JUST SAYING NO - Bench and Bar of Minnesota

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Official Publication of the Minnesota State Bar Association
Just
Saying No
The Limits of
Warrantless Searches
Judicare: The ‘low
bono’ option you
may not know
The Evolving World
of Employee Leave
The People’s Court
ummary of
S
Private Discipline
Volume LXXIII Number II
February 2016
www.mnbar.org
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OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION
VOLUME LXXIII NUMBER II
February 2016
www.mnbar.org
4MSBA Blogs
On the cover:
Just Saying No
Transitioning to the bench
By Judge Richard H. Kyle, Jr.
7President’s Page
The people’s court
By Mike Unger
The Limits of Warrantless Searches
Minnesota is one of a handful of U.S.
states that have criminalized the refusal
to submit to a warrantless search in
suspected DUI cases. This term, the U.S.
Supreme Court will review a Minnesota
case as it determines whether states can
make refusing to submit to a warrantless
search a criminal act.
By Charles Ramsay and Dan Koewler
Appellate Section raises
money for Page’s foundation
What, Where & When
12
Professional Responsibility
CLEs & events
Summary of private discipline
By Timothy M. Burke
24
www.mnbar.org
29
42
How some states are filling in
the gaps left by the FMLA
‘Discovering the passion
that drives you’
Meet Heather Gilbert
Judicare: The ‘low bono’
option you may not know
By Lindsay Davis
The Evolving World
of Employee Leave
15Colleague Corner
Do Good.
Gain experience.
(Get paid.)
21
8MSBA in Action
10
16
The place to start when addressing a
request for medical or sick leave is the
federal Family and Medical Leave Act
(FMLA). But challenges to application
of the FMLA are compounded by what
are commonly referred to as miniFMLAs—state medical leave laws such
as the one that exists in Minnesota—and
by the increasing number of states that
are implementing laws concerning the
provision and use of employee sick leave.
By Bobbi Leonard and
JoLynn Markison
44
48
Notes & Trends
Landmarks in the law
People & Practice
Member announcements
Opportunity Market
Classified ads
Books & Bytes
Legal publishing
There’s more online
at www.mnbenchbar.com
Leave comments, read digital-only
articles, and search the article
archive. Jobs and services are posted
daily in the opportunity market.
February 2016 s Bench&Bar of Minnesota 1
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MSBABlogs
MSBA
www.mnbar.org/blogs
Transitioning to the bench
By Judge Richard H. Kyle, Jr.
(Editor’s note: The MSBA Voices blog is asking new judges to answer a few
questions about their experience on the bench. Here’s our first posting—
from former MSBA President Richard H. Kyle, Jr., who was appointed to the
2nd Judicial District bench on July 28, 2015.)
Why did you want to be a judge?
I’ve always loved the adversarial trial process, which is so
critical to a well-functioning democratic society. Individuals
and businesses bring their disputes to court and expect the
court to solve them. So being a judge is the ultimate position
for someone who loves the trial process. You get to be part of
that process each day—hopefully making a difference in the
lives of the people who appear before you. I was also attracted
by the endless variety of matters that come before a district
court judge: criminal; family; juvenile; mental health; and
civil cases. What have you found the most challenging part of
the job so far?
When I was in private practice, judges always told me that
sentencing criminal defendants was the most challenging part
of their job. They were right. It is very challenging to stand in
judgment of another person. Criminal defendants are human
beings, people with families and friends. While their conduct
may be at fault, I try to be as unabrasive as possible when
imposing a sentence.
What are the biggest differences between what you
thought being a judge would be like when you were
an attorney and what it actually involves day-to-day?
As a private practitioner I always thought that judges had
lots of time to make thoughtful decisions and prepare wellwritten orders. The reality is that district court judges handle
a high volume of cases. This places enormous pressure on
judges to make decisions quickly. We try and give each case
the attention it deserves, but usually wish we had more time
to make our decisions.
What advice would you give to attorneys who
appear in front of you in district court?
Remember that I work in a busy county courthouse.
The time I can devote to your case is limited. You know the
facts and law better than I do. Make your points clearly and
succinctly. Provide legal authority to support your positon.
Always be civil and professional, especially to my staff.
And don’t be afraid to ask my staff about court procedures,
especially if you don’t practice regularly in Ramsey County. This post originally appeared at the MSBA Voices blog.
To check out Voices or other MSBA blogs, visit mnbar.org/blogs
4 Bench&Bar of Minnesota s February 2016
“As a private practitioner I
always thought that judges had
lots of time to make thoughtful
decisions and prepare wellwritten orders. The reality is
that district court judges handle
a high volume of cases.”
What are the most pressing needs that you see as
a judge, i.e. (interpreters, self-represented litigants,
right to counsel in certain cases, etc.)?
First, the large number of pro se litigants. The legal system
functions poorly when untrained people represent themselves
in court. Most judicial districts in the state have experienced
an increase in pro se litigants in recent years. As you might
expect, this is a big challenge for the court. Second, the
increasing number of litigants requiring the services of an
interpreter. The 2nd district is a large, urban court. Ramsey
County includes the City of St. Paul, one of the most diverse
communities in the state. As a result many of the individuals
that appear before me need the services of an interpreter. It’s
the responsibility of the court system to provide those services
so that everyone appearing in court can understand the
proceedings. What kind of training do new judges receive?
Each judicial district is different. In the 2nd (Ramsey
County), new judges are assigned to the misdemeanor
criminal rotation. To prepare for that assignment I shadowed
other Ramsey judges for three weeks. I watched senior judges
preside over criminal arraignments, pretrial and omnibus
hearings, implied consent hearings, and court trials. After
that I began hearing cases on my own. Fortunately, I have
great colleagues in the 2nd district who are always willing and
available to answer my questions—sometimes in the middle of
a court hearing! Any surprises since taking the bench?
My email traffic is only a fraction of what it was in private
practice. That has been a pleasant surprise. s
www.mnbar.org
Official publication of the
Minnesota State Bar Association
www.mnbar.org
Editor
Steve Perry
Design & Production
Jennifer Pickles
Advertising Sales
Pierre Production & Promotions, Inc.
(763) 497-1778
MSBA Officers
President
Michael W. Unger
President-elect
Robin M. Wolpert
Treasurer
Sonia Miller-Van Oort
Secretary
Paul W. Godfrey
Executive Director
Tim Groshens
Publications Committee
Chairperson
Holly A. Fistler
Steven P. Aggergaard
Emily K. Cooper
June Hoidal
Carol K. Lee
Henry D. Long
Christopher D. Stall
Malcolm P.W. Whynott
Jonathan D. Wilson
© 2016 Minnesota State Bar Association
Bench & Bar of Minnesota (ISSN 0276-1505) is an official
publicaton of the Minnesota State Bar Association. Neither
the association nor the editors assume responsibility for
statements or expressions of opinions by contributors. n
Periodicals class postage paid at Minneapolis, Minnesota and
additional mailing offices. Published 11 months of the year.
May/June combined. Minnesota State Bar Association, 600
Nicollet Mall, #380, Minneapolis, MN 55402, (612) 333-1183,
www.mnbar.org. Subscription price: $25.00 for members which
is included in dues. Nonmembers $35.00 per year. Some back
issues available at $5.00 each. POSTMASTER: Send address
changes to Bench & Bar, 600 Nicollet Mall, #380, Minneapolis,
MN 55402. Editorial Policy. The opinions expressed in
Bench & Bar are those of the authors and do not necessarily
reflect association policy or editorial concurrence. Publication of
advertisements does not constitute an endorsement. The editors
reserve the right to accept or reject prospective advertisements in
accordance with their editorial judgment.
www.mnbar.org
February 2016 s Bench&Bar of Minnesota 5
henley_b&b_feb16.qxp_Layout 1 1/8/16 11:48 AM Page 1
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Location:
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President’sPage
By Michael W. Unger
D
The people’s court
uring the month of January
we learned of the confirmation of Justice Mimi Wright
to become our newest federal
judge, and within days we learned that
Minnesota Court of Appeals Judge
Margaret Chutich was named to replace
her on the Supreme Court. District
Judge Diane Bratvold was appointed
to take Chutich’s spot on the court of
appeals. Not long before this news, we
saw the appointments of Justice Natalie
Hudson, and Appeals Judges Lucinda
Jesson and Tracy Smith. If, like me, you
know most of these individuals professionally, then you can’t help seeing these
appointments as validation of a meritbased judicial selection and appointment
process.
In Minnesota, however, the Constitution contemplates judicial elections by
popular vote. The governor’s appointment power is limited to temporarily filling vacancies that arise during the term
of judicial office (and without any constitutional requirement of a merit selection
process). Despite the apparent design of
the Constitution for judicial elections,
there has been an unspoken practice
within the judiciary for departing judges
to resign during office in order to allow
for the initial selection of new judges by
appointment, rather than by election.
Although not universally followed, this
practice has made the popular vote a
rare source for initial selection of judges.
This de facto appointment practice has
stood the test of time for at least two
reasons: 1) ethical constraints on judicial
election conduct have kept the elections very low profile and this naturally
makes it difficult for challengers to attract the attention needed to unseat an
incumbent, and 2) the usual common
sense and humility of Minnesota voters
prevails because they sense they often
lack information or understanding about
candidate qualifications or what to look
for when selecting a judge.
Beginning in 2002, the U.S. Supreme
Court rocked the political equilibrium
of this practice by holding the First
Amendment forbids many restrictions
on judicial electioneering. White v.
Republican Party of Minnesota opened
the door to the possibility of outright
partisan involvement in judicial elecwww.mnbar.org
tions. Since this development, the
members of the bench and bar have
been worried about the “sky falling,” and
we have been involved in an ongoing
consideration of how we might best
reform the process to continue to assure
a non-partisan judiciary selected for
impartiality rather than ideology. MSBA
has adopted the position of favoring a
change to a “retention election” system.
This position has not been without
controversy and even its supporters
concede that it is not a perfect solution.
Achieving such a change is no small
task. An amendment to the Constitution is needed, and that means that the
Legislature must put the question on
the ballot. After many years of trying to
convince the Legislature to place such
a reform measure on the ballot, the idea
has yet to gain sufficient traction. In the
absence of a bad experience with judicial
elections like those that have occurred
in neighboring states, there seems to be
no sense of urgency among legislators to
adopt such a reform.
Given the lack of progress toward
reform of our judicial election system, it
may be time to see the handwriting on
the wall and develop a different approach. If so, we should look for ways
of helping to assure that our current
system works well in maintaining our
quality judiciary. Perhaps we should start
to ask ourselves: what can and should
the bar do to help assure that the election of judges remains non-partisan and
resistant to the sway of special interest
electioneering? In entertaining a new
approach, we will need to consider
several questions.
First, since there is no constituency
that has a greater stake in assuring a
fair and impartial judiciary than the bar,
can we afford to ignore this issue simply
because it is difficult?
Second, while disaster has not struck
yet, should we ignore the consistent
trend in Minnesota Supreme Court
election results, which have shown
well-qualified and respected incumbents gaining reelection by ever thinner
margins? The last election illustrates
this problem. In one case, a challenger
who was under a cloud of ethical and
legal allegations still managed to garner
over 46 percent of the vote. In the other
case, a person whose legal reputation
was virtually unknown and residency in
doubt, but who shared a famous name
with a historical figure, received over 42
percent of the vote. The current mood
of voters seems to be very anti-establishment, and it doesn’t seem that hard to
imagine that a future challenger of dubious qualifications might one day win in
such an environment. This is especially
true if a challenger is funded by special
interests or ideological groups.
Third, if the bar is to play an active
role in assuring sound judicial elections, may it do so without appearing to
engage in what amounts to a knee-jerk
“incumbent protection” effort? To date,
challengers in judicial elections have
frequently been candidates with weak
qualifications or questionable motivations. If we try to assure that elections
are conducted responsibly, and the
necessary resources are raised to achieve
that, then what happens if an incumbent is ever challenged by a qualified
and able member of the bar?
Fourth, as elections become more
competitive and judges are forced to
raise more and more dollars to hold their
seats, what are we to do about addressing the question of conflicts caused by
election fundraising? Are current
recusal practices and policies
clear? Are they
sufficient?
These are not
easy issues. Our
instinct may be
to place our colMichael W. Unger
lective heads in
is President of the
the sand. But as
Minnesota State
hard as it may be,
Bar Association. He
we must begin
is a Certified Civil
these discusTrial Specialist at
sions. We should
Unger Law Office
approach them
in Minneapolis,
with an inclusive
representing
spirit, placing the
negligence victims
public’s interest
for serious injuries
over all others,
and wrongful death.
and with the
He is also on the
awareness that
adjunct faculty of
we all have a
the University of
stake in getting
Minnesota Law School.
this right. s
February 2016 s Bench&Bar of Minnesota 7
MSBAinAction
MSBA Action
Spring cleaning:
Update your online presence
O
n Thursday, March
24, the MSBA will
offer members an opportunity to take advantage
of a number of services, including Video Day and Headshot Day. This ‘Spring Cleaning’ event will allow members
to update their digital properties and get advice (and CLE
credit) from experts, staff and
other members.
The day will kick off with a CLE presentation at 9 a.m. by Terrie Wheeler
discussing current trends in legal marketing. Registration for this program will open
soon. Video Day will then run from 10 a.m. to 2 p.m. Members can sign up for one
of sixteen 15-minute spots to record their 30-60 second elevator speeches. YouTube
is the number two search engine on the web; creating a low cost marketing video
is a good way to get in front of more potential clients. Prior to your shoot, you also
will have the opportunity to work with someone to refine your elevator speech. And
here are a couple of useful resources from Terrie to help you prepare your pitch:
n Developing your Elevator Speech (http://bit.ly/1ZNuy3X)
n June 2014 Elevator Speech Article (http://bit.ly/1SHd5v9)
You can get more information about Video Day at mnbar.org/videoday.
To sign up, email [email protected]
A picture is worth a thousand words, and profiles with photos are 14 times more
likely to be viewed. The event continues with Headshot Day from 11 a.m. to 2 p.m.
This is an opportunity for members to get a free professional headshot courtesy of
the MSBA. To sign up, visit www.mnbar.org/headshots.
From 10 a.m. to 2 p.m., members also can get assistance updating their MN Find
a Lawyer and Colleague Directory profiles. MSBA staff will be available to help
with directory profiles, but also to answer any questions members may have about
other MSBA programs and services. There are a number of changes and new offerings from the association, and this is another great opportunity to learn more about
how you can maximize the value of your MSBA membership.
Following the conclusion of Headshot and Video Day events at 2 p.m., the day
will wrap up with a CLE about common ethical pitfalls of fee and billing practices.
Court issues orders
Amending rules of Continuing Legal Education
In response to a joint petition filed by the MSBA and the MN Board of
Continuing Legal Education requesting that the cap on the number of credits
allowed for law office management be eliminated, the court issued an order
promulgating that change effective July 1, 2016. The recommendation that the
MSBA advocate this change came from the Practice Management and Marketing Section, with support from the New Lawyers Section.
Promulgating changes to rules of No-Fault
Insurance Arbitration procedure
The court issued an order promulgating changes to the Rules of No-Fault
Insurance Arbitration Procedure that were proposed by the court’s standing
committee covering this topic. The changes are effective March 1. The MSBA
had filed comments expressing concern with some of the proposed changes and
proposing alternative language. While the court’s order mentions they received
comments from the MSBA, the court did not incorporate any of the changes
proposed by the MSBA or provide any explanation of why they were rejected.
8 Bench&Bar of Minnesota s February 2016
Join the MSBA
on London trip
B
e a part of the MSBA delegation
to London in May.
Curious about how the UK
legal system operates? Join MSBA
President Mike Unger as he leads a
group of your Minnesota colleagues
in an international exchange of
legal developments with your
overseas counterparts. Through
first-hand observation of a local
trial, interactions with barristers
and solicitors, a visit to the UK
Supreme Court and London’s Inn of
Courts, and dialogue with UK legal
experts, you’ll gain a new level of
understanding about the foundations
of the US legal system.
The group will depart on May 7 and
return on May 13. An optional threeday cultural extension is available at
the conclusion of the program. Travel
details, including a full itinerary and
information about cost, are available at
www.professionalsabroad.org. March 11
is the deadline for reservations.
MSBA Alternative
Legal Models Task
Force appointed
I
n January MSBA President Mike
Unger named the following members
to the MSBA’s Alternative Legal
Models Task Force: Kenneth White
and Susan Wiens (co-chairs), Sally
Dahlquist, Hon. Michele Davis, Bridget
Gernander, Leondra Hanson, Marcy
Harris, Charla Hunter, April King, Ellen
Krug, Lawrence McDonough, Fred
Ojile, Jon Olson, Elizabeth Reppe, Hon.
John Rodenberg, Maren Schroeder,
Traci Sherman, Angela Sipila, Gary
Voegele, and the Hon. Thomas Wexler.
The task force, whose creation is
pursuant to action taken by the MSBA
Assembly in June 2015, will examine
the advisability of supplementing
www.mnbar.org
MSBAinAction
traditional lawyer representation
through the creation of a new type of
limited-scope certified legal assistance
provider to increase access to justice for
those who cannot afford a lawyer. One
possibility the task force will examine
involves certifying Limited Legal License
Technicians (LLLTs), who would
possess authority to provide limited
legal services in particular practice
areas, as the state of Washington did
recently. The task force will develop
a recommendation to the Assembly
regarding viable options to increase
access to justice. The task force will
present draft recommendations to
the Assembly in December, and
the Assembly will vote on the final
recommendations and report of the task
force at their meeting in April 2017.
The task force plans to hold several
listening sessions in greater Minnesota
in the fall to solicit input from
members. Metro members will also have
opportunities to provide feedback.
The LTA badge on a member
profile will assure prospective clients
that a member is capable of efficiently
performing standard legal tasks in
Word, Excel, and Adobe. The initial
message to members is this: Don’t freak
out. The LTA is not a means to shame
members into becoming more techsavvy lawyers. The LTA modules are
merely an opportunity for timekeepers
to demonstrate their commitment to
efficient process management. Look
for the first LTA module in February.
Members will receive a significant
discount. For questions, contact Joe
Kaczrowski ([email protected]) or
Mike Carlson ([email protected]).
Introducing
the Legal Tech
Assessment
T
he MSBA is on track to be the
first bar association to offer the
Procertas Legal Tech Assessment
(LTA) as a member benefit. The LTA is
the brain child of Casey Flaherty, former
counsel for Kia Motors. Flaherty created
the LTA to test whether Kia’s outside
counsel knew its way around common
software tools well enough to perform
legal work efficiently. Flaherty learned
that where technology is concerned,
most law firms were suffering from what
he termed “delusions of adequacy.”
“The people who were delegating the
work assumed it was being performed
correctly,” he said. “The people doing
the work thought they were performing
it correctly. Both were wrong.
They didn’t know what they didn’t
know. It was neither intentional nor
evidence of incapacity. It was quite
simply a lack of awareness and training.
With the LTA, they were able to test
out of training they did not need,
and, instead, follow a learning plan
tailored to their individual, identified
deficiencies. It made for an easy fix that
had a profound effect on how work was
handled.”
www.mnbar.org
Appellate Section
raises $2K for
Page Foundation at
social hour event
T
he MSBA Appellate Practice
Section recently hosted a social
hour featuring retired Minnesota
Supreme Court Justice Alan Page. In
his remarks, Page expressed appreciation for the collegiality among members
of the Minnesota Supreme Court,
contrasting it with the highest court in
our neighboring state of Wisconsin. He
also emphasized the need for addressing racial injustice and disparities in the
Minnesota judicial system, legal profession and society at large. Attendees were
invited to contribute to the Page Education Foundation, which subsequently
reported raising over $2,000 at the event
with the help of $500 matches from the
Appellate Practice Section and from
Minnesota CLE.
February 2016 s Bench&Bar of Minnesota 9
What,Where
What,Where&When
When
Appellate Practice
s 10th Annual Appellate
Practice Institute
Minneapolis
Mar 18 • 6.25 Credits
MCLE
s Banking Law Institute
Minneapolis
Apr 8 • 5.5 Credits
MCLE
civil litigation
s Evidence Tools for the
Compleat Litigator
Minneapolis
Feb 29 • 6.0 Credits
MCLE
About
the Sponsors
To register for courses listed
in What, Where & When
(or to obtain more information)
contact the organizations listed
below. Some courses require
advance registration. Here’s the
key to this month’s acronyms:
HCBA:
Hennepin County
Bar Association
Phone: (612) 752-6600
www.hcba.org
MCLE: Minnesota
Continuing Legal Education
Phone: (651) 227-8266
(800) 759-8840
www.minncle.org
MSBA: Minnesota State
Bar Association
Phone: (612) 333-1183
(800) 882-6722
www.mnbar.org
RCBA: Ramsey County
Bar Association
Phone: (651) 222-0846
www.ramseybar.org
CLASS NOTES:
s What, Where & When would
like to hear about your upcoming
CLE events. Mail or fax your
listing, free of charge, to:
Bench & Bar • 600 Nicollet Mall
#380 • Minneapolis, MN 55402.
Email: [email protected]
February 29, 2016
s Jumpstart Your Practice Workshop:
Everything You Need To Overhaul
Your Firm or Start a New One
Mar 10 • 6.0 Credits
MCLE
s Demystifying Civil
Procedure: Handling a
Civil Case – Start to Finish
St. Paul
Banking Law
Legal Technology
s How to Win
Your Next Trial
Minneapolis
Mitchell Hamline
This seminar featuring Barron Henley will
provide a complete legal technology roadmap
in plain English, covering all areas of law office
technology and practice management.
Register at: www.mnbar.org/cle-events
Mar 16 • 1.0 Credit
RCBA
Diversity
s The Lawyer as Leader
and Difference Maker
St. Paul
March 16-19, 2016
s ABA Techshow
Hilton Chicago
Feb 29 • 1.0 Credit
RCBA
Elimination of Bias
Get the best legal technology with a discount on registration to
ABA TECHSHOW for the members of Minnesota State Bar Association.
