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.

 

For Women’s History Month, let’s consider an oddly sexist chapter in our local past. As this blog has pointed out before, our state and community have not always been so progressive and forward-thinking as we may like to think.  In this particular chapter, the St. Paul City Council had passed Ordinance No. 8604 back in 1945, which prohibited women (except licensees, wives, or managers if the licensee was serving in the military) from working as bartenders.  (One can only speculate as to the council’s motives, but V-E Day had been declared only three days earlier.)  Clara Anderson had worked as a bartender at the Frederic Hotel in St. Paul for nine years, but was barred from continuing due to this ordinance.  Ramsey District Court Judge Carlton McNally denied her request for a temporary injunction to delay operation of the ordinance, which Ms. Anderson claimed was unconstitutionally discriminatory.  In the resulting case of Anderson v. City of St. Paul et al., the Minnesota Supreme Court affirmed the constitutionality of the ordinance in a tight 4-3 decision The Court noted that the U.S. Supreme Court had previously held that selling intoxicating liquor for beverage purposes was not a right protected by the Fourteenth Amendment.  But it also applied the standard Fourteenth Amendment equal protection litmus test for discrimination, holding that the council need only meet the standard of having a “rational basis” in making its gender-based distinction, and that it had so met this need.

This case illustrates an earlier interpretation of the Fourteenth Amendment and its equal protection clause where gender is concerned. The U.S. Supreme Court wouldn’t establish a heightened scrutiny standard against gender discrimination until Craig v. Boren, wherein the Court struck down an Oklahoma statute allowing 18 year-old women to purchase 3.2 beer, but not 18 year-old men.  Offending Ordinance No. 8604 has since been stricken from the books, for St. Paul Ordinance Sec. 183.01 now declares that “…[t]he public policy of Saint Paul is to foster equal opportunity for all to obtain employment, education, real property, public accommodations, public services, contract and franchise without regard to their race, creed, religion, sex, sexual or affectional orientation, color, national origin, ancestry, familial status, age, disability, marital status or status with regard to public assistance, and strictly in accord with their individual merits as human beings.”

Attorney Don Lewis

Attorney Don Lewis

The American Bar Association has designated “The Fourteenth Amendment: Transforming American Democracy” as this year’s Law Day theme.  At this time we are pleased to announce that our own Law Day CLE event will take place on May 4 at 3:00 PM here in the Court House in partnership with the Ramsey County Bar Association (RCBA)We are extra-pleased to announce that Minneapolis attorney Don Lewis will speak on Equal Protection of the Laws: The Journey from Jim Crow to Gay Marriage.  Mr. Lewis is no stranger to the Second Judicial District, having grown up in St. Paul and recently serving as a special prosecutor for the Ramsey County Attorney’s office.  Visit the RCBA website for more information, then mark your calendars for this engaging event!

 

Homeless woman and shopping cartThis week brought the sad news that despite improvements in the rest of the metro area, poverty rates in Ramsey County and St. Paul have been rising.  Specifically, “[s]lightly more than 40 percent of St. Paul residents live within 185 percent of the federal poverty threshold, earning less than $44,875 for a family of four in the period studied (2011 to 2015),” an increase from 38.7 percent in the previous five-year period.  This report comes from the Metropolitan Council, and is available online.  And yet this news report on local poverty levels is not surprising next to last year’s news that homelessness was also rising in Ramsey County

Poverty and homelessness are large and overlapping problems without easy solutions, both for the community and for affected individuals.  But there is at least a local tool that can assist those seeking emergency shelter.  Ramsey County Coordinated Access to Housing and Shelter (CAHS) provides housing services and support for Ramsey County families, single adults and unaccompanied youth who are homeless or at imminent risk of becoming homeless.   With CAHS, families seeking emergency shelter and supportive housing in Ramsey County no longer need to contact every shelter and housing provider for openings.   Rather, by completing a CAHS assessment, homeless families and individuals can get direct assistance in finding an available emergency shelter.  Access CAHS by calling United Way 2-1-1, and they can help you get the most appropriate referral for housing program support based upon the needs of your family.  In addition, if you are a Ramsey County resident facing eviction due to a legal issue with your landlord, our Tuesday afternoon legal clinic is available for you! 

 

 
Reporters at the Minnesota State Law Library


Some of these early reporters at the Minnesota State Law Library show fire damage.

For Minnesotans, March 1, 1881 is perhaps a “day that will live in infamy,” for it was on this date that the Minnesota Capitol burned to the ground.  And although though the law librarian profession has no official hero or mascot, this date marks the true story of someone who might be deserving of such an honor.

