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.

 
Bedroom door

You unlock this door with the key of accommodation…

Suppose you are a homeowner living peacefully in your own abode.  You get along well with your neighbors.  Your property taxes are up to date and you keep your sidewalks clear.   You and your home have no plans of winding up in court.  You certainly never give thought to landlord-tenant law because you aren’t leasing out your home. And yet you might find yourself in in situation that could leave you legally obligated as a landlord.  Here are but a few examples:

  • Months ago you let your significant other move into your home to save money.  You now regret this move as your relationship has gone downhill.  If you break up with him or her, can’t you simply show them to the door?  Maybe not.  They may now have the rights of a legal tenant, in which case you the landlord would have to legally evict them.
  • Your nephew lost his job and could no longer afford his apartment.  You let him stay in your your basement until he found another job.  He has since overstayed his welcome and is not looking for a job. So now it’s adios sobrino, right? Not necessarily.  He may no longer be simply a guest, but a bona fide legal tenant.
  • You hired a local college student to help take care of you and your home in exchange for room and board. Now you think she is stealing from you and you’ve decided fire her.  After you can her she is out the door, right?  This may not be a simple business employee relationship wherein termination automatically removes her from your home.  You may have to take more extensive legal steps.

These are but a few examples of how people might (or might not) accidentally take on landlord status without knowing it.  If you are in any of these situations and aren’t sure exactly where you stand, you should discuss your situation with an attorney.  For Ramsey County residents, this can be as simple as coming to our Tuesday afternoon Housing and Conciliation Court clinic, where you can speak to a volunteer attorney for up to thirty minutes.  Call us or see our flyer for more details.

 

Minnesota CapitolWith the Minnesota Legislature now in session and March being Women’s History Month, its timely to consider how women’s suffrage opened the door to allowing women to hold elected positions. Minnesota granted women the right to vote in 1919, but only in presidential elections. The following year saw the passage of the Nineteenth Amendment, and women’s suffrage became universal in all states.  (Minnesota might have been a tad slow on women’s suffrage, because of its brewing industry. Some camps feared that votes from women would tilt outcomes on questions that involved liquor.)

In the 1922 election, four women were elected as Minnesota’s first female legislators: Mabeth Hurd Paige, Sue Metger Dickey Hough, and Myrtle Cain from Hennepin County, and Hannah Kempfer of Otter Tail County.  Women started to slowly trickle into the Minnesota House of Representatives thereafter, but none would represent a Ramsey County district until 1975 with the election of Margaret Mary “Peggy” Byrne. (Possibly the Ramsey districts were slow to elect women due to the long-held position of the Catholic Church against women’s suffrage and public roles for women in general. )

Mabeth Hurd Paige served the longest of the original four, completing a total of ten terms.  Born in Massachusetts in 1869, she finished high school there before moving to Nebraska to care for her ailing grandmother.  She attended the University of Nebraska at Lincoln before going on to study art at the Academie Julian in Paris, France. Upon returning to the United States, she accepted a job teaching art in the Minneapolis public schools.  She then married University of Minnesota Law School Professor James Paige in 1895. It was at her husband’s urging that she enrolled and obtained a law degree from the University, graduating in 1900. Later she became president of the Women’s Christian Association in Minneapolis, and also founded the Minneapolis chapter of the Urban League.  Upon the passage of universal women’s suffrage in 1920, she successfully ran for the Minnesota House of Representatives in 1922 along with the other-named three.  She retired from the Legislature in 1945 and died in 1961.   Her legislative profile from 1923 presents more information on her.

 

Books and newspaperLast weekend saw the passing of Nancy Davis Reagan, best rememberd as the fiercely loyal and colorful first lady of the Eighties. Less well-known was the challenging life she lived with her late husband, former President Ronald Reagan after they left the White House. Nancy Reagan stated that her toughest battle was being the spouse of a man slowly dying with Alzheimer’s. In an interview she recalled the loneliness of no longer being able to share “remember when” moments with her husband, and referred to these difficult ten years before he died in 2004 as “the long goodbye.”

Consider Ms. Reagan’s difficulties in light of fact that her husband’s case was probably a “best case scenario” where Alzheimer’s is concerned.  As a successful actor and former governor and president, Reagan presumably had better-than-average financial resources and retiree benefits. Nancy was likely assisted by round-clock home health care in tending to her husband. He in turn benefited from a supportive family and a loving partner in Nancy who seldom left his side. He also knew from at least 1994 on that he had Alzheimer’s, which gave him some time to make plans for his fading sunset years. Many (if not most) people facing Alzjeimer’s come up short in at least one of these areas.