Register for ABA TECHSHOW with the discount code EP1601
online at www.techshow.com
s The Americans with
Disabilities Act: 25 Years
of Reducing Stigma
St. Paul
Feb 24 • 1.0 Credit
RCBA
Family Law
Law Office Management Tax Law
s Navigating Military
Family Law
St. Paul
s Creating or Updating
a Business Plan for Your
Law Firm Workshop
Minneapolis
Feb 24 • 1.0 Credit
RCBA
s Family Law Institute
St. Paul
Mar 29 • 11.0 Credits
MCLE
Health Law
s 2016 Legislative
Preview: Key Health
Care Issues
St. Paul
Feb 19 • 1.0 Credit
MSBA
Immigration Law
s How Could a Proposed
New Rule Affect F-1
Students and Employers
Minneapolis
Feb 25 • 1.5 Credits
MSBA
Public Law
s Juvenile Protection
Procedure
Chisago County
Feb 18 • 1.0 Credit
MSBA
10 Bench&Bar of Minnesota s February 2016
Feb 26 • 3.25 Credits
HCBA
Real Estate
s Land Use Law and
Practice in Minnesota
Minneapolis
Feb 25 • 6.0 Credits
MCLE
s Eminent Domain –
The Law, the Damages
and the Trial
Minneapolis
s Why Tax Attorneys
Act Unethically
Minneapolis
Feb 25 • 1.0 Credit
MSBA
Workers’
Compensation
s 2016 Workers’
Compensation Institute
Minneapolis
Mar 4 • 9.25 Credits
MCLE
Benefit
Feb 26 • 6.0 Credits
MCLE
Solo Small Firm
s Practical Strategies to
Manage Risk and Growth
Cycles in Your Practice
St. Paul
Feb 25 • 1.5 Credits
RCBA
s How to Start and Build
Your Own Law Practice
Minneapolis
Mar 16 • 7.0 Credits
MCLE
March 10, 2016
s Bar Benefit 2016
Minneapolis Marriott City Center
Annual Fundraiser for the
Hennepin County Bar Foundation
Pro Bono Publico Awards
Silent Auction
Tickets: www.hcba.org
www.mnbar.org
WhatWhere&When
Minnesota State Bar
Association
CLE Credits: 2.0 credits requested
Register: [email protected]
Website: www.mnbar.org
This event will allow MSBA
members to update their digital
properties and get advice (and
CLE credit) from experts, staff and
other members. Take advantage of a
number of services, including Video
Day and Headshot Day. Members
may reserve a 15-minute slot to
record a 30-60 second elevator
speech. A marketing expert will be
available to help members create,
update, and refine their pitches.
Free professional headshots will be
available to members, as well as
assistance updating their directory
profiles. Two CLEs will also be offered
including a morning discussion on
current trends in legal marketing,
and an afternoon CLE on alternative
fees and billing practices. Register
now, space is limited.
Date: Wednesday, February 24
Time: 9:00 a.m. – 2:00 p.m.
Location: Minneapolis
s The Reality of Making
a Murderer: How True
Crime Documentaries Affect
Minnesota’s Justice System
s Spring Cleaning: Update
Your Online Presence
www.mnbar.org
Has the explosion of true crime
documentaries like “Serial” and
“Making a Murderer” had an impact
on the day-to-day justice system in
Minnesota? Are defendants more
likely to make post-conviction
motions? Are jurors more skeptical
about evidence against defendants?
How can attorneys and judges
maintain excellent practice in the
face of these challenges? Find out
from an expert panel: a judge,
a prosecutor, and two certified
specialist criminal defense attorneys.
Cocktails will follow the discussion.
Date: Wednesday, February 17
Time: 4:30 – 7:30 p.m.
Location: Windows, Minneapolis
CLE Credits: 1.0 credit requested
Website: www.mnbar.org
University of Minnesota
Law School
Mitchell Hamline
School of Law
s A Critical Look at Parent
and Child Representation
Can improved representation
impact reentry and oher outcomes
for families in Minnesota’s child
protection system? Come learn
from local and national experts in
the field about how improvements
to parent and child representation
in the system are linked to positive
outcomes for children and families.
This full-day symposium is open to
the public, and will be especially
pertinent for judges, attorneys,
elected officials and policy makers.
Lunch is included. A reception will
follow the program. Co-sponsored
by The Children’s Law Center of
Minnesota.
Date: Friday, February 26
Time: 9:00 a.m. – 4:00 p.m.
Location: St. Paul Campus
CLE Credits: 6.5 credits requested
Contact: Meg Daniel (651) 290-6425
Register: mitchellhamline.edu
s Justice Amidst a Media
Frenzy: The McMartin
Pre-School Sex Abuse Case
The McMartin Pre-School trial
occurred in the midst of a media-fed
frenzy about the pervasiveness of
sexual abuse of children in the U.S.
One of the longest-running cases
in American history, McMartin
involved about 400 accusers and
the use of controversial techniques
to enhance the ability of children
to recall repressed memories. It
stimulated a re-examination of the
reliability of the concept of repressed
memory and of the rules regarding
the testimony and cross-examination
of children in sex abuse cases. A
reception will follow the lecture.
Date: Wednesday, March 23
Time: 4:00 p.m.
Location: University of Minnesota
Law School
CLE Credits: 1.0 credit requested
Regisiter: www.law.umn.edu/alumni
February 2016 s Bench&Bar of Minnesota 11
ProfessionalResponsibility
By Timothy M. Burke
Summary of private discipline
“
T
he more things change, the
more they stay the same”
may be a cliché, but in the
area of lawyer conduct,
there is some truth in the saying. In
2015, as in many other years, more
complaints arose out of family law and
criminal matters than from other types
of matters. Also as in many other years,
complaints frequently alleged neglect
and/or non‑communication (i.e., my
lawyer is not doing anything on my case
and/or is not responding to my requests
for information about my case). By no
means, however, are these the only areas
in which complaints are generated or
the only types of complaint.
Most complaints involving what
appear to be allegations of isolated and
nonserious misconduct are investigated
by a district ethics committee (DEC).
The DEC, after investigation, will
recommend whether the Director’s
Office should find a violation of the
Minnesota Rules of Professional
Conduct (MRPC) has been committed
and, if so, the appropriate form of
discipline.
Many matters in which a lawyer
violated the MRPC are resolved through
private discipline.1 In calendar year
2015, 124 admonitions were issued to
Minnesota attorneys. Admonitions are
a private form of discipline, issued for
isolated and nonserious misconduct.2
In addition, 16 lawyers agreed with the
Office of Lawyers
Professional
Responsibility
(Director’s
Office) to enter
into stipulations
for private
probation that
were approved
by the chair of
Timothy M. Burke
is Senior Assistant
the Lawyers
Director with the
Professional
Office of Lawyers
Responsibility
Professional
Board. These
Responsibility,
probations
where he has served
generally require
since 1993. Burke
the lawyer to
is a graduate of
implement
the University of
procedures
Minnesota Law
designed to
School.
prevent similar
misconduct
12 Bench&Bar of Minnesota s February 2016
in the future and to report on the
implementation and progress of those
procedures.
These synopses are offered for
educational purposes only, and in certain
instances the facts may have been
changed or simplified in order to make a
particular violation clearer.
In one matter, the lawyer was
retained for representation against
criminal charges. The retainer agreement provided for the lawyer to represent the client through the conclusion of
the criminal matter. The client paid an
advanced fixed fee in exchange for the
lawyer representing the client through
the conclusion of the criminal matter.
Improper Retainer Agreement
The retainer agreement provided that if
Retainer agreements and the hanthe representation terminated before the
dling of fees are areas in which lawyers
matter was concluded, the client would
can stumble. Oftentimes a lawyer may
be entitled to a refund of some or all of
want to receive funds in advance of the the fee. So far, so good.
services to be rendered. Presumptively,
During the pendency of the matter,
all funds received before services are
the client discharged the law firm and
rendered must be deposited into a client retained another lawyer. The client
trust account. If a lawyer wants to deasked for a refund of the unearned
posit funds received before services are
portion of the advanced fixed fee she
rendered into the lawyer’s own account, had paid to the lawyer, and the lawyer
then the lawyer must comply with
refused. The lawyer claimed that no
certain specific requirements. Failure to refund was required because the value of
comply with all these requirements can
the services rendered to the client—as
lead to discipline.
calculated on an hourly fee basis—exIn one matter, the lawyer was
ceeded the $10,000 that the client paid.
retained to represent a person
An hourly fee analysis, however, is
incarcerated pursuant to a sentence of
inappropriate in determining whether
life in prison. The lawyer was retained
a fixed fee has been fully earned. The
to investigate and research potential
lawyer’s agreement with the client
grounds for bringing a post‑conviction
was not an agreement to provide legal
action. The retainer agreement called
services to be billed on an hourly
for a flat fee. The retainer agreement
basis. The fixed fee agreement stated
failed to comply with all of the
in advance an agreed-upon value for
requirements of Rule 1.5(b), MRPC, in
specific services to be rendered. When
that the agreement did not notify the
those services were not fully rendered,
client that: (1) the fee would not be held a refund was due to the client no
in a trust account until earned; (2) the
matter how many hours the lawyer had
client had the right to terminate the
spent on the matter. In determining
client-lawyer relationship; and (3) the
the value of the partial set of services
client was entitled to a refund of all or
rendered, the time spent may be
a portion of the fee if the agreed-upon
considered, but it is not the exclusive
services were not provided. The lawyer
factor. Other factors to be considered
therefore was obligated to deposit all
are how far the lawyer advanced the
funds received in advance of the legal
client’s objectives as set forth in the fee
services being performed into the trust
agreement and the task(s) remaining to
account. Because the lawyer did not do
be done to accomplish those interests
so, an admonition was issued.
after the attorney-client relationship
ended. In this matter, the criminal
Failure to Refund Unearned Fee
matter had not been fully resolved and
Rule 1.5, MRPC, requires a lawyer to further proceedings remained. The
refund the unearned portion of an adlawyer was issued an admonition for
vance fee. This issue often arises in the
violation of Rules 1.5(b)(3) and 1.16(d),
context of flat or fixed fee representaMRPC. These rules, respectively,
tions, in which a lawyer is paid a definite require a lawyer after termination of
sum for representation in a particular
representation to refund “the unearned
matter. Where representation ends
portion of the fee” and to refund
before the matter is concluded, a refund unearned advance fee payments upon
generally will be in order.
termination of representation.
www.mnbar.org
ProfessionalResponsibility
Advertising and Solicitation
Occasionally, the Director’s Office
receives a complaint about a lawyer’s
advertising and/or solicitation. Some
of the rules governing advertising and
solicitation are technical, and failure to
fully comply can result in discipline.
In one matter, the lawyer sent a
letter to a prospective client. The
lawyer’s letter advertised the lawyer’s
services and solicited the prospective
client’s business. The lawyer’s letter
did not contain the phrase “advertising
material” anywhere on the letter, much
less clearly and conspicuously on the
letter, as Rule 7.3(c), MRPC, requires,
and an admonition was issued.
Occasionally, a lawyer will argue
that substantial compliance with
Rule 7.3(c), MRPC, is sufficient.
The Supreme Court, however, has
rejected a similar contention. In In re
MDK, 534 N.W.2d 271 (Minn. 1995),
the lawyer sent a solicitation letter
that enclosed a copy of the lawyer’s
yellow pages advertisement. Below
the signature block appeared the
text, “Enclosure: Ad.” The Supreme
Court affirmed an admonition issued
to the lawyer for violation of Rule
7.2(f), MRPC, the predecessor to Rule
7.3(c), MRPC. In other words, the
Court expects full compliance with
the rule. “That no one was misled
and that [the lawyer] took remedial
measures does not reduce a violation
of a rule, however technical, into no
violation and thus no discipline at all.
Rather, [the lawyer’s] salutary actions
result in a level of discipline not being
increased.”
Communication with
Represented Party
“Reply All” can be a dangerous tool
for a lawyer. A lawyer may receive a
communication from another lawyer
on which that lawyer has also included
her client as a recipient. When the
lawyer receives that email, intends
to reply, clicks “Reply All,” drafts the
response and then hits “Send,” the
lawyer has now communicated directly
with that represented person. Rule
4.2, MRPC, prohibits a lawyer from
communicating with a person the
lawyer knows is represented by counsel.
This fact situation has been presented
to the director. Each of the lawyer’s
emails that went to the opposing party
violated Rule 4.2, MRPC, and the
lawyer received an admonition.
R
Protecting Your Practice is Our Policy.
800.422.1370
Conclusion
As noted in prior articles summarizing private discipline, the majority of
Minnesota lawyers are never disciplined
during their career, and most attorneys
who receive private discipline never
repeat their isolated act of misconduct.
To help lawyers avoid engaging in conduct that violates the Rules of Professional
Conduct, the Director’s Office offers an
advisory opinion service. A Minnesota
lawyer may call the Director’s Office during business hours to receive an opinion
about a question regarding the caller’s
own prospective conduct involving a professional responsibility issue. Such a call
oftentimes can prevent misconduct and
let the lawyer avoid private discipline. s
Notes
1
In private discipline matters, the complainant, if any, and the respondent
lawyer receive a copy of the written
determination. The Director’s Office
retains a copy of the discipline. With
limited exceptions, the Director’s Office may not disclose the existence of
private discipline. Rule 20, Rules on
Lawyers Professional Responsibility.
2
Rule 8(d)(2), Rules on Lawyers
Professional Responsibility.
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February 2016 s Bench&Bar of Minnesota 13
MN Bench and Bar 2015
Scholarships Available!
“Minnesota Continuing Legal
Education and your Minnesota State
Bar Association are committed to
making high quality CLE accessible
to all Minnesota practitioners, across
all income categories without regard
to financial circumstance.”
Thad Lightfoot
Chair, Minnesota CLE Board of Directors
Remaining current and building your skills has never been more important. Access to
the best information is just what we provide.
Minnesota CLE delivers high quality programming in a wide variety of formats. Whether
in class, as a moderated video replay, or delivered right to your desk “on-demand” or
via live, interactive webcast, these courses are taught by some of the best and brightest
Minnesota lawyers. Our content focuses on immediate practical utility, not academic
curiosity. And our seminar materials are reinforced by vital practice aides - checklists,
forms, Summary Guides and Legal Quicksheets, thus making the experience even more
valuable to your practice.
Minnesota CLE’s goal is to lift the standard for all Minnesota lawyers and their clients.
If we are presenting a program that can help you achieve this goal, please make every
effort to attend. If financial issues stand in your way, Minnesota CLE maintains a
generous scholarship program for those individuals in financial need. Please contact
our office and ask Grant, [email protected], for the scholarship application form.
Names of scholarship recipients are confidential.
Minnesota CLE—Raising the Bar
14 Bench&Bar of Minnesota s February 2016
www.mnbar.org
Colleague
ColleagueCorner
Meet Heather Gilbert
‘Discovering the passion
that drives you’
Tell us about your experiences as a legal sign
language interpreter before going to law school.
After graduation in 2002 with a BA in American Sign Language/English Interpretation, I began interpreting for Disney
World and the surrounding Orlando area. I interpreted for
cruise lines, medical providers, employers, theaters and government services. In 2003, I moved to Minnesota for graduate
school, achieved my national interpreter certification credentials and shortly thereafter started working for the state at Deaf
and Hard of Hearing Services, a division of the Department of
Human Services (DHS). While in that position, I worked as
an interpreter for Minnesota government employees that were
deaf or hard of hearing and also for the Minnesota Legislature.
While working at the state, I also achieved my legal
interpreting credentials to qualify for Minnesota and federal
court interpreting. When I decided to attend law school, I
ended my position at the state and started working under a
grant from DHHS as an advocate for deaf and hard of hearing
people experiencing discrimination in emergency medical and
emergency legal settings.
When you went to law school did you expect
that you would open your own law practice after
graduating or did you make that decision later?
I started law school with the single-minded intention to
represent deaf individuals in discrimination claims, although I
didn’t think I would start my own firm one week after getting
my license to practice. But after I graduated, there were so
many deaf people eager to have an ASL lawyer, and so few
law firms hiring in the grim 2012 market, that I secured a free
office space, available conference room, and several mentors and co-counsel to get started. Within six months, I had
acquired nearly 30 clients (not all of which were discrimination claims) and secured a website, logo and a law clerk. It
really wasn’t intentional to start a law firm on my own, but
now that it has happened, I see that it was the best decision
I could have ever made. As a self-employed business owner
for the five years leading up to graduation, I knew how to
incorporate, understood the ebb and flow of income, and had
a great CPA and business coach. I kept my overhead low and
used the Mitchell Hamline law library for a while until I could
afford my own Westlaw account.
Are disability discrimination cases the
foundation of your practice?
Disability discrimination is the foundation of our practice,
however, the reason we have added more attorneys is because
there is such a great need in Minnesota for ASL fluent attorneys with expertise in other practice areas. We offer several
types of transactional legal services including business law,
estate planning, and family law. The only civil litigation cases
we take are discrimination claims.
www.mnbar.org
We are discovering there is such a huge need for affordable
private practice legal services in Minnesota and the surrounding states for the deaf and hard of hearing community that we
are expanding our practice to serve those needs. We have people contacting us for representation all over the state, which
requires a lot of travel. We have court hearings, depositions
and meetings that require more than one attorney. Reviewing
medical records, interviewing clients and witnesses, and writing briefs is too much for one attorney once the case load starts
to grow. For the past three years I have had a lot of support
from clerks and paralegals, but that isn’t enough anymore.
Do you have advice for an attorney who wants to
build a niche practice?
Finding a niche starts first and foremost by discovering the
passion that drives you and the vision
you have to make it happen. I
advise a prospective start-up to
secure a business coach and/or
life coach to help develop this
foundational perspective.
I have both, and along with
a good CPA, they are the
most valuable professional
resource in which I
invest. Knowing and
owning your passion,
vision and mission is
the foundation on
which I stand when
business is slow,
when litigation gets
tough, and when I
am tempted to give
up. Everything
else you need to
know you can
learn at the
MN CLE
courses. s
HEATHER GILBERT, president of Gilbert Law PLLC, represents individuals
with disability discrimination claims against medical providers, employers,
and public entities. She is fluent in American Sign Language and is the only
attorney in Minnesota who is also a court-certified sign language interpreter.
Gilbert Law, known as Minnesota’s “deaf-friendly” law firm, provides a widearray of legal services in American Sign Language in addition to disability
discrimination, including estate planning, family law, and business law.
February 2016 s Bench&Bar of Minnesota 15
Just Saying No
The Limits of Warrantless Searches
A case involving Minnesota’s DWI test refusal statute could yield a major
4th Amendment decision from the United States Supreme Court
Minnesota is one of a handful of
U.S. states that have criminalized
the refusal to submit to a
warrantless search in suspected
DUI cases. This term, the U.S.
Supreme Court will review a
Minnesota case as it determines
whether states can make refusing
to submit to a warrantless search
a criminal act.
By Charles Ramsay and Dan Koewler
Photo © istockphoto.com
16 Bench&Bar of Minnesota s February 2016
www.mnbar.org
M
innesota is in the
national spotlight, and in
a very big way. This term
we expect the United
States Supreme Court
to issue a major decision regarding the
scope of the 4th Amendment warrant
requirement, and the Court is using a
Minnesota case to reach its decision:
Bernard v. Minnesota. It was the signed confession from a
suspected rapist in Arizona that led the
Court to issue its watershed decision regarding coerced confessions in Miranda
v. Arizona.1 It was Illinois’ decision to
relentlessly interrogate a suspected murderer for over 14 hours, while repeatedly denying his attorney’s demands
to be present, that led the Court to issue its watershed decision regarding the
right to counsel in Escobedo v. Illinois.2
When North Carolina went looking for
a weapon used in a reported rape, and
claimed that they found it during a “consensual” search despite the fact that the
homeowner had been told that she had
no right to refuse the search, the Court
took the opportunity to reject “consensual” searches in the face of bald claims
of lawful authority. That one was Bumper
v. North Carolina.3
Why is a Minnesota case drawing such
scrutiny from the Supreme Court? Bernard is a case about a drunk driver who
refused to submit to an in-custody, warrantless search of his breath. Minnesota,
not content to use the fact of his refusal
against him as “consciousness of guilt”
evidence at trial (something permitted
since South Dakota v. Neville4), went one
step further and criminalized the very
act of refusing to submit to a warrantless
search. This term, the Supreme Court is
going to answer one broad question and
one narrow one. The broad one is simply
“can the states make refusing to submit
to a warrantless search a criminal act?”
The narrow question is closely tied to
Minnesota’s (latest) rationale for claiming our test refusal crime is constitutional, and involves treating a breath alcohol
concentration test as a “search incident
to arrest” and therefore a search that is
unprotected by the 4th Amendment. Focus On The 4th Amendment
The United States Supreme Court
has repeatedly restated the cautionary
warning first uttered in Gouled v. United
States,5 when the Court noted that the
judiciary is charged with a continuing duty
to liberally construe the 4th Amendment,
www.mnbar.org
“so as to prevent stealthy encroachment
upon or ‘gradual depreciation’ of the
rights secured by them, by imperceptible
practice of courts or by well-intentioned,
but mistakenly overzealous, executive
officers.” In contrast, Minnesota
courts have spent the past decade
demonstrating a stubborn tendency to
create newer and broader exceptions to
the 4th Amendment (at least in the DWI
context). But our test refusal law has
never faced national scrutiny until now. How did we get here? Minnesota
is one of very few states that actually
criminalize refusal to submit to chemical testing, zealously looking to combat
drunk driving and, in doing so, rushing down a road that the vast majority
of other states have not dared to tread.
Alaska is among the small handful of
Minnesota is one of
very few states that
actually criminalize
refusal to submit to
chemical testing.
states that also make it a completely independent crime to refuse to submit to
testing.6 Note that Hawaii’s test refusal
law comes with a giant asterisk: The Supreme Court of Hawaii recently issued a
decision that effectively strikes down the
state’s own test refusal law as unconstitutional, and will likely make its way to the
United States Supreme Court alongside
Bernard. But in any event, it is clear that
while the motives behind such laws are
undoubtedly honest and well-meaning,
the same can be said of many other types
of constitutionally questionable behavior,
like internment camps, suspicionless traffic stops, and warrantless GPS tagging of
private vehicles. Good motives do not always make for constitutional laws.
