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

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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 Proportionality and THE WAY OF REASON 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- noA 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. If we don’t guard that happened prohibiting literacy tests (and, it seemed, against its diminishment, the lamp of our TOM NELSON is a in 2000). Na- securing the right to vote for all, for all liberty, and the rule of law itself, will dim partner at Stinson LLP tive Americans time, as long as it was allowed to renew); and then fade. So, of course: Vote. But (formerly Leonard, couldn’t vote; and the 26th Amendment, granting the do more. Keep your eyes and ears open, Street and Deinard). nor could right to vote to those who were 18 years and your antennae up, to detect efforts He is a past president enslaved people; old (being old enough to go to war called to suppress the vote. Shine a light on of the Hennepin County nor could for the right to vote, including the right those efforts. Do something to protect Bar Association. women, whether to vote for or against those who would and strengthen our sacred right to vote. enslaved or free. send them to war in the first place). On that we should be united. s

4 Bench&Bar of Minnesota s November 2019 www.mnbar.org

ONE Profession

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One Day. Upcoming 2020 One Profession Events

Coming Your Way. DULUTH 6TH JUDICIAL DISTRICT January 23, 2020 The MSBA’s One Profession events bring together judges ROCHESTER 3RD JUDICIAL DISTRICT and lawyers for one day each year to discuss the issues January 31, 2020 and opportuniti es facing the legal profession around Minnesota. These programs are open to all lawyers— WILLMAR 8TH JUDICIAL DISTRICT March 13, 2020 MSBA members and non-members alike. BEMIDJI 9TH JUDICIAL DISTRICT Join your colleagues for presentati ons, panel discussions, March 27, 2020 and conversati ons with att orney thought leaders. Each One Profession event is unique—tailored to reﬂ ect the WADENA 7TH JUDICIAL DISTRICT May 8, 2020 interests and concerns of its regional consti tuents. COON RAPIDS 10TH JUDICIAL DISTRICT July 9, 2020

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Watch Chief Justi ce Gildea’s video at www.mnbar.org/one-profession takes all of us, no matt er what part of Minnesota you call home.” – Chief Justi ce Lorie Skjerven Gildea, MN Supreme Court

1119 One Profession Ad.indd 1 10/22/19 8:42 AM STATEMENT OF OWNERSHIP: U.S. Postal Service MSBAinAction Statement of Ownership, Management, and Circulation. 1. Publication Title: Bench & Bar of Minnesota. 2. Publica- tion No. 0276-1505. 3. Filing date: October 1, 2018. 4. Issue Frequency: Monthly except May/June combined. 5. Number of Issues Published Annually: 11. 6. Annual Subscription Price: Members of the Minnesota State Bar Association — $25; Nonmembers — $35. 7. Complete Mailing Address of Known Office of Publication: 600 Nicollet Mall, #380, Min- neapolis, Hennepin, MN 55402-1641. Contact Person: Steve Perry. Tel.: (612) 278-6333 8. Complete Mailing Address of Headquarters or General Business Office of the Publisher: (Same as Above). 9. Full Names and Complete Mailing Ad- dress of Publisher, Editor, and Managing Editor: Publisher, Minnesota State Bar Association, 600 Nicollet Mall, #380, Minneapolis, MN 55402-1641. Editor, Steve Perry, 600 Nicol- let Mall, #380, Minneapolis, MN 55402-1641. Managing Editor, (Same as Editor). 10. Owner: Minnesota State Bar Association, 600 Nicollet Mall, #380, Minneapolis, MN 55402-1641. 11. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages or Other Securities: None. 12. Tax Status (for completion by nonprofit organizations authorized to mail at nonprofit rates): Has Not Changed During Preceding 12 Months. 13. Publication Name: Bench & Bar of Minnesota. 14. Issue Date for Circulation Data: September 2019. 15. Extent and Nature of Circulation. a. Total Number of Copies (Net press run). Average number of copies each issue during preceding 12 months: 14,833. Number of copies of single issue published nearest to filing date: 15,422. b. Paid Circulation: (1) Mailed Outside-County Paid Subscriptions Stated on Form 3541. Average number copies each issue during preceding 12 months: 14,651. Num- ber of copies of single issue published nearest to filing date: 15,022. (2) Mailed In-County Paid Subscriptions Stated on PS 3541. Average number copies each issue during preceding 12 months: 0. Number copies of single issue published nearest to filing date: 0. (3) Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside Welcome new lawyers! USPS. Average number copies each issue during preceding 12 months: 0. Number copies of single issue published near- n October 25 MSBA officials and staff were on hand to welcome 401 new est to filing date: 0. (4) Paid Distribution by Other Classes of Minnesota lawyers to the profession during admission ceremonies at the Mail through the USPS. Average number copies each issue during preceding 12 months: 0. Number of copies of single OState Capitol sponsored by the Minnesota Supreme Court and the MSBA. issue published nearest to filing date: 0. c. Total Paid Distri- MSBA President Tom Nelson spoke at the event, and we have more photos online— bution. Average number copies each issue during preceding visit Bench & Bar Online at www.mnbar.org/bench-bar to have a look. 12 months: 14,651. Number copies of single issue published nearest to filing date: 15,022. d. Free Distribution by Mail (Samples, complimentary, and other free) (1) Outside-County as Stated on Form 3541. Average number copies each issue during preceding 12 months: 0. Number copies of single issue published nearest to filing date: 0. (2) In-County as Clarification Stated on Form 3541. Average number copies each issue during preceding 12 months: 0. Number copies of single issue ollowing the publication of Janel Dressen’s article on the Lund v. Lund share- published nearest to filing date: 0. (3) Other Classes Mailed holder litigation (“Don’t Be the Next Lunds & Byerlys,” May/June 2019), Steve Through the USPS. Average number copies each issue during Wells and Jaime Stilson (the Dorsey & Whitney attorneys who represented the preceding 12 months: 0. Number copies of single issue pub- F lished nearest to filing date: 0. (4) Free Distribution Outside Lund defendants) contacted Bench & Bar to request a clarification regarding certain the Mail (Carriers or other means). Average number copies claims made by Dressen in the article, found in the following passage: “One of the each issue during preceding 12 months: 157. Number copies most fascinating, yet tragic, facts about the Lunds case is that the parties did not of single issue published nearest to filing date: 350. e. Total Free Distribution. Average number copies each issue during engage in a single settlement discussion after Kim commenced litigation. In business preceding 12 months: 157. Number copies of single issue litigation, that is virtually unheard of. However, because Kim Lund was request- published nearest to filing date: 350. f. Total Distribution. Av- ing liquidity and defendants were solely focused on keeping Kim Lund captive as a erage number copies each issue during preceding 12 months: shareholder, the parties were at a standstill.” Based on follow-up discussions about the 14,808. Actual number copies of single issue published nearest to filing date: 15,372. g. Copies not Distributed. Average article, Bench & Bar wishes to clarify the following points. First, information provided number copies each issue during preceding 12 months: 25. to Bench & Bar by Wells and Stilson indicates that the defendants did convey a pre- Number of copies of single issue published nearest to fil- viously rejected settlement offer following the commencement of the litigation, and ing date: 50. h. Total. Average number copies each issue offered to continue negotiating with respect to the settlement amount. Second, with during preceding 12 months: 14,833. Number of copies of single issue published nearest to filing date: 15,422. Percent regard to Dressen’s claim that the defendants sought to keep “Kim Lund captive as a Paid. Average number copies each issue during preceding 12 shareholder,” Wells and Stilson point out that the Hennepin County District Court months: 99%. Number of copies of single issue published wrote in its buyout Order that defendant “Tres [Lund] has done nothing to ‘lock Kim nearest to filing date: 99%. 16. This statement of ownership in as a Lunds shareholder’,” though the Court of Appeals noted in its opinion that will be printed in the November 2019 issue of this publication. 17. Signature and Title of Editor, Publisher, Business defendants’ position throughout the litigation “has been that Kim [Lund] cannot liq- Manager, or Owner: /s/ Steve Perry, Editor. Date: October 1, uidate her interests because her siblings do not consent.” Third, the MSBA Probate 2019. I certify that all information furnished on this form is and Trust Law Section filed an amicus brief in support of the Lund defendants with true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits the Court of Appeals, relating to one issue in the appeal involving payment of at- material or information requested on the form may be sub- torneys’ fees and costs for two defendants who served as trustees. This was a section- ject to criminal sanctions (including fines and imprisonment) only position that was not adopted by the MSBA Assembly. and/or civil sanctions (including civil penalties). www.mnbar.org November 2019 s Bench&Bar of Minnesota 7 ProfessionalResponsibility | BY SUSAN HUMISTON

Withdrawing as counsel (ethically)

ow to ethically withdraw as well as several circumstances where Where to start as counsel is the third most withdrawal is permissible prior to com- If you are representing a client in a frequently asked question on pleting the representation. Let’s start litigated matter, the first consideration is our advisory opinion/ethics with when you must withdraw. There are the procedural rules governing with- hotline.H Annually, hundreds of Minne- three scenarios: (1) the representation drawal of the tribunal in the matter. I sota attorneys seek advice on whether will result in a violation of the Rules of cannot stress this enough. Even in my and how they may terminate a particular Professional Conduct or other law; (2) short time as director, I have spoken lawyer-client relationship. This Office the lawyer’s physical or mental condition on the ethics line to scores of attorneys has written several columns on the sub- materially impairs the lawyer’s ability to who are not familiar with the procedural ject,1 but the topic’s importance makes represent the client; or (3) the lawyer requirements of the court before which it worth revisiting periodically given the is discharged.5 Each is generally self- the relevant matter is pending. As Rule care required when the lawyer-client explanatory. Indeed, while it should go 1.16(c), MRPC provides, “A lawyer must relationship ends prior to its planned without saying that you must withdraw comply with the applicable law requir- conclusion. when you have been discharged, more ing notice to or permission of a tribunal lawyers than you would think have been when terminating a representation.” Circumstances allowing disciplined for failing to do so. This is true even if withdrawal is ethical- withdrawal Beyond mandatory withdrawal, ly mandatory. And don’t forget that until “A lawyer should not accept rep- Rule 1.16(b) establishes a robust list you effectively withdraw, you are counsel resentation in a matter unless it can of reasons why a lawyer may permis- and owe your client compliance with be performed competently, promptly, sibly withdraw. A lawyer may withdraw all other ethical rules pending autho- without improper conflict of interest and without a specific reason if it can be rized withdrawal. While a listing of the to completion.”2 What “completion” accomplished without material adverse procedural rules governing withdrawal means will depend on the agreement effect on the interests of the client.6 are beyond the scope of this article, it of the parties and the type of matter Withdrawal is permissible if the client is typically true that each tribunal has involved. If court rules allow it, a lawyer persists in a course of action involving a general rule of practice or local rule may limit the scope of representation to the lawyer’s services that the lawyer governing the procedure and circum- specific, agreed-upon services—provided reasonably believes is criminal or fraudu- stances under which withdrawal may be the limitation is reasonable and the lent.7 (Note, however, that other rules accomplished.12 Please do not forget the client has provided informed consent.3 may make withdrawal in this circum- procedural rules relating to withdrawal Lawyers also must ethically commu- stance mandatory, because you cannot as you focus on the ethical rules. nicate the scope of the representation assist a client in conduct you know to be before or within criminal or fraudulent.8) Similarly, you What to say a reasonable time may withdraw if the client has used your If you are counsel of record in a of commencing services to perpetrate a crime or fraud, matter requiring a motion and order to representation, or if the client insists upon taking action effectuate withdrawal, what you may say preferably in writ- that you consider repugnant or with to support that motion is also guided by ing.4 Compliance which you have a fundamental disagree- the ethics rules. Rule 1.6, MRPC, pro- with the ethics ment.9 You may withdraw if the client tects confidential information relating to rules ensures that fails substantially to fulfill an obligation the representation. As I say whenever I both lawyer and to you regarding your services and has have the chance, our duty of confiden- SUSAN HUMISTON client are on the been given reasonable warning that you tiality is broader than simply protecting is the director of the same page regard- will withdraw unless the obligation is attorney-client privileged communica- Office of Lawyers ing the services to fulfilled. You may withdraw if the repre- tions; it covers “all information relating Professional be provided, and sentation will result in an unreasonable to the representation of a client” unless Responsibility and what completion financial burden on you, or your repre- an exception for disclosure exists. Such Client Security of the representa- sentation has been rendered unreason- a broad confidentiality obligation can Board. Prior to her tion will involve. ably difficult by the client.10 Finally, an make it difficult to provide sufficient appointment, Susan The ethics attorney may withdraw if “other good information to a court to establish good worked in-house rules contem- cause for withdrawal exists.”11 Given the cause, and there is no exception in Rule at a publicly traded plate numer- breadth of these provisions, the question 1.6(b) that allows disclosure of informa- company, and in ous situations is generally not whether a permissible tion specifically to effectuate withdrawal. private practice as a where continued basis for withdrawal exists, but rather Some exceptions can apply. For litigation attorney. representation whether timing and the applicable proce- example, the client may give informed 13 SUSAN.HUMISTON is impermissible dural rules will support withdrawal in a consent to any disclosures. Information @COURTS.STATE.MN.US and withdrawal particular case, irrespective of the ethical can also be disclosed if it is not protected is mandatory, basis for withdrawal. by the attorney-client privilege, the cli-

8 Bench&Bar of Minnesota s November 2019 www.mnbar.org ent has not requested the information be designed to protect even the most un- You be held inviolate, and the lawyer reason- deserving of clients. Because of the care ably believes the disclosure would not be that must be taken, I’m glad so many the Judge! embarrassing or likely detrimental to the lawyers take advantage of the ethics line client.14 This, however, might still be a to obtain advice when they are consider- small universe of information. ing termination of an attorney-client Beyond the foregoing, our advice is relationship. Please give us a call at generally that the lawyer must start with 651-296-3952 if you need assistance in general—and, of course, true—state- complying with your ethical duties when ments supporting withdrawal, such as ending a lawyer-client relationship. s that there has been a breakdown in the attorney-client relationship, or (as Notes reflected in the comments) professional 1 See, e.g., Martin A. Cole, “Withdrawing: Must considerations require termination of I? May I?,” Bench & Bar (November 2014); the relationship.15 Another potential Kenneth L. Jorgensen, “Ethical and Procedural disclosure exception is that “the lawyer Withdrawal Requirements, Minnesota Lawyer reasonably believes the disclosure is nec- (11/4/2002); Edward J. Cleary, “Withdrawing essary to comply with other law or court as Counsel, “ Bench & Bar (November 1999), order.”16 If you are ordered to do so, after all available at www.lprb.mncourts.gov/articles. JUDGES TRAINING communications with your client under 2 Rule 1.16, Minnesota Rules of Professional Rule 1.4, you can disclose such informa- Conduct (MRPC), Comment [1]. Friday, December 13 tion as reasonably necessary to comply 3 Rule 1.2(c), MRPC. 3:00 p.m. at the MSBA with such an order. I know this is gener- 4 Rule 1.5(b), MRPC. Offices in Minneapolis ally an unsatisfying answer, but the truth 5 Rule 1.16(a)(1)-(3), MRPC. is that competing interests present a real 6 Rule 1.16(b)(1), MRPC. 1.5 CLE credits applied for dilemma if your client will not authorize 7 Rule 1.16(b)(2), MRPC. disclosure of information. This is a line 8 Rule 1.2(d), MRPC; Rule 1.16(a)(1), MRPC. to walk carefully. 9 Rule 1.16(b)(3), MRPC; Rule 1.16(b)(4), MRPC. VOLUNTEERS NEEDED! What else to do 10 Rule 1.16(b)(5), MRPC; Rule 1.16(b)(6), Over 100 teams are In all circumstances, and whether MRPC. registered for the MSBA or not the matter is in litigation, there 11 Rule 1.16(b)(7), MRPC. are additional considerations set forth 12 See, e.g., Minn. Gen. R. Prac. 105 (2019) High School Mock Trial in Rule 1.16 that must be satisfied upon (“After a lawyer has appeared for a party in Program and volunteers termination of representation. The main any action, withdrawal will be effective only if are needed to judge the requirement is that upon termination, “a written notice of withdrawal is served on all regional trials that will lawyer shall take steps to the extent rea- parties who have appeared, or their lawyers if sonably practicable to protect the client’s represented by counsel, and is filed with the occur throughout the state interest.”17 The steps to take may vary court administrator if any other document beginning in January 2020. according to the facts of the representa- in the action has been filed. The notice of Each of the mock trials tion, but a non-exhaustive list includes: withdrawal shall include the address, email (1) giving reasonable notice to the cli- address, if known, and phone number where last two to three hours and ent; (2) allowing time for employment of the party can be served or notified of matters attorney volunteers are other counsel; (3) returning the client’s relating to the action. Withdrawal of counsel assigned in pairs to judge. file; and (4) refunding any advance pay- does not create any right to continuance of ment of fees or expenses that have not any scheduled trial or hearing.”); Minn. Gen. Volunteers are also needed been earned or incurred.18 Please keep R. Prac. 703 (2019) (“Once a lawyer has filed to coach teams. in mind your ethical obligation to take a certificate of representation [in a criminal steps to protect the client’s interest as case], that lawyer cannot withdraw from the well when you are disclosing confidential case until all proceedings have been com- information under an exception. Re- pleted, except upon written order of the court questing to do so in camera, under seal, pursuant to written motion, or upon written or ex parte—depending on the nature of substitution of counsel approved by the court To sign up or for more the information that may be disclosed— ex parte.”); D. Minn. LR 83.7 (2019) (allowing information contact: is often important to protect the client’s withdrawal with notice of substitution and Kim Basting at interest, and is a “reasonably practicable” only within proscribed timelines or upon mo- [email protected] step available to you. tion for good cause shown). 13 Rule 1.6(b)(1), MRPC. or (612) 278-6306 Conclusion 14 Rule 1.6(b)(2), MRPC. Withdrawal as counsel is generally 15 Rule 1.16, MRPC, Comment [3]. ethically available but requires thought- 16 Rule 1.6(b)(9), MRPC. Learn more at: ful consideration of timing and procedur- 17 Rule 1.16(d), MRPC. mnbar.org/mocktrial al requirements. I know that this can be 18 Id. frustrating for lawyers, but the rules are www.mnbar.org November 2019 s Bench&Bar of Minnesota 9 Law&Technology | BY MARK LANTERMAN

Proportionality and digital evidence

n 2015, amendments made to Federal Rule of Civil Procedure 26 affected issues of establishing proportionality during discovery. TheseI changes were made largely to counteract the increasing incidence of e-discovery fishing expeditions and their burden on discovery procedures. The rule states, “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”1 Proportionality is a major consideration during the course of discovery, as the court guards against costs to support a party’s claims of undue Discovery states, “In assessing whether overly expensive and/or burdensome burden. Many litigants are treating Rule a particular discovery request or productions in relation to what is at 26 as an excuse to object to any and requirement is unduly burdensome or stake in the case. In this article, I will every discovery request. It has become expensive, a court should consider the refer specifically to e-discovery and a useful tool to manipulate the course extent to which the claimed burden digital forensic productions. of discovery; furthermore, when “tech and expense grow out of the responding In keeping with the spirit of talk” is involved, it can often be difficult party’s own action or inaction.”2 protecting against expansive fishing to argue with an e-discovery vendor and Basically, the ease of conducting an expeditions, any get the facts. e-discovery investigation often depends opposing party In a recent case on which I was on the data storage practices of the must provide consulted, opposing counsel objected to client, who is therefore responsible evidence to restoring a backup tape that was relevant for ensuring that their proportionality demonstrate why to the major claims being argued. Their argument isn’t based on their own an e-discovery or objection centered on the purported mishandling of relevant evidence. digital forensic expense of the restoration; their e-dis- To help avoid the confusion and BS investigation covery vendor supported their propor- that can surround arguments about would be tionality argument with the claim that proportionality and e-discovery, the MARK LANTERMAN disproportionate restoration of this single tape would cost judicial authority to appoint special is CTO of Computer due to its cost. If $35 million! While I don’t know whether masters can be the most important Forensic Services. an estimate for this vendor ended up providing evidence factor in obtaining accurate, unbiased A former member work is provided for this estimate, I think it is safe to say information. In my experience, this of the U.S. Secret to the court, that a project of this type would not action can be the catalyst for parties Service Electronic an explanation come with such a hefty price tag. coming to terms with discovery Crimes Taskforce, of cost should To keep working relationships with protocols, as it tends to disable the Mark has 28 years be provided— clients, e-discovery vendors will often powerful and frequently mystifying “tech of security/forensic particularly if agree to provide inflated estimates and talk” of hired guns. s experience and the cost is steep. confusing explanations to the court. has testified in over Unfortunately, Improper collection and preservation 2,000 matters. He is I’ve encountered techniques can also contribute to Notes a member of the MN an increasing the cost, making the duty to preserve 1 https://www.law.cornell.edu/rules/frcp/rule_26 Lawyers Professional number of experts electronic evidence all the more critical. 2 https://thesedonaconference.org/sites/default/files/ Responsibility Board. who deliberately The Sedona Conference Commentary publications/155-168%20WG%20Proportional- inflate would-be on Proportionality in Electronic ity.pdf

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1119 practice management.indd 1 10/22/19 8:39 AM NewLawyers | BY RACHEL D. ZAIGER

iRecorded a private conversation: Call recording and the law

The federal wiretapping law is known as a “one-party consent” law. If a client is a party to the conversation, the client—and the client alone—can lawfully be the party to consent to the recording, without notifying the other party to the conversation. Minnesota’s wiretapping law tracks the federal statute and similarly requires one-party consent:

It is not unlawful under this chapter for a person not acting under color of law to intercept a wire, electronic, or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any n the days of landlines, before of such conversation—it is vital to brush criminal or tortious act in violation iPhone was a household name, prov- up on the applicable wiretapping law(s) of the constitution or laws of the ing what was said during a private before using any telephone call recording United States or of any state.2 phone conversation generally came for a case (especially since violations of downI to “he said, she said” and who wiretapping laws can result in hefty fines Nonetheless, the requisite amount of was ultimately more believable. Nowa- and prison time). consent is not uniform among the states. days, apps such as TapeACall Pro, Call At its most basic level, “wiretapping Indeed, some states, like Pennsylvania Recorder-Int Call, laws” are laws that govern telephone and California, require the consent of Call Recorder call recording. The U.S. government has all parties to the conversation prior to for iPhone, Call passed a federal wiretapping law, and recording. States with this requirement Recorder Lite, most states have passed similar laws as are known as “two-party consent” states and Call Recorder well. The federal law, “Title III of the or “all-party consent” states. Thus, when Unlimited enable Omnibus Crime Control and Safe Streets a private individual client in a one-party almost anyone Act,” provides the following as it relates consent state (like Minnesota) records with a smart- to the recording of private telephone con- a telephone conversation with another phone to record versations among private individuals: private individual in a two-party consent private telephone state (like Pennsylvania or California), RACHEL D. ZAIGER conversations It shall not be unlawful under this the situation warrants preemption, is an associate at with the mere chapter for a person not acting choice of law, ethical, and evidentiary Dady & Gardner, click of a but- under color of law to intercept a considerations. P.A., where ton. While this wire, oral, or electronic communi- The law concerning how and when she represents may sound like cation where such person is a party the federal wiretapping law comes into franchisees, dealers, an attractive op- to the communication or where play is pretty well settled. The federal and distributors tion—especially one of the parties to the commu- wiretapping law will only control if the throughout the when a client’s nication has given prior consent state’s wiretapping law is less strict than United States in case hinges on the to such interception unless such the federal law, or if the state does not their relationships contents of a pri- communication is intercepted for have a wiretapping law at all.3 The with franchisors, vate conversation, the purpose of committing any choice of law inquiry is not nearly as manufacturers, and and the client criminal or tortious act in violation well-settled. While some courts apply suppliers. just so happens to of the Constitution or laws of the the wiretapping law of the state where have a recording United States or of any State.1 the recording took place, other courts

