Lake Law 101 - Bench and Bar of Minnesota

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Official Publication of the Minnesota State Bar Association
Lake Law 101
Volume LXXIII Number IV
April 2016
Or: So You Want To Own a Cabin...
An Interview with
Justice Natalie Hudson
Minnesota’s Broad
New Assault Crime
Convention - 2016
the State
and a
Event in
the Twin
Coming this June to a location near you:
Detroit Lakes – June 20
Grand Rapids – June 13
Saint Cloud – June 16
Anoka – June 22
Minneapolis – June 24
Mankato – June 21
Lakeville – June 9
Rochester – June 15
Earn 6 CLE credits in one day and enjoy these timely topics at the suburban and Greater
Minnesota locations:
How to Protect Your Clients and Yourself from
Cyber Threats
New Developments at Minnesota’s Appellate
20 Technology Tips to Strengthen Your Practice
The State of Small Firm Practice in 2016: An
Interactive Discussion
The MSBA’s New Diversity Initiatives
Alternative Billing Models and Limited Scope
Insurance Coverage for Your Clients and Yourself
Stay tuned for the Twin Cities Finale schedule, guest speakers and special benefits!
Save the Dates! Full Convention Schedule Coming Soon!
April 2016
2 MSBA Blogs
What you need to know
about Casemaker
By Joe Kaczrowski
5President’s Page
Change happens.
And that’s good.
By Mike Unger
6MSBA in Action
Award recipients to be
honored at assembly
8 10
What, Where & When
CLEs & events
Professional Responsibility
ow this lawyer ended up
director of the OLPR
By Susan Humiston
13Colleague Corner
On the cover:
Lake Law 101
Or: So You Want To Own a Cabin...
Owning a place ‘up north’ is the
stuff of Minnesotans’ dreams. But
along with the rustic setting and the
sun-dappled shoreline, there comes a
thicket of laws, regulations and potential boundary disputes that the wise
would-be purchaser will get to know.
By David J. Meyers
Ending Discrimination
against Women
Globally—and Locally
‘Justice is not
simply a result’
An interview with the
newest member of the
Minnesota Supreme
Court, Justice Natalie Hudson.
By Jon Schmidt
Notes & Trends
Landmarks in the law
People & Practice
Member announcements
Opportunity Market
Classified ads
Books & Bytes
Legal publishing
‘I decide what I will focus on’
Meet Claudia Revermann
Only at Bench & Bar
Minnesota’s Broad
New Assault Crime
A pair of Minnesota court decisions
have upended traditional definitions
of what constitutes assault.
By Adam T. Johnson
The Latest
Wisconsin Border Battle
Wisconsin decision puts the states
at odds over non-compete provisions
in employment agreements.
By Ansis V. Viksnins
On December 11, 2015, the MSBA
unanimously passed a resolution
supporting efforts to end discrimination against women here and abroad
through the United Nations Convention on the Elimination of all Forms
of Discrimination Against Women
(CEDAW). A few hours before this
landmark vote, the Minneapolis City
Council had taken the same step.
Most recently, on March 2, 2016, the
St. Paul City Council and Edina City
Councils followed suit.
By Tara Kalar, Elizabeth M.
Meske, and Ellen J. Kennedy
There’s more online
Leave comments, read digital-only
articles, and search the article
archive. Jobs and services are posted
daily in the Opportunity Market.
April 2016 s Bench&Bar of Minnesota 1
What you need to know
about Casemaker
By Joe Kaczrowski
fter a year-long review, the Minnesota State Bar
Association is switching its legal research provider
to Casemaker from Fastcase. You can learn more
details about the transition, including webinar
training availabilities, by visiting the MSBA’s Casemaker
information page at
Why switch research partners now?
The MSBA continually reviews its products and services.
A free legal research tool has long been a staple of MSBA
membership, but the industry continues to evolve. The
MSBA and a team of volunteer members spent over a year
reviewing our current offering, Fastcase, and its competitors.
While many services offer similar features, the group determined that Casemaker offered the best value to members.
Why? Two main reasons.
Ease of use: First and foremost, Casemaker is easier to
use. “Computer-aided legal research” has been around for
decades, and our members expect a clean, fast, and intuitive
user interface. They want to be able to get in and out of
the platform quickly, confident that they’ve accomplished
their research task, and without having to relearn the tools
available to them.
Legal research is an essential task for many of our
members, but not necessarily a task they perform every day.
You shouldn’t have to be a power-user to feel confident about
your ability to complete your legal research. Casemaker’s
simple features—like the ability to drag and drop results into
a folder, an end-of-session search summary, filterable results,
the ability to search within a set of
citing references, and the ease with
which you select relevant collections—
make doing research more efficient.
Casemaker also includes an
extensive library of source databases
covering both state and federal
jurisdictions, and we are currently
working with Casemaker reps and
Joe Kaczrowski
MSBA Sections to make the selection
is the MSBA’s
even more useful to Minnesota
director of online
attorneys. Check out the full list online
services and a
volunteer attorney
with the Wills for
Heroes program. He
also spent several
years as a software
engineer in a
previous life.
We heard this objection regularly over the past year. Still, we
cannot dismiss the efficiency offered by a system that permits
us to identify, at a glance, negative case history. Sure, users
will want to review citing documents even where there is no
negative history cited, but this is true with any citator, and the
red thumbs down icon is a clear signal to be on the lookout.
Moreover, Casemaker’s editorial oversight means the citator
is not operating on an algorithm alone. Humans are reading
these cases, not just machines.
n CiteCheck: Casemaker’s citator service enables another
tool, CiteCheck. You can cite-check an entire memorandum
or brief almost instantly by uploading it to the CiteCheck tool.
In about 60 seconds, CiteCheck delivers a report assessing the
validity of each case law citation in your document. Better
still, upload your opponent’s brief to determine whether they
might be citing any bad case law.
n Customizable folders: You’ll be able to drag and drop
search results into a customized folder structure. Users can
organize research by case, client, matter, or any other personal
taxonomy. That means no more need to go hunting for
research you’ve already completed.
n Other tools: Other tools, like the Casemaker Digest,
will allow us to update our Court Opinions by email service.
The new version will have a cleaner look and will be easier
to use; it will be easier to customize, too, enabling you
(for example) to set up email alerts for particular pending
How will the transition work?
On July 1, members will see a link to Casemaker on replacing the current link to Fastcase.
Members will still log into the MSBA site to access
Casemaker, practicelaw, and other MSBA services. System
access will work the same way it works now. Watch for more
details in the coming months on transitioning your personal
settings (saved cases, etc.) from Fastcase to Casemaker.
Web-based trainings, along with demo and Q&A sessions
featuring Casemaker representatives, are also available, and
more will be added in coming months. To view the current
schedule, visit our Casemaker information page at
How much will it cost?
Casemaker will be available to members at no cost.
A free legal research tool is a valuable part of your MSBA
membership. While we are moving to a new provider, the
service will continue to be free to members.
New tools: Casemaker offers a great
set of unique tools our members will
appreciate. Here are a few:
n Citator: Casemaker offers a
tool not available from other low-cost
Who do I contact with questions?
providers—a citator. Let’s start by
To learn more about Casemaker, you can call us at
acknowledging that no citator is perfect. (612) 333-1183 or email us at [email protected] s
2 Bench&Bar of Minnesota s April 2016
Official publication of the
Minnesota State Bar Association
Steve Perry
Design & Production
Jennifer Pickles
Advertising Sales
Pierre Production & Promotions, Inc.
(763) 497-1778
MSBA Officers
Michael W. Unger
Robin M. Wolpert
Sonia Miller-Van Oort
Paul W. Godfrey
Executive Director
Tim Groshens
Publications Committee
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
Attorneys And other ProfessionAls
Networking Coffee with the Trainers • April 28 • free event!
Your chance to meet the trainers and ask questions about training
© 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, 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.
Navigating Worldview and Cultural Conflicts • June 10
1.75 ethics & 3.75 bias CLE credits applied for
30-Hour Civil Mediation Training • June 15-18
22.75 standard, 4.25 ethics & 3 bias CLE credits applied for
fAmily lAw Attorneys And fAmily lAw ProfessionAls
Custody Evaluation Training • May 5-7, 19-21
41 standard & 2 bias CLE credits applied for
40-Hour Family Mediation Training • July 14-16, 28-30
37.5 standard & 2.5 ethics CLE credits applied for
Intractable Issues in Child Custody • October 13, 14
12 standard CLE credits applied for
Our training is Rule 114 Certified
Call 651-523-2880, email [email protected],
or visit for more information
April 2016 s Bench&Bar of Minnesota 3
By Michael W. Unger
Change happens. And that’s good.
I am a lifelong Minnesotan. I
have lived in the Twin Cities since
infancy. I went to public schools in a
large suburban district. Almost everyone in my world looked like me and
spoke English—my relatives, my neighbors, my friends, my teachers, the folks
who worked in the gas station, stores
and restaurants, the political leaders, the
police, the fire department, everyone. I
thought of myself as an “American.” No
one ever told me that my family originally came from another country, continent
and culture, or explained our troubled
history with American Indians. The
Minnesota of my youth had a population
of about 3.4 million. It was almost entirely like me too: The census reported
that people of color comprised 1 percent
of the population. Only one religious
faith and one type of sexual orientation
seemed to exist, and everything else was
shunned, denied or stigmatized.
Today the population of the Twin
Cities metro area is greater than that of
the entire state of Minnesota at the time
of my youth. In today’s Twin Cities, the
percentage of people of color is about
22 percent and demographers predict it
will reach 40 percent in a couple more
decades. My extended family now includes married and unmarried LGBTQ
persons, persons of different faiths or no
faith, and a Spanish-speaking immigrant
who just became a citizen a few years
ago. Not only has my small corner of
the world changed around me, but I too
have changed in countless ways that
have been good. The diversity of people
in my little corner today has greatly enriched my life. It has made me a better
lawyer as well. My practice brings me
in touch with a wider array of humanity now. Moving beyond my cocooned
childhood existence has made my work
more enjoyable and more effective.
I am glad to say that MSBA itself
is making a similar journey. I have
no doubt that the MSBA will be a
stronger resource to its members and a
more effective leader in our profession
as it works to amplify the voices and
integrate the perspectives that have
been historically missing from our
profession. My experience has taught
me that this is a change to embrace.
It is growth.
MSBA diversity initiatives
Although we still have a long way to
go for MSBA to be a model of diversity
and inclusion, let me share a few of the
things we have been doing to improve
our diversity and inclusiveness. I invite
your support, ideas and involvement.
Just a few years ago, we upgraded
our staff commitment to improving
diversity and inclusion by creating a
director-level position to address our
goals. This has enabled us to attract and
apply additional talent to our efforts.
Our first director made great strides in
reaching out to affinity bars and to other
segments of the community. She helped
to rebuild our relations with lawyers of
color, women lawyers, LGBTQ lawyers,
disabled lawyers and others. Our
current Diversity Director, Ti O’Konek,
has been building on the strong start of
her predecessor. She is now taking our
efforts to the next level.
We have also created a new highlevel volunteer structure to support our
efforts. The Diversity and Inclusion
Council, which is nearing completion
of its first full year of operation, consists
of some highly effective and thoughtful
members of our bar who share the commitment to diversity. Council members
include our diversity director, Ivan Fong,
Pete Glass, Judge Nicole Starr, Phil Duran, Justin Page, Pam Rochlin, Adebisi
Wilson, Tom Nelson, Bryan Browning,
and the MSBA president. This council
has been engaged in a thorough strategic planning process that is being ably
facilitated by Judge Peter Reyes, who is
generously volunteering his time and expertise. The council is developing some
great and concrete ideas for improving MSBA’s movement toward a more
diverse and inclusive association and
I expect it will complete this planning
process in the next month.
We have also been reaching out to
our friends and colleagues in the affinity
bars, and we have co-sponsored some
excellent programming dealing with
relevant issues of diversity today. These
programs have been terrific. Examples
included a “listening party” during
the Supreme Court arguments on the
same-sex marriage case, a discussion
of the rights of the Black Lives Matter
protesters at the Mall of America,
and most recently, a presentation on
the issues of affirmative action being
revisited by the Supreme Court in the
pending case involving the University of
Texas admissions policies.
Information gathering
Last year, together with the affinity
bars, we urged the Minnesota Supreme
Court to begin to gather demographic
data during the lawyer registration process. The Court has added voluntary,
confidential questions to the process of
lawyer registration that we hope may
lead to a better understanding of the diversity of our own profession. Our own
membership renewal process also now
seeks voluntary information, including
demographic data, so we may better
understand the composition of our own
membership. These efforts will require
determined follow-up to generate the
kind of information that could be truly
helpful in measuring our progress or setting our goals.
Under President-Elect Robin
Wolpert’s guidance, we are starting to
consider meaningful training in diversity
for many of our key staff and volunteers
in the coming year. I think this is an
initiative that will bear much fruit,
and I look for
good things to
come under
Robin’s leadership next year.
Like the world
around us, the
changing. We
hope to help
Michael W. Unger
guide and foster
is president of the
that change, to
Minnesota State
assure we do a
Bar Association. He
better job as a
is a Certified Civil
profession in
Trial Specialist at
serving today’s
Unger Law Office
in Minneapolis,
Equal justice rerepresenting
quires us to serve
negligence victims
all members of
for serious injuries
our community,
and wrongful death. not just some.
He is also on the
Our community
adjunct faculty of
has a right to
the University of
expect no less
Minnesota Law School. from us. s
April 2016 s Bench&Bar of Minnesota 5
MSBA Action
MSBA Spring Cleaning event
coming to On-Demand CLE
embers turned out for the MSBA’s “Spring Cleaning”
programming on March 24. Over the course of
the day, those in attendance had the opportunity
to create new marketing tools and learn about Casemaker,
which will become the MSBA’s online legal research provider
on July 1.
Forty-six members had a new professional headshot taken
at no charge. Eleven members created marketing videos in
which they recorded a short presentation for prospective
clients. MSBA staff members were on hand throughout the
day to assist members in updating their MN Find a Lawyer
and Colleague Directory profiles.
MSBA members attended two CLEs, the first of which
focused on low-cost marketing strategies, some of them
web-based. The second CLE addressed “Hot Topics in Billing
Ethics,” with two attorneys from the Office of Lawyers Professional Responsibility providing expert guidance on thorny
questions that sometimes arise. Both of these CLEs will be
made available online in the MSBA On-Demand series.
Panel on SCOTUS
affirmative action case
n February 24th, the Minnesota Association of Black
Lawyers (MABL) and the MSBA co-sponsored a panel
discussion on affirmative action and the Fisher v. University of Texas at Austin case, which is currently pending before
the U.S. Supreme Court. The panel was moderated by Ms.
Kiesha Mayes (Gray Plant Mooty).The panelists included Professor Carl Warren (University of Minnesota Law School), Ms.
Ngeri Azuewah (Student, University of St. Thomas School of
Law), and Ms. Amran Farah (Waldeck Law Firm PA).
Plaintiff Abigail Fisher was denied admission to the University of Texas at Austin and challenged the constitutionality
of UT’s admission policies, which considered a multitude of
factors, including race, when an applicant was not in the top
10 percent of their high school class. In oral arguments this
past December Chief Justice Roberts asked: “What unique
perspective does a minority student bring to a physics class?” Justice Antonin Scalia stated: “There are those who contend
that it does not benefit African-Americans to get them into
the University of Texas where they do not do well, as opposed
to having them go to a less advanced school, a slower-track
school where they do well.” Warren argued that the justices’
troubling questions revealed the illogical analysis that has
begun to characterize US affirmative action jurisprudence—
“forcing minority students to prove their presence would offer
a unique contribution.” Warren also noted that the justices’
comments suggested “something a lot more malevolent than
delusions of a post-racial society—they harken back to prior
arguments of “separate but equal.”
At this critical juncture for affirmative action, panelists
emphasized its continued importance. In Mayes’ words,
“Enough is enough when institutions look like our world.”
6 Bench&Bar of Minnesota s April 2016
Member Tony Rubin (Sieben Carey) awaited the start of his promotional
video shoot at the March 24 MSBA Spring Cleaning Day event.
MSBA award recipients to be
honored at April assembly
t the upcoming meeting of the MSBA Assembly on
Friday, April 22, three annual awards will be presented to members in recognition of outstanding service
in different facets of the legal profession.
n The MSBA’s David Graven Public Service Award is
given to members who best exemplify the high standards of
the profession in combination with a commitment to public
or community service. This year’s recipient is the Hon. John
P. Smith, who recently retired from the Minnesota Court of
n The MSBA Legal Assistance to the Disadvantaged
Committee will present the Bernard Becker Award for outstanding legal services. Becker award winners have demonstrated a commitment to providing zealous and skilled legal
representation for low-income and disadvantaged clients in
Minnesota. This year’s winners are:
Law Student: Krzysztof Wysokinski, University of
Minnesota Law School
Advocate: Melissa Pfeiffer, Immigrant Law Center
Legacy of Excellence: Mike Persellin, Mid-Minnesota
Legal Assistance
Emerging Leader: Dori Streit, Volunteer Attorney Program
n The MSBA Publications Committee will present the
Elmer Wiblishauser Award, given each year to the author
of the best article to appear in Bench & Bar of Minnesota
during the previous year, to Steven P. Aggergaard (Bassford
Remele). Aggergaard’s “When Public Space Isn’t Public”
appeared in the May/June 2015 edition of the magazine.
Correction: Last month’s article on the Medicaid Secondary Payer Act
(“Show Them the Money,” p. 20) misstated the date on which the Act will
become effective. Its implementation has been delayed until October 1,
2017; it will not take effect on October 1, 2016, as the article stated.
Bench & Bar of Minnesota regrets the error.
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MN Bench and Bar 2016
Business Law
s 2016 Business Law
May 2 • 11.25 Credits
Civil Litigation
Criminal Law
May 4 • 1.0 Credit
s Annual Dinner –
An Evening with
Jeffrey Toobin
Apr 21 • 1.0 Credit
Computer Forensics
Apr 27 • 3.0 Credits
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:
Hennepin County Bar Association
Phone: (612) 752-6600
MCLE: Minnesota
Continuing Legal Education
Phone: (651) 227-8266
(800) 759-8840
MSBA: Minnesota State Bar Association
Phone: (612) 333-1183
(800) 882-6722
RCBA: Ramsey County Bar Association
Phone: (651) 222-0846
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]
s MSBA Board Certified Specialists CLE & Reception
Midland Hills Country Club, Roseville
Tuesday, April 26, 2016
s Real Estate Tips for
Collections Lawyers
Environmental Law
s Cradle to Grave:
Ethics Over the Life
of Client Files
Apr 25 • 3.0 Credits
s Don’t “Waive”
Good-Bye to AttorneyClient Privilege
The Minnesota State Bar Association invites you to a networking
reception & CLE program honoring Board Certified Legal Specialists.
Details at:
Apr 20 • 1.0 Credit
s Cyber Threats:
s 2016 Minnesota
How to Protect Businesses,
Environmental Institute
Clients and Yourself!
Apr 21 • 6.0 Credits
s The Role of Miranda in
the “Making a Murderer”
St. Paul
Apr 9 • 3.0 Credits
Elimination of Bias
s Postnuptial Agreements
St. Paul
May 25 • 1.0 Credit
Insurance Law
s Insurance Law
for the Non-Specialist
May 6 • 3.0 Credits
Intellectual Property
s What Latest Research
Teaches Us About Bias
& Inclusion in Legal
May 9 • 2.0 Credits
Practice Managment
s A Conversation About
Race in the Age of Obama
s The Fundamentals
of Starting and Building
Your Law Practice
St. Paul
Apr 25 • 2.0 Credits
Family Law
s Unique Aspects of
Business Appraisal in the
Context of Family Law
St. Paul
Apr 27 • 1.0 Credit
Food Drug & Device
s Food Trucks – What
it takes from a Legal and
Practical Perspective
8 Bench&Bar of Minnesota s April 2016
Apr 27 • 1.5 Credits
May 5 • 6.0 Credits
Real Property
s Top 10 Changes to the
New ALTA Standards
Apr 28 • 1.0 Credit
s Get To Know Your
Surveyors Happy Hour
s Representing Clients
with Sensory Impairments
Apr 26 • 1.0 Credit
Solo Small Firm
s 2015 Amendments to
the Minn. Stat. §518
St. Paul
Apr 28 • 1.5 Credits
Tax Law
s 2016 Minnesota
Tax Court Update
St. Paul
Apr 21 • 1.0 Credit
Summer Courses
Apr 27 • 2.0 Credits
s Get Organized
& Get Things Done
Social Security
Disability Law
Apr 27 • Free Event
Health Law Institute
Summer 2016
June 1-29, 2016
s HIPAA Privacy
June 1 – July 20, 2016
s Medical Marijuana
Law: State Regulation
in the Shadow of
Federal Prohibition
Online Course
2.0 academic credits
Register at:
Office of the
Attorney General
s Working with Individuals
Who Have a Mental Illness,
and Addictions, Depression,
Mental Illness, and Stress
Among Attorneys
This two-part training will cover
working with witnesses or pro se
litigants with mental illnesses, and
the role, responsibilities and opportunities for lawyers working with
these individuals. The seminar will
also address the mental health issues
prevalent among lawyers. This Elimination of Bias CLE is free to attend,
no registration is required.
Date: May 11, 2016
Time: 12:00– 2:00 p.m.
Location: Elmer L. Andersen
Building, St. Paul
CLE Credits: 2.0 Elimination of Bias
credits applied for
Contact: Pat Gallatin (651) 7571444 or [email protected]
Legal Services
State Support
s Public Speaking:
Engage and Educate
Toastmaster Ryan Patrick is an
attorney with the Minneapolis
Department of Civil Rights and
former president of the Roller
casemaker_april16.qxp_Layout 1
Toasters of Minneapolis. He will
provide attendees with practical
tips that apply to any type of public
speaking, whether in the courtroom,
in a meeting, or at a community
event. Attendees will be instructed
on preparing the content and
structure of a presentation, mentally
preparing for a public speaking event,
and effectively using different types
of visual aids, such as PowerPoints
and Prezis, handouts, charts and
graphs, and photographs and physical
Date: April 29, 2016
Time: 9:00 – 10:30 a.m.
Location: Dorsey & Whitney LLP
and via webinar
CLE Credits: 1.5 credits requested
Contact: Ann Conroy at (651) 8426911 or [email protected]
Mitchell Hamline
s When No One is Behind
the Wheel: Liability and
Other Legal Issues Surrounding the Development of
Driverless Cars
Professor Emeritus David Prince
will examine some of the legal
implications of the development of
“self-driving” cars, including liability,
insurance, and regulatory issues.
3/25/16 9:28 AM Page 1
Prince will also discuss the potential
of these evolving technologies to
dramatically disrupt existing patterns of vehicle ownership and use,
certain businesses associated with
motor vehicles including insurance,
vehicle maintenance and repair, and
even some law practices. Finally,
some ethical issues presented by the
development of autonomous cars will
be discussed.
Date: May 10, 2016
Time: 11:30 a.m. – 12:30 p.m.
Location: Mitchell Hamline
CLE Credits: 1.0 credit applied for
Minnesota American
Indian Bar Association
s Indian Law Conference
Attend this year’s conference for
in-depth discussions of the Dollar
General case, tribal food production
initiatives, unionization of tribal
employees, ICWA developments,
autopsies and religious autonomy,
new federal regulations governing
secretarial elections, and economic
diversification by Minnesota’s tribes.
Date: May 6, 2016
Location: Mystic Lake Casino
CLE Credits: 5.75 credits requested
Minnesota Women
s 2016 MWL Conference
for Women in the Law
MWL is pleased to welcome keynote
speaker Linda Hirshman, attorney
and author of “Sisters in Law:
How Sandra Day O’Connor and
Ruth Bader Ginsburg Went to the
Supreme Court and Changed the
World.” The conference will also
feature a full day of programming,
geared towards the diverse practice
areas and experience levels of our
membership. Registration for the
conference includes a ticket to the
MWL Annual Meeting luncheon.
Date: April 15, 2016
Location: Radisson Blu Hotel,
CLE Credits: Up to 5.0 credits
to be applied for
Contact: Debra Pexa at dpexa@ or (612) 338-3205
Over 50 CLE courses are available
for you to watch on demand
as your schedule permits.
