National Library Week (and What It’s All About)

March 11 2015 004This week the Ramsey County Law Library joins with libraries all across the nation in celebrating National Library Week. A brainchild of the American Library Association (ALA), the purpose of this event is to celebrate the contributions of our nation’s libraries and librarians and to promote library use and support. After all, as the ALA’s Freedom to Read Statement begins, “[t]he freedom to read is essential to our democracy.” Our library is also committed to the principles set forth in the ALA’s Library Bill of Rights.

Our particular library serves the Second Judicial District Court, city and county officials, members of the local bar, and inhabitants of Ramsey County. It is covered under Minnesota Statute §134A, which governs the establishment and operations of county law libraries in Minnesota.  In particular, §134A.02 requires that “the use of the library shall be free to the judges of the state, state officials, judges of the district, municipal, county, and conciliation courts of the county, city and county officials, members of the bar, and inhabitants of the county.” (This contrasts to county law libraries in some other states, where access might be by paid subscription or only for local attorneys.) So when people ask if our library is open to the public, the answer is an unequivocal “yes.”

Best-selling author David Baldacci is serving as Honorary Chair of National Library Week. Visitors to the library this week can register to win one of three Balducci political thriller novels, plus pick up a free pocket Constitution or a word game.

 

DSCN8455The fast-paced existence of most lawyers seldom allows much time for personal future planning. Yet wouldn’t any self-respecting lawyer want to make sure they have the final word on how they eventually end their practice? In truth, even if you swear you will never retire, the very nature of life allows no one to practice forever.*  Failure to plan for the inevitable can bring harm to clients, not to mention stress and inconvenience to partners and loved ones. And while Rule 27 of the Minnesota Rules on Lawyer Professional Responsibility allows a trustee appointment for a lawyer who cannot properly discharge duties to clients due to “disability, disappearance or death,” the best way to protect your clients (and loved ones) against such unforseeables is to have a written contingency plan already in place.

This subject is all the more crucial for solo practitioners. Rule 1.3 of the Minnesota Rules of Professional Conduct states that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Comment [5] specifically warns that “[to] prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.”

So with this in mind, the Law Librarian offers some material to assist lawyers with their own future planning :

  • K. William Gibson (ed.),  Flying Solo : A Survival Guide for the Solo and Small Firm Lawyer  (5th ed. 2015).  This new edition of Flying Solo provides its usual time-tested answers to real-life questions, with its primary focus on the practical matters of starting a law practice.  Special emphasis here is given to the chapter “When I Die, Part II.”  Here are detailed instructions for how to plan a special instructional notebook to assist survivors in the unfortunate event of your untimely disability or demise.
  •  Peter A. Giuliani, Passing the Torch Without Getting Burned:  A Guide to Law Firm Retirement and Succession Planning (2013).  This book is meant to identify the economic variables and issues that must be considered for retirement from the perspective of law partnerships and firms.    It analyzes such retirement policies as “emeritus status” arrangements, mandatory retirements, and compensation packages.  It also information on how to gracefully bow out of a partnership, versus how and when to dissolve or sell the partnership.
  •  Susan A. Berson, The Lawyer’s Retirement Planning Guide (2010).  This practical book looks at retirement’s more personal angle, with guidance on investing your money  and managing your retirement withdrawals.  It also includes health tips for longetivity and advice for handling family finances.  In short, this is a book of practical advice on long-term planning that everyone should consider, and not just lawyers.

*On a related note: The Ramsey County Bar Association (RCBA) will hold its annual memorial service for recently-deceased lawyers next week.

 

 

file0001349487113Last week fans of Better Call Saul got to watch hero/villian Jimmy McGill essentially demonstrate the legal principle that there is no privacy expectation protected under the Fourth Amendment of the U.S. Constitution when it comes to your curbside garbage. In 1988, the U.S. Supreme Court held in California v. Greenwood that the Constitution does not prohibit warrantless search of curbside garbage left for collection. (486 U.S. 35). Coincidentally, the Minnesota Supreme Court recently put the whole garbage-as-discoverable-evidence doctrine under the microscope of the Minnesota Constitution in the case of State v. McMurray (A12-2266).

