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When Rules Get in the Way of Reason One Judge’S View of Legislative Interpretation the Honorable the Honorable the Honorable Roy Altman Catherine D

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When Rules Get in the Way of Reason One Judge’S View of Legislative Interpretation the Honorable the Honorable the Honorable Roy Altman Catherine D OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVI NUMBER X NOVEMBER 2019 www.mnbar.org Call recording and the law Legal aid funding Understanding pet custody law When Rules Get in the Way of Reason One judge’s view of legislative interpretation The Honorable The Honorable The Honorable Roy Altman Catherine D. Perry Robin L. Rosenberg United States District United States District United States District Court, Southern District Court, Eastern District Court, Southern District of Florida of Missouri of Florida The Honorable The Honorable The Honorable Robert M. Dow Dan A. Polster Amy J. St. Eve United States District United States District United States Circuit Court, Northern District Court, Northern District Court Judge for the of Illinois of Ohio Seventh Circuit The Honorable The Honorable The Honorable Eldon E. Fallon David Proctor William L. Thomas United States District United States District United States Circuit Court, Eastern District Court, Northern District Judge, 11th Judicial of Louisiana of Alabama Circuit of Florida The Honorable Darrin P. Gayles United States District Court, Southern District of Florida THANK YOU TO OUR SPONSORS PLATINUM ,?- �07.YAK • T�O Pl� liHARKE AW TIIIOC }!(>�'JO Podhu:rs r:s ·ck. l GOLD � RUSTKINSl::LLA BRONZE t,; KCC VERITEXT Unequal Pay, Sexual Harassment, Wage Theft, 401k Retirement Self-Dealing, Social Injustice Your Rights, Our Team EMPLOYEE & CONSUMER RIGHTS MINNEAPOLIS IDS Center, 80 South 8th Street, Suite 4600, Minneapolis, MN 55402 (612) 256-3200 SAN FRANCISCO 235 Montgomery Street, Suite 810, San Francisco, CA 94104 (415) 277-7235 www.NKA.com OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVI NUMBER X NOVEMBER 2019 www.mnbar.org 4 President’s Page Our Vote, Our Voice, ON THE COVER Our Choice 24 BY TOM NELSON 7 MSBA in Action Welcome new lawyers! 8 Professional Responsibility Withdrawing as counsel (ethically) BY SUSAN HUMISTON WHEN RULES GET IN 10 Law & Technology THE WAY OF REASON Proportionality and digital evidence One judge’s view of legislative interpretation BY MARK LAntERMAN BY JUSTICE 12 New Lawyers PAUL THISSEN Call recording and the law BY RACHEL D. ZAIGER 14 Colleague Corner 16 LEGAL AID FUNDING Infographic: Where does Legal Aid funding come from? BY SHERRI KNUTH & DREW SCHAFFER 18 The Extra Mile: Seven Minnesota attorneys who donate to legal aid causes ‘I wanted to help people like my mother’ 20 All Parks Alliance for Change fights the good fight: MEET NYSHA CORNELIUS Meet one of the 2019 Minnesota State Bar Foundation grant recipients 31 Notes & Trends BY ATHENA HOLLINS AND AMANDA IDINGE Landmarks in the law 43 People & Practice Member announcements 44 Opportunity Market 22 Classified ads UNDERSTANDING 48 Books & Bytes PET CUSTODY LAW New in legal publishing Trends in animal law jurisprudence BY BARBARA J. GISLASON 2 Bench&Bar of Minnesota s November 2019 www.mnbar.org Official publication of the Minnesota State Bar Association www.mnbar.org | (800) 882-6722 Editor Steve Perry [email protected] Design & Production Jennifer Wallace Advertising Sales Pierre Production & Promotions, Inc. (763) 497-1778 MSBA Executive Council President Tom Nelson President-elect Dyan J. Ebert Treasurer Jennifer A. Thompson Secretary Paul D. Peterson New Lawyers Chair Blair Harrington Chief Executive Officer Cheryl Dalby Publications Committee Chairperson Carol K. Lee False Claims Act Experience And Focus Steven P. Aggergaard Emily K. Cooper Holly A. Fistler Wood Foster June Hoidal Bethany Hurd Henry D. Long Malcolm P.W. Whynott © 2019 Minnesota State Bar Association Gerald Robinson Bench & Bar of Minnesota (ISSN 02761505) is published Monthly, Susan Coler except Bi-Monthly May/June by the Minnesota State Bar Lon Leavitt Nathaniel Smith Association, 600 Nicollet Mall STE 380, Minneapolis, MN 55402- 1641. Periodicals postage paid at St Paul, MN and additional mailing offices. Postmaster: Send address changes to Bench & Bar of Minnesota, 600 Nicollet Mall STE 380, Minneapolis, MN A Formidable Team at the Table 55402-1641. Subscription price: $25.00 for members which is Former Assistant United States Attorney Lon Leavitt recently joined included in dues. Nonmembers $35.00 per year. Some back issues Halunen Law’s False Claims Act practice group, adding a valued government available at $5.00 each. Editorial Policy: The opinions expressed perspective to our collective expertise. Dedicated to representing individuals in Bench & Bar are those of the authors and do not necessarily confronting fraud against the government, we’re passionate about navigating reflect association policy or editorial concurrence. Publication of the complexities of qui tam/whistleblower cases. advertisements does not constitute an endorsement. The editors reserve