Minnesota Lawyer Blog

During a speech yesterday on efforts to revise the state's system of judicial elections, Minnesota Supreme Court Chief Justice Russell A. Anderson warned that there are "storm clouds on the horizon" that threaten judicial independence.

Anderson was, of course, speaking about the increasingly partisan nature of judicial races throughout the country. In a number of states with judicial races, special interests groups have been pouring money into the races in the hopes of fostering a judiciary more favorably inclined to their points of view. So far Minnesota has remained relatively unscathed by this disturbing trend, but proponents of change to the state's judicial election system, including Anderson, believe that it's only a matter of time before the tsunami reaches our state.

"It has been said that 'The time to repair the roof is when the sun is shining.' Well, the clouds are gathering and the sun is not going to shine on us much longer," Anderson said in the June 29 address, delivered at the Minnesota State Bar Association's annual convention at the St. Paul RiverCentre.

There are a few competing reform proposals out there right now. One would switch Minnesota to a retention-election system whereby voters would decide whether to retain judges up for election rather than chose between the incumbent and a challenger. Another proposal is to switch to an appointments system with a commission that would evaluate judges at the end of their term to determine if they should be retained for another term. There are also several other proposals, including one that would involve the Legislature in the process. All of the proposals would require that the Minnesota Constitution be amended -- a daunting prospect. Despite the potential problems with the current system, many believe the voters of the state would not be very receptive to efforts to alter or end their role in the selection and retention of judges.

Anderson did not take sides on the debate of which approach should be used to keep Minnesota judicial selection nonpartisan. In an apparent nod to the concerns about the public's receptivity to voting reform measures, he urged change proponents to adopt a practical approach with a real hope of passage. He also called on the legal community to unite behind a single approach rather than remain fractured over the issue.

"A divided legal community will assure only one thing -- failure," the chief justice said.

After references throughout his speech of the excellent reputation that the judiciary in Minnesota currently enjoys, Anderson summed up: "Together, we have built one of the best court systems in the world here in Minnesota, one of the most efficient, most professional, and most innovative. Minnesota has a lot to lose. Let it not be said that it was lost on our watch."

Sorry for the sporadic postings this week, but most of the Minnesota Lawyer editorial staff has been at the Minnesota State Bar Association's annual convention in St. Paul for the last couple of days. More updates this weekend with a couple of postings about the convention.

The highlight today was a speech by Minnesota Supreme Court Chief Justice Russell Anderson calling on Minnesotans to support efforts to revamp the state's judicial election system to protect against the erosion of judicial independence.

The Minnesota Attorney General's Office had a few ... err ... H.R.-related issues earlier this year that were well documented on this blog and in the media. The office suffered some significant turnover -- both voluntary and involuntary -- during the first few months of 2007. Several sources at the time expressed concerns about the potential for a talent drain at the office and the difficulties that might result in recruiting qualified attorneys to replace them.

The online version of Minnesota State Bar Association's Bench & Bar magazine currently contains a classified listing from the AG's Office seeking candidates for employment. The ad says: "The Minnesota Office of the Attorney General is accepting resumes from attorneys interested in employment with this Office. Interested candidates should submit a resume to ..."

Hmmm. I don't notice any minimum qualifications listed in the ad other than that applicants be attorneys. Is it just me, or didn't the AG's Office used to say "a minimum of two years litigation experience required" when advertising to fill vacancies? Of course I may be reading too much into this. It may be the AG's Office is just looking to save a couple of bucks with a more pithy classified ad ...

As if it was not enough to have three “Justice Andersons” serving on the Minnesota Supreme Court (Russell, Paul and G. Barry, in case you’ve lost count), I recently uncovered more evidence that a severe shortage of surnames continues to plague the state.

Flipping through the handful of published Court of Appeals opinions last week, I happened to come across an interesting decision on negligent hiring. When I pulled up the case to take a second look, I was surprised to find that the court opinion in front of me involved a homeowner’s suit against a builder over construction defects, not negligent hiring.

After a few moments of frustration, I was able to clear up the basis of my confusion. The negligent-hiring case was named Johnson v. Peterson, while the homeowners’ case was named Peterson v. Johnson. They were two completely different cases for which the Court of Appeals issued published decisions simultaneously.

Lest you think I extrapolate too far in arguing that this demonstrates Minnesota is last-name deprived, the Court of Appeals this week also issued a published opinion on the assumption-of-the risk doctrine. The name of that decision? Peterson v. Donahue. I assume Johnson took the day off.

I have been following with some bemusement the court battle between the state's two largest dailies. Par Ridder's testimony can be summed up as follows: "Yes, I took confidential information from the Pioneer Press and spread it around the corporate offices of the Star Tribune. Oops! But, gosh, I really didn't mean to harm anybody."

Hmm. I would think it must be embarrassing for Par, 38, to have to pull out the babe-in-the-woods defense, you know, being publisher of the state's largest newspaper and all. But what do I know?

In any event, Brian Lambert on his blog at the Rake has been following the case very closely, and posted quite a bit of Par's testimony (See e.g. Par in Court: This is (Will Be) Expensive and Day 2: Par Takes the Stand.

I couldn't help getting a kick out of one of Minneapolis attorney John Hinderaker's posts on the Powerline blog today. Hinderaker made a post with the title, "My thoughts on Paris Hilton leaving jail." Below the title, nothing else is posted (it is completely blank).

I think it's a great sum up. I can only add that my thoughts on that particular subject are more or less identical.

Can an insurance company be held liable for negligently hiring an agent who allegedly used her position to bilk a vulnerable adult out of $104,000?