But we’re not talking about internment camps, we’re talking about Minnesota’s test refusal statute (Minn. Stat.
§169A.20, subd. 2), which intentionally eliminates the protections of the 4th
Amendment in DWI investigations, and
manages to do so in just one relatively
simple sentence. This statute takes a
core American principle (the right to
tell a law enforcement agent “show me
a warrant”) and instead opens the door
to a type of government where law enforcement agents are not bound by the
law, but effectively are the law—a choice
that, if made at all, must only be made to
counter the most dire of circumstances.
Minnesota is not just one of few states
to make test refusal a crime; it was one
of the first to do so. The law has slowly
evolved since its creation and faced numerous legal challenges leading up to Bernard. In 1993, the Legislature amended
Minnesota’s original DWI test refusal law
to apply to any driver suspected of driving while impaired (prior to that change,
the crime of refusal only applied to drivers that had a previous impaired driving
incident on their record). After these
amendments, any driver who refused to
submit to testing could be charged with
the independent crime of test refusal,
and were advised of that fact as part of
the standard implied consent advisory.7
After the 1993 amendments, the defense bar began raising constitutional
challenges to the law. In 2001 the Minnesota Supreme Court concluded that
criminalizing the act of saying “show me a
warrant” did not violate the 5th Amendment right against self-incrimination.8 At
that time, the Minnesota Supreme Court
withheld their opinion on the question
of whether such a law violated the 4th
Amendment right against unreasonable
searches and seizures, but in 2002 the
court of appeals ruled in cursory fashion
(in State v. Mellett) that it would “defer to
the Legislature’s judgment and hold that
the refusal statute does not violate appellant’s Fourth Amendment rights.”9
In 2003, perhaps emboldened by the
recent decision in Mellett, the Legislature
again amended the DWI laws to enhance
the criminal consequences for test refusal. This time, the amendments elevated
the crime of test refusal to a gross misdemeanor, making the penalties more
severe for those who refused a test than
for those that failed a test.10 This was the
point where Minnesota truly crossed the
Rubicon; now, drivers could be found
not guilty of the crime they were arrested for (driving while impaired) and yet
face more jail time and higher fines for a
crime that was committed entirely in the
police station. The crime of refusing to
submit to a warrantless search now carried greater consequences than actually
driving drunk.
February 2016 s Bench&Bar of Minnesota 17
We’re expecting a
decision from the
Supreme Court in June;
until then, judges,
prosecutors, defense
attorneys, and every
other Minnesotan are
waiting with bated
breath to see what the
future holds for the
4th Amendment.
At stake is nothing
less than the right to
say “get a warrant”
when law enforcement
come knocking.
Photo by Mike Cherim
© istockphoto.com
18 Bench&Bar of Minnesota s February 2016
Scrutinizing a Statute
These changes sparked a renewed series of 4th Amendment and due process
challenges, which culminated in a trilogy
of decisions, two issued by the Minnesota
Supreme Court and one by our Court of
Appeals, each comprising a leg in the tripod of legal logic that was ultimately responsible for upholding the constitutionality of the test refusal law. First, in State
v. Shriner, the Court re-purposed an old
exception to the 4th Amendment in a
manner that applied only to DWI cases:
“single-factor exigency” based upon the
“rapid, natural dissipation of alcohol in
a driver’s bloodstream.”11 Shriner stood
for the arguably narrow proposition that
when a driver was arrested for the serious
crime of criminal vehicular operation or
homicide, police would never be required
to obtain a warrant prior to executing a
blood draw against a driver. While Justice Meyer wrote a compelling dissent
in the Shriner case (remember this, as it
will come up again later), the majority
opinion created a new exception to the
4th Amendment that placed some DWI
blood tests outside the scope of constitutional protection.
This “single-factor exigency” doctrine
was expanded upon one year later in the
case of State v. Netland.12 Netland, unlike
Shriner, was a test refusal case. However,
utilizing the logic in Shriner, the Minnesota Supreme Court concluded that
Minnesota’s test refusal law was constitutional for the same reason the warrantless blood draw in Shriner was constitutional, namely, the single factor exigency
doctrine. To be more specific, the Court
concluded that because the underlying
demand for a breath test in Netland was
reasonable even without a warrant, there
could be no due process violation for
criminalizing the act of refusing to submit to that particular warrantless search.
Shriner crafted the single factor
exigency exception to the 4th
Amendment in Minnesota, and on
its face only applied to blood draws
performed during investigations into
criminal vehicular operation and
homicide. Netland expanded the doctrine
to attempts to execute warrantless breath
searches during relatively routine DWI
investigations, and also used the doctrine
to justify Minnesota’s test refusal statute.
The trilogy of cases concluded in the case
of Ellingson v. Comm’r of Pub. Safety,13
which simply extended the single factor
exigency exception to warrantless urine
tests. These three cases, read together,
stood for the proposition that all types of
DWI search (blood, breath, and urine)
in all types of DWI cases (from routine
first offenses to felony level offenses
to vehicular homicide cases) were
removed from the protections of the 4th
Amendment—a per se exception that
applied across the board.
Testing the Trilogy
This was the state of the law in Minnesota in 2013, when the United States
Supreme Court issued its watershed decision in Missouri v. McNeely.14 The McNeely case could just as easily have come
from Minnesota. In it, the Missouri Supreme Court had considered adopting
Minnesota’s “single factor exigency” exception for DWI cases—and had roundly
rejected it. On appeal, the United States
Supreme Court agreed, and discarded
the very concept of single factor exigency
as being applicable in DWI investigations. Instead, the Court held that any
exigency must be analyzed under the traditional “totality of the circumstances”
standard; in effect, the Court concluded
that there is no per se DWI exception to
the Constitution.
The McNeely decision specifically
cited the Shriner case (and even more
specifically, cited with approval the dissent penned by Justice Meyer), and left
no doubt that Minnesota’s reliance on
a blanket exception to the 4th Amendment was at an end. Defense attorneys in
Minnesota immediately dusted off their
old memorandums of law and suppression
motions, and began challenging Minnesota’s test refusal law with renewed vigor,
dancing in the ashes of Shriner, Netland,
and Ellingson.
It was a flurry of litigation that would
last for years, reaching a crescendo in
the case of State v. Bernard. The Bernard
case symbolized a second attempt to have
Minnesota’s test refusal law struck down
as unconstitutional. Recall that the previous attempt to strike down the test refusal law, in the 2009 Netland case, failed
due to the creation of the new per se exception to the 4th Amendment by the
Minnesota Supreme Court… because,
as everyone knows, history has a way of
repeating itself.
Breaking Down Bernard
Throughout its lifespan in Minnesota
courts, the Bernard appeal has echoed
the Netland case in one major respect: At
each level of appeal, our appellate courts
would (once again) either create a new
per se exception to the warrant requirement, or re-purpose an old one, en route
to again finding it permissible to criminalize the act of refusing to submit to a
warrantless search. The court of appeals
in Bernard started by acknowledging the
rejection of single factor exigency by the
United States Supreme Court—and then
adopted what could be called the “inevitable warrant doctrine.”15 In so many
www.mnbar.org
30,000
Minnesota’s average yearly DWI arrest rate
Photo © istockphoto.com
words, the court of appeals crafted a new
exception to the warrant requirement,
interestingly selecting one that had been
repeatedly rejected for decades by the
United States Supreme Court, concluding that in circumstances where law enforcement could have obtained a warrant,
there is no need to for them to actually obtain a warrant. In a nutshell, for a period
of time Bernard stood for the proposition
that there is no need to bother a judge or
magistrate with the constitutionally mandated warrant process, as long as law enforcement were confident that they could
have gotten a warrant if they had made
the attempt. On this logic, the court held
that it is perfectly constitutional to charge
someone with a crime for refusing to submit to a warrantless search, because it was
only technically a warrantless search (not
actually a warrantless search).
Of course, the Minnesota Supreme
Court accepted review of Bernard, and
spent less than a paragraph discarding the
“inevitable warrant” doctrine that was
espoused by the court of appeals.16 The
Court then went on to replace one per
se exception to the warrant requirement
with another one, selecting the “search
incident to arrest” exception. Recall that
in Netland, the Court had previously
repurposed the single factor exigency exception for use in DWI cases; now, the
Court was repurposing the search incident to arrest exception in the same way.
For those who do not practice in the
area of criminal defense, and are far removed from their criminal procedure
courses, the search incident to arrest
exception is premised upon the need for
law enforcement to make sure that arrested suspects do not have any weapons and/or contraband on their persons
before they are transported to jail. The
twin goals of officer safety and securing
destructible evidence underpin the traditional search incident to arrest exception. Now, in Bernard, the Minnesota
Supreme Court extended this doctrine to
cover the “deep lung air” that is sought
after during a DWI breath test. Once
again, a per se exception to the warrant
www.mnbar.org
requirement had been crafted to cover
DWI investigations, which once again
led the Court to the conclusion that it
was still constitutional to charge DWI
suspects with a crime if they refused to
submit to a warrantless search.
This long and winding path paved
the way for the Bernard case to reach the
United States Supreme Court. Which, in
turn, is why Minnesota finds itself in the
There is no evidence
that criminalizing
the act of refusing to
submit to a warrantless
search reduces
DWI offenses.
national spotlight on an issue that reaches far beyond routine DWI investigations
and instead touches the very core of the
4th Amendment. Justice Marshall, dissenting in the case of Skinner v. Railway
Labor Execs. Ass’n, was almost prescient
when he warned that, “damage done to
the Fourth Amendment is not so easily
cabined. The majority’s acceptance of
dragnet blood and urine testing ensures
that the first, and worst, casualty of the
war on drugs will be the precious liberties
of our citizens.”17 Justice Marshall then
added, “the Court today takes its longest step yet towards reading the probable cause requirement out of the Fourth
Amendment.” We’re expecting a decision from the Supreme Court in June;
until then, judges, prosecutors, defense
attorneys, and every other Minnesotan
are waiting with bated breath to see what
the future holds for the 4th Amendment.
At stake is nothing less than the right to
say “get a warrant” when law enforcement come knocking.
Decades of Decisions
But, constitutional rights aside, are
we actually any safer when we make refusal to submit to a warrantless search a
crime? Do fewer people overall risk driving drunk knowing that refusal is a criminal act, or, in the words of one author,
does a test refusal crime simply mean that
the worst casualty of the war on drunk
driving is actually the “precious liberties of our citizens”? Consider the raw
data regarding drunk driving incidents in
Minnesota and compare that data to the
Legislature’s efforts at eliminating the
constitutional right to a warrant. Minnesota’s DWI arrest rate hovers consistently around 30,000.18 From 30,088 reported
incidents in 1993, impaired driving incidents peaked in 2006 with 41,951, and
since that time have declined to 28,418.19
Now, remember the changes to the
test refusal law in 1993, making our test
refusal law apply to all drivers regardless
of their prior record. From 1993 to 1998,
after these changes were implemented,
impaired driving incidents increased by
approximately 2,000 (32,422).
And by 2002, Minnesota reported
33,163 annual impaired driving incidents.
The next year, in 2003, recall that the
Legislature again amended the DWI laws
to enhance the criminal consequences for
test refusal, making the level of offense
more severe for those who refuse a test
versus those that failed a test. 2003 saw
32,266 reported incidents, a slight decline
from 2002, but 2004 saw an increase of
approximately 2,000 incidents (34,202).
2005 saw the rate of reported incidents
increase again by approximately 3,000
(37,002). This rate went up yet again
in 2006, when 41,951 incidents were
reported—a steady and dramatic increase
in impaired driving incidents after we
stiffened the penalties for test refusal.
Now, these incidents steadily decreased
from 2006 onward . . . but that can likely
be attributed to a different legal change
that had nothing to do with criminalizing
test refusal. It was near the end of 2005
when the Legislature amended the per se
legal limit from .10 to .08.20
February 2016 s Bench&Bar of Minnesota 19
CHARLES A.
RAMSAY has
practiced
Criminal
Defense since
1995 and gained
acquittals in a
wide variety
of criminal
cases. He prides himself on being on
the cutting edge of criminal defense,
including becoming the first (and
currently only) Minnesota attorney
to receive the prestigious “LawyerScientist” designation as recognized by
the Chemistry and Law Division of the
Congressionally chartered American
Chemical Society. Charles has helped
pioneer a number of defenses in
Minnesota, including faulty eyewitness
identification, false confessions, and
the right of a defendant to present
alternative suspects to a jury. He is a
faculty member for the National College
of DUI Defense and practices primarily
in the area of DWI/DUI criminal defense
and appeals. [email protected]
DAN KOEWLER
is an associate
attorney with
Ramsay Law
Firm, PLLC,
licensed to
practice law
by the Supreme
Court of the State
of Minnesota, the United States Supreme
Court and the Federal District Court in
Minnesota. Dan is a member of a broad
array of prestigious associations – he
is the current Chairman of the Amicus
Committee for the Minnesota Association
of Criminal Defense Lawyers and on
the Executive Council for the Criminal
Law section of the Minnesota State Bar
Association. He is also a member of the
Minnesota Society for Criminal Justice,
an exclusive, invitation-only group of
50 defense attorneys who practice in
Minnesota.
[email protected]
20 Bench&Bar of Minnesota s February 2016
So there is no evidence that
criminalizing the act of refusing to submit
to a warrantless search reduces DWI
offenses. Does it help in some other way?
Note that in 2005, Minnesota’s rate of
breath test refusals compared to overall
DWI incidents was 13 percent – higher
than many states that did not criminalize
the act of refusal, and lower than other
states (like Alaska) that also make
refusal a crime.21 In a different study,
the National Highway Traffic and Safety
Administration (NHTSA) concluded
that implementing a procedure whereby
warrants are obtained against drivers who
refuse to submit to testing can make it
less likely that drivers will even try to
refuse, because they “understand their
right to refusal does not terminate the
ability of law enforcement to obtain BAC
evidence…”22
While these figures may also be affected by external factors, such as increased
(or decreased) enforcement and/or reporting errors, the simple fact remains
that there is no evidence that legislating away a driver’s constitutional right
makes our roads any safer, or even do an
effective job of collecting more damning evidence to use against our citizens.
However, when law enforcement agents
are trained on how to use the established
warrant procedure, and then take advanNotes
1
Miranda v. Arizona, 384 U.S. 436
(1966).
2
Escobedo v. Illinois, 378 U.S. 478
(1964).
3
Bumper v. North Carolina, 391 U.S.
543 (1968).
4
South Dakota v. Neville, 459 U.S. 553
(1983).
5
Gouled v. United States, 255 U.S.
298, 304 (1921).
6
Alaska Stat. §28.35.032(f) (2012).
Nebraska does the same, as does
Hawaii. Neb. Rev. Stat. §60-6,
197(3) (2011); Haw. Rev. Stat.
§291e-68 (2012).
7
Minn. Sess. Law Serv. Ch. 347 (May
1993).
8
McDonnell v. Comm’r of Pub. Safety,
473 N.W.2d 848 (Minn.1991).
9
State v. Mellett, 642 N.W.2d 779, 785
(Minn.Ct.App.2002).
10
2003 Minn. Sess. Law Serv. 1st Sp.
Sess. Ch. 2 (May 2003).
11
State v. Shriner, 751 N.W.2d 538
(2008).
12
State v. Netland, 762 N.W.2d 202
(Minn.2009).
13
Ellingson v. Comm’r of Pub.
Safety, 800 N.W.2d 805 (Minn.
Ct.App.2011).
tage of that procedure, there is evidence
that more convictions are obtained, and
that our roads are indeed made safer.
Conclusion
In the end, Bernard v. Minnesota will
undoubtedly become a case memorized
by generations of future law students, a
watershed decision that will stretch much
further than the narrow DWI-related
question being presented to the United
States Supreme Court. Here at home, it
represents the culmination of decades of
litigation levied against an almost trivial
one-sentence law that carries with it major repercussions for the future of the 4th
Amendment warrant requirement.
One final note: After the Minnesota
Supreme Court issued the Bernard decision, the Minnesota Court of Appeals
dealt with two other challenges to Minnesota’s test refusal law. Both challenges
raised the same legal arguments as Bernard, but factually differed from Bernard
in that they dealt with refusal to submit
to blood tests.23 In both cases, the court
of appeals reached the opposite decision
of the Minnesota Supreme Court in Bernard, and struck down our test refusal law
as unconstitutional. What this means
for the future of Minnesota’s DWI laws
is unclear, but to say that those laws are
“unsettled” is putting it mildly. s
Missouri v. McNeely, 133 S.Ct. 1552
(2013).
15
State v. Bernard, 844 N.W.2d 41
(Minn.Ct.App.2014).
16
State v. Bernard, 859 N.W.2d 762
(Minn.2015).
17
Skinner v. Railway Labor Execs.
Ass’n, 489 U.S. 602, 636 (1989).
18
Minnesota Department of Public
Safety, Impaired Driving Facts 2012.
Office of Traffic Safety (August
2013).
19
Id. at 2.
20
2004 Minn. Sess. Law Serv. Ch.
283 (May 2004).
21
Berning, A., Beirness, D., et. al.
(November 2007). Breath Test Refusals. (Report No. DOT HS 810 871).
Washington, DC: National Highway
Traffic Safety Administration at 2.
22
Haire, E., Leaf, W., et. al., (April
2011). Use of Warrants to Reduce
Breath Test Refusals: Experiences
From North Carolina. (Report No.
DOT HS 811 461). Washington,
DC: National Highway Traffic
Safety Administration.
23
State v. Trahan, A13-0931
(10/13/2015) rev. granted
(11/25/2015) and urine tests (State v.
Thompson, A15-0076 (12/28/2015).
14
www.mnbar.org
Do Good.
Gain experience.
(Get paid.)
Judicare: The ‘low
bono’ option you
may not know
By Lindsay Davis
W
e are all familiar with
the enormous justice
gap nationally and in
Minnesota. Staff attorney legal aid programs
in Minnesota are so swamped and underfunded that they must turn away two of
every three eligible clients.1 In Minnesota, there is one private attorney for every 369 people living above the civil legal
aid income threshold, but only one legal
aid attorney for every 3,682 clients who
are eligible for legal aid.2 Too many lowincome Minnesotans lack access to attorneys in such essential civil legal matters
as marital dissolution, domestic abuse
and eviction proceedings, and cessation
of government benefits. Those turned
away are often forced to fend for themselves during complicated filing, service,
discovery, hearing, and trial processes.
Pro bono programs play an important
role in filling the justice gap, but they
don’t meet all of the need and are not
practical in all situations. Take rural areas, for example: In Hennepin County it
makes sense to host a legal advice clinic
where attorneys review court forms for
self-represented litigants. You will have
no shortage of help from the 10,968 regwww.mnbar.org
istered attorneys in the county. Try the
same thing in Traverse County, where
there was one active licensed attorney
registered in 2013,3 and you will find a
much less robust volunteer pool.
Many pro bono volunteers prefer short,
discrete assignments in particular legal
areas and may not have the time to spend
on a case that is lengthier, like a custody
case. For example, the popular “Second
Chance Saturday” program administered
through the Council on Crime and Justice and the Volunteer Lawyers Network
offers volunteers the opportunity to give
legal advice about criminal expungement
cases to four or five clients on a Saturday
morning, with no remaining obligations
to the clients after they leave the clinic.
Many volunteers choose this option over
a challenging CHIPS or family law case
that could last several years.
How to serve rural clients with complicated cases? Enter Judicare, a delivery
model that several Minnesota legal aid
programs are using. Judicare programs
allow civil legal aid programs to provide
modest compensation to private attorneys
to handle cases that would otherwise be
very difficult to place on purely pro bono
terms, either because of the type of legal
problem or because there is not a staffed
legal aid office located near the client.
Each program operates slightly differently, but by and large, Judicare attorneys
are paid $50-$60 per hour directly from
civil legal aid programs, serving clients
who live between 125-200 percent of
the federal poverty guidelines. Some programs cap the number of paid hours for
attorneys and require pro bono service
after the cap has been reached. Most programs also reimburse attorneys for caserelated expenses.
The History of Judicare
The word “Judicare” derives from
“Medicare” because the original concept
involved the government paying private
attorneys to provide legal services to indigent individuals on a fee-for-service basis, much as the Medicare program pays
private doctors.4 The first Judicare programs in the United States were pilots in
Wisconsin, Connecticut, and California,
funded by the now-defunct federal Office
of Economic Opportunity (OEO) as part
of President Lyndon B. Johnson’s War on
Poverty in the 1960s. During this time,
the federal government was also funding
the development of legal aid organizations
February 2016 s Bench&Bar of Minnesota 21
using a “staff attorney” model in which
attorneys are employees of legal aid organizations serving low-income clients and
specializing in case types that most often
affect low-income clients. Advocates for
both models competed for federal approval and funding. Due to the passage of the
Legal Services Corporation Act in 1974,
the “staff attorney” model ultimately became the standard service delivery model
for low-income clients nationwide, but
the Judicare concept has continued to coexist with legal aid programs around the
country. 5
Judicare in Minnesota
Judicare programs have been active
in Minnesota for over 40 years. The Judicare of Anoka County program was established in 1975 through the efforts of
the Anoka County Bar Association, the
Anoka Board of County Commissioners
and local community groups. In 1976 the
Anoka Judicare program received a demonstration grant from the Legal Services
Corporation (LSC) to provide Judicare
services to clients through a panel of local private attorneys who were paid at a
reduced rate. While it no longer receives
LSC funding, the program still thrives
thanks to support from the local community and bar association, using a handful
of staff attorneys and a robust panel of 25
Judicare attorneys, most of whom have
been members for over 15 years.
