Legal News

Magna Carta Endures 800 Years Later as the Body of Habeas Corpus

On 04.21.15, In Legal News, By The Law Librarian

Be aware that next Friday (May 1) is the day officially designated as Law Day. This is the day set aside to celebrate the rule of law. Sponsored by the American Bar Association (ABA), this annual event underscores how law and the legal process contribute to the freedoms that all Americans share. The day also provides opportunity to recognize the special role of courts in our democracy. President Eisenhower first established Law Day in 1958, and Congress issued a joint resolution designating May 1 as the official date for celebrating Law Day in 1961.

This year’s Law Day theme, “Magna Carta: Symbol of Freedom under Law” commemorates the 800th Anniversary of the Magna Carta. This historic document has come to embody a simple but enduring truth: No one, no matter how powerful, is above the law. It now stands as both a symbol and an inspiration for many basic rights Americans hold dear today, including due process, habeas corpus, and trial by jury. An excellent synopsis of the evolution of the Magna Carta into modern habeas corpus law can be read in Justice Anthony Kennedy’s opinion in in the U.S. Supreme Court case of Boumediene v. Bush, 553 U.S. 723 (2008), starting on page 9.

On Thursday, April 30 the Ramsey County Law Library and the Ramsey County Bar Association (RCBA) will mark Law Day with a presentation by William Mitchell Adjunct Professor Bradford Colbert titled “Due Process, Habeas Corpus, and the Magna Carta: Reflections on Representing Prisoners in the 21st Century.” This event, which is free and open to the public, will take place in Room 40 of the Ramsey County Courthouse. Registration will begin at 9:00 AM, with the program beginning at 9:30 AM. One CLE credit for the event will be available (free for RCBA members, and $10 for everyone else). The RCBA will then present their Distinguished Humanitarian Service and Liberty Bell Awards in a special presentation and reception. Guests are then invited to the 18th floor for a tour of the law library. Read more about this special event and mark your calendars to attend!

Trash Talk, Especially for Lawyers

On 04.01.15, In Legal News, Solo & Small Firm Resources & Tips, By The Law Librarian

Last week fans of Better Call Saul got to watch hero/villian Jimmy McGill essentially demonstrate the legal principle that there is no privacy expectation protected under the Fourth Amendment of the U.S. Constitution when it comes to your curbside garbage. In 1988, the U.S. Supreme Court held in California v. Greenwood that the Constitution does not prohibit warrantless search of curbside garbage left for collection. (486 U.S. 35). Coincidentally, the Minnesota Supreme Court recently put the whole garbage-as-discoverable-evidence doctrine under the microscope of the Minnesota Constitution in the case of State v. McMurray (A12-2266).

The facts of McMurray basically involved police seizure of contents left by McMurray in opaque plastic garbage bags on his curbside for trash collection. Murray’s attorneys argued that the warrantless search of his garbage was an impermissible search and seizure under Article 1 Section 10 of the Minnesota Constitution, which they argued protects beyond the U.S. Constitution standard. The Minnesota Supreme Court concluded that since this provision of the Minnesota Constitution reads the same as the Fourth Amendment of the US Constitution, it doesn’t afford any more privacy. Thus, police officers in Minnesota didn’t need a search warrant to sift through McMurray’s trash, since there is no expectation of privacy once garbage is placed outside for collection, just like in Greenwood. In a provocative dissent, Justice Lillehaug wrote that the nature of trash has changed since Greenwood, as has the scientific means of analyzing it for information. The majority, however, concluded that “Minnesotans are well aware of potential threats to their privacy and security and have prudently altered their conduct in response.”

So now Minnesotans, be aware that our Supreme Court believes that you can prudently manage your own garbage and its secure disposal. Garbage management and disposal, however, is a far trickier proposition in the professional legal context than it is for common households. Are you an attorney anticipating a big “clean out” of your office in the near future? Do yourself a favor and adopt a formal document destruction policy for your practice if you don’t already have one. Second, give a moment’s thought to what you plan to do with that recycling bin that you plan fill when carrying out your office purge. Assuming that the documents or other materials in the bin can be legally and ethically destroyed (a subject beyond the scope of this blog), do you know the proper and secure means of doing so? As for your clients, they should also know which materials should be kept, destroyed, or turned over to you, plus the secure means to carry out each option. (Obviously, all of these questions should be asked not only of the hardcopy documents and objects at hand, but also of electronic information.)

Before your (or your client’s) private information comes into the wrong hands (i.e. identity thieves, stalkers, or enterprising Jimmy McGill-esque snoops), consider reading some of these resources available at the law library:

Frans, Myron L., and Christopher J. Kopka, “Records Management and Retention Policies for Law Firms,” Bench & Bar of Minnesota (April 1998): 28-34. (This article provides a practical overview on your ethical obligations from a Minnesota standpoint.)
Kent A. Gernander, Client Relations Formbook (2014 2nd Ed.). (See Chapter VI – File Retention and Destruction)
Robert L. Haig, Successful Partnering Between Inside and Outside Counsel (2010). (See Chapter 29 – Management of Corporate Documents.)

