Bernard Comes Down to Breath vs. Blood

Man driving vehicleLast week the 8-member U.S. Supreme Court released its opinion in the much-watched Birchfield v. North Dakota, which the Court heard in a consolidation with two other cases, including Minnesota’s own Bernard v. Minnesota. Remember that Bernard started as a 2012 police encounter on the river bank in Dakota County wherein the intoxicated-appearing defendant refused the breathalyzer test.   It is significant because of Minnesota’s implied consent statute criminalizes the refusal to take a DWI test (instead of mere grounds for license revocation).  (Minnesota adopted this more punitive law in 1989.  See 1989 Minnesota Laws, Ch. 290, Art 10.) Minnesota’s statute also states that one who drives in the state consents to chemical testing of breath, blood, or urine.

In its opinion, the Court (Justice Alito and four of his colleagues) held that the breathalyzer was not an intrusive test, and therefore its administration can be part of a legitimate search incident to a lawful arrest.  The Court drew the line at blood tests, holding that they were too invasive to be part of a lawful search incident to a lawful arrest, and thus required a warrant. So, Minnesota’s implied consent statute still stands, at least as far a breath testing as concerned. Three of the justices disagreed that there was a difference in blood and breath tests for Fourth Amendment purposes.  Justice Sotomayor (joined by Justice Ginsburg) dissented, pointing out that most breath tests in Minnesota are performed about 45 minutes after a person is detained, with plenty of time to get a warrant. Arguing the reverse, Justice Thomas’ dissent objected to “splitting hairs” between breath tests and blood tests, proposing that neither tests require warrants.  The Court did not analyze the constitutionality of testing urine in this context, which one might guess falls somewhere between breath and blood in the Court’s Birchfield analysis.

So what does this ruling mean for Minnesota and other states?  Expect to continue seeing this gadget in the criminal justice arena, despite challenges to its accuracy and effectiveness.

(Legal history buffs who enjoy this blog should read the Birchfield opinion for the information treats provided by the Court.  For instance, the opinion in State v. Noble (1926), 119 Ore. 674, 250 P. 833 is from an early case analyzing early drunk driving laws on Oregon.)


Borrowing Against Payday

loan business sign

The Consumer Financial Protection Bureau (CFPB) proposed a rule last week aimed at curbing predatory payday lending by requiring lenders to take steps to ensure that consumers can repay said loans, and also to cut off repeated debit attempts that rack up fees against the borrower.  The CFPB referred to such loans as ”debt traps,” due to the fees and penalties that users may not be aware of.  Fees can be assessed for either extending the loan or defaulting on it.  Since the loans are recouped directly from bank accounts, bank overdraft penalties are another common result.  These fees add insult to the injury in that such lenders may be charging interest fees of 300% or more.  The CFPB proposal brought attention to the plight of the vulnerable consumers that take out these payday loans and get caught in the debt cycle, but it also highlights the plight of those who decide to use such loans in the first place.  Opponents of this proposal pointed out that these loans serve people that might have few if any alternatives otherwise, so the question becomes whether or not these loans are a helping hand or “predatory quicksand.”  Read the entire CFPB report here.

The issue of payday loans is not new in Minnesota.  Minnesota’s payday loans statute requires lenders to check the credit history of their customers, and limits such loans to only four per customer within a year.  Last fall the Minnesota Supreme Court upheld the state’s payday lending law, which curbs high-interest, short-term loans.  In State of Minnesota vs. Integrity Advance LLC, the Court held in a suit brought by the Minnesota Attorney General that MN Statutes §47.60 and §47.601 are not violations of the commerce clause, because they only regulate commerce within the state.  Here is how Minnesota law compares to that of other states in the regulation of payday loan services.

If you are considering taking out a payday loan, read this fact sheet from the Minnesota Attorney General’s office first. If you have found yourself ensnared in a “debt trap” that started with a payday loan, there are some legal resources you might turn to. Pro bono organizations like Volunteer Lawyers Network (VLN) can offer debt collection defense for qualified individuals.  If you are currently facing collection efforts brought against you in Conciliation Court, you may be eligible to speak to an attorney through our Housing and Conciliation Court clinic.



