Happy Fathers’ Day From the U.S. Supreme Court

father and childThe U.S. Supreme Court has struck down a federal immigration law that favors mothers over fathers in determining the citizenship of a child.  The law in question, 8 U.S.C.§ 1409, created an exception which automatically granted citizenship to the child of an unwed mother if said mother resided in the U.S. for at least a year. In contrast, 8 U.S.C. §1401 requires the unwed father of a child to live in the U.S. for 5 years for the child to be granted U.S. citizenship. As Justice Ginsburg wrote for the Court, this difference violates the Constitution’s guarantee of equal protection of the law. (She was joined by justices Kennedy, Breyer, Sotomayor, Kagan, and Chief Justice Roberts, with Justices Thomas and Alito filing a separate concurring opinion.)

You can read the entire opinion in the case of Sessions v. Morales-Santana, wherein Luis Ramón Morales-Santana was born abroad to unwed parents. His mother was from the Dominican Republic and his father was a U.S. citizen who had previously worked on a construction project there.  Morales-Santana’s father fell 20 days short of the U.S. residency requirement for Morales-Santana to receive automatic citizenship at birth. Morales-Santana later came to the U.S. with his parents as a permanent resident, but the government sought to deport him in 2000 after he was convicted of several felonies. Morales-Santana challenged the citizenship law as unconstitutional sex discrimination, and Supreme Court agreed: The child of an unwed American mother cannot be granted automatic citizenship more quickly than the child of an unwed American father.

This post might just as appropriately be named “[U]nhappy Mothers’ Day from the U.S. Supreme Court.” The Court’s recent decision is not a boost to fatherhood per se, but more specifically one to gender equality.  As this article explains, the Court’s temporary fix was to strike down the special exception law for mothers, since it was not at liberty to establish the “exception to the rule.”  Congress may opt to resolve this unconstitutionality in a way that is unfavorable for those in circumstances like Morales-Santana’s.  And since the Court is only requiring that the corrected law treat mothers and fathers equally, resolution might mean extending this citizen-residency requirement for mothers, shortening it for fathers, or doing away with it completely.  You might recall the old 1971 case of Palmer v. Thompson, wherein the Supreme Court held that closing public swimming pools altogether was a constitutionally-acceptable alternative to racially segregating them.  The result was a long, hot summer for all.

 

Legislative Chapter 184 from 1949You might have missed it, but county law libraries made a surprise appearance in the Minnesota legislative session this spring.  You can read the original Senate File 1113 here, which would have allowed for the diversion of county law library funds for construction of a courthouse.  This legislation passed both the Senate and the House, but was vetoed by Governor Dayton.  But bills  concerning county law libraries could always come up again at the capitol.

Without examining now-vetoed bill, this occurrence presents an opportunity to consider some history behind county law libraries in Minnesota. Their modern incarnation formally came into existence with what became Minnesota Statute §134A.  You can read in the 1949 Session Laws wherein the Legislature laid out the specifics for the establishment, operation, and function of county law libraries.  This original text reveals that amazingly little has changed to the county law library statute over the years, such as which sectors must be represented on governing boards, how funding is to be provided, and who must be allowed to use the libraries.  Keep in mind that this was all back in 1949, predating modern “access to justice” efforts.  Of course, what might have been casually called a ”county law library” existed in Minnesota prior to this statute, often growing from local bar association libraries.  (This was how the Hennepin County Law Library got its start way back in 1883.)  But the original statute overwhelmingly set the standards for our modern county law libraries.

Today you can find county law libraries throughout the state, and this brochure from the Minnesota Coalition of County Law Libraries (MCCLL) lists those which offer professional staff to assist users.  But history-wise, its not easy to determine when Minnesota’s various county law libraries come to be.  Public law libraries existed in St. Paul, Minneapolis, and Duluth back in 1955, as evidenced in this article in the Law Library Journal about the founding of the Minnesota Association of Law Libraries (MALL).  Since this sort of historical information can be elusive, we would like to know more about the history of your county law library (including this library).  If you have any such  inside knowledge, please share it with us.  And- if you have found the services and resources of your county law library helpful, by all means tell your legislator!

 

PencilsIt was big news earlier this year when Harvard Law School announced that it would no longer require applicants to submit LSAT scores, but would also accept GRE scores as well. The Law School Admissions Test (LSAT) has long been a mainstay of law school applications alongside the undergraduate transcript. In acknowledging that many students already take the GRE (Graduate Record Exam), Harvard’s position is that accepting the GRE  scores reduces the financial burden on applicants who would otherwise be required to prepare and pay for an additional test would be alleviated.   It is too early to know whether or not other schools might follow this example, for the LSAT is still mandated by the bulk of US law schools.

