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Friday, March 14, 2008

A 'stunning' revelation from the Village Voice

The Village Voice recently ran a piece on the assurances by St. Paul police that Minnesota will be, well, Minnesota nice about how they deal with protesters at the Republican National Convention late this summer. From the title of the article, it's easy to see the writer was a bit skeptical of claims that its warmer up North: "Minnesota cops promise kinder, gentler RNC: So why are they stocking up on stun guns?"

Hmmm. Perhaps they were on sale at Target?

RCBA chimes in on judicial selection debate

The Ramsey County Bar Association has come up with a unique suggestion for judicial election reform in Minnesota.

At a special meeting held late last month, the association’s board of directors adopted a resolution recommending that the Minnesota Constitution be amended to provide for retention elections -- but only for justices of the Minnesota Supreme Court. (Under a retention model, the governor would appoint judges and voters would decide whether to retain the judge at the end of an eight-year term.)

Under the RCBA’s resolution, the current system of electing District Court and Minnesota Court of Appeals judges would remain in place.

It’s an interesting, and as far as I know unexplored, idea that might be worth considering. It appears that it might actually be an attempt at a compromise between the Minnesota State Bar Association and Quie Commission's recommendation that Minnesota switch entirely to a retention system, and the wishes of the Minnesota District Judges Association, which seeks to retain the state’s current judicial election system. (Some District Court judges fear abuses of the retention model, like a last-minute smear campaign that could remove them from their seat.)

The RCBA has sent its recommendation to the leadership of the Minnesota House and Senate and to the authors of bill relating to judicial selection.

The effort may be neither here nor there, however, as sources tell us that it doesn’t look like judicial election reform is likely to go any further in the current legislative session. But, of course, there’s always next year …

St. Paddy's Day means green for DUI defense lawyers

St. Patrick's Day will undoubtedly be a busy day for DUI lawyers, who will probably be too busy responding to those late night calls to do much celebrating themselves. Law enforcement officials are already making the annual promises of crackdowns for all those late-night leprechauns who have a wee bit to much.

Actually, DUI is a serious issue, so I don't want to make too light of the proclivity of some to overindulge on March 17. However, the usual slew of St. Paddy's Day DUI arrests come at an interesting time with the use of breath-test results in DUI prosecutions under so much fire. The Intoxilyzer's maker has ignored numerous court orders compelling it to produce the source code needed to verify the reliability of the device. This recalcitrance may prove a lucky charm for some clients who are given the breath test and flunk, with courts in some cases refusing to admit the results. Other drivers will have to submit to blood or urine tests in jurisdictions that have put on hold their use of the breath test.

Meanwhile, defense lawyers with pending DUI cases wait to see if the state's recent decision to file a lawsuit against the Intoxilyzer maker will finally convince the company to produce the source code. The company's steadfast refusal to do so up to this point has really gotten the defense bar's Irish up.

Thursday, March 13, 2008

The bow tie's triumphant return

This just in from the fashion dons at The New York Times — the bow tie is back!

But before you start heaping praise on those who've stuck by this venerable accessory all these long years, know this: it's a 20-somethings fad, and the look is quite different than that sported by Justice Alan Page or Lewis A. Remele (and we wouldn’t have it any other way).

Here's how the Times would wear a bow tie:

"It looks sharp with jeans, a white shirt and a solid sport coat, say; or wear a formal black bow tie as an accent, instead of a more colorful and wholesome one. The idea is to avoid a costume-ish look — Southern gentry, Ivy League professor, classical architect, 1960s geek — while hinting at some romantically out-of-it, bespectacled antihero."

I could totally pull that off. You?

Mukasey's selection as BC commencement speaker proves controversial

My alma mater, Boston College Law School, scored U.S. Attorney General Michael Mukasey to be its commencement speaker this year -- an announcement the dean proudly made last January. But, now some members of the school's faculty have sent Mukasey a letter disinviting him, Legal Blog Watch reports.

