Minnesota Sentencing Guidelines

Courtroom 052

Be aware that today the 2016 Minnesota Sentencing Guidelines (MSG) go into effect.  Now if you or a client have recently been charged with a felony, you probably don’t need to worry about these new updated Guidelines.  As explained on the front page, the Guidelines only apply to “felonies committed on or after the effective date,” so the 2015 Guidelines would still apply to you.  These are still available in the Guidelines  archive, along with all of the other old Guidelines going back to the original 1980 version.

The most notable change to the 2016 Guidelines pertains to drug offenses, essentially reducing penalties and enhancing treatment options for first-time offenders of small quantities.  These changes were made as part of the goal of the Commission to send more addicts to treatment and reduce the state’s prison population.  The Guidelines Commission adopted changes to reduce sentences for first-time offenders, and allow judges and prosecutors to use mitigating factors to reduce sentences for people with addiction issues.  The commission added new aggravating factors, including selling drugs to a minor  or selling drugs in a broad geographic area.  Reflecting these changes is the incorporation of a whole new sentencing grid for drug offenders.

The Guidelines still allow judges much discretion in sentencing due to its use of mitigating factors, aggravating factors, and suggested sentencing ranges.  They also allow judges additional flexibility to make departures from recommended sentences based on various factors, for which the judge must submit a departure report.  Earlier this summer Ramsey District Court Judge Judith Tilsen gave a thoughtful interview for Minnesota Public Radio about a judge’s role in determining sentences, including application of the MSG grids.

When they first came about in 1980, the MSG were a groundbreaking tool.  The Minnesota Sentencing Guidelines Commission was established by the Minnesota Legislature in 1978 with the task of eliminate gross disparities that might be related to race, income levels, or the judge who issued your sentence.   Minnesota went on to become the first jurisdiction to implement state-wide sentencing guidelines drafted by a sentencing commission.   Since their adoption, federal government has since adopted such guidelines and 19 states have also followed.

 

 

Dr. Green books and announcementThe Ramsey County Law Library would like to announce that we will be celebrating our 80th Anniversary this fall. To mark both this occasion and the completed restoration of the judicial portrait collection, we will be presenting a day of festivities on Monday, September 26, 2016. The focal point of this day will be a special CLE presentation by Augsburg professor Dr. William Green, “Civil Rights in Minnesota: The Early Years.” You may be familiar with Dr. Green’s books, Degrees of Freedom: The Origins of Civil Rights in Minnesota, 1865-1912 and A Peculiar Imbalance: The Fall and Rise of Racial Equality in Early Minnesota (both available in our library for checkout). Dr. Green’s noontime presentation will be open to the public and is co-sponsored by the Ramsey County Bar Association (RCBA).  Go to their website to read all the details and preregister.

Following Dr. Green’s presentation we will host an open house with refreshments, tours, and a brief program on the judicial portrait collection.  You will recall that Phase II of the portrait collection restoration through Minnesota Legacy Grant funds was completed this year. (Phase I was completed in 2013.)  So plan on joining us for this celebratory event!

 

Youth and Justice

Teenaged boyThis spring our attention turns to those in the spring of their lives, specifically juveniles caught up in the justice system.  The early part of the last century was a time of growing awareness of juveniles, recognizing that while they were no longer babes in the nest, nor did they have the full facilities of adulthood. (Individualized Justice by Samuel H. Popper) Many of the judges represented in the portrait collection were active in the development of our district’s existing juvenile justice tools. Judge Orr presided over Ramsey’s first juvenile court in 1905. He was known for his commitment to youth and their legal issues until his retirement in 1930. Judges McNally, Loevinger, Walsh, and K.G. Brill also presided over the juvenile court in their terms.

Lately we have also seen two institutions of juvenile reform in the news: Ramsey’s own Totem Town has come under the scrutiny of the 2nd Judicial District. Specifically, judges are currently not referring juvenile defendants to this facility until further notice. Totem Town has a special local history of its own. The Minnesota Legislature enacted authorization for a boys detention home in Ramsey in 1907, and the original facility opened in 1908. It was later renamed Totem Town to lose some it its perceived institutional stigma. (Individualized Justice) It was only a few years back that it celebrated its 100th anniversary.  But even before the recent news development, many voices were saying that it needed to change to meet modern needs.

It is also the 125th anniversary of Minnesota Correctional Facility at Red Wing.  The Red Wing facility has a storied history within juvenile justice all its own.  (It was even immortalized with a Bob Dylan song.)  Judge Gingold was known to gently tease juvenile defendants with the warning that the “bus to Red Wing” was parked outside the courthouse and waiting.  Despite this long history and its striking building, the Red Wing facility has also had its detractors.  Read one man’s memory, which paints the picture of a rather draconian place. The Red Wing facility is also examined extensively in Burning Down the House: The End of Juvenile Prison by Nell Burnstein (available at our library).