In predominantly rural northwest Minnesota, the Legal Services of Northwest
Minnesota (LSNM) program was originally established as a Judicare program in
1976. Although a staff component was
added shortly thereafter and now constitutes 2/3 of the case work, the private
attorney and public lawyer partnership at
LSNM continues today. In 1977 there
were 57 private attorneys on the Judicare
panel; as of 2015 that number had grown
to 210 private attorneys, more than 40 of
whom have been with the program for
more than 20 years. Judicare has proved to be one of the
most viable ways to fill the justice gap in
Minnesota’s many rural counties, where
lawyers and courthouse resources are
few and far between. According to Anne
Hoefgen, executive director of LSNM,
“For our service area, by far the most
important thing about Judicare is access
to justice at a reasonable cost. Our clients live across a service area that is over
23,0000 square miles. Many of our clients live over a hundred miles from any
22 Bench&Bar of Minnesota s February 2016
Judicare attorney panels are in demand. of our three staffed offices, and without Notes
the Judicare attorneys providing services 1 2012 Minnesota Legal Services
locally (especially during the winter),
Coalition Turndown Study
they would not have access to legal ad- 2 2013 MARS Data and 2013 ACS
vice and counsel.” Census Data
Though the Judicare model has been 3 Id.
around for over 40 years in Minnesota, 4 Michael A. Millemann,
programs and funders are showing a re“Diversifying the Delivery of Legal
newed interest in the program to fill the
Services to the Poor by Adding
persistent rural justice gap. The Voluna Reduced Fee Private Attorney
teer Attorney Program (VAP), which
Component to the Predominantly
provides pro bono services in northeast
Staff Model, Including Through
Minnesota, received state funding in
a Judicare Program,” 7 U. Md. L.
July 2015 to create a Judicare program. J. Race Religion, Gender & Class
VAP Executive Director Dori Streit says
227, footnote 1 (2007), citing
that VAP’s approach to Judicare will be
Larry. R. Spain, The Opportunities
modeled on a program in the state of
and Challenges of Providing
Maryland, where established pro bono
Equal Access to Justice in Rural
programs administer Judicare panels, but
Communities, 28 Wm. Mitchell L.
require Judicare attorneys to take one
Rev. 367, 377-378 (2001).
purely pro bono case as a condition of 5 Herrera, Luz E. “Rethinking Private
receiving a Judicare case.
Attorney Involvement Through
Another relative newcomer to Judicaa ‘Low Bono’ Lens,” 43 Loy. L.A.
re was Central Minnesota Legal Services
L. Rev. 1, 15-21 (2009); Andrea
(CMLS), a staff-based legal aid program
J. Saltzman, “Private Bar Delivery
that has had an established pro bono
of Civil Legal Services to the
Volunteer Attorney Program since 1982.
Poor: A Design for a Combined
In 2011, CMLS received state funding to
Private Attorney and Staffed Office
pilot a Judicare panel program designed
Delivery System,” 34 Hastings L.J.
to reach clients in lower-population rural
1165, 1166-1170 (1983).
counties and to remedy the lack of attor- 6 Minnesota Legal Services Advisory
ney coverage for family law cases. CMLS
Committee data, 2014. In addition
currently has 29 attorneys on their Judito the programs mentioned in the
care panel, serving clients in family law
article, smaller Judicare programs
and bankruptcy cases. Recently, CMLS
also exist in Koochiching County
has asked its panel attorneys to accept a
through Legal Aid Services of
pro bono referral or agree to participate
Northeastern Minnesota and for
in an advice clinic in exchange for payimmigration cases outside of the
ment on Judicare cases.
metro area through Southern
Judicare programs are alive and well in
Minnesota Regional Legal Services.
Minnesota, accounting for 1,199 of the
16,060 cases closed by private attorneys
working with civil legal aid programs in
Lindsay Davis is
2014.6 While programs and models vary, the MSBA’s Access to
Justice director. She
one fact has remained consistent over
has previously worked
the last 40 years: Judicare attorney panels
as a staff attorney at
are always in demand, and the need will
only increase as current panelists begin to Southern Minnesota
Regional Legal Services,
retire and the rural population continues
an attorney in private
to age and shrink. Attorneys willing
practice, and an adjunct
to practice in rural areas might be wise
professor at Hamline University School of Law
to consider becoming a Judicare panel
attorney. The benefits include modest and William Mitchell College of Law. She is
but reliable compensation from legal an MSBA North Star volunteer attorney.
[email protected]
aid programs, free and reduced-price
related CLEs, support from programs if
questions arise, and the satisfaction that
comes with improving your community.
www.mnbar.org/northstar
Judicare service even counts as pro bono
Join your fellow MSBA members in providing
work under the Minnesota Rules of
50 hours of pro bono service annually.
Professional Conduct, Rule 6.1. s
www.mnbar.org
Contact the programs below to learn more about becoming a Judicare panel attorney:
Judicare of Anoka County: (763) 783-4970 – www.anokajudicare.org
Legal Services of Northwest Minnesota: (218) 233-8585 – lsnmlaw.org
Volunteer Attorney Program (Northeast MN): (218) 723-4005 – www.volunteerattorney.org
Central Minnesota Legal Services: (612) 332-8151 – www.centralmnlegal.org
Judicare Panel Attorney Profile: Jim Skoog
How long have you been a volunteer with the
Anoka Judicare program?
20 years.
How does your Judicare work fit with the rest of
your practice?
I am a solo practitioner in New Brighton focusing on
civil law cases. Judicare cases make up about half of my
practice.
What kinds of cases do you take from Anoka
Judicare?
Landlord-tenant, bankruptcy, family law, domestic
abuse, civil collections, administrative law, and other
consumer-related civil cases.
How did you get involved with Anoka Judicare?
I heard about the program from other attorneys in
court. They said that the cases were very rewarding and the
clients were very cooperative, so I called Floyd Pnewski,
the executive director, to sign up.
What is the most rewarding part about being a
Judicare panel attorney?
Being able to help clients. Almost all the clients Anoka
Judicare sends are in need of legal help and would not
otherwise be able to have legal representation. Also, I meet
a variety of people and learn about their experiences, and
it gives me a very much better grounded perspective on
the nature of our community and the people in it. I learn a
lot from my clients. For example, I work firsthand with the
increasing number of immigrants in my community who are
particularly vulnerable.
What advice would you give to attorneys
considering becoming a Judicare panel attorney?
The kinds of cases that are available for panel attorneys
enable attorneys who may have just started a practice or
practiced in another area to acquire a broader case load
and knowledge base. The programs are always interested in
adding new attorneys to their panel. They need attorneys
for bankruptcy and other complicated cases.
www.mnbar.org
What is the greatest challenge of being a
Judicare panel attorney?
Being able to help people who are not familiar with
the law and sometimes unable to fully communicate their
problem. Sometimes it is difficult to find enough monetary
relief for case-related services that that are not covered by
the indigent fee waiver process. You can attempt to have
filing fees waived, but when it comes to costs of litigation
like transcript requests, expert witnesses, court reporters,
and huge discovery fees, clients are often at a loss. The
Judicare program usually pays for a translation service.
What is the most memorable Judicare case you
can remember?
Just about every case where we help a tenant retain
housing in the face of eviction is memorable. However,
one family law custody case has been very gratifying for
me. Judicare sent me a matter involving two young parents
both seeking custody of their minor
child, who had been raised by his
great-grandmother since birth.
Both parents and available grandparents had been struggling with
drug use and living in unstable
households. I helped the greatgrandmother to intervene to
seek custody of the child. She
had very limited means, her
own husband of many years
having passed away, but she had
developed an extremely strong
network of friends, neighbors, and
professionals who stood by her and
the child. Eventually, all of
her hard work in raising
the child in a stable
environment helped
her to win custody
of the child after
a number of
days of trial.
February 2016 s Bench&Bar of Minnesota 23
The Evolving World
of Employee Leave
How some states are filling
in the gaps left by the FMLA
The place to start when addressing a request for medical or sick leave is the federal
Family and Medical Leave Act (FMLA). But challenges to application of the FMLA are
compounded by what are commonly referred to as mini-FMLAs—state medical leave
laws such as the one that exists in Minnesota—and by the increasing number of states
that are implementing laws concerning the provision and use of employee sick leave.
By Bobbi Leonard and JoLynn Markison
24 Bench&Bar of Minnesota s February 2016
www.mnbar.org
H
andling leave of absence requests can be one of the most
time-consuming and frustrating challenges that human resources professionals face. With federal,
state, and local laws regulating employee
medical or sick leave, responding to such
requests is not only complex, but, if not
handled properly, can subject employers
to some serious (and potentially expensive) legal risks.
The place to start when addressing a
request for medical or sick leave is the
federal Family and Medical Leave Act
(FMLA). Enacted in 1993, the FMLA
applies to all employers who employ 50
or more employees for each working day
during 20 or more calendar workweeks in
the current or preceding calendar year.1
Even if an employer meets this threshold, however, not all of its employees are
eligible for benefits under the FMLA. An
eligible employee is an employee who:
(1) has been employed by the
employer for at least 12 months
(not necessarily consecutive);
(2)has worked at least 1,250 hours
during the 12-month period
immediately preceding the
requested leave; and
(3) is employed at a worksite where
the employer employs 50 or
more employees within 75
miles of the worksite.2
If an employer is covered by the
FMLA and an employee has met the
eligibility requirements, that employee
is entitled to a total of 12 workweeks of
unpaid leave during a 12-month period
for, among other reasons, the care of a
parent, spouse, or son or daughter with
a serious health condition, or to care for
the employee’s own serious health condition if that condition makes the employee
unable to perform the functions of his or
her position.3 Upon return from FMLA
leave, an employee is entitled to be restored to the same position the employee
held when the FMLA leave commenced,
or to an equivalent position with equivalent benefits, pay, and other terms and
conditions of employment.4
The challenges in applying the FMLA
lie in the details: What is considered a
“serious health condition,” who is considered “a parent” or “son or daughter,”
and what if the condition requires intermittent leave, rather than one large consecutive leave? Ambiguities in the law
have been left to the courts to sort out,
which has sometimes led to inconsistent
interpretations among the circuits.
Challenges to application of the
FMLA are compounded by what are
commonly referred to as mini-FMLAs,
www.mnbar.org
which are state medical leave laws. A
number of states have adopted miniFMLAs containing their own employer
and employee eligibility factors and leave
amounts, sometimes housed in a single
act or law and sometimes covered in
multiple separate statutes. States with
mini-FMLAs include California, Colorado, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island,
Vermont, Washington, and Wisconsin.
Employers must abide by both the FMLA
and any applicable mini-FMLA. Because
some states’ mini-FMLAs impose overlapping (and sometimes conflicting) obligations on employers, employers need to
carefully consider both federal and state
FMLA laws.
Mini-FMLAs: More than
a Mini-Problem
To give you an idea of the range of
differences between mini-FMLAs, let’s
go over a few examples.
Minnesota: Family and medical leave
and pregnancy leave issues are covered
by the Minnesota Parenting Leave Act
(MPLA). Employers with more than 21
employees are subject to the MPLA and
must provide employees with a maximum
of 12 weeks of unpaid leave for the birth
or adoption of a child or for pregnancyrelated health conditions, which can run
concurrently with FMLA leave.5 Upon
return from MPLA leave, an employee
is entitled to return to his or her former
position or a comparable position, as with
the FMLA.6
California: The California Family
Rights Act (CFRA) largely mirrors the
FMLA, including with respect to employer and employee eligibility requirements.7 The most noticeable differences
include that the CFRA does not cover
disability resulting from pregnancy, childbirth, or related medical conditions.8
Leave required for these reasons instead
falls within the scope of California’s Pregnancy Disability Leave Act.9 Pregnancy
Disability Leave, which applies to all California employers and allows up to four
months of leave, may run concurrently
with FMLA, but it cannot run concurrently with CFRA leave.10 For example, a
CFRA-eligible employee may be entitled
to 12 weeks of CFRA leave for the birth
of a child after she is no longer disabled
by the pregnancy or at the end of four
months of pregnancy disability leave,
whichever occurs first. For that reason,
the maximum possible combined statutory leave for Pregnancy Disability Leave
and CFRA due to the birth of a child is
four months plus 12 workweeks.
New Jersey: The New Jersey Family
Leave Act provides eligible employees up
to 12 weeks of leave in a 24-month period
for the birth or adoption of a child or the
serious health condition of a family member.11 It does not cover an employee’s
own serious health condition. In addition to the Family Leave Act, New Jersey
has enacted the Paid Family Leave Act.
Any entity that employs one or more individuals and pays the individuals at least
$1,000 in the current or preceding calendar year is required to provide eligible
employees up to six weeks of family leave
benefits to care for sick family members
or a newborn or newly adopted child.12
Covered employees are eligible for twothirds of their average weekly wage up to
$584 per week.13 Paid family leave is not
available for an employee’s own serious
health condition.
Wisconsin: Wisconsin’s mini-FMLA
strays from the FMLA’s eligibility standards. For an employee to be eligible, the
employee must have worked for at least
52 consecutive weeks and worked or been
paid for at least 1,000 hours during the
preceding 52-week period.14 Wisconsin
law applies different protections and
benefits for “family leave” and “medical
leave.”15 Further, different qualifying reasons for leave have different leave allotments. For example, an eligible employee
can take up to six weeks of leave for the
birth or adoption of a child, but only two
weeks for care for a family member’s serious health condition.16
A cursory review of the wide disparities between these four states makes clear
that employers must carefully consider
mini-FMLA laws enacted in the states in
which their businesses and employees reside. Employers will be responsible for applying both the FMLA and any applicable
mini-FMLA, providing employees with
the more generous provisions of the two
laws whenever there is an inconsistency.
Lest We Forget: Sick Leave Laws
In addition to the benefits provided
in the FMLA and applicable miniFMLAs, an increasing number of states
are implementing laws concerning the
provision and use of employee sick leave.
The issue of whether employers should be
required to provide a certain amount of
unpaid sick leave or even paid sick leave
has been a polarizing issue these past few
years. In President Obama’s 2015 State
of the Union Address, he highlighted the
fact that the United States is the only
advanced country on earth that doesn’t
guarantee paid sick leave to employees,
asking Congress to send him a bill that
gives workers an opportunity to earn
seven days of paid sick leave. Given
the stagnant progress on this issue at
the federal level, some state and local
legislators have taken it upon themselves
to act.
February 2016 s Bench&Bar of Minnesota 25
As the popularity of paid sick leave rises among
the American population, the evolution of sick
leave laws will only continue to snowball.
Let’s see how our four sample states
have handled sick leaves.
Minnesota: While no Minnesota
law requires private sector employers to
provide employees with paid or unpaid
sick leave, Minnesota’s Sick or Injured
Child Care Leave Act does regulate how
existing sick leave policies can be used.
A Minnesota employer with 21 or more
employees must allow eligible employees
to use their personal sick leave benefits
for absences due to illness or injury of the
employee’s family members, as defined in
the Act.17 To be eligible, the employee
must have worked for at least 12 consecutive months immediately preceding the
request and must work an average number of hours per week equal to one-half
the full-time equivalent position.18 While
paid sick leave bills have been proposed
in the Minnesota Legislature, no such bill
has yet been enacted.
California: California has been at the
forefront of the paid sick leave trend. In
2007, San Francisco became the first city
to mandate paid sick leave.19 In 2014,
California lawmakers caused quite a stir
by enacting the Healthy Workplaces,
Healthy Families Act, which provides
eligible employees with paid sick leave.
Paid sick leave under this law, which was
effective as of this past July, is available to
the majority of California workers: Any
employee who has worked in California
for 30 or more days within a year from
the beginning of his employment is considered eligible.20 Paid sick leave accrues
at the rate of 1 hour per every 30 hours
worked and is to be paid out at the employee’s regular wage rate.21 As an alternative to this accrual method, employers
can choose to give covered employees at
least three days (24 hours) of paid sick
leave at the beginning of the each year.22
There are two qualifying reasons for paid
sick leave use: (1) an employee’s own or
a family member’s health condition or
care; and (2) time needed to seek aid,
treatment, or other assistance when an
employee has been the victim of domestic violence, sexual assault, or stalking.23
Complications with carry-overs, accrual
caps, grandfathered policies, and application to unlimited vacation policies
under the new law have left employers
with a number of unanswered questions
26 Bench&Bar of Minnesota s February 2016
JoLynn Markison is a
2006 graduate of William
Mitchell College of Law, Jo
is an attorney in Dorsey’s
Labor & Employment Group.
Jo represents large and
small corporations in employment litigation involving race, gender, national
origin, religion, disability, and age retaliation and
discrimination; sexual harassment; and wage and
hour claims. In addition to litigation, Jo counsels
corporations on employment-related issues,
including FMLA, discipline and discharge decisions, and policy creation and implementation.
[email protected]
(and likely headaches) on lawful application of this innovative new law. Employers in California must comply with both
the state paid sick leave law and any local ordinance enacted on the topic, such
as those in San Francisco, Oakland, and
Emeryville.
New Jersey: The state of New Jersey
does not require private sector employers
to provide employees with paid or un- Bobbi Leonard is an
paid sick leave. However, like California, attorney with Dorsey &
a number of cities and towns within the Whitney’s Labor and Emstate have passed local ordinances re- ployment practice group.
quiring that employers within their mu- She advises employers
nicipalities provide employees with paid with respect to all manner
sick leave, including Jersey City, Newark, of issues, from drafting and
Passaic, East Orange, Paterson, Irving- revising corporate policies
ton, Trenton, and Montclair.24 These to representing employers
ordinances apply to all private employers in complex and class-action litigation.
[email protected]
regardless of size, but the amount of required paid sick leave time varies. While
the New Jersey Legislature has consid- Notes
ered paid sick leave legislation, no paid 1 29 C.F.R. §825.104(a)
2
sick leave laws have yet been passed.
29 C.F.R. §§825.110(a)(1)-(3)(b)(1);
29 U.S.C. § 2611(2).
Wisconsin: The people of Wisconsin
have had a very different experience with 3 29 C.F.R. §825.200(a)(1)-(5).
paid sick leave laws than those in Cali- 4 29 C.F.R. §825.214(a).
fornia and New Jersey. In 2008, voters in 5 Minn. Stat. §181.941, subd. 1.
Milwaukee approved a mandatory paid 6 Minn. Stat. §181.942.
sick leave law. The law received immedi- 7 Cal. Code Regs. tit 2, §7297.0(d)-(e).
ate opposition from employers and busi- 8 See Cal. Code Regs. tit 2, §7097.4.
ness groups and was brought before Wis- 9 Cal. Gov’t Code §12945.
consin courts. In 2011, the Wisconsin 10 Cal. Code Regs. tit. 2, §7297.9(a).
Legislature passed a law that nullified the 11 N.J.S.A. 34:11B-1(i).
Milwaukee ordinance and prohibited lo- 12 N.J.S.A. 43-21-27(o).
cal municipalities from passing paid sick 13 N.J.S.A. 43-21-29(b).
leave ordinances.25 Wisconsin’s experi- 14 Wis. Stat. §103.10(2)(c).
ence is not unique: A number of other 15 See Wis. Stat. §103.10(3)-(4).
state legislatures have passed measures 16 Wis. Stat. §103.10(a)1-2.
banning municipalities from passing paid 17 Minn. Stat. §181.9413.
sick leave laws, including Georgia, North 18 Minn. Stat. §181.940, subd. 2.
19
Carolina, Florida, and Arizona.
S.F. Administrative Code Ch. 12W.
Employers now face a moving target. 20 Cal. Lab. Code §245 (a).
Medical and sick leaves pose a particu- 21 Cal. Lab. Code §246 (b).
larly complicated challenge for employ- 22 Cal. Lab. Code §246 (d).
ers with employees in multiple states and 23 Cal. Lab. Code §246.5 (a)(1)-(2).
in multiple municipalities within those 24 See e.g. Ordinance of Jersey City, N.J.
states. As the popularity of paid sick
No. 13.097; Ordinance of the City of
leave rises among the American popuNewark, N.J. No. 6PSF-A(S); City of
lation, the evolution of sick leave laws
Trenton, N.J. Ordinance No. 14-45.
will only continue to snowball. Person- 25 See generally Anne M. Carroll and
nel responding to a medical or sick leave
Marry Ellen Simonson, “Sick leave law:
request will do well to track the progress
The view from Wisconsin and Arizona,”
of newly proposed laws that may apply to
Inside Counsel, October 29, 2014, www.
their employees and to become intimateinsidecounsel.com/2014/10/29/sick-leavely familiar with their provisions. s
law-the-view-from-wisconsin-and-arizona.
www.mnbar.org
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Notes Trends
Notes&Trends
Landmarks in the Law
Current developments in Judicial Law, Legislation, and Executive Action together with a foretaste
of Emergent Trends in law and the legal profession for the complete Minnesota lawyer.
BANKRUPTCY
Bankruptcy
by Patrick C. Summers
29
Commercial and
Consumer Law
by Fred Miller
29
Criminal Law*
by Frederic Bruno
& Samantha Foertsch
31
Employment
& Labor Law
by Marshall H. Tanick
35
Family Law
by Jaime Driggs
36
Federal Practice*
by Josh Jacobson
38
Indian Law
by Jessica Intermill
& Peter J. Rademacher
38
Real Property
by Joseph P. Bottrell
39
Tax
by Morgan Holcomb
& Kate Rawls
40
Torts & Insurance
by Jeff Mulder
41
* The online version of this section
contains additional case note content.
See www.mnbenchbar.com
www.mnbar.org
her discharge, claiming the bankruptcy
court erred in finding she had fraudulent
JUDICIAL LAW
intent. The BAP held that the bankn Bankruptcy court’s findings on
ruptcy court’s determination that debtor
non-dischargeable student loan debts
had knowingly and fraudulently made
upheld. On remand from a prior appeal
a false oath or account under 11 U.S.C.
to determine the debtor’s disposable
§727(a)(4)(A) is a factual determinaincome to service certain student loan
tion reviewed for clear error, quoting In
payments, the bankruptcy court held
re Bauder, 33 B.R. 828 (8th Cir. BAP
2005), “[t]o be clearly erroneous, a
that her monthly disposable income was
decision must strike us as more than just
$170.30, from which it held she could
make payments on four of her student
maybe or probably wrong; it must strike
loans without undue hardship. Debtor
us as wrong with the force of a five-week
old, unrefrigerated dead fish.” Debtor
appealed, arguing the bankruptcy court
admitted that she did a “poor job” filling
made clearly erroneous findings as it
did not take into account her reduced
out her schedules, but argued that the
income due to loss of one of her jobs after issue was whether she made the omisa cut-off date set by the bankruptcy court sions for the specific purpose of defrauding her creditors. She asserted that the
but before its findings were issued, the
items omitted were generally of minimal
increase of certain expenses and reduction by the court of her miscellaneous
value or would not have been part of
the estate. The BAP noted that a debtor
expenses. The bankruptcy court had
reviewed her income and expense inforhad a duty to provide a “complete
picture of her assets and liabilities.” It
mation over the most recent 12-month
observed that debtor was a bookkeeper
period as directed on remand. In affirming the decision and methodology of the for several businesses and failed to
disclose assets of significant value. The
bankruptcy court, the BAP noted that
BAP upheld the decision of the bank“[a] decision on the dischargeability of
student loan debt will nearly always be
ruptcy court. In re Norma J. Cecil, No.
akin to a judicial version of ‘Whack-A15-6026 (8th Cir. BAP, 12/28/2015).