Is this Subsidized Housing for White People?

Tilsner Artist LoftsThe Twin Cities arts community surfaced in the news lately, but not for the sake of art. It was because last month the Institute on Metropolitan Opportunity at the University of Minnesota Law School released its report The Rise of White-Segregated Subsidized Housing,” which examined the makeup of local artist lofts and their tax credit system in comparison to more conventional subsidized housing.  The study found that subsidized artist housing in the Twin Cities is overwhelmingly occupied by white populations, in stark contrast to other local public housing.  As an example, the Tilsner Artists Cooperative in the heart of Lowertown is 92% white, according to the report.  These findings made headlines in publications including The Atlantic as well as this week’s Minnesota Lawyer.

No one suggests that there is a deliberate, conscious effort to keep these artist lofts white-occupied.  Yet the report raises questions about the nature of the use of the Low Income Housing Tax Credit (LIHTC) system utilized by the artist housing projects.  Other unspoken forces may be at play.  Neighborhood residents may be more accommodating of “artists” occupying the historic building on their block, rather than “poor people.”  And the application process itself may be subtly unfavorable to artists of color.  To be fair, not all artist housing in the Twin Cities has such racially-skewed numbers.  At the 653 Artist Lofts in Frogtown, only 50 percent of residents are white. But these accommodations are much more modest in comparison to those like the Tilsner.  Indeed, some of the housing illuminated in this report stands out in its luxury factor.  This picture from the Pioneer Press of the rooftop deck of the Schmidt Artists Lofts shows truly stunning living amenities.

Is this an unfair attack on artists lofts?  Developers and housing advocates say that artist housing projects hit a variety of city goals, such as historic preservation and redevelopment of vacant industrial sites in neighborhoods that could sometimes use an economic development boost.  They keep an artistic element in areas that are gradually gentrifying.  They also feature in very public community events like the St. Paul Art Crawl.  Artists lend a vibe to a neighborhood that affluent residents will pay money to have in their backyards, which we might call the ”YIMBY” syndrome.  Also, where do artists and art communities stand in a free market setting without such subsidies as these to keep their work space affordable? The recent fate of the Jax Building gives us an idea.

Here’s a final, provocative question: Do these luxury work-life homes risk depriving artists of contact with a more diverse and representative society, which might inspire them to create more socially visible and relevant artwork?


Image - U.S. Supreme CourtMinnesota came into focus last week as part of Donald Trump’s presidential campaign.  Specifically, Minnesota Supreme Court Justice David Stras was part of a short list of potential U.S. Supreme Court appointees that Mr. Trump might pick if he were to be elected.  (Like the late Justice Rosalie Wahl, Stras has his beginnings in Kansas.)  A graduate of the University of Kansas School of Law, Justice Stras clerked for U.S. Supreme Court Justice Clarence Thomas.  Before then he held other clerkships and also practiced white collar criminal and appellate law in the firm of Sidley Austin Brown & Wood.  He became an adjunct professor at the University of Minnesota Law School in 2004, which he held until his appointment to the Minnesota Supreme Court by Governor Tim Pawlenty on July 1, 2010.  He was a popular professor at the “U”, as is reflected in the University of Minnesota Law Review’s tribute to Justice Stras.

In its recent article, the Minnesota Lawyer pointed out that Mr. Trump may be employing political strategy with his short list. (In fairness, what isn’t political when you are running for president?) All the names on his list are not only conservative thinkers in the judicial realm, but also hail from the Midwest.  Mr. Trump’s election game will likely depend on appealing to Midwestern states.  (“Conservative” can be a rather circumstantial concept where justices are concerned.  Stras dissented with Justice Alan Page in the headliner DWI case of State v. Bernard, now awaiting its final fate at the hands of the U.S. Supreme Court.)   Stras was previously named in this blog as the author of this fascinating historical article on Minnesota’s first U.S. Supreme Court Justice, Pierce Butler.  Stras may not have a long judicial record to his name, but check out some of these other articles to learn more about his analytical approach:

Of course, being on a presidential candidate’s short list of possible appointees is not a sure route to the nation’s highest bench.  Not even being an official appointee of a sitting president to an actual vacancy is a sure thing, as Merrick Garland can attest.