Legislative Focus on the Family

On 03.18.15, In Legal News, Local News, By The Law Librarian

Family law is having its day in the current session of the Minnesota Legislature. To start, a bill that would have drastically changed divorce proceedings by allowing couples to end marriages outside the court captured headlines earlier this month, but appears to have stagnated. Not so some other family-oriented proposed laws currently being considered at the capital. According to an interesting article the March 16 issue of Minnesota Lawyer, a group called the Child Custody Dialogue Group has met regularly since 2012 in the hopes of forging consensus on a whole host of family law reforms. If enacted, these proposed reforms would mark the most significant overhaul to family law in Minnesota decades.

Here are some of the bills that came from the efforts of the Child Custody Dialogue Group: Specifically, under SF1191/HF465, the 13 current “best interests of the child” factors in child custody proceedings would be scrapped in favor of 12 new factors. Topping the new list would be “a child’s physical, emotional, cultural, spiritual, and other needs.” (To contrast, the 13 custody factors currently in use under MN Stat §518.17 begin with “the wishes of the child’s parent or parents as to custody.”) Also of note, SF1103/ HF518 would require courts to award compensatory parenting time, and in some cases civil penalties, when parenting time is denied intentionally and repeatedly, unless the denial was necessary to protect the child’s physical or emotional health. Additionally, HF464/SF1424 provides for simple market rate-based annual interest rate calculations, for family law judgments. It would also for a lower rate or no interest (although not for child support or spousal maintenance judgments) if the parties agree or the court finds it necessary to avoid unfair hardship, plus move the notice of rights language from “Appendix A” into the actual order for divorce, custody, and parenting time.

Of course, time waits for no child. If you are a parent or practitioner hoping to craft the right parenting agreement for your situation, you know the legislature won’t do it for you. Come into the library to consult the tools we have for researching and drafting custody agreements. Some of them include:

Building a Parenting Agreement that Works: Child Custody Agreements Step by Step (Nolo 8th Ed. 2014)
Child Custody and Visitation Law & Practice (LexisNexis 2011)
Minnesota Child Custody Deskbook (MN CLE 2nd Ed. 2011)

Charles Hamilton Houston (1895-1950)

On 02.25.15, In Legal News, By The Law Librarian

Scene from the Old Courthouse in St. Louis where the Dred Scott case was filed

Earlier this month the Ramsey County Bar Association presented a CLE seminar: Leadership for Social Justice. As part of that seminar, the quiet leadership of Charles Hamilton Houston was highlighted. To close out African American History Month, let us consider this astute civil rights figure. Though less well-known than some other civil rights pioneers, he was nonetheless key to ending the oppressive Jim Crow regime that defined our nation’s race relations in the period between the post-Civil War Reconstruction Era and the post-WWII Civil Rights Movement.

Born in 1895, Charles Hamilton Houston led a routine academic life of teaching English at Howard University until he became a First Lieutenant in the United States Army during WWI. Outraged at the poor treatment he saw heaped upon black soldiers from their fellow Americans, Houston vowed to dedicate his life to change. When he concluded his military service in 1919, he entered Harvard Law School and graduated in 1923. While there, he was the first African American to serve as an editor of the Harvard Law Review. (Not to be confused with the Review’s first African American president.) In 1924 he was admitted to the D.C. Bar and joined his father’s law practice. In the years that followed, Houston became special counsel for the NAACP, and also joined the faculty at Howard University School of Law. In this academic capacity he became a mentor to Thurgood Marshall, who would later argue Brown vs. The Board of Education.

It was around this time that Houston struck upon the idea that unequal education was the weak spot of Jim Crow, given the failure of states to carry out the “separate but equal” standard mandated by the 1895 Supreme Court case, Plessy v. Ferguson. Houston’s idea was worked into the successful legal strategy used by the plaintiffs in the 1954 case of Brown, wherein the U.S. Supreme struck down the “separate but equal” doctrine. Houston died in 1950, four years before this groundbreaking decision, but he had played a role in nearly every civil rights case before the Supreme Court from 1930 until his death.

These details of Houston’s life are laid out in this page of the NAACP website. One can also read more about Charles Hamilton Houston and the entire Jim Crow custom in the book From Jim Crow to Civil Rights (Oxford 2004), available in our library collection. Also consider the provocative book The New Jim Crow (The New Press 2010), which asserts that the old Jim Crow as taken a modern shape in the form of mass incarceration, also available in our library.