The facts of McMurray basically involved police seizure of contents left by McMurray in opaque plastic garbage bags on his curbside for trash collection. Murray’s attorneys argued that the warrantless search of his garbage was an impermissible search and seizure under Article 1 Section 10 of the Minnesota Constitution, which they argued protects beyond the U.S. Constitution standard. The Minnesota Supreme Court concluded that since this provision of the Minnesota Constitution reads the same as the Fourth Amendment of the US Constitution, it doesn’t afford any more privacy. Thus, police officers in Minnesota didn’t need a search warrant to sift through McMurray’s trash, since there is no expectation of privacy once garbage is placed outside for collection, just like in Greenwood. In a provocative dissent, Justice Lillehaug wrote that the nature of trash has changed since Greenwood, as has the scientific means of analyzing it for information. The majority, however, concluded that “Minnesotans are well aware of potential threats to their privacy and security and have prudently altered their conduct in response.”

So now Minnesotans, be aware that our Supreme Court believes that you can prudently manage your own garbage and its secure disposal. Garbage management and disposal, however, is a far trickier proposition in the professional legal context than it is for common households. Are you an attorney anticipating a big “clean out” of your office in the near future? Do yourself a favor and adopt a formal document destruction policy for your practice if you don’t already have one. Second, give a moment’s thought to what you plan to do with that recycling bin that you plan fill when carrying out your office purge. Assuming that the documents or other materials in the bin can be legally and ethically destroyed (a subject beyond the scope of this blog), do you know the proper and secure means of doing so? As for your clients, they should also know which materials should be kept, destroyed, or turned over to you, plus the secure means to carry out each option.  (Obviously, all of these questions should be asked not only of the hardcopy documents and objects at hand, but also of electronic information.)

Before your (or your client’s) private information comes into the wrong hands (i.e.  identity thieves, stalkers, or enterprising Jimmy McGill-esque snoops), consider reading some of these resources available at the law library:

  • Frans, Myron L., and Christopher J. Kopka, “Records Management and Retention Policies for Law Firms,” Bench & Bar of Minnesota  (April 1998): 28-34. (This article provides a practical overview on your ethical obligations from a Minnesota standpoint.)
  • Kent A. Gernander, Client Relations Formbook (2014 2nd Ed.). (See Chapter VI – File Retention and Destruction)
  • Robert L. Haig, Successful Partnering Between Inside and Outside Counsel (2010). (See Chapter 29 – Management of Corporate Documents.)
 

Courtroom 055Women’s History Month is drawing to an end, and besides celebrating women’s establishment as judges, we should also remember that women serving as jurors was not always a given. Minnesota eliminated all legislative gender qualification from jury service in 1921, making it one of eight states passing female juror legislation following ratification of the Nineteenth Amendment. (A few states had allowed women jurors before the passage of women’s suffrage, but most did not.) On this issue, Minnesota was on the slightly earlier side of progress.  At the extremes, Utah allowed for limited female jury service in 1898. Mississippi, on the other hand, did not allow women on juries until 1968, not coincidentally the same year that Congress passed the Federal Jury Selection Act, prohibiting discrimination in jury service on basis of gender. This article from the Minnesota Legislative Reference Library offers even more interesting details behind our state’s history of including women on juries.