Our Modern “Asylum” System is Insane

file000863913766People living with mental illness are disproportionately represented in the criminal justice system. It is estimated that 1 million people with mental illnesses are arrested and booked in the U.S. each year.  This is no surprise to anyone who reads the local news.  Criminal arrests and convictions in our community are frequently revolving around defendants with confirmed mental health issues.  After last month’s law office tragedy, we are only too aware that local attorneys frequently find themselves representing mentally ill clients who can become dangerous.

The bigger problem is that mental illness is an affliction that our society hasn’t found a perfect way to manage.  In the early days of our country, the mentally ill were cared for at home by their relatives, which was easier when people lived in rural communities with open spaces and fewer neighbors.  What became known as the ”insane asylum” became more standard as our society became more urban and mobile.   (Read this interesting article about Minnesota’s history of institutionalizing the mentally ill.) These asylums developed a bad reputation in the 20th Century for their record of human rights violations, and many people understandably cheered the deinstitutionalization movement of the 1970′s.  Unfortunately, the end result was thousands of people needing help in managing their mental conditions, and not getting it.  Instead, their resulting instability often landed them behind bars.  And whereas people might feel safer when the people they consider to be dangerous are locked up,  jails seldom offer the consistent structure and treatment needed for their mental conditions.

It is  step in the right direction that lawmakers are considering the best training for law enforcement in handling mental health calls.  Other positive steps within the criminal justice system for handling the mentally ill include Minnesota’s 48 hour rule and the 2nd Judicial District Mental Health Court.  Albeit positive steps, they are no substitute for ongoing care and maintenance that the mentally ill are likely to need.  Read more about the dilemma in this recent Pioneer Press article.  The New York Times is also featuring an in-depth editorial discussion on this subject.



57-DSC_6403Our law library proudly promotes local criminal expungement resources to our patrons or others who might benefit from them. We are in partnership with the Second Judicial District, Volunteer Lawyers Network (VLN), and the Saint Paul Public Library to bring criminal expungement workshops to the public. Thus we were interested in the recent the Minnesota Court of Appeals decision in the case of State v. S.A.M, which involved a Rochester man seeking expungement of his 2003 felony conviction.  The Court held that his record could not be expunged because his previous guilty plea was to a charge not included in the list of expungible felonies under Minn. Stat. §609A.02.  It didn’t matter that the conviction in this case was subsequently “deemed a misdemeanor” per plea bargain terms.  Further, the Court declined to apply the language of sentencing statute Minn. Stat. §609.13 in order to make the appellant’s felony a misdemeanor for expungement purposes, because the original judgment was entered as a felony and not a misdemeanor.   This case is examined in this week’s issue of Minnesota Lawyer.

It’s not unusual for criminal defendants to plead guilty to a different charge in order to reach a quicker (and legally affordable) resolution to their prosecutions.  According to the U.S. Department of Justice90 to 95 percent of all criminal cases nationwide are resolved through plea bargains.  The expungement law does not specifically address situations where petitioners might have received a stay on a felony charge which was then converted to a misdemeanor. This gap in the law potentially leaves hundreds of expungement petitioners without the second chance remedy heralded by the 2014 expungement overhaul.  Indeed, the Court noted with some sympathy that its ruling  reveals a distinct hole in the expungement net, but held that it was up to the legislature to provide any needed clarification.

Does this ruling leave you with questions on if or how your expungement petition might be affected? Don’t reach any conclusions before discussing your case with an attorney.  If you are just starting to consider expungement, try a VLN seminar at a local public library. If you are preparing your petition paperwork, come to the Second Judicial District’s criminal expungement workshop which meets on the second and fourth Thursdays of each month here in the law library.