Was your Vehicle a Witness to a Crime?

On 01.28.15, In Legal News, Self-Help Resources, By The Law Librarian

Was your vehicle or other property recently seized by law enforcement as part of an investigation? You might feel that your car’s impoundment was downright criminal, but getting it back will require civil action on your part. And it’s not just cars that can be seized. Firearms are also subject to government seizure, as are recreational vehicles like your snowmobile or boat if they suspected to be tools in the commission of DWIs or fishing/gaming offenses. Last year brought some changes to Minnesota civil forfeiture law. In May the Minnesota Legislature passed legislation wherein the government would no longer be allowed to keep property and cash seized in drug cases when there is no criminal conviction. In August the Minnesota Supreme Court ruled in Garcia –Mendoza v. 2003 Chevy Tahoe that the exclusionary rule applied to civil forfeiture as well as criminal search and seizure actions. Despite these changes, this Minnesota House Research Information Brief from 2010 still provides good information on what Minnesota civil forfeiture law covers.

Unlike you, your property has none of the constitutional rights protected under criminal law, so actions to recover government-seized property have to be brought in civil court. More often than not, your seized property will be worth less than $15,000, so such recovery action would properly be brought in Conciliation Court. If you recently had your property seized in Ramsey County, and were served with a Notice of Seizure and Intent to Forfeit as part of a DWI arrest, you can find helpful procedural information at the 2nd Judicial District website. Demand Claim and other related forms are available at the Minnesota Courts website. You will also want to read the current Minnesota forfeiture statute (MN Stat. §609.531) for more information. Also consider coming to our Housing and Conciliation Court clinic for a free lawyer consultation to see where you (and your car) stand.

Despite the recent changes to Minnesota forfeiture law, civil forfeiture remains a controversial government tool. For example, this recent article from the Institute for Justice presents an investigation into the very usefulness of civil forfeiture as a force for civic good.

The “I” in DWI

On 01.07.15, In Legal News, By The Law Librarian

The new year means new beginnings for many, especially with the revised expungement law taking effect this month. Those who were picked up on a DWI (driving while impaired) over the holidays may be seeking a new start of a different sort. Courts are starting to recognize that DWI offenders need more from the judicial system than the typical charge-convict-sentence cycle. Preventing future offenses means getting to the varied and personal root causes behind DWI, specifically, the “I” component. This is why DWI courts are gaining attention, with their dedication to changing the behavior of alcohol and other drug dependent offenders arrested for DWI, while using the drug court model to address the root cause of impaired driving. DWI court efforts are led by the National Center for DWI Courts, which is supported by entities including the U.S. Department of Transportation.

DWI rates are decreasing nationwide as a result of several factors. Recent studies have shown that Minnesota’s specialty courts for chronic drunken drivers reduce recidivism and save taxpayers money. At the end of 2014, Minnesota had 16 DWI or hybrid DWI/drug courts. For 2015, DWI courts are expanding into Norman, Polk and Red Lake counties .

The Ramsey County DWI Court is for persons charged with three or more gross misdemeanor DWI offenses. This specialty court program provides “intensive supervision for persons who are interested in changing their drinking and driving behavior and ending their cycle in the criminal justice system.” The program, which accommodates approximately 60 participants at a time, involves regular court appearances for at least 24 months, participation in a substance abuse treatment program, and attending a MADD victim-impact panel.

Hello 2015 – And a Brand New Year for Minnesota Expungement

On 12.30.14, In Legal News, Self-Help Resources, Solo & Small Firm Resources & Tips, By The Law Librarian

After months of waiting, Minnesota’s new criminal expungement law takes effect January 1, 2015. This new law will give Minnesota judges statutory authority to seal criminal records covering a broader range of circumstances than were previously available. This is significant considering that according to the Council on Crime and Justice, one in four Minnesotans has a criminal record. MPR posted an article which helps illustrate how a well-meaning person might wind up with a criminal record and why he or she might benefit from expungement as a tool to get back on track.

For Ramsey County residents with prior criminal convictions or arrests, there has never been a better time to attend a local expungement workshop. In addition to the Court-sponsored workshops that take place on the second and fourth Thursday of each month workshops in the Law Library, workshops are also available on the Third Friday of each month at the Rondo Outreach Library. Starting in February, workshops will also be available the first Friday of each month at the Arlington Hills Library and Community Center. See this poster for handy reference to all the workshops.

Take a look at the law and see how it has been expanded. This article from the Bench and Bar of Minnesota helps explain the legal foundations of the new expungement law, as does this practice tip sheet from Volunteer Lawyers Network (VLN).