Well, technically the letter asks the AG to reconsider his decision to accept the dean's invitation. In breaking ranks with the school's administration, the faculty explains to Mukasey:

We realize that you face complex professional difficulties in your position as
Attorney General. We are very concerned, however, that your role in the current
controversy regarding the legality of waterboarding has made you a symbol of
Administration policies that conflict with basic principles of international and
domestic law, the ideals of Boston College Law School, and the Jesuit principles
that underlie Boston College’s educational mission.

No news yet whether Mukasey has RSVP'd to the disinvitation.

The Legal Blog Watch posting was made by Massachusetts attorney/ writer Bob Ambrogi, a former work colleague and fellow BCLS alum. He notes at the end of the post, "If there is a letter for alumni along the lines of that signed by the faculty, add my name."

An interesting side note: Ambrogi relates that posters on the BC law student's blog (eagleionline) discovered that, after Mukasey's selection as commencement speaker kicked up controversy, BC's marketing department altered the online version of the press release announcing it. The original version of the release had referred to the AG as a "role model," but that term was deleted in a later posted version. After the deletion was exposed, the administration added the word "role model" back in. Apparently the law students have posted all three versions of the press release on their blog. You've gotta' love the Internet.

Wednesday, March 12, 2008

Even in the news, Ciresi must settle for #3

Lost this week in the hubbub over the retirement of Minnesota Supreme Court Chief Justice Russell Anderson and the ongoing hassle at the Attorney General’s office was the news that Mike Ciresi was dropping out of the Minnesota U.S. Senate race.

Actually, the way the Ciresi story got buried was a bit symbolic of his campaign in general. Despite his pedigree as a go-getter and an aggressive champion of consumer rights, Ciresi never quite inspired the table talk of his primary opponents, incumbent Norm Coleman, newcomer Al Franken, or even dark-horse candidate Jack Nelson-Pallmeyer.

Franken, for all his inexperience, has shown surprising aptitude when it comes to fundraising and engendering grass-roots support. In fact, as Minnesota Lawyer reported last year, a goodly portion of Ciresi’s individual campaign contributions came from within his own firm, Robins, Kaplan, Miller & Ciresi -- and that was before he dipped into his own pocket to lend his campaign $2 million.

Maybe Ciresi’s second failed attempt to storm the gates of Congress is a sign from the gods that his talents are better suited to the courtroom after all. Now that he’s no longer even in a position to play spoiler, it will be interesting to see if he throws his support behind Franken.

Chiefly speaking

I thought we did pretty well on this blog to give you a heads up that Chief Justice Russell Anderson might step down from the high court three days before his retirement was officially announced. But then I got an e-mail from Burton Randall Hanson over at the Daily Judge blog. Hanson sent me a link to a blog post he made predicting the 2008 retirement in December 2005, right after Anderson's appointment as chief was announced. (Scroll down to "Is MN's new Chief a caretaker Chief?" about a fifth of the way down the page.) Hanson definitely deserves the early bird award here.

Meanwhile, Judith Yates Borger over at MinnPost had her thoughts yesterday on "Who will replace the state's retiring chief justice?" Her list of possibilities included three excellent Court of Appeals judges who would also bring a diverse perspective to the state high court -- Judge Natalie Hudson, Judge Mimi Wright and Chief Judge Ed Toussaint.

Tuesday, March 11, 2008

Time for a new approach at the AGO; Lawler should be reinstated from 'leave'

I was disappointed but not surprised when I heard assistant Attorney General Amy Lawler had been suspended from her job after interviews aired on Minnesota Public Radio and published on MinnPost critical of Attorney General Lori Swanson. Frankly, the only unexpected thing was that it took them a couple of days to do it. But of course, that's mostly because there was an intervening weekend.

Lawler is a fledgling attorney who started at the Attorney General's Office last fall shortly after graduating Harvard Law School. She's not some sort of a political hack on a vendetta against Swanson, but an idealistic young lawyer who happens to believe in unions. With the bravery (or perhaps naivete) of youth, she volunteered herself to be the public face of the union movement in the office -- something the more seasoned hands in the office were understandably reluctant to do themselves. Most of the management concerns Lawler expressed to MinnPost's Eric Black and Minnesota Public Radio have been previously expressed by a number of others in the office, albeit not for attribution.