12 Bench&Bar of Minnesota s November 2019 www.mnbar.org State wiretapping laws: Consent requirements

ONE-PARTY TWO-PARTY STATE CONSENT CONSENT STATUTE ALABAMA X Ala. Code §13A-11-30 ALASKA X Alaska Stat. §42.20.310 ARIZONA X Ariz. Rev. Stat. §13-3005 ARKANSAS X Ark. Code §5-60-120

CALIFORNIA X Cal. Penal Code §632

COLORADO X Colo. Rev. Stat. §18-9-303 Conn. Gen. Stat. §53a-187; Conn. Gen. Stat. §52-570d CONNECTICUT X X [Note: Criminal law requires one-party consent, civil law requires two-party consent] apply the wiretapping law of the state DELAWARE X Del. Code tit. 11, §2402 where the recorded individual was DISTRICT OF COLUMBIA X D.C. Code §23-542 4 located. Minnesota courts have not yet FLORIDA X Fla. Stat. §934.03 directly opined on this particular issue. Although this gray area may lend GEORGIA X Ga. Code §16-11-66 itself to colorful and novel arguments, HAWAII X Haw. Rev. Stat. §803-42 the risk of subjecting the client to poten- IDAHO X Idaho Code §18-6702 tial criminal liability should be weighed ILLINOIS X 720 Ill Comp. Stat. 5/14-2 against the desire to win the client’s INDIANA X Ind. Code §35-31.5-2-176 current case by introducing a recorded IOWA X Iowa Code §808B.1 telephone conversation. A conversation KANSAS X Kan. Stat. Ann. §21-6101 can almost always be introduced through KENTUCKY X Ky. Rev. Stat. Ann. §526.010 an evidentiary vehicle other than an exact recording—one that poses no risk LOUISIANA X La. Rev. Stat. Ann. §15:1303 of criminal liability. MAINE X Me. Stat. tit. 15, §709 Amidst the uncertainty, a couple of MARYLAND X Md. Code Ann., Cts. & Jud. Proc. §10-402 things are clear. First, telephone call MASSACHUSETTS X Mass. Gen. Laws ch. 272, §99 recording has become more widespread Mich. Comp. Laws § 750.539c [Note: The Michigan Court of Appeals has interpreted the statute to only require one-party and generally accepted in society over MICHIGAN X consent if you are a party to the conversation. See Sullivan v. the past few years, with some individuals Gray, 324 N.W.2d 58 (Mich. Ct. App. 1982)] even expecting all their conversations MINNESOTA X Minn. Stat. §626A.02 to be recorded. Second, violations of MISSISSIPPI X Miss. Code Ann. §41-29-531 wiretapping laws have hefty penalties, MISSOURI X Mo. Rev. Stat. §542.402 so it is important that a thorough MONTANA X Mont. Code Ann. §45-8-213 analysis of preemption, choice of law, NEBRASKA X Neb. Rev. Stat. §86-290 ethical, and sometimes evidentiary Nev. Rev. Stat. §200.620 [Note: The Nevada Supreme Court issues be considered before using a NEVADA X held that all-parties must consent to telephone call recording. recorded telephone conversation for a See Lane v. Allstate Ins. Co., 969 P.2d 938 (Nev. 1998)] client’s case. Remember, even though a NEW HAMPSHIRE X N.H. Rev. Stat. Ann. §570-A:2 recording may win the client’s case, it NEW JERSEY X N.J. Stat. Ann. §2A:156A-4 may also subject the client to criminal NEW MEXICO X N.M. Stat. Ann. §30-12-1 liability. Finally, the majority of state NEW YORK X N.Y. Penal Laws §§250.00 wiretapping laws only require one-party consent (see table), so more likely NORTH CAROLINA X N.C. Gen. Stat. §15A-287 than not, a private individual client NORTH DAKOTA X N.D. Cent. Code §12.1-15-02 can lawfully surreptitiously record a OHIO X Ohio Rev. Code Ann. §2933.52 telephone conversation so long as that OKLAHOMA X Okla. Stat. tit. 13, §176.4 individual is a party to the conversation. OREGON X Or. Rev. Stat. Ann. §165.540 When in doubt, though, the best PENNSYLVANIA X 18 Pa. Cons. Stat. §5704 practice is to obtain consent of all parties RHODE ISLAND X R.I. Gen. Laws §11-35-21 to a telephone conversation prior to SOUTH CAROLINA X S.C. Code Ann. §17-30-30 recording. That way, the client will not be in any danger of criminal liability. s SOUTH DAKOTA X S.D. Codified Laws §23A-35A-20 TENNESSEE X Tenn. Code Ann. §39-13-601 Notes TEXAS X Tex. Penal Code Ann. §16.02 1 18 U.S.C. §2511, subd. 2(d). UTAH X Utah Code Ann. §77-23a-4 2 Minn. Stat. §626A.02, subd. 2(d). VERMONT No statute enacted 3 See, e.g., Roberts v. Americable Int’l Inc., 883 F. VIRGINIA X Va. Code Ann. §19.2-62 Supp. 499 (E.D. Cal. 1995). WASHINGTON X Wash. Rev. Code §9.73.030 4 Compare Broughal v. First Wachovia Corp., 14 WEST VIRGINIA X W. Va. Code §62-1D-3 Pa. D. & C. 4th 525 (Pa. Com. Pl. 1992), with Kearney v. Salomon Smith Barney, Inc., 137 P.3d WISCONSIN X Wis. Stat. Ann. §968.31 914 (Cal. 2006). WYOMING X Wyo. Stat. Ann. §7-3-702 www.mnbar.org November 2019 s Bench&Bar of Minnesota 13 ColleagueCorner | MEET NYSHA CORNELIUS

‘I wanted to help people like my mother’

Why did you go to Tell us a little about your volunteer work law school? through VLN and others. I’ve always admired my Volunteering with the VLN has been mother for her strength and the most rewarding experience for me. I resilience. She taught me began working with the organization as that education is the one soon as I became a licensed attorney in thing that can never be taken 2013. I started by giving phone advice for away from you. I was about two hours every week and then expanded 10 years old and I remember to doing in-person consultations at Park sitting in the car with my Avenue Church every month. To this mom after a difficult parenting day, I continue my volunteer work with time exchange and asking her the VLN and take on full representation what lawyers do and why she pro bono cases as often as my schedule needed one. Growing up I had allows. witnessed so much pain and Last March I had an incredibly eye- suffering, and in that moment, opening experience volunteering for a I couldn’t comprehend why week at the southern border in Tijuana, my mom was not getting Mexico, through an organization called the legal help she needed. I Al Otro Lado. I would be happy to share decided then and there that my experience in depth with anyone who I wanted to help people like wants to know more. my mother. Going into law This work is very important to me school, I thought that meant because I can relate to many of the adver- practicing in the area of family sities that underrepresented individuals law or child advocacy, but face and my volunteer work allows me I quickly realized it meant to provide legal services to those who becoming an immigration attorney because that was NYSHA CORNELIUS may not have otherwise received legal the moment I realized that the bigger problem was my places a special focus assistance. mother’s misunderstanding of her rights as an immigrant. on helping clients facing deportation and How is bar association membership use- You have an immigration-focused practice. How has it removal—immigration ful to you in your career? changed over the course of the immigration crackdown of trials, deportation The most valuable aspect of my mem- the past few years? appeals, and other bership is the ability to have a leader- It has kept me on my toes. Almost every day, there is a complex immigration ship role in the Immigration Section. I new court ruling, legal memo, or practice advisory that is matters. Her work in currently hold the position of vice chair, issued. In the past I didn’t worry as much about my client immigration law also and through my position I have the op- touches heavily on having multiple forms of relief. Now I am always looking the areas of family portunity to get to know other attorneys, for plan B and plan C in case immigration policy changes and criminal law. She not only in my practice area, but in other overnight, which it often does. The drastic changes in proudly defends the practice areas as well. immigration policy in the last few years has forced many rights of individuals in attorneys, including myself, to be on defense at all times. It all three practice areas. What do you like to do when you’re not constantly feels like we are shooting at a moving target. Nysha’s experience has working? I have spent a lot more time in recent years educating enabled her to provide I love new experiences, whether it is our clients and the community about immigrants’ rights powerful legal guidance checking out a new brewery, restaurant, and how policy changes may affect them. I have to explain in and out of the or traveling somewhere I haven’t been that nothing is guaranteed, and the process takes years. courtroom. In addition before. For example, I am going to Tokyo, For those who don’t practice immigration law, it comes as a to her employment at Japan in November with my husband and shock that we have merits hearings set for the end of 2021 Paschal Nwokocha & in January my office is taking a trip to on judges’ dockets who have yet to appear at the bench. Chukwu Law Office, she Oaxaca, Mexico. Most of my weekends volunteers and works pro Additionally, as immigration attorneys, we are exposed bono with the Volunteer aren’t as extravagant and are usually to so much trauma. I can’t put into words how emotionally Lawyers Network (VLN) spent at dog-friendly breweries/events challenging it is to explain to someone, after hearing their of Minnesota. She was with our dog, Lady Bird, or at home with traumatic experience, that there is no easy legal fix. recognized as VLN’s 2019 our cat, Lexi. s Volunteer of the Year. 14 Bench&Bar of Minnesota s November 2019 [email protected] www.mnbar.org Did you know? To better serve this segment, the MSBA added basic estate planning to its document assembly 60% of U.S. adults don’t product, mndocs. have a will or living trust.

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THE cloud-based, ecommerce marketplace for automated legal document creation WHERE DOES LEGAL AID FUNDING COME FROM?

SHERRI KNUTH, MSBA access to justice director. [email protected] DREW SCHAFFER, Mid-Minnesota Legal Aid executive director. [email protected]

31% 25% 16% 9%

LEGISLATURE FEDERAL FOUNDATIONS & OTHER STATE CORPORATIONS OR LOCAL 85% of the state appropriation The Legal Services Corporation GOVERNMENT is distributed to six civil legal (LSC) provides grants to civil Civil legal aid programs aid programs that collectively legal aid organizations across receive funding for special provide legal representation the United States, including projects and general Some Minnesota state throughout the entire state $4.7 million to five Minne- operations from foundations agencies provide funding based on the geographical sota civil legal aid providers. and corporations that value for legal aid projects distribution of people living Although the president wants the impact civil legal aid has related to their mission in poverty in Minnesota’s 87 to eliminate LSC funding com- in reducing poverty, stabilizing and programs. Tribal counties and tribal lands. The pletely, bipartisan congressio- families, and ensuring access governments, county and remaining 15% consists of nal support has led to modest to justice for vulnerable city governments also discretionary grants focused increases in funding since 2017. Minnesotans. But as United provide some financial on direct client service. In Civil legal aid organizations Way—traditionally a major resources, although the 2019 legislative session, also receive support through funding source—adapts to these resources vary statewide funding of civil legal federal programs focused on new trends in philanthropic significantly among civil aid increased by $1 million assistance to veterans, older giving, its funding of civil legal legal aid organizations per year for Fiscal Years 2020 Americans, people with dis- aid has declined dramatically. across the state. and 2021, a 7.29% increase abilities, and victims of crimes, Civil legal aid programs have over FY 2018-19. Even with the including domestic violence. not been able to generate new increase, inflation-adjusted In Minnesota, civil legal aid revenue from other sources funding for civil legal services funding through these federal to make up the United Way remains lower than it was in programs is more than twice support they have lost over FY 2008-09. that received through LSC. the last decade.

* AN ADDITIONAL 4% OF LEAGAL AID FUNDING COMES FROM SOURCES DESIGNATED ONLY “OTHER”

16 Bench&Bar of Minnesota s November 2019 www.mnbar.org LEGAL AID FUNDING

“The legal community can play a strong role in leveling the playing field for Minnesotans needing legal help. I encourage all members of the legal community to join me in supporting civil legal aid statewide.”

– DYAN EBERT, MSBA PRESIDENT-ELECT

called a legal aid attorney who lars from multiple sources by had previously helped her. applying for grants, testifying The attorney filed for an order at the Legislature, coordinating for protection, and the judge with county boards, collaborat- prohibited Katrina’s father ing with the Judicial Branch from contacting her for two to streamline infrastructure, years, giving her mother and and reaching out to the legal legal aid staff time to get a new community, the shortfall of custody order. “The lawyers investment in civil legal aid were such a blessing,” Katrina’s prevents us from achieving the mother said. “Without them, foundational American promise none of this would ever have of equal justice for all. You and 8% 7% gone through.” I can help change that.

Legal aid funding is also a “As lawyers, we understand the good investment. The results importance of fairness in the of a recently completed Min- justice system,” says Dyan Eb- MN JUDICIAL INDIVIDUALS nesota evaluation shows that ert, MSBA president-elect and & FIRMS “for people experiencing pov- past board member of the Min- BRANCH erty, dealing with legal issues nesota State Bar Foundation. effectively can mean the dif- “The legal community can play Funding derives from As lawyers, we know that ference between a downward a strong role in leveling the IOLTA revenue—which is equal justice under the law is a spiral into deeper poverty and playing field for Minnesotans allocated to civil legal aid right, not a privilege. Almost a a pathway to a better life.”2 In needing legal help. I encourage grants—and a portion of quarter of Minnesota’s popula- fact, for every $1 invested in all members of the legal com- the lawyer registration fee. tion lives in poverty1 and is Legal Aid in our state, $3.94 munity to join me in supporting IOLTA revenue dropped unable to afford legal help to in economic benefits are civil legal aid statewide.” sharply beginning in 2008, understand and safeguard returned to individuals and the and by 2015 reserves were their basic legal rights. community. NOTES depleted. Interest rates 1 Based on 200% of the federal poverty increased in 2018, resulting Legal aid makes a real and But legal aid cannot serve all guidelines—the highest income guideline in the first increase in lasting impact on the lives of the people who need their for any of Minnesota’s civil legal aid pro- IOLTA revenue in a decade. those they serve, stabilizing help. In fact, resource-strapped grams. Some programs serve people with The portion of the lawyer families and preventing legal Minnesota legal aid programs income up to 125% of poverty guidelines. registration fee dedicated to problems from escalating. are forced to turn away 60 2 http://mncourts.gov/mncourtsgov/me- civil legal services provides Consider 12-year-old Katrina. percent of income-eligible dia/scao_library/documents/Community- an important stable funding A custody agreement between clients. Even though legal aid Development-and-Legal-Assistance- source for grants. her parents provided that programs cobble together dol- Final-Evaluation-Report.pdf Katrina would have regular visits with her father. One week before a scheduled visit, TO THE MINNESOTA STATE BAR FOUNDATION Katrina told her mother that WWW.MNBAR.ORG/DONATEMSBF her father had abused her on OR YOUR LOCAL LEGAL AID PROGRAM past visits. Katrina’s mother

www.mnbar.org November 2019 s Bench&Bar of Minnesota 17 THE EXTRA MILE

SHERRY BRUCKNER SARAH DAVIS TIM GOODMAN LEGAL SERVICES OF NORTHWEST LOAN REPAYMENT ASSISTANCE MINNESOTA JUSTICE MINNESOTA DONOR PROGRAM OF MINNESOTA DONOR FOUNDATION DONOR

A graduate of Hamline University Sarah Davis is a new donor to Tim Goodman and his wife, Anne, School of Law, Sherry Ann Bruckner the Loan Repayment Assistance have provided financial support to dedicated the first 20 years of her Program of Minnesota (LRAP). the Minnesota Justice Foundation for career to public interest law. In her LRAP Minnesota helps reduce the 25 years. Tim joined the MJF Board work with HOME Line, Appalachian education debt burden experienced of Directors as a 1L at the University Research and Defense Fund of Ken- by dedicated public interest lawyers of Minnesota Law School. “When tucky (AppalReD), and Legal Servic- who represent low-income clients I started law school,” he recalls, es of Northwest Minnesota (LSNM), seeking legal services to secure “I learned about MJF’s work and Bruckner advocated for thousands essential needs like food, shelter, and decided to become involved. I saw of clients in consumer, education, safety, and fundamental rights like firsthand how important fundraising employment, family, housing, public equal access to justice. is to MJF’s work. Connecting with benefits, and senior legal matters. She Davis said she donates to LRAP individuals and convincing them to now serves as a mediator and conflict for a simple reason: “I can’t think of donate to MJF means a law student resolution skills trainer through Heal- a more critical program to support can receive a small stipend to work ing Truth LLC, based in Alexandria, effective advocacy for people whose at a legal aid clinic; it funds the Minnesota. Bruckner also holds an circumstances would not otherwise salary for an MJF staff attorney who adjunct faculty position at Mitchell allow them to have an attorney.” arranges pro bono placements and Hamline School of Law. LRAP helped Davis make her reaches out to students; and it allows Appreciating the challenge and student loan payments until her loans law students and others to train high importance of civil legal aid work were forgiven last year through Public school students on street law. motivates her to be a Partner in Jus- Service Loan Forgiveness. Without “Connecting with individuals also tice (financial supporter) of LSNM. the burden of student loan debt, Sar- means sharing MJF’s story, its mission, In her words, “From advising a senior ah can commit to a career helping at- and its work. Hearing the law student facing wrongful garnishment to fil- risk youth at the Legal Rights Center. experiences, learning the difference ing federal court action to protect Her philanthropic support for LRAP they make, and knowing that this important housing rights—and the is helping to sustain the work of other work can lead to a lifetime commit- thousands of critical family and other attorneys in careers they love. ment to pro bono service has led me cases—legal aid makes a very real to donate to MJF year after year.” difference every single day. With only Goodman has backed up his one legal aid attorney for every 6,000 enthusiastic support for the mis- people eligible in northwest Minne- sion of MJF by serving the board sota, the advocates and support staff in a variety of leadership positions, give generously of their time, talent, including treasurer, vice-president, passion and compassion to bring and president. He has also put his justice to rural Minnesota. Even with legal expertise to work for MJF by double the staff size, there will still be drafting several benefits plans for the a justice gap. However, if we all do organization. our part by giving what we can, we will bridge the gap and bring hope and justice to more people.”

18 Bench&Bar of Minnesota s November 2019 www.mnbar.org LEGAL AID FUNDING

SEVEN MINNESOTA ATTORNEYS WHO DONATE TO LEGAL AID CAUSES

LAURA COOPER KATHY KIMMEL & KATE DEVRIES SMITH MID-MINNESOTA LEGAL AID DONOR BOB ATKINSON VOLUNTEER LAWYERS NETWORK DONOR In 1975, the women’s caucus at the TUBMAN DONORS University of Minnesota Law School Kate DeVries Smith has been a asked for a course in welfare law. Profes- Domestic abuse is a tragic reality part of Volunteer Lawyers Network sor Laura Cooper was asked to teach for many families. In 1998, three for 20 years. Though she works in the course—and to start a welfare law organizations created the Safety Proj- patents as a founding partner of clinic. Lacking experience, she asked ect, a program now housed within Pauly, DeVries Smith & Deffner, Mid-Minnesota Legal Aid (then the Tubman, in which volunteer lawyers L.L.C., her pro bono passion is Legal Aid Society of Minneapolis) to provide legal representation to do- housing law—helping tenants to allow her to serve as counsel and coach mestic abuse victims who are seeking clear eviction records and hold her through some cases. That was the orders for protection for themselves landlords accountable for repairs. beginning of a long relationship that and their family members. One of the DeVries Smith is one of VLN’s has been invaluable to legal aid. founding organizations was the for- biggest financial supporters. In Cooper served on Legal Aid’s board mer law firm of Rider Bennett Egan addition to her generous personal of directors for 23 years, including a & Arundel, where Kathy Kimmel was gifts, her firm is also a loyal VLN term as president. She is a founding working as a litigation attorney. Since donor. She also frequently recruits member of the Fund for Legal Aid and the creation of the Safety Project, she friends, family, and colleagues to join was Legal Aid’s honoree at the 27th has volunteered there as a pro bono her in giving, and brings fundraising Annual Law Day Testimonial Dinner attorney, providing legal representa- opportunities to VLN via her in 2008. She and her husband, Ben, tion to clients facing profound need professional memberships, including are deliberate about their philanthropy, and vulnerability. Recognizing that the Minnesota Intellectual Property choosing organizations where they know the success of the Safety Project Law Association. the leadership, understand the strategy, requires the work of many people as “As a board member and a and are familiar with the financial situ- well as financial resources, Kimmel volunteer,” she says, “I get to see ation. In addition to traditional support has also made financial gifts to help the impact of VLN’s work on clients as a Centennial Circle donor, Cooper ensure that victims of domestic vio- and volunteer attorneys, and it is has been sponsoring University of Min- lence have advocates who can help impressive! By harnessing the power nesota Law students to work with Legal them in their time of need. of volunteers, VLN provides a huge Aid as summer clerks since 2005. Kimmel has been friends with Bob value to the community using my “Legal Aid has always had inspir- Atkinson since their first days at law contribution. Also, my profession is ing, dedicated, talented lawyers who school in 1993. Recently she was law. I don’t feel good about the fact can efficiently make a difference,” says joined by Bob and his wife, Barb, at that the legal system is expensive and Cooper. “The organization strategically the 2019 Tubman gala. At the event, difficult to access to enforce basic plans to do the most good on multiple the Atkinsons made a generous con- rights and meet basic needs. I want fronts. As lawyers, we are in a wonder- tribution to Tubman. Reflecting on to take significant steps to improve ful position to recognize the good that their gift, they noted, “We feel good access to justice.” lawyering can do, and how critical it is about supporting Tubman because we to improving lives of low-income people. saw first-hand that the refuge Tub- Legal Aid is there all of the time, doing man offers to families experiencing the work other lawyers care about but trauma translates to hope, persever- often can’t do themselves.” ance, success, and heart-felt joy.”

November 2019 s Bench&Bar of Minnesota 19 ALL PARKS ALLIANCE FOR CHANGE

FIGHTS THE GOOD FIGHT By Athena Hollins and Amanda Idinge

MEET ONE OF THE 2019 MINNESOTA STATE BAR FOUNDATION GRANT RECIPIENTS

here are 900 manufactured housing parks — “trailer parks” — in Minnesota, in almost all 87 counties. Around 180,000- T200,000 Minnesotans live in manufactured housing. Leases in parks work very differently than tenancy in apartment buildings. Park residency is not at-will. If a resident’s lease ends, they can decline to sign a new lease and continue to rent the lot their manufactured home sits on until the park owner has one (of eight) prede- termined “good causes” to evict. “There are people who are being led to believe the eviction process is just the park owner telling you they want you out,” says Dave Anderson, the executive director of All Parks Alliance for Change. What many residents don’t know is that only the courts can evict them. This is where All Parks Alliance for Change (APAC) — a Minnesota State Bar Foun- dation grant recipient since 2005 — comes in. APAC hosts workshops and meetings, assists attorneys in their cases involving manufactured home residents, To volunteer with APAC, or for further information, and lobbies local and state governments. APAC was founded in 1980 under please contact Dave Anderson, executive director, the name Anoka People’s Alliance for Change. It was conceived as a means of at [email protected]. assisting low- to moderate-income residents in Anoka County with a broad set of concerns such as access to healthcare, wage discrepancies, and more. After a with legislators to establish rules requir- tion of residents throughout the state. few years, it became clear that there was ing park owners to provide leases to resi- In the late ‘80s, parks began closing, little attention paid to people residing in dents and offering protections against re- and organizations started putting pressure manufactured home parks. When hous- taliation. “Park residents should have the on communities catering to low-income ing policy changes were proposed at the basic rights that other renters have,” says residents. Because of this, APAC added local or state level, these changes did not Anderson. another layer to their organization, apply to people who rented or owned The organization adopted its current responding to the redevelopment of parks mobile or manufactured homes. In fact, name, All Parks Alliance for Change, and and pushing for a specific closure process. mobile home parks were often specifically went metro-wide in 1989, moving its of- Before they tackled this issue, a park excluded in these policies. fice from Fridley to St. Paul. In 1994, they owner could close a park simply by giving APAC worked to establish founda- changed the bylaws and mission state- everyone in the park a 60-day eviction tional legal protections, collaborating ment to reflect their broader representa- notice.

