October 2015 - Bench and Bar of Minnesota

Transcription

Official Publication of the Minnesota State Bar Association
The
Nations
Within
An Indian
Law FAQ
Volume LXXII Number IX
October 2015
www.mnbar.org
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OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION
VOLUME LXXII NUMBER IX
October 2015
www.mnbar.org
On the Cover:
18
A Blind Spot
in
the Law
In May the Minnesota Court of Appeals
held the state’s criminal defamation statute
unconstitutional—leaving victims and
prosecutors with less recourse against
“revenge porn” and similar problems. Now a
legislative working group is looking to plug
that hole in the law while staying on the right
side of the 1st Amendment.
By Steven P. Aggergaard
The
Nations
Within
An Indian
Law FAQ
24
Minnesota Court
Records
After months of deliberation, Minnesota
28
courts have opted to make more of their
records electronically accessible through the
internet. Though some restrictions remain
in place—especially regarding juveniles or
pending criminal matters—the result is a
much more publicly open system.
By Rick Linsk
Colleague Corner
Indian law is a complex,
difficult, and sometimes
contradictory patchwork that
varies enormously in substance
and application from jurisdiction
to jurisdiction. It can seem
an impenetrable maze to the
outside practitioner; this primer
on its history and key principles
is designed to serve as an aid to
navigation.
By Jessie Stomski Seim
and Jessica Intermill
www.mnbar.org
‘Everything a small town
lawyer
is asked to do’
Anyone willing to work hard can continue to make a
17
4
7
8
10
14
good living in a sole practice, despite the pressure from
big firms and the internet.
Meet Pete Radosevich
MSBA Blogs
President’s Page
MSBA in Action
What, Where & When
Professional Responsibility
17
33
50
52
56
Colleague Corner
Notes & Trends
People & Practice
Opportunity Market
Books & Bytes
October 2015 s Bench&Bar of Minnesota 3
MSBABlogs
MSBA
www.mnbar.org/blogs
Join us at the MSBA TECHStar Conference on 11/5!
Remember, remember
the 5th of November
By Joe Kaczrowski
T
echnology has been a hot topic for lawyers recently,
on this blog and elsewhere. Competition has
increased due in part to changes in technology.
Processes
can be improved or
replaced through new
technologies. And while
the black-letter Rules
of Professional Conduct
have not changed, they
have been clarified to
highlight the necessity
of technological
competence for lawyers.
With the rapid pace
of change, it becomes
even more important
for lawyers to have a
forum to keep up to
date and discuss new
developments in the
practice of law.
To help with that
process, we are offering the MSBA’s TECHstar Conference,
which is set for November 5 at Brackett’s Crossing in
Lakeville. The member price is $65 ($195 for non-members).
In addition to breakfast, lunch, a social hour, and a full day
of CLE credit (including ethics and
elimination of bias), the conference
will feature a “learning lab” during
the social hour, where attendees can
interact with presenters and others.
Registration is now open at www.
mnbar.org/Meetings/Meeting?ID=884.
The substantive portion of the
conference will include five hourJoe Kaczrowski
long sessions from different speakers,
is the MSBA’s
including Casey Flaherty of Procertas,
director of online
who is best known as the developer
services and a
of the Suffolk-Flaherty Legal Tech
volunteer attorney
Audit. The point of the tech audit is
with the Wills for
to assess how well attorneys and their
Heroes program. He
staff use basic law practice technology
also spent several
to complete commonly encountered
years as a software
legal tasks. John Federico of Affinity
engineer in a
Consulting Group will speak on better
previous life.
methods for generating complex
documents; Todd Scott of Minnesota
4 Bench&Bar of Minnesota s October 2015
Lawyers Mutual will discuss legal ethics and technology for
lawyers and other legal professionals, and Judge Peter Reyes
from the Minnesota Court of Appeals will offer a presentation
regarding the impact of
technology on diversity
and inclusion in the
legal profession.
In addition to several interesting topics
like “The Twenty-First
Century Lawyer’s
Evolving Ethical Duty
of Competence” and
“Finding a Middle
Ground Between
Security and Accessibility,” attendees will have
the opportunity during
the closing social hour/
learning lab to learn
more about some of
the MSBA’s technology partners, including
HotDocs, Fastcase, and Citrix ShareFile, and to try out some
of the new practice tools and resources available through the
MSBA. Attendees also will be able to learn more about the
proposed Minnesota edition of the Legal Tech Audit and get
a sneak peek at Fastcase 7.
The MSBA also now includes a separate section on
technology in its new and improved weekly eNewsletter, Legal
News Digest. And in addition to an expanded practicelaw,
the MSBA also offers a Practice Resource Center where
you can find helpful how-to’s and whitepapers on topics like
encryption, document management in the cloud, the ethics
of file sharing, tips and tricks for online legal research, and a
guide from Mark Lanterman of Computer Forensics Services
on how to opt out of public records sites like Whitepages,
ZoomInfo, and Spokeo.
We really hope to see you at the TECHStar Conference;
use the hashtag #MSBAtech to share your thoughts. In addition, you can find updates on integrating technology into your
practice more efficiently via Twitter channels operated by our
tech partners (@goclio features a lot of great content) as well
as the MSBA’s own channels (@practicelaw, @mndocs). s
This post was originally published at the MSBA’s practiceblawg.
To check out practiceblawg or the MSBA’s other blogs, Small Firm
Soapbox and Minnesota Legal Ethics, visit www.mnbar.org/blogs
www.mnbar.org
Official publication of the
Minnesota State Bar Association
www.mnbar.org
We’ve spent the past
50 years planning for
retirement. When did
you start planning?
Editor
Steve Perry
Design & Production
Jennifer Pickles
Advertising Sales
Pierre Production & Promotions, Inc.
(763) 497-1778
MSBA Officers
President
Michael W. Unger
President-elect
Robin M. Wolpert
Treasurer
Sonia Miller-Van Oort
Secretary
Paul W. Godfrey
Executive Director
Tim Groshens
Publications Committee
Chairperson
Holly A. Fistler
Steven P. Aggergaard
Emily K. Cooper
June Hoidal
Carol K. Lee
Henry D. Long
Christopher D. Stall
Malcolm P.W. Whynott
Jonathan D. Wilson
© 2015 Minnesota State Bar Association
Bench & Bar of Minnesota (ISSN 0276-1505) is an official
publicaton of the Minnesota State Bar Association. Neither
the association nor the editors assume responsibility for
statements or expressions of opinions by contributors. n
Periodicals class postage paid at Minneapolis, Minnesota and
additional mailing offices. Published 11 months of the year.
May/June combined. Minnesota State Bar Association, 600
Nicollet Mall, #380, Minneapolis, MN 55402, (612) 333-1183,
www.mnbar.org. Subscription price: $25.00 for members which
is included in dues. Nonmembers $35.00 per year. Some back
issues available at $5.00 each. POSTMASTER: Send address
changes to Bench & Bar, 600 Nicollet Mall, #380, Minneapolis,
MN 55402. Editorial Policy. The opinions expressed in
Bench & Bar are those of the authors and do not necessarily
reflect association policy or editorial concurrence. Publication of
advertisements does not constitute an endorsement. The editors
reserve the right to accept or reject prospective advertisements in
accordance with their editorial judgment.
Planning for retirement requires forethought, perception,
and a little patience. That’s why the American Bar
Association created the aba retirement funds
program (“the Program”) – a comprehensive and
affordable retirement plan built exclusively to address the
unique needs of the legal community.
Call an ABA Retirement Funds Program Regional Representative today!
866.812.1510 I www.abaretirement.com I joinus@abaretirement.com
The Program is available through the Minnesota State Bar Association as a member benefit. This communication shall not constitute an offer to sell or the
solicitation of an offer to buy, or a request of the recipient to indicate an interest in, and is not a recommendation of any security.
Securities offered through Voya Financial Partners, LLC (Member SIPC).
The ABA Retirement Funds Program and Voya Financial Partners, LLC, are separate, unaffiliated companies and are not responsible for one another’s
products and services.
CN0311-8585-0415
Listservs
Exchange ideas and get answers – virtually.
Email discussion lists are like an electronic hallway for professional
information or social exchange. Get to know lawyers you might
otherwise never meet, and stay in touch with colleagues you rarely
see. Make your reputation as a helpful, knowledgeable colleague.
Join the discussion.
www.mnbar.org
www.mnbar.org
(612) 333-1183
Celebrate Pro Bono
Join us.
TUESDAY
OCTOBER 27, 2015
PRO BONO CLE
Breaking Poverty Barriers to
Equal Justice: A Snapshot
Dorsey & Whitney, LLP
Minneapolis, MN
11:45 am – 1:30 pm
Luncheon program on communicating effectively
with low income clients, followed by training
sessions sponsored by legal aid providers.
1.5 for EOB CLE credits will be applied for. Cost: $35
Register before October 23 and SAVE $10!
Get a full schedule of activities for the week:
www.projusticemn.org/volunteer_week
Minnesota
State Bar
Association
The Minnesota State Bar Association is coordinating Pro
Bono Week, a national effort in conjunction with the ABA.
The celebration honors the work of Minnesota lawyers
who provide pro bono representation throughout the year,
and highlights opportunities for pro bono service to lowincome and vulnerable clients in civil legal matters.
If you would like more information about Pro Bono Week
or want to participate please contact the MSBA Pro Bono
Development Director, Steve Marchese, at 612.278.6308 or
smarchese@mnbar.org.
President’sPage
By Michael W. Unger
T
Mo’ Bono Publico
his past summer Minneapolis
played host to a meeting of
the Board of Directors of the
Legal Services Corporation
of America. They help fund Legal Aid
programs throughout our country, and
form the backbone of our nation’s pro
bono resources. The LSC president
eloquently reminds us that both the first
sentence of our Constitution (“We the
People, in order to form a more perfect
union, establish justice . . . .”), and the
last line of our Pledge of Allegiance
(“with liberty and justice for all”), attest
that justice is a defining aspiration of
this country.
Unfortunately, our founders came
up short in their efforts to “establish
justice” in the Constitution. While the
right to counsel in criminal matters
was addressed later in the Bill of Rights
and eventually defined in Gideon v.
Wainwright, there is no similar provision
for civil legal representation.
For whatever reason, the right to
assistance of counsel in civil cases is left
to the vicissitudes of the marketplace.
Hence many people, and not just poor
people, are without legal advice or representation in civil matters. As lawyers we
are intimately aware of the workings of
our justice system, and so our view that
assistance of counsel is part of what is required for justice is a well-informed one.
It’s Up to Us
Because the Constitution’s reach to
form a more perfect union falls short of
its grasp, it is left to our profession, as
the main beneficiaries and participants
in the legal “marketplace,” to make
up the difference. So many lawyers do
so much pro bono work. We should
remember to thank and celebrate them.
But let’s not kid ourselves. Many of us,
myself included, are not doing all that
we can or should do. Our collective
efforts to date fall short.
Some assume that the legal needs
of the very poor are met by Legal Aid.
But only about a third of incomequalified clients who turn to Legal Aid
are accepted. This is due to chronic
underfunding of Legal Aid coupled
with the high demand for services. This
deficiency has actually been getting
worse, rather than better, as the number
www.mnbar.org
of poor has risen and funding for Legal
Aid has declined since the turn of the
century. The same holds true for the
array of nonprofits outside of Legal Aid.
Many of these organizations are able
to help people in need under higher
income eligibility limits, but the demand
far outstrips their ability to meet it.
And then there is the vast number of
working individuals who live paycheck
to paycheck. They may not qualify for
help from legal service providers, but
they still can’t afford a lawyer. They are
as completely shut off from justice as
are the poor. Ask any judge or social
service worker about the magnitude of
this problem. They witness “the justice
gap” daily.
are ways to do pro bono that are readily
available, and that won’t interfere with
your other professional obligations and
goals. There is still time to hit your 50hour mark by year’s end.
One way to start may be to attend our
annual pro bono conference on October
27. Its cost is nominal, and it includes
CLE credits and lunch. You can get
some great ideas and helpful inspiration,
and you will make great connections
to resources that will help you meet
your goal. Another easy entry point is
Minnesota Legal Advice Online (www.
mnlegaladvice.org). This allows you to
provide pro bono service “on demand”
by responding to online requests for
legal advice. It is incredibly user-friendly
for lawyers seeking to contribute pro
bono time on their own schedule, and
without ever leaving the office. There
So many lawyers do so
are plenty of other alternatives too.
Rather than overwhelm you with the
much pro bono work.…
options, I suggest you just contact MSBA
But let’s not kid ourselves. and get in touch with Lindsay Davis
(LDavis@mnbar.org) or Steve Marchese
Many of us, myself included, (SMarchese@mnbar.org), our staff
resources for pro bono. They would love
to hear from you, and are happy to help.
are not doing all that
Let me leave you with my own
“secret,” learned
we can or should do.
from doing pro
bono work. In
Try as we might to help, MSBA’s
over 30 years of
pro bono efforts fall short too. Take for
practicing law
example our Northstar Lawyer program. and representing
individuals with
This program encourages lawyers to
meet Rule 6.1’s aspiration of 50 hours
great need, some
of annual pro bono work by publicly
of my greatest
recognizing those lawyers each year.
memories and
Less than 7 percent of our members
deepest sense of
Michael W. Unger
satisfaction with
have come forward to say they meet
is President of the
this aspiration. While we are sure there the practice of
Minnesota State
are many more who would qualify as
law has come
Bar Association. He
Northstar Lawyers if they simply took
from seeing
is a Certified Civil
the time to enroll, the fact that we
results for the
Trial Specialist at
clients who did
are starting with only 7 percent of the
Unger Law Office
membership who volunteered to share
not pay for my
in Minneapolis,
this news about themselves tells you that service, and from
representing
most members are simply not there yet.
experiencing
negligence victims
We have a lot of room for improvement. their gratitude.
for serious injuries
It is a really nice
and wrongful death.
The MSBA Can Help
feeling. You owe
He is also on the
We can do more. If you are still short it to yourself to
adjunct faculty of
of doing your part, and are looking for
experience it
the University of
some help, MSBA wants to help you
if you haven’t
Minnesota Law School.
get there. Today more than ever, there
already. s
MSBAinAction
MSBA Action
State of Access to Justice
IN MINNESOTA
WHAT IS THE NEED?
Call for members of
Alternative Legal Models
Task Force
T
he MSBA is looking for members who are interested
in appointment to the Alternative Legal Models Task
Force. The task force, whose creation is pursuant to
action taken by the MSBA Assembly in June, will examine
the advisability of supplementing traditional lawyer representation through the creation of a new type of limited-scope
certified legal assistance provider to increase access to justice
for those who cannot afford a lawyer.
One possibility the task force will examine involves certifying Limited Legal License Technicians (LLLT) who would
possess authority to provide limited legal services in particular
practice areas, as the state of Washington did recently. The
Task Force will develop a recommendation to the Assembly
regarding viable options to increase access to justice, possibly including certification of LLLTs, along with necessary
safeguards to assure quality of service.
The task force will begin meeting in November-December
2015 and will have one year to complete its work, which is
due in time for consideration at the December 2016 Assembly meeting. We seek applicants who are open-minded and
interested in considering a variety of viewpoints on the issue of
alternative legal licensing. Representatives from the state court,
civil legal services and pro bono programs, private practitioners
from diverse practice settings across the state (including large,
small and solo firms), and law schools or other institutions of
higher education are particularly encouraged to apply. If you are
interested, please contact Nancy Mischel at nmischel@mnbar.
org or (612) 278-6331 for a qualifications and interest (Q&I)
statement to complete. Q&I’s are due by Monday, November 2.
Got a photo in
your member
profile yet?
M
SBA’s free member
headshot events are
a hit. In the past
month successful events were
held in Richfield (thanks to
the firm of Maser, Amundson,
Boggio & Hendricks, PA for
hosting!) and in Mankato (hosted by the Sixth District Bar
Association). Watch www.mnbar.org for announcements of
additional events as they’re scheduled.
According to studies of online search results, profiles with
photos are at least 14 times more likely to be clicked. Be sure
to update your profile today at www.mnbar.org/edit-profile.
MSBA member Jill M. Sauber (pictured) had this to say:
“The MSBA put on a great headshot photo shoot! It was
well organized, well attended, and the headshots turned out
fabulously. Being a part of the MSBA means being a part of
a community. The MSBA allows my colleagues and me the
opportunity to network and market.”
125-200%
of poverty
Maximum income
threshold for most
civil legal aid
programs in MN
HOW ARE CIVIL LEGAL AID & PRO BONO
PROGRAMS MEETING THE NEED?
1
Civil Legal Aid & Pro Bono
increase
That's
$30,000/
$48,500
17%
per year gross
for family of 4
decrease
number of direct client
service programs
funded by LSAC
14%
in total civil legal
aid program
funding during the
same time period
3
26
in the number of
Minnesotans living in
poverty and eligible for
civil legal services
between 2008-2013
48,346
66%
number of cases
closed by LSAC
grantee civil legal aid
attorneys and pro bono
attorneys in 2014
share of eligible
clients civil legal
aid programs must
turn away due to a
lack of resources
the amount of money or benefits
that legal aid organizations
protected from loss in 2014
1,413,943
32,345
$12,645,550
the amount of money or benefits
that legal aid organizations helped
establish for their clients in 2014
CIVIL LEGAL AID &
PRO BONO CASE TYPES
HOW ARE MSBA MEMBERS MEETING THE NEED?
4
27% Family
24% Housing
12% Consumer
12% Immigration
9% Income/
27%
17% Other
15%
live below 125% of poverty
DEMOGRAPHICS
2
21.7
Health Benefits
live below 200% of poverty
Market Rate
Attorneys
Legal Aid
Attorneys
1/369
1/3682
ratio of licensed
attorneys in MN available
for clients above legal aid
income guidelines
ratio of civil legal aid
attorneys available for
low-income clients who are
eligible for their services
Snapshot of clients of MN programs that receive
MN Legal Services Advisory Committee (LSAC) funding
Gender
Race
Age
35%
65%
4%
under 18
1
2015 U.S. Federal Poverty Guidelines, 2013 MARS Data, 2013 ACS Census
Data, 2014 MN Supreme Court Legal Services Advisory Committee (LSAC) Report
I
cases closed by private
attorneys through pro bono
or Judicare representation
67%
cases closed by staff attorneys
at legal aid programs
$19,406,386
Minnesotans
live below 200%
of poverty
16,001
33%
2
82% 14%
18-59
2014 LSAC Report
over 60
3
2014 LSAC Report, 2012 MN Legal
Services Coalition Turndown Study
47% White
27% Black
15% Hispanic
4% Native American
4% Asian
3% Other
million
108,500
value of time provided to
those in legal need by North
Star attorney members
pro bono hours
provided by MSBA
North Star attorney
members
967
MSBA attorneys
who certified that
they provided 50
or more hours of
pro bono service
in 2014
That’s
6.1%
50
number of pro bono
hours each licensed
Minnesota attorney
should provide annually
of MSBA members
4
2014 MSBA North Star attorney data, Minn. R. Prof. Conduct 6.1,
2013 MARS Data compared to U.S. Census Data
Access to Justice
infographic wins praise
n August, Bench & Bar ran a two-page infographic
entitled “State of Access to Justice in Minnesota.” The
spread summarizing statewide ATJ data generated a lot
of buzz on social media, prompting retweets and reposts from
organizations around the U.S. as well as in Minnesota.
Some of the local reaction:
Ellen Krug, Executive Director of Call for Justice, LLC:
“The MSBA Infographic rocks! Humans love pictures, big
numbers and boxes with data! Call for Justice, LLC uses the
infographic to explain the legal system to non-lawyers and as
a way of making complex information simpler. We’re grateful
that the MSBA created such a useful and imaginative tool
that can be used in a variety of contexts.”
Mary Kaczorek, Supervising Attorney at Minnesota
Legal Services State Support: “Legal Services State Support
manages ProJusticeMN.org, Minnesota’s website supporting
pro bono attorneys and legal services attorneys. State Support
has used the MSBA’s Access to Justice infographic on the
ProJusticeMN.org homepage to help highlight the high need
for pro bono attorneys in Minnesota.”
If you’d like to receive a PDF copy of the Access to
Justice graphic, email MSBA ATJ Director Lindsay Davis
(LDavis@mnbar.org).
T
The MSBA’s Legislative
Advocacy Program
he MSBA’s legislative agenda is developed through an
interactive process that involves practice-area sections
and standing committees. In anticipation of the 2016
Minnesota legislative session, MSBA members began legislative planning this month.
Committees and sections develop legislative proposals
and take them to the Legislative Committee. The Legislative
Committee vets the proposals and then makes recommendations to the MSBA Assembly. At its December meeting, the
Assembly determines positions that will be taken in the name
of the MSBA, as well as lobbying priorities.
Committee and section proposals must be submitted by
October 28. For more information about the process and
required form, visit http://bit.ly/1NUjFwa or contact Government Relations and Membership Engagement Director Sherri
Knuth at sknuth@mnbar.org.
www.mnbar.org
pxlaw tool sept15a(2b).qxp_Layout 1 9/18/15 10:53 AM Page 1
Grow your practice toolkit
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Have you checked out the latest offerings at practicelaw?
MN Judges' Courtroom Preferences
District Court Judges’ preferences
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Tablet Series
MN Statutes and Court Rules:
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MN Legal Ethics
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Significant account of private
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Each eBook is searchable and can be
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What,Where
What,Where&When
When
Administrative Law
Increasing Access to
s
Justice at the Office of
Administrative Hearings
St. Paul
Oct 21 • 1.0 Credit
MSBA
s 2015 ADR Institute
Minneapolis
Oct 30 • 6.0 Credits
MCLE
To register for courses listed
in What, Where & When
(or to obtain more information)
contact the organizations listed
below. Some courses require
advance registration. Here’s the
key to this month’s acronyms:
HCBA:
Hennepin County
Bar Association
Phone: (612) 752-6600
www.hcba.org
MCLE: Minnesota
Continuing Legal Education
Phone: (651) 227-8266
(800) 759-8840
www.minncle.org
MSBA: Minnesota State
Bar Association
Phone: (612) 333-1183
(800) 882-6722
www.mnbar.org
RCBA: Ramsey County
Bar Association
Phone: (651) 222-0846
www.ramseybar.org
CLASS NOTES:
s What, Where & When would
like to hear about your upcoming
CLE events. Mail or fax your
listing, free of charge, to:
Bench & Bar • 600 Nicollet Mall
#380 • Minneapolis, MN 55402.
Email: jpickles@mnbar.org.
November 7, 2015
s 40th Annual Bench and
Bar Benefit: Ruby Gala
Saint Paul Riverfront
5:30 -10:00 p.m.
Forex Litigation:
s
The Basics
The Ruby Gala will celebrate the ruby anniversary of the Benefit
with an elegant evening honoroing Pro Bono service. Guests are
encouraged to wear a splash of red. Proceeds benefit the Ramsey
County Bar Foundation. Tickets: www.ramseybar.org
Minneapolis
Oct 20• 1.0 Credit
HCBA
Criminal Law
About
the Sponsors
Minneapolis
Nov 13 • 6.5 Credits
MCLE
Business & Securities ADR
Benefit
Effective Legal
s
Negotiating
Minnesota’s
s
Forfeiture Law
Minneapolis
MSBA
Minneapolis
MCLE
MCLE
Consumer Regulatory
s
Update from the Inside
and the Frontlines
Minneapolis
Oct 21• 1.0 Credit
HCBA
Long Term Care
s
Insurance: What Estate
Planners Need to Know
St. Paul
RCBA
2015 Labor &
s
Employment Law Institute
Minneapolis
MCLE
Minneapolis
MCLE
2015 Computer &
s
Technology Law Institute
Minneapolis
MCLE
SOCIAL
s Beyond Pulling the Plug
Minneapolis
HCBA
MN’s New
s
Uniform Trust Code
Minneapolis
MCLE
OCTOBER 28, 2015
Real Estate
s 2015 Tax Institute
Technology Law
Financial and Civil
s
Protections under the
Servicemembers Civil
Relief Act
Minneapolis
MSBA
Probate & Trust
Estate Planning
Debtor/Creditor St. Paul
RCBA
Tax Law
Military & Veterans
s 2015 Closely Held
Business Conference
Minneapolis
St. Paul
RCBA
Ethical Social Media
s
Best Practices for Lawyers
Advertising &
s
Marketing Law for
In-House Counsel
Ramsey County Family
s
Court Referee Panel
Labor & Employment
Corporate Law
Bulletproof Contract
s
Drafting
Minneapolis
MCLE
Solo Small Firm
Commercial Law
Family Law
Get to know district and
state court judges in a fun,
relaxed atmosphere. Hors
d’oeuvres included. Cash bar.
2015 Real Estate
s
Institute
Minneapolis
MCLE
5:00 – 8:00 p.m.
WINDOWS on Minnesota
IDS Center – 50th Floor
Tickets: www.hcba.org
www.mnbar.org
TECHstar CONFERENCE
“Legal technology” isn’t what it used to be.
November 5, 2015
Brackett’s Crossing, Lakeville, MN
EARN A FULL DAY OF CLE CREDIT
learning how MSBA tech tools can help you save time and build your practice.