Mole’ because a debtor’s income and ex– Patrick C. Summers
DeWitt Mackall Crounse & Moore S.C.
penses are rarely static. Life is like that.”
The BAP held that the bankruptcy court
properly reviewed the complete year of
income and expenses, and did not have
commercial and
to amend its judgment to reflect continconsumer law
ued changes in debtor’s circumstances.
judicial law
In re Chelsea Ann Conway, No. 15-6029
n Madden update. In the December
(8th Cir. BAP, 12/21/2015).
2015 issue of this publication under the
n Debtor denied her discharge under
heading “Less Not More,” I discuss and
Section 727 for making a false oath
criticize the 2nd Circuit’s recent Madden
or account after failing to schedule a
case, which acted as a bombshell for secunumber of bank accounts, transfers, and ritization transactions in denying preempassets. Debtor failed to disclose numer- tion for credit card receivables sold by
ous bank accounts, the transfer of an
a national bank to a debt collector. The
automobile, a $23,000 payment on her
defendants in Madden filed for a rehearing
mortgage within 90 days of filing, and
which was denied by the Second Circuit,
her interest in several businesses. The
and have filed a petition for certiorari
bankruptcy court found these omissions with the U.S. Supreme Court, requesting
amounted to a reckless indifference to
the court decide whether §85 of the Nathe truth. Debtor appealed the denial of tional Bank Act does or does not preempt
February 2016 s Bench&Bar of Minnesota 29
Notes&Trends
state usury laws—that is, does §85 continue to apply to loans made by a national
bank after the bank has transferred the
loans to another entity? The petition cites
an 8th Circuit 2000 decision, Krispin v.
May Department Stores Co., 218 F. 3d 919
(8th Cir. 2000), which ruled the other
way from the Second Circuit. Action by
the Supreme Court is not expected before
February. Madden v. Midland Funding,
LLC, 786 F.3d 246 (2d Cir. 2015).
but conducts its business by telephone
and mail (electronic or otherwise), does
not necessarily control whether the
company is subject to a state’s jurisdiction. Considering that, and, as the court
stated, Minnesota law would have only a
“negligible” effect on commerce and did
not control the terms on which companies lend money in other states, the
court ruled the Minnesota law did not
excessively burden interstate commerce.
That may be debatable, but it clearly
n Divisions of opinion. The jurisis not the whole story as the decision’s
dictional arm grows ever longer. For
result not only subjects the lender to
example, in Quik Payday, Inc. v. Stork,
Minnesota law, which does not allow
549 F. 3d 1302 (10th Cir. 2008), cert.
Delaware rates, which may be necessary
den. 2009 WL 666434 (U.S. 2009), an
to do business, but it would seem to also
out-of-state lender through the internet
subject a lender to Minnesota licensmade a loan to a Kansas resident and the ing and all that goes with it as well, and
Kansas agency that enforces their law
also to the same regulation for any other
determined this did not violate either
state that follows the decision. Thus, for
the commerce or due process clauses and the observation by the court to be realthe 10th Circuit agreed. Then, in State of istic, and not constitute such a burden
Minnesota v. Integrity Advance, LLC, No.
on commerce that the lender cannot
A13-1388 (Minn. Sup. Ct. 2015), which continue to profitably do business in any
involved a Delaware LLC operating as an state, paying the cost of regulation in
online payday lender, the lender charged Delaware and Minnesota and where also
Minnesota borrowers interest rates in
it may do business, would seem clearly
excess of those allowed under Minnesota impossible. The courts need to think
law, and was not licensed as a lender in
this matter through completely.
Minnesota. The Minnesota Supreme
Are there other ways for interstate
internet lenders to operate? Consider
Court followed the 10th Circuit. The
loans were made pursuant to online loan Maryland Commissioner of Financial Reguapplications, the borrowers were called
lation v. CashCall, Inc., No. 1477 (Md.
at their homes or employment, and
Ct. Spec. App. 2015). The case involved
their banks also were contacted so their
a California corporation that arranged
more than 5,000 loans for Maryland
paychecks were deposited to their bank
consumers that were issued by two federaccounts as were the loan proceeds and
from those deposits payments were with- ally insured out-of-state banks at rates in
drawn. The lender Integrity argued that
excess of those allowed in Maryland. By
arrangement the California corporation
it was protected by the commerce and
due process clauses and cited Midwest
then purchased the loans and serviced
them. The Maryland regulatory agency
Title Loans, Inc. v. Ripley, 616 F. Supp.
2d 897 (S.D. Ind. 2009), aff’d sub nom.
concluded the California company had
Midwest Title Loans, Inc. v. Mills, 593 F.3d violated Maryland law and imposed a
660 (7th Cir. 2010), holding Indiana’s
penalty. The Circuit Court for Baltimore
attempts to regulate credit agreements
City reversed the commissioner’s order,
between an Illinois lender and Indiana
and an appeal followed.
residents violated the commerce clause.
The California corporation adverThe Minnesota Supreme Court, how- tised and directed potential customers to
ever, distinguished the Mills case on the
its website for a loan application. There
basis that their borrowers had to sign the also was a telephone number to call.
loan agreements, receive the proceeds,
Completed applications were forwarded
transfer the collateral, and the lender re- to the two banks. When approved,
ceive payment in Illinois, so that Indiana the proceeds were disbursed less an
origination fee, the California corporasought to regulate commerce that was
“wholly” extraterritorial, while in Integri- tion would buy the loan, and payments
ty Advance the extension of payday loans would be made to it.
to Minnesota residents did not occur
The court held that while federally
wholly outside Minnesota’s borders. That insured depository institutions, whether
being so, “extraterritorial” regulation was federal or state chartered, can charge the
not prohibited by the commerce clause or interest rate in its home state to borrowthe due process clause.
ers across state lines, under Maryland law
It seems clear that the mere fact a
a credit services business is prohibited
person does not have a physical presfrom assisting a consumer to obtain an
ence in a state (“bricks and mortar”)
extension of credit at a rate of interest
30 Bench&Bar of Minnesota s February 2016
which, except for federal preemption of
state law, would be prohibited under state
law. The court then, after an interpretive struggle, ruled that the California
corporation qualified as a credit services
business and affirmed the order of the
commissioner, but never discussed
whether Maryland had jurisdiction over
the California corporation, but perhaps
it would have found that too. More often
the role of the Califonia corporation is
played by a local company over which
there clearly is jurisdiction. Thus, even
absent any jurisdiction over an ultimate
lender, if there is jurisdiction over one
who “facilitates” the loan, “rent a lender”
will not work to avoid the protective
state’s law. However, given the Madden
case discussed, supra, whether preemption might carry over to protect the
“facilitator” remains an open question.
Nonetheless, there are regulatory
limits in this context. In Costos v. Bank
of America, N.A., 74 Fed. Supp. 3d 558
(E.D.N.Y. 2015) (and the similar case of
Andrichym v. TD Bank, N.A., 2015 U.S.
Dist. LEXIS 344802 (E.D.Pa. 2015)),
a consumer received a payday loan
through an application over the internet
at an APR of 1200%. Some two months
later the lender, pursuant to agreement,
initiated an ACH debit transaction for
interest due against the consumer’s
checking account. This and other debits
created overdrafts for which the consumer was charged fees. The consumer
then brought a putative class action
against the bank on several theories.
None of the theories were upheld.
There was no breach of the deposit
contract despite the many warnings by
regulators about this practice and the
incorporation of NACHA rules in the
agreement which also raised alerts about
facilitating collection by this means of
such loans; no breach of good faith and
fair dealing as the debits, even if arguably illegal, were authorized; no unconscionability as that theory was only
a shield; no conversion as the deposits
belonged to the bank; and no unjust enrichment or UDAP claim as the deposit
agreement precluded the first and there
was no concealment or misrepresentation as to the second.
Two other limitations were recognized in Everette v. Joshua Mitchem, et.
al., Case No. 1:15-cv_01261 (Dist. Md.
2015), where the lender was a wholly
owned tribal lending company formed
under tribal law to raise revenue for tribal purposes and thus was immune from
suit by reason of sovereign immunity for
off-reservation commercial activity. A
similar case is Great Plains Lending, LLC,
et al. v. Connecticut Department of Bankwww.mnbar.org
Notes&Trends
ing, CV15-6028096 (Super. Ct. New
Britain 2015). Whether this analysis
will survive federal regulatory authority
by the Consumer Financial Protection
Bureau (CFPB) remains to be seen,
however, as tribes are subject to federal
law even if not generally to state law.
– Fred Miller
Retired G.L. Cross Research Professor,
University of Oklahoma
CRIMINAL LAW
JUDICIAL LAW
n Aiding and abetting: For valid guilty
plea to aiding after the fact, principal
offender need not be convicted of
underlying offense. Appellant pleaded
guilty to aiding an offender after the
fact. Appellant bought a gun from
Shufford, who later asked to use the
gun to commit a robbery. Shufford later
returned the gun to appellant, told him
“he had to slump the guy,” and showed
him a dead man in a car. The gun was
later found in appellant’s possession and
identified as the murder weapon. After a
jury trial, Shufford was found not guilty,
and appellant moved to withdraw his
guilty plea. The district court denied
his motion. On appeal, appellant argues
the district court’s denial of his motion
was contrary to both the fair-and-just
and manifest-injustice standards for the
withdrawal of a guilty plea.
A manifest injustice occurs when a
guilty plea is not valid, that is, not accurate, voluntary, and intelligent. Appellant argues his factual admissions were
inadequate, because he could not know
that a crime was committed if Shufford
was found not guilty of the first-degree
murder. The fair-and-just standard requires the court to consider the reasons
offered to support the withdrawal of
a guilty plea and the prejudice to the
state should the plea be withdrawn. The
sole reason provided by appellant for
withdrawal of his plea was that he “faces
punishment for an after-the-fact role in a
murder that a jury determined could not
be proved beyond a reasonable doubt.”
Held, the district court did not abuse
its discretion in denying appellant’s
motion to withdraw his guilty plea. The
statute under which appellant was convicted, Minn. Stat. §609.495, subd. 3,
states that “[w]hoever intentionally aids
another person whom the actor knows
or has reason to know has committed a
criminal act, by destroying or concealing
evidence of that crime,… [or] receiving the proceeds of that crime… is an
accomplice after the fact.” The statute
requires that someone commit a criminal
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Register at: www.mnbar.org/cle-events
February 2016 s Bench&Bar of Minnesota 31
Notes&Trends
intent, or intentional misconduct by
the crime lab or its employees. To the
contrary, the district court found that
proper measures were taken in handling
the evidence in this case. Because there
is no evidence of harmful intent or blatantly egregious behavior, or a “substantial likelihood” of contamination, the
court finds that appellant’s right to due
process does not compel the adoption of
a presumption of contamination of the
substances handled at the crime lab.
The Court also declines to adopt
such a presumption pursuant to its
supervisory powers to ensure the fair
administration of justice. The Court
finds that the issue does not present
statewide implications, as it is limited to
n Controlled substances: No rebuta single laboratory, there is no evidence
table presumption of contamination
to suggest the crime lab persisted in
for controlled substances handled by
substandard operation despite previSt. Paul Police Crime Lab. Appellant
ous warnings from the court, and the
was charged with aiding and abetting
first-degree sale of a methamphetamine. Legislature has taken action to address
During his court trial, he objected to the the concerns of substandard crime lab
admission of BCA test results confirming operations. State v. Richard Ellis Hill,
Sup. Ct. 12/9/15.
the substance was methamphetamine,
arguing that the results were unreliable
n Restitution: Restitution order six
because the substance may have been
contaminated while in the custody of
years after sentencing proper where
Minn. Stat. §611a.04, subd. 1(b), requirethe St. Paul Police Crime Lab, which
was investigated for deficiencies in its
ments met. Appellant was convicted
quality assurance controls. The subof first-degree premeditated murder in
stance was tested first by the crime lab
2008, and the district court reserved
and then again by the BCA, after the
the issue of restitution for 30 days after
state requested additional testing. The
sentencing. The state filed a request
district court rejected appellant’s argufor restitution within this time, but the
ment, and appellant was convicted. The court did not take any action. In 2014,
court of appeals affirmed. Before the
the district court granted the restituMinnesota Supreme Court, appellant
tion request and ordered appellant to
asked the Court to adopt a rebuttable
pay $6,500. The restitution request
presumption of contamination for conwas properly served upon appellant’s
trolled substances handled by the crime attorney of record. The restitution
lab, based on either a right to substanstatute does not set a deadline for the
tive due process or the court’s inherent
district court to exercise its authority to
judicial authority.
order restitution, and all of Minn. Stat.
The Supreme Court declines to
§611A.04, subd. 1(b)’s requirements
adopt a presumption that all evidence
for the issuance of a restitution order
processed through the crime lab is
after a sentencing hearing are met here:
contaminated unless the state can prove (1) offender is on probation, committhe absence of contamination. With re- ted to the commissioner of corrections,
spect to action by the state, substantive or on supervised release; (2) sufficient
due process prevents the government
evidence of a right to restitution has
from engaging in conduct that shocks
been submitted; and (3) the true extent
the conscience. Appellant argues that
of the victim’s loss was not known at the
processing evidence through a laboratime of the sentencing hearing. State v.
tory that operated without policies,
Kenneth E. Anderson, Sup. Ct. 12/9/15.
procedures, checks, and controls shocks
the conscience, and equates the likelin Therapist-client privilege: There
hood of contamination at the crime lab
is no “threats” exception to the
with the use of unnecessarily suggestive therapist-client privilege. During an
eyewitness identification procedures
anger management therapy session,
that create a substantial likelihood of
respondent became upset and made
irreparable misidentification, which are
threatening statements about D.P. His
prohibited by substantive due process.
therapist concluded that respondent’s
The court points out that there was
statements triggered her duty to warn
no evidence of bad faith, malicious
under Minn. Stat. §148.975, and she
act, not that a person be convicted of a
criminal act. The facts to which appellant admitted when entering his plea
described the commission of first-degree
murder by Shufford and demonstrated
that appellant had reason to know Shufford committed that crime. The court
justifies its holding by citing Minnesota
Supreme Court cases involving charges
of aiding and abetting the underlying
crime and finding that the acquittal of
a principal offender does not affect the
conviction of a defendant charged with
aiding and abetting the principal. The
district court is affirmed. State v. Adaiah
Deontraie Townsend, Ct. App. 12/7/15.
32 Bench&Bar of Minnesota s February 2016
reported respondent’s statements to
her supervisor, D.P., and the police.
Respondent was thereafter charged with
terroristic threats. Respondent moved
to exclude at trial any statements by his
therapist, and objected to his therapist’s
testimony during the trial. The district
court denied respondent’s motion and
overruled his objections, finding that
the therapist-client privilege does not
apply to statements of imminent threat
of harm. Respondent’s therapist and D.P.
testified about the statements respondent made to his therapist. The jury
found respondent guilty. On appeal, he
argued that his therapist’s testimony was
inadmissible under the therapist-client
privilege. The court of appeals reversed
his conviction, and the state petitioned
the Supreme Court for consideration of
(1) whether respondent timely objected
to his therapist’s testimony under Minn.
R. Crim. P. 10.01, subd. 2, (2) whether
the therapist-client privilege is subject to
a “threats exception,” and (3) whether
the therapist-client privilege extends to
the testimony of third parties.
Minn. R. Crim. P. 10.01 states that
“[d]efenses, objections, issues, or requests that can be determined without
trial on the merits must be made before
trial by a motion to dismiss or to grant
appropriate relief. The motion must
include all defenses, objections, issues,
and requests then available. Failure to
include any of them in the motion constitutes waiver…” However, determining
whether a therapist’s testimony is privileged necessarily involves a fact-dependent inquiry that may require a trial on
the merits, Rule 10.01 does not require
the preemptive objection to testimony
based on the assertion of a privilege.
The therapist-client privilege statute
contains two specific exceptions, which
allow testimony by a therapist in cases
involving the neglect or abuse of a
minor, but does not contain an exception for threatening statements. The
court rejects the state’s argument that a
“threats exception” should be adopted
in light of Minn. Stat. §148.975, which
places a duty to warn on psychologists.
This statute establishes a duty to warn
“when a client or other person has
communicated to the licensee[, including a psychologist,] a specific, serious
threat of physical violence against a
specific, clearly identified or identifiable
potential victim.” The duty is discharged
“if reasonable efforts… are made to
communicate the threat.” The duty
to warn statute says nothing about a
psychologist’s duty of confidence to his/
her client once the duty is discharged.
The privilege statute is an evidentiary
www.mnbar.org
Notes&Trends
statute that address under what circumstances therapists are competent
to testify about matters covered by the
privilege—it creates an exception to
the general rule that every witness is
presumed to be competent to testify in
court. As in this case, a psychologist can
both comply with the duty to warn and
still be incompetent to testify in court
about the information the psychologist
has disclosed.
The court finds that the therapistclient privilege does not extend to thirdparty testimony about confidential information acquired by a therapist while
attending a client, and, therefore, D.P.’s
testimony about respondent’s statements
was not subject to the privilege. However, the court cannot conclude that
the district court’s error in allowing the
therapist’s testimony was harmless, even
with D.P.’s testimony regarding respondent’s statements. D.P.’s testimony was
far less extensive than the therapist’s
testimony, which provided key evidence
that respondent acted recklessly with
respect to causing terror. Respondent’s
conviction is reversed. State v. Jerry
Expose, Jr., Sup. Ct. 12/9/15.
n Service: Rebuttable presumption
applies that mail properly addressed
and sent with prepaid postage is
duly received by addressee. In 2013,
respondent was charged with two counts
of first-degree criminal sexual conduct
after respondent moved from Minnesota to California. The district court
mailed the summons and complaint to
respondent at his California address,
and the documents were not returned
as undeliverable. Respondent failed to
appear for his first appearance, and the
district court issued a warrant. In 2015,
he was extradited to Minnesota, after
which respondent moved to dismiss
the charges, alleging a violation of his
right to a speedy trial. Five days later, he
made a speedy trial demand. The district
court dismissed the charges on speedy
trial grounds, finding that the state did
not present evidence that respondent
actually received the summons and
complaint. The state appeals.
Held, respondent’s right to a speedy
trial was not violated. A four-factor
test is used to determine whether the
right to a speedy trial has been violated:
(1) length of the delay, (2) reason for
the delay, (3) whether and when the
defendant asserted his right to a speedy
trial, and (4) prejudice to the defendant
caused by the delay. Here, there was
a 21-month delay, and the state knew
where respondent was residing during
that time, but did not attempt to apwww.mnbar.org
February 2016 s Bench&Bar of Minnesota 33
Notes&Trends
prehend him. However, the state did not
act intentionally to delay a trial in this
case. More importantly, respondent presumably knew about the charges against
him long before his arrest in 2015, after
the court mailed a summons and complaint to his address in California. Minn.
R. Crim. P. 3.03, subd. 3, permits service
of a summons on a defendant by mailing
it to the defendant’s last known address.
The court of appeals also adopts the presumption, applied by the United States
Supreme Court in another criminal case,
“that proof of a letter properly directed
was placed in a post office creates a
rebuttable presumption that it reached
its destination in usual time and was actually received by the person to whom it
was addressed.” Hagner v. United States,
285 U.S. 427, 430 (1932). Respondent
has not rebutted this presumption.
In addition, while it is the state’s duty
to bring a defendant to trial, it is the
defendant’s responsibility to assert his
speedy trial right, and failure to do so is
relevant to the question of whether that
right was violated. Respondent did not
assert his right to a speedy trial until 23
months after he was notified of charges.
Finally, although some audio recordings
were lost by the state, the record does
not establish that they were lost after
respondent was charged, so it cannot be
said they were lost to due to the postaccusation delay, and any other prejudice respondent may have suffered was
mitigated by his acquiescence to the delay. The district court’s order dismissing
the charges is reversed. State v. David
Ernest Osorio, Ct. App. 12/14/15.
“indicate to a reasonable person that she
is not free to leave.” Here, appellant’s
Jeep was not blocked by the squad car,
so Appellant could have pulled away. In
addition, the court has previously held
that the use of a squad spotlight to locate a vehicle is not a seizure. Crawford
v. Comm’r Pub. Safety, 441 N.W.2d 837
(Minn. App. 1989). Although the officer
in this case kept the light illuminated
while he approached the Jeep, unlike in
Crawford, no reasonable person would
feel significantly more or less free to
leave depending simply on whether or
not the officer had turned the spotlight
off before approaching. Unlike emergency lights, a spotlight or flashlight,
without being accompanied by some
verbal command, is not reasonably or
commonly interpreted as a command
to stop. Finally, a similar stop during
daylight hours (without the need for the
spotlight) would not constitute a seizure.
Rita Dolores Illi v. Commissioner of
Public Safety, Ct. App. 12/21/15.
perjury with the second witness because
it had a strong belief that he would provide false testimony, the witness stated
on the record that he did not choose to
withhold his testimony because of fear of
prosecution for perjury, and he asserted
his 5th Amendment privilege after
consulting with an attorney. Rene Julian
McKenzie v. State, Sup. Ct. 12/23/15.
n DWI: Warrantless search of driver’s
urine is not constitutional under any
exception to warrant requirement. Appellant was pulled over and ultimately
arrested for DWI after police observed
unusual driving conduct and a number of
indicia of intoxication. After his arrest,
appellant refused blood and urine tests,
and was charged with test refusal. Before
the district court, appellant challenged
the constitutionality of the test refusal
statute, but the district court found the
statute constitutional. The test refusal
charge was submitted to the court under
Minn. R. Crim. P. 26.01 (trial to the
court via a stipulation to the prosecutor’s
n Postconviction: Same test for govern- case in order to obtain review of a pretrial
ment interference with witness applies ruling). The district court found appelin criminal trial and postconviction
lant guilty and this appeal followed.
