cigarettesLast week we learned of the passing of former Judge Kenneth Fitpatrick, who served the Ramsey district bench from 1986 to 1998. Looking back, Judge Fitzpatrick might share the same fate as the late Judge Olin Lewis in that his page in history will forever be that of the presiding judge of a history-changing trial. The case of State of Minnesota v. Philip Morris alleged a 50-year conspiracy to defraud America about the hazards of smoking, to stifle development of safer cigarettes, and to target children as new customers.  Called the largest lawsuit in Minnesota history, the 1998 trial ended in a settlement agreement of roughly 6.6 billion dollars.  This guts of this trial essentially boiled down to the discoverability of over 30,000 sensitive corporate documents, and Judge Fitzpatrick made historical rulings which forced the disclosure of said documents.

R.J. Reynolds lawyers stated that they felt forced into the settlement by what they considered unfair court rulings and a biased judge, but these rulings were upheld all the way to the U.S. Supreme Court.  And if jurors are to be appreciated for their fundamental role in our justice system, the 15-week sacrifice of the tobacco jurors should be noted. Then-Chief Judge Lawrence Cohen (also recently deceased) lobbied the Minnesota Legislature to pay the tobacco jurors lump sums for their hardship.  Judge Fitzpatrick himself retired shortly after the long and stressful trial, citing health reasons.

Much has changed when it comes to tobacco consumption and marketing since the time of this trial, which wasn’t so long ago.  You might actually remember the hip and edgy Joe Camel ads gracing billboards and magazine pages well into the nineties.  Bars and restaurants at one time not only permitted smoking, but encouraged it with the availability of cigarette vending machines (which bore warning signs not to purchase them if you were under 18).  Even the recent restorations of the judge portraits involved tedious removal of yellow tobacco film from the canvasses, as smoking was once permitted and common in the law library.

 
Central light rail station

One of Minnesota’s earliest legal hangings happened here.

Now that Brendan Dassey’s murder conviction has been overturned, it is timely that another overturned murder conviction comes into the news. This one, however, will not and indeed cannot end as Dassey’s apparently has. The 1944 case of George Stinney is not well-known, probably overshadowed by headlines of the war at the time. It started when fourteen-year-old George was herding his family’s milk cow in rural part of South Carolina, when two white girls happened by and asked young George about local flower picking possibilities. When the girls went missing, George joined the search party and revealed that he had seen them the previous day. As soon as the girls’ murdered remains were found, George went on record as being the last to see them alive. So when George’s parents were away from home that day, officials came and took away George and his brother.  (His frightened sister watched from a chicken coop she was hiding in.) The officials whisked George into an interrogation, and emerged one hour later claiming that he had confessed to the murders. George was immediately transported to Columbia, SC where he was executed. The details of his electrocution are heart-wrenching, as he weighed only 95 pounds and was too small for the electric chair accessories. Stinney’s entire legal proceedings transpired over only 83 days. Though Stinney’s conviction was overturned in 2014 on grounds that his confession was false and coerced, his case is emblematic of the skewed justice that was typically experienced by black Americans in the Jim Crow South. Last week we learned that lawyers are currently planning to file a civil rights lawsuit on behalf of Stinney’s surviving family.

Think hurried executions following convictions based on unsupported evidence could never happen in our fair community? One of Minnesota’s earliest executions left many doubts as to the subject’s actual guilt. Ann Bilansky was convicted in 1859 of murdering her husband with arsenic. The evidence brought against her was largely circumstantial, and consisted mostly of testimony from a witness with questionable credibility.  Numerous petitions for Bilansky’s commutation were submitted to Governor Ramsey.  Even the prosecutor himself wrote the day before her scheduled execution that he had come to experience “grave and serious doubts” about Bilansky’s guilt. Nonetheless her execution was carried out publicly at Cedar and Fifth Streets (now the Central Station of the light rail), with about 100 spectators in attendance. She maintained her innocence until the end, proclaiming that she would find “justice in heaven.” With the 2016 election season cranking up, it’s noteworthy that both the Bilansky and the Stinney judicial proceedings were clouded by various political motives and ambitions of its participants. Her story is a fascinating read you can enjoy over Labor Day weekend.

 

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.

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*  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!