Casey Flaherty | Procertas
Lawyers and Technology:
Making A Bad Marriage Better
John Federico | Affinity Consulting Group
It’s Time For a Change – Better Methods
for Generating Complex Documents
Nerino Petro | Citrix ShareFile
The Mobile Law Practice: Finding a middle
ground between security and accessibility
Judge Peter Reyes | Court of Appeals
Impact of Technology on Diversity and
Inclusion in the Legal Profession
Todd Scott | Minnesota Lawyers Mutual
Ethics and Technology
Register at: www.mnbar.org/TECHstar
SOCIARL
HOU
“Learning Lab” Social Hour
Attendees can talk with presenters, ask questions,
see demos, and network with other attendees
$65 members/$195 non-members
5 credits to be applied for including ethics and bias
What,Where&When
Children’s Law Center
of Minnesota
s Representing Youth
in Foster Care
This training program focuses on
preparing pro bono lawyers to represent foster children. The training
includes a comprehensive overview
of the child protection system in
Minnesota, as well as an opportunity
to learn from current CLC attorneys,
child advocates, and experts.
Date: November 6, 2015
Time: 8:30–12:30 p.m.
Location: Fredrikson & Byron
CLE Credit: 3.75 credits applied for
Register Online: www.clcmn.org
Hamline University
School of Law
s Business Law Institute
4th Annual Hot Topics in
Business Law 2015
Expert panels will address the hot
topic of mergers & acquisitions
from for-profit and not-for-profit
perspectives. The keynote speakers
will be Jean Holloway, vice president,
general counsel and secretary, CryoLife, Inc., formerly dean of Hamline
University School of Law; and Cathy
Wassberg, vice president and general
counsel for Hamline University,
discussing the pending combination
of Hamline University School of Law
with William Mitchell College of
Law. This combination is conditional,
in part, upon accreditation approval
by the American Bar Association.
Date: November 6, 2015
Time: 8:30 a.m. – 12:30 p.m.
Location: Hamline University,
Anderson University Center
CLE Credits: 3.0 credits applied for
Website: http://www.hamline.edu/law/
bli/hot-topics/
Corporation for Enterprise
Development
s 2015 I’M HOME Conference
This event brings together affordable housing developers, lenders,
government agency staff, policymakers, industry experts, homeowners,
community organizers, researchers,
funders and more. Sessions, workshops and plenaries will cover issues
from community organizing and advocacy, to community preservation,
to public policy and communications,
overlaid with a range of cross-cutting
issue areas like energy efficiency,
transit and more.
Date: October 26-28, 2015
Location: The Marquette
Contact: Lissette Flores at
lflores@cfed.org or (202) 207-0158
Website: cfed.org
Legal Services
State Support
s The 2015 Legal Services
Statewide Conference:
Knowing Our Clients
The conference will open on
November 4 with a special
keynote presentation by Hector R.
Matascastillo, co-founder and owner
of Matascastillo Psychotherapy
and Consultation Services. He will
present “PTSD: A Personal and
Professional Perspective.” 21 sessions
offering 17.25 hours of Standard,
3.5 hours of Elimination of Bias, 1.0
hour of Ethics and 1.50 hours of
Law Office Management MN CLE
credit will be available to attendees.
A maximum of 10.25 CLE credit
hours can be earned by a conference
attendee during the conference.
Date: November 4-6, 2015
Location: Alexandria, MN
Contact: Ann Conroy at (651) 8426911 or aconroy@mnlegalservices.org
Website: www.projusticemn.org
MSBA Environmental and
Energy Law Section
s Update from Minnesota’s
Regulatory Agencies
This program provides updates
on the key issues facing the
Minnesota Pollution Control
Agency, Minnesota Department of
Agriculture, Minnesota Department
of Natural Resources and Minnesota
Department of Employment and
Economic Develoment, and the
latest news from the Minnesota
Board of Water and Soil Resources.
Each presentation will be followed
by a question and answer session
that will allow you to get up-to-date
information on the issues affecting
your practice.
Date: Wednesday, November 4
Time: 8:30–11:30am
Location: Stinson Leonard Street
Contact: Tram Nguyen at
(612) 278-6316
Register Online: www.mnbar.org
MSBA Food, Drug &
Device Law Section
s Annual Green Line Crawl
Attendees get a Green Line pass,
a beverage at Brasserie Zentral,
appetizers/dishes and a beverage at
Surly Brewing Co., and a dessert and
coffee at the last stop. This event is
a great opportunity to socialize and
network in a casual setting, while
enjoying delicious food and drinks
– all with the convenience of the
Green Line LRT. MSBA members
who are not members of the Food
Drug & Device Law Section can
join the section & attend this event
for free.
Date: Wednesday, November 4
Time: 5:00 p.m.
Start Location: Brasserie Zentral,
Minneapolis
Contact: Sue Bores at
(612) 278-6325
MSBA New Lawyers
Section
s 2015 New Lawyers
Leadership Conference
The NLLC is the premiere event
in the state for the up and coming
leaders in Minnesota legal practice.
This year’s conference is packed with
useful and innovative presentations
and activities. The NLLC has been
recognized by the American Bar
Association as an “Outstanding
Service to the Bar” and is routinely
regarded as “the event to attend”
by newly admitted attorneys and
those early in their practice. The
conference is tailored toward
fresh and innovative ideas around
leadership in the practice of law by
introducing new and effective ways
to attack everyday challenges in the
profession.
Date: Thursday, November 12
Time: 8:30 a.m. – 4:00 p.m.
Location: Windows on Minnesota,
Minneapolis
Contact: Jennifer Brask at
(612) 278-6305
Minnesota Women
Lawyers
s 21st Annual Rosalie Wahl
Leadership Lecture
The goal of the lecture series is to
honor Justice Wahl by recognizing
women leaders who have broken
ground, while pointing the way for
women who will follow. Keynote
speaker Carol Robles-Román is a
nationally known public speaker
and appears regularly in the media,
speaking about national and
international trends in the law and
courts, women’s rights, immigration,
human trafficking, and domestic
violence. A silent auction to benefit
MWL’s Law Student Scholarship
Fund will also be featured.
Date: Tuesday, November 3, 2015
Time: 5:00 – 8:00pm
Location: Marriot City Center,
Minneapolis
Contact: Sara Goldstein at
sgoldstein@mwlawyers.org
Website: www.mwlawyers.org
On DEMAND CLE
Courses are available for you
to watch on demand as your
schedule permits and have
each been approved for
1.0–1.5 CLE credits.
Alice Corp. v.
CLS Bank
Cyber Security
Hot Topics
How Changes in Clean Air Act Rules
Will Affect Minnesota
Businesses
Minnesota Statutory Short Form Power
of Attorney
Schwanke v. Minnesota Department
of Administration
Guardianship Personal Decision
Making for a Ward
Helping Your Client
Legally Change Gender
IOLTA Ethics: Trends, Rules, and
History of IOLTA
Find more CLEs at:
www.mnbar.org
Ramsey County
Bar Association
s An Inside Look at Current
Rates of Substance Use,
Depression and Anxiety within
the Legal Profession
Review the results of the ABA/
Hazelden-Betty Ford Foundation
Collaborative Research Project
and gain a practical and in-depth
understanding of the prevalence
of substance use, depression and
anxiety among attorneys; barriers to
seeking help; and what the profession
can do to improve the situation.
Date: October 28
Time: 3:00 – 5:00 p.m.
Location: St. Paul
CLE Credit: 1.0 standard and 1.0
EOB credit applied for
Register Online: www.ramseybar.org
www.mnbar.org
Upcoming Exams:
criminal – Nov. 7, 2015
Labor and Employment – Nov. 14, 2015
Real property – Feb. 28, 2016
ProfessionalResponsibility
By Martin Cole
Private Probation: Saving a Career?
O
n average, the Minnesota
Supreme Court orders a period of probation for seven
attorneys each year. Almost
all of these are attached to a public
reprimand for some act (or acts) of misconduct sufficiently serious to warrant
public discipline, yet not so serious as to
require that the attorney be suspended.
Attorneys reinstated from suspension
are almost always placed on probation
for two years as well.
There is another type of probation
employed by the Minnesota discipline
system that accounts for even more
attorneys annually—that being what is
referred to as private probation (as in
not a form of public discipline imposed by the Supreme Court).1 Unlike
determinations that discipline is not
warranted (DNW) or admonitions, private probation cannot be issued by the
Director’s Office. Private probation can
only be created by a stipulation with the
respondent attorney, and then only after
approval by the Lawyers Board chair
that it is appropriate. This last step acts
as a check on the director’s discretion,
largely to ensure that matters of serious misconduct are not being resolved
privately when public discipline is truly
appropriate.
In an average year, 15 Minnesota
attorneys agree to and are placed on
private probation subject to various
conditions.2
Monitoring the
public and private
probations is a
large task, as
reported in the
Lawyers Board/
Office of Lawyers
Professional
Martin Cole
Responsibility’s
is director of the
annual report.3
Office of Lawyers
Professional Responsibility. An alumnus
of the University of
Minnesota and of the
University of Minnesota Law School,
he has served the
lawyer disciplinary
system for 25 years.
Recidivism
Rate
One of the
major goals and
hopes for both
the director and
the respondent
attorney when
entering into
an agreement
for private probation should be that
this attorney will never “darken the
director’s door” again—following
completion of their term of probation,
that is, the attorney will commit no
further misconduct and never be
disciplined again. Thus, not to put too
strong a phrase to it, the goal is often to
save the career of the particular attorney
and turn around their practice or life
before they become the subject of a
public discipline petition.
Does this actually happen? And if so,
in how many instances? Based upon a
very unscientific review,4 at least twothirds, and possibly as many as threefourths, of the attorneys who agreed to
private probation since 2003 have not
been the subject of further disciplinary
action. Overall, I consider this a remarkable success story.
Such success is the result of several
factors. The principal factor in a
successful probation is the motivation
and level of cooperation of the attorney
herself. If the attorney has acknowledged
her failures and truly desires to “turn it
around,” then she is a good candidate
for probation and far more likely to
succeed at it.
A second important factor in a
successful probation is the volunteer
probation supervisor. A large percentage of probations call for a supervisor to
oversee the probationer’s compliance
with the conditions of the probation.
All supervisors are volunteers (usually
suggested by the probationer himself)
who spend time assisting attorneys; such
assistance may involve reviewing the
attorney’s office procedures to ensure
prompt attention to files and clients, or
offering other advice on such things as
establishing conflict check systems.
In some private probations, the
Director’s Office may act in effect as the
probationer’s supervisor. Most of these
involve an attorney who has had some
minor trust account record-keeping
issues. Our staff likely has conducted
an audit of the attorney’s records and
found deficiencies but no shortages
or dishonesty. During the term of the
probation, the Director’s Office will
monitor the probationer’s trust account
to make sure that the attorney’s books
and records comply with the rules. If
the records fail to comply, the Director’s
Office will identify the issues and offer
direction on how to resolve the problem.
Again, a motivated and cooperative
attorney should quite easily complete
their probation and need never be heard
about again.
One Example
By way of example, one case may
illustrate the issue. Several years ago,
an attorney with no discipline in approximately 20 years of practice suddenly received seven valid complaints
in a relatively short period of time, all
from clients with similar allegations of
neglect, lack of communication, and refusing to refund unearned advance fees.
Normally, such a quantity of complaints
might lead to public discipline. After investigation, it turned out that there were
issues in the attorney’s private life that
had affected his performance, and that
he was treating advance fees as nonrefundable despite clear changes in the
rules that eliminated such terminology.5
He committed misconduct, but there
appeared to be explanations that seemed
correctible, and little demonstrable
harm had occurred once he was willing
to make appropriate refunds.
A stipulation for private probation
was negotiated and accepted. A supervisor helped the lawyer improve his office
procedures and create new fee agreements. The supervisor also helped as a
sounding board for the attorney on various issues and made favorable reports of
the attorney’s attitude throughout. The
attorney did not receive another complaint during the two years of probation,
and has not received any complaints in
the five years since the probation ended,
a long enough time frame to assume that
the attorney is back on course.
Chemical and Mental
Health Issues
As hinted above, there exists a group
of probationers who have asserted either
chemical dependency or mental health
issues as causes for their misconduct.
Some serious misconduct requires public
discipline notwithstanding such mitigating circumstances. In other instances of
misconduct, especially what the Court
has referred to as passive misconduct
www.mnbar.org
ProfessionalResponsibility
(lack of diligence or communication,
missed court appearances or other
deadlines), if the misconduct was the
result of alcoholism or depression, and
the attorney is willing to deal with the
problem, then private probation may be
agreed to in order to allow the attorney
an opportunity to obtain treatment and
show that their performance will return
to an appropriate level.
Such probations may include not
only a volunteer supervisor, but the attorney may also be required to contact
the Director’s Office and report for
chemical testing and provide evidence
of attendance at AA or some other
substance-based program. In many instances, these probations may truly save
a career or even save a life. These situations have also, on occasion, resulted in
attorneys later acknowledging that being
placed on probation was the best thing
that ever happened to them. Without
the disciplinary “intervention,” their
conduct might not have changed.
One point bears some expansion.
Private probation is a form of discipline,
resulting from a finding of violations of
the Rules of Professional Conduct. As
with all discipline, records are retained
permanently and may be offered as
evidence of prior discipline in any subsequent proceeding.6 And just as there
are many, many success stories, there
are also failures, which may result in a
petition for public discipline and the
revocation of the private probation. The
flip side of a motivated and cooperative
probationer is one who has agreed to
probation only reluctantly and who does
not really believe they have committed misconduct or need any assistance,
or who chooses to not cooperate with
the probation terms. Such attorneys
sometimes do not change their practice
habits; other probationers may fail to
conquer their chemical dependency
or mental health demons, even with
sincere effort, and commit additional
misconduct. Fortunately, these attorneys
are in the minority.
Conclusion
Not all attorneys qualify for private
probation. Their misconduct may be
too serious or rather may be isolated
and non-serious;7 they may simply be
unwilling to agree to any conditions,
even at the risk of being charged and
publicly disciplined. But for those
whose misconduct is correctible and
who are amenable, private probation
has frequently provided a lifeline to a
renewed successful career. s
Notes
1
See Rule 8(d)(3), Rules on Lawyers
Professional Responsibility (RLPR).
2
Since the beginning of 2003 (12+
years), 190 attorneys have been
placed on private probation. These
cases resolved 301 complaint files,
since many probations involve more
than one complaint against the
attorney.
3
LPRB/OLPR annual reports may be
found at: http://lprb.mncourts.gov/
AboutUs/Pages/AnnualReports.aspx
4
I did not run complete disciplinary
history checks on all 190 attorneys
noted above.
5
Rule 1.5(b), Minnesota Rules of
Professional Conduct.
6
Rule 19(b)(4), RLPR.
7
Admonitions are issued for isolated
and non-serious misconduct. Rule
8(d)(2), RLPR.
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Here’s What Your Colleagues Say About
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John R. Stoebner; Lapp, Libra, Thomson, Stoebner & Pusch, Chtd.; Minneapolis
Considering the challenging current
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advantage of Season Pass. Compared
to the costs of other vendors’ CLE
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Minnesota CLE’s Season Pass is simply
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Joe Mihalek; Fryberger, Buchanan, Smith &
Frederick; Duluth
Excellent classes, at
an excellent cost with
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I have been pleased with the content
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by Minnesota CLE. I use the season
pass at least monthly. The courses
have allowed me to remain current in
the areas of estate planning and estate
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the efforts of the attorneys who volunteer to prepare materials and speak at
the courses. Their input is invaluable.
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The season pass was my ticket to getting my CLE requirements fulfilled in
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course, I had the season pass paid
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Colleague
ColleagueCorner
Meet Pete Radosevich
‘Everything a small town lawyer
is asked to do’
PETE RADOSEVICH is a personal
injury, divorce, and litigation
attorney practicing in the small town
of Esko, between Duluth and Cloquet
in northern Minnesota. Born and
raised in the Duluth area, he spent
15 years in the Twin Cities before
figuring out how to get back home.
He also makes some of the best
pizza pies in the state.
How would you describe your practice?
Personal injury, divorce, litigation, and everything else a
small town lawyer is asked to do. I have a trusted assistant,
a skilled paralegal, and a small office with free parking. I
also own Eskomo Pizza Pies, the local pizza joint. Running
two small businesses can be stressful, but they complement
each other. It’s actually relaxing to make pizzas all night after
spending all day in court. And running the pizza business
helps remind me that my law practice is a business, too, and
needs to be treated that way.
What led you to choose a small firm practice?
In law school, every course I took, I wanted to specialize
in as a lawyer. Prof. Neils Schaumann gave me some advice.
He said, if you want to be a general surgeon, you go to a rural
hospital. So I looked around for the best small firm that would
hire me and that was the Newby Law Firm in Cloquet. They
paid me next to nothing, but I couldn’t do what I do now if it
wasn’t for what I learned from David Lindgren and Tom Skare
at the Newby firm.
When you face a challenge, what resources
are helpful to you?
My colleagues. The listservs are great—always available for
a quick answer. (Plus, they are a great way to stay up on trends
in the profession.) More experienced lawyers are usually
willing to talk to me; when I started on my own, many of the
older lawyers told me to feel free to call them for advice. The
first times I called Dennis Korman or Larry Nord on a divorce
question were pretty intimidating, but they were (and still
are) gracious about it. Huck Andresen still is willing to chat
with me on real estate matters. Even some insurance defense
attorneys give me some guidance when I need it. My goal is to
someday have the newer attorneys in town feel like they can
call me for advice.
How is being a bar association member worthwhile?
There’s no substitute for experience, but many of the bar
perks help. The listservs, practicelaw (how did solos work before practicelaw?), Fastcase—invaluable. I’m surprised when
sole practitioners aren’t MSBA members.
What activities do you enjoy away from work?
Living in a small town makes it easier to live the dream. I
love politics, so I host a weekly cable TV talk show on politics
and current events (Harry’s Gang). That makes me a TV
star in this town! My pizza restaurant is a fun way to socialize
while still working. I also serve on a few boards and committees, like many lawyers do. But easily, my favorite activity is
watching my boys Tommy (7) and Patrick (6) play with their
little sister, Eleanor (1), with my wife, Tara.
Where do you see the practice of law heading in the
future, particularly for the small firm practitioner?
Anyone willing to work hard can continue to make a good
living in a sole practice, despite the pressure from big firms
What do you value in your practice?
and the internet. We offer a valuable service to a certain
I have the choice to pick my clients; I have the choice
clientele—we’re people who know how to get things done,
to bill them or not; and I get to decide how to manage my
and that’s valuable no matter what. But it will get harder. I see
cases. I almost always feel I’m on the “right” side of a case. I
many small firms drying up as the partners age and retire. Solo
am proud that I can represent my clients without making the general practitioners will be obsolete. Butch Newby told me
other side hate me. (Usually.) Nothing is more satisfying than to focus on two or three areas and refer out the rest, and he’s
having a future client say, “My friend told me to call you—you right. Small firms will be more specialized. I’d like to keep bewere his ex-wife’s divorce lawyer.” Finally, I can bill clients as
ing a general practitioner, but the more I focus on PI, divorce,
I see fit. Clients will pay for results. There are plenty of clients and litigation, the better I get at it. I’m no longer proficient in
who can pay my entire fee, but there are plenty who can’t.
bankruptcy, intellectual property, or worker’s comp, as much
They all deserve competent representation.
as I’d like to be. That’s the future of the practice. s
®
www.mnbar.org
For free access to full text cases summarized in Notes & Trends, try Fastcase,
MSBA’s members-only online research service available at www.mnbar.org
Indian law is a
The
Nations
Within
complex, difficult,
and sometimes
contradictory
patchwork that
varies enormously
in substance and
application from
jurisdiction to
jurisdiction. It can
An Indian
Law FAQ
seem an impenetrable
maze to the outside
practitioner; this
primer on its history
and key principles is
designed to serve as
an aid to navigation.
By Jessie Stomski Seim
and
About the art: Bagonegiizhik is a painting
by Breanna “Waabenasiik” Green. Born
and raised in Minneapolis, Green is a
high-school student and a member of the
Red Lake Nation. She plans to attend the
University of Minnesota in Fall 2017 to
study visual arts and the Ojibwe language.
Jessica Intermill
S
o you know that Minnesota is
the English transliteration of
Mnisota, a Dakota word meaning sky-tinted water. You’ve
heard that the Minnesota
Chippewa bands’ hunting and fishing
rules differ from those of the state, and
that Duluth and the Fond du Lac band
have been sparring for a while. And
you’ve headed to a tribal casino once or
twice. But do you know how many tribes
are within Minnesota’s borders? Within
the United States?
And what do you know about Indian
law? How comfortable would you be if a
casino slip-and-fall or an on-reservation
transaction crossed your desk? Before
you answer, let’s take a look at what
Indian law is, where it comes from, and
some of the unique challenges the subject
presents.
Who is an Indian?
In the law, “Indian” is a term of art. For
purposes of federal law, “Indian” means a
member of a federally recognized tribe,
and it is generally appropriate to use the
terms “Indian” or “tribal member.” Different jurisdictional rules often apply
depending on whether the parties are
“tribal member Indians” (members of the
tribe on whose Indian country a claim accrues), “nonmember Indians” (members
of a tribe, but not the tribe on whose Indian country the claim accrues), or nonIndian (not a member of any tribe). Some
tribes impose residency requirements that
restrict membership or privileges to those
who are born in or reside in the tribe’s territory. Others impose blood quantum or
descendency requirements. The underlying principle is that each tribe sets the
terms of its own membership.
Outside of Indian law, “native American” is a prevalent phrase for a person of
What is an Indian tribe?
Indian tribes are “separate sovereigns indigenous heritage, but it is most appropre-existing the Constitution.”1 But priate to ask each person you’re working
there is no single definition of an “Indian with how they identify themselves.
tribe.” Tribes may refer to themselves as
“tribes,” “nations,” “pueblos,” “bands,” What is Indian country?
Territorial boundaries feature heavily
or “rancherias,” and may organize themselves in any manner of organizational in Indian law. Federal Indian law relies on
structure. Each government—tribal, fed- the phrase “Indian country” to describe
eral, and state—decides for itself whom the territory comprising a tribe’s reserto recognize as a tribe. For example, a vation and any land held by the United
group may call itself a tribe and be rec- States in trust for the tribe. Anyone (inognized by a state, but not by the federal cluding members, nonmembers, a tribe,
government. Many groups are not recog- a state, and the federal government)
nized as tribes by state or federal govern- can hold title to parcels of land within a
ments, but may still be treated as tribes reservation. The United States can hold
land in trust both on and outside of a
by other tribes.
For the most part, though, federal In- tribe’s reservation, and sometimes does
dian law only applies to tribes who are so for tribes that have no recognized res“federally recognized.” This status most ervation. Different jurisdictional rules ofoften results from tribal application to ten apply depending on whether a claim
the United States Department of the arises inside or outside of a tribe’s Indian
Interior. One tribe was recognized just country, and a tribe’s power is typically at
this year, bringing the total number of its height on trust land.
federally recognized tribes in the United
States to 567.
In what ways are Indian tribes like
Federal recognition does not equal other governments?
similarity.
Historical
experiences
Tribes’ inherent sovereignty allows
(including alliances as well as removal, them to organize and govern for the
termination, and restoration, discussed benefit of their citizens. Like state govbelow) and cultural identities are ernments, tribes with sufficient means
particular to each tribe. For example, run their own education, human serof the 11 federally recognized tribes vice, police, fire, court, and other govin Minnesota, seven of these are ernment systems. They create jobs and
Anishinaabeg (known in English as manage programs relatied to a variety of
Ojibwe or Chippewa) communities, and civic purposes, including eldercare, the
four are Dakota (Sioux) oyate (“people” or environment, and cultural resources.
“nations”). Whereas contact with French Some tribes have three or more separate
traders strongly influenced the history of branches of government, although the
the Anishinaabeg communities, the U.S./ pervasive governance model empowers
Dakota conflict features prominently in the tribal council to govern the affairs of
the history of the Dakota oyate. And the tribe. And like other governments,
each of these tribes’ historical experience tribes’ inherent sovereignty immunizes
differs greatly from, for example, those of them from claims unless an effective
southeastern pueblos.
waiver of immunity allows suit.
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Why is the relationship between
Indian tribes and everyone else so
complex?
There are three principal reasons, and
they correspond to the three types of
governments that may (or may not) have
jurisdiction in any Indian law case:
Each tribe is a distinct nation
with its own political system (often including its own court) that
enacts and enforces its own constitution, codes, and other law. Often,
this tribal law applies to transactions
and disputes with non-Indians.
The federal body of law addressed to Indians and tribes is
sweeping and contradictory. Over
the two centuries that Congress
and the Supreme Court have built
Indian law, federal policy has swung
from treating tribes as sovereign
governments to actively attempting to eliminate tribes back to supporting tribal sovereignty. Vestiges
of each of these eras, described in
more detail below, persist today.
States frequently have intergovernmental agreements, statutes,
and case law that apply to their
interactions with tribes. But sometimes federal Indian law completely divests state jurisdiction over
tribes. Whether state law applies
is regularly a fundamental question
of Indian law cases.