No, the Court of Appeals answered today in Johnson v. Peterson, et al. (The appellate court upheld dismissals of claims for negligent hiring, training, retention and supervision.)

The agent allegedly convinced the vulnerable man to give her the money to be used for medical emergencies faced by her and her family and because of her "dire financial situation."

In upholding the dismissal of the negligent hiring claim, the court found an employer cannot be liable on such a claim in the absence of evidence it was foreseeable an employee would pose a threat of physical injury at the time of hiring, or the employee inflicted a physical injury.

"The complaint only alleges emotional distress that may have caused heart problems and anxiety disorders," wrote Judge Christopher Dietzen. "But emotional distress is not a physical injury."

All you lawyers who are going to write a novel (or a screenplay, or a memoir ...) "someday"-- and I know you're out there -- ought to head to the MSBA Convention on Thursday to hear novelist Phillip Margolin discuss "How to Write a Novel in Your Spare Time."

Margolin has some insight into the topic, although after having writing 12 New York Times bestsellers, he no longer has to cobble together a writing life. But his did write his first novel while in law school and teaching junior high school in the Bronx.

Margolin published five novels while conducting a "heavy duty" criminal practice. He was the first attorney in Oregon to use a battered woman defense on behalf of a woman accused of murdering her husband.

Margolin wasn't giving away too many secrets about his system in advance of his talk on Thursday, but did say it doesn't involve getting up at 4 a.m. every day. He didn't stop taking new clients until 1994 and just this year went on inactive status. But, he emphasizes, "I loved being a lawyer." At the same time, there's only so much slack a judge is going to allow you when you try to schedule trials around book tours, he said.

His most recent book, "Proof Positive," will be published in paperback in July. He's at work on a new novel. ("You interrupted me on page 375," he said). He declined to disclose the working title of his new book on the ground that he doesn't like it.

Ramsey County District Court Judge Robert Awsumb invited Margolin to the convention after hearing him address the Friends of the St. Paul Public Library, where Awsumb is a board member.

The U.S. Supreme Court found religion today -- or at least issued two rulings with a religious connection.

In one case (Hein v. Freedom from Religion Foundation), the high court found that a taxpayer lacks the standing to challenge President Bush's faith-based initiatives program. Liberal groups blasted the decision, which leads to the dismissal of claims brought by a group of agnostics and atheists in Wisconsin. Personally, I didn't think they had a prayer with this one. The high court apparently agreed.

The second case, Morse v. Frederick, is actually a free-speech case involving a religion-related(?) message. The high court upheld the 10-day suspension of an Alaskan student who held up a "Bong Hits 4 Jesus" banner at a school-sanctioned event. The student apparently had no idea himself what the bizarrely worded banner meant. School officials weren't so sure either -- but understandably thought it might have something to do with promoting drug use and made the decision to suspend him.

It strikes me as odd (though I have not checked to see if there is precedent for it) to have a free speech case in which the person whose speech rights were allegedly violated has no idea what he was trying to say.

In any event, in the future, students who want to make desperate bids for attention will have to stick with tradition and dye their hair blue or purple ...

A decision issued by the Minnesota Court of Appeals last week, Gagliardi v. Ortho-Midwest, involved a claim brought by a woman who said she was fired in retaliation over a report of sexual harassment made on her behalf. (The woman was terminated after her boyfriend sent an e-mail to the employer's client accusing one of the client's employees of harassing her; the court found that the anti-retaliation statute did not cover reports made by third parties, such as the boyfriend.)

The case had an equally interesting side point. The court criticized plaintiff's counsel for not including facts in the plaintiff's brief that arguably showed some of the alleged harassing behavior may have been consensual. The appellate court said that it found the factual omissions in the plaintiff's brief "troubling."

It is difficult sometimes for lawyers as advocates to include facts that might not be favorable to their client's position, but it's important that they do so. Not dealing with "bad" facts allows the other side (which will, of course, have those facts in its brief) to frame the issue. More importantly, once a court comes to the determination that you did not put relevant facts in your brief, the rest of the brief's content -- rightly or wrongly -- becomes suspect, compromising the effectiveness of how you presented the case.

This case should serve as a reminder to all lawyers to make sure the court has all the facts it needs to render a just opinion. Lawyers' duty to be zealous advocates for their clients should never make them lose sight of their overarching obligations as officers of the court.

In 1993, an animated short film was released entitled, "The Wrong Trousers." The film starred two animated characters known as "Wallace and Gromit." The characters went from cult favorites to international animated superstardom when the makers of the film took home the Academy Award for best animated short film for that year.

A lawsuit playing out in Washington, D.C., has gotten a lot of national attention off (as you have probably guessed by now) a pair of trousers as well. In case you are one of the few who hasn't heard anything at all about it, the case involved a $54 million lawsuit against a custom cleaner over a missing pair of pants. The plaintiff claimed the cleaners had violated the Consumer Protection Act.

A blog on the Washington Post site (OFF/Beat) followed the suit, which it labeled "The Year's Most Frivolous Lawsuit." The blog even featured trial updates summarizing the testimony of witnesses.

Today we find out -- oh shock of shocks -- the judge has ruled in favor of the cleaners (Click here for AP story). The judge also reportedly ordered the plaintiff to pay the cleaners court costs.

The quips, no doubt, will abound. I offer the following two possible sum ups to the mix:

-- "Dry cleaner won't lose shirt over pants"; and
-- "Plaintiff whose pants were lost now loses suit." (Sorry, I couldn't resist ...)

But jokes aside, it's a shame when an already overburdened justice system is used so spuriously. It's a rare happening, but it reinforces negative stereotypes in the public mind when it does. By the way, in case, you had any doubts, the plaintiff was pro se.