20 Bench&Bar of Minnesota s November 2019 www.mnbar.org LEGAL AID FUNDING

APAC lobbied for a policy that pro- to work as intended. APAC relies on volunteer attorneys vides relocation benefits, and as of 2019, APAC has also moved beyond its de- for information and representation of its parks must provide 12 months minimum fensive posture, advocating for proac- clients. When a client calls APAC’s ho- notice if they are closing; make contribu- tive, concrete measures to ensure that tline, they are assisted in the self-advo- tions to the cost of relocation; indicate residents are being protected in the same cacy process through conciliation court, where in a 50-mile radius a manufactured way as owners or renters of other kinds referred to an attorney, or referred to home could move and what the rental of residential property. Today APAC has HOME Line, Housing Justice Center, or costs are; and offer a right of first refusal, multiple ongoing projects, many of which Legal Aid. s which includes an option for residents to involve legal rights and quality of life is- purchase the park. sues. They are currently putting together One attempt to exercise the right of their agenda for the 2020 legislative ses- first refusal that received a lot of media sion, including proposals to use alterna- attention involved the community of tive dispute resolution to allow residents Lowry Grove in St. Anthony Village. As to better address operational problems, ATHENA HOLLINS is the MSBA’s senior it turned out, the state law was riddled and to recognize residents as property director of diversity and foundations. with unforeseen issues, including many owners entitled to receive notifications [email protected] vague provisions that made the law hard about health and safety code violations to use as well as loopholes that allowed that now only go to the landowner. AMANDA IDINGE is the MSBA’s park owners to avoid complying with Recently there has been an increase foundations coordinator. the law. Even though residents came up in the consolidation of ownership of [email protected] with the required $6 million asking price manufactured home parks in national within the stipulated 45 days, a judge chains, one of which is Havenpark Capital, The Minnesota State Bar Foundation was created found that when the park owner sold to a new company that has received negative in 1932 as the charitable arm of the MSBA. a developer instead, the residents had no press over leases they’ve attempted to foist It provides monetary grants to community and recourse. All Parks Alliance for Change on residents. “These big chains are either law-related programming. You can contribute to backed a top-to-bottom cleanup of that ignorant of or ignoring the state law,” said the MSBF at www.mnbar.org/donateMSBF law, which now allows the purchase right Anderson.

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The court also pointed out that the trial court had broad discretion in rendering an award if there was an “acceptable basis in fact.”9 Courts have wanted to take the best interests of animals into account as far back as 1944, when the seminal decision in Akers v. Sellers10 was issued. In that often-cited case, the court complained that on appeal, it lacked an adequate record to decide whether the lower court had rendered a “just and wise decision.” The court further stated, “Whether the interests and desires of the dog, in such a situation, should be the polar star point- ing the way to a just and wise decision, or whether the matter should be determined on the brutal and unfeeling basis of legal title, is a problem concerning which we express no opinion.” More so, the court went on to opine that it would be a trag- edy to award the Boston Bull Terrier to one party when the affection and loyalty of the dog lay with another. In a post-decree cat custody dispute, Raymond v. Lachman,11 the New York court in 1999 issued a decision using best interest criteria for a cat named Lovey. t is well-known that about 67 per- law.4 The earliest states to pass such laws There, the court recognized that not only cent of U.S. households have pets, were Massachusetts in 1804, Oklahoma could an owner love their cat, but that and expenditures on them exceed in 1887, Rhode Island in 1896, and Mich- the cat could love them back. Ultimately, $72 billion per year.1 Following Hur- igan in 1931. The last state to enact a law the court awarded Lovey to the party ricaneI Katrina, according to one poll, 93 of this type was South Dakota in 2014.5 who had the house where Lovey had long percent of pet owners claimed they would In a similar vein, a growing list of states lived, and where the cat prospered. risk their lives for their pets.2 Consider have passed laws that enable a judge to A case from New Jersey, Houseman v. these developments against the backdrop include pets in orders for protection. Ac- Dare,12 exemplifies how the courts, deal- of the 1897 landmark decision of Sentell v. cording to the Animal Legal and His- ing with legal issues of first impression, New Orleans Carrollton Railroad Co.3 Ac- torical Center, 32 states had passed these have looked to a variety of well-reasoned cording to Sentell, dogs, in particular, were laws as of 2017.6 animal law decisions across states as well “quasi-property” unless subdued or dead. At the turn of the last century, estate as subject areas. Following their break- Now that more than a century has passed planning lawyers—aware that people up, an unmarried couple effectively had and rabid dogs are rare, there are many could not bequeath their “property to shared custody of their Pug, Dexter, until indications that dogs are beginning to property,” and that this limitation was one of them decided to keep the dog. The enter the family unit. This can be better concerning for their clients—brought appellate court found that the underly- understood by seeing how animal-related this problem to the attention of what is ing oral shared caregiving agreement into cases in unrelated subject matters, both now called the Uniform Law Commission which the parties had entered following within a state and across the country, af- (ULC). The ULC created two types of separation was enforceable. The higher fect each other. This is both a sophisti- uniform pet trust laws that served as the court explored the contours of laws af- cated and a complex analysis. backbone for pet trust laws passed in all fecting companion animals and opened A predicate to the emerging view that 50 states. These laws are indicative of the the door for the trial judge to render a animals are not merely property is the fact that companion animals, at the very joint physical custody decision, which the passage of animal cruelty laws. All states, least, are distinguishable from other types court effectively did. as well as Washington D.C., Puerto Rico, of property. Another influential case where the and the Virgin Islands, have passed at On another front, the seeds were court undertook a sweeping analysis of least one type of animal cruelty felony planted for setting criteria that should be national jurisprudence was New York’s

22 Bench&Bar of Minnesota s November 2019 www.mnbar.org Travis v. Murray.13 There, in a dispute Notes about a Miniature Dachshund named 1 National Pet Owners Survey, American Pet Products Association; the report is not publicly avail- Joey, the court reasoned that the best able, but key results are summarized at “Pet ownership, spending going strong,” American Veteri- standard to use for rendering a decision nary Medical Association News (5/8/2019) https://www.avma.org/News/JAVMANews/Pages/190601d. could be included within an over-arching aspx “best interests for all” standard. 2 2004 U.S. Companion Animal Owner Survey, Faunalytics, https://faunalytics.org/american-animal- As these decisions reflect, a lawyer hospital-association-2004-pet-owner-survey/ (last visited 4/17/2019). handling these cases is best served by un- 3 166 U.S. 698, 703 (1897). The Minnesota Supreme Court, in Saw v. City of Lino Lakes, 823 N.W.2d derstanding the broader jurisprudence of 627 (Minn. 2012), relied upon this old analysis crafted when dogs were often rabid. animal law first, followed by learning how 4 A good example of how the animal cruelty statute is applied in Minnesota is State v. Bell, 2014 WL cases specifically affecting companion 5314457, No. A14-0137, 10/20/2014. animals are differentiated. It is also wise 5 South Dakota Passes Law to Make Animal Cruelty a Felony, DVM 360 Magazine, http://veterinarynews. to monitor what is happening in the state dvm360.com/south-dakota-passes-law-make-animal-cruelty-felony (last visited 4/15/2019). of Oregon, where forward-thinking ju- 6 Rebecca F. Wisch, Domestic Violence and Pets: List of States that Include Pets in Protection Orders, rists are looking at the subject of property Animal Legal & Historical Center, https://www.animallaw.info/article/domestic-violence-and-pets-list- in new ways in animal cruelty cases.14 states-include-pets-protection-orders (last visited 4/15/2019). In 2016 and 2017, respectively, Alas- 7 It should be noted that the indicia of ownership, as illustrated in Minn. Stat. §347.22, is broader in ka15 and Illinois passed statutes explicitly cases involving tort liability. allowing the courts to utilize a type of 8 N.W.2d, 1988 WL 120251 (Minn. App.). best interest standard, or well-being stan- 9 In Boehm v. Glick, WL 1320609, A18-0941 Minn. Ct. App. 3/25/2019, the court awarded a cat to a dard, for a companion animal as a factor party based upon a personal property, rather than a best interests, standard. in the courts’ decision-making.16 Since 10 114 Ind. App. 660, 54 N.E.2d 779 (Ind. App. 1944). then, a law in a similar vein was passed 11 695 N.Y.S.2d 308 (N.Y. A.D. 1st Dept. 1999). in California in 2019.17 The California 12 966 A.2d 24 (N.J. Super. Ct. App. Div. 2009). statute also enables courts to implement 13 2013 N.Y. Slip. Op. 23405 (N.Y. Sup. Ct. 2013). shared custody agreements. It will be in- 14 State v. Nix, 355 Or. 777, 334 P.3d 437 (2014), vacated, 356 Ore. 768, 345 P.3d 416 (2015); State v. teresting to find out how these laws affect Fessenden, 355 Or. 759 (Or. 2014); and State v. Hess, 359 P.3d 288 (Or. Ct. App. 2015). outcomes not only in pet custody awards 15 Alaska is not only a trendsetter by passage of the first statute regarding an animal’s best inter- in these three states, but also in disputes ests, but also has some of the country’s most important pet-related case law. In the 2002 Alaska outside of family court jurisdiction and post-decree dispute of Juelfs v. Gough, 41 P.3d 593 (Alaska 2002), the court awarded a Chocolate across state lines. Labrador Retriever named Coho to the party who would keep him safe, even though the parties had Pet custody disputes, outside of fam- been awarded shared custody of the dog pursuant to the Judgment and Decree. ily court, can arise when two people co- 16 HB 147 was passed as Chapter 60 of the 2016 Alaska session laws. The Act is 17 pages long and habitate, between family relatives, and in was codified into several different statute sections. The session law citation is CHAPTER 60 SLA instances where animals are lost, found, 16. See also Nicole Pallotta, Alaska Legislature Becomes First to Require Consideration of Animals’ In- fostered, or relinquished, to name a few. terests in Custody Cases, Animal Legal Defense Fund, https://aldf.org/article/alaska-legislature-becomes- These cases typically arise as replevin first-to-require-consideration-of-animals-interests-in-custody-cases/ (last visited 4/15/2019); Elaine S. actions or the more modern cease-and- Povich, This New Law Aims to Prevent Couples from Fighting Over Cats and Dogs, Huff Post, https:// desist actions. www.huffpost.com/entry/divorce-pet-custody-dog-california_b_5c3e14f4e4b06248f31edc8b (last visited Pet custody disputes constitute an 4/15/2019). area where pioneering efforts matter. 17 Nicole Pallotta, California’s New ‘Pet Custody’ Law Differentiates Companion Animals from Other It is important to develop pet-friendly Types of Property, Animal Legal Defense Fund, https://aldf.org/article/californias-new-pet-custody-law- presumptions and best interest and well- differentiates-companion-animals-from-other-types-of-property/ (last visited 4/15/2019). ness-based decision-making criteria. En- 18 2013 N.Y. Slip. Op. 23405 (N.Y. Sup. Ct. 2013). lightened judges may help further craft groundbreaking principles. We are just learning, too, how to resolve these types BARBARA J. of disputes in Alternative Dispute Reso- GISLASON is lution processes. the author of Pet The national trend regarding com- Law and Custody: panion animals is to treat them as family Establishing members despite their “property” status, a Worthy and although, upon a closer look, judges seem Equitable to interpret evidence of donor intent or Jurisprudence evidence of abandonment in such a way for the Evolving Family, which is as to promote a common sense outcome, an American Bar Association best as envisioned in Travis v. Murray,18 even seller, the founder of Animal Law in if the utilization of this more kindly the American Bar Association, and a analysis is never expressed. Accordingly, nationally recognized animal law expert. courts are looking beyond the purchase The book can be ordered by going to: price and financial support of the animal http://bit.ly/2xPW5Lr. Gislason practices and inviting evidence about the care of in the areas of Family Law, Animal an animal, bonds of affection, and mis- Law, and Intellectual Property Law in treatment of the animal, if not the ani- Minneapolis, Minnesota. mal’s best interests or well-being. s [email protected]

www.mnbar.org November 2019 s Bench&Bar of Minnesota 23 When Rules Get in the Way of Reason One judge’s view of legislative interpretation

By Justice Paul Thissen

he job of a judge when interpret- substance to the rich literature written by lems. This is most often accomplished by ing statutes is straightforward: scholars more deeply steeped in the con- imposing obligations or limitations on “ascertain and effectuate the institutional, structural, and linguistic as- how the people and institutions in the tention of the legislature.”1 As a pects of statutory interpretation. What I state can act and organize their lives and formerT legislator, however, I am chastened can offer is a practical perspective on the activities. The job of a judge is to step in to admit that the Legislature does not al- task of statutory interpretation informed when a dispute arises over what those ways make that job easy and, for a variety by my fairly unique perspective as a sit- obligations or limitations mean and what of reasons, too often makes that task quite ting Minnesota Supreme Court Justice, a impact they have on a particular party. In difficult.2 So what is a judge to do? former 16-year member of the Minnesota performing that task through statutory This question, of course, has been hot- House of Representatives, and a former interpretation, however, it is essential ly contested for decades. And rightly so, civil and criminal litigator who practiced that the judge not step out from behind because the question raises fundamental primarily in Minnesota. the bench and into the legislative cham- constitutional and separation of pow- A basic challenge of statutory inter- ber to impose obligations or limitations ers issues. Indeed, settling on a broadly pretation is making sure everyone stays different from those established by the acceptable and justifiable answer to the in his or her lane. The job of a legisla- Legislature.3 Stated another way, the le- question is critical to the legitimacy of tor is to sort through contested problems gal contests over statutory interpretation the judiciary as an institution. In this of public policy and pass laws to resolve, are about how we best ensure judges stay brief article, I have no illusions of adding remedy, or otherwise address those prob- in their proper lane.

24 Bench&Bar of Minnesota s November 2019 www.mnbar.org Briefly described, the current prevail- courts generally) the best method for ing method of statutory interpretation making sure judges stay in their lane? I includes two important and interrelated will make the case that this rigid tempo- concepts. First, over the past several de- ral hierarchy, far from enhancing a judge’s cades, courts (and law schools that inte- ability to do her primary job of ascertain- grated this fashion of statutory interpre- ing and effectuating the intent of the tation in the legal curriculum) moved Legislature, actually impairs it by arbi- decisively toward a narrow focus on statu- trarily limiting a judge’s access to tools of tory text as the dominant (and, for some, statutory interpretation that may prove nearly exclusive) methodology for keeping enlightening, even decisive, as to actual judges in their lane.4 The ability to apply legislative intent. Moreover, the prelimi- Reasoning rules of grammar became a more highly nary interpretive inquiry into whether rather prized legal skill than fluency in broader statutory language is “plain” or “ambigu- policy and practical considerations of the ous” operates in a way that leaves ample than rules law. Justice Antonin Scalia is perhaps the space for judges to impose their preferred best-known advocate for this position.5 outcomes, but in a surreptitious, non- Second, the move to a strong textual transparent way. Thus I worry that the orientation in statutory interpretation strict adherence to a hierarchy of rules emerged in the context of an increas- does not simply keep judges from entering ingly rigid hierarchy of temporal rules the legislative lane; it narrows the judicial o what do I offer in the alternative? that limits when other useful tools of lane itself precipitously. In my view—and this is the central statutory interpretation besides the cold I also worry about a larger issue: that idea of this article—the job of S 6 text—long-established canons of con- strict textualism and an increasing rigidi- judges is ultimately to exercise judgment. struction, legislative history, clear statu- ty in how tools of statutory interpretation My intuition is that the best check on the tory purpose, common sense—can be may be applied have adversely affected exercise of that judgment is to demand used. In particular, courts have erected a how lawyers think about their job. Rules that judges thoroughly explain their nearly impermeable divide between a lim- of statutory construction have become a reasons for reading a statute a certain ited and privileged class of interpretative catechism. Lawyers feel too comfortable way, rather than requiring that judges tools that can be used to determine the blindly citing a rule or canon of construc- follow a rigid hierarchy of rules. Crafting meaning of “unambiguous” language and tion without considering whether and an explanation that seems to the parties a broader set of rules that can be used if why the rule or canon provides insight and the public like a sensible and fair statutory language is found “ambiguous.” into the meaning of the particular stat- understanding of legislative intent (an This hierarchy of rules cements the pri- ute being interpreted. While such an ap- explanation that may, of course, rely macy of text as the near-exclusive basis proach may make life easier for lawyers, heavily on established interpretation for understanding what the Legislature that is bad for the practice of law. Much rules) is a process that serves as a strong meant when it enacted a law. as I love the beauty and rationality of check on judicial overreach and enhances The central question I wrestle with in Euclidian geometry with its axioms and public trust in the courts. And in assessing this article is this: Is the current prevail- theorems, the law is not geometry and the legislative intent, judges should be able ing method of statutory interpretation rules and canons of construction cannot use all of the tools available to them— used in Minnesota (and United States be applied that way. certainly the text of the statute, but

Notes include: the legislative process one thing and other legislators preferred outcome as any other 1 Minn. Stat. §645.16 (2018). itself, which increasingly moves believe a bill means something else. tool of statutory interpretation. 2 In my experience, there are many at a pace that does not allow staff What judges do with these varying See, e.g., Richard H. Fallon, Jr., reasons that legislation may not or legislators the time to reflect reasons for ambiguity is better left Three Symmetries between Textualist be clear. Often, the lack of clarity and review; the increasing use for future discussion. and Purposivist Theories of Statutory or precision in statutory language of massive omnibus bills instead 3 The judge’s role is certainly Interpretation—and the Irreducible is unintentional. Legislators are of discrete pieces of legislation different when addressing the Roles of Values and Judgment within not seers and cannot anticipate focused on a single subject; and constitutionality of a statute or Both, 99 Cornell L. Rev. 685 (Issue every unique set of facts that may procedures allowing committee or dealing with (vanishing) questions 4 May 2014). For a fascinating arise in the future. Ambiguity in floor amendments with no prior of common law. Those issues are examination of how linguists statutory language may also emerge notice. A lack of transparency in left for another day. view statutory interpretation, see as established statutes are later the legislative process, which shuts 4 The strongest claim to legitimacy Brian G. Slocum, ed. The Nature amended. The agglomeration of out the public (including lobbyists, made by textualists—that it takes of Legal Interpretation: What Judges new provisions on old statutes who—like them or not—have judicial discretion and values Can Learn about Legal Interpreta- understandably produces laws that important expertise) is another out of the equation—has been tion from Linguistics and Philosophy are more sedimentary than igne- factor. There are also intentional challenged by legal scholars and (University of Chicago Press 2017) ous. See, e.g., Minn. Stat. §609.582, reasons for ambiguity in legislation. linguists alike on the ground that (Slocum 2017). Nonetheless, the interpreted in State v. Rogers, It is sometimes easier to assemble rules of textual interpretation primacy of “the text” in statutory 925 N.W.2d 1 (Minn. 2019). the votes to pass legislation when and grammar can be as readily interpretation has become the Other factors in imprecise drafting some legislators think a bill means manipulated to reach the judge’s water we swim in as lawyers. www.mnbar.org November 2019 s Bench&Bar of Minnesota 25 also meaningful and relevant canons of can do so in our sleep: “When interpret- construction, legislative history, common ing a statute, we give effect to the plain sense, and practical experience—as long meaning of statutory text when it is clear as the judge considers and can explain and unambiguous. A statute is ambiguous why a particular tool illuminates the only if it is susceptible to more than one legislative intent behind a particular reasonable interpretation, in which case statute. we may resort to the canons of statutory Indeed, it is essential to the legitimacy construction to determine its meaning.”9 of courts that a judge be allowed to The rule creates a two-step process for exercise her judgment, while still being statutory interpretation. First, the court required to explain her reasons, instead of must decide whether the statute is ambig- being able to simply point to a generic rule uous. Only if the court decides in the af- that emerged from the mists of time. How Text is not firmative can it employ most of the tools many of us have faced a situation like the everything of interpretation. day in law school I tried to go to the gym My purpose here is not to jettison the to play basketball—something I did four two-step process entirely. Rather, it is to or five times a week—without my student call on judges to apply it more reluctantly ID? Even though the guy behind the desk and more humbly. My impression is that saw me nearly every day for months, he courts find statutes to be “plain” and “un- refused to let me in. “Those are the rules,” f course, none of this is to say that ambiguous” too readily. he shrugged. No consideration of the looking first to the text is wrong. First, our current test for ambigu- context or purpose of the rule (to prevent OThe text is often an excellent ity—is there more than one reasonable people unaffiliated with the college from signal of legislative intent. But when interpretation of the statute?—is opaque, getting on the courts). Few phrases are statutory interpretation cases get in front lacking clear and explainable boundaries. more frustrating, but that is what judges of a court—and particularly an appellate The current test creates a vast space for do when they decide a question critically court—it is likely that each party has judges to exercise largely unrestrained important to the parties to a case with a at least an arguably coherent reason to judgment in deciding whether a par- similarly shrugged “Those are the rules.” read a statute in the way that supports its ticular interpretation is reasonable and Judges should not rely on a hidebound position. It is striking how often our court rejecting interpretations they deem un- repertoire of generic rules that may is faced with a statutory interpretation reasonable.10 Critically, the rule provides or may not spark any insight into the dispute where both parties insist that such expansive judicial discretion even as particular case. Instead we should use the statute is unambiguous in a way that it limits the sources of information a judge the best available information, whether supports their directly contradictory may consider for information about legis- drawn from the text or otherwise, and interpretations. That should be a clue to lative intent. This prohibits judges from explain how that information provides all of us about how plain the statute really considering important signals of legisla- the best insight into legislative intent in is.8 tive intent, like the purpose of a statute a particular case. Ultimately, this process So what gets in the way of this broad- or its legislative history, which in some will improve the public’s trust that the er “all tools in the toolbox” approach cases may prove decisively illuminat- courts are truly places of fair adjudication to statutory interpretation? One major ing. The result is a divide between pre- of rights.7 roadblock is the great ambiguity wall that ambiguity and post-ambiguity reasoning, judges and practitioners cite so often we wherein judges have few tools (but broad

5 See, e.g., Chisom v. Roemer, 501 That principle was followed and Justice, 123 Yale L.J. F. 525 (2014). a judge with other information U.S. 380, 405 (1991 (Scalia, J., used by Minnesota courts for 8 A slight detour for a practitioner about the context, purpose, and dissenting). It has not always been decades. See, e.g., Judd v. Landin, tip (with the caveat that it is legislative history of a statute that this way. At the time of statehood, 1 N.W.2d 861 (1942) (“when coming from a single judge). I supports your client’s position for instance, the Minnesota [legislative intent] is ascertained have been surprised how many does not hurt; it helps. Supreme Court took a much the statute must be so construed times lawyers appearing before the 9 Gen. Mills, Inc. v. Comm’r of broader approach to statutory as to give effect to such intention, Minnesota Supreme Court who Revenue, 931 N.W.2d 791 (Minn. interpretation. In the 1863 case even if it seem contrary to such rely on a plain language argument 2019). of Barker v. Kelderhouse, the Court rules and the strict letter of the refuse to even contemplate the 10 There are of course some tools stated that “the attention of statute”); Wegener v. Commissioner potential that the statute may that can be used “pre-ambiguity” the legislature should always be of Revenue, 505 N.W.2d 612, 613 be ambiguous. It is not a sign of to determine meaning. For in- followed wherever it can be dis- (Minn. 1993). weakness to assert that the plain stance, judges rely on syntactic covered, although the construc- 6 This conception of the judicial language favors your client, but if canons like the last-antecedent tion seems contrary to the letter role is captured well in David the Court finds it ambiguous, your canon, the series-qualifier canon, of the statute.” 8 Minn. 207, 211 E. Pozen, Justice Stevens and the client still wins. Making an ambi- and the nearest-reasonable- (1863) (citing Grimes v. Byrne, 2 Obligations of Judgment, 44 Loy. guity argument in the alternative referent canon when determining Minn. 89 (1858)); see also Rogers, L.A. L. Rev. 851 (2011). does not undermine your plain whether a statute is ambiguous. 925 N.W.2d at 8, n.3 (Thissen, J., 7 See generally Tracey L. Meares & language position. Further, even if See, e.g., State v. Pakhnyuk, 926 dissenting); Robert A. Katzmann, Tom R. Tyler, Justice Sotomayor you firmly believe that the statu- N.W.2d 914 (2019); see generally, Judging Statutes 52 –53 (2014). and the Jurisprudence of Procedural tory language is plain, providing Antonin Scalia & Bryan A.