Knowing which body of law to apply and
how it intersects with the law of other applicable government powers is essential.
1
2
3
What is federal Indian law?
Indian law is the body of federal law
addressed to how the United States treats
(and allows the states to treat) tribes and
Indians. It is governed by the Constitution,
federal statutes, treaties, and common law.
The U.S. Constitution includes two
specific references to Indians and tribes.2
These clauses textually committed power
over Indian affairs to Congress. But they
also recognized—from our country’s
founding—that Indian tribes are sovereign governments that the United States
must engage with on a government-togovernment basis.
Congressional power over Indian affairs is “plenary,” making Indian law
the rare area of law where Congress can
legislate without regard for its spending
power or whether the legislation affects
interstate commerce.
Treaties, like statutes, are the “supreme law of the land.”3 Treaties remain
relevant—and often controlling—even
though they may be several centuries old.
Finally, Indian law is also a rare bastion of federal common law. Although
the Supreme Court often says it defers to
(and sometimes does defer to) Congress
on questions of Indian law, it has nevertheless cut several Indian law doctrines
from whole cloth. The very foundation of
Indian law—an 1823 decision—admits
that it essentially made up new rules. It
describes but then engages in the “extravagant… pretension of converting the
discovery of an inhabited country into
conquest[.]”4
Has federal Indian law changed
over time?
Dramatically. As the needs of the
fledgling United States evolved, so too
did Indian law.
1600 – 1788, Tribal Independence:
From the earliest European contact
through the Revolutionary War, France,
England, and eventually the United
States dealt with Indian tribes on a
nation-to-nation basis. Tribes generally
governed their own polities and economies free from outside interference.
1788 – 1828, Federal Encroachment:
The founders were well aware of many
tribes’ allegiance to the Crown and of
the national need to make peace with
the original inhabitants of the land they
sought to govern. Congress quickly relied
on its “Indian commerce clause” power
to enact a series of Trade and Intercourse
Acts that began to treat tribes as semi-independent “domestic, dependent nations”
whom the U.S. was obliged to protect, but
over whom Congress had plenary power.
1828 – 1887, Removal and Relocation:
As non-Indian settlers moved westward,
the federal government faced pressure
to make additional lands available. With
the inauguration of Andrew Jackson, efforts to push the Indians westward became explicit. A number of tribes were
forcibly removed from their lands. Others “benefited” from a reservation-based
system that furthered the twin goals of
westward expansion (by demanding million-acre cessions from tribes in exchange
for the promise to protect those tribes on
discrete reservations) and “civilization”
of the Indians (by focusing assimilation
activities on reservations’ concentrated
Indian populations). The reservations
were most often created by treaties that
were accomplished by persuasion, coercion, and sometimes swindle.
1887 – 1934, Allotment: With the close
of the Civil War, federal officials refocused
their attention on Indian policy. Some believed that Indians would benefit from increased assimilation, principally through
owning and cultivating individual land
parcels, and then through forced participation in off-reservation boarding schools.
At the same time, non-Indians coveted
reservation land that was unavailable for
settlement. Government officials slaked
non-Indian land thirst and continuing
desires to “civilize” Indians with “allotments.” They assigned 80 and 160 acre
plots on reservations to Indian individuals
and families, and then sold the “surplus”
reservation land to non-Indians. Allotment policy assumed that tribes would
disappear as their land bases dwindled.
1934 – 1953, Indian Reorganization: In
1928, a blistering federal report offered
a thorough exposition of the United
States’ failure to protect Indians, their
land, and their cultural resources. Allotment had been enormously successful in
lodging title into the hands of non-Indian
interests, but it left the now-isolated and
fractured tribes in shambles. Congress
responded with the 1934 Indian Reorganization Act.5 The Act reversed federal course. For the first time, Congress
actively worked to protect tribal governments and what remained of tribal land
bases. Even so, congressional recognition of tribal self-governance was limited.
Strongly paternalistic provisions still required the Secretary of the Interior to,
for example, approve tribal constitutions
and tribes’ decisions to hire attorneys.
1953 – 1968, Termination: Federal policy reversed again when Congress adopted
a “termination” policy. That policy simply ended the United States’ relationship
with many tribes, pretending they longer
existed. The results were catastrophic for
terminated tribes, which lost all federal
assistance. Public Law 280 gave certain
states mandatory jurisdictional authority
over tribes6 and allowed other states the
opportunity to assume voluntary jurisdiction over tribes. That switch left jurisdictional and resource gaps as federal officials pulled out of tribal territories.
1968 – Present, Self-Determination:
Assimilationist ideals finally began to
fade by the late ‘60s. In 1970, President
Nixon issued a statement that set the current course of federal Indian policy. He
stressed the importance of the trust relationship and government-to-government
treatment, and called for legislation maximizing tribal autonomy over tribal affairs.
Although the Supreme Court has tended
to narrow tribal powers, the legislative
and executive branches remain committed to strengthening tribes and the United States’ relationship with tribes.
This 500-year history remains ever
relevant because legacies of each of these
eras persist and overlap in Indian law
questions today. For example, the effects
of allotment and PL 280 persist in jurisdictional questions; reorganization-era
secretarial-approval requirements remain
in many tribal constitutions; and some
tribes are still working to regain federal
recognition that they lost to termination
even as they seek to enforce treaty rights.
Do treaties really still matter today?
Yes, because the United States said
they would. The United States’ promises
in each “contract between two sovereign
nations”7 varied from treaty to treaty, but
almost all expressly recognized tribal sovereignty. Many expressly assured tribes of
the federal government’s protection.
In 1903, the Supreme Court held that
Congress can unilaterally abrogate Indian treaties at will.8 It has since done so
frequently. But where Congress has not
abrogated treaty rights, they endure.
For example, as Minnesota reacts to
the Lake Mille Lacs walleye decline, it
must do so in tandem with the Mille Lacs
Band of Lake Superior Chippewa. This
flows from the Supreme Court’s 1999 recognition that “the Chippewa retain the
usufructuary rights guaranteed to them
under the 1837 Treaty” because Congress
has never abrogated those rights.9 The
band’s continuing governance and take
rights are not unearned benefits, but negotiated legal rights. In this case, enduring hunting and fishing rights were the
price of the land that became Wisconsin
and Minnesota.
Okay, but why can tribes operate
casinos?
Following decades of federal policies
that shredded tribal economies, Indian
tribes resorted to bingo and other gaming to try to raise governmental revenue.
When states threatened to close the operations, tribes brought the cases to federal courts. In 1987, the Supreme Court
reaffirmed that “Indian tribes retain attributes of sovereignty over both their
members and their territory,” and held
that at least where a state regulates but
does not prohibit an activity, the tribe
may separately regulate the activity in its
Indian country.10 Under this civil-regulatory/criminal-prohibitory distinction,
if a state regulated gaming (for example
by licensing charitable bingo), then each
tribe within that state could offer similar
games even if they do not comply with
state law.
Congress responded quickly with the
Indian Gaming Regulatory Act.11 IGRA
rebalanced state, federal, and tribal authority by creating a federal oversight
body (the National Indian Gaming Commission) and requiring tribes and states
to negotiate Indian gaming offerings. At
the same time, it recognized tribes’ “exclusive right to regulate”12 Indian gaming,
and required that tribal governments be
the sole owners and primary beneficiaries
of gaming. Borne out of necessity, gaming
became a primary tool for tribes—which
lack any effective tax base—to raise
governmental revenue for impoverished
tribal communities.
www.mnbar.org
But Indian gaming has had uneven
results. As Justice Sonia Sotomayor recently wrote, “[o]ne must . . . temper any
impression that Tribes across the country
have suddenly and uniformly found their
treasuries filled with gaming revenue.”13
Recent industry data shows that less than
20 percent of Indian gaming facilities account for roughly 70 percent of Indiangaming revenues. Indeed, only about
half of federally recognized tribes operate
gaming establishments.14
IGRA requires gaming tribes to use
gaming revenue for five limited purposes:
n to fund tribal government
operations or programs;
n to provide for the general welfare
of the tribe and its members;
n to promote tribal economic
development;
n to donate to charitable
organizations; and
n to help fund operations of local
government agencies.
Contrary to mainstream misconception,
relatively few of the gaming tribes issue
per capita payments to tribal members.
Most often, tribal casinos are job creators
(for members and non-members) in areas
where there are few jobs available. They
fund police departments, schools, and elder care. And they are a major catalyst
for community growth and economic
development, allowing many tribes to diversify their holdings into other types of
business ventures.
So who has civil jurisdiction in
Indian country?
It depends. Jurisdiction is the most
significant and mind-bending issue that
Indian law practitioners face. It turns on
whether the parties are Indian or not,
where the incident falls on the criminal/prohibitory versus civil/regulatory
spectrum, and the status of the land on
which an incident occurs. Determining
the “who” and the “where” are critical to
determining whether a tribe, the United
States, a state, or some combination of
these governments has jurisdiction.
As a general matter, tribes have inherent criminal and civil jurisdiction over
tribal affairs and members. Tribes also are
likely to have civil jurisdiction over nonmembers operating on trust land. For fee
lands within a reservation, tribes tend
not to have jurisdiction over nonmembers, but can adjudicate disputes arising
out of and regulate (e.g. through taxation
and licensing) the activities of nonmembers who: (a) have consensual relationships with the tribe or its members; or (b)
engage in conduct that threatens or has
some direct effect on the political integrity, the economic security, or the health
or welfare of the tribe. Under this test,
courts have, for example, found that a
tribe has jurisdiction over:
n nonmember employees of a casino
located on the tribe’s trust land;
n contracts between a tribe and
non-tribal business where the
conduct at issue takes place on the
reservation; and
n off-reservation polluters who
threatened a tribal water supply.
The Supreme Court has trended toward
narrowing these exceptions, though, and
a case that will be decided next term will
once again consider this subject.
10 Practice Pointers for Non-Indian law Practitioners
Transactional
Things to keep in mind if a potential deal with an Indian
tribe or a tribally owned business lands on your desk.
There are many opportunities for your business clients
to engage in Indian country; do not dissuade a client
based on lack of familiarity or antiquated notions.
Understand which body of substantive law will apply to a
transaction, and which government will have regulatory
and adjudicatory authority. Regardless of choice-of-law
provisions, be sure to review the tribe’s constitution and
tribal-code chapters related to business and jurisdiction.
If a deal has anything to do with gaming, the parties
must mind the Indian Gaming Regulatory Act, 25
U.S.C. §§2701 et seq., consider whether it applies, and
weigh its ramifications. For example, all “management
contracts” under the statutory framework require National
Indian Gaming Commission approval. Without that
approval, all management contracts are void ab initio.
It is best to discuss a potential waiver of sovereign
immunity up front as a threshold item.
1
2
3
4
Litigation
Things to keep in mind if a dispute with an Indian tribe
or a tribally owned business arrives on your docket.
Understand which court(s) have jurisdiction, and
which do not. For example, Indian tribes and their unincorporated entities can never sue or be sued in diversity
because they are not citizens of any state. And even if
concurrent jurisdiction exists between a tribal court and a
federal or state court, doctrines of tribal-court exhaustion,
comity, and Indian law preemption and infringement may
make the tribal court venue most appropriate.
5
www.mnbar.org
there is a chance the dispute will end up in tribal
6ThatIfcourt,
research the law of the particular tribe.
law may be published online, or you may have
to request the tribal code from the tribal court. Pay
attention to court procedure as well as applicable
substantive law. Note that some (but not all) tribes
look to federal or state law to fill gaps where no tribal
law exists on a particular point or issue. Also seek to
understand the role that traditional peacekeeping
practices may play. Be sure to gain admission to a tribal
court before appearing in that court.
Treaty rights and on-reservation property ownership
status may shape the dispute, especially if your client is
a federal, state, or local unit of government.
Be willing to give your client hard advice. If there is no
clear and express sovereign-immunity waiver to cover
your client’s claim, you will save your client time and
money by not bringing a lawsuit that will just be dismissed.
7
8
9
Any tribe-related matter
If you and your client find yourselves in the middle
of an Indian-law matter and it’s unfamiliar territory,
consider enlisting Indian law co-counsel or referring the
matter out. An expert in this area will be able to run the
traps efficiently and effectively, but is unlikely to “steal”
your client, since many Indian law practitioners work
exclusively in that area.
When you are engaging with an Indian tribe
on behalf of your client, inventory any personal
hesitations you have and then work to leave bias,
preconceived notions, and fear of the unknown at
the door.
10
What about criminal jurisdiction
in Indian country?
At the same time that the Supreme
Court has narrowed tribal civil jurisdiction, Congress continues to expand
tribal criminal jurisdiction. In 1990, the
Supreme Court announced that tribes
could only exercise criminal jurisdiction
over their own members—not over nonIndians and not even over nonmember
Indians.15 Congress responded with legislation allowing tribes to prosecute nonmember Indians (but not non-Indians).
That “fix,” though, left a glaring jurisdictional gap. In many cases with
non-Indian offenders, no government
had jurisdiction to bring charges. The
Justice Department estimates that one
in three native women have been raped
or assaulted in their lifetimes.16 Let that
sink in. Of reported on-reservation attacks, at least 86 percent of the victims’
attackers were non-Indian.17 But tribes
couldn’t prosecute these attackers because they were not Indian. Non-PL 280
states could not prosecute these attacks
because the crime occurred on a reservation. And the feds often didn’t prosecute
because the attack wasn’t “bad enough”
to trigger federal jurisdiction. Every day,
crime after crime could not be prosecuted
in any jurisdiction.
Congress addressed this in the Violence Against Women Reauthorization
Act of 2013.18 Tribes are now able to
exercise their sovereign power to investigate, prosecute, convict, and sentence
both Indians and non-Indians who assault Indian spouses or dating partners
or violate a protection order in Indian
country. The statute doesn’t address every crime that occurs in the jurisdictional
gap, but it is a start.
If a tribe has jurisdiction, does
that mean the state and the
federal governments don’t?
No. Even when a tribe has jurisdiction over a matter, the United States often has concurrent jurisdiction. In more
limited circumstances, a state may also
have jurisdiction. Because Minnesota is a
PL 280 state, it has criminal/prohibitory
jurisdiction over Indians in Indian country with the exception of the Red Lake
Indian Reservation. But PL 280 does not
give Minnesota civil/regulatory jurisdiction over Indians in Indian country. For
example, the Minnesota Supreme Court
has held that driver-licensing and vehicle-registration laws are civil/regulatory,
so the state can’t enforce them against
Indians in Indian country.19 In contrast,
the state’s laws concerning underage
consumption of alcohol (which flatly ban
rather than regulate conduct) are criminal/prohibitory, and the state can rely
on PL 280 to enforce those laws against
Indians in Indian country.20
Importantly, even where concurrent
jurisdiction exists, matters of tribal-court
exhaustion and comity can tip the scales
in favor of tribal-court jurisdiction in the
first instance. In those cases, the tribal
court would hear any tribal law, state law,
and federal law claims.
Where can I learn more about
Indian law and the latest legal
developments?
This article is barely a beginning.
Bench & Bar now includes the latest
Indian-law developments in its Notes &
Trends section, and plans to cover additional topics. For additional information
about Indian law, both of the authors of
this article are available to answer questions. Cohen’s Handbook of Federal Indian
Law21 offers a comprehensive treatment,
and the Turtle Talk website22 provides
daily primary-source updates on Indian
law decisions and legislation. s
Notes
1
Michigan v. Bay Mills Indian Cmty.,
134 S. Ct. 2024, 2030 (2014)
(quotation omitted).
2
U.S. Const. Art I, Sec. 2, Cl. 3
(“Representatives and direct taxes
shall be apportioned among the several states which may be included
within this union, according to their
respective numbers, which shall be
determined by adding to the whole
number of free persons, including those bound to service for a
term of years, and excluding Indians
not taxed, three fifths of all other
Persons.”) (emphasis added); U.S.
Const. Art I, Sec. 8, Cl. 3 (“The
Congress shall have Power . . . To
regulate Commerce with foreign
Nations, and among the several
States, and with the Indian Tribes[.]”)
(emphasis added).
3
U.S. Const. Art. VI, cl. 2
(Supremacy Clause).
4
Johnson v. M’Intosh, 21 U.S. 543,
591, (1823).
5
25 U.S.C. §§461 et seq.
6
Pub.L. 280, §7, 67 Stat. 588, 590
(1953) (now 25 U.S.C. §1321, as
amended). Public Law 280 affords
states criminal jurisdiction over
Indians in Indian Country, and civil
jurisdiction over individual-Indian
disputes (but not jurisdiction over
Indian tribes).
7
Washington v. Washington State
Commercial Passenger Fishing Vessel
Ass’n, 443 U.S. 658, 675 (1979).
8
Lone Wolf v. Hitchcock, 187 U.S.
Join the discussion at mnbenchbar.com
JESSICA INTERMILL is a
founding member of Hogen
Adams PLLC, a Minnesotabased boutique Indian
law firm with a national
presence. She advises
tribes and their partners on
federal Indian law matters,
sovereign immunity, tribal
governance, and treaty rights.
jintermill@hogenadams.com
JESSIE STOMSKI SEIM is
an enrolled citizen of the
Muscogee (Creek) Nation,
and she is a board member
of the Minnesota American
Indian Bar Association.
She is an associate at
Hogen Adams PLLC, and
represents Indian tribes
and entities doing business in Indian country.
jseim@hogenadams.com
553, 566 (1903).
Mille Lacs Band of Chippewa Indians,
526 U.S. 172, 175 (1999).
10
California v. Cabazon Band of
Mission Indians, 480 U.S. 202, 207
(1987) (quotation omitted).
11
25 U.S.C. §§2701 et seq.
12
25 U.S.C. §2701(5).
13
Bay Mills, 134 S. Ct. at 2043
(Sotomayor, J., concurring).
14
Id.
15
Duro v. Reina, 495. U.S. 676, 688
(1990).
16
Patricia Tjaden & Nancy
Thoennes, U.S. Dep’t of Just., NCJ
183781, Full Report of the Prevalence, Incidence, and Consequences
of Intimate Partner Violence Against
Women: Findings from the National
Violence Against Women Survey
(2000).
17
Amnesty International, Maze
of Injustice: The Failure to Protect
Indigenous Women from Sexual
Violence in the USA, 4 (2007),
available at http://www.amnestyusa.
org/pdfs/MazeOflnjustice.pdf (last
visited 8/12/2015).
18
Violence Against Women
Reauthorization Act of 2013, S. 47,
113th Cong. (2013).
19
State v. Stone, 572 N.W.2d 725, 731
(Minn. 1997).
2State v. Robinson, 572 N.W.2d 720,
724 (Minn. 1997).
21
Nell Jessup Newton, Cohen’s
Handbook of Federal Indian Law
(2012 ed.).
22
www.turtletalk.wordpress.com
9
www.mnbar.org
A Blind
Spot in
the Law
In May the Minnesota Court
of Appeals held the state’s
criminal defamation statute
unconstitutional—leaving
victims and prosecutors
with less recourse against
“revenge porn” and similar
problems. Now a legislative
working group is looking
to plug that hole in the law
while staying on the right
side of the 1st Amendment.
By Steven P. Aggergaard
Illustration © thinkstockphotos.com
www.mnbar.org
“These guys who are putting naked photos online, they know we can’t get to them
because of the status of the law. They’re not your typical criminal defendant.”
– State Rep. John Lesch, DFL-St. Paul
B
y invalidating Minnesota’s
criminal-defamation statute
as unconstitutional, the Minnesota Court of Appeals has
ignited an effort to criminalize
distribution of “revenge porn” and similar
uses of the internet.
A “legislative working group” began
meeting in June, one month after the
court issued its opinion in State v. Turner
on May 26.1 Legislators, lawyers, and advocates of both battered women and civil
liberties are represented.2
Their core focus is revenge porn,
which involves disseminating sexually
explicit images without the subject’s consent. Another focus is on persons who
make a false claim of identity for purposes
of soliciting sex, as was the case in Turner.
About half of U.S. states have revenge-porn laws and others are considering them.3 Draft federal legislation also is
circulating.4
According to Rep. John Lesch, DFLSt. Paul, Minnesota needs to address
both the increasing number of victims
and the ingenuity of pornographers.
“I hear from victims who tell me
that the perpetrators know the status
of the law, so they use this against
these women,” said Lesch, a St. Paul
prosecutor. “These guys who are putting
naked photos online, they know we can’t
get to them because of the status of the
law. They’re not your typical criminal
defendant.”5
Lesch helped author House File 18,
which was introduced during Minnesota’s short special session in June. The bill
aims to fix constitutional problems with
the criminal-defamation statute while
creating a new statute that would make
it a felony to falsely use someone else’s
identity “to invite, encourage, or solicit
another to participate in sexual contact
or penetration with the individual.”6
The bill would also make it a felony to
intentionally disseminate “private sexual
images” when (1) the adult is identifiable
and “is engaged in a sexual act or whose
intimate parts are exposed,” (2) the
defendant obtains the image “under
circumstances in which a reasonable
person would know or understand that
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the image was to remain private,” and
(3) the defendant “knows or should have
known that the person in the image has
not consented to the dissemination.”
Lesch said the group will continue
working until the March 2016 legislative
session. Their task is delicate in light
of the 1st Amendment. Revengeporn images might be constitutionally
protected if created by consenting adults.
In addition, the threat of enacting
another unconstitutionally overbroad
law looms.
The threat materialized this summer
in Arizona, where a revenge-porn statute
like House File 18 makes it a felony to
distribute nude images “if the person
knows or should have known” the
person depicted did not consent. After
bookstores and others sued the state,
prosecutors agreed not to enforce the
statute owing to concerns it would apply
to non-pornographers.7
“There are books on my shelves right
now that might be illegal to sell under
this law,” a Tempe, Ariz., bookseller said.
“How am I supposed to know whether
the subjects of these photos gave their
permission?”8
The law invalidated
Although the defendant in State v.
Turner was not accused of distributing
photographs without consent, revenge
was an alleged motive for what
prosecutors said had occurred. Turner
was accused of placing a sexually
explicit Craigslist ad claiming to be
his ex-girlfriend and her daughter and
providing their phone numbers. As a
result, they received sexual solicitations
and pornographic images.
Prosecutors conceded the criminaldefamation statute was overbroad
but suggested it could be construed
narrowly. The court of appeals held that
it could not because doing so would have
meant rewriting the law, which “would
constitute a serious invasion of the
legislative domain.”9
Enter Lesch and the legislative
working group. Their efforts are bolstered
by advocates at the Cyber Civil Rights
Initiative, which seeks pro bono help for
victims and assists with drafting proposed
statutes.10
The nonprofit’s vice president, University of Miami Professor Mary Anne
Franks, is part of Minnesota’s legislative
group.11 In her “Guide for Legislators,”
she states:
n 90 percent of revenge porn
victims are women.
n 59 percent had their full names
posted.
n 57 percent said an ex-boyfriend
did it.
n 42 percent sought psychological
services because of it.12
Harm can spread quickly. “In a matter of days, that image can dominate the
first several pages of ‘hits’ on the victim’s
name in a search engine,” Franks writes.
Meanwhile civil libertarians stand
watch. The American Civil Liberties
Union was behind the challenge to Arizona’s law on grounds it was overbroad
and a content-based restriction on protected speech.13
The federal complaint cited specific
titles of books that it might be a felony
to sell and warned that a vendor could
be prosecuted for selling a magazine with
pictures of unclothed Abu Ghraib prisoners. The plaintiffs also alleged the statute
“creates criminal liability for negligent
speech” by requiring proof only that the
defendant “should have known” the dissemination was nonconsensual.
In July, United States District Judge
Susan R. Bolton entered a Final Decree
permanently enjoining the state “from
enforcing, threatening to enforce, or otherwise using” the law.14 Arizona agreed to
pay the plaintiffs’ attorneys’ fees.
Minnesota’s legislative working group
includes representation from ACLU of
Minnesota as well as Turner’s criminal defense lawyer, John Arechigo of Arechigo
Stokka in St. Paul. He told City Pages he
agreed there should be a law. “We certainly don’t want people out there doing
this stuff—throwing out the sex tapes or
posting photos of exes,” he said. 15
But as both Arechigo and the court
of appeals made clear, the criminal-defamation statute was the wrong tool for
punishing revengeful uses of the internet.
90% of revenge porn victims are women
Constitutionally, a “sitting duck”
While Minnesota is not alone in targeting revenge porn, it also is not unique
in recognizing its criminal-defamation
law is an unconstitutional relic. As Minneapolis attorney Mark Anfinson told the
Star Tribune, the statute had been a “sitting duck constitutionally for decades.”16
Its core problem was that it defined
“defamatory matter” as “anything which
exposes a person or a group, class or
association to hatred, contempt, ridicule, degradation or disgrace in society,
or injury to business or occupation.”17
In other words, it criminalized truthful
speech. There was an exception for truth
“communicated with good motives and
for justifiable ends,” but the court of appeals held the exception “runs contrary
to our state’s civil defamation definition,”
which makes truth an absolute defense.
The statute also excluded “fair comment made in good faith with respect to
persons participating in matters of public concern.” That exclusion, according
to the court, failed to reflect the “actual
malice” standard of New York Times v.
