covering the Minneapolis Black Lives Matter protests describes the work of a core element of the National Lawyers Guild (NLG). In particular, it highlighted the role of their legal observers, whose purpose is to “monitor law enforcement and gather evidence.” To do this, they are instructed to watch the police officers, take detailed notes, and avoid distractions. They also take documentation in cases of arrests.  They are also under strict instruction to avoid distractions, discussions, and especially arguments. (A legal observer in a jail cell is basically useless.)

This spotlight on the legal observers illustrate the fact that the best legal weapons are sometimes not lawyers or law books, but eyes and ears. The NLG knows that the strength of any case might boil down to its witnesses and the evidence they collect. Check out this NLG Legal Observer Training Manual.  Note that it presents tools that anyone might find useful if they need to document a brewing situation which might wind up in court. In particular, see the detailed instructions for taking notes.

The need for a certain kind of “legal observer” certainly isn’t limited to protests. Situations with potential legal ramifications that need documentation might be taking place in your home, community, or workplace. Of course, you may never intend to be a witness and suddenly find yourself in a situation where you might become one (or already have). Nowhere is this more true than for crime victims.  The NLG legal observer tools and guidelines might prove useful for your own needs.  If you ultimately wind up being called to court as a witness, you know that you must speak clearly, simply, and truthfully on the stand.  There are additional guides available in case you want to consult something else to prepare, including this one from the Wadena County Attorney’s office and another from Stearns County.  For more information on how to be a good witness, check out this guide from  If you are testifying in federal court, check out this guide from the U.S. District Court of Minnesota.

Don’t be nervous!  Our justice system depends on you!

Pierce Butler

Pierce Butler in an 1899 Ramsey County Bar Association poster

This week marks the anniversary of the passing of one of Minnesota’s most overlooked historical legal figures. He was none other than the first U.S. Supreme Court Justice from Minnesota, who spent his early professional years prominently in the Saint Paul legal community.

Pierce Butler was born in a log cabin in Waterford, Minnesota (about 35 miles south of Saint Paul) to Irish Potato Famine immigrant parents. He was the sixth of nine children. Schooled in Latin and German by his father, young Pierce began teaching at the county school when he was fifteen. He attended high school at Carleton College, and then enrolled in the regular academic program at Carleton after being rejected for admission by West Point. Upon graduation Butler took a legal apprenticeship with the firm of Pinch & Twohy of St. Paul, in lieu of enrolling in law school. (He was one of the last lawyers to be trained in the old tradition of “reading law.”) He was admitted to the bar in 1888. He married Annie M. Cronin (sister-in-law of his boss) in 1891. He and Annie eventually had eight children.

Butler served as assistant Ramsey County Attorney under Thomas O’Brien, and was elected Ramsey County Attorney himself in 1892. After serving two terms, he returned to private practice in Saint Paul in 1896. He was fond of debates with his friend (and later Judge) Frederick Dickson. Butler was an ardent backer of economic property rights and opponent of government intervention.  He had an adversarial courtroom style that earned him the name “Fierce Butler,” for he was known to grind witnesses on the stand to bits. In 1908, Butler was elected President of the Minnesota State Bar Association.  He represented numerous railroads before the U.S. Supreme Court (including those held by James J. Hill). He also became close friends with William Howard Taft as the latter was appointed to the Supreme Court. Through Taft’s influence, Butler himself was nominated for the United States Supreme Court by President Warren Harding in 1922. Butler had served on the Board of Regents at the University of Minnesota, and his  opposition to “radical” and “disloyal” professors made him a controversial Supreme Court nominee, with both progressive groups and the Ku Klux Klan opposing his nomination. (He was Catholic.)  Butler was nonetheless confirmed by the Senate on January 2, 1923.

As a Supreme Court Justice, Butler  continued to be an ardent supporter of property rights, and a fierce opponent of government search and seizure where criminal defendants were concerned. (See his dissent from the opinion expressed in Olmstead v. United States which upheld federal wiretapping of telephone lines.) Butler was nicknamed one of the conservative “Four Horsemen of the Apocalypse” for his unwavering opposition of FDR’s New Deal policies.  Predictably he became a prolific dissenter as the Court grew more liberal, dissenting in 73 cases from 1937 to 1939He died on November 16, 1939 at the age of seventy three.