The reason proffered for Lawler's forced administrative leave -- not going through "proper channels" for filing an ethics complaint -- strikes me as weak, particularly given that, in a labor dispute, the channels are what's the problem. In any case, I believe the complaints Lawler has against Swanson are based on her management style rather than on any alleged ethical breach. And at least one press report indicated that Lawler had affirmed as much in an e-mail to management. So it appears the "crime" for which Lawler was put on forced leave was that she failed to follow the proper procedures for bringing an ethical complaint that she did not have. (To borrow a phrase from "Casablanca," they have not quite decided yet whether she committed suicide or was shot while escaping ...)

Under the playbook that has been in use at the AGO for the last nine years, management would take a hard line with a dissenter like Lawler --- isolate, marginalize and root out. But what if -- and this is a big what if -- Swanson threw the playbook into the meat grinder rather than Lawler. This sincere young woman did what she thought was right and highlighted some longstanding concerns that badly need addressing, regardless of whether management agrees with the methodology. What if management actually listened to the concerns she expressed and attempted to address them? What if rather than treating Lawler as the enemy, management treated her as the friend who told it that its zipper was open? That might be a more effective way of diffusing the labor situation at the office than any sledgehammer-approach could ever be.

It's time for a new approach at the AGO. Allowing Lawler to return from administrative leave would be an excellent first step.

Anderson was a captain with a mighty heart

When former Chief Justice Kathleen Blatz retired, the present Chief Justice, Russell Anderson, called her “the captain with the mighty heart.” The phrase could with equal accuracy be applied to Anderson himself. Anderson announced his retirement from the bench yesterday and it is a loss to the state. It’s a loss not only because it’s the fourth vacancy on the court in four years, but also because Anderson packed a lot of leadership into two years as chief.

Only hours after Anderson took the oath in January 2006 the U.S. Supreme Court declined review in Republican Party v. White, leaving the system of electing judges in flux, where it remains. Anderson immediately announced that the state of Minnesota would begin a conversation about how to elect judges post-White, and that conversation is continuing at the Legislature where a constitutional amendment is under consideration. The legislation may not pass this session, and reasonable minds differ about what elections should look like in the future, but there certainly has been a conversation. Any interested citizen has had an opportunity to be heard.

Anderson and the rest of the court also got pummeled shortly into his term with ethics charges that proved baseless after an investigation by the Board on Judicial Standards. Former Senate Majority Leader Dean Johnson said in public that Anderson lied about allegations that the members of the court discussed same-sex marriage with him. He and Justice G. Barry Anderson were also accused of campaign funding violations by attending a judicial retreat, and that charge was also dismissed by the Campaign Finance and Public Disclosure Board.

To the public Anderson appeared to be a fortress during these storms, which also occurred at the time when the entire court system was moving to a unified state-wide administration under a Judicial Council--a system that Anderson helped to shape and deliver. Regardless of the stress to employees occasioned by that change, that transition has appeared to the community to be virtually seamless.

Anderson once told me he was surprised to be named chief. Whether or not it was a surprise appointment to the rest of the state, it was a fortunate one.

Monday, March 10, 2008

Help wanted -- 'Judicial activists' need not apply

Governor Tim Pawlenty is currently looking for a new chief justice for the Minnesota Supreme Court. While I obviously don't know who will be picked yet, I can take a pretty good stab at what that person’s background will include:

-- impeccable conservative credentials;
-- well known to Gov. Pawlenty (a/k/a “a friend of Tim”);
-- with a “strict constructionist” judicial outlook.

With just two woman and one minority on the high court, diversity is likely to be a factor the governor considers, although, as he showed with his last high court pick, not necessarily a decisive one.

One option for Pawlenty would be to elevate an associate justice to the chief’s spot and then to appoint a replacement for the associate justice. (This is what the governor did when he selected then-associate Justice Russell Anderson as chief two years ago.) If Pawlenty goes this route, one of three justices would likely become the new chief – G. Barry Anderson, Lorie Gildea or Christopher Dietzen.

On the other hand, Pawlenty could tap a well-regarded lawyer without prior judicial experience, in which case longtime friend and colleague Eric Magnuson would be a clear favorite.