The Right Treatment for Sex Offenders

On 11.26.14, In Legal News, Local News, By The Law Librarian

Nothing makes for less festive holiday conversation than sex offender treatment options. It’s just too easy to vilify and stigmatize those who might need such treatments as mere monsters, rather than seeing them as our fellow citizens who are in need of help. The pedophile priest scandal that has rocked our nation and touched our community demonstrates the large-scale damage that can result from systematic denial and institutionalized ignorance of those with inappropriate or deviant sexual predilections. It also shows why we should be aware of (if not sympathetic to) those that might need appropriate intervention for their conditions before their actions make news headlines.

Sex offender treatment was a hot subject in our area last week. The first newsworthy event was the release of the expert report evaluating the Minnesota Sex Offender Program (MSOP), as ordered by U.S. District Court Judge Frank Donovan earlier this year. As observed in our previous blog, the MSOP came under federal fire for essentially incarcerating people in the guise of civil commitment and “treatment.” What has made MSOP so controversial is that it operates largely on a civil process and it’s where people might wind up at the end of serving a criminal sentence. A person does not get admitted via the tidy process of criminal conviction (with its more formalized Constitutional protections). Its “clients” reportedly receive little in the way of actual treatment, and have virtually no chance of being released from the program. Thus, the expert report calls for changes to the program. (***The report that the committee released last week is available for reading here at the library.***)

Similarly, it was announced this week that Ramsey County was withdrawing its funding to ABC, a local mental health project that has provided treatment for adult sex offenders with mental disabilities. Programs like ABC are not to be confused with MSOP, because they are usually day treatment programs and not civil commitments. Without their contract with the county, ABC has now shut its doors. Ramsey County announced its plan to steer its future treatment options toward a more “individualized” and “evidence-based” direction. (ABC operated on group therapy models.) Yet others say that ABC’s closure would be a special loss for the Ramsey County community, given that ABC catered primarily to mentally ill adults.

Judgment upon Judges

On 11.12.14, In Legal News, Self-Help Resources, Solo & Small Firm Resources & Tips, By The Law Librarian

Despite his professional reputation (including an outstanding judge award from the state’s District Judges Association) and the popularity of his Pendleton Updates blog, Judge Alan Pendleton found himself under the regulatory microscope last week. He now faces discipline from the Board on Judicial Standards for failing to maintain a proper residence in his Anoka County jurisdiction. He allegedly had sold his Anoka condominium in November of 2013 and moved into his wife’s Hennepin County residence to be closer to their children, and stayed there until August. While the details of his domicile seem like a tiny blip on any measure of judicial wrongdoing, it is a reminder of the regulations that Minnesota judges must comply with. With a Robert Downie Jr. movie and a (now-cancelled) NBC sitcom casting fictional light on the lives of judges, it is especially timely to look at the subject of judge regulation.

It is also not unusual for the Law Librarian to encounter library patrons who believe that the judge in their particular case has acted improperly (or at least very unfairly). If someone feels that their particular judge has truly stepped out of the official line, they may want to consult the Minnesota Code of Judicial Conduct. If this convinces them that their judge has indeed acted improperly, they may wish to contact the Minnesota Board of Judicial Standards and file a complaint. Finally, the Minnesota State Law Library offers an extensive (and growing) collection of information-rich LibGuides, including this one on judge regulation. Also consider this interesting article from the University of St Thomas Law Review that looks at judicial misconduct. In addition to its examples of judges stepping out of line, it provides a scholarly look at why we all depend on an ethically sound judiciary.

On Getting that Second Chance

On 10.15.14, In Legal News, Self-Help Resources, By The Law Librarian

Shon Hopwood as he appears in Wikipedia

The Law Librarian shared her enthusiasm last year about the life change of bank robber turned future-lawyer Shon Hopwood (who is clerking for U.S. Court of Appeals Judge Janice Rogers Brown). Hopwood graduated from the University of Washington School of Law this year. According to the October 6, 2014 edition of the National Law Journal, the Washington state Supreme Court has ruled that Hopwood will be allowed to sit for the state bar exam next year, and be admitted to the bar should he pass. The future is looking bright for Mr. Hopwood, not to mention his wife and two children. At the root of the Shon Hopwood story are the people and institutions that believed in him: A prison law library, a law school, a federal appeals court judge, and a state supreme court. Stories like Hopwood’s are only possible when people are given the tools to mend their ways and change their paths.

Early this week an editorial in the Pioneer Press explained how former offenders are blocked from finding meaningful employment, which is their key to transitioning to a law-abiding lifestyle. The result is a “cycle of poverty and incarceration for hundreds of thousands of Americans and their families.” The article referred to data suggesting that more than half of released ex-offenders remain unemployed up to a year after their release from custody. In addition to the twice-monthly expungement workshops that take place in the Ramsey County Law Library, there are now workshops being presented by VLN at the Rondo Outreach Library. The next one will take place this Friday (October 17, 2014) from noon to 3:00 PM.

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