Forgive yourself if you were unaware of Butler’s legacy, which is rather elusive.  His opinions tended to be on technical areas of law such as utilities regulation and taxation, which don’t generate the same level of public interest as other areas of law.  He had many friends, but was a private person who eschewed public engagement. (Upon his deathbed, he ordered his clerk to destroy anything Court related, other than published opinions.)  Much of this information here can be found in an excellent look at Butler’s life written by David R. Stras and published in the Vanderbilt Law Review in 2009.  (This article can be a delicious history read for your Thanksgiving break!)


The Racially-Tailored Jury

Courtroom 055The U.S. Supreme Court is currently shining its legal beam on the practice of peremptorily striking potential jurors from panels due to race.  This practice doesn’t openly happen in our modern courts, of course, due to the Court’s race-neutral mandate per its 1986 decision in Batson v. Kentucky (476 U.S. 79).  In Batson, the Court held that the Equal Protection Clause forbids prosecutors from challenging potential solely on race, and that prosecutors could be required to provide a race-neutral explanation when using a peremptory challenge to strike potential black jurors.  It is because of Batson that Minnesota has a three-step process to analyze whether a peremptory challenge was racially motivated. (See Minn.Rules.Crim.Pro 26.02 for jury selection requirements in criminal cases, and the allotment of preremptory strikes and challenges to peremptory strikes related to race or gender.)

Despite Batson, peremptorily striking black jurors is still shockingly common.  The current case of Foster v. Chatman features a death-row plaintiff who could win a new trial nearly twenty eight years after his original sentence. Timothy Tyrone Foster was sentenced to death by an all-white Georgia jury in 1987 for the murder of an elderly white woman, after all the potential black jurors had been stricken from the panel. The prosecution’s original jury selection notes from Foster’s sentencing have become the attention-grabbing exhibit in this case, featuring color-coded highlights with blatantly race-specific distinctions.  None of the Supreme Court justices has seemed pleased by this evidence, nor with explanations offered by the defense.  But prosecutors aren’t the only attorneys guilty of this practice, and they are likely not the only players behind a similar jury for a very different case currently being tried in Oklahoma.  Former police officer Daniel Holtzclaw is on trial for the sexual assault of thirteen black women while he was on duty.  For his alleged crime, Holtzclaw is being tried by an all-white jury of mostly men. (Similar to the race issue, it wasn’t so long ago that some courts needed a Supreme Court mandate to get women on their juries.)

Obviously, race is factor which inevitably bears on personal experiences, and can thus shape the way a potential juror might view the criminal justice system.  It’s no surprise that attorneys might try to racially-customize a jury, which is why Batson was necessary.  It has been asserted that the only solution to this race-bias danger is to eliminate the peremptory challenge practice in jury selection.  Yet peremptory challenges and its role in jury selection are a time-honored legal strategy of our justice system dating back to the common law. (Indeed, we offer resources in our library specifically on jury selection.)  Given this tradition and the demonstrated inadequacy of Batson, what is the real-world solution needed to ensure fair trials?  How likely is it to come from the Supreme Court as it considers the Foster case?



Hand holding keyThe Twin Cities rental market has been tightening up since last summer, so it’s no surprise that people seeking to rent apartments might find past eviction judgements holding them back. Landlords are increasingly in a position where they can cherry-pick their renters, to the detriment of those who might have court eviction (unlawful detainer) records against them.

Minnesota law does allow certain unlawful detainer records to be sealed from public access, but be aware that the unlawful detainer expungement statute doesn’t have quite the broad sweeping power that the better-known criminal expungement law has.  Evictions can only be expunged when the landlord’s case was “sufficiently without basis in fact or law,” it is “clearly in the interest of justice,” and there is little or no reason for the public to know of this case.  (See Minn Stat. 484.014 subd. 2.) If you were evicted last year for uncontested failure to pay rent owed, the expungement statute likely cannot be applied.  Not all such situations are hopeless, however, for rental records can only be searched seven years back by tenant screening companies as per the Fair Credit Reporting Act. Your ten-year-old eviction is less likely to be a problem than last year’s.

Is expungement the right solution for you?  If not, what other options are there? Depending on the situation, you may decide to be up front with a potential landlord rather than hoping they won’t learn about last year’s eviction (which they likely will). You may be better off explaining that you lost your job and couldn’t pay the rent, but that you now have a new job.  For advice and help in deciding which approach is best for you, consider coming to either our Housing and Conciliation Court clinic or the SMRLS workshops for unlawful detainer expungements at the Rondo Outreach Library. The attorneys at either clinic can help you assess your options. Meanwhile, you might find many answers to your questions through this Legal Aid fact sheet on expunging an eviction case.