26 Bench&Bar of Minnesota s November 2019 www.mnbar.org discretion) in deciding whether an inter- there was another reasonable interpreta- can be applied pre-ambiguity and which pretation is “reasonable” for purposes of tion of the statute that did not require the are only relevant after a statute is found assessing ambiguity, but have access to a victim’s presence, but the majority found to be ambiguous.15 Take, for example, broad range of tools to use for guidance that an unreasonable interpretation.13 the canon that statutes in derogation of in the post-ambiguity realm. That makes The critical point, however, is miss- the common law are strictly construed. little sense to me. ing from the dueling interpretations of Minnesota Supreme Court precedent is A recent case, State v. Rogers, high- the statutory text. More important is unclear about whether the canon applies lighted the implications of the pre-am- that the text was not the best evidence of before or after an ambiguity determina- biguity/post-ambiguity wall for statu- legislative intent available to the Court. tion is made. In some cases, the Court tory interpretation.11 Rogers required the The legislative history of the statute, in- has applied the canon when analyzing Minnesota Supreme Court to interpret cluding the legislative debate around the whether a statute is ambiguous.16 In other Minnesota’s burglary statute, Minn. Stat. amendment that inserted the phrase “any cases, the Court has applied the rule to §609.582, subd. 1(b), which provides that article used or fashioned in a manner to help analyze a statute already determined burglary is a first-degree offense if “the lead the victim to reasonably believe it to be ambiguous.17 And although there burglar possesses, when entering or at any to be a dangerous weapon” into the law, may be reasons to justify each position, time while in the building... any article made the legislative intent clear. The the real question is whether forcing judg- used or fashioned in a manner to lead amendment was adopted at a time when es to engage in such an esoteric debate the victim to reasonably believe it to be a there was significant public concern over gets them any closer to ferreting out the dangerous weapon.” The Court analyzed the use of fake weapons and the operative Legislature’s actual intent—or indeed whether the victim must be physically phrase was pulled nearly verbatim from gets in the way.18 present during the burglary for a convic- a prior statute that used the language In Minnesota, the current standard tion under subdivision 1(b). to refer to a fake weapon.14 In my view, for determining ambiguity is also in The majority, employing the Court’s this history shed much more light on the conflict with (of all things!) state statutes. traditional test for ambiguity, determined Legislature’s intent than any parsing of Minnesota Statutes §645.16 provides that from textual clues that the victim’s physi- the statutory language ever could: The “[t]he object of all interpretation and cal presence was required under the stat- Legislature intended to make it a first- construction of laws is to ascertain and ute. In particular, the Court concluded degree crime to possess a gun, a bomb, effectuate the intention of the legislature” that the Legislature’s use of the phrase or a fake weapon. And because the vic- and then sets forth a pathway for doing so: “the victim” rather than “a victim” meant tim’s presence was never required in the that “the victim” must be present at the case of gun or bomb possession, it should When the words of a law in their time of the burglary. The majority also also not be required for possession of a application to an existing situation are concluded that the Legislature’s use of fake weapon. But because our statutory clear and free from all ambiguity, the the word “used” required the victim’s interpretation hierarchy makes resort to letter of the law shall not be disre- presence (i.e., how could a burglar use legislative history off-limits in assessing garded under the pretext of pursu- an article in a way to lead the victim to whether a particular reading of a statute ing the spirit. reasonably believe it to be a dangerous is “reasonable” for purposes of determin- When the words of a law are weapon if the victim was not there?).12 ing ambiguity, the majority was precluded not explicit, the intention of the The majority’s textual analysis was well from even considering it. legislature may be ascertained by done and reasonable. The dissent, focus- The lack of clear boundaries in our considering, among other matters, ing on the list of items that a burglar must current ambiguity test is exacerbated by [several factors like the purpose of “possess,” concluded from the text that unanswered questions about which rules the law and legislative history].19

Garner, Reading Law: The Interpre- F.2d 737, 739 (2d Cir. 1945)). 13 Id. at 7–8 (Thissen, J., dissenting). also Staab v. Diocese of St. Cloud, tation of Legal Texts 140–167 (2012) Further, even resort to competing 14 Id. at 9–10 (Thissen, J., dissent- 853 N.W.2d 713, 726 n.4 (Minn. (Scalia and Garner). Judges also dictionary definitions is subject to ing). 2014) (Lillehaug, J., dissenting). consult dictionaries to understand manipulation. How many lawyers 15 See, e.g., State v. Thonesavahn, 904 17 See, e.g., In re Stadsvold, 754 the meaning of words. See State have scanned dictionaries to find N.W.2d 432, 439 n.4 (Minn. 2017) N.W.2d 323, 328–29 (Minn. 2008); v. Scovel, 916 N.W.2d 550, 554 the one definition that supports (discussing whether the concur- Rosenberg v. Heritage Renovations, (Minn. 2018). But these canons their client to the exclusion of rence was applying the imputed- LLC, 685 N.W.2d 320, 327–28 are not sacrosanct or foolproof, other definitions? I know I did common-law-meaning canon or (Minn. 2004). See Jaeger v. Pal- as our Court has properly noted. when I was practicing. Finally, the common-law-abrogation canon ladium Holdings, LLC, 884 N.W.2d Pakhnyuk, 926 N.W.2d at 922 it is worth noting that nearly 70 and arguing that the former applies 601, 608 (Minn. 2016) (referring (stating that syntactic canons percent of Minnesota legislators only after a statute has been found to the canon that statutes in dero- do not “trump[] the text of the who responded to a recent survey ambiguous). gation of the common law are to be statute, and… can be defeated by said they never or only rarely relied 16 See, e.g., Do v. American Family strictly construed as an example of other indicia of meaning”); Scovel, on dictionaries and other reference Mut. Ins. Co., 779 N.W.2d 853, a post-ambiguity canon). 916 N.W.2d at 554 (stating that materials when considering the 858, 859; see also id. at 860 (An- 18 There are other reasons to “it is one of the surest indexes of meaning of a bill before a vote. For derson, P., J., concurring); Shamrock question the general validity of a mature and developed jurispru- more information on the survey, see Dev., Inc. v. Smith, 754 N.W.2d 377, “presumption canons” (like the dence not to make a fortress of footnote 24. 382, 383 (Minn. 2008); Nelson v. canon that statutes in deroga- the dictionary”) (quoting Learned 11 925 N.W.2d 1 (Minn. 2019). Productive Alternatives, Inc., 715 tion of common law should be Hand in Cabell v. Markham, 148 12 Id. at 4–5. N.W.2d 452, 457 (Minn. 2006). See construed strictly) as a tool for www.mnbar.org November 2019 s Bench&Bar of Minnesota 27 This provision sets a much higher stan- of the legislature” or would result in an ponents of the legislation to be essential dard for determining that a statute is un- interpretation of the statute that is “re- to ascertaining the meaning of a proposed ambiguous than our current “is there more pugnant to the context of the statute.”22 law. And, notably, more than half of the than one reasonable interpretation” test. This conditional structure suggests that legislators reported that they read the According to §645.16, the words of a the Minnesota Legislature intended from text of less than half the bills before vot- statute must be “free from all ambiguity” the time of statehood that courts could ing on them. and “explicit” before it can be considered consider more than just the plain and or- According to the survey responses, plain. And critically, the words must have dinary meaning of a word in interpreting the chief author of a bill is more likely such precision as applied to the existing statutes. Indeed, for several decades after not only to read the bill, but also to read set of facts before the Court. As I read statehood, Minnesota courts interpreted the entire existing section of law when that legislative mandate, courts should statutes against this general background a bill only amends a portion of that sec- find a statute plain only if the language of statutory rule of construction much more tion. (Legislative bills that amend only a the statute is so precise as applied to the broadly than we currently do.23 subdivision of a larger section of existing particular circumstances of the case that Adopting an approach to statutory law often only show the subdivision be- it precludes any possibility of an alterna- construction that makes more interpre- ing amended and not the entire section.) tive interpretation. Stated more simply: If tive tools available more often also finds This fact, paired with the survey results, there is a doubt, a judge should err on the support in a recent survey of Minnesota suggests that courts should be much side of ambiguity. legislators conducted by high school stu- more open to using the chief author’s This restrained standard limits the dis- dent Ethan Less.24 The survey was de- statements about a bill when ascertain- cretion of judges when (under the current signed to learn about the tools and meth- ing legislative intent than is the current regime) they have access to fewer interpre- ods that sitting Minnesota legislators use practice. Indeed, three-quarters of the tive tools. Of course, using this standard to understand the meaning of statutes legislators surveyed said judges should allows judges to use a much wider variety before they cast a vote. rely on statements in committee or on the of potentially useful interpretive tools in Unsurprisingly, the Minnesota legisla- House and Senate floor when interpret- more cases. In turn, courts will reach more tors reported that they relied most heavily ing a statute. This compares to 100 per- accurate results in ascertaining and effec- on the text of the statute when ascertain- cent who said judges should look at the tuating the intent of the Legislature.20 ing the meaning of bills before them in words of the statute and 87 percent who My position also finds support in committee or on the floor. More surpris- said judges should consider the purpose of Minn. Stat. §645.08 (2018), which di- ing, however, was that legislators reported the statute when construing laws. rects judges to construe words of a statute they relied nearly equally as much on the Because a judge’s job is to ascertain according to the “rules of grammar” and reports of non-partisan research and the and effectuate legislative intent, a key the “common and approved usage” of the discussion of the legislation by the chief message from the survey is that judges words.21 Contrary to how the statute is author of the bill (and by legislative col- should not place too heavy a reliance on generally understood, however, §645.08 leagues considered to be subject matter statutory text alone. Rather, judges (and conditions a judge’s resort to rules of gram- experts) as they did on the statutory text. lawyers trying to persuade judges) should mar and common and approved usage Legislators also reported that context be open to using all the tools in the in- with a significant caveat. Words are not matters when working to understand the terpretive toolbox to truly understand the to be given their common and approved legislation before them. In addition to context of a statute, at least to the extent usage and rules of grammar do not apply the text, legislators responded that they that a particular tool makes sense in a if those rules “would involve a construc- found the purpose of the bill, the problem particular case and the judge can explain tion inconsistent with the manifest intent to be remedied, and the intent of the pro- why it makes sense.

ascertaining actual legislative (Minn. 2018) (Thissen, J., dissent- altogether and suggests a two-step is ambiguous and applying the intent. Indeed, as Scalia and ing) (noting the benefit of align- inquiry instead: (1) courts should Kavanaugh test to Title IX cases). Garner note, this particular rule ment in common law and statutory “determine the best reading of From my perspective, allowing is “a relic of the courts’ histori- subrogation rules). A bit more on the text of the statute,” and (2) courts to determine the “best” cal hostility to the emergence of applying canons below. “once judges have arrived at the reading of a text with a limited statutory law” rather than a rule 19 Minn. Stat. §645.16 (emphasis best reading of the text, they can suite of interpretive tools leaves based on an understanding of added). apply—openly and honestly—any open as much space for judicial legislative norms. Scalia & Garner, 20 Supreme Court Justice Brett substantive canons (such as plain freewheeling as the current rule. supra note 10, at 218. The question Kavanaugh has similarly identified statement rules or the absurdity 21 The notion that there is a single of how much of the common law the lack of clear boundaries for doctrine) that may justify depar- “common and approved usage” the Legislature intended to change the threshold ambiguity inquiry as ture from the text.” Id. at 2135. of words is itself a contestable would be better answered by other a problem. Brett M. Kavanaugh, See also Meredith A. Holland, The concept. Experience tells us that, signals of legislative intent—the Fixing Statutory Interpretation, Ambiguous Ambiguity Inquiry: Seek- in real life, there is significant text and context of the statute, 129 Harv. L. Rev. 2118 (2016). ing to Clarify Judicial Determinations (English) linguistic diversity in the legislative history. If anything, Justice Kavanaugh approaches of Clarity Versus Ambiguity in Statu- our communities. We observe— such canons may be best justified the problem from an angle that is tory Interpretation, 93 Notre Dame and speak with and write with by their role in providing broader much more text-based than the L. Rev. 1371 (2018) (arguing that ourselves!—improper English institutional benefits to the legal approach articulated in this article. the Roberts Court has been more grammar and usage every day. system. See, e.g., Depositors Ins. Co. He proposes to do away with willing to consider non-textual fac- Who thinks about the last- v. Dollansky, 919 N.W.2d 684, 696 the threshold ambiguity inquiry tors in assessing whether a statute antecedent rule of grammar in

28 Bench&Bar of Minnesota s November 2019 www.mnbar.org is to be given effect and no word should out thinking hard about whether and why be given an interpretation that causes the canon actually illuminates legislative it to duplicate another provision or to intent when used to interpret a statute.30 have no consequence.27 This sometimes Resort to context, legislative history, and means courts create multiple meanings common sense will be useful in making to fit the rule. That’s backwards, par- that assessment. “Do not ticularly since around 90 percent of the legislators surveyed reported that statutes use a often are drafted with redundant terms. Three-quarters of the legislators said that cannon in their experience, words with similar or to kill a overlapping meaning are added to a stat- 25 ute to make certain the meaning is clear Legislative mosquito” even though the words mean pretty much the same thing. And very few legislators said they relied on the surplusage canon history when trying to understand the meaning is more of a statute before a vote. If these results are taken seriously, it suggests that judges than what he judicial duty to exercise judg- should have a very good reason—from ment and articulate the reasons context, legislative history, or other- legislators Tfor interpretive choices extends to wise—before using the surplusage canon the specific decision to use (or not) a par- as a decisive basis for reading a statute say ticular canon of construction. As Judge one way instead of another.28 Posner (among others) has pointed out, Another example is the presump- “for every canon one might bring to bear tion of consistent usage canon: A word on a point there is an equal and opposite or phrase is presumed to bear the same canon.”26 As with the ambiguity analysis, meaning throughout a text.29 Although hen lawyers and judges think restraint should be the watchword when there is something intuitive about the about legislative history, we applying canons of construction. Unless canon, less than half the Minnesota leg- Wmost often have in mind state- there are good independent reasons that islators surveyed agreed that, in their ex- ments made by legislators about their a canon is useful to an interpretive proj- perience, a word used in a statute has the intent in enacting a bill. And such state- ect, a judge should not rely on it. same meaning throughout the statute. ments may illuminate the meaning of a This need for rigorous judicial analysis Further, only a quarter of the legislators statute; they should not be ignored. and fleshed-out judicial reasoning rather reported that the meaning a word has But another category of legislative his- than rote reliance on canons is borne out been given in an unrelated statute is ex- tory—perhaps best described as a kind in other results from the legislator sur- tremely or very valuable in understanding of statutory archeology—is often over- vey. For instance, judges and other law- the meaning of the same word in the bill looked.31 Understanding the develop- yers often use the surplusage canon to before them. Once again, these results ment of a statute over time can shine a determine the meaning of a statute. The caution judges and lawyers against rely- bright light on what to contemporary eyes canon provides that every word in a law ing on the consistent usage canon with- is nothing but confusion. Don’t ignore it.

real life? I know I do not and did courts and lawyers seal themselves 23 See Barker, 8 Minn. at 211 (1863) April to June 2019 as a senior not when I was a legislator. And off from the broader public with (stating that “the attention of project by Mr. Less. I served as an remember that legislators are two consequences: (1) limiting the the legislature should always be advisor to Mr. Less on the project. enacting laws at greater speed, diversity of information that courts followed wherever it can be dis- Mr. Less provided the survey to under greater time pressure, and have access to in determining covered, although the construction every member of the Minnesota with less time for review than ever legislative intent, and (2) reducing seems contrary to the letter of the House and Minnesota Senate. The before. Consequently, the notion trust and understanding of what statute.”) (citing Grimes v. Byrne, response rate was 15%. Mr. Less that a “common and approved” courts do. Once again, the better 2 Minn. 89 (1858)). Language es- also conducted follow-up narrative usage exists as an objective fact is approach is not just to cite the sentially identical to current Minn. interviews with several legislators. an idea that should be met with rule and the grammar or usage Stat. §645.08 which sets forth The survey results are available some skepticism. Karen Petroski’s authority chosen by the court, several canons of construction was from the author. The survey was article, The Strange Fate of Holmes’s but to think hard and explain part of the Minnesota territorial inspired by the excellent and Normal Speaker of English, in why relying on a “common and statutes incorporated into Minne- illuminating work of Abbe Gluck Slocum 2017, is an interesting path approved usage” rule and, more sota law at statehood. Minn. Gen. and Lisa Schultz Bressman. See into this discussion. Moreover, in specifically, why relying on one Stat. ch 3 §§1–2 (1858). A public Abbe R. Gluck & Lisa Schultz recent years, courts and lawyers particular grammar or usage meaning-originalist interpretation Bressman, Statutory Interpretation have placed a handful of in-vogue authority rather than another to of Minn. Stat. §645.08 supports a from the Inside – An Empirical grammarians on a pedestal as the set the standard makes sense in the broader reading of the statute than Study of Congressional Drafting, final word on “proper” English particular case. is currently in favor. Delegation, and the Canons: Part 1, grammar and usage. In so doing, 22 Minn. Stat. §645.08(1). 24 The survey was conducted from 65 Stan. L. Rev. 901 (2013). www.mnbar.org November 2019 s Bench&Bar of Minnesota 29 For example, in State v. Scovel, the The statutory formula for the credit Minnesota Supreme Court interpreted incorporated the federal law concept Minnesota Sentencing Guidelines 2.B.7.a of “base amount as defined in Section (2015), which provides that “the clas- 41(c) of the [federal] Internal Revenue sification of a prior offense as a... felony Code...”35 Unfortunately, in 2011 (the rel- is determined by current Minnesota of- evant tax year) I.R.C. §41(c) contained a fense definitions... and sentencing poli- variety of subdivisions, some of which in- The right cies.”32 The central question was whether formed the concept of “base amount” and the classification of a prior offense for the some of which were not relevant to “base information purpose of calculating a defendant’s crim- amount.” A central issue in the case was inal history score is determined by Min- whether one of those subdivisions—I.R.C. leads to nesota offense definitions at the time the §41(c)(2), which set a “minimum base current offense was committed or at the amount” for the federal calculation—was better time the defendant was sentenced for the incorporated by the Minnesota statute. current offense. The word “current” was Viewed from the perspective of readers decisions not defined in the Sentencing Guidelines of the statute in 2011, the legislative in- and the multiple meanings of “current” tent in incorporating I.R.C. §41(c) was a offered in dictionaries were not helpful. messy thicket: Did the Legislature intend What became decisive in determining to incorporate every provision of I.R.C. the Sentencing Guidelines Commis- §41(c) or just some of them—and if only sion’s intent was an analysis of the “his- some of them, which ones? But when one tory and evolution of Guidelines 2.B.7.a. stepped back in time to 1982 (when the n the end, we need to come back to It demonstrate[d] that the provision had Minnesota R&D credit was first enacted common sense and practical experi- its roots in Guidelines 2.B.5.b.”33 Because in Minnesota) or 1991 (when the Minne- Ience when thinking about the job of Guidelines 2.B.5.b made clear that “cur- sota R&D credit statute was last amend- statutory interpretation. When we make rent” referred to the time when the cur- ed), the thicket cleared. At both points in important decisions in our daily lives, we rent offense was committed (and not the time, I.R.C. §41(c) as incorporated into want more relevant information rather time of sentencing for the current of- Minnesota law was a much simpler stat- than less—and for good reason. Having fense), the Court read Guidelines 2.B.7.a ute which included only subdivisions that the right information to thoughtfully con- to similarly mean that offense classifica- informed the meaning of “base amount.”36 sider typically leads to better decisions. tions in effect at the time the current of- In particular, the “minimum base amount” Arbitrarily restricting the information fense was committed applied when calcu- limitation existed in the 1982 version of that a decision-maker can use limits ac- lating a defendant’s criminal history score. I.R.C. §41(c), removing any doubt that cess to what may be the right informa- More recently, the Minnesota Supreme the Legislature intended to incorporate tion. Why should it be any different when Court interpreted Minnesota’s research the “minimum base amount” limitation it comes to ascertaining legislative intent? and development tax credit statute.34 into Minnesota law.37 And one last thing. As a legal community, we must do a better job of understanding how legislatures and legislators go about the practical work of enacting PAUL THISSEN is an Associate Justice of the Minnesota Supreme Court. Thissen served statutes. If judges, and the lawyers who in the Minnesota House of Representatives from 2003-2018, including as Speaker of the appear before them, appreciate legisla- House, while maintaining a litigation and transactional practice in the Twin Cities. tors’ methods for understanding what [email protected] bills mean, we can better effectuate the The author wishes to thank Ethan Less for his work on conducting the legislator survey discussed in intent of the Legislature. That is, after all, s this article. Thanks also to Anna Hall for her edits and comments on the article. the job of a judge.