Nino’s Quieter Legacy (Justice Antonin Scalia)

Newspaper headline and bookThere was no ignoring last weekend’s news of the sudden death of Supreme Court Justice Antonin Scalia. Best known as the premier originalist on the nation’s highest bench, Scalia represented the position that the Constitution and each of its amendments mean exactly the same now as was intended on the day of their adoption. This is in contrast to the school of thought that views the Constitution as a living document, and that the task of interpreting it must adapt with the times.  (For a more in-depth look at Scalia’s interpretive style, consider his book Reading Law, wherein he and Bryan A. Garner spell out the principles of originalist interpretation.)  Typically employing his unique flair with words, Scalia was commonly regarded as both a champion and powerful voice for conservative causes before the Court.  Check out some of Scalia’s wittiest word-bites.

Scalia’s quieter legacy is the one he leaves behind to his surviving bench mates. By all recent news accounts, he was an engaging man who delighted in analyzing and debating the Constitution with his eight colleagues. The counter-position to his constitutional originalism was often represented by Ruth Bader Ginsburg, who usually analyzed fr0m the Constitution-as-living-document position. She remembered her friend and colleague this week, recounting their pointed opinion-and-dissent duets, which she says reached a higher quality as a result of their joint counter-efforts. Their professional camaraderie actually became an opera in 2013 (an art form that they were both big fans of). Indeed, all of his colleagues treasured their warm close relationships with him, and had the highest respect for the jurisprudence he brought to their team.  This is a special legacy in our era of hyper-partisan politics, which has destroyed any such camaraderie within our Congress.

One can honor Scalia’s legacy in this quiet fashion, by simply actively appreciating those people in our lives who force us to be a little sharper, a little more thorough, and a little more prepared. Even when (especially when) their positions might be diametrically opposed to ours, these are the people who can ultimately bring out the best in us and spur us to our greatest accomplishments.


mortarboardThe fate of the Minnesota Sex Offender Program (MSOP) remains in limbo. Last year Federal District Court Judge Donovan Frank ruled that the Program constituted unconstitutional confinement.  More recently, the Judge Frank ordered specific changes to the program, but the State appealed this ruling and the Program continues as usual.

Recent news has cast light on some of the program’s candidates for “graduation” if you will. Of note, Oliver Lenell Dority has served at the MSOP for roughly 20 years, and will soon be provisionally discharged.  Dority was sent to prison in 1995 after pleading guilty to raping two women. He was civilly committed to the program in 2009.  Since he will be settling in St. Paul, the Police Department held a public meeting this week for residents to ask questions. Similarly, Christopher Coker of Minneapolis has sought release to a halfway house following his commitment to the MSOP fifteen years ago.  He was originally convicted for the rapes of three teenage girls in three incidents over 1991 and 1992.  Recently the Minnesota Court of Appeals upheld the decision of a special panel which concluded that Coker should be released to a halfway house in light of his treatment progress, despite conflicting reports submitted by the Minnesota Department of Human Services stating that Coker wasn’t ready for this step. In an unpublished decision written by Chief Judge Edward Cleary, the Court of Appeals concluded it was permissible for the panel to give increased weight to the positive report presented by Coker’s primary in-house therapist.

Created in 1994, the MSOP presents a phased-treatment program, implying that offenders can “graduate” if they successfully complete their treatment. So what exactly does it take to graduate from the program?  Among its numerous policies, the MSOP offers a general outline of its graduation standards (See Phase III on deinstitutionalization and reintegration).  In addition, news articles reveal Dority’s lawyer stating that he cooperated in the program and was never sent back to lower levels, and security guard testimony that Coker had been on over 30 chaperoned visits outside the facility without incident.  Over the two decades of MSOP’s existence, very few participants have ”graduated,” and these were all provisional discharges.  (None have been released outright.)  Interestingly, the provisional release rate has picked up in recent years, perhaps indicating a new commitment on MSOP’s part to holding up the program’s ”graduation” ideal.  (Pressure from a federal court might do that, subsequent appeal filings aside.)  The dilemma might simply be that while citizens are understandably concerned about the possibility of a sex offender living in their community, no sex offender can be asked to do the difficult work of changing themselves without some hope of eventually regaining at least some of their freedom.