Driving Under the Influences (Distracted Driving)

vehicle control panelMuch media commotion ensued last week when a local driver was pulled over by a state trooper for drinking coffee behind the wheel, according to the driver.  (The facts are in conflict, for the trooper stated that the driver was actually pulled over for not wearing a seatbelt.)  When you think about it, drinking coffee on the road certainly can be dangerous. We’re talking about piping-hot fluid, into which people will try to deposit packets of flavors, with flimsy lids that frequently malfunction. Probably a good number of drivers on a given weekday morning are “driving under the influence” so to speak, but many of those drivers will attest that their safe driving depends on that early morning caffeine boost.

Back to the driver at issue, is it illegal to drink coffee while driving in Minnesota? What activities are allowed while operating a motor vehicle?  Texting is out, but using your voice-activated phone is generally permitted. (For teens, no using cell phones behind the wheel under any circumstance except 911 calls.) Drivers cannot wear headphones, or be watching a mobile television, but consuming food or beverages seems to be acceptable.  But obviously one cannot properly control the vehicle when fumbling with a phone, a cheeseburger, or tending to  infant passengers.  And whether prohibited by statute or not, there is no end to the list of activities that can potentially make your drive dangerous.  So what are the legal ramifications of these various driving distractions, including coffee cups, phones, babies, etc.?

Basically, MN Stat 169.13 prohibits operating a vehicle “carelessly or heedlessly in disregard of the rights of others, or in a manner that endangers or is likely to endanger any property or any person, including the driver or passengers.” It might seem rather vague, but according to the Minnesota Department of Public Safety, distracted drivers can be ticketed under this statute.  Essentially, it is the state of being distracted that creates the driving risk, rather than the exact activity serving as the distraction.  To speculate, if you are driving with your eyes and attention on the road, following all the signs, and responding appropriately to other vehicles, then the coffee by your side probably isn’t a big deal.  If you just rear-ended someone due to spilling hot coffee in your lap while trying to put sugar in it, then you might be in a different situation (and might want to contact an attorney).


The Swerving Path of Minnesota DWI Case Law

Traffic StopIt’s easy to get confused by the evolving state of Minnesota DWI case law.  For the last three years, it has been something of a moving target for judges and lawyers. The most recent decision, last week’s State v. Trahan, adds yet more wrinkles to the wash.  Briefly, the Minnesota Court of Appeals held warrantless blood tests to be unconstitutional, as are criminal charges based on one’s refusal of said blood test.  Trahan is best analyzed in perspective of other groundbreaking DWI case law of recent years:

Missouri v. McNeely (2013). The U.S. Supreme Court held a warrant is needed before drawing blood from DWI suspects except in certain emergencies. This decision trumped the prior Minnesota standard established in the case of State v. Shriner, which held that dissipation of blood alcohol creates the exigent circumstance to justify a warrantless blood draw (provided that officers have probable cause to believe that the defendant committed criminal vehicular homicide or operation.) A groundbreaking case, but the analysis was only beginning for Minnesota.

State v. Brooks (2013). Following on the heels of McNeely, the  Minnesota Supreme Court concluded that blood and urine samples taken from the defendant without a warrant were constitutional, because he “consented” to the tests at issue (despite being told that refusal was a criminal offense.) The Court concluded that in light of Brook’s actions (and that his lawyer was advising him from the passenger seat), plus Minnesota’s implied consent law (anyone who drives a motor vehicle “consents” to a chemical test when certain conditions are met), Brooks had “consented” to the searches at issue.

State v. Bernard (2015). The Minnesota Court of Appeals upheld warrantless breath tests as permissible as a search incident to a valid arrest. It also upheld the constitutionality of Minnesota’s implied consent statute as applied to breath tests, in cases where the officer requesting the test would have had grounds to obtain a valid search warrant requiring the driver to submit to testing. The Court did not analyze the constitutionality of warrantless blood tests, however, basically setting the stage for Trahan.

State v. Trahan (2015). The Minnesota Court of Appeals then held that the search-incident-to-arrest exception did not justify a warrantless blood test, as a dissipating blood alcohol level was not an exigent circumstance.  Thus, a warrantless blood test would constitute an unreasonable search. The Court also held that the implied consent statute criminalizing test refusal was not narrowly tailored and thus violated defendant’s right to due process. The invasive nature of testing blood rather than breath was a distinction from Bernard.