Sullivan.18
The United States Supreme Court
issued that landmark opinion in March
1964, a year after Minnesota’s criminaldefamation statute was last amended.
The case forbids states from awarding
defamation damages to public officials
without proof of actual malice. Eight
months later, in Garrison v. Louisiana,19
the Supreme Court applied the standard
to criminal defamation.
Taken together, the cases prevent
states from punishing speech about public officials without proof that the defamer knew it was false or acted in reckless
disregard of truth or falsity. Although the
law is more lenient in favor of privateperson plaintiffs, truth still is an absolute
defense.
According to the court of appeals,
Minnesota’s criminal-defamation statute, which dated to the 1890s, failed to
reflect these “seminal libel and defamation cases.” It was a relic of a time when
freedom of speech meant something
much different.
Libel was a common-law crime imported to the Colonies, and by 1952 the
United States Supreme Court observed
that “every American jurisdiction—the
forty-eight States, the District of Columbia, Alaska, Hawaii and Puerto Rico—
punish libels directed at individuals.”20
The judiciary deferred to elected and
other public officials to determine what
was wholesome and therefore legal, irrespective of whether the speech was true
or an opinion. Between 1907 and 1930,
the Minnesota Supreme Court affirmed
efforts to criminally punish the St. Paul
Pioneer Press for publishing truthful details about an execution, to shut down
another newspaper as a nuisance, and to
ban the film The Birth of a Nation.21
The deference began eroding with
New York Times. Minnesota was among
the states that kept criminal-defamation statutes on the books, but by 1970
prosecutions under them had become
“extremely rare.”22 As 8th Circuit Judge
Donald P. Lay explained in a 1973 opinion striking down a federal statute that
criminalized using the mails for truthful but “scurrilous” communications, “a
strong argument may be made that there
remains little constitutional vitality to
criminal libel laws.”23
As both the internet and digital photography proliferated at the turn of the
21st century, defamation had become
the province of the civil law and those
who could afford it. The law of privacy
evolved similarly. Although Minnesota
made “interference with privacy” a crime
in 1979, the statute applied only to “surreptitious” intrusions.24
The problem is, most revenge porn
was not surreptitiously recorded. And
many of its victims lack the financial
resources to pay civil lawyers. If
Minnesota’s legislative working group
can draft a statute that jibes with the 1st
Amendment, criminal law could help fill
the gap. s
STEVEN P. AGGERGAARD is
a shareholder at Bassford
Remele, PA in Minneapolis,
where defamation and
privacy matters are part of
his practice.
saggergaard@
bassford.com
10%
Notes
1
864 N.W.2d 204 (Minn. Ct. App.
2015).
2
https://www.minnpost.com/politicalagenda/2015/06/legislative-studygroup-revenge-porn-meets-st-paul
3
http://www.cagoldberglaw.com/
states-with-revenge-porn-laws
4
http://digitalcommons.law.scu.edu/
historical/1003
5
Interview with author, 8/20/2015.
6
Available at http://www.leg.state.
mn.us/leg/legis.aspx.
7
http://mediacoalition.org/files/litigation/antigone-books-brnovich-finaldecree.pdf
8
https://www.aclu.org/news/firstamendment-lawsuit-challengesarizona-criminal-law-banningnude-images
9
864 N.W.2d at 211.
10
http://www.cybercivilrights.org
11
See n.2, supra.
12
http://www.endrevengeporn.
org/main_2013/wp-content/uploads/2014/08/Guide-for-Legislators_7-18-14.pdf
13
http://mediacoalition.org/files/Antigone-Books-Horne-complaint.pdf
14
See n.7, supra.
15
http://www.citypages.com/news/
prosecuting-revenge-porn-minnesotas-law-may-be-unconstitutional-6533123
16
http://www.startribune.com/
minnesota-court-strikes-down-criminal-defamation-law-in-overturningconviction-of-craigslist-revengeposter/305044301/
17
Minn. Stat. §609.765.
18
376 U.S. 254 (1964).
19
379 U.S. 64 (1964).
20
Beauharnais v. Illinois, 343 U.S.
250, 255 (1952).
21
State v. Pioneer Press Co., 110
N.W. 867 (Minn. 1907); Bainbridge v. City of Minneapolis, 154
N.W. 964 (Minn. 1915); State ex
rel. Olson v. Guilford, 228 N.W.
326 (Minn. 1930).
22
Tollett v. United States, 485 F.2d
1087, 1094 (8th Cir. 1973).
23
Id.
24
Minn. Stat. §609.746.
www.mnbar.org
2015 New LawyeRS
LEADERShIp CoNfERENCE
The New Lawyers Leadership Conference (NLLC) is the premiere event in the
State for the up and coming legal professionals and practitioners looking to make
a difference in their professional career. This year’s conference is packed with
invaluable information, thought provoking speakers, engaging presentations and
a variety of insightful tips, best practices and expert advice for legal professionals
new to the practice or still in the first five years of their career. Leaders from the
Minnesota State Bar Association, Ramsey County Bar Association, and Hennepin
County Bar Association, among others, will all be in attendance to interact, engage
and socialize with attendees, as well as provide advice and guidance from their
experiences and background. Whether you’re a big, small or solo law practitioner, in
the public and private sector, this is a wonderful opportunity to meet, network, and
engage with colleagues and leaders from the Minnesota legal community.
ThuRSDAy
NovEmbER 12, 2015
CLE CREDITS
AppLIED foR
Windows on Minnesota, Minneapolis
2.0 Standard
2.0 Law Office Mgmt
1.0 Ethics
Breakfast: 8:30 – 9:00 am
Presentations: 9:00 am – 4:15 pm
Social Reception: 4:30 – 6:00 pm
$35.00 to attend
breakfast, lunch and
happy hour provided
Register online at www.mnbar.org or call (612) 278-6305
Deadline to Register: November 4, 2015
Coming soon to a
computer near you:
Minnesota
Court Records
After months of deliberation, Minnesota courts have
opted to make more of their records electronically
accessible through the internet. Though some
restrictions remain in place—especially regarding
juveniles or pending criminal matters—the result is a
much more publicly open system.
By Rick Linsk
Illustration © thinkstockphotos.com
W
hen the Minnesota
Supreme
Court
convened an advisory
committee in 2003
to study whether and
to what extent the state’s court records
should be available on the internet, the
prospect of records being widely available
“with the click of a computer mouse”
provoked an intense reaction.
The panel, composed of judges, court
administrators, attorneys, and others,
ultimately recommended a “go-slow
approach,” putting only the most basic information online—court dockets,
calendars, judgments, orders, and opinions. The reason: fear among some panel
members that court data could be used to
steal identities, harass crime victims, and
smear people accused but not convicted
of crimes. For the same reasons, the committee recommended “preconviction”
criminal records not be searchable by
name. The records would be public at
the courthouse, but shrouded in “practical obscurity”—meaning few people
would actually travel to a courthouse to
pry into (or amass dossiers from) records
about individuals.
Still, one of the committee’s members
predicted the information tide would not
remain dammed up much longer. “I’m
convinced that the zone of remotely accessible records will expand until someday... essentially everything that I can get
at the courthouse that’s public will be
remotely accessible,” said media attorney
Mark Anfinson.
The Supreme Court adopted the goslow recommendation, authorizing only
the basics to be accessible on the judicial
branch’s Minnesota Court Information
System (MNCIS). By contrast, the federal judiciary’s online system, Public Access
to Court Electronic Records (PACER),
was “nearly universal” by 2007, allowing
registered users to view and download
civil and criminal court documents and
opinions for a per-page fee. By fiscal year
2015, PACER had 2 million registered
users. And by 2014, 11 state court systems had established “well-developed”
remote access to various types of documents. Minnesota continued to make
most court records available only at the
courthouse.
www.mnbar.org
The openness debate
It nearly goes without saying that
public access to the courts is historic,
important, and has numerous benefits.
Among the obvious benefits courts have
noted: informed oversight of the judicial
process and the “therapeutic value” of
tracking high-profile cases.
To proponents of openness, the
internet offers a way to super-charge longheld principles of openness. They see
improved access through technology as “a
straightforward good”—an end in itself.
But for every open-records advocate,
there is a lawyer, judge, scholar, or activist
chafing over the privacy implications of
unbridled remote access to court records.
It was inevitable these tensions
would resurface once Minnesota Chief
Justice Lorie S. Gildea reconvened and
appointed new members to the publicaccess rules committee last year.
Though informed by principle, the
committee reboot had more prosaic
origins. Over the past decade, the
Minnesota Judicial Branch, like other
state court systems, has been taking steps
to transition from a traditional paper to
an electronic information environment.
This “eCourtMN” initiative required
the appointment of several advisory
committees, including the publicaccess committee, to consider whether
court rules needed to be amended to
accommodate electronic filing and
service in the district courts.
Because of the separation of powers,
the judicial branch is not covered by the
Minnesota Government Data Practices
Act; rather, the judicial branch enacts
its own rules for access. For the publicaccess committee, the new electronic
environment posed a question: Once
documents were routinely going in
digitally to the courts, would it be a
two-way street? Would information be
allowed to flow back out?
The new panel met for 19 hours
over three months to mull this. Much
of its work was uncontroversial. There
was little or no objection, for example,
to making requests for administrative
warrants nonpublic, lest the targets of
such filings be tipped off before service; or
to keeping secret responses to a criminal
expungement petition; or to protecting
certain domestic abuse and harassment
records; or to obligating attorneys to
redact sensitive private information
from documents before filing or else face
sanctions.
By its second meeting, though, the
panel began to bog down over its biggest
issue: Rule 8, the centerpiece of the goslow approach.
Advocates of expanded access argued
the heavily restricted approach had
www.mnbar.org
become outdated. Hennepin County
Chief Judge Peter A. Cahill, a member of
the committee, was among those arguing
strongly that there should be remote
access to all documents already available
at the courthouse, in line with a proposal
earlier in 2014 by the judicial branch’s
eCourt steering committee. Attorneys
from rural areas or with active latenight criminal practices supported this
position. Media attorneys pointed out
that in an era of shrunken news staffs,
remote access was necessary to help
journalists and citizen bloggers inform
the public.
Others pushed back. Family-law
attorneys argued that documents filed
in their cases contained sensitive and
potentially embarrassing information
about litigants and their children
that should not be easily accessible by
neighbors, acquaintances, or imagined
nosy adolescents—what some committee
members summarized as “pajama
browsing.” They suggested delaying
remote access by two or three days
to give parties a chance to object to
remote access to their documents. Some
members feared landlords and employers
would scoop up data from a wide-open
remote MNCIS and unfairly discriminate
against applicants with histories in the
courts.
As in 2004, the committee also
struggled over remote access to criminal
cases in which defendants had not yet
(or not ever) been convicted, with some
arguing that permitting remote public
access to documents in those cases would
lead to “scraping” and resale of the records
by data-mining businesses, and in turn
to the creation of dossiers on the former
defendants.
Another issue was whether remote
access, once widened, should come
at a price. Proponents argued that
charges would deter the merely curious;
opponents responded that excessive
charges would be unfair and arbitrary.
Court administrators on the committee
had pragmatic concerns over whether
MNCIS had the technical capability to
provide the various types of access—or
limits—that members were suggesting.
The panel weighed various approaches
to break the logjam, from no remote
access at all to broad access. Members
considered whether to allow pending
criminal cases and family cases to be
searched by name, only by case number,
or not at all. Some members argued
fiercely that allowing remote access for
these types of cases, even with limitations
such as requiring searchers to have a case
number, would erode privacy because
searchers would find ways to obtain case
numbers.
Compromise reached
After about 17 hours of debate, the
committee reached a consensus. There
was little sentiment for maintaining the
existing Rule 8, which kept nearly all
documents from remote view. Neither
did the other extreme prevail—a maximum level of remote access, which would
put heavy demand on litigants and court
staff to redact or wall off certain types of
documents or information within documents. The compromise was a system of
“tiered access,” in which levels of remote
access would vary by the type of case:
In felony-level juvenile delinquency
proceedings involving a child at least
16 years old (known as “D-16” cases)
and child-protection cases (“CHIPS”
for short), there would be no remote access, but data would still be accessible at
courthouses.
In civil commitment cases, there
would be remote access only to the register of actions, calendars, and search
indexes. Commitment cases involving
minors would be nonpublic altogether.
In family and paternity cases, remote
access would be provided to the register
of actions, calendars, and search indexes,
plus court-filed documents.
In civil and criminal cases, searchers could remotely access the register of
actions, calendars, and search indexes;
court-filed documents; and party-filed
documents as well, except that pending
criminal cases could be searched only by
case number, not name.
The committee took no position on
whether (or how much) remote users
should be charged, leaving that question
to the Supreme Court.
One member authored a minority
report, which no others joined, arguing
that the final report did not guard against
the risks of data mining and that people’s
private and business information would
be exposed to “anyone with an internet connection, whether it be identity
thieves from abroad, potential future employers, business competitors, burglars,
stalkers or retailers trying to sell anything
from insurance policies to home repair.”
One provision that wound up in the
committee’s final report, added late in
the process, would prove to be controversial. The committee recommended all records of juvenile-protection proceedings
“in which the child is a party” be made
inaccessible—not just remotely inaccessible, but completely inaccessible—to
the public. That would have included
the reports of county social workers and
guardians ad litem, important documents in any child-protection case. The
change was proposed by both the eCourt
steering committee and the Supreme
Court’s advisory committee on the rules
of juvenile-protection procedure. Proponents suggested the limitation would
help children, but the proposed change
would have reversed reforms made to the
child-protection system a decade earlier
with much fanfare. The proposal also coincided with a year-long series of reports
by the Minneapolis-based Star Tribune
about shoddy child-protection investigations—reports enabled in part by the
very documents that would be made secret. Added about six weeks before the
committee’s year-end deadline, the proposed change provoked no reaction at
that time from members of the panel.
and accountability of state and county
child-protection agencies.
In April, the Supreme Court adopted nearly all of the access committee’s
recommendations, finding that they
achieved the right balance between
openness and privacy. The remoteaccess provisions would apply to documents filed on or after July 1, 2015. The
court deferred the question of fees. But
the court balked at the proposal to wall
off child-protection records. In a separate order on the juvenile-protection
committee’s report, the court elected to
keep social worker and guardian ad litem reports in CHIPS case records open,
The Supreme Court approves,
which presumably moots the access comexcept for CHIPS change
mittee’s related rule change. The court
The committee’s recommendations ordered the committee to monitor the
provoked sharp reaction, especially its rules and amendments and report back
proposal to make juvenile-protection by April 1, 2016.
documents inaccessible even at the
courthouse. In public comments and Conclusion
testimony to the Minnesota Supreme
The upshot: As early as July 1, 2016,
Court, journalists and child advocates, or else by January 1, 2017, all civil case
including Kathleen Blatz, a former chief documents and post-conviction criminal
justice, urged the court to keep records case documents from Minnesota courts
of child-protection proceedings open. will be remotely accessible. It is as hard
They noted that the court, in a nation- to overstate the potential impact of this
ally recognized initiative, had opened expanded access as it is to predict all the
up such records between 1998 and 2001 consequences. There is no avoiding that
precisely to improve the performance information in court files will be available
R
Protecting Your Practice is Our Policy.
800.422.1370
for good or ill. Attorneys, journalists, and
whistleblowers will add value through
the ability to retrieve documents late at
night, or on weekends, or in greater Minnesota where a courthouse is far away. Yet
the dreaded “pajama snooper”—the malicious ex-spouse, the nosy neighbor, the
bullying adolescent—will likely be out
there poking through the data as well.
The questions debated in 2014 were not
much different than those of 2004: Will
the public benefits afforded by the former
outweigh the potential annoyances and
embarrassment caused by the latter? Are
these fears reason to block the benefits of
open records? Can Minnesota’s judicial
branch keep these competing interests,
openness and privacy, in balance as it
moves into the electronic future? s
Rick Linsk is an
attorney at Lockridge
Grindal Nauen, P.L.L.P. in
Minneapolis. A former
newspaper journalist, he
was a judicial law clerk
for the Minnesota Supreme
Court, and has been a
member since 2014 of the
court’s Advisory Committee on Rules of Public
Access to Records of the Judicial Branch.
rnlinsk@locklaw.com
www.mlmins.com
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Notes Trends
Notes&Trends
Landmarks in the Law
Current developments in Judicial Law, Legislation, and Executive Action together with a foretaste of
Emergent Trends in law and the legal profession for the complete Minnesota lawyer.
Bankruptcy
by Timothy D. Moratzka
33
Commercial & Consumer Law
by Fred Miller
34
Criminal Law*
by Frederic Bruno & Samantha Foertsch
34
Employment & Labor Law*
by Marshall H. Tanick
39
Environmental Law
by Jeremy P. Greenhouse
42
Family Law
by Jaime Driggs
42
Federal Practice*
by Josh Jacobsons
42
Indian Law*
by Jessica Intermill & Jessie Stomski Seim
44
Intellectual Property
by Tony Zeuli& Karen Beckman
45
Probate & Trust
by Robin R. Tutt
45
Real Property*
by Joseph P. Bottrell
46
Tax*
by Jerry Geis
46
Torts & Insurance
by Jeff Mulder
49
* The online version of this section
contains additional case note content.
See www.mnbenchbar.com
www.mnbar.org
BANKRUPTCY
JUDICIAL LAW
n Lien stripping denied. In a recent
case, the court denied the debtor’s effort to “strip” a lien. The debtor filed a
Chapter 13 while owning a house. The
proposed plan was to “strip” the junior
of two liens secured by the house on the
basis that there was no value to support
the junior lien. The junior lien creditor
objected, asserting value and asserting
that its lien was secured by the interest
of the debtor’s ex-husband, who was still
personally liable for the debt involved.
The debtor’s ex-spouse had conveyed
his interest in the property prior to the
filing of the Chapter 13 by the debtor.
The court held that “lien stripping” cannot divest a lien securing a claim which
is not subject to allowance or treatment
in the bankruptcy. The debt owed the
junior lien creditor by the non-debtor
ex-spouse was not cognizable in the
debtor’s bankruptcy. In re Sara Beth
Brown, Bky. No. 14-35096 (Bankr.
Minn., 9/11/2015).
n Property surrendered in full satisfaction of claim. The debtor sought
relief under Chapter 13 and obtained
confirmation of a plan that provided for
transfer of non-residential real estate to
the secured creditor in full satisfaction
of any claim. The property value was
approximately 50% of the amount of the
secured debt. The court found that the
secured creditor had notice of the case
filing, notice of the plan, its confirmation and its subsequent modification, all
of which provided for the transfer of the
real estate in question to the creditor
in full satisfaction of the claim. Citing
11 U.S.C. Sec. 1325(a)(5)(C) and Sec.
1322(b)(9), the court held that it could
confirm a plan which surrendered the
property to a secured creditor in full satisfaction of the claim and vest said property in the creditor. The court entered
an order directing the debtor to send an
executed quit claim deed to the creditor and directed the creditor to either
record the deed to effect the transfer or
seek relief from stay to foreclose. In re
Sharon D.M. Stewart, Bky No. 13407709 (Bankr. Minn., 9/1/2015)
n Violation of discharge injunction.
The bank loaned money to the debtor
for use in his business. The resulting
debt was secured by a third mortgage on the residence of debtor and
his non-debtor spouse. The note was
either amended, modified or re-stated
five times prior to debtor’s Chapter 7
bankruptcy. During the pendency of the
bankruptcy the debtor, his spouse and
the bank entered into an agreement
reaffirming the debt (“agreement”). All
parties knew, including the bank, that
the agreement was ineffective because
the requirements of 11 U.S.C. Sec.
524(c)(3) were not met. Debtor received a discharge and thereafter, upon
repeated contact from the bank and
representations of possible refinancing,
made payments pursuant to the agreement totaling $46,000. When the debtor
ceased making payments the bank commenced suit to enforce the agreement
and debtor counterclaimed for damages
and to enforce the discharge injunction
contained in his discharge. The bankruptcy court found that the agreement
did not comply with Section 524(c)
(3). The bankruptcy court further held
that there was no consideration under
state law to support the agreement. The
bankruptcy court awarded debtor damages and attorneys’ fees for violation of
the discharge injunction. On appeal, the
district court affirmed and increased the
damages to include all payments made
under the agreement. Subsequently, the
appeals court affirmed the district court
judgment finding that the agreement
was unenforceable under the bankruptcy
code. The court specifically concluded
that post-discharge forbearance from
foreclosure was not a consideration. The
court held that the payments made by
the debtor were not voluntary due to
the contact and pressure from the bank
made with hints of possible refinancing.
Notes&Trends
The court found that these actions violated the injunction of Section 524(a)
(2) contained in the discharge order and
sustained the damage award. Venture
Bank v. Howard Lapides, 2015 WL
5011704, (8th Cir. 8/25/2015).
– Timothy D. Moratzka
DeWitt Mackall Crounse & Moore S.C.
parties? Will one have to lose? This was
part of the fact pattern in a case that
raised in that context the above stated
question. There seems little or no direct
authority on point.
To analyze the matter, upon revocation of acceptance the goods go back to
the seller, and the buyer gets the purchase price back. The inventory-secured
commercial &
party thus will acquire a security interest
in the returned goods as inventory, and
consumer law
its former interest in the returned price
judicial law
(proceeds of the original sale to the
n When doing everything legal may
buyer) will initially remain perfected
not be enough. Can a perfected secured (but may become unperfected later
party lose its collateral to a subsequent
under UCC §9-315). Official Comthird party? Clearly the general anment 10(a)(1) to §9-330. No necessary
swer is no. Uniform Commercial Code
loss here. The lender who lent to the
§9-401 provides that a debtor’s rights
buyer, even though the buyer’s interest
in collateral are alienable, but §9-201
in the goods is now transferred back
provides that a security agreement is ef- to the seller, since the security interest
fective according to its terms against not attached when the buyer had rights in
only the debtor but also third parties.
the collateral under UCC§ 9-203(b),
Moreoever, §9-315(a) provides that a
the lender should retain that interest.
UCC§ 9-315(a).
security interest continues in collateral
notwithstanding sale, lease, license,
In addition, the buyer’s lender should
exchange, or other disposition unless the acquire a security interest in the returned
secured party authorized the disposition purchase price as proceeds of the “disfree of the security interest. The security position” back to the seller. The Article
9 priority rules (UCC Article 9, Subpart
interest also attaches to any identifiable proceeds of the collateral that are
3-Priority) will then determine which
secured party has priority in the goods,
received back on the disposition.
and in the proceeds. The inventory
There are some “exceptions.” For
example, a buyer in ordinary course of
security interest should prevail as to both
the goods and the proceeds as a general
business, such as a customer of a retail
proposition. UCC §9-322(a)(1). But see
seller who acquires goods from the
seller’s inventory when the inventory is
§9-330(c) in some cases as described in
Official Comment 10(a)(1) to §9-330.
subject to a perfected security interest,
takes free of the security interest created There is a loss, but it is due to priority
by that seller even if the security interest and not to disposition of the collateral.
What is the lesson here? A secured
is perfected and the buyer knows of its
party that does not monitor its debtor
existence. UCC §9-320(a). The reason
is that buyers from retailers do not check and its collateral may well bear legal
filings as a rule, and commercial law
collateral risks due to subsequent events
should embody reasonable practices.
even though protected by the law
initially. Close watch will also reduce
A similar rule exists for licensees and
non-legal risks to the collateral as well.
lessees (UCC §9-326). But there need
not be a loss to the secured party as that In short, vigilance is the price of good
party’s security interest also attaches to
security. CB Aviation, LLC v. Hawkerthe proceeds the seller receives from the Beechcraft Corp., No. 2:10 – cv – 1411
– JD (E.D. Pa. 2011).
buyer. Of course, cash proceeds may be
dissipated, or their identity lost, but that
– Fred Miller
Retired G.L. Cross Research Professor,
is a non-legal risk and one a secured party can protect itself against by requiring
University of Oklahoma
the proceeds be deposited in an account
CRIMINAL LAW
subject to its control and by monitoring. In many cases the proceeds may be
JUDICIAL LAW
chattel paper, which may be assigned but
is not likely to be lost.
n Immigration consequences: DeporBut what if a seller whose inventory
tation consequences of third-degree
is secured sells seriously defective goods criminal sexual conduct not clear;
to a buyer, the buyer gives a perfected
counsel must advise noncitizen
defendant that conviction “could” or
security interest to its lender, and the
“may” result in deportation. Appellant
buyer decides to and successfully does
revoke acceptance of the goods under
was born in Mexico and entered the
United States at the age of 12. He was
UCC §2-608? Where are the secured
granted immigration status under the
“Deferred Action for Childhood Arrivals” program, and was soon thereafter
charged with two counts of third-degree
criminal sexual conduct and one count
of furnishing alcohol to a minor. At his
plea hearing, appellant’s counsel asked
appellant on the record if he understood
that, because he is not a United States
citizen, his guilty plea to one thirddegree criminal sexual conduct charge
and furnishing alcohol to a minor “could
result in either deportation, exclusion
from admission to the United States, or
denial of citizenship.” Appellant said he
understood and stated that he wished
to go forward with his plea. The plea
agreement also stated that appellant
was informed and understood that his
guilty plea “may” result in deportation,
exclusion from admission to the United
States, or denial of citizenship. After
appellant was sentenced, ICE seized
appellant for removal proceedings. Two
months later, appellant obtained new
counsel, and filed a postconviction petition seeking to withdraw his guilty plea
on the basis that he received “clearly erroneous” advice about the immigration
consequences of his plea. Specifically, he
argued that his removal was “an absolute certainty” following his sex offense
conviction, so his attorney was required
to inform him that a guilty plea would
result in his deportation, making his plea
neither voluntary nor intelligent. The
postconviction court denied appellant’s
petition after an evidentiary hearing,
and appellant appealed.