25 Attributed to Confucius. And legislators are not likely to asked the following hypothetical: sumes a perfection of drafting that, 26 Richard A. Posner, The Federal waste time or energy arguing to “If a bill refers to ‘automobiles, as an empirical matter, is not often Courts: Crisis and Reform 276 (1985) remove redundancy when there are trucks, tractors, motorcycles, and achieved” and note that the canon (citing Karl N. Llewellyn, The Com- more important issues to address. other motor-powered vehicles’ has some “distinguished detrac- mon Law Tradition: Deciding Appeals Thus, the presumptions [underly- would you assume the bill covers tors,” including Justice Joseph 521–535 (1960)). Judge Posner’s ing the surplusage canon] do not airplanes?” Nine out of ten legisla- Story. Scalia & Garner, supra note entire essay, Interpreting Statutes and match political reality.”) Notably, tors assumed the bill did not cover 10, at 170. the Constitution, which is found in other common interpretive canons airplanes because all the vehicles 31 See Minn. Stat. §645.16(2) (courts the book, is well worth a read. like the negative-implication canon listed are land-based vehicles. Simi- may consider the “circumstances 27 Scalia & Garner, supra note 9, at (expressio unius est exclusion alterius) larly, Minnesota legislators broadly under which [a statute] was 174–180. find broader understanding and ac- support the interpretive principle enacted”). 28 See Linda D. Jellum, Mastering ceptance among legislators as they that doubts about the meaning of a 32 916 N.W.2d at 551 (Minn. 2018). Statutory Interpretation 104 (2008) work to understand the meaning of criminal statute should be resolved 33 Id. at 556. (“Statutes are not always carefully bills before them. Over three-quar- in favor of the defendant. 34 Gen. Mills, 931 N.W.2d at 793. drafted. Legal drafters often include ters of Minnesota legislators agreed 29 Scalia & Garner, supra note 10, at 35 Id. at 796 (citing Minn. Stat. redundant language on purpose that the concept of negative impli- 170–174. §290.068, subd. 2(c)).36 Id. at to cover any unforeseen gaps or cation was useful in understanding 30 Scalia and Garner agree that the 797–98. simply for no good reason at all. statutes. Further, legislators were consistent meaning canon “as- 37 Id.

30 Bench&Bar of Minnesota s November 2019 www.mnbar.org Notes&Trends

Landmarks in the Law Current developments in judicial law, legislation, and administrative action together with a foretaste of emergent trends in law and the legal profession for the complete Minnesota lawyer.

CRIMINAL LAW n Implied consent: Prehearing revocation allowed only if driver was given JUDICIAL LAW refusal-is-a-crime warning before blood n Criminal procedure: Petty misde- or urine test. Appellant’s driver’s license meanor convictions cannot be used to was revoked after a blood test, conduct- enhance subsequent offense. Appellant’s ed pursuant to a search warrant, showed two prior petty misdemeanor convic- that appellant drove with an alcohol 31 tions from 2014 and 2015 for no proof of concentration over 0.08. Appellant was CRIMINAL LAW insurance were used to enhance a 2017 served with the search warrant but was by Samantha Foertsch charge of operating a vehicle without never told test refusal is a crime. Minn. & Stephen Foertsch insurance to a gross misdemeanor. Appel- Stat. §171.177, subd. 1, requires that, lant received citations for the 2014 and “[a]t the time a blood or urine test is 32 2015 offenses and paid the fine amounts, directed pursuant to a search warrant…, EMPLOYMENT which were within the petty misde- the person must be informed that refusal & LABOR LAW meanor limits. As a result, per Minn. R. to submit to a blood or urine test is a by Marshall H. Tanick Crim. P. 23.02, the misdemeanor offenses crime.” Section 171.177, subd. 1, was became petty misdemeanor convictions. created to replace the implied consent 34 Section 609.131, subd. 3, disallows statutes for blood and urine tests after ENVIRONMENTAL LAW enhancement of a subsequent offense to the Minnesota and United States Su- by Jeremy P. Greenhouse, a gross misdemeanor by using “a convic- preme Courts held that testing of blood Jake Beckstrom, Erik Ordahl tion for a violation that was originally or urine without a warrant is unconsti- & Audrey Meyer charged as a misdemeanor and was treat- tutional, and the procedures in section ed as a petty misdemeanor.” Despite the 171.177 largely mirror those in the 36 plain language of section 609.131, subd. implied consent statutes. Thus, the court FEDERAL PRACTICE 3, the state argues the enhancement of appeals applies case law interpreting by Josh Jacobson here is permitted under either section the related implied consent statutes to 609.13, subd. 3 (convictions of felony section 171.177. 37 or gross misdemeanors; when deemed The court looks to Tyler v. Comm’r IMMIGRATION LAW misdemeanor or gross misdemeanor), or of Pub. Safety, 368 N.W.2d 275 (Minn. by R. Mark Frey section 169.797, subd. 4(a) (penalties 1985), which held that complying with for failure to provide vehicle insurance). the warning requirement was necessary 38 The court of appeals rejects the state’s before a license could be revoked under INTELLECTUAL PROPERTY argument, noting that section 609.13, the implied consent law. The court by Tony Zeuli & Joe Dubis subd. 3, involves an unrelated sentencing holds that an officer must have warned a issue, and that section 609.131, subd. 3’s driver as required under section 171.177, 38 expansive language, “[n]otwithstand- subd. 1, before the driver’s license may PROBATE & TRUST LAW ing any other law,” denotes that section be revoked prior to a hearing under by Casey D. Marshall 609.131, subd. 3’s prohibition of the use subd. 5. However, the court also suggests of petty misdemeanors to enhance a sub- a number of other ways the commis- 39 sequent offense to a gross misdemeanor sioner could revoke appellant’s license. TAX LAW “eclipses any other purportedly contrary Reversed and remanded to rescind ap- by Morgan Holcomb provision.” pellant’s prehearing revocation. Jensen v. & Sheena Denny Under section 609.131, subd. 3, ap- Comm’r of Pub. Safety, 932 N.W.2d 844 pellant cannot be convicted of a gross (Minn. Ct. App. 9/3/2019). misdemeanor. However, the court finds appellant can be convicted of a misde- n Public trial: Right to public trial ap- meanor based on the stipulated facts plies throughout voir dire. A jury found found by the district court. Reversed and appellant guilty of aiding and abetting remanded to reduce appellant’s convic- second-degree criminal sexual conduct, tion to a misdemeanor. State v. Selseth, aiding and abetting kidnapping, and aid- No. A18-1426, 2019 WL 4147596 ing and abetting second-degree assault. (Minn. Ct. App. 9/3/2019). During jury selection, the district court www.mnbar.org November 2019 s Bench&Bar of Minnesota 31 Notes&Trends | CRIMINAL LAW | EMPLOYMENT & LABOR LAW closed the courtroom while individual counsel conferring with him about the petition moot upon his release to Alpha jurors were questioned, at the state’s instruction or appellant’s agreement to House. request. The courtroom remained closed such an instruction, and appellant was The Supreme Court reverses the throughout the remainder of voir dire, voluntarily absent when the instruction court of appeals, finding appellant’s and 28 of 46 prospective jurors were was requested. The court finds no error release to Alpha House did not render individually questioned on a variety of in the district court’s refusal to give a no- his petition moot, that a writ of habeas topics. adverse-inference instruction. State v. corpus provides the proper procedural re- The Minnesota and United States Flah, No. A18-1758, 2019 WL 4251985 lief under the circumstances of this case, Constitutions confer upon all criminal (Minn. Ct. App. 9/9/2019). and that the DOC failed to adhere to defendants the right to a public trial. the law. Appellant’s petition is not moot This right applies during all phases of n Habeas corpus: Habeas relief is because he could be returned to prison trial, including voir dire of prospective proper procedural remedy for chal- after his release from Alpha House, jurors. Closure of a courtroom during lenge to continued incarceration during based on the likelihood that Hennepin criminal proceedings may be justified if: conditional release period. Appellant County would not supervise appellant (1) the party seeking closure advances was convicted of third-degree criminal and that appellant would not be able to an overriding interest that is likely to be sexual conduct in 2008 and sentenced find approved housing. prejudiced, (2) the closure is no broader to three years’ imprisonment, stayed for Habeas relief is also the proper than necessary to protect that interest, 15 years, and a five-year conditional procedural remedy here. Minn. Stat. (3) the district court considers reason- release term. The sentence was executed §589.01 allows any person imprisoned or able alternatives to closing the proceed- in 2013. He was placed on supervised otherwise restrained of liberty to petition ing, and (4) the district court makes release in January 2014, but supervised for a writ, and appellant’s liberty was findings adequate to support the closure. release was revoked in August 2014. Ap- restrained by the department’s failure Here, the district court did not make pellant’s supervised release term expired to abide by its own internal policies findings concerning the reasons for in February 2015 and he became eligible regarding supervised release and judicial closing the courtroom, the necessary for conditional release. On his release precedent. breadth of the closure, or the existence date, appellant was instead transferred Finally, the DOC failed to follow the or absence of reasonable alternatives. to Blue Earth County jail because he did law, specifically State ex rel. Marlowe v. Thus, the court of appeals is unable to not have approved housing in Blue Earth Fabian, 755 N.W.2d 792 (Minn. Ct. App. determine whether the closure was justi- County. He unsuccessfully searched for 2008). The court of appeals in Marlowe fied. The court finds the proper remedy housing and his release was revoked for stated that the department “has an ob- is a remand for an evidentiary hearing 90 days, and appellant was returned to ligation to fashion conditions of release and findings concerning whether the clo- prison. This pattern continued, with ap- that are workable and not impossible to sure was justified. State v. Petersen, No. pellant unable to find approved housing satisfy.” Id. at 793. The Supreme Court A18-1431, 2019 WL 4147598 (Minn. and his incarceration extended. accepts the district court’s conclusion Ct. App. 9/3/2019). Appellant petitioned for a writ of in this case that, contrary to Marlowe’s habeas corpus, arguing the Department of holding, the DOC “never modifies of- n Jury instructions: No error to deny Corrections (DOC) unlawfully extended fenders’ conditions of release.” The court counsel’s request for no adverse infer- his incarceration after his conditional upholds the district court’s order for the ence jury instruction when defendant release term began. The court of appeals department to “fully comply” with Mar- is absent and has not consented to or reversed, finding the DOC was required lowe. State ex rel. Ford v. Schnell, No. requested instruction. On the second to provide assistance to appellant in find- A17-1895, 2019 WL 4282040 (Minn. day of appellant’s trial on charges of ing approved housing, and remanded to 9/11/2019). first- and second-degree criminal sexual permit the DOC to develop the record conduct, he failed to appear. After excus- as to what other housing options were SAMANTHA FOERTSCH ing the jury and recessing to discuss jury available, warning that, if no suitable op- Bruno Law PLLC instructions, the district court noted that tions were available, the department was [email protected] appellant’s counsel preferred to include required to consider restructuring the STEPHEN FOERTSCH a no-adverse-inference jury instruction. conditions of release. Bruno Law PLLC It was not known whether appellant Two days before the case was sched- [email protected] wanted the instruction, and the court uled for a hearing before the district ultimately did not give the instruction. court, appellant was released to a resi- The jury found appellant guilty. dential sex offender treatment program EMPLOYMENT & LABOR LAW First, the court of appeals holds that in Hennepin County, Alpha House, appellant did not waive his challenge and the DOC argued appellant’s release JUDICIAL LAW to the jury instructions through his made appellant’s habeas petition moot. n Municipal liability; claim rejected. A voluntary absence at trial. Second, the The hearing proceeded and the district jury determination that a mayor was not court holds the district court did not err court ultimately granted appellant’s peti- liable for racial discrimination against a by denying appellant’s counsel’s request tion, ordering the department to treat municipal employee barred any related for the no-adverse-inference instruction. either Hennepin or Ramsey County as claims against the city. The 8th Circuit The instruction must be given when appellant’s presumptive release jurisdic- Court of Appeals held that the absence requested by a defendant who did not tion and, if either county declined to of liability against the municipal official testify at trial, but it should ordinarily accept supervision, to provide supervi- precluded those other claims. Ridgell v. not be given unless requested or per- sion in that county or modify appellant’s City of Pine Bluff, 935 F.3d 633 (8th Cir. sonally consented to by the defendant. release conditions. The court of appeals 8/29/2019) (unpublished). Here, there was no record of appellant’s reversed, finding appellant’s habeas

32 Bench&Bar of Minnesota s November 2019 www.mnbar.org | EMPLOYMENT & LABOR LAW n Employee discipline; split NLRB deci- n Social Security disability; reception- n Unemployment compensation; sion. The 8th Circuit upheld an admin- ist not disabled. An office receptionist safety issue. A facilities technician at istrative determination that an employer was deemed ineligible for social security a semiconductor facility was denied violated the National Labor Relations disability (SSDI) benefits. Affirming unemployment benefits because he Act (NLRA) by prohibiting an employee an administrative law decision, the 8th failed to timely respond to alarms at the from discussing her discipline with co- Circuit held that the claimant was able work site. The appellate court held that workers and then discharging her for to engage in substantial gainful activities the employee committed disqualifying doing so. But it overturned an adminis- despite her maladies. Sloan v. Saul, 933 misconduct. Goudiaby v. Skywaters Tech trative determination that the employer F.3d 946 (8th Cir. 8/12/2019). Foundry, Inc., 2019 WL 3540666 (Minn. wrongfully gave the employee a “last Ct. App. 8/5/2019) (unpublished). chance” warning while she was appeal- n Athletic coaches; state law claims ing a prior unlawful discipline charge. dismissed. Claims of violation of the n Unemployment compensation; PIP Southern Bakeries, LLC v. NLRB, Minnesota Human Rights Act and not basis to quit. An employee who 2019 WL 4280367 (8th Cir. 9/11/2019) whistleblower act by former coaches of quit after receiving a performance (unpublished). women’s athletic teams at the Duluth improvement plan (PIP) was not entitled campus of the University of Minnesota to unemployment compensation. The n Race discrimination; none similarly were dismissed by the Minnesota Court appellate court ruled that the employer situated. An African-American man of Appeals, affirming a lower court rul- did not force him to resign. Stenger v. who claimed he was fired due to race dis- ing. It held that the doctrine of equi- Minnesota Wire & Cable Co., 2019 WL crimination lost his claim because he was table tolling of the statute of limitations 3543692 (Minn. Ct. App. 8/5/2019) unable to show that the employer treated was inapplicable for claims previously (unpublished). other similarly-situated Caucasian work- brought and dismissed in federal court, ers differently. Absent such evidence, the while the exclusivity provision of the MARSHALL H. TANICK 8th Circuit Court of Appeals upheld a Human Rights Act, as res judicata, and Meyer, Njus & Tanick lower court ruling that the termination collateral estoppel all barred the claims, [email protected] was not pretextual. Beasley v. Warren as well. Miller v. Board of Regents, 2019 Unilube, Inc., 933 F.3d 932 (8th Cir. WL 4164898 (Minn. Ct. App. 9/3/2019) 8/9/2019) (unpublished). (unpublished).

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Get a fast quote today! www.mlmins.com Protecting Your Practice is Our Policy.® or contact Chad Mitchell-Peterson 612-373-9681 or [email protected] www.mnbar.org November 2019 s Bench&Bar of Minnesota 33 MN Bench and Bar 2019 Notes&Trends | ENVIRONMENTAL LAW ENVIRONMENTAL LAW that the plaintiffs’ use of resources for likely trigger new lawsuits from tribal and litigation, investigation in anticipation environmental groups. JUDICIAL LAW of litigation, or advocacy related to the MPCA denies Enbridge’s 401 Certi- n Federal district court rejects chal- proposed land exchange is not sufficient fication.On 9/27/2019, the Minnesota lenges to PolyMet federal land ex- to give rise to an Article III injury. Pollution Control Agency (PCA) issued change. The United States District The court also noted that to the a denial of the application for Clean Court for the District of Minnesota extent plaintiffs asserted standing based Water Act (CWA) Section 401 Water issued an opinion dismissing four actions on PolyMet’s intended future use of Quality Certification by Enbridge Energy against PolyMet Mining, Inc. concern- the federal property for the proposed for its Line 3 project in northern Min- ing a land exchange between PolyMet non-ferrous mine, this did not present nesota. The PCA based its denial on the and the U.S. Forest Service (USFS). an injury that was sufficiently concrete, Minnesota Court of Appeals ruling that The land exchange, which the USFS particularized, and imminent. In addi- the environmental impact statement approved with a Final Record of Deci- tion, unless and until PolyMet Mining (EIS) provided for the Line 3 project was sion in January 2017, involved PolyMet’s secures the permits needed to build its inadequate in that it did not adequately proposed transfer to USFS of 6,690 mine (which had not yet happened at address the potential for a spill in the acres of private land in exchange for the the time plaintiffs brought their ac- Lake Superior watershed. USFS’s transfer to PolyMet of property tions), the court held, nothing in the The PCA stated that the appellate rights in 6,650 acres of federal land in record indicated PolyMet intended any court’s ruling suggests that “additional the Superior National Forest. PolyMet changes to the federal land after the land information directly pertinent to water plans to develop an open-pit copper- exchange that would affect those not quality in Minnesota (and therefore, the nickel mine on the federal land. The on the property. WaterLegacy v. USDA 401 request) will likely be required to be four actions were brought by numerous Forest Serv., 2019 U.S. Dist. LEXIS prepared for the EIS.” The PCA went environmental groups asserting claims 169350 (9/30/2019). further and clarified that in addition under federal statutes including the Ad- to the information needed to address ministrative Procedures Act, the Federal n Enbridge Line 3 updates. Minnesota a potential spill in the Lake Superior Land Policy and Management Act, the Supreme Court rejects Line 3 challenges. watershed, Enbridge would also need to National Environmental Policy Act, the On 9/17/2019, the Minnesota Supreme provide (1) a revised pre- and post- Weeks Act, and the Endangered Species Court declined to take up challenges construction monitoring plan for aquatic Act. Asserting that the plaintiffs lacked raised by tribal and environmental resources, and (2) a revised proposal for standing under Article III of the U.S. groups regarding the environmental compensatory wetland mitigation. Constitution and that their claims were review of Enbridge Energy’s proposal The PCA also found that although not ripe, Poly Met Mining moved to for replacing Line 3 in northern Min- Enbridge provided a summary plan for dismiss all four actions. nesota. The challenges made by tribal post-construction monitoring, PCA In granting PolyMet’s motion to and environmental groups argued that would need additional, more specific dismiss, the court focused its analysis the state Public Utilities Commission’s information from Enbridge regarding the on whether the plaintiffs had standing (PUC) approval of the environmental monitoring plan for aquatic resources. under the standard articulated in Iowa review provided for the Line 3 project Likewise, the PCA found that although League of Cities v. EPA, 711 F.3d 844, was inadequate in that it did not ap- Enbridge had proposed a compensatory 869 (8th Cir. 2013): “An association propriately address the potential impact mitigation plan for proposed impacts has standing to bring suit on behalf of of a spill in the Lake Superior watershed. to wetlands resulting from the Line its members when its members would Those challenges were first heard by 3 project, the proposal itself did not otherwise have standing to sue in their the Minnesota Court of Appeals, which provide adequate justification for certain own right, the interests at stake are ger- in June 2019 reversed a portion of the compensatory mitigation ratios proposed mane to the organization’s purpose, and PUC’s approval of the Line 3 environ- by Enbridge. neither the claim asserted nor the relief mental review—requiring the PUC to Accordingly, the PCA denied requested requires the participation of further address the possibility of a spill in Enbridge’s 401 Certification without individual members in the lawsuit.” the Lake Superior watershed. prejudice, requiring additional informa- For example, the court held that even The tribal and environmental groups tion supporting the request for 401 Cer- though some of the plaintiffs’ members then appealed those portions of the Line tification in order to provide the PCA had visited the federal lands involved 3 environmental review which were not with reasonable assurance of the Line 3 in the land exchange, they did not have reversed to be heard by the Supreme Project’s ability to comply with Minne- individual standing because they had not Court. With the Supreme Court’s refusal sota water quality standards. articulated concrete plans to revisit the to take up the challenges, Minnesota lands in the future (at least, not until the regulators, namely the PUC, will now ADMINISTRATIVE ACTION litigation was commenced), and had not be able to begin the process of fixing the n EPA withdraws California’s Clean explained how they would overcome the deficiency in the Line 3 environmental Air Act fuel emissions waiver. On practical and legal hurdles involved in review identified by the court of appeals. 9/19/2019, the U.S. Department of visiting the land once it was fully under Enbridge cannot begin construction of Transportation’s National Highway PolyMet’s control and private property. the Line 3 project until it obtains several Traffic Safety Administration (NHTSA) The court also rejected standing based environmental permits from state and and the U.S. Environmental Protec- upon alleged diminution in value of federal agencies. Those permits cannot tion Agency (EPA) issued the final certain of plaintiffs’ members, explaining be obtained until after the PUC gives One National Program Rule to enable that the alleged property value losses are final approval of the updated environ- federal uniform emission standards on not germane to the purpose of plaintiffs’ mental review. Even then, approval of fuel economy and greenhouse gases for organizations. Similarly, the court held the updated environmental review will automobile and light duty trucks. In

34 Bench&Bar of Minnesota s November 2019 www.mnbar.org | ENVIRONMENTAL LAW doing so, EPA proposed to withdraw a preemption waiver that gives Califor- nia unique authority to enact stricter emission standards than federal regulations. Specifically, EPA is withdrawing the Clean Air Act preemption waiver it granted to California in January 2013 as it relates to California’s greenhouse gas PJT feb 08 1/9/08 10:16 AM Page 1 (GHG) and zero emission vehicle (ZEV) programs. The waiver revocation finalizes standards initially proposed in August 2018’s proposed “Safer, Affordable, Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks.” The SAFE rule proposed to give EPA authority to re- consider and withdraw previous waivers l already granted in order to standardize fuel economy standards. EPA grounded Appea the revocation in congressional intent to l implement uniform national standards rusteess Appea and in furtherance of President Trump’s T l plan to scale back Obama-era vehicle O TR emission standards. rusteess Appea Prior to this rule, California was able ers T iv SupersedeaO l to request a waiver to set its own vehicle TR emission standards if it could demon- rusteess Rece ers T Appea strate that the proposed standards were iv SupersedeaO l at least as stringent as federal standards. Indemnity TR ff rusteess Under Clean Air Act (CAA) Section Rece ers T Appea 209(b), EPA must grant a waiver request Judgment iv SupersedeaO l Sheri Indemnity TR unless it finds that (1) California’s deter- ff rusteess mination that the standards are as strin- WHENevin PERFORMANCE Rece ers COUNTS T Appea Judgment iv SupersedeaO l gent as federal standards is arbitrary and Repl Sheri Indemnity TR capricious, (2) California does not need Guardianship ff rusteess evin Rece ers T Appea additional standards to meet compel- Judgment iv SupersedeaO l ling and extraordinary conditions, or (3) Repl Sheri Indemnity TR Guardianship ff rusteess California’s standards and venforcementatorship Certiorari evin Rece ers T Appea procedures are not consistent with fed- Judgment iv SupersedeaO l Repl Sheri Indemnity TR eral emission standards. Once a waiver GuardianshipT HE PA T RICK J TfHf OMAS AGENC Y rusteess was granted, otherConser states couldv chooseatorship toCertiorari evin Rece ers T Appea Judgment iv SupersedeaO l opt into either theAttachment federal emission stan- SURETY BONDING Sheri and INSURANCIndemnityE R dards or California’s emission standards. Repl f T Conser atorship Certiorari Guardianship vin f Rece Trusteess Appea As of September 2019, 13 other states,v e Judgment vers Supersedea l Attachment Sheri i RO as well as Washington DC, followed the With over 40 Replyears experience PJT hasf Indemnity been Minnesota ’Ts California standards. Conser atorshipCertiorari Guardianship f Rece rusteess Appea v surety bonding specialist.evin WithJudgment the knowledge, experienceers T l EPA claims authority toAttachment revoke the iv SupersedeaO waiver because, contrary to the require- Repl Sheri Indemnity TR p and guidanceGuardianship law firms expect from a bondingff company. rusteess ments of Clean Air Act SectionConser 209(b) vatorship Certiorari evin Rece ers T Appea Judgment iv SupersedeaO (1)(B), California does not needAttachment the Sheri Indemnity R vatorshi GHG and ZEV standards to address • Repl• • • f • T t Conser atorshipCertiorariSupersedeas Guardianship Appealsvin Certiorari Replf e vinRece Trustees “compelling and extraordinary condi- v e Judgment ers Supersedea Attachment • • • • iv O Conser tions.” It also claims that the waiver Injunction RestrainingRepl Order Sheri Judgment Indemnity TR violates the Energy Policy & Conserva- Guardianship ff Conser vatorship• Certiorari • • evin Rece• ers Attachmen tion Act’s (EPCA) bar on states estab- License Bonds Trust Personal Judgment Representative iv edeas Attachment Sheri Indemnity lishing their own fuel economy standards • Conservator • Professional Repl Liability • ERISA • Fidelityf • because California’s rules are “related to”Conser atorship Certiorari Guardianship vin f Rece Appeal v e Judgment fuel economy. California and 23 other Attachment Sheri Indemnity s states as well as the cities of Los Ange- Locally owned and operated. Same dayRepl service with in house authority!f Conser atorship Certiorari Guardianship vin f rustees les and New York have filed a lawsuit v e Judgment T against the EPA for this rule. At issue are Attachment Sheri O 121 South Eighth Street Suite 980, Minneapolis,Repl MN 55402 TR Supersedea whether EPA has legal authority to with- ConserIn St. Paulatorship call (651)Certiorari 224-3335 Guardianship or Minneapolis (612) 339-5522 v evin ers draw a waiver and under what circum- AttachmentFax: (612) 349-3657 • [email protected] • wwwi.pjtagencv y.com stances it may exercise that authority. Repl Conser atorshipCertiorari GuardianshipRece v f Indemnity www.mnbar.org Attachment November 2019f s Bench&Bar of Minnesota 35 Conser vatorship Certiorari Sheri Judgment Attachment evin Conser Repl Attachment Guardianship Certiorari Notes&Trends | ENVIRONMENTAL LAW | FEDERAL PRACTICE

The One National Program Rule takes Cahoon v. L.B. White Co., 2019 WL Stockwell, 2019 WL 3947007 (D. Minn. effect on November 18. 4786097 (D. Minn. 10/1/2019). 8/21/2019).