This represents some quickly-changing case law for legal professionals to stay on top of (not to mention for non-professionals who might find themselves pulled over).  Use the links provided to brush up on the analyses of these cases.  Then stay tuned, as the Minnesota Supreme Court is likely to weigh in on the issues before long.

library book drop

Library book drop on 1st floor of Courthouse

In this post, the Law Librarian must get rather “librarian” over the subject of overdue library books.  Private bar members comprise our largest group of borrowers, and we are happy to report that most are very conscientious about the safe care and timely return of our books. We are faced with a challenging problem, however, in the cases where books are either not returned, kept far past their due date, or brought back damaged.  The problem becomes more serious (i.e. expensive) when measures such as phone reminders, written reimbursement demands, and suspended borrowing privileges have failed to get the materials back.

Theoretically, we might have some strong-arm options to ensure safe and prompt return of our books.  After all, damage or detention of library materials is a petty misdemeanor under Minnesota law.  It is also professional misconduct in Minnesota for a lawyer to either “commit a criminal act that affects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer,” or to “engage in conduct that is prejudicial to the administration of justice.”  Minn.R.Prof.Conduct 8.4(b) and 8.4(d).  There is always the option of seeking a judgment of money owed in conciliation court.  This was once done by the Hennepin County Law Library, wherein a lawyer’s failure to repay outstanding library fees ultimately became part of a disciplinary case against him. The State Bar of California even disbarred an attorney for offenses that included failure to return overdue books to the Fresno County Law Library. One memory even survives of a county law librarian in Fort Worth, Texas who sent taxis for overdue books and billed law firms for the necessary fares.

Measures like this shouldn’t be necessary. Our preference is not to threaten borrowers with litigation or physical repossession of materials. We  prefer to remind users of why we are here, and that our purpose requires that we get overdue materials back.  Minnesota county law libraries are organized and governed under Minn. Stat. §134A. The terms of this statute allow our library a home in the courthouse, and provide for our heat, light, and cleaning service. Court filing fees are also collected to fund the library’s operation. In short, we subsist on public funds so that we might provide a much-needed public service which “shall be free.” (To compare, other states might have county law libraries operating on a subscription, or “members only” basis.) We think these statutory provisions for free law library service make Minnesota special, but it requires that our materials be fairly shared among our users.  This is simply not possible when our books disappear, are kept for months on end, or are repeatedly “sat on” for lengthy periods of time by a single user.

So please.  Return your library materials.  We need them back so that others can use them, too.


CourtroomLast week saw the retirement of 2nd Judicial District Judge Joanne Smith marked by a surprise party that honored her service, especially her key role on the Ramsey County Adult Substance Abuse Court. Per the Pioneer Press article, Judge Smith has spent the last 13 of her 32 years on the bench administering the adult drug court, which she herself founded in 2001. Since that time the drug court has become a national model for other drug courts. Many graduates of the program attended to pay their respects and express their personal gratitude to Judge Smith.

The article did not state whether or not Judge Smith had met the age of mandatory retirement under Minnesota law for judges. Nonetheless, this interesting subject is worth a look following her event. It’s probably fair to say that MN Stat. §490.125 brings more Minnesota judges to retirement than any other singular factor. This mandatory retirement statute, which requires Minnesota judges to retire when they turn 70, was particularly visible this past summer with the retirement of popular Minnesota Supreme Court Justice Alan Page.

Is Minnesota’s law a curiosity? Clearly the U.S. Supreme Court has no such retirement age. Oliver Wendell Holmes was 90 when he finally stepped down from the Supreme Court.  Numerous other states have mandatory retirement ages for judges of 70 or 75, but many also have none. Among the “none” count is Wisconsin, which used to have a mandatory retirement age of 70.  In 1956, Minnesota legal scholar Maynard Pirsig analyzed a possible mandatory retirement age for judges at the end of his article “The Proposed Amendment of the Judiciary Article of the Minnesota Constitution.” (40 Minn. Law. Rev. 815, 840). In his article he stated that a constitutionally-provided retirement package might convince most (but not all) aging judges that it was in their best interest to retire. Pirsig also asserted that “[N]o one is more tenacious in his belief in his own competence than an aging judge.” (He himself would have been 91 years old when he retired from his job as a professor at William Mitchell College of Law.) The Minnesota Constitution was subsequently amended in 1956, allowing the legislature to establish a mandatory retirement age. The legislature would do exactly this in 1973 as part of the Uniform Judicial Retirement Plan.

