Minnesota Lawyer Blog

It's that time of year again. ... Next week is the Minnesota State Bar Association's annual convention!

The convention is being held at the RiverCentre in St. Paul from June 27-29. The theme of the event this year is "Capitol Good Times: Celebrating the Law." According to Minneapolis attorney Brian Toder, co-chair of the convention committee, "We went out of our way to make this the most spectacular convention ever."

Minnesota Lawyer's editorial staff (and new marketing director -- Catherine Cowley) will be present for much of the convention, covering continuing legal education seminars, staffing the paper's information booth and mixing with attendees at the various events. Activities this year include boat rides and music on the Mississippi, a golf tournament, a bike ride, the president's reception and the "Late Night Social" on Thursday evening.

It's not too late to register so if you haven't yet done so, consider making the convention a part of your week. And don't forget to stop by the Minnesota Lawyer booth to say "hello" to your favorite local legal journalists!

Not to get too mired in the 18th Century (how often has that sentence been said?), but my previous post on the Founding Fathers puts me in mind of an excellent lawyer story from the life of Alexander Hamilton. More precisely, the source of this tale for me was Ron Chernow's excellent biography "Alexander Hamilton."

Chernow relates how Hamilton flatly refused the legal business of a certain Mr. Governeur. And just what was Mr. Gouverneur's offense? Hamilton had heard that he had made a disparaging remark about the "attorney-like way" someone had padded his bill.

In a caustic letter, Hamilton told Gouverneur that such behavior "cannot be pleasing to any man in the profession and [that it] must oblige anyone that has proper delicacy to decline the business of person who professedly entertains such an idea of the conduct of this profession."

When was the last time any of us defended the legal profession so vigorously from a quip or a joke? I find myself not quite sure whether what Hamilton did was noble, or whether he just needed to lighten up ...

Call it the “take this job and shove it” defense. In March 2006, when a worker at Brooklyn Center Motors was told by his lot supervisor that the sales supervisor wanted him to pick up litter around the lot, he responded with a very specific (and anatomically challenging) request of his own. The worker, Douglas Williams, was fired for insubordination, and his subsequent claim for unemployment insurance benefits was rejected by the state.

Fifteen months later, a three-judge Court of Appeals panel overturned the decision by Unemployment Insurance Minnesota (UIMN), the state organization that dictates who gets such benefits. The court ruled that because the outburst “constituted a single incident” and didn’t have “a significant adverse impact on the employer,” Williams should receive a relatively rare reversal of a UIMN decision.

We’ve all been tempted to fly off the handle at work, but most of us manage to hold our tongues when we’re stressed out or get what seems like an unreasonable order. So on one hand, it’s a little distressing to see someone get rewarded for losing his temper. On the other hand, it’s hard not to cheer at least a little for someone who told off the boss and got away with it.

Williams is now employed as a courier. If I were his boss, it would be tempting to send him on a frantic cross-metro rush-hour delivery run, just to see how he’d react.

The Court of Appeals recently added another chapter to the continuing saga of race-based differentials in the law. In this case, the court called it the line drawn a political differential and, as Robert Frost might have said, "that has made all the difference."

Greene v. Commissioner of the Department of Human Services involves a challenge brought by member of the Minnesota Chippewa Tribe who wants to receive employment services from Aitkin County. Under an agreement between the tribe and the county, tribe members are to receive employment services from the tribe in lieu of receiving such services from the county, even though the tribe member would otherwise be entitled to the county services. The plaintiff argued that forcing her to trade county employment services for tribal ones constituted a violation of her equal-protection rights.

The Court of Appeals disagreed, applying a rational basis standard and following the U.S. Supreme Court case of Morton v. Mancari, which said that preferences for American Indians are not racial but political when the preferences apply to members of federally recognized tribes.

Judge Gary Crippen wrote the opinion, joined by Judge Bruce Willis. Judge R.A. "Jim" Randall dissented. I always enjoy reading Randall's dissents, often written in high dudgeon, and this one is no exception.

"The goal of helping tribes help their members cannot subvert the rights of a Minnesota citizen to pass up a race-based preference and simply deal with their county ... on the basis of 'I'm an independent human being and a resident and this service is open to me,'" Randall writes.

The judge then plays his ace: "[The defendants] ... never mention and never come near Brown v. Bd. of Educ. ... You see, what we have here are [defendants] pushing for 'separate but equal' treatment for enrolled members of MCT, and the majority reiterating 'separate but "equal"' under the guise of 'helping' tribes help their members. ... [The defendants'] hydra-headed assault on the doctrine that separate but equal is inherently unconstitutional has to be recognized."