Prior to women’s suffrage, women were routinely excluded from juries. The common arguments of the day against women jurors included the predictable; namely that women should not have to be exposed to the seamy details of trials, that taking women away from their children would be detrimental to families, and that women might be too sympathetic to the criminally charged to convict them. In 1879, the U.S. Supreme Court upheld state laws that completely excluded women from jury service.  (Strauder v. West Virginia 100 US 303) As recently as 1961 the U.S. Supreme Court would still uphold a Florida statute that required women to register with the clerk of court if they wished to be included in jury lists (Hoyt v. Florida 368 U.S. 57). In Hoyt, a wife was convicted of the murder of her husband by a jury composed of 12 men, due to a Florida statute that only allowed women for jury service  if previously registered with the clerk of the circuit court indicating a desire to so serve. The Supreme Court reversed this course in 1975 with Taylor v. Louisiana (419 U.S. 522). Mr. Taylor had been convicted of aggravated kidnapping by an all-male jury chosen from an all-male panel. Louisiana law was similar to Florida’s, in that women could not be seated as a jurors without previously submitting a written request indicating a desire to serve. This time the Court held that women as a class could not be excluded from jury service or given automatic exemptions based solely on sex. The women-have-family-duties argument lingered, but in 1979, the Supreme Court overturned an automatic jury service exemption for women (but not men) who requested one, while indicating that a gender-neutral child care exemption would be permissible. (Duren v. Missouri 439 U.S. 357) Recall from a couple years back that that jury in the George Zimmerman trial made headlines for being all-female. This was in fact rather noteworthy considering that Florida (and most of the South) had been rather slow in establishing women on their juries.

The behavior of jurors as it relates to their gender (or race, age, income, etc.) has long been a much-studied subject. If you are an attorney and would like to select the best jury for your upcoming trial, consider these books:

  • Scientific Jury Selection by Joel D. Lieberman and Bruce D. Sales (APA 2007)
  • Blue’s Guide to Jury Selection by Lisa Blue and Robert Hirschhorn (Atla Press 2004)
  • Mastering Voir Dire and Jury Selection by Jeffrey T. Frederick (ABA 2011)
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Legislative Focus on the Family

Family law is having its day in the current session of the Minnesota Legislature. To start, a bill that would have drastically changed divorce proceedings by allowing couples to end marriages outside the court captured headlines earlier this month, but appears to have stagnated. Not so some other family-oriented proposed laws currently being considered at the capital. According to an interesting article the March 16 issue of Minnesota Lawyer, a group called the Child Custody Dialogue Group  has met regularly  since 2012 in the hopes of forging consensus on a whole host of family law reforms.  If enacted, these proposed reforms would mark the most significant overhaul to family law in Minnesota decades.

Here are some of the bills that came from the efforts of the Child Custody Dialogue Group:  Specifically, under SF1191/HF465, the 13 current “best interests of the child” factors in child custody proceedings would be scrapped in favor of 12 new factors.  Topping the new list would be “a child’s physical, emotional, cultural, spiritual, and other needs.” (To contrast, the 13 custody factors currently in use under MN Stat §518.17 begin with “the wishes of the child’s parent or parents as to custody.”)  Also of note, SF1103/ HF518 would require courts to award compensatory parenting time, and in some cases civil penalties, when parenting time is denied intentionally and repeatedly, unless the denial was necessary to protect the child’s physical or emotional health.  Additionally, HF464/SF1424 provides for simple market rate-based annual interest rate calculations, for family law judgments. It would also for a lower rate or no interest (although not for child support or spousal maintenance judgments) if the parties agree or the court finds it necessary to avoid unfair hardship, plus move the notice of rights language from “Appendix A” into the actual order for divorce, custody, and parenting time.