This disaster took place toward the very end of the legislative session, when both the House and Senate were in late evening sessions trying to get legislation wrapped up.  This was likely why no one had noticed that the outside common areas had filled with flames.  Someone hollered a fire alert to the Senate, but the House only got the message after a flaming ember fell down from the ceiling.  Nearly 300 people managed to escape by a single narrow stairway, while others had to escape via windows with ladders and ropes. The entire story is dramatically captured in this old article from the Minneapolis Tribune, reprinted in the Star Tribune.

Predictably, many books and irreplaceable records were lost in this fire. “The most serious loss…is the state library, which contained 12,580 volumes. But a few lucky books did survive, due to the heroism of a one-armed janitor named Charles Chappel.  He hauled loads of books out of the burning building in his single arm.  When a falling beam hit him in the head he grabbed one last armful and finally left the building for good.  Unfortunately, little information about Mr. Chappel survives today.  With the help of ancestry.com, a federal census report from 1880 lists a 26-year-old Chas E. Chappel that was marked as “maimed, crippled, or otherwise disabled.”  Another from 1920 lists a 76-year-old Charles E. Chappel living in St. Paul that worked as superintendant of the State Capitol.  Though it’s very likely, it cannot be stated with absolute certainty that these records refer to our heroic book rescuer. Nonetheless, today we can give a moment of appreciation for this unsung champion of what was probably Minnesota’s earliest government law library.

********

Additional Sources:

Darrell Ehrlick, It Happened in Minnesota (Twodot, 2008).

Ben Welter, Minnesota Mayhem:  A History of Calamitous Events, Horrific Accidents, Dastardly Crime & Dreadful Behavior in the Land of Ten Thousand Lakes (The History Press, 2012).

 

 

boy looking at flagYou may have caught the recent story of nearly 900 immigrants who recently became American citizens in a St. Paul ceremony.  One particular immigrant-cum-citizen had recently been affected by President Trump’s new executive order regarding immigrant travel that had temporarily kept her from returning to Minnesota.   The controversial  order has since been put on judicial hold, but none of these brand-new citizens will have to be concerned with it when making future travel plans. This story illustrates that where citizenship is concerned, it is obviously easier to be born a citizen per the Fourteenth Amendment’s citizenship clause than it is to obtain such status later in life.

This citizenship distinction wasn’t always so clear.   The elusive but pivotal Supreme Court case United States v. Wong Kim Ark was decided in 1898, only two years after Plessy v. Ferguson.  In said case, Wong Kim Ark was born in 1873 in San Francisco to Chinese immigrant parents. His parents later returned to their homeland, but Ark remained in San Francisco, occasionally traveling to China to visit his folks. It was only on his return home from such a visit in 1895 that he was detained by border officials and not allowed back in.  This was due to strict enforcement of the Chinese Exclusion Act under which he was not considered a citizen. Ark contested his exclusion, asserting that he was in fact a citizen and thus the Act did not apply to him. The end decision was the literal and absolute interpretation of the 14th Amendment’s opening clause, “[A]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

President Trump has called for an end to what he calls “birthright citizenship,” which is at odds with the current interpretation of the 14th Amendment.   This year’s ABA Law Day theme happens to be [T]he Fourteenth Amendment: Transforming American Democracy. Beyond just the citizenship clause, expect to hear more about the Fourteenth Amendment and our planned Law Day celebration in weeks to come.

 

Slavery in Minnesota – The Eliza Winston Story

Boat on RiverYou and your neighbors might have your political differences, but try and imagine how challenging it would have been to finesse different outlooks on slavery back in 1860. Imagine further the awkwardness if you were a staunch abolitionist and your neighbor’s business brought Southern guests to your community with their slaves in tow.  Remember that the case behind the U.S. Supreme Court’s Dred Scott ruling three years earlier had involved an army surgeon who kept his slave at hand while serving at Minnesota’s Fort Snelling. Indeed, the Dred Scott  holding that slaves were not entitled to their freedom despite residency in a free state had opened up a new Minnesota tourist industry geared to Southerners seeking to enjoy cooler summers in northern states.  African American History Month is a good time to look at an incident in Minnesota’s history that illustrates both the tense political differences of the day, as well as how public opinion is often at odds with official law and policy.