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April 2016 s Bench&Bar of Minnesota 9
By Susan Humiston
‘That’s a terrible job’
How this lawyer ended up director of the OLPR
n December 2015, I told a family
member that I had an interview for
the position of director of the Office
of Lawyers Professional Responsibility (OLPR) and the Client Security
Board (CSB). The response? “That’s a
terrible job: whiny complainants, lawyers
as respondents (!) and opposing counsel,
mostly frivolous complaints, and your
peers think you are out to get them.” Of
course, when I read the job description,
my reaction was the exact opposite:
interesting investigations, challenging
legal issues and procedures, hard-fought
litigation, appellate advocacy before the
Minnesota Supreme Court, proactive
educational outreach, and the opportunity to be of service to a profession
that has served me extremely well. Our
reactions may tell you more about the
differences between myself and this family member than anything else, but I do
think they illustrate an important point
about practicing in the area of attorney
discipline—it is a difficult job that provides the right person the opportunity
for challenging, meaningful work that
truly makes a difference in the profession. Fortunately
for me, the Minnesota Supreme
Court appointed
me as director effective March 7,
2016, and I would
like to take this
opportunity to
introduce myself
is the director of the
to you.
Office of Lawyers
Professional Responsibility and Client
Securities Board.
She has more than
20 years of litigation
experience, as well
as a strong ethics
and compliance
background. Prior
to her appointment,
Susan worked inhouse at a publicly
traded company, and
in private practice as
a litigation attorney.
ment ethics exposure, and personnel
and office management experience. For
the last six and a half years, I worked
for a publicly traded company, with my
most recent position being vice‑president and assistant general counsel for
Alliant Techsystems Inc. (ATK) and its
publicly traded spin-off Vista Outdoor
Inc. At ATK, I was fortunate to lead
the legal, government contracting, and
trade compliance functions for a business unit that grew exponentially during
my tenure.
When I started at ATK in 2009, my
business unit was the smallest segment
in the company. When it was spun off,
the same unit had approximately $2.4
billion in annual sales, and had acquired
four companies in five years. As you
might expect, a growing business that
manufactures and sells ammunition,
firearms, and hunting and shooting
accessories demands a lot from its legal
and compliance team. In addition to
providing me with great experience in
a wide variety of legal areas, my years
at ATK taught me a lot about effective
program and process management.
Prior to joining ATK, I spent approximately 13 years at Leonard, Street
and Deinard (now Stinson Leonard
Street) as an associate, then partner, in
its litigation group. Most of that time
was spent in the firm’s product liability
department, defending manufacturers of
consumer goods and industrial products.
While at Leonard, Street, I volunteered
on the 4th District Ethics Committee,
a committee of the Hennepin County
Bar Association that investigates a large
My Background number of attorney discipline cases for
My backthe OLPR. The Minneapolis City Counground is varied; cil also appointed me to the Minneapolis
it includes inEthical Practices Board, a public board
house work,
that assists the city to implement its Ethprivate practice
ics in Government Code and investilitigation, a
gates complaints against city employees
clerkship, adjunct alleged to have violated the Code. I
teaching in
also taught legal research and writing at
legal writing and William Mitchell College of Law (now
research, attorney Mitchell Hamline School of Law). After
discipline work
law school at the University of Iowa
as part of the 4th College of Law and before starting work
District Ethics
at Leonard, Street, I had the great good
Committee, busi- fortune to clerk for U.S. District Court
ness and govern- Judge David S. Doty.
10 Bench&Bar of Minnesota s April 2016
My Perspective
Judge Doty taught me a number of
things during my clerkship, but two
things in particular have stayed with me
during the last 20 years of practice and I
believe they are particularly relevant to
my new position. The first relates to the
challenge of being a lawyer. After one
summary judgment argument during the
first year of my clerkship, Judge Doty
and I were walking from the courtroom
to chambers and I was complaining
about the quality of one of the attorney’s
substantive arguments. After all, I had
just gotten out of law school, thought
I knew a lot, and could not believe the
arguments being made. Judge Doty
stopped walking, looked at me, and
said, “You have no idea how hard it is
to practice law and actually represent
clients who have their own views.”
Of course I didn’t, and in my youthful
arrogance, I had not even appreciated
that fact. As I have practiced, and dealt
with any number of extremely difficult
situations and clients, those words keep
coming back to me. What we do is
often very hard. Most of our clients do
not want to have to deal with us; often,
something bad has happened, and we
have to do something about it, and to
add insult to the client’s injury, they
usually have to pay for that privilege.
I understand that, and from my initial
interactions with the attorneys in the
OLPR, they understand that too. There
really is a sense in the office of, “There
but by the grace of God go I.”
The second Judge Doty lesson relates
to decision-making and taking action.
When Judge Doty joined the bench,
Chief Judge Donald Alsop gave Judge
Doty a picture of General Omar Bradley,
with the following quote:
A second-best decision quickly
made and vigorously carried out is
better than the best decision too
late arrived at and half-heartedly
carried out. In everyday affairs,
as in battle, we are given one life
to live, and the decision is ours,
whether to wait for circumstances
to make up our mind—or to act,
and in acting, to live.
Judge Doty has given a copy of this
quote to all of his law clerks. At first, I
had a difficult time applying this quote
to clerking and the practice of law. The
concept of a “second-best” decision
did not make sense to me as a lawyer.
The issues are too important. I have to
be perfect. My work has to be perfect.
Today, however, this quote resonates
with me. It does not advocate getting
it wrong; nor does it advocate arbitrariness. Rather, it advocates timely decision
making and prompt execution. Too
often as we search for the “best” result,
we fail to appreciate the harm caused by
lack of timeliness itself.
Both lessons from Judge Doty have
served me well throughout my career
in private practice and in-house, and I
believe they will continue to serve me
well with regard to administration of the
disciplinary system.
One of the most valuable services the
office provides is the advisory opinion
service. Each year, thousands of attorneys call the office seeking guidance as
to how to prospectively and correctly
address particular ethics issues. Do not
guess, call and ask for guidance. Although in-house counsel conduct does
not generally give rise to complaints for
discipline, I know from firsthand experience that ethics issues for house counsel
can be just as fraught with challenge
as those found in private practice, and
I look forward to the opportunity to
expand the office’s education outreach
in that regard.
My Thanks
I am extremely honored to be
appointed to serve as the director of
the OLPR and CSB. I would like to
thank the justices of the Minnesota
Supreme Court for putting their faith
and trust in me, and, in particular,
My Approach
would like to acknowledge Chief Justice
The legal profession is a self-reguGildea, Justice Stras (the liaison justice
lating profession. As such, it must hold
for the OLPR and CSB) and Justice
itself accountable to ensure the protection of the public. The Minnesota Rules Anderson (who participated in each
one of my interviews). An engaged
of Professional Conduct establish the
and supportive Court is critical to
standard of conduct for lawyers, and
must be applied fairly and consistently to the success of the state’s disciplinary
system, and throughout the interview
the bar in order to preserve the public’s
process, the Court demonstrated its
respect and trust in the profession, as
well as the bar’s trust and confidence in strong commitment to and support for
the disciplinary system. It is the respon- the work of the office. I am also very
sibility of the Director’s Office to ensure excited to be working with the talented
and committed attorneys, paralegals,
that claims of unprofessional conduct
are investigated promptly and thorough- and staff here. The work is largely
ly, and that the discipline pursued, when thankless and very challenging, but it
is important, and even one week in (as
warranted, is in accord with positions
the Minnesota Supreme Court has taken I write this column), it is clear to me
in like matters, recognizing that all disci- that every member of the office is truly
committed to doing the right thing for
pline cases have unique facts.
I am committed to ensuring that the the good of the profession. Finally, I look
forward to working with the hundreds
office continues to discharge its invesof attorney and public volunteers that
tigatory and prosecutorial responsibilisupport the disciplinary system, from
ties promptly and fairly. Unfortunately,
the Lawyers Professional Responsibility
the Lawyers Professional Responsibility
Board and the Supreme Court, as well as Board and Client Security Board
to all of the members of the district
various members of the bar, have raised
ethics committees. Thank you for your
concerns regarding whether the office
is, in fact, promptly addressing claims
As my family’s initial reaction demgiven the number of matters pending
more than a year, and the length of time onstrates, lawyer discipline is not for
it has taken in certain instances to bring everyone, but it is important work that
must be done to protect the profession
a matter to conclusion. The concern
and the public. While I hope I do not
is well taken, and addressing it is the
run into you because you have a matter
number one priority of the office. All
with the office, I do hope we have the
parties, including the Director’s Office,
have an interest in ensuring the prompt opportunity to work together to ensure
that the attorney discipline process in
resolution of complaints.
Minnesota continues to be fair, just, and
Educational outreach is also a core
a credit to the profession. s
responsibility and priority of the office.
April 2016 s Bench&Bar of Minnesota 11
Through the generosity of the following donors, LRAP enabled more than
40 legal aid attorneys to serve more than 8,000 low-income clients.
Leadership Award Sponsors
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6th District Bar Association
Jon Theobald
8th District Bar Association
Terry Wade
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Xcel Energy’s Office of
General Counsel
Robins Kaplan LLP
Mitchell Hamline School of Law
University of Minnesota Law School
University of St. Thomas School of Law
12th District Bar Association
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Cooper and Barbara Ashley
Faegre Baker Daniels Foundation
Fredrikson & Byron, PA
Samuel Hanson
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1st District Bar Association
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Gray Plant Mooty Foundation
Maslon LLP
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Minnesota Chapter Federal
Bar Association
Ramsey County Bar Foundation
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Meet Claudia Revermann
‘I decide what I will focus on’
After working in other law firms for 11 years,
you chose to open a solo practice. What led
you to make that change?
Short answer is: I missed the law. For nearly nine years, I
was part of a firm that was transitioning and growing. During
that time, I had the privilege to partner with wonderful lawyers who shared their skills and expertise with me. I was able
to be a sponge and I learned a lot. Those partners encouraged
and allowed me to take a very active role in managing the
firm. While management was rewarding and challenging, it
was clear an imbalance had happened between my desire to
practice law and the work of running a successful business. I
missed focusing on client work. In going solo, I have found joy
in the autonomy and independence. I decide what I will focus
on and choose where I will invest my time and energy.
Have you encountered any surprises as you’ve
gotten your solo practice underway? Do you have
advice for an attorney opening a solo practice?
I opened my practice as a true solo. Just me. I had never
printed an envelope in my career, so I had to learn. I didn’t
appreciate all of those little things that I had taken for
granted. Six months into it, I hired someone and it’s been
such a relief having Barb as part of my team. She doesn’t
work for me; she works with me and is a great addition. My
advice is to surround yourself with cheerleaders and drivers.
I’ve been so fortunate to have great people whose advice and
encouragement are invaluable assets to my firm.
What resources are important to you as a solo attorney?
Other people are my most important resource. I have a
circle of attorney friends on whom I can call to ask substantive questions, to brainstorm, or to just vent. St. Cloud has
Tell us about your practice and how your background in accounting/tax influences your work.
a small enough legal community that it lends itself to a very
When our law school property professor warned us that
supportive environment. I have received, and still do, many
people who know numbers go to medical calls from fellow attorneys just reminding me that their phone
school, not law school, I smiled to
lines are open if I need anything.
myself. I have been able to structure
From a business perspective, I rely on online forums such
my practice around areas that
as the MSBA’s solo/small listserv, and a great network of other
help people understand the
business owners and consultants.
numbers, whether that is a
What activities do you enjoy away from work?
business owner’s financial
analysis, another attorney
Quality time with my family and friends molds my awaythat has hired me as a
from-work-activities. I’m pretty much up for anything that
financial expert, or a
could be a good time. We boat in the summer, I belong to a
pistol shooting league, I try to run a race or two a year, and I
client understanding
the tax effect of a
enjoy watching my children’s activities. Also, I would travel
transaction. My passion the world if I could do more of my work remotely and as a
is to educate people
“hobby” I plan trips that I never actually take. Someday I will.
with confidence and
You volunteer for the Wills for Heroes program.
Would you tell us more about the program and
what you do as a volunteer?
I’ve had great experiences being involved with the Wills
for Heroes program. At each clinic, an attorney and assistant
meet with the first responder and spouse and within an hour
they complete a will, power of attorney, and health care directive at no charge. The first responders are always so thankful
and it’s humbling to be able help in a meaningful way.
My husband is a police officer and gratefully we have
experienced first-hand the power of having community support
for these real life concerns. Sadly, my husband’s department experienced a line-of-duty death and that officer had had his will
prepared through the Wills for Heroes program. I personally
saw the calming effect this planning had on his family and I was
happy to have been a part of making that happen for them. s
CLAUDIA REVERMANN practices in the areas of trust and estate planning, taxation,
business law, and family law. She is also a certified public accountant. Prior to practicing
law, she worked in a large regional accounting firm, doing tax compliance and lending
litigation support to family law attorneys and their clients.
April 2016 s Bench&Bar of Minnesota 13
‘Justice is not simply a result’
An interview with the newest member of the
Minnesota Supreme Court, Justice Natalie Hudson
By Jon Schmidt
overnor Mark Dayton appointed Justice Natalie
Hudson to the Minnesota
Supreme Court on October 26, 2015. She had previously served for 13 years on the Minnesota Court of Appeals, to which she was
appointed by Governor Jesse Ventura in
2002. Justice Hudson started her legal
career as an attorney at the Southern
Minnesota Regional Legal Services, Inc.,
and later joined Robins, Kaplan, Miller
and Ciresi as an associate practicing in
employment law and civil litigation. She
was an assistant dean of student affairs
at Hamline University School of Law.
She was then appointed by Mayor James
Scheibel to serve as the Saint Paul city
attorney. Immediately prior to joining the
court of appeals, Justice Hudson worked
at the Minnesota Attorney General’s office, primarily in the Criminal Appellate
Justice Hudson brings a vast variety
of experience to the Supreme Court. She
is known as a smart, efficient, and pragmatic jurist, and, equally important, a
kind person to litigants, colleagues, law
clerks, and staff. I recently met with Justice Hudson to discuss the new job, her
old job, and the judiciary.
Jon Schmidt: How would you compare
the differences between the court of appeals
and Supreme Court?
Justice Natalie Hudson: The type of
cases the two courts hear is very similar,
with the notable exception of the cases
over which the Supreme Court has original jurisdiction: first-degree murder, tax
court appeals, workers compensation
court appeals, election disputes and attorney discipline matters.
The case load and pace are very
different. The Supreme Court generally
hears oral arguments during the first
two weeks of every month, typically
hearing two arguments each day or one
oral argument and one non-oral matter.
14 Bench&Bar of Minnesota s April 2016
“We are all products of our life experiences;
none of us comes to the practice of law or the bench a blank slate.”
In contrast, the court of appeals generally
hears oral arguments one day per week,
with four orals and two non-orals on
a given calendar. There is also one
calendar per month that is exclusively a
non-oral calendar. Both courts present
unique challenges. With respect to the
court of appeals, it is a high volume,
error-correcting court that handles a
wide range of cases of varying degrees of
complexity. Unquestionably, the sheer
volume of cases is the most daunting
aspect to the work of that court. To that
end, approximately 1,800-2,000 cases are
filed with the court of appeals each year,
and each judge typically authors 80-90
opinions per year­—all against a 90-day
statutory time limit for disposition in
each case.
With respect to the Supreme Court,
at first blush, two cases per setting may
not sound like much, but the reality is
much different than the perception. The
cases typically involve multiple, complex
legal issues, and the Court is often being
asked to either clarify the law, extend the
law, apply existing law to a new, often unforeseen scenario, or resolve a split within the lower courts. Many times, there
are significant policy issues at stake as
well. Briefing by the parties is extensive
and there are often several amicus briefs,
as well. The gravity of the issues and the
knowledge that the Court is the court of
last resort colors and influences each setting. Thus, it is two weeks of voluminous,
intense reading and analysis.
There are some differences in the conference dynamics. While there is a natural camaraderie amongst such a small
group, our conferences are more formal
than those at the court of appeals. Again
it is a function, at least in part, of being
the court of last resort and the gravity
of the issues. I enjoy the give and take
with my colleagues and the exploration
of each issue at great depth and from every conceivable angle. Of course, I come
to conference prepared to discuss and
analyze each case, but inevitably, I leave
with a deeper understanding of the legal
issues as a result of the input, probing and
questioning of my colleagues. Assumptions—the parties’ as well as our own—
are challenged and legal propositions are
carefully scrutinized. We don’t always
agree with one another, but the discussions are always collegial. Given that the
seven of us work together day in and day
out, the respect we accord one another is
critical to the proper functioning of the
court and the administration of justice.
During the second half of the month,
we have two settings of Special Term
where we consider petitions for review
and handle other administrative matters
that arise as part of the court’s obligation
to regulate the legal profession. Finally,
and probably less obvious to the casual
observer of the Supreme Court, are the
many statewide committee and liaison
assignments for which each justice is responsible.
Schmidt: How do you think your
professional and personal experiences have
shaped your view of justice?
Hudson: Of course, as a judge I am first
and foremost committed to and bound by
the rule of law. Thus, my task is to apply
the law to the facts before me. But judges
are also interpreters of the law and we are
tasked with applying the law evenly and
fairly to every party that appears in our
courts. We are aided greatly in these tasks
by ensuring that our decision-makers represent the broad spectrum of our community. We are all products of our life experiences; none of us comes to the practice
of law or the bench a blank slate. And it
is the diversity of our backgrounds that
brings a richness and depth to the decision-making process. Particularly on an
appellate court, where decision-making
is collaborative, that diversity of experience leads to a fuller debate and helps to
ensure that all perspectives are explored,
and that arguments and rationales are
filtered through many different lenses.
I was privileged to begin my practice
as a staff attorney at Southern Minnesota
Regional Legal Services. That experience
brought home the reality that there was,
and is, a persistent justice gap in Minnesota and this country. Approximately 26
percent of Minnesotans live at or below
200 percent of poverty – $47, 700 per
year for a family of four. In 2014, Civil
Legal Services could still only meet the
need of one out of every three eligible
clients. This is a fundamental access issue and as a profession, we must continuously fight the lull of indifference.
In addition, as an African-American
attorney, my personal and professional
experiences include having received
anonymous racist hate mail when I was
the St. Paul city attorney. And like many
women attorneys, I experienced my share
of slights and rejection as a practicing attorney simply because I was a woman.
One result of these experiences is the
realization that various forms of discrimination still exist, and that people of good
will must be ever-vigilant to ensure that
our justice system treats everyone in a
fair, respectful manner.
Schmidt: What does justice mean to you?
Hudson: I strongly believe that justice
is not simply a result; it is a process that
must embody both the perception and the
reality that all parties are treated fairly and
respectfully, as well. That means things as
simple as calling people by their proper
names and truly listening to each party’s
argument. Over the years, I have found
that even unsuccessful litigants are often
satisfied with the court system and the legal process if they feel they were “heard”
and that the judge seriously considered
their position. And thus, as judges, we
should never lose sight of the fact that
behind each legal issue we encounter are
real, human lives–lives that will be greatly
impacted by the decisions we make.
April 2016 s Bench&Bar of Minnesota 15
Schmidt: What are the most pressing
issues you see with the judiciary?
Hudson: The “silver tsunami” is having a significant impact on the state’s
judiciary, just as it is in other parts of
our society. Record numbers of judges
are retiring as they reach the mandatory
retirement age of 70. This presents challenges and opportunities. The challenge
is the loss of experience and institutional
knowledge that are so critical to addressing the complex issues brought into our
courtrooms each day. But this challenge
also affords the judiciary the opportunity
to welcome new talent to the bench—
judges who bring with them fresh ideas,
fresh perspectives and an eagerness to
tackle an ever-changing legal landscape.
In addition, advancing technology
will continue to be a challenge for the
judiciary. Technology will always outpace
the law, but we have made great strides
over the last few years to move the court
system from a paper-based institution to
one based on electronic case records. As
part of the broader eCourtMN initiative,
eFiling and eService of court documents
is now available in all 87 district courts,
as well as the state’s appellate courts. We
must continue these efforts in order to
better serve not only the public, but the
practicing bar, the law enforcement community, and other justice partners.
Schmidt: How do you think Minnesota’s
judiciary does with access to justice?
Hudson: Access to justice is a critical issue because it’s important that all
Minnesota citizens are able to have their
claims resolved in a fair and prompt
manner, regardless of their financial circumstances. Minnesota’s judiciary has
been deeply committed to this effort
for many years and while there’s always
more that can be done, Minnesotans can
be proud of the many programs already
in place that ensure access to our courts.
The most recent example is a new selfhelp clinic at the Minnesota State Law
Library in St. Paul that offers advice to
self-represented litigants on filing an appeal with the Minnesota Supreme Court
or the Minnesota Court of Appeals. On
the third Thursday of each month, volunteer attorneys are present to offer advice on court deadlines, what papers to
file, appellate briefs, and proper service
of parties, among other things. The pilot
clinic was started in January 2016 and is
staffed by volunteer attorneys from the
Minnesota State Bar Association Appellate Practice Section. This section has
16 Bench&Bar of Minnesota s April 2016
worked tirelessly over the last year with
our state law librarian to make this important project a reality. This new clinic
is in addition to the state-wide self-help
center and the self-help workstations in
each district courthouse. These efforts
are critical to ensuring that justice is accessible to all Minnesotans.
Schmidt: What has surprised you most
in your first few months on the Supreme
Hudson: I was surprised by the administrative work load. Each justice is
assigned as a liaison to several rules committees and/or task forces, in addition
to liaison assignments to the respective
judicial districts. These are important,
substantive assignments that are integral
to fulfilling the court’s responsibility to
oversee and regulate the legal profession.
Schmidt: Judge Myron Bright on the
8th Circuit loves the anecdote that the
trial attorneys and judges are in the war.
The appellate judges hide in the mountains
and come down after the battle is over to
shoot the survivors. Do you feel there is a
disconnect between the trial court battles,
procedures, keeping the dockets moving, etc.,
and the appellate courts?
Hudson: Judge Bright’s anecdote is
amusing and I must confess that I had
never heard it. We are blessed here
in Minnesota to have an outstanding
judiciary at every level. Our district
court judges work extremely hard and
deal with complex, often emotional
issues, in addition to high caseloads.
The day-to-day work they do is nothing
short of extraordinary. I can say without
qualification that there is a mutual
respect between our district court
judges and appellate judges. That said,
because the jobs of a district court judge
and an appellate judge are so different,
it is inevitable that there will be the
occasional “disconnect.” District court
judges are primarily focused on running
their courtrooms in a fair and efficient
manner and deciding the matter that
is immediately in front of them. In
contrast, appellate judges are more
focused on the applicable standard of
review and whether the record supports
the decisions of the fact-finder. In
addition, appellate judges, especially on
the Supreme Court, are also concerned
with what effect a particular ruling will
have on future cases, as well as how the
rules we announce will affect the district
courts and practicing attorneys who
actually have to implement them. These
are not mutually exclusive endeavors,
but they are different “lenses,” if you will.
In an ideal world, district court judges
and appellate court judges would periodically trade places for a month. For obvious reasons, that is not a realistic solution.
However, on occasion, some appellate
judges have “shadowed” a district court
judge for a period of time. I have done
that myself and found the experience to
be tremendously helpful in understanding the dynamics and stresses faced by
our district courts. Ultimately, the key is
to encourage the frank exchange of ideas
and to keep the lines of communication
open. In addition, as appellate judges we
must continue to think carefully about
our decisions in terms of the practical effects on the district courts and practicing
bar. An effective means of accomplishing
these goals is through continuing legal
education conferences like the Annual
Conference of Judges where we come
together as a judicial family for training
and the sharing of “best practices.” These
and other opportunities, such as service
on MSBA committees, allow us to bridge
the gaps and reinforce our common goal:
providing prompt, fair, accessible justice
to the people of Minnesota.
Schmidt: You are an extremely hard
worker. What do you do to turn your mind
off for a while?
Hudson: I enjoy spending time with
my family. I also enjoy listening to all
types of music – it’s a wonderful escape. I
love animals, and I enjoy going to the zoo
in the summer. I especially love dogs, although I don’t have one at the moment. I
am also a novice gardener. It can be hard
work, but I also find it relaxing and I love
the beautiful results of my efforts. s
shareholder at Briggs and
Morgan, P.A., where he
focuses on an appellate
practice, commercial and
transportation litigation.
Jon’s pro bono work
focuses on appeals from
the program he helped
establish between the Minnesota Appellate
Public Defender Office and the Appellate Section
of the Minnesota State Bar Association. Before
joining Briggs, Jon clerked at the Minnesota
Court of Appeals for Judge Natalie Hudson, and
the 8th Circuit Court of Appeals for Judge Myron
Bright. Jon lives in St. Paul with his wife (Judge
Sara R. Grewing) and their two kids.
Lake Law 101
Or: So You Want To Own a Cabin...