Previous cases have established that
contexts. In this case of first impression,
the Supreme Court considers an arguthe collection of blood, breath, or urine
ment that a government actor interconstitutes a search. State v. Bernard,
fered with a witness before or during a
859 N.W.2d 762 (Minn. 2015), held that
postconviction evidentiary hearing. The warrantless breath tests are constitest in the context of a criminal trial is
tutional under the search incident to
whether the defendant has proved that
arrest exception to the warrant require(1) a government actor interfered with
ment. However, State v. Trahan, 870
a defense witness’s decision to testify,
N.W.2d 396 (Minn. App. 2015), held
(2) the interference was substantial; and that a warrantless blood test cannot be
(3) the defendant was prejudiced by the justified under the search incident to
conduct. The Supreme Court adopts this arrest exception. The court of appeals
n Search & seizure: No seizure of
same test in a postconviction setting.
finds that urine tests, while less intrusive
vehicle through use of squad spotlight
Here, appellant failed to prove elethan blood tests, are far more intrusive
and when vehicle not blocked. A police ments (1) and (2). The court relies on
than breath tests and many other less
officer decided to investigate after
the postconviction court’s findings that
invasive searches upheld under the
search incident to arrest exception (bucobserving a Jeep drive into a parking lot the state did not substantially interfere
of a strip mall that was closed. He pulled with two witnesses’ decision to testify
cal swab of cheek, x-rays, photographs).
up several feet behind and to the left of
at the postconviction hearing. SpecifiUrine tests intrude upon an expectation
the Jeep, driven by appellant, and illumi- cally, the fact that the state entered into of privacy in the passing of urine that
nated the area with his squad’s spotlight. a plea agreement with one witness that
society has long held reasonable. In the
He did not use the emergency lights or
purported to restrict her from testifyimplied consent statute, the Legislature
also treats blood and urine tests differloudspeaker. He ultimately arrested aping in appellant’s case did not amount
pellant for DWI and her driver’s license to substantial interference, because the
ently than breath tests, which suggests
was revoked based on her refusal to
postconviction court deemed the provithe Legislature, too, considers blood and
submit to a breath test. Before the dission in the plea agreement regarding the urine tests to be similar in nature.
trict court, she argued that the Jeep was witness’s testimony unenforceable. The
Held, a warrantless urine test is
seized when the officer parked behind
unconstitutional and not justified by any
witness voluntarily thereafter invoked
it, and the seizure was not supported by her 5th Amendment privilege and freely exception to the warrant requirement,
reasonable articulable suspicion, but the chose not to testify. The second witness
including the search incident to arrest
district court found that no seizure had
was interviewed outside the presence of
exception. Because a warrantless blood
occurred and sustained the revocation
an attorney, and the state informed the
or urine test is not rendered constituof her license.
witness of the consequences of perjury.
tional by any exception to the warrant
Held, no seizure of appellant’s Jeep
However, counsel was not appointed for requirement, the test refusal statute with
occurred. Police must have a reasonthis witness until after the interview took respect to warrantless blood and urine
able suspicion to seize a person, but a
place, so the state made no ethical viola- tests implicates a fundamental right—
seizure occurs when the officer’s actions tions. In addition, the state discussed
the right to be free from unreasonable
34 Bench&Bar of Minnesota s February 2016
www.mnbar.org
Notes&Trends
searches and seizures. The test refusal
statute fails strict scrutiny. It serves a
compelling government interest, keeping
drunk drivers off the road, but is not
narrowly tailored. The state has many
other viable options to address drunk
driving (breath tests, prosecuting without the alcohol concentration, securing
a warrant, etc.).
As such,
the test refusal
PJT feb
08 1/9/08
10:16
charge against appellant violated his
right to substantive due process.
The court declines to adopt a good
faith exception, because such an exception only applies to 4th Amendment
violations. Here, no unconstitutional
search actually occurred, because appellant refused the tests. Appellant’s
conviction is reversed. State v. Thompson, Ct. App. 12/28/15.
– Frederic Bruno
– Samantha Foertsch
Bruno Law
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tort claim against the facility. The court
of appeals, reversing a ruling of the
Hennepin County District Court, ruled
that the exclusivity provision of the
Workers Compensation Act, Minn. Stat.
§176.011, did not bar the claim by the
decedent’s estate because of his employment. Henson v. Uptown Drink, LLC,
2015 Minn. App. LEXIS 1185 (Minn.
App. 2015) (unpublished).
LOOKING AHEAD
One of the most significant emploment and labor law cases in years will
be decided in 2016 by the U.S. Supreme
Court in Friedrichs v. California Teachers
Association, No. 14-915. The High Court
will decide this term whether public sector employees in California, teachers in
in this case, may be required to pay labor
union fees under state “agency” shop laws
requiring particular employees all to be
n Workplace safety; failure to abate. A members of collective bargaining units.
warehouse shipping facility was properly
Many court watchers predict that
found to have violated Occupational
the employees will prevail based upon
High Court rulings in the past few years,
Safety and Health (OSHA)
requirements of the state Department
highlighted by Harms v . Quinn, 134
S.Ct. 2618 (2014), in which the Court
of Labor and Industry. The court of
appeals upheld an administrative board’s invalidated an Illinois requirement that
determination that the company failed
quasi-public employees who provide
health care services must pay union dues.
to maintain a minimum 60° indoor
temperature, as required by an OSHA
The decision is likely to have broad ranging impact throughout the public sector,
directive. Peterson v. UPS, Inc., 2015
where unions have increased their memMinn. App. LEXIS 1161 (Minn. App.
2015) (unpublished).
bership and strength in recent years as
private sector unionization has declined.
n Unemployment compensation; two
A Minnesota case, Greene v. Dayrare reversals of ineligiblity. The
ton, raises similar issues under the state
court of appeals ended 2015 with
law allowing unionization of Personal
a pair of rarities: reversal of rulings
Care Attendants (PCAs), Minn. Stat.
by unemployment law judges (ULJ)
179A.06a, 54, which was upheld by U.S.
deeming employees ineligible for
District Judge Michael Davis, 81 F.Supp.
3d 747 (D. Minn. 2015), affirmed by the
unemployment compensation benefits.
Eighth Circuit in Greene v. Dayton, 806
An employee who was fired for
F.3d 1146 (8th Cir. 2015), and is now
providing false information that she
pending a petition for certiorari in the
had a GED degree did not commit
Supreme Court.
disqualifying “misconduct.” Because
– Marshall H. Tanick
the job description did not mention
Hellmuth & Johnson, PLLC
a high school degree or equivalency
requirement, the misinformation was
not intentional. Wilson v. Mortgage
FAMILY LAW
Res. Center, 2015 Minn. App. LEXIS
1179 (Minn. App. 2015) (unpublished).
JUDICIAL LAW
An employee who quit after her job
n Modification of parenting time under
was switched to 55 miles from her home amended statute. A recent unpublished
was entitled to benefits. Because she had decision provides a good illustration of
vertigo while driving long distances and the impact of the amendments made in
was intimidated by hearing traffic, she
the last legislative session to the statute
had “good cause” to quit caused by her
governing modification of parenting time.
employment. Carlen v. Young America,
The parties’ 2012 stipulated judgment
LLC, 2015 Minn. App. LEXIS 1183
and decree granted them joint legal and
(Minn. App. 2015) (unpublished).
physical custody of their child. Under
the decree, father had two overnights
n Unemployment compensation;
every two weeks and additional time on
failure to participate in investigation.
the weekends. After entry of the decree,
An employee who failed to participate
the child began spending considerably
in a workplace investigation of her
more time with father. In 2014, father
discrimination and harassment
brought a motion seeking equal parentallegations was disqualified from
ing time. A hearing was held and the
benefits. The court of appeals held that
district court appointed a guardian ad
the employee’s resignation without
litem, who issued a report recommendcooperation in the inquiry did not
ing equal parenting time. Father moved
constitute “good reason” to quit caused
to adopt the guardian ad litem’s recomby the employer. Cordes v. Heartland
mendations and at the hearing on that
Midwest, LLC, 2015 Minn. App. LEXIS motion, mother asked for an evidentiary
1151 (Minn. App. 2015) (unpublished). hearing to address whether the child was
36 Bench&Bar of Minnesota s February 2016
endangered. The court denied mother’s
request and issued an order granting
father’s motion for equal parenting time.
Mother appealed, arguing that the
district court erred by adjudicating
father’s motion under the best interest
standard of Minn. Stat. §518.175, subd.
5 instead of the endangerment standard.
The court of appeals affirmed application
of the best interest standard based on
the following language, which was added
to Minn. Stat. §518.175, subd. 5 in the
last legislative session: “A modification
of parenting time which increases a parent’s percentage of parenting time to an
amount that is between 45.1 to 54.9 percent parenting time is not a restriction of
the other parent’s parenting time.”
Under prior law, adding five additional overnights to father’s existing two
overnights in order to get to an equal
parenting time schedule would have
required father to prove endangerment
because the increase in time would
be substantial enough to constitute a
restriction on mother’s parenting time.
See, e.g., Pollard v. Pollard, A11-1886
(Minn. Ct. App. 11/26/2012) (holding
that parent’s request to expand schedule
from 4 out of 14 overnights to 7 out of
14 overnights was substantial enough to
constitute restriction on other parent’s
time, which required showing endangerment). Ramsammy v. Ramsammy, A150503, (Minn. Ct. App. 12/28/2015).
n Calculation of income for registered
nurse. Father was ordered to pay child
support to mother and brought a motion
to modify support. Mother was employed
part-time as a registered nurse. She
testified that she worked 24 hours per
week and was a “.6” employee. She also
testified that she voluntarily requested
a reduction to a “.5” schedule in order
to have more time to take care of the
children. The CSM calculated mother’s
gross monthly income by multiplying her
base pay rate by 24 hours worked each
week and by 4.33 weeks per month.
Father requested district court review
because mother’s paystubs showed that
in addition to her base pay, she also
received pay for overtime, shift differentials, and special pay items which were
compensated at a higher rate of pay than
her base pay. Also, mother’s paystubs
showed that she was working more
than 24 hours per week. Father further
argued that mother could work more
hours than she was working. The district
court denied father’s challenges because
it was “impossible” for the CSM to
determine whether these additional pay
items were regularly earned by mother.
The district court concluded that it
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Notes&Trends
was appropriate not to impute income
to mother because registered nurses
“customarily work less than 40 hours per
week as full time employees.”
Father appealed and the court of appeals reversed and remanded for further
proceedings. Even though the various
categories of mother’s specialty pay
varied between pay periods, she regularly
received this additional pay, so it was error to exclude it. Also, mother’s paystubs
reflected that she was working more than
24 hours per week. The CSM’s methodology amounted to gross income for
mother of $3,264 per month but mother’s
actual total gross pay using the first six
months of 2014 was $5,105 per month.
As to the CSM’s decision not to
impute income to mother, nothing in
the record supported the conclusion
that registered nurses customarily work
less than 40 hours per week as full-time
employees and no findings were made
to justify less than full-time employment
for mother under the “caretaker” factors of Minn. Stat. §518A.32, subd. 5.
Carreon v. Sorensen, A15-0528, (Minn.
Ct. App. 12/7/2015).
n Consideration of new spouse’s
income in post-decree spousal maintenance dispute. The parties’ 2010
stipulated judgment and decree required
husband to pay permanent spousal maintenance to wife. After an unsuccessful
motion to modify in 2012, husband again
brought a motion to reduce his spousal
maintenance on the grounds that his
income had decreased and that wife’s expenses had decreased. The district court
reduced husband’s obligation but not to
the extent husband had requested. One
of the issues husband raised on appeal
was the district court’s consideration of
his current wife’s income.
Husband presented a household
budget for himself and his current wife
showing that he paid approximately 75%
and his wife paid approximately 25% of
their household expenses. This allocation was in proportion to their respective incomes. The district court noted
that some of husband’s documentation
for the expenses was lacking and that
certain expenses were shared on a 1/32/3 basis while others were shared on a
1/4-3/4 basis. In light of this, the district
court found it reasonable to evaluate
husband’s ability to pay maintenance by
measuring the total household expenses
and the combined income of husband
and his current wife. The court of appeals affirmed this
methodology, noting that the district
court was not required to accept husband’s apportionment of the expenses.
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SOCIAL SECURITY DISABILITY
InITIAL AppLICATIOn ThROUgh hEARIng
paul
Livgard
612-825-7777
www.livgard.com
Successfully pursuing benefits since 1993
Rachael
Abrahamson
February 2016 s Bench&Bar of Minnesota 37
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The district court’s award of maintenance
reflected an expectation that husband’s
current wife would pay 43% of the household expenses, which the court of appeals
deemed reasonable. Also, after payment
of spousal maintenance as ordered by the
district court, husband still had sufficient
income to continue paying 75% of the
household expenses as he claimed he was
doing. Engelhart v. Engelhart, A15-0603,
(Minn. Ct. App. 12/28/2015).
LOOKING AHEAD
n Medical support-only modification.
As of 1/1/2016, a new species of child
support modification has become effective whereby parties may seek a modification of the medical support portion
of an order and the child dependency
tax credit without modifying the other
support provisions in the order. The procedure and grounds for doing so are set
forth at Minn. Stat. §518A.39, subd. 8.
– Jaime Driggs
Henson & Efron PA
FEDERAL PRACTICE
JUDICIAL LAW
n Arbitration; class action waiver; “law
of your state.” Resolving a split between
the 9th Circuit and the California Court
of Appeal, the United States Supreme
Court held that an arbitration provision
that encompassed the “law of your state”
incorporated only “valid” California
state law, and not the law of California
as it existed at the time the contract was
entered into, where then-existing California law subsequently was invalidated
by the Supreme Court. DIRECTV, Inc.
v. Imburgia, 136 S. Ct. 463 (2015).
n Voting rights; three-judge panels;
power of single judge. A unanimous
United States Supreme Court held that
once the three-judge panel requirement
of 28 U.S.C. §2284 is invoked, a single
district judge lacks the authority to
dismiss the action under Fed. R. Civ. P.
12(b)(6). Shapiro v. McManus, 136 S.
Ct. 450 (2015).
n Sanctions; default judgment; no error
in refusing to adjourn hearing. Where
a default judgment was entered against
the defendants as a sanction for their
spoliation of evidence and “pattern of
dishonesty under oath,” a hearing on
damages was scheduled by the district
court, one defendant made multiple
requests to adjourn that hearing which
were denied, the hearing went forward
without the defendant in attendance,
and the defendant appealed the denial
38 Bench&Bar of Minnesota s February 2016
of his adjournment requests, the 8th
Circuit found that the district court was
entitled to rely on its experience with
this defendant in evaluating his motives for requesting the adjournment,
and found no abuse of discretion in the
denial of those requests. Peter Kiewit
Sons’, Inc. v. Wall Street Equity Group,
Inc., ___ F.3d ___ (8th Cir. 2016).
n 28 U.S.C. §1292(b) and Fed. R. Civ. P.
54(b); requests for interlocutory appeals
granted and denied. The 8th Circuit
found that the potential for delay in the
res judicata effect of a judgment was a
valid “miscellaneous” factor the district
court could consider when deciding
whether to certify final judgment under
Fed. R. Civ. P. 54(b), and that the
district court had not abused its discretion in relying on that factor in entering
judgment on a counterclaim. Downing
v. Riceland Foods, Inc., ___ F.3d ___
(8th Cir. 2016).
The 8th Circuit rejected a Fed. R.
Civ. P. 54(b) certification, finding an
abuse of discretion where the district
court did not “properly weigh” the relevant factors before entering its partial
judgment. Jones v. West Plains Bank &
Trust Co., ___ F.3d ___ (8th Cir. 2015).
Judge Nelson denied defendants’
request for 28 U.S.C. § 1292(b) certification in a tort action, finding that the
absence of state case law on these issues
weighed against certification, because
the Eighth Circuit “would be in no
better position” than she would be to
determine the state law issue. Frazier v.
Bickford, 2015 WL 8779872 (D. Minn.
12/15/2015).
Judge Magnuson certified an issue for
appeal pursuant to Fed. R. Civ. P. 54(b),
finding that the “equities” weighed in favor of permitting the plaintiff to pursue a
third attempt at an appeal. Alpine Glass,
Inc. v. Country Mut. Ins. Co., 2015 WL
9048306 (D. Minn. 12/16/2015).
n Personal jurisdiction; effects test.
Judge Frank granted the defendants’
motion to dismiss for lack of personal
jurisdiction, finding that the defendants’
Minnesota contacts were “random” and
“fortuitous,” and also rejected plaintiffs’
attempt to rely on the so-called “effects”
test, because the plaintiffs could not establish that the defendants directed their
acts at Minnesota or that the defendants
knew that the harm was likely to be felt
in Minnesota. Judge Frank also denied
the plaintiffs’ request for jurisdictional
discovery, because the plaintiffs were unable to identify unknown or disputed facts
relevant to the personal jurisdiction issue.
BNCCORP, Inc. v. BNC Bancorp, 2015
WL 9294326 (D. Minn. 12/21/2015).
– Josh Jacobson
Law Office of Josh Jacobson
INDIAN LAW
LOOKING AHEAD
n Red Lake Band settles pipeline-trespass dispute. Energy company Enbridge
Inc. has agreed to pay the Red Lake
Band of Chippewa Indians $18.5 million
to settle a trespass dispute concerning a
pipeline. The pipeline was built in 1950
across tribal land without the band’s permission under the mistaken belief that
the parcel was owned by an adjacent
landowner. In 2007, the U.S. Bureau of
Indian Affairs discovered that the band
owned the parcel, giving rise to a dispute
regarding Enbridge’s trespass. In exchange for the payment and purchase of
a substitute parcel, the band will convey
the pipeline parcel to Enbridge and the
Lakehead Pipeline will remain in place.
n Fond du Lac Band begins land buyback. U.S. policy during the late 1800s
allotted parcels to tribal members but
disallowed typical estate planning, instead
requiring the landowners to pass the land
to all their descendants in equal part
ad infinitum. More than 100 years later,
n Theft of credit card-related inforscores of native-descendant landowners
mation; standing. Judge Montgomery
hold uselessly small tracts of land, and a
joined the majority of courts to adsingle 160-acre parcel may have hundreds
dress the issue and held that plaintiffs’
of owners. The Fond du Lac Band of Lake
allegations of future harm, mitigation
Superior Chippewa is now commencing
costs, alleged diminished value of their
a buyback program in order to reconpersonal information, delayed or inadsolidate the land. In March, it will send
equate notification arising from the theft purchase offers to those descendant landof their credit card information, invasion owners it can locate. The land-buyback
of privacy and breach of confidentiality, program is part of a several-year-long
and lost benefit of the bargain were all
implementation of the $3.4 billion settleinsufficient to establish standing under
ment of a class-action suit concerning the
Article III. Accordingly, the action was
United States Department of Interior’s
dismissed without prejudice pursuant to mismanagement of Indian trust assets.
Fed. R. Civ. P. 12(b)(1). In Re Super– Jessica Intermill
Valu, Inc. Customer Data Breach Lit.,
– Peter J. Rademacher
2016 WL 81792 (D. Minn. 1/7/2016).
Hogen Adams PLL
www.mnbar.org
Notes&Trends
REAL PROPERTY
JUDICIAL LAW
n Contracts; trespass; nuisance.
Property owner prevailed on claims of
common law trespass, nuisance, unjust
enrichment, conversion, and civil theft
in a water dispute. DeLanghe had agreed
to allow a local ethanol plant to drill two
wells on his land and pump water for use
in their production facility in exchange
for one-time payment. The wells deteriorated and the ethanol plant sought to
drill extra wells on the well site. DeLanghe insisted that the original contract had
terminated and objected to the ethanol
plant’s plan. The plant, over these
objections, drilled additional wells. The
United States District Court determined
that the parties’ written contract permitted the ethanol plant to operate only
the initial two wells themselves because
the contract referred to the operation of
“wells” rather than the “well site.” The
court held that the ethanol plant was
not permitted to drill additional wells on
the site, and the property immediately
reverted back to DeLanghe once the
original two wells were non-operational.
The court awarded DeLanghe summary judgment on all claims except for
statutory trespass. The statutory trespass
claim failed because the court interpreted the definition of “personal property”
under Minn. Stat. §548.05 to include
only property that is a product arising
out of soil, and to exclude property that
is not, like water. DeLanghe v. Archer
Daniels Midland Company, No. 13-4329
(D. Minn. 1/12/2016).
n Mortgage foreclosure; deficiency
judgment. Debtor-mortgagor defaulted upon a mortgage loan and lost
her residence to judicial foreclosure.
Creditor-mortgagee obtained a deficiency judgment greater than $400,000.
Debtor and creditor negotiated a standstill agreement to settle the deficiency
agreement. Debtor provided financial
statements showing limited assets and
significant debt. The parties agreed to
settle the matter for $36,453. Creditor
later learned that debtor owned farmland valued at $359,000. The creditor
sued the debtor and obtained summary
judgment on claims of negligent misrepresentation and fraudulent inducement. The Minnesota Court of Appeals
determined that the creditor could not
obtain summary judgment on the negligent misrepresentation claim because
the debtor and creditor were adversarial parties negotiating at arms-length.
However, the court of appeals held that
the creditor’s summary judgment was
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February 2016 s Bench&Bar of Minnesota 39
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supported by a theory of fraudulent inducement because the court found that
the debtor submitted documents that
purported to list all her assets. The court
concluded that the misrepresentation
by omission was sufficient to vacate the
settlement agreement. Highland Bank v.
Wyatt, No. A15-0275 (Minn. Ct. App.
12/14/2015) (unpublished).
n Property demolition. Property was
placed in a vacant housing program in
August 2012. The city performed an inspection, generating a report of all repairs
required before the home could be occupied again. The city later deemed the
home a nuisance. The city provided notice to the property owner at the time of
the report and the time of the nuisance
determination. The court of appeals held
that the repeated notices and warnings
to the owner that the home would be
demolished without his full compliance
with the report constituted sufficient
due process. Adams v. Saint Paul City
Council, Nos. A14-2164 (Minn. Ct. App.