With this next appointment, the court will officially be a Pawlenty court, with four of the seven justices owing their seats to the governor. The three remaining justices not appointed by Pawlenty are: Paul Anderson (appointed by Arne Carlson), Helen Meyer (appointed by Jesse Ventura) and Justice Alan Page (who was elected to his seat and is the most senior justice on the court).

Minnesota chief justice announces retirement

Minnesota Supreme Court Chief Justice Russell Anderson today announced that he is stepping down from the high court effective June 1. Anderson, 65, cited his age and his wife's health concerns. (Click here for Minnesota Lawyer article.)

The announcement means that Gov. Tim Pawlenty, who made Anderson chief justice in January 2006, will have another chance to appoint a chief justice.

The 'iLawyers' have it

Apropos to absolutely nothing, I replaced my old cell phone (a Motorola RAZR) with an iPhone this weekend. If you have not checked out iPhones yet, they are definitely worth looking into.

Not only do they have a sleek-looking display, but, more to the point, they give you access to the Internet virtually anywhere. Thus, you can read the New York Times (or even this blog) as you wait for a CLE to start or for a court proceeding to begin. Heck, if you are using the Internet to do research for a client, you can even bill the time. Thought of that way, a Dorsey or Faegre lawyer could completely recoup the $400 cost of an iPhone by squeezing out just a single hour of extra billing.

Perhaps all the big Twin Cities firms should consider getting one for their lawyers ...

Breath test doesn't pass the smell test right now

The following is the full-text of this week's editor column from Minnesota Lawyer, which we are making available to our blog readers as a special extra.

There is a place where defendants have gone to prison based upon evidence that cannot be verified; where lawyers’ attempts to find out the source of this incriminating evidence have been completely rebuffed; and where the courts have been powerless to help.

No, I don’t mean Guantanamo Bay, Iraq or Pakistan — the place I am talking referring to is Minnesota.Ladies and gentlemen, in the companies behaving badly category, I submit for your consideration Kentucky-based CMI Inc., maker of the breath-testing device used to ascertain whether Minnesota drivers are drunk.

Pursuant to an exclusive contract with the state, CMI developed a specialized version of its device for use in Minnesota — the Intoxilyzer 5000EN. For the last decade or so, the device has furnished evidence that has been used to convict countless suspected drunk drivers. The only problem is that none of the defendants, lawyers, judges or jurors involved in the cases had the least idea how this magical machine works.You blow into it, and it pumps out a number. If it’s a .07, you go on your merry way. But if it’s a .08, your life just went into the crapper. It would be nice to have some way of checking to see how those numbers are being generated, wouldn’t it?

Some DUI defense lawyers thought so. In 1996, they began demanding the source code, which would allow them to see how the machine came up with those handy-dandy numbers. But CMI would have none of it. The company fought tooth-and-nail against providing the information, which it maintained was proprietary. The company has even reportedly flouted more than 100 court orders requiring it to produce the source code despite a provision in its contract requiring it to furnish such information when required to do so. (Not to mention the copyrights belong to the state under the development agreement for the Intoxilyzer 5000EN.)

Now keep in mind, we are not talking here about an effort to find out what’s inside the special sauce on a Big Mac or what gives Coca Cola that extra zip. This is an attempt to find out whether or not the evidence we have been using to send people to jail is accurate.Should we accept a simple “trust us” from a company that defies our courts?

Fortunately, the state of Minnesota no longer thinks so. Last week, the state filed suit in federal court against CMI, alleging that the company had breached its contract and engaged in copyright infringement. The state seeks monetary damages and a much-overdue copy of the source code.

“CMI’s refusal to turn over the source code has placed the outcome of numerous impaired driving-related cases in jeopardy, has forced the State to incur substantial expenses, and may force the state to replace its entire fleet of evidentiary breath testing instruments,” the state says in its complaint.

Hopefully, when and if CMI finally does produce the source code, it will turn out to have a scientific reliability above that of a divining rod or a “Magic 8 Ball.” In the meantime, more and more jurisdictions will likely switch to urine and blood tests to determine the sobriety of drivers. I, for one, don’t blame them. At present, something stinks about the breath test.