Owning a place ‘up north’ is the stuff of Minnesotans’ dreams. But along with the rustic
setting and the sun-dappled shoreline, there comes a thicket of laws, regulations and
potential boundary disputes that the wise would-be purchaser will get to know.
By David J. Meyers
Photo by Cameron Strathdee ©
t seems that owning a cabin in northern
Minnesota is every Minnesotan’s dream. The
lake, fishing, swimming and morning coffee on
the dock seem like Paradise.
What is not so picturesque is the work and
complications that come with owning a lake home.
Upkeep and maintenance, land use controls, even
the access road can shatter the dream. Understanding what you (or your clients) are getting into before
you buy a lake home may help you cope with the joys
and sometime-frustrations of owning a cabin.
First, as a disclaimer, my wife and her brother own
a 1920s-vintage log cabin (literally built from virgin,
white pine logs harvested onsite) in Cook County,
up the Gunflint Trail on a BWCAW entry lake. Depending upon traffic, it is usually a five to six hour
drive from St. Cloud. Once there, most summers
there is a ratio of about two to four hours of work
for every hour of relaxation. Still, it has been fun for
our family to own a lake place to go to whenever we
With this practical experience, and drawing from
my experience as a lawyer (second disclaimer: my
legal practice is primarily cleaning up real estate
messes), here are some things to consider before you
buy a lake home.
April 2016 s Bench&Bar of Minnesota 17
Land Use Rules
People who have grown up and live in an urban area
sometimes come to the north land and see only open spaces,
pine trees, and lakes. They forget that there are rules. In
most of northern Minnesota it is not legal to add a deck,
rebuild the dock, alter or cut shoreline vegetation, cut trees
to get a better view of the lake, excavate a path for a new
driveway or walking trail, or even remodel your cabin without first getting government approval. Sometimes approvals
are denied because what you intend to do is not allowed
under local ordinances.
Almost every county or township in outstate Minnesota
(it may not be politically correct to say “outstate,” but to say
Greater Minnesota suggests that the Twin Cities metro area
is somehow Lesser Minnesota) has some form of land use
ordinance.1 In addition, the Minnesota DNR has promulgated Shore Land Ordinances, which must be enforced by
every county.2
No matter how small your project, check with the county
or township—or, to be safe, both—to make sure that you are
authorized to do the work.
As a practice tip, put in writing to the Land Use Authority exactly what you intend to do, and have them give you
written permission. Once you get permission, do not deviate
from your plan unless you get additional, written approvals.
Counties and the Minnesota DNR will pursue violations.
You could end up paying a fine, replacing illegally cut trees,
even tearing down whatever it is you have illegally built.
Do not think that you are so far from town that no one
(meaning the County Land Use Control Office) will even
find out what you are doing, or that they may not care. Your
neighbors will know and report your work to the zoning office. The DNR has been known to fly over lakes and report
Any work on a lake home is going to require a quick
understanding of land use terms. Regulations may include
building setback (the distance from the lake or adjacent
property to your proposed building or improvement), impervious surface limitations (you are generally allowed to cover
only 25 percent of your lot), bluff impact zones, lot of record,
DNR lake classifications, ordinary high water mark (OHW)
and many more. All local ordinances must be understood
and respected.
Many counties interpret their rules differently from other
counties. Some counties, as an example, allow paver type
stones as impervious surface, while other counties have determined that they are not an impervious surface.
The Minnesota Construction Codes are not enforced
statewide, but they apply statewide.3 Many counties do not
enforce the Codes but require construction permits. Do not
start a project unless you are certain that you have all needed permits.
If your project is not allowed under the local land use
rules, there is usually a limited right to appeal the Zoning
Administration’s decision, or to apply for a variance from
the Board of Adjustment (BOA).4 But do not get your hopes
up. The BOA members can sometimes be understanding,
but more often they say no. The “practical difficulty” standard gives lots of discretion to the BOA. Whether or not the
BOA uses that discretion is a local matter.
Always ask for the variance before doing any work. If
you do something illegally, it will be discovered and you
will be called to account. After-the-fact variances are rare.
BOA members do not like to reward people who act first—
18 Bench&Bar of Minnesota s April 2016
particularly if the area code for your telephone number is
612. (You get my meaning.) The old developers’ adage that
“it is easier to ask forgiveness than permission” does not
work in most northern counties. If the BOA denies your
request, you may appeal the decision to the district court.
At the same time, if the board grants your request, the DNR
and others may have the right to appeal that decision to the
district court.5
Here is a little practical advice about suing the government on land use matters. First, most judges are not interested in getting involved in local land use problems. It is a rare
case when a judge will overrule a local planning decision.
And even then, the court may simply send the case back to
the BOA for reconsideration.
Second, when you sue the government, you are really suing the government’s insurance company. Cities, counties
and townships all have insurance that pays their legal fees
to protect them from land use challenges in court. To the
best of my knowledge, no government has ever “learned a
lesson” by being sued. Often, by the time the litigation is resolved, the city, town or county cannot really remember the
issue involved in the case. It costs the government almost
nothing for their insurance company to defend the lawsuit.
In the great majority of cases, suing the local government to
keep your new precious and wonderful lake view will cost
you money, you will likely lose and win or lose, and it will
hardly be noticed by the local government.
Road Access
That path that you drive on to get to your cabin may or
may not be a public road. Do not assume you have public
access unless the title records are clear.
Lake shore roads are sometimes trails that by use over
time have become semi-public. Sometimes roads are public,
meaning the public may travel over the road, but the road
is not maintained by the local government. You do not want
to start your vacation with a drive to your cabin, only to find
that the road has been blocked.
Even when you have a platted right of way or a town road
order, the actual road bed might be laid out and used in an
area outside the dedicated right of way. In times past, roads
in plats and town orders were sometimes laid out through
wetlands. The people who built the roads were not dumb.
They simply built the roadway around the wetland or used
an existing roadway without regard to the plat.
Sometimes you have an easement access across another’s
property to your land. The same caution applies. Make certain that the roadway, as driven, lies wholly within the written easement. The reverse can be a problem if your lot is
burdened by an easement. You may not be able to prevent
your neighbor’s kids from racing 4-wheelers or motorcycles
across your yard over their access easement.
If you end up with a property that has an access dispute,
you may have to quickly become acquainted with cartways,6
public roads by use and maintenance,7 common law dedicated roadways8 or easement by prescription.9
Even when you have a public road, it may not be maintained at the level that you expect. Keep in mind that the
county and the townships have limited budgets and a great
deal of discretion on road maintenance, including snowplowing. While you own a cabin and pay taxes, you are not
a voter. Your road may or may not be a priority. In short, you
and your neighbors may have to fix your own potholes and
plow your own snow.
Septic System and Well
People who have lived their entire life in the city with a
municipal sanitary sewer need to get acquainted with a Private Sewage Treatment System (septic system).10 The first
thing to understand is that there are two types of septic systems in Minnesota: septic systems that have failed and septic
systems that are going to fail. When they fail, replacing the
system can be expensive and complex. If you own a small
lake lot, you may not have room to replace the system and
your options may be very limited.
Replacing a septic system means you have a 50-foot setback from all adjacent wells (even your neighbors’ well), a
setback from the lake and often from the lot boundary.11 If
you are buying a cabin, make certain that the septic system
works. Have it tested (usually required on all title transfers),
find out its age and determine when (not if) it will need to
be replaced. Also make certain that you have an alternative
septic location on your lot.
Finding well water on a lake lot should not be a problem.
Quality could be a problem. Have the well water checked
before you buy your cabin. Old septic systems in the vicinity of your well, adjacent farming, and other human activity may deteriorate the quality of your well water. Drilling
a second well is expensive, and you have to meet the same
setback requirements from adjacent septic systems. If you
need a new well, try to drill it at least 50 feet from a future
septic system site.
Boundary Survey
Surveys start with the location of government corners set
by the original government surveyors in the mid to late 1800s.
The land in northern Minnesota was rough and difficult for
government surveyors. It has been my experience that even
taking into account the tools, technology and level of education available to the surveyors in the late 1800s, much of
their work in northern Minnesota leaves a lot to be desired.12
Land along lakes was divided into government lots. This
meant that land was not large enough for a full quarter section
(about 40 acres). Instead of being surveyed, government lots
were usually divided out by calculation and sold by quantity
of acres. (The original value of northern Minnesota lakeshore
land was in selling the timber, not 21st Century lake lots.)
It is very difficult today to resurvey a government lot on
a lake. Almost every surveyor ends up with a boundary different from the prior survey. If you or your neighbor decides
to survey your parcel of land within the government lot, you
are probably going to end up with a boundary problem.
Plats are not immune from survey problems. Older plats,
particularly those over 20 years old, were often laid out for
small, seasonal cabins. They were not meant for the larger McMansion, year-round homes that we all want today.
Sometimes the surveyor who laid out the plat sat in his office
and drew it up. He simply calculated (meaning guessed) the
area and boundaries, and laid out the lots without actually
surveying the property. Often the lot sizes shown on the plat
do not fit the land on the ground.
I am hesitant to recommend that you not survey the
property you intend to buy, but you should be aware that if
you survey it and if the survey is done properly, you may end
up with a boundary problem. Even then, your survey may be
no better than the prior survey. The only permanent solution I know of is to register title under Minnesota Statues
Chapter 508 and set judicial landmarks at the corners under
Minnesota Statutes Section 559.25.
Inheriting the Family Cabin
It might be that mom and dad have had a family cabin
for many years and now wish to pass it on to you and your
siblings. Good idea in principle, but fraught with problems in
practice. When mom and dad owned the cabin, they probably took care of the maintenance and paid the taxes, insurance, utilities and other bills. Family members could use it
and life was good.
When the cabin passes on, suddenly you have siblings
who live in different parts of the world, with different incomes, and with different expectations of the use, decoration and maintenance of the cabin. Someone may decide
that they do not want the cabin and demand to be bought
out at fair market value. In far too many cases, mom and dad
never anticipated these problems and it is left to the kids to
work it out.
If you inherit a lake property, it is a good idea to decide
early on who is responsible for maintenance, how expenses
will be paid, who gets to use it and when, and what happens
if somebody wants to sell. Some families have the cabin put
into a trust, some form an LLC, a partnership or other entity. All of this sounds good, but you still need cooperation.
I hope that your family does not need to become acquainted
with a partition action.13
There is no simple solution to joint family ownership.
Cooperation and communication is best. Even then, life
changes. What might have worked for the first 10 years of
ownership may not work for the future.
While there is much joy in owning a lake property, sometimes difficult, practical legal issues can arise. It is great to
have a place to go and get away, with your family, to create
memories. Just keep in mind that it is not all fun. s
See Minn. Stat. Sec. 394.21 et. seq. for County Land
Use Rules and Minn. Stat. Sec. 462.351 et. seq. for
Township and City Land Use Rules.
Minn. Rules 6120.3300.
Minn. Stat. Sec. 326B.121.
Minn. Stat. Sec. 394.27.
Minn. Stat. Sec. 394.27 Subd. 9.
Minn. Stat. Sec. 164.08.
Minn. Stat. Sec. 160.05.
Sackett v. Storm, 480 NW 2d 377 (Minn. App. 1992).
Rogers v. Moore, 603 NW 2d 650 (Minn. 1999); Minn.
Stat. Sec. 541.02
Minn. Rule 7080.1050, et. seq.
Minn. Rule 4725.4450.
See, as example: Ruikkie v. Nall 798 NW 2d 806
(Minn. App. 2011).
Minn. Stat. Sec. 558.01 et. seq.
DAVID J. MEYERS is a shareholder
with Rinke Noonan, St. Cloud.
He is a Real Property Specialist,
and serves as Examiner of Titles
for 5 Minnesota Counties.
[email protected]
April 2016 s Bench&Bar of Minnesota 19
A Jounce, A Pat,
A Plop, A Plunk
Minnesota’s Broad New Assault Crime
A pair of Minnesota court decisions have upended traditional
definitions of what constitutes assault
Alice in Wonderland by Sir John Tenniel
Andrew Howe ©
20 Bench&Bar of Minnesota s April 2016
First came State v. Fleck, a 2012 Minnesota Supreme Court decision that
significantly dissociated two types of assault crimes—assault-fear and assault-harm.
Then, this year, an appellate court further hairied matters with its decision in
State v. Dorn, churning up more questions for courts or the Legislature to resolve.
By Adam T. Johnson
n 2012, I wrote an article for Challenger magazine warning of the
undesirable consequences likely
to stem from the Minnesota Supreme Court’s decision in State v.
Fleck.1 Fleck was a decision that significantly dissociated the two types of assault
crimes—assault-fear and assault-harm—
by holding that the latter does not require proof of a specific intent to cause a
result (harm). This was a significant departure from precedent (a departure the
court admitted to expressly) because the
post-Fleck assault-harm statute could be
read to penalize any physical conduct of
a volitional nature that resulted in bodily
harm to another.
Since the decision in Fleck, it was only
a matter of time before a Fleck­-citing appellate court would hurl the state of the
law further into the depths. That decision—State v. Dorn—was handed down
this February.2 Before discussing the more
recent case of Dorn, it is first necessary
to describe the laws on “assault” and
“intent” and develop an understanding
of how they came together in the Fleck
case. Following that, attention will be
given to the Dorn decision to illustrate
the complications generated when Fleck
was laid bare.
There are many types of assault crimes
in Minnesota: a thrown wine glass that
does or does not make contact with an
in-law, a punch in a tavern over a disputed turn at Buck Hunter, a husband (and
writer of articles) kicked down stairs, a
besotted neighbor threatening powder
and shot over dandelion immigration, a
bite on a bus, a slap in a taxi, a pinch in
a parlor, &c. Doctrinally, there are two
basic forms of assault: assault that causes
fear in another person and assault that
causes harm to another person. A person
commits “assault-fear” through “an act
done with intent to cause fear in another
of immediate bodily harm or death.”3 A
person commits “assault-harm” through
“the intentional infliction of... bodily
harm upon another.”4 Note that both
types of assault contain an element of intent stated similarly (assault-fear: “with
intent”; assault-harm: “intentional”).
While there are many kinds of intent—manifest intent, testamentary intent, transferred intent, original intent,
&c.—I am concerned for the nonce with
“specific intent” and “general intent”: the
quality of the mental states attendant on
a range of criminal offenses. In criminal
law, “intent” generally describes a conscious effort to bring about a certain result.5 In Minnesota, when criminal intent
is an element of a crime, “such intent is
indicated by the term ‘intentionally,’ the
phrase ‘with intent to,’ the phrase ‘with
intent that,’ or some form of the verbs
‘know’ or ‘believe.’”6 “Intentionally”
means “that the actor either has a purpose
to do the thing or cause the result specified or believes that the act performed
by the actor, if successful, will cause that
result.”7 “With intent to” or “with intent
that” “means that the actor either has a
purpose to do the thing or cause the result specified or believes that the act, if
successful, will cause that result.”8
“Specific-intent” means that the defendant acted with the intent to produce
a specific result, whereas “general-intent”
means only that the defendant engaged
in prohibited conduct.9 According to
Professor LaFave, general-intent requires only an “intention to make the
bodily movement which constitutes
the act which the crime requires.”10 In
other words, a general-intent crime only
requires proof that “the defendant intended to do the physical act forbidden,
without proof that he meant to or knew
that he would violate the law or cause a
particular result.”11
Contrast that with a specific-intent
crime, which requires the “intent to
cause a particular result.”12 Unlike a general-intent crime, a specific-intent crime
includes “a special mental element which
is required above and beyond any mental
state required with respect to the actus
reus of the crime.”13
State v. Fleck
At approximately 1:00 a.m. on January 23, 2009, K.W. returned to a home
she shared with Ronald Gene Fleck
and found Fleck in the kitchen, deep
in liquor. According to K.W., Fleck had
been on a two-week drunk without cessation. As she repaired to the bathroom,
K.W. heard her name called, and turned
around to discover Fleck standing near
her with a butcher’s knife. Fleck then
stabbed K.W. once near her shoulder via
an overhand motion. K.W. locked herself
in the bathroom and called 911. Meanwhile, Fleck called his brother and sisterin-law, informed them of the stabbing,
and conveyed designs on his own life.
Upon the arrival of officers, Fleck was
uncooperative and belligerent (in other
words, there was not tea set out). A subsequent chemical test revealed a bloodalcohol concentration of 0.315. Fleck
was charged with two counts of seconddegree assault with a dangerous weapon
(one count for assault-fear and one count
for assault-harm). Before trial, Fleck gave
notice that he would rely on voluntary
intoxication as a defense, and specifically
requested an instruction to that end (it
should be noted that the voluntary intoxication defense is only available to
defend against specific-intent crimes, not
general-intent crimes). The district court
instructed the jury that voluntary intoxication applied to the assault-fear offense,
but not the assault-harm offense. The
jury found Fleck guilty of second degree
assault-harm and not guilty of second degree assault-fear.
April 2016 s Bench&Bar of Minnesota 21
A unanimous panel at the court of
appeals reversed Fleck’s conviction and
remanded for a new trial, finding that
Fleck was prejudiced by the district
court’s refusal to provide a voluntary
intoxication instruction for the crime
of assault-harm.14 The court of appeals
specifically held that assault-harm was
a specific-intent crime.15 On review, the
Minnesota Supreme Court reversed the
court of appeals and reinstated Fleck’s
conviction. In so doing, the court held
for the first time that assault-harm is a
general-intent crime.16
The holding in Fleck was centered
on the Legislature’s particular choices
in words, viz. the purported difference
between “with intent to” and “intentional.” After a painful semantic adventure
and by an overt abandonment of precedent, the court ultimately concluded
that “with intent to” and “intentional”
mean two very different things. Whereas
assault-fear would still require that the
defendant had a specific intent to cause
fear, the state would no longer be obliged
to prove that the defendant had a specific
intent to cause harm in an assault-harm
case. Instead, said the court, in an assault-harm case, the “forbidden conduct
is a physical act, which results in bodily
harm upon another. Although the definition of assault-harm requires the State to
prove that the defendant intended to do
the physical act, nothing in the definition
requires proof that the defendant meant
to violate the law or cause a particular
Post-Fleck (and before Dorn, below),
all that was required to satisfy the state’s
burden in proving an assault-harm case
was evidence of a generally intended
physical act resulting in bodily harm upon
another without any proof that a defendant “meant to violate the law or [even]
cause a particular result.”18 The holding
brought a broad swath of non-criminal
conduct within the tent of assault-harm
liability. Apart from prosecutorial discretion and vague pleas to judges “in the
interests of justice,” there was nothing
in the law after Fleck to prevent an assault-harm charge against the thrower of
a football who missed his friend’s hands
and struck a passerby who suffered harm.
Or take the example of Mses. Gaïtas and
[A]ssume a defendant is walking
through a crowded shopping mall
and trying to pass a slower customer. The defendant pushes past
the slower customer, who is caught
off-balance and falls, breaking his
or her leg. Had the customer not
fallen, the defendant’s conduct
would have been lawful. But pursu22 Bench&Bar of Minnesota s April 2016
ant to Fleck, the defendant committed assault-harm; depending on
the amount of harm the customer
suffered, the defendant could
be charged with first-, third-, or
fifth-degree assault. It is irrelevant
whether the defendant intended to
cause injury to the other customer;
it may even be irrelevant whether
the defendant intended to push the
other customer, so long as the defendant was walking past the customer of his or her own volition.19
After a painful semantic
adventure and by an overt
abandonment of precedent,
the court ultimately
concluded that “with intent
to” and “intentional” mean
two very different things.
These examples highlight the unsavory fallout emanating from the erasure
of the specific-intent element from the
assault-harm crime. In Dorn, the court
of appeals recently doubled down on
the basic reasoning in Fleck. But the
court then went further by imposing an
altogether new element on the crime of
assault-harm, leaving the smog surrounding the statute to grow as it goes.
State v. Dorn
The scene is an outdoor drinking
party. The time is 1:30 a.m. Every lawyer
worth her salt knows that violence and
calamity are imminent perforce. At such
a place and at such a time, Alie Christine Dorn was disporting among friends
at a bonfire near Thief River Falls. A man
unknown to her joked with a friend that
Dorn looked like a drug dealer. Dorn—
who appeared intoxicated—overheard
the man and said “What?,” and then
pushed him with two hands. The man
lost his balance and Dorn again pushed
the man with two hands. The second
push caused the man to fall backwards
into a fire, where he remained for several
seconds before a witness pulled him out.
The man sustained third-degree burns,
which required skin grafting surgery on
his arm and hand.
Dorn’s case was tried to a judge of
the district court, who, for her part, convicted Dorn. Notably, the district court’s
findings included that Dorn “did not intentionally push [the complainant] into
the fire, but she did intentionally push
[him] two times, which resulted in him
falling into the embers and causing significant burns.”20 Citing Fleck, the district court stated that “[a]lthough the
Defendant contends that she did not intend to push [him] into the fire, that is not
the standard that the State must meet in
this case.”21 Dorn was adjudicated guilty
and sentenced to a stayed sentence of
98 months—a downward dispositional
On appeal, Dorn argued that because
the statutory definition of assault-harm
prohibits an act that inflicts bodily harm,
the state was required to prove beyond
a reasonable doubt that she intended to
“do the prohibited physical act,” which
is to inflict bodily harm. That seems reasonable, doesn’t it? Rejecting this argument, the court of appeals echoed the
Fleck court’s holding that nothing in the
assault-harm statute “requires proof that
the defendant meant to violate the law
or cause a particular result.”22 Anticipating this reasoning, Dorn argued that
“if a conviction based on assault-harm
requires only that a defendant commits
an intentional act, assault is, in effect, a
strict-liability offense, which is disfavored
in the law.”23 Responding to this challenge, the court of appeals significantly
redefined the offense of assault-harm.
The following is from the court of appeals’ decision:
[C]ontrary to Dorn’s argument,
the supreme court has indicated
that some form of mens rea—the
intent to commit a battery—is required for a conviction of assaultharm, even though it is a generalintent offense.
Of noteworthy significance to the
facts and arguments in this appeal,
a battery is defined as
[T]he actual application of
force to the body of the prosecutor.... [T]he slightest degree
of force is sufficient, provided
that it be applied in a hostile
manner; as by pushing a man
or spitting in his face. Touching
a man to attract his attention
to some particular matter, or a
friendly slap on the back is not
a battery, owing to the lack of
hostile intention.24
Dorn was correct to observe that after
Fleck, assault-harm was indeed a strictliability offense. Were it otherwise, the
court of appeals would not have been
required to respond by reading a “hostileintention” element into the statute.
But that is what the court of appeals
did. So instead of the bare “volitional
act” sanctioned by Fleck, what is now
required to prove an assault-harm crime
is a “volitional act in a hostile manner”
(Fleck + Dorn).
After Dorn, the state must
now prove an “intent to
commit a battery” in an
assault-harm case. This
imposes a duty on a factfinder to ferret out a “hostile
intention” mental state.
Given the holding and the manner by
which it was arrived at, it is arguable that
the court of appeals inadvertently wrote
a novel and heightened intent element
into the crime of assault-harm. After
Dorn, the state must now prove an “intent
to commit a battery” in an assault-harm
case. This imposes a duty on a fact-finder
to ferret out a “hostile intention” mental
state. A “[b]attery is an intentional, unpermitted offensive contact with another.
Its two operative elements are intent and
offensive contact.”25 The civil jury instruction on battery requires proof that a
defendant “intentionally caused harmful
or offensive contact” with the plaintiff.26
This is a more scrutinizing inquiry of a
person’s mental state than that called for
under Fleck. Remember that under the
criminal statute, “intentionally” means
“that the actor either has a purpose to
do the thing or cause the result specified
or believes that the act performed by the
actor, if successful, will cause that result.”
And recall that under Fleck the forbidden
conduct is a physical act, which results
in bodily harm upon another: Nothing
in the assault-harm definition required
proof that the defendant meant to violate the law or a cause a particular result.
After Dorn, courts and juries must now
decide whether a defendant’s volitional
act was committed in a “hostile manner” or with “hostile intent”—wording
that surely invokes a heightened intent
beyond mere general-intent. This is
preferable, of course, to the open-ended
free-for-all left by Fleck. After Dorn, factfinders must at least identify some indicia
of intent greater than that necessary to
accomplish a bare-bones volitional act.
But it raises some questions too.
In the wake of Dorn, will district courts
now be under an obligation to include the
definition of a “battery” when instructing
juries in assault-harm cases? Has “hostile
intent” merely replaced “specific-intent”
and if so, what does that mean? In light
of Dorn, is voluntary intoxication again
a defense to an assault-harm crime? Are
courts destined to wrestle ad nauseam
with varying shades of hostile intentions?