12/14/2015) (unpublished).
made “in connection with a residential
loan transaction.” The court of appeals
held that the phrase “residential loan
transaction” includes communications
and agreements related to loan default,
reinstatement, and modification, but
affirmed summary judgment in favor
of the mortgage servicer. The court of
appeals also held that the mortgage
servicer’s duties under section 582.043
were met because the borrower did not
affirmatively provide documentation
and information to the servicer so that
the servicer could review and evaluate
a modification. LeMaster v. Green Tree
Servicing, LLC, No. A15-0552 (Minn.
Ct. App. 12/28/2015) (unpublished).
n Landlord-tenant. The Minnesota
Court of Appeals held that a breach of
the statutory covenant of habitability
is contractual in nature because it is
incorporated into all lease contracts, and
therefore only damages sounding in contract may be awarded. The court held
that full rent abatement is generally not
allowed unless the tenant shows that it
received absolutely no use or enjoyment
n Inverse condemnation. MNDOT cre- from the premises. Tenants must demated a right-turn lane onto a highway on onstrate and provide specific evidence of
a portion of property owned by appelinhabitability and how the conditions relant. Appellant’s unimproved property
duced their use and enjoyment. Ghebredid not previously have a driveway from hiwet v. Ghneim, No. A15-0397 (Minn.
either the county road or highway. The
Ct. App. 1/11/2016) (unpublished).
addition of the right-turn lane prevented
– Joseph P. Bottrell
any driveway from being added later to
Meagher & Geer, PLLP
the county road. The court of appeals
affirmed the district court’s grant of
summary judgment and held that the
TAX
property owner did not have access
rights that were taken or compensable.
JUDICIAL LAW
The property owner did not provide evi- n The rules are the rules are the rules.
dence that it would have been allowed,
Two Minnesota taxpayers saw their
before the highway project, to add an
causes of action dismissed for failure to
access point to the county road. Fisher
follow procedural requirements. Minv. State of Minnesota, Department of
nesota taxpayers have 60 days (or 63
Transportation, No. A15-0959 (Minn.
if the commissioner mails her order to
Ct. App. 12/21/2015) (unpublished).
the taxpayer) to appeal an order of the
commissioner. Minn. Stat. §271.06, subd.
n Mortgages. Mortgage servicer
2 (2014). Untimely appeals, such as the
foreclosed upon a home after numerone filed by the taxpayer in this dispute
ous notices and offers to negotiate a
involving unpaid withholding tax in
modification. An initial letter to the
relation to the affairs of a corporation
borrower incorrectly stated that the
related to the taxpayer, are dismissed
foreclosure sale had been postponed to
for lack of subject matter jurisdiction.
3/7/2014. Multiple later letters and noValder v. Comm’r, No. 8846-R, 2015 WL
tices stated the correct date of 1/7/2014. 9461393, at *1 (Minn. Tax 12/22/2015).
After foreclosure, the borrower sued for In another dispute, the taxpayer did not
claims of false, deceptive, or misleading
miss a filing deadline, but his petition was
communications in connection with a
dismissed because he failed to serve the
residential loan transaction in violation commissioner, a requirement imposed
of Minn. Stat. §58.13 and for failure to
by Minn. Stat. §271.06, subd. 2 (2014).
halt a foreclosure sale under Minn. Stat. Timely service, as described by the court,
§582.043. The district court concluded
“is a prerequisite to jurisdiction.” Zygadlo
that section 58.13 was inapplicable
v. Comm’r, No. 8848-R, 2015 WL
9486066, at *1 (Minn. Tax 12/22/2015).
because the servicer’s notices were not
40 Bench&Bar of Minnesota s February 2016
n Summary judgment denied in sales
tax dispute. The tax court denied a taxpayer’s motion for summary judgment
and indicated a trial date will be set in a
dispute involving the assessment of sales
and use tax on tangible property sold by
the taxpayer, Haldeman Homme, Inc.,
to construction company Kraus–Anderson. The taxpayer argued that sales
tax should not have been due because
the items sold were not “real property”
within the meaning of Minnesota Statute Section 297A.61. Because the court
was unable to determine, on the record
before it, that the items fell within the
exemption (the taxpayer could not
“demonstrate there is no genuine issue
of material fact that the items sold to
Kraus–Anderson were not ‘building materials, supplies, and equipment’”), summary judgment was improper. Haldeman
Homme, Inc. v. Comm’r, No. 8711-R,
2015 WL 9461353, at *1 (Minn. Tax
12/18/2015).
n Good tax policy trumped by “plain
language;” tax loss permitted. A
married taxpaying couple assigned
their euro put option to a charity and
as part of that assignment, the couple
simultaneously marked to market the
value of the put option. As the court
explained, the couple’s assignment
of this option was part of a series of
transfers of mutually offsetting foreign
currency options that the couple
executed over a period of three days.
These transactions appear to have
allowed the couple to generate a large
tax loss at minimal economic risk or
out-of-pocket expense. The tax court
disallowed the claimed loss. The 6th
Circuit, however, reversed. The court
noted that “[w]hile the Tax Court’s
disallowance of the [couple’s] claimed
tax loss makes sense as a matter of tax
policy, the plain language of the statute
clearly provides that a foreign currency
option can be a ‘foreign currency
contract.’” The mark to market was
therefore appropriate, and the court
reversed and remanded. Wright v.
Comm’r, No. 15-1071, 2016 WL 76886,
at *1 (6th Cir. 1/7/2016).
n More than taxpayer’s word needed
to establish worthlessness for bad debt
deduction. Taxpayers are permitted a
deduction for worthless debt, but to
be eligible for a deduction, the debt
must actually be a debt: In the words
of the Code, the debt must be “bona
fide” and it must actually be worthless.
IRC 166(a). A taxpayer advanced just
over $800,00 to her family’s company.
The corporation began facing financial
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Notes&Trends
difficulties and the president of the
company—who was also taxpayer’s
brother—informed taxpayer that she
would not be repaid. Taxpayer listed the
debt as bad debt on her tax return and
this bad debt generated a deduction.
The IRS denied her loss deduction and
issued a deficiency notice. The tax court
and ultimately the 9th Circuit upheld
the determination of deficiency because
the taxpayer did not meet her burden
of proving that the amount qualified
as bad debt under I.R.C. §166. In
particular, the taxpayer’s behavior was
not consistent with that of a traditional
lender. For example, she continued
to advance money to the company
despite its unstable finances and the
company’s failure to repay any interest
or principal. The taxpayer’s testimony,
even coupled with the testimony of her
brother that the company was insolvent,
was insufficient to prove worthlessness.
Shaw v. Comm’r, 623 F. App’x 467, 468
(9th Cir. 2015).
n Taxation of medical residents: variations on a theme. A medical resident
and citizen of Pakistan appealed a notice
of deficiency of $4,415 in petitioner’s
federal income tax. Petitioner argued
that under article XII and article XIII(3)
of the Convention for the Avoidance
of Double Taxation and the Prevention of Fiscal Evasion With Respect
to Taxes and Income, U.S.-Pakistan,
he was exempt from paying taxes as a
medical resident at Oklahoma University. Article XII states that “a professor
or teacher… who temporarily visits…
for the purpose of teaching for a period
not exceeding two years… shall by
exempted from tax.” The court discussed petitioner’s purpose for entrance
into the US, specifically his “objective,
goal, or end.” The court concluded that
although part of petitioner’s duties was
to teach medical students, petitioner
came to the US for his own educational
purposes in becoming a doctor. Further,
petitioner argued without providing any
authority that under article XIII(3), he
was exempt from paying taxes. Yet, the
Department of Treasury explains this exemption applies to “‘Pakistan personnel
invited to the United States for training
or study by our Government,’” of which
petitioner does not qualify as a medical
resident seeking further education who
happens to reside in Pakistan. Thus, incidental teaching as a part of a medical
resident’s responsibilities does not free
the petitioner from paying income taxes
under the U.S.-Pakistan treaty. Bhutta
v. Comm’r, 145 T.C. No. 14, 2015 WL
9426274 (12/22/2015).
www.mnbar.org
n Valuation adjustments for fine art.
Deceased Bernice Newberger had three
valuable pieces of art: the pieces in the
estate included Tête de Femme (Jacqueline) by Pablo Picasso (the Picasso),
Untitled by Robert Motherwell (the
Motherwell), and Elément Bleu XV
by Jean Dubuffet (the Dubuffet). Due
to a precipitous decline in the fine art
market in the autumn of 2008, the fair
market value of the pieces at the time of
Newberger’s death in July 2009 was challenged. The court determined that the
value claimed by the estate of two of the
pieces (the Motherwell and the Dubuffet) was accurate. The value of the Picasso, however, was not. The estate claimed
a value of $5 million. The court adjusted
that value to $10 million, and in fact
the piece was later sold at auction for
$12,927,874. The Motherwell, compared
to In Black and White No. 5 which sold
for $1,426,500 in November 2010, was
valued at $800,000. The Dubuffet, compared to Element Bleu XIII’s sale in 2007
for $825,000, was valued at $500,000. Estate of Newberger v. Comm’r, Tax Ct.
M. (RIA) 2015-246 (T.C. 2015).
n Hollywood production manager
prevails in establishing he is an independent contractor, not an employee.
In an entertaining opinion that provides
an accessible primer on the distinction
(for tax purposes) between independent
contractors and employees, the tax court
held that a production worker working on commercial shoots in Southern
California was not an employee, but an
independent contractor. Since independent contractors are permitted to deduct
business expenses on Schedule C and
are not subject to many limitations on
deducting business expenses (limitations
that apply to employees), the taxpayer
was found to have properly deducted his
business expenses, and was not liable for
any penalties. Quintanilla v. Comm’r,
T.C.M. (RIA) 2016-005 (T.C. 2016).
LOOKING AHEAD
n Have you filed? The Minnesota
Department of Revenue reminded
Minnesotans that Minnesota taxpayers could begin filing their state income
tax returns on Tuesday, January 19,
2016—the same date that the Internal
Revenue Service will begin accepting
federal income tax returns. Readers
might want to plan ahead should they
anticipate telephonic assistance from the
IRS with any filing questions this season;
according to the General Accounting
Office, the Internal Revenue Service
provided its lowest level of telephone
service during fiscal year 2015 compared
to prior years, with only 38 percent of
callers who wanted to speak with an IRS
assistant managing to reach one.
– Morgan Holcomb
– Kate Rawls
Mitchell Hamline School of Law
TORTS & INSURANCE
JUDICIAL LAW
n Evidence: admissibility of Alford plea
in subsequent civil trial. Defendant was
charged with criminal sexual conduct.
Defendant pled guilty pursuant to an
Alford plea, meaning his plea did not
include an admission of guilt—only an
admission that, “if the jury were to believe the witnesses in this case… there’s
a reasonable probability that [he] might
be found guilty.” Following the conviction, the victim filed suit seeking damages for sexual battery and sexual abuse.
In response to pretrial motions, the
district court held that the plea was not
collateral estoppel on the issue of abuse
and further held that it was inadmissible
under Minn. R. Evid. 403. Following a
jury verdict in favor of defendant, the
Minnesota Court of Appeals affirmed
the evidentiary ruling.
The Minnesota Supreme Court affirmed. The Court began by discussing
the nature of Alford pleas, conceding
that they generally carry “the same
penalties and collateral consequences as
a conventional guilty plea,” and noting
that guilty pleas in criminal matters
are generally admissible in subsequent
civil cases regarding the same course of
conduct. Nevertheless, the Court, on
an issue of first impression, held that the
trial court did not abuse its discretion in
excluding the plea under Rule 403. The
Court repeatedly emphasized the broad
discretion of the trial court on Rule 403
issues, and further acknowledged the
potential risk of unfair prejudice—in
particular, unfair prejudice from jury
confusion—that could result from
admission of an Alford plea. The Court
refused to address the collateral estoppel
issue because the plaintiff did not appeal
that decision.
Justice Lillehaug filed a dissenting
opinion, arguing that the district court
abused its discretion by mischaracterizing the legal effect and probative value
of the Alford plea, and by exaggerating the purported danger of prejudice,
confusion, or misleading effect. Jane
Doe 136 v. Liebsch, No. A14-0275
(Minn. 12/30/2015). http://mn.gov/lawlib/
OPA140275-123015.pdf
– Jeff Mulder
Bassford Remle, A Professional Association
February 2016 s Bench&Bar of Minnesota 41
People Practice
People&Practice
n Bradley R. Armstrong and Michael
A. Bondi have joined Moss & Barnett,
A Professional Association. Armstrong
is a member of firm’s creditors’ remedies
and bankruptcy practice group. He
counsels creditors, debt buyers, attorneys, and businesses on compliance with
state and federal credit and collection
laws. Bondi joined the firm’s intellectual
property team. He focuses his practice
on the preparation and prosecution of
U.S. and foreign patent and trademark
applications.
n Gregory J.
Stenmoe is the
new president and
managing partner
of Briggs and
Morgan PA. He
succeeds attorney
Sam Hanson,
who has held the
Gregory J. Stenmoe
post since 2013.
Stenmoe will continue to practice in
the areas of employment law counseling
and litigation in addition to his new
role as president and managing partner.
Similarly, Hanson also will continue
to practice law at the firm in the areas
of arbitration and mediation, complex
civil litigation, appellate law and public
utility regulation.
n Lynn S. Linné and Katherine J.
Rahlin joined Fredrikson & Byron as
associates. Linné joined the property tax
appeals and condemnation & eminent
domain groups, and Rahlin joined
the intellectual property, intellectual
property litigation and patents groups.
n Kelly Patrick
Falsani has been
made a shareholder
of Fitch, Johnson,
Larson & Held, PA. Falsani is licensed
in Minnesota and
Wisconsin and
focuses his practice
on workers’ compensation defense.
n Anne M. Correia and Nathan R.
Snyder joined Trepanier MacGillis Battina PA. Both attorneys are 2015 graduates of William Mitchell College of Law.
Correia will practice primarily in the
areas of employment law, business and
corporate law, and commercial litigation.
Snyder will practice primarily in the areas of business transactions, commercial
litigation, and employment law.
Leah Fleck
Brad Pederson
Charles Frohman
Anna Petosky
n Maslon LLP announced that Leah
Fleck, Charles Frohman, Brad Pederson, and Anna Petosky were elected to
the law firm’s partnership. The election
acknowledges their tremendous skill,
professionalism, and commitment to
client service. Fleck and Pederson are
members of the firm’s business and securities group; Frohman and Petosky are
members of the litigation group.
n Zelle Hofmann Voelbel & Mason
announced the change of the firm name
to Zelle LLP. The name change reflects
the widespread and shorthand use of the
firm’s shorter name throughout the legal
field and by clients.
Kelly Patrick Falsani
n Caitlin E. Abram joined Faegre
Baker Daniels as a partner in the wealth
management group, practicing from
the firm’s Minneapolis office. Abram
will represent clients in complex trust
and estate transactional and litigation
matters.
42 Bench&Bar of Minnesota s February 2016
n Vince Courtney joined Collins,
Buckley, Sauntry & Haugh PLLP.
Courtney has practiced for more than
30 years in the areas of estate planning,
guardianships, elder law, and small
business. n Robins Kaplan LLP announced that
Jonathan Mutch, Denise Rahne, Jenny
Robbins, and Sam Walling have been
named partners. The firm’s executive
board also elected Katherine Barrett
Wiik, Melissa D’Alelio, Matthew
Frerichs, William Reiss, and Patrick
Stoneking as principals.
n Winthrop & Weinstine, PA
announced the promotion to
shareholder of two lawyers: Noreen
Sedgeman Johnson and Doug
Wolgamot. In addition, Jeffrey
Drennan and Kevin McLain have
been promoted to managing associates.
Sedgeman Johnson practices in the
corporate group, Wolgamot practices in
the tax, trusts & estates practice group,
Drennan and McLain practice in the
real estate group.
n Marty
Rosenbaum was
appointed to
serve as cochair of Maslon
LLP’s business &
securities practice
group. Rosenbaum
has more than 30
years of experience
Marty Rosenbaum
advising public and
privately held companies on securities
and corporate matters. His practice is
concentrated in securities and corporate
finance, including public offerings,
private placements, venture capital
financings, and mergers and acquisitions
involving public and private companies.
n MSBA assembly selected Christopher
Grgurich and Robin Wolpert as
n Joseph M. Goldberg, assistant
nominees to the Lawyers Professional
vice president and assistant general
Responsibility Board. If appointed by
counsel of Sentry Insurance, has
the Minnesota Supreme Court, their
been designated by ARIAS•U.S. as a
three-year terms will begin February 1,
Certified Reinsurance Arbitrator. The
2016. Grgurich is a partner at Lindquist
Association Internationale de Droit des
in the securities litigation practice.
Assurances (AIDA) is an international
Wolpert is the MSBA president-elect,
organization of attorneys, professors,
and most recently served as an assistant
regulators, and others who are interested county attorney with the Washington
in international or comparative aspects
County Attorney’s Office.
of insurance law and regulation.
www.mnbar.org
People&Practice
n Liz Powell and Mark Azman were
named partners at O’Meara Leer
Wagner & Kohl. Powell represents
clients in Minnesota in workers’
compensation litigation, Azman in
the areas of construction, education,
insurance coverage and contract
negotiations.
n Gov. Mark
Dayton appointed
Richelle M.
Wahi as District
Court Judge in
Minnesota’s First
Judicial District.
Wahi will be
replacing the Hon.
Mary J. Theisen,
Richelle M. Wahi
who retired earlier
this year. Wahi will be chambered at
Hastings in Dakota County. Wahi is a
partner at Lindquist & Vennum LLP,
where she handles cases primarily in
family law and general litigation.
In Memoriam
Samuel Wertheimer of Oakdale
passed away on December 24, 2015
at the age of 79. Wertheimer loved
fishing, hunting and watching the
Vikings. He spent 43 years as an
attorney.
Ann K. Newhall passed away in
November 2015. She was an attorney
for 23 years at Moss & Barnett, made
partner in 1980 and served as president her final year, becoming one of
the first female large-firm leaders in
the Midwest. In 1999, Ann joined
Rural Cellular Corporation. Since
2003 she has served as a director for
Alliant Energy Corp. of Wisconsin.
Hon. David R. Leslie, 91, of Golden
Valley MN died peacefully January
12, 2016. He served on the bench a
total of 39 years, finally retiring at age
78. After retiring from the appellate
court in 1987, Leslie continued
working part-time in the Court of
Appeals, Tax Court and Trial Court
in the 7th and 10th districts, as well
as serving on a Special Appeals Court
panel until 2002.
www.mnbar.org
n Arthur,
Chapman,
Kettering, Smetak
& Pikala, PA
announced
the election
of Stephen M.
Warner, Sarah
E. Bushnell, and
Stephen M. Warner
Michael S. Ryan
as shareholders.
Warner’s
practice focuses
on commercial
transportation,
insurance
coverage, and
appellate matters.
Bushnell focuses
Sarah E. Bushnell
her practice
in the areas of
employment law,
business litigation,
insurance
coverage, and
professional
liability. Ryan
concentrates
his practice in
Michael S. Ryan
civil litigation,
including general liability, product
liability, commercial, business,
employment, and environmental law.
As well, attorneys Paul S. Almen
and Christopher C. Alexander have
joined the firm. Almen focuses his
practice in the area of construction law,
construction defect law, and real estate
litigation. Alexander’s practice involves
assisting commercial transportation
clients, railroads, and trucking
companies with a variety of matters.
n Brittney M. Miller joined Moss &
Barnett, A Professional Association
as a member of the firm’s family law
department. Miller received her JD
from the University of Minnesota Law
School.
n Patrick Burns was appointed acting
director of the Office of Lawyers
Professional Responsibility and the
Client Security board, effective
January 1, 2016 and ending upon the
appointment of a new director.
n Blair Harrington joined Madigan,
Dahl & Harlan as an associate attorney.
Blair graduated from the University of
Minnesota Law School.
n Reynaldo
Aligada, Jr.,
Federal Public
Defenders Office,
and Richard
P. Ohlenberg,
Ohlenberg Law
Office, have
been named
Richard P. Ohlenberg
MSBA Board
Certified Criminal Law Specialists. The
certification program is administered by
the Minnesota State Bar Association
and approved by the State Board of
Legal Certification. Fewer than 3% of
all registered attorneys in Minnesota are
certified specialists in their field.
n Eric Oelrich was named a partner
of Rajkowski Hansmeier Ltd. Oelrich
has been with the firm since 2007 with
his practice emphasizing in general
litigation, workers compensation,
insurance defense, criminal law, personal
injury litigation and motor vehicle law.
n Dr. Scott Rothenberger and Jeffrey
Stone have joined the Minneapolis
office of Barnes & Thornburg LLP as
partners in the intellectual property
department.
n Dorsey & Whitney LLP Partners
Bridget Logstrom Koci and Skip
Durocher have been named co-officeheads of the firm’s Minneapolis office.
n Gov. Mark
Dayton appointed
the Honorable
Margaret H.
Chutich as
Associate Justice
of the Minnesota
Supreme Court
and the Honorable
Diane B. Bratvold
Margaret H. Chutich
as judge of the
Minnesota Court
of Appeals. Judge
Chutich will
replace Associate
Justice Wilhelmina
M. Wright, who
has been confirmed
as a U.S. District
Court Judge for
Diane B. Bratvold
the District of
Minnesota. Judge Bratvold will replace
Judge Chutich as at-large judge on the
Minnesota Court of Appeals.
February 2016 s Bench&Bar of Minnesota 43
Opportunity Market
Attorney Wanted
ASSOCIATE – Commercial Litigation.