The OFP Comes of Age

file000388004075When it comes to the real-world application of a domestic abuse order for protection (OFP), the need for speed cannot be overlooked. This is why it was special news last week when the Minnesota Judicial Branch integrated OFP data into the Court Information System. It assists law enforcement by making OFP data immediately available to the BCA and FBI as soon as it goes into the Court Information System. Before this update,  courts transmitted these orders to law enforcement twice a day, so it was typically hours between a judge’s signing an OFP to cops on the beat having access to its existence. Likewise, the new system allows law enforcement to instantly report when an OFP has been served.  This new integration project began in the Ramsey District Court early last year, but now covers all Minnesota jurisdictions.

While this may not sound like a big development in itself, it is considering where domestic abuse law was in Minnesota not so long ago. Minnesota’s Domestic Abuse Act (MN Stat. §518B.01), which introduced the Order For Protection, was only adopted in 1979This article from the University of Minnesota Law School tells how a victim might not have any recourse prior to the OFP without filing for divorce (thus assuming she was married.)  The Act itself was groundbreaking in that it required police to make an arrest in cases where there was probable cause to believe an assault had occurred, but it was still far from perfect.  This 1989 Report of the Minnesota Supreme Court Task Force for Gender Fairness in the Courts (chaired by the late Honorable Rosalie Wahl) reveals that even ten years after their introduction, OFP’s were seldom enforced due to judges’ attitudes (and probably also the limits of information technology) of the time. It also reveals that one seeking a protective order then might actually have to pay a filing fee or get an in forma pauperis (which they don’t now).

This news aside, domestic abuse remains a troubling problem in our community.  If you need immediate help, contact Ramsey County Domestic Abuse/Harassment Office or Bridges to Safety.


Questions of Guilt and Innocence

Inside a PrisonMuch discussion has resulted from the ten-segment Netflix documentary Making a Murderer, which focused on the convictions of Wisconsinite Steven Avery and his nephew Brendan Dassey.  While this riveting documentary didn’t address all the evidence involved in this real-live case, it did spark troubling questions about the criminal justice process itself: How precise is our system of determining if one is guilty or innocent? How safe is our criminal justice system from possible corruption and bias at the local level? How much of our system is fueled by a human need to believe that the dangerous people are safely locked up and cannot harm us?  And are remedies like the appeals process or habeas corpus adequate for such justice errors?These are not mere abstract questions, for doubts and mistakes regarding guilt and innocence have existed for as long as criminal justice has. The trial and evidence leading to Minnesota’s first individual execution left major doubts as to the convicted’s guilt. As DNA technology emerged, many criminal convictions were found to be erroneous, including Avery’s earlier conviction.  Most wrongful convictions, however, involve non-DNA factors.

Avery’s situation is not cause for Minnesotans to feel smug and safe in their own state from justice failures like wrongful convictions. The case of Richard Dzubiak was one of a St. Paul man convicted of killing his mother by pushing her down the stairs. It later came to light that the original forensic report had been misread, and that the victim had in fact died from a fatal self-inflicted dose of antidepressants. Dzubiak then filed a motion to withdraw his guilty plea and receive a new trial, which was granted and resulted in his acquittal.  Another St. Paul man, Sherman Townsend, was charged with burglary of a Minneapolis residence on the word of the real burglar.  While Townsend was in prison serving the resulting sentence he received as part of a plea bargain, he met the actual burglar who was serving time on a different offense.  Fortunately this actual burglar stepped forward this time and testified that he had in fact committed the burglary, which led to an agreement between Townsend and prosecutors to have Townsend’s sentence commuted.  (It should be noted here that Townsend was an ex-con when the burglary occurred, which likely weakened his bargaining position with prosecutors.)

If you want to read more on the history and theory of wrongful convictions, consider these titles available at the Minnesota State Law Library:  Examining Wrongful Convictions: Stepping Back, Moving Morward (2014) by A. Redlich, et al., and False Justice: Eight Myths that Convict the Innocent (2011) by Jim and Nancy Petro.  Also check out the National Registry of Exonerations at the University of Michigan Law School If you or a relative has experienced what they believe is a wrongful conviction, know that challenging it is not a small legal task. You are strongly encouraged to work with a lawyer when exploring what possible post-conviction remedies you may have.  You can find a criminal lawyer through the Ramsey County Bar Association, or through the National Association of Criminal Defense Lawyers Also consider contacting the Minnesota Innocence Project.