Back in 1860 the city of St. Anthony was home not only to staunch abolitionists, but also to Winslow House, a popular summer destination for Southerners.  Minnesota’s three-year-old constitution barred slavery, yet many of its citizens didn’t see this as cause to interfere with the property rights of visitors.  So with this casual attitude and the recent Dred Scott ruling, Southerners frequently traveled up the Mississippi River to enjoy Minnesota’s mild summer climate.  That year the Richard Christmas household had traveled from Mississippi with their house slave, Eliza Winston, to stay at Winslow House.  During her stay, Winston met local abolitionists through her acquaintance with a free African American couple.  One of these abolitionists later filed a legal complaint asserting that Winston was being “restrained of her liberty by her master.” Meanwhile, the Christmas household had moved from Winslow House to a Lake Harriet cabin in Minneapolis. That’s where the Hennepin County Sheriff found Winston, who indicated to him that she wanted to be free.  Winslow was then brought to the Hennepin County Courthouse where Judge Vanderburgh heard Winston’s testimony, and then ruled in her favor.  Meanwhile, angry mobs had gathered in and around the courthouse, and began migrating into the community and storming the homes of local abolitionists.  Winston managed to escape the crowds, but ultimately had to leave Minnesota for her safety.  And as local business owners had feared, the Winston case did indeed slow Southern tourism to Minnesota.  (The Civil War’s eruption the following year would effectively make such river tourism a non-issue.)

The Winston case revealed some interesting twists in Minnesota’s early political climate.  Even though the state constitution forbade slavery, business interests often benefited from trade with Southern slaveholders.  Additionally, Minnesotans could be quick to form angry mobs.   And whereas changing the law can be a lofty and idealistic pursuit, changing public opinion is usually a much grittier undertaking. Such task becomes even more challenging where profit motives stand against wished-for change.  Finally, one must ask how “free” was Ms. Winston if she was forced to leave the free state of Minnesota.  This story and numerous such observations are presented in this article by Dr.  William Green, published in Minnesota History magazine.

 

 

Supreme Court BuildingBrand-new President Donald Trump recently announced his selection for the U.S. Supreme Court, making Tenth Circuit Court of Appeals Judge Neil Gorsuch is the legal news of the week.  There is no shortage of articles with their divergent analysis and predictions (filibuster?) of Judge Gorsuch as a potential Supreme Court justice.  But ultimately the most useful information on what kind of jurist the judge is can be found by reading his opinions. Thus, presented below is a Gorsuth sampler:

  • Hobby Lobby v. Sebelius  – Most cited in the news, this is the case regarding the Obamacare mandate that employee insurance coverage provide contraceptives.  In his opinion stating that the contraceptive mandate, per for-profit closely held corporations, substantially burdened the exercise of religion, for purposes of RFRA, Gorsuch made reference to “drugs or devices that can have the effect of destroying a fertilized human egg.”  (Case later affirmed by the U.S. Supreme Court.)
  • Hugo Rosario Gutierrez-Brisuela v. Loretta Lynch  - Alien petitioner  sought review of a BIA order upholding an immigration judge’s decision by an immigration judge that pretermitted his application for status adjustment of his status under Immigration and Nationality Act (INA). Writing for the majority, Gorsuch postulated that a previous case giving federal agencies authority to interpret ambiguous laws and regulations, should be reconsidered.  He wrote that the resulting practice of administrative deference is “more than a little difficult to square with the Constitution of the framers’ design.”
  • A.M. v. Holmes  – A mother brought a § 1983 action on behalf of her child against school officials, alleging First, Fourth, and Fourteenth Amendment violations arising from student’s arrest and subsequent search at school. The district court entered orders granting officials’ motions for summary judgment and denying mother’s for same. On mother’s appeal, the Court upheld the search and arrest, and held that the mother could not prevail on her First Amendment retaliation claim.  Gorsuch wrote a dissent claiming that his colleagues had misapplied controlling case law against  the state statute addressing misconduct in public schools.
  • American Atheists Inc. v. Davenport  - In a case involving the display of 12-foot-high metal crosses erected alongside Utah highways in memory of fallen highway troopers, the Court of Appeals reversed the district court ruling to find the display of the crosses unconstitutional. The appeals court held that the crosses could convey to a reasonable observer that the State endorsed/preferred a certain religion, and violated the Establishment Clause.  In his dissent, Gorsuch asserted that his colleagues had  misapplied the “reasonable observer” test.
  • Direct Marketing Association Inc. v. Brohl  - The Court of Appeals decided that the Tax Injunction Act did (not) bar federal court jurisdiction over a suit brought by non-taxpayers to enjoin the enforcement of notice-and-reporting requirements of state tax law that neither impose nor require the collection of a tax.  Gorsuch wrote and interesting concurring opinion on the role and application of case precedent.

These opinions may not be short, nor will everyone agree with them. But there’s no denying Judge Gorsuch’s witty, sans-legalese writing style.