March 17 2015 002Of course, time waits for no child.  If you are a parent or practitioner hoping to craft the right parenting agreement for your situation, you know the legislature won’t do it for you.  Come into the library to consult the tools we have for researching and drafting custody agreements.  Some of them include:

  • Building a Parenting Agreement that Works: Child Custody Agreements Step by Step (Nolo 8th Ed. 2014)
  • Child Custody and Visitation Law & Practice (LexisNexis 2011)
  • Minnesota Child Custody Deskbook (MN CLE 2nd Ed. 2011)
 

March 11 2015 001As Minnesota becomes more complex and diverse, administration of justice necessitates people having access to language-appropriate legal resources. For instance, Minnesota law provides that court interpreters be appointed for persons involved in criminal proceedings, property forfeitures or mental health commitments who cannot speak or comprehend the English language. (See Minn. Stat. §§ 611.30 to 611.34.)  But the process of making law multilingual is never easy or complete. Both the Minnesota Statutes and Court Rules are only released in English, which means any translation of them risks compromising their intended meaning. The MN Courts website is also only available in English, even though its Self-Help Center offers limited access language links in Spanish, Hmong, and Somali. Certain court forms are available in additional languages including Cambodian, Lao, Oromo, Russian and Vietnamese. (Note: The forms themselves must be completed in English, and court interpreters cannot help with this.)

For other non-English self-help options, LawHelpMN offers their helpful legal information resources in varying degrees in a number of languages. Brochures for SMRLS (Southern Minnesota Regional Legal Services) state that they offer interpreters for their patrons that speak Hmong, Laotian, Somali, Russian and Spanish. Speaking of self-help, do you know someone who is interested in attending our weekly Housing and Conciliation Court clinic but needs an interpreter to communicate with the lawyer? Contact us the week before they plan to attend so that we can arrange an interpreter. Do you know someone who doesn’t speak English well but has an upcoming appearance in district court? Or does your own district court case depends on testimony from your dear grandmother who doesn’t speak English? In these cases, contact the district court clerk ahead of time so that they can arrange a court interpreter. (Fluent or not, your cousin cannot serve as granny’s court interpreter.) There is no cost for this service.

Are you a judge or an attorney handling a new case that might possibly call for an interpreter? Additional resources to help you are available at this page, including an interpreter jury trial guide and handy “bench card” guides specifically for judges. Here you can also find referrals to the appropriate court rules regarding the appointment of interpreters in court. (Ex: See MN Rules Civ. Pro 43.07) You may also want to be aware of the Code of Professional Responsibilty for Interpreters in the Minnesota Court System.

Are you fluent in another language and interested in becoming a court interpreter? Read about the Minnesota Court Interpreter Program to learn how to get started!

 

Judge Mary Louise Klas

March 4 2015 002As Women’s History Month begins this week, it is timely to consider women who have shaped our judicial district. Just as people have noted that our historic judge portrait collection contains no non-white members, it is equally true that the portraits are all of men without a woman in sight.

As a child, Mary Louise Klas had wanted to be a lawyer, but this ambition didn’t seem practical when she graduated from the College of St. Catherine in 1952. So she worked in various office jobs until she finally followed her instincts and enrolled at the William Mitchell College of Law, from which she graduated in 1960. She married her classmate Daniel Klas, and they went on to have five children and a successful joint practice of family law. It was this successful work-life balance that inspired a young mother that sat next to her at a political dinner in 1962 to enroll in law school herself. That young mother was none other than Rosalie Wahl.

Mary Louise Klas was appointed to the 2nd Judicial District bench in 1986, the first woman appointed to this position. Objectively, the appointment of a woman to this position may not not in itself have been as historically significant as Judge Maxwell’s appointment. Betty Washburn had been sworn into Hennepin County Municipal Court back in 1950, and Susanne Sedgwick had been appointed to the 4th Judicial District (Hennepin) in 1974.  By 1986 Rosalie Wahl herself had been on the Minnesota Supreme Court for nine years.  (Additionally, there had been women on the Ramsey County bench before it formally became the Second Judicial District.)  Klas may be better known for her fierce advocacy against domestic violence. Once sworn into her new position, Klas “made it clear that she would be different kind of judge, criticizing police, prosecutors and the courts for not being tough enough on domestic violence.” She kept every word of that promise, which often pitted her against police chiefs, prosecutors, and her fellow judges along the way. At one time she was the issuing judge more than 90% of the orders for protection in Ramsey County. Judge Klas took all the cases that came before her very seriously, and as a result professed that “worries filled her mind [and] nightmares filled her nights.”