An interesting history of the LSAT can be found here.  Obviously there was once a time when even law school itself unnecessary for a successful career in law. (See this prime example!)  Even after law school became standard, greater social stratifications before World War II managed to keep applicants to a minimum,  with less need to evaluate them against each other.  But the war and the GI bill made educational dreams much more achievable for many, so the selection process had to be sharpened. Schools also wanted a tool to address to the wide variation in college records of their applicants.  This led to administration of the first LSAT in 1948.

The Harvard move now begs the question of how useful is the LSAT is for modern purposes.  Does it serve to broaden the applicant pool or constrict it?   The underlying rationale for the use of the LSAT is to avoid the biases that come with more arbitrary methods of selection, and yet the biggest criticism against the LSAT is that it is likewise biased.  There is also assertion that LSAT scores do not accurately predict a law student’s grades.   And even though the test costs $180, preparatory classes to maximize one’s score can easily reach into the thousands.  Yet opponents of the Harvard decision assert that law school is already is seen as a default choice by undergraduates uncertain of their next career-building step.  Thus, the LSAT presents a purposeful obstacle, requiring the potential student to consider carefully if law school is a worthwhile investment of their time and money.

 

 

 

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.”

 

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.

 

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.

 

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.

 

Scales of justiceThe Eighth Circuit Court of Appeals ruled today on the Minnesota Sex Offender Program (MSOP), overturning the previous U.S. District Court ruling that the program was unconstitutional.   The Court of Appeals held that the program was not only constitutional, but necessary to protect citizens from dangerous sexual predators who would otherwise go free.  (See complete opinion here.)  Twenty other states have lockup programs similar to Minnesota’s, making this a highly-watched case.   And with the Minnesota Legislature about to convene, its members are no doubt relieved that they have been spared from the politically poisonous task of reforming the sex offender program.

On a somewhat similar note, Ramsey County recently made news with the recent release of the WATCH study which compared Hennepin and Ramsey Districts’ handling of sex trafficking cases from 2012 through 2016.  WATCH also wanted to see the impact of the 2011 Safe Harbor law, which was passed  to ensure that sexually exploited youths are viewed as victims and not criminals.  The entire report is a must-read for anyone who wants to know about how a person gets charged under MN Stat §609.322 and how, but the big news was how differently the same statute is applied in the different jurisdictions.  The Hennepin approach relies on the statute language “promotes prostitution” whereas the Ramsey approach relies on the language which specifically makes sex trafficking a crime.  According to this Star Tribune article there are other factors are at work but that the average prison sentence in Ramsey County was 19 years, more than three times as long as the Hennepin County average.  Moreover, Hennepin County defendants were significantly more likely to obtain downward sentencing departures.  The report had other recommendations  for the legislature, courts, and prosecutors.

 

 

Toasting Wine GlassesThe time for holiday cheer is near, when we raise our glasses to a joyful time of year. And if our holiday toasts contain alcohol, someone will need to make a trip to the local liquor store, which in Minnesota cannot be on a Sunday.  Yes, the backup plan is often an emergency run to Wisconsin to buy the goods.  This year, however, Christmas and New Years both fall on Sundays, making it impossible to find a last-minute solution across the state border.  Minnesota is one of 12 states that ban Sunday liquor sales, as can be seen on the first map at this page.  Being surrounded by states that allow Sunday liquor sales, one could argue that Minnesota’s law is an act of taxation goodwill to its neighbors.  After all, here is one day a week that neighboring states can collect liquor taxes from Minnesotans. (Here’s looking at you, Wisconsin.)

Minnesota’s ban on Sunday liquor sales goes back all 158 of its years The argument against such law is consumer convenience, of course. The argument for them is that small, locally owned liquor stores can compete better by having a day where they don’t have to staff the store and still stay competitive. (Meaning: Would you keep shopping at Bob’s Booze Barn if you could get exactly what you wanted on your Sunday grocery run to Trader Joe’s?) We can expect the issue to arise yet again with the commencement of the new legislative session, and House Speaker Kurt Daudt believes this time it will pass.

Minnesota holds special prominence in the history of regulating alcohol consumption.  Remember that Minnesota congressman Andrew Volstead authored the legislation that would eventually become the Prohibition Amendment, which is why it was named the Volstead Act.  Volstead lost his congressional seat in 1922. Prohibition spanned from 1920 to 1933, ands after its repeal Minnesota created its own Liquor Control Department in 1933 to enforce its Liquor Control Act.  The department employed 12 agents in its first year, during which time Minnesota still had many dry counties, and alcohol bootlegging was a major enforcement concern.  Ironically, prohibition years also highlighted Minnesota with the production of Minnesota 13 by Stearns County farmers.  This was a distilled corn whiskey (i.e. “moonshine”) that was renowned and coveted across the nation.