JEREMY P. GREENHOUSE n Motion for partial summary judgment n Fed. R. Civ. P. 37(a)(5)(B); motions The Environmental Law Group, Ltd. denied; advisory opinion. Judge Mag- to compel; attorney’s fees awarded. [email protected] nuson denied the defendant’s motion Magistrate Judge Menendez awarded JAKE BECKSTROM Vermont Law School, 2015 for partial summary judgment, find- the defendants $1,803 in attorney’s fees ERIK ORDAHL Flaherty & Hood, P.A. ing that the issue was not yet “ripe for for expenses incurred in responding to a AUDREY MEYER University of St. Thomas decision,” and that the court was “being motion to compel that was not “substan- School of Law, J.D. candidate 2020 asked to render an advisory opinion on tially justified.” Smith v. Bradley Pizza, a hypothetical determination of crucial Inc., 2019 WL 4387357 (D. Minn. facts.” Borup v. The CJS Solutions 9/13/2019). FEDERAL PRACTICE Group, 2019 WL 4820732 (D. Minn. Magistrate Judge Menendez awarded 10/1/2019). the defendant $4,000 in attorney’s fees JUDICIAL LAW incurred in responding to the plaintiff’s n CAFA; amount in controversy; timeli- n Removal; Fed. R. Civ. P. 65; temporary motion to compel, finding that the mo- ness of removal; reversal of remand. injunction dissolved. Judge Schiltz dis- tion was not “substantially justified.” Plaintiffs filed a putative class action in solved a temporary injunction entered Darmer v. State Farm Fire & Cas. Co., the Missouri courts seeking compensatory prior to removal, finding that the injunc- 2019 WL 4387324 (D. Minn. 9/13/2019). and statutory damages, punitive damages, tion had been entered without notice to and an award of attorney’s fees in un- the defendant, did not state the reasons n Motion for Rule 11 sanctions denied. specified amounts. The defendant even- why it was issued, and did not require Judge Tostrud denied the defendant’s tually removed the action under CAFA. the posting of a bond, all of which early motion for Rule 11 sanctions in a Plaintiffs moved to remand, arguing that ran afoul of Fed. R. Civ. P. 65. Marco patent case, finding that a “reasonable the removal was untimely. However the Technologies, Inc. v. Midkiff, 2019 WL and competent attorney” could “believe district court, sua sponte, remanded the 4298086 (D. Minn. 9/11/2019). the legal and factual bases” for the plain- action, finding that defendants had not tiff’s claims. Red Rhino Leak Detection, established that the amount in contro- n Discovery of settlement discussions; Inc. v. Anderson Mfg. Co., 2019 WL versy exceeded $5 million. The defendant waiver of work-product privilege. 4410324 (D. Minn. 9/16/2019). petitioned for leave to appeal. Overruling objections to an order by On appeal, the 8th Circuit granted Magistrate Judge Rau, Judge Ericksen n Motion to extend time to respond to the petition, and then found that the declined to apply a heightened standard motion to amend granted. While chastis- district court had erred in its amount- of relevance to discovery of settlement ing defendants for failing to file their op- in-controversy analysis by focusing on negotiations, and also found that any position to plaintiffs’ motion to amend in the likelihood of the plaintiffs’ recovery work-product privilege was waived when accordance with the deadline established rather than the possibility of that recov- the disputed information was voluntarily in the Local Rules, Magistrate Judge ery. The 8th Circuit also found that the disclosed to the government during the Leung granted the defendants’ motion removal was timely where the defendant litigation. United States ex rel. Higgins to extend time to respond to that mo- removed within 30 days of the comple- v. Boston Scientific Corp., 2019 WL tion. Bailey v. Met. Council, 2019 WL tion of its investigation of the potential 4052327 (D. Minn. 8/28/2019). 4687040 (D. Minn. 9/26/2019). amount in controversy. Pirozzi v. Mas- sage Envy Franchising, LLC, ___ F.3d n Motion to deny motion for pro hac n Attorney’s fees granted. Chief Judge ___ (8th Cir. 2019). vice admission denied. Magistrate Judge Tunheim awarded the prevailing plaintiff Leung denied a motion by pro se plain- in an employment discrimination case n Notice of removal; validity; attorney tiffs to deny pro hac vice admission to a more than $2.3 million in attorney’s fees, not admitted in jurisdiction. Finding that Pennsylvania attorney, finding that the rejecting the defendants’ challenge to “removal is a federal procedure governed plaintiffs’ potential inability to record the rates of out-of-market attorneys and by federal statute,” the 8th Circuit re- their telephone conversations with him paralegals, which ranged from $550- jected a challenge to a removal from the because Pennsylvania is a “two-party” $750 per hour, and $200 to $250 for Arkansas state courts where the attorney state did not provide a basis to deny paralegals. Miller v. Bd. of Regents of the who filed the removal was licensed in pro hac vice admission. Bailey v. Met. University of Minnesota, ___ F. Supp. federal court but was not licensed in the Council, 2019 WL 4387325 (D. Minn. 3d ___ (D. Minn. 2019). Arkansas courts. Brooks v. Liberty Life 9/13/2019). Assurance Co., 937 F.3d 1144 (8th Cir. ADMINISTRATIVE ACTION 2019). n Request for sanctions pursuant to n Transcripts; privacy procedures; Fed. R. Civ. P. 26(g), inherent powers and interim order. Effective 10/14/2019, n Fed. R. Civ. P. 15(c)(1); relation back of 28 U.S.C. §1927 denied. Despite criticiz- court reporters are required to file all amendments. Magistrate Judge Wright ing plaintiff’s counsel’s “gross oversight” transcripts under temporary seal to allow granted the plaintiff’s motion to amend in failing to conduct a thorough pre-suit parties the opportunity to identify per- to correct misnomers, finding that Judge investigation and his finding that coun- sonal identifiers or confidential informa- Wright had already determined that the sel’s conduct “verge[d] on abuse of the tion that need to be redacted. If personal claims related back for purposes of Fed. judicial process,” Judge Frank denied one identifiers require redaction, a party R. Civ. P. 15(c)(1), and that there was no defendant’s request for sanctions under must follow the procedures set forth in evidence that the plaintiff “made a con- Fed. R. Civ. P. 26(g), inherent powers, L.R. 5.5. If a party believes that confi- scious choice” to sue the wrong parties. and/or 28 U.S.C. §1927. Beaulieu v. dential information needs redaction, a

36 Bench&Bar of Minnesota s November 2019 www.mnbar.org | FEDERAL PRACTICE | IMMIGRATION LAW motion must be filed within seven days York, African Services Committee, Asian public charge definition, why this new after the filing of the transcript. And if a American Federation, Catholic Charities definition is needed now, or why the party believes that no redactions are nec- Community Services, and Catholic Legal definition set forth in the Rule—which essary, it must file a notice to that effect Immigration Network, Inc.) (organiza- has absolutely no support in the history no later than seven days after the tran- tional plaintiffs) filed a complaint in the of U.S. immigration law—is reasonable. script is filed. In Re: Revised Transcript U.S. District Court for the Southern Dis- The Rule is simply a new agency policy Procedures to Provide Increased Privacy trict of New York. Make the Road New of exclusion in search of a justification. Protections (Order dated 10/11/2019). York, et al. v. Ken Cuccinelli, et al., No. It is repugnant to the American Dream 1:19-cv-07993 (S.D.N.Y. 8/27/2019). of the opportunity for prosperity and JOSH JACOBSON https://ccrjustice.org/sites/default/files/ success through hard work and upward Law Office of Josh Jacobson attach/2019/08/Public%20Charge%20 mobility.” State of New York, et al. v. [email protected] Complaint.pdf DHS, et al., No. 1:19-cv-07777-GBD On 9/9/2019, the state plaintiffs filed (S.D.N.Y 10/11/2019). https://ag.ny.gov/ a motion for preliminary injunction to sites/default/files/doc_110_opinion.pdf IMMIGRATION LAW enjoin the government from enforcing Related litigation in other regions of the the final rule. https://ag.ny.gov/sites/de- United States includes the following: JUDICIAL LAW fault/files/35_plaintiffs_mol_iso_pi.pdf On 8/14/2019, the states of Wash- n Applications for asylum by those who On 9/9/2019, the organizational ington, Virginia, Colorado, Delaware, travel through a third county without plaintiffs also filed a motion for pre- Illinois, Maryland, Massachusetts, Michi- first seeking relief there. Subsequent to liminary injunction to enjoin the gan, Minnesota, Nevada, New Jersey, the 7/24/2019 order issued by the U.S. government from enforcing the final New Mexico, and Rhode Island filed a District Court in the Northern District rule. https://www.courtlistener.com/recap/ complaint for declaratory and injunctive of California enjoining the govern- gov.uscourts.nysd.521773/gov.uscourts. relief against the Department of Home- ment from implementing its rule (i.e., nysd.521773.38.0.pdf land Security and U.S. Citizenship and a mandatory bar to asylum eligibility On 10/11/2019, the U.S. District Immigration Services in the U.S. District for individuals entering or attempting Court in the Southern District of New Court for the Eastern District of Wash- to enter the United States through the York issued a nationwide order enjoin- ington at Richland. State of Washington, southern border while traveling through ing and restraining the government et al. v. DHS, et al., No. 4-19-cv-05210 a third country without first seeking from “enforcing, applying or treating (E.D. Wash. 8/14/2019). https://agportal- relief in that country), the same district as effective, or allowing persons under s3bucket.s3.amazonaws.com/uploadedfiles/ court and 9th Circuit Court of Appeals their control to enforce, apply, or treat Another/News/Press_Releases/001_Com- issued further rulings on the injunction. as effective, the Rule” until such time plaint_1.pdf The matter then went before the U.S. as the order is terminated and the rule On 10/11/2019, the U.S. District Supreme Court, which issued an order goes into effect. State of New York, et Court found in favor of the plaintiff on 9/11/2019 staying the district court’s al. v. DHS, et al., No. 1:19-cv-07777- states, enjoining the government from injunction during the pendency of the GBD (S.D.N.Y 10/11/2019). http:// implementing the rule until further order court litigation on the mandatory bar to www.nysd.uscourts.gov/cases/show. of the court. State of Washington, et asylum eligibility. Barr, el al. v. East Bay php?db=special&id=720 Make the Road al. v. DHS, et al., No. 4:19-cv-05210- Sanctuary Covenant, et al., 588 U.S. New York, et al. v. Ken Cuccinelli, et RMP (E.D. Wash. 10/11/2019). https:// ____ (2019). https://www.supremecourt. al., No. 1:19-cv-07993-GBD (S.D.N.Y. www.waed.uscourts.gov/sites/default/ gov/opinions/18pdf/19a230_k53l.pdf 10/11/2019). http://www.nysd.uscourts. files/19513691270.pdf gov/cases/show.php?db=special&id=722 On 8/13/2019, the City and County n Inadmissibility and public charge In its accompanying order and memo- of San Francisco and the County of grounds. On 8/14/2019, the Department randum, the court pointedly noted, while Santa Clara filed suit in the U.S. District of Homeland Security (DHS) published discussing the arbitrary and capricious Court for the Northern District of Cali- its final rule amending regulations ad- nature of the rule, that “Defendants do fornia seeking declaratory and injunctive dressing inadmissibility, on public charge not articulate why they are changing the relief, challenging the final rule. City grounds, of foreign nationals seeking admission or adjustment of status. The rule was scheduled to go into effect on 10/15/2019. 84 Fed. Reg., 41,292-508 (8/14/2019). https://www.govinfo.gov/ content/pkg/FR-2019-08-14/pdf/2019- 17142.pdf On 8/20/2019, the State of New York, the City of New York, the State of Con- necticut, and the State of Vermont (state plaintiffs) filed a complaint seeking declaratory and injunctive relief in the U.S. District Court for the Southern District of New York. State of New York, et al. v. DHS, et al., No. 1:19-cv-07777 (S.D.N.Y 8/20/2019). https://ag.ny.gov/sites/default/ files/8.20.2019_complaint_as_filed.pdf On 8/27/2019, Make the Road New www.mnbar.org November 2019 s Bench&Bar of Minnesota 37 Notes&Trends | IMMIGRATION LAW | INTELLECTUAL PROPERTY | PROBATE & TRUST LAW and County of San Francisco, et al. v. Since publication of the Interim n Patent: Construing design patent USCIS, et al., No. 3:19-cv-4717 (N.D. Final Rule in the Federal Register on claims. Judge Tostrud also recently Cal. 8/13/2019). https://www.sfcityattor- 10/11/2019, the Department of State has entered a claim construction order ney.org/wp-content/uploads/2019/08/Filed- announced that it will not implement in a design patent infringement case Complaint.pdf the changes until such time as it obtains that avoided a “no-scope” construc- On 8/16/2019, the states of Califor- approval for use of a new form (Affidavit tion. Graphic Packaging International nia, Maine, Oregon, Commonwealth of of Support) reflecting them. https://travel. sued Inline Packaging for infringing its Pennsylvania, and the District of Colum- state.gov/content/travel/en/traveladvisories/ utility and design patents for micro- bia filed a complaint for declaratory and ea/Information-on-Public-Charge.html wave susceptor sleeves—sleeves used injunctive relief against the Department for heating and carrying food products, of Homeland Security and U.S. Citizen- R. MARK FREY including “Hot Pockets.” After all claims ship and Immigration Services in the Frey Law Office of the utility patent were canceled in an U.S. District Court for the Northern [email protected] inter partes review, the case proceeded District of California. State of Califor- with Graphic Packaging’s remaining nia, et al. v. DHS, et al., No. 3-19-cv- three design patents. Each design patent 04975 (N.D. Cal. 8/16/2019). https://oag. INTELLECTUAL PROPERTY contained a single claim claiming “the ca.gov/system/files/attachments/press-docs/ ornamental design for a carton blank, Public%20Charge%20Complaint.pdf JUDICIAL LAW as shown and described.” Graphic On 10/11/2019, the U.S. District n Copyright: Statutory damages limited Packaging sought constructions that Court issued an order for the plaintiffs to number of infringed registrations. construed the scope of the claims as in both cases (City and County of San Judge Tostrud recently entered default the visual appearance of the susceptor Francisco, the County of Santa Clara, judgment against Your Inspiration and sleeves as shown in the claim drawings. and the States of California, Maine, Or- awarded $300,000 in statutory copyright Inline Packaging argued that the design egon, Commonwealth of Pennsylvania, damages. Adventure Creative Group of the sleeves was primarily functional and the District of Columbia), enjoining (ACG) entered into a marketing services and sought constructions giving the the government from applying the rule, contract with Your Inspiration in 2012. patents no scope. The court found the in any manner, “to any person resid- Your Inspiration stopped paying ACG its law discourages no-scope constructions. ing (now or at any time following the fee, but continued to use the advertis- Because the sleeves were amenable to issuance of this order)” in those locales. ing materials generated by ACG. ACG alternative designs, the sleeves’ patented The injunction remains in effect until sued Your Inspiration for copyright designs were not primarily functional. the matter is resolved on the merits. infringement. After Your Inspiration The court adopted Graphic Packaging’s City and County of San Francisco, et failed to answer the complaint, default constructions. Graphic Packaging Int’l, al. v. USCIS; State of California, et al. was entered. ACG sought an award of LLC v. Inline Packaging, LLC, No. 15- v. DHS; La Clinica de la Raza, et al. $16,350,000, which it calculated by cv-03476, 2019 U.S. Dist. LEXIS 17066 v. Donald Trump, et al., No. 4:19-cv- multiplying the number of works it said (D. Minn. 10/1/2019). 04717-PJH (N.D. Cal. 10/11/2019). Your Inspiration infringed (109) by the https://www.uscis.gov/sites/default/files/ maximum statutory damage award avail- TONY ZEULI USCIS/files/NDCA_Injunction.pdf able for willful infringement ($150,000). Merchant & Gould These court decisions do not, how- The court, however, found Adventure [email protected] ever, enjoin the changes brought by the Creative Group’s calculation improper. JOE DUBIS public charge rule as implemented by ACG holds two registered copyrights Merchant & Gould DHS’ sister agency, Department of State, that Your Inspiration infringed—a cata- [email protected] in consular processing of visas abroad. log and a video. Statutory damages may They remain in place as outlined in its be awarded under 17 U.S.C. §504(c) 10/11/2019 Interim Final Rule, sched- entitling a copyright owner to recover uled to go into effect on 10/15/2019. up to $30,000 in statutory damages per PROBATE & TRUST LAW The rule makes changes to the exist- infringed registration or a maximum of ing definitions of public charge, public $150,000 per registration if the infringe- JUDICIAL LAW benefit, foreign national’s household, ment was willful. ACG arrived at its 109 n Motions to confirm claim disallow- and receipt of public benefit. At the infringements by counting individual ance during appeal. Prior to decedent’s same time, the consular officer assessing photographs and text removed from each death, plaintiff filed a lawsuit against an applicant for admissibility is accorded registered work. The court, however, decedent in federal court. Following greater discretion as (s)he reviews such found that all of the parts of a compila- decedent’s death, plaintiff asserted a factors as Age, Health, Family Status, tion or derivative work constitute one contingent claim against decedent’s Financial Status, Education and Skills, work. Therefore, ACG was entitled estate, based on the pending lawsuit, by as well as such negative factors as Lack to statutory damages on only the two filing a statement of unsecured claim. of Recent Employment or Prospect of registered works, not the 109 separate The personal representative of the estate Future Employment; Current or Certain elements. The court awarded Adventure disallowed the claim. The district court Past Receipt of Public Benefits; Lack Creative Group the maximum $150,000 granted a motion to dismiss plaintiff’s of Financial Means to Pay for Medical statutory award for willful infringement claims against the estate in federal court. Costs; and Prior Public Charge Inadmis- of each of ACG’s registered works. While the appeal was pending in the sibility or Deportability Finding. 84 Fed. Adventure Creative Grp., Inc. v. CVSL, 8th Circuit, the personal representative Reg., 54,996-015 (10/11/2019). https:// Inc., No. 16-cv-2532, 2019 U.S. Dist. of the estate moved to confirm disal- www.govinfo.gov/content/pkg/FR-2019-10- LEXIS 155545 (D. Minn. 9/12/2019). lowance of the contingent claim. The 11/pdf/2019-22399.pdf district court denied the motion.