Under Padilla v. Kentucky, 130 S.
Ct. 1473 (2010), the 6th Amendment
requires counsel must inform a noncitizen defendant of the deportation risks
associated with pleading guilty. If the
immigration consequences of a plea are
not “truly clear,” however, counsel need
only advise the noncitizen that a plea
may carry a risk of adverse immigration
consequences. More robust advice about
the likelihood of deportation is required
only if the deportation consequences
can be easily determined. The immigration statute at issue here is not “truly
clear,” as this term is used in Padilla, as
to whether appellant’s conviction would
lead to his deportation. The statute
states that “[a]ny alien who is convicted
of an aggravated felony at any time
after admission is deportable.” 8 U.S.C.
§1277(a)(2)(A)(iii). The statute lists the
“generic crime” of “sexual abuse of a minor” as one crime that is considered an
aggravated felony, but the statute does
not define “sexual abuse of a minor.” To
understand whether third-degree criminal sexual conduct falls under this term,
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Notes&Trends
counsel would have to do more than just
examine the statute or analyze binding
case law to determine that appellant’s
conviction was an aggravated felony.
Held, because the immigration
statute at issue is not succinct and
straightforward as to the immigration
consequences appellant faced, his attorney need have only advised appellant
that his plea may carry a risk of adverse
immigration consequences. Appellant’s attorney so advised appellant, as
evidenced in the plea hearing transcript
and the plea agreement. The postconviction court’s denial of appellant’s
petition is affirmed. Francisco Herrera
Sanchez v. State, Ct. App. 8/3/15.
n Sentencing: Defendant’s remorse, on
its own, is insufficient basis for downward durational departure. Respondent
entered a Norgaard plea to third-degree
criminal sexual conduct after a forced
sexual encounter with respondent’s coworker while appellant was intoxicated.
The district court granted respondent’s
motion for a downward durational
departure based on respondent’s age,
remorse, cooperation with law enforcement, and limited criminal history, and
the state appealed.
The district court may consider only
offense-related factors, as opposed to
offender-related factors, when granting
a downward durational departure. The
ultimate question is whether the offense
was significantly less serious than the
typical conduct involved in that offense.
The district court improperly relied on
several offender-related factors in granting respondent a downward durational
departure, including his age and cooperation. His criminal history was already
considered when determining the
presumptive guideline sentence, and the
district court rejected the argument that
respondent’s conduct was less serious
than the typical third-degree criminal
sexual conduct offense.
However, respondent argues that his
remorse was a proper, sufficient factor
to justify the downward durational departure. Remorse is only relevant in the
context of a downward durational departure where remorse, or lack thereof,
bears on the seriousness of the underlying offense. In this case, respondent’s
remorse did not diminish the seriousness
of the offense. The record supports the
conclusion that respondent showed
remorse only once he realized a conviction was likely, not once he realized
what he had done. Respondent entered
a plea in the middle of trial, after numerous witnesses had testified. In addition,
the victim had previously confronted
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that the district court calculated his
original sentence by first determining
that the appropriate sentence for the
lesser-included attempted second-degree
murder offense was a middle-of-the-box
sentence of 153 months, then adding 12
months, as required by the guidelines,
to account for the fact that this lesserincluded offense was committed for the
benefit of a gang and the victim was
younger than 18. However, the record
n Sentencing: No error to impose same shows that the district court did not
originally impose any sentence for appelsentence on lesser-included offense
lant’s attempted second-degree murder
on remand as originally imposed for
conviction, and neither the parties nor
greater offense, where sentence is
within guideline range and is not longer the court discussed this 153-plus-12than original sentence. After a jury trial, month analysis. Therefore, the record
does not support a finding that the
appellant was convicted of attempted
district court imposed a greater sensecond-degree murder for the benefit
tence on remand following appellant’s
of a gang, attempted second-degree
successful original appeal. The court of
murder, second-degree assault for the
benefit of a gang, and second-degree as- appeals and the 165-month sentence
are affirmed. State v. Kabba Kangbateh,
sault. He was sentenced to 165 months
Sup. Ct. 8/5/15.
for the second-degree murder for the
benefit of a gang conviction. On appeal,
the court of appeals found that the state n Order for protection: Preponderance
of evidence must support issuance
failed to present sufficient evidence on
of order for protection under Minn.
the benefit of a gang element, reversed
Stat. §518B.01. An order for protection
appellant’s convictions for attempted
second-degree murder for the benefit of (OFP) was issued against appellant for
a gang and second-degree assault for the his 12-year-old son due to allegations
benefit of a gang, and remanded the case of excessive punishment. At the OFP
for sentencing on the attempted second- hearing, the child’s mental health case
manager and psychologist testified to the
degree murder conviction. The district
child’s out-of-court statements describcourt imposed a 165-month sentence
on the attempted second-degree murder ing appellant’s alleged abuse. Minn. Stat.
charge. Appellant again appealed, argu- §518B.01 does not specify what standard
of proof applies to the issuance of an
ing the district court abused its discreOFP. However, subdivision 11(b) of the
tion in imposing the same sentence
statute establishes a preponderance of
for attempted second-degree murder
the evidence standard for modifying or
as it had for attempted second-degree
vacating an OFP. The court holds that
murder for the benefit of a gang. The
the language of subdivision 11(b) implies
court of appeals affirmed the sentence,
that the same preponderance of the eviemphasizing that the new sentence was
dence standard of proof must be met to
neither longer than the original sentence nor a departure from the presump- obtain an OFP. In this case, the child’s
out-of-court statements were properly
tive sentencing guidelines.
admitted, and the evidence as a whole
Appellant argues that the district
met the preponderance of the evidence
court originally imposed a sentence for
standard of proof. The district court is
the attempted second-degree murder
affirmed. In re Cindy Jean Oberg, obo
conviction of 153 months, which was
minor child v. Gregory Brian Bradley.
automatically increased under the
Ct. App. 8/3/15.
sentencing guidelines to 165 months,
because the commission of this lessern Postconviction: Stay of adjudication
included offense benefited a gang and
the victim was under 18. As a result, he under Minn. Stat. §152.18 does not trigargues that the 165-month sentence on ger two-year postconviction statute of
remand violated State v. Prudhomme, 228 limitations. In 2009, appellant pleaded
N.W.2d 243 (Minn. 1975) (holding that guilty to fifth-degree possession of a
a district court may not impose a longer controlled substance. The district court
imposed a stay of adjudication under
sentence than the sentence originally
Minn. Stat. §152.18, and placed appelimposed when a defendant is granted
lant on probation for five years. Approxa new trial or when an appellate court
imately four years later, on 5/24/2011,
sets aside a sentence and remands for
after appellant admitted to violating the
resentencing).
terms of his probation, the district court
Appellant’s argument presumes
respondent, and he claimed to have no
memory of his conduct. Held, remorse
alone cannot support a downward durational departure when the purported
remorse does not “relate back” to the
offense or make the offender’s conduct
less serious than the typical offense.
Reversed and remanded for resentencing. State v. Jacob Miles Solberg, Ct.
App. 8/24/15.
revoked the stay of adjudication and
imposed a 13-month executed sentence.
On 5/23/2013, appellant filed a petition for postconviction relief requesting
to withdraw his guilty plea, based on
recently discovered evidence of deficiencies in the drug-testing protocols of the
St. Paul Crime Laboratory. The postconviction court denied his petition as
untimely and because appellant failed to
demonstrate a manifest injustice permitting him to withdraw his plea. The court
of appeals agreed that his petition was
untimely, holding that a stay of adjudication is a “sentence” that triggers the
two-year statute of limitations for filing
a postconviction petition. The Supreme
Court accepted review.
Because there was no direct appeal
of the stay of adjudication from 2009,
the timeliness of appellant’s petition
is determined by Minn. Stat. §590.01,
subd. 4(a)(1), which provides that the
two-year statute of limitations commences upon “the later of: …the entry
of judgment of conviction or sentence.”
Held, a stay of adjudication under Minn.
Stat. §152.18 is neither a “judgment
of conviction” nor a “sentence” under
Minn. Stat. §5901.01, subd. 4(a)(1).
A judgment of conviction requires a
plea, verdict, adjudication of guilt, and
sentence. When the district court stayed
adjudication, there was, by definition,
no adjudication of guilt, so there was no
“entry of judgment of conviction” at that
time. Both the common and technical
definitions of “sentence” refer to the
imposition of punishment following a
criminal conviction or adjudication of
guilt. Therefore, a stay of adjudication
under Minn. Stat. §152.18 is also not a
“sentence” under Minn. Stat. §590.01.
In this case, the two-year period was
triggered only after the district court revoked appellant’s stay of adjudication on
May 24, 2011. Appellant’s petition was
timely, as it was filed within two years
of that date. Remanded to the court of
appeals to determine whether the postconviction court erred by concluding
appellant failed to allege facts to satisfy
that the manifest injustice standard for
withdrawing his guilty plea and denying
appellant an evidentiary hearing. Harvey Ray Dupey v. State, Sup. Ct. 8/5/15.
n 4th Amendment: Where totality of
circumstances supports finding of
exigent circumstances, warrantless
blood draw is reasonable under the 4th
Amendment. Appellant was charged
with criminal vehicular operation
resulting in death, fourth-degree
DWI, careless driving, and reckless
driving, after a fatal crash. Appellant
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challenged the admissibility of the
results of a blood test showing his blood
alcohol concentration at the time of
the collision was 0.20. Appellant was
ejected from his vehicle during the crash
and sustained serious injuries. He was
transported to the New Ulm Medical
Center (NUMC), and law enforcement
learned he may need to be transferred
to a trauma center. Before being taking
to NUMC, appellant admitted he was
the driver of the vehicle. At NUMC,
appellant admitted he had been drinking
prior to the crash, and smelled strongly
of alcohol. Law enforcement directed
a nurse to draw appellant’s blood,
which was done without a warrant
approximately 70 minutes before the
2-hour window for obtaining a blood
sample expired. The district court
found that the state failed to prove
exigent circumstances justifying the
warrantless search, but that the test
results were admissible under the good
faith exception. After appellant’s motion
for reconsideration, the district court
suppressed the test results on the ground
that the Supreme Court declined to
resolve State v. Brooks, 838 N.W.2d 563
(Minn. 2013), on the basis of the good
faith exception. The state appealed, and
the court of appeals reversed, finding
that exigent circumstances justified the
warrantless blood draw.
In light of the U.S. Supreme Court’s
decisions in Missouri v. McNeely, ___
U.S. ___, 133 S.Ct. 1552 (2013), and
Schmerber v. California, 384 U.S. 757
(1966), and because appellant does not
challenge whether law enforcement had
probable cause to believe he committed
a crime, the Supreme Court framed
the relevant inquiry as “whether, under
all of the facts reasonably available to
the officer at the time of the search,
it was objectively reasonable for the
officer to conclude that he or she was
faced with an emergency, in which the
delay necessary to obtain a warrant
would undermine the efficacy of the
search.” The Court finds that, under
these facts, the warrantless blood draw
was justified by exigent circumstances,
highlighting appellant’s admissions, and
that appellant’s medical condition and
need for treatment rendered his future
availability for a blood draw uncertain
(either because he would be transported
elsewhere or his condition could
worsen). Although the Supreme Court
does not adopt
the court of appeals’
69681 MN Lawyers LPL Ad.indd 1
reasoning, its ultimate determination
that the warrantless blood draw was
justified by exigent circumstances is
affirmed. State v. Derek Lawrence
Stavish, Sup. Ct. 8/19/15.
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n 4th Amendment: Exclusionary rule
does not apply to violations of 4th
Amendment when law enforcement
acts in good faith. Appellant was convicted of third-degree DWI after a trial
at which the results of a blood alcohol
concentration test were admitted. The
charges arose from a single vehicle collision involving appellant, who had been
driving, and her husband, who was injured in the accident. The two fled from
the vehicle, and were found by police
hiding in their home. Officers observed
a number of indicia of intoxication and
appellant failed field sobriety tests. She
was brought to a hospital for a blood
test, and her blood was drawn without
officers attempting to obtain or obtaining a warrant or appellant’s consent.
On appeal, appellant challenged only
the sufficiency of the evidence, and the
court of appeals affirmed her conviction.
However, nine days after the release of
the court of appeals’ opinion, Missouri v.
McNeely, ___ U.S. ___, 133 S.Ct. 1552
(2013), was decided, and the Supreme
Court stayed proceedings pending
final disposition in State v. Brooks, 838
N.W.2d 563 (Minn. 2013), cert. denied,
___ U.S. ___, 134 S.Ct. 1799 (2014).
After Brooks, the Supreme Court
vacated the court of appeals’ decision
and remanded for further proceedings
in light of McNeely and Brooks. The
court of appeals again affirmed, and the
Supreme Court then accepted review to
consider the parties’ constitutional questions: (1) whether the warrantless blood
draw was constitutional under McNeely,
and (2) whether Minnesota should
adopt the good-faith exception.
The Supreme Court first holds that
appellant did not forfeit her right to
challenge her warrantless blood draw,
because McNeely was decided when
appellant’s case was on direct appeal
and was an intervening change in law
that excused appellant’s failure to bring
what would have otherwise been a futile
argument in the district court and court
of appeals. The court then addresses, for
the first time, whether the good-faith
exception set forth in Davis v. United
States should be adopted in Minnesota.
In Davis v. United States, ___ U.S. ___,
131 S.Ct. 2419, 2429 (2011), the United
States Supreme Court held that “[e]
vidence obtained during a search conducted in reasonable reliance on binding
precedent is not subject to the exclusionary rule.” The Minnesota Supreme Court
considers prior cases applying the exclusionary rule, and finds that the Davis
good faith exception is consistent with
these prior applications, each of which
emphasized that the “central purpose” of
arrest. Appellant asked the district court
to instruct the jury, as part of its felony
fourth-degree assault instruction, on
the element of “physical assault,” but
the district court declined to do so. The
jury found appellant guilty of the felony
assault and obstruction charges. The
court of appeals affirmed, relying, as the
district court did, on State v. Kelley, 734
N.W.2d 689 (Minn. App. 2007) (holding
that the intentional throwing or otherwise transferring of bodily fluids at or
onto an officer is fourth-degree assault
without other assaultive behavior).
Minn. Stat. §609.2231, subd. 1, refers
first to the physical assault of a peace
officer, making it a gross misdemeanor
offense. It goes on to make the offense a
felony if (1) the assault inflicts demonstrable bodily harm, or (2) the person
intentionally throws or transfers bodily
fluids or feces at or onto the officer. The
Supreme Court applies rules of grammar
and concludes that these two sentences,
must be read together, as the felony assaults described in the second sentence
are predicated on the occurrence of the
gross misdemeanor crime of “physically
assaulting” a peace officer in the first
sentence.
The court next rejects the state’s position that the intentional act of throwing or transferring bodily fluid at or onto
an officer is, per se, the physical assault
criminalized by Minn. Stat. §609.2231,
subd. 1 (fourth-degree felony assault of
a peace officer). The court holds that a
physical assault must be an element of
felony fourth-degree assault of a peace
officer – transfer of bodily fluids, because
the transfer of bodily fluids enhances a
gross misdemeanor physical assault into
a felony. Therefore, the state is required
to prove both that a transfer of bodily
fluids and a physical assault occurred.
Held, the district court erred by not
instructing the jury on the element of
physical assault during its instructions
n Assault: Felony fourth-degree assault on the charge of fourth-degree felony
of peace officer requires more than
assault of a peace officer – transfer of
intentional act of throwing or transbodily fluids. It cannot be said that this
ferring bodily fluid; proof of physical
error did not have a significant impact
assault required. Law enforcement went on the jury, because it permitted the
to appellant’s home to execute an arrest jury to find that the act of intentionwarrant for driving without proof of inally smearing blood alone was sufficient
surance. Appellant was ultimately Tased to find appellant guilty. Reversed and
by the officer, after which appellant
remanded. State v. Thomas Raymond
smeared a small amount of blood from
Struzyk, Sup. Ct. 8/26/15.
a small, bleeding chest wound onto the
officer’s uniform. Appellant was charged n Criminal contempt: Violation of term
with felony fourth-degree assault of a
of probation, on its own, not a violapeace officer for smearing blood on the
tion of “mandate of a court” warranting
officer’s uniform, gross misdemeanor
criminal contempt under Minn. Stat.
fourth-degree assault for physically
§558.20, Subd. 2(4): Appellant was placed
assaulting the officer, and gross misdeon probation after a stay of imposition
meanor obstruction of legal process or
on a controlled substance crime, with
the exclusionary rule of deterring police
misconduct. The court agrees with the
United States Supreme Court “that applying the exclusionary rule to evidence
obtained during a search conducted in
reasonable reliance on binding appellate
precedent would have no deterrent value
on police misconduct… and imposes
substantial social costs.”
Held, the exclusionary rule does not
apply to violations of the 4th Amendment to the United States Constitution
or Article I, Section 10 of the Minnesota
Constitution when law enforcement acts
in objectively reasonable reliance on
binding appellate precedent. This “good
faith exception” applies only when law
enforcement acts pursuant to binding appellate precedent that specifically authorizes the behavior – it cannot extend the
law to areas in which no precedent exists
or the law is unsettled. Importantly, the
court declines to adopt the good faith exception with regard to evidence obtained
other than through law enforcement’s
reliance on binding appellate precedence
(such as evidence obtained pursuant to
a facially valid warrant later held to be
deficient). At the time the officer in this
case facilitated appellant’s blood draw,
based on the officer’s observations of
appellant and her husband, a reasonable
officer would have understood State v.
Shriner, 751 N.W.2d 538 (Minn. 2008)
(abrogated by McNeely), and State v.
Netland, 762 N.W.2d 202 (Minn. 2009)
(abrogated in part by McNeely), to allow
a warrantless blood draw, because there
was probable cause to believe appellant was intoxicated when she caused
a motor vehicle accident that resulted
in injury. As such, the officer acted in
reasonable reliance on binding appellate
precedent, and the district court did not
err in admitting the results of Appellant’s blood draw. State v. Bonnie Ann
Lindquist, Sup. Ct. 8/19/15.
www.mnbar.org
Notes&Trends
conditions including refraining from
the use of alcohol and remaining law
abiding. Five months later, appellant was
charged with minor consumption, disorderly conduct, and criminal contempt
of court. The contempt charge was
based solely on appellant’s violation of
a term of probation. The criminal contempt statute makes it a misdemeanor
to willfully disobey “lawful process or
other mandate of a court.” Minn. Stat.
§588.20, subd. 2(4). The district court
granted appellant’s motion to dismiss
the contempt charge, and the court of
appeals affirmed.
Held, the court of appeals is affirmed,
but the Supreme Court declines to adopt
the court of appeals’ reasoning, concluding that a “term” of probation is not a
court “mandate,” and, thus, the willful
violation of a term of probation does not
itself constitute a violation of a “mandate
of a court.” The probation statutes specify the possible consequences of a probation violation, but do not explicitly or
implicitly refer to criminal contempt. The
probation statutes also refer to “terms” of
probation, not “orders” or “mandates.”
This interpretation also avoids separation
of powers issues that may come into play
if, for example (as in this case), the court
decides that a probation violation does
not undermine the authority of the court
(and, therefore, that criminal contempt
under Minn. Stat. §§588.01-.015, punishable by the judiciary, is inappropriate),
but the state decides to charge criminal
contempt under Minn. Stat. §588.20,
subd. 2(4) (criminal contempt prosecutable by the state like any other crime),
anyway. The history of the criminal contempt and probation statutes also supports the court’s holding, and most courts
that have considered this issue have also
concluded that a violation of a term of
probation does not amount to contempt
of court. State v. Miranda Lynn Jones,
Sup. Ct. 8/26/15.
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ERISA litigation is a labyrinthine
maze of regulations and timelines.
n Religious discrimination; insufficient
evidence for claimant. A hospital nurse
lost her religious discrimination and
retaliation lawsuit under the Federal
Civil Rights Act and state laws. The
8th Circuit Court of Appeals upheld
summary judgment because there was
insufficient evidence, other than the
timing of her discharge, to overcome
the accumulation of excessive “points”
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under the hospital’s disciplinary policy.
Shirrell v. St. Francis Medical Center,
24 F.3d 851 (8th Cir. 2015).
n Labor strike: worker discharge
upheld. A striking union member was
properly discharged by the company,
despite a ruling by the National Labor
Relations Board (NLRB) reinstating
the employee to his position. The 8th
Circuit overturned the NRLB decision
and held that there was no showing that
the company had “discriminatory animus” toward the union’s member or that
his participation in protected conduct
constituted a “substantial or motivating
factor” in the company’s decision to fire
him, a decision that drew a dissent from
Justice Diana Murphy of Minnesota,
who felt that the court should not have
overridden the Board’s “expertise,” and
that there was “substantial evidence”
that the discharge was attributable to
the worker’s participation in a strike.
Nichols Aluminum, LLC v. National
Labor Relations Board, 2015 U.S. App.
LEXIS 14173 (8th Cir. 8/13/2015).
their bids before the court of appeals for
unemployment compensation benefits
on different grounds.
A determination of ineligibility by the
Department of Employment & Economic Development (DEED) on grounds
that the claimant was not “available for
suitable employment,” as required for
eligibility by Minn. Stat. §268.085, subd.
15, because she voluntarily limited her
job search to part-time work to accommodate her schedule at school. Marcellais v. Prairie Harvest Mental Health,
2015 Minn. App. LEXIS 653 (Minn. Ct.
App. 7/20/2015)(unpublished).
An employee who failed to report
to DEED the number of hours worked
and earnings from a part-time job was
denied unemployment benefits on
grounds of fraud. Knowingly misstating
her income resulted in her ineligibility.
Ellis v. DEED, 2015 Minn. App.
LEXIS 640 (Minn. Ct. App. 7/20/2015)
(unpublished).
ADMINISTRATIVE LAW
n Regulations reinstated. Regulations
devised by the Obama Administration
n Arbitration award; pay upgrades
to extend minimum wage and overtime
upheld. Pay upgrades for employees were laws to employees who provide home
required under an arbitrator’s award in a care for the elderly and disabled were
management-labor dispute. Confirming
reinstated by a federal appellate court.
the arbitrator’s award, the 8th Circuit
The D.C. Circuit upheld the regulation,
held that the arbitrator’s refusal to
which had been struck down about nine
follow a prior award involving a similar
months ago by a trial court. The rules
dispute was appropriate under the broad remove an exemption in the federal
discretion accorded the arbitrator and
minimum wage and overtime laws for
that his decision drew its “essence” from home care workers who are employed by
the labor union contract. SBC Advanced third-party staffing agencies, including
Solutions, Inc. v. Communication
thousands in Minnesota. The appellate
Workers of America, Dist. 6, 2015 U.S.
court ruled that the Labor Department
App. LEXIS 13046 (8th Cir. 7/28/2015). has the authority to eliminate the
exemption, which was applauded by
n Arbitration award; police officer
union leaders and advocates, such as
suspension upheld. The suspension
the president of the Service Employees
of a police officer for making false
International Union (SEIU), which
statements in a grievance proceeding
viewed the decision as a “step forward
was upheld by the Minnesota Court
for home workers and for our country.”
of Appeals. Confirming an arbitration
But industry groups challenged the
award, it rejected the union’s contention regulation, which sought to override an
that the arbitrator’s decision “violates
exemption created 40 years ago, decried
public policy,” because there was no
the ruling, and stated that it was “con“well defined” policy that prohibited the sidering all options, including Supreme
employer from disciplining an employee Court review,” according to the attorney
due to improper statements made in
for the Center for Healthcare Law, a
the employee’s grievance of a written
home care and hospice-supported orgareprimand for failing to provide coverage nization. The ruling comes on the heels
for overtime work. Law Enforcement
of a decision last spring by the U.S. SuLabor Services, Inc., v. Blaine Police
preme Court, which upheld a re-interDepartment, 2015 Minn. App. LEXIS
pretation by the Labor Department of its
787 (Minn. Ct. App. 8/10/2015)
rules for overtime pay for bank mortgage
(unpublished).
loan officers in Perez v. Mortgage Bankers Association, 135 S.Ct. 1199 (2015),
n Unemployment compensation;
holding that the agency had the authorclaimants lose for lack of diligence and ity to modify its prior interpretation
fraud. A pair of part-time claimants lost disallowing overtime pay without need
for notice and following rule-making
procedures. Home Care Association of
America v. Weil, 2015 U.S. App. LEXIS
14730 (D.C. Cir. 8/21/2015).
n Businesses as “joint employers.”