the right to accept or reject prospective advertisements in accordance with their editorial judgment. LOCAL ROOTS. NATIONAL REPUTATION. WE’D LIKE TO HEAR FROM YOU: To query potential articles for Bench & Bar, or to pass along your comments on matters related 612.605.4098 | HALUNENLAW.COM to the profession, the MSBA, or this magazine, write to editor Steve Perry at [email protected] or at the postal address above. www.mnbar.org November 2019 s Bench&Bar of Minnesota 3 President’sPage | BY TOM NELSON Our Vote, Our Voice, Our Choice year from now, we will have Voting was the right of white, likely All of which reflects a strong and hope- the opportunity, and the propertied, men. ful trend, worthy of our nation’s founding obligation, to cast our vote in After the Civil War, as part of the and core character. Chief Justice Roberts the 2020 elections. They will “Second Founding,” our nation ended has said that “things have changed dra- Ano doubt be hard fought, perhaps even slavery (the 13th Amendment), con- matically,” and that “our Nation has made seriously wrought. During this coming firmed citizenship and its accompanying great strides” since the 1965 Voting Rights year, we will also mark the 100th year rights for those born in the United States Act, in particular. But Justice Ginsburg’s since women won the right to vote. or “naturalized” (the 14th Amendment), cautionary note is also important; we must Seems like a good time to punch the and granted to citizens the right to vote be alert to the risk of “throwing away your “pause button” and reflect on this right (the 15th Amendment). They were umbrella in a rainstorm because you are and responsibility. majestic steps, but they were also incom- not getting wet.” Our fragile right to vote Voting is a non-partisan issue. Presi- plete. Still no right to vote for women, or is still vulnerable to subtle, sophisticated, dent Reagan called it “the crown jewel for others then deemed “the other.” “second generation” barriers: redistricting, of American liberties.” President Ford Unfortunately, being “given” those gerrymandering, polling place relocations praised the vote as “the very foundation rights did not secure the ability to exer- or scheduling manipulations, intricate or of our American system.” LBJ described cise them. The concerted effort to de- unrealistic Voter ID or other registration it as “the most powerful instrument ever construct Reconstruction came to life. or “residency” requirements, the oc- devised by man [no doubt, with women] Lynchings (including the June 15, 1920 casional purging of voter rolls, hackable for breaking down injustice;” and Dr. lynching of three young men in our own voting machines, or even printing too-few King called it “Civil Right No. 1.” Our Duluth) were not only vicious murders ballots. It is also vulnerable to anonymous, Supreme Court has reminded us that our but terroristic messages. Basically: “Don’t highly-funded, and clever injections right to vote is not only “fundamental” you dare exercise your rights.” Poll taxes of chaos, whether by foreign nations, but “precious,” and “the essence of a and literacy tests abounded, with seem- tricksters, or carefully veiled operatives, democratic society,” the undermining of ingly limitless ingenuity: “How many whose motives range from mischievous to which would render “illusory” even the bubbles in that bar of soap?” and “How malignant. Vigilance is vital. most basic of the rest of our rights. It is many drops in that bucket of water?” One more thought; and yes, it’s con- also a fragile right, indeed. Still, our nation persisted. During the nected. This month we mark Veteran’s In the beginning, the Founders were 1890s, the secret ballot took hold. By Day, first called Armistice Day (the 11th a bit squeamish about the vote. They 1913, the 17th Amendment required the hour of the 11th day of the 11th month, didn’t contemplate (or trust) the direct direct election of U.S. Senators. By 1920, 101 years ago now). election of the president and other of- women won the right to vote, via the Sometimes we catch the eye of a uni- ficials. Instead, they created the Electoral 19th Amendment. In 1924, the Indian formed service member, or a vet proudly College—creating Citizenship Act was passed, including sporting a patriotic cap, including many the possibility the right to vote for Native Americans. lawyers amongst us, and say: “Thank that the Elec- In 1943, the Magnuson Act permitted you for your service.” Do you wonder toral College Chinese immigrants to become natural- what they wonder about, as they nod might trump the ized citizens, and thus to vote. And then graciously? popular vote the ‘60s and ‘70s came along—with the They served to protect and pre- (as happened in 23rd Amendment giving D.C. citizens serve our rights. The least we can do is 1876 and 2016, the right to vote in presidential elec- exercise those rights. If we don’t exercise not to mention tions; the 24th Amendment eliminat- the right to vote, the heartbeat of our whatever it is ing poll taxes; the Voting Rights Act democracy will wither.
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