Surely the hapless defendant pushing his
way past the slower customer has colorably hostile intentions, no? Nobody
would call his intentions angelic, after all.
The law has long recognized the wisdom in punishing persons who intend
to cause horrible and devastating consequences and who then occasion such
consequences through knowing and
intentional conduct. This is why intentional murder is punished more severely
than unintentional murder: The malignant heart should be punished greater
than its guiltless counterpart. In the case
of Alie Dorn, the finder of fact expressly
found that Dorn “did not intentionally push the complainant into the fire.”
And yet the intentional push by Dorn,
alone, was enough to tie her legally to
all subsequent aftereffects within the
causal chain. In the eyes of the law, she
was no less responsible than the person
with the depraved intention of pushing
someone into a fire with the design that
they land there and suffer atop the embers. This is the troubling nature of the
assault-harm crime without a specific-intent element. Of course, the Minnesota
Supreme Court could take up the Dorn
case and reverse course. The Legislature
is also free to take up the issue and make
clear that assault-harm requires specificintent. Either would be preferable to the
continuing uncertainty imposed by a
general-intent assault-harm crime. s
Adam T. Johnson, Intent in Assault Crimes: State v. Fleck and a
Distinction Reached Accidentally
on Purpose, MACDL Challenger
(2012); State v. Fleck, 810 N.W.2d
303 (Minn.2012).
State v. Dorn, No.–N.W.2d. –, A150007 (Minn.App. Feb. 16, 2016).
Minn. Stat. §609.02, Subd. 10(1).
Minn. Stat. §609.02, Subd. 10(2).
“Bodily harm” means “physical pain or injury, illness, or any
impairment of physical condition.”
Minn. Stat. § 609.02, Subd. 7.
9 Minn. Prac., Criminal Law &
Procedure §442 (3d ed.).
Minn. Stat. § 609.02, Subd. 9(1).
Minn. Stat. § 609.02, Subd. 9(3).
Minn. Stat. § 609.02, Subd. 9(4).
State v. Vance, 734 N.W.2d 650
1 Wayne R. LaFave, Substantive Criminal Law § 5.2(e) (2d
9 Henry W. McCarr & Jack S.
Nordby, Minnesota Practice–Criminal Law and Procedure § 44.3 (3d
ed. 2001).
LaFave, supra, § 5.2(e).
State v. Fleck, 797 N.W.2d 733,
738 (Minn.App.2011).
Fleck, 810 N.W.2d at 303.
Id. at 309.
Id. (emphasis added).
Theodora Gaïtas and Emily Polachek, State v. Fleck: The Intentional Infliction of General Intent
upon Minnesota’s Assault Statutes,
39 Wm. Mitchell Law Rev. 1480,
1496 (2013).
Dorn, slip op. at 3.
Dorn, slip op. at 3 (emphasis in
Dorn, slip op. at 5 (citing Fleck,
797 N.W.2d at 309).
Dorn, slip op. at 6.
Dorn, slip op. at 7.
Johnson v. Morris, 453 N.W.2d 31,
40 (Minn.1990).
4A Minn. Prac., Jury Instr.
Guides–Civil CIVJIG 60.25
(6th ed.).
attorney at Meshbesher
& Associates in
Minneapolis. He practices
in the areas of criminal
defense and civil rights. ADAM@
April 2016 s Bench&Bar of Minnesota 23
Thank you to the attorneys & judges who volunteered
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Congratulations to the
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Nova Classical Academy will represent Minnesota at the 2016 National High
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Celebrating 30 Years
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The Latest Minnesota/
Wisconsin Border Battle
Wisconsin decision puts the states
at odds over non-compete provisions
in employment agreements.
By Ansis V. Viksnins
Illustration ©
Thanks to a recent Wisconsin Supreme Court decision, the law in Minnesota and its
neighboring state now differs on the key, threshold issue of whether continuation of
existing employment supports a non-compete agreement. Minnesota employers may want
to rethink choice of law provisions in employment agreements if there is a legitimate issue
about whether Minnesota or Wisconsin law applies.
hen you think of Minnesota/Wisconsin border battles, you probably think of Vikings
vs. Packers, Gophers
vs. Badgers, or Twins vs. Brewers. Recent
developments in Wisconsin employment
law present a new battleground: the circumstances under which non-compete
agreements are enforceable.
Minnesota courts have for many years
held that the continuation of employment by itself does not provide consideration for a restrictive covenant. Unlike
the promise of new employment to a job
applicant, merely continuing a current
employee’s employment does not support a covenant not to compete. The
employer must offer something else of
26 Bench&Bar of Minnesota s April 2016
real value in exchange for the covenant.
This black-letter law in Minnesota guides
Minnesota employers when they seek to
enter into enforceable post-employment
restrictions with their employees.
A recent Wisconsin Supreme Court
decision takes exactly the opposite view,
explicitly rejects the Minnesota approach, and holds that the continuation
of at-will employment is, in itself, lawful
consideration for a non-compete agreement. Accordingly, employers operating
under Wisconsin law may now enter into
enforceable non-compete agreements
with their existing employees, even without providing any payment, job advancement, training, or other benefit.
In addition to the Wisconsin Supreme
Court decision, the Wisconsin Legis-
lature has considered proposed legislation that would establish presumptions
in favor of non-compete agreements,
eliminate various defenses against enforcement, and otherwise make it easier
for employers to obtain injunctive relief
upon breach of a non-compete agreement. If enacted, these changes would
dramatically alter the legal landscape for
employers who have operations or employees in Wisconsin. Minnesota, generally considered a favorable venue for
non-compete enforcement, and Wisconsin, historically seen as much more hostile to non-competes, would switch roles.
Minnesota employers should be aware of
these developments in our neighboring
state and may want to reevaluate their
strategies for non-compete enforcement.
The Runzheimer Decision
David Friedlen had worked for Runzheimer International for more than 15
years without signing any restrictive covenants. In 2009, as part of a corporate
initiative, Runzheimer required all employees to sign an agreement containing
provisions against the disclosure of confidential information, solicitation of customers, or provision of competing services
after their employment with Runzheimer
ended for any reason. Friedlen had two
weeks to consider the agreement; Runzheimer told Friedlen that he would be
fired if he did not sign. Friedlen eventually signed and worked for 29 additional
months before Runzheimer involuntarily
ended his employment. Friedlen then obtained a job with a competitor and Runzheimer sued to enforce the non-compete. The trial court granted summary
judgment in favor of Friedlen, concluding that the non-compete was invalid for
lack of consideration because Friedlen
did not receive anything of value when
he signed the restrictive covenant during
his employment.
The Wisconsin Court of Appeals certified to the Wisconsin Supreme Court
the unresolved question under Wisconsin law of whether an employer’s forbearance of its right to terminate an existing
at-will employee in exchange for the employee agreeing to a restrictive covenant
constituted lawful consideration.
The Wisconsin Supreme Court reversed the trial court and ruled in favor
of Runzheimer.1 The Court surveyed cases from across the nation, including the
Minnesota Supreme Court’s frequently
cited decision in Freeman v. Duluth Clinic, 334 N.W.2d 626, 630 (Minn. 1983)
(restrictive covenants signed after the
commencement of employment must be
supported by “substantial economic and
professional benefits… that would not
have been open to [the employee] had
he refused to sign the covenant”), and
concluded that Minnesota and other jurisdictions that do not recognize continued employment as lawful consideration
are in the “distinct minority.”2 The Court
ruled that Runzheimer’s promise not to
fire Friedlen immediately for failure or
refusal to sign a non-compete was forbearance of the employer’s right to terminate and therefore lawful consideration:
“Runzheimer’s promise was that it would
not fire Friedlen at that time and for that
reason. Thus, Runzheimer performed immediately when it forbore its legal right
to fire Friedlen at that time.”3
The fact that Runzheimer did not
promise to employ Friedlen for a particular length of time did not matter because, according to the Court’s majority
opinion, the law only concerns itself with
the existence—not the adequacy—of
consideration.4 Friedlen had argued that
the employer’s forbearance from firing an
employee was illusory and not really consideration because the employer could
fire the employee shortly after signing.
The Court minimized this concern, commenting that employees were adequately
protected from immediate termination by
existing principles of fraud in the inducement of contracts and the covenant of
good faith and fair dealing.5 The Court’s
opinion was authored by Justice Prosser,
formerly the Republican Speaker of the
Wisconsin Assembly and the subject of a
hotly contested judicial election in 2011
that became a proxy for those supporting
and opposing Gov. Scott Walker.
Chief Justice Abrahamson (a member
of the Court’s liberal wing who has vehemently disagreed with Justice Prosser and
the Court’s conservative wing on many
issues)6 filed a concurring opinion, stating her understanding that the majority opinion found lawful consideration
because Runzheimer agreed to forbear
from firing Friedlen “for a reasonable
time.”7 According to Chief Justice Abrahamson, the majority opinion in effect
transformed an at-will relationship into
an employment contract for a reasonable
duration and employing Friedlen for 29
months after he signed the covenant provided the consideration. The Court’s opinion in Runzheimer
takes an entirely different view than the
approach used in Minnesota to determine
consideration for restrictive covenants.
Minnesota courts have repeatedly held
that a current employee lacks bargaining power when presented with a noncompete agreement and told to sign it or
face termination. Under Minnesota law,
a current employee must receive “real
benefits” for signing a covenant after employment has begun.8 The benefits must
be directly attributable to the signing of
the restrictive covenant.9 The employer’s
forbearance in not terminating the employee immediately for refusing to sign
the covenant is not recognized as lawful
consideration. As a result, Minnesota
employers generally seek to obtain restrictive covenants with current employees
by offering additional compensation or
benefits, specialized training or increased
advancement opportunities, or access to
confidential business information.
Legislative Proposals
While the Wisconsin Supreme Court
was deciding Runzheimer, the Wisconsin
state Senate was considering a bill that
would dramatically broaden the circumstances of non-compete enforcement in
Wisconsin. Among other things, the proposed legislation would do the following:
n Repeal Wisconsin’s statute governing enforceability of restrictive
covenants, Wis. Stat. §103.465, including the current provision that
an unreasonable restraint is illegal,
void, and unenforceable even as
to so much of the covenant that
would be a reasonable restraint.10
n Identify a broad range of protectable business interests that
would support the use of restrictive
covenants, not only an employer’s
established relationships with current customers but also “prospective customers.”
n Create a rebuttable presumption
that non-compete restrictions of
six months or less are reasonable
(and restraints longer than two
years are unreasonable).
n Forbid Wisconsin courts from
considering the “individualized
economic or other hardship” upon
the person against whom enforcement is sought unless there are “exceptional personal circumstances.”
n Prohibit use of statutory construction tools to interpret covenants narrowly.11
According to the bill’s proponents,
the proposed changes would make Wisconsin more business friendly and competitive.12 Sponsors of the bill have stated
one of its purposes is to attract national
companies from neighboring states where
non-compete enforcement may be less
predictable. The proposed law has strong
and vocal supporters and opponents. The
bill did not make its way out of committees in the 2015 Legislature, but may be
revisited in 2016.13
Consequences for Minnesota
Minnesota employers should be aware
of what is happening next door and how
judicial and legislative changes in Wisconsin may affect Minnesota employers.
The law in Minnesota and Wisconsin on
the key, threshold issue of whether continuation of existing employment supports a non-compete agreement is now in
conflict. To the extent that recent legislative proposals may predict future trends,
Wisconsin may become a more favorable
venue than Minnesota for enforcing restrictive covenants.
Minnesota employers may want to rethink choice of law provisions in employment agreements if there is a legitimate issue about whether Minnesota or Wisconsin
law applies. Both Minnesota and Wisconsin courts generally recognize a contract’s
stated choice of law provisions, so long
as application of non-forum law would
not violate fundamental public policy.14
April 2016 s Bench&Bar of Minnesota 27
If a Minnesota-based employer has employees who live or work in Wisconsin,
there may be grounds for selecting Wisconsin as the law governing an employment agreement with restrictive covenants.
It may also be time for Minnesota
litigants to revisit the issue of whether
employment for a “reasonable duration”
as suggested in the Wisconsin concurring
opinion—may be enough to support a
non-compete without trying to condition
the non-compete explicitly on a raise,
promotion, or access to confidential information. In actuality, continued employment for a substantial period of time
often does provide employees with additional compensation, responsibilities, and
insights into the company. Some Minnesota cases have found consideration for
restrictive covenants signed by existing
employees if they received additional
income and experience after signing a
covenant, even without clear evidence
that these benefits were directly in exchange for signing the agreement.15 Although courts would inevitably need to
draw a line somewhere between employment that continues for a “reasonable
duration” and short term employment
that does not provide sufficient value or
consideration, the approach taken by the
concurring opinion in Runzheimer may
provide Minnesota employers an argument in favor of enforceability in cases
where the employer provided real benefits during continued employment but
did not expressly condition receipt of
such benefits upon signing the covenant.
Non-compete agreements implicate
important public policies: employers’
interests in protecting business relationships and information, employees’ interests in mobility and advancement, and
the community’s interests in fostering
free markets and innovation while also
providing predictability and stability. The
differing approaches taken by Minnesota
and Wisconsin on the key issue of consideration reflect the ongoing tensions
between these underlying and often conflicting policies. s
a partner at Lindquist
& Vennum LLP in
Minneapolis, where he
practices primarily in the
areas of employment law
and litigation.
Runzheimer International, Ltd. v.
Friedlen, 362 Wis.2d 100, 862
N.W.2d 879 (2015).
862 N.W.2d at 888.
862 N.W.2d at 890 (emphasis in
the original).
862 N.W.2d at 891.
The Court’s opinion in Runzheimer was issued on 4/30/2015
and identifies the author of the
concurring opinion as “Chief
Justice” Abrahamson. One day
earlier, after voters approved
an amendment to the state
constitution that allowed the
justices to elect their Chief
Justice rather than designating
the most senior serving justice
as Chief Justice, the justices
had elected a new Chief Justice.
Chief Justice Abrahamson objected to this election, claimed
it was invalid as a violation of
due process, and filed an unsuccessful federal lawsuit seeking
reinstatement as Chief Justice.
862 N.W.2d at 897.
Sanborn Mfg. Co. v. Currie,
500 N.W.2d 161, 164 (Minn.
Ct. App. 1993) (“There is no
independent consideration unless the employer provides real
benefits beyond those already
obtained by the employee in
a previous contract”); Nat’l
Recruiters, Inc. v. Cashman, 323
N.W.2d 736, 741 (Minn. 1982)
(training did not constitute
independent consideration for
non-competition agreement
because it was part of a prior
employment agreement); Jostens, Inc. v. National Computers
Systems, Inc., 318 N.W.2d 691,
703 (Minn. 1982) (no evidence
that signing non-compete provided employees greater wages,
promotion, or access to technical information).
Sanborn, 500 N.W.2d at 164
(non-competition agreement
lacked consideration because
there was no evidence that the
employee received a promotion
or that the increase in salary
was attributable to signing the
non-competition agreement);
Nat’l Recruiters, 323 N.W.2d at
741 (no independent consideration where no advantage
inured to employee’s benefit
specifically as a result of signing); Klick v. Crosstown State
Bank of Ham Lake, Inc., 372
N.W.2d 85 (Minn. Ct. App.
1985) (no independent consideration where employee did
not receive benefits directly in
exchange for signing restrictive covenant); Freeman, 332
N.W.2d at 630 (consideration
inadequate where employees
who did not sign restrictive
covenants received similar
Historically, under the socalled “red pencil” doctrine,
Wisconsin law has expressly
prohibited courts from narrowing overly broad restrictive
covenants in order to make
them more reasonable and enforceable. Minnesota and many
other states follow the “blue
pencil” doctrine that allows
courts to reform and modify
overly broad covenants in order
to make them enforceable.
2015 Wisconsin Senate Bill 69,
viewable at docs.legis.wisconsin.
“Wisconsin legislators propose
strengthening ‘noncompete’
agreements,” Milwaukee Journal Sentinel, 6/6/2015.
In recent years, the Minnesota
Legislature has also considered but not adopted a bill
that would have major impact
on the enforcement on noncompete agreements. However, unlike Wisconsin, the bill
proposed in Minnesota would
have made non-compete agreements unenforceable except in
connection with the sale of a
business. In 2013, DFL Representatives Atkins and Hausman
introduced H.F. No. 506, which
would declare void contracts
that prohibit a party from
“exercising a lawful profession,
trade, or business” except in the
sale of a business, dissolution of
a partnership, or termination of
a limited liability company. The
bill died in committee.
St. Jude Medical, S.C., Inc.
v. Biosense Webster, Inc., 994
F.Supp.2d 1033 (D. Minn.
2014); General Med. Corp. v.
Kobs, 179 Wis. 2d 422, 507
N.W.2d 381 (Wis. Ct. App.
Overholt Crop Ins. Service v.
Bredeson, 437 N.W.2d 698
(Minn. Ct. App. 1989).
[email protected]
28 Bench&Bar of Minnesota s April 2016
The Fund for Legal Aid and the Hennepin County Bar Association
cordially invite you to the
35th annual
Law Day Testimonial Dinner
Benefiting Mid-Minnesota Legal Aid
What Baseball Tells Us About
Legal Services
Steven Schumeister
Robins Kaplan LLP
Pamela Karlan
Stanford Law School
Celebrating the 25th Anniversary of the Americans with Disabilities Act
5:00 p.m. Reception (Cash Bar)
“Lunch with a General Counsel” Silent Auction
6:30 p.m. Dinner and Program
Hilton Minneapolis
1001 Marquette Avenue, Minneapolis Ballroom
To register: 612.746.3709 |
Photo by Leonardo Patrizi ©
Against Women
and Locally
MSBA backs ratification of CEDAW,
a long-stalled UN convention on the
elimination of discrimination against women.
By Tara Kalar, Elizabeth M. Meske, and Ellen J. Kennedy
Bench&Bar of Minnesota Online s April 2016
n December 11, 2015, the
Minnesota State Bar Association (MSBA) unanimously passed a resolution supporting efforts to
end discrimination against women here
and abroad through the United Nations Convention on the Elimination
of all Forms of Discrimination Against
Women (CEDAW). A few hours before
this landmark vote, the Minneapolis City
Council had taken the same step. Most
recently, on March 2, 2016, the St. Paul
City Council and Edina City Councils
followed suit.
The genesis for this initiative is the
inspiring work of Raphael Lemkin, a jurist, linguist, and author, to end crimes
against whole groups of people. During
the Holocaust, there was no word to describe what was happening to the Jews
of Europe—the effort to exterminate an
entire people. Lemkin, a Polish Jew, believed that there had to be a word to describe a crime so heinous, and he coined
the word ‘genocide,’ geno from the Greek
meaning tribe or group, and cide from the
Latin verb cidere, to kill.
Once Lemkin had the word to label
and describe the crime, he became determined to have a law to prevent and prosecute it, and in 1948 the United Nations
passed the Convention on the Prevention and the Punishment of the Crime of
What happened to this Convention
in the United States? In order for a UN
convention, resolution, or treaty to become U.S. law, it must receive 67 votes
for ratification from members of the
U.S. Senate. (The House does not vote
on international agreements.) The late
Sen. William Proxmire of Wisconsin was
asked to take on the task of getting the
Convention ratified.1 He never anticipated the challenge that confronted him.
He gave 3,211 speeches on the floor of
the Senate, a speech a day for 19 years,
until it was finally ratified.
Pulitzer prize-winning author and
United States Ambassador to the United
Nations Samantha Power writes, “Although Proxmire believed that ratification
of the genocide ban would spur Senate
ratification of other human rights treaties
such as the International Covenant on
Economic, Social, and Cultural Rights;
the Convention on the Elimination of All
Forms of Discrimination Against Women; the Convention on the Rights of the
Child; and later the international treaty
to ban landmines, none has passed.”2
It is in the spirit of Raphael Lemkin
and William Proxmire that current national efforts to ratify CEDAW have
come about.
Although the U.S. government has
failed to ratify CEDAW ( pronounced
SEE-daw), momentum is building locally
as communities band together to support
U.S. ratification. The MSBA has joined
the ranks of nearly 200 other organizations throughout the country, including
the American Bar Association (ABA)
and dozens of cities, to garner attention
and demonstrate support for CEDAW.
These initiatives represent the will of
millions of Americans who decry the
fact that 189 nations of the world have
ratified CEDAW – and only six have
not: Sudan, Somalia, Iran, Tonga, Palau, and the US. Countries with widely
differing conditions for women have
ratified CEDAW, including those at the
bottom as well as those at the top, always with the goal to improve women’s
situations in the respective countries. Yemen, for example, ranked as the world’s
worst country in its treatment of women,
courageously ratified the Convention in
1984.3 On the other end of the spectrum,
Iceland, among the best, ratified the
Convention in 1985 and continues to
make progress in its goal of achieving full
equality for women.4 The Nordic states,
recognized for their advances in treatment of women, ratified the Convention
nearly 20 years ago.
The platform for the concept of a
“Women’s Treaty” emerged at the First
World Conference on Women in Mexico
City in 1975. As a result of that conference, the United Nations adopted the
Convention on the Elimination of All
Forms of Discrimination Against Women
on December 8, 1979.
Until the adoption of CEDAW, no
treaty fully addressed women’s rights
within political, cultural, economic,
social, and family life. CEDAW is the
most comprehensive international agreement advocating for the advancement of
women. It establishes women’s rights in
areas not previously subject to international standards. The treaty also provides
a universal definition of discrimination
against women so that those who would
discriminate on the basis of sex cannot
claim that no clear definition exists. It
calls for action in nearly every field of
human endeavor: politics, law, employment, education, health care, commercial transactions, and domestic relations.
CEDAW also establishes an international committee for periodic review of the
progress being made by its adherents.
CEDAW is known as a human rights
treaty for women.
An Overview of CEDAW
In 1946, the United Nations began to
examine the unequal treatment of women around the world through the UN
Commission on the Status of Women.
The commission recognized that discrimination was widespread and that many
distinctions based on sex resulted in the
unequal treatment of women. As noted
above, the convention was adopted in
1979 by the United Nations General Assembly to ensure that men and women
would enjoy basic and equal rights in all
respects—economic, social, cultural, civil and political. Further, the convention
addresses equal access for women living
in poverty to food, health, education,
training, and employment opportunities.
The convention contains 30 articles
and is organized into six parts. Part I,
Articles 1 through 6, relate primarily to
domestic (i.e., national) prohibitions of
sex-based discrimination. The convention defines discrimination as “any distinction, exclusion, or restriction made
on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on
a basis of equality of men and women, of
human rights and fundamental freedoms
in the political, economic, social, cultural, civil or any other field.”
Part II, Articles 7 through 9, provide
for women as equal citizens of the state.
Part III, Articles 10 through 14, ensure
that the state will provide equal access to
education, vocational training, employment, health care, banking, and considerations in rural development. Part IV, Articles 15 and 16, guarantee women equal
treatment before the law and in marital
matters. Part V, Articles 17 through 22,
establish the Committee on the Elimination of Discrimination Against Women
and call for periodic reviews of countries’
progress. The final section, Part VI, Articles 23 -30, describes the administration
of the convention.
Countries that ratify CEDAW agree
to take all appropriate measures to implement the treaty’s provisions. Ratifying countries submit a report on steps
towards treaty implementation one year
after ratification and every four years
thereafter. The CEDAW Committee,
comprised of international experts, reviews each report and comments on each
country’s progress.
CEDAW AND U.S. Legislation
The United States has attempted to
address, by way of legislation, many of
the issues identified within CEDAW’s
text. For example, Title VII of the Civil
Rights Act of 1964 makes it illegal to
discriminate on the basis of sex, among
other classifications. The law also prohibits retribution against a complainant
who alleges discrimination. Title VII was
amended to include prohibitions against
discrimination toward pregnant women.
The Equal Pay Act of 1963 makes it illegal to pay differing wages to women
and men if they perform equal work.
Title VI of the Civil Rights Act prohibits
discrimination in programs that receive
federal assistance. Voting rights were extended in equal form to women in 1920
through the 19th Amendment. State law,
such as Minnesota’s Women’s Economic
Security Act, also seeks to address women’s issues.5 However, the fact remains
that without CEDAW ratification, the
United States is not bound by CEDAW’s
provisions to comprehensively address all
forms of discrimination against women.
Though CEDAW has yet to be ratified
by the US, it is certainly not new to U.S.
politics. President Jimmy Carter signed
the convention draft on July 17, 1980. It
was then transmitted to the Senate Foreign Relations Committee, where it sat
dormant until a vote in 1994. At that
time, it passed with bipartisan support, 135. It then lay dormant for 18 more years.