The National Labor Relations Board
(NLRB) gave employees union another
major victory shortly before Labor Day,
holding that businesses can be deemed
a “joint employer” with subcontractors.
Thus, companies that hire temporary
workers may be exposed to liability for
minimum wage payments and overtime,
among other matters. It also could be
explained to cover franchisors who might
be covered by workplace laws, on behalf
of those workers for their franchises,
particularly in the fast food industry,
which is the subject of a pending NLRB
proceeding brought against McDonalds.
The decision, made in a 3-2 partisan
ruling, was welcomed by advocates of
employees and unions as advancing
the rights of workers. But it was
decried by a spokesperson for small
businesses, who claimed it will hurt
subcontractors because it will “drive up
expenses,” while a franchise industry
representative scornfully attributed the
decision to “out-of-control Washington
bureaucrats.” Browning-Ferris
Industries of California, Inc., 362 NLRB
No. 186 (8/27/2015).
n Sick leave. President Obama used
Labor Day to announce a new Executive
Order requiring all federal contractors
to allow their employees up to seven
days of paid sick leave annually to care
for themselves or a sick relative. The
workers will earn one hour of paid
leave for every 30 hours worked, not to
exceed seven days a year. The measure
is expected to affect about 300,000
workers when it goes into effect in
2017, although it could be changed, or
eliminated, by his successor
The president noted that about 40
percent of all private sector workers,
mainly those working for small and
mid-size employers, some 44 million,
do not have access to paid sick leave.
The move, one of several presidential
actions extending rights to employees
of companies contracting with the
federal government, was decried by some
businesses officials. A spokesman for a
small business group said the act will
impose “an arbitrary expense that will
ultimately result in shorter hours, lower
pay, or disappearing jobs” for workers.
Union leaders and employee advocates
praised the initiative.
– Marshall H. Tanick
Hellmuth & Johnson, PLLC
www.mnbar.org
Notes&Trends
ENVIRONMENTAL LAW
JUDICIAL LAW
n U.S. Supreme Court rejects EPA
mercury and air toxics standards for
power plants. On 6/29/2015, the United
States Supreme Court held that the
U.S. Environmental Protection Agency
(EPA) acted unreasonably when it
deemed cost irrelevant to the decision to
regulate emissions of mercury and other
hazardous air pollutants (HAPs) from
power plants under the Mercury and Air
Toxics Standards (MATS). The MATS,
which is now on remand to EPA, is one
of the Obama administration’s signature
environmental rulemakings.
Section 112 of the Clean Air Act
(CAA) requires EPA to regulate emissions of HAPs from “major sources”—a
stationary source or group of stationary sources that emit or have the
potential to emit 10 tons per year or
more of a HAP or 25 tons per year or
more of a combination of HAPs. 42
U.S.C. §7412(c)(1)-(2). For major
sources that are fossil-fuel-fired power
plants, however, Congress established a
unique procedure for EPA to determine
whether regulation under section 112
was required. This unique treatment
was partially borne out of the fact that
power plants are subject to numerous
other emissions-reducing provisions of
the CAA, which could have the collateral benefit of reducing emissions of
HAPs. Thus, Congress required EPA,
prior to regulating power plants under
section 112, to undertake a study of the
public health hazards of HAPs emitted
by power plants and, on the basis of the
study, determine whether regulation is
“appropriate and necessary.”
After conducting the required study,
EPA found that regulation of power
plants under section 112 was both appropriate and necessary. EPA’s regulatory
analysis estimated that the regulation
would cost power plants $9.6 billion
per year with corresponding benefits
of only $4 to $6 million. However, EPA
determined the costs and benefits were
not relevant to the initial decision of
whether or not to regulate power plants
under the MATS.
Justice Scalia, writing for a fivejustice majority, disagreed. Even under
the deferential standard adopted in
Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837
(1984)—which directs courts to accept
an agency’s reasonable resolution of an
ambiguity in a statute that the agency
administers—EPA could not reasonably interpret the “appropriate and
necessary” standard in this context as
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K O S I E R A D Z K I •S M I T H
Notes&Trends
requiring no consideration of costs and
benefits. In a dissent joined by Justices
Ginsburg, Breyer, and Sotomayor, Justice
Kagan argued that although EPA had
not considered costs in its initial decision to regulate power plants, EPA subsequently considered costs in great detail
when categorizing and setting emissions
limits for power plants, identifying $80
billion in quantifiable benefits of the rule.
Assuming EPA can apply this cost data
on remand to meet the “appropriate and
necessary” standard, the substance of
EPA’s rule is likely to remain intact.
The more lasting impact of this case
may come from Justice Thomas’ concurring opinion, in which he called into
question the validity of the longstanding
Chevron doctrine. By allowing agencies
to determine the meaning of ambiguous
statutes, Thomas argued, the doctrine
vests legislative power in the executive
branch. Moreover, by requiring courts
to acquiesce to agency interpretations of
these statutes, Thomas claimed, the doctrine undermines the judicial branch’s
ultimate interpretive authority. Michigan
v. E.P.A., 135 S. Ct. 2699 (2015).
n U.S. District Court applies “NEPA Exception,” waives bond requirement for
preliminary injunction. On 6/24/2015,
the United States District Court for
the District of Minnesota endorsed
the “NEPA Exception” in holding that
a two-county diversion board did not
need to post a bond for a preliminary
injunction. The diversion board brought
an action including a claim under the
National Environmental Policy Act
(NEPA) that challenged a plan by the
U.S. Army Corps of Engineers and a
local government sponsor to build a
diversion structure to protect the FargoMoorhead metro area from floodwaters.
Many courts’ rulings on cases asserting
claims under NEPA have not required
plaintiffs seeking preliminary injunctions
to post a bond. These courts have cited
the important public interest in the enforcement of NEPA and the deterrence
to litigation that would result if substantial bonds were required.
Although the 8th Circuit has not
expressly adopted the NEPA Exception,
the district court found the rationale of
the exception compelling and applicable
to the facts in this case, even though the
plaintiff was a governmental entity, not
a citizen group (the traditional NEPA
plaintiff). Notably, one of the plaintiff’s
bases for seeking an injunction was
that state environmental review, under
Minnesota’s Environmental Policy Act
(MEPA), was not yet complete. The
court held that it was “appropriate
to apply the logic behind the NEPA
exception to the bond requirement in
the context of MEPA.” Richland/Wilkin
Joint Powers Authority v. U.S. Army
Corps of Engineers, No. 13-2262 (D.
Minn., 5/13/2015).
ADMINISTRATIVE ACTION
n EPA makes first revisions in 30 years
to National Water Quality Standards
rule. On 8/5/2015, EPA issued a final
rule revising the requirements and
procedures for developing, reviewing,
revising, and approving state water
quality standards pursuant to section
303(c) of the Clean Water Act (CWA).
Under the CWA, states determine the
appropriate water quality standards for
bodies of water within their borders.
State water quality standards set forth
the designated uses of a body of water,
the water quality criteria necessary
to support the designated uses, and
anti-degradation requirements. These
standards then become the basis for
water-quality-based effluent limitations
in NPDES permits under the CWA.
State water quality standards must be
approved by EPA. EPA’s rules governing
the federal approval process are set forth
in 40 CFR part 131.
EPA’s revisions to part 131 are the
first amendments to the rule since
1983. EPA’s stated goals of the rulemaking were to improve the regulation’s
effectiveness, increase transparency,
and enhance opportunities for meaningful public engagement at the state,
tribal and local levels. The revisions
address six key program areas: (1) EPA’s
determinations of whether new or
revised state water quality standards are
necessary; (2) designated uses for water
bodies; (3) triennial reviews of state and
tribal water quality standards; (4) antidegradation requirements; (5) variances
to water quality standards; and (6) provisions authorizing the use of schedules
of compliance for water quality-based
effluent limits in NPDES permits. EPA,
Final Rule Updating the National Water
Quality Standards, ____ Fed. Reg. ____.
– 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,
at www.jeremygreenhouse.com
FAMILY LAW
JUDICIAL LAW
n Review accepted in Curtis v. Curtis.
On 9/15/2015, the Supreme Court
granted the wife’s petition for review
in a case that was the subject of an
unpublished split decision from the
court of appeals which was addressed
in this column in the August 2015 issue
of Bench & Bar. The case has generated considerable interest, as it raises
important questions implicating the
relationship between assets and income
in the context of spousal maintenance as
well as the consideration of tax consequences. Curtis v. Curtis, No. A14-1841
(Minn. Ct. App. 6/22/2015).
n Religious-based objection to psychological evaluation. In a published
decision, the court of appeals rejected
a father’s constitutional challenge to
an order requiring him to undergo a
psychological evaluation and parenting
assessment under Minn. Stat. §518.131,
subd. 1. As part of a custody proceeding
initiated by mother, the district court
ordered both parties to obtain psychological evaluations and parenting assessments. Mother complied with the order
but father refused to do so, asserting that
compliance would violate his Rastafarian religion. Based upon father’s refusal,
the district court drew adverse inferences regarding father’s mental health
and ordered that father’s parenting time
be supervised.
Father appealed, arguing that the
statute upon which the order for the
psychological evaluation was based,
Minn. Stat. §518.131, subd. 1, as applied
to him, violated his right to freedom of
religion under the Minnesota Constitution. The court of appeals rejected this
argument because there was substantial
evidence supporting the district court’s
findings raising serious concerns over
father’s mental health. As such, the
government had an overriding and compelling interest in protecting the child’s
best interests by requiring the psychological evaluation. Although father
argued that there were less-restrictive
means of ascertaining his mental health
status, he was unable to identify any of
them. Thus, the district court’s decision
was affirmed. Newstrand v. Arend, ___
N.W.2d ___ (Minn. Ct. App. 2015).
– Jaime Driggs
Henson & Efron PA
FEDERAL PRACTICE
JUDICIAL LAW
n “Unusual” Fed. R. Civ. P. 30(d)(2)
sanctions order arising out of improper
deposition conduct reversed. Where
the trial court during trial sua sponte instructed defense counsel to show cause
why she should not be sanctioned for
“making numerous objections” during
www.mnbar.org
Notes&Trends
depositions “that lacked a good faith
basis in law or fact and which impeded,
delayed, or frustrated” the depositions,
issued an order to show cause three days
after the trial ended, and ultimately
imposed an “outside-the-box” sanction
and required the attorney to produce a
training video on deposition conduct,
the 8th Circuit found that while the district court was permitted to impose Fed.
R. Civ. P. 30(d)(2) sanctions sua sponte,
it had erred in imposing its “unusual”
sanction without providing “clear”
notice of the form of the sanction. After
determining that any additional sanction
proceeding would not serve Rule 30(d)
(2)’s “deterrent purpose,” and instead
of remanding the matter for the imposition of a lesser sanction, the 8th Circuit
panel concluded that the attorney had
suffered enough, and it vacated the
previously imposed sanction. Security
Nat’l Bank v. Jones Day, ___ F.3d ___
(8th Cir. 2015).
n Personal jurisdiction; repeated
electronic contacts. The 8th Circuit
reversed a district court’s dismissal of
a breach of contract action for lack of
personal jurisdiction over a Hong Kong
defendant, finding that “daily” email
and telephonic communication for more
than two years, when combined with the
shipping of “thousands” of samples, were
sufficient to establish personal jurisdiction over the defendant. Creative Calling Solutions, Inc. v. LF Beauty Ltd.,
___ F.3d ___ (8th Cir. 2015).
n FINRA arbitration does not toll
federal statute of limitations. Affirming the district court’s dismissal of bulk
of the plaintiffs’ claims as time-barred,
the 8th Circuit rejected the plaintiffs’
argument that the statute of limitations
on their federal securities fraud claims
was tolled while their FINRA arbitration
was pending, while suggesting that the
plaintiffs should have commenced and
then sought to stay a timely federal action while their arbitration was pending.
Zarecor v. Morgan Keegan & Co., ___
F.3d ___ (8th Cir. 2015).
n Denial of post-judgment motion to
amend affirmed. Rejecting the plaintiffs’
argument that it was “self-defeating” to
seek leave to amend a complaint while
simultaneously opposing a motion to dismiss, the 8th Circuit affirmed a district
court’s denial of a motion for leave to
amend a complaint which was brought
nine days after defendant’s motion to
dismiss was granted. Ash v. Anderson
Merchandisers, LLC, ___ F.3d ___ (8th
Cir. 2015).
www.mnbar.org
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Notes&Trends
n Request for en banc review of samesex marriage mootness decision filed.
In September 2015, this column noted
8th Circuit’s decisions finding that three
appeals in same-sex marriage cases
had not been mooted by the Supreme
Court’s Obergefell decision. Each of
those cases was remanded to the district
court from which it came. The State of
Nebraska has now filed a petition for
rehearing en banc on both the mootness issue and the affirmance of the
trial court’s preliminary injunction. The
motivation for the petition appears to be
Nebraska’s concern that the entry of a
final judgment for the plaintiffs following remand would result in the plaintiffs
being considered “prevailing parties,”
and that Nebraska will be “punished
financially,” presumably as a result of an
award of attorney’s fees to the plaintiffs.
As of the date of this writing, the 8th
Circuit has not acted on Nebraska’s petition. Waters v. Ricketts, ___ F.3d ___
(8th Cir. 2015), petition for rehearing en
banc filed, No. 15-1452 (8/25/2015).
n Motion to remand premised on
alleged fraudulent joinder rejected.
Rejecting arguments that certain nondiverse defendants had been fraudulently joined, Judge Davis granted the
plaintiff’s motion to remand. Towley
v. Tavernetti, 2015 WL 5092516 (D.
Minn. 8/28/2015).
gan and several subsequent circuit court
decisions, and finding that “an unaccepted offer of judgment simply cannot
moot a case.” Johnson v. Collecto, Inc., ___
F. Supp. 3d ___ (D. Minn. 9/8/2015).
The second appeal asks whether
Congress can confer standing on a
plaintiff who has not been harmed by
creating a private right of action under
a federal statute. Argument is scheduled for 11/2/2015. Robins v. Spokeo,
Inc., 742 F.3d 409 (9th Cir. 2014), cert.
granted, 135 S. Ct. 1892 (2015).
The final appeal of note is from an
8th Circuit decision, and questions
whether a class action or FLSA collective action is properly certified where
liability and damages will be determined
using statistical techniques that presume
that all class members are identical to
the average observed in a sample, or
where the class contains hundreds of
members who were not injured. Argument is scheduled for 11/10/2015.
Bouaphakeo v. Tyson Foods, Inc., 765
F.3d 791 (8th Cir. 2014), cert. granted,
135 S. Ct. 2806 (2015).
– Josh Jacobson
Law Office of Josh Jacobson
INDIAN LAW
JUDICIAL LAW
n Tribal-court exhaustion; Sprint must
litigate tribal telecom regulation in tribal court. In 2013, the Oglala Sioux Tribe
LOOKING AHEAD
n Upcoming Supreme Court cases
formally established the Tribal Utilirelating to civil procedure. The United ties Commission (OSTUC) to regulate
States Supreme Court has granted
telecommunications on the Pine Ridge
certiorari on three procedural cases of
Reservation, including through business
importance to federal court practitioners. registration and licensure. The OSTUC
The first appeal involves the longfiled an action in the Oglala Sioux Tribal
festering question of whether a case
Court against certain telecommunicabecomes moot for Article III purposes
tions carriers, including Sprint Comwhen an offer of judgment under Rule 68 munications Company L.P. and a related
is made to a plaintiff and, if yes, whether entity (“Sprint”), for noncompliance
the answer to the question is any difwith the regulatory requirements.
ferent when the plaintiff has brought a
In response Sprint initiated a federal
putative class action, but receives the
court action against the tribal court
offer of judgment prior to certification
judge and OSTUC commissioners, seekof a class. Argument is scheduled for
ing a declaratory judgment that Sprint is
10/14/2015. Gomez v. Campbell-Ewald
not subject to regulation by the OSTUC
Co., 768 F.3d 871 (9th Cir. 2014), cert.
and an order permanently enjoining the
granted, 135 S. Ct. 2311 (2015).
OSTUC from proceeding against Sprint
Not surprisingly, Judge Montgomin tribal court. The United States Disery recently granted a motion to stay a
trict Court of South Dakota, Southern
putative class action which also involved Division, denied Sprint’s motion for
unaccepted offers of judgment pending
a preliminary injunction, and instead
the Supreme Court’s decision in Gomez. stayed the matter because Sprint must
Yaakov v. Varitronics, LLC, 2015 WL
exhaust its remedies in tribal court.
5092501 (D. Minn. 8/28/2015).
The district court explained that “the
In contrast, Judge Kyle recently recentral question is whether any Sprint
jected a mootness argument that followed entity is subject to Oglala Sioux Tribal
an unaccepted Rule 68 offer of judgment, regulatory and adjudicative authority”
following a recent dissent by Justice Kaunder Montana v. United States, 450 U.S.
544, 565 (1981), and “that examination
should be conducted in the first instance
in the Tribal Court itself.” Sprint argued
that tribal court exhaustion is not
required because the tribal court plainly
lacks jurisdiction. The district court disagreed, noting that although Sprint does
not have physical locations on the Pine
Ridge Reservation, it provides services
using wires to customers located on the
reservation and bills those on-reservation customers. Therefore, “it does not
plainly appear that tribal jurisdiction
in this matter is frivolous or obviously
invalid. As a matter of comity, the tribal
court should have the first opportunity
to balance the interests involved and
determine its jurisdiction.”
The district court also rejected
Sprint’s assertion that the FCC’s telecommunications regulation undoubtedly
preempts tribal regulation. “Despite the
prominence of the FCC in telecommunications regulation, the OSTUC’s
assertion of jurisdiction is based on tribal
regulations and not on a federal statute
that provides for exclusive jurisdiction
in a federal forum.” The district court
also gave a nod to the FCC’s recognition that “tribes have a role to play in
the regulation of telecommunications
services.”
The district court noted that it
was not finding that tribal jurisdiction
ultimately existed under the Montana
doctrine, but “only that the tribal court
should be given the first opportunity to
resolve that question.” Sprint Commc’ns
Co. L.P. v. Wynne et al., No. 4:15-CV04051-KES, ___ F.Supp.3d ____, 2015
WL 4644983 (D.S.D. 8/4/2015).
n Tribe relieved of duty to pay city
under gaming contract. In 1988, the
Fond du Lac Band of Lake Superior
Chippewa Band and the City of Duluth
entered into a joint venture to operate a
casino and memorialized that agreement
in a federal consent decree. In 2011,
the federal agency charged with Indian
gaming oversight ordered the tribe to
stop making payments to the city and
the tribe sought Fed. R. Civ. P. 60(b)(6)
relief from the consent judgment. Following the 8th Circuit’s second reversal
and remand in the matter with instructions to the United States District
Court of Minnesota to give “significant
weight” to the congressional policy that
tribes the sole beneficiary of gaming
operations (City of Duluth v. Fond du Lac
Band of Lake Superior Chippewa, 785
F.3d 1207 (8th Cir. 2015)), the district
court granted the band’s motion for
retrospective relief, relieving the band of
its obligation to pay to the city the rent
www.mnbar.org
Notes&Trends
n Patent claim construction. Judge
Montgomery also recently construed
several patent claim terms, including
several means-plus-function terms. LTJ
sued Custom Marketing Co. (CMC)
for infringement of a patent involving
a system for indicating the level of bulk
material in a bin. The parties disputed
the meaning of nine patent claim terms,
INTELLECTUAL
including several means-plus-function
terms. A means-plus-function claim
PROPERTY
term includes a stated function, but not
JUDICIAL LAW
the specific structures to perform the
n Exceptional patent case. Judge
function. In its claim construction analyMontgomery recently granted attorney’s sis, the court relied on virtually every
fees and costs following remand of this
portion of the patent at issue including
case from the U.S. Supreme Court,
the specification, the drawings, and
which created a new test for “excepother claims in the patent. For example,
tional” patent cases. Icon Health &
to prevent inconsistencies throughout
Fitness sued Octane Fitness for patent
the claims, the court rejected both
infringement related to elliptical exercise parties’ definitions of the terms “body”
machines. The district court granted
and “arm” in favor of the plain and
summary judgment in favor of Octane
ordinary meanings of each term. The
after concluding that Octane’s exercise
court further relied on the prosecution
machines did not infringe Icon’s patent. file history of the patent. CMC argued
Octane then pursued attorney’s fees
that prosecution history estoppel barred
under Section 285 of the Patent Act.
LTJ’s definition of the term “rack.”
The district court denied the motion for The court determined that prosecution
attorney’s fees and the Court of Appeals history estoppel did not apply and that
for the Federal Circuit affirmed, hold“rack” did not require construction being that Octane had not established the cause the prosecution amendments did
case as “exceptional” under the current
not narrow the claims to affect a more
standard. The Supreme Court granted
restrictive definition. The term “gear”
certiorari and reversed, rejecting the
was also found not to require construction because the jury would understand
existing framework of “exceptional”
its meaning without a lengthy definias “unduly rigid,” rendering Section
285 largely superfluous. As a result,
tion. Finally, the remaining means-plusthe Supreme Court announced a new
function claims were construed. The
court implemented a two-step process
standard for determining whether a
case is “exceptional” under Section
outlined in Kemco Sales, Inc. v. Control
285 and remanded the Octane case for
Papers, Co., 208 F.3d 1352, 1361 (Fed.
further proceedings. Under this new
Cir. 2000). First the function recited was
construed, then the specification was
standard, the district court was asked
to consider whether under the totality
examined to determine what structures
of the circumstances, the Octane case
had been disclosed that correspond to
“stands out from others with respect to
the means for performing the identified
the substantive strength” of Icon’s litiga- function. The court used this strategy to
tion positions or whether the case was
construe all of the contested means-plus
litigated in an unreasonable manner. In
function claims. LTJ Enterprises, Inc. v.
granting Octane’s renewed motion for
Custom Marketing Co., LLC, 2015 U.S.
attorney’s fees following the remand, the Dist. Lexis 73696 (D. Minn. 06/08/15).
district court found that Icon’s infringe– Tony Zeuli
– Karen Beckman
ment arguments stood out as exceptionMerchant & Gould
ally weak because they were wholly at
odds with the patent text, prosecution
PROBATE & TRUST LAW
history, and inventor testimony. In addition, the court also found that Icon
JUDICIAL LAW
employed litigation tactics designed to
n Revocatory acts on photocopy of will
accelerate Octane’s litigation costs in
an effort to force Octane to settle rather do not constitute valid revocation of
will. The Minnesota Court of Appeals
than defend the suit. Given the totality
confirmed that a validly executed will
of the above circumstances, the Court
cannot be revoked by alterations to a
granted Octane’s motion for attorney’s
fees. Icon Health & Fitness, Inc. v. Oc- photocopy of the will. In order for a
revocatory act on a will to be effective,
tane Fitness, LLC, Civ. No. 09-319 (D.
the act must be performed on “a will
Minn. 07/01/15).
withheld in 2009, 2010, and 2011. City
of Duluth v. Fond du Lac Band of Lake
Superior Chippewa, Case No. 09-CV2668 SRN/LIB, 2015 WL 4545302 (D.
Minn. 7/28/2015).
– Jessica Intermill
– Jessie Stomski Seim
Hogen Adams PLLC
www.mnbar.org
Notes&Trends
executed according to statutory formalities,” and a photocopy is not a will
executed according to statutory formalities. In re Estate of Sullivan, ___ N.W.
2d ____, 2015 WL 4877796 (Minn. Ct.
App. 2015).
n Priority to nominate personal representative linked to qualification to
serve. The court of appeals held that
when a person with priority to serve as
personal representative is unsuitable
or does not qualify to serve in such
capacity, that person is divested of his/
her statutory authority to nominate a
personal representative. In re Estate
of Nething, No. A15-0543, 2015 WL
5312315 (Minn. Ct. App. 9/14/2015).
rately state finance charges. Earlier this
year in Jesinoski v. Countrywide Home
Loans, Inc., 135 S. Ct. 790 (2015), the
Supreme Court held that a consumer
borrower can exercise TILA rescission
rights by sending written notice to the
lender, contrary to earlier precedent
that a borrower had to commence a
lawsuit within the rescission window.
Because the district court had previously dismissed the lawsuit on timeliness
grounds, it was now left to decide the
merits of the TILA claims. The record
contained copies of acknowledgements
signed by the plaintiff-borrowers stating
they had received the TILA disclosure
statements. The lender-defendant had
not admitted to TILA violations, and
the plaintiff-borrowers relied solely on
affidavits that they had not received the
TILA disclosures. Because the signed
acknowledgements created a rebuttable presumption of no TILA violation,
which the plaintiff-borrowers could not
overcome with only affidavits, the court
dismissed the TILA delivery claim. The
court also dismissed the claim regarding
accuracy of finance charges stated in
the TILA disclosure. The court found
that the finance-charge discrepancies
were within one-half of 1 percent of the
total amount of credit extended, and
that $35 threshold was inapplicable. The
$35 threshold applies where a borrower
exercises rescission rights “after the
initiation” of a foreclosure. 15 U.S.C.