I was flipping through my St. Louis Park Sun Sailor (hey, all news is local, right?), when I came across an ad from an attorney seeking business. A big banner on the front of the ad trumpets the fact that I can get a simple will for $100! Wait, something about the face is familiar. Can it be? It is! It's Dean Barkley!

The following is excerpted from my editor's column in this week's Minnesota Lawyer. The full column is available to Minnesota Lawyer subscribers by clicking here (password required).

It was 2001 and my future client — a Vietnam War veteran — was threatening to kill himself with a knife. When the police came to take him in for psychological care, he was reporting hearing voices and insisting that the year was 1901. When he later applied for veterans’ benefits for his treatment, his claim was denied. He spent the next few years locked in the labyrinth of the Veteran’s Administration bureaucracy.

How did I wind up representing this man?

A couple of years ago, I responded to then-Chief Justice Kathleen Blatz’s pro bono challenge by signing up to participate in the Veterans Consortium Pro Bono Program. ...

Why this program? I liked the idea of providing assistance to someone who served our country. It was also not a prolonged commitment since participants were only required to handle one appeal. ...

Since the 2001 incident, my client had received treatment for depression, bipolar disorder and paranoid schizophrenia. He was again functional and working as a day laborer. Although he received a small monthly stipend from the government for his service-related breathing difficulties, his claims for benefits for the psychological disorders had been repeatedly denied over the years [as not service-related]. ...

After getting a final agency denial, he appealed to the Court of U.S. Court of Appeals for Veterans Claims. ...

After I prepared and filed the brief, my client and I were finally able to reach an agreement with the government. The adverse finding on my client’s psychological conditions was vacated and the case remanded back to the VA. The government admitted that there was insufficient medical testimony on the record for an adverse benefit determination to be made.

I couldn’t help but smile. One veteran had taken on the government of the United States of America and gotten it to say that it was wrong. It truly is a great country we live in.


Of course, my client’s case was not over. This just gave him a chance to be examined by a doctor and to make his case on an even playing field. But it is a good feeling to be a part in helping to make sure that someone has access to justice. I can see how Legal Aid lawyers and public defenders might get addicted to it. ...


The Minnesota Supreme Court is currently considering whether or not to make continuing legal education credits available for pro bono work. I am in support of the concept. I learned a lot more working with that one veteran than I could in a host of CLE classes — although I must admit that I do like the free chocolate chip cookies you get with the CLE programs.

I was recently thinking about the unfortunate tendency in Washington politics today for politicians to throw each other "under the bus" when faced with adversity. Since there has been a lot of adversity lately, we have been seeing quite a bit of roadkill.

What, oh what, would the Founding Fathers think if they could witness such political carnage?

Honestly, it probably wouldn't surprise them. Then-president John Adams threw fellow Federalist Party member Alexander Hamilton under the proverbial stagecoach when Adams agreed to a peace treaty with France, heading off a war that Hamilton had vigorously advocated for. Hamilton later returned the favor by publishing a rant attacking Adams' character and enunciating reasons why Adams should not be re-elected president, which he wasn't. Then-Vice President Thomas Jefferson also threw President Adams under the stagecoach when Jefferson and the opposition party he founded (the Democratic-Republicans) paid off newspaper editors to write nasty things about Adams. (Ah, for the good old days when folks would actually pay off us editors!) And, of course, Vice President Aaron Burr shot Hamilton in a duel precipitated by nasty things Hamilton had published about Burr. Nursing their petty grudges, Ben Franklin's congressional enemies made sure the good doctor never received a dime for the expenses he incurred as an ambassador in France, where he helped procure the aid that was instrumental to America winning the Revolutionary War and negotiated the treaty that brought the conflict to its conclusion.

So, as the saying goes, there is nothing new under the sun. However, while the Founding Fathers had their personal and partisan squabbles, they were still able to pull together and find the time to build a great country. While there is probably an equal amount of bad going on in Washington these days, there doesn't seem to be even a tenth as much good being done. For example, this session Congress dedicated a seemingly inordinate amount of time and effort to immigration reform and so far has wound up doing nothing at all. Regardless of how you feel about the various proposals that have been out there, not doing anything is probably not the best response to the problems that exist.

Congress is apparently making a last-ditch effort this week to do something about immigration reform this session. Let's hope that something constructive results.