Are you looking for a firm where you can
put down roots? We offer the opportunity to join a group of colleagues in a commercial law firm with a solid client base
and a truly collegial atmosphere. Maslon
is the rare firm where you can take on
challenging, sophisticated work while
developing both personally and professionally. We are currently looking for a
lateral associate with three to four years
of commercial litigation experience. Candidates must have strong relevant experience, superior academic performance,
be highly motivated and mature, and
have excellent communication. Maslon
is a law firm with depth of experience
and expertise in the many areas of commercial litigation and transactions. What
sets Maslon apart has much to do with
the quality of our relationships, with our
clients and with each other. We are large
enough to handle the most challenging
legal matters, allowing us to sustain a
diverse and sophisticated practice yet,
we are small enough to recognize and
respect the individuality of our clients,
lawyers and staff. At Maslon, we emphasize excellence in the practice of law,
while maintaining our cherished values
of informality, diversity and friendship.
Our recruitment objective is to hire wellrounded individuals who share these
values. We are committed to the training and professional development of our
new attorneys. If you are smart and creative, if you are hungry for hands-on experience, if you can work both independently and as a part of a team, and if you
strive to be the best, please send your
resume, transcript and cover letter to:
Astrid M. Eglitis, Director of Recruiting
& Professional Development at: astrid.
[email protected] Equal Opportunity
Employer. No agency resume submissions please.
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BOWNSON & Linnihan, PLLP, a dynamic, growing downtown Minneapolis firm
with a sophisticated litigation practice
seeks an Associate Attorney with one
to three years of litigation experience.
44 Bench&Bar of Minnesota s February
November2016
2014
Excellent legal research and writing skills
a must. Brownson & Linnihan offers a
competitive salary, and an excellent and
extensive benefits package, together
with the opportunity for challenging litigation work in a collegial atmosphere. Contact Kristi K. Brownson at: kbrownson@
brownsonlinnihan.com with resume and
writing sample(s).
sssss
COUSINEAU McGuire Chartered is an
insurance defense firm located in St.
Louis Park, MN. We are seeking an associate attorney for a position in our Workers’ Compensation group. Experience
preferred but not required. Cousineau
McGuire is an AV rated firm with 30 attorneys and has been providing legal services to clients in the Upper Midwest for
more than 65 years. Forward resume and
writing sample to Cousineau McGuire
Chartered, Attention: Personnel, 1550
Utica Avenue South, Suite 600, Minneapolis, MN 55416 or email to pstender@
cousineaulaw.com. Visit the firm’s website at: www.cousineaulaw.com.
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EMPLOYMENT Attorney. Gray Plant
Mooty’s labor, employment and higher
education practice areas are seeking a
lateral attorney for the Minneapolis office. Responsibilities will include providing legal support and advice to the firm’s
business clients on a variety of employment matters, as well as labor and higher
education matters. The ideal candidate
will have two to four years’ experience
in employment law and litigation including experience in research, brief writing,
preparation of pleadings, investigation
of employee complaints, preparation of
charge responses, and client advising.
Labor, higher education, and/or affirmative action experience would be ideal, but
is not essential. Candidates must have a
willingness to investigate reported incidents of workplace and student policy violations, including alleged sexual harassment and sexual misconduct on college
and university campuses. The successful
candidate will have strong academic credentials, exceptional analytical and writing abilities, excellent client service skills,
outstanding interpersonal and problem-
solving skills, and the ability to work in
a collaborative environment. Gray Plant
Mooty (GPM) is a full-service law firm
with offices in Minneapolis and St.
Cloud, MN, Fargo, ND, and Washington,
DC. GPM offers a collegial work environment as well as a competitive compensation and benefits package. GPM
was named a “Go-To Law Firm” for
Fortune 500 companies by Corporate
Counsel Magazine. For additional information about Gray Plant Mooty, please
visit www.gpmlaw.com. Interested
applicants should send their cover letter, resume, law school transcript, and
writing sample to: Angie Roell, Attorney
Recruiting & Development Coordinator, Gray Plant Mooty, 80 South Eighth
Street, 500 IDS Center, Minneapolis,
MN 55402, [email protected]
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FAMILY Law Attorney. The Brown Law
Offices, PA, a northwest Twin Cities law
firm, seeks an associate attorney with
three to five years of family law experience. Candidates should have meaningful courtroom and ADR experience,
and excellent writing and interpersonal
skills. Learn more about our firm at:
www.brownlawoffices.com.
Candidates should email their resume, cover
letter, references, law school transcript
and writing sample to: Cynthia Brown
at [email protected]
RATES:
MSBA members: $1.50 per word.
Nonmembers: $2.25 per word.
Charge for box number: $20.00.
Minimum charge of $30.00 for all ads.
DEADLINE:
Ad copy received with payment will be
posted online within one week and will
be published in the next available issue.
“Bench & Bar affirms the concept
of equal employ­ment opportu­nity.
Accordingly, we will not publish
advertisements that categorize
applicants on the basis of race, religion,
sex, age, or other illegal classification.”
Place an ad:
Ads should be submitted online at:
www.mnbenchbar.com. For more
information call: (612) 278-6311
www.mnbar.org
OpportunityMarket
FREDRIKSON & Byron, PA is seeking
an attorney with three to five years of
wide-ranging transactional real estate
experience to join our real estate department. We are looking for a highly
motivated individual with excellent
interpersonal, analytical, and writing
skills, along with strong academic and
professional credentials. Apply online
at: www.fredlaw.com/careers.
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MINNESOTA licensed attorney with
at least three years’ experience. Must
have experience working in Indian law
or working with tribal governments and
be familiar with the current matters
before MIGA, NIGA, NIGC and NCAI.
Working knowledge of the tribal court
system in Minnesota and must gain admission to practice law before the Community’s Tribal Court. Primary responsibility would be to work with the PIIC
Family Services Department and represent Family Services in child welfare,
child protection and other matters in
PIIC Tribal Court and other state courts
as needed. Excellent interpersonal and
organizational skills. Indian pref. applies
in accordance with Sec 7 (b) P.L 93-638.
Salary commensurate with experience.
Please send resume to: E. Bartell, HR,
Prairie Island Indian Community, 5636
Sturgeon Lake Road, Welch, MN 55089
or Fax: (651) 385-4180 or email: [email protected] For info call (651) 3854138 or (800) 554-5473, ext. 4138.
MULTI-STATE law firm located in the
Minneapolis seeking energetic attorneys
with minimum seven years’ experience in
foreclosure, bankruptcy, eviction, title or
real estate litigation. Must be licensed in
Minnesota additional licensure is a plus.
Please submit resume and salary requirements to: [email protected]
sssss
PUBLIC Interest Law Firm: Executive
Director. A public interest law firm being
developed to provide quality and affordable legal services to ordinary middle
class working families, seeks applications (with cover letter) from outstanding
executive director candidates and other
attorneys. Please send resume and cover letter explicitly indicating the position
for which you are applying; and advise
whether and, if so, the extent to which
you are willing and able to initially serve
in a volunteer capacity. Send applications
to: Public Interest Law Firm-Confidential,
P.O. Box 3780, Minneapolis, MN 55403.
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SMALL SOUTHWEST suburban firm
is seeking an estate planning/business/
real estate attorney, with some book of
business. A very collegial office, we believe someone with at least five years’
experience in complex estate planning/
business succession/probate litigation
will feel most comfortable in our office.
If you are community minded with a concern for people combined with energy
and a self-starter attitude, please contact
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us. Compensation is primarily based on
SR. COUNSEL, credit union needed. production and is negotiable. We believe
We are looking for a Sr. Counsel for our in a team approach and are fortunate to
Thrivent Financial Credit Union. This indi- have a loyal clientele. Please respond to:
vidual can sit in either our Minneapolis, [email protected]
MN or Appleton, WI location. We need
sssss
someone with a broad knowledge of
banking, or credit union laws and regula- Staff Attorney – Real Estate. Moss
tions. This person will have three direct & Barnett, A Professional Association,
reports - chief compliance officer, VP of seeks a licensed attorney to join its real
information security and an internal audi- estate practice group as a staff attorney.
tor. Knowledge of compliance, informa- This position will have an emphasis in
tion security and auditing would be ideal. multi-family housing lending. Preferred
Please send any inquiries to the opening candidates will have a minimum of two
on our careers page - http://bit.ly/MSBA- years real estate experience, superior
Thrivent. Thrivent Financial is a Fortune academic qualifications, and a distin333 not-for-profit organization with over guished work record. Salary commensu$8.1 Billion in Revenue. Our mission is to rate with experience and qualifications;
serve our members, help them be wise position is eligible for participation in aswith money and in turn, live generous sociate bonus program. Interested candilives by giving time and money back to dates should email a cover letter, resume
their communities. We offer an excellent and law school transcript to: Julie Donbenefits packages, which includes an aldson, HR Director, Julie.Donaldson@
annual bonus, pension plan, 401k match lawmoss.com. Moss & Barnett is an
at 6%, four weeks of starting PTO, 20 affirmative action/EEO employer. No
agencies please.
hours of paid volunteer hours, etc.
www.mnbar.org
THE LAW office of Stoneberg, Giles
& Stroup, PA is seeking an attorney to
practice, with a concentration in the
areas of real estate, business, trusts
and estate planning -immediate client
contact. Contact: Stoneberg, Giles &
Stroup, PA, 300 South O’Connell Street,
Marshall, MN 56258-2638. Email:
[email protected]
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SENIOR COUNSEL – Post Consumer
Brands. General description: This professional will provide legal advice and
representation in a variety of areas, including commercial contracts drafting
and negotiation, intellectual property
protection, regulatory compliance (e.g.,
advertising and food labeling), risk management, and other areas of the law
relevant to the Post Consumer Brands
business headquartered in Lakeville,
MN. This new position will work closely
with the marketing, sales, finance, procurement, regulatory, quality and operations functions and reports to the
vice president and general counsel of
Post Consumer Brands. Essential job
functions: Provide high caliber, proactive legal and risk management advice
to executives, senior managers and
employees with respect to a range of
legal issues affecting the business.
Devise practical, business-oriented
solutions and alternatives designed to
mitigate risk and maximize business
opportunities. Review, draft and negotiate a variety of commercial contracts,
including marketing and sales, distribution, procurement, services, licensing, construction/engineering, private
label manufacturing, and confidentiality
agreements, along with ancillary legal
documents. Develop standardized contract templates and policies designed
to efficiently support Post Consumer
Brands’ business operations. Advise
and strategize on intellectual property
matters, including trademark, trade secret and patent protection. Support litigated matters, including product liability
and class action claims, in collaboration
with Post Holdings, Inc. litigation counsel. Advise on regulatory requirements
pertinent to food manufacturing and
sales, including labeling, packaging and
claims, antitrust / trade compliance, and
other regulatory issues. Assist in the
development of legal, compliance and
operational policies and guidance documents. Liaise with other Post Holdings
attorneys and/or outside counsel to provide or obtain specialized advice. Advise
Post Consumer Brands on legal issues
February 2016 s Bench&Bar of Minnesota 45
OpportunityMarket
facing international operations (particularly Canada). Advise and support other
Post Holdings business units from timeto-time. Handle other corporate matters
(environmental, real estate, etc.) as they
arise. Assist with M&A diligence and integration of transactions. Oversee the
work of paralegals and legal assistants
as required. Perform other job functions
as assigned. Job Requirements: Juris
doctorate degree (with excellent academic credentials) from an accredited
law school. Member in good standing
of the Minnesota State Bar. Four to
seven years legal experience in a law
firm and/or in-house setting. Experience
with manufacturing or the CPG industry
(food/beverage) preferred. Knowledge
of Canadian legal system a plus. Must
exhibit excellent judgment and strategic
thinking, providing practical, proactive
solutions designed to meet legal and
regulatory requirements while balancing business needs. Outstanding verbal, interpersonal and written communication skills. Demonstrated track record
of consistently meeting and/or exceeding performance expectations. Some
travel required (<25%). Please apply on:
jobs.postconsumerbrands.com.
Office Space
PRIME, Convenient, Eden Prairie.
One to five individual offices. Average
size: 13x14. Floor-to-Ceiling windows.
$750 and up. Upgrades: furnished,
phone, support staff cube, file storage,
conference room and more. Call Ed or
Scott: (952) 563-3000.
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ANOKA office space available, across
the street from courthouse. Several
suites available from 200 – 3500
square feet. Private offices as low as
$100/month. Client referrals available.
Tim Theisen (763) 421-0965 or tim@
theisenlaw.com.
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EXECUTIVE Suites of Minnesota offers
attractively furnished, serviced office
space including receptionist support/administrative services, meeting rooms,
Internet, flexible terms at prestigious
addresses (IDS Center, Edina, St. Louis
Park, and Oakdale). Call Wayne with Executive Suites of Minnesota at: (952)
851-5555 or email: [email protected]
com. Visit: www.exsmn.com/attorneys
for our current promotion. Rent one office, use four metro locations.
46 Bench&Bar of Minnesota s February 2016
VIRTUAL office – Ideal for attorneys
who want a professional business
image but don’t need a full-time office
or who desire access to additional office
locations. With a virtual office, you have
access to the amenities at all four of
our prestigious locations (IDS Center,
Edina, St. Louis Park & Oakdale). From
$59 monthly. Call Wayne with Executive
Suites of Minnesota at: (952) 851-5555
or email: [email protected] For our
current promotion, visit: www.exsmn.
com/attorneys.
a fully equipped workroom, along with
administrative and paralegal support
services as needed. In addition and
all-inclusive for our tenants are video
conferencing rooms and work-out
facilities. Please contact Melissa at:
(612) 573-3660 for a showing.
TWO-WINDOWED office in downtown
Minneapolis for a lawyer to join a
modern, professional suite of seasoned
attorneys at the Class A Canadian Pacific
Plaza. Cubicle space (furnished or
unfurnished) is also available. Amenities
include receptionist, conference rooms,
sssss
sssss
AFFORDABLE office space in downtown Minneapolis. Flexible terms.
Steps from courthouses. Join other
independent attorneys in historic building featuring full-time receptionist, highsssss
speed internet, fax, and conference
INDIVIDUAL offices for rent. Profession- room. Contact Keith Johnson at: (612)
al, friendly building by Highways 7/101 in 341-2525.
Minnetonka. 12 independent attorneys.
sssss
All furniture and service available. (952)
NORTHWESTERN Building – 275 East
474-4406. minnetonkaoffices.com.
4th Street, Saint Paul. Small to larger
sssss
office spaces available for lease. Great
OFFICE space and virtual office services for start-up attorneys. Monthly rates
in a community of the nicest high-quality from $250 – $1229 / month. Historic
lawyers you could ever meet, in a beauti- building. Lowertown. Lite Rail. Deli on
ful office suite with lots of natural light 1st floor. Contact Wendy at (612) 327that is a cut above the rest. If your work 2231 for a showing or check us out at
environment and the people around you www.northwesternbuilding.com
are important to you, you should check
sssss
us out. www.morelawmpls.com or call
SERVICED Office Space with an Attorus at: (612) 206-3700.
ney Support Program. Close to MSP Airsssss
port and Mall of America. Contact Judy
OFFICE suite & windowed offices, and Magy the expert with serviced office
also virtual attorney space available. Pro- space. Hop on a light-rail train or bus
fessional and impressive to clients, but and be in your office in minutes. Onenot expensive. Flexible terms. Free Park- to three-person offices - base rent from
ing and wireless internet. Lakes & Plains $280 – $800. Services: personalized
Office Building, 842 Raymond Avenue, telephone answering, copier, fax, scanSt. Paul. Multiple conference rooms, law ning. Witness and Notary services. Mail
library, kitchenette, receptionist and lob- sorting and drop off documents, packby; attorney collaboration and interaction. ages. Support staff and reception area.
Near Key’s Restaurant. Call Mick at: (651) Judy Magy (952) 851-9040.
647-6250 or email: mick.lakesplains@
sssss
gmail.com.
1955 UNIVERSITY Avenue – 383 RSF
sssss
-– 6000 RSF (3000+ contiguous). Built
PREMIER office space Minnetonka in 1980 renovated in 2015. Located on
(Highways 101 & 7). 15’ x 16’. Lots of the Green Line one block from the Fairwindows, set amongst the trees. Office view street station. Highly visible locashare with three established attorneys. tion on the corner of University Avenue
Free telephone answering. First month West & Prior. Convenient location and
free! All amenities. Secretary available. easily accessible to highways 94 and
Flexible terms. Call Steve at (952) 470- 280 center of the Twin Cities. Property
4550.
has ample parking. Please call Christina
at: (651) 246-5810.
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OFFICES for Lease – White Bear Lake.
Law firm has three individual offices
available for lease at 4525 Allendale
Drive. Rent is variable based on office(s)
and term. Contact Nichole Lorenz at
(651) 426-9980 or [email protected]
www.mnbar.org
OpportunityMarket
Position Available
Professional Services
FARMERS’ Legal Action Group is seeking an Executive Director to lead the organization and ensure continued excellence in fulfilling its mission. Founded in
1986, FLAG is a national nonprofit law
center dedicated to providing legal services and support to family farmers and
their communities to help keep family
farmers on the land. Job Duties: 1) Strategic development to achieve mission;
2) Provide leadership to all fund-raising
efforts and initiatives; 3) Maintain visibility of the organization; 4) Advocate
on behalf of family farmers, as time
permits; 5) Manage internal operations;
and 6) Work with Board of Directors regarding organization governance. Visit
www.flaginc.org for details. Qualifications: Law degree or deep knowledge
of farm law issues; commitment to public interest/social justice work; excellent
fund-raising, communication, and nonprofit leadership skills. Email cover letter, resume, and three references to:
[email protected]
MEDIATION Training: Advanced and
Certified Family and Civil Courses.
Learn the transformative approach,
highly-rated curriculum and instructor.
simon-mediation.com, (651) 699-5000.
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meteorological concepts to a jury.
www.allenbecker.com,
[email protected], (414) 807-0269.
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PARLIAMENTARIAN, meeting facilitator.
“We go where angels fear to tread.TM”
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Robert W. Groth, PA (239) 593-1444;
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new_features_dec15b.qxp_Layout 1 11/17/15 9:23 AM Page 1
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MSBA Directories have
new features!
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The MSBA’s free MN Find a Lawyer directory just got more powerful.
• Clients can now search by geographical radius—and see a Google Map of your location.
• Certified Specialists enjoy greater visibility: Certification badging now appears in search results.
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February 2016 s Bench&Bar of Minnesota 47
Books&Bytes
n The Tech Contracts
Handbook: Cloud
Computing Agreements,
Software
Licenses,
and Other
IT Contracts for
Lawyers
and
Businesspeople by
David W.
Tollen is
a userfriendly reference manual and
training guide on software
licenses and other IT agreements, along with cloud
computing issues. This handbook is for both lawyers and
businesspeople, including
contract managers, procurement officers, corporate
counsel, salespeople, and
anyone else responsible
for getting IT deals done.
Perhaps, most important,
the book uses clear, simple
English, just like a good
contract. *Order online at:
www.shopABA.org.
n Human
Rights in
Children’s
Literature
investigates
children’s
rights
under international
law—
identity
and family rights, the right
to be heard, the right to be
free from discrimination,
and other civil, political,
economic, social and cultural
rights—and considers the
way in which those rights are
embedded in children’s literature from Peter Rabbit to
* Use code PAB6EMNB for the MSBA 15%
discount on orders from ABA Books.
Horton Hears a Who! to Harry
Potter. Authors Jonathan Todres and Sarah Higinbotham
traverse children’s rights law,
literary theory, and human
rights education to argue that
in order for children to fully
realize their human rights,
they first have to imagine and
understand them. Published
by the Oxford University
Press: http://global.oup.com
n Juan Martinez, the prosecutor who convicted notorious murderess Jodi Arias for
the disturbing killing of Travis
Alexander, speaks for the
first time about the shocking
investigation and sensational
trial that captivated the
nation. Conviction: The
Untold Story of Putting
Jodi Arias Behind Bars
unearths
new
n The Innocent Killer: A
details
True Story of a Wrongful from the
Conviction and its
investigaAstonishing Aftermath
tion that
begins with a brutal aswere
sault on a remote stretch of
never rebeach on the Lake Michigan vealed at
shoreline
trial and
and ends
explores
20 years
key facts
later with and pieces of evidence from
a historythe case. Martinez illuminates
making
the unique tactics he utilized
verdict. It in this case and how they led
tells the
to a successful conviction,
story of
and discusses how he felt
one of the about losing the death
nation’s
penalty sentence he’d
most
pursued for years. Published
notorious wrongful convicby William Morrow:
tions, that of Steven Avery,
www.harpercollins.com
a Wisconsin man who spent
18 years in prison for a crime n From high school football
he did not commit. (Avery
to the NFL, from shaken
was recently featured in the
baby syndrome to battlefield
Netflix documentary series
injury, head trauma with
Making a Murderer.) In adbrain injury has become
dition to being a fascinating
a major concern for not
true crime story, it’s also a
only the medical and legal
chilling example of what can professions, but also to the
happen when those responpublic as a whole. Traumatic
sible for administering justice brain injury (TBI) is a serious
lose sight of their calling and health problem resulting in a
a stark reminder of the unsubstantial number of deaths
intended consequences that
and cases of permanent
can flow from a single wrong. disability each year. The
Author Michael Griesbach is Centers for Disease Control
a prosecuting attorney in the and Prevention estimate that,
state of Wisconsin. *Order
on average, approximately
online at: www.shopABA.org. 1.7 million individuals
48 Bench&Bar of Minnesota s February 2016
incur a traumatic brain
injury each year. The ABA
Medical-Legal Guides:
Head Trauma and Brain
Injury for
Lawyers,
provides
in-depth
medical/
legal
information
regarding
injury to
the brain as
well as the
spinal cord
and structures surrounding
these components of the
central nervous system.
*Order online at:
www.shopABA.org.
n In what the San Francisco
Chronicle called “an epic
work of investigative
journalism that lays bare
our nation’s brutal and
counterproductive juvenile
prisons and is a clarion call
to bring our children home,”
Nell Bernstein argues that
there is no good way to lock
up a child. Making the radical
argument that state-run
detention centers should be
abolished
completely,
Burning
Down the
House:
The
End of
Juvenile
Prison
points out
that our
system
of juvenile justice flies in
the face of everything we
know about what motivates
young people to change.
Published by the New Press:
thenewpress.com.
www.mnbar.org
Share your experience.
Show off your expertise.
Become a contributor to
Tips & Traps section
From courtroom practice to client relations to practice management and marketing,
Tips & Traps is the place to share your hard-won insights and raise your visibility.
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