§1635(i)(2). Applying Minnesota law,
the court determined that a foreclosure
is “initiated” under the federal law when
it is “commenced” under Minnesota law.
Because a foreclosure by advertisement
in Minnesota commences upon first
publication of the notice of sale, which
was after the plaintiff-borrowers sent
their TILA rescission notice, the $35 accuracy threshold did not apply. Keiran v.
Home Capital, Inc., No. 10-4418, 2015
WL 5123258 (D. Minn. 9/1/2015).
n Projected 2016 indexed amounts.
Based on the August 2015 Consumer
Price Index released by the Labor Department, the following is a partial list of
the projected indexed amounts applicable in 2016:
n Unified estate and gift tax exclusion amount applicable to gifts made
and estates of decedents dying in
2016 will be $5,450,000 (up from
$5,430,000).
n Generation-skipping transfer
(GST) tax exemption amount will
increase to $5,450,000 for transfers
in 2016.
n Gift tax annual exclusion amount
remains steady at $14,000 for gifts
made in 2016.
n The decrease in value resulting
from the use of special valuation is
limited to $1,110,000 for decedents
dying in 2016. This is an increase of
$10,000 over the 2015 special use
valuation reduction limit.
n The annual exclusion amount
for gifts made in 2016 to noncitizen
spouses will be $148,000 (up from
$147,000 in 2015).
– Robin R. Tutt
Lindquist & Vennum LLP n Landlord-tenant. While other claims
may be available, residential tenants
REAL PROPERTY
may not, prior to actually entering the
premises and taking possession, obtain
JUDICIAL LAW
possession of premises through a claim of
n Truth in lending. In a case that had
unlawful exclusion via a lockout petition.
previously reached the United States
Minnesota Statutes section 504B.375
Supreme Court, the United States
provides residential tenants with a claim
District Court for the District of Minto recover possession of leased property
nesota granted a lender’s motion for
upon “actual or constructive removal or
summary judgment and dismissed the
exclusion.” The definitions in chapter
plaintiff homeowners’ lawsuit that
504B state that a “residential tenant” is
sought rescission of a promissory note
one who “is occupying” a dwelling. “Ocand voiding of a mortgage. The lawcupying” is not defined in the statutes.
suit was based on an alleged failure to
The Minnesota Court of Appeals approvide disclosure statements required
plied Webster’s and American Heritage
under TILA, and a failure to accudictionary definitions for the word. The
court determined that the plaintiff had
never occupied the premises because she
had not yet moved into the premises.
Thus, the plaintiff was not entitled to
recover the premises through a lockout
petition. The court further bolstered
its opinion by stating that public policy
would not support the plaintiff’s recovery of the premises because one who has
never had possession has not yet moved
personal property onto the premises and
likewise does not face hardship or risks to
personal safety as a result of being locked
out. However, the court of appeals reversed the district court’s determination
on damages under the ouster statute,
Minn. Stat. §504B.231. The plaintifftenant had paid a $2,400 security deposit
and incurred $1,380 in out-of-pocket
expenses. The court of appeals remanded
to the district court for a determination
of whether the plaintiff-tenant must succeed on the lockout petition to recover
ouster damages. Cocchiarella v. Driggs,
___ N.W.2d ___, No. A14-1876, 2015
WL 5194931 (Minn. Ct. App. 9/8/2015).
– Joseph P. Bottrell
Meagher & Geer, PLLP
TAX
JUDICIAL LAW
n Income taxes: Interrelationship of
principal residence exclusion and
foreclosure of property limitation. The
8th Circuit affirmed the tax court and
held that a foreclosed sale of a principal residence would cause recognition of previously excluded gain under
IRC Code §121. The taxpayer sold his
primary residence in 2006 pursuant to
an installment sale contract. The buyers’
indebtedness was secured by the residence. The taxpayer, pursuant to IRC
Code §121, excluded $500,000 in gain
on the sale in completing his return. In
2009, the buyers defaulted on the contract and the taxpayer reacquired the
property. In a notice of deficiency to the
taxpayer, the IRS determined that the
taxpayer was required to recognize longterm capital gain on the reacquisition
of the property, including the $500,000
that taxpayer had previously excluded
from gain. The court agreed that the
taxpayer was required to recognize longterm capital gain on the reacquisition
of the property, pursuant to IRC Code
§1038, including gain previously excluded under IRC Code §121. IRC Code
1038(e) only applies to those taxpayers
who resell a principal residence upon
foreclosure or default within one year.
That did not take place here. Marvin E.
DeBough v. Commissioner of Revenue,
Docket No. 14-3036, 116 AFTR.2d ¶
2015-5192 (8th Cir. 2015).
www.mnbar.org
Notes&Trends
n Corporate income tax: Taxpayer
could not use multistate tax compact
apportionment formula. The Minnesota
Tax Court held that a taxpayer could
not use the Multistate Tax Compact’s
equally weighted three-factor apportionment formula to apportion its income
to Minnesota. The court rejected the
taxpayer’s argument that although the
state amended its version of the compact to eliminate Articles III and IV of
the compact (relating to apportionment)
in 1987, Minnesota was still obligated
to allow taxpayers to use the compact’s
3-factor apportionment formula during
the tax years at issue until it formally
repealed the compact in 2013. Kimberly-Clark Corporation & Subsidiaries v.
Commissioner of Revenue, Docket No.
8670-R, 2015 WL 3843986 ( Minn. T.
Ct. 6/19/2015).
n Income tax: Nonqualified ESOP
distribution was taxable income and
subject to six year statute of limitations. The 8th Circuit affirmed the tax
court, and held that an unreported distribution of a newly acquired LLC stock
from taxpayer’s nonqualified ESOP to
his IRA was a taxable distribution; and
when not reported, was subject to the
six-year statute of limitations under IRC
Code §6501(e)(1). The taxpayer argued
that the three-year statute should apply
because the IRS obtained actual knowledge of the distribution within three
years of the return, via an unrelated
audit. The 8th Circuit said that this
was an erroneous view of a prior statute
of limitations and not the current law.
Taxpayer’s reasonable belief that the distribution was tax-free was irrelevant on
the application of the statute of limitations. Further, the nonqualified distribution was not adequately disclosed on
any returns to constitute a “clue” for the
IRS. Heckman v. Commissioner, 115
AFTR 2d ¶ 2015-817 (8th Cir. 2015).
n Income taxes: Employment outside
of state not enough to establish new
domicile from Minnesota. The Minnesota Tax Court determined that the wife
remained a domiciliary of Minnesota
for the tax years 2009, 2010, and 2011
despite working in North Carolina, Massachusetts, Ohio, and Michigan. The
determination of domicile was based on
the fact of the presumption her domicile
was Minnesota since the husband and
her son remained in Minnesota. Further,
the Woodbury residence was not sold
or her furnishings moved out-of-state.
When the taxpayer’s employment in the
various states terminated, she always returned to Minnesota to her husband and
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Notes&Trends
son. The record also disclosed substantial days in Minnesota during the time
period 2009 through 2011 of at least 100
days. A domiciliary questionnaire was
answered by the taxpayer stating that
she was a resident of Minnesota for the
periods. Her federal return filings always
listed the Woodbury address. Lastly,
the wife’s testimony on the stand was
inconsistent with her filing position and
claim of residency. Further, she never
registered to vote, registered a car, or
became involved in any of the other
states. Flora Ayeni v. Commissioner of
Revenue, Docket No. 08697, 2015 WL
496152 (Minn. T. Ct. 2/2/2015).
n Income taxes: Appeal dismissed for
lack of evidence on unitary and authority of officer. The Minnesota Tax Court,
in a tax dispute on whether the taxpayer
was a unitary taxpayer for the years 2005
through 2009, ruled that the taxpayer
failed to introduce any evidence on
its unitary status and, therefore, was
unitary. Further, the taxpayer failed to
present any evidence on the authority
or lack thereof of a corporate officer,
who when interviewed by an auditor,
indicated that the companies were unitary for the years at issue. Accordingly,
the court granted the commissioner’s
motion under Minnesota Rule of Civil
Procedure 41.02(b) for an involuntary
dismissal for lack of evidence. SunGard
Data Systems, Inc. v. Commissioner of
Revenue, Docket No. 8461, 2015 WL
4875101 (Minn. T. Ct. 8/11/2015).
of money owing in taxes as required by
Minn. Stat. §284.10 , and so the taxpayer’s counterclaims and defenses were
properly barred. The failure to pay the
required deposit results in automatic dismissal of the adverse claims or defenses.
The court also rejected the taxpayer’s
argument that the statute impermissibly infringes on its 1st Amendment
right of access to the courts by forcing
it to pay a deposit to challenge the tax
forfeiture. County of Washington v.
Walker Properties of Woodbury II, LLC,
et al., Docket. No. A14-2101, 2015 WL
5089049 (Minn. Ct. App. 8/31/2015).
n Real property taxes: Right-of-way
maintenance assessment is not tax. The
Minnesota Court of Appeals held that a
city’s right-of-way maintenance assessment is a regulatory service fee and is
not a tax. The city uses an annual rightof-way (ROW) assessment to recoup the
costs related to street maintenance. The
taxpayers challenged the ROW because
it is a tax, does not meet the specialbenefit standard, and is improperly based
on estimated costs. The purpose of the
ROW assessment at issue is to “recoup
the cost” of maintaining all city streets
and sidewalks. Therefore the ROW assessment is a regulatory service fee and
all of the services relate to the regulatory
exercise of the city’s police power. The
assessment is reasonably related to the
costs of services and was not improperly
calculated based on estimated costs.
First Baptist Church of St. Paul, et al. v.
City of St. Paul, Docket. No. A15-0015,
2015 WL 5089063 Minn. Ct. of App.
8/31/2015).
nesses-&-Self-Employed/Frequently-AskedQuestions-on-Estate-Taxes#1
n Sales and use tax: Items for use
outside state. The commissioner revised
a release discussing the application of
the sales tax on items for use outside
Minnesota. The release covers: items
delivered outside Minnesota; items
delivered into Minnesota and stored
in a public warehouse; items picked up
in Minnesota for business use outside
Minnesota; advertising materials used
outside Minnesota; direct mail; direct
pay businesses; drop shipments; and
local sales and use taxes. See Minnesota
Sales Tax Fact Sheet 110 (6/1/2015).
n Sales and use tax: Motor vehicle
rental tax and fee. The commissioner
revised a release on the state’s motor
vehicle 9.2% rental tax and 5% fee to
clarify that rentals of pickup trucks are
subject to the rental tax and fee, and
cargo vans are not. The rental tax and
the fee must be collected for leases
and rentals of a pick-up truck with a
manufacturer’s nominal rated carrying
capacity of three-quarter ton or less.
The 9.2% rental tax and the 5% fee do
not apply to vans designed or adapted
primarily for transporting property rather
than passengers (including vans with
a barrier between the operator and the
cargo areas). See Minnesota Sales Tax
Fact Sheet 136 (9/1/2015).
n Procedure: File claim for refund
where your current return needs to be
n Real property taxes: special assessfiled. The IRS issued final regulations
ment appeals. The Minnesota Court of
that updated existing regulations on the
Appeals reversed the district court and
proper place to file a claim for refund or
held that in order to protest a special
credit. The updated regulations reflect
assessment, under Minn. Stat. ¶ 429.061 n Sales and use tax: Coupons, disvarious legislative changes made over
and Minn. Stat. §429.081, the taxpayer counts, rewards, and rebates. The com- the last 40 years. Previously, the IRC
missioner revised a release that discusses Code §6402 regulations provided that a
needs to object in writing and have the
objection signed before or at the special the taxability of coupons, discounts,
claim for refund or credit had to be filed
rewards, rebates, and other forms of
assessment hearing. Further, the court
with the service center servicing the inheld that “substantial compliance” was
payment to clarify the information about ternal revenue district in which the tax
not warranted even though the taxpayer rewards and rebate programs. See Minne- was paid. The final regulations specify
sota Sales Tax Fact Sheet 167 (6/1/2015). that the proper venue for filing a claim is
provided his name and address for the
record, when he addressed the City
the service center at which the taxpayer
n Estate tax administration: Taxpayer
Council, and as directed by the mayor,
currently must file a return for the type
must request IRS closing letter. The IRS of tax to which the claim relates, regardsigned the “yellow pad” when he finished speaking. McCullough and Sons,
recently changed the process for obtainless of where the tax was paid. Further,
Inc. v. City of Vadnais Heights, Docket ing estate tax closing letters, moving from the regulations made clear that the IRS
No. 62-CV-14-5555, 2015 WL 4877761 automatically sending them to requiring
lacks the authority to provide a refund
that taxpayers request them. A closing
(Ct. of App. 8/17/2015).
on equitable grounds for penalties or
letter on any estate tax return – Form
other amounts legally collected that
n Real property taxes: Failure to pay
706, United States Estate (and Genercompromise an overpayment. See T.D.
taxes accrued in tax forfeiture action.
ation-Skipping Transfer) Tax Return –
9727 (7/24/2015).
The Minnesota Court of Appeals held,
filed on or after 6/1/2015, will be issued
in an action to quiet title to various
only upon request by the taxpayer. This
n Sales and use tax: Minnesota issues
tax-forfeited properties in favor of the
is a new requirement. See the Frequently industry guides. The commissioner
state, the taxpayers failed to deposit
Asked Questions on Estate Taxes at
issued four industry guides that provide
with the court administrator the amount http://www.irs.gov/Businesses/Small-Busianswers to the sales and use tax ques48 Bench&Bar of Minnesota s October 2015
www.mnbar.org
Notes&Trends
tions for that particular industry. The
four industry guides cover: motor vehicle
dealers; off-road vehicle dealers; personal
services; and professional services. See
Motor Vehicle Dealer Industry Guide,
Minnesota Department of Revenue
(9/3/2015); Off-Road Vehicle Dealer
Industry Guide, Minnesota Department
of Revenue (9/3/2015); Personal Services
Industry Guide, Minnesota Department
of Revenue (9/3/2015); and Professional
Services Industry Guide, Minnesota
Department of Revenue (9/3/2015).
Legislative
n Tax provisions in Highway Trust Fund
legislation. Congress, in July 2015,
enacted a three-month extension to the
Highway Trust Fund and in the process
enacted tax provisions of substantial
interest. Here’s the information on the
changes with the dates they take effect:
n Mortgages. Starting in 2017, for
the 2016 tax year, lenders will have to
provide more information to the IRS
about an individual’s mortgage. Now,
lenders have to include not only interest but the loan’s origination date,
the amount of outstanding principal
balance at the beginning of the year,
and the address of the property.
n Partnership tax return filings.
Starting in 2017, for the 2016 tax
year, partnership tax returns will be
due March 15 rather than April 15.
n C corporation tax return filings.
C corporation tax returns are due
April 15 rather than March 15, effective for tax years beginning after
12/31/2015. For C corporations with
a tax year ending on June 30, the
changes are effective for tax years
beginning after 12/31/2025.
n Foreign accounts. The deadline
for filing FinCen Form 114, which is
often called Fbar, was moved to the
April 15 tax filing date. Taxpayers can
also get a six-month extension (until
October 15) to file it.
n Basis reporting for estates. Some
estates will now have to provide both
heirs and the IRS with information
about the value of certain assets,
to insure that tax won’t be underreported if the asset is later sold. The
provision takes effect for estates filing
returns after 7/31/2015, so it could
affect the estates of some who died
last year. Note, however, the IRS
has delayed the requirement to file
a statement until 2/29/2016, if the
statement would have been appended
to a return due before that date. The
IRS indicated that it needed to issue
forms or other guidance to implement the reporting requirements of
www.mnbar.org
the new law. See Notice 2015-57,
2015-36 IRB.
n Statute of limitations. Congress
overruled Home Concrete, and now
a basis omission triggers the six-year
statute of limitations on assessment
of returns. Effective for returns filed
after 7/31/2015, except it retroactively applies to certain returns and cases
presently in the courts.
– Jerry Geis
Briggs and Morgan, P.A.
TORTS & INSURANCE
JUDICIAL LAW
n Legal malpractice; sufficiency of
expert affidavit. Plaintiff filed suit
against defendant attorney, alleging he
negligently drafted a power of attorney.
Plaintiff claimed that as a result of the
negligence, his nephew was allowed
access to bank accounts and stole funds.
Plaintiff included an affidavit of expert
review with the complaint, stating
that an expert had reviewed the facts
alleged and that in the expert’s opinion
defendant “deviated from the applicable
standard of care, and by that action
caused damages.” Plaintiff, however, did
not provide an affidavit of expert disclosure in discovery. Instead plaintiff simply
relied on his affidavit of expert review.
The district court granted defendant’s
motion for summary judgment. The
court of appeals reversed and remanded.
The Minnesota Supreme Court
reversed the order of the court of appeals and affirmed the grant of summary
judgment to defendant. After acknowledging that the Court’s precedent required expert testimony on the issues of
standard of care and any deviations from
that standard, the Court went on to
hold that expert testimony was required
to establish proximate cause in this
case. The Court went on to hold that
the conclusory statement contained in
plaintiff’s affidavit of expert review was
insufficient to satisfy plaintiff’s burden or
to even trigger even the safe-harbor provision contained in Minn. Stat. §544.42,
subd. 6(c).
Justice Lillehaug filed a concurrence.
Justice Lillehaug noted that the result
set forth in the majority’s opinion was
compelled “under existing law” but
wrote separately to suggest that the
Court’s precedent should be overruled.
Guzick v. Kimball, No. A14-0429
(Minn. 8/31/2015). http://www.mncourts.gov/mncourtsgov/media/Appellate/
Supreme%20Court/Special%20Releases/
OPA140429-083115.pdf
– Jeff Mulder
Bassford Remele A Professional Association
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People Practice
People&Practice
n Thomas W. Jakway has joined Cundy
& Martin, LLC as the firm’s lead criminal defense attorney. Jakway brings 26
years of experience as a litigator focusing
on DWIs, DUIs and BWIs. A member
and past president of the Minnesota
Society for Criminal Justice, Jakway is
also a charter volunteer for both the
Washington County Criminal Advice
Clinic and the Criminal Advice Panel of
Dakota County.
n Litigator Sharon Van Dyck joined
Fafinski Mark & Johnson, PA. Van Dyck
has 28 years of experience, and has appeared in more than 100 appeals before
the Minnesota appellate courts, as well
as in the U.S. appellate courts in the
5th, 8th, 9th, and 11th circuits.
n Jeffrey J. Woltjen has joined Arthur,
Chapman, Kettering, Smetak & Pikala,
PA as an associate attorney, working
with clients in the areas of automobile
law, insurance fraud, and general liability. Woltjen received his JD from the
University of Minnesota Law School.
n Mae Beeler and Aaron Hartman
have joined Monroe Moxness Berg.
Beeler joins as an associate in the firm’s
litigation practice group, where she
will focus her practice on an array of
civil and commercial litigation matters.
Hartman is a trial attorney and joins the
firm as a shareholder.
n Lauren M. Kruger and Brandon J.
Wheeler have joined Felhaber Larson,
PA. Kruger focuses her practice on
business and employment litigation.
Wheeler practices in the areas of commercial and employment litigation.
n Peter H. Walsh has joined Hogan
Lovells as a partner in the litigation and
arbitration practice group, co-located
in the firm’s Minneapolis and Denver
offices. Walsh spent the last eight years
as a senior executive at an international
healthcare company.
n Michael Moberg joined Jackson
Lewis as a shareholder in the
Minneapolis office. Moberg brings over
20 years of experience in traditional
labor law and employment litigation.
n Jon L.
Farnsworth of
Felhaber Larson,
PA was named
the 2014-2015
Volunteer of
the Year by
LegalCORPS,
a not-for-profit
Jon L. Farnsworth
organization that
offers free legal advice to low-income
small business owners. Farnsworth has
provided an exceptional amount of free
representation to his clients, offering his
expertise on a wide array of legal issues
affecting small businesses.
n Fredrikson & Byron has elected eight
new shareholders to the Minneapolis
firm. Ron Garber is a member of the
mergers and acquisitions, securities, life
sciences and media and entertainment
groups. Katherine B. Ilten is a
member of the health care, aging and
disability providers, healthcare fraud
and compliance, and white collar and
regulatory defense groups. John F.
Kapacinskas is a member of the health
care, litigation, healthcare fraud and
compliance, and life sciences groups. Paul J. LaVanway is a member of
the intellectual property, patents,
intellectual property litigation, IP due
diligence, life sciences and sustainability
groups. Zachary D. Olson is a member
of the mergers and acquisitions,
renewable energy, energy, securities and
real estate groups. Karla L. Reyerson
is a member of the bank and finance,
corporate governance, mergers and
acquisitions, privacy, banking and
financial services litigation and securities
groups. Kevin C. Riach is a member of
the white collar and regulatory defense,
health care fraud and compliance,
internal investigations, litigation, false
claims act defense and foreign corrupt
practices act and anti-corruption groups. Mark H. Tranovich is a member of
the bank and finance, private equity,
commercial law, securities and mergers
and acquisitions groups.
In Memoriam
Edward Nicholas Denn passed
away on September 15, 2015 at
the age of 85. He earned a law
degree from Notre Dame in 1958.
Denn practiced law in the Twin
Cities for several decades until his
retirement.
Howard H. Gelb passed away
peacefully September 1, 2015 at
the age of 96. Gelb was a St. Paul
attorney and businessman. He
served in the 8th Air Force during
World War II.
Schechter Dokken Kanter CPAs
Forensic Accounting and Valuation Services Team
612.332.5500
www.sdkcpa.com
www.mnbar.org
People&Practice
n The Minnesota Chapter of the
American Board
of Trial Advocates
presented its 2015
Trial Judge of the
Year Award to
Hennepin County
District Judge
Hon. Regina Chu
Regina Chu. Minnesota ABOTA honored Judge Chu at
the chapter’s annual meeting on August
27. Gov. Jesse Ventura appointed Judge
Chu to the court in 2002.
n Aalok K. Sharma and Courtney
Blanchard have joined the Minneapolis
office of Foley & Mansfield. Both will
focus on commercial and tort litigation.
n Niall MacLeod and Aaron Myers
joined Kutak Rock LLP. MacLeod and
Myers were previously with a national
law firm in which they were both
partners. Both focus their practice on
intellectual property and litigation.
n Officers were elected at the annual
meeting of the Minnesota Defense Lawyers Association held August 14, 2015,
n Joel C. Brakken and Kelly B.
at the DECC in Duluth, Minnesota.
Nyquist have joined Fitch, Johnson,
Richard C. Scattergood, of Stich Angell
Larson & Held, PA. Brakken will be
Kreidler Unke & Scattergood PA, is the
practicing in the areas of workers’
association’s new president. Scattergood
compensation and insurance defense.
succeeds Dyan J. Ebert of Quinlivan &
He graduated from Valparaiso University Hughes PA. Troy Poetz, of Rajkowski
School of Law in 2013. Nyquist will
Hansmeier, Ltd., was elected as vice-presbe practicing in the areas of workers’
ident; Jessica E. Schwie, of Jardine Logan
compensation and insurance defense.
& O’Brien, PLLP, was elected as treaNyquist graduated from the William
surer; and Steven M. Sitek, of Bassford
Mitchell College of Law in 2012.
Remele, was elected as secretary.
n Bryan Feldhaus
was elected to the
Board of Directors of Lommen
Abdo, PA, a
trial, business and
entertainment
law firm. Feldhaus
represents clients
Bryan Feldhaus
in complex civil
litigation, including business litigation,
appeals, intellectual property litigation,
professional liability disputes, insurance
coverage litigation and partnership/
shareholder litigation.
n Fredrikson & Byron attorney
Kevin P. Goodno was elected chair of
the American Brain Foundation Board
for a two-year term. The foundation
supports research and education to
discover causes, improved treatments,
and cures for brain and other nervous
system diseases. Goodno has served on
the board since 2011. He is the first
chair who is not a neurologist.
WE ARE PLEASED TO ANNOUNCE THAT
ROBERT W. GADTKE
WILL JOIN OUR FIRM
Rob is a founding partner of Gadtke & Beyer, LLC.
For the past 12 years, he has developed a strong family law
practice. He is a 2000 graduate of Drake University and
a 2003 graduate of the University of Iowa Law School.
Rob will continue practicing family law and also represent
injured workers in workers’ compensation claims and consumers
in automobile lemon law and breach of warranty claims.
www.mnbar.org
Robert W. Gadtke
(763) 315-4548
rgadtke@gadtkelawfirm.com
Gadtke Law Firm, P.A.
11210 86th Avenue North
Maple Grove, MN 55369
www.gadtkelawfirm.com
Opportunity Market
Work” by The Business Journal. The firm
offers competitive compensation and
generous benefits, a culture that encourASSOCIATE. Rinke Noonan, a growing ages and celebrates contributions to the
firm with 26 attorneys in St. Cloud, MN, community, and active, strategic support
seeks an associate to practice in the ar- to help attorneys develop their practice.
eas of environmental, natural resources, Candidates may email their resume and
and agricultural law. This position’s recover letter to: Ms. Gina Sauer, Director
sponsibilities include advising clients on of Attorney Recruiting and Development,
environmental regulatory compliance, gsauer@oppenheimer.com.