Klas retired from the bench in 2000, but not from passionate advocacy for domestic violence victims.  She has continued to be active in organizations including Guild Incorporated, ISAIAH Domestic Violence Task Force, Minnesota Advocates for Human Rights and Minnesota Program Development, Inc.

*****

ADDITIONAL SOURCES:

2 Named to Ramsey District Court – Star Tribune Sept. 26, 1986

Paul Gustafson, Judge, Activist Mary Klas Retires; She Used her Position – To Some Controversy – To Get Tougher on Domestic Violence in Ramsey County. Star Tribune July 3, 2000

Kate Parry, Judge Crusades Against Batterers – Law Enforcement Called Inadequate – Star Tribune Oct. 25, 1989

Phillip Pina, Judge to Leave Bench and its Moving Human Drama – St.Paul Pioneer Press June 26, 2000

Lori Sturdevant, Her Honor: Rosalie Wahl and the Minnesota Women’s Movement (MHSP 2014)

 

Charles Hamilton Houston (1895-1950)

Scene from the Old Courthouse in St. Louis where the Dred Scott case was filed

Scene from the Old Courthouse in St. Louis where the Dred Scott case was filed

Earlier this month the Ramsey County Bar Association presented a CLE seminar: Leadership for Social Justice. As part of that seminar, the quiet leadership of Charles Hamilton Houston was highlighted. To close out African American History Month, let us consider this astute civil rights figure. Though less well-known than some other civil rights pioneers, he was nonetheless key to ending the oppressive Jim Crow regime that defined our nation’s race relations in the period between the post-Civil War Reconstruction Era and the post-WWII Civil Rights Movement.

Born in 1895, Charles Hamilton Houston led a routine academic life of teaching English at Howard University until he became a First Lieutenant in the United States Army during WWI. Outraged at the poor treatment he saw heaped upon black soldiers from their fellow Americans, Houston vowed to dedicate his life to change. When he concluded his military service in 1919, he entered Harvard Law School and graduated in 1923.   While there, he was the first African American to serve as an editor of the Harvard Law Review. (Not to be confused with the Review’s first African American president.) In 1924 he was admitted to the D.C. Bar and joined his father’s law practice. In the years that followed, Houston became special counsel for the NAACP, and also joined the faculty at Howard University School of Law. In this academic capacity he became a mentor to Thurgood Marshall, who would later argue Brown vs. The Board of Education.

It was around this time that Houston struck upon the idea that unequal education was the weak spot of Jim Crow, given the failure of states to carry out the “separate but equal” standard mandated by the 1895 Supreme Court case, Plessy v. Ferguson.  Houston’s idea was worked into the successful legal strategy used by the plaintiffs in the 1954 case of Brown, wherein the U.S. Supreme struck down the “separate but equal” doctrine. Houston died in 1950, four years before this groundbreaking decision, but he had played a role in nearly every civil rights case before the Supreme Court from 1930 until his death.

These details of Houston’s life are laid out in this page of the NAACP website.  One can also read more about Charles Hamilton Houston and the entire Jim Crow custom in the book From Jim Crow to Civil Rights (Oxford 2004), available in our library collection. Also consider the provocative book The New Jim Crow (The New Press 2010), which asserts that the old Jim Crow as taken a modern shape in the form of mass incarceration, also available in our library.

 

Indigent Defense

Courtroom 066The Pioneer Press recently featured the work of First Judicial District public defender Lauri Traub in defending Brian Fitch Sr.  Mr. Fitch was convicted earlier this month of first degree murder in the death of police officer Scott Patrick.  He was not a generally popular client, but Traub made clear that her team’s vigorous defense of Fitch was consistent with her belief that “everyone is entitled to representation.”  Fitch was asked by the judge if he had been satisfied with the representation Traub provided, to which he replied ”[f]or sure.”