In 2002, the Senate Foreign Relations
Committee again voted on it, and again it
passed in a bipartisan vote of 12-7 but, as
before, it was never sent to the full Senate.
April 2016 s Bench&Bar of Minnesota Online
The Bush Administration did not take a
formal position on CEDAW, though the
State Department reported to the Senate
Foreign Relations Committee that the
treaty is “generally desirable and should
be ratified.”
The current administration and Senate Foreign Relations chair support ratification of CEDAW.
Some may think that the U.S. government’s apparent lack of urgency when it
comes to CEDAW is reflects a perceived
lack of importance in ratifying the convention. Would anything really change if
the US signed on? But, in fact, CEDAW
has a proven track record of success.
In countries that have ratified
CEDAW, women have partnered with
their governments to improve the status of women and girls and have shaped
policies to create greater safety and opportunity for women and their families.
in the Office of
Chief Counsel at the
Minnesota Department
of Transportation. She
provides legal advice
to the Office of Civil
Rights and the Office of
Aeronautics. She is the
co-chair of the MSBA’s Human Rights Committee.
[email protected]
is an attorney with
Knutson Flynn & Deans,
PA, a private law firm
providing legal counsel
and representation to
public school districts
throughout Minnesota.
Elizabeth is a member of
the MSBA’s Human Rights Committee and Labor
and Employment Law Section. [email protected]
Ph.D., is the founder and
executive director of
World Without Genocide
at Mitchell Hamline
School of Law, St. Paul.
Kennedy is also an adjunct
professor there and is the
Minnesota representative
to AMICC, a national organization that advocates
for the International Criminal Court. She also
serves on the Human Rights and Relations
Commission for the City of Edina, Minnesota.
[email protected]
Bench&Bar of Minnesota Online s April 2016
For example, Mexico responded to an
epidemic of violence against women by
using CEDAW terms in a General Law
on Women’s Access to a Life Free from
Violence. By 2009, all 32 Mexican states
had adopted the measure. Kenya has
used CEDAW to address differences in
inheritance rights, eliminating discrimination against widows and daughters
of the deceased. Kuwait’s Parliament
chose to extend voting rights to women
in 2005 following a recommendation by
the CEDAW committee to eliminate discriminatory provisions in its electoral law.
Around the world, CEDAW has been
used to reduce sex trafficking, domestic
violence, and female genital mutilation;
ensure primary education for girls and
vocational training for women; ensure
the right to vote; end forced marriage
and child marriage; improve health care
services and save lives during pregnancy
and child-birth; allow women to own and
inherit property; and ensure the right to
work and own a business without discrimination.
Why Now?
While some might argue that gender
discrimination is no longer relevant to
women’s issues in the United States, it
is sadly undeniable that women in the
United States continue to struggle with
inequality on many fronts. The state of
Minnesota is no exception. Affirming
CEDAW at the state and national levels will provide an opportunity to affirm
the importance of ending all forms of discrimination against women.
Every nine seconds, a woman in the
United States is assaulted or beaten.6
Women constitute 94 percent of the victims of murder-suicides in the United
States.7 Thirty-three percent of women
and 9 percent of men will experience
sexual harassment in their lifetime.
In the United States, 2.4 million
women report injuries from current
or former intimate partners each year.
The Centers for Disease Control and
Prevention have found that nearly one in
five women (19.3 percent) has been raped
in her lifetime and one in four has been
the victim of severe physical violence
by an intimate partner. In Minnesota
alone, a 2010 National Intimate Partner
and Sexual Violence Survey (NISVS)
conducted by the Centers for Disease
Control and Prevention estimated that
684,000 Minnesota women will be
subjected to a rape, physical violence,
and/or stalking by an intimate partner
in their lifetimes. Victims of intimate
partner violence lose a total of 8.0 million
days of paid work each year and the cost
of intimate partner violence exceeds $8.3
billion annually.8
Furthermore, although the Trafficking Victims Protection Act has played
a pivotal role in combating human trafficking, the FBI has identified the Twin
Cities as one of 13 U.S. cities with a high
incidence of child prostitution.9 Indeed,
a November 2010 study found that on
any given weekend night in Minnesota,
45 girls under age 18 are sold for sex
through internet classified websites and
escort services.10
Maternal health is an ongoing concern in the US. The report State of the
World’s Mothers, which ranks nations in
health disparities between rich and poor
women and children in cities around the
world, ranks the US as 61st in the world
on lifetime risk of maternal death, behind
all other developed countries.
The same report ranks the US 89th in
the world on political status of women
(i.e. the participation of women in national government). In the US today,
women hold fewer than 20 percent of
seats in the Congress. On this indicator,
nearly half of all countries in the world
perform better than the United States.
Women also face widespread inequity in the area of economic security.
In 2014, female full-time workers made
only 79 cents for every dollar earned by
men, a gender wage gap of 21 percent.11
Comparing equal jobs, women in 1979
earned 62 percent of men’s wages, and as
of 2010, women earn 81 percent of what
their male counterparts earn—progress,
yes, but still not parity.12 This is not simply an issue for women relegated to the
lower end of the pay scale. Jennifer Lawrence, the world’s highest-paid actress,
recently expressed her outrage with earning a portion of what her male counterparts earned for the same production.
In the legal profession too, women
continue to earn less than men. On average, women equity partners earn $66,000
less than their male counterparts and
income partners average $25,000 less,
according to a 2010 study by the ABA
Commission on Women in the Profession.13 Women also continue to lag behind men on credit for rainmaking and
client revenue, according to a 2015 survey conducted by the National Association of Women Lawyers.14 This evident
gender gap in revenues generated from
client billings persists even as women report overall higher working hours.15
Poverty also affects women at a higher
rate than men, especially in the United
States. Of the 37 million Americans living
in poverty today, 56 percent are women.16
The gap in poverty rates between men
and women is wider in the US than in any
other first-world country.17 Absent global
recognition and accountability, these inequities, among others, will persist.
At the 1995 Beijiing Women’s
Conference, Hillary Clinton said,
As long as discrimination and inequities remain so commonplace
around the world—as long as girls
and women are valued less, fed less,
fed last, overworked, underpaid,
not schooled, and subjected to violence in and out of their homes—
the potential of the human family
to create a peaceful, prosperous
world will not be realized.18
It is abundantly clear that discrimination and inequities persist, more than two
decades after that landmark conference.
Women remain vulnerable in almost every arena of public and private life.
Opposition to CEDAW generally
stems from a traditionalist view of the
role of women as mothers. Some opponents cite an unsubstantiated fear that
CEDAW will result in an increase in access to abortion services and contraception or to changes in traditional family
values and the definition of family. Other
opponents cite ungrounded fear of mandatory inclusion of women in military
roles or an onslaught of frivolous lawsuits. These oppositions to CEDAW are
misplaced and are founded on misconceptions regarding the convention.
Importantly, CEDAW is a “non-selfexecuting” treaty. This means that any
legislation to implement specific treaty
provisions that are not already part of
U.S. law would come before the House
and Senate in the same manner as any
other bill. The CEDAW committee’s formal “conclusions” are only recommendations about how countries can move
forward on women’s equality and have
no force of law in themselves; thus, no
changes in United States domestic law
would be required for the United States
to be in treaty compliance.
CEDAW does not address the issue
of abortion. Ireland, Burkina Faso, and
Rwanda, for example, are countries that
prohibit abortion and yet they have ratified CEDAW. Furthermore, the Senate
Foreign Relations Committee added an
“understanding” to the terms of CEDAW,
that were it to be ratified, CEDAW would
not include a right to abortion.
Since the Supreme Court recently
legalized same-sex marriage, a national
conversation surrounding family values
is happening outside of the framework
of CEDAW. The intent of CEDAW is
to promote social equality for women,
which does not contravene traditional
family values. In practice, this means that
wives and husbands, mothers and fathers
would have equal footing under the law.
CEDAW does not seek to regulate
any constitutionally protected interests
with respect to family life. In a fact sheet
on CEDAW, Amnesty International
noted that
[b]oth CEDAW and the U.S. Constitution recognize the restraints
of any governing authority to interfere with an individual’s most
basic decisions regarding family.
CEDAW simply urges State Parties to adopt education and public
information programs, which will
eliminate prejudices and current
practices that hinder the full operation of the principle of the social equality of women. The treaty
simply calls for the recognition of
the ‘common responsibility of men
and women in the upbringing and
development of their children’ and
maintains the parents’ common responsibility to promote what is in
the best interest of the child.19
Additionally, any argument opposing
CEDAW ratification for fear of influencing women’s participation in armed
combat has little traction. In December
2015, Defense Secretary Ash Carter announced that all U.S. combat jobs would
be open to women starting in 2016.20
Finally, while implementation of
CEDAW could—and hopefully would—
raise legal standards in the United States,
a flurry of frivolous lawsuits is highly
improbable. United States law already
governs discrimination in public and
private employment, prohibiting policies
and practices that unintentionally
discriminate against women.
Time for Action
The MSBA’s purpose in supporting
CEDAW, like that of hundreds of
organizations and millions of American
citizens, is to generate a groundswell
throughout the country. It is expected
that we can then find a “Proxmire for
CEDAW,” that is to say, a member of
the U.S. Senate who will champion
CEDAW passage in the Senate the
way the late Sen. Proxmire successfully
championed the Genocide Convention
until its passage nearly two decades later.
Minnesotans are lending their voices to
this landmark opportunity in the hope
that our senators, whoever they may be
when the time is right, will take on this
role to enact women’s rights as human
rights. s
Tell us what you think
Share your insights. Join the discussion
of this article online at
See the excellent discussion in A
Problem from Hell: America and
the Age of Genocide, Samantha
Power, Chapter 7, “Speak Loudly
and Looking for a Stick,” 155-170,
Harper Perennial, 2002.
Power, op. cit., p. 16.
5; see
The Federal Bureau of Investigation’s Efforts to Combat Crimes
Against Children, Chapter 4:
Non-Cyber Sexual Exploitation of
The Schapiro Group, “Adolescent Girls in the United States Sex
Trade. Tracking Study Results for
November 2010.
See Institute for Women’s Policy
Research. 2015. “Women’s Median
Earnings as a Percent of Men’s Median Earnings, 1960-2014 (Fulltime,
Year-round Workers) with Projection for Pay Equity in 2059 IWPR
Publication #Q026 (Updated
September 2015).
BLS 2010. “Highlights of Women’s
Earnings in 2009”, Washington,
D.C. []
New Millennium, Same Glass Ceiling? The Impact of Law Firm Compensation Systems on Women (http://
April 2016 s Bench&Bar of Minnesota Online
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.
30 Bankruptcy
by Patrick C. Summers
[email protected]
30 Commercial & Consumer
by Fred Miller
[email protected]
32 Criminal Law*
by Frederic Bruno
[email protected]
& Samantha Foertsch
[email protected]
34 Employment & Labor Law*
by Marshall H. Tanick
[email protected]
36 Environmental Law*
by Jeremy Greenhouse
[email protected]
37 Federal Practice
by Josh Jacobson
[email protected]
38 Indian Law
by Jessica Intermill
[email protected]
& Peter Rademacher
[email protected]
39 Probate & Trust Law
by Robin Tutt
[email protected]
39 Real Property
by Joseph P. Bottrell
[email protected]
40 Tax*
By Morgan Holcomb & Jessica Voigt
[email protected]
41 Torts & Insurance
by Jeff Mulder
[email protected]
The online version of this section
contains additional case note content.
30 Bench&Bar of Minnesota s April 2016
n Customer of a debtor check processing company not entitled to recovery
of commingled funds in possession of
the Chapter 7 trustee. Debtor provided
automated clearinghouse and check
processing services. Among many
other customers, it processed checks for
Rent-A-Center East, Inc. (RAC) under
a processing client agreement. Debtor’s
normal practice was to commingle the
funds of all its customers in a single account at North American Bank as part
of its regular practice for transferring
funds. Prior to the bankruptcy, RAC
did not know how debtor processed its
checks. As of the date of filing, RAC
asserted it was owed approximately
$2.4 million. North American Bank
turned over to the trustee approximately
$830,000. RAC filed an adversary action, seeking recovery of the bulk of
these funds. RAC argued three theories:
(1) that an express trust was created by
the processing agreement; (2) a resulting
trust; or (3) a constructive trust. The
case was dismissed by the bankruptcy
court, which was affirmed by the district
court. The 8th Circuit affirmed these
decisions. First, it held that the processing agreement explicitly permitted
funds to be commingled, meaning that
the relationship was one of debtor and
creditor, and not trustee and beneficiary,
citing In re LGI Energy Solutions, Inc.,
460 B.R. 720, 729 (B.A.P. 8th Cir. 2011)
(applying Minnesota law). Second, the
8th Circuit held there was no resulting
trust. It noted that a resulting trust can
be found if the intention of the payor
was that the receiving party was to keep
money in a separate fund for the benefit
of the payor or a third party. It found
that RAC’s ignorance whether its funds
would be processed through a noncomingled account meant it could not
show the intent to imply a trust relationship. Third, the 8th Circuit held that
RAC was not entitled to the equitable
remedy of a constructive trust. It noted
that bankruptcy courts are reluctant to
create a post-petition constructive trust,
given the general intent of bankruptcy
to maintain a level playing field for all
creditors. The court found that as part
of the process for handling checks, RAC
was required to endorse all checks to
debtor, meaning that RAC no longer
had any property rights in the checks.
In Re WEB2B Payment Solutions, No.
14-3190 (8th Cir., 3/4/2016).
—Patrick C. Summers
DeWitt Mackall Crounse & Moore S.C.
n Motors Liquidation update. In the
March 2015 edition of these notes, there
was a story on the expensive mistake in
In re Motors Liquidation involving a $1.5
billion term loan where perfection of a
lender’s security interest was inadvertently lost by the erroneous filing of a
termination statement, and thus the unperfected security interest was avoided
in bankruptcy. Not surprisingly, in July
2015 an attempted class action was filed
against JP Morgan Chase, the lead bank
in the lending syndicate for the loan,
and against the Simpson Thacher law
firm, counsel to JP Morgan. Perhaps
surprisingly, but then perhaps not given
the parties involved, in October the participating lenders in the loan voluntarily
dismissed the suit. Thus, the case now
stands for the valuable lesson that advising on UCC Article 9 is not for novices,
but also that even the best of us must
be very careful with UCC Article 9 with
respect to even “administrative” details.
n outside the line. Notwithstanding
the above update, UCC Article 9 does
put forth clear, detailed, and easy-tofollow rules that provide certainty for
the many transactions that fall within
its confines. But not always. Aside from
definitions that can delineate scope, the
basic provision on the scope of Article
9 lies in Section 9-109. Because insurcourt thought the exclusion applied
ance is usually extensively regulated in
to the use of the insurance policy as
the states, Section 9-109(d)(8) does not original collateral or to any assignment
apply to “a transfer of an interest in or
of the claim under an insurance policy.
an assignment of a claim under a policy
In short, the exclusion applied to the
of insurance,” except as to a health care transfer of interests inseparable from
insurance receivable and with respect
insurance policies.
to proceeds and priorities in proceeds.
The lender, however, pointed to
Thus separate insurance premium
Official Comment 15 to Section 9-109,
financing statutes in many states govern which provides once a claim arising in
an extension of credit to acquire insurtort is settled and reduced to a contractual obligation to pay, the right to payance secured by the rights under the
policy. In Minnesota, see Minn. Stat.
ment becomes a payment intangible and
Chpt. 59A.
ceases to be a claim arising in tort. This
analysis also led to the lender’s arguIn a recent case, a lender to a bankrupt railroad had a security interest in ac- ment that the payment also constituted
an “account” under the definition in
counts, general intangibles and payment
intangibles, and was perfected as to these Section 9-102(a)(2). Neither argument
assets by a proper filing in Delaware. A di- impressed the 1st Circuit; indeed, the inclusion of a health care insurance receivsastrous train wreck prompted the bankable in the exclusion was inconsistent
ruptcy, not only because of the damage
(explosion, deaths, loss of equipment) but with the argument about an “account.”
That being so, the question realso because of the interruption of business. The railroad had a $7.5 million busi- mained if UCC Article 9 did not apply
ness interruption policy, settled the claim so as to allow perfection (and perhaps
classification of the collateral for UCC
for $3.8 million, which was approved by
the bankruptcy court, and the issue was
purposes), was the security agreement
broad enough and was filing a financing
who got the insurance settlement—the
statement adequate? The court, absent
bankruptcy estate, or the lender who
argued it had a perfected security interest a state statute, looked at the common
law, which it thought was unclear on the
in the settlement by filing.
Page but
1 concluded the state law would
The answer was less1than
The AM issue,
require more for perfection than a filing.
In the end, UCC Article 9 may not
provide the appropriate rules, but the
other law of the state may. It would
behoove a lender, however, to specifically claim insurance as collateral and
perhaps notify the insurance company of
its claim or become a loss payee on the
policy, as well as file, absent a specific
statute. It also may be well to focus on
the exclusion exception for “proceeds”
in Section 9-109(b)(8) and look at
the definition of “proceeds” in Section 9- 102(a)(64)(E), which includes
“insurance payable by reason of the loss
or damage to collateral,” and see MNC
Commercial Corp. v. Rouse, 1992 U.S.
Dist. LEXIS 22166 (W. D. Mo. 1992),
appeal dismissed, No. 90-1038 (8th Cir.
1993). In re Montreal, Main & Atlantic
Ry., Ltd., 87 UCC Rep - Serv. 2d 495
(1st Cir. 2015).
n ‘Rent-a-bank’ update. The February
2016 edition of this column, under the
heading “Division of Opinion,” discussed what may be termed as “rent a
bank” and “rent a tribe” approaches to
avoiding state lending restrictions. For
obvious reasons such an approach involves risk, as two recent developments
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April 2016 s Bench&Bar of Minnesota 31
In Commonwealth of Pennsylvania
v. Think Finance, Inc., et al., Case No.
2:2015 cv00092 (E.D. Pa. 2015), the
court refused to dismiss racketeering
claims under Pennsylvania’s Corrupt
Organizations Act against companies alleged to have partnered with a state bank
to market internet loans with triple-digit
interest rates where the bank acted as the
nominal lender while the companies were
the de facto lenders in marketing, funding, and collecting the loans.
In New York the alleged owner and
operator of payday lending companies
has been indicted by a federal grand
jury charging criminal violations of both
RICO and the Truth in Lending Act
(the disclosures given were materially
deceptive and misleading) by making
internet payday loans at rates in excess
of 700% and in failing to be properly
licensed. It is alleged that the owner
entered into sham business relationships
with three Indian tribes in a “rent
a tribe” scheme, which purportedly
allowed the owner to avoid the
application of state usury laws based on
tribal sovereign immunity.
—Fred Miller
Retired G.L. Cross Research Professor,
University of Oklahoma
“adverse final judgment” and, therefore,
leaves the defendant with no appeal of
right. Subsequent cases have found that
felony stays of adjudication are directly
appealable as sentences, but those cases
did not address stays of adjudication in
a postconviction setting. Under Dupey
v. State, 868 N.W.2d 36, 39-41 (Minn.
2015), a stay of adjudication under Minn.
Stat. §152.18, subd. 1, does not result in
a “judgment of conviction or sentence”
triggering the statute of limitations for
filing a postconviction petition. Because
there is no adjudication of guilt under a
stay of adjudication, there is, by definition, no “judgment of conviction.” Without a judgment of conviction, a person is
not convicted of a crime, and, therefore,
cannot seek postconviction relief.
The court also declines to exercise
its discretionary review, which allows
the court to review otherwise unappealable orders “in the interests of justice.”
Amanda Jean Lunzer v. State, Ct. App.
postconviction order, and appellant’s
appeal was not timely. Appeal dismissed.
Craig Matthew Hohenwald v. State,
Sup. Ct. 2/26/2016.
n Procedure: Court may dismiss complaint for prosecutor’s unnecessary precharge delay if defendant was prejudiced by delay. Appellant was charged
with domestic assault by strangulation
in March 2013. Three days later, a
domestic abuse no contact order and an
ex parte permanent order for protection
were issued. The OFP was later dropped,
but the DANCO remained in effect. In
June 2013, appellant was arrested for
having contact with the victim, after a
police officer observed the appellant and
victim together and found that the victim had an active OFP against appellant.
The state originally charged appellant in
June 2013 with violation of an OFP, but
the charge was dismissed. In May 2014,
the state charged appellant for violating the DANCO. Appellant moved to
dismiss the charge under Minn. R. Crim.
n Postconviction: Motion to reconP. 30.02, due to the state’s unnecessary
sider order denying relief does not toll
delay in charging him with violating the
time period to appeal order; appeal
DANCO, but the district court denied
his motion. After a jury trial, appellant
dismissed. After a bench trial in 2010,
appellant was convicted of two counts of was convicted.
first-degree murder. His conviction was
Held, Rule 30.02 does apply to
confirmed on direct appeal in 2012. Ap- pretrial delays, but requires a showing of
pellant filed a petition for postconviction prejudice before dismissal is warranted.
relief in October 2014, alleging newly
Rule 30.02 states that a district court
“may dismiss the complaint… if the
discovered evidence and ineffective
n Postconviction: Stay of adjudicaassistance of counsel. The petition was
prosecutor has unnecessarily delayed
tion not conviction for postconviction
denied. He filed a second postconviction bringing the defendant to trial.” The
purposes. In December 2007, appellant petition a few days later, which was also
charging process is integral to “bringing
a defendant to trial,” so the rule plainly
entered a plea of guilty to a fifth-degree denied. In November 2014, appellant
contemplates dismissal for pre-charge
controlled substance crime as a stay of
filed “motions to reconsider” the orders
adjudication, pursuant to Minn. Stat.
denying his postconviction petitions.
delay. This reading of the rule comple§152.18, subd. 1. Appellant was disments Rule 11.09, which allows for
Both motions were denied in January
charged from probation and the charge
2015. Appellant retained counsel, and,
a defendant’s release upon failure to
was dismissed in October 2010, and ap- in March 2015, appealed from the Octo- timely commence trial, and is supported
pellant filed a petition for postconviction ber 2014 and January 2015 orders. The
by Fed. R. Crim. P. 48(b), the federal
relief in July 2015, seeking to withdraw
state moved to dismiss the appeal, argu- counterpart to Rule 30.02, which “expressly applies to pre-charge delay” and
her plea based upon testing deficiencies ing that the October 2014 orders were
discovered at the St. Paul Police Depart- not appealed within 60 days, and the
is interpreted as a “restatement of the
ment Crime Lab. The district court
January 2015 order was not appealable.
inherent power of the court to dismiss a
Minn. R. Crim. P. 29.03, subd. 3(d),
denied her petition without a hearing as
case for want of prosecution.”
requires that an appeal from an adverse
Dismissal under Rule 30.02, howHeld, appellant was not convicted
final order in a postconviction proceed- ever, requires a showing of prejudice,
of a crime, so the district court lacked
ing in a first-degree murder case be filed as is made clear by Minnesota Supreme
jurisdiction to consider her postconvicwithin 60 days after its entry. Appellant Court cases applying Rule 30.02. Here,
tion petition and properly denied her
did not appeal the orders within 60 days, the district court found no prejudice,
petition. Postconviction relief is availand the appeal is timely only if an inter- “noting that [Appellant] was not incarable only to “a person convicted of a
vening event tolled the time for filing
cerated during the [delay]…, he did not
crime.” Minn. Stat. §590.01, subd. 1. In
an appeal. Minn. R. Civ. App. P. 104.01, show that he experienced any anxiety or
Smith v. State, 615 N.W.2d 849, 851-52
subd. 2, lists the type of motions that
concern over the possibility of renewed
(Minn. App. 2000), review denied (Minn. toll an appeal deadline, and a motion
charges, and he did not show that his
9/26/2000), the court of appeals held that for reconsideration is not among them.
defense would be impaired by the delay.”
A comment to the rule makes clear that The district court did not abuse its disa stay of adjudication under Minn. Stat.
§152.18, subd. 1, could not be considered this omission is purposeful. Held, filing
cretion when it denied appellant’s moa conviction for postconviction purposes, a motion to reconsider does not toll the tion to dismiss. State v. Rafael Alfonso
time period for filing an appeal from a
Banks, Ct. App. 2/8/2016.
because a stay of adjudication is not an
32 Bench&Bar of Minnesota s April 2016
n Procedure: New trial not permitted
for district court’s failure to comply with
Minn. R. Crim. P. 26.01, Subd. 4: Appellant was charged with first-degree refusal
to submit to testing and first-degree
driving under the influence. Appellant’s
pretrial motion to dismiss for lack of
probable cause, challenging the constitutionality of the implied consent statute, was denied. Appellant entered into
a plea agreement with the state in order
to resolve this case without a jury trial.