Oppenparticularly in the areas of water law and heimer Wolff & Donnelly LLP is an Equal
wetland conservation compliance; repre- Opportunity/Affirmative Action Employer.
senting clients in federal and state court
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and before federal and state administrative agencies in a broad range of environ- Franz Hultgren Evenson, PA, an estabmental, agricultural, property, and land lished and growing law firm in St. Cloud,
use matters; advising and guiding mu- Minnesota, seeks an associate attorney
nicipal and local government clients, par- to join our civil practice. The candidate
ticularly watershed districts and public should have an interest in business and
drainage authorities; and negotiating and employment law, as well as litigation and
drafting transactional documents related other areas of general practice. We are
to a variety of environmental and agri- looking for someone with the entreprecultural-related matters. The successful neurial drive to build client relationships,
applicant will have the support of expe- to get involved in our community and
rienced attorneys and paralegals and be to ultimately become an active partner
given the opportunity to grow niche prac- in our firm. A minimum of two years of
tice areas with long term clients. Rinke private practice and a genuine interest
Noonan seeks associates with the drive in living and working in Central Minto develop their skills, create a client nesota are required. Applicants should
base, and become active participants send a resume and cover letter to: Franz
and owners in the firm. The successful Hultgren Evenson, PA, Attention: Drew
applicant will have significant, immedi- Hultgren, 1011 Second Street North, P.O.
ate and meaningful client contact. Ap- Box 307, St. Cloud, Minnesota 56302 or
plicants with three to five years of legal dhultgren@fhelawyers.com.
experience, as well as other real world
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experience, preferred. Interested persons should provide a resume and law HEALTH and Human Services Attorney.
school transcript to: Rinke Noonan, At- The Office of the Minnesota Attorney
tention Ann Entenmann, P.O. Box 1497, General is seeking attorneys with sucSt. Cloud, MN 56302. For more informa- cessful experience in human services
tion, please review the firm’s website at and health law. This is an exciting opportunity to join a highly committed
www.rinkenoonan.com.
team that handles important health and
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human services legal matters for the
BUSINESS litigation attorney wanted. State of Minnesota. Requirements: ApOppenheimer Wolff & Donnelly seeks plicants should have superior academic
an attorney with two to three years’ ex- credentials, excellent writing and comperience to join our busy Business Liti- munication skills, outstanding research
gation Group. Candidates should have and analytical abilities, sound judgment
excellent academic credentials and su- and character, relevant practice experiperior client service skills. Prior experience, good work ethic and professional
ence in a large law firm is preferred. Op- deportment. Applicants must have the
penheimer is a full service law firm with skills and drive to represent the public
Minnesota roots dating back more than effectively and with distinction. The se125 years, and has been recognized as lection process to become an Assistant
one of the Twin Cities’ “Best Places to Attorney General is highly competitive
Attorney Wanted
and you must have the desire to serve
the public. Applications: Attorneys may
express interest by submitting a cover
letter and resume that includes relevant
experience and academic credentials
including class rank to: Office of the
Minnesota Attorney General, Attention:
June Walsh, 900 Bremer Tower, 445
Minnesota Street, St. Paul, MN 55101,
ag.jobs@ag.state.mn.us. The Office of
the Minnesota 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) 297-7206 (TTY).
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Cummins Law Office, PA is seeking a
full-time attorney for its office in Bayport,
Minnesota (Stillwater, Minnesota area).
The ideal candidate has practiced
estate planning for three plus years,
has exceptional interpersonal skills,
strong drafting and analytic research
ability, pays attention to detail and takes
initiative. We are looking for an attorney
to provide excellent client service
while working in our team-oriented
and collegial environment. Salary is
commensurate with experience. Please
send your cover letter, resume, writing
sample and law school transcript to
Meghan S. Johnson at mjohnson@
cumminslawoffice.com.
RATES:
MSBA members: $1.50 per word.
Nonmembers: $2.25 per word.
Charge for box number: $20.00.
Minimum charge of $30.00 for all ads.
DEADLINE:
Ad copy received with payment will be
posted online within one week and will
be published in the next available issue.
“Bench & Bar affirms the concept
of equal employment opportunity.
Accordingly, we will not publish
advertisements that categorize
applicants on the basis of race, religion,
sex, age, or other illegal classification.”
Place an ad:
Ads should be submitted online at:
www.mnbenchbar.com. For more
information call: (612) 278-6311
www.mnbar.org
OpportunityMarket
HINSHAW & Culbertson LLP, a leading
national law firm, is seeking an experienced commercial transactions attorney to join our Minneapolis office. We
are looking for an attorney with four to
seven years of experience in the areas
of general corporate law, real estate
transactions (including leasing, acquisitions and dispositions), asset based and
real estate lending/commercial finance,
and other commercial transactions.
Solid writing skills are essential. Candidates should have an interest in participating in business development efforts
and must be committed to exceptional
client service, with top quality work
product and exceptional academics.
MN bar license required. Apply online:
http://www.hinshawlaw.com.
this position traditionally is performed.
Whenever necessary to provide individuals with disabilities an equal employment opportunity, the Firm will consider
reasonable accommodations that might
involve varying job requirements and/or
changing the way this job is performed,
provided that such accommodations do
not pose an undue hardship. Jackson
Lewis is an Equal Opportunity Employer
encouraging diversity in the workplace.
All qualified applicants will receive consideration for employment without regard to race, national origin, gender, age,
religion, disability, sexual orientation, veteran status, marital status or any other
characteristic protected by law.
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MESSERLI & Kramer PA, a top 25 MN
law firm, has an Associate Attorney opportunity in our Business Litigation
group. Successful candidates must have
one to four years’ experience with at
least one year of business litigation experience, high academic achievement,
exceptional research and writing skills,
excellent verbal and written communication skills, and solid organizational skills.
Management of e-discovery a plus. We
seek candidates with a strong interest
in developing clients. We are looking
for Associate talent to help deliver great
service to our clients and positively influence our culture. We offer a competitive
salary and benefit program. If you would
like to join us, please send resume and
cover letter along with salary expectations to: Human Resources, Messerli
& Kramer PA, 1400 Fifth Street Towers, 100 South Fifth Street, Minneapolis, MN 55402-4218. Email: scyronek@
messerlikramer.com.
Jackson Lewis PC is a nationwide law
firm dedicated to representing management exclusively in workplace law and
related litigation. With 55 offices and
over 801 attorneys, Jackson Lewis is
seeking to expand its growing Minneapolis office by adding an associate to its
ranks. Job Title: Labor and Employment
Law Associate. Contact: Please forward referral form and resume to MinneapolisRecruiting@jacksonlewis.com.
Location: Minneapolis, MN. Duties &
Responsibilities: Represent employers
in court, before administrative agencies, at mediations and in arbitration in
a broad range of employment matters,
including discrimination, contract, employment, tort and non-compete cases.
Assist employers facing Union organizing attempts, represent employers before the National Labor Relations Board,
provide advice and counsel on labor negotiations strategy, and defend employers in labor arbitration. Advise and train
employers on a wide range of employment laws and regulations, including
anti-discrimination laws. Daily advice
and counsel to clients regarding various
employment and labor issues. Skills and
Educational Requirements: JD from accredited law school, academic credentials. One to seven years of labor and
employment law experience. Minnesota Bar Admission. Excellent written and
oral communication skills. Attention to
detail and commitment to excellence.
Ability to work in a fast-paced environment. This is a general description of the
Duties, Responsibilities and Qualifications required for this position. Physical,
mental, sensory or environmental demands may be referenced in an attempt
to communicate the manner in which
www.mnbar.org
sssss
sssss
PANGEA3 currently has immediate
openings for full-time contract document
review attorneys to be based out of our
Eagan, Minnesota office. We begin an
open-ended project starting this Saturday, September 12, 2015 and paying at
a rate of $23.00 per hour. If interested
and available, please forward your resume immediately so that we may contact you directly. Please be aware that
selected candidates must meet the following qualifications: (1) completion of
a JD, (2) current admission/membership
in a bar association, (3) 6 months experience performing Document Reviews.
Some of our preferred software include
the following: Relativity, Concordance,
Kroll, Xera, etc. Your time and consid-
eration are greatly appreciated. I look
forward to speaking with you. If you
are currently on assignment, kindly let
me now of your pending availability for
future assignments. For specific details regarding the above mentioned
position refer to our company website:
www.thomsonreuters.com. Regards,
Patricia Hodgins: Patricia.hodgins@
thomsonreuters.com, (914) 563-4838.
For Sale
FOR SALE: Well established probate,
estate planning, real estate practice,
and office building, in SW MN by retiring solo practitioner. Call (507) 3425181 or (507) 829-9138.
sssss
OFFICE furniture for sale. Oak desk,
credenza, side table, two chairs, desk
chair and secretarial chair. Contact Eric
at: ewforsberg@suite2960.com
Office Space
EXECUTIVE Suites of Minnesota offers attractively furnished, serviced
office space including receptionist support/administrative services, meeting
rooms, Internet, flexible terms at prestigious addresses (IDS Center, Edina, St.
Louis Park, and Oakdale). Call Wayne
with Executive Suites of Minnesota at:
(952) 851-5555 or email: marketing@
exsmn.com. Visit: www.exsmn.com/attorneys for our current promotion. Rent
one office, use four metro locations.
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WOODBURY/ Lake Elmo area Law
Office Condo Suite. Perfect setting for
a solo practitioner looking to share office space and network with other attorneys. Located minutes from several
courthouses including Stillwater, Maplewood, St. Paul, and West Saint Paul.
Rent includes receptionist to answer
your phones and greet clients with
coffee/water. Also includes use of fax/
copier/scanner, postage machine, two
conference rooms, and full kitchen. We
have five attorneys that work great together and enjoy referring cases to one
another. If you work in immigration law,
personal injury, workers comp., real estate, or any other practice area there is
potential for referrals. Email: steven@
coodinoverson.com.
OpportunityMarket
VIRTUAL office – Ideal for attorneys
who want a professional business image but don’t need a full-time office or
who desire access to additional office
locations. With a virtual office, you have
access to the amenities at all four of
our prestigious locations (IDS Center,
Edina, St. Louis Park & Oakdale). From
$59 monthly. Call Wayne with Executive Suites of Minnesota at: (952) 8515555 or email: marketing@exsmn.com.
For our current promotion, visit: www.
exsmn.com/attorneys.
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GREAT office space available - 1100 to
5000 RSF – $12-14/rsf – Gross lease.
Would consider MTM. Close to MSP
airport and MOA. Just down the street
from the Lite Rail. Executive office
center on site with ala carte services
available for a fee if needed. Located in
Metro Office Park, Bloomington. Contact Ardis Hafdahl at (651) 271-2399 for
more information.
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SERVICED Office Space with an Attorney Support Program. Close to MSP
Airport and Mall of America. Contact
Judy Magy the expert with serviced office space. Hop on a light-rail train or
bus and be in your office in minutes.
One- to three-person offices - base rent
from $280 – $800. Services: personalized telephone answering, copier, fax,
scanning. Witness and Notary services.
Mail sorting and drop off documents,
packages. Support staff and reception
area. Judy Magy (952) 851-9040.
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INDIVIDUAL offices for rent. Professional, friendly building by Highways
7/101 in Minnetonka. 12 independent
attorneys. All furniture and service
available. (952) 474-4406. minnetonkaoffices.com
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OFFICE share available in Uptown. We
are looking for a lawyer to sublease a
semi-furnished large office in our suite
on the Greenway. Rent is $700/month.
Please visit here for more information:
http://minneapolis.craigslist.org/hnp/
off/5179352937.html. Call (612) 4865540 or email jwilliams@jrwlaw.net.
Ads posted daily:
Get immediate updates to the most
recent job listings and classified ads
at: mnbenchbar.com/classifieds
LAW FIRM has three individual offices
for lease. Located at 4525 Allendale
Drive in White Bear Lake. Available now.
Variable rent from $800 - $950 based
on office(s) and term. Contact Nichole
Lorenz at nichole@espelaw.com or (651)
426-9980.
GOLDEN VALLEY attractive shared
office space available 11/1, single or
two large windowed offices w reception area in well maintained building.
Share space with two other independent attorneys in location near 394 and
West End. Professional, friendly with
shared use of copier, phone system
sssss
and common areas. Daily janitorial serOFFICE Suite & Windowed Offices, vice. Large conference room with easy
and also virtual attorney space available. access and free parking. $500.00 per
Professional and impressive to clients, month per office. Call Howard Sussbut not expensive. Flexible terms. Free man: (763) 577-1122.
Parking and wireless internet. Lakes &
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Plains Office Building, 842 Raymond
Avenue, St. Paul. Multiple conference FURNISHED offices available in renorooms,
law
library,
kitchenette, vated historic building near Raymond
receptionist
and
lobby;
attorney Avenue Green Line Station. $500 per
collaboration and interaction. Near Key’s month, with three available immediRestaurant. Call Mick at: (651) 647-6250 ately. Amenities include wired internet service, parking, large conference
or email: mick.lakesplains@gmail.com.
room, and kitchen. Use of copier, fax
sssss
machine, and postage meter available
AFFORDABLE office space in downtown for additional charge. Storage space
Minneapolis. Flexible terms. Steps from available in building through North Star
courthouses. Join other independent Mini Storage. St. Paul Post Office next
attorneys in historic building featuring full- door. Contact Jan at: (651) 789-7799
time receptionist, high-speed internet, X10, or Carla at X13.
fax, and conference room. Contact Keith
sssss
Johnson at: (612) 341-2525.
PRIME, Convenient, Eden Prairie. One
sssss
to five individual offices. Average size:
1600 EXECUTIVE Suites has over 70 13x14. Floor-to-weiling windows. $750
private offices on the 16th floor of the and up. Upgrades: furnished, phone,
Campbell Mithun Tower starting at support staff cube, file storage, copier.
$550/month. Virtual Office Programs Call Ed or Scott: (952) 563-3000.
starting at $99/month. Newly built
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out space with impressive reception/
boardroom/conference rooms, kitchen/ SOUTH Metro Office Space: Single furlounge, building directory listing, office nished office (13’x14’) with large windoor signage, hosted high-speed VOIP/ dows available now in Class A office
Data solution with Private Skyway building located at 35W and Burnsville
Coworking. Call: (612) 337-9000 or Parkway. Share space with four solo
attorneys. Rent includes telephone, reMelody@1600executivesuites.com.
ceptionist, copier/fax/scanner, kitchensssss
ette, shredding and daily janitorial serANOKA office space available, across vice. Contact Jeanne at (952)736-1843.
the street from courthouse. Sevsssss
eral suites available from 200 – 3500
square feet. Private offices as low NORTHWESTERN Building – 275 East
as $100/month. Client referrals avail- 4th Street, Saint Paul. Small to larger
able. Tim Theisen (763) 421-0965 or office spaces available for lease. Great
for start-up attorneys. Monthly rates
tim@theisenlaw.com.
from $250 – $1229/month. Historic
sssss
building. Lowertown. Lite Rail. Deli on
EXCEPTIONAL
Service
–
110% 1st floor. Contact Wendy at (612) 327Guaranteed. Full service office and 2231 for a showing or check us out at
virtual office community exclusively for www.northwesternbuilding.com
lawyers. We are so confident in our ability
sssss
to serve you and your clients well, that
we will give you 110% back if we don’t. Owner of a solo practice in the SouthNo one else does that. Come see what ern Minnesota Lakes region is seeking
makes us different. www.morelawmpls. an attorney interested in an office sharing arrangement. Call: (507) 362-4242.
com (612) 206-3700.
www.mnbar.org
Opportunity Market
TWIN CITIES CARDOZO SOCIETY
Professional Services
Sixteenth Annual Dinner
November 19, 2015 | Marriott City Center, Minneapolis
NAPLES, Florida-based probate, real
estate and general practice attorney
licensed in Minnesota and Florida.
Robert W. Groth, PA (239) 593-1444;
rob@grothlaw.net
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CERTIFIED Consulting Meteorologist. Research, reports, testimony:
ice, fog, rain, hail, wind, and severe
weather. Personal injury and structural failure cases, 1992-2013. Worked
with Habush & Habush law firm in
Milwaukee on the Miller Park “Big
Blue” crane incident. Wind flow modeling and data analysis for oil refinery
toxic cloud releases. My experience
as a university instructor enables
me to clearly explain meteorological
concepts to a jury.www.allenbecker.
com, allen@allenbecker.com, (414)
807-0269.
sssss
MEDIATION Training: Advanced and
Certified Family and Civil Courses.
Learn the transformative approach,
highly-rated curriculum and instructor.
simon-mediation.com (651) 6995000.
PROFESSOR IRWIN COTLER, KEYNOTE SPEAKER
Legal scholar, public servant, and champion
for human rights around the world.
HONORING Alan Silver, The Honorable Myron Greenberg,
and Valeria Sinelnikov Chazin
For more information, please contact
Alyssa Huck, 952.417.2323 | ahuck@mplsfed.org
jewishminnesota.org/cardozo
THANK YOU TO OUR EVENT SPONSORS
Premier Corporate Sponsor
Full Table Sponsors
Bassford Remele
Bernick Lifson, P.A.
Chestnut Cambronne PA
Dorsey & Whitney LLP
Faegre Baker Daniels LLP
First Lawyers Trust Company
Fredrikson & Byron, P.A.
GoldenbergLaw, PLLC
Myron S. Greenberg, LLC
Greene Espel PLLP
Larkin Hoffman
Presenting Dinner Sponsor Stinson Leonard Street
Lockridge Grindal Nauen P.L.L.P.
Messerli & Kramer P.A.
Milavetz, Gallop & Milavetz, P.A.
Minnesota Lawyers Mutual Insurance
Company
Parker Rosen, LLC
Robins Kaplan LLP
US Bank
Winthrop & Weinstine, P.A.
Zamansky Professional Association
Half Table Sponsors
Benchmark Reporting Agency
CBIZ MHM, LLC
Cozen O’Connor
Daniels & Kibort, PLLC
Gray Plant Mooty
Mairs & Power
Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
Ross Orenstein & Baudry LLC
Yost & Baill, LLP
as of September 9, 2015
THANK YOU TO OUR CORPORATE PARTNERS
GOLD
PLATINUM
SILVER
BRONZE
sssss
MINDFULNESS
Based
Stress
Reduction (MBSR) for the Bar is 7
week, 16 hour series approved by
the MBCLE for 6.5 credits. FFI –
Robin Doroshow at mbsrforthebar@
gmail.com or (612) 804-1178.
mbsrforthebar.com.
sssss
PARLIAMENTARIAN,
meeting
facilitator. “We go where angels
fear to tread.TM” Thomas Gmeinder,
PRP, CPP-T: (651) 291-2685. THOM@
gmeinder.name.
MSBA Contest
WINNERS
Announced
Thanks to all MSBA members who participated in the contest by updating
their member profile. Here’s a list of the 2015 contest winners:
PRIZE
RECIPIENTS
iPad
Gregg Fishbein
mndocs subscription
Thomas Chia
Kristi Fox
Elizabeth Wrobel
Dennis O’Toole
Patricia Buss
On-Demand CLE
Andrea Smith
Daniel Cragg
Byron Millea
Courtney Sebo
Erin Muldoon Haug
On-Demand CLE or 1
Section membership
John Lund
Richard Nethercut
Joan Hallock
Jill Frieders
Ken Bayliss
Anne Byrne
Ben Peterson
Amy Doll
Jessica Grace
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sssss
ATTORNEY coach / consultant
Roy S. Ginsburg provides marketing,
practice management and strategic/
succession planning services to
individual lawyers and firms. www.
royginsburg.com, roy@royginsburg.
com, (612) 812-4500.
Place an ad:
Ads should be submitted online at:
www.mnbenchbar.com. For more
information call: (612) 278-6311
www.mnbar.org/directories
www.mnbar.org
Books&Bytes
n Linda Hirshman’s Sisters
In Law: How Sandra
Day O'Connor And Ruth
Bader Ginsburg Went
To The Supreme Court
And Changed The World
tells the story of the intertwined lives of Sandra Day
O’Connor
and Ruth
Bader
Ginsburg, the
first and
second
women
to serve
as United
States
Supreme
Court justices. The relationship between O’Connor and
Ginsburg—Republican and
Democrat, Christian and Jew,
western rancher’s daughter
and Brooklyn girl—transcends party, religion, region,
and culture. Strengthened by
each other’s presence, these
groundbreaking judges have
transformed the Constitution
and America itself, making
it a more equal place for all
women. Published by HarperCollins: www.harpercollins.com
Wil Haygood. Published by
Knopf: knopfdoubleday.com
legal practice. *Order online
at: www.shopABA.org
n The DUI Directory is a
new 24/7 attorney directory
for all
criminal
defense
matters
that will
be placed
in the
county
jails
throughout the
state beginning in November
2015. It will also be placed
in the testing rooms at the
police departments and will
be given to people after they
have been read the Implied
Consent Advisory. The DUI
directory was created by Lexie
Stein, an active member of
the MSBA and a member of
the Criminal Law and New
Lawyers sections. Learn more
at: www.duidirectory.net
n In Point Taken: How to
Write Like the World's
Best Judges, author Ross
Guberman delves into the
work of the best judicial
opinion writers and offers a
step-by-step method based
on practical and provocative
examples. Featuring numerous cases and opinions from
35 prolific judges — from
Learned
Hand to
Antonin
Scalia –
the book
explores
what it
takes
to turn
"great
judicial
writing" into "great
writing." The book offers
strategies for pruning clutter,
adding background, emphasizing key points, adopting a
narrative voice, and guiding
the reader through visual
cues. Published by the
Oxford University Press:
global.oup.com
n Be a
Better
Lawyer:
A Short
Guide to
a Long
n Showdown: Thurgood Career,
by Eleanor
Marshall and the Supreme Court Nomination Southers,
is
That Changed America
details the designed
life and ca- to help lawyers assess their
reer of one legal careers and pinpoint
of the most what they might want to
change. It will then assist in
transformative le- determining how to make
gal minds those changes. This is a
of the past self-help book, but it is a
100 years. different kind of self-help
Thurgood book. The exercises in the
first portion of this book are
Marshall
designed to help lawyers
brought
down the separate-but-equal make an in-depth assessment
of their current standing.
doctrine, leading to the
Looking toward the future,
integration of schools, and
the book surveys professional
not only fought for human
rights and human dignity but realities such as changes in
also made them impossible to the technological landscape,
deny in the courts and in the ups and downs in the stock
streets. Written by the award- market, and the impact new
winning author of The Butler, legislation can have on your
n More Than We Have
Ever Known about
Discipline and Discharge
in Labor Arbitration: An
Empirical Study, by University of Minnesota Professors Laura J. Cooper, Mario
F. Bognanno and Stephen
F. Befort, is based on the
comprehensive analysis
of a uniquely
large data set
of published
and unpublished labor
arbitration
decisions in
discharge
and discipline cases.
Its authors coded more than
2,000 decisions issued over a
24-year period. They provide
a rich array of data describ-
ing multiple aspects of each
decision's arbitrator, grievant,
and other case characteristics. The book's overarching
focus is the arbitrator's decision — who wins, who loses
and why — including unique
comparisons of outcomes in
discharge, as compared to discipline cases, and in private,
as compared to public, sector
cases. The book also reports
on the relationship between
the type of employee offense
and outcomes, and the effect
of attorney representation on
case outcomes. Published by
Vandeplas Publishing: www.
vandeplaspublishing.com
n What is a “mobile law
practice?” It’s being is available when
your clients
need you. It’s
structuring
your practice
to have the
flexibility to
go to your
clients, to
work from
your home
office or to move to
different offices. When you
set up your law office on a
laptop, you have control over
your hours, your overhead,
and your life. Law Office
on a Laptop: How to Set
Up Your Own Successful Mobile Law Practice
is a step-by-step interactive
resource manual for starting
up and running a successful mobile law practice.
With sample forms and
letters, helpful links,
website information and
checklists, authors Catherine Hodder and Kelly
Sturmthal have mapped
out the things an attorney
needs to establish a mobile
practice. Learn more at:
www.GoSoloForSuccess.com
* Use code PAB6EMNB for
the MSBA 15% discount on
orders from ABA Books.
www.mnbar.org
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defense against claims.
Our Lawyers Professional Liability
Program is a proven leader in
national specialty insurance.
Other law firm coverages include:
Your defense
is our focus.
• Lawyer’s Malpractice
• Cyber Liability
• Umbrella Coverage
• Surety Bonds
• Copyright, Patent & Trademarks
“Our business is to underwrite
and bind PL policies for lawyers in
partnership with prime carriers.”
– Andrew Biggio, CEO
First Indemnity
Lawyers
Professional
Liability
See Video
email: abiggio@firstindemnity.net
fax: 781.595.2279
www.FirstIndemnity.net 800.982.1151 Ext. 18
Boston • New York • Tampa • Chicago • Dallas • Los Angeles • Philadelphia
Ancona Title couldn’t be prouder!
Tim Thrush
Manager, Commercial Department
• Certified Real Property Law Specialist
• 30 Plus Years of Title Experience
651-209-1144
www.AnconaTitle.com

October 2015 - Bench and Bar of Minnesota

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