Identifying and applying the right tools to juvenile justice remains a subject of much discussion, so expect to see more in this blog regarding such.  In particular, we are happy to announce that our Law Day speaker this year will be focusing on juveniles as they relate to Miranda warnings.

 

 

 

Minnesota CapitolWith the Minnesota Legislature now in session and March being Women’s History Month, its timely to consider how women’s suffrage opened the door to allowing women to hold elected positions. Minnesota granted women the right to vote in 1919, but only in presidential elections. The following year saw the passage of the Nineteenth Amendment, and women’s suffrage became universal in all states.  (Minnesota might have been a tad slow on women’s suffrage, because of its brewing industry. Some camps feared that votes from women would tilt outcomes on questions that involved liquor.)

In the 1922 election, four women were elected as Minnesota’s first female legislators: Mabeth Hurd Paige, Sue Metger Dickey Hough, and Myrtle Cain from Hennepin County, and Hannah Kempfer of Otter Tail County.  Women started to slowly trickle into the Minnesota House of Representatives thereafter, but none would represent a Ramsey County district until 1975 with the election of Margaret Mary “Peggy” Byrne. (Possibly the Ramsey districts were slow to elect women due to the long-held position of the Catholic Church against women’s suffrage and public roles for women in general. )

Mabeth Hurd Paige served the longest of the original four, completing a total of ten terms.  Born in Massachusetts in 1869, she finished high school there before moving to Nebraska to care for her ailing grandmother.  She attended the University of Nebraska at Lincoln before going on to study art at the Academie Julian in Paris, France. Upon returning to the United States, she accepted a job teaching art in the Minneapolis public schools.  She then married University of Minnesota Law School Professor James Paige in 1895. It was at her husband’s urging that she enrolled and obtained a law degree from the University, graduating in 1900. Later she became president of the Women’s Christian Association in Minneapolis, and also founded the Minneapolis chapter of the Urban League.  Upon the passage of universal women’s suffrage in 1920, she successfully ran for the Minnesota House of Representatives in 1922 along with the other-named three.  She retired from the Legislature in 1945 and died in 1961.   Her legislative profile from 1923 presents more information on her.

 

Minnesota and Black History Month

Civil War battalionSince this is the last week of Black History Month, it is appropriate to celebrate historical legal milestones of local black Minnesotans, such as Frederick McGhee, Stephen Maxwell, and Alan Page. But it is equally appropriate to look at some of our region’s less-celebratory milestones. It may surprise many to learn that Minnesota hasn’t always been on what we consider to be the “right side of history.”  It may surprise even more to learn that our local community often stood in the way of what we now consider progress.  Consider these examples:

• Minnesota had a prominent role in the Dred Scott case which ended with the U.S. Supreme Court declaring that the “black man had no rights that the white man is bound to respect.”  Scott had  been the slave of a military surgeon posted at Fort Snelling in the 1840s.  In this historical case, Scott had essentially argued that by virtue of his “master’s” death and of living for years in free states and territories, he become a free man.

That hundreds of Minnesotans died fighting on the Union side of the Civil War is well-known.   Less well-known is the fact that that in 1863, a Missouri steam ship docked at Lowertown carrying a load of escaped slaves. No welcome mat greeted them, but instead the travelers were confronted with a mob of angry white laborers demanding that they return to the South.*

• Minnesota may be free of confederate symbolism on its flag, but a popular lake in Minneapolis immortalizes a slave owner with its name. John Calhoun of South Carolina promoted slavery as a “positive good.” Calhoun is relevant to local history as the founder of Fort Snelling, where we know that military personnel were welcome to keep their slaves at hand.

• It’s easy to think that mob lynchings of black men are just a shameful stain on the history of southern states, and certainly not part of our fair state’s history. Yet on June 15, 1920, three black circus workers were hung in Duluth by a citizen group following allegations of their raping a white resident. The men had not yet been tried, and little evidence was available to back up these allegations.

The City of St. Paul is 15% African American, but had no black legislators until 2010. That was the year that voters elected John Harrington to the Minnesota Senate and Rena Moran to the House of Representatives.  Miinneapolis did better on this measure, by electing Frank Wheaton as the first African American legislator in the state of Minnesota in 1898.

When it comes to history, it is understandable that we might gravitate to the facts which paint our community in its most positive and flattering light.  But our history includes those not-so-positive events as well.  We cannot take lessons from our history unless we confront it entirely, and use it as the blueprint in planning our future.

********

*  This event and others are captured in Degrees of Freedom: The Origin of Civil Rights in Minnesota by Dr. William Green.  This, plus Dr. Green’s other book, A Peculiar Imbalance: The Fall and Rise of Racial Equality in early Minnesota are both excellent resources for researching some of the more obscure details of Minnesota’s early history.

 
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!)

 

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.