The agreement included dismissal of the
driving under the influence charge. Appellant signed a plea petition stating that
he was waiving his right to a jury trial
and pleading guilty to the test refusal
charge. He entered a guilty plea on the
record “to the charge… of first degree
refusal by way of a Lothenbach plea,” and
the parties submitted “Joint Stipulated
Facts” to the district court. The district
court then adjudicated appellant guilty.
Despite the entry of a guilty plea,
appellant and the state appear to have
intended to proceed under Minn. R.
Crim. P. 26.01, subd. 4, which allows
for a criminal defendant to plead not
guilty, waive all trial rights, stipulate
to the state’s evidence in a court trial,
and then appeal a dispositive, pretrial
ruling. Rule 26.01, subd. 4, has replaced
Lothenbach as the method for preserving
dispositive pretrial issues for appellate
review in a criminal case. The record in
this case is replete with references to a
Lothenbach plea. Before the court of appeals, appellant argued that the implied
consent statute is unconstitutional, and
that his conviction was invalid because
the district court did not comply with
the procedures set forth in Rule 26.01,
subd. 4. The court of appeals found that
his plea did not comply with Rule 26.01,
subd. 4, but affirmed his conviction,
treating the case as if the district court
had complied with Rule 26.01, subd. 4.
Multiple prior cases have allowed
convictions to stand and appeals to
continue despite reliance on flawed
attempts to comply with Rule 26.01,
subd. 4, or the Lothenbach procedure.
Thus, strict compliance with Rule 26.01,
subd. 4, or Lothenbach has never been
required. Plain error analysis applies to
unobjected-to errors committed under
Rule 26.01, subd. 4, under both the rules
of criminal procedure and prior cases.
The Supreme Court finds that appellant did not meet the plain error
standard. There were many errors
committed by the district court (in
complying with Rule 26.01, subd. 4, or
even Lothenbach’s less stringent requirements), and those errors were plain.
However, appellant failed to show that
ERISA litigation is a labyrinthine
maze of regulations and timelines.
Let our experience help.
Mark Nolan
(952) 405-7175
Rob Leighton
(952) 405-7177
Successfully pursuing benefits since 1993
April 2016 s Bench&Bar of Minnesota 33
the errors affected his substantial rights.
Appellant’s conviction is affirmed. The
Court concludes with a cautionary
note: “Although we affirm [Appellant’s]
conviction today, it would be a mistake
to minimize the errors that spawned this
appeal. Lothenbach has not been the law
in this state for more than 8 years. The
fact that the district court and experienced attorneys are still attempting to
employ a procedure long ago superseded
by rule is, to say the least, concerning. It
is made all the more alarming because,
even if Lothenbach were still the law, the
district court’s procedure in this case
failed to even comply with Lothenbach’s
requirements.” State v. Joshua Lee
Myhre, Sup. Ct. 2/17/2016.
n Search and seizure: Warrantless
search of vehicle lawful under automobile exception if probable cause
to believe vehicle contains controlled
substance. Police received a tip from a
confidential reliable informant (CRI)
that a heroin delivery would be made by
“J” at a specific location within “approximately 10 minutes.” Surveillance
was conducted with the CRI, and “J”
was observed as a passenger in a Charger
driven by respondent. After stopping
at a gas station, “J” exited the vehicle
and walked north while talking on a
cell phone and looking around. In a
McDonald’s parking lot, “J” met with a
white male in Grand Am. “J” got into
the Grand Am. Both vehicles were then
stopped. The Charger was searched, and
several baggies of heroin were found
concealed behind a panel in the Charger’s center console. The district court
denied respondent’s pretrial motion to
suppress the heroin, finding the search
of the Charger lawful under the automobile and search-incident-to-arrest exceptions. After a bench trial, appellant was
found guilty of third-degree possession
of a controlled substance. The court of
appeals reversed, finding that the police
did not have probable cause to arrest
respondent or search his car.
A warrantless search is lawful under
the automobile exception if there is
probable cause to believe the search
will result in the discovery of evidence
or contraband. Here, the CRI provided
a detailed tip, which was corroborated
by police surveillance. The trial court
properly deemed the CRI reliable, based
on the veracity of the CRI’s tips in prior
investigations and because the details of
the CRI’s tip in this case were independently corroborated by law enforcement.
Police also testified that, based on their
experience and training, “J” and respondent’s behavior was consistent with a
34 Bench&Bar of Minnesota s April 2016
typical drug deal. Based on the totality
of circumstances, there was probable
cause to believe respondent’s car contained heroin.
The Supreme Court discredits the
court of appeals’ conclusion that any
probable cause dissipated once “J” left
the car as not properly accounting
for the totality of the circumstances.
Reversed and remanded. State v. Jimmy
Dawayne Lester, Sup. Ct. 2/10/2016.
n DWI: Suspected impaired driver
need not be taken before judge prior
to administration of implied consent
testing. After her arrest for DWI, appellant was transported to the police
station, where she was read the implied
consent advisory. Appellant spent over
half an hour making calls to attorneys,
and then asked that she be taken in
front of a judge to perform a breath test.
The officer refused, and again requested
that appellant submit to a breath test.
Appellant refused, and she was charged
with test refusal, driving under the influence, and obstructing legal process. A
jury found her guilty of test refusal and
On appeal, appellant argues that the
police violated her right to be taken
immediately to a judge before submitting to a breath test, based on her
interpretation of Minn. Stat. §169.91,
subd. 1. That statute provides, in part,
that “[w]hen any person is arrested for
any violation of any law or ordinance
relating to the operation or registration
of vehicles… the arrested person shall
be taken into custody and immediately
taken before a judge… in any of the following cases: (1) when a person arrested
demands an immediate appearance
before a judge… (4) when the person
is arrested upon a charge of driving or
operating or being in actual physical
control of any motor vehicle while under
the influence of intoxicating liquor or
drugs.” Appellant’s arrest is subject to
this statute, but her challenge turns on
the definition of “immediately” as used
in the statute.
The statute does not define “immediately,” so the court of appeals applies its
plain meaning, which requires an examination of the common usage of the word
in its application to an existing situation.
“Immediately” can mean “occurring
without delay; instant,” but “immediate”
events might also be separated either by
short or long periods of time, depending on the context. Given the historical
context of this statutory provision, the
court of appeals holds that the statute
does not require the presentation of
an arrestee to a judge before complet-
ing the administrative steps incident to
arrest. The arrest is not complete until
the administrative duties attending
the arrest are complete. In DWI cases,
that includes the administration of an
implied consent test. In addition, in this
case, once appellant’s arrest was complete (after she was booked), she was
immediately released. Thus, she was not
entitled to be brought before a judge, because she endured no post-arrest pretrial
confinement. State v. Michelle MacDonald Shimota, Ct. App. 2/16/2016.
—Frederic Bruno
—Samantha Foertsch
Bruno Law
n Union cases; unfair labor practice
and employee discipline. The 8th
Circuit Court of Appeals recently
decided a pair of important labor union
cases, one favorable to management, the
other partially favoring a union.
In one case, it refused to enforce a
ruling by an administrative law judge
that a masonry contractor refused
to honor a labor union agreement
and did not follow hiring procedures
established with a union hiring hall.
Because the union and the National
Labor Relations Board (NLRB) have
failed to establish the violation by the
contractor, the ruling was overturned.
NLRB v. Seedorff Masonry, 2016 Minn.
App. LEXIS 2268 (Minn. App. 2016)
But a labor union fared better in
another case. The court upheld an
order of the NLRB that an employer
violated federal law by making an overly
broad rule prohibiting employees from
soliciting for union membership. But
it overturned the portion of the ruling
that found the employer wrongfully
prevented an employee from soliciting
membership in the union. Conagra
Foods, Inc. v. NLRB, 2016 Minn.
App. LEXIS 2838 (Minn. App. 2016)
n Racial discrimination; barred by
bankruptcy. An employee’s lawsuit
for wrongful termination due to racial
discrimination was not actionable
because she failed to disclose the claim
in a prior bankruptcy. The 8th Circuit
Court of Appeals ruled that the nondisclosure in the Chapter 13 proceeding
barred the claim. VanHorn v. Martin
2016 Minn. App. LEXIS 2355 (Minn.
App. 2016) (unpublished).
n Negligent hiring, retention; hiring
claim dismissed, retention actionable.
Dismissal of a claim of negligent hiring
by an employee of a trucking company
injured by a driver was upheld, but a
related claim of negligent retention of
the driver was improperly dismissed.
The appellate court ruled that there
was insufficient
to hold the
PJT feb
08 1/9/08
employer responsible for knowing of
the employee’s violent propensities
when it hired him, which warranted
dismissal of the hiring claim. But there
was sufficient evidence to overturn the
dismissal of the claim of negligent hiring.
Additionally, the employer’s insurance
company was allowed to intervene in
the action because it was not adequately
represented in the case. But a claimed
Miller-Shugart settlement agreement was
properly dismissed because there was no
enforceable agreement. Therefore, the
case was remanded for determination
of the negligent retention part of the
lawsuit. Hartfiel v. Allison, 2016 Minn.
App. LEXIS 93 (Minn. App. 2016)
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2016 Lawyer of the Year
Scott Borene
[email protected]
in Immigration Law named by
Minnesota Monthly Magazine r u s t s
and Best Lawyers in AmericaO T e d e a e e s
R rs
r s u p e Tr u e a s s A
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n Unpaid wages; penalty reversed. A
n n d e iv y S RO e d t e e
penalty for nonpayment of wages under
Minn. Stat. §181.13(a) was reversed
d g r i ff t R e m n i e r s T u p e Tr u a s s A p
because the unpaid wages were not
J he en
d e e iv y S RO e d e t e e
covered by the statute. The court of
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d i We pHl eE i Np J uPS hEe Rr Fe nOt Rn dMe A eNi v eC yE S uC ROO U Ne dTe St e e s
for purposes of imposing a statutory fine.u a
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Schreader v. D, C & D Enterprises, G
LLC, 2016 Minn. App. LEXIS 185
h i t i o r a r d i e p l i p J S h e e n t I n d e e iv e t y S RO s e d e t e e s
(Minn. App. 2016) (unpublished).
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ip iora rdi ple p J her ent dem ive
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o r a r•dRestraining
p l i p Order
A n s m e n r s h •i Injunction
S • Judgment
to confer with boss. An employee’s
m f I n• e c e n i t y T R
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refusal to meet with her general manC t a c v a •t License
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h e e n I n• d e e i v y e
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schedule, constituted grounds for
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discharge and denial of unemployment
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A ns me rs rti
Legislation has been introduced at
the Minnesota Legislature to require
employers to provide up to 12 weeks
of paid family and personal sick leave.
The measure, supported by a coalition of DFL legislators, would provide
about 135,000 Minnesota workers with
up to 460 weeks in annual payments
for a state-run insurance program, as
well as to care for sick family members
or care for newborn or newly adopted
children. The fund would come jointly,
from employers and employees, costing the average worker about $1.70 per
week. Gov. Mark Dayton has proposed
a similar program for about 35,000 state
government employees. Both proposals
are modeled after the Federal Family
& Medical Leave Act (FMLA), which
provides unpaid leave to employees of
companies with 50 or more employees.
The proposed cases come at a time
when the two largest cities in the state,
Minneapolis and St. Paul, are examining
various mandatory sick leave proposals
for private sector employees.
—Marshall H. Tanick
Hellmuth & Johnson, PLLC
n Minnesota district court declines to
extend limited NEPA cause of action
to Section 4(f). In February the United
States District Court for the District
of Minnesota granted the Metropolitan Council’s motion to dismiss challenges to a proposed light rail transit
route—the Southwest Light Rail Transit
(SWLRT) project—that would connect downtown Minneapolis to the
southwestern Twin Cities. In so doing,
the court declined to extend a limited
National Environmental Policy Act
(NEPA) cause of action it had recognized in a 2015 decision, also involving
the SWLRT, to the related context of
historical property review under Section
4(f) of the Department of Transportation Act of 1966. 49 U.S.C. §303.
Plaintiffs in the case alleged that the
Met Council violated NEPA, Section
4(f), and Minn. Stat. §473.3994 (Municipal Consent Statute) by selecting
a preferred route for the SWLRT and
initiating the municipal consent process
before final environmental review for
the project was complete and without
conducting a Section 4(f) analysis of a
wooded parkland area in Minnetonka
commonly referred to as Opus Hill.
The responsible governmental agencies for the project’s environmental
36 Bench&Bar of Minnesota s April 2016
review are the Met Council and the
Federal Transportation Agency (FTA).
An environmental impact statement
(EIS) is required for the SWLRT project
under NEPA, and in October 2012, the
Met Council and FTA published a draft
environmental impact statement (DEIS)
designating a preferred route for the
rail line. The route would run through
Opus Hill, about 90 feet west of the
Claremont Apartments in Minnetonka.
The DEIS included a draft Section 4(f)
evaluation assessing historic properties
and public areas affected by the proposed SWLRT route, but the analysis
did not address Opus Hill. In the summer of 2014, pursuant to the Municipal
Consent Statute, the city of Minnetonka
approved the SWLRT proposal and
entered a memorandum of understanding (MOU) with the Met Council. The
MOU provided that it memorialized
“the Parties’ present intentions and
understandings” but did not “limit the
alternatives or mitigative measures that
the Council may undertake in the development and construction of the SWLRT
Project.” Finally, in May 2015, the Met
Council and FTA published a supplemental draft EIS (SDEIS) to address certain changes to the project. The SDEIS
did not alter the portion of the proposed
route through Opus Hill and did not
include a Section 4(f) analysis for Opus
Hill. The NEPA process is ongoing; the
Met Council and FTA have not yet issued a final EIS (FEIS) for the project.
In a very similar case from last year
involving a challenge to the SWLRT
project, Lakes and Parks Alliance of
Minneapolis v. Federal Transit Administration (LPA I), 91 F. Supp. 3d 1105 (D.
Minn. 2015), the court had held that,
although NEPA challenges under the
federal Administrative Procedure Act
(APA) generally cannot be brought
prior to a final agency decision (e.g., a
“record of decision”), a limited cause of
action exists under NEPA itself (not the
APA) against a state actor where a party
seeks to preserve federal rights under
NEPA pending the outcome of federal
procedural review. In LPA I, the court
concluded that the plaintiffs had pled
sufficient facts to survive a motion to
dismiss, presenting “significant allegations” in their complaint regarding how
the Met Council, through the Municipal
Consent process and through specific
dealings and agreements with various
municipalities, had dramatically reduced
the number of realistically available
routes for the SWLRT, despite the ongoing environmental review process.
In this case, by contrast, the court
found that the plaintiffs simply relied
upon the facts that the Met Council
had initiated the municipal consent
process and selected a preferred alternative prior to completing the FEIS. These
allegations lacked the kind of specific
facts presented in LPA I. The court
emphasized that NEPA anticipates some
preapproval with state and local bodies;
the limited cause of action recognized
in LPA I only comes into play where
plaintiffs can show that agency actions
have the practical effect of foreclosing
potential options prior to conclusion of
the environmental review process.
The court also rejected the plaintiffs’ claims under Section 4(f). Like
NEPA, Section 4(f) does not provide
an independent cause of action; judicial
review is available only through the
APA and only following final agency
action. In spite of the fact that the
Met Council and FTA have not yet
completed the NEPA and section 4(f)
processes, the plaintiffs argued that the
court should recognize a similar limited
pre-final-decision cause of action under
Section 4(f), as it did for NEPA in LPA
I, where agency actions are effectively
limiting the potential outcomes of the
Section 4(f) process. However, the court
declined to do so, citing differences
between NEPA and section 4(f)—e.g.,
the unique NEPA regulation relied upon
in LPA I that prohibits any action that
would “[l]imit the choice of reasonable
alternatives” prior to completion of the
environmental review process (40 C.F.R.
§ 1506.1(a))—and the lack of case law
in other jurisdictions recognizing such
a cause of action under Section 4(f).
Opus Woods Conserv. Ass. & SFI Ltd.
Partnership v. Metropolitan Council,
No. 15-1637 (D. Minn. 2/25/2016).
n Governor Dayton announces appointments to MPCA Citizen Advisory Committee. Minnesota Gov. Mark Dayton,
on 2/23/2016, announced the eight
members comprising the Governor’s
Committee to Advise the Minnesota
Pollution Control Agency (MPCA).
Dayton created the committee by executive order in August 2015 following the
Minnesota Legislature’s June 2015 bill
to terminate the MPCA Citizens’ Board.
For almost four decades, the board
served as the agency’s ultimate decisionmaking body, instead of the MPCA
commissioner, on various important
environmental decisions.
By contrast, the new governor’s
committee plays an advisory role only; it
is charged with “advis[ing] the commissioner of the MPCA prior to final
decisions on matters that are within the
scope of the MPCA’s statutory authority,
including but not limited to: environmental review, permitting, rulemaking,
and variances to existing rules.” Minn.
Gov. Dayton, Exec. Order 15-15, Creating the Governor’s Committee to Advise
the Minnesota Pollution Control Agency
(8/4/2015). “As regulators make decisions, and enforce our state’s environmental protection laws,” Dayton wrote
in the press release announcing the
newly appointed governor’s committee
members, “Minnesota citizens need and
deserve a seat at the table.” The committee members, whose initial terms expire
in April 2019, are as follows (biographies
provided by the governor’s office):
Craig Acomb: Acomb is the current
president and CEO of the Institute for
Clinical Systems Improvement (ICSI),
an independent, nonprofit health care
improvement organization composed
of three major health plans and more
than 50 medical groups representing
9,000 physicians. Previously, he was
an assistant commissioner and former
CFO at the Minnesota Department
of Health. Acomb is a member of the
Board of Trustees for the National MS
Society – Upper Midwest Chapter and
the Education Advisory Council for
HealthPartners Institute.
Amira Adawe: Adawe is a planner
and health educator of family health
and community engagement at Saint
Paul – Ramsey County Public Health,
where she plans the maternal/child
health policy initiatives and develops
their community engagement strategy.
She has previously served at Saint
Paul – Ramsey County Public Health
as a health educator in the Community
Health and Child/Teen Checkups programs. Adawe is a founding member and
co-chair of the Somali Health Coalition
and a member of the Metro Refugee
Health Group Task Force.
Cortney Amundson: Amundson is the
founder and director of Mindful Restoration, LLC, which provides eco-therapy
to individuals and groups by contracting
with organizations such as the Wounded
Warrior Project and the Department of
Veteran Affairs. Previously, she was the
supervisor of the military specific program at the Domestic Abuse Project and
served a four-year enlistment as a nondestructive inspection technician with
the United States Air Force. Additionally, Ms. Amundson provides therapy to
individuals and families at Secure Base
Counseling Center.
Kurt Anderson: Anderson is the
manager of the Environmental & Land
Management Department for ALLETE,
where he is responsible for the
mentation and compliance of air, water,
solid waste, and land management regulations. Previously, he was the operations
manager at ASci Corporation, a toxicology lab with a wide range of domestic
and international clients. Anderson is a
member of the MPCA Sulfate/Wild Rice
Advisory Panel, the Minnesota Chamber
of Commerce, and the Electric Power
Research Institute.
Dr. Rebecca Forman: Dr. Forman is
a senior analyst at Merjent, Inc., where
she prepares construction and industrial
stormwater pollution prevention plans
and supervises construction stormwater inspectors. Additionally, she is an
adjunct professor in the University of
Minnesota’s Department of Bioproducts
and Biosystems Engineering, an instructor for the Erosion and Stormwater
Management Certification program, and
is certified as a senior ecologist by the
Ecological Society of America. Previously, Dr. Forman was a project scientist
for Braun Intertec Corporation and an
adjunct professor of biology at the University of St. Thomas.
Nathaniel Hultgren: Hultgren is the
agronomy director for Meadow Star
Dairy, where he serves as a liaison between the dairy development and local
farmers. He is also the chief executive
officer of Hultgren Farms, a 5,000 acre
specialty crop farm, and previously was
the chief financial officer of the Bird
Island Bean Company. He is a member of the Heritage Bank Community
Advisory Committee and a past member
of the Hawk Creek Country Club Board
of Directors and the Willmar Airport
Planning Commission.
Norman Miranda: Miranda is a
senior technical advisor with HR Green
Company, where he consults with the
Central Iron Range Sanitary Sewer
District as its executive director and
served the City of Minneapolis Public
Works Department as a wastewater
conveyance/collection system manager.
Previously, he was a water/wastewater
business development manager with
HDR Engineering, Inc. and the president/chief executive officer/chairman of
OES Environmental Services. Miranda
is a member of the Minnesota Wastewater Operators Association and the Water
Environment Federation.
Ted Winter: Winter is a licensed
insurance agent with Farmers Union
Insurance, where he sells and services
property, casualty, life, accident, and
health insurance policies in southwest Minnesota. Previously, he served
16 years in the Minnesota House of
Representatives, including two years as
House majority leader. Additionally, he
owns and operates a 250-acre crop farm
and is a member of the Lions Club, the
Land Stewardship Project State Policy
Committee, and the Minnesota Farmer’s
Union, where he serves as county president for Nobles and Rock Counties.
–Jeremy P. Greenhouse
The Environmental Law Group, Ltd.
For more information and to view
background documents and links associated
with these updates, please visit Jeremy’s
environmental law blog, Fire on the River,
n Citizenship of real estate investment trust determined by reference to
its shareholders. In a brief, unanimous
opinion, the Supreme Court held that
for purposes of diversity jurisdiction, the
citizenship of a real estate investment
trust is to be determined by the citizenship of its shareholders. Americold
Realty Trust v. ConAgra Foods, Inc.,
___ S. Ct. ___ (2016).
n Denial of counsel’s motion to withdraw is an immediately appealable
collateral order. The 8th Circuit joined
every other circuit to have considered
the issue, and held that the denial of an
attorney’s motion to withdraw is a collateral order subject to immediate appeal
under 28 U.S.C. §1291. The 8th Circuit
also found that then-Chief Judge Davis
abused his discretion in denying counsel’s motion to withdraw where counsel
had not been paid and the client had
not cooperated with its defense, where
there was no evidence that the client or
any third party would be prejudiced by
the withdrawal. Sanford v. Maid-Rite
Corp., ___ F.3d ___ (8th Cir. 2016).
n Unaccepted offer of judgment does
not moot class claims. Last month, this
column noted that Supreme Court’s decision in Campbell-Ewald Co. v. Gomez,
136 S. Ct. 663 (2016), which held that
an unaccepted offer of judgment does
not moot putative class action claims,
but also hinted that the outcome might
be different “if a defendant deposits the
full amount of the plaintiff’s individual
claim in an account payable to the
plaintiff, and the court then enters judgment for the plaintiff in that amount.”
Magistrate Judge Noel recently
rejected what appears to have been the
first attempt in the District of Minnesota to take advantage of this apparent
exception, rejecting the defendant’s
motion to deposit funds with the Court,
April 2016 s Bench&Bar of Minnesota 37
finding that there was “no purpose in
the deposit defendant seeks to make
other than to moot the case,” and that
the plaintiff was first entitled to a “fair
opportunity to show that class certification is warranted.” Yaakov v. Varitronics, LLC, 2016 WL 806703 (D. Minn.
n E-discovery; recovery of related
costs under 28 U.S.C. §1920. Denying the
prevailing defendant’s motion for review
of a cost judgment, Judge Davis joined
the majority of courts to consider the
issue and found that the costs associated
with file conversion for e-discovery were
analogous to the costs associated with
making copies, and could therefore be
recovered under 28 U.S.C. §1920, but
that the costs associated with the collection, preservation, processing and indexing of electronically stored information
were not recoverable costs. Associated
Elec. & Gas Ins. Servs. v. BendTec, Inc.,
2016 WL 740409 (D. Minn. 2/24/2016).
n Jus tertii standing; discovery of
personally identifying information.
Reversing an order by Magistrate Judge
Mayeron, Chief Judge Tunheim found
that the defendant website had “jus
tertii” standing to assert the 1st Amendment rights of pseudonymous posters to
the website, that the plaintiff’s request
for information relating to the posters’
IP addresses constituted a request for
personally identifying information which
implicated the posters’ 1st Amendment
rights, and that the plaintiff was required
to make “reasonable efforts” to notify
the posters of the dispute and afford
them the opportunity to seek to quash
the discovery. East Coast Test Prep LLC
v., Inc., 2016 WL 912192
(D. Minn. 3/7/2016).
n How not to request attorneys’ fees.