Our modern public defender system is the child of the U.S. Supreme Court decision in the case of Gideon v. Wainwright, which held that indigent criminal defendants have a right to legal counsel under the Sixth Amendment of the U.S. Constitution. In State v. Ferris, the Minnesota Supreme Court held that a public defender must be appointed if a defendant would experience “substantial hardship” to hire counsel. Minnesota Statute §611.17 requires courts to consider certain factors in determining a defendant’s eligibility for a public defender.  But Rule 5.04 (Minn. R. Crim. P.) states that “[t]he court must not appoint a district public defender if the defendant is financially able to retain private counsel but refuses to do so.” Further, the Minnesota Court of Appeals clarified in the case of State v. Nace that the right to a public defender does not mean the right to one’s choice of such.  For quick reference, the Minnesota House Research Department published a short synopsis of Minnesota’s Public Defender System, explaining who is eligible for this service.

As last weekend’s television debut of fictional lawyer “Jimmy McGill” dramatized, lawyers don’t typically earn much money from public defense cases. (Traub herself waits tables on the side.) At the same time, public defense is a limited and high-demand resource that gets spread painfully thin, perhaps unconstitutionally so. To consider this proposition, see this 2010 evaluation by the Minnesota State Auditor of the state’s public defender system. Here in the law library we also have Chasing Gideon: The Elusive Quest for Poor People’s Justice by Karen Houppert (The New Press 2013).  This book articulately explains why our nationwide system of public defense is in disarray, and asserts that we still haven’t come close to meeting the promise of Gideon.

 

Judge Stephen L. Maxwell (1921 -2009)

On more than one occasion, visitors to our library have noted that the judge portrait collection only contains portraits of white male judges. And they are correct.  While the portrait collection may be historically accurate for the time period it spans, it fails to reflect the more diverse bench serving the 2nd Judicial District that gradually came to be. It is fitting with Black History Month upon us to remember the first African-American judge to serve our district, even if his likeness doesn’t grace our walls. Indeed, he was the first African American District Court judge for the entire State of Minnesota.

Stephen L. Maxwell was born in 1921. His father, a barber, died when he was nine years old. He was raised by his mother, a social worker, and attended St. Paul Central High School. He put himself through Morehouse College in Atlanta and the St. Paul College of Law (now William Mitchell College of Law) by doing odd jobs along the way. During his schooling he also served in the U.S. Coast Guard as a lieutenant and commander and in the U.S. Navy, eventually earning his law degree in 1953.

He began his legal career in private practice in St. Paul. As legal counsel for the St. Paul NAACP in the 1950s, he won a substantial verdict for two black men who were refused service in a Dakota County bar. In 1959, Maxwell became an assistant Ramsey County attorney. He was a prosecutor in the highly publicized case of T. Eugene Thompson who in 1963 was convicted of arranging to have his wife killed. In 1964, Maxwell became St. Paul City Attorney, which he served until his appointment to the municipal court in 1967. He ran for Congress as a Republican in 1966 and garnered over 46% of the vote. He was appointed to the 2nd Judicial District bench in 1968, where he served nineteen years until he retired in 1987. He died on August 31, 2009.

Judge Maxwell appeared in a Navy ad that ran in Ebony Magazine in 1972

Judge Maxwell appeared in a Navy ad that ran in Ebony Magazine in 1972

Judge Maxwell was remembered as a “tough but fair” judge.    He was featured in an advertisement for the Navy Reserves in the December 1972 issue of Ebony magazine, and predictably he ran a tight ship in presiding over his courtroom.   Active 2nd District Judge Margaret “Peg” Marrinan remembers him as being “proper and timely,” but also possessing a uniquely subtle sense of humor.  More details about Judge Maxwell can be gleaned from his Pioneer Press and Star Tribune obituaries.  If you have favorite memories of Judge Maxwell, please feel free share them with us.