One judge resisted this mandatory retirement age with all he had, ultimately taking his case to the Minnesota Supreme Court. His arguments came up short, however, for the Court held that “[T]he legislative selection of the age of 70 as the optimal time for an individual’s retirement constitutes a reasonable exercise of its authority and appears to most readily promote the state’s interests in the provision of benefits in exchange for a date certain for relinquishment of office.” (Saetre v. Minnesota, et al. 398 N.W.2d 538 (1986).  So according the Saetre opinion, firming up judge retirement provisions was a special priority of the Legislature back in 1973.  To speculate, there may have been a time that many judges lacked adequate retirement funds and felt that their only option was to go on judging into their sunsets. One can also imagine that judges who either had long careers on the bench, and/or who had practiced in less lucrative areas of law would have lacked significant retirement security of their own.


Human Trafficking in the News

Linda Miller

Civil Society Founder and Executive Director Linda Miller

Human trafficking is an issue  that never goes away. This sort of crime often involves the most young and vulnerable victims, with perpetrators who are often established middle-aged men. Trafficking often takes place quietly over the internet in the heart of our own local communities. The problem becomes even harder to fight when it involves practices that are shrouded and protected by social or cultural norms.

The cultural complication is central in a case at the U.S. District Court of Minnesota, which recently made national news. In the case of Panyia Vang v. Thiawachu Prataya et al, the plaintiff is seeking statutory damages under “Masha’s Law” (18 U.S.C. 2255).  Basically, Masha’s law is federal civil legislation offering victims the chance for monetary relief in cases such as child pornography, child sex tourism, and child sex trafficking.  Vang’s attorney, Linda Miller, believes this is the first case to use Masha’s Law to recover monetary damages from child sex tourism.  Read the tragic and shocking story that appeared in a recent issue of the Star Tribune describing what happened to Panyia Vang as a fourteen-year-old that ultimately led to Miller filing this case in 2011.  Combating this kind of abuse is the professional mission of Miller (pictured here), who is the founder and executive director of the local organization Civil Society.

If you think someone is a victim of human trafficking, call the National Human Trafficking Resource Center at (888) 373-7888.  Do you represent victims of human trafficking in your regular or pro bono legal practice?  Consider checking out our copy of Representing Survivors of Human Trafficking (ILRC 2nd) by I. Lee and L. Parker.


Getting Schooled in Education Law

ClassroomWith area schools back in swing, legal professionals know that education and all of its related issues can pose a landmine of legal challenges. From issues that include school funding, security lockdowns, religious expression, and student disability matters, many areas of law are touched upon in a typical school day.   These legal areas can include, but are not limited to contracts, criminal, and constitutional law. Of course, if you are researching a legal issue related to education, you already know that much of education is under state and local control.  Your research will likely require consultation of the applicable Minnesota Statutes, as well as the  Minnesota Administrative Rules for the Minnesota Department of Education.   You might also want to consult the policy manuals of your local school board and minutes of their meetings.   In addition, the State Law Library also provides a handy list of resources specific to education law. We also have local CLE binders as on the subject, as well as some other unique print materials:

  • Special Education and the Law: A Guide for Practitioners (Corwin, 3rd Ed.) by A. Osborne et al. Special education is an area of law impacted by significant court decisions and changing legal developments.  This book can provide a road map to meeting today’s special education requirements. Helpful analysis in specific areas such as IDEA, discipline, parents and students rights, and preventive suggestions on avoiding litigation.  More information is available from the publisher.
  • 2015 Deskbook Encyclopedia of American School Law (Center for Education & Employment Law). Its publisher describes this book  as “a one-stop reference guide that helps you learn how courts are deciding school cases, what the legal issues are and how your colleagues across the country are faring.”  Case summaries are provided in areas covering employment practices, school operations, academic practices, students with disabilities and  more.  This resource is reprinted annually for the most up-to-date coverage.
  • The Principal’s Quick-Reference Guide to School Law: Reducing Liability, Litigation, and Other Potential Legal (Corwin, 3rd Ed.) R. Hachiya et alThis book presents information that shows school principals how to address issues including:  student use of technology, zero-tolerance discipline policies, and school safety and violence prevention.  It also includes useful insights for collaboration with other school personnel for addressing these issues.
  •  Education Law: An Essential Guide for Attorneys, Teachers, Administrators, Parents, and Students (Lawyers & Judges Publishing Company, Inc. 2nd Ed.) by  M. Gerstein & L. Gerstein.  This substantial treatise understands how the incidents that arise in school touch on the many areas of law mentioned previously. How do these broad legal practice areas intersect with state and local laws? This broad treatise can be your road map to putting the details of your particular education issue into the right legal framework for your continued research.

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