Whether you are an attorney or a family member, there is no simple roadmap for dealing with all the issues related to Alzheimer’s (and other dementia-related afflictions). Your situation might call for multiple legal resources and tools. For lawyers, consider starting with Alzheimer’s and the Law: Counseling Clients with Dementia and Their Families by K. Peck and R. Law. There are also multiple resources on the ABA Commission on Law and Aging page. We also have numerous treaties and tools in the library addressing elder care issues.

For laypeople, consider contacting the Minnesota-North Dakota chapter of the Alzheimer’s Association to learn what local services are available. Be aware that your situation may call for legal tools including Power of Attorney, Guardianships/Conservatorships, living trusts, and arrangements that encompass assisted living. Most of all, give yourself the benefit of discussing your situation with an attorney. You can find legal help through resources including Volunteers of America or the Ramsey County Bar Association.

 

CourtroomApparently it was a big deal last week when U.S. Supreme Court Justice Clarence Thomas broke his decade-long silence on the bench and began ask counsel several questions during oral arguments. Maybe Thomas spoke up was because this particular case (involving 2nd Amendment gun rights) was a subject he is passionate about, or maybe he had previously been hiding in “Nino’s” shadow all these years (as the graph might suggest). In any event, this news event raises the subject of addressing the bench, encouraging judges to ask questions, and hopefully providing accurate and persuasive answers in response.

Indeed, lawyers should pray for a rainstorm of questions from the bench. A judge who has no questions might have already decided on the matter at hand (or not read your brief or memorandum). Probably nowhere should you hope for questions more than when you are presenting and arguing a motion. (After all, you are asking the court to diverge from its otherwise-planned path.) So anticipate those questions and be ready to offer brief-but-enlightening answers with which you can engage the judge in a stimulating informational discourse. To this end, we offer some helpful materials:

  • Motion Practice (6th Ed.) by D. Herr, et al. Its chapter 6.05 on oral argument specifically presents tips for answering the questions a judge is likely to ask.
  • A Checklist Approach to Successful Practice (CLE 2015) contains “8 Ways to Make the Most of Oral Argument,” an excellent three-page tip sheet for communicating successfully with the judge.
  • The end chapters of informal-but-informative McElhaney’s Trial Notebook (4th Ed.) for helpful lessons on set against story narratives on making your points and handling questions from the bench.
  •  Consider reading “[T]he Judge Looks Bored: How to Keep the Judge Interested.” Here, Hennepin District Judge Jay Quam offers his own tips to lawyers for successfully interacting with the judge. (Minnesota Bench and Bar, Dec. 2011)

You may be presenting your argument at the appellate level, which means multiple judges.  If so, consider “[T]he Word on Oral Arguments” by David Ziemer (Minnesota Lawyer, May 25, 2005).   Ziemer reminds you to be confident, considering that your case was taken because the court wants to hear more about it and possibly give it precedential significance. Extensive questions in the appellate setting mean that the judges have not only read your brief, but are considering policy ramifications of their possible decision options.  Ziemer also provides tools to help you focus the attention of the judges. (A recitation of multiple dry details will only have a tranquilizer effect on them.)

All of these suggestions are short and easy reads, so come by the Law Library to check them out.

 

Minnesota and Black History Month

Civil War battalionSince this is the last week of Black History Month, it is appropriate to celebrate historical legal milestones of local black Minnesotans, such as Frederick McGhee, Stephen Maxwell, and Alan Page. But it is equally appropriate to look at some of our region’s less-celebratory milestones. It may surprise many to learn that Minnesota hasn’t always been on what we consider to be the “right side of history.”  It may surprise even more to learn that our local community often stood in the way of what we now consider progress.  Consider these examples:

• Minnesota had a prominent role in the Dred Scott case which ended with the U.S. Supreme Court declaring that the “black man had no rights that the white man is bound to respect.”  Scott had  been the slave of a military surgeon posted at Fort Snelling in the 1840s.  In this historical case, Scott had essentially argued that by virtue of his “master’s” death and of living for years in free states and territories, he become a free man.