 

A Page-Turning Career

July 27 2015 001Following last Sunday’s front page feature in the Star Tribune, now is the time to recognize Minnesota Supreme Court Justice Alan Page, who must  retire next month when he turns 70 years old.  (This is the mandatory retirement age for judges under Minnesota Statute §490.125.) From gridiron to gavel, the modest man in the grey beard and bow tie has truly had an inspiring career. On Minnesota’s highest court, he has been known to bring “a common sense and a common humanity” that is mindful of the real people behind the cases.  (Consider his dissent in the 2013 case of  Dykhoff v. Xcel Energy wherein the Court overturned a workers compensation award involving slip-and-fall facts. Page’s opinion speculated that the Court may be punishing the plaintiff for wearing 2-inch heels.)

Page dreamed of being a lawyer long before he ever seriously considered a football career. Growing up in Ohio’s Rust Belt, he saw relatives spend decades in steel mills, and decided that the “Perry Mason” show depicted a more appealing existence. So while still in the middle of his 15-season football career (including MVP in 1971), Page enrolled at William Mitchell College of Law but dropped out after only three weeks. In 1975 he tried again, at the University of Minnesota Law School.   Page graduated in 1978, shortly before he was cut by the Vikings. (According to Encyclopedia.com, he didn’t pass the bar exam on his first try, and this disappointed him more than any of his Super Bowl losses.)  After spending his last three NFL years with the Chicago Bears, Page retired from football in 1981. Having finally passed the Minnesota bar, he logged legal experience in private practice and the Minnesota Attorney General’s office.   He won election to the Minnesota Supreme Court in 1992, after a controversial failure to be appointed by either Governors Perpich or Carlson.

Besides his position on the Court, Page has remained visible in other public arenas. The Page Education Foundation has distributed more than 6,000 college scholarships to Minnesota students of color since 1988.  He also wrote a children’s book with his daughter, “Alan and His Perfectly Pointy, Impossibly Perpendicular Pinky.” He and his wife’s extensive collection of Jim Crow memorabilia harken a previous era, but his sobering talks with his four children about conducting themselves safely during unexpected police encounters have present-day relevance.  Page’s next life chapter might be as page-turning as the previous ones, with more philanthropy and teaching being likely possibilities.

Do you have any special memories of Justice Alan Page?  Feel free to share them!

 

July 22 2015 007Once upon a time a Minnesota prize fighter retired from the ring and went on to become a beloved public servant. Maybe Tommy Gibbons was not the first name that first came to your mind. Nonetheless, his story is that of a man who was probably Ramsey’s most colorful and charismatic sheriff. Born in St. Paul in 1891 to Irish immigrant parents, his heavyweight fighting career spanned from 1911 to 1925. Boxing became legal in Minnesota in 1915, and that change was heralded at the St. Paul Auditorium with a fight between local fighting boys Tommy Gibbons and Billy Miske. (Gibbons narrowly won.) One of the most visible moments of his career came in 1923, when he fought Jack Dempsey. He did much of his training for this event at his brother Mike’s Rose Room Gym located in downtown St. Paul’s Hamm Building.  He lost the decision after 15 rounds.  His final fight (a knockout loss) came two years later when he was 34 years old, against Gene Tunney. This event and concern for his health prompted him to retire in 1925.

Gibbons sold insurance for years before deciding to run for Ramsey County Sheriff in 1934.  By this time, many voters were feeling that the job required a heavyweight of sorts to clean up the local corruption and gangster activity. Gibbons was elected, and quickly developed a reputation as a tough, no-nonsense sheriff who wouldn’t take deals. He served as the county sheriff for 24 years. His retirement in 1959 captured much attention, and even Jack Dempsey flew in from New York to attend the dinner. Gibbons died in 1960 at the age of 69.

This local story makes a good lead-in to highlight the positive work of local law enforcement, and specifically the services of the Ramsey County Sheriff’s Department.  Their Warrants Unit processes all warrants issued by the Ramsey County District Court.  (Check out their warrants search page.)   Similarly, their Gun Permit Unit handles all new and renewal permits to carry firearm applications for the county.  They can also carry out a writ of execution from court if you are trying to collect on a judgment.  For residents of certain Ramsey County cities, the Sheriff’s Department will provide a premise survey to evaluate the security of your property. (This service, which is available at no cost to residents and businesses of select Ramsey County cities, involves examination of window and door locks, patio and glass doors, lighting, shrubbery, and safety habits for possible security risks.)  Similarly, the Department is also happy to offer crime prevention presentations for your local group.

***

Sources: 

Sheriff Tommy Gibbons Retiring; Recalls Ring Days, Chicago Tribune, January 4, 1959.

Tice, D.J., Ringside Seat / Virginia Schweitz, Growing up in the Famous Gibbons Boxing Family and Working in Law Enforcement for Years, had a Unique Perspective on St. Paul’s Raucous, Romantic Past, St. Paul Pioneer Press, June 27, 1999.

Tommy Gibbons, Boxer, 69, Dead, The New York Times, November 20, 1960.

Tommy Gibbons by George D. Blair,  Tom & Mike Gibbons Preservation Society Page,  http://www.tmgps.com/Tommy%20Gibbons%20Biography%20By%20George%20Blair.htm.

 

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 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)