38 Bench&Bar of Minnesota s November 2019 www.mnbar.org | PROBATE & TRUST LAW | TAX LAW

In a matter of first impression, the allege facts that establish some damage Minnesota Court of Appeals held that in the form of a loss of a legal right. The in cases involving contingent claims and Court started by laying out the general possible delay to probate administration, rule that some damage may be created district courts must balance the “prompt, by establishing either financial liability orderly, and efficient administration of or the loss of a legal right. The Court a decedent’s estate” against the “inter- held that no loss of legal right had been est in protecting the claims of creditors established because the operative legal against [an estate].” The court of appeals right at issue was the ownership of prop- concluded that the district court had erty. The point of the transaction was conducted the proper balancing and precisely to exchange ownership of the confirmed.In re the Supervised Estate of property for money. In other words, “the Brian Short, No. A18-1682 (Minn. Ct. parties may dispute whether U.S. Bank’s App. 8/26/2019). alleged breaches caused the Beneficiaries to part with their legal right to ownership n Statute of limitations; “some damage” of the property for too little money, but rule. Decedent Robert Hansen and his that type of harm falls in the financial brother Bryan Hansen contracted to liability category, rather than the loss of a sell a piece of property to Community legal right category.” The Court reversed Facilities Partnership of Vadnais Heights and remanded. Hansen v. U.S. Bank, (CFP) to be used for a community sports N.A., No. A17-1608 (Minn. Ct. App. complex. Pursuant to the purchase 9/25/2019). agreement, CFP agreed to pay $2.5 million in cash and a $2 million tax-exempt CASEY D. MARSHALL subordinate nonrecourse 30-year note. Bassford Remele Payments on the note were to be made [email protected] using anticipated revenue from the sports complex. Following decedent’s death, U.S. TAX LAW Bank served as co-special administrator of the estate in order to supervise and JUDICIAL LAW oversee closing on the property. Fol- n States not permitted to single out lowing some changes to the purchase railroads for extra taxation. Chapter agreement, the sale closed on 4/27/2010. 70 of the Wisconsin Code governs the From 2010 through 2012, the sports taxation of manufacturing and commer- complex suffered revenue shortfalls and cial companies aside from railroad and the estate stopped receiving payments utilities companies. Chapter 76 governs on the note in August 2012. In Janu- the taxation of railroad and certain other ary 2017, the beneficiaries of the estate entities. Wisconsin law requires taxpay- filed a breach of fiduciary duty claim ers to pay taxes on real and personal against U.S. Bank alleging, among other property unless that property is exempt. things, that it failed to obtain any of the Exemptions includes a broad exemption required financial forecasts or revenue for “all intangible personal property”; assurances and failed to require CFP to the exemption for intangible personal master lease the property to the City of property includes an exemption for Vadnais Heights. custom computer software. (Wis. Stat. U.S. Bank filed a motion to dismiss, §70.112(1)). Manufacturers and com- arguing that the statute of limitations mercial taxpayers generally qualify for had run. The district court granted the the intangible personal property exemp- motion, reasoning that the beneficiaries’ tion, but railroad and utility companies claims accrued in 2010, more than six do not. years before the lawsuit was filed, because The Wisconsin Department of the beneficiaries suffered some damages Revenue disallowed the Union Pacific at the time the sale closed. The district Railroad Company from claiming a court did not identify any damages suf- property tax exemption for the value of fered by the beneficiaries upon closing. the railroad’s custom computer soft- The court of appeals affirmed, reason- ware. Union Pacific refused to pay the ing that the beneficiaries had suffered $2,631,104.77 tax bill and instead filed damages because the lost opportunity to suit, arguing that the Wisconsin tax demand the required forecast, to negoti- singles out railroads as part of an isolated ate the terms of the purchase agreement, and targeted group in violation of Sec- or to cancel the purchase agreement, tion 306 of the Railroad Revitalization constituted the loss of a legal right. and Regulatory Reform Act of 1976. 49 The Supreme Court accepted review U.S.C. §11501 (b)(4). and held that the complaint did not The federal district court and the 7th www.mnbar.org November 2019 s Bench&Bar of Minnesota 39 Notes&Trends | TAX LAW

Circuit agreed with Union Pacific and n Attorney does not have “basis in n Sales & use tax: Capital equipment held that Wisconsin’s intangible per- labor”; Section 6673 not unconstitu- sales tax exemption applies to entire sonal property tax impermissibly singles tional. The taxpayer in this case, a production of equipment. The com- out railroads as part of a targeted and practicing attorney, contended that he missioner granted taxpayer Inthermo’s isolated group in violation of the federal should be entitled to take into account request for a capital equipment sales tax statute that bars states from discriminat- his “basis in labor” and that the value exemption for its burn-off oven, which In- ing against railroads. The court noted or cost of his labor is its fair market thermo uses exclusively to clean accumu- that “[it] is now well established that value. As support for this position, the lated powder coating from hooks, racks, a showing that the railroads have been taxpayer pointed to Sections 83, 1001, and fixtures that its customers use to pro- targeted is enough to prove discrimina- and 1012 and various regulations under duce personal property sold at retail. See tion.” Since the Wisconsin Department those sections. The court rejected Minn. Stat. §297A.68, subd. 5 (2018). of Revenue failed to provide a non- the taxpayer’s argument, noting that Inthermo then sought an exemption and discriminatory justification for imposing “[i]t is well established that the in- a refund of sales tax paid for the natural a targeted tax on the intangible property come tax applies to income for personal gas and electricity it used to operate the of railroad and utilities companies, and services and that taxpayers have no basis oven. Id., subd. 2(a)(3) (2018). Inthermo the department did not contest the dis- in their labor for purposes of deciding argued that the gas and electricity were trict court’s conclusion that the railroad their income tax liability for income exempt from sales tax because Inthermo’s and utilities companies defined in the from personal services.” The court cleaning of its customers’ production Code are a targeted and isolated group, characterized the taxpayer’s argument equipment is a necessary component of the district court’s grant of summary as relying on “selective and misguided the customers’ “industrial production.” judgment to Union Pacific was upheld. readings of multiple statutes.” The court Id., subd. 2(a)(c) (2018). The commis- Union Pac. R.R. Co. v. Wisconsin Dep’t further rejected the taxpayer’s argument sioner denied Inthermo’s refund claim of Revenue, No. 19-1741, 2019 WL that Section 6673 is unconstitutional. based on Minn. Stat. §297A.68, subd. 4926516 (7th Cir. 10/7/2019). Section 6673 authorizes the tax court 2(c), stating in part: “Industrial produc- to impose a penalty of up to $25,000 tion does not include painting, cleaning, n “Tax home” cannot be foreign when it appears to the tax court that repairing or similar processing of property country if taxpayer maintains abode proceedings before the court have been except as part of the original manufactur- in United States. A taxpayer who instituted or maintained by the taxpayer ing process.” Inthermo appealed the com- worked in Afghanistan for a year was primarily for delay; that the taxpayer’s missioner’s decision and the parties filed not eligible for foreign earned income position in such proceeding is frivolous cross-motions for summary judgement. exclusion because he maintained a home or groundless; or that the taxpayer Minnesota imposes a tax on gross in Colorado. Although the taxpayer unreasonably failed to pursue available receipts from retail sales, but there are a hired a tax preparer for assistance in administrative remedies. The taxpayer in number of business-related exemptions filing his return, the tax court imposed this case argued that since Section 6673 created to exempt intermediate transac- an accuracy-related penalty. The court does not equally apply to the Service, it tions and impose a tax on sales of fin- found that “[t]he evidence establishes is unconstitutional. In particular, the tax- ished products by the ultimate user. See negligence in that petitioner has failed payer argued that Section 6673 “discour- Minn. Stat. §297A.62, subd. 1 (2018). to make a reasonable attempt to comply ages his First Amendment right to make See also, Weigel v. Comm’r of Revenue, 566 with the provisions of the Code.” The legitimate arguments because it does N.W.2d 79, 80 (Minn. 1997). One busi- court admonished the taxpayer that not apply equally to taxpayers and the ness exemption is for capital equipment. “[m]erely hiring a professional to prepare Commissioner.” The tax court reminded Minn. Stat. §297A.68, subd. 5(a) defines an income tax return—without giving the taxpayer that he does not have a exempt capital equipment as machinery him necessary information or relying on “constitutional right to litigate frivolous and equipment: (1) “purchased or leased, his advice—does not absolve a taxpayer claims without being sanctioned” and and used in this state by the purchaser from liability for a penalty.” Cambria reserved the amount of sanctions for a or lessee primarily for manufacturing, v. Comm’r, No. 13323-18S, 2019 WL separate opinion. Worsham v. Comm’r, fabricating, mining, or refining tangible 4784859 (T.C.S. 9/30/2019). T.C.M. (RIA) 2019-132 (T.C. 2019). personal property to be sold ultimately at retail”; and (2) “essential to the integrated production process of manufacturing, fabricating, mining, or refining.” The Legislature has defined equipment to mean, in relevant part, “independent ERISA DISABILITY CLAIMS devices or tools separate from machinery but essential to an integrated production ERISA litigation i a labrintine process”. Id. subd. 5(d)(1). mae o reglation an timeline. The court states that the post-produc- Let or eerience el. tion-processing exclusion in Minn. Stat. §297A.62, subd. 2, which deals with property rather than with machinery and NOLAN, THOMPSON, LEIGHTON & TATARYN, PLC equipment, is not applicable in this matter. Inthermo cleans production equip- Rob Leighton Denise Tataryn ment that its customers use to produce (952) 405-7177 952-405-7178 tangible personal property to be sold at retail. After one or two uses, customers cannot reuse this equipment in the pro-

40 Bench&Bar of Minnesota s November 2019 www.mnbar.org | TAX LAW duction process without first cleaning it. guilty and was convicted of tax evasion. court granted the commissioner’s motion The commissioner offered no argument Following his conviction, the Depart- for summary judgment for all vehicles for denying Inthermo the industrial pro- ment of Revenue audited his MVET li- Mimbach purchased between 10/3/2010 duction exemption that is not ultimately ability and assessed Mimbach $71,912.66 and 5/31/2012, and denied the commis- based on Minn. Stat. §297A.62, subd. for the tax periods 6/1/2010 through sioner’s motion for all vehicles Mim- 2(c). Therefore the court grants In- 5/31/2012: $37,441.81 of unpaid MVET, bach purchased between 6/1/2010 and thermo’s motion for summary judgment $8,261.45 of interest, and $26,209.40 of 10/2/2010. Mimbach v Comm’r, 2019 and denies the commissioner’s motion. penalty. Mimbach appealed the assess- WL 4451248 (Minn. TC 9/12/2019). Inthermo v Comm’r, 2019 WL 4418322 ment. The commissioner sought summa- (Minn. TC 9/10/2019). ry judgment, which Mimbach opposed n Six-factor test to grant attorney’s fees on the grounds that he sold only “utility in property tax dispute. Minnesota Rules n Utility trailer dealers must have trailers” and therefore was exempt from of Civil Procedure require courts to award valid motor vehicle dealer license to the dealer license requirement. fees in certain circumstances. In particu- be exempt from MVET. MVET is the Minn. Stat. §168.002, subd. 35 (2018) lar, “if a court grants a motion to compel motor vehicle excise tax. In this case, the defines trailer as “any vehicle designed discovery responses, the court shall require tax court was called upon to determine for carrying property... on its own struc- the party... whose conduct necessitated the under what circumstances a dealer may ture and for being drawn by a motor motion... to pay to the moving party the purchase motor vehicles (including trail- vehicle.” A utility trailer is “a motor- reasonable expenses incurred in making ers) without paying the MVET. Minn. less vehicle... equipped with one or two the motion, including attorney fees, unless Stat. §297B.035, subd. 1 (2018) provides: wheels... and used for carrying property the court finds... that the opposing party’s “[e]xcept as provided in this section, on its own structure while being drawn nondisclosure, response, or objection was motor vehicles purchased solely for resale by a motor vehicle.” Minn. Stat. §168.27, substantially justified or that other circum- in the ordinary course of business by any subd. 20(c) (2018). “Although trailers stances make an award of expenses un- [licensed] motor vehicle dealer... shall be and utility trailers are both defined in just.” Minn. R. Civ. Pro. 37.01. Taxpayer exempt from the provisions of this chap- terms of ‘being drawn by a motor ve- IRC Riverdale Commons (RC) and Anoka ter.” “To purchase motor vehicles without hicle,’ they are themselves taxable motor County litigated a property tax valua- paying MVET, a person: (1) must be vehicles.” Chapter 297B (2018) imposes tion. As part of that dispute, the county licensed dealer; (2) must purchase solely the MVET on the “purchase price of any filed a motion to compel RC to produce for resale; and (3) must purchase in the motor vehicle... required to be registered a complete response to discovery, and ordinary course of business.” under the laws of this state.” Minn. Stat. requested an award of expenses, including Mark Mimbach owned and operated §297B.02, subd. 1. “Because trailers are attorney fees incurred in connection with MJ Mimbach Trailers. Until 2010, Mim- motor vehicles required to be registered its motion. The court granted the county’s bach held a valid motor vehicle dealer under state law, the MVET applies to the motion and gave the county 30 days to license, which required him to possess a sale and purchase of trailers.” See Minn. submit a declaration of expenses. The valid surety bond. Minn. Stat. §168.27, Stat. § 168.09, subd. 1 (2018). county filed its declaration, requesting a subd.12a(a), 24 (2018). On 7/23/2010, In addition to evidence of Mim- total of $14,080. RC opposed in part the CNA Surety notified the Minnesota bach’s dealer license being cancelled on county’s request for expenses, raising two Department of Public Safety’s Driver 10/3/2010, the commissioner also submit- arguments: first, that the county failed to and Vehicle Services Dealer Unit (DVS) ted invoices documenting Mimbach’s establish that $400 per hour is a reason- that it intended to cancel Mimbach’s trailer purchases during the audit. The able rate for time spent preparing a motion surety bond effective 10/3/2010. DVS invoices indicated that Mimbach pur- to compel; and second, that the number of then sent correspondence to Mimbach chased some trailers that did not qualify hours spent on the motion were excessive. stating they were notified that his surety as utility trailers and, therefore, Mimbach The tax court reviewed the relevant bond would be cancelled on 10/3/2010, did not qualify for the exemption. Mim- Minnesota Supreme Court jurisprudence, and a reinstatement notification must bach did not submit evidence that he (1) including Faricy Law Firm, P.A. v. API, be received on or before that date, or his has a valid dealer license, or (2) that he Inc. Asbestos Settlement Tr., 912 N.W.2d dealer license would expire. Mimbach al- sold only utility trailers. Therefore the 652 (Minn. 2018), in which the Court lowed the surety bond to lapse, and subsequently, his dealer license expired. On 8/3/2011, Mimbach submitted evidence to DVS of a new surety bond. DVS responded that since his coverage ended Maximize Your 1031 Exchange and his license cancelled, he had to (1) submit evidence of a backdated surety bond on or before 10/3/2010, or (2) • Real Property apply for a new license and subsequently owe MVET on any vehicles purchased • Reverse Exchanges during the lapse. On 12/6/2012, Mim- bach filed a permit request form and was • Construction Build-to-Suit 1998 – 2019 1998 – 2018 denied due to outstanding tax liability. CELEBRATING In 2014, Benton County filed complaints alleging that Mimbach 1) failed to remit Call Jeff Peterson 21 20 YEARS IN YEARS IN BUSINESS BUSINESS collected tax, and 2) falsely represented 612.643.1031 cpec1031.com himself and his business as a licensed seller of motor vehicles. Mimbach pled www.mnbar.org November 2019 s Bench&Bar of Minnesota 41 Notes&Trends | TAX LAW noted the longstanding six-factor test for n Tough bounce: Incarcerated former did not owe any tax, because in separate determining the “reasonable value of legal NBA player fails to file returns; loses litigation against the government, the services. ...” These six factors are used to out on itemized deductions; summary petitioner was owed more money than he evaluate the reasonableness of statutory judgment to Service. Former professional owed in taxes. As the petitioner put it, attorney’s fees. In Faricy, the Court ad- basketball player Claude Tate George “It’s my position that the United States opted an eight-factor test for calculating was convicted in 2013 in federal court owes more than owed, therefore, [I] will the value of an attorney’s services when of wire fraud resulting from running a not pay any debt to the United States un- a client terminates the contingent-fee real estate Ponzi scheme. He remains in- til the debt owed is settle[d] through the agreement before the matter concludes. carcerated. While incarcerated in 2013, courts or settlement.” At the time of the The Court considered the last two factors petitioner received a National Basketball tax court’s opinion, the petition had not necessary specifically for evaluating attor- Association (NBA) pension distribution been successful in the separate litigation, ney’s services after client termination. of $208,111. The bank that distributed and in fact the district court and court Here, the tax court located no express the pension withheld $41,622 of income of appeals deemed petitioner’s litigation authority approving any particular tax from the distribution. Mr. George frivolous and imposed sanctions. method for determining attorney fees, did not file a tax return for tax year 2013 The tax court acknowledged the and therefore used the first six factors in and the Service prepared a substituted petitioner’s argument, and the court also Faricy for determining reasonable attor- return in which the Service determined acknowledged that the courts has “no ney’s fees, and then separately evaluated a deficiency in petitioner’s 2013 federal authority to second-guess the decisions the county’s other claimed expenses. income tax of $70,318 together with of the courts that have ruled against” The court ultimately considered (1) time approximately $8,700 in additions to petitioner. Further, the court reasoned and labor, (2) nature and difficulty, (3) tax. In preparing the substituted return, that “[e]ven if we had such jurisdiction, amount involved and results obtained, the Service made certain assumptions, no legal authority exists for offsetting, (4) fees charged for similar services, (5) including a filing status of “single.” The against an assessed Federal tax liability, a experience and reputation, (6) fee ar- revenue agent also assumed a Section claim against the Government in a totally rangement between counsel and client, 72(t) tax of $20,811, which the agent unrelated matter.” The court deemed and (7) attorney fee amount. The court assumed Mr. George owed because he petitioner’s arguments frivolous and noted granted the county’s request for attor- considered the pension distribution to that the petitioner wasted considerable ney’s fees in the amount of $9,460. IRC be an early distribution from a quali- resources of respondent and the court. Al- Riverdale Commons, LLC v. Anoka, fied retirement plan. In a timely filed though petitioner’s conduct was deserving 2019 WL 4607064 (Minn. TC 9/17/19). petition, Mr. George argued that due to of a penalty, the court determined that be- his incarceration, he was unable to file cause this was petitioner’s first appearance a return. He further argued that had he in the tax court, and because the court filed a return, he might have demon- had not previously advised petitioner of TRADEMARK strated that he had itemized deductions the risk he faced, no sanctions would be Copyright & Patent Searches in excess of the standard deduction. The imposed. The court did, however, “warn court reasoned that although Section [petitioner] that we will be less generous “Experienced Washington office 63 allows an individual to itemize his in the future.” Tartt v. Comm’r, T.C.M. for attorneys worldwide” deductions rather than take a standard (RIA) 2019-112 (T.C. 2019). deduction, no itemized deductions shall FEDERAL SERVICES & RESEARCH: be allowed unless the individual makes ADMINISTRATIVE ACTION Attorney directed projects at all Federal an election. Section 63(e)(2) provides n IRS issues guidance on cryptocurren- agencies in Washington, DC, including: that such election shall be made on the cy transactions. In a Revenue Ruling, the USDA, TTB, EPA, Customs, FDA, INS, FCC, ICC, SEC, USPTO, and many others. individual’s return. Since Mr. George Service addressed the following issues: (1) Face-to-face meetings with Gov’t officials, failed to file a return, he made no elec- Does a taxpayer have gross income under Freedom of Information Act requests, tion to itemize his deductions and may §61 of the Internal Revenue Code as a re- copyright deposits, document legalization @ State Dept. & Embassies, complete not claim itemized deductions. Since sult of a hard fork of a cryptocurrency the trademark, copyright, patent and TTAB there were no disputes of material fact, taxpayer owns if the taxpayer does not files. the commissioner was entitled to sum- receive units of a new cryptocurrency? COMPREHENSIVE: U.S. Federal, mary judgment. George v. Comm’r, (2) Does a taxpayer have gross income State, Common Law and Design searches, T.C.M. (RIA) 2019-128 (T.C. 2019). under §61 as a result of an airdrop of INTERNATIONAL SEARCHING a new cryptocurrency following a hard EXPERTS: Our professionals average n Tax court gives a pass to first-time fork if the taxpayer receives units of new over 25 years experience each frivolous argument. The petitioner in cryptocurrency? The Ruling provides that FAST: Normal 2-day turnaround with 24-hour and 4-hour service available this case filed federal income tax re- a taxpayer does not have gross income in turns reporting taxable income of about Issue 1, and that “[a] taxpayer has gross $500,000 over three tax years. Although income, ordinary in character, under §61 GOVERNMENT LIAISON SERVICES, INC. 200 N. Glebe Rd., Suite 321 the petitioner calculated the tax due on as a result of an airdrop of a new cryp- Arlington, VA 22203 these amounts, he did not pay any portion tocurrency following a hard fork if the Ph: 703-524-8200, Fax: 703-525-8451 of the balance due. For each year the IRS taxpayer receives units of new cryptocur- assessed the tax shown as due, additions rency.” Rev. Rul. 2019-24. Minutes from USPTO & Washington, DC to tax under sections 6651 and 6654, TOLL FREE:1-800-642-6564 and interest. Petitioner’s aggregate MORGAN HOLCOMB www.GovernmentLiaison.com unpaid tax liabilities eventually exceeded & SHEENA DENNY [email protected] $200,000. Throughout the collection Mitchell Hamline School of Law proceedings, the petitioner argued that he [email protected]

42 Bench&Bar of Minnesota s November 2019 www.mnbar.org People&Practice | MEMBER ANNOUNCEMENTS

Gov. Walz reappointed Jason Lee joined Luke Wolf has joined Hon. Edward Cleary as Melchert Hubert Sjodin Spencer Fane LLP as a chief judge of the Min- PLLP as an associate litigation associate in the nesota Court of Appeals. attorney in the Hutchin- firm’s Minneapolis office. Chief Judge Cleary will son office. Lee represents continue to serve as estate planning, estate Eric H. Chadwick and CLEARY the chief judge until his LEE administration, real WOLF Bradley J. Thorson retirement on April 30, 2020. At that estate, and business clients. joined the Minneapolis time, a new chief judge will be selected Office of DeWitt LLP in the intellectual to serve the remainder of the term, Jesse C. Beier, Jacob P. Harris, Zachary property practice group. which will expire on October 31, 2022. S. Pratthas, and Chantal M. Wilson have joined Fredrikson & Byron. Beier Creig Andreasen has Gov. Walz appointed joins the trusts & estates and trusts & joined Lommen Abdo as a Andrew Peterson as estates litigation groups; Harris joins shareholder in its Minne- district court judge in the litigation, white collar & regula- apolis office. He concen- Minnesota’s 6th Judicial tory defense, and appellate groups; and trates his practice on real District. Peterson will Pratt joins the patents, intellectual estate law and banking. ANDREASEN be filling the vacancy of property, and artificial intelligence oshua asko PETERSON Hon. Gary Pagliaccetti groups; Wilson joins the mergers & J A. H was and will be chambered at acquisitions group. elected president of Virginia in St. Louis County. Peterson is Messerli Kramer. Hasko currently an attorney and shareholder Lindsey R. Danielson and David T. practices in the areas of of Cope & Peterson Ltd., where he Hackworthy have joined Gregerson, commercial litigation and represents clients in all aspects of civil Rosow, Johnson & Nilan, LTD as creditor’s remedies and has litigation, criminal law, real estate, associates. been an active member of HASKO business law, and municipal law. the firm’s board of directors. Colin S. Gov. Walz appointed Jade Seaborg Adine S. Momoh joined Rosenfeldt as district and Molly the Federal Bar court judge in Minneso- B. Hough Association’s National ta’s 7th Judicial District. have Board of Directors and This appointment fills a become will serve a year-long

vacancy that occurred SEABORG HOUGH associates term as chair of the upon the creation of a of Younger Lawyers Division. ROSENFELDT MOMOH new district court judge- Bassford Remele. Seaborg focuses his Momoh is a partner at ship effective July 1, 2019 and will be practice in the areas of product liability, Stinson LLP and a past president of the chambered in Moorhead in Clay County. employment law, commercial litigation, Hennepin County Bar Association. Rosenfeldt is currently a shareholder and appellate law. Hough focuses her at Vogel Law Firm, where she manages practice in the areas of commercial Matthew Buckley has joined Ballard criminal and family law cases. litigation, and employment law and Spahr as an associate in the real estate consumer law defense. department. Gov. Walz appointed Hon. Jeffrey Bryan and Susan Segal as judges on the Minnesota Court of Appeals. Judge Bryan will SOCIAL SECURITY DISABILITY be replacing Hon. Judge InITIAL AppLICATIOn ThROUgh hEARIng BRYAN Heidi Schellhas and will serve in an at-large capacity. Ms. Segal will be replacing Hon. Jill Flaskamp Halbrooks, filling the seat designated for the 5th Congressional District. Bryan currently serves as SEGAL a trial court judge in the 2nd Judicial District and as co-chair of 612-825-7777 | www.livgard.com the Ramsey County Juvenile Detention paul Successfully pursuing benefits since 1993 Alternatives Initiative. Segal is currently Livgard the Minneapolis city attorney. www.mnbar.org November 2019 s Bench&Bar of Minnesota 43 OpportunityMarket

Classified Ads For more information about placing classified ads visit: www.mnbenchbar.com/classifieds

sssss ATTORNEY WANTED ATTORNEY/SENIOR Attorney. The Federal Reserve Bank of Minneapolis (Bank) is seek- BERNICK LIFSON, PA, a business law ASSISTANT ATTORNEY General. Attor- ing to fill a full-time Attorney or Senior At- firm, seeks an attorney with a minimum ney General Keith Ellison is accepting re- torney position within its Law Department. of five to seven years’ experience in sumes from attorneys who are interested The position involves advising and working commercial litigation. The successful in a career of public service and represent- with Bank management as well as regular candidate will have experience in drafting the government in significant lawsuits interaction with attorneys from other Fed- ing pleadings and discovery, taking and to help Minnesotans afford their lives and eral Reserve Banks and the Board of Gover- defending depositions, as well as drafting live with dignity and respect. Assistant nors of the Federal Reserve System. The at- and arguing motions. The right person for attorneys general appear on behalf of torney will practice in a team environment in our firm is smart, practical and results-ori- the State of Minnesota in administrative, a variety of areas including general in-house ented with the capacity to service exist- state, and federal district and appellate matters such as drafting contracts and ad- ing clients, as well as a desire to develop courts in a wide variety of case types. vising Bank management on a variety of and grow their own practice. We offer a Our work protects public safety, everyday legal issues. Areas of practice within the de- competitive compensation and benefits consumers and workers, the environment, partment include the typical in-house areas package in an atmosphere of respect and and the State and its various agencies and such as procurement/contracts, intellectual support. Please send cover letter, resume boards. Attorneys can expect excellent property and other general corporate mat- and short writing sample to Laurie Blum litigation experience in handling their own ters, but also include functions more spe- at: [email protected]. No phone cases and helping to build and create a cific to the Federal Reserve such as banking calls please. better, safer and more equitable Minne- regulation, discount window lending, pay- sssss sota. Requirements. Applicants should be ments, law enforcement, and support for committed to public service on behalf of our research, Treasury, and payment system CORPORATE ASSOCIATE – International. all Minnesotans, have demonstrable litiga- risk functions, among other responsibili- Larkin Hoffman, one of the largest full- tion or law school experience, strong re- ties. Qualifications: Juris Doctorate degree service business law firms in the Twin Cit- search, writing, and communication skills, required and must be admitted to practice ies, is seeking a highly motivated associ- good work ethic, character and judgment, law in the state of Minnesota. Some prior ate with four plus years’ international and and a strong professional drive. Service legal experience or judicial clerkship pre- general corporate experience to join our with the office may qualify applicants to ferred. Excellent legal research and writing growing, creative and fast paced group. have part of their student loans forgiven skills. Excellent analytical abilities along with Candidates should have experience in under the federal student loan forgiveness sound legal and business judgment. Excel- general business matters, and corporate program that applies to state government lent communication skills. A requirement law and governance and experience in employees. (For more information, visit of this position is that the employee must international corporate law, data privacy www.studentaid.ed.gov/sa/repay-loans/ be a “Protected Individual.” A “Protected law and compliance with US export con- forgiveness-cancellation/public-service.) Individual” includes but is not limited to: trol, anti- bribery and foreign trade laws. Applications. Please submit a cover letter (1) a citizen or national of the U.S.; or (2) an We are looking for an attorney with out- and resume that includes relevant experi- alien who is lawfully admitted to the U.S. for standing academic credentials, drafting ence and academic credentials to: Office permanent residence and who applies for skills, communications skills, a dedication of the Minnesota Attorney General, Atten- citizenship within six months of being eli- to client service and a commitment to tion: June Walsh, 445 Minnesota Street, gible to apply for citizenship and, if offered excellence in the practice of law. We are Suite 1100, St. Paul, MN 55101, ag.jobs@ a position with the Federal Reserve Bank of motivated to attract and retain talented ag.state.mn.us. Note: The Attorney Gener- Minneapolis, will sign a Declaration of Intent and diverse professionals into our grow- al’s Office greatly encourages, celebrates to Become a United States Citizen. Excel- ing firm and are committed to the train- and values diversity. It is an equal opportu- lent benefits include annual PTO allowance, ing and professional development of our nity employer which does not discriminate 10 paid holidays, immediate eligibility in a employees. Working at Larkin Hoffman on the basis of race, creed, color, national matched 401(k) plan with 100% employer has the benefit of being located in a prime origin, religion, sex, marital status, sexual matching contribution on employee contri- office location outside the downtown core orientation, gender identity, age, disability, butions up to 6% of salary, defined benefit at Normandale Lake Office Park for easy or military status. If you need reasonable retirement plan, medical, dental, short-term access and complimentary parking. If you accommodation for a disability, please call disability benefits, free on-site fitness cen- are interested in joining our team, please June Walsh at: (651) 757-1199 or (800) ter, and more. Interested candidates must send your resume and cover letter to: hr@ 627-3529 (Minnesota Relay). apply online at: www.minneapolisfed.org larkinhoffman.com.