That hundreds of Minnesotans died fighting on the Union side of the Civil War is well-known.   Less well-known is the fact that that in 1863, a Missouri steam ship docked at Lowertown carrying a load of escaped slaves. No welcome mat greeted them, but instead the travelers were confronted with a mob of angry white laborers demanding that they return to the South.*

• Minnesota may be free of confederate symbolism on its flag, but a popular lake in Minneapolis immortalizes a slave owner with its name. John Calhoun of South Carolina promoted slavery as a “positive good.” Calhoun is relevant to local history as the founder of Fort Snelling, where we know that military personnel were welcome to keep their slaves at hand.

• It’s easy to think that mob lynchings of black men are just a shameful stain on the history of southern states, and certainly not part of our fair state’s history. Yet on June 15, 1920, three black circus workers were hung in Duluth by a citizen group following allegations of their raping a white resident. The men had not yet been tried, and little evidence was available to back up these allegations.

The City of St. Paul is 15% African American, but had no black legislators until 2010. That was the year that voters elected John Harrington to the Minnesota Senate and Rena Moran to the House of Representatives.  Miinneapolis did better on this measure, by electing Frank Wheaton as the first African American legislator in the state of Minnesota in 1898.

When it comes to history, it is understandable that we might gravitate to the facts which paint our community in its most positive and flattering light.  But our history includes those not-so-positive events as well.  We cannot take lessons from our history unless we confront it entirely, and use it as the blueprint in planning our future.

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*  This event and others are captured in Degrees of Freedom: The Origin of Civil Rights in Minnesota by Dr. William Green.  This, plus Dr. Green’s other book, A Peculiar Imbalance: The Fall and Rise of Racial Equality in early Minnesota are both excellent resources for researching some of the more obscure details of Minnesota’s early history.

 

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.

 

Hugo O. Hanft

Judge Hugo O. HanftHugo O. Hanft was born in 1871 in St. Peter, Minnesota to Oscar and Anna Hanft.  Oscar was a tinmaker, and died when Hugo was only six years old.  Young Hugo attended school in New Ulm.  Graduating at age 16, he desired admission to the University of Minnesota Law School, but was too young.  Instead he enrolled in the German-American Teachers’ Seminary (Miwaukee), and graduated from there in 1889. He then taught at the Peru, IL High School until 1894, where he served as principal his final year. He finally enrolled in the University of Minnesota Law School, and graduated in 1896.  He was admitted to the Minnesota Bar that same year.

Hanft served as assistant Ramsey County attorney in 1896 under Pierce Butler.  The following year he went into private practice, and returned to the University of Minnesota to receive his masters in law degree.  He left his practice in  1898 to serve as First Lieutenant in the Army during the Spanish-American War.  Upon returning he married Laura Holly, and they had one child, Hugo Holly Hanft. He resumed private practice until his election to the Saint Paul Municipal Court in 1906.  He served as a municipal judge until he was elected as a Ramsey County District Judge in 1914, where he served from 1915 to 1943.  Judge Hanft also presided over the sensational 1917 case against Frank Dunn for the murder of his separated wife, which resulted in Dunn being found guilty and spending the rest of his life in prison. ( This story is captured in the popular book Murder has a Public Face: Crime and Punishment in the Speed Graphic Era, by Larry Millet.)   Hanft was also a candidate for Minnesota Supreme Court Justice in 1924. He finally retired from the Ramsey District Court bench in 1943.  Hugo Hanft died in 1949, preceded by his wife, Laura, who died in 1931.

As a judge, Hanft was very protective of youth, but was otherwise a “hands-off” guy as he understood the role of government.  As a municipal judge he was concerned about the effects of alcohol, “penny parlors,” and dance halls on the young, as well as what he thought was lack of proper parental supervision.  He thus inaugurated “compulsory economy” as a municipal judge, requiring young men charged with drunkenness to put portions of their income in savings, and to pay their parents for room and board.  As a district judge he continued to protect youth with his long-term campaign against alcohol “bootleggers.”  Conversely, in 1928 he denied the right of state agencies to control the financial policies of the University of Minnesota.  In 1934 he also struck down state income tax as unconstitutional, only to see it reinstated by the Minnesota Supreme Court in Reed v. Bjornson et al. (253 N.W. 102).

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The Law Librarian extends special thanks to the George Latimer Central Library.  Their collection of historic newspaper clippings from the Pioneer Press and Saint Paul Dispatch were invaluable in locating the information presented here. 

 

 

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.