The plaintiffs sought to recover more
attorneys’ fees under the fee-shifting
provision of the RFRA. One law firm
representing the plaintiffs sought more
than $22,000 for more than 55 hours of
work, and supported its application with
a four-page declaration from its lead attorney. However, that law firm failed to
provide any documentation to support
the reported number of hours worked.
Not surprisingly, Chief Judge Tunheim
concluded that “[w]ithout the benefit
of any billing or time records,” he was
“unable to ascertain whether [the law
firm’s] requested fees reflect a reasonable
amount of time expended,” and further
noted that without that documentation
“the defendants are unable to lodge particularized objections to the estimate.”
38 Bench&Bar of Minnesota s April 2016
But instead of completely rejecting
that fee application, Chief Judge Tunheim
denied the request for attorney’s fees
without prejudice, and allowed 30 days
for the plaintiffs to refile that portion of
their motion for attorney’s fees, with supporting documentation. Hall v. Sebelius,
2016 WL 424965 (D. Minn. 2/3/2016).
—Josh Jacobson
Law Office of Josh Jacobson
(IGRA) requires National Indian Gaming Commission (NIGC) approval of all
contracts to operate gaming activities
at tribal casinos (termed “management
contracts”). IGRA places strict payment limits on management contracts,
including specifying that management
contractors cannot collect more than
30% (or in some cases 40%) of the net
casino revenues. IGRA further requires
tribes to maintain the “sole proprietary
interest” in the gaming activities.
Bettor Racing contracted to operate
a pari-mutuel betting business with a
tribal casino. After the NIGC approved
n Trust responsibility; special relation- the management contract, the parties
modified the contract to pay Bettor
ship between tribes and U.S. does not
Racing more than 40% of net revenues.
override statute. Under the Indian Self
The NIGC found that Bettor Racing
Determination Act (ISDA), tribes may
violated IGRA by: (1) managing a tribal
contract with federal agencies to take
gaming operation without an approved
control of a variety of federally funded
programs. The ISDA declares Congress’s management contract; (2) operating
under unapproved modifications; and
“commitment to the maintenance
(3) holding a proprietary interest in the
of the Federal Government’s unique
pari-mutuel betting operation, and fined
and continuing relationship with, and
responsibility to, individual Indian tribes Bettor Racing $5 million.
The 8th Circuit affirmed the fine,
and to the Indian people as a whole[.]”
rejecting Bettor Racing’s defense that
25 U.S.C. §450a(b). Contracting tribes
it believed that the tribe had secured
are eligible to receive the amount of
money that the government would have NIGC approval. It reasoned that the
otherwise spent on the program plus re- Act’s plain language requires no scienter
imbursement for reasonable administra- and instead imposes strict liability on
tive overhead, termed “contract support unapproved management contractors.
costs.” The ISDA imports the Contract Bettor Racing, Inc. v. National Indian
Disputes Act (CDA) dispute-resolution Gaming Commission, ___ F.3d ___,
2016 WL 362285 (8th 2016).
provisions, which include a six-year
statute of limitations.
n Criminal jurisdiction; tribal court
Tribal contractors have repeatedly
simple assault is predicate offense. The
complained—including in a 1990 class
United States prosecuted a defendant
action and 2001 putative class action—
under a habitual-offender statute, 18
that the federal government has not
U.S.C. 117, relying in part on a 2002
honored its obligation to pay contract
tribal-court conviction for simple assupport costs. After class status in the
2001 case was denied, the Menominee
sault. The defendant argued that the
federal habitual-offender conviction
tribe sued separately for its own concould not stand because the tribal court
tract-support claims for contract years
conviction was for attempt, not assault.
1995-2004. The district court dismissed
the claims for 1995-1998 as time-barred. The 8th Circuit upheld the federal
The Supreme Court agreed, emphaconviction, reasoning that the statute
allowed “any assault” as a predicate
sizing that the U.S. trust relationship
with tribes is “governed by statute rather offense, and that common-law assault
than the common law.” It held, inter alia, readily embraces attempt-based assaults
that because the ISDA points directly to like the tribal-court conviction. U.S. v.
the CDA—including the CDA’s six-year Harlan, ___ F.3d. ___, 2016 WL 611832
presentment deadline—to resolve dis(8th Cir. 2016).
putes, the unambiguous statutes control,
regardless of the “general trust relationn Criminal jurisdiction; tribal public
ship.” The ISDA’s statement of congres- safety officer was “federal officer.”
sional commitment did not overcome
The United States charged a defendant
the six-year limitation. Menominee Inwith one count of assault of a federal
dian Tribe of Wisconsin v. United States, officer after the defendant struck a
136 S.Ct. 750, ___ U.S. ___ (2016).
tribal officer who was responding to
a report of a violation of tribal law on
n Indian gaming; scienter not required the tribe’s reservation. The defendant
to violate Indian Gaming Regulatory
sought to overturn the conviction,
Act. The Indian Gaming Regulatory Act arguing that the tribal officer was not
a federal officer within the meaning
of 18 U.S.C. 111. The 8th Circuit
disagreed and upheld the conviction.
It reasoned that the Bureau of Indian
Affairs (BIA) has responsibility for law
enforcement in Indian country, and
tribal officers operating under contracts
with the BIA act under both the tribe’s
inherent authority and delegated federal
authority. The officers are accordingly
afforded the same protection under 18
U.S.C. 111 as BIA employees. U.S. v.
Janis, 810 F.3d 595 (8th Cir. 2016).
n IRS issues proposed regulations
regarding consistent basis reporting.
The IRS released temporary and proposed regulations to provide additional
guidance regarding basis consistency
and information reporting requirements
of new IRC sections 1014 and 6035 on
March 2, 2016. The Federal Taxation
Committee of the MSBA’s Probate &
Trust Law Section monitors and reports
on federal legislation and IRS rules that
n Criminal jurisdiction; certificate of
impact the practice of estate planning.
degree of Indian blood admissible. To
These regulations are discussed in the
sustain certain assault charges, the Unit- March 2016 update located at http://bit.
ed States had to prove that the defenly/1RgHgGJ
dants were Indians, which the 8th Circuit
—Robin Tutt
defines as a person who “(1) has some
Lindquist & Vennum LLP
Indian blood, and (2) is recognized as an
Indian by a tribe or the federal government or both.” To establish this element
of the charge, the United States called
a Bureau of Indian Affairs official whose
office certifies blood quantum. The ofn Landlord-tenant; equitable subrogaficial testified that his office had prepared tion. The Minnesota Supreme Court
for each defendant a certificate entitled
held that a landlord could not proceed
“Certified Degree of Indian Blood,” and
on a subrogation claim against tenants
that both certificates stated “I hereby
that caused fire damage to the landlord’s
certify that the above named individual
building to the extent that the claim
is for repair of units other than those
is an enrolled member of the Standing
Rock Sioux Tribe.” An enrollment clerk
leased by the at-fault tenant. The lease
signed both certificates. The defendants
stated in relevant part that the tenant
argued that the testimony violated the
“shall reimburse [the landlord] for . . .
6th Amendment’s confrontation clause
[a]ny loss, property damage, or cost of
because the official testified instead of
repair or service . . . caused by neglithe clerk. The 8th Circuit disagreed and gence or improper use by” the tenant.
upheld the convictions, reasoning that
The district court dismissed the claim
the certificates were business records
against the tenant because this provision
did not specifically enumerate fire loss
outside the scope of the confrontation
clause. U.S. v. Rainbow, ___ F.3d ___,
nor specifically allocate the risk of loss to
other parts of the building to the tenant.
2016 WL 683113 (8th Cir. 2016).
The court of appeals and Supreme Court
n Federal law applicability; Title
interpreted the provision otherwise,
VII civil rights claims against tribal
holding that the risk allocation provision
enterprise dismissed. The district court was very broad, and emphasized the use
dismissed plaintiffs’ Title VII claims
of the word “any.” However, the Suagainst a tribal casino for lack of subject preme Court read the provision to apply
matter jurisdiction for two reasons. First, only to the defined term “apartment,”
the court noted that by its express terms, even though that term was not used or
the civil-rights statute does not apply to referred to in the “any loss” clause of
tribes. The 8th Circuit has interpreted
the risk allocation provision. The Court
this exception to include tribal business- noted that the “vast majority” of the
es. Second, the casino shares the tribe’s tenants’ obligations related solely to the
immunity from suit, and because the
apartment. The Court therefore refused
casino had not waived that immunity,
to extend the lease provision to make
no suit could lie. The court accordingly tenants responsible for damage to units
dismissed the suit for lack of jurisdiction. other than the one the negligent tenant
Nawls v. Shakopee Mdewakanton Sioux leased. Melrose Gates, LLC v. Moua,
Community Gaming Enterprise—Mys- No. A14-1131, 2016 WL 626052, ___
tic Lake Casino, Case No. 15-2769,
N.W.2d ___ (Minn. 2016).
2016 WL 593514 (D. Minn. 2/2/2016).
—Jessica Intermill n Mortgage; RESPA; quiet title. Owners
—Peter Rademacher of foreclosed residential property sued
Hogen Adams PLLC Wells Fargo and law firm
ing Wells Fargo in the foreclosure. The
homeowners fell behind on payments
and explored modification options with
Wells Fargo, of which none were acted
upon by either party, apparently partly
due to the fault of the homeowners and
partly due to miscommunication by
Wells Fargo. Wells Fargo moved to dismiss all four amended claims of breach
of contract, breach of the duty of good
faith, negligent misrepresentation, a RESPA violation, quiet title, and declaratory judgment. Owners first alleged that
the boilerplate “governing law” provision
incorporated RESPA and the Minnesota
Homeowner’s Bill of Rights, a violation
of which causes a breach of contract.
The Minnesota Federal District Court
noted that the 8th Circuit has not addressed this argument, but held that
other courts around the nation have
rejected the argument that statutory violations give rise to a breach of contract.
The court held that the mortgage must
include specific references to statutes or
regulations for violations of those laws to
give rise to a breach of contract.
Second, the homeowners alleged
violations of RESPA because Wells Fargo
failed to respond to inquiries, provided
inaccurate information, and proceeded
to foreclosure without properly considering possible loss mitigation options. The
homeowners’ claims were based on RESPA’s implementing regulations, 12 C.F.R.
§§1024.38 and 1024.41. The Court held
that §1024.38 does not create a private
cause of action, consistent with the holdings of several other cited federal district
court opinions from around the nation.
The Court dismissed the §1024.41
claim because the homeowners did not
plausibly allege that Wells Fargo failed to
exercise reasonable diligence in obtaining information from the homeowners
for purposes of considering loss mitigation options. Finally, with regard to the
quiet title claim, the homeowners alleged
that the foreclosure sale is invalid because the mortgagor’s legal name differed
from the name used in the mortgage
and the notice of foreclosure. The court
dismissed the claim on the grounds that
the foreclosure by advertisement statute
requires only the name as it is stated in
the mortgage, and does not require an
independent verification of a mortgagor’s
legal name. Anderson v. Wells Fargo
Home Mortgage, No. 14-5013, 2016 WL
755615 (D. Minn. 2/25/2016).
n ADA, MHRA. The Minnesota Federal
District Court issued three closely related opinions, notable for their divergence, in cases brought by individual
disabled plaintiffs and the Disability
April 2016 s Bench&Bar of Minnesota 39
Support Alliance (DSA) against property owners throughout the state for failures to make their properties accessible
to people with disabilities. In each of the
cases, the courts found that the individual plaintiffs had standing to bring
claims that certain real property was
inaccessible to them in violation of the
Americans with Disabilities Act and the
Minnesota Human Rights Act. However, the opinions diverged on whether the
DSA had standing to pursue the claims
on behalf of their members. In the first
opinion, Heartwood Enterprises, LLC, the
Court held that the DSA failed the third
prong of association standing because
the claims required individualized proof
and therefore the participation of individual DSA members.
In the second opinion, Billman, the
court held that accessibility claims do
not require the presence of particular
DSA members. In the third opinion, the
court held the DSA satisfied the third
prong because the relief sought would
inure to all members and would therefore not require individual participation.
All three court opinions dismissed bias
claims under the MHRA. In the case
involving Heartwood, the court dismissed the MHRA bias claim because
of and after concluding that removing
architectural barriers such as stairs is not
readily achievable. In the case involving
Billman, the court instead dismissed the
MHRA bias claim by first requiring a
state of mind element that the property
owner intended to exclude people with
disabilities because of their disabilities,
and then concluding that the plaintiffs
had not pled facts regarding the property
owner’s state of mind.
In Monali, Inc., the court dismissed
the MHRA bias claim on Twombley
grounds, and refused to decide whether
the claim requires allegations regarding the property owner’s state of mind.
Only the Heartwood Enterprises decision evaluated the merits of the ADA/
MHRA claims. The court held that the
plaintiffs did not provide evidence that
removing the architectural barriers was
readily achievable. Disability Support
Alliance v. Monali, Inc., No. 15-CV1522; 2016 WL 868174 (D. Minn.
3/4/2016) (adopting Magistrate Leung’s
Report and Recommendation at 2016
WL 859442 (D. Minn. 2/12/2016));
Disability Support Alliance v. Billman,
No. 15-CV-3649, 2016 WL 755620 (D.
Minn. 2/25/2016); Disability Support
Alliance v. Heartwood Enterprises,
LLC, No. 15-CV-529, 2016 WL 740411
(D. Minn. 2/24/2016).
—Joseph P. Bottrell
Meagher & Geer, PLLP
40 Bench&Bar of Minnesota s April 2016
judicial law
n Individual income tax: Determination
of residency. Concluding that the tax
court erroneously interpreted Minnesota’s residency statute, the Minnesota
Supreme Court reversed the tax court
and held that a taxpayer couple who had
claimed to be part-year residents were
instead properly considered full-year
residents. At issue in the case was how
to determine residency for individuals
domiciled for only part of a year in the
state. Minnesota “residents” are taxed on
all of their income; income is allocated
differently for individuals who reside in
Minnesota for only part of the year (and
nonresidents). For example, non-residents and part-year residents are taxed
on only a portion of any partnership, S
corporation, trust, or estate income. The
precise issue in dispute was whether an
individual could be a “resident” when
that person is domiciled both “in Minnesota” and “outside the state” during
a given tax year. The Court determined
first that the statute was ambiguous on
that point, and then went on to analyze
legislative intent by considering the statute’s purpose and a longstanding agency
interpretation that is entitled to deference. The Court held that the statute
allows the commissioner to count all the
days a taxpayer is physically present in
Minnesota to determine whether the taxpayer is a “resident” as defined in Minn.
Stat. §290.01, subd. 7(b), including days
spent in the state as a domiciliary. The
dissenting justices disagreed that the
statute was ambiguous, and would have
upheld the tax court’s interpretation of
the statute. The “plain and unambiguous
language of the statute,” the dissent reasoned, does not permit the commissioner
of Revenue to treat part-year Minnesota
residents as full-year taxable residents
under the physical-presence test in Minn.
Stat. §290.01, subd. 7(b) (2014). Marks
v. Comm’r, No. A15-1145, 2016 WL
639868 (Minn. 2/17/2016).
n Sales & use tax: Audit errors in
estimated alcohol sales. Blarney’s Pub
& Grill, located near the University of
Minnesota, was audited for the tax year
of 2009. The auditor’s errors resulted
in a large discrepancy between the
auditor’s estimated sales of alcohol and
Blarney’s reported sales. The errors
resulted from the auditor’s miscalculations and misrepresentations of the
pricing of alcohol and Blarney’s use of
discount nights and happy hours. The
auditor estimated alcohol sales in 2009
at $1,808,357 while Blarney’s reported
sales of $707,654. Further, the auditor
estimated that Blarney’s had purchased
$1,981,365 in alcohol, while Blarney’s
actual purchases totaled $277,971.
Blarney’s appealed, resulting in a
recalculation of the sales tax. The commissioner’s recalculation used an industry standard for bars that a dollar spent
on alcohol should produce $2.30 in
revenue, while a full restaurant should
make $4.50 on every dollar. The first audit estimated that Blarney’s made nearly
$7 on each dollar spent on alcohol. Due
to these discrepancies, the commissioner
found that the assessment was incorrect.
More Inc. v. Commissioner of Revenue,
Docket No. 8395–R 2016 WL 715004
(Minn. T. Ct. 2/19/2016).
n Sales & use tax: Procedure and
statute of limitations. In 2014, months
after discovery of Blarney’s Pub &
Grill’s appeal from the above audit, the
commissioner sent Blarney’s two documents, “Computation of Tax, Penalty,
and Interest by Period” and “Explanation of Adjustments.” These documents
significantly lowered the assessed taxes
that Blarney’s owed, while asserting
that Blarney’s had not paid these taxes.
Because the statute of limitations for
assessment had long expired, Blarney’s
moved in limine to bar these additional
taxes. Blarney’s asserted the documents
were “orders” from the commissioner
and therefore unenforceable because it
was past the statute of limitations. The
court, upon reconsideration, found that
the documents were not orders because
they were not signed by the commissioner or her delegate. Therefore, the court
granted the commissioner’s motion for
reconsideration. More Inc. v. Commissioner of Revenue, Docket No. No.
8395–R, 2016 WL 770064 (Minn. T. Ct.
n Property tax: ‘Green Acres’ status
denied. STRIB IV, LLC challenged the
county’s denial of its application for a favorable tax treatment under Minn. Stat.
§273.111, known as “Green Acres.” The
statute mitigates property tax by using
an agricultural value instead of estimated market value. Along with other
qualifications, the statute limits tax deferments to “parcels owned by individuals” unless one of the following exceptions apply: a family farm; an entity that
is not regulated under §500.24 (farming
by business organizations), in which a
majority of the members are related and
at least one member either resides on
the land or actively operates the land;
and corporations that derive 80 percent
or more of their gross receipts from the
wholesale or retail sale of horticultural
or nursery stock. STRIB IV is not an
individual or one of the exemptions
specified. The court rejected STRIB’s
argument that its federal status as a
disregarded entity (DRE) should be used
to determine its eligibility for the Green
Acres statute, holding that DRE treatment under Minnesota law is limited
to chapters 290 and 289A. Because tax
exemptions are strictly construed and
STRIB IV did not fit any of the exemptions, the court upheld the county’s
denial of Green Acres treatment to the
subject property. STRIB IV, LLC. v.
County of Hennepin, Docket No. 27–
CV–12–11344 2016 WL 561916 (Minn.
T. Ct. 2/8/2016).
—Morgan Holcomb
—Jessica Voigt
Mitchell Hamline School of Law
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n Equitable subrogation—landlord/tenant. Defendant tenant leased one apartment in a 36-unit building. The lease
covered a variety of topics, including
liability for damage to property. Later, a
fire caused by tenant’s negligence caused
damage to tenant’s unit and a neighboring unit. The trial court granted tenant’s
summary judgment motion holding that
the parties did not reasonably expect that
tenant would be liable for losses. The
court of appeals reversed and remanded.
The Minnesota Supreme Court
affirmed the decision of the court of
appeals in part and reversed in part.
Applying a de novo standard of review,
the Court held that the landlord’s
insurer could seek recovery of damages
to the tenant’s unit. The Court relied on
language in the lease, which provided
that tenants shall reimburse landlord for
“[a]ny loss, property damage, or cost of
repair or service... caused by negligence
or improper use by [Tenant], his/her
agents, family or guests.” The Court,
however, held that the insurer could not
seek recovery of damages caused to the
neighboring unit because the language
in the lease was limited to tenant’s unit.
Justice Lillehaug, joined by Justices
Gildea and Anderson, dissented in part,
arguing that an abuse of discretion standard applied to the district court’s order
given that the claim was for equitable
subrogation. Melrose Gates, LLC, v.
Moua, No. A14-1131 (Minn. 2/17/2016).
—Jeff Mulder
Bassford Remele, A Professional Association
We’ve got you covered
The CLE reporting deadline is June 30, 2016
If you still need CLE credit, check
out the MSBA’s On Demand CLE
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April 2016 s Bench&Bar of Minnesota 41
People Practice
n Michael Congiu was named as
a co-chair of Littler’s Business and
Human Rights practice group. Congiu
is a shareholder of the firm and has
significant experience advising clients
on international labor standards, global
union federations, and business and
human rights.
n Samuel M. Johnson joined Skolnick
& Joyce, PA as an associate attorney.
Johnson graduated from the University
of St. Thomas School of Law in 2013.
He will practice primarily in the areas of
civil litigation and family law.
n Lindsey Streicher has joined Brownson & Linnihan, PLLP. Streicher’s practice includes insurance coverage, products liability, and asbestos defense. She
is admitted to practice in the state
courts of Minnesota and Wisconsin.
n Terrence J. Fleming and Sandra
Smalley-Fleming joined Fredrikson &
Byron as shareholders. Fleming represents parties nationally in commercial
fraud cases. Smalley-Fleming maintains
a national practice representing parties
in cases involving commercial fraud
and securities fraud, as well as investorbroker disputes.
In Memoriam
Allan R. Markert of West St. Paul
passed away at the age of 87. He was
a retired district court judge.
Joseph Herbert Rivard of
Roseville passed away on February
17, 2016 at age 85. Joe was a wellrespected Saint Paul attorney for
nearly 50 years. Early in his career,
he also served as a Ramsey County
Judge for the Juvenile Division, and
an assistant sheriff and constable in
White Bear Lake.
Richard Francis Koch, age 70,
of River Falls, WI, Long Beach,
CA, and St. Paul, MN passed away
peacefully on March 10, 2016. He
was a 1971 graduate of the University
of Nebraska Law School, and the
founding member of the Koch &
Garvis law firm
42 Bench&Bar of Minnesota s April 2016
n Each year, the
Hennepin County
Bar Association
recognizes three
attorneys who have
made a significant contribution
through pro bono
service. The Pro
Bono Publico awards
are presented to
lawyers in recognition of the time,
knowledge, and devotion given in service to the community. Recipients of
the 2016 awards are
James Long (Briggs
& Morgan), Tom
Walsh (Volunteer
Lawyers Network),
and Don McNeil
(Heley, Duncan &
Melander). The
awards were presented at the 36th
annual HCBA Bar
Benefit on March
10, 2016.
n Bob McLeod joined Briggs and Morgan
in the trusts and estates section, bringing
more than 20 years of experience counseling clients in the areas of estate planning,
probate and fiduciary litigation, and guiding clients through legalities surrounding
charitable gifts, wealth preservation, and
business succession.
James Long
n Jana Aune Deach and Tom Shroyer
were elected to three-year terms as members of the board of directors of Moss
& Barnett, A Professional Association.
Deach is a member of the firm’s family
law team, and this will be her first term
serving as a director. Shroyer is chair of
the firm’s accountant law team and a
member of the firm’s litigation team.
Tom Walsh
n Henson & Efron, PA announced that
Allison M. Plunkett joined the firm as
an associate practicing in business law,
and Eric M. Friske joined the firm as an
associate practicing in litigation. Plunkett advises and represents businesses
and individuals in a variety of transactions. Friske represents individuals and
businesses in a wide range of complex
business and commercial disputes.
Don McNeil
n Alexia Miles joined rb LEGAL, LLC
as an associate attorney. Miles practices
exclusively in the area of estate planning
(wills, trusts) and estate administration.
n Fox Rothschild has merged with
the Minneapolis-based law firm of
Oppenheimer Wolff & Donnelly LLP.
Effective January 1, Fox Rothschild
added all of Oppenheimer’s 82 attorneys
to the firm.
n Peter J. Rademacher, who graduated
from William Mitchell College of Law,
joined Hogen Adams PLLC as an
associate attorney. He now focuses his
practice on federal Indian law.
n Shareholders at Briggs and Morgan,
P.A. recently elected the members of
its 2016 board of directors: Gregory
J. Stenmoe, president and managing
partner; Nancy C. Aiken, vice president;
Charles W. Johnson, secretary; and
members Timothy G. Gelinske, Michael
D. Gordon, Michael C. Krikava, Steven J. Ryan, Matthew A. Slaven, and
Frank A. Taylor.
n Kimberly A.
Lowe was appointed by the Minnesota Governor, Attorney General and
Chief Justice to
serve as a Minnesota Commissioner
at the National
Kimberly A. Lowe
Conference of
Commissioners on Uniform State Laws.
Her appointment was effective February 18, 2016. Lowe is an attorney at
Fredrikson & Byron.
n Pa Houa Vue joined Dougherty,
Molenda, Solfest, Hills & Bauer PA as
an associate. Vue is a 2014 graduate of
Hamline University School of Law. Vue
practices in the areas of banking and
finance, business, and employment law.
n Rebecca K. Coffin has been named a
partner of Voigt, Rodè & Boxeth, LLC.
