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.

 

Voter Fraud vs. Voter Disenfranchisement

BallotsVoter eligibility and disenfranchisement is a subject this blog has looked at before, especially as it relates to felons. Different states have different levels of participation allowed by felons, with Minnesota falling somewhere in the middle by allowing felons to vote again after completing their entire sentence including probation.  With this limitation in mind, Minnesota Statute §204C.12 states that election judges must give ballots to voters who have been challenged as ineligible to vote, but who self-certify that they are in fact eligible. Recent local news presents the scenario where the polling roster might have someone marked as challenged due to status as a felon, as well as ward of the state, or non-citizen status. If the potential voter certifies that they are none of those things, election judges are being told that they should allow the person to vote.

In a case currently filed in the Second Judicial District, the Minnesota Voter Alliance asserts that the polling roster should be taken as the final word, and that the election judges should not be allowed to override it by letting the person vote.   They have encouraged election judges to refuse to follow the rule, claiming there is more election fraud in Minnesota than is officially acknowledged.  The Minnesota Secretary of State’s office says that refusing to apply the rule is not an option, and that only a court has the authority to challenge the statute. (See how the Secretary of State’s 2016 Election Judge Guide explains how the situation should be handled.) In the delicate operation of conducting democratically sound elections, election fraud and voter disenfranchisement are the two opposite sides of the same coin. State officials have asserted that the danger of election fraud is minimal.  Other groups assert that the real danger is not fraud, but voter suppression.  A judge will rule on this issue today (Friday), at least for purposes of the upcoming election.  It could easily find its way to the Court of Appeals or the Minnesota Legislature, especially if there are close election results.

 

One of These Things Is Not Like the Others

capture

Here are pictures of some objects which could qualify as “dangerous weapons” under MN Stat. § 609.02 of the criminal code. They are (from top left) a flintlock pistol, a compound bow, an air pellet gun, and a liquid grenade (three of them in fact).  But (as sung on a popular children’s television show) one of these weapons just doesn’t belong here. Last week the Minnesota Supreme Court analyzed what kind of objects could actually be firearms, even though the objects might qualify “dangerous weapons.”  In State vs. Haywood, the Court specifically examined whether or not appellant’s BB gun qualified as a firearm under MN, because he had originally been convicted in Ramsey District Court under MN Stat § 609.165 for possessing a firearm which he was barred from doing due to his felon status. Now’s it’s time to play our game: Can you guess which dangerous weapon doesn’t belong here, now that the Court has finished its song? (Hint: It’s not the one that the Court gave special analysis to in Haywood.)

If you guessed that the  flintlock pistol is the only weapon here doesn’t belong, then you are right! In applying the reasoning of Haywood, the compound bow, the canister grenades, AND the BB gun might all be dangerous weapons, but they are not technically firearms. Why? First, the Court held that it was not necessary to look at past decisions of whether or not BB guns were classed as firearms. And since the Minnesota Legislature had never bothered to officially define a firearm, the Court concluded it was appropriate to apply the plain meaning in defining a firearm.  Sources including Merriam-Websters Collegiate Dictionary (“weapon from which a shot is discharged by gunpowder”’) and Black’s Law Dictionary (“weapon that expels a projectile …by the combustion of gunpowder or other explosive”) were consulted for their definitions.  The Court then concluded that appellant’s BB gun was NOT a firearm, since it did not operate by a gunpowder explosion.  Strictly speaking, the bow and grenades would not be either.  The flintlock pistol WOULD operate via projectile and gunpowder explosion, and also has MN Stat § 624.712 defining it specifically as an antique firearm.

Of course, future legislative action or court decisions might present us with a different game to play, with entirely different answers.

 

 

RIP to I-CAN!

I-CAN brochures in trashWe were stunned to learn of the recent demise of I-CAN! Legal’s online form system, which their website indicates is down due to “technical problems.”  Its popular divorce pleading application was a mainstay of the Minnesota Courts website, and we were always happy to promote it t our pro se patrons seeking divorce. The I-CAN! tool allowed users to prepare customized divorce pleadings much more quickly and accurately than they could with the traditional printout forms. They could be saved and edited electronically at the patron’s convenience.  They were also more compact and involved less paper to contend with. I-CAN! offered users the added advantage of electronic discretion as they prepared their forms, which they could later print out and file at the time of their choosing. In comparison, the hardcopy forms are lengthy and cumbersome, with the entire packet for a contested divorce with children numbering well over 150 pages.

The Minnesota Judicial Branch will no longer be offering I-CAN! on the Courts’ webpage, which it says is due to the company’s decision to no longer support the application. Website users are thus being directed to the od hardcopy forms instead. I-CAN! customers can still access their electronic documents that they have already prepared by calling 1-657-232-8281. Users who have other questions can always contact the state Self-Help Center at 651 259-3888.

Considering how valuable I-CAN! was for pro se divorce pleadings, we look forward to the Minnesota Judicial Branch’s next electronic divorce application.

 

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.

 

Growing and Nurturing your Law Firm

Photo of three books mentioned

As the Law Librarian returns from vacation, it is amazing to behold the recent legal news in our community.  Last weekend we learned of the passing of local legal icon and former Ramsey District Judge Larry Cohen.  We also received news of the final breakthrough in the decades-long mystery of Jacob Wetterling’s disappearance.  To properly acknowledge these recent happenings, we want to recognize the significant public service career of the late Judge Cohen, who also served as the mayor of Saint Paul.  We also wish to extend our deepest condolences the Wetterling family as their long saga reaches its sad close.

As the drum continues to beat steadily that legal markets and law practices are changing, be aware of some new books from the ABA that address these changes.  These books might be helpful tools as you chart the future course of your law firm, and avoid the hazards along the way.  We also remind you of our 80th Anniversary celebration and free CLE coming up on Monday, September 26, 2016, so checking out one of these books will be easy if you plan to attend.

  •  The Lawyer’s Guide to Succession Planning: A Project Management Approach for Successful Law Firm Transitions and Exits by J.W. Olmstead. The purpose of this book is to provide guidance to all firms, but especially smaller ones. After examining the “silver tsunami” of senior attorneys headed for retirement in the near future, the book offers transition approaches and action plans for dealing with the inevitable departures. Case studies and sample agreements are included, as well as downloadable files of sample worksheets and agreements.
  • Building Rainmakers: An A to Z Guide to Business Development Training by D.K. Keller.  Business development is not a traditional legal skill, but nowadays it is a necessary one.  This book is essentially an encyclopedia of business development training tools for firm management, including tips and tools from interviews with business leaders and rainmakers of leading firms.
  • Risk Management: Survival Tools for Law Firms (3d Ed.) by A.E. Davis and K.M. Lachter. Significantly updated from its 2007 edition, this book covers recent sea changes in law that relate to technology, the financial crisis, and the rise of non-lawyers. Just “staying out of trouble” in the professional sense now involves much more than avoiding traditional malpractice and ethical snags.  This revised book now includes special guidance for risk management and due diligence in light of these new forces.