44 Bench&Bar of Minnesota s November 2019 www.mnbar.org People&Practice | MEMBER ANNOUNCEMENTS

Robert D. Aronson was awarded In Memoriam the 2019 Fredric Moskol Leadership Award at the 3RNet Michael J. Mahoney, age 50, of West Annual Conference St. Paul, died on August 22, 2019. He in Wichita, Kansas in was a graduate of William Mitchell ARONSON sssss September 2019. 3RNet College of law. He took pride and is a nonprofit organization that earned great respect in his professional CRIMINAL TRIAL Attorney – The Office works to improve healthcare access career advocating for access to, and of The Minnesota Attorney General. The and coverage to rural communities. delivery of, high quality healthcare in Office of the Minnesota Attorney Gener- Aronson is a shareholder at rural areas. al is seeking an attorney with at least 10 Fredrikson & Byron. years of criminal trial experience either as Melvin “Mel” Burstein, age 85, of a prosecutor or criminal defense attorney. Amy Mason has joined Golden Valley, passed away on August This is an exciting opportunity for a quali- Miller & Stevens Law 13, 2019. He received his JD from the fied professional to join a highly commit- in Forest Lake. She University of Minnesota Law School. ted team that handles important public will be focusing her Mel had a distinguished career as an safety and legal matters for the State of practice in the areas of attorney, including 32 years at the Minnesota. Duties of the position will in- civil litigation, probate, Federal Reserve Bank, from which he clude the prosecution of serious violent guardianship and retired as executive vice president and MASON and white-collar crimes throughout the conservatorship, trust general counsel. State of Minnesota, training law enforce- and estate disputes, and family law. ment officers and attorneys, and serving Wheeler Smith died on July 22, as a resource for other divisions of the Robert Webber was 2019, after having lived a full 100 office. Requirements: Applicants should appointed vice president- years. He earned his law degree from have good academic credentials, well-de- communications of the Harvard after serving in the Navy veloped written and oral communication Asian Pacific American (South Pacific) during World War skills, superior research and analytical Bar Association of II. He launched his law practice by abilities, good judgment and character, Minnesota. Webber is examining titles at Shearer, Byard, and a strong professional work ethic. Ap- a partner at Dorsey & WEBBER Trogner and Peters. In 1950 he began plicants must be able to serve the pub- Whitney LLP. work for John B. Hawley’s Northern lic with a high level of distinction. Public Pump Company specializing in oil service with this office may qualify appli- Janet C. Evans and Benjamin M. and gas, and as counsel for Northern cants to have part of their student loans Podobinski joined Christensen & Ordnance dealing with government forgiven under a federal student loan Laue, PLLC. Evans has 30 years contracts. In the early 1980s he forgiveness program for state govern- experience and will be serving in an started his own practice with a goal ment employees. (Visit www.studentaid. of counsel role litigating all types of to provide quality legal services for a ed.gov/sa/repay-loans/forgiveness-can- business disputes. Podobinski is a nominal fee. cellation/public-service for more infor- 2019 graduate of the University of mation.) Applications: Attorneys may ex- St. Thomas School of Law. He will Duane James Rivard, age 91, of press interest by submitting a cover letter focus his practice on litigation and Roseville, died September 11, 2019. and resume that includes relevant crimi- transactional matters. He obtained his law degree from nal trial experience and academic creden- William Mitchell School of Law and tials to: Office of the Minnesota Attorney Christopher Nelson held many insurance designations. General, Attn: June Walsh, 445 Minneso- joined Eckberg He spent 37 years at State Farm. ta Street, Suite 1100, St. Paul, MN 55101, Lammers. In his new [email protected]. Note: The Attor- role, Nelson will serve Lt. Col. Russell J. Jensen died ney General’s Office greatly encourages, as a lead civil municipal on September 20, 2019. He was a celebrates and values diversity. It is an attorney. respected St. Paul lawyer, and a pilot equal opportunity employer which does NELSON for the Minnesota Air National Guard not discriminate on the basis of race, for 31 Years. creed, color, national origin, religion, sex, marital status, sexual orientation, gender John D. Healy Jr. of St. Paul died identity, age, disability, or military status. on October 14, 2019 at age 84. He If you need reasonable accommodation Bench & Bar accepts press releases and attended University of Michigan Law for a disability, please call June Walsh at announcements regarding current members School. He was a partner with (651) 757-1199 or (800) 627-3529 (Minne- of the MSBA for publication, without charge. Oppenheimer Law Firm for 35 years. sota Relay). www.mnbenchbar.com/people-practice

www.mnbar.org November 2019 s Bench&Bar of Minnesota 45 OpportunityMarket | ATTORNEY WANTED

CORPORATE ASSOCIATE – securities. try experience. Position is a salaried posi- to organizations serving the patient popu- Larkin Hoffman, one of the largest full- tion (no time cards) and subject to a gener- lation. Requirements: JD with a license service business law firms in the Twin ous benefit package. Interested candidates to practice law; Strong verbal and written Cities, is seeking a highly motivated asso- should submit an introductory letter detail- communication skills; Commitment to ciate with four plus years’ securities and ing experience, resume, and salary require- providing high quality civil legal services general corporate experience to join our ments to: [email protected]. to low income and senior individuals; Abil- growing, creative and fast paced group. sssss ity to interface and connect with the New Candidates should have a background in American community, including individu- business transactions, with experience GORDON REES Scully Mansukhani, a na- als and leadership; Comfortable with the in counseling businesses with respect to tional law firm, has an excellent opportu- use of interpreters to interview and advise federal and state securities laws and ex- nity for an experienced contract attorney. clients; Ability to interface with key stake- emptions from registration, private place- A minimum of five years’ civil litigation and holders for the LAH; Ability to communi- ment offerings, Regulation D offerings, insurance defense work is preferred. Ex- cate with and educate healthcare provid- solicitation safe harbors and Regulation cellent academic credentials with proven ers about the LAH; Aptitude for public A+ crowdfunding. We are looking for an skills in writing, analysis and research are speaking; Interest in assisting with or attorney with outstanding academic cre- required. Candidates must be licensed in spearheading opportunities for additional dentials, drafting skills, communications Minnesota and be able to handle a case grants. Salary: DOE. Excellent Benefit skills, a dedication to client service and a from inception through pre-trial work with Package. If interested, please submit your commitment to excellence in the practice little or no supervision. Please note this is cover letter, resume, writing sample, law of law. We are motivated to attract and not a full time, associate level position. We school transcript and three professional retain talented and diverse professionals are seeking independent contract attorneys references by mail to: LSND – LAH, PO into our growing firm and are committed only. Please submit cover letter, writing Box 1327, Fargo, ND 58107-1327. Or email: to the training and professional develop- sample and resume by email to: ntanner@ [email protected]. LSND is an Equal ment of our employees. Working at Larkin grsm.com. Please reference “Minnesota Opportunity Employer. LSND does not Hoffman has the benefit of being located Contract Attorney” in the subject line. No discriminate based on age, race, color, in a prime office location outside the recruiter or telephone calls please. Gordon religion, gender, gender identity, disability, downtown core at Normandale Lake Of- Rees Scully Mansukhani is an equal oppor- national origin or sexual preference. fice Park for easy access and complimen- tunity employer. sssss tary parking. If you are interested in joining sssss our team, please send your resume and MALKERSON GUNN Martin LLP seeks cover letter to: [email protected]. HALL LAW, PA, a premier plaintiffs per- experienced, partner-level attorneys spe- sssss sonal injury law practice with offices in St. cializing in a transactional or litigation real Cloud and Edina, is looking for an associate estate practice. We enjoy low overhead, GENERAL COUNSEL. North American attorney with 1-10 years’ relevant experi- almost no law firm “bureaucracy,” down- Banking Company, a community bank ence to join its practice. If you are a lawyer town Minneapolis offices, sophisticated with five offices throughout the Twin Cit- looking to join a winning team and make a practitioners and a collegial atmosphere. ies has an opening for its in-house General positive difference in people’s lives, please Please contact Stu Alger (sta@mgmllp. Counsel position. The General Counsel re- submit a cover letter, resume, writing com). ports directly to upper bank management sample (15 pages or less), and a law school sssss and advises the officers and employees transcript to: [email protected]. Thank on a wide range of legal issues includ- you in advance for your interest in our firm. MINNEAPOLIS-BASED school and mu- ing: Preparing and reviewing original loan sssss nicipal law firm is seeking an attorney with documents (primarily commercial) includ- 0-3 years of experience to join our prac- ing secured and unsecured transactions, LEGAL SERVICES of North Dakota. Attor- tice. Position available immediately. Excel- real estate mortgage loans, participation ney needed to serve North Dakota’s first lent academic credentials required. Send loans; Reviewing bank contracts with out- Medical Legal Partnership – Legal Advo- resumes to Rupp, Anderson, Squires & side parties; Managing problem loan files; cates for Health. Location: Fargo Closing Waldspurger at: [email protected]. Visit Assist loan officers in performing due dili- Date: until filled. The Medical Legal Part- our website at www.raswlaw.comMin- gence on prospective borrowers and eval- nership (“MLP”) is collaboration between neapolis-based school and municipal law uating proposed security arrangements; LSND, Legal Services of Northwest Min- firm is seeking an attorney with 0-3 years Advise management with respect to legal nesota, and local healthcare providers, in- of experience to join our practice. Position issues related to the development and cluding the Veteran Administration Medical available immediately. Excellent academic implementation of business strategy, in- Center. The MLP Collaboration is entitled credentials required. Send resumes to ternal and external governance, corporate Legal Advocates for Health (“LAH”). The Rupp, Anderson, Squires & Waldspurger structure and organizational issues, em- LAH attorney will focus on growing the at: [email protected]. Visit our website ployment matters and other related legal LAH. In addition to this outreach focus the at: www.raswlaw.com. matters; Coordinate and supervise out- LAH attorney will provide legal advice and sssss side counsel; Develop and provide training representation to patients with civil legal is- for staff on matters such as employment sues that impact the social determinants of FRANCHISE ATTORNEY – Larkin Hoff- law and loan documentation. Ideal candi- health. Aside from this direct client service man, one of the largest full-service busi- date should have relevant experience in a the LAH attorney will provide education to ness law firms in the Twin Cities, is seek- commercial law practice or financial indus- healthcare staff and community education ing a highly motivated attorney with eight

46 Bench&Bar of Minnesota s November 2019 www.mnbar.org OpportunityMarket | ATTORNEY WANTED | OFFICE SPACE | PROFESSIONAL SERVICES

plus years’ franchise experience to join our PERSONAL INJURY Attorney Wanted SUBURBAN Minneapolis law firm in the nationally and internationally recognized — Maschka, Riedy, Ries & Frentz, a nine- West End, has offices available for sub- franchise practice group and distribution attorney law firm in Mankato, MN with liti- lease for individual attorneys or a small team. Candidates should have experience gation emphasis seeking to hire an attorney law firm. Located in the class A rated Col- structuring and documenting franchise re- with two to five plus years of experience in onnade tower with northwestern views. lationships, handling franchise regulatory personal injury litigation. Candidates must Convenient location and a short drive to issues, including interaction with state have strong written and oral communica- downtown Minneapolis. Full amenities and federal regulators, advising clients tion skills. Excellent opportunity for growth. available in the building. Please contact of their rights under applicable federal Submit cover letter, resume, law school Mitch Chargo (mchargo@bernicklifson. and state law, and addressing business transcript and legal writing sample to An- com) or Jack Pierce (jpierce@bernicklif- and legal issues in their business. We are netta Skogen at: [email protected]. son.com) or call (763) 546-1200. motivated to attract and retain talented and diverse professionals into our growing firm and are committed to the train- OFFICE SPACE PROFESSIONAL SERVICES ing and professional development of our employees. Working at Larkin Hoffman BRAINERD Office sharing arrangement ATTORNEY COACH / consultant Roy S. has the benefit of being located in a prime with three other attorneys in historic down- Ginsburg provides marketing, practice office location outside the downtown core town building serving clients since 1978. management and strategic/succession at Normandale Lake Office Park for easy Near Courthouse and Judicial Center. Pri- planning services to individual lawyers access and complimentary parking. If you vate office and secretarial workstation. and firms. www.royginsburg.com, roy@ are interested in joining our team, please Rent $600 per month plus share of over- royginsburg.com, (612) 812-4500. send your resume and cover letter to: hr@ head. 510 Maple Street. Call Glen or Jim at: sssss larkinhoffman.com. (218) 829-1719. sssss sssss NAPLES, FLORIDA-based probate, real estate and estate planning attorney li- PROSECUTING ATTORNEY – Flaherty LOOKING FOR a great community to have censed in Minnesota and Florida. Rob- & Hood, PA is seeking an associate, your solo or small firm in? Looking for a ert W. Groth, PA (239) 593-1444; rob@ prosecuting attorney to join its growing beautiful, well-appointed office? Looking for grothlaw.net. practice, living and working, in Winona, virtual services so you can work from home sssss Minnesota. The position will primarily or on the go? Look no further – MoreLaw prosecute criminal misdemeanors and Minneapolis has all that and more. Call Sara EXPERT WITNESS Real Estate. Agent gross misdemeanors for cities located in at: (612) 206-3700 to schedule a tour. standards of care, fiduciary duties, disclo- Winona and Wabasha counties. Education sssss sure, damages/lost profit analysis, foren- or some experience in criminal procedure sic case analysis, and zoning/land-use is- and prosecuting criminal matters is pre- MINNETONKA Individual Offices and sues. Analysis and distillation of complex ferred. The position may also involve some Suites for Rent. Professional office build- real estate matters. Excellent credentials civil representation of the firm’s municipal ings by Highways 7 & 101. Conference and experience. [email protected] clients. Flaherty & Hood, P.A. provides rooms and secretarial support. Furnish- (612) 207-7895 competitive salaries and benefits. Please ings also available. Perfect for a law firm sssss submit your resume, including a descrip- or a solo practitioner. Join 10 established, tion of education or work performed in the independent attorneys. Call (952) 474-4406. MEDIATION TRAINING: Qualify for the above-mentioned areas, by email to Chris minnetonkaoffices.com. Supreme Court Roster. Earn 30 or 40 Hood at: [email protected]. CLE’s. Highly rated course. St. Paul, (612) More information about the firm is avail- OFFICE SPACE in ideal Roseville location for 824-8988, transformativemediation.com. able at: www.flaherty-hood.com. one attorney plus assistant in professionally sssss sssss appointed offices at Lexington Avenue & Highway 36. Includes reception area, MEDIATIONS, arbitrations, special mas- SJOBERG & TEBELIUS, PA, a six-attorney spacious conference room, kitchenette and ter. Serving the metro area at reasonable law firm in Woodbury, Minnesota, is seek- patio with ample FREE parking. Wifi, color rates. Gary Larson: (612) 709-2098 or glar- ing an associate with at least three years’ printer, copier and phones available. Call [email protected]. experience in any area that would enhance John or Brian at: (651) 636-2600. the firm’s already well-established estate sssss planning, business planning, tax, real estate, family law, probate, personal injury, ROBERT ESPESET / ESPE LAW has office and employment practice. This ideal can- space available for lease at 4525 Allendale Find more classified ads online at didate will have a strong academic/profes- Drive in White Bear Lake. All-inclusive www.mnbenchbar.com sional background and a demonstrated pricing (rent, internet, copier, scanner, fax, ability to network and originate clients. receptionist, utilities, conference room and UPDATED DAILY Please submit a cover letter, resume, and parking). Contact Nichole at: (651) 426- or place your own ad! writing samples demonstrating document 9980 or [email protected] FOLLOW US ON: drafting skills to: [email protected]. sssss All applications kept confidential.

www.mnbar.org November 2019 s Bench&Bar of Minnesota 47 Books&Bytes | LEGAL PUBLISHING

Corey Robin Chris DeRose Richard Gergel The Enigma of Star Spangled Unexampled Clarence Thomas Scandal: Sex, Courage: The (Metropolitan Books, $30) Murder, and the Blinding of Sgt. Most people can tell Trial That Changed Isaac Woodard you two things about America and the Clarence Thomas: (Regnery History, $29.99) Awakening of Anita Hill accused him It is two years before America of sexual harassment, the Civil War, and (Picador, $18) and he almost never speaks from the Congressman Daniel Sickles and his On February 12, 1946, Sergeant Isaac bench. Here are some things they don’t lovely wife Teresa are popular fixtures Woodard, a returning, decorated African know: Thomas is a black nationalist. in Washington, D.C. society. Their American veteran, was removed from In college he memorized the speeches house sits on Lafayette Square across a Greyhound bus in Batesburg, South of Malcolm X. He believes white from White House grounds, and the Carolina, after he challenged the bus people are incurably racist. In the first president himself is godfather to the driver’s disrespectful treatment of him. examination of its kind, author Corey Sickles’ six-year-old daughter. Because Woodard, in uniform, was arrested by Robin delves deeply into both Thomas’s Congressman Sickles is frequently out of the local police chief, Lynwood Shull, biography and his jurisprudence, town, he trusts his friend, U.S. Attorney and beaten and blinded while in custody. masterfully reading his Supreme Court Philip Barton Key—son of Francis Scott President Harry Truman, outraged by the opinions against the backdrop of his Key—to escort the beautiful Mrs. Sickles incident, established the first presidential autobiographical and political writings to parties in his absence. Then one day commission on civil rights and his Justice and speeches. The hidden source of an anonymous note sets into motion a Department filed criminal charges Thomas’s conservative views, Robin tragic course of events that culminates against Shull. In July 1948, following his shows, is a profound skepticism that in a shocking murder in broad daylight commission’s recommendation, Truman racism can be overcome. Thomas is in Lafayette Square. This is the riveting ordered an end to segregation in the convinced that any government action true story of the murder and trial that U.S. armed forces. An all-white South on behalf of African-Americans will be sparked a national debate on madness, Carolina jury acquitted Shull, but the tainted by racism; the most African- male honor, female virtue, fidelity, and presiding judge, J. Waties Waring, was Americans can hope for is that white the rule of law. conscience-stricken by the failure of the people will get out of their way. court system to do justice. Waring began Eric Foner issuing major civil rights decisions from James B. Stewart The Second his Charleston courtroom, including his Deep State: Trump, Founding: How 1951 dissent in Briggs v. Elliott, declaring the FBI, and the the Civil War and public school segregation per se Rule of Law Reconstruction unconstitutional. (Penguin Press, $30) Remade the From bestselling Constitution Justice Neil author James Stewart, (WW Norton & Co., $26.95) Gorsuch the definitive The Declaration A Republic, If You story of the war of Independence Can Keep It between President announced equality as an American (Crown Forum, $30) Trump and America’s principal law ideal, but it took the Civil War and As Benjamin Franklin enforcement agencies, answering the the subsequent adoption of three left the Constitu- questions that the Mueller report constitutional amendments to establish tional Convention, he couldn’t—or wouldn’t. When Trump that ideal as American law. The was reportedly asked fired James Comey, he triggered the Reconstruction amendments abolished what kind of government the founders appointment of Robert Mueller as an slavery, guaranteed all persons due would propose. He replied, “A republic, if independent special counsel and caused process and equal protection of the law, you can keep it.” In this book, Justice the FBI to open a formal investigation and equipped black men with the right Neil Gorsuch shares personal reflections, into the president himself. Drawing to vote. They established the principle of speeches, and essays that focus on the on scores of interviews with key FBI, birthright citizenship and guaranteed the remarkable gift the framers left us in the Justice Department, and White House privileges and immunities of all citizens. Constitution. Justice Gorsuch draws on officials, and voluminous transcripts, The federal government, not the his 30-year career as a lawyer, teacher, notes, and internal reports, Stewart states, was charged with enforcement, judge, and justice to explore essential as- tells the dramatic saga of the FBI and reversing the priority of the original pects our Constitution. He discusses the its simultaneous investigations of both Constitution and the Bill of Rights. In role of the judge in our constitutional Hillary Clinton and Donald Trump—the grafting the principle of equality onto order, and why he believes that original- first time in American history the FBI the Constitution, these revolutionary ism and textualism are the surest guides has been thrust into the middle of both changes marked the second founding of to interpreting our nation’s founding parties’ campaigns for the presidency. the United States. documents and protecting our freedoms.

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