Coffin focuses on employment law and
HIPAA, accounts receivable, and regulatory matters. She also assists clients
with licensing, changes of ownership,
and bed relocations.
n Jim Killian
was appointed to
serve as co-chair
of Maslon LLP’s
litigation practice
group. Killian joins
Co-Chair Jason
Lien. Killian is a litigator in the areas
Jim Killian
of corporate trust,
construction, and commercial litigation.
In the last five years, his practice has focused on representing corporate trustees
in litigation matters.
n Alan M. Anderson, president of
Alan Anderson Law Firm LLC, was
appointed to a three-year term as a
member of the Australian Centre for
International Commercial Arbitration (ACICA) Council. The mission
of ACICA is to educate, promote, and
encourage the use of international commercial arbitration as a means of dispute
resolution within Australia and the
Asia-Pacific Region. Anderson practices
in the areas of intellectual property litigation, complex commercial litigation,
and international arbitration.
n Michael G. Dougherty was reelected president of Dougherty,
Molenda, Solfest, Hills & Bauer PA.
Loren M. Solfest, Sharon K. Hills,
Robert B. Bauer, and Stephen A. Ling
were elected to the board of directors.
The firm celebrated its 30th anniversary
on March 1, 2016. The firm has been
providing full-service legal representation to clients locally, nationally, and
internationally since 1986.
n The Minnesota State Bar Association
announced the certification of Grant
T. Collins, Felhaber Larson Fenlon &
Vogt; Melissa Listug Klick, Paul Plenn
Sullivan & Connaughton LLP;
Jessica M. Marsh, Felhaber Larson
new_features_dec15b.qxp_Layout 1 11/17/15 9:23 AM Page 1
Fenlon & Vogt; Andrea Ostapowich,
Bertelson Law Offices PA; Margaret
(Molly) Ryan, Meagher & Geer PLLP;
David E. Schlesinger, Nichols Kaster
PLLP; Daniel E. Warner, Warner Law
Office PA; as MSBA Board Certified
Labor and Employment Law Specialists.
This Certification program is administered by the MSBA and approved by the
State Board of Legal Certification.
n Eran Kahana
was re-elected
to the board
of directors for
the Minnesota
Chapter of
InfraGard. Kahana
is a technology
and intellectual
Eran Kahana
property attorney
at Maslon LLP. His practice focuses on
cyber security, patent, trademark, and
copyright law.
as es.
id tur
e fea
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(612) 333-1183
(800) 882-6722
April 2016 s Bench&Bar of Minnesota 43
Opportunity Market
Attorney Wanted
A GROWING Minnetonka plaintiff personal Injury law firm with a busy national litigation practice seeks a full-time
Attorney with experience, preferably in
the areas of Federal Employers’ Liability
Act, personal injury, wrongful death and/
or product liability. Applicants should
be self-starters and interested in civil
ligation, research and motion practice.
Please submit cover letter, resume, and
references to: [email protected]
ASSOCIATE Attorney. Hanft Fride in Duluth ( currently seeks
candidates with zero to three years of experience to join the firm in the associate
attorney position. We are a full service
law firm; the successful candidate will
have a strong academic record, exceptional writing skills, and interest in experiencing a range of practice areas, with a
goal of identifying an area of specialization as his or her skills develop. Please
direct resume, cover letter and writing
sample to: [email protected] or Hiring
Attorney, Hanft Fride, PA, 1000 US Bank
Place, Duluth, MN 55802.
ADJUNCT Faculty Positions Available.
Mitchell Hamline School of Law is currently hiring for adjunct faculty to teach
the Lawyering: Advice and Persuasion
skills course starting in the fall 2016.
This is a six-credit, two-semester, graded course that students take in their first
year of law school. Teaching occurs in
small classes taught on a part-time basis
by practicing lawyers and judges serving as adjunct professors. We are looking for both writing and representation
professors in our resident and hybrid
programs. Please submit resume, cover
letter, and writing sample to Human Resources, 875 Summit Avenue, St. Paul,
MN 55105; by email to [email protected]; or by fax to (651) 290-8645.
Candidates participating in the selection
process will be asked to complete a
marking exercise. Knowledge of course
management systems helpful. Members of under-represented groups are
encouraged to apply. AA/EOE. The application deadline is May 2, 2016.
CORPORATE Attorney. Fafinski Mark
& Johnson was chosen as one of the
‘100 Best Companies to Work For’ by
Minnesota Business magazine for four
years consecutive years and has an open
full-time position for an experienced Associate Attorney in our Aviation and Corporate practice groups. We are seeking
an attorney with at least three years of
experience in commercial lending, assetbased lending and/or equipment leasing. A background in aviation is a plus.
This position is a great opportunity for
a candidate interested in being an integral part of a well-respected corporate
practice. We offer excellent benefits, a
salary commensurate with experience,
performance-based bonuses and an opportunity for professional growth. Please
email resume and cover letter with salary requirements to [email protected] or mail to FMJ-HR, 775 Prairie
Center Drive, Ste. 400, Eden Prairie, MN
55344. FMJ is an EEO/AA employer.
ASSOCIATE Attorney -- Family Law. Olson Law is seeking an associate attorney with two to five years of family law
experience to join our team in Buffalo,
Minnesota. Ideal candidate must be detail oriented, knowledgeable in the area
of family law, and interested in being
part of a small firm committed to exceptional client service. In addition to case
management, applicant will be expected
to participate in marketing and business
development efforts and committed to
building a successful overall practice. If
you are interested in becoming the newest member of a rapidly growing firm,
please send cover letter and resume to:
[email protected]
OFFICE of the Solicitor General. The Office of the Solicitor General within the
Minnesota Attorney General’s Office is
accepting resumes from highly capable
civil litigation attorneys who are interested in representing the government and
people of Minnesota in high profile legal
matters in all state and federal courts. Attorneys in the Solicitor General’s Office
appear on behalf of the State of Minnesota in district and appellate courts in
some of the most important, challenging
cases facing the state and its citizens.
Lawyers in the office defend the constitutionality of state legislation, represent
the state in appellate courts, and represent the public in other important mat-
44 Bench&Bar of Minnesota s April 2016
ters, including statutory disputes and
defense and prosecution of lawsuits.
Requirements: Our selection process
is competitive. Applicants should have
successful legal practice experience,
impeccable research, writing, and communication skills, outstanding academic
credentials, good work ethic, character
and judgment, and a strong professional drive. Service with the office may
qualify applicants to have part of their
student loans forgiven under the federal
student loan forgiveness program that
applies to state government employees. (For more information, visit www.
Applications: Please submit a cover letter and resume that includes relevant
experience and academic credentials
to: Office of the Minnesota Attorney
General, Attention: June Walsh, 900
Bremer Tower, 445 Minnesota Street,
St. Paul, MN 55101, [email protected] The Office of the Attorney General is an equal opportunity employer. If
you need reasonable accommodation
for a disability, please call June Walsh at
(651) 757-1199 or (651) 296-1410 (TTY).
EXECUTIVE Director. Public interest
law firm being developed to provide
affordable legal services to middle
class working families seeks executive
director candidates and other attorneys.
Reply to: Public Interest Law Firm – P.O.
Box 3780, Minneapolis, MN 55403.
WE SEEK an experienced associate or
partner-level attorney. We are principal
counsel to engineering firms locally
and we support in-house legal counsel
of firms across the country. We count
good construction industry contractors
in our clientele. We provide general corporate advice, drafting and negotiating
contracts, and project and risk-management support through litigation and
appeals. Candidates must be willing to
work hard, be very responsive to clients, and they should have experience
in litigating design and construction industry disputes. No book of business
is required but will be a plus if compatible. Interested candidates should email
a cover letter and resume to: Bench &
Bar Box 293, c/o MSBA, 600 Nicollet
Mall, #380, Minneapolis, MN 55402.
PARTNER-Level Business Litigation
Attorney. Thompson Hall seeks a
partner-level business litigation attorney
with ten plus years’ experience. Learn
more at:
CAMBRIDGE, MN general practice law
firm (located 45 miles north of downtown Minneapolis/St. Paul) seeking
associate attorney interested in the
general practice of law and prosecution
of misdemeanor/gross misdemeanor
cases for small city. Send resumes to:
Joslin & Moore Law Offices, PA, 221
NW 2nd Ave., Cambridge, MN 55008;
email to [email protected]
OPPEGARD & Quinton, an AV-rated
law firm specializing in civil litigation,
is looking for associate candidates. We
are open to someone with 0-20 years of
experience who has excellent academic
credentials. An individual with outstanding research and writing skills and a
desire to live in the Fargo-Moorhead
community would be an ideal prospect.
Please send resume and cover letter to:
Oppegard & Quinton, Attn: Erica Usselman, P.O. Box 657, Moorhead MN
56561 or [email protected]
TOP 20 Minnesota law firm looking for
exceptional associate or partner candidate with a minimum five to ten years
of complex commercial litigation experience. The ideal candidate will have
demonstrated superior analytical, research and writing skills and also have
substantial litigation and trial experience in complex commercial litigation
in both federal and state court, preferable with experience in class action,
insurance coverage, business torts and
intellectual property litigation. We are
looking for a hard-working, motivated
and independent individual who seeks
the opportunity to grow as an attorney.
Demonstrated business development
skills are desired. Please submit application, resume and writing sample to:
[email protected]
Fox Rothschild LLP is seeking a real
estate associate to join our Minneapolis
office. The ideal candidate will have two
to four years of general real estate law
experience. Strong academic record and
excellent writing skills required. Must
be licensed to practice in the State of
Minnesota. Large law firm experience
WOODS, Fuller, Shultz & Smith PC, a
36-lawyer, full service law firm, with
offices in Sioux Falls, South Dakota,
and Sioux Center, Iowa, seeks a lawyer
for its Sioux Falls office with three
to five years of experience in estate
PRODUCT Liability & Environmental As- planning for its growing estate planning
sociate. The global law firm of Faegre practice group. Successful candidate
Baker Daniels LLP is actively recruit- will be licensed or able to become
ing an experienced associate to join licensed in South Dakota. Please send
the Product Liability and Environmental confidential cover letter and resume
practice group in our Minneapolis office. to: Woods, Fuller, Shultz & Smith P.C.,
Faegre Baker Daniels is an AmLaw 100 Attn: David Kroon, PO Box 5027, Sioux
firm with offices located throughout the Falls, SD 57117-5027.
U.S., Asia and the UK. Our ideal candisssss
date would be an attorney with three or
more years of experience in product li- THE LEGAL Professionals™ PA in
ability litigation from an AmLaw 100 law New Ulm, Hutchinson, Sleepy Eye,
firm. Excellent research, written and oral and Winthrop, MN is seeking an
communication skills, attention to detail experienced attorney to practice in
and very strong academic credentials are the areas of wills, trusts, real estate,
required. This position offers competitive probate, trust administration, elder law
compensation and unlimited potential and business. Send resume and three
for professional growth. If you are look- references in confidence to: nicolea@
ing for an opportunity with a growing,, call (507)
collaborative firm, please apply online 233-6376, or mail to 106½ North
here and include your resume, unofficial Minnesota St New Ulm MN 56073.
transcript, writing sample, and cover letsssss
ter, or send these materials to Kaitlin.
Senior Bank Attorney – Senior
[email protected]
Counsel position. Bremer Bank, NA
seeks an attorney with seven to ten
STINSON Leonard Street LLP is seeking years experience representing financial
an associate with less than three years institutions. The successful candidate
of law firm experience to join the Health must demonstrate significant expertise
Care and Insurance Practice Division in in drafting and negotiating vendor/third
our Minneapolis office. Qualifications Re- party contracts as a significant portion
quired: Juris Doctor and active Minnesota of this position’s responsibilities include
attorney license or eligibility for Minnesota providing legal support to third party
licensure is required. Qualified candidates risk management. Additional areas of
must have practiced up to three years in practice experience should include
a law firm, preferably with health law ex- social media; technology; on-line and
perience. Experience advising device and/ web based banking products and record
or pharmaceutical manufacturers, health keeping. Interested applicants should
information technology companies and/ submit a cover letter and resume to:
or health care insurers is a plus. Excep-
tional academic performance and excelsssss
lent research, writing and analytical skills
are also required. To Apply: Please send BUSINESS / Real Estate Associate
a cover letter, resume, writing sample – Felhaber Larson is seeking an
and a copy of your law school transcript associate with a minimum of three
by email to: Lynda Moore, Chief Attor- years of experience to join our thriving
ney Recruiting & Development Officer, Business and Real Estate Sections. The
Stinson Leonard Street LLP, recruiting@ ideal candidate must have extensive Stinson Leonard Street is an experience in real estate transactions,
EEO employer. We encourage qualified business transactions and finance.
minority, female, veteran and disabled Felhaber Larson offers competitive
candidates to apply to be considered for compensation, a full benefits package
open positions. We offer a competitive and a generous retirement program.
compensation and benefits package. We Please submit your cover letter and
conduct criminal background checks of all resume to Marnie Fearon, Recruiting
individuals offer employment. For more Chair,
information about Stinson Leonard Street, [email protected]
visit us at
preferred. EOE. We are currently not accepting resumes from search firms for
this position. If interested please apply on
our website at:
April 2016 s Bench&Bar of Minnesota 45
ASSOCIATE Attorney: Small firm practicing in the areas of estate planning,
probate, real estate and business law.
Strong writing, computer and client communication skills required. Send, fax, or
email resume to: Richard Bunin, Metropoint Tower Suite 1670, 600 Highway
169, St. Louis Park, MN 55426, Fax: (952)
593-2508, email: [email protected]
Blethen, Gage & Krause, PLLP, a
12-attorney law firm established in
1896, is seeking experienced attorneys
for positions in their transactional law
and litigation departments. Candidates
for the litigation attorney position should
have two to ten years of litigation experience, with an emphasis on family
law, employment/labor law, estate and
trust litigation, real estate litigation and/
or other general litigation. Candidates
for the transactional law position should
have five to teb years of experience
with an emphasis on business/corporate transactional experience. Candidates should have excellent academic
credentials, strong writing skills and
professional recommendations. Candidates for an associate attorney position
must possess an LLB or JD from an
ABA accredited law school and be admitted to practice in a given jurisdiction.
An associate is a lawyer employed by
the firm who is under consideration for
partnership or ownership status. Please
email your resume and cover letter to
[email protected]
OFFICE suite and windowed offices, and
also virtual attorney space available. Professional and impressive to clients, but
not expensive. Flexible terms. Free Parking and wireless internet. Lakes & Plains
Office Building, 842 Raymond Avenue,
St. Paul. Multiple conference rooms, law
library, kitchenette, receptionist and lobby; attorney collaboration and interaction.
Near Key’s Restaurant. Call Mick at: (651)
647-6250 or email: mick.lakesplains@
OFFICE space and virtual office services in a community of the nicest highquality lawyers you could ever meet, in
a beautiful office suite with lots of natural light that is a cut above the rest. If
your work environment and the people
around you are important to you, you
should check us out. or call us at (612) 206-3700.
OFFICE space Minnetonka (Highways
101 & 7). Office share with two established attorneys and financial planner. Cross-referrals. 250–1250 sq ft
available. Three individual offices and
reception area available. Rent beginning at $390/month. Virtual office also
available beginning at $175/month. Call
Steve at (952) 470-4550.
EXECUTIVE Suites Available. Join the
award winning Collaborative Alliance in
Edina, MN and our group of professionals who provide a full range of services in
the area of family law. Four Suites available ranging from 108sf –124sf. For further information please contact: Sabine
Shea, [email protected],
SERVICED Office Space with an At(612) 203-5946
torney Support Program. Close to MSP
Airport and Mall of America. Contact
EXECUTIVE Suites of Minnesota offers Judy Magy the expert with serviced
attractively furnished, serviced office office space. Hop on a light-rail train or
space including receptionist support/ad- bus and be in your office in minutes.
ministrative services, meeting rooms, One- to three-person offices - base rent
Internet, flexible terms at prestigious from $280 – $800. Services: personaladdresses (IDS Center, Edina, St. Louis ized telephone answering, copier, fax,
Park, and Oakdale). Call Wayne with Ex- scanning. Witness and Notary services.
ecutive Suites of Minnesota at: (952) Mail sorting and drop off documents,
851-5555 or email: [email protected] packages. Support staff and reception
com. Visit: area. Judy Magy (952) 851-9040.
for our current promotion. Rent one ofsssss
fice, use four metro locations.
1955 UNIVERSITY Avenue – 383 RSF
– 6000 RSF (3000+ contiguous). Built
VIRTUAL office – Ideal for attorneys who in 1980 renovated in 2015. Located on
want a professional business image but the Green Line one block from the Fairdon’t need a full-time office or who de- view street station. Highly visible locaOne level office building currently sire access to additional office locations. tion on the corner of University Avenue
used for law practice and abstract With a virtual office, you have access to West & Prior. Convenient location and
company located on the North Shore the amenities at all four of our prestigious easily accessible to highways 94 and
of Lake Superior. Walk-out basement locations (IDS Center, Edina, St. Louis 280 center of the Twin Cities. Property
apartment with garage provides Park & Oakdale). From $59 monthly. Call has ample parking. Please call Chrissteady income and is a short walk Wayne with Executive Suites of Minne- tina at: (651) 246-5810.
to the lake with partial views from sota at: (952) 851-5555 or email: marketsssss
both. Opportunity to purchase a long- [email protected] For our current promoTWO-WINDOWED office for a lawyer
established law practice and abstract tion, visit:
to join a modern, professional suite
company also available. Email: nac.djb@
of seasoned attorneys at the Class A for more details.
METRO Executive Center – 7800 Metro Canadian Pacific Plaza with 20th floor
Parkway: 2 Great office spaces available views. Cubicle space (furnished or
Office Space
– Suite 220 – 543 RSF for $829/month unfurnished) is also available. Ameni– available now. Suite 214 – 975 RSF for ties include receptionist, conference
Prime, Convenient, Eden Prairie. One $1325/month – available 4/1 – Gross leas- rooms, a fully equipped workroom,
to five individual offices. Average size: es. Close to MSP airport and MOA. Just along with administrative and paralegal
13x14. Floor-to-Ceiling windows. $750 down the street from the Lite Rail. Execu- support services as needed. In addition
and up. Upgrades: furnished, phone, tive office center on site with ala carte and all-inclusive are video conferencing
support staff cube, file storage, conf. services available for a fee if needed. Con- rooms and work-out facilities. Please
room and more. Call Ed or Scott: (952) tact Ardis Hafdahl at: (651) 271-2399 or at contact Melissa at: (612) 573-3660 for
[email protected] for more information. a showing.
46 Bench&Bar of Minnesota s April 2016
LAW FIRM has individual office spaces
for rent south of the river. Large
windowed offices in professional
building located in Savage, Minnesota.
Conference rooms, kitchenette and free
parking. $700 per month. Contact Dale
Moe or David Wething, 4200 County
Road 42 West, Savage, Minnesota.
(952) 894-6400.
MINNETONKA offices for rent. Join 11
independent, solo attorneys. Furniture,
services available, 24/7 access. Gas
fireplace in large office. Professional,
convenient, friendly. Highways 7/101
NORTHWESTERN Building – 275 East
4th Street, Saint Paul. Small to larger
office spaces available for lease. Great for
start-up attorneys. Monthly rates from
$250–$1229/month. Historic building.
Lowertown. Lite Rail. Deli on 1st floor.
Contact Wendy at (612) 327-2231 for
a showing or check us out at www.
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]
terms. Steps from courthouses. Join
other independent attorneys in historic
building featuring full-time receptionist,
high-speed internet, fax, and conference
room. Contact Keith Johnson at: (612)
OFFICE Space. Two offices in Apple
Valley for rent with seven attorneys.
Kitchen, conference room available for
clients. Contact John Wagner at: (952)
Office Space for Rent in Roseville,
MN. Four available offices. Office starts
at $750.00 / month. Price varies on
office sizes. Call: (651) 247-4783. Reply
to: Bench & Bar Box 294, c/o MSBA,
600 Nicollet Mall, #380, Minneapolis,
MN 55402
Position Available
THE LEGAL Professionals™ PA
in New Ulm, Hutchinson, Sleepy
Eye, and Winthrop, MN are seeking
paralegals or legal assistants with prior
experience in practice areas including
estate planning, probate, business and
agriculture, and real estate. Paralegal
or legal assistant certification required.
Three years or more experience in one
or more of the listed practice areas
preferred. Interested applicants may
send resume, including references to
[email protected], or
mail to 106½ North Minnesota St New
Ulm MN 56073.
Professional Services
CONTRACT Attorney. Extensive experience in litigation, insurance, and
family law, drafting pleadings, discovery, motions, J&D, QDRO, other
documents, conducting depositions,
investigating, interviewing, mediation, arbitration, creating high-quality
exhibits and presentations for negotiations, claims, trials. Appearances
in West Metro to central MN. Email:
[email protected]
ATTORNEY coach/consultant Roy S.
Ginsburg provides marketing, practice
management and strategic/succession
planning services to individual lawyers
and firms.,
[email protected], (612) 812-4500.
RESEARCH and Drafting. Custom legal
research and drafting tailored to your
client and area of law. Appeals, pleadings, briefs, motions, articles. State and
federal court. Save time and money.
Outsource your research and drafting
projects. Fast, professional, experienced attorney. William Mitchell Law
Review. [email protected] –
(612) 315-1591.
MBCLE approved for 6.5 professional
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April 2016 s Bench&Bar of Minnesota 47
n Campaign financing is one
of today’s most divisive political issues. The left asserts
that the electoral process
is rife with corruption. The
right protests that the real
aim of campaign limits is to
suppress political activity and
protect incumbents. Meanwhile, money flows freely on
both sides. In Plutocrats
Money, the
Court, and
the Distortion of
argues that
both left and right avoid the
key issue of the new Citizens United era: balancing
political inequality with free
speech. Hasen suggests that
a renewed focus on political equality could reshape
the way the country and the
Supreme Court considered
the role of money in politics.
Published by Yale University
legal decisions, social theory,
and urban history to demonstrate that public spaces have
been split apart from First
Amendment protections,
while the expression of political ideas has been excluded
from privately owned, publicly accessible malls. Published
by State University of New
York Press:
n Every law firm needs
a business development
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breadwinners for firms and
the heart and soul of recruiting and maintaining clients.
Building Rainmakers: An
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Development Training by
David King Keller is a complete encyclopedia of business
development training techniques as well as advice for
law firm management, partners, and
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Tips and
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n In spite of their public
attracmore than 30 leaders and
tions and
innovators in rainmaking and
of visitors, business development trainmost shop- ing. *Order online at: www.
ping malls
are now
n As renowned national
to free
security law scholar Laura
K. Donohue explains in
The Future of Foreign
expressive Intelligence: Privacy and
Surveillance in a Digital
activity. The same may be
said about many other public Age, global
communicaspaces and marketplaces in
American cities and suburbs, tions systems
leaving scholars and other
and digital
observers to wonder where
civic engagement is lawhave changed
fully permitted in the United our lives
in countStates. In Public Spaces,
Marketplaces, and the
less ways.
But they
Constitution, Anthony
have also
Maniscalco draws on key
48 Bench&Bar of Minnesota s April 2016
contributed to a worrying
transformation. Traditionally, for national security, the
courts have allowed weaker
4th Amendment standards
for search and seizure than
those that mark criminal law.
But information collected for
foreign intelligence purposes
is now being used for criminal
prosecution. The expansion
in the government’s acquisition of private information
and the convergence between
national security and criminal
law threaten individual liberty. Published by the Oxford
University Press: https://global.
n In The
Fight to
takes a
look at a
the drive to define and
defend government based on
“the consent of the governed.” From the beginning,
and at every step along the
way, as Americans sought
the right to vote, others have
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book traces the full story
from the founders’ debates
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partisan gerrymanders, the
flood of campaign money
unleashed by Citizens United.
Americans are proud of our
democracy. But today that
system seems to be under
siege, and the right to vote
has become the fight to vote.
Published by Simon &
n There are moments in
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bench speaks for millions of Americans, and
when its decision changes
the course of history. More
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The Federal Courts: An
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is a story of all of these courts
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case law they made, and of
the acts of Congress and the
administrative organs that
shaped the courts. Published
by the Oxford University
n As Republicans and Democrats wage war over Justice
Antonin Scalia’s lamentably
empty Supreme Court seat,
Kevin Ring, former counsel
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taken a close look at the cases
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Court: Thirty
Years on the
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Scalia’s most
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analysis of his legal reasoning and his lasting impact
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Published by Regnery Publishing:
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